vv 18 19 20 al 22 23 24 25 26 2 28 BRET O. WHIPPLE, ESQ. ‘Nevada State Bar No. 6168 JUSTICE LAW CENTER 1100 South 10" Street ? 2020 Las Vegas, Nevada 89104 TATE BAR OF NEVADA (702) 731-0000 Telephone BY: pen Pobre (702) 974-4008 Facsimile FICE OF BAR COL Admin@Justice-Law-Center.com STATE BAR OF NEVADA SOUTHERN NEVADA DISCIPLINARY BOARD ) OBC19-0665, OBC19-0969, STATE BAR OF NEVADA, ) OBCI9-1163, OBC20-0352 Complainant, vs, BRET O. WHIPPLE, ESQ., Nevada Bar No.: 6168 Respondent. MOTION TO DISQUALIFY BAR COUNSEL COMES NOW Respondent, BRET O. WHIPPLE, ESQ., of JUSTICE LAW CENTER and hereby submits the following Motion to Disqualify Bar Counsel. This Motion is based upon the memorandum of points and authorities included herein. DATED this & _ day of October, 2020. B= BRET O, WHIPPLE, ESQ. Nevada State Bar No. 6168 JUSTICE LAW CENTER 1100 South 10" Street Las Vegas, Nevada 89104 (702) 731-0000 Telephone (702) 974-4008 Facsimile Admin@Justice-Law-Center.com Submitted Bys, JUALIFY BAR COUNSEL AGE 1 OF 16 MOTION TOMEMORANDUM OF POINTS AND AUTHORITIE: L INTRODUCTION. Bar Counsel Daniel Hooge (“Hooge”) must be disqualified from prosecuting this State Bar matter because of his animus, prejudice, and bias against Mr. Bret Whipple (“Whipple”). Hooge has a lack of impartiality, and his being Bar Counsel in this case creates of an appearance of unfaimess or impropriety which would undermine public trust and confidence in, the present proceeding if Hoge is not disqualified. Hooge must also be disqualified because he has a conflict of interest in violation of the Nevada Rules of Professional Conduct, as his obligations to the State Bar of Nevada, and the publie of this State, is materially limited by his ‘own personal interests. Finally, failing to disqualify Hooge would deprive Whipple of a fair and unbiased tribunal, which would violate his state and federal rights of due process, and would act to deprive him of his constitutional rights, under color of state law, in violation of 42 U.S.C. §1983, and in violation of the Federal Torts Claim Act, 28 U.S.C. § 1346. I. FACTUAL BACKGROUND. ‘The facts and evidence establishing the necessity of the requested disqualification arise out of prior adversarial proceedings between Whipple and Hooge. Whipple has been an attorney, with a great deal of practice focused on criminal defense, for 24 years. During some of that time, Hooge was the elected and acting District Attomey for Lincoln County, Nevada. ‘As such, Hooge and Whipple routinely came into adversarial legal conflict in criminal cases in Lincoln County during that time period Additionally, the Whipple family has lived in Lincoln County for generations, and as such Whipple and Hooge have had their lives intersect not only in direct adversarial legal battle, but in the local social life and politics of Lincoln County. Alll of these issues culminated MOTION TO DISQUALIFY BAR COUNSEL PAGE 2 OF 16in the highly public prosecution of local football coach and administrator, Dr. Kenneth Higbee, by Hooge. Whipple (and Judge Lanny Waite) defended Dr. Higbee Hooge’s 22: unt Indictment of Dr. Higbee ‘The primary source of Hooge’s bias and animosity towards Whipple arises out of a lengthy legal battle in which Hooge pursued the high-profile prosecution of a prominent Lincoln County football coach and education professional, Dr. Kenneth Higbee. This was a newsworthy case in Lincoln County (even reaching the Las Vegas media), in which one of the most famous residents of that area (who had been featured in national media previously for the longest high school football winning streak in history at that time) was suddenly charged by Hooge with a 225-count felony i ictment. Not only was this case significant for its note in the community for its allegations against a well-known figure, and the number of counts and allegations, it all occurred while Hooge was seeking reelection to the public office as the District Attomey for Lincoln County, Due to the election’s timing, and the prominence of the case, the case was inevitably going to have immense consequences for Hooge’s odds of being re-elected. Indeed, a successful prosecution could plausibly have secured the election for Hooge. Hooge sought to prosecute Dr. Higbee in a 225-count indictment, which required establishing probable cause as to each of those 225 counts at a preliminary hearing. At the preliminary hearing in Dr. Higbee’s case, Hooge made a serious legal error when he had the Justice of the Peace admit what amounted to the entire law enforcement investigatory file (approximately 2,000 pages) into evidence, en masse, as a “summary” exhibit under NRS 52.275. Although the Justice of the Peace admitted the evidence, this was clear error which MOTION TO DISQUALIFY BAR PAGE 3 OF 1620 21 22 24 25 26 28 resulted in the entire case being dismissed upon a Petition for Writ of Habeas Corpus filed to the Seventh Judicial District Court by Whipple on behalf of Dr. Higbee. ses AIL strict Court Dis is ‘The District Court dismissed all 225-counts, and while doing so, energetically condemned many of Hooge’s arguments and tactics. For example, the Court complained: “The State makes numerous references to the fact that Petitioner's counsel did not submit payment for the discovery, and ultimately the State produced the documents at its own expense. The State should review the statutes more carefully: the obligation to produce discovery is on the State. No statute requires a defendant to pay for copies.”' The District Court stated that Hooge’s position that the binders were a “summary” was “wholly without merit, As noted above, the binders are in fact the entire law enforcement file, To be clear, just because the binders are voluminous does not make the binders a summary.”? The Court concluded with the following criticism: “the State’s failure to have the documents numbered, and to have the witnesses refer to a numbered exhibit renders [witness] testimony virtually worthless.” After making these criticisms, and dismissing all 225 counts, the District Court took the time to even more directly admonish Hooge’s conduct in a final footnote: “The court finds itself compelled to comment on the tone of the State's argument in its Answer and Retum, Throughout the State's response are numerous comments or suggestions that somehow Petitioner's habeas challenge is somehow wrongful or not appropriate under the law. For example on p. 28 lines 16-18 the State writes: "Petitioner's claims are self serving, technical attacks dripping with irony. He forged documents for years to cover up his theft and now he has the audacity to claim that the documents See Exhibit 1 at 3, footnote 1. Idat 5. 9 Idat7. MOTION TO DISQUALIFY BAR COUNSEL PAGE 4 OF 1620 are not authentic." That type of argument has no place in this proceeding. Petitioner's guilt or innocence is not part of this proceeding, nor is it even part of the preliminary hearing. As the State itself noted, the only issue at the prelim is whether the State has shown through competent evidence probable cause to believe Petitioner did commit a crime, The rules of evidence set forth simple requirements that must be met in order to admit documents. Here, the State chose not to take the time and effort to properly mark, identify and authenticate its documents, Petitioner has properly called the State out on its efforts. The true irony is that by failing to properly present its case, the State has wasted an enormous amount of judicial resources.” Idat 5, footnote 3, Emphasis added. After the Seventh Judicial District Court issued this strongly worded Order dismissing all 225 counts, Hooge did not modify his conduct. Instead, he doubled down, and decided to violate the Nevada Rules of Professional Conduct to specifically target Whipple, Higbee, and Judge Lanny Waite (a Justice of the Peace in another jurisdiction, who was also assisting in Dr. Higbee's defense), Hooge’s fer to the Editor Hooge decided to prosecute the case further in the public media, perhaps because he was in an election year and because the dismissal of his 225-count indictment had made .coln County, but in major Las Vegas media outlets.