MINUTES OF THE meeting

of the

ASSEMBLY Committee on Elections, Procedures, and Ethics

 

Seventy-Second Session

February 27, 2003

 

 

The Committee on Elections, Procedures, and Ethicswas called to order at 3:51 p.m., on Thursday, February 27, 2003.  Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

 

COMMITTEE MEMBERS PRESENT:

 

Ms. Chris Giunchigliani, Chairwoman

Mr. Marcus Conklin, Vice Chairman

Mr. Bernie Anderson

Mr. Bob Beers

Mr. Chad Christensen

Mr. Tom Grady

Ms. Kathy McClain

Mr. Bob McCleary

Ms. Peggy Pierce

Ms. Valerie Weber

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

None

 

STAFF MEMBERS PRESENT:

 

Michelle Van Geel, Committee Policy Analyst

Kelly Fisher, Committee Secretary

 

OTHERS PRESENT:

 

Lynn Chapman, Nevada Eagle Forum

Janine Hansen, Independent American Party

Christopher Hansen, Independent American Party

Joshua Hansen, Independent American Party

Lucille Lusk, Nevada Concerned Citizens

Kent Lauer, Nevada Press Association

 

 

Chairwoman Giunchigliani opened the meeting with the introduction of a resolution.

 

********

 

 

ASSEMBLYMAN CONKLIN MOVED TO INTRODUCE BDR R-1205.

 

ASSEMBLYMAN McCLEARY SECONDED THE MOTION.

 

THE MOTION CARRIED.

 

********

 

Chairwoman Giunchigliani opened the hearing on A.B. 127.  She noted that the Committee had heard testimony on February 20 and run out of time, so she had rescheduled this bill.  The Reno Gazette-Journal had written an editorial commending this piece of legislation.

 

Assembly Bill 127:  Repeals certain provisions relating to Commission on Ethics. (BDR 23-47)

 

Lynn Chapman, Vice President, Nevada Eagle Forum, reported that they were in favor of A.B. 127.  She said the bill dealt with the First Amendment free speech rights.  Ms. Chapman said they would like to amend the bill to abolish the Ethics Commission.  She thought it was interesting that the Ethics Commission’s budget for 2002 showed the following:  the number of opinions requested was 30, the projected number had been 60; the number of requests in which jurisdiction was accepted had been projected at 37 and was actually 20; the number of opinions dismissed by the panel was 12.  Ms. Chapman said the Ethics Commission had projected 22 opinions issued, and they actually issued eight.  She noted it was not a money committee, but $310,238 had been spent for the eight opinions issued.  Ms. Chapman said that was appalling.  She thought the city attorneys, the Attorney General, or the Legislative Counsel could take over and take care of any problems that might come up and eliminate the Commission.  She said they were spending a lot of money, and the state was currently in a money crunch.

 

Chairwoman Giunchigliani thanked Ms. Chapman and agreed with her regarding the budget.  She said the City of Las Vegas eliminated their duplicative Ethics Commission and anticipated a doubling of their numbers at the state level. 

 

Janine Hansen, Independent American Party, applauded the Election, Procedures, and Ethics Committee’s effort to bring forth A.B. 127.  She said it was a beginning in restoring free speech in the state of Nevada.  She referred to Article I, Section 9, of the Constitution of the State of Nevada,which read as follows:

 

“Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

 

Ms. Hansen thought that was an important point because that particular provision in the current NRS restrained and abridged free speech and she thought it was time it was repealed.  She cited the U.S. Supreme Court in Thomas vs. Collins, 1945:

 

“The very purpose of the First Amendment was to foreclose public authority from assuming a guardianship of the public mind.”

 

Ms. Hansen went on to say that in this field every person must be his own watchman for truth, because the forefathers had not trusted any government to separate the true from the false for the people.  NAACP vs. Button stated, “The First Amendment is a value-free provision whose protection is not dependent on the truth, popularity, or social utility of ideas and beliefs which are offered.”  In Brown vs. Hartledge the Supreme Court said, “The people in our democracy are entrusted with responsibility for judging and evaluating the relative merits of conflicting arguments.” 

