02-15 & 02-16

In the Matter of the Request For Opinion Concerning the Allegation that FRANCIS ALLEN, candidate for State Assembly District 37, Impeded the Success of the Campaign of EARLENE FORSYTHE, candidate for State Assembly District 37, in violation of NRS 294A.345.

In the Matter of the Request For Opinion Concerning the Allegation that NEVADA REPUBLICAN LIBERTY CAUCUS a.k.a. NEVADA LIBERTY CAUCUS Impeded the Success of the Campaign of EARLENE FORSYTHE, candidate for State Assembly District 37, in violation of NRS 294A.345.

This matter came before the Nevada Commission on Ethics (hereinafter the “Commission”) for hearing on September 27, 2002, pursuant to NRS 281.477, upon Request for Opinion No. 02-15 submitted on or about September 6, 2002, by Earlene Forsythe, candidate for State Assembly District 37, and her husband, Dr. James Forsythe, alleging that Francis Allen, candidate for State Assembly District 37, violated the provisions of NRS 294A.345; and Request for Opinion No. 02-16 submitted on or about September 6, 2002, by Earlene Forsythe, candidate for State Assembly District 37, and her husband, Dr. James Forsythe, alleging that Nevada Republican Liberty Caucus a.k.a. Nevada Liberty Caucus (hereinafter “Nevada Republican Liberty Caucus”) violated the provisions of NRS 294A.345. Dr. and Mrs. Forsythe allege that Francis Allen and Nevada Republican Liberty Caucus impeded the success of Mrs. Forsythe’s campaign by publishing false statements of fact about her and her husband with actual malice and the intent to impede the success of her campaign.

Request for Opinion No. 02-15 and Request for Opinion No. 02-16 were consolidated for purposes of the Commission hearing and the written opinion. Notice of the hearing was properly posted and served. Dr. and Mrs. Forsythe were present with their legal counsel Pat Lundvall, Esq., of the law firm McDonald Carano Wilson McCune Bergin Frankovich & Hicks, LLP. Both Dr. Forsythe and Mrs. Forsythe presented sworn testimony. Francis Allen was present with her legal counsel, Frank J. Cremen, Esq., and presented sworn testimony. George E. Harris, Chairman, Nevada Republican Liberty Caucus, was present and provided sworn testimony. Dan Burdish, member, Nevada Republican Liberty Caucus, was present and provided sworn testimony.

The Commission, after full consideration of the record in this matter, makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Earlene Forsythe was an unsuccessful Republican candidate for State Assembly District 37 (Clark County) in the 2002 Primary election (held September 3, 2002), losing by nine votes to Republican candidate Francis Allen.

2. Prior to becoming a candidate for State Assembly District 37, Mrs. Forsythe was a resident of Reno, Nevada, and considered being a candidate for the office of Mayor of Reno. Mrs. Forsythe’s interest in running for the office of Mayor of Reno was published in the Reno News and Review on November 29, 2001; Mrs. Forsythe purchased billboard space to promote her anticipated campaign; Mrs. Forsythe solicited support for her candidacy; and Mrs. Forsythe’s daughter interviewed at least one person for a prospective position with Mrs. Forsythe’s campaign. On Wednesday, February 6, 2002, the Reno Gazette-Journal reported that on Tuesday, February 5, 2002, Mrs. Forsythe announced that she would support Reno Mayor Jeff Griffin for re-election and not run against him. Mrs. Forsythe never filed a declaration of candidacy for Mayor of Reno, she never received campaign contributions as a candidate for Mayor of Reno, and her name was never on a ballot as a candidate for Mayor of Reno.

3. James W. Forsythe, M.D., is Mrs. Forsythe’s husband. Dr. Forsythe is a medical doctor certified by the Nevada Board of Medical Examiners and the Nevada Board of Homeopathic Medical Examiners.

