ClearCast #16: Why Did Clark County File Suit Against an Environmental Group?

[Editor's note]

Welcome to Episode 16! Oh, do we have some fun coming!

But let's not for one moment discount this fantastic conversation that we are proud to publish today!

If you are unfamiliar with the Save Red Rock organization, this column from Steve Sebelius will get you all caught up about who the major players are.

I want to personally thank Mr. Jones for taking time out of his busy day last Friday to explain to us his perspective as to why Clark County is suing his environmental group. This was above and beyond what I hoped for!

If Mr. Sisolak is serious about running for governor as a democrat in this state, he's going to need to explain why the county brought the suit against Save Red Rock.

I have a hard time believing any of the folks marching downtown over the weekend approve of their municipality suing an environmental group to silence it, let alone the people that just reelected him.

I have spoken with Dan Kulin of Clark County and asked him to comment on the anti-SLAPP element of the discussion. He said he would respond in the coming days. I will publish the response when/if he does.

You will see also that Mr. Jones explains why he doesn't trust this specific developer based on their previous history. Please know that I have spoken with Ron Krater of Gypsum Resources and invited him to join us Thursday to defend himself.

My hope is that after a few long-form conversations about Blue Diamond Hill with the relevant parties, the truth regarding the matter will rise.

We publish; you deduce.1)Copyright pending?

See you next time.


[End Note]



Jordan Flake: Hi, I'm, Jordan Flake and I'm an attorney with Clear Counsel Law Group and welcome to ClearCast. Today we're really happy to be joined by Justin Jones, also an attorney here in town. We want to address something that we believe is probably near and dear to the hearts of a lot of our viewers, a lot of our clients, a lot of our friends on social media. That is the topic of Red Rock. I don't know about you, but whenever I have people come from out of town, they sometimes ask like, "You know, what is there to do in Nevada or Las Vegas besides the Strip." I'm quick to tell them about the fact that there's a really beautiful Red Rock Preserve just a few minutes from downtown that's really fun to go visit to kind of strike a contrast with the downtown Strip.

Justin, maybe you can tell us, I know that you go by the handle "The Red Rock Guy" on some of your social media. What sort of ... You're an attorney and you relate to this on a legal matter, which we'll discuss in a second but I think it's safe to say you also relate on a personal level. Maybe I'll have you address that quickly first.

Justin Jones: Sure. And thanks Jordan for the opportunity to sort of talk about this issue and it is personal for me. I don't live too far from Red Rock, out in the Southwest part of town. I hike out there. I'm out there with my family on Saturday afternoons, at Spring Mountain Ranch. I was out there, did a trail-run this morning in the rain. It's my happy place. I love to be out at Red Rock, whether it's in the winter or frankly out in the summer. My family was out there earlier this week. We've had a lot of rain and snow and we were able to go to the Children's Discovery Trail and see the waterfalls, which you just don't get to see around here too often. My kids had a blast playing in the water. We're just fortunate, like you said, to have such a national treasure right here within 15, 20 minutes of the Strip.

Jordan Flake: Absolutely. I've been up Ice Box Canyon, hiking with my family. There's all kinds of great things to do out there. I don't think anybody disputes that. Unfortunately, for many years now, the county's been kind of embroiled in a legal battle in which there's kind of, as I see it, three main actors. There's the Jim Rhodes of Gypsum. He's a developer. He wants to develop some land that he purchased from the BLM that is basically Red Rock land. It would basically have a huge influence on that, like you said, that national treasure. There's the county. They're kind of in the middle trying to say, "Well, you know, we do have democratic processes in places for development of property. That's part of what's on the books." Then there's, can I call it Justin's group? You're not the President but you're the lawyer representing Save Red Rock. Is that right? What can you tell us about Save Red Rock?

Justin Jones: Save Red Rock was started about 15 years ago, not just around this issue of the development but around other issues in the Red Rock area. There are a lot of cyclists out there who had trucks going past them on a daily basis. They really got started after one of these cyclists, unfortunately, was killed by a trucker.

Jordan Flake: Oh, did not know that.

Justin Jones: Save Red Rock had worked with the legislature and the county to ensure that there were good speed limits, better speed limits out there, and also to widen the bike lanes out on this Red Rock Scenic Byway, which is State Route 159.

Jordan Flake: My father-in-law loves biking out there. We want to keep him safe, obviously. Right now, can you give us ... I know the procedural history is complicated but what's going on right now? What's the current battle? How's it shaping up? How do you and Save Red Rock play into what's happening right now? My understanding is Rhodes is trying to take a 2,000 acre parcel of land and get it approved for subdivision that would allow several houses on each acre. It would bring potentially 14,000 people and accompanying traffic and infrastructure to this area that just is right, butts right up against Red Rock. You're trying to stop that obviously. What more can you tell us about that situation?

Justin Jones: Sure. Jim Rhodes bought this land more than a decade ago. When he bought it, it was actually an old mine, a gypsum mine. When he bought it, it is zoned that he can build up to one house per two acres. It's not very dense up there right now. The land is surrounded by the Red Rock National Conservation Area on three sides and by BLM land on the other side. In 2010, after some dealings with the county, he submitted an application for development up there. The county approved that plan, with some modifications. Then Save Red Rock, they reached out to us and asked us if we would join with them to pursue a land swap so that they can build down in the valley as opposed to up there and we thought that was a good idea. We joined with Jim Rhodes and pushed the BLM and our congressional delegation to try and make that happen. Unfortunately, the BLM in the end decided they didn't want to go forward. Also during that time, Rhodes didn't pursue his plan and didn't do what he's supposed to do under the county code in order to avoid expiration.

Jordan Flake: So his plans that were approved were, in your view, expired.

Justin Jones: Correct.

Jordan Flake: Which would require him to do that-

Justin Jones: Start over.

Jordan Flake: Start again.

Justin Jones: Right.

Jordan Flake: In the meantime, there was also a statute passed that was deemed unconstitutional and it kind of embroiled the county and the state in some lawsuits with Rhodes. That's relevant because the county and state had to battle it out with Rhodes and pay a big fine or pay settlements and things of that nature. Now, what's happening with the county?

Justin Jones: Well, this is interesting. Back in June of last year, Rhodes went to the county and said, "Hey, I want to restart that application that we had back in 2011." The county said, "Sorry, you have to start over." Rhodes went ahead and submitted a new development plan, paid all the fees and started the process, first going through the citizen advisory council for Red Rock. They said no. They recommended disapproval of the plan. Then went on to the planning commissions, sort of a three step process here. Went to the planning commission and the planning commission heard it in October and unanimously recommended denial. They recommended denial on a number of issues, one of them was that the county has a comprehensive plan. It sort of lays out all the land use values for the entire valley. That area is designated as rural. The planning commission said, "Based on a lot of the traffic and other issues that were raised, as well as on the comprehensive plan, we recommend denials." That was a big win for us. We weren't sure that was going to happen. We sort of walked out of there happy, thinking, "Okay, well surely the county will listen."

Jordan Flake: You just won. Yeah

Justin Jones: Right.

Jordan Flake: You just won because the commission, or hopefully, almost won because they just they looked at it, they examined it and they said no, so you kind of walked out of there really happy. Then what happened. This is where the story gets sad for you.

Justin Jones: This is where it gets kind of weird. The county commission had planned to hear the application on December 7th. On December 7th, they decided they were going to postpone that vote to February 8th. Then two days later, I'm at a pro bono lunch and I get this email that says that the Clark County Commission, that Clark County had sued Save Red Rock. I was stunned. This was completely foreign to me that the county would sue a grassroots conservation organization that's trying to protect our national treasure right here in the Las Vegas valley. There were a bunch of different claims in there. One of them was seeking to prevent Save Red Rock from raising issues at the county commission that it had raised before in the 2011-

Jordan Flake: Because the county is trying to say that plan had never actually expired, even though all of the behavior by both of the parties would indicate that it had expired. They're now saying, "That never expired, therefore, Save Red Rock you needed to complain back in 2011, not now."

Justin Jones: Right. Just to be clear, at the planning commission meeting, the county's own agenda says that the county determined that the prior application expired. That's not just us saying that. That's what the county had said publicly.

Jordan Flake: The county's admitting that it had expired. Their behavior is consistent with the idea that it expired. Now they're coming along, trying to muzzle you in effect, saying "You had your chance in 2011 to oppose this and you didn't."

Justin Jones: Right.

Jordan Flake: Okay. There's really kind of two things that interested us and interested Brian in this story is one, preserving this national treasure that's in our back yard and two, preserving something that is even more important than Red Rock and that's our right to free speech, our right to protest things. Those are kind of the two issues out on the table. Let's just take each one in turn. What can you tell us or tell our viewers to get them really motivated and to understand. You can even pitch your website if you want to. Not your website. Save Red Rock website. To get them to understand what's at stake here, currently.

Justin Jones: The proposal right now is for more than 5,000 homes to be built on top of a mountain that is next door to the conservation area. Under the proposal, they're saying 5,000 homes but frankly, if you read the actual text, it could be 8,000 or 9,000 homes. Like you said, that can be 14,000 people living in 5,000 homes or it could be more than that if they ended up building more homes than that. We go from zoning of one home per two acres to two and a half per acre. That's a 500% increase in the zoning for that area.

Jordan Flake: Density of residents.

Justin Jones: Right. Big change in the density. There's also an issue of how do you get up there? Right now there's just one dirt road that comes from the Red Rock side. The county's already said they can't use that road. The BLM has already said they don't have a right of way for traffic to go up there. The alternative is that they have to go up the east side of the mountain. To get there, they have to come off of Blue Diamond Road, which is already congested as a result of Mountain's Edge and Rhodes Ranch and all of the other development that are along the Blue Diamond Road.

Jordan Flake: You're sitting here as an attorney for Save Red Rock, and as somebody who on a personal level enjoys Red Rocks, saying, "I don't want 5,000, 8,000 homes. I don't want the infrastructure that'll make future approval of kind fill in developments."

Justin Jones: Right. It's more than that. If this were a developer who had a pristine record, maybe things will be a little bit different. Jim Rhodes has a long history of bankruptcies. He has a history of walking away from projects in Arizona and Nevada. He has a history of not doing what he said he was going to do. With Rhodes Ranch, he was supposed to build a nice park right there. The county and others had to fight him for years just to get him to do what he said he was going to do.

Jordan Flake: Initially, to get-

Justin Jones: Promises of this is going to be a beautiful development with lots of open space sound great, but he doesn't exactly have a great record.

Jordan Flake: You're concerned it'll just be a money grab that will have no regard, whatsoever, for the physical impact and things of that nature. He'll just try to get through things as quickly as possible.

Justin Jones: Exactly.

Jordan Flake: That's where Justin is coming from and it's a valid concern for somebody like me who loves Red Rock and wants to preserve that in our back yard essentially. Talk to me a little bit, or talk to us a little bit about this, the anti-SLAPPing too. Preserving Red Rock is not the only thing on the line, we also talked about is the county trying to muzzle you. Do you feel like your first amendment rights are at stake here, to some extent?

Justin Jones: I think absolutely. If you guys understand what anti SLAPP means. SLAPP suits are strategic lawsuits against public participation. There were several states over the last few decades that passed anti SLAPP laws, which basically say, "If you're trying to shut somebody up, the party they're trying to shut up has the ability to go straight into court, quickly, and file a motion to dismiss that gets in front of the court and says, 'Hey, they're trying to abridge our first amendment rights. Dismiss this lawsuit or dismiss the claims that are trying to shut us up.'"

Jordan Flake: That's interesting. We actually had a situation on our website where somebody was just ripping us apart on Facebook for something we didn't do. They were just having cousins and aunts and uncles join on and we thought about suing them. Then we were concerned about that, whether or not that would fall under this anti SLAPP situation so we kind of held off to try to find other ways to do it. It was very very unfair but it, ultimately, as a law firm, we want to side on, we want to be on the side that says, "People get a chance to discuss openly and publicly what should be done. You feel right now by the country saying that 2011 thing never expired, you guys can't fight it, that they're essentially trying to take you out of the public forum.

Justin Jones: It's more than just the they're trying to go back to 2011. They actually, their second claim in the lawsuit actually says we should be barred from raising arguments that were raised in 2011. Based on that, we filed an anti SLAPP motion to dismiss and that's going to be heard early next month. We're pretty optimistic. We did not ask to dismiss the whole lawsuit because there are some other claims that we feel are at least legitimate for going forward. They did aggressively file a motion for summary judgment during the holidays, so we responded to that motion for summary judgment earlier this week. We feel pretty confident that at the hearing the judge is going to side with us and agree on some of the other issues in the case.

Jordan Flake: We'll have to see how that goes. We'll follow that closely. You'll be the one at the hearing, making the arguments?

Justin Jones: I'll be arguing.

Jordan Flake: Well, good luck with that and you know, really what's at stake here is this concept of, can a county, this is why this is a little bit shocking to Brian and me, it's a little scary with your regular citizen worried about a county filing a lawsuit against a grassroots environmental organization saying, "You can't participate in this public forum contest."

Justin Jones: It's your taxpayer funds that are paying the lawyer to sue you as citizens.

Jordan Flake: You as citizens and I need to at least be very educated about the fact that this is happening. Our county representatives are, it appears, according to Justin Jones, reaching out and putting their hand over the mouth of a grassroots organization. That's a big concern in our democracy. That being said, if you're out there and you're the county or you're Jim Rhodes and this video happens to make it up on your laptop, feel free to come in and give us your side of the story. We try to fair at ClearCast and hear everybody out. Maybe there's something that we're misunderstanding. Jump on our Facebook. Comment on there. Jump on our blog. Make comments. We're happy to hear all viewpoints.

Justin, I found what you say really concerning and persuasive and educational. I really appreciate it. Anything, last word you want to throw in here before we go?

Justin Jones: Sure. Again, thanks so much for the opportunity. If you want to learn more, be sure to go to We have a petition that we started in September to keep Red Rock rural. We already have nearly 30,000 signatures. Go on there, sign a petition and learn more about this issue.

Jordan Flake: Justin, thanks so much. We really appreciate you joining us.

Justin Jones: Thank you.

Jordan Flake: Thanks so much and we'll see you next time on ClearCast.




1 Copyright pending?

ClearCast #15: Our Friends at VidAngel May Have Some Trouble On Their Hands

Welcome to today's ClearCast! A fun one for Episode 15!

I feel like our audience will be divided into two groups: those whom are fully invested in this legal battle with no further explanation needed1)"Get to the lawyers already!" I hear you. & those of whom that have never even heard of VidAngel. If you are in the former group, please feel free to skip right to the great episode; I won't be offended in the slightest.

Now for the rest of you, (I'm in this group too don't feel bad), you have got to check out this VidAngel company. The marketing is hilarious! I've enjoyed it thoroughly.

In essence, this streaming service provides a means for consumers to censor movies in the way that they choose, whether it be censoring language or violence.

I'll let Mr. Flake and Mr. McArthur explain the specifics of how it works.

For those of my friends of the more liberal persuasion that likely are objecting to on the grounds of "censoring art," I have a couple of questions for your consideration.2)Mr. Flake and Mr. McArthur have some great ones of their own as you'll see

  1. Shouldn't parents be permitted to introduce their children to socially questionable material on their own terms instead of what Hollywood thinks is best? (as in, the majority of society has questions about certain behavior)3)Is this about Freedom?
  2. Wouldn't you at least concede the the violent imagery/language on tv/in movies is more extreme now than it has ever been?4)For those of you who say "then just don't watch it." Don't worry..

I don't have children, but these desires seem very reasonable to me.

Nor do I have a stake in this fight5)I have not nor would likely use the service, but I certainly pity the good folks over at VidAngel. From what I've seen, I really think they meant well.

Thanks for watching!


[End note]

..There's been an update! The 9th Circuit ruled; see below.

Jordan Flake: Welcome to Clear Past. I'm attorney Jordan Flake and I'm really happy to be joined by Matt McArthur. He's an attorney in our firm who practices in bankruptcy. Even though this video isn't about bankruptcy, you'll see that Matt has some experience that makes his viewpoint on this subject relevant. What we're gonna talk about today is in response to this New York Times article that's catching a lot of interest. It says here, "Hollywood: Faith Goes to the Movies." What the article addresses is the streaming video service called VidAngel. Now, I know a lot of my Facebook friends and family have used VidAngel. We've had conversations about it. I'm sure you're the same.