 

Ms. Hansen said that the state’s fears that the voters might make an ill-advised choice did not provide the state with a compelling justification for limiting speech.  She thought this particular piece of legislation was right in line with what the Supreme Court wanted done concerning free speech.  She mentioned that they were interested in going further on the issue regarding financial disclosures required by candidates.  Many candidates were discouraged from participating.  Ms. Hansen said the Chairman of the Commission had made the statement that he did not want people to be discouraged.  She said it was far more difficult than it used to be finding candidates to run for office because of imposed regulations.  Ms. Hansen spoke of how uncomfortable and fearful Committee members had been at the last meeting.  She mentioned Assemblywoman McClain’s statement that those laws were used by opponents.  She said that one candidate in Washoe County had ten ethics violations filed against him that had all been dismissed.  She said the violations were filed in order to hurt his campaign.  Instead of making campaigns clean and honest, people were using the system to harm candidates who were trying to do their best. 

 

Ms. Hansen handed out an article that was in the Las Vegas Sun about the Independent American Party’s challenge against the Ethics Commission (Exhibit C).  She said her brother, Christopher Hansen, had not filed financial disclosure forms in eight years for constitutional reasons.  One of the reasons Mr. Hansen used for not filing was the Fifth Amendment, which said that if one thought there might be a possibility at some time that the information might be used against oneself in a criminal prosecution, one could refuse to provide that information.  She stated that on October 31, 2002, the Nevada Supreme Court said, “The Fifth Amendment has long been interpreted to mean that a defendant may refuse to answer official questions put to him in any proceeding – civil, criminal, formal, informal – where answers might incriminate him in future proceedings.  A defendant, therefore, retains his Fifth Amendment rights.” Ms. Hansen stated that there were other rights involved, including Fourth Amendment rights, when officials were demanding papers that were involved in the violations of the Ethics Commission.

 

Ms. Hansen referred to the jurisdiction of the Ethics Commission.  She said they had no jurisdiction over candidates.  The NRS provided them with jurisdiction over elected officials and public officers.  Ms. Hansen thanked the Committee for bringing the bill forth.

 

Chairwoman Giunchigliani thanked Ms. Hansen for reminding her of the jurisdictional issue.

 

Assemblyman Anderson asked Ms. Hansen where a citizen with a question relative to the conduct of an elected official would go to have a fair and impartial hearing without an Ethics Commission.

 

Ms. Hansen replied that with regard to candidates they would go about it in the same manner as the press did.  She said free speech provided a lot of that, but it was a messy process.  Ms. Hansen said if one were looking for information on a candidate, sometimes it was hard to find and at other times it was available. She discussed information the public might be looking for and where they might find it.  She also wondered about where the line should be drawn as far as acceptable information for the public to require from an individual candidate. Any candidate who was being challenged had the opportunity to bring forth any information and could disclose whatever they wanted about themselves. 

 

Assemblyman Anderson said it seemed to him, as a candidate, that he received hundreds of questionnaires from a wide variety of groups asking for disclosure of information on issues.  In some cases, that information could prejudice him in terms of making a decision about questions that were going to be in front of the Legislature before having read all of the information.  He said he could have easily answered all the questions by saying he had not made up his mind, or he could be truthful to those issues that he had made up his mind about.  Not all of that information was readily available.  Resources could be found on the computer, and there were good publications, but he was concerned about the person who believed they saw a candidate or public official doing wrong and issues were raised in the newspaper.  Mr. Anderson went on to say that the candidate, or those people who supported the candidate, might feel that the press had treated the person unfairly and was now finding a limited area to respond to the press adequately.  He asked where they would go, if not to the Ethics Commission, to have their name cleared.