4. In February 2002, Dr. and Mrs. Forsythe moved to Las Vegas and purchased a home in Assembly District 37.

5. On May 6, 2002, Mrs. Forsythe officially filed as a candidate for State Assembly District 37.

6. Mrs. Forsythe has lived in Nevada for approximately 40 years. Mrs. Forsythe is a licensed Registered Nurse (R.N.). She graduated from the University of Nevada, Reno, in 1972 with a Bachelor of Science degree in nursing. She subsequently earned a Masters degree in nursing and a nurse practitionership. Mrs. Forsythe is presently in good standing with the Nevada Nursing Board. Mrs. Forsythe is not trained or licensed in homeopathic medicine.

7. Mrs. Forsythe and her husband, Dr. Forsythe, own and operate Medical Billing Consultants, a clinic in Las Vegas involving consultation with cancer patients on traditional medical treatment. Dr. and Mrs. Forsythe intended to develop a cancer treatment center in the Las Vegas clinic after Mrs. Forsythe completed her political campaign.

8. Since 1985, Mrs. Forsythe and her husband, Dr. Forsythe, have owned and operated Cancer Screening and Treatment Center of Nevada, a conventional cancer clinic in Reno. Dr. and Mrs. Forsythe own the building in which Cancer Screening and Treatment Center of Nevada is located. Alternative Cancer Specialists, a clinic owned by Dr. Minton that provides alternative homeopathic treatment for cancer patients, rents professional office space in the building owned by Dr. and Mrs. Forsythe. Mrs. Forsythe is the business manager for both Cancer Screening and Treatment Center of Nevada and Alternative Cancer Specialists.

9. Since 1994, Dr. Forsythe has owned and operates Century Wellness Center, a homeopathic general nutritional and health care clinic located in Reno. Century Wellness Center is not affiliated with either Cancer Screening and Treatment Center of Nevada or Alternative Cancer Specialists. Century Wellness Center is a homeopathic clinic. Mrs. Forsythe has no affiliation with or ownership interest in Century Wellness Center. Mrs. Forsythe does not practice nursing at Century Wellness Center. Mrs. Forsythe participated with her husband, Dr. Forsythe, in interviewing a prospective employee for Century Wellness Center and she placed an advertisement for the clinic.

10. In 1995, the State of Nevada Board of Medical Examiners filed a complaint against Dr. Forsythe charging 42 counts of misconduct regarding patient billing.[1] On November 2, 1995, Dr. Forsythe stipulated to settle the matter by pleading nolo contendere to Count One of the Complaint and paying $44,000.00 “as disgorgement of payments which may have been received by Respondent in connection with medical laboratory tests prior to the date of this Stipulation for Settlement” and “to recoup from Respondent income which may have been improperly itemized, billed and received from patients in the past.”[2]

11. Francis Allen was the successful Republican candidate for State Assembly District 37 in the 2002 Primary election (held September 3, 2002).

12. There were four Republican candidates for State Assembly District 37 in the 2002 Primary election (held September 3, 2002).

14. Dr. Forsythe was not at any time relevant hereto a candidate for public office.

15. The Nevada Republican Liberty Caucus is a politically active group of Libertarian leaning Nevada Republicans. George Harris is the Chairman of the Nevada Republican Liberty Caucus. Dan Burdish is a member of the Nevada Republican Liberty Caucus. The Nevada Republican Liberty Caucus is affiliated with the National Republican Liberty Caucus. Charles Muth is the Chairman of the National Republican Liberty Caucus, a position he assumed approximately two years ago. He was formerly Chairman of the Nevada Republican Liberty Caucus. Since approximately mid-2002, Mr. Muth has worked in Washington, D.C., and has lived in Virginia. Prior to moving to Virginia, Mr. Muth lived in Las Vegas, Nevada.

16. At all times relevant to the facts and circumstances herein, Francis Allen was not associated with the Nevada Republican Liberty Caucus or any of its principals, she made no financial contribution to the Nevada Republican Liberty Causes, and she did not participate in the campaign activities of the Nevada Republican Liberty Caucus.

