.
photo by David Robert (RN&R)
Tsk, tsk. Thanks to political watchdog
Sam Dehné, a citizen can't be fined for
questioning the actions of a public official
A FEW STORIES, REPORTS, AND EDITORIALS ABOUT A JUDGE'S MONUMENTAL DECISION
Citizen Sam's Free Speech Win
Reno News & Review, 16 August, 2001
INTERNET VERSION (CLICK): http://www.newsreview.com/issues/reno/2001-08-16/news.asp (click)
By Deidre Pike
Nevada statutes used to fine a citizen for making an ethics
complaint about Reno Mayor Jeff Griffin are found unconstitutional,
U.S. Magistrate says
"…Even false statements about public officials
are protected unless it can be shown that the
statements were made 'with actual malice'--that
is, with the knowledge that it was false ..."
--From the report and recommendation of
U.S. Magistrate Valerie Cooke, filed Aug. 7
in U.S. District Court
(NOTE: Notwithstanding the judge's ruling,
Sam Dehne made NO false statements.
Click here for entire transcript.)
Many call Reno resident Sam Dehné a
gadfly. Local city council members, airport
authorities and county commissioners would
agree that he certainly fits the definitions:
"a persistent irritating critic, a nuisance" and
"one who acts as a provocative stimulus, a
goad."
But Dehné says he'd rather be called a
"watchdog," that is, "one who serves as a
guardian or protector against waste, loss or
illegal practices."
"It's a citizen's duty--after family and
job--to expose corruption in government,"
Dehné says. "If he didn't expose it,
government would be even more corrupt,
and that would be saying a lot."
With representation by the American Civil
Liberties Union and Jeff Dickerson, Dehné recently won a
favorable U.S. Magistrate's recommendation
in a free speech case. Back in 1999, Dehné
had written letters to the Nevada Ethics
Commission asking for an opinion involving
a possible conflict of interest involving Reno
Mayor Jeff Griffin. The complaint was
dismissed. But to discourage Dehné, the
commission decided to invoke two Nevada
statutes and fine Dehné $5,000 for making
"false statements."
One statute, NRS 281.525, makes it a misdemeanor for any person to make a
"false, deceptive or misleading" statement to induce the ethics commission to
render an opinion. Another, NRS 281.551, allows the commission to impose
penalties up to $5,000 to an individual who submits--"in bad faith, or with a
vexatious purpose, an accusation or information that is false."
"Vexatious!" Dehné recounts. "Nobody's going to bring charges against a public
official unless he's vexed. They accused me of being vexatious. As if that's
something bad!"
In a report and recommendation filed last week, U.S. Magistrate Valerie Cooke
wrote that these statutes impose "direct and significant restrictions on speech."
"A statute that regulates speech critical of public officials and which implicitly
requires the critic to guarantee the truth of every factual assertion made to the
Commission on pain of statutorily imposed civil liability (and potential criminal
liability) results in self-censorship and discourages public debate," Cooke wrote in
her recommendation to U.S. District Judge David Hagen, who is expected to rule
in line with Cooke's report.
"It's really a sweeping First Amendment case," says Rich Siegel, director of the
ACLU in Northern Nevada. "I don't know if Nevada has ever had a federal case
where the right to criticize public officials was as adamantly affirmed."
Dehné says he won't celebrate until the final ruling is in. And though the ACLU
wanted to approach the case as a free speech issue, he'd been hoping someone
would help him prove that he didn't lie.
"I don't need to conjure things up," he says. "Why would I load my gun with a
blank when there's so much ammunition just lying around?"
The ACLU saw its chance to prove something larger.
"It sure is curious that we live in a state where so many politicians argue for less
government, yet seem so willing to trample on people's First Amendment and
other Constitutional rights," said Gary Peck, director of the ACLU in Nevada. "One
thing is certain. The ACLU will never find itself without enough business to keep it
in court."
From a transcript of a June 1999 Nevada Ethics Commission hearing:
CHAIRWOMAN [MARY] BOETSCH: The opinion requests before us today have to do with
allegations that Griffin traveled to Texas and had conversations
wherein Mr. Griffin convinced the Reno airport to not move the Air Guard so that the cargo area
at the airport could be increased to benefit his personal interests. Now, what evidence do
you have--listen to my question and don't even think about interrupting me.