‘ Hooge wrote a headlines, not only in Letter to the Editor, which was published by Lincoln County Reporter on May 14, 2018.* Within that Letter, Hooge attacked Dr. Higbee, as well as Dr. Higbee's attomeys Whipple and Judge Waite, and Seventh Judicial District Court Judge Dobrescue. As the letter makes clear, Hooge viewed Dr. Higbee’s case as a problem for Hooge’s re- lection campaign, and the election for Lincoln County District Attomey was only weeks away. 4 See Exhibit 3 - Las Vegas Review Journal Article; Exhibit 4 — Reno Gazette Journal; Lincoln County Record, 5 See Exhibit 5, Hooge’s Letter to the Editor. “id. MOTION TO DISQUALIFY BAR COUNSEL PAGE 5 OF 16Additionally, Hooge publically accused Dr. Higbee of being a liar who “like most defendants in his position, wants to save face. He will spin the story to friends and family until his dying breath.” As such Hooge took to the media (from the same locale in which a jury would be drawn if Higbee ultimately went to trial) to put forward his view of the case and denigrate the defendant, despite the fact the District Court had strongly sided with the defense, This was done in violation of NRPC 3.6 and NRPC 3.8”. Hooge then attempted to suggest, in direct contradiction to the District Court’s findings, that he actually had properly admitted the evidence at the preliminary hearing, and that the Seventh Judicial District Court improperly ruled on Dr. Higbee's Petition for Pre-Trial Habeas Corpus, Hooge wrote: “Judge Dobrescue voided Mr, Higbee’s original preliminary hearing because he didn’t like how the binders were organized, marked, and placed into evidence,” Emphasis added. Hooge then insists if he keeps re-filing the case for a preliminary heating, “Eventually, I will get a fair trial.” Emphasis added. Hooge also used the letter to attack Whipple and Judge Waite. Whipple is mentioned four times, by name, in three separate paragraphs. Hooge accused Whipple of “spreading 7 RPC3.6 Trial Publicity. Rule 3.6. Trial Publicity. (a) A lawyer who is participating or has participated in the investigation ot litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will hhave a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. [...] RPC 3.8. Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall: [...] () Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement Purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused... [OTION TO DISQUALIFY BAR COUNSEL, PAGE 6 OF 16misinformation.” Next, Hooge implied that the Whipple had only gotten the case dismissed because of a “motion to disqualify Judge Fairman fo get Judge Dobrescue” as if there was some conspiracy to get a defense-biased judge to dismiss the case, In fact, Judge Fairman recused himself because he previously represented the defendant in a different legal matter. Whipple never filed any motion to recuse Judge Fairman, Hooge explicitly tied his animosity over that case, Higbee, Whipple, and Judges Waite and Dobrescue, to his view of the upcoming election. There was no question in Hooge’s mind that this legal battle was connected to his chance of reelection, He closed by writing: “I know that Mr, Highee and some of his supporters are backing [eventual District Attorney elect] Mr. Frehner in the upcoming election because of this case. Again, I understand their decision, For me it is better to do what is right and lose than to do what is easy and win,” Id, Emphasis added. The Election Results and its Consequences Asa probable result of all of the above events, Hooge lost his election. Dylan Frehner was elected to be the Lincoln County District Attomey. Dylan Frehner won 61.60% of the votes, while Hooge received only 38.40% of the votes.® Dr. Higbee’s case was retumed to Justice Court where it underwent additional litigation. Eventually, District Attomey Frehner took over the case. The State decided not to pursue the matter and the case was dismissed, Hooge soon thereafter became Bar Courisel, the position he now holds in respect to the prosecution of Whipple in the above disciplinary matter. § Exhibit 6 - Election Results, obtained on 9/17/2020 from https://www.nvsos.gov/silverstate20 | 8pri/county-results/lincoln.shtml. MOTION TO DISQUALIFY BAR COUNSEL PAGE 7 OF 1620 a1 22. 23 24 25 26 28 Judge Lanny Waite, who was Higbee’s co-counsel, filed a bar complaint against Hooge for Hooge’s conduct in the Higbee case. As part of that Complaint, Judge Waite alleged that Hooge had acted out of personal animus towards Higbee, had violated NRPC 3.8, and that his, conduct violated the Nevada Rules of Professional Conduct.? During the State Bar investigation into that complaint, Whipple was interviewed by the bar investigator.!° iil. LEGAL ARGUMENT The Nevada Supreme Court Rules govern the State Bar and attorney practice. SCR 120 states that: “[iJf, for any reason, bar counsel is disqualified or has a conflict of interest, the board of governors shall appoint an attorney, ad hoe, to act in the place of bar counsel.” This, rule controls replacement of bar counsel in the case of disqualification, but it does not control the manner in which bar counsel may be disqualified during disciplinary heating. The rule does, however, state that “if [...] bar counsel [...] has a conflict of interest, the board of governors shall appoint an attorney” to replace bar counsel. As such, SCR 120 mandates disqualification where a conflict of interest exists. Likewise, SCR 107(3) states that “[Jearing panel members shall not participate in any proceeding in which a judge similarly situated would be required to abstain, Any member whose term expires while the member’s panel is considering a complaint shall remain a member until its disposition.” By analogy, Bar Counsel should not be permitted to participate in any proceeding in which a prosecutor or judge similarly situated would be disqualified Second, there are the Disciplinary Rules of Procedure (As Amended on June 28, 2017) Which are published by the State Bar of Nevada Board of Governors. These rules discuss ° See Exhibit 2 - Complaint to the State Bar. "© See Exhibit 7 — Declaration of Bret Whipple. DISQUALIFY BAR COUN: PAGE 8 OF 16various subjects, such as the ability to use preemptory challenges against Hearing Panel Members (Rule 13(a)), and Challenges for Cause (13(b)). These two rules essentially govern the ability to remove or disqualify hearing panel members and provide a method for disqualification of such members if there are issues such as bias. Again, by analogy, Bar Counsel should likewise by disqualified where there is good cause. The Rules of Professional Conduct provide additional guidance, stating that, pursuant to Rule 1,7(a)(2), a lawyer shall not represent a client where “there is a significant tisk that the Tepresentation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Rule 1.11 also addresses conflicts of interest for former or current government officers and employees, stating in part 1.11(@)-(e): “Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees. [el (@) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) Is subject to Rules 1.7 and 1.9; and (2) Shall not: (® Participate in a matter in which the lawyer participated Personally and substantially while in private practice or nongovernmental employment, unless the appropriate government ageney gives its informed consent, confirmed in writing; or (ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party ina matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by, and subject to the conditions stated in, Rule 1.12(b). (©) Asused in this Rule, the term “matter” includes: (2) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) Any other matter covered by the conflict of interest rules of the appropriate government agency.” Id. MOTION TO DISQUALIFY BAR COUNSEL PAGE 9 OF 16an 12. 