Questions raised about fed role in Malone flier case

Adrienne Packer

Thursday, April 6, 2000 | 10:44 a.m.

On the face of it, the seemingly amateurish flier mailed to Clark County voters last month looks like a sixth grader's stab at the mud-slinging that so often accompanies dirty politics.

But the anonymous mailer, which lampoons Clark County Commissioner Lance Malone and says he is untrustworthy, has become much more than a political prank.

Malone filed a lawsuit against unidentified parties and the mass-mailing company Passkey Systems last month saying that according to Nevada law the sponsors of the flier must identify themselves.

Malone's attorney, Don Campbell, formally withdrew the complaint Wednesday, two weeks after District Judge James Mahan told attorneys he would determine whether the law is constitutional before ruling on Passkey's right to protect its client's identity.

Mahan seemed slightly miffed that the lawsuit was withdrawn.

"The case is gone as far as I'm concerned," he said. "It's no longer on the docket, it's dismissed, it's gone."

What has made members of the American Civil Liberties Union suspicious is where the case has landed: in the hands of a federal grand jury.

The ACLU recently filed a lawsuit in Federal Court asking for a judgment on the constitutionality of the Nevada statute that prohibits anonymous campaign fliers unless they are sponsored by a private individual.

Gary Peck, executive director of the ACLU of Nevada, said it is ludicrous for a federal grand jury to decide whether Passkey must turn over its client's name when the federal court has yet to rule on the constitutionality of the law.

"The gamesmanship on the part of Commissioner Malone should be obvious to everyone," Peck said. "Malone is manipulating the system in order to avoid having a judge decide the constitutionality of Nevada's law before he can obtain the information he so desperately needs."

The ACLU also has raised serious questions about Campbell's connections with the Attorney General's office. Campbell is a former federal prosecutor.

Campbell said Wednesday he withdrew the lawsuit because the case had entered the federal arena. But he would not address questions about how the grand jury took hold of the anonymous flier case.

"The Attorney General's Office and the federal grand jury are involved in this matter," Campbell said. "We have deemed it appropriate to withdraw our lawsuit and allow authorities to do their respective jobs in each of those cases."

Mahan, however, said he is not stunned the federal grand jury has gotten involved.

"I understand Commissioner Malone is looking at all his alternatives and it certainly is in the purview of a federal crime, so it could get the federal grand jury involved," Mahan said.

ACLU executives question how the flier case ended up with the grand jury and became suspicious of Campbell's relationship with the Attorney General's Office after a series of letters were exchanged late last month.

After Malone filed his lawsuit in District Court, ACLU attorney Allen Lichtenstein wrote to the Attorney General's Office asking for its assessment on what effect an Ohio Supreme Court decision regarding anonymous campaign fliers had on Nevada's law.

Lichtenstein received a letter that said the state office does not issue opinions to "private citizens or groups." Secondly, the letter says, "It is the policy of this office not to opine on issues that are the subject of litigation."

In a letter to Mahan, however, Campbell says he personally contacted Attorney General Frankie Sue Del Papa and discussed whether the state statute was constitutional under the First Amendment.

"Attorney General Del Papa has informed me that she intends to proceed in Federal District Court and so vigorously defend the statute in that forum," Campbell wrote.

Peck said he is not only troubled by the attorney general's uneven treatment of the two attorneys, but he is especially concerned about the timing of the grand jury's hearing, which is scheduled for Wednesday.

A hearing has yet to be scheduled for the federal court case.

"Once Lance has that name, it really won't matter in the context of that case whether the law is declared unconstitutional," Peck said. "He will have the name to which he may well not be entitled."

Malone believes the fliers were paid for by Station Casinos, which became furious with the commissioner after he went back on his word and voted for a casino in the neighborhood of Spring Valley.

The mailers show a caricature of Malone with money stuffed into his pockets and the says, "You just can't trust Lance Malone."

During the March hearing in Mahan's chambers, Campbell said Station Casino's executive Mark Brown told Malone shortly after the vote that if he didn't drop out of commission race, anonymous fliers would be mailed to his constituents in District C.