Last year, Sen. Ben Kieckhefer was running for reelection in Nevada Senate District 16 (which includes Incline Village) and was challenged in the Republican Primary by Gary Schmidt, who previously ran as a Democrat for Washoe County Commission. Schmidt is the owner of the Reindeer Lodge on Mt. Rose Highway. The campaign grew quite heated with charges and counter-charges and as Election Day drew closer, Schmidt ran a TV ad accusing Kieckhefer of being part of the Republicans for Harry Reid movement in the 2010 race between Senator Harry Reid (D – NV) and challenger Sharron Angle (R – NV). Republicans for Reid was started by long-time GOP consultant Sig Rogich of Las Vegas; it included Sen. Bill Raggio (R – Reno) and Reno Mayor Bob Cashell among others. However, Kieckhefer was never associated with the group nor did his name appear on its membership list.
Accordingly, Kieckhefer went to Washoe District Court and filed an action for defamation plus a request that the court immediately enjoin Schmidt from running the ad. Washoe District Judge Patrick Flanagan issued the injunction June 6, 2014. The Primary Election was June 10, 2014 and Kieckhefer immediately issued a press release. The following Monday, Schmidt filed a cross complaint for damages. It’s unclear whether these events influenced the election results but it is clear that Kieckhefer won the Primary Election in a landslide, 67% to 33% for Schmidt.
Kieckhefer went on to face Democrat Michael Kelley and Independent American John Everhart in the General election. During that campaign, Schmidt ran an ad urging voters to support Everhart. In November, Kieckhefer again prevailed garnering 65% of the votes vs. 29% for Kelley, and 6% for Everhart.
Meanwhile, Schmidt appealed Judge Flanagan’s injunction to the Nevada Supreme Court; oral arguments took place September 3, 2015. The defamation suit and countersuit are held in abeyance in the trial court while our supreme jurists take a look at the issue of whether Judge Flanagan erred in ordering the ad taken off air. Even though no longer a point of contention between Kieckhefer & Schmidt, the restraint of political speech has both Nevada and US Constitutional overtones.
Since the election of 1800, it has been a maxim of American politics that there are no holds barred in political campaigns. The Constitution’s First Amendment guarantees freedom of expression and the US Supreme Court held in New York Times vs. Sullivan that It’s OK to lie, cheat and mislead as long as it’s just a political campaign. The court held that slanderers of “public figures” and the media reporting them were off the hook for defamation unless it was uttered with “actual malice,” a standard so vague as to take all the brakes off any restraints. That being the case, it’s hard to figure how Either Kieckhefer or Schmidt can recover from each other since they were both candidates for office . . . what can be more public.
Meanwhile, Schmidt engineered a special Washoe County Republican Central Committee meeting last month to adopt a resolution supporting a recall of Kieckhefer. The effort was voted down. At about the same time, another Washoe GOP member produced a copy of Schmidt’s ad urging a vote for American Independent Everhart and requested that Schmidt be expelled from the Washoe GOP for violation of bylaws. That triggered a letter from Schmidt’s attorney, Charles Kozak (an unsuccessful candidate in the 2010 GOP primary to face Sen. Reid) to each member of the Washoe GOP Executive Committee threatening a lawsuit if Schmidt is expelled.
Be sure to tune in for the next exciting episode of The Incumbent.
Jim Clark is President of Republican Advocates. He has served on the Washoe County and Nevada GOP Central Committees. He can be reached at firstname.lastname@example.org.