13 14 24 25 26 an 28 Case law on the disqualification of prosecutors, district attomeys, and judges, also provides guidance. In evaluating whether disqualification is warranted, the courts look first to the Rules of Professional Conduct. State v. First Judicial Dist. Court, 136 Nev., Advance Opinion 34, at *4-5 (Nev. June 26, 2020), citing In re Dresser Indus., Inc., 972 F.2d 540, $43 (Sth Cir. 192) (observing that "in the event an appropriate standard for disqualification is, based on a state's disciplinary rules, a court of appeals should consider the district court's, interpretation of [those] rules as an interpretation of law, subject essentially to de novo consideration"). Courts have also addressed the circumstances in which the disqualification of one prosecutor extends to his entire office. In Collier v. Legakes, 98 Nev. 307,646 P.2d 1219 (1982), the Supreme Court of Nevada held that “[tJhe disqualification of a prosecutor's office rests with the sound discretion of the district court” and that when exercising its discretion, the district court “should consider all the facts and circumstances and determine whether the prosecutorial funetion could be carried out impartially and without breach of any privileged communication.” Jd. at 309-10, 646 P.2d at 1220. In Collier, the Court cited authorities indicating that vicarious-disqualification rules at the time were not strictly applied to government offices and held that vicarious disqualification of a prosecutor's office may be required “in extreme cases where the appearance of unfairness or impropriety is so great that the public trust and confidence in our criminal justice system 1ed without such action.” Jd. at 310, 646 P.2d at 1221. Discussed by State could not be maint v, Bighth Judicial Dist. Court of State, 321 P.3d 882, 884-85 (Nev. 2014). ‘The Supreme Court of Nevada has also recognized that “there is a broader concern in criminal cases that cannot be overlooked: the defendant's right to a fair trial. Based on that MOTION TO DISQUALIFY BAR COUNSE PAGE 10 OF 16concern we agree with Collier that an individual prosecutor's conflict of interest may be imputed to the prosecutor's entire office in extreme cases.” State v. Eighth Judicial Dist, Court of State, 321 P.3d 882, 886 (Nev. 2014). Nevertheless, the Court concluded, at least when determining whether to jualify an entire prosecutorial office rather than one prosecutor, “that the appropriate inquiry is whether the conflict would render it unlikely that the defendant would receive a fair trial unless the entire prosecutor's office is disqualified from prosecuting the case. See, e.g., Cope,50 P.3d at 515-16. This approach strikes the correct balance between the competing concerns of the State and the right of the defendant to a fair trial.” Jd. inal nature.” In re “(Discipline proceedings] are adversary proceedings of a quasi~ Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226 (1968) (cit, Cf. In re Gault, 387 US. 1, 33, 87 S.Ct, 1428, 1446, 18 L.Ed.2d 527. An attorney is entitled to procedural due process in disciplinary hearings. Jn re Schaefer, 117 Nev, 496, 515, 25 P.3d 191, 204, mod. 31 P.3d 365 (Nev. 2000) (cit. State Bar of Nevada v. Claiborne, 104 Nev. 115, 756 P.2d 464 (1988) (noting that due process requirements must be met in bar proceedings). Disciplinary proceedings and the sanctions imposed upon lawyers are neither criminal nor civil in nature, but are sui generis. As the U.S. Court of Appeals for the Seventh Circuit stated in In re Echeles, 430 F.2d 347 (7th Cir. 1970): “[I]t would be well to note that disbarment and suspension proceedings are neither civil nor criminal in nature but are special proceedings, sui generis, and result from the inherent power of courts over their officers. Such proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice.” MOTION TO DISQUALIFY BAR COUNSEL, PAGE 11 OF 1626 20 28 Id. at 349; see, e.g, Ligon v. Stilley, 371 S.W.3d 615 (Ark. 2010) (reiterating that lawyer disciplinary proceedings are sui generis by nature and neither civil nor criminal); In re Parker, No. 95-PM-17584, 1997 WL 652367 (Cal. Bar Ct. Oct. 7, 1997) (state bar disciplinary proceedings, including probation revocation proceedings, are sui generis) Because of the quasi-criminal nature of bar disciplinary proceedings, the right to fundamental fairness likewise cannot be overlooked; any conflict of interest must be removed from the proceeding. Likewise, the fact that disciplinary proceedings require proof by clear and convincing evidence, a higher burden of proof than exists in civil cases, warrants heightened concern for issues of bias (which can deny due process and violate constitutional rights guaranteed to targeted attorneys). Likewise, judges are often examined for bias, animus, or the appearance of impropriety. ‘The court must review the challenge to a judge, and determine whether these issues exist, or if instead there is a “lack of prejudice” which warrants denying a motion to disqualify a judge. Carr-Bricken v. First Interstate Bank, 105 Nev. 570, 574 (Nev. 1989). By analogy, Bar Counsel should be disqualified due to issues of prejudice which undermine a fair and impartial disciplinary proceeding, Disqualification is also warranted where there is a pecuniary interest, or a “disqualifying bias.” Where such disqualifying interests exist, they can deprive an individual brought before the State Bar disciplinary proceeding of federal due process rights “to a fair and impartial tribunal.” Natchez v. State, 102 Nev. 247, 252-53 (Nev. 1986), citing Burleigh v. State Bar of Nevada, 98 Nev. 140,643 P.2d 1201 (1982); Jn Re Ross,99 Nev. 1,656 P.2d 832 (1983); Gibson v, Berryhill, 411 U.S. 564 (1973). |ON TO DISQUALIFY BAR. PAGE 12 OF 162 Taking all of these legal principles together, Bar Counsel should be disqualified from a disciplinary proceeding if: (1) they have bias, a conflict of interest, or prejudice; (2) bar counsel’s conduct in the case is improperly influenced by a personal interest of bar counsel and/or that bar counsel would violate a Rule of Professional Conduct by prosecuting the disciplinary matter; (3) bar counsel’s prosecution of the matter would create an appearance of bias, partiality, or impropriety; and/or (4) not disqualifying bar counsel would violate the state and federal due process rights of the lawyer. Here, disqualification of Hooge is warranted for several distinct, but related, reasons. First, Hoge acting as bar counsel in this ease would violate Rule of Professional Conduct 1.7. Hooge has ethical obligations, not only to the State Bar, but to the entire public of the State of Nevada as he is essentially a public servant in his present capacity, Pursuant to Rule 1.7(a)(2), a lawyer shall not represent a client where “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Bar counsel thus has ethical obligations to oversee the practice of law in this state with fairness, impartiality, and with a lack of bias. If bar counsel is unable to uphold those qualities in a particular bar matter, the public is put in danger of the State Bar acting out of something other than the public interest. Here, Hooge’s ethical obligations are limited by a “personal interest” of Hooge. That “personal interest” is an ongoing animus and bias against Whipple because Hooge believes that Whipple caused Hooge to lose his re-election as District Attomey. This creates a conflict of interest, and under these circumstances, Bar Counsel cannot separate his personal interests from his obligations to the State Bar, and to the public, and as such he should be disqualified. MOTION TO DISQUALIFY BAR COUNSEL PAGE 13 OF 16Second, Whipple has state and federal due process rights, including the right to a fair and impartial disciplinary proceeding, Where a disqualifying interest or bias exist, they can deprive an individual brought before the State Bar disciplinary proceeding of federal due process rights “to a fair and impartial tribunal.” Natchez v, State, 102 Nev. 247, 252-53 (Nev. 1986), citing Burleigh v. State Bar of Nevada, 98 Nev. 140, 643 P.2d 1201 (1982); In Re Ross, 99 Nev. 1, 656 P.2d 832 (1983); Gibson v. Berryhill, 411 U.S. 564 (1973). Whipple cannot receive a fair and impartial disciplinary proceeding if Hooge is bar counsel, because of Hooge’s bias and animus against Whipple, and because of Hooge’s personal interests in the matter. Whipple cannot receive that fair and impartial tribunal where Hooge has, in the past, violated the Rules of Professional Conduct to attack Whipple in the media, Furthermore, upon information and belief, Hooge is