17. On or about August 27, 2002, the Committee to Elect Francis Allen caused to be published and distributed a “Compare the Record” campaign flyer (hereinafter “Flyer 1”). With reference to Earlene Forsythe, Flyer 1 included the following information:

EARLENE

FORSYTHE

FAILED

CAMPAIGNS

Mayor of Reno

Feb. 2002

FORCED OUT

2000

LEGISLATIVE

HISTORY

Alliance with Washoe County Medical Society and Cancer Screening & Treatment Center of Nevada1

LOBBYIST

OCCUPATION

Campaign materials describe her as “business manager of cancer clinics in Northern and Southern Nevada.” Asked Monday her role in the Reno busi-ness, she initially said, “I didn’t have a role.” … “it’s not a real active role.¹ don’t go to the clinic.”²

18. On or about August 15, 2002, Mr. Harris and Mr. Burdish caused to be published and distributed a campaign flyer (hereinafter “Flyer 2”) with a cartoon type picture of a duck with a stethoscope. On one side of Flyer 2, the following statements were printed:

along with an excerpt from an article in the July 30, 2002, Las Vegas Review-Journal newspaper stating:

“The homeopathic doctor in 1995 pleaded no contest to charging his cancer patients excessive lab fees, typically two or three times the cost of what labs were charging him. The 42-count complaint alleged patients were overcharged from $1,100 to $1,800 each.”

Forsythe and her “homeopathic” doctor husband own and operate a ring of cancer clinics that use “alternative medicine” on desperately ill people. He pleaded NO CONTEST to overcharging their dying patients.

Disbanding her attempt to unseat the Mayor in her home of Reno Nevada, in FEBRUARY OF 2002, Earlene Forsythe packed her bags and relocated to Las Vegas’ newly drawn Assembly District with hopes of establishing a new image.

along with an excerpt from an article in the July 30, 2002, Las Vegas Review-Journal newspaper stating:

Her campaign materials describe her as “business manager of cancer clinics in Northern and Southern Nevada.” Asked Monday her role in the Reno business, she initially said, “I don’t have a role.” Later she said she does the hiring and advertising, but “its not a real active role. I don’t go to the clinic.”

and an excerpt from an article in the February 6, 2002, Reno Gazette-Journal newspaper stating:

Earlene Forsythe, former Washoe County Republican chairwoman, announced Tuesday she will support Reno Mayor Jeff Griffin for re-election and not run against him. “I will actively campaign to reelecting the mayor,” she said.

19. On or about August 15, 2002, Mr. Harris and Mr. Burdish caused to be published and distributed a campaign flyer with pictures of Mrs. Forsythe’s face (hereinafter “Flyer 3”). On one side of Flyer 3, the following statements were printed:

Earlene Forsythe was running for Mayor of RENO in February OF THIS YEAR! After lacking support she withdrew her candidacy and claimed she would “actively campaign to reelect the mayor.” Forsythe abruptly left town and relocated to Las Vegas to run for State Assembly.

along with an excerpt from an article in the July 30, 2002, Reno Gazette-Journal newspaper stating:

Forsythe and her “homeopathic” doctor husband own and operate a ring of cancer clinics that use “alternative medicine” on desperately ill people. Her husband pleaded NO CONTEST to overcharging their dying patients.

along with an excerpt from an article in the July 30, 2002, Las Vegas Review-Journal newspaper stating:

20. The Nevada Republican Liberty Caucus mailed Flyer 2 and Flyer 3 to inveterate[3] voters within Assembly District 37.

21. In August 2002, a photocopy of a July 30, 2002, Las Vegas Review-Journal newspaper article written by journalist Jane Ann Morrison about Earlene Forsythe and headlined “Campaign ad lacks details of complaint” “Earlene Forsythe GOP hopeful for Assembly” was distributed by an unknown source to two neighborhood homes displaying Earlene Forsythe campaign signs. The following note was handwritten on the copy of the newspaper article:

I’m your neighbor & saw your sign – this article really concerns me – please join me in supporting Francis Allen who seems to want to help us! Kathy Marti

22. In late August 2002, the Mr. Harris and Mr. Burdish caused to be delivered by telephone to voters in Assembly District 37 the following recorded messages:

Did you know that Earlene Forsythe, candidate for State Assembly District 37 is involved in a scandal where she and/or her husband ripped off cancer patients? Is that why Earlene Forsythe is now in Las Vegas rather than in Reno? Let’s send her packing back to Reno.