MR. DEHNÉ: I'm thinking about it.
CHAIRWOMAN BOETSCH: Get out. That's it.
MR. DEHNÉ: Good for you. Grease those rubber stamps. Grease up those rubber stamps
all over again.
CHAIRWOMAN BOETSCH: Mr. Dehné, if you don't get out of this room right away, I will
call the police and have you arrested.
MR. DEHNÉ: Oh, what a bunch of flapdoodle you people are. What a joke to good
government. Embarrassment. Flat, outright embarrassment.
(Mr. Dehné left the hearing room.)
Lt. Col. Denis "Sam" Dehné, a retired Air Force pilot who later went to work for a
private airline, says he hasn't missed a Reno City Council or Airport Authority
meeting since 1995. He also says he attends all Washoe County Commissioner
meetings and Reno-Sparks Convention & Visitor Authority meetings. He doesn't
take a vacation. The 60-year-old probably has a better attendance record than
any local politician.
He writes the content for and maintains an extensive Web site, The Reno Citizen,
which he admits is "a little biased." He carries a well-worn copy of the Nevada
Open Meeting Law Manual under his arm, along with various other files and a
copy of the Reno-Tahoe Airport cargo hub study.
He runs every day with his 75-pound bulldog, Dexter. He plays his guitar and
sings, making about 15 volunteer performances a month. He says he sleeps
precisely seven hours a night.
"If you go beyond that, your organs get dormant," he says. "Really, they do."
(From transcript )
MS. BART: Not yet. He has, in his Web site...
CHAIRWOMAN BOETSCH: I think we get the gist of what you're saying. I'm sure the
Mayor can commiserate with you.
MR. GRIFFIN: ... In the last 12 months, Mr. Dehné has appeared before me and
attacked me personally 300 times. In addition to the complaints that he has lodged with
this body, I have been personally sued. ... I have had five Open Meeting Law violations
filed with the Attorney General's office. ... It's becoming a systematic use of a public
body to abuse public officials.
Dehné decided to complain to the commission about what he viewed as Griffin's
intervention in airport affairs after he'd heard talk of the mayor traveling to
Texas for meetings. A week after this trip,
he says, the airport authority changed its plans and decided that Rewana Farms
was the perfect place for a cargo hub.
"Griffin's a cargo man," Dehné says, referring to the mayor's ownership of the
foreign trade zone at that time. "It doesn't take a rocket scientist to figure out
that Griffin would benefit from it."
"I don't have any heavy duty evidence, but I had substantial questions enough
to put together a request for an opinion, to say, 'I think this has happened. I'm
requesting your opinion.' ... The bottom line is that the ethics commission was
flat downright evil and perverted. They were doing what they were supposed to be
protecting us against."
Sunday, August 19, 2001
Copyright © Las Vegas Review-Journal
COLUMN: Thomas Mitchell
To err is human.
To truly bollix things takes the mantle of authority.
In 1633, 10 cardinals, one of them the brother of Pope Urban VIII, ordered
Galileo to recant his writings in defense of Copernican theory -- you know,
that old canard about our planet revolving about the sun.
In 1999, the Nevada Ethics Commission fined Reno gadfly Sam Dehne
$5,000 for filing an investigation request that the commission described
as a vexatious attempt to coerce the panel with "innuendo, supposition
and blatant exaggerations." (Get appointed to a panel and your power to
detect mendacity increases many fold, even if your brother is not the
pope.)
Dehne was fined for exercising his First Amendment rights of free speech
and redress of grievance. He filed a one-page letter with the Ethics
Commission asking it to look into some circumstances that he considered
circumspect and ethically untoward.
He basically accused Reno Mayor Jeff Griffin of meeting
semi-clandestinely in what Dehne thought was defiance of a previous
ethics panel ruling. The panel had once told the mayor he should abstain
from votes on airport issues that affected his company.