likely aware that Whipple was interviewed by the State Bar in a prior matter investigated by the bar, where Judge Lanny Waite filed a bar complaint against Hooge. Whipple must have access to a bar counsel who will fairly evaluate the evidence, fairly come to the table for any plea negotiations, and fairly present and evaluate the evidence in the case, Here, Hooge cannot be fair and impartial. If Hooge is not disqualified, Whipple will have no access to a “fair and impartial tribunal” in this disciplinary matter. Lastly, even if Hooge were to deny having actual bias or partiality against Whipple, his prosecution of this matter would create an “appearance of impropriety.” Where Hooge has publically criticized Whipple in the past (in violation of NRPC 3.6), and has himself tied that criticism to an election which Hooge subsequently lost, the public cannot be confident that Hooge’s conduct in this case is not influenced or controlled by a desire to harm Whipple, rather than based on the actual evidence or facts in this case. Under this circumstance, allowing MOTION TO DISQUALIFY BAR COUNS 14 OF 16Hooge to act as bar counsel would undermine public faith in the institution of the State Bar. He should be disqualified. Although Hooge must be disqualified, this (alone) would not be enough to protect Whipple’s rights. Hooge’s disqualification must extend to any counsel working on behalf of the State Bar of Nevada. Pursuant to SCR 120, another (outside) attorney must be appointed as Bar Counsel. Iv. INCLUSIO’ For these reasons, Whipple asks that Hooge be disqualified from acting as bar counsel in the present matter, and that all counsel employed by the State Bar of Nevada likewise be disqualified, and outside counsel appointed. DATED this 6" day of October, 2020. FI - ‘BRET O. WHIPPLE, ESQ. Nevada Bar No. 6168 JUSTICE LAW CENTER: Fax: 702-974-4008 admin@justice-law-center.com TO DISQUALIFY BAR COUNSEL PAGE 15 OF 1620 ai 22 23 24 CERTIFICATE OF SERVICE Pursuant to DRP 18((b)(2) and NRCP 5(b), I certify that on the (-?’” day of October, 2020, I served via email the foregoing MOTION TO DISQUALIFY BAR COUNSEL to the following: Daniel T. Young, Esq. Assistant Bar Counsel 3100 W. Charleston Blvd., Suite #100 Las Vegas, Nevada 89102 (702) 382 ~ 2200 Phone Email: dyoung@nvbar.org 4s/Bret O. Whipple, Esa. BRET O. WHIPPLE, ESQ. MOTION TO DISQUALIFY BAR COUNSEL PAGE 16 OF 16EXHIBIT 1 EXHIBIT 1g E B 8 53 en i ab 25 BE af : Near on + S © @ Case No. CV-0932018 Dept. No. 1 INTHE SEVENTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF LINCOLN KENNETH VAUGHN HIGBEE, Petitioner, ORDER GRANTING PETITIONER'S ws PRETRIAL PETITION FOR WRIT OF HABEAS CORPUS KERRY D. LEE, Lincoln County Sheriff, Respondent. | Oe On April 10, 2017, a Criminal Complaint was filed in the Meadow Valley Justice Court charging Petitioner “Higbee” with various: Felonies and gross misdemeanors (225 counts), The Complaint was supported by the 133 page affidavit of Officer Jeffrey Jourdan, On April 41, 2017, the Justice Law Center entered a notice of appearance end waiver of arraignment on behalf of Petitioner. A summons was issued for Petitioner to appear on April 26, 2017. On April 24, 2017, an order was entered setting a preliminary hearing for Tuesday, May 30, 2017, on Thursday, May 25, 2017, Petiioner’s counsel filed an “Emergency Motion to Continue Preliminary Hearing.” An opposition was filed on May 26, 2017 and the justice ug g 3 5 2 a 3 g 3 2 el court entertained oral argument by telephone. The court denied the motion by written order on May 26, 2017. The preliminary hearing commenced on Tuesday, May 30, 2017 and concluded on Friday, June 3, 2017. The matter was submitted and on June 27, 2017, the court entered an order binding Higbee over to stand trial in District Court on all counts. On August 11, 2017, Higbee plead not guilty and a five week trial was set for July 20, 2018. ‘On September 1, 2017, Petitioner filed a Pre-Trial Petition for Writ of Habeas Corpus. The State filed a Return and Answer on October 24, 2017. The court has reviewed the file and finds that additional briefing or argument is not necessery. ‘THE INSTANT PETITION Higbee challenges the justice court's failure to grant him a continuance, and claims the court erroneously allowed certain exhibits to be admitted at the preliminary hearing, without which, insufficient evidence was presented to bind over. NRS 34,500(7) provides for the discharge of a person accused of a crime without reasonable or probable cause. NRS 171.206 requires a magistrate to bind a defendant ‘over when it appears to the magistrate that there is probable cause to believe a public offense has been committed and that the defendant has committed it. MOTION TO CONTINUE PRELIMINARY HEARING Petitioner first argues that the failure to grant his emergency motion for a continuance was error. The basis for the motion was that Petitioner's counsel received cover 1000 pages of discovery just a couple days prior to the prelim, The State argued in opposition that Petitioner did not show good cause or prejudice. In its response to the 2‘STEVE L. DOBRESCU 3 g § G ) 5 8 E 5 Soarm7aron 8 instant petition, the State argues that a habeas proceeding is not the proper vehicle to review the justice court denial of a motion to continue. NRS 171.1965(1)(c) requites the State to produce “not less than 5 judicial days before a preliminary examination” copies of any “papers, documents or tangible objects that the prosecuting attomey intends to introduce in evidence.” In footnote 65 of the State's Return and Answer, the State claims it had already produced all mandatory documents required by NRS 171.1966 in early May and the discovery provided on May 23, 2017 was not even required by the statute.’ This assertion is contradicted by the statements made in the State's opposition. On page 3, lines 48-21 of the opposition itis stated that on May 9, 2017, the entire case fle was sent to Defendant and on May 23, 2017 the State sent ‘newly received documents.” However, the Certificate of Custodian of Records (Exhibit 6b) was. not signed and notarized until May 19, 2017. This document was clearly part of the mandatory discovery, and it was nat produced in early May. NRS 171.1965(4) provides that “4, The magistrate shall not postpone a preliminary examination at the request of a party based solely on the failure of the prosecuting attorney to permit the. defendant to inspect, copy or photograph material as required by it in this section, unless the court finds that the defendant has been prejudiced by such failure.” Clearly the justice court did not find that Petitioner would suffer prejudice if the | Tho Slate makes numerous references tothe fact that Petitoners counsel did not submit payment for the ciscoveny, and ultimately the State produced the documents atts own expense, The Mate should the clacovery arse more careful: the obigaion to produce discovery ison the State, No salute requires a defendant to pay for copies. 