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!

-Brian

[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.

 

[Endnote]

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..

Footnotes   [ + ]

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).

Fun!

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 else..like 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:

demdebate, vegas, hillary, bernie, democrats, democratic, wynn, cnndebate

Duh?

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.

-Brian

 

Footnotes   [ + ]

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!

-Brian

[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.

 

Sure, Change the Moped Law…But Was it Really for Public Safety?

“..to combat moped theft.”

Unfortunately folks, the Golden Era of riding a moped in Las Vegas is coming to end. We’ll always have Paris though, right?

I may be the bearer of bad news, but I promise this is the type of thing you wanted to be aware of in December before it went into effect. I’m on your side.

Your friends in the Nevada legislature updated the moped laws in the 2015 session. But it was for your own good! See above.

Today we will take a look at the new law and clarify the confusion out there so that when it goes into effect on January 1, you will be prepared. Additionally, I will, toward the end of the discussion, explain how they could make the law more fair to moped riders.

But Brian, haven’t you picked on the legislature enough this year already? If any of my friends from up north are reading, it was the fact that you all keep saying you are doing this for the sake of the moped riders that spurned me to investigate further.

So they wrote a new law did they..

Nevada SB 404 Brought an End to All of Your Moped Fun

Remember the good old days when you could go on the amazon, buy a foreign-made motor vehicle, and plug-and-play. Those were the days.

..And here come the squares. Again, please don’t get mad at me. I’m just telling you what the law is.1)Frankly, I’m helping

 

moped las vegas nevada law

 

Now for any of you out there that think licensing moped riders is a simple endeavor, allow me to dispel you of that notion. Crazy how something so simple is so technical to implement.

Let’s start with definitions (These are from 2009). Suppose moped is an excellent place to start.

NRS 482.069  “Moped” defined.  “Moped” means a motor-driven scooter, motor-driven cycle or similar vehicle that is propelled by a small engine which produces not more than 2 gross brake horsepower, has a displacement of not more than 50 cubic centimeters or produces not more than 1500 watts final output, and:

      1.  Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

      2.  Is capable of a maximum speed of not more than 30 miles per hour on a flat surface with not more than 1 percent grade in any direction when the motor is engaged.

The term does not include an electric bicycle. (Added to NRS by 1975, 1075; A 1983, 895; 2009, 394)

“[D]oes not include an electric bicycle”? What else would you call these things?! It’s right about at this moment when I notice the public get annoyed. I swear there is a good reason for these distinctions. Here’s the electric bicycle definition.

NRS 482.0287  “Electric bicycle” defined.  “Electric bicycle” means a device upon which a person may ride, having two or three wheels, or every such device generally recognized as a bicycle that has fully operable pedals and is propelled by a small electric engine which produces not more than 1 gross brake horsepower and which produces not more than 750 watts final output, and:

      1.  Is designed to travel on not more than three wheels in contact with the ground but is not a tractor; and

      2.  Powered solely by such a small electric engine, is capable of a maximum speed of not more than 20 miles per hour on a flat surface while carrying an operator who weighs 170 pounds.

The term does not include a moped. (Added to NRS by 2009, 394)

Ok, fair enough. But what if my “moped” can go faster than 30 mph?

NRS 482.070  “Motorcycle” defined.  “Motorcycle” means every motor vehicle designed to travel on not more than three wheels in contact with the ground, except any such vehicle as may be included within the term “electric bicycle,” “tractor” or “moped” as defined in this chapter.

      [Part 1:202:1931; A 1951, 165; 1953, 280]—(NRS A 1975, 1075; 2009, 394)

See it? A moped displaces “not more than 50 cubic centimeters.” Displacing more than 50ccs gets the bike classified as a motorcycle.2)My television pilot, Fun with Statues, is still available to be picked up! Why wait Netflix?

What Changes in the Law for a Moped Starting 1 January?

This is a fun tool your State of Nevada provides free of charge to the general public. That PDF includes the text of the Revised Nevada3)See what I did there? Statutes revised by SB 404. When you see text in blue, that’s language that has been added to the statutes. Text that has been crossed out in red has been removed from our statutes.

 

moped law las vegas nevada

 

I can exemplify the changes in the 36 page bill from Section 9:

Sec. 9. NRS 482.384 is hereby amended to read as follows: 482.384 1. Upon the application of a person with a permanent disability, the Department may issue special license plates for a vehicle, including a motorcycle [,] or moped, registered by the applicant pursuant to this chapter. The application must include a statement from a licensed physician certifying that the applicant is a person with a permanent disability. The issuance of a special license plate to a person with a permanent disability pursuant to this subsection does not preclude the issuance to such a person of a special parking placard for a vehicle other than a motorcycle or moped or a special parking sticker for a motorcycle or moped pursuant to subsection 6.(emphasis present)

They did a quick Cntl-F and added “or moped” to the statutes whenever there was motorcycle. Simple enough.

The obligations/liabilities for motorcycle riders now apply for moped riders too.

Apparently, there was a question amongst the legislature if a moped is dangerous enough to be classified as a motorcycle. I deduce this by the legislature requiring that a moped by registered once, but not requiring the moped to be registered yearly like a motorcycle.

And given that the question is not that obvious, they hedged.4)A good strategy for compromise/less so for logically consistent law The question remains, why do other vehicles need to be registered yearly, while once is sufficient for a moped?5)Makes you wonder about those DMV fees..

If the New Moped Law is About Public Safety, Why Not Just Say So?

Metro isn’t hiding the ball/trying to trick anyone. Chuck Callaway explains to the Las Vegas Sun:

Chuck Callaway, Metro Police director of intergovernmental services, helped shepherd the law through the Legislature. He believes it will act as a deterrent and help police nab thieves: Officers will have a reason to stop any moped without a plate, and those with plates can be run through a patrol car’s computer.

