BOG Letter

State Bar of Nevada LGBT Law Section

c/o STATE BAR OF NEVADA

600 E. Charleston Avenue

Las Vegas, Nevada 89104

May 19, 2014

Via E-mail, [email protected]

Board of Governors

STATE BAR OF NEVADA

c/o Kimberly Farmer

600 E. Charleston Avenue

Las Vegas, Nevada 89104

To the Board of Governors State Bar of Nevada:

As a Section, we are outraged by the recent “Message from the President” authored by Alan J.

Lefebvre, Esq., President of the Nevada State Bar, entitled “DERELICTION OF DUTY …OR

IS IT RULE BY THE GUARDIANS?” published in the May 2014 edition of Nevada Lawyer.

The column harshly condemns the Attorney General, Catherine Cortez Masto, for the State’s

decision to withdraw its defense to Nevada’s ban on same-sex marriage before the Ninth Circuit

Court of Appeals. In so doing, President Lefebvre’s opinions heavily rest on religious and

conservative ideological grounds, a direct violation of the State Bar of Nevada by-laws and an

abuse of the office of Bar President. Accordingly, and for the reasons set forth below, we hereby

request that the Board of Governors place this matter on its agenda for discussion at its May 22,

2014, meeting.

As you are aware, the President is the State Bar’s official spokesperson. As such, President

Lefebvre’s column – authored “by Alan J. Lefebvre, Esq., President, State Bar of Nevada” – and

its appearance in Nevada Lawyer provide President Lefebvre’s opinion with the tacit approval of

the Nevada State Bar. Indeed, many media outlets and members of the public construed

President Lefebvre’s opinions as the State Bar’s official position on marriage equality in Nevada.

The ideas espoused by President Lefebvre, however, are neither shared by the members of this

Section nor fair-minded members of the Bar. Therefore, the Section requests that the Board issue

an immediate press release clarifying that President Lefebvre’s column in no way expresses the

opinion of the Board or the members of the State Bar of Nevada.

Additionally, the column expressly violates the State Bar’s by-laws addressing media relations.

Specifically, it violates Section 3.1 which prohibits Bar representatives from making statements

concerning their personal opinions and limits any statements to the media to being informational

in nature. Upon violation of such edict, Policy 8.4 provides that Bar members may formally

object to such statements and requires the Board of Governors to address such objection at the

next board meeting and respond to the same in writing. As such, the members of the LGBT Bar

Section hereby request that the Board of Governors address the concerns expressed in this

correspondence, and provide a written response after the next Board of Governors Meeting.


May 19, 2014

Among other things, column does not represent a legally balanced (or, for that matter, accurate)

position on the issue of marriage equality in Nevada. Rather than being informational, President

Lefebvre’s position – made under the guise as State Bar President – consists wholly of

ideological statements regarding the Attorney General’s official duties. President Lefebvre omits

the fact that Governor Sandoval, a Republican, agreed with the Democratic Attorney General’s

decision to withdraw the State’s defense to Nevada’s ban on same-sex marriage. President

Lefebvre also omits that an Attorney General has a higher duty to see that justice is done,

especially, where, as here, new legal precedent rendered the State’s position untenable in the

Ninth Circuit after the filing of the State’s brief.

Further, the LGBT Section would like to point out the fallacy and legal inaccuracies contained in

the column. In so doing, the Section does not wish to persuade the Board of Governors regarding

the issue at hand, but to further illustrate that the column was and could not be construed as

“informative” as it omitted easily ascertainable facts and information that would have tempered

the message and presented a balanced legal analysis.

The Nevada Constitution provides a specific oath of office that the Attorney General takes:

Article 15 Section 2. Oath of office. Members of the

legislature, and all officers, executive, judicial and ministerial,

shall, before they enter upon the duties of their respective offices,

take and subscribe to the following oath:

I, ................, do solemly [solemnly] swear (or affirm) that I will

support, protect and defend the constitution and government of the

United States, and the constitution and government of the State of

Nevada, against all enemies, whether domestic or foreign, and that

I will bear true faith, allegiance and loyalty to the same, any

ordinance, resolution or law of any state notwithstanding, and that

I will well and faithfully perform all the duties of the office of

................, on which I am about to enter; (if an oath) so help me

God; (if an affirmation) under the pains and penalties of perjury.

President Lefebvre only emphasizes the duty to uphold the Nevada Constitution in his column

and insinuates that the Attorney General’s duty to uphold Nevada’s Constitution and the majority

voters in this State, outweighs the United States Constitution or Equal Protection Clause. In all

actuality, given the placement in the Nevada oath, the Attorney General’s first duty of loyalty is

to the United States government and the United States Constitution. This necessarily includes

providing “equal justice under law,” a phrase inspired by the federal equal protection clause and

used to protect historically discriminated groups from discrimination, including dismantling

racial desegregation in our country.


May 19, 2014

In June, 2013, the United States Supreme Court ruled that the Defense of Marriage Act Section

3, violated the United States Constitution by depriving them of the equal liberty of persons.

United States v. Windsor, 570 U.S. 12 (2013) Since then, every decision issued by the federal

courts have struck down anti-same sex marriage amendments to state constitutions as also being

violative of either the state’s constitution or the federal constitution or both. In many instances,

attorneys general in sister states decided that they could no longer support or defend their state’s

defense of marriage act and/or marriage ban via constitutional amendments based on the holding

of the Supreme Court in Windsor.

With regards to his recent decision to discontinue defending Kentucky’s ban on same-sex

marriage, the Kentucky Attorney General stated: “Where we are as a country now, this really

seems to be the only minority group that a significant portion of our society thinks it’s still okay

to discriminate against.” President Lefebvre’s column fails to address the evolution of legal

treatment of LGBT persons or actions by attorneys general in other states to discontinue

defending similar bans on such bases, including Kentucky, Oregon, Pennsylvania and Virginia.

Had the column presented a spectrum of positions on the issues, or a historical account of the

cases and arguments on both sides, the LGBT Section could believe that the purpose of the

column was to illuminate the topic; however, nothing could be further from the truth.

President Lefebvre’s column clearly violates State Bar policy by promoting partisan or political

causes. As a result, any Bar member who makes a written objection to the State Bar concerning

President Lefebvre’s actions should receive a refund of dues that were used to promote President

Lefebvre’s ideological views. Moreover, President Lefebvre’s actions entirely contravene the

expectation that the leader of the State Bar be even-handed, non-partisan and unbiased. He also

failed to lead by example through his blatant violation of the State Bar’s by-laws. This Section,

therefore, demands prompt and deliberate action to remedy President Lefebvre’s violations of the

State by-Laws and derogation of the position of State Bar President.

Sincerely,

THE LGBT SECTION AND THE SECTION BOARD

/s/ Tara D. Newberry

Tara D. Newberry- Chair

/s/ Jim Davis

Jim M. Davis- Vice Chair

/s/ Brian P. Eagan

Brian P. Eagan- Secretary

/s/ Peter K. Cleary

Peter K. Cleary- Treasurer

/s/ Marek P. Bute

Marek P. Bute- At-Large

/s/ Steven Amend

Steven Amend- At Large

/s/ Kim Surratt

Kim Surratt - At Large

BOG Letter

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