IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
BARRY MICHAELS ) Civil Action No. _______
9708 Gilespie St )
Suite 104 ) COMPLAINT FOR
Las Vegas, NV 89183 ) DECLARATORY JUDGMENT,
(702) 415-0905 ) PRELIMINARY AND
firstname.lastname@example.org ) PERMANENT INJUNCTION
In Pro Se ) REQUEST FOR JURY TRIAL
Nexstar Media Group, Inc )
Dba KLAS TV 8 )
3228 Channel 8 Dr, )
Las Vegas, NV 89109 )
(702) 792-8888 )
Sarkes Tarzian, Inc. )
Dba KTVN TV )
4925 Energy Way )
Reno, NV 89502 )
(775) 858-2222 )
and Does 1 – 10 )
COMES NOW BARRY MICHAELS,files this Complaint for a Declaratory Judgment and a Preliminary and Permanent Injunction against the above captioned defendants, respectfully alleging as follows:
- OVERVIEW OF THIS ACTION
Today more than ever, Americans want a greater choice when casting their ballot for political candidates whether for local or national elections. Our country’s two-party system is no longer functioning as intended, causing Congress to often stand still and remain silent. Because of this, more and more potential voters are choosing to separate themselves from political parties and register as Independents (non-partisans). This is now evidenced by 311,388 non-partisans registered to vote in the State of Nevada as of July, 2018 (Nevada Secretary of State). This amounts to nearly one third of all registered voters in the State of Nevada that have chosen to disassociate themselves from any political party and deserve the right to hear an alternative voice in the upcoming debate.
Even though these voters represent such a large segment of the population, those candidates who chose to run as Independents face extensive hurdles when it comes to recognition which is so often silenced by party influence.
Public debates are the most effective means for a candidate’s voice to be heard and discriminating against a candidate unfairly influences our elective system. An hour of free statewide air time can represent millions of dollars to a political candidate and a candidate’s viability should not be measured solely on the amount of donations raised.
Broadcasters often depend on major political candidates to buy air-time during election season and easily have a conflict of interest in their objectivity in who gets to participate in their debate. One hour of free statewide airtime to any candidate would normally amount to millions of dollars of in-kind donations if stations were not exempt by law. However, this exemption is specifically conditioned on the use of “objectivity” criteria in their candidate selection process, pursuant to FEC § 11 CFR 110.13.
Plaintiff is one such Independent candidate who sought admission to that certain U.S. Senate debate that is to be televised on defendant’s Las Vegas station KLAS TV 8 and Reno KTVN-TV, but for all intents and purposes, will be barred from participating in the debate for failure to meet defendant’s KLAS “objective” criteria of $50,000.00 in received donations. Plaintiff asserts that defendant KLAS’s $50,000.00 donation threshold criterion is arbitrary and capriciousand has no actual bearing on plaintiff’s viability as a candidate. Particularly where plaintiff meets all other “objective” criteria and the Republican and Democratic candidates are deficient in the same respect (discussed below). For these reasons, a Declaratory Judgment is sought adjudging that defendant’s KLAS criteria is not “objective” as same is defined under FEC § 11 CFR 110.13; that as a consequence thereof, defendants KLAS & KTVN are not exempt under FEC § 11 CFR 110.13 and that plaintiff is entitled to both a preliminary (emergency) injunction and permanent injunction barring defendants KLAS and KTVN from airing the said debate, or other debates in similar fashion, unless and until defendant KLAS modifies its criteria to comport with FEC § 11 CFR 110.13.
- The Court has subject matter jurisdiction based on U.S.C. §§ 1331, 1343(a)(1), 2201(a) and 2202, 47 § 207
- Venue in the within Court is proper based on 28 U.S.C. § 1391.
- THE PARTIES
- Plaintiff Barry Michaels is a natural person and citizen of the United States of America, residing in Las Vegas, Nevada.
- Defendant Nexstar Media Group, Inc. a Texas corporation doing business as foreign corporation in the State of Nevada as KLAS TV 8 (KLAS).
- Defendant Sarkes Tarzian, Inc. is a foreign corporation doing business in the State of Nevada as KTVN television (KTVN).
- Defendant Does 1 – 10 are currently unknown to Plaintiff and will be added upon awareness.
- STATEMENT OF FACTS
- On March 8, 2018 Plaintiff filed with the Secretary of State of Nevada, as an Independent (non-partisan) candidate for U.S. Senate and paid a $500.00 registration fee.
- As an Independent candidate, Nevada law requires Plaintiff to obtain 200 signatures of registered voters and submit a petition with the required number of signatures to the Nevada Secretary of State by June 6, 2018 for his name to appear on the ballot.
