Dehne v. Avanino
| Decision Date | 19 September 2001 |
| Docket Number | No. CV-N-99-642-DWH(VPC).,CV-N-99-642-DWH(VPC). |
| Parties | Sam DEHNE, et al., Plaintiffs, v. Skip AVANINO, in his official capacity as Chairman of the Nevada Commission on Ethics, Mario Recanzone, in his official capacity as Vice-Chair of the Commission on Ethics, Joni Wines, in her official capacity as a member of the Commission on Ethics, Peter Bernhard, in his official capacity as a member of the Commission on Ethics, Bill Flangas in his official capacity as a member of the Commission on Ethics, Todd Russell in his official capacity as a member of the Commission on Ethics, R. Hal Smith in his official capacity as a member of the Commission on Ethics, Defendants. |
| Court | U.S. District Court — District of Nevada |
Jeffrey A. Dickerson, Reno, NV, Allen Lichtenstein, Las Vegas, NV, for Plaintiff.
Nancy Lee Varnum, Commission Counsel, Nevada Commission on Ethics, Carson City, NV, for Defendants.
Before the court is defendants' motion for judgment on the pleadings or, in the alternative, motion for summary judgment (# 36). Plaintiffs filed papers in opposition to defendants' motion (# 38) and filed a counter-motion for partial summary judgment (# 39).1 Defendants replied in support of their motion (# 40) and filed an opposition to plaintiffs' cross-motion for partial summary judgment (# 41). Plaintiffs replied in support of their cross-motion for partial summary judgment (# 44). The above captioned civil action was referred to the Honorable Valerie P. Cooke, United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). The Magistrate Judge reviewed the submissions and held oral argument on May 23, 2001. The Magistrate Judge then filed her Report and Recommendation (# 47) on August 6, 2001, recommending that the court grant plaintiffs' summary judgment motion and deny defendants' motion for judgment on the pleadings and alternative motion for summary judgment. The defendant filed objections to the Report and Recommendation (# 49).
The court has performed a de novo review of those portions of the Report and Recommendation as to which objections were made. See 28 U.S.C. § 636(b)(1). Having thoroughly considered the entire case and all relevant law, the court hereby sustains the defendants' objections as to the Magistrate Judge's finding that N.R.S. § 281.551(2)(a) is overbroad, the Magistrate Judge's conclusion that the statutes are unconstitutional "as applied" to plaintiff, and the Magistrate Judge's misidentification of "N.R.S. § 281.551(2)(a)" as "N.R.S. § 281.511(2)(a)" on pages 2 and 3 for the reasons stated below. The court adopts the remainder of the Magistrate Judge's Report and Recommendation. Accordingly, the court finds that N.R.S. §§ 281.525(1) and 281.551(2)(a) violate the First and Fourteenth Amendments to the United States Constitution and grants plaintiff's summary judgment motion (# 39) and denies defendant's motion for judgment on the pleadings or alternative motion for summary judgment (# 36).
On or about March 26, 1999, plaintiff Dehne wrote a letter to the Nevada Commission on Ethics ("Commission") expressing his concern that Reno Mayor Jeff Griffin had possibly violate previous Commission ruling and possibly engaged in a conflict of interest through Mayor Griffin's alleged interaction with Krys Bart, Executive Director of the Airport Authority of Washoe County. Around the same time, plaintiff Dehne wrote a similar letter to the Commission concerning Krys Bart.
The Commission assumed jurisdiction over plaintiff's letters and treated them as requests for opinions pursuant to N.R.S. § 281.511. On June 10, 1999, the Commission held a hearing in closed session. Testimony was received from plaintiff Dehne, Mayor Griffin, Krys Bart, and others. Based on the testimony and evidence before it, the Commission determined that just and sufficient cause did not exist to proceed with the matter. Accordingly, it dismissed the matter against Mayor Griffin and Ms. Bart.