Due to the questionable circumstances surrounding the campaign of Earlene Forsythe, we now ask you to vote for Francis Allen for Assembly. We deserve a real representative not a carpetbagger from Reno who moved here just to run for office.

I live here in Assembly District 37. I recently got an automated phone call from someone making accusations against Assembly candidate Earlene Forsythe. Her husband pleaded no contest to overcharging dying cancer patients. When asked about her role, she first said she didn’t have one; then she said she was the office manager; then she said she wasn’t;. then she said she didn’t even go to the office – being dishonest about her role in over billing dying cancer patients. Don’t vote for Earlene Forsythe.

23. Thirty-three individuals who in an August 24, 2002, Datagraphics telephone survey indicated support for Mrs. Forsythe’s campaign told Mrs. Forsythe they were “undecided” or “leaning against her” when Mrs. Forsythe surveyed the same 33 individuals by telephone on August 31, 2002.

24. In the Nevada Assembly District 37 primary, candidate Francis Allen received the most votes of those cast in early voting, candidate Horrocks received the most votes of those cast by mail-in ballot, and candidate Forsythe received the most votes of those cast on election day (September 3, 2002). The total votes cast in the Nevada Assembly District 37 race were 2,123. Of those total votes, candidate Francis Allen received 718 votes, candidate Earlene Forsythe received 705 votes, candidate Horrocks received 628 votes, and candidate Lefebvre received 72 votes.

CONCLUSIONS OF LAW

1. At all times relevant to the allegations presented in his request for opinion, Earlene Forsythe was a candidate for public office as defined by NRS 294A.005.

2. Request for Opinion No. 02-15 and Request for Opinion No. 02-16 were filed within 10 days after the alleged false statements of fact were published.

3. The Commission has jurisdiction to render an opinion in this matter pursuant to NRS 281.477 and NRS 294A.345.

WHEREFORE, on motion duly made, seconded, and unanimously approved, the Commission renders the following Opinion:

OPINION

1. A person shall not, with actual malice and the intent to impede the success of the campaign of a candidate, impede the success of the candidate by causing to be published a false statement of fact concerning the candidate, including, without limitation, statements concerning:

(c) Whether the candidate committed, was indicted for committing or was convicted of committing a felony or other crime involving moral turpitude, dishonesty or corruption.

(e) Whether the candidate was disciplined while serving in the military or was dishonorably discharged from service in the military.

(g) The record of voting of a candidate if he formerly served or currently serves as a public officer.

2. Any candidate who alleges that a false statement of fact concerning the candidate has been published in violation of subsection 1 may file a request for an opinion with the commission on ethics pursuant to NRS 281.411 to 281.581, inclusive. Such a request must be filed with the commission not later than 10 days after the date on which the false statement of fact is alleged to have been made. The commission shall give priority to such a request over all other matters pending with the commission

3. A person who violates the provisions of this section is subject to a civil penalty that may be imposed by the commission on ethics pursuant to NRS 281.551.

(a) “Actual malice” means knowledge of the falsity of a statement or reckless disregard for whether a statement is true or false.

(b) “Publish” means the act of printing, posting, broadcasting, mailing, speaking or otherwise disseminating.

