unjust enrichment

Podcast Preview: Unjust Enrichment and That Free Lunch..

Earlier this week, the newest star on the podcasting circuit, Greg Hamblin, hosted one of our partners, Jordan Flake, on his new podcastOn The Docket.

We have gotten a lot of great feedback from these podcasts, thank you!

For today’s episode, I must ask you this: If you ordered a printer, but then were delivered a pallet of printers that will not fit inside your home, do you get to keep them?

Our preview begins with Jordan answering this question…

 

Unjust Enrichment: When Are You Obligated to Return the Items?
Transcript1)Been lightly edited for readability:

Jordan Flake: ..but let’s say that a company does make an error and it works to your benefit to the tune of 50,000 or $100,000. They either deliver a lot of printers or when they’re refunding you money instead of refunding you $1,000 they refund you $10,000. One question we get is, “Well, can I keep it?” Finder’s keepers, they made the mistake. It’s their mistake and their bad and it’s mine.

Greg:  That’s always my first reaction.

Jordan Flake: Right.

Brian: Whenever something bad happens to someone else to my benefit I think, “Oh, well. All right, it’s my lucky day.”

Jordan Flake: In as much as we’re talking about examples from the internet, if you want to sound like an internet pro on giving the true actual advice in this circumstance, is that the law, ever since the days of “ye olde timey England,” has recognized a legal principle called unjust enrichment, which basically says that if somebody gives you some kind of an economic benefit for which you did not give some kind of consideration or some kind of equivalent value, then you are on the hook for that amount of money. That’s what we call unjust enrichment. That’ll sometimes come up in the context of like a contract for services or somebody will basically get the benefit of …

Greg: An accident, basically, right?

 

unjust enrichment

 

Jordan Flake: Right, yeah, it’s an accident. Somebody will get the benefit of somebody who drops off valuable materials, or leaves a printer, or gives them extra money. Then they come along and say, “Well, no, you were unjustly enriched by this situation; therefore, you can’t keep the benefit.” Do you have a question there?

Brian: Yeah, so in the example with the printers, what is the obligated to do to avoid an unjust enrichment lawsuit?

Jordan Flake: This is not my official position…what happens is the unjust enrichment really happens if that person takes the possession and ownership and control of the printers. Merely leaving them out in the parking lot where they were delivered doesn’t unjustly enrich that individual. It’s the following the bad internet advice where it’s like, “Hey, sell the printers on Craig’s List and turn it into $100,000.” At that point that individual is enriched to the value of the four pallets of printers. If he just says, “Whoa, I’m just going to cover these with a tarp,” which I think somebody gave him that advice

Brian: Right.

Jordan Flake: … call the company. Then he’s not really enriched by that situation because he didn’t take them into his possession.

Greg: In that case what was happening was they were saying, “In the state that you are in there’s a statute that says, ‘You have an obligation to do what you reasonably can to protect other people’s property even if it was mistakenly given to you or put in your possession.'” In that case he figured since he can’t bring it inside. He doesn’t have room for four pallets inside much less fit them through the door. He would protect them from the weather, call the people immediately so that they could come and take care of it. That was about the limit of what he could reasonably do to protect this stuff.

Jordan Flake: If the bank ever makes a big error in your favor, don’t run to the ATM, pull out all the money and blow it on the strip because there’s a good chance that they could come after you and say, “Hey, you knew or should have known this money wasn’t yours. You didn’t do anything to earn it and you’re on the hook for it.”

Greg: Now this doesn’t apply to situations like someone leaves you something in their will because there’s a situation you get something and you haven’t done anything for it. It’s not an unjust enrichment.

Jordan Flake: Right, it’s not an unjust enrichment if it was intended it be a gift. There’s a presumption that you were my friend or whatever for my life and as a recognition of our friendship then this is a gift that I’m going to give you, even though that doesn’t necessarily require friendship. I think anything like that there’s a difference between a gift and you wouldn’t leave … The individual in this scenario wouldn’t have claimed, “Well, the pallets of printers were given to me by the company as a gift.” They just really like me as a customer. That’s the idea I think is there’s a little distinction there.

 

Footnotes   [ + ]

1. Been lightly edited for readability
Panaca, FBI Las Vegas Nevada

Podcast Preview: Why Would the FBI Investigate the Victims of the Panaca Bombing?

Earlier this week, rising podcast star Greg Hamblin hosted one of our partners, Jordan Flake, on his new podcastOn The Docket.