Callaway said that while he was surprised the rejection rate for moped registration might be as high as 50 percent, he knew many vehicles wouldn’t qualify. “The reality is, they’re motorcycles but they’re operating under the guise of being a moped. Registering them will help in that regard with public safety.” (emphasis added)

They say they will allow January 2017 as a period for people to register, but as of 1 January, Metro will be permitted to do this by statute. I know there are a lot of folks that are mad about the new laws, but let’s keep things in perspective. They didn’t have to tell you; although you may ask questions about intent, implementation has been fair.

Are Moped Drivers Actually a Risk to Public Safety?

I’m sorry if I don’t believe that this is really all about moped drivers losing their bikes; if that was the case, the state would have made this law optional for moped drivers that felt in danger. That way, the way would be specifically tailored to just the folks that need it, while it would balance the (what many moped drivers are saying are) overbearing costs of having them register such an insignificant vehicle.

Mandatory registration is different. It benefits the state in two distinct ways:

1. As discussed above, the law provides legal protection for police officers to pull over an unregistered moped. Don’t underestimate the importance of positive legal authority. But..

2. Provides additional revenue.

What has yet to be discussed (by anyone from what I can see) is the revenue angle to the new law.

Now if moped riders were causing a high number of accidents, our community would be justified in having them register/collect fees for pay for the harms. No one even has the audacity to even claim this. Recall my opening quote.

Doubtful, also, that this is the most efficacious means raise needed revenue. What if we find out that the new regulations price out people from driving a moped and s/he can’t get to work anymore?6)This is just one example That’s a net loss for all of us.

I say again, if this new law only is about protecting moped riders, make the registration optional. That way, the riders that need protection can have it, and those riders that cannot afford to register their moped do not have to.

Thanks for reading.

If you actually wanted to take the class (I don’t know how to drive a motorcycle, this includes me.), the College of Southern Nevada has a lot of great options for not very much money.

Footnotes   [ + ]

1. Frankly, I’m helping
2. My television pilot, Fun with Statues, is still available to be picked up! Why wait Netflix?
3. See what I did there?
4. A good strategy for compromise/less so for logically consistent law
5. Makes you wonder about those DMV fees..
6. This is just one example

Nevada’s Loyalty Pledge Law Regarding the Electoral College Violates the Constitution

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate…I know there’s been talk about that in other states but that will not happen here.”

-Nevada Secretary of State elections deputy Wayne Thorley

What if I was to tell you the electoral college..isn’t a college at all?1)Sorry

Worse, this ragtag group of federal officials still don’t even have office space, after all this time.

Finally, though, the electoral college has made its way to the national consciousness2)and here i thought my “Opaque election rules and procedures” club would get off to a much faster start. I’ll talk to the marketing guy.., so I thought it’d be fun to talk about what the electoral college is, what they will be doing next Monday, and most importantly, examine if laws that command a federal electoral vote a particular way are constitutional.

Luckily, our elected officials gave us some great material to work with.

“Haven’t I Voted Twice This Year Already?”

Well, if you start in February, a few. One more, I promise. And this time you don’t even need to participate. Your job as engage citizen voter is completed for this year.

In November, you didn’t vote for president, but for electors that will vote for president this coming Monday, 19 December. The following six people were elected from Nevada:

  • Dayananda Prabhu Rachakonda (The only one from Las Vegas. Will the Tyranny of the North know no bounds??)
  • Larry Jackson
  • Joetta Brown
  • Paul Catha II
  • Greg Gardella
  • Teresa Benitez-Thompson

On Monday, these 6 federal electors will convene in Carson City because the electors do not meet in one place, but at all the state capitols. This has been in effect since 1948.

In all previous elections the electors voted the same way as the people who elected them, and given that Nevada voted for Hillary Clinton, it is fair to assume that all six will vote for Hillary too.

But do they have to?

For the first time in my lifetime (likely yours too), there is serious talk of if the electoral college voters may express a different preference than that of the voters. (Vote for someone else)

Today I am not asking should the electors vote their faith, only if they can.

Now, I try not to be too tough in this forum3)This does function as marketing material as well, as I’m sure you are aware, but the Secretary of State elections deputy Wayne Thorley put out quite the statement in the press regarding this subject:

Secretary of State elections deputy Wayne Thorley said both major parties submitted the names of their six electors, one for each Nevada member of the House and U.S. Senate, well before the election.

He said since Hillary Clinton won the popular vote in Nevada, it will be the Democratic list who meets and votes that date. Rather than all 535 Electoral College electors going to Washington D.C. for that vote, they meet in each state capitol so that vote will take place in the capitol as well.

He said under Nevada law, they’re required to vote for Clinton and Tim Kaine.

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate,” he said. “I know there’s been talk about that in other states but that will not happen here.”

Wait wut?

“We’ll bring in an alternative” is quite the loaded statement.

Some potential questions consider:

Who is the “we” he is referring to? Does the Elections office have its own enforcement arm? Since when?

What do you mean by “bring”? Is that a physical threat against a federal official?

Who is the alternative? Which alternative is selected first? What behavior needs to be exhibited to trigger this threat?

(I can keep going.)

Most importantly, the assertion that Nevada’s electors have to vote for Clinton/Kaine is unconstitutional and false. (And disappointing as a Nevada citizen to see an elected official make).

Let’s not get mad at Wayne though, he’s not the only elected official in Nevada that does not understand this. Our legislature actually put one of these silly loyalty pledge4)What year is it? laws on our books in 2013:

NRS 298.065  Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.