3‘SEVENTH JUDICIAL DISTRICT COURT STEVE L. posrescu Se memVNoanewp 12 13 14 15 16 20 at 23 24 25 26 continuance was not granted. The petition in this case was filed 3 months after the Preliminary hearing. During that time frame Petitioner surely has had ample time to review the discovery provided on May 23, 2017. Petitioner has not shown how the last minute production of discovery caused any prejudice, and therefore this claim, standing alone, does not entitle Petitioner to the relief requested? LACK OF FOUNDATION / AUTHENTICATION Petitioner next argues that Exhibits 1-5 "the binders" were improperly admitted into evidence. Specifically, it is argued that the documents within the binders (estimated to be in excess of 2000 pages) were admitted without proper authentication or foundation The court agrees. Testimony at the preliminary hearing shows that the binders included documents received by mail, collected personally by different law enforcement officers and obtained by search warrant. Virtually “everything” went into the binders. The contents of the binders were separated into 225 tabs, each containing an average of 10 unmarked pages of various documents. Many witnesses were shown random documents contained within tabs, however, the extent of the testimony was generally only whether the document contained the witnesses signature and whether or not the goods referred to (Le, footballs, helmets, bats, etc.) had been received or seen by the witness. No testimony was provided as to the source of any particular document, When the admission of the binders was objected to at the prelim, the State first 2 Because ofthis finding the court need not consider the State's argument that a habeas proceeding is Rot the appropriate vehicle to review the justice court denial of the motion, 4STEVE L DOBRESCU g 8 5 z a 3 3 A argued that the binders were a “sunmary" and therefore admissible under NRS 52.275. ‘Subsection (1) of that statue provides as follows: "4. The contents of voluminous writings, recordings or photographs which cannot conveniently be examined in Court may be presented in the form of a chart, summary or calculation.” The State's argument that the contents of the binders Is a summary 'S wholly without merit, As noted above, the binders are in fact the entire law enforcement file. To be clear, just because the binders are “voluminous’ does not make the binders a summary. ‘The State's attempt to authenticate the binders by having Sgt. Jourdan “tip through’ @ few pages and then testify that these are the binders he compiled, is even farther off the mark. Simply put, the fact that Sgt. Jourdan ultimately placed the various documents into the binders is not sufficient authentication as to what the documents purport to be. “The inquiry as to authentication however, does not end there. The issue becomes Whether or not any individual documents are authenticated sufficiently to be considered competent, admissible evidence. This analysis begins with @ review of the various certificates of custodian of records admitted as Exhibits 62-6h. NS 52.260 governs the use of such certficates or affidavits, Subsection 3 of the statute provides that the affidavit "must be substantially in the following form:" Subsection 4 of the statutory form provides as follows: “4, That the deponent has examined the original of those records and has made or caused to be made a true and ‘exact copy of them and that the reproduction of them Sttached hereto is true and complete.” (Emphasis added.) 5& 5 3 8 5 2 g a z g 8 a STEVE L Doprescu EXHIBIT 6a Exhibit 6a is a certificate from American Stitch, executed on May 9, 2017. The certificate omits the “attached hereto” language in 4, but refers specifically o a particular | document (Invoice #7013 dated 6/6/14), which was produced on September 13, 2016. A copy of the American Stitch invoice #7013 appears to be found in Binder #3 TAB 128, along with 35 other unnumbered documents. Included in the documents are separate sheets with various headings. These include “Invoice/Receipts Submitted to LCSD by COBHS" "PO Submitted to LCSD by D. Jenkins,” * INVOICE Received by LCSD from Vendor," “Forged Invoice located on K. Higbee COBHS computer,” “Text Message Photo's.” Each of these separator sheets contain hearsay statements and no testimony was offered to explain the separator sheets or identify the documents behind each. Ken Thomock did testify about tab 128 as follows “MR. HOOGE: Okay. Allright. We'll ‘skip through then. Let's go to 128. THE WITNESS: 128? MR. HOOGE: Yeah. BY MR. HOOGE: Do you recognize your signature on that one? Yes, ‘And do you remember requesting in July of 2014 P.E. sweats.” P.E. sweats? PF DP Pr CO Yes,1 A No. Q. Okay. Definitely not any P.E. sweats that said PAHRANAGAT VALLEY HIGH SCHOOL with a panther logo? AS Now The State's failure to have the documents numbered, and to have the witness refer to a numbered exhibit renders this testimony virtually worthless. Thus, even if the American Stitch Invoice #7013 is properly authenticated, the remainder of the documents in TAB 128 are not. EX 6b This exhibit is a certificate from Badger Screen Printing, and was signed on May 19, 2017. The certificate refers to documents produced on June 30, 2016 and January = 20, 2017, but again the “attached hereto” language Is omitted. Several documents 45 ||. referring to Badger Screen Printing can be found in different tabs (16, 42, 70 and 160) 3 3 5 @ ; 3 g a 16 || however, no testimony was presented to link the certificate to those documents. EXHIBIT 6c This exhibit is a certificate from Costco, and it refers specifically to certain “attached records/documents." There are no documents or records attached to Exhibit 20 6c. at 22 EXHIBIT 6d 23 This exhibit is a certificate from the Lincoln County School District, and follows 24|| the statutory form, however no documents are “attached hereto.” eo EXHIBIT 6e 26 :& g 8 § a 3 fs STEVE L DOsRESCU aon ODN Soanrno This exhibit is a certificate from the IT director of Lincoln County School District This certificate omits the “attached hereto" language. The exhibit was signed on May 3, 2017 and refers to a records request made on October 20, 2016. EXHIBIT 6f “This exhibitis a certificate for “AC Corp.” The court did not find any documents admitted referring to AC Corp. EXHIBIT 6 ‘This exhibit is a certificate for Sportco Sporting Goods, Inc., signed May 9, 2017 ‘The exhibit refers to a request for documents made on March 24, 2016, however the “attached hereto” language is omitted. EXHIBIT 6h This exhibit is a Business Records Declaration from Yahoo! The exhibit refers to an “attached” disk. No disk is attached to the Declaration. OTHER CERTIFICATES Various other vendors are mentioned in the Binders, such as Smiths, Walmart and Dick's Sporting Goods. No custodian certificates from these vendors are included in the record. ‘The impact of the omissions of the “attached hereto” language from the statutory form cannot be understated. At best, the certificates merely establish that “whatever" documents the custodian produced are authentic. Since the documents were not “attached! as required by the statute, nor was there any testimony that any particular document was received by a certain vendor, there is nothing in the record to connect a 8SEVENTH JUDICIAL DISTRICT COURT STEVE L DOBRESCU particular document to a particular source. THE PURPLE BOX ‘Testimony was presented that pursuant to a search warrant, a purple box of documents was recovered from the Lincoln County School District, and some of the documents were placed into binders. No testimony was presented as to which documents came from the purple box. The mere fact that a document was seized from the school district does not authenticate the document. “The court has read the entire transcript from the preliminary hearing and reviewed each exhibit, (Including every page of each TAB in the binders) and finds that Exhibits 1-5 were not properly authenticated, nor was sufficient foundation laid for the admission of the binders into evidence? CORRELATION TO TABS TO COUNTS Petitioner next argues that the TABS in the Binders did not correlate 0 the individual counts in the complaint. Petitioner is correct. This mismatch between the The court finds itself compelled to comment onthe tone ofthe State's argument in its ANSE and aotumn. "Throughout the State's response are numerous comments or suggestions that somehow Fettners habeze challange is somehow wrongful or nat appropriate under the fa Fer example on p. Petter eee ale wntes:“Petiioners claims are ealf-sering, technical atacks dpeing ih ony. Fanos documments fe years to cover up his theft and now he has the audacity to cai het the He foroetts are not authentic” That type of argument has no place in this proceeding. Peiitioner’s guilt document art of ths proceeding, noris it even par ofthe preliminary hearing, As he State ono he oly esue atthe prelim is whether the State has shown through compete’ evcence tse" Ins cause to believe Peitoner did commit a crime. The cues of evidence ee fort simple sr mements that must be met in order to admit documents. Here, the State chose not take the time are voerly mark Wdentfy and authenticate ts dacuments. Petitoner has propery cated Ree iota: The tue ony is that by fling to property present its case, the Sate has wasted ‘an enormous amount of judicial resources. 