DENNIS MYERS Against the Grain Advertisement

"Life doesn't change because you put up a sign." -- George Carlin

Many years ago I reluctantly accompanied a friend to a class to humiliate myself by learning Jazzercise. When we arrived at the community center where the class was being held, we had to sign a form at the counter holding the center harmless if anything happened to us while we were on the property. My friend, a legal researcher, said as she signed it, "It has no legal effect, so go ahead and sign it."

You've probably seen those disclaimers at the front of novels that read something like, "The characters in this novel are fictitious. Any resemblance to people living or dead is completely coincidental."

That sentence does not protect the author or publisher. It's mainly an attempt to discourage lawsuits. In some cases, such as the disclaimer read by a narrator at the start of various versions of the "Law & Order" programs, the disclaimers are preposterous because MOST of its scripts come from actual events in the news.

The basic message about these things is that just because someone says it's so doesn't mean it's so, even when the someone is a state law.

This arose last week when the Nevada attorney general, who has been taken off the prosecution of Lt. Gov. Brian Krolicki by a state district judge, appealed that ruling on the grounds that a state law says it's okay for her to prosecute him. Krolicki is being prosecuted for misappropriation of funds when he was state treasurer. No funds are missing. Rather, he's being accused of using the funds in improper ways.

The issue in the latest dispute is whether Krolicki can be prosecuted by the attorney general's office for actions Krolicki took that the attorney general's office had signed off in legal advice. The state judge said this was a conflict of interest and took the A.G. off the case. It will probably be prosecuted by a county district attorney. (The current attorney general was not in office when her deputies gave the legal advice to Krolicki.)

But the attorney general says just because her office gave Krolicki legal advice doesn't mean she can't prosecute it. Her spokesperson said the legislature passed a law saying "that the prosecution of a state officer who has been represented in his official capacity by the attorney general is not a per se conflict of interest. Nevada law requires the attorney general to prosecute the same state officials that she is required to advise on all state related legal matters."

Okay, but so what? The legislature can pass a law saying that pi is not 3.14, as the Indiana House of Representatives did in 1897, but that doesn't mean it's so.

A little history is in order here, because the A.G. is attributing to the lawmakers a stance they never took. The Nevada attorney general's office is relatively (in the last two or three decades) new to criminal law and still doesn't do much of it. Historically, it principally gave legal advice and not much else. In the last part of the 20th century, the Nevada Legislature started giving the attorney general more prosecutorial powers, such as prison inmate crimes or offenses by state employees.

The fact that this is a new development is important to the discussion. Because the legislature could not anticipate every outcome of its enactment of new powers, naturally some things got overlooked. Just because the lawmakers empowered the "attorney general to prosecute the same state officials that she is required to advise" doesn't mean they anticipated all the complications that could ensue in this new area of responsibility. They frequently go back and amend laws to deal with unseen developments (as they will probably do after this case). Nor did legislators prohibit judges from acting where conflicts were found. So since the attorney general's role is a key part of Krolicki's defense, the judge's action in removing the A.G. from the case is entirely reasonable and probably essential.

The real question is why the attorney general would WANT to stay on the case in these circumstances, much less fight this hard to stay on it. A sane prosecutor would jump at the chance to get off a case so politically sensitive. The questions that have been raised about the merits of this case (some people in the A.G.'s office itself have doubts about it) raise legitimate questions about why she is fighting so hard to stay on it