Carson City (Monday), May 12, 1997

Senate called to order at 10:48 a.m.
President Hammargren presiding.
Roll called.
All present.

Prayer by The Reverend William McCord.
O Lord our God, make Thy presence known to those gathered here today. May they be aware of the many blessings that they have received from Your bounty. May they have the strength of their convictions that what they are doing is in accordance with Your will. Especially, O Lord, may they, through legislation, look after those who are the least of our society who can do little to look after themselves. This we pray in Thy Holy Name.

Amen.

Pledge of allegiance to the Flag.

Senator Raggio moved that further reading of the Journal be dispensed with, and the President and Secretary be authorized to make the necessary corrections and additions.
Motion carried.

William J. Raggio,

Chairman

Assembly Chamber, Carson City, May 9, 1997

To the Honorable the Senate:
I have the honor to inform your honorable body that the Assembly on this day passed, as amended, Senate Bill No. 81, and respectfully requests your honorable body to concur in said amendment.
Also, I have the honor to inform your honorable body that the Assembly on this day passed, as amended, Assembly Bills Nos. 67, 171, 333.
Also, I have the honor to inform your honorable body that the Assembly on this day passed Assembly Joint Resolution No. 10.
Also, I have the honor to inform your honorable body that the Assembly on this day passed, as amended, Assembly Joint Resolution No. 5.

Jacqueline Sneddon

Assistant Chief Clerk of the Assembly

Assembly Joint Resolution No. 10.
Senator Rawson moved that the resolution be referred to the Committee on Judiciary.
Motion carried.

By the Committee on Finance:
Senate Bill No. 385--An Act making an appropriation to the University and Community College System of Nevada to employ a health care program developer to conduct a feasibility study for the consolidation of all health sciences professions into one administrative unit; and providing other matters properly relating thereto.
Senator Raggio moved that the bill be referred to the Committee on Finance.
Motion carried.

By the Committee on Finance:
Senate Bill No. 386--An Act making appropriations to the University and Community College System of Nevada for a dental clinic and dental residency program and to the State Public Works Board for the remodeling of an existing building to house the program; and providing other matters properly relating thereto.
Senator Raggio moved that the bill be referred to the Committee on Finance.
Motion carried.

By the Committee on Finance:
Senate Bill No. 387--An Act relating to information concerning persons; establishing a repository for information concerning missing persons; establishing a toll-free telephone service for the dissemination of information concerning missing persons; revising various provisions governing the transmission of information concerning missing persons; making an appropriation to certain counties for equipment to allow coroners to access the central repository of Nevada records of criminal history; requiring peace officers to prepare reports concerning domestic violence for inclusion in the central repository; requiring the central repository to prepare and submit a statistical report concerning domestic violence to the legislature; and providing other matters properly relating thereto.
Senator Raggio moved that the bill be referred to the Committee on Finance.
Motion carried.

Assembly Bill No. 67.
Senator Rawson moved that the bill be referred to the Committee on Government Affairs.
Motion carried.

Assembly Bill No. 171.
Senator Rawson moved that the bill be referred to the Committee on Government Affairs.
Motion carried.

Assembly Bill No. 333.
Senator Rawson moved that the bill be referred to the Committee on Transportation.
Motion carried.

Dear Senator Raggio:

You have asked this office to analyze the constitutionality of Amendment No. 336 to Senate Bill No. 215. It is the opinion of this office that Amendment No. 336 to Senate Bill No. 215 will withstand constitutional scrutiny.

