The Secretary’s Complaint fails to state a claim for which relief can be granted on each of the following grounds:
(A) Because I timely filed all of the reports, this Court lacks subject matter jurisdiction;
(B) I was never provided any opportunity for an administrative hearing of this matter as required by the Nevada Administrative Procedures Act;
(C) The Secretary’s “determination” is arbitrary and capricious,
(D) I am neither required to report “each” contribution; nor am I required to report “every” expense;
(E) The last two reports I filed do not expressly denominate the reported contributions and expenses in lawful money; and
(F) I reported the contributions and expenses in good faith in the manner required by my faith.
A. Because I timely filed all of the reports, this Court lacks subject matter jurisdiction
The Secretary alleges that I failed to timely submit all three of the reports that are mandated by statute, even though Exhibits 3, 4, and 5 attached to the complaint are file stamped by the Elections Department and were all timely submitted.
The Secretary’s letter to me dated March 4, A.D. 2009 (Exhibit 6 to the Secretary’s Complaint) alleges:
While these reports have been submitted, it does not comport with the statutory mandates. Id.
As Chief Elections Officer, the office of the Secretary of State is charged with enforcing the plain letter of the law, as set forth in Title 24. As such this office requires candidates to accurately and completely file Contributions and Expenses Reports. Refusal to fill in the forms accurately and in good faith is a violation of Nevada law. … Currently, the reports that you have submitted do not contain the required data … Therefore, your filing of these reports is invalid.
The general duties of the Secretary are set forth in NRS 225.080:
The Secretary of State shall:
1. Attest all the official acts and proceedings of the Governor, and affix the seal of the State, with proper attestations, to all commissions, pardons and other public instruments to which the signature of the Governor is required. A copy of these instruments must be filed in the Office of the Secretary of State.
2. Lay all papers, minutes and vouchers relative to the official acts and proceedings of the Governor before either house of the Legislature when required by that house.
3. Keep the official bond of the Treasurer, while the bond is in force.
4. Permit all the records and transactions of the Office of the Secretary of State to be open at all times to the inspection and examination of any committee of either house of the Legislature.
5. Furnish information, in writing, upon any subject relating to the duties of the Office of the Secretary of State to the Governor, whenever required.
6. Deliver, in good order and condition, to his or her successor, all records, books, papers and other things belonging to the Office of the Secretary of State.
NRS 294A.420(1) provides for the Secretary’s power regarding the instant matter as well as the subject matter jurisdiction of this proceeding:
If the Secretary of State receives information that a person or entity that is subject to the provisions of NRS 294A.120, 294A.128, 294A.140, 294A.150, 294A.200, 294A.210, 294A.220, 294A.227, 294A.230, 294A.270, 294A.280, 294A.283, 294A.286 or 294A.360 has not filed a report or form for registration pursuant to the applicable provisions of those sections, the Secretary of State may, after giving notice to that person or entity, cause the appropriate proceedings to be instituted in the First Judicial District Court. (emphasis added)
The statute provides only that the Secretary of State may cause appropriate proceedings to be instituted in the event that I did not submit a report. However, the Court can plainly see that I did, in fact, submit these reports. Further, the Court should take notice that the reports are timely. There is no authority for the Secretary to cause proceedings to be instituted under any other circumstances.
The Secretary has no other duties with regard to this matter. The words of the law must mean what they say. Clearly, the power of the law lies in the words used to express it. The Nevada Legislature made provision for the Secretary to determine only whether the report was submitted, and to assess a penalty if the report is not submitted timely. The Nevada Legislature (at least within Chapter 225 and Title 24) did not confer upon the Secretary the power to determine whether the reports “comport with statutory mandates,” as alleged by the Secretary. The Nevada Legislature could have conferred this power upon the Secretary, but it chose not to do so. It matters not what power the legislature has, it matters only what power the legislature has actually exercised. See Wayman v. Southard, 23 U.S. 1 (1825).\[2]/ In the instant matter, the Nevada Legislature did not grant power to the Secretary to determine whether the reports are “complete” or whether the reports contain all of the information “required,” only to act then the reports were not submitted in a timely manner. For the record, the Secretary is violating my federally protected rights under mere color of state law, as he lacks the statutory authority to perform the “duty” that he maintains is his.