      1.  The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.

      2.  If a nominee for presidential elector is not present to vote at the meeting, the position of presidential elector to be filled by that nominee for presidential elector is vacant and the vacancy must be filled as follows:

      (a) If the alternate is present at the meeting, the Secretary of State shall appoint the alternate to the position of presidential elector;

      (b) If the alternate is not present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person chosen by lot from among the alternates present at the meeting, if any;

      (c) If no alternates are present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person who is:

             (1) A qualified elector;

             (2) Present at the meeting; and

             (3) Chosen through nomination by and plurality vote of presidential electors who are present at the meeting; and

      (d) If votes cast pursuant to subparagraph (3) of paragraph (c) result in a tie, the Secretary of State shall appoint to the position of presidential elector a person who is chosen by lot from those persons who tied for the most votes.

      3.  If all the positions of presidential elector are vacant and no alternates are present at the meeting, the Secretary of State shall appoint from the qualified electors one person to the position of presidential elector, and the remaining positions must be filled pursuant to paragraphs (c) and (d) of subsection 2.

      4.  The nomination by and vote of a single presidential elector is sufficient to choose a person to be appointed to the position of presidential elector pursuant to subparagraph (3) of paragraph (c) of subsection 2.

      5.  Except as otherwise provided in subsection 6, a person appointed to the position of presidential elector pursuant to this section may not serve in that position unless the person signs a pledge in substantially the following form:

 

I agree to serve as a presidential elector and to vote only for the nominees for President and Vice President of the party or the independent candidates who received the highest number of votes in this State at the general election.

 

      6.  If a person appointed to the position of presidential elector pursuant to this section is physically unable to sign the pledge, the pledge may be signed by proxy.

      7.  If a person appointed to a position of presidential elector pursuant to this section does not sign the pledge described in subsection 5, that position of presidential elector is vacant and must be filled pursuant to this section.

      (Added to NRS by 2013, 1231)

      NRS 298.075  Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.

      1.  The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.

      2.  After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:

      (a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.

      (b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:

             (1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and

             (2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.

      3.  Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

I thought there was consensus among legal professionals of how federalism works, but apparently not.

You have to be wondering before we get into the legal weeds (I know I was), where did this come from/who’s idea is this?

(This is the part that doesn’t make the legislature look very good).

..It was copied and pasted from a lobbyist organization called Uniform Laws.5)If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer’s book on the topic is excellent

The people who do this for a living (shadow-write your state laws) don’t think the public is offended by this idea that people would sit in Washington D.C. and write your Nevada laws.6)This has always shocked me. Not only do they keep a public-running tally of the states in which they’ve succeeded, they even provide a handy map as a visual aid.

Map of the 4 States

Our legislators didn’t even have the shame to not openly admit that this law was suggested by a lobbyist; the notes from the 2013 session say explicitly they are adopting this uniform law.7)Please have more shame going forward

Justification for laws often takes place in the Legislative Digest (for example I am writing about the new moped law, and the digest says taxing/regulating mopeds is the the safety of the riders. No, no, not today..). Here is the Digest for the loyalty pledge law. It provides no justification at all. You would think for as something as important as elections..

So why did Nevada, after voting in one manner since 1948, need to update the voting laws in 2013? The best rhetoric you can find is this for-profit argument (as in, he was told was conclusion to have and then justified it accordingly) from this Northwestern Professor8)What’s going on at Northwestern? Yikes.

I’m not impressed with what he wrote, especially given the incentive structure; I’ll allow you to evaluate it on your own.

My Opinion Regarding the Electoral College is Fairly Common; I Wish I Could Justify Why the Nevada Law Got Put Into Effect

As the last sentence of our loyalty pledge law makes clear (“Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9”.), our legislators are at least aware that there is federal law governing the electoral college.

My favorite part of that sentence of our statute, is that if they would check back just one more section they would see that there already is federal law governing the electoral college 3 U.S.C. § 8:

“The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution.”

You know what is literally not “the Constitution”? That’s right, the Nevada legislature. Or any other state legislature for that matter.9)Please find me the constitutional provision that allows the states to invalidate electoral college votes.

It’s from this same chapter in the federal code that we decide when the electoral college meets:

3 U.S. Code § 7 “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”

So what we have here is called a conflict of laws because the state of Nevada claims they can disqualify a elector based on her vote, and the federal law says “the constitution” (and nothing else) governs the electors.

Who wins? The federal law. By the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The laws of the United States are supreme to state laws. We’re talking  McCulloch v. Maryland type of certainty here.10)As in, there is consensus

We saw this not too long ago with the GMO labeling laws and Vermont. We discussed how, in response to Vermont’s strict GMO-label law, the industry moved to get a federal law passed covering the same topic, making the federal law supreme to that hippie-Vermont GMO bill.11)Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup

So am I saying that the entire loyalty pledge law in Nevada is unconstitutional? No. The federal congress granted authority to the states to address electoral vacancies:

Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. 3 U.S. Code § 4

So if there is a vacancy on Monday (one of the electors is absent), NRS 298 instructs us how the Secretary of State will fill the spot. The law they crafted, although weird seems fine with respect to vacancies.

So the power to resolve vacancies has been delegated to the states by this 1948 federal statute covering the electoral college. Why did it take until 2013 for Nevada electeds to take this option? What changed?

The answer is so incendiary I can’t publish it in marketing material like this. There’s a reason you can’t find a written justification for this law anywhere.

What I will say though, is if this was about “the will of the people” not being met, isn’t the obvious solution direct election of the president? (I would support such a measure).