- On May 18, 2018, Plaintiff filed his completed petition with the Nevada Secretary of State including 346 signatures of registered voters.
- Plaintiff filed a financial disclosure with the Nevada Secretary of State.
- Plaintiff also filed a financial disclosure with the Secretary of the U.S. Senate.
- Plaintiff is one of five candidates running for the U.S. Senate in Nevada, and the only Independent (non-partisan) to appear on the ballot for 2018 general election.
- Plaintiff meets all requirements of a Federal Candidate (Title 47 USC, Section 73.1940):
- Plaintiff maintains a commercial office used as his principal campaign Headquarters at 9708 Gilespie Street, Suite 104, Las Vegas 89183;
- Plaintiff maintains a campaign phone number;
- Plaintiff’s campaign website is located at: BarryForUSSenate.com;
- Plaintiff has appeared and continues to appear at numerous campaign events and candidate nights;
- Plaintiff has a fundraising page contained on his website and a campaign Treasurer;
- Plaintiff has designed and printed several pieces of campaign literature;
- Plaintiff has been interviewed several times by the press and numerous articles about him can be found on the Internet;
- Plaintiff also maintains a significant social media presence.
- On July 30, 2018, Plaintiff received a three-page letter by U.S. mail from Defendant (KLAS) regarding their upcoming U.S. Senate debate scheduled for October 4, 2018 (See EXHIBIT A).
- Page 2, Paragraph 3, Section a – g specifies their requirements for an active campaign needed to participate in their debate (See EXHIBIT A2).
- Page 3, Section 5 adds one additional requirement: “a candidate must have reported, on official forms filed with the appropriate election authority, accepting $50,000.00 in monetary, as opposed to in-kind, campaign contributions, at least 25 percent of which must be raised from in-state constituents (See EXHIBIT A3).”
- Since all donations are reportable to the FEC and public record exists, defendant KLAS knew or should have known which candidates had already raised $50,000.00.
- Debate staging organizations must use “pre-established objective criteria to determine which candidates may participate in a debate.” 11 C.F.R. § 110.13(c).
- The FEC has determined that to be objective, a criterion “must be free of content bias, and not geared to the selection of certain pre-chosen participants.”
- Defendant’s (KLAS) method of candidate selection is discriminatory against Plaintiff who has been subjected to such arbitrary and capricious criteria that lacks the requisite objectivity under federal law.
- Defendant KLAS operated in a manner designed to support and perpetuate the Democrat and Republican candidates while at the same time protecting them from political competition.
- Defendant KLAS’s selection of criteria which could only be met by the Democrat and Republican candidates does not satisfy the statute.
- THE LAW
- 11 CFR 110.13 Candidate debates.
(a) Staging organizations.
(b) Debate structure. The structure of debates staged in accordance with this section and 11 CFR 114.4(f) is left to the discretion of the staging organizations(s), provided that:
(1) Such debates include at least two candidates; and
(2) The staging organization(s) does not structure the debates to promote or advance one candidate over another.
(c)Criteria for candidate selection. For all debates, staging organization(s) must use pre-established objectivecriteria to determine which candidates may participate in a debate. For general election debates, staging organizations(s) shall not use nomination by a particular political party as the sole objective criterion to determine whether to include a candidate in a debate. For debates held prior to a primary election, caucus or convention, staging organizations may restrict candidate participation to candidates seeking the nomination of one party, and need not stage a debate for candidates seeking the nomination of any other political party or independent candidates.
47 U.S.C. § 207 – U.S. Code– Recovery of damages. Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.
(June 19, 1934, ch. 652, title II, § 207, 48 Stat. 1073.)
- Although the term “objective” is not defined in the FEC regulation, it has generally been described by courts as referring to evidence of the sort that can be supplied by disinterested third parties. or evidence that is undistorted by personal feelings or prejudices and that are publicly or inter-subjectively observable or verifiable, especially by scientific methods.
- Political candidate’s viability cannot be measured by donation amounts, for what one candidate can do with one amount, another may do with half that amount.
- Plaintiff has made several attempts to resolve this matter with Lisa Howfield the Vice President and General Manager of KLAS 8. The last response received by Plaintiff from Ms. Howfield on August 7,2018 was: “We will not be altering our policy”.
- The Nevada Secretary of State indicates there are currently 388,311 active non-partisan registered voters in the State of Nevada. These potential voters have deliberately chosen not to commit allegiance to any political party (See EXHIBIT B).
- Since all donations are reportable and public record exists, defendant KLAS knew or should have known which candidates had already raised $50,000.00 or more.
- Defendants are currently receiving substantial revenue from both the Republican and Democrat candidates, their campaigns and parties for payment of campaign ads.
- Exclusion from the debate will cause plaintiff irreparable damage.