I hereby throw down the gauntlet. To pick it up, the Secretary must establish the act of the Nevada Legislature that grants authority to him to determine whether or not the reports are complete or whether the reports contain all of the information required as he contends.
Accordingly, because the Secretary confesses that I submitted all of the reports timely, this Court lacks subject matter jurisdiction, and the Secretary has failed to state a claim for which relief can be granted.
The very fact that there is no administrative procedure that provides for an administrative hearing so that I can present evidence and seek a final administrative determination that can be appealed for judicial review under the contested case process gives rise to the argument found in the following section.
B. I was never provided any opportunity for an administrative hearing as required by the Nevada Administrative Procedures Act
I ask this Court to address the following four questions: First, at what point am I to be provided with administrative due process and a fair opportunity to be heard on this matter within the agency? Second, when am I going to be given an opportunity for judicial review of the agency determination that should have taken place within the strictures of the “contested case” process set forth within the Nevada Administrative Procedures Act? Third, if there is neither an administrative hearing nor an opportunity for judicial review of the determination made by the agency at such a hearing, has the Secretary thereby failed to exhaust its administrative remedies under the Nevada APA? Fourth, if NRS 294A.420 fails to provide for either an administrative hearing or a judicial review, then is not NRS 294A.420 unconstitutional for its failure to provide for procedural due process within the context of the Nevada APA?
The Secretary will argue that NRS 294A.420 exempts it from the “contested case” process set forth in the Nevada APA at NRS 233B.121 &seq. I argue that because the Office of the Secretary of State is not exempted by NRS 233B.039, that there has to be some procedural due process afforded to me under the strictures of the Nevada APA, else I have been denied due process as required by the Constitutions of Nevada and of the United States.
This matter should be construed as a “contested case” as provided by NRS 233B.032:
“Contested case” means a proceeding, including but not restricted to rate making and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing, or in which an administrative penalty may be imposed.
After all, because the Secretary is required by NRS 294A.373(1) to promulgate the report, and there is apparently a penalty for failure to submit the report, does that not mean that the report itself must be construed as a “regulation” as provided by NRS 233B.038(1)(d) and (m)?
NRS 233B.038 “Regulation” defined. 1. “Regulation” means:
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(d) The general application by an agency of a written policy, interpretation, process or procedure to determine whether a person is in compliance with a federal or state statute or regulation in order to assess a fine, monetary penalty or monetary interest.
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(m) The application by an agency of a policy, interpretation, process or procedure to a person who has sufficient prior actual notice of the policy, interpretation, process or procedure to determine whether the person is in compliance with a federal or state statute or regulation in order to assess a fine, monetary penalty or monetary interest;
Every office of government, unless exempted, is made subject to the requirements of the Nevada APA. It is clear that the Secretary is not exempted by NRS 233B.039. Also, because the Secretary is not exempted, the agency is required by NRS 233B.050(1) to adopt rules of practice, so that administrative hearings can be held and administrative determinations can be made.
In addition to other regulation-making requirements imposed by law, each agency shall: (a) Adopt rules of practice, setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency.
The legislative intent of the Nevada APA is set forth in NRS 233B.020(1):
By this chapter, the Legislature intends to establish minimum procedural requirements for the regulation-making and adjudication procedure of all agencies of the Executive Department of the State Government and for judicial review of both functions, except those agencies expressly exempted pursuant to the provisions of this chapter.
