Politicians take heed of Tarkanian settlement
Las Vegas Review-Journal (Las Vegas, NV)
August 04, 2009
By BENJAMIN SPILLMAN and FRANCIS MCCABE, LAS VEGAS REVIEW-JOURNAL
Members of Nevada’s political class are reconsidering the potential
cost of careless, negative campaign rhetoric after a state senator
agreed to pay a vanquished foe $150,000 to settle a legal battle over
claims a jury found crossed the line from free speech to defamation
and libel.
On Monday, the attorney for former candidate Danny Tarkanian said
Sen. Mike Schneider, D-Las Vegas, agreed to pay his client the
settlement as the result of a jury verdict late Friday in the civil
case.
Tarkanian attorney Gus Flangas said he didn’t ask the jury to impose
new limits on free speech but sought justice for harm that the false
claims did to his client.
"The bottom line on this would be that if you are going to make
allegations of a serious nature, you need to be truthful," Flangas
said Monday. "Spin can become a false statement. That might be the
message that comes out of this. Don’t cross that line."
Flangas described the terms of the settlement; the court document was
not yet available.
The agreement was reached before the phase of the trial to determine
punitive damages was to start Monday morning. Late Friday, a jury
found Schneider guilty and awarded $50,000 in damages.
Flangas said the punitive phase could have seen Tarkanian awarded as
much as $300,000. Each side has agreed to pay its own legal costs.
In a statement, Schneider said, "I was very disappointed with the
jury’s verdict in the Tarkanian case against me. I believe this
decision will have devastating ramifications on future campaigns and a
chilling effect on free speech in general.
"I am fairly confident we would have reversed the decision at the
Supreme Court. However, this matter has been a five-year ordeal and it
was time to put it to rest."
During a brief phone interview, Schneider said the $150,000, which
includes the $50,000 jury award, would be paid through a personal
insurance policy.
The case dates to the 2004 election cycle when Tarkanian, running as a
Republican in a heavily Democratic district in Las Vegas, was the
subject of harsh claims in fliers and on television that suggested an
association with subjects of a telemarketing scam that victimized
elderly people.
Tarkanian, the resident agent for several telemarketing companies that
were indicted on fraud charges, said he did legal work on behalf of
the firms but knew nothing of the fraud. Schneider also said Tarkanian
assisted prosecutors to save himself.
Schneider won the election, only to lose the subsequent civil lawsuit
stemming from the negative claims.
Tarkanian, the son of legendary former UNLV basketball coach Jerry
Tarkanian and Las Vegas City Councilwoman Lois Tarkanian, said he
plans to again run for public office.
"I am a viable candidate now that this has come through," he said.
"From all indications, we’ve broken new ground here," said retired
state Archivist Guy Rocha, who polled several historian colleagues and
said none recalled a dispute between candidates over campaign rhetoric
going as far, legally speaking, as the Tarkanian case against
Schneider.
"I was a little bit surprised that the jury fell for it," said David
Damore, a political science professor at the University of Nevada, Las
Vegas. "Generally there is a really, really high bar for that kind of
stuff in an election."
Damore said the nastiest campaign rhetoric typically comes from
"shadowy groups" that aren’t officially associated with candidates,
making it tough to hold anyone accountable for outlandish statements.
The Tarkanian case could make official campaign workers even more
skittish about associating with outside groups.
As local political movers got wind of the decision on Monday, they
said it could influence future campaign decisions.
"I think this, in the long run, will teach people to just make sure
their research is correct," said Grant Hewitt, campaign manager for
former state Sen. Joe Heck, a Republican now running for governor.
"I do a lot of research before I encourage any campaign I’m a part of
to go forward on anything," Hewitt said.
As recently as his most recent campaign last fall, which he lost to
now-Sen. Shirley Breeden, D-Henderson, Heck was the target of mailers
stating he was indifferent to women with cancer and blamed cancer
victims for their disease.
The mailers were from the Democratic Party, not Breeden.
Former state Sen. Bob Beers said he wishes the verdict would have come
sooner because it might have helped him last fall.
Beers was the subject of mailers last fall that falsely claimed he was
"Under Ethics Commission Review!!!"
Beers sued his opponent, Allison Copening, and the Nevada Democratic
Party.
Beers said that the court dropped Copening from the lawsuit but that
it was still pending against the party.
"Had this decision been rendered prior to the last campaign season, I
would probably still be a senator," Beers said. "Just like
Mr. Tarkanian, I am seeking to have the record set straight."
Beers wasn’t the only one with whom the Tarkanian case struck a chord.
"It absolutely does put people who campaign like that on alert," said
Bryon Geddes, campaign manager for former North Las Vegas Mayor Mike
Montandon, another Republican candidate for governor.
Geddes said the case will not affect Montandon’s campaign because "we
don’t plan strategy built on negativity" toward opponents.
David Cohen, campaign manager for Clark County Commissioner Rory Reid,
a Democratic candidate for governor, said the case is a good reminder
that sloppy research or thoughtless claims can come back to bite a
candidate.
"Part of why we spend time preparing so carefully is because we think
that it is important to be factually correct," Cohen said.
"There are always campaigns that really push the boundaries of
truth. They should be held accountable in every way, but most
importantly by voters."
Political consultant Pete Ernaut of R&R Partners couldn’t recall a
campaign rhetoric dispute that went as far as the one between
Tarkanian and Schneider.
"I’ve certainly heard of a number of cases where it has been
threatened, but I’ve never seen one come to judgment and to penalty,"
said Ernaut, who has worked with former Gov. Kenny Guinn and current
Sen. John Ensign.
Like the other political professionals, Ernaut said the situation was
a reminder of the importance to back words with facts and to cite
original sources of claims.
"Political speech in campaigns should, and often does, push the edge
of the envelope by its nature," Ernaut said. "I’m not sure this case
changes any standard because the standard has always been truth."
Contact reporter Benjamin Spillman at bspillman@reviewjournal.com or
702-477-3861.
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