Judge rules against Ethics Commission

Jace Radke

Wednesday, March 30, 2005 | 10:48 a.m.

A federal judge has ruled that it is unconstitutional for the state Ethics Commission to serve as arbiter of speech made about political candidates, so he is forbidding enforcement of the Nevada Revised Statute that allows the commission to impose civil penalties including $5,000 fines.

U.S District Judge Lloyd George issued the written order on Tuesday granting a motion for summary judgment in the case brought by the American Civil Liberties Union of Nevada, the Nevada Press Association and legislators from both sides of the aisle looking to force the commission to give up its power to judge speech issues.

George found that the Nevada Revised Statutes at the center of the case violate the due process clause of the 14th Amendment.

"Procedures that create an appearance of an increased risk of an erroneous decision will chill protected speech," George states in his decision. "A person will be more likely to engage in self-censorship if he or she percieves that the procedures to defend that speech are inadequate."

George found that due process rights are violated by the law because it only allows an alleged ethics violator two days to respond to an allegation. George further noted that the lack of a mechanism in the law for an alleged violator to obtain discovery is also problematic.

ACLU attorney Allen Lichtenstein has argued that the law is overly broad and could include members of the press being brought before the commission if a candidate were to file a complaint against language used by a newspaper.

"We are very pleased with the ruling and we expected it because the law is clearly unconstitutional," Lichtenstein said. "It was a law that clearly stifled political speech."

Kent Lauer, executive director of the Nevada Press Association, said the association "was very pleased" with the judge's ruling.

Previously, the law had been used against a news editor who had to defend himself before the commission for an editorial he wrote, Lauer said.

"Members of the press clearly should not have to worry about an ethics commission complaint for something they write," Lauer said.

Prior to George's ruling, the commission had been able to impose $5,000 fines against those the commission found guilty of making a false statement, with actual malice, about a candidate for political office in an attempt to impede the candidate's campaign.

Elizabeth Macias Quillin, regional chief deputy attorney general for Nevada, argued the case before George in February, and after reviewing the ruling said she was disappointed.

"I am disappointed, but not surprised that the court struck the statute down on 14th Amendment, or for concerns pertaining to due process," Quillin said. "The court was very clear during argument that he was concerned about the process for adjudicating a complaint.

"I had hoped that the court would fashion a remedy to address the due process issues."

Quillin also said she is happy that the court "agreed with the Nevada Commission on Ethics and found that the statute is constitutional on First amendment grounds."

Although George did not specifically find that the law violated the First Amendment in his summary judgement that accompanied the order, he does state in the order that the law could chill speech protected by the First Amendment.

George also states in the order that the procedures involved with the law impact core First Amendment speech, leading to strict scrutiny of the due process aspects.

Quillin had argued that the intent of the commission is not to provide extra safeguards for political candidates from disfavored speech, but to protect the voting public from a barrage of information and misinformation right before the election.

Gary Peck, executive director of the ACLU of Nevada, said he was pleased with the decision.

"Although we are ecstatic that the public's First Amendment rights have finally been vindicated, it is unfortunate that we and the state had to expend so much time, energy and money litigating an obviously indefensible law," Peck said.

Sun reporter Mary Manning contributed to this report.