The commission also concluded the gadfly misinterpreted its instructions
to the mayor about his dealings with the airport. And it found nothing to
support his leap of faith that a deal might've been hatched at the Dallas
meeting.
I suspect the thing that nailed Dehne was his failure to kowtow. The ethics
opinion signed by then-Vice Chairman Mario G. Recanzone described
Dehne as "openly defiant, argumentative and contemptuous of the
Commission ..."
So, applying a statute that makes it "unlawful for any person to make, use,
publish or disseminate any statement which is known or through the
exercise of reasonable care should be known to be false, deceptive or
misleading in order to induce the commission to render an opinion ..." the
ethics panel slapped Dehne with the $5,000 fine.
His crime was that he wasted the functionaries' time with erroneous
assumptions, poor research and inventive conspiracy theories. They said
he did not prove his case, when all he asked was that the panel look into
the matter and see if his suspicions were meritorious.
OK, so this isn't astrophysics.
A week ago, in a 14-page recommendation to a federal judge handling
the case, U.S. Magistrate Judge Valerie Cooke pilloried the state law
giving the Ethics Commission the power to issue such fines.
Magistrate Cooke found the law blatantly unconstitutional, violating both
the First (free speech) and 14th (due process) amendments.
She relied heavily on the 1964 landmark case of New York Times v.
Sullivan.
That case involved an advertisement in the Times that accused
Montgomery, Ala., police of misdeeds against civil rights leaders and
demonstrators. A couple of the allegations were erroneous.
The U.S. Supreme Court used the case to set a precedent that free
speech is pre-eminent when it comes to criticizing public figures and
officials, even if the criticism is in error, so long as it is done without
malice or reckless disregard for the truth.
The ruling includes such statements as: "... erroneous statement is
inevitable in free debate, and ... it must be protected if the freedoms of
expression are to have the 'breathing space' that they 'need ... to survive
...' " And: "A rule compelling the critic of official conduct to guarantee the
truth of all his factual assertions -- and to do so on pain of libel judgments
virtually unlimited in amount -- leads to a comparable 'self-censorship.' "
On Thursday the ethics panel instructed its attorney, Nancy Lee Varnum,
to file objections to the magistrate's recommendation. She said she will
argue that the law is in fact constitutional.
Tough task.
After being ordered to recant, Galileo reportedly uttered under his breath,
"But it does move."
Perhaps Dehne will have the last word ... for free.
Thomas Mitchell, editor of the Review-Journal, writes a column on the
newspaper's functions and role in the community. He may be reached at
383-0261 or via e-mail at Thomas_Mitchell@lasvegas.com.
Tuesday, August 14, 2001
Las Vegas Review-Journal
Two years ago, Reno resident Sam Dehne filed a complaint with the state Ethics Commission, asking it to investigate potential conflicts of interest involving Reno Mayor Jeff Griffin. Mr. Dehne, a frequent critic of the mayor, had his complaint dismissed by the ethics panel.
But that was not the end of the story. The commission then fined Mr. Dehne $5,000 for making "false statements" to the panel under Nevada statutes which, among other things, allow the panel to charge citizens with misdemeanors for submitting "in bad faith or with a vexatious purpose, an accusation or information that is false ... ."
For critics of the Ethics Commission and its practices, the fine was the last straw. The ACLU assisted Mr. Dehne with a lawsuit against the commission, charging that the statutes which empower the commission to
issue fines violate the First and 14th Amendments to the Constitution.
On Aug. 7, U.S. Magistrate Judge Valerie Cooke sided with Mr. Dehne. In a strongly worded report to U.S. District Judge David Hagen, who will issue a formal ruling in the case, Judge Cooke stated that the statutes are vague, overly broad and violate due process rights.
Judge Cooke relied heavily on the U.S. Supreme Court's landmark New York Times vs. Sullivan decision, which ruled that false statements made against public officials are protected by the First Amendment unless it can be shown that the statements were made with "actual malice" -- in other words, the speaker knew (or didn't care) whether the information was false.
The Sullivan ruling protected not only inquisitive journalists, but also gadflies such as Mr. Dehne -- citizens who are suspicious of the activities of government officials and who make nuisances of themselves if necessary to arrive at the truth.