Amendment No. 336 would authorize the Commission on Ethics (the Commission) to hold a hearing and render an opinion as to whether a person has violated sections 15 or 16 of Senate Bill No. 215 (S.B. 215). Section 15 of S.B. 215 prohibits a person from causing to be published a false statement of fact about a candidate or a question on a ballot if that false statement is made: (1) with the intent to impede the success of the campaign of that candidate or ballot question; and (2) with actual malice. Actual malice is defined in subsection 5 of section 15 of S.B. 215 as "knowledge of the falsity of a statement or reckless disregard for whether a statement is true or false." Section 16 of S.B. 215 prohibits a person from willfully performing an act that impedes the success of a campaign of a candidate or the campaign for the passage or defeat of a ballot question. Section 16 of S.B. 215 also prohibits a person from inducing another to perform an act to impede the success of the campaign of a candidate or the campaign for the passage or defeat of a ballot question if the person acts: (1) willfully; and (2) with the intent to impede the success of the campaign. Pursuant to Amendment No. 336, the Commission is required to hold a hearing to determine whether a person has violated section 15 or section 16 of S.B. 215 within 15 days after certain persons request an opinion on the matter. In making its determination as to whether section 15 or 16 of S.B. 215 has been violated, the Commission must find by clear and convincing evidence that all of the elements of the offenses described in section 15 or 16 have been met. If the Commission determines that a violation has occurred, it may impose a fine of up to $10,000, or of up to $30,000 if the violation occurred within 10 days before an election. If the Commission is unable to render a final opinion as to whether a violation of section 15 or 16 of S.B. 215 has occurred within three days after the hearing, it may continue its jurisdiction as to those issues but must, within the three days, render an opinion as to whether the alleged false statement was true or false or whether the person performed an act that impeded the success of a campaign or induced another to perform an act that impeded the success of a campaign.

The United States Supreme Court has recognized that the First Amendment to the United States Constitution affords broad protection to political speech, but that certain calculated falsehoods do not fall within that protection. New York Times Co. v. Sullivan, 84 S. Ct. 710, 726 (1964). In New York Times, the Court held that the First and Fourteenth Amendments require a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves, with clear and convincing evidence, that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The rule of New York Times was based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society's interest in the protection of individual reputation. Although the U.S. Supreme Court acknowledges that debate on public issues should be uninhibited, robust and wide open, it has also held that calculated falsehoods fall into the class of utterances which do not play an essential part in the exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Garrison v. State of Louisiana, 85 S. Ct. 209, 216 (1964). Therefore, the U.S. Supreme Court has held that statements that are shown by clear and convincing evidence to have been made by a person who knew the statements to be false or who recklessly disregarded the truth or falsity of the statements do not enjoy constitutional protection. Id.; New York Times, 84 S. Ct. at 729.

Cases decided by the United States Supreme Court subsequent to New York Times, have made it clear that the actual malice standard is not limited to those persons in public office or to the performance of official acts or even to conventional civil suits. In Monitor Patriot Co. v. Roy, 91 S. Ct. 621,626 (1971), the U.S. Supreme Court held that the New York Times rule applied with equal force to statements made about candidates for public offices concerning anything that might touch on the candidate's fitness for office. See also Ocala Star-Banner Co. v. Damron, 91 S. Ct. 628 (1971). Lower federal courts have also held that, for a commission or administrative body to find that a person has defamed a candidate or public officer, that candidate or public officer must show, by clear and convincing evidence, that the person acted with actual malice. Pestrak v. Ohio Elections Comm'n, 926 F.2d 573, 578 (6th Cir. 1991); Vanasco v. Schwartz, 401 F. Supp. 87 (S.D.N.Y. 1975), summarily aff'd, 96 S. Ct. 763 (1976) (striking down as unconstitutional laws that allowed an administrative body to find actual malice on a showing of less than clear and convincing evidence). These lower courts have also held that if a state authorizes a commission or an administrative body to determine whether a false statement was made with actual malice, it must provide for immediate judicial review of such a determination. Vanasco, 401 F.2d at 99; Pestrak, 926 F. 2d at 578. Immediate judicial review is necessary because "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression." Freedman v. Maryland, 85 S. Ct. 734, 738-39 (1965) (holding that procedural scheme for censoring motion pictures failed to provide adequate safeguards to protect First Amendment because placed burden on censored party to persuade court that film was protected expression and because did not provide for prompt judicial determination).

