Friday, Jan. 7, 2005 | 10:53 a.m.
Several judges or judicial candidates appear to have violated both campaign-finance laws and judicial ethics canons during the 2004 election campaign, according to financial filings with the secretary of state's office.
Three candidates for judgeships each paid $5,000 to appear on a flier that listed Republicans in the technically nonpartisan races for judges, university regents and school board.
The donations appear in the filings of the Clark County Republican Central Committee. But the candidates did not list the contributions in their own campaign expense reports, as required by Nevada statute.
In addition, the state's judicial canons bar judicial candidates from publicizing their party affiliation, although they may state it if asked and the rule is the subject of some controversy.
Of the three candidates, one, Betsy Gonzalez, was an incumbent District Court judge who won election on Nov. 2. Gonzalez had been appointed by Gov. Kenny Guinn to a vacant seat last July.
Another, Stefany Miley, defeated incumbent Bob Gaston for a seat in family court. The third, Jim Gubler, made an unsuccessful run for Las Vegas Justice Court.
The other six judicial candidates who appeared on the flier may also have violated the canons, by allowing their names on the mailer. All but one may also have violated the statutes, by failing to list the mailer as an in-kind contribution in their filings.
Clark County Deputy District Attorney Bernie Zadrowski, who ran unsuccessfully for Las Vegas Justice Court, did not contribute to the mailer but knew he would be included on it. He listed the mailer as an in-kind contribution on his financial report.
The candidates were contacted as the mailer was being drafted and given a choice whether to participate. One candidate who asked not to be included in the flier was left off the list -- then-district judge Ron Parraguirre, who won election to the Nevada Supreme Court.
The six who were included without paying were Zadrowski and:
Family Court Judge Dianne Steel, who ran unsuccessfully for Supreme Court;
Attorney John Mason, who ran unsuccessfully for Supreme Court;
Attorney Elizabeth Halverson, who ran unsuccessfully for Family Court;
Family Court Judge Gerald Hardcastle, who kept his seat;
Attorney Sandra Pomrenze, who unseated an incumbent Family Court judge.
In addition, those responsible for the mailer may have violated campaign-finance laws by failing to register as a political action committee with the secretary of state's office.
The mailer was sent out in October to registered Republicans in Clark County -- about 150,000 of them. The front of the postcard reads, "It is important to elect Republicans in non-partisan races. Please use this card to fill out your Sample Ballot for Republican candidates, or take it to the polls with you."
In small type at the bottom of the card are the words "Paid for by the Republican Judicial Caucus." No further information is listed.
The back of the card lists the nine judicial candidates, plus six candidates for educational offices.
According to the secretary of state's Web site, there is no registered political action committee called the Republican Judicial Caucus.
The flier was originally conceived as a project of the county GOP, but the party disowned it when not all the Republican candidates agreed to participate, Clark County Republican Party spokesman Brian Scroggins said.
Parraguirre, who asked not to be on the mailer, and Mason were running for the same Supreme Court seat, and the party didn't want to appear to be endorsing one Republican over another, Scroggins said.
"We're here for all Republicans. We're not here for any select group," Scroggins said. "We were not willing to send it out if not all the candidates wanted to participate."
Instead, a local businessman and party member named Monty Miller took over the project, founding the Republican Judicial Caucus in order to publish the flier, Scroggins said.
The judges "had made out some checks to us, so we signed those checks over to Monty, and he formed the judicial PAC," Scroggins said.
Miller did not return various messages this week. Scroggins said a message was relayed to him on vacation in Florida.
According to Nevada law -- NRS 294A -- any group that makes expenditures intended to affect an election constitutes a committee for political action and must register by filing a form with the secretary of state before it engages in campaign activities.
Ronda Moore, who was until recently the deputy secretary of state for elections, said she could not comment on specific cases, but in general, if a campaign mailer purports to be from a specific group, that group ought to be registered as a PAC.
If not, "that would be a violation of 294A, and the secretary of state could impose civil penalties," Moore said. In addition, the mailer should include the group's mailing address, she said.
The secretary of state's office does not investigate possible violations unless it receives a complaint. The office as of this week had not received a complaint about the flier. (Moore recently moved to another post in the office, overseeing federal voting requirements.)
As for the candidates, Gonzalez, Gubler and Miley are listed as contributing $5,000 each to the Clark County Republican Central Committee in the group's Oct. 26 financial report. But none of the three reported such an expenditure in their own filings for that period.
Gonzalez said she acted on advice from her campaign consultant, Dave Thomas, in making the donation. She was advised that the $5,000 check -- written from her personal checkbook, not her campaign's -- was a personal contribution, not a campaign expense, and thus didn't have to be reported.
"I can make a contribution to the party anytime I want. That's what I was told," she said.
Gonzalez said she knew when the contribution was solicited that its purpose was "to defray expenses" of mailing out a Republican judges' slate. She was also told that she didn't have to pay to be included on the flier.
Gonzalez said she knew Parraguirre had opted out of the flier but didn't feel she had control over its contents. "We didn't have any input," she said. "I don't think I had a say."