Matt McArthur: Sure.

Jordan Flake: Have you used VidAngel before?

Matt McArthur: I have.

Jordan Flake: Okay, so you're a consumer of VidAngel.

Matt McArthur: Yeah

Jordan Flake: Tell us why you wanted to use it, how it works. A lot of you probably already know, but just by way of review Matt'll talk to us about how it works and then we'll get into what's happening with the lawsuit. Go for it.

Matt McArthur: The way VidAngel works is you go through their services, through their website or their app and you purchase the digital rights to a movie or a television show, and it's akin to a cross between Redbox and Netflix where you can stream the video content that you're purchasing and still have the option of being able to keep it for a short period of time, sell the digital rights back after a day, and still be able to recoup the vast majority of the expense of actually buying the movie. In the past, my recollection is a little fuzzy here, but it was about $1.50 or something in that neighborhood to be able to watch a movie for 24 hours and be able to give those rights back to VidAngel.

Jordan Flake: Great, and so what happens then is you buy a video off of VidAngel, you purchase it for a good reasonable fair market value, they have a digital copy which they've purchased that corresponds with your copy. In that sense the studios are being made whole by the fact that there's an actual copy corresponding with the copy that you purchase in your home?

Matt McArthur: Correct.

Jordan Flake: Why VidAngel? What's VidAngel?

Matt McArthur: The neat thing about VidAngel is unlike Redbox or Netflix, by using the VidAngel app you're actually able to edit the content that you're consuming. If you wanted to filter out all of the F-words in a movie or all of the graphic violence or nudity, you can filter that right out of the movie and be able to watch a movie that you are otherwise unwilling, or perhaps your children were unable to watch.

Jordan Flake: Brian's off camera here. Brian, did we get some of Matt's beautiful children in this?

Brian: They are in the shot you bet.

Jordan Flake: Are they in the shot? Okay, because we have here Davis, and Allie and Dex. We don't necessarily want these little children of yourself watching some of the content, but at the same time there's some really great stories out there. I don't know if Davis is ready for Last of the Mohicans or something like that, or Lord of the Rings, Lord of the Rings being a great one. There's just a few things that might be too scary for kids his age.

Matt McArthur: Sure. You're able to consume the vast majority of-

Jordan Flake: Do you remember what VidAngel movie you watched? Maybe you don't remember.

Matt McArthur: I do remember. We watched Argo. I didn't watch that with the kids, but I watched that with the wife and that was a movie that we would have otherwise not watched. My wife's appetite for that type of material in movies is perhaps not as high as some others.

Jordan Flake: Argo's a great example because you take a few language elements and there's really nothing super violent about it, there's nothing inherently inappropriate from a sexual, nudity standpoint. You win. You're winning because you're bringing in this movie in the home. From VidAngel's perspective they're winning because when they sell you the movie and buy it back, they get to pocket the dollar or $1.50 or whatever from the transaction.

Matt McArthur: By the way, if you decide that you like the movie so much, you can retain the digital rights.

Jordan Flake: You don't have to send it back. It's $19 or whatever. From VidAngel's perspective, they would also say, "Hey, the studios are winning because we bought a copy to correspond with the copy that we sold to the McArthur family. Now, obviously they're upset. The studios are very upset at this. I think the reason's they're upset probably go beyond the scope of my understanding of the industry, frankly. At a bare minimum, we know that the studios make these contracts with Netflix, with Redbox, with Amazon, Amazon Prime, Hulu, Blockbuster, whatever. The VHS at Blockbuster. Bryan's dying off camera here. Basically, they want to be able to control the digital content. I wouldn't be surprised if in the final analysis, in the smoke-filled room where the diabolical studio executives are sitting, just kidding. The real question here is one of how to control the digital content, not just for this one little VidAngel slice of our story, but also prospectively in the future. How do we make sure that we control this?

Matt McArthur: I was just gonna follow up on that presumption you're making. Do you think it's more of a artistic license freedom issue or is it a monetary issue, or both?

Jordan Flake: Both because I think there's a situation where the movie creators, the creative minds, they get done meditating in the morning and having their chai latte. I'm so full of stereotypes today. What's going on? The point is they say to the studios, "I want creative control over this." If the guy who produced Argo, which I think is an excellent movie, if he comes along and the studios say, "Hey, by the way, one of the ways that Argo's gonna get disseminated out to the public is by way of VidAngel, and they're gonna take your movie and make it appropriate for five year olds." They're gonna say, "Well I'm not gonna do business with you, studio, because I have my artistic standards and I want my work to be protected." I definitely think that there's a creative, protect the creative process, "my movie is a work of art and I want it to be put out in the marketplace the way that I intended it to be put out there, not in some other diluted form."

When this originally happened with CleanFlicks, another prior company that underwent a similar lawsuit, Steven Spielberg took great exception to his masterpiece, Schindler's List, being totally neutered by CleanFlicks, turning it into a story about a really nice business guy who hooked up some victims with an additional life. The violence, for Steven Spielberg, was a necessary element to show the horrific suffering of the Holocaust on the one hand, and the extreme magnanimity of Schindler in purchasing and doing what he did to preserve these lives on the other. To him, it was a huge affront to take this and gut it, from a creative angle.

Matt McArthur: I get where you're going with that, but at the same time, if you look at what TNT or TBS does when they're replaying movies for the general TV audience, there's censoring.

Jordan Flake: Or what they do on airliners, right?

Matt McArthur: Sure. That can't be the whole story.

Jordan Flake: They're responding to a market need. That's all the VidAngel are trying to say is, "We're just responding to a market need here, and one of our needs is the McArthur children. We want to bring quality films like Argo, take out the few objectionable parts and makes it so that Misty McArthur can enjoy viewing that movie. I understand that. That's the creative side. The money side is obviously they don't want Jordan Flake purchasing 10 digital copies of a movie and then going to my friends and saying, "Hey everybody, I'm gonna create Jordan Flake's digital streaming platform, and I'm gonna rent these movies out to you, and you guys are gonna give me three bucks back."

Matt McArthur: They're being completely cut out of the deal.

Jordan Flake: Cut out of the deal because I'm the guy, it's sort of a Napster except for Napster was illegal downloads, this would be legal downloads, but unanticipated hosting, me capitalizing off of somebody else's hard. Those are kinda the big questions. VidAngel, I've seen their videos, their ads are funny. They run a very good defense of what they're trying to accomplish and what they're trying to do. Let's talk a little bit about one of the cases right now. Right now there has been an injunction issued against VidAngel.

Matt McArthur: Take a step back. Big studios are suing to stop VidAngel.

Jordan Flake: Studios are suing to stop VidAngel and saying, "This represents a huge end around of our entire industry. It threatens the creative side, it threatens the monetary side, and we gotta shut VidAngel down." VidAngel's waving their hands and saying, "How can you tell me I can't buy a Pablo Picasso. I can buy a Pablo Picasso and I can tape other little figures in the Pablo Picasso or I could cover parts of it with sticky notes because it's mine. I own the Pablo Picasso, I can put sticky notes on it. Then I can go back to the art dealer and say, "Hey, the sticky notes didn't do any damage cause it was on the outside of the frame. Now I'm gonna sell you this Pablo Picasso back and you get to keep some of the money from the transaction. How can you tell me what I can and can't do with your art that comes into my home?"

This is where the streaming rights, it gets very complicated, the monetary angle, what the studios are allowed to do, what they're not allowed to do. The studios have agreements in place with the creative minds that we won't let certain things happen with your content. That's where it becomes an issue and they sue to shut VidAngel down. They did something called an injunction. Although that's not my area of expertise, civil litigation, my understanding is that an injunction is basically saying, "Hey listen, Your Honor. We need to shut these guys down now." It might take two or three years to resolve this case, but in the meantime VidAngel shouldn't be allowed to operate because they're doing irreparable damage to us by not allowing us to capture the profits that we would otherwise. They're probably hurting our relationships with Netflix because one VidAngel tagline is 'See this movie before it becomes available on Netflix,'" which must have the studios pulling their hair out.

There's the irreparability angle, and also there's a likelihood of success of the merits angle. It's probably pretty hard to get a California court that are traditionally very liberal, traditionally very everybody has their day in court, to issue this injunction unless there really was a likelihood of success on the merits. Right now there's an injunction in place and they're saying, "You can't go show these movies." I guess, Bryan, was there a violation of the injunction?

Brian: My understanding is that Neal kept putting movies up on VidAngel after the injunction was put in place.

Matt McArthur: Neal is the owner of VidAngel, correct?

Brian: Yeah, he's putting up new films as well. Sully, and two other films.

Jordan Flake: Just the mere fact that we're saying Sully, I can see the directors and creators of Sully saying, "That was a family movie to begin with. Why am I subjecting it to this filtering service?"

Brian: Maybe Tom Hanks is saying, "I want as many people as possible to see my movie."

Jordan Flake: Exactly, maybe he's saying, "Let it go with this. I want the McArthurs, who for whatever reason they object to the use of this word or that word, they're still getting the main idea of the film. They're still getting to appreciate a nobility of the character, etcetera. That's this current legal status. Do you have any thoughts about what's likely to happen, how it's gonna go down, what you hope happens?" Just give your take on that.

Matt McArthur: I can't say that I used VidAngel a lot, but the times that I did use it, I was very impressed. It really opened doors to us that were otherwise shut, either because me and my wife were unwilling to watch a movie with content that we didn't really appreciate, or because I wasn't going to subject my children to certain types of content. For me, as a market consumer, it gave me more options and more content. Quite frankly, it was really convenient. It was like I didn't even have to go down to the Redbox and rent the blue-ray. I could just stream it from my own home, and have a really nice, cheap on-demand type service, or I could just stream the movie. From my perspective, I would love to see VidAngel be able to overcome this lawsuit and be able to continue it. Whether it's working out some sort of arrangement with the production companies to where they're being cut in, or winning outright.

Jordan Flake: I think that's where consumers probably would, if they're thinking about this clearly, that's what we would all hope for.

Matt McArthur: There's some kind of room for a middle ground where everybody can win.

Jordan Flake: There's gotta be a way that says, "Hey, listen, studios. Why don't you create VidAngel, brought to you by the studios?" Then I think the hangup there is that the creative side might not appreciate that, but then you have the TNT, TBS, airline exceptions. Why don't those things come into prevalence? This is obviously a big bowl of fish hooks. I think one thing I can say is we can't have a situation where regular consumers are setting up movie hosting sites that undercut the studios. The reason why I say we can't have that situation is because if the studios can't make money off of streaming, they'll stop creating movies and then it'll be incumbent on the individual users to create movies, the individual hosting sites to create movies. That's something that VidAngel is facing right now. Netflix is coming up with original content. Honestly the Netflix original content is probably a surprise for most people. Wouldn't have thought that Netflix was going to be doing its own shows.

Matt McArthur: Yeah, they had some ... They had some big hits there.

Jordan Flake: Several years ago, they've had some really good hits. Maybe that's one angle, is VidAngel can do its own content. Maybe there is some comprise to be had between the studios and VidAngel. It'll be interesting to see how it plays out. I definitely hear you on the content things. Under any circumstances, the McArthurs certainly are not going to change their mind about allowing certain content in the home. It's just not gonna happen.

Matt McArthur: Quite frankly, if the movie companies are being cut in on some of these rental profits that VidAngel's currently making, it's simply broadening our horizons.

Jordan Flake: We're very interested. We know we have viewers out there who, like Matt, have tried VidAngel and were very curious to see where you stand on this. We'll keep you posted if there are any interesting developments in this story. In any event, it's very interesting to see how this'll progress. Thanks so much for joining us for Clear Cast. Definitely let us know how you feel about this. Thanks.

Matt McArthur: Bye, everyone.



The 9th Circuit denied the emergency petition from VidAngel. (The 9th Circuit is essentially "the California circuit". Hard to imagine them weakening the copyright protection of Hollywood, yes?)

Next week I'm going to explain why as a Nevadan, you should be concerned if they don't add a ninth justice to the Supreme Court.

How do you feel about living under California law?

Stay tuned..


1 "Get to the lawyers already!" I hear you.
2 Mr. Flake and Mr. McArthur have some great ones of their own as you'll see
3 Is this about Freedom?
4 For those of you who say "then just don't watch it." Don't worry..
5 I have not nor would likely use the service

It's Time for Your 2016 Awards! Fun!

We had quite the year here on the legal blog! Thanks for joining us for the ride!

In 2016 we doubled down on our approach to produce marketing content that benefits the Nevada community, and dare I say, it was a resounding success.1)Only meaning that our growth in web traffic validates this course of action

To show my appreciation for all of our new viewers, I prepared a Special 2016 Awards!

Because you deserve a little bit more than regurgitating information we already published, I tried to mix things up.

As to my methodology, presume an immense of amount of undue influence/corruption. This is entirely biased.2)These results aren't even final.

With that, (I assume you are donned the appropriate long-tail jacket), we begin!

The 2016 Awards: ClearCast of the Year!

ClearCast Episode 4 wins hands down. To this day, I have yet to see anyone else beside Jonathan articulate the difference between 'free speech' and 'workplace rights'.

Sure Kaepernick can kneel..but his employer could likely fire him for it as well (Not in this case, as Jonathan notes, the NFL is collectively bargained).


The 2016 Awards: Entrepreneur(s) of the Year

It was a tie! And unfortunately we still don't have time for a recount.

First, our friend3)I regret forgetting his name selling wares outside of President Obama's rally in North Las Vegas.

..I really should have purchased that McGovern poster when I had the chance. Darn.

Trump Obama Vegas

Yes, all that man does is win. One can only guess how he is winning the post-election.

..Like I said, there was a tie. Our friend above tied with anonymous bloggers of Macedonia that learned how to make a living off of Donald Trump clicks.

There's been much too much written about fake news post-election (you better believe I got in on the action), but not nearly enough on why people want to click on headlines like "Hillary eats people." I hope to explore that more next year..

The 2016 Awards: ClearCast I That Needs More Attention If I Do Say So Myself..

ClearCast Episode 5 on San Francisco federal court taking gun rights away from Nevadans!

This is terrible precedent established by the 9th Circuit earlier this year. In essence, they ruled that if a Nevadan (remember, this is a California-based court) possess a medical marijuana card, (just the card! they don't need to prove anything actual consumption) she may not purchase a gun.

Think about that for a second. Her firearm licenses is dependent upon her medical condition?

..See! What did I tell you!

The 2016 Awards: 'Who Wore It Best?' Award Winner of Campaign 2016:


This one looked like it would be a barn-burner between the good Senator from Vermont and our friend Jeb!,(did he wear the same sweater 4 days in a row?), Bush.

But unfortunately, as it turns out, Jeb!'s4)Yes, that's correct entry came in late December 2015..tough year for our friend from Florida. I don't think we've seen the last of Jeb! just yet..

The 2016 Awards: Best 2016 Election Content

Tie again!5)There's no way they will let me run this election again next year..this just isn't possible

Both, however, tried to move the conversation forward regarding Question 2, marijuana legalization.

Nevada marijuana

First, we went on location with the president of the Nevada Dispensary Association, Andrew Jolley, to give him an opportunity to explain why he supported passage without all the name-calling/exaggeration.

Folks seemed to have appreciated the straight talk. Happy to help!

Pat Hickey, Question 2, Las vegas, marijuana

Next, we sat down with a prominent opponent of marijuana legalization, Pat Hickey, and he was kind enough to spend 30 minutes explaining why feels so passionately about the subject.

We've been in talks with Pat (After popular demand!), and hope to have him back to discuss education policy/ESAs in the near future.

The 2016 Awards: Content That Could Improve Our Quality of Life6)Man I love this show..all I do is win

Clearly to my 'Not-Very-Modest Proposal' to update Nevada's election laws!

Please do this, Nevada electeds. The post lists 10 very good reasons why, including how much safer/easier voting would be for our senior citizens (Not to mention over 80% voter participation!).

And while you're at it, how about a state primary? We don't need to go through that silly caucus stuff again..

The 2016 Awards: The Best ClearCast About Clowns

This category..not as close as some of the previous. We've got to give the award to Episode 8.

I'm sure there were at least two other instances where Jordan asked me, "Is that a clown question, bro?," but neither was as clowny as Episode 8.

(Those were the days).

The 2016 Awards: Browbeat of the Year

Las vegas water laws, 2016 awards

Can't say I was as excited to win this award as much as a couple of the previous, but alas, here we are.