Amendment No. 336 appears to satisfy the constitutional standards expressed in New York Times and its progeny because it expressly incorporates the language from New York Times concerning actual malice and provides for the procedural safeguards that will ensure the necessary sensitivity to freedom of expression. First, the amendment provides that the Commission must find by clear and convincing evidence that all of the elements of section 15 or 16 of S.B. 215 have been met, including a finding of actual malice. Therefore, the amendment incorporates the exact language of the rule enunciated in New York Times requiring a finding of actual malice and includes the requirement set forth in the holdings of the Court in New York Times and the lower federal courts that actual malice must be shown by clear and convincing evidence. In addition, the amendment provides that a final opinion of the commission is subject to judicial review pursuant to NRS 233B.130 and that the district court is required to accord priority to a petition for judicial review of a final opinion of the Commission over other civil matters that are not expressly given priority by law. The amendment also authorizes the district court to provide for expedited review, including shortened periods for the filing of documents. Therefore, the amendment provides the procedural safeguards that the United States Supreme Court and lower courts have stated are necessary when important First Amendment expression is involved. See Freedman v. State of Maryland, 85 S. Ct. 734 (1965); United States v. Thirty-Seven Photographs, 91 S. Ct. 1400 (1971), reh'g denied, 91 S. Ct. 2221 (1971); Blount v. Rizzi, 91 S Ct 423 (1971); Pestrak v. Ohio Elections Commission, 926 F.2d 573 (6th Cir. 1991); Vanasco v. Schwartz, 401 F. Supp. 87 (S.D.N.Y. 1975).

Amendment No. 336 also provides that if the Commission needs additional time to determine the intent or state of mind of a person alleged to have violated the provisions of section 15 or 16 of S.B. 215 or to determine the amount of any civil penalty that may be imposed, the Commission may continue its jurisdiction as to those issues but is required, within three days after the hearing, to render its opinion as to the truth or falsity of the statement or as to whether the act to impede the success of a campaign or to induce another to impede the success of a campaign occurred. In this role, the Commission would essentially be acting as a fact finding body. The Sixth Circuit Court of Appeals, based on substantial legal authority, has determined that, in making public judgments as to the truth or falsity of statements or actions of those intimately involved in the political process, a commission or administrative body does not violate the First Amendment. Pestrak, 926 F.2d at 579-80. The Pestrak court noted that we regularly see various high officials of the executive and legislative branches and governmental agencies asserting the falsity of statements made by political opponents and the truth of statements made by persons with which they agree. Id. (citing Block v. Meese, 793 F.2d 1303, 1314 (D.C. Cir. 1986), cert. denied, 106 S. Ct. 3335 (1986); reh'g denied, 107 S. Ct. 1989 (1987)). Furthermore, the court noted that government funded and sponsored news media, such as National Public Radio and the Corporation for Public Broadcasting, regularly issue statements as to the truth or falsity of statements made by public officials. Id. (citing Accuracy In Media v. Federal Communications Comm'n, 521 F.2d 288 (D.C. Cir. 1975), cert denied, 425 U.S. 934 (1976)). The Pestrak court, therefore, held that because this type of speech by government officials and agencies concerning the truth or falsity of statements had not had a chilling effect on free speech, the function of the commission, in that case, to declare the truth or falsity of statements did not violate the First Amendment. Id.

Based on the reasoning of the Sixth Circuit Court of Appeals in Pestrak and the legal authority upon which that decision was based, it is the opinion of this office that authorizing the Commission to declare its opinion as to whether a statement is true or false or whether a particular act has occurred does not violate the First Amendment. In performing this role, the Commission may not impose any penalty and therefore is unlikely to cause any chilling effect on free speech. A penalty may only be imposed pursuant to a final opinion of the Commission that all the elements of the offense, including the proper intent and, if necessary, the proper state of mind, have been shown by clear and convincing evidence.

In conclusion, because Amendment No. 336 incorporates the requirements of New York Times and its progeny by requiring that the Commission may impose a civil penalty for a violation of section 15 of S.B. 215 only if it finds by clear and convincing evidence that a person acted with actual malice, it is the opinion of this office that the Commission's authority to make this determination is constitutional. Furthermore, it is the opinion of this office that because any final determination made by the Commission as to whether section 15 or 16 of S.B. 215 have been violated must be based on clear and convincing evidence and must be subject to an expedited review by a district court, the procedural safeguards necessary to protect important First Amendment interests are provided in S.B. 215. Finally, it is the opinion of this office that allowing the Commission to render its opinion as to the truth or falsity of a statement or as to whether a person has performed an act that impeded a campaign or induced another to impede a campaign, without making a finding as to the intent or state of mind of that person, does not violate the First Amendment because it is unlikely to have any chilling effect on free speech.

