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“They Have the Right to Know”: Judge Cites First Amendment Rights in Dismissing Wolf Creek’s Abuse of Process Claim in VVWD Suit

Amidst the backdrop of other compelling lawsuits, including the renewed legal war between Southern Nevada’s two largest newspapers, the media also took front and center in today’s hearing in the Wolf Creek v. Virgin Valley Water District lawsuit. And much to the chagrin of Wolf Creek’s legal team, Judge Timothy Williams ruled in favor of VVWD.

Yet as Judge Williams made clear he’d rule to protect free speech and the free press, VVWD and its legal team may need to think twice about what they wished for.

“You don’t need a lawsuit to say mean things about people in the press.”
– Clifford Grevett, VVWD legal counsel
Left to Right: VVWD manager, attorney Bo Bingham, and board member Rich Bowler. Photo by Andrew Davey

Before Judge Williams called VVWD and Wolf Creek attorneys to the bench, we all sat back and observed a hearing in the state lawsuit that the Las Vegas Sun filed against the Las Vegas Review-Journal (R-J) over the ad revenue that’s supposed to be shared under their joint operating agreement (JOA). Spoiler alert: Williams allowed the R-J‘s state court counterclaim to proceed, though he also voiced sensitivity to the First Amendment and other federal legal issues that will be addressed in the Sun‘s federal suit challenging the R-J’s attempt to terminate their JOA.

We’ll dig deeper into the Sun v. R-J suit in a future story. In the meantime, it’s important to keep their suit in mind as we process what happened in the Wolf Creek hearing.

As Mike pointed out earlier this month, Mesquite Local News‘ Barbara Ellestad has conveniently tended to present this suit in the most favorable light for VVWD. In court today, VVWD attorney Clifford Grebett countered, “You don’t need a lawsuit to say mean things about people in the press.” And from there, it was up to Wolf Creek attorney Matthew Neeland to prove that VVWD and their legal team are doing more than just “saying mean things in the press”.

“There’s been coordination with local media to run Wolf Creek down in the local press.”
– Matthew Neeland, Wolf Creek legal counsel
Photo by Andrew Davey

In addition to the charge that VVWD’s attorneys are using Ellestad and Mesquite Local News to defame Wolf Creek, Neeland claimed the VVWD legal team have committed “willful unlawful acts” with “ulterior motives” by submitting depositions from witnesses giving factually challenged testimony. He also claimed that VVWD’s counterclaim abuses the process by claiming Wolf Creek’s demand for a “fair market water rate” somehow causes injury to the district without providing any evidence that Wolf Creek has harmed the district.

“If it’s true that Virgin Valley Water District opposed summary judgment [for Wolf Creek over what constitutes a “fair market water rate”] while filing perjurous documents and false information, that would be an abuse of process,” Neeland argued.

Back to Mesquite Local News, Neeland further specified the “ulterior motives” behind Ellestad’s coverage of the trial. According to Neeland, “There’s been coordination with local media to run Wolf Creek down in the local press. Ms. Ellestad is a former VVWD board member. She has a personal vendetta against Cory Clemetson.”

“I can’t dictate what the media say. It’s the free press.”
– Judge Timothy Williams
Photo by Andrew Davey

As he’s done during prior hearings, Judge Williams indicated his discomfort with assigning truth and issuing judgments before all the facts can be compiled and presented to the jury. And when it came to the questions over Mesquite Local News‘ involvement in the case, Williams gave a stern defense of journalists’ First Amendment rights.

“When it comes to the First Amendment, why should the courts even be concerned about information that gets disclosed to local media at any level? That’s a slippery slope,” Williams warned. He continued, “If [attorneys are] giving documents to the media, why should we be concerned about it?”

If that wasn’t clear enough, Williams added, “I can’t dictate what the media say. It’s the free press.” He not only admonished Neeland for demanding a ruling targeting Ellestad, but also made clear to both sides and they should never expect him to control the flow of information to the media however they see fit. Later on, William’s reiterated this point in saying, “When it comes to the media, they have the right to know.”

Finally, today’s ruling (and what it means going forward)
Photo by Andrew Davey

Ultimately, today’s hearing came down to a 28-year-old U.S. Supreme Court ruling on a case involving a criminal defense attorney who held a press conference to make the case for his client to the larger public. He was reprimanded for communicating with the press about the case. But in their 1991 Gentile v. State Bar of Nevada decision, the Supreme Court struck down the State of Nevada’s laws forbidding attorneys’ communication with the media on the cases they’re working on as overly vague and restrictive.

Ultimately, Judge Williams rested his decision on that U.S. Supreme Court decision in striking the abuse of process complaint from Wolf Creek’s lawsuit against the district. And when it came to the allegation of VVWD submitting perjury and presenting false testimony as factual evidence, Williams responded, “Just because you have factual disputes, that doesn’t rise to abuse of process.”

Yet before VVWD officials pop out any champagne to celebrate, they’ll need to keep in mind that this street runs both ways… And more specifically, that First Amendment free speech and free press rights apply not just to Mesquite Local News, but to us at Nevada Today and to other media outlets. That means all of us have the right to continue reporting on this case, and all of us have the right to demand records and other documents that will help us all reach on the truth on what’s truly been happening on this water front.

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