Over the summer, a neighbor of ours7)I'm not here to name names was watering their grass during the very hot/sunny daytime hours.8)Violating the law

How did I respond? With more than 3000 words explaining how with behavioral economics, we can understand why the water law is inefficient.

(And yes, they turned the sprinklers off.)

Joking aside, we want to thank you all for a wonderful year.

We appreciate the love and support of the Las Vegas Valley ; know that we aim to do even better in 2017!

Thanks for reading. Seriously.




1 Only meaning that our growth in web traffic validates this course of action
2 These results aren't even final.
3 I regret forgetting his name
4 Yes, that's correct
5 There's no way they will let me run this election again next year..this just isn't possible
6 Man I love this show..all I do is win
7 I'm not here to name names
8 Violating the law

ClearCast #14: In Response to the Rob Graham Matter

[Editor's note]

Welcome to today's ClearCast!

A quick word about today's video.

If you are unfamiliar with what is being alleged, you can read more here about one of the victims. This is a horrible story about a local probate lawyer allegedly misappropriating client funds; it could be for even more than 13 million dollars.

If you are a client (or prospective) of Clear Counsel Law Group, we understand that it's important that you trust us with your most valuable assets.

In turn, we produced this video to explain how your money is protected.

Of course, if you have specific inquiry (or just need a little reassurance, certainly understandable), please reach out to us at (702) 522-0696.

Thank you and Merry Christmas!


[End Note]


ClearCast Episode 14: Answering Your Questions Regarding Rob Graham

Jordan Flake: Hi, I'm Jordan Flake and I'm here with my partners Jared Richards, Jonathan Barlow. The three of us are the managing partners are Clear Counsel Law Group, and welcome to another ClearCast. Today we're going to be talking about something that has kind of rocked the legal community. We've had friends and family who've asked us questions about this news story. Through this ClearCast and potentially others, we hope to respond to some of these questions we receive, but I'm referring to the Rob Graham issue. Rob Graham is an attorney here in town. He practices in the areas of guardianship, probate, trust administration. The allegations right now are that he stole money from his client's trust account, basically that he misused that money. A lot of my friends and family have asked me, "What's a trust account? How did this happen? Why can an attorney all of a sudden steal a lot of money?" The allegations are that he stole $13 million, potentially, of his client's money is missing.

First of all, before we even get into those questions, we just roundly wholly 100% condemn any type of misuse, any type of unethical illegal access to clients' funds. That should never, ever, ever happen and we'll talk a little bit more about that. We all feel horrible and we spend a lot of time talking about the clients who are victims in this situation, and our heart goes out to them and their families. We'll talk about that a little bit more too as well, that we feel really, really bad. It's the worst possible way to spend the holidays, knowing that there was money that was being held and entrusted in an individual and now that money has essentially been stolen.

First, Jonathan, you're the one who, in our firm, in the three of us, you take a little bit more of a lead role in managing the trust account. Can you talk to us and some of our viewers about what is a trust account and difference between a trust account and operating account, how that works. There's a chance that people viewing this may actually be our clients and have money in our trust account right now and they'll want to know what's going on.

Jonathan Barlow: What we're doing. In short, there's two types of accounts that a law firm generally holds. One is what we call the operating account. That's money that we've earned. It's our law firm's money. We've earned it through fees, through clients paying us money to perform our services. That's our money as a law firm. We use that to pay our employees, we use it to pay our rent, and all the other expenses of operating the law firm. That's our operating account.

The story about Rob Graham doesn't really have to do with his operating account as far as the missing funds. What the missing funds came from was that second type of account that's called a trust account. A client trust account. Attorneys in various types of practices will have a reason to be holding money in a bank account that is not our money. For instance, just like Mr. Graham did probate work, we do probate work. That's when a deceased individual leaves behind assets that need to go through a process before they're distributed to the heirs. In doing that probate work, we'll collect a bank account. We'll close a bank account that the deceased individual had and we'll bring that money and deposit it to our client trust account.

Though that account at the bank is held with our law firm's name on it, it'll say "Clear Counsel Law Group" on the account statement as a designation IOLTA interest on lawyers' trust account, it's not our money. It's not ours. We are responsible to ensure that it goes to the right places, that it's applied appropriately. We are strictly prohibited from reaching into that client trust account and using it to pay anything other than the client's expenses.

Jordan Flake: Let me just stop you there and make sure that everybody's understanding. Grandpa John passes away and there's a bank account just in his name at Wells Fargo. There's $48,000 in that account. We get a probate started and we can go and we can liquidate that $48,000. We can't turn around and use that $48,000 to pay our employees, to buy Christmas presents for our family. We can't do anything like that because it's actually the family that Grandpa John left behind, that's their money we're just holding in trust. Can I shift over here to Jared? Jared does personal injury. Can he talk to us a little bit about the mechanics of a trust account in the personal injury context?

Jared Richards: Right. In a personal injury context, we go and we gather money for an injured person. When we gather the money, we put it into our trust account. Again, the moment it hits the trust account, it is somebody else's money. We then are responsible for making sure that that money goes to the right places. The money will often need to go to pay for medical providers. Sometimes it'll need to go to pay back, say if Medicare or Medicaid had paid medical bills. Sometimes that happens and we have to repay the government. Then we have to pay our clients. Out of that, we also get paid a fee.

At the end of a case, when we are going to distribute money, before we distribute money to ourselves for certain, we will send the client an accounting so the client knows where all the money went, where if we had to advance money for filing fees with the court or to pay to go depose another party's expert and we advance that money, we also account for that money when we get paid back for that amount. At the very end of the case, the client knows where every penny has gone and then gets the money that the client deserves.

Jordan Flake: There's a $50,000 vehicle insurance policy, $50,000 policy. You make a demand and say, "Hey, insurance company, your guy, your insured hit Tommy, our client." We give us the $50,000 and we hold that in trust because Tommy has medical bills that need to be paid out of that purse.

Jared Richards: Right. For example, as you said, let's say that Tommy got hurt and there's a $50,000 insurance policy. We make a demand on the insurance. The insurance company agrees and they pay $50,000. That $50,000 would go into our IOLTA trust account, the trust account we hold for clients. We then do an analysis of are there medical bills that need to be paid out of that account? Are there contractual obligations that our client has that we need to honor in that account?

Jordan Flake: If we just gave that money to the client ...

Jared Richards: Then it would be a problem because then we may be breaching the client's contractual obligations. We may be breaching our own contractual obligations, and we may actually be violating the law that require us to, say, pay back Medicaid.

Jordan Flake: Right, and if we use that $50,000 to run off and pay our own expenses ...

Jared Richards: Then we've got major problems. We've just stole the money.

Jonathan Barlow: Then a similar issue related to that is several law firms have several different actual trust accounts with different account numbers. We hold all ours in one account. We got Mr. Jones's money in there, we got Ms. Smith's money in there. It's all in there. Just like we can't use the trust account to pay our expenses, I can't use Mr. Jones's money to pay Ms. Smith's medical bills for her case.

Jordan Flake: Which is why from an accounting standpoint we have sub-accounts that we keep track of who has what share of that account.

Jonathan Barlow: What we do is we have every single case that we have, every single client that we have, we separately distinguish, this is their money, this is where it went, this is where it's going. Because I can't dip into this account or this person's money to pay the other person's money. That's essentially how a trust account works until it's determined, like Jared said in the personal injury context, this is where all the money's going. Similarly, we do that in the probate or trust context of determining where it's going to be distributed.

Jared Richards: We're all very careful to not make mistakes. However, if the attorney does make a mistake with that money, the attorney is personally responsible for that money. While that money is in the attorney's trust account, that attorney's on the hook for all of it.

Jordan Flake: Right, and that's been my experience since starting our law firm, is that when we have our trust account checks and I'm signing a check and that check's going out the door, I look at that and I say, "Am I sure that this money is money that is under the law ready to be legally paid out?" There's no other considerations here, because if I did send out a check that I shouldn't have sent out, then I personally am on the hook for that. I would go to Jonathan and I'd say, "From operating account you need to reimburse this client because we mismanaged some trust funds and we need to put it back immediately." If that ever happened.

Jared Richards: Not that that does happen because we're careful, but if it were to happen, that's exactly what would happen.

Jonathan Barlow: In the Rob Graham context, one of the big questions is it's $13 million, and that's a significant and sizable trust account.

Jordan Flake: Clear, I'm going to lawyer this one. To be clear, we don't know. We don't have any personal knowledge about what went on with Rob Graham. We just read the same newspapers everybody else does and we hear the same allegations. When people are hurting and they lost their money and it appears that an attorney abused a position of trust, we're all human first and we are rabid and we want justice, but Jared, I think what you're getting at is facts are going to come in and we need to be careful.

Jared Richards: The allegation is right now that he stole $13 million, and if that's true, then [crosstalk 00:09:56].

Jonathan Barlow: My only point is the price tag is shocking, the amount.

Jared Richards: It's a huge amount.

Jordan Flake: What is alleged to have happened here, if you guys want to go into that at all? Did Rob Graham one day open up his online trust account and see that there was $13 million and think, "Okay, this is my chance to write a check to myself?" What's the allegations say?

Jared Richards: I think that what happens in situations like this, you have two possibilities. Either the attorney makes a conscious decision to liquidate the entire trust account and run away with it, which I don't know of any actual incident where I've heard that happening, but I'm sure it has happened before. I think that the allegation here is that Rob Graham was not running as efficient and as successful as a business as he wanted to project, and that he was using client money to supplement his own business, his own money, which is just as illegal and just as wrong. It's just a slower and more slippery slope.

Jordan Flake: So there wasn't a $13 million check?

Jared Richards: Probably here. We don't know.

Jonathan Barlow: I don't think that's the allegation. I think the allegation right now is that over the course of time, he started dipping into some client funds and then continue to dip in to try to make that right. Sort of a Bernie Madoff type of a transaction.

Jordan Flake: Ponzi scheme.

Jonathan Barlow: Almost a Ponzi scheme.

Jordan Flake: Almost, where he's using the money that's there today to meet those obligations.

Jonathan Barlow: Exactly.

Jared Richards: And hoping that the money tomorrow will come in to pay yesterday's obligations.

Jordan Flake: The money that he's waiting to have come in through the door in this situation appears to have not been his money, and that's the major, major problem. If we're just running all of our expenses out of the operating account, that's business. That's just the way it's done. If an attorney were to ever dip into the trust account and say "I need to make payroll this month. Shoot. I only have $15,000 in my operating account and I have $4 million in my trust account. I could use some of the $4 million to pay my payroll since I don't have enough in my operating account." That's kind of what might have happened here.

Jonathan Barlow: Who knows if thinking, "I'll pay it back."

Jordan Flake: I'll make it back and I'll ...

Jared Richards: The only difference between the allegation of him stealing all $13 million in one fell swoop or him dipping in month after month for a number of years is the dipping month after month, we can more humanize it, but it doesn't make it any less wrong.

Jordan Flake: Right, because the end result is the same, which is a tragedy of thinking, "My Grandpa John died. He had $48,000 in his Wells Fargo account. We hired Rob Graham to go and liquidate that $48,000 account and we were going to split it up three ways."

Jared Richards: Exactly.

Jordan Flake: "We were hoping to be done around the holiday season so we could all have that extra money to go out and buy Christmas gifts or whatever for our family." Now that money's gone. That's horrible.

Jonathan Barlow: It's devastating.

Jordan Flake: It's devastating to the families.

Jonathan Barlow: There's a couple other allegations that raise points that are red flags in the way that a lawyer handles his trust account. Apparently, according to allegations, it appears that Mr. Graham was the only person at his office who really controlled the trust account, who had any access, knowledge of the trust account. That sure makes it easier to hide some things that you don't want other people to know about. One good protection, and particularly with the three of us here, is to have multiple people who have control of the trust account, who have eyes on the trust account, and who review that trust account and realize, "What's this payment coming out?" And can question those things if necessary. That's been a good thing for us, is that the three of us can have that equal access to it, equal control over it. Heaven forbid one of us try to do something wrong. You have two people who are going to watch over it.

Jared Richards: Exactly. You have at least multiple partners that have oversight that can track it. Also, something that we do that I think more firms ought to do is we have a bookkeeper that is the employee of a separate accounting firm who helps us keep track of our books. If there are abnormalities that happen in the books, the bookkeeper would be alerted and the partners would be alerted. Those two things are safeguards: multiple partners with oversight, and somebody outside the firm that's connected to a separate accounting firm that has oversight as well.

Jordan Flake: To that point, you have the bookkeepers keeping their books and we're keeping our books and they have to match up every single time. That's all done internally. One of the problems with the Rob Graham case, the allegation is that his mother-in-law was the bookkeeper, and so those conversations and those huge red flags that needed to pop up in this context apparently never did.

Jonathan Barlow: Right. If our books that we keep here on my computer don't match with the accountant's books, then we make the correction as necessary.

Jordan Flake: Do either of you expect to see more regulation from the government or the state bar? State of Nevada, or the state bar?

Jared Richards: The problem is that from time to time, you will hear the Nevada bar reprimand somebody for overdrawing their trust account. Because any bank, the rule is the banks, if they hold attorney trust account money, if the check bounces, if the account is overdrawn, the bank is required to notify the state bar so the state bar can do an investigation as to why. The shocking part of Rob Graham is yes, it appears that he may have stolen some money. I know, I'm a lawyer, I'm being all cautious. That's why they're smiling. Because we don't know. The allegations may have some ...

Jonathan Barlow: It'll come out.

Jared Richards: Yeah, the allegations will come out and the facts will come out in their own due course. The two things that are utterly shocking about this case is the size of the alleged theft and the prominence of the attorney. In the probate estate planning community and those people that watch, I can't remember what news channel Rob advertised on, but Rob Graham's a known name. We all know the name. Between those two things of a large amount stolen by a noted, prominent attorney, it may jar the rule makers into making more rules.

Jonathan Barlow: I wouldn't be surprised, really, to see something else change. Really, the only time that the state bar, and this is why I think there probably will be some changes, the only time the state bar will come and look at your client trust account and make sure to get a truly outside from the government or state bar or whatever, is if there's a complaint made against one of our attorneys, that doesn't even necessarily have to do with a client trust account. Say one of our attorneys messed up a case. Client gets upset and they file a complaint with the state bar.

Jordan Flake: I'm going to lawyer that one too. We don't do that.

Jonathan Barlow: Right, it hasn't happened because we haven't ever been audited. Anyhow, in the context of the state bar coming in to investigate, "Why'd you mess up this guy's case?" They will audit the book at the same time.

Jordan Flake: Just as a matter of course.

Jonathan Barlow: As a matter of course, almost. That's about the only time that they independently come in to audit books. I wouldn't be surprised to see some audit requirements coming out of this.

Jared Richards: The problem you have with that is the sheer number of attorneys out there handling [crosstalk 00:18:06].

Jonathan Barlow: Trust accounts, yeah. It's a monumental task.

Jared Richards: It would be a monumental task to send in auditing standards for everybody.

Jordan Flake: Right, but if that task is necessary to restore the community's faith in our profession, which is one of the goals of the state bar, then they'll have to do it.

Jonathan Barlow: One of the good things to that point is what's happening with Rob Graham's client. As discouraging as it was to see a very prominent name like this happen, we have observed the rest of what we call the probate bar. The other probate attorneys have rallied around this issue, not to pour dirt on Mr. Graham's grave, but to try to get his clients back to where they need to be. That was primarily led initially by Jason and Brandy Cassidy, excellent probate attorneys here in town, who took the initial task of .. What the state bar's asking them, "Cassidies, would you do this?" They took those client files and they've been trying to sort through those files. They've done an excellent task of doing that. Now, I've seen multiple attorneys who have offered to help and who will be probably taking on some of those cases, including our law firm. We'll be taking on a large handful of these cases to help them move forward.

Jared Richards: With the understanding that the money for those cases already seems to have been embezzled.

Jonathan Barlow: Almost in every case, the attorneys will be doing that pro bono, including our firm. Meaning without payment.

Jordan Flake: Without payment. You're right. This is just a small silver lining on this sad story, but it is nice to see that the attorneys all recognize how wrong this is and what a tragedy it is for the clients involved, and to the extent possible we're trying to mobilize our resources, and especially good shout out to Jason and Brandy Cassidy, who are really taking on the bulk of that project, and we're all here to help. Any last closing thoughts on this from either of you? On this whole situation and what you would want to tell our viewers.