95 g 8 83 EH Z3 a as Bi 225 TABS and the 225 counts in the complaint, coupled with the fact that not a single document in the binders was individually marked, would effectively negate defense counsel's abllity to even follow along with the proceeding. The record reveals that on Friday, May 26, 2017, the State filed an amended complaint, which re-organized and re- numbered the counts to correlate to the TABS, Petitioner was not arraigned on the amended complaint or advised that an amended complaint had been filed. See PHT, p. 9-11. It further appears from the record that Petitioner's counsel was unaware of the amended complaint. As the parties argued about the “correlation” issue at the preliminary hearing, neither side mentioned the amended complaint. Even in the petition where counsel raises this issue, the State does not mention the amended complaint, but argues that the TABS “correspond perfectly with the complaint.” Answer, p. 16, Fn 7. Based on the foregoing and review of the entire record, the court finds that the Petition for Writ of Habeas Corpus should be granted for the following separate reasons: 4. Exhibits 1-5 "the binders” were not properly authenticated, and contained many separator sheets upon which hearsay and legal conclusions were typed. 2. An amended complaint was filed one judicial day prior to the preliminary hearing, and Petitioner was not advised of the amended complaint or the charges therein as required by NRS 171.186. Good cause appearing, 10zg 8 8 5 2 & a 5 2 i 8 IT IS HEREBY ORDERED that Petitioner's Pretrial Petition for Writ of Habeas Corpus is GRANTED. ¢ DATED this day of April, 2018. DISTRICT COURT JUDGE 44 The granting of a pre-trial writ of habeas corpus does not preclude the State from pursuing this case against Petitioner. See State v. 6™ Judicial District Court, 114 Nev. 739, 964 P.2d 48 (1998); NRS 34,590. In the event the State pursues these charges or some combination of charges against Petitioner, the State should consider properly numbering or bate-stamping its individual exhibits. The failure to number and identify individual exhibits made review of this petition extremely time consuming and difficult. For example, the DVD's containing unmarked photos were of very limited value because the court could not determine from the transcript which particular photo the witnesses were describing. The inabilty to determine what document or photo a witness is describing is akin to having no record to review. NRS 34.480 requires showing of legal cause to hold a defendant, and if no reoard of the preliminary hearing is produced, a writ must be granted. See Scott v, State, 81 Nev. 380, 404 P.3d 3 (1965), aEXHIBIT 2 EXHIBIT 2To the State Bar of the State of Nevada May 6, 2018 Contact Information: D, Lanny Waite Esq. PO Box 192— Logandale, Nev 89021 ‘waitelaw(@mvds).com (702) 497-6600 Attorney Contact Information: Daniel Hogge Esq. Lincoln County District Attomey 181 N. Main St. PO Box 60 — Pioche, Nev. 89043 (775) 962-8073 Icda@\cambonet.com ‘Complaint In April 2017, Mr, Hogge filed a formal 225 count Criminal Complaint against Dr. Ken Highee, an a ae etrator withthe Lincoln County School District, officially tiled - State of Nevada v. Kenneth Higbee, The complaint alleges, among other things, theft, forgery, and various obscure provisions of te vtae erinal code, all related to Dr. Highee's activities as the Principal of CO Bastian High School Tn shor, iis a “paper” case. From the outset, it has been evident Mr, Hogge has little, or no experience inthis type of complex case. A Preliminary Hearing was held in late May 2017, over the objection of Dr. Higbee's defense counsel, Bret Whipple Esq. Thousands of pages of evidence and discovery Were first provided tothe defense 2 weeks before the Prelim. Thousands more were produced a few days Hts the Hearing, (See Tudge Dobrescu’s - Order Granting Petitioner's Pretrial Petition For Wit Of Habeas Corpus attached hereto.) During the 3+ day Prelim, (which if done properly would have taken ‘weeks), Mr, Hogge made massive erors in the authentication and submission of thousands of pages of Supposed “evidence”. When the non-atiomey Justice of the Peace admitted these documents; Ot the Objection of defense counsel, the Defense rested without calling any witnesses or presenting any fovidence, recognizing the egregious procedural and constitutional errors made. ‘ATL.225 counts were bound over tothe 7* judicial District Court. Judge Fairman was assigned to the fase, andthe Defense, then joined by D. Lanny Waite as co-counsel, requested the recusal of Judge Falran, because he had previously represented Dr. Higbee in a divorce proceecting, This redvest Was ranted, and Judge Dobrescu was assigned tothe case. On Sept 1, 2017 the Defense fled a Wot of aarp Corpus challenging the lower court proceeding. In early November 2017, Mr. Hogge fled his response, On April 19, 2018, Judge Dobrescu, after almost 7 months of painstaking review, ruled for Dr Higbee on all 225 counts, and dismissed the charges w/o prejudice, with mamerous rebukes of the District Attorney, Shortly thereafter, after discussing this matter with the attomey for one of the alleged “etims”, [attempted to call Mt; Hogge to discuss his intentions moving, forward with the case. He told his secretary “to take a message”, After several more days, without hearing from Mr. Hoge, {sent him an email, sequesting a meeting with him, myself, and Ana Alexander Esq. the attomey for the Lincoln County School District. I received no response. ( Mr. Hogge may say he was too busy torespond because he was in atrial, but he found time to rerum calls to others about this case during this time period, and certainly had enough time to compose and send a letter to the Lincoln County Newspaper) On May 4%, the attached “Letter to the Eeitor”, authored by Mr. Hogge was printed in the only county wide newspaper circulated in Lincoln Gounty. (It should be noted, the entire population of Lincoln County, where the potential trial jury poo! is locate, is approximately 8,000. It should also be noted Mr, Hogge is currently running for re-election as the Lincoln County DA.) While defense attomey Bret Whipple has made appropriate public statements, quoted previously by a reporter for the newspaper, I have made no public statements of any type. {believe this outrageous, and in my 35 years of legal practice, unprecedented outburst by Mr. Hogge, disseminated to the entire populace of Lincoln County, must be brought to the attention of the State Bar. Obviously, this letter, and Mr. Hogge's conduct throughout this case, ‘will be the subject of ramnerous Tegal motions if he chooses to re-ile the case against Dr. Highee. However, regardless of his fature decisions in this case, his conduct manifests the following: 1.) Mr. Hogge has a personal animus towards Dr Highee that far transcends the bounds of the normal dative of the prosecution to “See that justice is served” and his actions thereby diminish the confidence of the public in his ability to fairly prosecute cases. His feelings as expressed, and his actions, erode the public trust in the profession as @ whole. 2, He has publicly criticized, and clearly attempted to improperly influence the District Court Judge ‘who will ultimately be presiding over this case, if he chooses to re-file. 23) He has made public statements disseminated tothe entire county populace designed ta poison the potential jury pool and to“... heighten public condemnation of the accused...” NRPC (3.8). 