100 years ago we weren’t even directly electing our U.S. Senators; we’ve certainly made some progress.12)I’m listening President Obama; I swear. If the goal is to ensure that the people’s will is effectuated through the vote, the best means to do this is not through obscure, likely unconstitutional, statutes. It’s also highly inefficient.

Nevada’s Loyalty Pledge Law Isn’t Seen As Unconstitutional Just By Me

The (nonpartisan) Congressional Research Office exists to provide necessary background to our legislators before voting on complicated issues. From the limited material I’ve read, their work is excellent. I’ve never heard a cross word against them (Evan McMullin worked for them explaining foreign policy before he ran for president. Bright people like that work there. You will get to see the person who wrote the proceeding grafs momentarily.). In April (8 months ago) of this year, they published a clear explanation of what the electoral college is and how it got to this place for U.S. members of congress13)This is the office that your representatives rely on for data. It’s hard to be more trusted. The man is obviously more conservative14)when I use this word I don’t mean anything pejorative than me, yet we’ve reached the same conclusion:15)The law isn’t supposed to be political

Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is considerable evidence that the founders intended that they would be independent, weighing the merits of competing presidential candidates, the electors have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the candidates of the party that nominated them. “Faithless” electors provide an occasional exception to that accepted rule.

…Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or for candidates other than those to whom they were pledged; they are known as “faithless” or “unfaithful” electors. Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number: since 1900, there have been eight, one each in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988 and 2004, and one blank ballot cast in 2000. They have never influenced the outcome of a presidential election, however, but their “faithless” votes, or failure to vote, were all duly recorded, and none of these faithless electors was prosecuted for this action. (Emphasis added).

I would like to think that any person with a basic understanding of federalism would conclude the same, but sophism seems to be all the rage.

The National Archives points out that the Supreme Court has “not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution.”16)Source That’s a fair point. This is undecided law.

Do you really think a federal court is going to enforce a state law that commands a federal official how to vote? Really?

The Secretaries of State throughout the country produced this nice handout where you can see how popular this idea has gotten. Doesn’t make it anymore constitutional17)I think the word ends in -hameful.

Mess With the Electoral College at Your Own Risk

Now, if you were an elector and trouble-maker (We know that at least one of the electors is an ran Bernie’s operation in Reno, making this a possibility) you might have some potential fun come Monday.

Let’s say for example you do not like this loyalty pledge law and want it declared unconstitutional by a federal court. In law, there’s a rule called standing which determines what potential plaintiffs are sufficiently connected to a matter enough to sue. It’s used to stop too many people from suing when they should not.

It’s possible that the only people in Nevada that would have standing to challenge the loyalty pledge law would be one of these electors. And they may only have an opportunity to do so every 4 years.

Only if the elector voted as s/he intended, but then was removed by the Secretary of State (as they are threatening to do in NRS 298.), would said elector have standing and a cause of action to bring a claim.

The Secretary of State’s office needs to be prepared for this. Hopefully between now and then, they realize they should not enforce an unconstitutional law, and allow the electors to vote as they choose. (The Congressional Research Office says one of these laws have never been enforced..there must be reason.)

The New York Times recently used our Secretary of State as an example of an elected official using the office to lobby (They have Nevada Energy emails), and I can’t be the only person living here waiting for an explanation. All eyes will be directed their way early next week.

The Secretary of State’s work Monday is likely the most important they will likely ever do. Here’s to hoping they realize that.

If you would like to learn more about the electoral college (or check my work), I invite you to spend a few minutes with Mr. Neale (the Congressional Research Office employee I quoted at length).

If you are unsure if it is proper for an elector to evaluate the candidate for president, just watch the first two minutes.

Thanks for reading.

 

 

Footnotes   [ + ]

1. Sorry
2. and here i thought my “Opaque election rules and procedures” club would get off to a much faster start. I’ll talk to the marketing guy..
3. This does function as marketing material as well, as I’m sure you are aware
4. What year is it?
5. If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer’s book on the topic is excellent
6. This has always shocked me
7. Please have more shame going forward
8. What’s going on at Northwestern? Yikes
9. Please find me the constitutional provision that allows the states to invalidate electoral college votes.
10. As in, there is consensus
11. Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup
12. I’m listening President Obama; I swear.
13. This is the office that your representatives rely on for data. It’s hard to be more trusted.
14. when I use this word I don’t mean anything pejorative
15. The law isn’t supposed to be political
16. Source
17. I think the word ends in -hameful.

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!

-Brian

[End Note]

 

Transcript:

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.

 

Footnotes   [ + ]

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

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.

-Brian

[End Note]

Transcript:

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.

 

Las Vegas Raiders stadium

ClearCast Episode 3: Serious Concerns About the Las Vegas Raiders Stadium

[Editor’s note] Hello and welcome to Friday’s ClearCast!

The whole Las Vegas Valley is discussing the Las Vegas Raiders stadium proposal, but there are still a lot of questions out there about bias1)The LVRJ is owned by the same person trying to acquire the stadium.

Our own Jordan Flake, Esq., although excited at the prospect of a NFL team, is concerned about the finances of the Raiders stadium as a passionate Nevadan.

Mr. Flake was kind enough to give me a few minutes of his time so that these concerns will be made public. He, like you, is worried about Nevada taxpayers.

I have gone through the transcript and added the appropriate links so you may follow along.

Thanks for watching! Have a great weekend.

-Brian

 

Transcript:

Hello. I’m Jordan Flake with Clearcast. On this Clearcast today, we want to talk about something really interesting, I think. It’s this Raider’s stadium that they’re proposing to build here in Las Vegas. As you can hopefully see, it’s a pretty good-looking stadium and it comes with a price tag of 1.9 billion dollars.