2. [A request for opinion filed with the Commission pursuant to NRS 294A.345] must be accompanied by all evidence and arguments to be offered by the requester concerning the issues related to the request. Except as otherwise provided in this subsection, if such evidence and arguments are not submitted with the request the commission may:

(a) Draw any conclusions it deems appropriate from the failure of the person or group of persons requesting the opinion to submit the evidence and arguments, other than a conclusion that a person alleged to have violated NRS 294A.345 acted with actual malice; and

The provisions of this subsection do not prohibit the commission from considering evidence or arguments presented by the requester after submission of the request for an opinion if the commission determines that consideration of such evidence or arguments is in the interest of justice.

7. The person or group of persons that filed the request for the opinion pursuant to NRS 294A.345…has the burden of proving the elements of the offense, including that a person alleged to have violated NRS 294A.345 acted with actual malice. The existence of actual malice may not be presumed. A final opinion of the commission rendered pursuant to this section must be supported by clear and convincing evidence. In addition to the other requirements for issuing an opinion pursuant to this subsection, the commission shall not render a final opinion determining that a person has violated NRS 294A.345 unless the commission makes specific findings that:

(a) The person caused to be published a false statement of fact concerning a candidate;

(b) The person acted with actual malice in causing the false statement to be published.

(c) The person acted with the intent to impede the success of the campaign of the candidate in causing the false statement to be published; and

(d) The publication of the false statement did in fact impede the success of the campaign of the candidate.

NRS 294A.345(2) authorizes only a candidate about whom an alleged false statement of fact has been published in violation of NRS 294A.345(1) to file a request for an opinion with the Nevada Commission on Ethics. Dr. Forsythe is not and was not a candidate for public office at any time relevant to the facts and circumstances of this matter. Therefore, the Commission declines jurisdiction to render an opinion with regard to any allegation concerning Dr. Forsythe as alleged in Request for Opinion No. 02-15 and Request for Opinion No. 02-16 and both matters are dismissed as to Dr. Forsythe.

With regard to Request for Opinion No. 02-15 concerning Francis Allen, Mrs. Forsythe alleges that the statements asserting that she had a “FAILED CAMPAIGN” and was “FORCED OUT” of the race for Mayor of Reno as published by candidate Francis Allen in Flyer 1 are false. However, neither statement concerns a matter analogous to the examples provided in NRS 294A.345(1)(a)-(g) and, therefore, the statements do not rise to the level of a statement actionable under NRS 294A.345. Further, the Commission finds that the statements are nothing more than statements of opinion based upon facts that are true. Such statements are protected by the First Amendment of the United States Constitution and do not implicate a violation of NRS 294A.345.

Even if the statements published by Francis Allen could somehow be construed to the false, to sustain a finding by the Commission that Francis Allen violated the provisions of NRS 294A.345, Mrs. Forsythe must also prove by clear and convincing evidence that Francis Allen violated each remaining element of NRS 294A.345 and, in doing so, acted with “actual malice.” See, NRS 294A.345(2) and NRS 281.477(7). Mrs. Forsythe has failed to meet that burden. The record herein contains no clear and convincing evidence that (a) Francis Allen acted with actual malice in publishing a false statement of fact concerning Mrs. Forsythe, (b) that Francis Allen acted with the intent to impede the success of Mrs. Forsythe’s campaign in causing a false statement to be published, and (c) that the publication of any statement published by Francis Allen did in fact impede the success of Mrs. Forsythe’s campaign.

Mrs. Forsythe further alleges that Francis Allen had a political relationship with Charles Muth, Chairman of the National Republican Liberty Caucus and former Chairman of the Nevada Republican Liberty Caucus, which connected Ms. Allen to the Nevada Republican Liberty Caucus and the alleged violation of NRS 294A.345 related to Flyer 2 and Flyer 3. However, the record herein fails to provide any credible evidence connecting Ms. Allen to the Nevada Republican Liberty Caucus and/or Flyer 2 and Flyer 3.

Francis Allen, therefore, violated no provisions of NRS 294A.345 and Request for Opinion No. 02-15 concerning Francis Allen is dismissed.

