Campaign law at center of Malone case

Adrienne Packer

Monday, March 27, 2000 | 11:18 a.m.

The focus of a probe into who mailed anonymous fliers attacking Clark County Commissioner Lance Malone has turned to the Nevada campaign law Malone had hoped would identify the culprits.

Malone's attorney and lawyers for the mass-mailing company Passkey Systems and Station Casinos, the company that Malone believes is responsible, will argue whether the law is constitutional during an April 11 hearing.

The American Civil Liberties Union also will join the case after filing a complaint in District Court on Friday.

The fliers depicting a caricature of Malone with money stuffed in his pockets were delivered to District C voters earlier this month.

Malone and his attorney, Don Campbell, are convinced the mailer -- which says "You just can't trust Lance Malone" -- is payback from Station Casinos after Malone reneged on a commitment to vote against a competing hotel-casino.

District Judge James Mahan made it clear he thought the fliers were brutal, but he quickly added that that doesn't mean they are unconstitutional.

"I saw the flier, and I thought it was scurrilous and despicable," Mahan said. "That's the exact kind of speech the First Amendment protects."

Malone, who is running for re-election, filed a lawsuit against Passkey Systems and unknown parties March 10, saying whoever sent the flier failed to include their name and therefore violated state law. Passkey was pulled into the suit after it refused to turn over records that show who paid for the mass-mailing.

Campbell said whoever is responsible is not only guilty of a criminal offense but also can be prosecuted for defamation of character.

He said the flier's representation of Malone as an elected official who bows to casinos is wrong. The reason Station Casinos executives are upset, Campbell said, is because Malone didn't do what they wanted him to do.

"It depicts Malone as being a dummy for casino corporations; he'll do whatever they want him to do," Campbell said. "We suggest the opposite."

While Mahan emphasized his interest is in the constitutional aspect, he declined to quash a subpoena delivered to Station Casinos Vice President Mark Brown.

Shortly after Malone voted in favor of the Spring Valley casino, Brown told the commissioner unless he dropped out of the race, the effort to unseat him would be so damaging, Malone would never find another job in Las Vegas, Campbell said. Brown said part of the effort would include a series of anonymous fliers, according to Campbell.

Brown, who had a family emergency and could not attend Friday's hearing, has hired the high-priced attorney firm of Schreck Morris.

Attorneys Todd Bice and James Pisanelli, both with Schreck Morris, told Mahan that Campbell was "putting the cart before the horse."

They said the constitutionality of the law must be decided before Passkey is forced to reveal its customer. If the constitution protects anonymous mailers, Bice argued, then Malone's quest to identify the responsible party is worthless.

"They're trying to get information before you decide whether they have the right," Bice told Mahan. "They are saying, 'We want to know who you are so if we win the election we can settle up with you later.' "

Station Casinos and the ACLU plan to use an Ohio Supreme Court decision to prove that the constitution protects anonymous campaign fliers.

"The U.S. Supreme Court ruled a state statute prohibiting anonymous political handbills an unconstitutional prior restraint in violation of the First and Fourteenth Amendments to the U.S. Constitution," according to the ACLU's complaint.

Attorneys representing Station Casinos and Passkey Systems must file briefs outlining their argument on the constitution by Friday. Malone has until April 7 to respond and the hearing will take place at 9 a.m. on April 11.

The attorney general's office also will be invited to testify.

Adrienne Packer covers county government for the Sun. She can be reached at (702) 259-2310 or by e-mail at adrienne@lasvegassun.com

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