S.R. 4 Senate Resolution No. 4--Committee on Legislative Af fairs and Operations March 27, 1995 _____________ Resolution read Made Special Order of Business. SUMMARY--Expresses disapproval of certain recent actions of Governor and Attorney General of State of Nevada. (BDR R-1933) EXPLANATION--Matter in italics is new; matter in bra ckets [ ] is material to be omitted. SENATE RESOLUTION--Expressing disapproval of certain recent actions of the Governor and Attorney General of the State of Nevada. WHEREAS, On February 16 and 21, 1995, respectively, the Caliente City Council and the Board of County Commissioners of Lincoln County voted in an open meeting to adopt Joint Resolution No. 2-95 which pragmatically stated "that given the likelihood that amendments to the NWPA [Nuclear Waste Policy Act] will be introduced [in Congress] and their potential for passage, the Board of Lincoln County Commissioners and the Caliente City Council believe it necessary to recommend to the Secretary of Energy additions or changes to proposed industry and/or state amendments to the NWPA as a means to ensure that related risks are minimized and potential benefits maximized"; and WHEREAS, On March 20, 1995, the Attorney General of the State of Nevada filed a civil "Complaint for Removal from Office" in the Seventh Judicial District Court of the State of Nevada in and for the County of Lincoln (Case No. 13-3-95 LC) against certain individual members of the Board of County Commissioners of Lincoln County and the Caliente City Council which requests the court to issue an order "which will have the effect of removing each of the Defendants from their respective offices"; and WHEREAS, In this complaint, the Attorney General accuses these local governmental officers of malfeasance in office because they "have failed to bear true faith, allegiance and loyalty to the government of the State of Nevada and therefore, have violated their oath of office"; and WHEREAS, This accusation erroneously construes the official oath of office taken by all public officers to mean that a local government is not allowed to express its views on an issue of public policy if those views do not agree with the "official position of the State of Nevada" as expressed by the Governor, Attorney General and Legislature; and WHEREAS, In carrying out their pivotal duty of developing public policy for the benefit of the particular community within their jurisdiction, elected public officers must weigh different alternatives, consider conflicting points of view and examine the compelling arguments both in favor of and in opposition to various public policy issues; and WHEREAS, The appropriate manner in which to remove a public officer for making unpopular public policy decisions is through the process of recall by the voters who elected him or her to office; and WHEREAS, The complaint also accuses these local governmental officers of malfeasance in office for actions which the Attorney General declares, \sua sponte\\, to be the unlawful act of criminal conspiracy; and WHEREAS, Instead of upholding the fundamental principle that we are each innocent of criminal charges until proven guilty, the Attorney General in filing this complaint is requesting the court to punish the "Defendants" for an act of criminal conspiracy for which these officers have neither been charged nor convicted, thereby depriving them of their constitutional right to a criminal trial with all of the constitutional rights and protections such a trial would provide; and WHEREAS, The Attorney General's accusation of malfeasance against these local governmental officers based on a theory of criminal conspiracy is flawed because persons may not be found guilty of criminal conspiracy if the underlying act which they are accused of conspiring to achieve (the storage of waste by the Federal Government on federally controlled land) is not a crime; and WHEREAS, Although the State of Nevada may be able to stop the placement in Nevada of a repository for high-level radioactive waste by other means, it is clear that a state law presuming to provide for the criminal conviction of federal officers for the storage of such waste by the Federal Government on federally controlled land would be held invalid in light of the holding in \State of Nevada v. Watkins\\, 914 F.2d 1545, 1561 (9th Cir. 1990), \cert. denied\\, 499 U.S. 906 (1991), that "any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause"; and WHEREAS, The First Amendment to the Constitution of the United States guarantees freedom of speech, a guarantee that protects even speech which is politically unpopular or which is contrary to "the official position of the State of Nevada"; and WHEREAS, The significance of this freedom, a cornerstone of our democratic government, is eloquently expressed in the words of the French author Voltaire, "I disapprove of what you say, but I will defend to the death your right to say it"; and WHEREAS, The Attorney General, in her zeal to oppose the placement of a repository for high-level radioactive waste in the State of Nevada, has lost sight of the even more important principles of our representative form of government and freedom of speech; now, therefore, be it RESOLVED BY THE SENATE OF THE STATE OF NEVADA, That the Senate of the State of Nevada supports the First Amendment rights of all citizens of the United States to express freely their views on public policy issues, recognizing that the right of freedom of speech is meaningless if it applies only to popular speech; and be it further RESOLVED, That the Senate of the State of Nevada, without expressing an opinion on the merits of Joint Resolution No. 2-95, supports the right of the Board of County Commissioners of Lincoln County and the Caliente City Council to express their views to the Federal Government, and to take the action they believe is appropriate to protect the health, safety and general welfare of their constituents, even if that action is unpopular; and be it further RESOLVED, That the Senate of the State of Nevada hereby expresses its sincere disapproval of the Attorney General for filing a civil complaint for the removal of these local governmental officers under these circumstances and of the Governor for supporting this action; and be it further RESOLVED, That the Secretary of the Senate prepare and transmit a copy of this resolution to the Governor and Attorney General of the State of Nevada, the Board of County Commissioners of Lincoln County and the Caliente City Council. -30-