As you have heard from previous episodes, we touch on a wide-array of topics. Although many of our discussions have been national in nature, this week’s clip touches a bit closer to home.

In this episode, we discussed the FBI investigation of the Panaca bombing. In particular, why is the FBI investigating the victims of a crime?

 

 

Transcript: The Panaca Bombing and the Subsequent FBI Investigation

Greg: … Jordan, but this is about the Panaca bombs.

Jordan: Oh, yeah.

Greg: Have you heard about that? On July 13th, a couple of bombs were set off in Panaca, and now the FBI is involved, and there’s speculation that the person whose home was bombed had close ties to what infamous Nevada resident?

Jordan: Oh, no! The Bundys?

Greg: It is. It’s not the Bundys specifically, but the Finicums …

Jordan: The Finicums?

Greg: Who … Remember LaVoy Finicum, who was the guy who was shot after the whole thing in Oregon?

Jordan: This is crazy. This is really bizarre

Greg: Yeah, it’s weird. So far, as far as I can see, in the news articles that I’ve read, there’s nothing that indicates that the connection had anything to do with the bombing, but people are speculating, maybe that’s why the FBI is involved in this investigation now.

Jordan: The victims are the Cluffs … That’s their name.

Greg: Right, right.

Jordan: They are, by all accounts, good upstanding citizens of Panaca, business owners … And this disgruntled employee goes and blows up … Apparently he actually killed himself prior to the actual blast of the bombs …

Greg: I hadn’t heard that!

Jordan: Yeah, they did an autopsy … I’m not sure how, but determined that he shot himself in the head prior to the bombs actually detonating. Now, the Cluffs are sitting there saying, “Wow! We’re being investigated by the FBI for having been victims of this crime!” If you put yourself in their shoes, you’re sitting here thinking, “Wow, one of my employees went crazy, and blew himself up, and now, all of a sudden, the FBI is going through all of our … I don’t know … Credit cards …

Greg: Facebook profile …

Jordan: Facebook, credit card transaction history, taxes, everything that they have on us … That’s scary! That’s a little bit disconcerting

 

Panaca, Nevada, Las Vegas, FBI

 

Greg: That’s a little …

Jordan: You know, a lot of these communities are little tight-knit pockets of family, long-time, long-generation people who have lived in these small Nevada towns …

You know, ever since the LeVoy Finicum-Bundy thing, I’ve talked to some people from these regions, and they all have their … If it’s not a connection, it’s literally one connection away. If it’s not, “I knew LeVoy Finicum,” it’s “Oh, my grandma knew the Finicums …”

Greg: That’s actually how it is with me. I don’t know if you know, but I knew LeVoy, and worked with him for his nephew, and his son-in-law, and all kinds of people, because I’m also from a small community in that area. It is … Everybody knows everybody.

Jordan: Yeah, and the NSA is probably one of our biggest listeners here, so they know now that Greg …

Greg: Now they know.

Jordan: Greg has a history. Greg also has a connection! That’s why this is a little bit suspicious, because everyone has … Everybody up in those parts has …

Greg: They’re all connected.

Jordan: They’re all connected, so I hope the FBI doesn’t turn anything up, and I hope this isn’t an example of them just being overzealous. We obviously don’t know everything that they know … They might really have good reasons for what they’re doing … Maybe they’re just being thorough …

Greg: I think it’s … My guess is … I think that it’s not what the conspiracy theorists are saying, I think it’s just because the bomber lived in Kingman, Arizona, and the bombing took place in Panaca, Nevada, and since it’s cross-border thing, it becomes federal.

Jordan: Okay, you have to have federal agencies involved.

Greg: Sure.

Jordan: I’m guessing that’s what the real reason is, but …

Greg: Sure, but that doesn’t quite explain all the victim investigation, which is kind of …

Jordan: Right, right.

Greg: It makes people uncomfortable, for a good reason. Brian, you want to chime in on this at all?

Brian: I want to ask Jordan a question: What could the FBI do, to make people in Panaca feel more comfortable? Clearly, there’s no communication right now; is there something they could do that would help?

Jordan: That’s interesting! You know, I’ve wondered that this whole time. I haven’t been either following the story, or close enough to the actual situation, but it seems like the FBI would do some kind of a public relations approach to this whole situation, without seeming like the crazy federal … Faceless, nameless, federal agency that swoops in on this small town to wreak havoc …

Greg: Especially after the BLM stuff! You would think they would be upfront, like, “We understand you’ve been victims, but we’re worried about something …”

Jordan: Right, and try to rationalize in the minds of … I mean, it’s true … This is always the thing with power, and people in authority: People in authority, like the FBI, it’s not that they owe everybody an explanation. It’s not like everybody’s sitting here saying, “In order for you to do your job, I have to be okay with it!”