Jonathan Barlow: It's shocking to see a story like this. It shocked us to see a story like this about an attorney. It'll shake confidence. A lot of people don't have good opinions of attorneys in the first place, so it'll certainly shake some confidence of them. If there's any hope behind this, is the fact that this is such a rare occurrence. I've been practicing 10 years and nationwide, this is the first story that I've seen of this size or nature. Just happened to happen in our backyard with somebody we know. It's such a rarity to see something like this happen that you can take some comfort in knowing there's a lot, 99.9% of the attorneys out there are doing this the right way, including our firm trying to do the right way the best we can.

Jordan Flake: Great, any last thoughts?

Jared Richards: No, I think Jonathan covered it.

Jordan Flake: I think the only last thing I'd say is really with any regulations, the biggest and best regulation is just be extremely trustworthy. To know why we're doing this and to know that there are real people, our clients are real people and that they deserve trust, respect, and especially when it comes to valuable assets and things of that nature. Thanks so much for joining us for ClearCast. If you have any thoughts on this ClearCast, please link us, comment us, ask us any questions. If you would like to see us answer questions in a future ClearCast, please let us know. Jonathan, Jared, thanks so much for joining us today and we'll see you next time.


ClearCast Episode 12: Pat Hickey Answers Your Tough Marijuana Questions

[Editor's Note]

Welcome to today's ClearCast!

The most discussed (Easily!) Ballot Question this year is Question 2, regarding ending the prohibition against the sale of marijuana in Nevada.

And do we have a special treat for you today! A nearly 40 minute conversation with the most prominent advocate of "No on 2," current Nevada State Board of Education Member, Pat Hickey!

Following along on social media, the conversation surrounding Question 2, unfortunately, has been unable to move beyond 140-character insults. A few days ago, we sat down with a Nevada marijuana dispensary owner, Andrew Jolley, and he was kind enough to explain what marijuana is for those of us not who need a little more background before evaluating Question 2.

In that conversation, he advocated for passage for Question 2, so we wanted have a representative from the 'No on 2' Campaign come on the ClearCast so you could hear both sides.

I doubt you will find a more articulate presentation of the 'No on 2' materials!1)Just my personal opinion, but I thought Pat was great. I wish the "No on 2" campaign would stop trying to trick people, and adopt this course. You can make good arguments against marijuana legalization without being dishonest. Watch the video!

For many viewers out there2)I speak of the prominent 'Yes on 2' folks, Pat may not persuade you to vote No on 2, but regardless, listening to his concerns is certainly worth your while. If marijuana is soon to be legalized in Nevada, it needs to be regulated properly. Pat is raising a lot of valid points here.

In the conversation, you will hear that Pat names Nevada state senator Tick Segerblom three times (in a less-than-becoming manner) in reference to Nevada marijuana regulation.

Know that Monday morning, we are scheduled to sit down with Tick so he will have an opportunity to respond..

Thanks for watching!


[End Note]



Jordan Flake: Hi, I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I'm really excited today to be joined by Pat Hickey, who is leading the coalition I would say against the regulation and legalization of marijuana Question 2 here in Nevada. As always, on ClearCast our goal is to hopefully provide an objective viewpoint of the different issues that we cover. We're always very interested to where we may have been wrong, what we might have missed, what your opinions are. You can always leave comments on the videos, either on Facebook or on our web page.

Pat Hickey, I don't know too much about your history. I appreciate you coming. I understand that you have been an assemblyman in the past and that you are kind of the state coordinator for the opposition against this Question 2. Tell me a little bit about yourself and how you came to be interested in Question 2.

Pat Hickey: I will, and thank you for doing this. It's a great service to your clients, your potential clients, and the public at large, because ballot questions ... Not everyone even knows that issues are going to be on the ballot, much less have an opportunity to avail themselves of this information.

Jordan Flake: Right.

Pat Hickey: I appreciate you doing this. Quickly, yes, I have served in the Nevada Legislature four different terms in two different decades, and in fact in two different centuries, because I came and went ... Apparently lost my mind and returned and came to my senses and left again, so I have been a part of the Nevada Legislature. I now am serving on the State Board of Education, appointed by Governor Sandoval, which led me to concerns about recreational marijuana from two points.

One, this is a very serious and impactful public policy question, whether or not to legalize a recreational drug, and I would add commercialize one, because that is a big part of the move behind this, to create should Question 2 be passed by the voters aiding new dispensaries, or as have traditionally been called pot shops, throughout the Las Vegas area.

My two concerns, and we'll get into it, are number one, for education in Nevada we have serious challenges anyway. The new Nevada that Governor Sandoval and many educators envision is one where the emphasis of career Pat Hickey’s for our students are to be things like advanced manufacturing, the law, a professional industry that's not just reliant upon tourism and basically catering to the whims and the pleasures of people who may be visiting the Las Vegas Strip.

Secondarily, concerns about work force. I'm in the construction business, and workplace safety is a real consideration for those that are involved in either alcohol or substance abuse, including marijuana. In Colorado, and I've been to Colorado three times in the last six months, as a result of legalization ... Resulted in real workforce challenges, especially manufacturing and the construction industry, and even the gaming industry, which obviously is important to us.

Jordan Flake: Really there's just ... Education is obviously a big concern for you and the effect that legalization could have on our ability to kind of implement this new Nevada, especially from an educational standpoint, and then just kind of a constructive workforce aspect of this is do we want to have marijuana be something that's easily accessible to and potentially affect or ability to be productive in this state.

You've gone to Colorado a few times and done some research on this. Let's just kind of take the classic case when somebody comes up to you and says, "Hey, Pat Hickey, I went online and I tried to find resources about the dangers of marijuana," and I've heard people say there's just no proof that it's any worse than alcohol. In fact there's some indication that it's nowhere near as alcohol. Alcohol is I heard a hundred and fourteen times more toxic than marijuana and there's never been an overdose in marijuana, whereas alcohol kills people.

Alcohol yet is something that we regulate and something that we allow and something that people can participate in recreationally and socially. Why can't we just regulate marijuana the same way we regulate alcohol to an extent? How would you respond to that? I'm sure you've heard that countless times.

Pat Hickey: Right. Right. In some ways it's true. Abusing or overusing alcohol can certainly be detrimental to a person and so can marijuana. While it's technically true that there aren't instances of people that sat down and smoked so much that it killed them, as can happen in the case of alcohol, but at the same time it's a cumulative effect. I mean the same could be said about tobacco.

Jordan Flake: Sure.

Pat Hickey: I don't know of anyone that has sat down and smoked for thirty-five hours straight and has died as a result of it.

Jordan Flake: Right.

Pat Hickey: The health impacts, the costs to society are the result of a lifetime of a habit that is not altogether healthy for you. We have a huge challenge in this country. We seem to be having a growing tendency towards dependency. In fact, there's an epidemic of prescription drugs that society, and Nevada in particular, is facing right now. To the point about if you regulate something and you tax it, legalize it, then don't you take care of the problem? I would argue that prescription drugs are both legal and regulated and yet we're abusing them horrendously.

The new marijuana, while most people who smoke marijuana do not become addicted or become a great detriment to them, but the new marijuana is far more toxic. The THC levels, the  psychoactive elements of them are far stronger than the elements ... The THC of the marijuana in the sixties and seventies, sometimes seven or eight times as strong. In the form of edibles, which are now being marketed and arguably are somewhat child-friendly by the big marijuana industry, which I would say is quite akin to the big tobacco industry, that a number of decades ago thought that by marketing Joe Camel they would appeal to a younger clientele and therefore create for themselves a customer base for life ... I think the same thing is going on with the marijuana industry.


Pat Hickey, Question 2, Las vegas, marijuana


Jordan Flake: You raised a lot of additional questions that I have just in your response there. First by way of clarifying what you said, the alcohol corollary is one way to argue it, but the prescription drugs is another. People would disagree about that, whether it turns out to be regulation leads to dependency of use, as in the case of prescription drugs. Just kind of having you respond a little bit more on the alcohol front, would you favor the prohibition of alcohol if you were the end all, be all, and could just make it happen?

Pat Hickey: We tried that once in our history and there were socio and economic reasons for doing that. The reality is at this point in time ... I think it's somewhere in the category of seventy percent of Americans participate in one way or another in the consumption of alcohol. It's somewhat like eight percent for marijuana, and alcohol has a long cultural history to it as well. On the surface, yes, it's another substance that certain people choose to enjoy. I don't have a problem with decriminalizing possession, and while a member in the Legislature I looked for people to co-sponsor that. The problem that I have with it is the over-commercialization of it that Question 2 is going to do.

For example, not putting in the language of the initiative petition anything to restrict advertising, anything to control the potency or the THC levels, or to even ban the marketing of edibles such as gummy-bears, pot tarts, soda pot and other ice creams and things that obviously have an appeal-

Jordan Flake: It's the Joe Camel of marijuana.

Pat Hickey: It absolutely is.

Jordan Flake: To that point, you mentioned big marijuana. We know who big tobacco is. We can get on our websites and we can identify these companies that really are big tobacco. Who is big marijuana? Do we know who these people really are?

Pat Hickey: Yes, we do, but let's talk about Nevada, and especially with the law firm you're certainly aware of ... And the "Panama papers" recently disclosed the fact that it's quite easy to hide behind shadow corporations in the state of Nevada, given the way that we've marketed ourselves in the use of resident agents and other corporations for tax reasons and others. It's quite easy to incorporate in Nevada.

Yes, we do know a number of the people behind them, and in fact they're not Woodstock hippies. They're corporate folks with trust funds and others that are investing into a market that they think will be profitable. An example can be a corporation just purchased from the Bob Marley family, the old Reggae singer from Jamaica, where marijuana is somewhat of a religious icon or a custom. They just purchased the naming rights from Bob Marley for a product, Marley Naturals, for fifty million dollars, so we're talking about corporate interests who are behind this.

Specifically, this is on the ballot in Nevada due to the support of the Marijuana Policy Project, which is a Washington DC lobbying organization, somewhat of a guild for the industry itself, funneling its investment monies, and much of the original monies were from Colorado, California and others, where the industry already has a foothold. This is big business.

We love big business in Nevada. My argument is I would much rather see the Teslas, the Switches, the Faradays, socially responsibly investing in our future rather than trying to produce a new economy where what the jobs are pot shop cashiers.

Jordan Flake: Right. I get your point. That's interesting. I admit that I don't know who these big players are, who the big investors are, and it does give me a little bit of pause to think about what their motives and intentions are and just-

Pat Hickey: It's green.

Jordan Flake: Right, yeah.

Pat Hickey: And not necessarily the stuff that is rolled into the joint if you're still smoking it.

Jordan Flake: I have no doubt that's the case. With respect to children, my understanding when I spoke with the owner of a dispensary the other day is that here in Nevada it would be illegal to have anything shaped like a bear, anything shaped like a ... Something that would identify with kids.

Pat Hickey: That's not accurate. That's in response to the fact that in the initiative itself there are absolutely no restrictions to the way it can be packaged, produced or marketed.

Jordan Flake: There's not a restriction on the ability for it to be something that would be easily opened by a child?

Pat Hickey: No, no, but now they hope to put that in through regulation. You'll see proponents like Tick Segerblom and others say we're going to go with the Legislature and fix all of these things that the concerns have been raised. My argument would be why don't we do this at the Legislature to begin with and really have this discussion out in front of the public and with the public involved? In other words, a person should be at the table from the business interests involved with the government entities that are going to have to regulate this, with educators who are going to have to deal with its impacts, with Metro and law enforcement. We ought to all be at the table and have this discussion.

One of the arguments, and it was made by the Colorado Governor, when he's advised Governor Sandoval and others to say wait a few years. See how it's working in other states before you go headlong into it. We just legalized medical marijuana, and oh, by the way, there are still some real challenges there.

Jordan Flake: Skeptics would say that that Colorado Governor is potentially saying I want to keep the money and I want to keep people coming here for a few years and keep the party going in Colorado.

Pat Hickey: Fine. As far as I'm concerned, let him.

Jordan Flake: No, this is great. This is great information. One thing that ... You said so many things that I could kind of pick up and very interesting, want to go with it. One thing I think is indispensable here is you said, Pat Hickey, that you actually wouldn't have a problem ... I don't want to put words in your mouth, with private possession of marijuana. Maybe it sounds like you're more concerned about the corporate kind of policy effects, and not so much of the individual's choice and right to consume. Is this a-

Pat Hickey: Right. Even Adam Laxalt, conservative Attorney General, chief law enforcement official in Nevada, has said we are not interested in arresting people for what they do in their private life. In fact, we already have de facto decriminalization. It's been by legislative regulation reduced down to a misdemeanor. Most people, if they're arrested, are just going to get a ticket or sent to an education class or a drug enforcement court.

Police in the state are not interested in arresting people for it, and by and large federally less than one percent, 0.7 percent in fact are in federal prisons or state prisons for that matter for mere possession of marijuana. There are still a lot of monies and crime related to selling drugs. One of the arguments against it is the black market on drug dealership, it doesn't go away.

The Attorney General of Colorado has said we have more cartel activity than ever as a result of it, because when you legalize it, then a person's possession of it is no longer a factor whatsoever, so drug dealers, as we've seen in Las Vegas, they simply innovate and they find ways to still pretend to be legal delivery services in the instance of medical marijuana, and in fact they're not, and they're going to pop up all over should legalization take place.

The tourist that comes down on the Strip and visits from Ohio for a convention isn't going to want to try to go over to Maryland Parkway and find the closest pot shop. They're going to order off an internet service that they find that says it will deliver to their hotel room, and they're probably going to pick the cheapest one, which will in most cases probably result in them being an illegal one, since they don't have to comply with the regulations, they aren't taxed, and so these ... Drug dealing will continue as it has in Colorado. We're not going to get rid of it by legalizing.

Jordan Flake: Interesting. I haven't read up on it and I don't know the extent to which ... I'm at a loss to kind of respond with counterarguments that might be out there at this point. That being said, one thing that you mentioned earlier that I want to come back to was the threat of marijuana use on the workplace. I understand that the question actually continues to protect an employer's right to drug test their employees. If every employer, including for example Clear Counsel Law Group, my law firm, we could do this, even if it gets legalized I could still say, "Hey, employees, we're all getting tested because this is one of the conditions of working at this job." Doesn't that cover that-

Pat Hickey: As written, that's correct. Question 2 does not take away that right of an employer to still have a zero tolerance drug policy in effect, drug test. Many industries in the state in fact are required to. Certainly the gaming industry does, our largest. Anyone involved in transportation, the construction industry, which I'm a part of. I mean workers comp, and you deal with things like that ... Our liability insurance dictates that you better have a zero tolerance drug policy or you're going to see the expenses for workers comp and insurance go through the roof.

Jordan Flake: Right.

Pat Hickey: While it does not remove that, what it does is create additional challenges for human resources departments and others, because then you're going to get litigated persons that have a medical marijuana card and say I should be able to be using it on work since it was "prescribed" by a physician. So far in Colorado, the courts have held up the rights of employers to still make those decisions and dismiss employees who have broken their policies. On the other hand the Marijuana Policy Project ... This will be good business for lawyers, by the way, have promised to litigate this right and left.

Tick Segerblom said he thinks Nevada employers if legalization takes place, and he's on record for saying this, that they'll probably have to loosen their drug enforcement laws because everybody will be smoking it. That's okay, but as a parent and grandparent and member of the State School Board, I don't want that relaxed for school bus drivers, for teachers, for airline pilots, or for people that climb my forty foot ladders in my painting business.

Jordan Flake:     So we're not quite as concerned immediately that people are going to be showing up to work high? It's the fact that this is going to create litigation, additional policies, additional need for regulation, and just basically a ton of HR headaches essentially, along with the likelihood that as a result of that litigation the door will possibly get wider open to permit a high school bus driver, for example?

Pat Hickey: Yeah.

Jordan Flake: These are some of the concerns that are out there?

Pat Hickey: One of the problems ... Look, I fully understand as an employer the problems that alcohol can bring to bear on a family, on an employee. If someone falls off one of my ladders in my painting company, we're going to rush them to the emergency room. They're going to be treated, but one of the first things that's going to happen is a drug test by the hospital. If it comes out that this person was inebriated or impaired on the job because of abuse of a substance, marijuana or another drug, it's going to impact my workers comp rates, my insurance rates. I may even be taken to court for not enforcing a drug-free policy because it endangers my fellow employees, it endangers my customers, so it presents all kinds of problems, which translate into costs.