That’s right, 1.9 billion dollars is what they’re projecting for the cost. I just want to talk about this for a second. I’m really excited to get any opinions of any of our viewers or listeners. First of all, let me just say, I look at this and my natural inclination is to say that’s cool.

That’s great. I want an NFL team in Las Vegas.

Not a huge Raiders fan2)kidding Raider nation!, but I figure I can learn to somehow become a Raider’s fan, but there’s still some, as always, there’s still some lingering concerns and questions in the background.

Obviously, the first one is where are we going to come up 1.9 billion dollars, and what are some of the concerns swirling around that? What about maintaining it? How about is this what people really want here in Las Vegas?

Is it something that the public is really standing behind? First of all, one of the concerns is that the private investors here have, which include the Adelson’s and the Raiders themselves, the Raiders organization, they basically came to Las Vegas and said, “You want us, the Raider’s here in Las Vegas?

Okay, fine, Nevada. Give us 750 million dollars.” That’s basically what they’re demanding. “750 million or we won’t even, essentially, we won’t even consider it,” and the 750 million goes towards creating the stadium.

The proposal for getting the 750 million is to increase the, what is the name, Brian? Brian’s here.

Brian: Resort tax.

Jordan Flake: Resort tax, yes. Thanks. The resort tax right now is 12.5% of whatever a guest pays for their room. They want to increase that by .8 essentially, so that would make it 13.3 resort tax. That might not seem like a big deal because a lot of residents here in Nevada aren’t the ones paying these resort taxes.

They’re the out of towners who come to Nevada and they just stay in the hotels, but there are two concerns.

 

Is This How We Want the Resort Tax Revenue Spent?

One is we already have a pretty high resort tax.

One of the highest in the nation is Oregon at about 14% for every room, and it’s like, man, does Las Vegas want to be like, “Oh, hey, sorry, last year’s resort tax was 12.5. This year’s resort tax is 13.3. Go Raiders.” You know what I mean?

It’s a little bit in question whether or not that will disincentivize guests from coming to Las Vegas. I don’t know.

I feel like people coming to Las Vegas are so focused in on partying that they’re not really going to get too scared away by the .8% increase, but we do have to keep in mind that we’re competing with other gambling destinations throughout the world at this point and we have to make sure that we’re a reasonable place to visit.

Here’s my real concern with increasing the 12.5% to 13.3% or whatever it would be, is that it really doesn’t give us very much more room to increase that if we really needed it for something else.

Imagine that there was some kind of a statewide emergency that needs to and the state incurs a lot of debt that needs to get repaid in response to a statewide emergency. Imagine we have some other serious budget crisis in Nevada. Then we can’t then very easily … We could take it and we could take that 12.5 and bump it up to 13 or even 13.3, but we can’t very easily once it’s at 13.3 bump it up to 14 or 14.5 without really putting a strain on the marketability of the Las Vegas brand.

Think about what we’re doing here is we’re potentially incurring some taxation type costs, for what? For the entertainment that would be a Raiders franchise. Not a traditionally super winning team recently, of course.3)Now if the Broncos are interested..

That being said, this is a public and private venture.

The public would have that 750 million dollar stake in the stadium. It’s not like the investors are hopefully going to get the full benefit of it.

That’s obviously another concern is the investors are very savvy and we hope, and that’s one of the things we have to be wary of is that they’re taking advantage of the public funds to structure the deal in a way that would just enrich themselves, so that’s obviously another concern.

 

Stadium Maintenance Concerns

More concerns, what if we put up the 750 million as taxpayers, these would be the resort tax, and then they just say, “Oh, we need more money.”

What protections are in this contract and this building of the stadium contract that prevent them from just all of a sudden saying that they need more money or how about what happened to Quebec City in Canada?

In Quebec City, they built a stadium so that an NHL team would come, and you’re scrolling through your NHL knowledge, and it turns out that no hockey team actually came, so they just have this really beautiful multi-million dollar stadium in Quebec City, but they don’t really have any NHL team that would go and play in that stadium, so now they’re having to pay maintenance costs for this stadium and find other uses for it, and they just didn’t get the promised benefit.

What if something like that happened here? We build a stadium and the Raiders, for whatever reasons, find a loophole and decide not to come, or maybe one of the other California cities swoops in and outbids us?

We’re just not sure.

 

Does Popular Opinion Matter?

One other issue is just how do people actually feel about this? Like I said earlier, my tendency is just to be like, “Oh, Raiders, cool. A football team. Yeah. In Las Vegas. I want it.”

They did a poll here, a Rasmussen poll, and it turns out that 55% of Clark County voters are actually against funding the stadium and only 35% are in favor of funding the stadium.

This reminds us of what happened in Cobb County, which is a county in Atlanta, with respect to the Braves stadium. The chairman, Tim Lee, the Cobb County chairman didn’t really pass this by the voters before he tried to use taxes to fund 500 million dollars in a stadium for the Braves in Cobb County, and he, of course, did not win his next election.

One of the options here that our public officials should consider is actually just putting this to a vote. We have some time. We can get it on the ballot4)Unfortunately, this option is not being considered. Let everybody vote.

If they want to put up the 750 million and raise the resort tax and bring in an NFL team, then so be it.

Yay, democracy!

Anyway, those are just some of the concerns and considerations. I’ve just barely scraped the surface.

As always, I’d be very interested to hear what you have to say about the stadium, about the Raiders franchise, about whether or not public funds should be used to fund this public/private venture.

Definitely reach out to us on our blog, on our Facebook page, on our Twitter, and just let us know. Again, if you need any help with any type of legal issue, please feel free to call Clear Counsel Law Group. We’d be happy to assist you.