If you have any further questions regarding this matter, please do not hesitate to contact this office.

Very truly yours,

Brenda J. Erdoes
Legislative Counsel

By_______________________
Sue S. Matuska
Deputy Legislative Counsel
Senator Titus:
Thank you, Mr. President. I am opposed to this amendment giving the Ethics Commission a longer amount of time to render an opinion in a negative campaign case. I hate to say I told you so, but I must. Last week when I argued that these cases should go to the Secretary of State rather than the Ethics Commission, I repeatedly made the point that the Commission lacks the resources to conduct such hearings in an expeditious manner.
Let's look at this amendment. Now you want to give the Commission 15 days to hold a hearing, another 3 days to reach an opinion, another possible 15 days for a continuance; and then if they still can't reach a decision, they can take as long as they need. This is ridiculous; even 10 days can be a lifetime in a political campaign, especially with early voting.
This amendment is a classic example of the symbolic use of politics, as described by legal scholar, Murray Edelman. It is a political hodge podge that is so confusing it may sound good, but it will do nothing substantive to address the problems of negative campaigning which plague our electoral process.

Senator Adler:
Thank you, Mr. President. I agree with the proponent of the amendment that this amendment is probably a constitutional process, but the problem we are going to have with this amendment is the implementation. Since it follows the "New York Times" case, one must prove actual malice which is a very, very difficult thing to prove. Actual malice must be proven by clear and convincing evidence which is an extremely high evidentiary standard. As a practical matter, you are going to see very few cases which will ever meet this high standard. So, from that regard, I wonder how much good this really does in passing this amendment before us today. Perhaps it should be looked at and dealt with in another fashion. It would be difficult to present this to an administrative body and be able to (1) jump the hurdle of actual malice and (2) high jump the clear and convincing evidence standard to actually prove a case in an election campaign. In fact, in most cases, even if the statement was false, that is not going to be enough. You are going to have to show that the candidate had actual malice and had an evil heart which drove him to try to destroy his opponent. And, you are going to have to show malice by clear and convincing evidence. That is going to be so difficult that this procedure is going to be all but ineffective.

Senator O'Connell:
Thank you, Mr. President. I think the value of the amendment is being overlooked. Truthfully, it is going to take awhile to prove actual malice; however, what it will do and what it will do much sooner than can be done now, is it will give the opportunity of knowing whether or not a statement that has been made was true, especially when it involves a voting record. Everyone in this chamber knows that the way a bill initially comes out is not the way it usually ends up. Many times an amendment, offered on the floor, can change the direction of the bill. If someone is stating that you voted one way or another, that can be clarified very quickly. I think that is very important to voters.

Senator Coffin:
Thank you, Mr. President. I rise to ask a question since I have not had time to read and digest this new amendment presented to us this morning nor the opinion of the Legal Counsel. Does this affect the burden of proof and where does the burden of proof rest? I heard the Chairman of the Finance Committee mention the burden of proof. I am not an attorney so forgive me if this sounds like a dumb question. Who is required to submit the burden of proof?

Senator Raggio:
If I may respond to the question, Mr. President. As I indicated in the short explanation, if you look at subsection 7 of the amendment, it specifies that the requester of the opinion has the burden of proving the allegation is untrue. The actual malice cannot be presumed. All final opinions of the Ethics Commission must be supported by clear and convincing evidence. That is about as clear as can be stated and is also upon recommendation of our Legislative Counsel.

Senator Coffin:
May I ask to engage the Majority Leader in a dialogue on this amendment? I do not want to discuss the bill itself, but only the amendment before us today. Does this means that the person who feels offended has to prove that this is an incorrect assertion made by his opponent? Wouldn't it be difficult to produce clear and convincing proof?