Thomas, the consultant, who is also a lawyer, said he researched the issue and decided it was legal for the candidate to contribute as long as the contribution wasn't officially earmarked for a specific purpose.
"I made a determination that legally she could give a contribution to the party, and it had to be an unrestricted contribution," Thomas said. "I told her that if they decided not to do the piece, she couldn't get that money back."
Beyond that, he said, "We didn't want to have anything to do with the piece" because, if Gonzalez participated directly in creating the flier, it might be illegal."
"I didn't think legally we could do that," he said.
Gubler and Miley did not return phone calls.
Parraguirre, who was sworn in as a state Supreme Court justice on Monday, also could not be reached. But his campaign consultant, Billy Vassiliadis, said previously that he strongly disapproved of the mailer, saying it violated the spirit of a nonpartisan race.
The campaign-finance statute also requires candidates to report in-kind contributions -- contributions of services with monetary value, such as polls, phone solicitations, paid labor, and direct mail or other printed materials.
But of the six candidates who were listed on the flier for free, only Zadrowski reported the mailing as an in-kind contribution, noting a $5,000 value for a "slate mailer" from "Monty Miller and company."
Zadrowski said he thought all advertising on a candidate's behalf had to be reported as an in-kind contribution. "My understanding from reading the law was that if you got an endorsement, you had to report it," he said.
Moore said that interpretation was correct. Even if a candidate didn't authorize a campaign activity on his or her behalf -- if campaigning was done totally without the candidate's knowledge or permission -- its value would still, by law, have to be listed as a contribution, Moore said.
"If you're out there doing something on behalf of a candidate and the candidate doesn't have anything to do with it, it still has to be reported," Moore said.
If the candidate failed to report a contribution, she said, "probably the candidate would be in big trouble."
The state's Code of Judicial Conduct, meanwhile, bars judicial candidates from stating party affiliation in their campaign materials.
"While judges and candidates may ... properly respond to questions regarding their party affiliation," Canon V of the code states, "it is impermissible for them to align themselves with a political party or to affiliate themselves with a political party in campaign literature, mailings, billboards, yard signs, radio and television advertising, or the like."
The same canon also states that judicial candidates can't duck the requirements by having others act on their behalf.
"A candidate for judicial office ... shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon," it states.
Hardcastle said he remembered his conversations about the flier. "The guy called me," he said, saying he couldn't remember the man's name. "To be honest with you, I didn't take it very seriously," he said.
At first, Hardcastle said, the man said a $5,000 donation was required to be included on the flier. When Hardcastle said he couldn't afford it, he was told that his opponent, Halverson, was paying to be on the mailing, Hardcastle recalled.
"I says, it bothers me that I'm an incumbent Republican and you're going to endorse someone else who's never held the seat ... just because they have the money," Hardcastle said.
The man later called him back and informed him his name would be on the flier after all, Hardcastle said.
Steel and Pomrenze have previously said they had advance knowledge that the mailer was being prepared.
Hardcastle said he believed that, as a matter of free speech, the canons restricting judges' disclosures would not stand. The distinction between what judges can say privately and what they can say publicly simply won't hold up, he said.
Hardcastle and others say Nevada may be due for a confrontation on the issue of what judicial candidates can and can't say. In September, the Nevada Supreme Court lifted what some had called a "gag order," saying the canons allowed judicial candidates to give opinions on "disputed legal or political issues," just not to promise how they would rule in the future.
Those who favor fewer restrictions on judicial speech point to the landmark 2002 U.S. Supreme Court ruling in Republican Party of Minnesota v. White. In that case, the high court ruled that judicial candidates' First Amendment rights shouldn't be abridged.
The White decision has reverberated through the country, toppling many local regulations. The Nevada Supreme Court responded to the decision by issuing revisions to the state canons that merely clarified Nevada's restrictions on judicial speech without overturning them.
But since the Nevada high court clarified the ethics rules, more federal courts have handed down interpretations of the White decision. In a September 2004 decision, a federal court in Ohio ruled in favor of a candidate for state Supreme Court who put his party affiliation on his campaign materials despite a canon prohibiting such advertising.
"The First Amendment does not permit the State to dictate what information the voters may be 'trusted' with," the U.S. District Court wrote in the decision, O'Neill v. Coughlan.
Because of decisions like that one, Hardcastle said, "I think the rules are changing."
He added, "If you're going to elect judges, you've got to let them be politicians. It's a valid consideration for voters whether you're a Republican or a Democrat."
David Sarnowski, who serves as general counsel and executive director of the Nevada Commission on Judicial Discipline, said the canons limit judges and candidates' political activity in order to preserve a neutral image.
Like the secretary of state's office, the judicial commission would investigate a potential violation only if a complaint were lodged.
Judicial ethics complaints are confidential -- by law, neither the complainer nor the person who is the subject of the complaint may disclose the complaint's existence until the commission rules.
"We might look at it if the complaint alleged that the candidate was involved" in a party-affiliated mailer, Sarnowski said.
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