Magistrate advises striking Nevada citizen-complaint rules

By The Associated Press

08.13.01

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Editor's note: Activist Sam Dehne no longer faces a $5,000 fine from the Ethics Commission. The commission voted Oct. 11 not to appeal U.S. District Judge David Hagen's ruling that nullified a state law aimed at stopping false complaints. Dehne had been accused of filing a false complaint with the panel.

CARSON CITY, Nev. — A federal magistrate says the state Ethics Commission has relied on two unconstitutional sections of Nevada law to punish citizens who complain about public officials.

Magistrate Valerie Cooke recommended that U.S. District Judge Dave Hagen rule in favor of self-proclaimed government watchdog Sam Dehne of Reno and find that the laws violate constitutional free-speech and due-process guarantees.

Cooke's 14-page report was hailed Aug. 10 by American Civil Liberties Union attorneys who challenged an Ethics Commission decision to fine Dehne $5,000 after he filed numerous complaints against Reno Mayor Jeff Griffin.

The ACLU went to court on Dehne's behalf in 1999. Dehne has refused to pay the fine, saying it was illegal.

"This is a significant, major report," said ACLU lawyer Allen Lichtenstein. "It basically states that, regardless of what public officials want to think, the Constitution and First Amendment apply here too."

ACLU lawyer Gary Peck added, "The handwriting is on the wall. We hope the Ethics Commission will take the report seriously and refrain from hauling anyone else like Sam before it."

The commission had warned Dehne that his complaints were frivolous and told him not to file anymore. It found a subsequent Dehne complaint was "malicious, vexatious and without merit."

Dehne had complained that Griffin had violated a prior ethics ruling when he traveled to Dallas with Reno-Tahoe International Airport officials. Griffin owns a transport company and has a contract with the airport to operate the only foreign trade zone at the airport.

The commission, according to the ACLU, also ejected Dehne from a hearing on the case and then allowed Griffin to testify — and suggest the panel deter Dehne from making similar complaints in the future.

Cooke cited the U.S. Supreme Court's 1964 ruling in New York Times v. Sullivan that held even false statements about public officials are protected unless the statements were made with "actual malice." "If the Legislature wishes to regulate speech critical of public officials, such statutes must incorporate the 'actual malice' standard," Cooke wrote.

"If the Legislature wishes to trod on First Amendment ground and regulate such speech, it must do so with the utmost specificity and clarity," Cooke added.

Under the two state law provisions, even allegations about a public official that turn out to be true could lead to fines up to $5,000 if the person who filed a complaint did so in bad faith "or for a vexatious purpose," the magistrate said.

"There lies in the plain meaning of these (Nevada) statutes the potential to punish protected expression about the conduct of public officials, along with the equally troubling prospect of subjective or discriminatory enforcement."

"This court finds these statutes overbroad because they proscribe more speech than is necessary and there is a realistic potential that they will discourage protected speech."

Previous

ACLU challenges commission's authority to fine government critics
Citizens have a First Amendment right to speak out on matters of public concern, says group.  12.02.99

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