Senator Raggio:
No, I believe it is quite the contrary. It is very clear that, if you are going to request an opinion where someone has said something untrue about you during your campaign, you have the burden to present to the Ethics Commission your request for an opinion and the basis upon which you believe that is untrue. The other person who made the statement is notified. That person has the opportunity to present whatever documentary evidence he or she desires to present. This morning we authorized additional funds for the investigative process of the Ethics Commission. The Ethics Commission will have the authority to request any additional information they need during that period of time. The burden of proof still remains on the person who feels they have been maligned. That person would have to request an opinion from the Ethics Commission. You need to also submit documentary evidence that the statement made against you is untrue.

Senator Coffin:
Thank you, Mr. President, to you and through you to the Senator from Washoe County. Thank you for the explanation. Let me try to give you an example of a real life incident which occurred, during my last campaign, which would show that this could prove unworkable in practice. We had a mailer which came out during the concluding weeks of the campaign. It stated that, seven years before, I had broken a law. That would be the allegations made by the opponent in the congressional campaign, that false travel vouchers had been filed and also fraudulent vouchers as well. If this law had been in place in 1996, I would have had to take 10 days to prove this to be untrue, which is about what it took me to do. I needed to go back a find all my old tax returns, look at my credit card receipts and show that I paid for my tickets for which I filed legitimate expense vouchers on the Monday following travel. That routine has not changed. We had been reimbursed for mileage incurred since 1964. In 1991, this was changed to actual expense. Many of you saw a copy of this mailer, which is pertinent to this amendment since it said that a news story was broken by a television station asserting fraudulent travel vouchers. That news story did not break nor did it ever occur. I would have had to, under this scenario, force that station to give to me a story which proved the negative and that they did not file a fraudulent travel voucher story. Anytime you try to get something from a media outlet, it is tough. It is easier to get it from a newspaper, but the electronic people are much more afraid of being sued. All of this takes a lot of time to be able to disprove the allegation. Being accused of this by mail, and hearing about it days later in the last days of the campaign, you are now in the threshold as proposed by this amendment. It takes a lot of time to gather that data to disprove the allegation against you. The Legislative Counsel said that these were not correct statements. Even though the candidate in question had a copy of his opinion, he still went ahead with his allegations. This proves that this amendment will not work. Members of both parties have been victims of these kinds of things and is not new to any of us. If, as the Senator from Clark County said that this is symbolic politics, I hope it is not intentionally symbolic politics, but in fact it could be. In essence, the amendment makes it really impossible for the complainer to be able to allege impropriety without them running the risk of being sued themselves that he had mud slung at him with or without malice. I am worried about this part of the amendment. It was difficult to get the press to cover that aspect during the campaign; however, they have since become aware of the falsehoods presented. I say to you, how in the heat of a campaign could we possibly receive justice for our candidates with this kind of an amendment?

Senator Neal:
Thank you, Mr. President. I have a question relative to page 4 of this amendment. It makes reference to "judicial review." As I understand that term, it most appropriately refers to reviewing of laws made by the Legislature rather than opinions or decisions made by a commission. First of all, what is NRS 233B.130 that is made reference to here in judicial review?