Judge Cooke noted that the commission was created to offer a forum for the public to air complaints about potential ethical violations by officials. But the laws governing it are so vague and punitive that "there is a realistic potential that they will discourage protected speech."
As an example, Judge Cooke noted that the law lets the ethics panel assess a fine against a person who tells the truth. Under the law, a person can bring a complaint that eventually leads to legal action against a public
official, yet still be fined as much as $5,000 -- if the panel decides that the complaint was brought "in bad faith or for a vexatious purpose."
To make matters worse, the commission is not required to give any advance note of its intention to issue fines or penalties, nor is it required to convene a hearing to give the people it is penalizing the opportunity to defend themselves. Under those circumstances, who would dare criticize a government official in public?
Judge Cooke correctly ruled that the law violates First Amendment free speech rights and 14th Amendment due process protections. Now it's up to Judge Hagen to follow up on her recommendation and strike down the statutes that allow such punitive measures -- quickly and decisively.
CARSON CITY, Nev. (AP) - A federal magistrate says the state Ethics Commission has relied on two unconstitutional
sections of Nevada law to punish citizens who complain about public officials.
Magistrate Judge Valerie Cooke recommended that U.S. District Judge Dave Hagen rule in favor of self-proclaimed
government watchdog Sam Dehne of Reno and find that the laws violate constitutional free-speech and due process guarantees.
Cooke's 14-page report was hailed Friday by American Civil Liberties Union attorneys who challenged an Ethics Commission
decision to fine Dehne $5,000 after he filed numerous complaints against Reno Mayor Jeff Griffin.
The ACLU went to court on Dehne's behalf in 1999. Dehne has refused to pay the fine, saying it was illegal.
"This is a significant, major report," said ACLU lawyer Allen Lichtenstein. "It basically states that, regardless of what public
officials want to think, the Constitution and First Amendment apply here too."
"The handwriting is on the wall. We hope the Ethics Commission will take the report seriously and refrain from hauling anyone
else like Sam before it," added ACLU lawyer Gary Peck.
The commission had warned Dehne that his complaints were frivolous and told him not to file anymore. It found a subsequent
Dehne complaint was "malicious, vexatious and without merit."
Dehne had complained that Griffin had violated a prior ethics ruling when he traveled to Dallas with Reno-Tahoe International
Airport officials. Griffin owns a transport company and has a contract with the airport to operate the only foreign trade zone at
the airport.
The commission, according to the ACLU, also ejected Dehne from a hearing on the case and then allowed Griffin to testify -
and suggest the panel deter Dehne from making similar complaints in the future.
Cooke cited the U.S. Supreme Court's 1964 ruling in a New York Times case that held even false statements about public
officials are protected unless the statements were made with "actual malice."
"If the Legislature wishes to regulate speech critical of public officials, such statutes must incorporate the "actual malice'
standard," Cooke wrote.
"If the Legislature wishes to trod on First Amendment ground and regulate such speech, it must do so with the utmost specificity
and clarity," Cooke added.
Under the two state law provisions, even allegations about a public official that turn out to be true could lead to fines up to
$5,000 if the person who filed a complaint did so in bad faith "or for a vexatious purpose," the magistrate said.
"There lies in the plain meaning of these (Nevada) statutes the potential to punish protected expression about the conduct of
public officials, along with the equally troubling prospect of subjective or discriminatory enforcement."
"This court finds these statutes overbroad because they proscribe more speech than is necessary and there is a realistic potential
that they will discourage protected speech."
Penalizing people for making false statements to ethics panel violates First
Amendment (note: Dehne did not make false statements)
By SEAN WHALEY
DONREY CAPITAL BUREAU
CARSON CITY -- A state law that penalizes citizens who make false
statements to the Ethics Commission violates the First Amendment, and
Nevada officials should be barred from enforcing it, a federal judge has
concluded.
"A statute that regulates speech critical of public officials and which
implicitly requires the critic to guarantee the truth of every factual assertion
made to the commission ... results in self-censorship and discourages
public debate," wrote U.S. Magistrate Judge Valerie Cooke in a
recommendation filed Monday.
