Suit will proceed against state Ethics Commission

By Timothy Pratt (contact)

Monday, Sept. 30, 2002 | 11:14 a.m.

A lawsuit challenging the state Ethics Commission will proceed despite its unanimous ruling against an Assembly candidate over a flier she said was libelous, according to the ACLU.

The commission Friday ruled against Earlene Forsythe, Republican candidate for Assembly District 37, who alleged that the flier by her opponent, Francis Allen, and the Nevada Republican Liberty Caucus, caused her to lose the primary by nine votes.

The commission, after a daylong hearing, ruled that the materials were protected by Allen's and the organization's right to free speech.

"This is a significant case before the commission," member William Flangas said. "You can be marginally legal but exceptionally unethical ... Clear and convincing evidence has not surfaced (today) ... But under laws of common decency, (these materials) suck ..."

Afterward, George Harris, chairman of the caucus, a Libertarian-leaning GOP organization, said, "Thank God for the First Amendment."

Despite the ruling and its emphasis on free press, the American Civil Liberties Union, the Nevada Press Association and three legislators still maintain the commission and the state laws that empower it are unconstitutional, and will continue to push their case in federal court, Gary Peck, executive director of the Nevada ACLU.

"The question is whether this commission should be able to determine who has libeled or defamed and who hasn't," he said. "We believe a court of law, not the Nevada Ethics Commission, is where these rulings should be made."

Peck expects the ACLU will file for an emergency stay, effectively stripping the commission of its right to act during the campaign season leading up to the Nov. 5 elections.

"This is very important, since campaigns are when it is most vital to protect political speech," Peck said.

At issue is whether the state's laws are clear enough to have any meaning and whether they give the commission powers that rightfully should be in the hands of a judge.

Commission Chairman Todd Russell admitted that the law created problems in its application. "The criteria that there be a misstatement of fact, that a campaign was impeded and that it was done with malice ... is difficult to find a violation of," he said.

"While the Constitution ... is not up to us to determine, this is a difficult statute to apply and I'd like to have some guidance from the Legislature on this."

The lawsuit then seeks to abolish the state law on campaign practices.

"Compelling arguments have been made regarding the inadequacies of this law that strongly suggest clarification or repeal," said Flangas, one of two senior members of the commission.