The Commission found that plaintiff Dehne's letters contained false information and were submitted in violation of N.R.S. §§ 281.525 and 281.551(2). As a result of these findings and pursuant to N.R.S. § 281.551(2)(a), the Commission imposed a civil penalty of $5,000. Additionally, if the Commission determines that a person has violated N.R.S. § 281.525(1), it is required to inform the attorney general or the district attorney. See N.R.S. § 281.525(3) (). The Commission indicated that it would inform the Washoe County District Attorney of Dehne's violation of N.R.S. § 281.525 so that the District Attorney could decide whether to proceed against Dehne under N.R.S. § 281.525 or any other applicable criminal statute.
Nevada Revised Statute § 281.525(1) provides:
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.
A person who violates N.R.S. § 281.525(1) is guilty of a misdemeanor. See N.R.S. § 281.525(2). As indicated above, the Commission determined that Dehne violated N.R.S. § 281.551(2) and imposed a $5,000 fine against him.
Nevada Revised Statute § 281.551(2)(a) states:
In addition to other penalties provided by law, the commission may impose a civil penalty not to exceed $5,000 and assess an amount equal to the amount of attorney's fees and costs actually and reasonably incurred by the person about whom an opinion was requested pursuant to NRS 281.511, against a person who:
(a) Submits to the commission, in bad faith or with a vexatious purpose, an accusation or information that is false
....
Plaintiff filed this suit against defendants on November 30, 1999. Plaintiffs' complaint (# 1) originally consisted of five claims; however, on August 29, 2000, the District Court entered an order (# 25) granting in part the Commission's motion to dismiss counts three through five. The court also granted defendants' motion as to counts one and two to the extent they requested an order striking the fine imposed against the plaintiff by the Commission. In the remaining counts one and two of the complaint, plaintiffs seek an order from the court declaring N.R.S. §§ 281.525(1) and 281.551(2) unconstitutional because they violate the First and Fourteenth Amendments of the United States Constitution. Plaintiffs also request a preliminary and permanent injunction enjoining enforcement of the statutes.
In her report, the Magistrate Judge concluded that N.R.S. §§ 281.525(1) and 281.551(2)(a) did not comport with the standards set out in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and violated the doctrines of vagueness and overbreadth. (See Report and Recommendation (# 47) at 5-12.) As noted above, the court adopts the Magistrate Judge's conclusions that the statutes violate the New York Times standards and the vagueness doctrine and that N.R.S. § 281.525(1) is overbroad. However, after reviewing N.R.S. § 281.551(2)(a), the court rejects the finding that the statute is overbroad.
A statute may be overbroad "if in its reach it prohibits constitutionally protected conduct." Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). In her report, the Magistrate concluded that N.R.S. § 281.551(2)(a) was overbroad because "[e]ven if the allegations of the complaint are true, a citizen may nevertheless be charged with a misdemeanor or a fine of up to $5,000.00 because the Commission finds the complaint was lodged in bad faith or for a vexatious purpose." (Report & Recommendation (# 47) at 12.) However, in reading the statute, this court concludes that N.R.S. § 281.551(2)(a) requires that the statement be: (1) an accusation or information; (2) made in bad faith or with a vexatious purpose; and (3) false. Accordingly, the court sustains defendants' objection as to the finding of N.R.S. § 281.551(2)(a) as overbroad but adopts the remainder of the report and recommendation pertaining to the facial unconstitutionality of the statutes.
On page 14 of her report and recommendation, the Magistrate Judge concludes "Nevada Revised Statutes §§ 281.525(1) and 281.551(2)(a) are unconstitutional both on their face and as applied to plaintiff Dehne." (See Report and Recommendation (# 47) at 14.)
Facial and as applied arguments are two separate bases for challenging the constitutionality of a statute, and the litigant must specify whether they wish to challenge the statute on either or both of these grounds. There are two ways an ordinance may be argued as facially unconstitutional: (1) as unconstitutional in every conceivable application, or (2) as unconstitutionally overbroad. A finding that a statute is facially unconstitutional results in invalidation of the law itself. Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.1998) In contrast to a facial challenge, "[a]n as-applied challenge contends that the law is unconstitutional as applied to the litigant's particular speech activity, even though the law may be capable of valid application to others." Id. If the litigant is successful in their challenge, the law itself is not struck but only the particular application of the law in the litigant's case. Id.
In this court's order of August 29, 2000 the court dismissed all of plaintiff's claims except for the claims that the statutes were facially unconstitutional under the First...
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