Let me tell you something specific about our industry, the gaming industry. In Colorado I visited with the head of their Resorts Association before I briefed members on the Strip of our Resorts Association, who took a very strong stand against this. There I was told that they're having a particular problem in their casinos in Colorado, and they're few and far between, nothing like Nevada, but especially in their entry level positions in food and beverage departments. They are finding more and more employees, because they do drug test and they have to because it's against federal law, and in order to keep their gaming licenses, our Gaming Control Board has been adamant to gamers in Nevada, big and small, you cannot have anything to do with this industry whatsoever, the Gaming Control Board has.

You can't take monies that come in from the cash business. You can't be investors yourself. You're going to have to report under sections of money laundering any people that you bring in that you suspect are coming from a marijuana dispensary, because maybe it smells like skunk. I say that affectionately of course.

Back to the point in Colorado, they are having entry level employee problems because there are people that are applying for jobs and they're typically eighteen to twenty-nine year olds who are now frequently using more in Colorado, number one it's popular, legal, permissible, abundant, and they're failing pre-employment drug screens. When that happens, then where do they get jobs and does society have to take care of them in other ways?

Jordan Flake: I have some brothers who work for the federal government and I think it's the same story on the federal level, that's just not going to be permissible. That's interesting. You kind of heard it here first from Pat Hickey, that if this passes and you don't consume marijuana, then you're almost assured to get an entry level job. Is that right? Because they're going to have a hard time-

Pat Hickey: That's a good point. We in the construction business ... Let's assume the Oakland Raiders become the Vegas Raiders and the stadium is built. One of the reasons for the support of lawmakers, which I used to be one, is predicated on the notion we're going to have a lot more construction jobs. Great. The industry has been somewhat depressed since the Great Recession. Okay, but still those guys, union or non-union, are going to be drug testing because they're going to have to. Already the construction industry has great challenges finding qualified employees. I can tell you that personally. This is one more barrier to that.

Another problem with marijuana impairment, we haven't scientifically come up with a test to be fair about what is real impairment. People can actually test positive because it stays in your system, in your fatty areas, unlike alcohol which is in blood and then it sort of dissipates, so you can tie one on Friday night, come to work on Monday, maybe experience a random drug test and be fine. That may not be the case with marijuana. You may be determined to be impaired even when you're actually not, and that's certainly not fair either.

Jordan Flake: Right, and that's interesting, because that issue of impairment, that's another one we could spend a very long time on that, but I know that that's part ... As a voter, part of what makes all this very hard to read and understand is that both sides are obviously going to use the data that supports their position, and I don't blame them. That's the reality of politics that I'm sure you know a lot about.

Some of the data that says, for example, more accidents are as a result of marijuana abuse. I'm wondering if that's relying on data about impairment that means that yes, there was marijuana, the person that caused the accident had marijuana in his system, but it was actually from two days ago and he was just a bad driver because he was checking his cell phone. You see what I'm saying? There's data problems that-

Pat Hickey: Of course there are, and you're right to the point that both sides can use things selectively for their own argument. I get that, okay? That's why I appreciate an opportunity like this where we're talking about not just the talking points that the other side would use. We're going to have all kinds of money for schools. Let's talk about that, or are the edibles or DUIs going to affect us.

We're having a more nuanced conversation here, and that's why ... Part of my argument is what's the rush folks? Even Colorado took twelve years to go from medical to recreational. We're trying to do it in the span of one or two years, when we still have real challenges and questions about how to regulate appropriately and fairly the medical marijuana industry, which I do not oppose and I voted for the funding mechanism for it.


Pat Hickey, Las Vegas, Nevada, marijuana, question 2


One of the real challenges is this coming under the Department of Taxation as written in Question 2 in the initiative. There are huge challenges for them to become the new super agency to have to manage this. In fact, in Colorado their counterpart met with our head of Department of Taxation and said I'm here to tell you three things. This is going to be far more complicated than you think. Are you setting up the infrastructure, the ecosystem to manage this whole new business, because make no mistake, government is going to be now in the business of marijuana even in more significant ways than we are alcohol, I'd be happy to point that out.

He said it's going to be far more complicated than you think and it's going to take much more time, and maybe most importantly, or it should be most important to the taxpayers, it's going to be far more costly than you think, and it's all front-loaded, because we're going to have to put all this money into infrastructure, in growing a department ... And if you're in business, you know the Department of Taxation has taken fourteen months to figure out the two-sided form for the new commerce tax, and it's still a big fat mess.

Now we're going to ask our glorious Department of Taxation, I have friends there, to become the new Food and Drug Administration, to deal with pesticides, with labeling, with potency, with background checks, with educational programs to present to schools to warn people-

Jordan Flake: What we have is some-

Pat Hickey: We're ill-equipped for this to go rushing into.

Jordan Flake: We have some bureaucratic heavy lifting to do and a really steep growth trajectory, but don't you think that ... Isn't it the case that the taxation of marijuana over the course of time, the taxes that they levy on the actual purchase and consumption, et cetera, et cetera, will be a great boon to the coffers of the State of Nevada?

Pat Hickey: The proponents would certainly like it to be a great boon.

Jordan Flake: Has it not been in Colorado?

Pat Hickey: For those ... Not exactly. They've said that. The Governor and the drug czar and others have said those things. The Governor said, "If you think this is going to pave roads and hire new school teachers, you've got another think coming." Most of it is going to go into creating the infrastructure implementing. Nevada law as it's proposed, thirteen pages, is very different from Colorado's. At least with Colorado's Amendment 64 a certain percentage of monies went to education first.

In the Nevada initiative, we're third on the list. Education sort of gets the crumbs. After taxation, local municipalities, counties and cities are repaid for their expenses, then the budget of the district schools ... Let me say this specifically about it. Proponents will tell you in advertisements from their studies that when all is said and done and all those back-fills have been done to government, they project Nevada will get annually twenty million dollars a year pure for education. You say that's good, I'm a proponent for education.

As a Republican, I voted for more taxes for schools, for education, which got a lot of people un-elected as Republicans standing with Brian Sandoval on that. I'm for more money for education spent appropriately, but take that twenty millions in the context. We spend, and I know this as a member of the Budget Committee and a chair of some of the sub-committees on funding ... We spend a total of $5.9 billion annually in education from all sources, federal, state, local, property taxes. That twenty million that they're projecting is less than one-third of one percent of our overall education budget, so to say it's a mere drop in the bucket ... Even Chris Giunchigliani on PBS television admitted there's very little money that's going to go to schools, but they've been advertising-

Jordan Flake: Right. That doesn't stop people from saying, "Smoke marijuana, help our children."

Pat Hickey: Yeah. Think about the logic of that. I love the editorial recently by ... Our rural papers keep us somewhat sane in Nevada. The Elko Daily, which is not all that unsophisticated with their billion dollar companies, Barrick and Newmont Mining out there, recently editorialized against Question 2 and said selling marijuana in order to pay for schools is kind of like selling pornography to support daycare, something to think about.

Jordan Flake: Yeah. That's a very visceral kind of ... You have a very visceral reaction to that quote for sure.

Pat Hickey: Yeah. The other side of it is though ... Your more serious question was isn't over time this going to be a boon or a help to the expenses of society? Again, I would point to both alcohol and tobacco, to the proponent's point if we regulate and tax it, isn't that a good thing? The reality is for both alcohol and tobacco, for every dollar in revenue that is paid, and this is from national studies, ten dollars goes out other doors to pay for related health costs, for regulation, for lost employment time because of substance problems that people have, just the whole infrastructure. Tobacco, cigarettes, and I would argue marijuana, they're money drainers on society. They're not money makers.

Jordan Flake: That's interesting. I think any proponents listening to this would kind of freak out at the idea that you're equating tobacco-

Pat Hickey: They can just chill out. Just take some Segerblom haze and it'll calm them.

Jordan Flake: Tobacco and marijuana, equating those I think would be a big problem in the minds of some of the proponents.

Pat Hickey: Okay. I'm happy to make that comparison. The industries are comparable.

Jordan Flake: I'm talking about from anatomy, biological standpoint.

Pat Hickey: Do you think it's any safer to smoke marijuana than it is to smoke tobacco? I think the science says no. That's why it's evolved into edibles and things like that, just because of that very fact. Isn't it also true the tobacco industry argued effectively for decades that tobacco was not addictive?

Jordan Flake: That's true. Yeah.

Pat Hickey: In fact, there's famous scenes ... I think one of Michael Moore's movies, you know, where they're all lined up before Congress and the committee chair is now, "Is tobacco addictive or not?" "No, it is not," Philip Morris. "No, it is not," Marlboro Man, all the way down the line, when in fact Congressional research found that they knew from the 1930s that tobacco was addictive.

Proponents are saying marijuana is not addictive. It's less harmful, less addictive. I think studies will show otherwise, and I do think we should be studying it more. Anecdotally, I think many of us know people, and I do as a child of the sixties ... You can say it's addictive or not, but I have friends that smoke it four or five times a day. Now if you want to call that an addiction or just a serious habit, to me that's all ... That's a matter of-

Jordan Flake: Yeah. Pat Hickey, I appreciate you so much coming and talking to us. I have one more question here and then I'll let you go. You've been great to answer all my questions. You make the argument that Sandoval's new Nevada should focus on getting Faradays and Teslas in here. I certainly agree with that vision for our future, but at the same time isn't there kind of this idea that we live in Sin City, we already participate in many, many of the vices out there and we actively market that image, and it would almost seem that marijuana is just a natural fit for that industry, that if you come to the Strip you can participate in a wide array of debauchery and now legally marijuana?

Part of the boon to the economy is this idea not necessarily of just the twenty million that would go to the schools, but also the increased commercial activity based on the ... This is an argument out there and-

Pat Hickey: I get that. Of the forty-two million tourists that fly in annually and the rest that drive in from SoCal, maybe sixty million-

Jordan Flake: Sixty million a weekend.

Pat Hickey: Okay. According to proponents, and I think it's true, and according to Metro, if they want to get marijuana now they can. Frankly, I don't care about the impact of marijuana upon tourists. I do care about its impact upon Nevadans. This is a Nevadan's choice, whether or not we want to decide to legalize, regardless of what other states have done. In the overall, I would say I don't think it supports the direction that we're trying to go in. I don't think it's going to be helpful for students in the state, where once it's legalized, popularized, it will become more abundant, more acceptable, frankly more used. Colorado and Washington state already proved that. It's just common sense.

I don't want to see more barriers. I teach in the schools. I teach at the university level. I'm on the board of a charter school. I substitute teach in the Washoe County School District. I don't want more barriers to our students' finding success either beyond school or once they get into the workplace, and that's why I'm opposing it.

Jordan Flake: Great. Pat Hickey, I really, really appreciate it. I feel like we could have talked two or three times this long. You have a lot of opinions and views on this and a lot of information. Thank you so much for giving us so much of your time. I really appreciate it. Thank you for joining us for ClearCast and please let us know what you think. We could potentially do a follow-up, especially if it doesn't pass and comes on for another-

Pat Hickey: If it doesn't pass, I'm taking a long vacation and I'm not going to talk about this stuff-

Jordan Flake: For a long time. Thank you so much Pat Hickey.

Thanks for joining us.



1 Just my personal opinion, but I thought Pat was great. I wish the "No on 2" campaign would stop trying to trick people, and adopt this course. You can make good arguments against marijuana legalization without being dishonest. Watch the video!
2 I speak of the prominent 'Yes on 2' folks

Asking the Tough Questions About Nevada Marijuana Question 2

[Editor's Note]

Welcome to today's ClearCast!

The most discussed Ballot Question this year is Question 2, regarding Nevada marijuana.

Specifically, the ballot question asks the following:

Shall the Nevada Revised Statutes be amended to allow a person, 21 years old or older, to purchase, cultivate, possess, or consume a certain amount of marijuana or concentrated marijuana, as well as manufacture, possess, use, transport, purchase, distribute, or sell marijuana paraphernalia; impose a 15 percent excise tax on wholesale sales of marijuana; require the regulation and licensing of marijuana cultivators, testing facilities, distributors, suppliers, and retailers; and provide for certain criminal penalties?

Yes  No 

We begin our discussion with the premise: How can we vote on a legality of a substance without knowing what it is?

We just did not know enough about Nevada marijuana to decide if we should be in favor or oppose Question 2

In turn, we visited Andrew Jolley(proprietor of The Source in Henderson) and he was willing to answer a few of our questions.

Mr. Jolley could not have been nicer, and we appreciated his hospitality very much.

We hope that if some of you out there have questions about Nevada marijuana that this will be informative.

Tomorrow, we are scheduled to sit down with Pat Hickey of the 'No on 2' campaign so he explain the opposing position.

Thanks for watching!


[End Note]


Inquiring Into the Tough Issues Surrounding Nevada Marijuana Ballot Question 2

Jordan: Hi, I'm attorney Jordan Flake, with Clear Counsel Law Group, and welcome to another ClearCast. Today, we're really excited to be joined by Andrew Jolley. Thank you for being willing to join us. We're here, at The Source, which is a medical marijuana dispensary, and ClearCast is our law firm's web production that we do on a fairly often basis. We are trying to take all of the ballot initiatives, one by one, and just try to get an education about them, so that everybody who watches this will have a better understanding so that they can go to the polls with an idea of what they're really voting for.

I've got to be honest, Andrew. I am someone who is pretty naïve about marijuana. I have a generally negative perception towards marijuana. It conjures up images of people just having fun and being irresponsible, and it conjures it up images of crime and drug dealing and things of that nature, so I'm a little bit of a fish out of water in this environment. What can you tell us about marijuana? What can you tell us about some of my perceptions and how you have had to deal with that as you've opened this medical marijuana dispensary?

Andrew: First of all, you're not alone. I grew up with the same negative perception of marijuana, and I think we do ourselves a disservice when we lump all drugs into one category. I think we would all understand that there's a difference between prescription drugs and opiate prescription drugs and over-the-counter drugs and drugs that are instantly addictive and can kill you, versus drugs that can't kill you.

I think there is a very general misperception about marijuana and the history of marijuana and why it's illegal is absolutely fascinating for me. It started in the 1930s when there was a prohibition put against marijuana, and then it was solidified in the 1970s, in 1970 through the Controlled Substances Act in 1970 that President Nixon pushed.

The bottom line is that marijuana is largely misunderstood. It's a natural plant that has a lot of medicinal benefits and is not nearly as dangerous as the Reefer Madness type mentality and propaganda made it out to be. Is it a cure all? Absolutely not. Is it healthy for children? Absolutely not, but we need to look at it for what it is and use reason and fact and science instead of the propaganda of the past.

Jordan: I think that's what we're getting at. For our viewers out there, if they want to vote in favor of the measure or against the measure, that's definitely their decision, but what I think would bother me if I were you is that people are relying on what I just expressed, which is just a natural, I would almost call it a lazy fear of marijuana, rather than actually getting down and understanding, "Here's why I am against it," or, "Here's why I am in favor of it."

What can you tell us about this question two? Can you just, for the benefit of our viewing audience, what's on the table with question two? What's it really getting at, and where you stand on why you believe it should pass.

Andrew: Sure. Thank you. Question two is a ballot initiative here in Nevada that's on the ballot this election cycle on November 8th, and question two, if passed, will allow adults who are 21 years and older to purchase up to one ounce of marijuana for their personal use. There are a few things that I need to explain that it will not do.

The initiative will not take away patient's rights under the medical marijuana program. It will not allow for public consumption. It will not allow for the sale to minors, and it will not change employers' rights to drug testing and to having their own drug policies.

Jordan: So a construction company could still say, "No marijuana, and we can test you," and the public consumption thing, I don't have to worry about going down to a show or something and having my kids deal with a bunch of stoned people who are sitting there smoking marijuana and my kids getting secondhand smoke. Basically, I just have to deal with alcoholics tripping over themselves.

Andrew: Yes. Alcohol is allowed to be consumed in public here in Las Vegas, but marijuana is not and it will not be allowed to be consumed publicly if question two passes.

Jordan: Then, the minors, of course, still out of the question for anyone under the age of 18, or 21?

Andrew: 21.

Jordan: 21, okay, so it's out of the question for people under the age of 21. I imagine getting marijuana legally and then administering it to minors is also illegal?