PRELIMINARY (EMERGENCY) AND
- Plaintiff repeats paragraphs 1 through 27 as though more fully set forth herein. This is a case ripe for emergency injunctive relief because:
- Plaintiff’s claims have a substantial likelihood of success on the merits;
- Plaintiff has no other adequate remedy at law;
- Irreparable harm will occur unless immediate injunctive relief is granted;
- No harm can be caused to Defendants if injunctive relief is granted;
- Injunctive relief serves the public interest.
- On October 4, 2018, Defendants plan to produce and air a U.S. Senate debate through a network of television and radio stations to be broadcast statewide in Nevada. Although there are five candidates running for this office, they have chosen to include only the Republican and Democrat candidates.
- Plaintiff submitted a formal complaint with the Federal Election Commission on August 13, 2018 but the Commission lacks the authority to issue injunctive and damage relief to Plaintiff a COPY OF COMPLAINT ANNEXED HERETO (See EXHIBIT S). If the debate were to be held on October 4th, as planned, Plaintiff would suffer irreparable damage since the heightened exposure for the other candidates would give them an unfair and substantial, competitive edge, effectively ruining plaintiff’s campaign. For this reason, Plaintiff submits that he is entitled to a preliminary injunction prohibiting Defendants KLAS and KTVN from broadcasting and/or otherwise publicizing the debate on October 4, 2018 or any other rescheduled date, unless or until Defendant eliminates its $50,000.00 threshold donation criteria, enabling plaintiff to participate in the debate.
- At the same time, Plaintiff has been campaigning on social media for nearly two years actively engaging with potential voters through Twitter, Instagram, Facebook and LinkedIn. He has personally built a platform of followers consisting of thousands of Democrats, Republicans and Independent voters (See EXHIBIT O,P,Q,R).
- Plaintiff meets all requirements of a federal candidate, as well those required by Defendants which are as follows:
- Has a commercial office used as his principal campaign Headquarters.
- Has a campaign phone number.
- Has a campaign website: BarryForUSSenate.com
- Has appeared and continues to appear at numerous campaign events.
- Has a fundraising page contained on his website and a campaign Treasurer.
- Has designed and printed several pieces of campaign literature.
- Has been interviewed several times by the press and numerous articles about him can be found on the Internet.
- Has a strong social media following.
- To Plaintiff’s knowledge and belief, he is the only other candidate that meets all seven requirements and the only non-partisan running.
- Defendants added one additional requirement, an arbitrarily and capricious$50,000.00 threshold for donations received (“threshold donation”) knowing in substantial likelihood that only Democrat and Republican candidates would be able to meet such requirement.
- For these reasons, Plaintiff is entitled to a permanent injunction prohibiting Defendants KLAS and KTVN from broadcasting such debate(s) unless and until Defendant(s) eliminate their threshold donation criteria for candidate eligibility.
- Plaintiff repeats paragraphs 1through 27 above as though more fully set forth herein.
- By virtue of the forgoing, Plaintiff is entitled to a declaratory judgment proclaiming that Defendant KLAS’s criterion with respect to the $50,000.00 threshold donation is unlawful, arbitrary and capricious, and violates FEC 11 CFR 110.13, and as a result thereof, Defendants KLAS and KTVN are not entitled to the “exemption” under FEC § 11 CFR 110.13.
WHEREFORE, Plaintiff respectfully requests that the Court enter judgment:
- On Plaintiff’s First Count in the form of a preliminary (emergency) injunction prohibiting Defendants, their officers, employees, and agents, all persons acting in active concert or participation with the Defendants, or under any Defendants’ supervision, direction, or control, and all other persons within the scope of Federal Rule of Civil Procedure 65, from broadcasting the aforementioned upcoming Senate Debate and/or any adjourned or postponed or additional dates for debates, unless and until Defendants bring their criterion into conformity with the law by eliminating the said $50,000.00 threshold contribution requirement or by waiving such criterion and permitting Plaintiff to participate in such debate(s); and
- On Plaintiff’s Second Count for Declaratory Relief proclaiming that Defendant KLAS criterion with respect to the $50,000.00 threshold donation is unlawful, arbitrary and capricious, and violative of FEC 11 CFR 110.13, and that as a result thereof, Defendants KLAS and KTVN are not entitled to the “exemption” under FEC § 11 CFR 110.13 for debates; and
- Awarding reasonable costs of suit incurred by Plaintiff as provided for in Fed. R. Civ. P. 54(d)(1).
I, Barry Michaels verify under penalty of perjury that the statements made in the attached Complaint are, to the best of my knowledge and re-collection are true and correct.
Sworn pursuant to 18 U.S.C. §1001.
Executed this ____day of August, 2018