 

Ms. Hansen asked Mr. Anderson if he meant a candidate that had been smeared.  Mr. Anderson replied either a candidate or political official. Ms. Hansen said that was a dilemma.  According to her, the problem was that the Ethics Commission had not resolved those issues, but had made it worse. She said in the instance of the candidate against whom ten violations had been filed, all of which had been cleared, there had been a lot of publicity about them having been filed against him and no publicity about them having been removed. Ms. Hansen said there might not be a good place to resolve that, but she did not think the Ethics Commission had resolved the issue at all.  She did not think it was any better than what the press had done, because when charges were filed, once the press got hold of it no one could say anything because of the rules, and then it would be days before it was resolved.  She said it was a messy problem when people accused candidates of things that might besmirch their characters, and it was difficult to resolve those publicly.  She said she had never had an opportunity for the Ethics Commission to resolve those for her. Sometimes, as public officials, people had to endure those kinds of things and resolve them the best they could, maybe by writing letters to the editor.  She thought the accused might have to go out into the free speech arena and resolve it there.  Ms. Hansen did not feel the Ethics Commission had proved to be successful in resolving those problems, but they had been expensive.

 

Christopher Hansen, Independent American Party, started off by showing a stack of papers and said it represented what he had to respond to in order to run for office.  He said this paperwork intimidated candidates and made them fearful.  Mr. Hansen stated the Ethics Commission had made some determinations about his party and they were going to ask the court a few questions.  He said they had it on the record as to what they were going to ask, but then the Ethics Commission had asked the court to fine them, which had not been declared in the open meeting.  He said they had not received notification.  Mr. Hansen said he was a construction worker, and he now had to deal with reading through all of the paperwork and get ready so he could run for office.

 

Christopher Hansen said he loved the foundations of America and studied the writings of the founders every day.  He said he had been fighting unconstitutional ethics laws for eight years.  Mr. Hansen quoted the following from James Madison:

 

“It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens in one of the noblest characteristics of the late Revolution.  The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents.  They saw all the consequences in the principle, and they avoided the consequences by denying the principle.  We revere this lesson too much to forget it.”

 

Christopher Hansen discussed some of the promises made by the federal government over the years:

 

Mr. Hansen said that history told the student that when the government made a promise, it lied.  He said that was why Thomas Jefferson said, “Don’t speak to me of the eloquence of a politician.  Tie them down with the chains of the Constitution.”

 

Mr. Hansen said they were there discussing the ethics laws.  A law was passed saying that if he wanted to run for office, he was required to answer personal questions concerning his household and financial information.  He said this had been done with a punitive civil penalty, not a criminal penalty as it once was, so the Legislature could attempt to bypass the constitutional restrictions on criminal prosecutions.  He said this was a frightening and blatant violation of the oath they took to uphold the Constitution.  He stated that was one violation. 

 

Mr. Hansen said what frightened him the most was that the Legislature believed they had the right to ask personal questions of a candidate and back that up with a penalty.  He said that if the government had authority to demand answers from candidates on those issues, then they had the authority to demand answers on any issue.  The United States Supreme Court had called such legislative actions, “a slippery slope.”  This was why Mr. Hansen and many Independent Americans refused to answer those questions.  He said if they had the authority to ask who was in his household, then they had the authority to ask if he was married, if he committed adultery, if he was a homosexual, if he took drugs, what medications he took, and did he have any illnesses or mental illnesses.  According to Mr. Hansen, all of those questions could be said to be necessary for the public to know in order to make a good determination on voting. 

 

Mr. Hansen went on to say, “Please do not tell me that these questions will not be asked some day.”  The Legislature had made too many promises that they had not kept.  He said the news media supported those ethics laws until they were turned on them.  Much of the law had already been declared unconstitutional, and if it were not changed, more of it would be declared unconstitutional.  He said the legislators who had passed this law had already violated their oath of office, and they violated the oath every time they passed unconstitutional laws.  He said they would violate them again if they did not remove the reporting requirements on candidates and elected officials. Mr. Hansen said he would continue to defy the unconstitutional laws they passed or retained.  He said when he had started his defiance four elections ago, he had been alone.  At the last Ethics Commission hearing, there had been over 20 Independent Americans defying that law.  He asked if the legislators honestly believed that juries would convict them when the Ethics Commission could not even decide if the law was enforceable.  He said they did not need a Judicial Branch to declare it unconstitutional; they just needed juries that refused to enforce it.  Mr. Hansen said they would get those.