The recommendation will be forwarded to U.S. District Judge David
Hagen, who will issue a formal ruling in the case brought by the ACLU on
behalf of Reno resident Sam Dehne.
In a March 1999 letter to the Ethics Commission, Dehne accused Reno
Mayor Jeff Griffin of having a conflict of interest through interactions with
the Washoe County Airport Authority. The
panel dismissed Dehne's complaint in June 1999 and fined him $5,000
for making false statements in his opinion request.
The law used against Dehne says: "It is unlawful for any person to make,
use, publish or disseminate any statement which is known or through the
exercise of reasonable care should be known to be false, deceptive or
misleading in order to induce the commission to render an opinion, or to
take any action related to the rendering of an opinion."
In the 14-page report and recommendation, Cooke determined the laws
prohibiting false statements to the Ethics Commission and authorizing
fines are unconstitutional.
The precedent in the Dehne case is New York Times Co. vs. Sullivan, a
landmark 1964 U.S. Supreme Court case that determined even false
statements made about public officials are protected unless it can be
shown that the statements were made with "actual malice," knowledge
that information was false or was given with reckless disregard of whether
it was false.
The New York Times Co. vs. Sullivan standard for criticism of public
officials stemmed from "a profound national commitment to the principle
that debate on public issues should be uninhibited, robust and wide-open,
and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials," the
decision said. The case has become a bedrock for protections of free
speech and a free press.
Cooke said the levying of civil penalties also violates 14th Amendment
protections of due process because no hearing was required before a
penalty could be assessed by the commission.
Because of the constitutional flaws in the statutes, Cooke recommended
that a permanent injunction be issued prohibiting the Ethics Commission
from enforcing the laws.
Polly Hamilton, executive director of the Ethics Commission, had no
immediate comment on Cooke's recommendation. The ruling will be
discussed by the commission at its Thursday meeting in Las Vegas, she
said.
The Ethics Commission frequently relies on citizen complaints to
determine whether there is cause to move forward with an investigation. A
commission panel typically meets to consider whether enough information
has been presented to move forward with a full hearing before the entire
commission.
Allen Lichtenstein, general counsel for the American Civil Liberties Union
of Nevada, called the recommendation significant and predicted that
Hagen would endorse it.
"What the court said is that the public's constitutional rights trump the
desires of public officials to protect themselves from public criticism," he
said. Setting up the Ethics Commission as a "truth squad" to determine
whether complaints are completely accurate is a clear constitutional
violation, Lichtenstein said.
"Some folks in the state felt they were not bound by the U.S. Constitution,"
he said. "Very clearly, the federal judiciary understands that is incorrect."
Dehne, who monitors and frequently comments on government operations
in Washoe County, said he was thrilled with the decision.
"I feel absolutely wonderful," he said. "I'm absolutely shocked. I want to
give kudos to the magistrate for making an honest decision. It's a rarity to
find a judge making an honest decision up here."
Dehne said it was not only the $5,000 fine that concerned him, but the fact
that the issue was referred to the Washoe County district attorney's office
for possible criminal prosecution. No charges were ever filed, but Dehne
"lost some sleep over that," he said.
ACLU of Nevada Executive Director Gary Peck said he hopes the Ethics
Commission will comply with the recommendation and refrain from
considering fines against other citizens. "It is certainly curious that in a
state where so many politicians pride themselves on arguing for less
government, that the ACLU is forced to litigate time and again over the
government's infringements on First Amendment rights," he said.
Stuff the citizens are saying:
VICTORY FOR THE PEOPLE THANKS TO SAM.
See? You are making a big difference here in Reno. So, keep up the great work and don't get stressed out in your endeavors because you will win in the end. Now, I can bet the cronies are getting stressed up seeing their power being eroded away by Reno's fighter pilot. I can hear them now;
"Oh no, here comes Sam again and we can't even call the cops and have him put out of the meeting!"
Click to read the Transcript of the Ethics "Trial".
Click to read The Reno Citizen