Andrew: Well, if they have a medical marijuana patient card, it is legal for minors, and that is legal today.

Jordan: What we know, what we can compare marijuana to a little bit is already our familiarity with alcohol and alcohol laws and things of that nature. Now, they're obviously different because you can consume alcohol in public, but what are some of the differences? What if I were just to say, "Okay, Andrew, so what you're saying is marijuana is just like alcohol." You say, "No, that's what what you're saying." How do you compare marijuana and alcohol?

Andrew: Well, I believe we should regulate marijuana like alcohol, because that's been effective. I think we can all agree that the prohibition of alcohol was a disaster.

Jordan: Like the 1920s prohibition.

Andrew: That was an utter disaster, right?

Jordan: Right.

Andrew: It created a lot of organized crime. There was a lot of violence, and the entire market just went underground. The same thing is happening with marijuana today. There's a misperception that marijuana is not in our community and that by passing question two, it will come into our community. The reality is it's already here. Just ask my 14 year old daughter, who goes to middle school. She hears about this stuff.

It's already in our community, so the whole purpose of question two is take marijuana out of the black market, the criminal market, the cartel market, the drug dealer market, and put it into a regulated legal market where we can test it to make sure it's safe, we can package it in child-proof packaging so that it can't be accessed by children accidentally, and we can tax it.

By the way, all of the taxes for question two, 100% of the tax proceeds, will go to funding our K through 12 education, which as you probably know, is 48th out of 50 in the nation, and something that we desperately need here in Nevada, so the idea is not to say that marijuana is just like alcohol as a substance, because marijuana is much safer than alcohol as a product. What we're saying, though, is that we should regulate it like alcohol because the regulatory framework for alcohol has been successful in keeping alcohol out of the black market and into a legal, regulated market.

Jordan: I really appreciate the explanation. I have a question for you here about some ads that I've seen on TV. I saw one ad that says that instances of marijuana car accidents, marijuana related DUIs resulting in car accidents, have increased in Colorado by 13%, if I remember correctly. What can you say about that? How would you respond to the possibility? I'm a voter. I'm afraid that people are going to be smoking marijuana and driving dangerously on the roads. How do you respond to that?

Andrew: Well, ironically, DUIs in the state of Colorado are down 19% since 2014 when they legalized marijuana, and so what's happening is more people in Colorado are choosing to use marijuana instead of alcohol. There's still an issue with driving impaired, but that is not unique to marijuana.

We should be ensuring that our roads are safe and that drivers are not driving impaired under any substance, but it just so happens that driving under the influence of marijuana, while not something that I would encourage at all and I think needs to be stopped, is much safer than driving under the influence of alcohol. That's why you've seen an overall decrease in DUIs, but there's then a slight increase of the proportion of people who have marijuana in their system.

Something else I should note is that there's a scientific reason for that, too, unlike alcohol, which leaves your system in a matter of hours, your metabolites of marijuana stay in your system for 30 to 90 days, and so they're having to wrestle with these issues in Colorado, and we'll have to address them here in Nevada if question two passes, but overall, marijuana is much safer than alcohol. A recent report showed that it's 114% times safer than alcohol, and overall DUIs are down 19% in Colorado.

Jordan: Overall, there's a net reduction in DUIs. It's just that the proportion of those DUIs that do exist involve the [inaudible 00:09:16] marijuana continuing in the system and potentially not even contributing necessarily to the accident.

Okay, so the next one really concerns me, which is children being admitted to the emergency room because they came across gummy bears, which that's what my kids would do. If they find gummy bears in the house, they're going to pop a few in their mouth, and the idea for me as a parent, probably not in our house, but maybe at some friend's house and finding some gummy bears, popping those in their mouth, that actually worries me. I don't want that to happen anywhere. Can you respond to that ad? You've seen that ad.

Andrew: Yes. I've seen those ads. Protecting our children is no doubt something that we all have in common and we all should agree upon, but we need to put it in context and we need to look at facts versus hype.

Number one, gummy bears, marijuana-infused gummy bears, are illegal in Colorado, so these ads that you're seeing with gummy bears falling out of the sky, that would illegal. They're not allowed, so in Colorado, you cannot produce edibles, marijuana edibles, that take the shape of a human figure, animals, or fruit. We will have the same restrictions in Nevada.

Additionally, everything that we sell under the medical marijuana program and everything that will be sold under the adult use program has to be sold in child-proof packaging, so something like a vial that we're used to in the prescription drug world, all marijuana products will have to be sold in something like that to prevent usage among children.

Getting back to your original question, in 2014, there were 45 instances of children who accidentally consumed marijuana products that were reported to poison control in Colorado.

Jordan: 45?

Andrew: 45.

Jordan: That's still more than you want.

Andrew: Absolutely. One is too many. However, there were 1,422 reports of children accidentally consuming cleaning supplies that same year, so 3% of cleaning supplies, and by the way, marijuana cannot kill you. It can make you tired. It can put you to sleep or in a very tired state.

Jordan: It can make you relax. It can make you see the world differently. Just kidding. I don't know. These ER things, visits, left open my perception of maybe these kids overdosed and died from their marijuana consumption.

Andrew: No one has ever died of a marijuana overdose in the history of cannabis and humans. We've been consuming cannabis for thousands of years, our species has, and no one has ever died from it.

Jordan: Wow, okay.

Andrew: Let's put it in context. Let's consider an accidental marijuana ingestion, which would be bad and no one wants, in the context of the accessibility of alcohol, of prescription drugs, or cleaning supplies, of Tide Pods. You've seen those Tide Pods you can use as detergent?

Jordan: I've had my little daughter grab those and try to open them and stuff like that, and that would hurt her, and that could potentially be fatal, but what you're saying is that we're looking at is not going to be fatal.

Andrew: That's correct.

Jordan: Under these circumstances, the packaging is going to be in the kid-proof packages, is that correct?

Andrew: That is correct. Everything that will be sold will be sold in child-proof packaging.

Jordan: Andrew, I think one of the biggest concerns that a lot of our viewers and a lot of my friends and family have is that drugs are just immoral. Drugs are a way for people to cope, and they're not a productive way for people to cope. It takes them out of reality. Even if marijuana is not necessarily addictive, it's habit-forming, and people might just rely on that rather than solving their problems in more productive ways.

I'm not sure I want my kids to grow up in a world and in a state that says, "Oh, marijuana usage, that's okay." I'm a parent and I'm not sure I'm ready for that. How do you respond to this morality type question when you come to an opposition to question two?

Andrew: Sure. I totally understand that, but at the end of the day, I think adults should have that choice to make for themselves, and it shouldn't be legislated by our government. For example, I choose not to drink alcohol. I've never tasted alcohol, to be honest with you, which may surprise you, somebody growing up in Las Vegas, but I have no problem with friends or family drinking a glass of wine with their dinner if they so choose, and it turns out that marijuana has been shown to be 114 times safer than alcohol, so I think we have a bit of a hypocritical approach to marijuana, because if people are really outraged about the morality of marijuana, they should be 114 times more outraged about criminalizing alcohol.

That's how I would compare it. I believe in personal freedoms. I think that adults should make that decision for themselves. It shouldn't be made for them by the government, and unlike alcohol, marijuana has a lot of proven health benefits. Alcohol doesn't do anything good for your body. It's essentially a poison to your body. Marijuana is a neural protectant and has a host of health benefits.


question 2 las vegas marijuana nevada


At the end of the day, I completely understand that point of view, Jordan. In fact, I shared that point of view during part of my life. However, at the end of the day, I think it comes down to personal freedom. Do we believe that adults over the age of 21 should have the ability to make that decision for themselves, or should it be made by the federal government, or in this case, our state government?

If we say that it should be illegal, then we need to accept the consequences as a society knowing that it will remain as a stimulant to the criminal market, and all of the implications of that, not to mention the legal justice system of having people go to prison and be arrested for minor possession, which is still happening in our country at alarming rates, and something that I think needs to be fixed.

Jordan: It's funny that you mentioned that in Arizona, where I think there's a question on the ballot as well, there's a company that provides foods to prisons, and they donated something like $80,000 to oppose the legalization of marijuana in Arizona.

The implication, if you're a company that provides food to prisoners, you want there to be a lot of prisoners, and you're sitting there saying, "Man, if marijuana passes, there's going to be less prisoners in our system and the food company's profits are going to go down," so they're sitting here paying to oppose marijuana efforts. They're relying on good data that shows that if we legalize marijuana, that would potentially reduce prison populations.

Andrew: That's exactly right. The two biggest industries who have donated to the Arizona Legalization Initiative are the private prison industry, including the food manufacturers, and the pharmaceutical industry. The maker of fentanyl, a drug that is 80 times stronger than heroin, they just wrote a check for half a million dollars last week to oppose the legalization effort in Arizona.

This whole issue of marijuana legalization, regardless of where you fall on the spectrum, is a fascinating cultural business societal issue because it has so many implications, including business interests that we're seeing a lot of push back from those kinds of businesses trying to protect themselves, unfortunately, in my opinion, at the detriment of our community. I just don't think people should be arrested and thrown in prison for personal use of marijuana.

Jordan: Right, and also, you're saying that if marijuana became, for an individual, a good alternative to fentanyl or some other type of opiate, then that's a better thing, because marijuana isn't as dangerous.

Andrew: It's not as addictive and it's not going to kill you, and it has health benefits, unlike these poisons that kill our liver and really do a lot of damage to our body. In fact, Jordan, the amount of opioid abuse in Colorado has dropped significantly since legalization. We have an example of legalization in Colorado, and there are unique challenges, no doubt, but overall, the signs are very positive, and it's working in their community.

Jordan: Well, I really appreciate this, and I feel like we could definitely talk more about this. This has been very eye-opening for me. Like I said at the beginning, I'm somebody who just has a natural negative reaction to marijuana, but I admit that you are telling me a lot of things that I didn't know, that my wife and I are going to have to talk about these things and dig into the facts and science, and hopefully not just make the decision based on some kind of knee jerk reaction to this image that we've conjured up, like you said, of Reefer Madness.

Thank you so much for taking the time to talk us through it. I really appreciate it, Andrew. If anybody has any comments on this, and I hope you do, please leave a comment, please share the video. If someone out there feels like Andrew made some sort of misrepresentations or made some bad arguments, let us know.

We're a law firm. We're all about getting arguments and different view points here. Thank you so much for joining us on ClearCast, and we'll see you next time.

Thank you.


ClearCast Episode 10: Parentage & The Prince Estate's Tricky Probate Matters

[Editor's Note]

Welcome to today's ClearCast!

I don't know about you, but thought the world of Prince and so saddened to see him pass away last April.

You may not believe this, but the man worth between $100-300 million dollars didn't even have a will, let alone an estate plan.

As you guess with an intestate estate of this size, there have been complications. Namely: two women have come forward purporting to be Prince's niece and grandniece, asking for their share of the estate.

The hearing in Minnesota is scheduled for today. We get you all prepared. Plus, we will give you a sense of how this would work out in Nevada.

Thanks for watching.


[End Note]


[End Note]

The Prince Estate: When Parentage and Probate Laws Mix


Jordan Flake: Hi. I'm Jordan Flake, and I'm an attorney with Clear Counsel Law Group. Welcome to another ClearCast. I'm here with my partner, Jonathan Barlow. He's also a expert in the field of probate and trust disputes and litigation. Back in the news this week is Prince, the musician who died of an overdose last April. Maybe you were a big fan. Basically there's some really sticky probate issues that they're dealing with off in Minnesota. He was a resident of Minnesota. Essentially, what I understand from the situation is that Prince didn't have any surviving children or parents.

Jonathan Barlow: Not married also.

Jordan Flake: Not married, and he passed away without a will, which means intestacy laws apply. Which in that case what would happen is it just goes equally to Prince's brothers and sisters. However, if Prince has a predeceased brother or sister then that share would pass down to that brother or sister's children. Basically we have a situation where two women, one claiming to Prince's niece and another claiming to be Prince's grandniece have come along and said, "Hey, our dad, Dwayne, was Prince's brother. Dwayne passed away five years ago in 2011, and therefore we're entitled to Dwayne's share of the estate because he was Prince's brother." By the way, the estate is a pretty big estate. Rounding out possibly as high as, this is speculation, but possibly as high as 30 million dollars or even more. It's not a small amount of money that we're talking about here.

Jonathan Barlow: It's worth fighting about.

Jordan Flake: It's definitely worth fighting over. The niece and grandniece have come along and said, "Hey, listen. We're entitled to this because Dwayne was Prince's brother, and he's predeceased Prince, and this is the share." What are the complications here?

Jonathan Barlow: Well, it all sounds very reasonable.

Jordan Flake: It sounds great.

Jonathan Barlow: All things being equal the niece and grandniece would be exactly right. They would be entitled to that one share. The complication comes in because Prince's other siblings are saying that Dwayne, who you mentioned, the father of this niece and grandniece ... That Dwayne was not Prince's biological sibling, nor he was Prince's adopted sibling. Meaning, Prince's parents did not legally adopt Duane, and Duane was not their biological child.

Jordan Flake: Duane could've just been a guy.

Jonathan Barlow: Duane was just some guy.

Jordan Flake: Just some guy ...

Jonathan Barlow: Sorry, Duane.

Jordan Flake: ... who as young, little bundle of joy just showed up in Prince's family's household. Is that what happened?

Jonathan Barlow: Something like that. I wish we had known. Maybe Prince wrote a song about this. I don't know.

Jordan Flake: "Raspberry Beret", that's what it was referring to.

Jonathan Barlow: Dwayne's daughter and his then granddaughter, the niece and grandniece of Prince, are saying, "Hold on a minute aunts and uncles. We think you're aunts and uncles even though you don't think we're nieces of yours." They're saying, "Hey, wait a minute. Dwayne's and Prince's father brought Dwayne into his house," essentially that's what they're saying. Brought him into his house, treated him like his child, raised him as his child, always treated him as a child, and for all purposes he was never treated as if he wasn't. In fact, even Prince himself later in life and more recent years had acknowledged Dwayne as a half-brother or brother of some sort.

Jordan Flake: Prince's dad was saying, "Hey, these are my kids. This is Prince over here. He's really famous. This is my son, Dwayne. He's okay." I'm kind of the Dwayne of the family, by the way, in my own family, but anyway ...

Jonathan Barlow: We all have one of those.

Jordan Flake: We all have a Dwayne in our family. Basically Prince's dad was saying, "Yeah, Dwayne is my son." To what extent is that a legal hook?

Jonathan Barlow: It's interesting. Most states have adopted this law called the Uniform Parentage Act, and we have that here in Nevada, which gives us an interesting interplay in what's going on in Minnesota and Prince's estate right now. The Uniform Parentage Act basically says, in a very short way to say, just as Prince's father had done with Dwayne, if you bring a child into your house and treat that child as your child, even if you don't adopt them, even if it's not your biological child, and you hold them out to the whole world as your child, and for all purposes treat them as you child the law will say that person is that person's legal child for all purposes. Including for inheritance. Including for child support. Any purpose of establishing parentage it will establish that, so what's the niece and grandniece are saying is that parentage has already been established.

There was actually any interesting case in Nevada just last year in 2015 that dealt with the Uniform Parentage Act in a probate proceeding. Similar to this situation occurred a woman named Joyce was raised by her parents. Robert was her dad, but it sounds like it was never really clear whether Joyce was his biological child. On Joyce's birth certificate did list Robert as her father, but apparently it was not clear. When Robert died Joyce's, same thing, her aunts and uncles, came along and said, "No. Everyone knows Joyce is not Robert's biological child. Everyone knows that Robert did not adopt her, and so if we want Joyce wants to claim something she's got to have a DNA test." Essentially they wanted to exhume Robert and force a DNA test, which is horrible in itself to think that they would do something like that.

Anyway, the Nevada Supreme Court came along and said, "No, no, no. Sorry, under the Uniform Parentage Act," that law, the Uniform Parentage Act, "it says that if you're going to challenge somebody's paternity that is established in this way you have to do it within three years after that person turns 18 years old."

Jordan Flake: In application to the Prince case, they would've had to challenge Dwayne's being Prince's father's son, and also Prince's brother by the time he was 21?

Jonathan Barlow: Essentially. That's correct.

Jordan Flake: That would've been back in the '60s, or '70s, or whenever it was.