Senator James:
Thank you, Mr. President, through you to the Senator from North Las Vegas. NRS 233B is the Administrative Procedures Act which provides for judicial review of agency decisions by courts. This is the appropriate means of review because this is an agency making a decision. The judicial review we are talking about here is not a court reviewing an act of the Legislature for its constitutionality. It is a court reviewing an action of an administrative agency, its fact finding and its application of the law, in sitting as an appellate court. It can review de novo some factual determinations of the court below if the Legislature has given them that responsibility. Normally, the judicial review is to defer to the fact findings of the agency below, but to look de novo, which means completely anew, at the legal applications.
If I could go on, Mr. President, and speak on other issues. Let me make clear before I say anything that I am not commenting on the specific fact situation that the Senator from District 3 outlined, but just to address the concerns he raised therein.
All three of those who have risen in opposition to the amendment seem to be saying that the amendment is too cumbersome and does not go fast enough in order to give a remedy when a falsehood has been uttered in the campaign. That is true, but now we have no remedy. What is in this amendment is a procedure we have flushed out through two amendments and a legal opinion on its constitutionality to try to give a remedy where none exists at all presently in the law. The Senator from District 3, who indicated in his opinion that it would not be fast enough, without this amendment and the bill he would have no alternative but to go to the courts where his only remedy would not be a decision on the ethics, the standards or the truth of the statement. But if he could prove by the same standards that there was a falsity, he might try to get money damages. I think in most political campaigns there would merely be nominal damages. That is not going to occur in 10 or 15 days down the road, but could take one to five years. What the proposers of this amendment are trying to do is to, within the constitutional limits which are extremely difficult, give some remedy within those limits when there has been a falsehood in a campaign. They want to clean up campaigns. It is a difficult thing to do, but this amendment does it as good as it possibly can be done. Felony crime was not appropriate, so we took that out. The other proposals were not appropriate. The Ethics Commission, which is charged and has been given augmented authority and budgets to handle this issue is who should do it.
Let me state, in conclusion, that "yes" these standards are difficult. What we are talking about here is free, open and robust debate in political campaigns. You should not go out there and lie, but nothing that we do here should chill that open and robust debate. Those are the words of the Supreme Court in the New York Times case against Sullivan. Those are the words they used, to preserve that free open and robust debate in political campaigns and not to hang a sword of Damocles over the head of any candidate or elected official running for office. If they say something wrong, or forget to check their facts, they should not go to jail or have some civil fine issued against them. The standard is very high, but let me remind the three Senators that this is the exact same standard, page 4 of the amendment, subsection 7, there is nothing new that is not already in our constitutional law. (1) The person who alleges there has been a falsehood, has the burden of proof. (2) That the person has to have acted with actual malice. You have to have intended or have been in reckless disregard of the truth or falsity of the statement when you make it. (3) You have to prove those things by clear and conclusive evidence. That is already the law. We have just adopted it into this measure and have given expeditious means to the Ethics Commission of applying that law so that candidates who truly are wronged by a falsity have some expeditious remedy to get that information out to the voters before the polling day. This is a good amendment. It makes this bill better. Everyone in this chamber should support it.

Senator Adler:
Thank you, Mr. President. I believe there is some confusion about what this amendment does. Getting back to Senator Coffin's campaign where his opponent accused him of an illegality. With the standard that is in this bill where one must show malice by clear and convincing evidence, I would suggest all your opponent would have to do is bring in the attorney who interpreted your conduct as being criminal to testify. If he said he advised his client that he thought it was criminal behavior, then there is no violation. Obviously, your opponent did not have actual malice if he was consulting with counsel concerning your conduct. As to what this amendment does, it does not really do that much. It would be the exceptional case where one could show malice by clear and convincing evidence. If you think someone is clearly out to get you, then you have to prove it by clear and convincing evidence. This amendment does not prevent someone from lying about you. However, if they do lie about you, they need to do so negligently and not with malice. They can be negligent in representing the facts about you which is acceptable under this amendment. They can't set out and do it with actual malice. If their campaign consultant had malice, but they did not, then there is no penalty. My point, concerning this amendment is this, is it worth cluttering up what is otherwise a pretty good piece of legislation by tacking on this amendment which only kicks in in the exceptional case where you can show that the candidate had the malicious intent to damage you through a falsehood? This does not do anything and is not worth the effort.
The other question I have concerning the amendment is that it references NRS 233B which allows the court to review it as to whether or not the administrative agency's findings were clearly erroneous in view of the evidence. I am not sure that is the proper standard. In reading the legal opinion, I think they need to grant the person who is being accused of the falsehood a trial de novo to evaluate all of the facts. We should not kid ourselves what this amendment is going to do because it will not do anything the way it is drafted.

Senator Coffin:
Thank you, Mr. President. I will address this to the Chairman of the Judiciary Committee. Is there anything in the bill, if we adopt this amendment, that would provide equal burden of proof? Is there anything wrong with putting equal burden of proof into this bill so that simultaneously with the request the person who has made the allegation that you have done something wrong, that you could bring in the accuser? We know that they asked for copies of my travel records and had them in their possession since March, yet the accusation did not come forth until the end of the campaign. If we adopt this amendment, is it possible to simultaneously request that the accuser in the campaign put up or shut up. Can we do that?