With regard to Request for Opinion No. 02-16 concerning Nevada Republican Liberty Caucus, Mrs. Forsythe alleges that the statements published by the Nevada Republican Liberty Caucus in Flyer 2 and Flyer 3 and the conclusions those statement imply are false. However, for such statements to rise to the level of a violation of the provisions of NRS 294A.345, Mrs. Forsythe has the burden of proving by clear and convincing evidence that the Nevada Republican Liberty Caucus published false statements of fact about her concerning matters analogous to the examples provided in NRS 294A.345(1)(a)-(g) and, in doing so, acted with “actual malice” as that term is defined in NRS 294A.345(4)(a)[4] and by U. S. Supreme Court case law. See, NRS 294A.345(2) and NRS 281.477(7). Mrs. Forsythe has failed to meet that burden.

Publishing campaign materials with statements such as those in Flyer 2 and Flyer 3 may be a cowardly way to conduct a political campaign. However, if the statements in the publications are not maliciously false and the opinions expressed in the publications are based upon facts that are true, the content is considered mere political hyperbole and is protected by the political free speech provisions of the First Amendment of the United States Constitution as interpreted by the United States Supreme Court.

The Commission understands the offense taken by Dr. and Mrs. Forsythe to the statements in Flyer 2 and Flyer 3. Nothing in the record in this matter suggests anything other than that Dr. and Mrs. Forsythe are both highly qualified medical professionals in good standing, and the Commission considers the use of the word “quack” by the Nevada Republican Liberty Caucus in its political flyers created for the purpose of impeding the success of Mrs. Forsythe’s campaign extremely distasteful. However, as distasteful as it may be, the content of Flyer 2 and Flyer 3 is nothing more than political satire or statements of opinion – political speech that is absolutely protected by the First Amendment of the United States Constitution.

Even though the record herein clearly and convincingly establishes that Mr. Harris and Mr. Burdish, as members of the Nevada Republican Liberty Caucus, did intend the impede Mrs. Forsythe’s campaign by publishing Flyer 2, Flyer 3, and the recorded telephone messages, the record contains no clear and convincing evidence that the Nevada Republican Liberty Caucus acted with the intent to impede the success of Mrs. Forsythe’s campaign by causing a false statement to be published. Further, there is no evidence in the record herein that Nevada Republican Liberty Caucus acted with actual malice in publishing a false statement of fact concerning Mrs. Forsythe, nor is there any evidence in the record herein that any statement published by Nevada Republican Liberty Caucus did in fact impede the success of Mrs. Forsythe’s campaign.

The Nevada Republican Liberty Caucus, therefore, violated no provisions of NRS 294A.345 and Request for Opinion No. 02-16 is dismissed.

NOTE: THE FOREGOING OPINION APPLIES ONLY TO THE SPECIFIC FACTS AND CIRCUMSTANCES DEFINED HEREIN. FACTS AND CIRCUMSTANCES THAT DIFFER FROM THOSE IN THIS OPINION MAY RESULT IN AN OPINION CONTRARY TO THIS OPINION. NO INFERENCES REGARDING THE PROVISIONS OF NEVADA REVISED STATUTES QUOTED AND DISCUSSED IN THIS OPINION MAY BE DRAWN TO APPLY GENERALLY TO ANY OTHER FACTS AND CIRCUMSTANCES.

[1] In the Matter of the Complaint Against James William Forsythe, M.D., Before the Board of Medical Examiners of the State of Nevada, Case No. 95-4382-1.

[2] See, paragraph VIII, page 3, Stipulation for Settlement, dated November 2, 1995, In the Matter of the Complaint Against James William Forsythe, M.D., Before the Board of Medical Examiners of the State of Nevada, Case No. 95-4382-1.

[3] An “inveterate voter” in a district is one who votes in three or more elections in that district.

[4] “Actual malice” means knowledge of the falsity of a statement or reckless disregard for whether a statement is true or false. NRS 294A.345(4)(a).