I was never given any opportunity for the “adjudication procedure” in this matter—an administrative hearing within the agency where an administrative determination is made. Nor will I ever be given any opportunity for judicial review of the administrative decision that imposed the penalty, because of this, I contend that this Court now presides as the administrative hearing venue. The disagreement between the Secretary and myself should have been subject to the contested case restrictions in order to afford to me “minimum procedural” due process. However, because of the way the penalty statute is written, I do not have the protection of such “minimum procedural requirements” and I am therefore being denied the administrative due process that is required of the Secretary’s agency by the Nevada APA.
If I am never given an opportunity for an administrative hearing before the agency, then the instant proceeding cannot be construed as a judicial review of the agency’s determination. In point of fact, this proceeding cannot be construed as anything other than the agency hearing itself. Because of this, I will never have any opportunity for judicial review of the agency “determination” made here, as the contested case procedure requires that I be able to appeal the administrative determination to the District Court. My only appeal from the administrative hearing now taking place before this Court is with the Nevada Supreme Court, and this is not the judicial review contemplated by the Nevada APA.
Because the Nevada Legislature never provided for a judicial review of this particular agency “determination”, NRS 294A.420 itself fails to provide me with the procedural due process required by the Nevada APA, it thereby denies to me the due process requirements of the state and federal constitutions. But this cannot be, as statutes have to be construed in such a manner as to pass constitutional muster. Accordingly, because the Secretary has failed to exhaust his administrative remedies within the context of the Nevada APA, he has failed to state a claim for which relief can be granted.
C. The Secretary’s “determination” is arbitrary and capricious
The Secretary alleges in ¶ 9 of its complaint that I “filed reports stating only that [I] neither received nor spent gold or silver coin.” The Secretary, in its letters to me attached to the Complaint as Exhibits 6, 7, and 8, mentions only that the reports submitted “[do] not comport with statutory mandates” and “do not contain the required data.” See Exhibit 6. The Secretary’s other letters do not provide me with the information that I would need to fill out the reports in the manner that is required.
This court's role in reviewing an administrative decision is identical to that of the district court: to review the evidence presented to the agency in order to determine whether the agency's decision was arbitrary or capricious and was thus an abuse of the agency's discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983); see NRS 233B.1351; State Envtl. Comm'n v. John Lawrence Nev., 108 Nev. 431, 433-34, 834 P.2d 408, 410 (1992).
The Secretary’s letters never make any mention that the disagreement with me relates to the nature of the medium of exchange that was reported. There is no description as to the particularities of the size, shape, color, substance or any other attribute that would inform me as to the precise form of the tender that was required for me to report Because of this, I was never made aware of the manner in which I could have corrected my “errors.” Further, there is no way for the Court to perform a judicial review of this “determination,” as the Secretary’s letters are clearly so ambiguous as to prevent a proper adjudication.
Accordingly, the Secretary’s determination was arbitrary and capricious, and the Secretary has thereby failed to state a claim upon which relief can be granted.
D. I am neither required to report “each” contribution, nor report “every” expense
The Secretary alleges in ¶ 4 of its complaint that I am required to “list each of the campaign contributions” that I received. This is a patent misrepresentation of the statutory requirement. The requirement is that I “report each campaign contribution in excess of $100 received during the period and contributions received during the period from a contributor which cumulatively exceed $100.” NRS 294A.120(2).\[3]/ It is patently obvious from this mandate of the Nevada Legislature that if I received no contributions in excess of the statutory requirements, that there is nothing to report. The reports as filed establish that I did not, in fact, receive any contributions at all. The Secretary’s wanton fuss over this matter is not only a waste of the Court’s time, it is a waste of the taxpayers’ money.
The report form promulgated by the Secretary of State appears to require the reporting of all contributions, even those that are $100 or less. This requirement is contrary to the statute. Accordingly, the report itself is statutorily infirm. It is notable that the EL201 report for the 2010 election cycle has been revised to remove the requirement to report contributions that are less than $100.\[4]/
My filing of the report, even to the extent of reporting all of the contributions that were $100 or less, establishes that the report was filed in good faith. Further, the Secretary will be unable to establish by any competent evidence that I actually received any contributions. Therefore, the Court should accept the information set forth on the report as true.