Jonathan Barlow: Sometime a long time ago, and so the law says-

Jordan Flake: Otherwise it's conclusively established?

Jonathan Barlow: It's done. In fact, those third parties, the aunts and uncles, the brothers and sisters, whoever it is they are legally prohibited, they're barred from contesting that paternity that has been established under the Uniform Parentage Act.

Jordan Flake: Is the niece and grandniece going to win in Minnesota then?

Jonathan Barlow: That's a good question. We never predict, right?

Jordan Flake: Right. Yeah, we don't.

Jonathan Barlow: Minnesota's going to do what Minnesota does, but interestingly the Nevada case, the Nevada Supreme Court case last year cited to a case that happened in Minnesota several years ago.

Jordan Flake: I'm sure there's not a lot of case law anywhere in the country on this type of topic.

Jonathan Barlow: Really unique interplay of parentage in probate. If they follow what the Nevada Supreme Court said they're going to have a very hard time disproving that this niece and grandniece are not entitled to inheritance.

Jordan Flake: Wow.

Jonathan Barlow: They're likely going to ... Without knowing Minnesota law really closely myself, if I was to guess they're going to receive a share Prince's estate.

Jordan Flake: I would love it if we could get ahold of one of the attorneys in this matter to come and smack us down, and tell us why we're wrong. We may be. If anybody out there knows. This is kind of interesting-

Jonathan Barlow: Which reminds me, I have a greeting card that I got from Prince a couple years ago. It said, "Hey, brother." I think I need to show up at hearing on Friday and see.

Jordan Flake: He probably has a song where he says, "You're all my brothers and sisters," or something like that.

Jonathan Barlow: He was talking about us.

Jordan Flake: He was talking about us, exactly. This is also interesting because if you're out there in the world right now and you suspect that your parents are holding out a non-biological sibling/child as an actual child then you have to get on top of that business before that individual turns 21.

Jonathan Barlow: It really sets up a really strange circumstance where essentially essential siblings that have been raised together-

Jordan Flake: "We're the real siblings."

Jonathan Barlow: That's right.

Jordan Flake: They get together and they say, "You're a fake sibling. We're going to get a court order," or what? How do they ...

Jonathan Barlow: That's theoretically what would happen. When that child turns 18 or 19 you can throw them into court to disprove that they have parents.

Jordan Flake: Do you see what a weird law this is? Because who is going to actually come along and challenge that unless there's a death in the interim.

Jonathan Barlow: Right, which is very rare.

Jordan Flake: Which would be very, very rare, so it's a very bizarre law, but this is why we enjoy being probate attorneys. We enjoy being estate planning attorneys. We love it when stories like Prince hit the national media because as always it highlights the need very good estate planning.

Prince was worth 30 million dollars, speculatively. He could've afforded an attorney to prepare a simple estate plan.

Jonathan Barlow: Even a simple will.

Jordan Flake: Even a simple will would've clarified.

Jonathan Barlow: A $99.00 will could've solved this whole thing. For all we know Prince would've wanted Dwayne's children to receive.

Jordan Flake: Right. Absolutely.

He may have wanted that. In any event, as we always do, we invite you to leave any thoughts, or comments, or additional information in the comments section, or on our Facebook, wherever we post this video.

Thank you so much for joining us.


ClearCast Episode 8: "So You Want Sue That Clown That Scared You.."


[Editor's note]

Welcome to today's ClearCast!

As always, we appreciate you taking a moment to comment on our facebook or twitter pages.

Today, we finally tackle the most pressing issue of this election season: Clown Attacks

At first, it was just single instances in South/North Carolina of folks claiming to have had a clown try to lure him/her into the woods (to what ends, we do not know..).

Now there have been attacks reported in 14 different states, including to multiple Las Vegas Valley high school students late last week.

Are clown people permitted to scare people at will? If you have a genuine fear of clowns, does the law permit you to protect yourself without incurring civil liability?

..We address these questions, and more on today's ClearCast.

Hopefully, now things will finally get back to normal.

Ok, maybe I spoke too soon..

Nope, it's confirmed.


[End Note]


Jordan Flake: Hi, welcome to ClearCast. This is Jared Richards, attorney Jared Richards. I'm attorney Jordan Flake. We're with Clear Counsel Law Group. On ClearCast we like to tackle the big issues.

Jared Richards: The really big issues.

Jordan Flake: The really big issues and really big subjects. Recently, Jared, I don't know if you seen this in the news, but apparently there's this craze where people are dressing up like scary clowns.

Jared Richards: Right.

Jordan Flake: Hiding behind buildings and parking structures, in the woods, and waiting for their opportunity to terrify young children.

Jared Richards: It's not as weird as you think. Let me explain.

Jordan Flake: I did wonder. I saw you with some face paint out there the other day.

Jared Richards: Now you know.

Jordan Flake: Anyway, I think the idea is just the thrill of the prank. I seen some of these videos posted on YouTube, things like that. It's kind of a question of on the one hand is it all fun and games. On the other hand, it's all fun and games until someone gets hurt, right?

Jared Richards: Or until some clown gets stabbed.

Jordan Flake: Until some clown gets stabbed in self-defense or shot. There's kind of a whole spectrum of types of situations that could arise. Since we're lawyers, we should give the legal perspective of the different situations.

Jared Richards: Absolutely.

Jordan Flake: Let's just start with the vanilla kind of run-of-the-mill what you would expect from a normal clown attack. That's such a weird sentence.

Jared Richards: In my experience ...

Jordan Flake: In your normal clown attack, what you normally see happening is somebody who dresses up like a clown and scares the [Inaudible 00:01:39] out of these kids.

Jared Richards: Okay.

Jordan Flake: One of the kids goes home, traumatized, and just feels humiliated and they had run all the way home, they're breathing really hard, they have trouble sleeping that night. They actually maybe didn't even stick around the clown to find out long enough that it was a hoax. They're complaining to their mom.

Jared Richards: Maybe it was just a clown that wanted a friend.

Jordan Flake: Maybe the clown just wanted a friend, we don't know. My question is somewhere in that little bundle of facts is there a personal injury claim?

Jared Richards: Yes, sure. Basically, there are two main theories you could go under. First, just general negligence. Negligence says that you have a duty to act as a reasonably responsible prudent person and if you don't do that and you hurt somebody, you're responsible for it. That gets tempered with the doctrine we call the intentional infliction of emotional distress. Intentional infliction of emotional distress, and this is going to be different in every state, but in Nevada, the IED is intentional infliction of emotional distress, is when somebody acts so outrageous that you think that this is beyond all decency and beyond anything that be acceptable in civilized society.

Now, if they do that and as a result somebody gets hurt with emotional damages, then the clown is responsible. Doesn't matter if the clown's even involved, the clown was always responsible. In this case, the clown would be responsible. There are some caveats. We look at kind of a sliding scale of the outrageousness of what happened versus the effect that it had on the person. The less outrageous it is, the more we want the person to actually prove that they're hurt. If you get scared and you don't sleep that night and the next day you're fine, you probably don't have a case.

Jordan Flake: Right.

Jared Richards: If you then need counseling afterwards and all the sudden your hair turns white, that'd be a great ...

Jordan Flake: Can't hold a job.

Jared Richards: You can't hold a job, it's clearly it's the clown. Try to explain that to people. It's the clowns. As far as the general negligence side, if you were to say fall while running away or it was

Jordan Flake: You fall and you hit your head while running away ...

Jared Richards: All of that would be more of a negligence related to the clown. If you wake up the next day and all of your hair's fallen out.

Jordan Flake: Because you're just so stressed out.

Jared Richards: Because you're so stressed out because of the clown.

Jordan Flake: You can no longer go to the circus.

Jared Richards: Then you're talking about IED.

Jordan Flake: Intentional infliction of emotional distress.

Jared Richards: The intentional infliction of emotional distress.

Jordan Flake: What about good old-fashioned assault? Assault doesn't require touching or is that just something they teach you in law school and now it's totally changed.

Jared Richards: Assault is an incomplete battery.

Jordan Flake: Okay.

Jared Richards: Battery is an unwanted touching. Assault is the creation of the belief of imminent.

Jordan Flake: Imminent. If the clown did like take a swipe at their face ...

Jared Richards: Yeah, if the clown actually comes towards you, if the person thinks, "Oooh, I'm about to get hit," and is reasonable in that anticipation.

Jordan Flake: It has to be right there. It can't be that clown is 15 feet away is going to hit me or is that just a question of degree [Crosstalk 00:05:07]

Jared Richards: That's just a question of degrees, exactly.

Jordan Flake: Question for the jury.

Jared Richards: I think that's going to be a question for the jury, but say somebody stalking online and they say, "I'm going to get you next Tuesday," that's not assault, because it's not imminent. Imminent means next ...

Jordan Flake: It could be intentional infliction of emotional distress.

Jared Richards: Absolutely, it could be.

Jordan Flake: That person is just sitting there freaking out ... The funny thing is, this clown thing, so many people are afraid of clowns.

Jared Richards: Right.

Jordan Flake: I think that if you're out there and you're dressing up like a clown and chasing people around secluded dark places, our legal professional advice that you don't even have to pay for is to not engage in that activity. There we go.

Jared Richards: Wow.

Jordan Flake: Free legal advice.

Jared Richards: I was going to give them a forum they could do something, but yeah ...

Jordan Flake: If you have been attacked ... Listen, if you have been attacked by a clown in any way, shape, or form, and have sustained serious damages ...

Jared Richards: Serious injuries.

Jordan Flake: If the extent of your injuries is, "He kind of spooked me out, I'm now freaked out, I don't want to go to circuses anymore," that's probably not a case, but if your hair's falling out or something like that, then give us a call. Not that Jared specializes in clown PI law ...

Jared Richards: We have a whole department on it. For our basis, the person's dressed up, you have to know who it is. If you don't know who it is ...

Jordan Flake: That's true.

Jared Richards: What kind of claim do you have?

Jordan Flake: If the person's still hanging out, if that clown is still hanging out in that area, though, we could pose as little kids and go and ...

Jared Richards: That's your forum, not mine.

Jordan Flake: Walk over there and say, "Hey, who are you? What's your address so we can serve you with this lawsuit?" Anyway, that is, I guess with that, everyone be careful out there for Halloween. I hope we do a few more Halloween-themed real ClearCasts here in the next few weeks.

Jared Richards: Here's the other thing, don't hit the clown.

Jordan Flake: Oh that's right, we were going to get to that.

Jared Richards: Yeah.

Jordan Flake: What happens if the clown jumps out and the person who the clown tried to scare has a baseball bat and just smacks the clown across the face?

Jared Richards: If the clown is actually jumping out at them, it's probably okay. It's all a question of reasonableness. If you actually think the clown is going to get you, then you probably can hit it back. I think there is a special category for both clowns and mimes, so doesn't matter whether they're coming after you, you can just hit them. No, you'd have to wait for the clown. If you really think you're about to get hurt, you can act in self-defense.

Jordan Flake: Great, that's good to know.

Jared Richards: Clowns be careful.

Jordan Flake: Clowns be careful. I wouldn't want to dress up and hide like a clown or something because I'm afraid I'm going to run across the wrong group of people and they'll just trash me or something.

Jared Richards: Right, exactly.

Jordan Flake: All right, that's ClearCast for today. Let us know what you think about this hotly disputed, highly important issue.

Jared Richards: The big topic of the day.

Jordan Flake: Please reach out to us if you've been assaulted by a clown and we'll see what we can do.

Thank you.


ClearCast Episode 7: What Kind of Legal Trouble is Samsung in Over the Note 7 Recall?

[Editor's note]

..Not bad at all.

And Welcome to today's ClearCast!

As always, we appreciate you coming back and all the comments we've received through our social media channels.

Today, we tackle the controversy surrounding Samsung and the defective Note 7 phone.

If you are unfamiliar, more than 92 cases of exploding Samsung phones have been reported in America (with more than another dozen reports worldwide).

Included are a phone causing a car to burst into flames, and a very sad story of a small boy in Brooklyn whose phone blew up in his hands as he was watching a video.

Samsung has issued a recall for the defective phones. Problem solved, yes?

Not exactly..

Thanks for watching


[End note]




Jordan Flake: Hi welcome to ClearCast. I'm attorney Jordan Flake and I'm here with attorney Jared Richards, my esteemed partner and personal injury attorney extraordinaire. The reason we brought Jared on today is because he's going to give us some insight as to a potential, I don't know I guess it would be a potential products liability issue that's going on in the news right now. If you pull out your phone right now there's a chance that you own a Samsung phone, just because it's a highly popular phone here in America. Jared happens to own the Edge, which fortunately for Jared is not the Samsung phone that's been blowing up.

Jared Richards: It's not likely to blow up on me as far as I know.

Jordan Flake: As far as we know.

Jared Richards: I guess we'll only find out in time.

Jordan Flake: Samsung has recently released the very popular Note 7 and it's been blowing up on people. In fact there have been 92 reported cases of these phones blowing up. How do we start to think about this? Jared, if somebody calls you up on their land line because their phone's exploded. They call you on the land line and they say, "Jared, my Note 7 blew up while I was watching a video. It burned both my happens."

Jared Richards: Now and handless.

Jordan Flake: Now I'm handless.

Jared Richards: When it blows up do we know how violent the explosions are?

Jordan Flake: Brian. Can you help us out. Brian's off camera here. He can help us with that.

Brian: It varies from explosion to explosion. Some have been very serious.

Jordan Flake: Some just kind of catch fire.

Brian: Some explode in people hands. One exploded in a guy's pocket. He had a second degree burn on his hand when he tried to take it out of his pocket.

Jared Richards: What's interesting is, as you know I was in the air quite a bit last week. We had business up in Canada and we had business in Iowa. I had to fly out to go handle those. When I boarded the airplane, every airplane that I boarded, except for Frontier so I guess I worry about them a bit, but every other airline as I boarded they gave us the express instruction that if we have a Note 7 that we are not to turn it on, not to use it, not to take it out of the bag, make sure that it is off at all times. This is something that the ... they were saying that was what the FAA was instructing them to say. It's something that's of concern that airlines certainly don't want to have random fliers and explosions on the airplane. As you try to smuggle the Note 7 and you get tackled as a terrorist. Clearly it's a concern if the phone is going to explode.

The way that I think this is going to play out, it's going to depend. Every state handles this a little differently. When a manufacturer produces products that go to every state, you're going to be dealing with generally in the laws of the state that the person got hurt in. Although that might be an interesting analysis that somebody does at some point if they don't like the laws of their state. We have two problems here. We have one, exploding phones. The exploding phone itself makes the product not worthwhile. Nobody wants have an exploding phone and nobody wants to have the risk of having an exploding phone.

Jordan Flake: Although Samsung did point out that the risk was about the same as getting struck by lighting.

Jared Richards: Sure but nobody opts into that situation. Nobody stands on a mountaintop during a thunderstorm with a rusty umbrella saying, "God I dare you." As I was flying trying to turn on my Note 7 and an air Marshall was tackling me I was trying to explain to him ...

Jordan Flake: It's only as likely as getting struck by lightning.

Jared Richards:  We have three potential different types of lawsuits that might go on on something like that. First you have a class action suit. The point of a class action suit is that everybody has the same kind of damages. Whereas some people have been burnt and some people have had other property destroyed, they don't all have the same type of damage. There is one aspect of damage that everybody does have. That is everybody now has a phone that has either exploded or that they're worried about having explode. The cost of the phone itself is a similar damage across the board. Presumably some law firm out there probably already has started a class action suit to try to represent everybody in the United states in the market that has purchased this phone to try to get them a refund for the price of their phone. Quite frankly that could be a huge class action. For the individual person it's not all that valuable, it'll be a few hundred dollars. For the attorney's that take a percentage of the total amount it's going to be a significant amount.

Then we have two other types of injuries. We have injuries to person and injuries to property. There are two different theories of liabilities that are going to be popular here. The first theory is that of strict products liability. Strict product's liability is only going to deal with the malfunctions that actually hurt a human. Strict product liability, probably if you need to replace your pants that got burnt or on the case that Brian was telling us about where a car was burnt down or if you're an airline owner and somebody smuggles in the Note 7 and blows up your plane with it that really isn't a strict products liability because we're dealing with property damage.