Thank you so much for joining us for Clearcast today.

 

Footnotes   [ + ]

1. The LVRJ is owned by the same person trying to acquire the stadium
2. kidding Raider nation!
3. Now if the Broncos are interested..
4. Unfortunately, this option is not being considered

Do the Dog Bite Laws in Nevada Need to Change?

Hello and welcome to Episode 2 of ClearCast!

We are sure you have heard about the horrific story of the child in Las Vegas that was killed by a pit bull. The fact that the dog had a previous violent incident has many folks in the Valley upset1)and not unreasonably.

In turn, two of our partners sat down for a few minutes to discuss the current state of the dog bite laws in Nevada.

Good information for all Nevada families!

Thanks for watching.

Analyzing the Current State of Nevada’s Dog Bite Laws

Transcript:

Jordan Flake: Hi, I’m Jordan Flake, and this is Attorney Jared Richards. His is a personal injury attorney. Welcome to today’s Clearcast. We’re talking about a really sad event that occurred just very recently here in Las Vegas. Imagine this scenario: A nine-year-old boy was going to visit his friend’s house. As soon as he showed up at the door, the owner’s pit bull jumped out of the house and attacked the child, a nine-year-old, and ended up killing him. There was a fatality involved with the pit bull.

We brought Jared on today because he’s a personal injury attorney, and he knows a lot about what we would colloquially refer to as dog bite law.

Let’s talk about this for a second here. Just kind of, let’s start really broad and general. Every time a dog bites a person, is the dog owner liable or how does that how does the law kind of even start to work on this? Before we even get to the fatality, if you’re just jogging along and somebody else is jogging with their dog the opposite direction, and that dog bites your ankle?

Jared Richards: Right. First of all, tragic, tragic occurrence, and our heart goes out to the family of the boy. In general, we don’t have any specific statutes that address the negligence aspect of dog bite liability. We have some criminal statutes, but it’s not for general negligence, which means we just go under general negligence law which we call just General Negligence Common Law.

Jordan Flake: There is not some statute that says, “This is dog bite law, NRS1774 in Nevada. There is just we go under what happened in previous cases?

Jared Richards: Right. Kind of.

Jordan Flake: Okay.

Jared Richards: There is a criminal statute, and if you violate the criminal statute then you automatically are going to be liable for damages that are done when you violate the criminal statute. You don’t have to violate the criminal statue …

Jordan Flake: In order to be held …

Jared Richards: In order to be held responsible.

Jordan Flake: Okay.

Jared Richards: Right, but if you violate the criminal statue your [inaudible 00:02:16].

Jordan Flake: What is …?

Jared Richards: What it is is everybody has the duty to act as a reasonably safe and prudent person. It’s my duty, it’s your duty, it’s everybody’s duty at all times.

Jordan Flake: Which is why we can’t drive recklessly.

Jared Richards: That’s why we can’t drive recklessly, we can’t drive drunk, we can’t drive distracted. We have to follow the basic safety rules of society as a reasonably prudent, safe person would do. Now, if we breach that duty and as a result of us breaching that duty somebody gets hurt then we’re on the hook for the damage that we’ve caused.

In the case of a dog the question is going to be up to the jury of what would a reasonably prudent and safe person, as an owner, have done in that situation?

This is where we get into questions about whether the one bite rule would apply or not? The one bite rule is a traditional common law doctrine where the owner isn’t going to be responsible until the animal has actually attacked somebody at least once before because they don’t know that the animal is dangerous.

I don’t know that would actually apply here. What’s really a jury is going to at and say was there sufficient notice to this particular owner that this particular dog was dangerous?

Jordan Flake: Just so everyone knows out there, the background also on this is that that dog was previously cited for attacking another dog.

Jared Richards: Right.

Jordan Flake: The question is, does that constitute sufficient notice so that the owner of the dog would have said, “You know what if a guest is coming to my home or if the front door is open and we’re just dealing with the screen door I better make sure this pit bull is restrained because somebody could come to the door and freak my dog out.”

Jared Richards: If you’re the person who owns the dog or if you’re the insurance company, like the homeowner’s insurance that’s backing up the dog, you’ve got to be careful about that because you’re going to have a lot of juries out there that might think that. If it’s already attacked another animal then it might attack a human. But, there might be juries that think the other way around. It really is going to depend on what the ultimate juries believe. What they think was proper notice to the owner that this was a potentially dangerous animal.

Now, the criminal statute is a little bit different. The criminal statue defines animals under two different varieties, under dangerous and vicious. Dangerous means that when it’s provoked it’s going to get defensive. Vicious means …

Jordan Flake: It goes out looking for trouble.

Jared Richards: Yeah, it goes out looking for trouble. You don’t need to provoke it. Once it’s been either cited as a vicious animal or you observed it be a vicious animal and you’ve seen it go out and bite then you have seven days, you can’t transfer it and you have seven days to get rid of it. If you don’t do that and somebody gets hurt then you’ve committed a misdemeanor. You’ve actually violated criminal law and you are, what we call, negligent to per se. You are just … The law’s going to assume that you’ve breached it.

Jordan Flake: That’s if they’re vicious?

Jared Richards: If the dog is vicious.

Jordan Flake: It seems, kind of, actually light because if you know your dog’s basically a weapon …

Jared Richards: Yeah, and that makes sense. If you’ve gone to the point where you’re actually committing misdemeanors then you’re going to be held viable. You don’t have to actually get to the point of committing the misdemeanor to be held liable. You don’t have to know that you’re dog is vicious. You have to know that the dog is vicious before you get criminally cited. To be civilly liable all you have to know is …

Jordan Flake: The dog is dangerous.

