ACLU plans lawsuit against state Ethics Commission

Jace Radke

Tuesday, Sept. 10, 2002 | 10:49 a.m.

The American Civil Liberties Union of Nevada is preparing to file a federal lawsuit against the state Ethics Commission challenging the board's ability to level fines and make "findings of fact" outside a courtroom.

The lawsuit, expected to be filed in U.S. District Court this week, makes the charge that the Ethics Commission is not the proper venue for decisions on defamation claims, ACLU attorney Allen Lichtenstein said.

"This is the wrong forum," Lichtenstein said. "People have a right to appear in court, not before a political body of the executive branch that has taken on the role of a truth squad.

"The state Legislature can't trump the U.S. Constitution."

A number of legislators will be included as plaintiffs in the suit, along with the ACLU and the Nevada Republican Liberty Caucus, Lichtenstein said.

The Nevada Republican Liberty Caucus was named in an ethics complaint filed by Earlene Forsythe, a Republican candidate for Assembly District 37 who lost in last week's primary by nine votes to Francis Allen.

Forsythe alleges that the Liberty Caucus, a group of political activists, sent malicious mailings and left libelous phone messages for voters. The mailings and messages criticized Forsythe, a registered nurse, and alleged that her husband, Dr. James Forsythe, overcharged cancer patients.

Earlene Forsythe did not immediately return calls for comment about the ethics complaint.

The commission hearing is scheduled for Friday, but the ACLU said the dispute between Forsythe and the political group is just an example of what it calls a problem with the state Ethics Commission.

"The ACLU has no dog in the fight between Ms. Forsythe ... and the liberty caucus," ACLU of Nevada Executive Director Gary Peck said. "The only reason we're moving forward with the lawsuit now is that what happened in this case underscores the problems we already knew existed."

The lawsuit will allege violations of the First Amendment, due process and equal protection, Lichtenstein said.

He said the due process argument relates to the accused in complaints having a minimal amount of time to build their case, while the equal protection refers to the tendency for politicians to be treated differently from other citizens. The alleged First Amendment violation occurs when the commission -- not a court -- decides if statements are defamatory.