Senate Resolution No. 4--Committee on Legislative Af
    fairs
                  and Operations

                FILE NUMBER........


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.

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