Jared Richards: You have to act as a reasonably sane person would act.

Jordan Flake: It’s interesting, the records show in Clark County that there’s been like 154 complaints made against dogs and only nine have been characterized as dangerous of those 154 that we kept records of and zero have been classified as vicious. I think it’s a pretty rare, apparently, a pretty rare classification.

Jared Richards: That’s interesting. Does that mean that there just aren’t that many vicious animals out there or …

Jordan Flake: Do the standards need to change to where …

Jared Richards: Or do the people who are enforcing the standards just not actually enforce them?

Jordan Flake: Right and that’s going to be the issue going forward here is people are going to look at this case and they’re going to say, “Well, what went wrong? This dog was already cited as having bit another dog and we have a …” The thing that we have here is a deceased child. That’s a total tragedy.

Jared Richards: Right, that kid is dead.

Jordan Flake: It’s just … When I heard about this story I was just shocked. He’s nine. He’s a nine-year-old kid killed by a dog.

Jared Richards: What’s interesting is that for a while there was a movement, again in various states, when you have a vicious breed of animal like a pit bull, an ultra-aggressive breed of animal or at least the public might perceive as ultra-aggressive that the owner is just going to be assumed to be already on notice that this is a dangerous animal and so they’re going to be liable in tort the first time the thing attacks because they’re going to assume they’re already on notice.

Jordan Flake: You buy a pit bull you know you’re buying a pit bull and you know what you’re doing.

Jared Richards: There’s been a counter movement in the past couple of years where you’ve had certain states that pass anti-discrimination laws against breeds of animals. I know that Nevada has also implemented that to a certain extent in the criminal statue. It does make you wonder how that would play in the tort. Can a jury still assume that, I don’t know if you buy a Rottweiler or you buy a pit bull, you buy a mountain lion, that at some point you have notice that the animal you bought does pose a danger to others just because of it’s breed.

Jordan Flake: It’s very, very interesting and I think very fertile for academic discussion is it’s obviously very unethical to look at race in human beings as a measure of whether or not there’s a potential for them to a commit a crime.

Jared Richards: We tend to anthropomorphize, I’m going to screw up the word, these animals and although … Listen, I like animals too. I like dogs. They have feelings too. However …

Jordan Flake: The stats don’t like. Pit bulls kill humans. They do. I just looked at the stats. It’s incredible. Pit bulls are the ones that … It’s overwhelmingly 70% children but they’re being by a lot of pit bulls and …

Jared Richards: Significantly more pit bulls have killed …

Jordan Flake: Than Golden Retrievers.

Jared Richards: Or Poodles.

Jordan Flake: Or Poodles or Chihuahuas. It turns out there …

Jared Richards: Not that many Chihuahua deaths.

Jordan Flake: Okay, so maybe last point here, the kid’s name was Derion Stevenson. If the Stevenson’s were to come into your office and talk to you about this case and they said, “Hey listen, we’re going throw unimaginable pain and suffering. We have his funeral costs and it’s just been horrible for us. What are our prospects for recovering in this case. What insurances are out there?”

Jared Richards: That’s an interesting question because the natural insurance that you would assume would apply would be the homeowner’s insurance. Most people in the State of Nevada or the United States of the world don’t really have enough assets to cover an injury like this. My goodness, the boy is dead. Unless you’re Wal-Mart you’re probably not going to have the kind of money to really truly compensate this family, not that money can. You won’t have the kind of money to truly compensate.

What you’d look at first is the homeowner’s insurance. The problem you’re going to have and something you have to look at is there are certain homeowner’s insurances that specifically exclude coverage of what the insurance company defines as vicious animals.

Jordan Flake: Which may be different that the state definition, by the way.

Jared Richards: Right. If I’m going to rely on statistics I’m probably going to rely on the statistics of insurance companies excluding then the state because …

Jordan Flake: Absolutely.

Jared Richards: Insurance companies are, sorry, cold heart less data driven beasts where this state …

Jordan Flake: The odd makers and actuaries know their stuff.

Jared Richards: The state does as well.

Jordan Flake: The state, yeah, a lot of interest and so forth.

Jared Richards: A lot of political interest going on. The first danger is is this specifically excluded by the insurance policy and if it is, and this is research I haven’t done, is it even allowed to exclude this then there may be additional umbrella insurance. After that you need to make the decision, do you go after the actual personal assets of the family and if you did would they just file bankruptcy? At that point even though you’ve lost a child, which is horrible, trying to take away all the property of somebody else also ruins their life. It may not make your life better. Those are all things that are difficult to weigh and sometimes it’s right and sometimes it’s not. Those are all things that that person, they need an attorney. They just need one.

Jordan Flake: Absolutely.

Jared Richards: Whatever attorney they go to they should go to one that has experience in personal injury, preferably experience in animal tort and that is compassionate enough they could actually try to walk them through some of these very, very difficult choices and issues that they’re going to have to deal with.

Jordan Flake: Absolutely. Thank you for joining us for Clearcast. Let’s just do a few little takeaways.

First of all, Jared is a great personal injury attorney. He’s my partner but still he’s a great personal injury attorney. If anybody out there has a question about a dog bite case or some other personal injury please seek his expertise. He will do a free consultation.

Second, is we would love to hear what you think. If you could chime in on the blog or on Twitter or Facebook and let us know what you think about pit bulls, about whether or not the laws are too lax, whether or not there’s any justice in this situation, what you know … You may know something about this story or have an opinion that we don’t. We love going back and reading over those comments.

Three, just thank you so much for joining us for Clearcast and we’ll hope to see you here in the future.

Thanks so much.

Jared Richards: Thank you.