 

Mr. Hansen wanted to remind the Committee that the Independent American Party or its candidates had gone to the Nevada Supreme Court four times.  They had received unanimous decisions in all four cases.  He said they did not go into those battles lightly.  He said none of them were wealthy.  His family faced the possibility of over $300,000 in civil penalties because they had sworn an eternal oath against tyranny.  Mr. Hansen said the forms demanded of candidates and elected officials were just one more encroachment on liberty and one more step toward fascism or some other tyrannical form of government. He asked the Committee to please follow the oath they had sworn and to abolish those civil penalties and all requirements associated with them.  He said the IAP would continue to refuse to file those forms because he believed they damaged his party and their liberty, and that they would not and could not allow it.

 

Mr. Hansen said he had personal experience with this because he was able to file a complaint against Secretary of State Dean Heller because of a negative statement Mr. Heller had made about him.  Mr. Hansen was able to use the technicalities within the law to file a complaint.  He said Mr. Heller could be represented by the Attorney General’s Office.  A regular candidate was not covered by the Attorney General’s Office.  Mr. Hansen stated that Mr. Heller had to show up and come forth with his evidence.  The evidence he gave, according to Mr. Hansen, was now very useful in the 1983 complaint that they would probably be filing against him in federal court.  “He had to give evidence against himself in order to defend himself.”  Mr. Hansen believed those were the things that were destroying the political system.  He said they might think that the public had a right to know, but the public only had the right to know if the people or the candidate were willing to voluntarily give that information.  And if he did not give that information voluntarily, then the voters had the right to not vote for the candidate.  Mr. Hansen said the Commission had destroyed their party.  He said they damaged them and their candidates.

 

Joshua Hansen, Independent American Party, said he felt that some of the people who were elected forgot that not everybody who ran for office was “big time.”  He said he certainly was not.  He said he had run when he was 20, and his campaign was like a joke because he was fresh out of high school.  He said he had received a complaint against him, and if he were not one of the Hansens, it would have been terrifying.  He wanted the Committee to keep in mind that there were “regular” people running.

 

Chairwoman Giunchigliani asked Christopher and Joshua Hansen if they were in support of A.B. 127.  They both supported it.  Christopher Hansen said he would like to see it taken further.

 

Chairwoman Giunchigliani thought people should be sensitive in this day and age because she believed they had suffered some loss of civil liberties just in the last year and they needed to be cautious regarding that subject.

 

Lucille Lusk, Nevada Concerned Citizens, said she supported A.B. 127 and would appreciate its speedy passage.

 

Kent Lauer, Executive Director, Nevada Press Association, Inc., stated that the Press Association represented 40 newspapers in the state.  He said they supported A.B. 127.  Mr. Lauer said that any law that granted an appointed body the power to police campaign speech clearly violated the First Amendment.  He pointed out that one of the most offensive aspects of the law was that it applied to any person who communicated about a candidate.  He said that person could be somebody who spoke up at a political rally, a person who wrote a letter to the editor regarding a candidate, or even a newspaper editor.  He said this law had been used against a newspaper editor in West Wendover who had written an editorial.  The editor had been forced to appear before the Ethics Commission and defend his First Amendment rights.  He said he supported the repeal of this unconstitutional law.

 

Chairwoman Giunchigliani said issues had been raised regarding other factors. She said there was other forthcoming legislation where they might want to take that up.

 

Assemblyman Conklin made a motion to accept A.B. 127 in its current form.

Assemblyman Beers seconded the motion.  The motion carried unanimously.

 

Chairwoman Giunchigliani adjourned the meeting at 4:22 p.m.

 

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Kelly Fisher

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblywoman Chris Giunchigliani, Chairwoman

 

 

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