Senator James:
I would say that the manner in which this bill works, that it requires the person to go forward with some evidence. In these cases, truth is always a defense. If the other person can prove that what they said was true, then it would be incumbent upon them to do that. Furthermore, the bill sets forth procedurally, in the hearing that is set up, the person being accused would come forward and offer any evidence that they may have. I believe that effectuates what the Senator is talking about and does put the parties together in a hearing. As a result of that, it will bring out the truth. No, we are not allowing a person to merely make an accusation that there has been a falsity, but thereby call the other person in, place the burden squarely on them and have them prove that what they said was true. That is the very part that would be unconstitutional. Then you would have to justify everything that you said during the campaign if the other side said that "no" he was not right. You must go ahead and prove that, not only was it untrue, but that the person acted in reckless disregard of the truth or falsity of the statement.
If I may address the Senator from Carson City who says that the bill is not going to do anything because of the standard in it. His argument is not with this legislative body, his argument is with the Supreme Court of the United States who set the standard. Nothing in this amendment is changing the standard. We all must abide by it.

Senator Titus:
Thank you, Mr. President. I'd just like to make a few points in response to some of the debate that has gone on this morning.
First, there have been a number of references to the Sullivan v. New York Times case which established a so-called precedent in this area. Let us not forget, however, that there was no intermediary body, such as the Ethics Commission, involved in that case. So there is a major difference between what this amendment proposes and the Sullivan, First Amendment, free speech ruling.
Second, I keep hearing that the Secretary of State is an inappropriate office to handle the issue of campaign lies. Why then is it the appropriate office to handle all other election and campaign laws, including financial disclosure? I've heard the sponsor of this amendment and the chair of the Judiciary Committee both ask, "What if it's the Secretary of State's race in question?" Well, what if he/she is involved in a race where financial disclosure is at issue? They know the answer as we all do: should such a situation arise, the Secretary of State will automatically refer the case to the Attorney General for investigation and prosecution.
Third, I'd like to ask the proponents of this amendment, if they truly want to clean up negative campaigning and punish liars, would they be willing to support a measure whereby no candidate can be certified the winner of an election until all complaints are resolved?

Senator Raggio:
Mr. President, I have not heard any issue argued more vociferously than this amendment which does only a few things as I indicated in my opening statement concerning Amendment No. 336.
First of all, having said it at least three times, let me say again that the reason that the Ethics Commission is the body to conduct the investigation and make these decisions is because the Secretary of State is an individual who presently, under the election laws of this state, makes only ministerial decisions. Anyone can determine whether someone files a report late or leaves something out. That is understood. This requires a hearing and a hearing body to make that decision.
Secondly, I do not know where the speaker got the information that it automatically goes somewhere else if it occurs with reference to the Secretary of State. To my knowledge there is nothing that says this, but I think the Ethics Commission is the most appropriate body we could determine to hear these kinds of matters. We are concerned about campaign reform which involves ethics and standards. That is the reason we have placed it under the Ethics Commission. If someone would like to propose a better body, let's not beat this to death. Let's come up with something positive. The Ethics Commission is still the best body we have devised to deal with ethics in campaigning. That is the reason it is there.
Other speakers have persisted in overlooking one of the provisions in this amendment. It was assumed, but this makes it clear. I would direct the Senator's attention to subsection 8. If you read it carefully, you will see that it spells out the authority of the Ethics Commission to investigate issues and render an opinion as to the truth or falsity of the statement made concerning the candidate or the ballot question. It can do that without a determination of actual malice. It does do something we do not have today. They can continue on and meet the constitutional requirements set forth to determine actual malice thereafter and render sanctions. But, at least for one time, we will have the opportunity for someone during a campaign to come forth and request an opinion.
Senators Rhoads, McGinness and Jacobsen moved the previous question. The question being on the adoption of Amendment No. 336 to Senate Bill No. 215.
Motion carried.
Amendment adopted.
Senator Coffin requested that the record reflect that he had voted no on the amendment.
Bill ordered reprinted, engrossed and to third reading.