44) He has attempted to, use this case, to the detriment of the accused, o cury sympathy for himeel! to coer his incompetence and improper conduct, and to gain a political advantage over his opponent in the upcoming election, Mr, Hogges conduct clearly violates numerous provisions of The Nevada Rules of Professional Conduct which cannot be ignoted. To do it to the detriment of any accused, let alone one ‘who has an Ciblemished criminal record, who has been a pillar of the community, a nationally recognized coach, a} beloved teacher and administrator, all for his personal ambition, o to satisfy his personal animus, is unconscionable and should not be tolerated.EXHIBIT 3 EXHIBIT 3By Justin Emerson Las Vegas Review-Journal f wv Don't miss the big stories. Like us on Facebook. Like 275! Pahranagat Valley football coach Ken Higbee is facing dozens of forgery and misconduct charges after authorities accused him of stealing about $122,000 from the Lincoln County School District, the Las Vegas Review- Journal learned Tuesday. Under Higbee, the Panthers set a national eight-man record with 104 straight victories and won eight consecutive state championships before falling in the Class 1A state title game to Spring Mountain in November.Higbee was charged April 10 with a 225-count criminal complaint that includes one count of theft, according to records from Meadow Valley Justice Court in Pioche. “at the end of the day, he never put a dollar in his pocket,” said Higbee’s attorney, Bret Whipple. “They’re really making a mountain out of a molehill here. It’s truly outrageous.” Higbee was charged with 76 felony counts and 149 gross misdemeanor counts. Higbee also is the principal at C.0. Bastian High School in Caliente. According to the criminal complaint, Higbee was entrusted with a debit card, credit card and checkbook to spend for the benefit of students at C.0. Bastian but instead used them to deprive the students of funds. The crimes charged in the complaint occurred between January 2012 and December 2015. Sgt. Jeffrey Jourdan of the Nevada Department of Public Safety prepared a lengthy affidavit in support of the complaint. “The embezzled funds were used to purchase a variety of items, including but not limited to sports equipment, sporting goods items, sports clothing, sports shoes, tools, welding supplies, household items, electronics, and various other items,” according to the affidavit, which alleges some of the items were for Higbee’s personal use. The affidavit also alleges that some of the items “were purchased for and located at the Pahranagat Valley High School.” Many of the items could not be located. “He should probably not have transferred some of the equipment from one school to the other, but he never put a dime in his pocket,” Whipple said. “Everything that he did was not for him personally, but for the community.”No warrant has been issued for Higbee’s arrest. Whipple said a preliminary hearing will be held but not “Tight away.” Pahranagat Valley principal Mike Strong said Higbee is still the football coach, though he is on administrative leave, as he has been since before last season. Strong said the school is not expected to take any immediate action against Higbee, who is still receiving a salary. Pahranagat Valley athletic director Brad Loveday said in January he was expecting a letter of resignation from Higbee, calling it “a pretty sure thing” that it would happen. Strong said Tuesday he does not anticipate that letter and that the Lincoln County School District will make the next determination. Contact Justin Emerson at jemerson@reviewjournal.com or (702) 387- 2.944. Follow @J15Emerson on Twitter, Criminal complaint against Ken Higbeeby Las Vegas Review-Journalon ScribdEXHIBIT 4 EXHIBIT 4reno gazette journal CRIME Rural Nevada coach accused of stealing Associated Press Published 2:48 pum. PT Apr. 19, 2017 LAS VEGAS —The coach of a rural Nevada high school eight-man football team that won & record 104 straight games and eight consecutive state championships is accused of stealing and misappropriating $122,000 in public funds. Ken Higbee's defense attorney, Bret Whipple, said Wednesday that no money went into Higbee's pocket, and the charges against him appear to result from his efforts to use all available resources to build a program benefiting children in Alamo, about 150 miles northeast of Las Vegas. Highee faces 225 misdemeanor and felony offenses including theft, forgery, official tnisconduct and misappropriation of funds, according to an April 10 criminal complaint reported by the Las Vegas Review-Journal. Higbee remained free after submitting a written plea of not guilty Higbee is prineipal at a high school run by the state at a youthful offenders facility in Caliente, a town of about 1,000 residents 150 miles northeast of Las Vegas. He coaches at Pahranagat Valley High School in nearby Alamo, a smaller town in Lincoln County, From 2008 to last November, the Pahranagat Valley Panthers went undefeated, compiling what officials called the longest winning streak in eight-man football history. to personalize content and ads, provide social Do Not Sell My Pata featur inforrnation about your U social and analyti you agree to the Privacy Policy. mprove our site and @ 7 { Accept Cook LLINCOLN COUNTY SINCE 1870 XN RECO RD eee ans = ‘evooL BoaRD MEETING Alamo community stands up for Higbee ier ccrsonas Rhy lage op a Lace Fook ies Laas SRT Samm tuwcoun cowry Deputy captain retires from sheriff’s department ‘Ret ogame Fon senvices| Lincoln County RSVP in Hzaznetes danger of losing Programs 3 RSE is aking ou i ‘ean ep oeewee Egor ‘oe ye ‘ie gen at a tod Nr te mays "Sty commis ne Sgn mews Schoo! district opposes Question 2| Page 2 sports Pahranagat Valley downs Thacher for 98th straight | Page 5By Justin Emerson Las Vegas Review-Journal £ Don't miss the big stories. Like us on Facebook. Lite All charges against ex-Pahranagat Valley football coach Ken Higbee have been dropped. Higbee, charged last April with a 225-count criminal complaint that includes forgery, misconduct and theft, had his case thrown out of the Seventh Judicial District Court in Lincoln County last Thursday, the Review- Journal learned Monday. “In my opinion there just was no evidence to support the allegations,” Bret Whipple, Higbee’s attorney, said.According to the complaint, Higbee, also the principal at C.O. Bastian, was accused of using funds appropriated for that school and funneling it to the athletic programs of Pahranagat Valley High School and Lincoln County High School. The charge included 76 felony counts and 149 gross misdemeanor counts. “They made some allegations, and they were vague, they were general,” Whipple said. “At the end of the day, the preliminary hearing required some showing of probable cause, or some showing of wrongdoing, and they weren’t able to do it (225) times.” The court agreed that the evidence, which included receipts of sports equipment and documents from the schools, “were admitted without proper authentication or foundation.” Ken Higbee timeline April 10, 2017 — 225-count criminal complaint filed in Meadow Valley Justice Court May 30, 2017 — Preliminary hearing held June 27, 2017 — Court enters order binding Higbee over to stand trial Aug. 11, 2017 — Higbee pleads not guilty Oct. 1, 2017 — Higbee fired from Lincoln County School District Thursday, Apr. 19 — Case against Higbee dismissed Ina footnote, the court order read, “The true irony is that by failing to properly present its case, the State has wasted an enormous amount of judicial resources.” Under Higbee, Pahranagat Valley set a national eight-man record with 104 straight wins and won eight consecutive state championships before falling in the Class 1A state title game to Spring Mountain in November 2016. Higbee coached for 22 years and won 11 state championships.Before last football season, new coach Brett Hansen said Higbee retired when his son Christian Higbee graduated, and dismissed the idea that the charges were related. Hansen said that Higbee had been planning to leave after the 2016 season. “Tt probably didn’t end the way they wanted and with that whole deal, but it was his decision to leave with Christian,” Hansen said. On Oct. 1, 2017, Higbee was fired from Lincoln County School District. Pahranagat Valley went 12-0 and won the Class 1A state championship under Hansen in 2017. No warrant was ever issued for Higbee’s arrest. The case was dismissed without prejudice, and the prosecution can choose to refile charges. “He was lambasted, lost his job, lost his home,” Whipple said, adding that Higbee is considering filing for bankruptcy. “He’s had a horrible thing happen to him, and all he was trying to do was help the community.” More preps: Follow all of our Nevada Preps coverage online at nevadapreps.com and @NevadaPreps on Twitter. Contact Justin Emerson