The Secretary properly alleges in ¶ 5 of its complaint that I am required to “list each of the campaign contributions in excess of $100” that I spent. It is patently obvious from this mandate of the Nevada Legislature that if I had no expenditures in excess of the statutory requirements, that there is nothing to report. The report as filed establishes that I did not, in fact, have any expenditures at all.
The report form promulgated by the Secretary of State appears to require the reporting of all expenses, even those that are $100 or less. This requirement is contrary to the statute. Accordingly, the report itself is statutorily infirm. It is notable that the EL201 report for the 2010 election cycle has been revised to remove the requirement to report expenditures that are less than $100.
My filing of the report, even to the extent of reporting all of the expenses that were $100 or less, establishes that the report was filed in good faith. Further, the Secretary will be unable to establish by any competent evidence that I actually had any expenditures. Therefore, the Court should accept the information set forth on the reports as true.
We have previously held that an indictment accusing a public administrator of failing to comply with a statute requiring him to file quarterly reports of all fees and compensation received in his official capacity was defective because it did not allege that he had received such fees or compensation. Adler v. Sheriff, 92 Nev. 436, 552 P.2d 334 (1976). Here, there is no allegation that Hilkert either received contributions, or incurred expenses; thus, we have the same deficiency which proved to be fatal in Adler. Accordingly, we reverse. Hilkert v. Sheriff, 93 Nev. 153, 561 P.2d 448 (1977).
While I understand and agree that this matter is not a criminal proceeding, the Secretary must still have some competent evidence that I actually had contributions or expenditures. Otherwise, it must take my timely filed reports as true and correct, especially due to the fact that they are verified. Frankly, if the Secretary believes that the information on the form is a lie, then it has the duty to file criminal charges.
Accordingly, the Secretary has failed to state a claim for which relief can be granted.
E. Reports 2 and 3 do not expressly denominate the contributions and expenses in lawful money
I respectfully request that the Court look very carefully at Reports 2 and 3, which are attached to the Secretary’s Complaint as Exhibits 4 and 5. Each of the monetary fields on that report contains a zero. Even though there is a notation just above the affirmation that “I have neither received nor spent any gold or silver coin”, there is no indication on the report that the zeros in the monetary fields represent anything but “dollars” as defined in Title 31 of the United States Code.
Accordingly, with respect to Reports 2 and 3, the Secretary has failed to state a claim for which relief can be granted.
F. I reported the contributions and expenses in good faith in the manner required by my faith
The Secretary alleges in ¶ 9 of its complaint that I “filed reports stating only that [I] neither received nor spent gold or silver coin.” The Secretary, in its letters to me attached to the Complaint as Exhibits 6, 7, and 8, mentions only that the reports submitted “[do] not comport with statutory mandates” and “do not contain the required data.” See Exhibit 6. The Secretary’s other letters do not provide me with the information that I would need to fill out the reports in the manner that is required.
The Secretary’s letters never make any mention that the disagreement with me relates to the nature of the medium of exchange that was reported. There is no description as to the particularities of the size, shape, color, substance and any other attribute that would inform me as to the precise form of the tender that was required for me to report Accordingly, I was not made aware of the manner in which I could have corrected my “errors.”
It is only in the Complaint that I belatedly find that all of this fuss is because I reported contributions and expenses as provided by the laws set forth by Our Creator and by the Constitution of the United States. My understanding is that the contributions that I received or the expenditures for the campaign be denominated in lawful money of the United States. This requirement is set forth in Article I, §10 of the Constitution for the United States of America.\[5]/ This requirement is also set forth in Scripture at Leviticus 19:35-36,\[6]/ Deuteronomy 25:13-16,\[7]/ Proverbs 11:1,\[8]/ Proverbs 16:11,\[9]/ Proverbs 20:10,\[10]/ Proverbs 20:23,\[11]/ and Micah 6:9-16.\[12]/ In accordance with these beliefs, I set forth in my reports that I neither received nor spent any money.