As far as damage to people go, what we look at and different states do different things. The majority of states still follow what we call the consumer expectation test. The consumer expectation test just simply asks the question when you buy a phone and it blows up on you were you expecting it? This area of law actually is really complex and there's a lot of law and a lot of judgement and case law that we can use on this and different tests that we use. The very basic test is that of consumer expectation. If the phone is more dangerous than a consumer would normally expect then it's a dangerous product and the company is going to be strictly liable ...

Jordan Flake: For the damage to the person.

Jared Richards: For the damage to the person under that idea that the manufacturer is really the common factor and it doesn't' even matter, let's say that to make the phone explode you have to turn around three times and spit over your left shoulder and that's the only way you make it explode. You say, 'Well people shouldn't be turning around three times and spitting over their left shoulder. That person was negligent." In strict product liability we don't even care about the negligence of the user. We look at what the manufacturer did.

Jordan Flake: Right so if you left your phone ... let's say the common denominator is everybody had left their phone in a hot car immediately prior to picking it up and putting it in their pocket.

Jared Richards: You say, 'Well why did you do that? That was stupid?"

Jordan Flake: Right you shouldn't leave that in a hot car.

Jared Richards: Under a normal analysis you would look at the total damage. Let's say the total damage was $100 to the person. It's going to be more than that but $100 is a nice even number. You'll say, "Okay well we're going to put 20% on the user because they shouldn't have left it in the car. We'll put 80% on the manufacturer, manufacturer you have to pay 80%." Under strict product liability we don't care what the user did. We put it all on the manufacturer and the manufacturer is going to be liable for the damage they've done.

Jordan Flake: As a policy consideration of we want the big and powerful product manufacturers in our country, such as Samsung, to make safe product.

Jared Richards: To make safe products. Now other states are going to use other tasks, not so much consumer expectation, that was there a safer design? The answer is, I don't know my phone hasn't blown up on me. I'm sure that there's a safer design out there, one that doesn't blow up.

Jordan Flake: Should I just stop carrying my phone. I carry my phone in my front pocket. Could I carry it somewhere else?

Jared Richards:  You're not going to be carrying it ... I was thinking maybe you have a special case to make it so it doesn't ... it's like a firecracker. What happens when you put your hand around a firecracker? Big explosion. You have to be careful. As far a damage to property we use a different theory of law, it's called a product warranty. It's just simply saying there was an implied contract that they were going to give you something that wasn't going to blow up. They breached that contract so now they're responsible for the property damage they caused.

Jordan Flake: Let me ask you a question. Let's say the judge looks into this and they find out that Samsung was like, "Oh man these phones blow up but you know what? We have to rush this out there because iPhone 7 is being put on the market too."

Jared Richards: That's when things get really interesting.

Jordan Flake: Does that come in under the class action side? Now we'd be talking about punitive damages right? Does that come in under the class action side or the personal side or possibly both?

Jared Richards:  Both. What's going to happen is if Samsung actually knew that their product was dangerous before they shipped it out.

Jordan Flake: Yeah Samsung. They probably didn't know which just my guess is.

Jared Richards:  We have no idea. Samsung, please don't sue us we have no idea.

Jordan Flake:      Don't send your people out to us because we don't think you were witting there like, "Oh one in every hundred blows up."

Jared Richards:  You're giving that, I'm just saying I have no idea. I'm not implying they did, I'm not implying they didn't. I have no basis upon which to form an opinion. I'm not forming an opinion. Let's say there's a magic document, the damning email, the magic bullet that you have one of the designers sent a memo over to a vice president that said, "Warning, we're not so sure about this." The vice president got the memo and it went out anyway. Then we're talking about punitive damages and punitive damages are going to apply at all the different levels.

Jordan Flake: All the way, everywhere.

Jared Richards: Well every case the judge makes the determination of whether punitive damages are appropriate in this case. In the class action where everybody has lost, I mean what is the Note it's like $800? Everybody's lost an expensive $800 device either because it's blown up or because it's not worthy, fit, safe to keep in your pocket so they have to get a new phone. I don't know, did they sell a million of these? I don't know how many they sold. You look at the judge and say, "Your honor, they've caused $800 million of property damage by selling unfit phones and they knew about it and they sent it out for profit anyway." The punitive damages there may be very large. Every judge is going to make the determination whether punies are going to be appropriate in their case. If you have somebody who lost a hand, again I don't know how explosive these explosions are, but if somebody lost a hand or lost the use of their hand because it was so burnt, then that person might also very justifiably go after punitive damages against the company.

It's possible there would come a point where a judge would say, "Okay the purpose of punitive damages is never to award the person who's been hurt. It's only meant to send a message." There's already been so many millions of dollars in punitive awards against this company, guys message has been sent. We're not going to find punitive damages appropriate in this case. The plaintiff only has so much room to complain because the punitive damages, although the plaintiff is the one that gets the money. They're never really his, it was for the purpose of teaching a lesson and to prevent other people from doing the same thing.

Jordan Flake: Sure that makes perfect sense. I think that gives us a good rundown on obviously if you have a products liability situation you can probably easily tell if Jared's the right guy to call. If you have something like that pop up let us know. In the meantime, as always, we're very interested to hear your thoughts on this. Let us know if you have a different take on this or if you think the cell phone companies need to be treated differently when they have this type of situation come up. Leave us a message and let us know. Thanks so much for joining Clearcast. We really appreciate it.

Jared Richards:  Thank you.


ClearCast Episode 6: Does Nevada Need a Tough Vaccination Law Like California?

{Editor's note} Welcome to Today's ClearCast!

We appreciate you stopping by on your busy day. The feedback from our past episodes has been great; thank you so much for taking the time to write and share your opinions!

We will continue to try to contribute the best we can to the ongoing discussions of Nevada public policy.

Today, we take on the laws pertaining to vaccination of your kids.

A little background..

Last year, Gov. Brown1)Yes, the same one! of California signed into law one of the toughest vaccination requirements in the nation by removing the previous exemption for religious/personal beliefs.2)It seems from afar that the measles outbreak in 2015 freaked out everyone

There are still many parents in Southern California that do not want to comply with the new law, one of the few doctors catering still to these folks is Dr. Sears.

Unfortunately for "Dr. Bob," he is now at risk of having his medical license revoked. At issue3)not the only issue is his willingness to write doctor's notes for parents to excuse them from vaccines. (Read the full complaint here).

As Nevadans, we are very concerned about any serious disease outbreak in SoCal, given how many folks travel between destinations.

More important for Nevadans though, we need to consider if Nevada needs to adopt the tough, new California law that does not permit exemptions for vaccines..

Thanks for watching; all the best.


{End note}

Should Nevada Adopt California's Tough Vaccination Law?


Jordan Flake: Welcome to Clearcast. I'm Attorney Jordan Flake, and I'm here with Attorney Taylor Waite, and we today, in our continued effort to steer clear of anything that's the least bit controversial, we thought we'd talk about vaccinations, so that's obviously something that people feel very strongly about. Mostly because it brings in a lot of issues of caring about our kids, caring about public. Sometimes it brings in issues of science versus religion, but the reason this is back in the news, and the reason why we wanted to tackle it today somewhat, or I should just say touch on it today, because there's so much in our Clearcast is because recently a doctor in California, Dr. Bob Sears, has been accused of gross negligence in connection with a child, J. G., was the child's initials, who he's been seeing. Just a little background on Dr. Bob. Dr. Bob has a following because he has been very outspoken critic of the California Law, which says, "You must vaccinate your children." It's a misdemeanor not to do so, and your children must be vaccinated, even if you have a religious opposition to vaccinations. It doesn't matter in the State of California.

Dr. Bob met with this kid and his mother, and the mother said, "Well, when he was two and he got some vaccinations, then he couldn't urinate. He couldn't pass food. He basically was sick. He was lethargic." Dr. Bob wrote this medical recommendation saying, "Okay, well, this kid doesn't need to get medical treatment anymore." I'm sorry. "This kid doesn't need any future vaccinations. He's exempt from these." He's tried to give basically a doctor's exemption, but the Medical Board came down really hard on him and said, "Whoa. You didn't take any real data. You didn't collect any type of samples, and you didn't send this off to other labs to determine why this kid had the reaction that he did."

The Medical Board in California has basically sued Dr. Bob to potentially revoke his license, and it kind of just brings up a lot of these issues about the extent of which kids can ... Parents can protect their kids, and make decisions about their kids' health. I guess the question for us today, Taylor, and what I want you to weigh in on here, right now, Nevada says that, "You can have a religious exemption to vaccinations?"

Taylor Waite: Right.

Jordan Flake: Should we adopt the California Law? Should we continue with the Law that we have? Should we say some kind of a compromise, where it's like if you have a kid who has a religious exemption to vaccinations, that's fine, but you can't be in our public schools. How would you start to think about some of these issues? Maybe take us back a little, and what are some of the fundamental issues here at play?

Taylor Waite: It really is a hard question, because fundamentally, as parents, we believe that we're entitled to do the best by our children. They're our children. We know what's best for them. They obviously share some traits with us, so things that worked for us, we share our religious beliefs with our children, so those are important considerations. At the same time, and again, those beliefs go way back. The idea that we're going to allow people to have children at all, suggests that we are willing to let them parent their children, which should include, to some degree, their ability to make health decisions for their children.

Jordan Flake: The people who oppose vaccinations are extremely passionate in saying things like, "Listen. You would not let somebody inject your kid with poison."

Taylor Waite: Right.

Jordan Flake: The last time that my son got a vaccination, I watched as I wondered if he was going to pass away, because for basically two days, so I'm very, very sympathetic.

Taylor Waite: Yes.

Jordan Flake: To the idea that you should be able to protect your children.

Taylor Waite: Absolutely, but I

Jordan Flake: Share your religious beliefs.

Taylor Waite: Yes.

Jordan Flake: With your children.

Taylor Waite: Fundamentally, even speaking religiously though, I think we do teach as well to our children, that our individual choices still do affect others, and now there is a limit to our ability to choose to do whatever we want to do. What I choose to do in my home, within the walls of my home is one thing, but when that begins to affect my neighbors, begins to affect the people across the street, the neighborhood kids down the street, then it does have to open a broader discussion about what we are willing to do in a society where we've decided to come together in public schools, and things like that. It is a difficult question.

Jordan Flake: Yeah, so we have basically, our country acknowledges the right to raise your children however you want, provided it doesn't hurt anybody else, and the difference between people who are pro-vaccination versus anti-vaccination, is the anti-vaccination crowd maybe doesn't recognize, or believe in, or subscribe to the idea that whether or not I put these chemicals in my children actually affects the kid down the street.

Taylor Waite: Right.

Jordan Flake: Whereas, the scientific community, by in large, is supportive of the idea that, "Listen. You have to vaccinate your kids, because that will affect the kids down the street." Look at the outbreak of, I believe it was Measles in Disneyland.

Taylor Waite: Yes, in Disneyland. Obviously the anti-vaccination. We've read some of that stuff. They suggest that there wasn't enough scientific data to determine that that actually was related to non-vaccination, given the number of foreigners that were there, and everything else. I mean, there are other arguments, but absolutely.

Jordan Flake: Right.

Taylor Waite: It does affect others. Like our willingness to vaccinate or not vaccinate.

Jordan Flake: It's my understanding, vaccines is limited, but it's kind of my understanding that my one child not getting a Measles vaccination is not going to have an effect, but implementing a policy where everyone can say, "Well, I don't want to be the one to vaccinate-

Taylor Waite: Right.

Jordan Flake: "My child, because it could in the margins be harmful." It's very interesting. It's kind of we're trying to all make the deal that, "Listen. We know on the very margins, some vaccinations might interact badly with some people, potentially." The science on that is hit or miss, but we're all agreeing, we're all buying into the system where we say, "Hey, we all vaccinate-

Taylor Waite: Right.

Jordan Flake: "Because we don't want these many diseases." Let's talk specifically about the Nevada Law then. How do we start to think about whether or not to permit the ... Continue to permit the religious exemption? That's tough, right?

Taylor Waite: I think it is tough, but it think it has to be a consideration for parents that are willing. It is problematic, I think, for someone like Dr. Sears, assuming that a doctor could come forward with a legitimate rationale. Medical background, that was one of the concerns when you read through the information we have, is that his recommendations were not necessarily based entirely in actual-

Jordan Flake: It's almost-

Taylor Waite: Diagnosis.

Jordan Flake: It's almost like Dr. Sears, he had a big opportunity, "Like, oh, man."

Taylor Waite: Yes, to prove his point.

Jordan Flake: To prove his point.

Taylor Waite: Yes.

Jordan Flake: I read that as maybe he didn't want to go and actually run the tests, and get the data, and support. He didn't want to go through the arduous, but well-recognized process of supporting his concern that the vaccination caused this in the child, because maybe he was worried that it would have been something else. I mean, I don't know. I mean, that's I know a cynical view of Dr. Bob here, but I'm concerned that he was just sitting there thinking. I mean, it doesn't add a ton of credibility that he tried to treat an ear infection with garlic.

Taylor Waite: Right.

Jordan Flake: Color me slightly skeptical. Don't get me wrong. I'm sympathetic to parents who want to control their children's lives, but if your doctor ... This I will stand by. I will take a slight position here. If your doctor isn't willing to go through the well-recognized processes for diagnosing, recording all the information properly, going through the testing procedures, that's a big red flag.

Taylor Waite: Yes.

Jordan Flake: If you're going to be an anti-vaccination doctor, be my guess. That's your right to academic inquiry. Go for it.

Taylor Waite: It still has to be based. If we're going to press the conversation, then both sides have to agree that we're going to do it in the context of actual medical evidence.

Jordan Flake: Right.

Taylor Waite: If they want to come forward with alternatives, we'll listen to those, and we need to listen to those. There is progression. Right. The anti-vaccination, we have to be willing to listen to those, but we can't just come in, and pound our fists, and say, "We're not going to listen to your science."

Jordan Flake: It's funny, because on the one hand, we're demanding standards, scientific standards, but on the other, when it comes to religion, it's like, "Hey, I just started the Church of Jordan, and the Church of Jordan actually only has one tenet. Basically, you can be a bad person in all the ways you want, but you just don't vaccinate your kids." Do you know what I mean? Sorry, religious exemption, so we have medical standards on the one hand.

Taylor Waite: Right.

Jordan Flake: Then we just kind of throw those out the window, and we say, "Okay, any person for religious exemptions."

Taylor Waite: Religious exemptions.

Jordan Flake: That makes the medical community here in Nevada kind of pull their hair out, and say, "Well, then why do we have standards at all if we can just say religion?"

Taylor Waite: Correct.

Jordan Flake: Church of Jordan"4)Now accepting applications! people can just be like, "Oh, one tenet of the Church of Jordan is to not vaccinate the kids." There's no standards for that.

Taylor Waite: There's always concern when we build exceptions into the law that they will swallow a law [entirely 00:10:13], when that's always a concern.

Jordan Flake: Yeah.

Taylor Waite: If we set a rule, then we can live by that, but if we start to add exceptions, then we start to go through who is, so how do we define who is, and is not entitled to that?

Jordan Flake: Like normal, I think, we're just raising more questions than we have answers for.

Taylor Waite: Right.

Jordan Flake: As always, we invite our listeners, and viewers, and readers out there to give an opinion about, I guess specifically any opinion you have on anything we discuss. Feel free to correct us. We're not experts on this. We're happy to hear you out.

Taylor Waite: Absolutely.

Jordan Flake: I think we are very interested to see, should Nevada continue to allow this law, which states, "That if you are religiously opposed to vaccinating your kids, then you're exempt." Is that okay to continue that? Second question we didn't really get to, but we'd love to hear what you have to say on it, is if we do exempt kids from vaccination for religious purposes, would it be okay then to say, "That they can't attend public schools," or, "That they can't go to the same daycares that require vaccination efforts," et cetera, et cetera? Anyway, thanks for joining us for Clearcast. We barely just scraped the surface of this issue, but we'd be more than happy to hear what you have to say on it. Thanks so much, and please join us next time.

Taylor Waite: See you.



1 Yes, the same one!
2 It seems from afar that the measles outbreak in 2015 freaked out everyone
3 not the only issue
4 Now accepting applications!
Clear Counsel Law group

Contact Info

1671 W Horizon Ridge Pkwy Suite 200,
Henderson, NV 89012

+1 702 522 0696

Daily: 9:00 am - 5:00 pm
Saturday & Sunday: By Appointment Only

Copyright 2019 Clear Counsel Law Group® | Nav Map

Nothing on this site is legal advice.