Assembly Bill No. 29.
Bill read third time.
Roll call on Assembly Bill No. 29:
Yeas--17.
Nays--Augustine, O'Connell, O'Donnell, Washington--4.
Assembly Bill No. 29 having received a constitutional majority, Mr. President declared it passed, as amended.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 102.
Bill read third time.
Remarks by Senator Raggio.
Roll call on Assembly Bill No. 102:
Yeas--21.
Nays--None.
Assembly Bill No. 102 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 122.
Bill read third time.
Roll call on Assembly Bill No. 122:
Yeas--21.
Nays--None.
Assembly Bill No. 122 having received a constitutional majority, Mr. President declared it passed, as amended.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 134.
Bill read third time.
Roll call on Assembly Bill No. 134:
Yeas--21.
Nays--None.
Assembly Bill No. 134 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 159.
Bill read third time.
Roll call on Assembly Bill No. 159:
Yeas--21.
Nays--None.
Assembly Bill No. 159 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 231.
Bill read third time.
Roll call on Assembly Bill No. 231:
Yeas--21.
Nays--None.
Assembly Bill No. 231 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 241.
Bill read third time.
Roll call on Assembly Bill No. 241:
Yeas--21.
Nays--None.
Assembly Bill No. 241 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 261.
Bill read third time.
Roll call on Assembly Bill No. 261:
Yeas--21.
Nays--None.
Assembly Bill No. 261 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

Assembly Bill No. 328.
Bill read third time.
Roll call on Assembly Bill No. 328:
Yeas--21.
Nays--None.
Assembly Bill No. 328 having received a constitutional majority, Mr. President declared it passed.
Bill ordered transmitted to the Assembly.

On request of Senator Mathews, the privilege of the floor of the Senate Chamber for this day was extended to Moya Lear.

On request of Senator Neal, the privilege of the floor of the Senate Chamber for this day was extended to former Senator Wilbur Faiss.

On request of Senator Regan, the privilege of the floor of the Senate Chamber for this day was extended to former Senator Al Allerman.

On request of Senator Raggio, the privilege of the floor of the Senate Chamber for this day was extended to Mrs. Dorothy Raggio and Mrs. Lois Drazkik.

On request of Senator Townsend, the privilege of the floor of the Senate Chamber for this day was extended to teachers; Mrs. Diane Boone and Ms. Lisa Mortara and the following students from Wooster High School: Bryan Blakley, Gloria Diaz, Shaun Dutra, Jason Gray, Kevin Kallio, Melissa Larsen, Wayne Mulei, Daniel Ortega, Troy Owen, Nathan Penrod, Stephanie Roberts, Melissa Ruyle, Dustin Shreve, Casey Strong, Lawrence Tam. Douglas Turley, Rebecca Walls, Cristian Baca, Daryl Berkley, Ricardo Cadillo, Andrea Collazo, Joshua Flippo, Jose Gonzalez, Will Goodrich, Raul Guzman, Michael James, Glenna Keene, Eddy Lopez, Gina Mollinet, Jesse Northrop, Tawny Parker, Matthew Peterson, Jamar Walker, Charlemagne Alegre, Kyle Bridges, Jason Bronson, Cristy Goodman, Kevin Healy, Dennis Krause, Charles Mela, Jesse Northrop, Marcina Riley, Joseph Skipper, Shauna Smith, Michael Teague, Jason Wysong, Aimee Adams, Robin Bergstrom, Amanda Bosch, Tara Bukszar, F. L. Busch, Douglas Carling, Tara Crouse, Sara Davis, Natacha Faillers, Peter Gannon, Victor Garcia, Nicholas Hackstaff, Karin Hardegree, Lindsay Marshall, Christopher Mcgill, Pamela Moody, Dan Pacia, Jeffrey Peterson, Jeremy Phillips, Brad Pillsbury, Jessica Reese, Christina Sandoval, Tiffany Schwartzman, Tracey Sondag, Katherine Thompson, Joseph Trischetti, Joseph Uccelli, Jason Weaver and Tonya Yancey.

Senator Raggio moved that the Senate adjourn until Tuesday, May 13, 1997 at 10 a.m.
Motion carried.

Senate adjourned at 12:14 p.m.

Approved:

Lonnie L. Hammargren, M.D.

President of the Senate

Attest: Janice L. Thomas
Secretary of the Senate