This Court is also required to follow the laws of Nature and of Nature’s God. This Court is also required to observe the Constitution of the United States and the Constitution of Nevada. The applicable provision that this Court must now enforce is found within the Irrevocable Ordinances:
In obedience to the requirements of an act of the Congress of the United States, approved March twenty-first, A.D. eighteen hundred and sixty-four, to enable the people of Nevada to form a constitution and state government, this convention, elected and convened in obedience to said enabling act, do ordain as follows, and this ordinance shall be irrevocable, without the consent of the United States and the people of the State of Nevada:
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Second. That perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested, in person or property, on account of his or her mode of religious worship.
Frankly, because the Secretary has utterly failed to secure a perfect toleration of my religious sentiment, the Secretary is in perjury to his oath of office. Also, he has denied to me my federally protected right to pursue my faith as I see fit, under color of state law.
Because the Secretary has failed to construe the statutes in question faithfully to secure a perfect toleration of my religious sentiment, he has failed to state a claim for which relief can be granted.
CONCLUSION
While the Court must construe the Secretary’s allegations as true, I believe that upon careful consideration the Court must come to the conclusion that the allegations set forth no cause of action and fail to state a claim for which relief can be granted.
WHEREFORE, I respectfully request that the Court dismiss the Secretary’s action with prejudice, order the Secretary to reimburse me for my fees and costs, and for any other relief that the Court deems is just.
[1] Proper and timely notice is hereby given of my True Name.
[2] That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer. The terms of the clause, neither require nor admit of elucidation. The Court, therefore, will only say, that no doubt whatever is entertained on the power of Congress over the subject. The only inquiry is, how far has this power been exercised?
[3] Plaintiff cites to subsection (1), but because the citation is subdivided into paragraphs (a), (b) and (c), I believe that the proper citation is to subsection (2).
[4] This form is a public record and can be downloaded from the Plaintiff’s website. I respectfully request that the Court take judicial notice of this new form.
[5] “No state shall … make anything but gold and silver coin a tender in payment of debts …”
[6] 35 "'Do not use dishonest standards when measuring length, weight or quantity. 36 Use honest scales and honest weights, an honest ephah and an honest hin. I am the Lord your God, who brought you out of Egypt.
[7] 13 Do not have two differing weights in your bag--one heavy, one light. 14 Do not have two differing measures in your house--one large, one small. 15 You must have accurate and honest weights and measures, so that you may live long in the land the Lord your God is giving you. 16 For the Lord your God detests anyone who does these things, anyone who deals dishonestly
[8] 1 The Lord abhors dishonest scales, but accurate weights are his delight.
[9] 11 Honest scales and balances are from the Lord; all the weights in the bag are of his making.
[10] 10 Differing weights and differing measures-- the Lord detests them both.
[11] 23 The Lord detests differing weights, and dishonest scales do not please him.
[12] 9 Listen! The Lord is calling to the city-- and to fear your name is wisdom-- "Heed the rod and the One who appointed it. 10 Am I still to forget, O wicked house, your ill-gotten treasures and the short ephah, which is accursed? 11 Shall I acquit a man with dishonest scales, with a bag of false weights? 12 Her rich men are violent; her people are liars and their tongues speak deceitfully. 13 Therefore, I have begun to destroy you, to ruin you because of your sins. 14 You will eat but not be satisfied; your stomach will still be empty. You will store up but save nothing, because what you save I will give to the sword. 15 You will plant but not harvest; you will press olives but not use the oil on yourselves, you will crush grapes but not drink the wine. 16 You have observed the statutes of Omri and all the practices of Ahab's house, and you have followed their traditions. Therefore I will give you over to ruin and your people to derision; you will bear the scorn of the nations."
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