at jemerson@reviewjournal.com or (702) 387- 2.944. Follow @J15Emerson on Twitter. Review-Journal staff writer David Ferrara contributed to this story. Related stories: Pahranagat Valley football coach charged with 225 -count criminal complaint Future unclear for Pahranagat Valley football coach after chargesEXHIBIT 5 EXHIBIT 5SUBSCR ADVERTISE CONTACT Search this website ee HOME = NEWS FEATURES = SPORTS_-«—COPINION -—OBITUARIES-——sCCLASSIFIEDS E-EDITION BUSINESS DIRECTORY YOU ARE HERF: HOME / DEPARTMENTS / LETTERS TO THE EDITOR /LETTER TO THE EDITOR Letter to the Editor MAY 14,2018 BY LINCOLN COUNTY CENTRAL Dear Editor, A District Attorney has a unique role in the County because his primary responsibility is to ascertain the truth and seek justice. While defense attorneys vigorously defend their clients whether guilty or not, a District Attorney must prosecute the guilty and protect the innocent. The only obligation | have every day is to do the right thing Asa District attorney I never lose sight of the harsh reality that courtrooms are grim places. Criminal cases involve violence, pain, and sorrow ? both to the victim and to the defendant through sentencing and punishment. | understand that | wield a great power ? the ability to strip an individual of liberty and even of lfe itself. As a result, emotions always tun high. In almost every case, the victim and the victin?s family are mad at me for not doing more and the defendant and the deferens family sweat that am desttying the reputation n= life of an innocent man. For this reason, it is challenging and emotional work. It is extrem: draining. The only satisfaction | get comes from knowing that | did my best to ensure oul Amerencriminal justice system operates effectively and fairly Fairness is the deepest value of our society, Last year | charged Ken Higbee with 225 counts of fraud, theft, forgery, and misuse of public funds. Immediately, | received threats from his friends and family. understand thelr feelings because in my experience the guilty rarely admit their quilt to thelr friends and family, Mr, Higbee, ike rnost defendants in his position, wants to save face. He will spin the story to friends and family until his dying breath. So, | don?t blame his friends and family. They just havent seen the evidence. Normally, | don?t comment on active cases, but with Mr, Higbee?s attorneys Bret Whipple and Lanny Waite spreading misinformation | feel obligated to reply in this case. First, on several occasions Mr. Whipple and Mr. Waite have stated that Mr Higbee merely took money ?for the kids? and all he was trying to do was help the community? insinuating that he was being charged only for redirecting school district money to the BYES football tearn. This is false. The charges allege personal purchases Mr. Higbee made for himself for his wife Becky, and for his children, Additionally, the charges allege thet Mr. Higbee forged signatures and vendor invoices to hide these personal purchases. Second, Mr. Whipple and Mr. Waite have stated, ?there was no evidence to support the allegations.? Again, this is false. In fact, there were thousands of documents entered into evidence in the case. | had these documents organized into binders to make it easiet for Mr. Higbee and his attorneys to follow. Judge Cowley oversaw the preliminary hearing and recognized the evidence as authentic. Mr. Whipple and Mr. Waite filed a motion to disqualify Judge Fairrnan to get Judge Dobrescu, Then they presented Judge Dobrescu with a writ of habeas corpus. This writ of habeas corpus is a chil suit against Sheriff Lee for holding Mr. Higbee in custody without a preliminary hearing. Mr. Higbee was notin the Sheriff?s custody, He never was. He also had a preliminary hearing, | cited several cases that explicitly stated that a civil suit against Sheriff Lee should net be treated like a pretrial appeal or act as. substitute for 2 normal post-trial appeal. Judae Dobrescu granted Mr. Highee?s wrt of habeas corpus anyway. Under NRS 34.480, Judge Dobreseu only has authority to discharge Mr. Higbee from Sheriff Lee?s custody. Again, this Is 2 little counterintuitive because he was never in the Sheriff2s actual custody. Essentially, judge Dobrescu voided Mr. Higbee?s original preliminary hearing because he didn?t like how the binders were organized, marked, and placed into evidence. At this point, | can either appeal judge Dobrescu?s order or simply hold a new preliminary hearing. Although. | feel confident in my chances for success on appeal, it will take too long, So, | will Just hold a new. preliminary hearing. Eventually, | will get a fair trial, One thing that Judge Dobrescu and | agiee on is that the whole process is a colossal waste of everyone?s timeI know that Mr. Higbee and some of his supporters are backing Mr. Frehner in the upcoming election because of this case. Again, | understand their decision. For me it is better to do what is right and lose than to do what is easy and win. Sincerely, Daniel M. Hooge, Lincoln County District Attorney FILED UNDER: LETTERS TO THE EDITOR TAGGED WITH: KEN HIGBEEEXHIBIT 6 EXHIBIT 6sion Feener, Dylan Voge, Danie! M. locum) stmib8 40% Dyan, Peet 000 ncola Yes 0 Grover C. Dils Hospital Distrlet Trustee, Distriet A (Nonpartisan) aw deta on lay Mik Ghcumbent) ros.ase . Ly, Mick Percent 000 Lincoln Vos 0 Grover C. Dits Hospital District Trustee, District B (Nonpartisan) judas ion > be ¥EXHIBIT 7 EXHIBIT 7DECLARATION OF BRET 0. WHIPPLE, ESQ. 1, BRET O, WHIPPLE, ESQ., (“Declarant”) being first duly sworn according to law, declare and state as follows: 1 6. That I am the Respondent before the State Bar in cases OBC19-0665, OBC19-0969, OBC19-1163, and OBC20-0352. ‘That Declarant has been an attorney, with a great deal of practice focused on criminal defense, for 24 years, ‘That during some of that time, Daniel Hooge was the elected and acting District Attomey for Lincoln County, Nevada. That Hooge and Declarant routinely came into adversarial legal conflict in criminal cases in Lincoln County during that time period. ‘That Declarant and Hooge came into adversarial legal conflict in the highly public prosecution of local football coach and administrator, Dr. Kenneth Higbee, by Hooge. ‘That Declarant (and Judge Lanny Waite) defended Dr. Higbee in that matter before the Meadow Valley Justice Court and before the Seventh Judicial District Court, both in Lincoln County, Nevada, That Declarant is aware of the fact that this was a newsworthy case in Lincoln County (even reaching the Las Vegas media), in which one of the most famous residents of that area (who had been featured in national media previously for the “then” current longest high school football winning streak) was suddenly changed by Hooge with a 225-count felony indictment, That Declarant is aware that, not only was this ease significant for its note in thecommunity for its allegations against a well-known figure, and the number of counts and allegations, it all occurred while Hooge was seeking reelection to the publie office as the District Attorney for Lincoln County. 9. That, based upon Declarant’s work in defense of Higbee, and based upon errors by of the Peace, the District Court dismissed all 225-counts, and Hooge and the Justi while doing so, condemned many of Hooge’s arguments and tactics, 10. That Whipple never filed any motion to recuse Judge Fairman, and that Judge Fairman recused (upon my belief) because he previously represented Kenneth Higbee and thus could not provide over a criminal case against his former private practice client, 11, That, upon information and belief, as a probable consequence of the Higbee case and the fact that the case was dismissed and reported upon in the news, Hooge lost his election, 12, That Hooge soon thereafter became Bar Counsel, the position he now holds in respect fo the prosecution of Declarant in the above disciplinary matter. 13. That Judge Lanny Waite, who was Higbee’s co-counsel, filed a bar complaint against Mr. Hooge for Hooge’s conduct in the Higbee case, 14. That as part of the State Bar investigation into that complaint, Declarant was interviewed by the investigator. DATED this b day of October, 2020,