 

Footnotes   [ + ]

1. and not unreasonably
rent, las vegas, nevada

ClearCast Episode 1: Should Home Buyers Fear Rent-to-Own Arrangements?

This morning, the New York Times published a very interesting exposé on rent-to-own agreements, with the examples cited from South Carolina and Ohio.

The article is worth reading in full, but to quickly summarize: Many folks out there are signing rent-to-buy agreements as a cheap alternative to buying a home. However, people are not aware of the terms of some of these agreements. There are examples cited in the article of people putting $10,000 into repairing their homes, only to be evicted for a missed rent payment.

Do Nevada consumers need to be concerned about rent-to-own leases? Will Nevada law protect you?

 

 

If you would like to see the video produced along with the article, you may see it below:

 

Transcript:

Hi, my name is Jordan Flake. I’m an attorney with Clear Counsel Law Group. Welcome to ClearCast and the goal of ClearCast is to take issues that are in the news and hopefully offer some kind of helpful legal insight or at least move the discussion along, hopefully in a productive manner.

I was reading the New York Times this morning and I learned something that might be of interest to some of our Nevada citizens because it has to do with property.

It seems like Nevada is a state where when we’re talking about real property and homes, a lot of interesting stuff happens in Nevada, California, and Florida. This is something that is happening throughout the country but not as much in Nevada but it’s still something that we really need to look out for.

The article is called “Rent-to-Own Homes: A Win-Win for Landlords and a Risk for Struggling Tenants”. Let me describe what a rent-to-own scenario is.

In the wake of the financial disaster home situations happened over the course of the last several years, several homes stayed vacant and big conglomerates, real estate conglomerates would come along and purchase up these small homes, maybe for $10,000 because they’re just vacant homes sitting on lots, they’ve fallen into disrepair.

Well, they have some options at this point, these conglomerates, these real estate conglomerates could pour a lot of money into these homes and try to sell them or they could pour a lot of money in these homes, bring them up to code and try to rent them out.

They could either sell them or rent them out.

What these real estate companies decided to do is kind of a tricky third option and the tricky third option that they tried to do and they’re trying to do is something called a rent-to-own contract.

The reason it’s tricky and worrisome is because there are a lot of protections for renters and there are a lot of protections for purchasers, but what these sophisticated real estate companies are trying to do is create this third path that really doesn’t offer very many consumer protections and let me show you a little bit what that would like like.

 

An Example of How Rent-to-Own Would Work

They purchase a house in South Carolina for $7,000 because it’s fallen into disrepair, nobody wants it, and it’s far, far below code and there’s all kinds of unpaid violations for this, that and the other, and then they go to a potential tenant and they say, “Hey listen. Not only can we rent you this property but what we’ll do is it will be a rent-to-own situation. You’re not a traditional renter and you’re not a traditional buyer but what you are is you are renting to own this property and we’re going to have you to come move into this. You pay $1,000 down or $1,500 down and you start paying $600 per month, and at the end of the long lease term, then you’ll actually own this property.”

They move in and they’re like, “Okay, good. This is great.” Then they find out that the renter is responsible for making repairs and the way the real estate company gets away with that is they say, “Okay, you’re not a traditional renter. You’re actually renting to own this property so because of that, you have to pay for the repairs.”

They’re not a traditional seller and so it’s not like that the home is actually in their name, they’re not a traditional seller-buyer operation so the home isn’t in their name.

They’re sitting there in this ambiguous third category where the renter is responsible for paying to bring this house up to code and to put money into it.

Guess what? The real estate company is actually still in the driver’s seat because all of a sudden, the renter is using all the money to bring the home up to code and misses two or three rent payments, and they can just kick them out.

Now they have a property that now has that much more value because the renter put money into it. They can then turn around and rent that to somebody else who will then put more value into it.

They keep getting this home that gets more value into it with really no intention to ever have it be sold because they just can arbitrarily kick people out.

This is the type of thing that has come out of this new strange landscape after the housing collapse. This is something that I want Nevada consumers to be very aware of.

 

Make Sure You Read Your Lease Carefully

Are you getting into something that sounds like a rent-to-own type scenario? Are you in a position where you’re being asked to put repairs into your house, but you’re not certain whether or not you should be paying for those repairs? Are you do something that is neither a traditional landlord-tenant type arrangement nor is it a traditional residential purchase type arrangement? Because if you are, you could be on very thin ice.

Landlord and tenant law is very well established and there are certain rights and protections that the tenant has and the landlord has. Residential purchases are very well established and there are certain protections given to both the buyers and the sellers.

What we have is real estate companies and sophisticated parties attempting to come and occupy this strange gray area where they lure people in saying, “Hey, you can own a home. Put down the money on this and start making these repairs and start paying rent and pretty soon the house will be yours.” There’s no protections and there’s no really great established body of law.

We look through the Nevada revised statutes and couldn’t find anything that was directly on point in these situations.

Again, we have established law for landlord-tenant, established law for residential purchase, but nothing in this third category.

If you’re aware of these situations, if you are involved in one of these situations, maybe you’re an owner or a landlord who actually wants to do this the right way.

These are all reasons to give us a call and we can help you figure out how to stay on top of it and how to do this is an honest and accurate way.

In any event, my heart goes out to those tenants who are right now potentially being exploited by these more sophisticated parties and it will probably be years and years and years before the law really catches up and addresses these different situations.

This is basically what I noticed this morning and what had got me thinking about.

Please feel free to reach out to Clear Counsel Law Group if you have any questions or issues and also on our Twitter and Facebook pages or our blog. We’re very interested to hear your own experiences and your own comments.

Thanks so much.

 

Clear Counsel Law group

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