Probably actually the citizens are saying that, but what I’m saying is, that’s not a legitimate argument, to say “In order for you to do your job …” However, let’s not talk about what’s necessary, and let’s just think for a second about what might be prudent?

Greg: Thank you!

Jordan: If the FBI had said, “Hey listen! We’re coming in here, but really what we’re concerned about is protecting all of you from a situation, where an armed militia occupies your town! All of a sudden, you’re caught in the crossfire of the situation … This is why we’re doing what we do, and we have concerns about domestic terrorism … Terrorism from the inside, from God-fearing and otherwise patriotic people, you know what I mean? That’s another thing that we’re really concerned about …” Try to get people on board.

Instead, I’m worried about just this, oh, all these guys just show up, and descend on our town, they all have shotguns, and are going around bullying everybody …

Greg: Right, no explanation …

Jordan: No explanation, and here they are

 

podcast hyperloop

Podcast Preview: Startup Troubles and the Hyperloop

Earlier this week, Greg Hamblin hosted one of our partners, Jordan Flake on his new podcastOn The Docket.

We had a great time! The whole episode will be a treat.

..In this episode, Greg asked Jordan to explain some of the events surrounding the Hyperloop lawsuit:

 

 

Greg Hamblin:   The hyperloop. This is a big deal here in Nevada. But it’s now much less likely to come to pass because of the co-founders doing what? It was just in the news. I don’t know if you saw. Well, you want to take a shot at it?

Brandon Trout:  I’m actually not sure. I’ll let you go.

Jordan Flake:      All right. Brannon has said a few times this morning, he said, “Hey, I actually read this one. I finally get to say, ‘Hey, I actually read this one.”

Greg Hamblin:   Did you? Oh, good.

Jordan Flake:      What happened was that, obviously, something like this, there’s an insane amount of money’s thrown at it right off the bat, because there’s so much research and development. It’s just going to require a ton of money.

Greg Hamblin:   And this is one of those Elon Musk related projects.

 

hyperloop

 

Jordan Flake:      It is. Yeah, yup, exactly. Elon Musk is basically very extended with this and some of his other projects, like Space X or whatever. It’s like, “Hey, we need these rockets. We’re not sure why, but we need them. It’s going to be great.” Hyperloop could be very very useful, but you have a situation where they figure that each mile of hyperloop is going to be estimated $10 million.

Greg Hamblin:   Holy cow.

Brandon Trout:  Wow.

Greg Hamblin:   It’s not going to be cheap to make this. The upfront kind of investment of cash is just huge. Then the potential for this to just change our society is huge too. I mean, it’s a huge upfront investment, but it’s also a really big power play on the back end because whoever basically controls the next mode of transportation, especially transportation … I hope everyone knows what a hyperloop, the theory behind it is, that you create essentially vacuums-

Greg Hamblin:   It’s a big tube, right?

Jordan Flake:      And magnets to reduce friction and have people go extremely quickly. Anyway, the point is, so much money thrown around that the co-founders of the company that is kind of trying to develop it really started fighting with each other.

Brandon Trout:           Right.

Greg Hamblin:   Particularly, one side of the company was accused of paying off wives and lovers in huge amounts of money.

Greg Hamblin:   Right. $40,000 a month for PR work paid to fiancée.

Jordan Flake:      Yeah, $40,000 a month, which really in the grand scheme of how much money is going into this wouldn’t seem like a lot, but it’s just very nepotism-

Brandon Trout:           That’s still a lot.

 

hyperloop

 

Greg Hamblin:   And abusive. The other co-founder makes this complaint and says, “Hey, this doesn’t fly and I’m going to raise all these issues and I’m going to file a lawsuit.” He comes into work and what should he find on his desk? Bonus question for the host.

Brandon Trout:  Is it oil?

Jordan Flake:      Oh, probably. That would have been good. A noose!

Jordan Flake:      Somebody had, not just somebody, but one of the other people involved, had been caught on video taking a noose and setting it on-

Greg Hamblin:   Putting it on his desk, like a threat.

Jordan Flake:      Of his new archenemy. So anyway.

Greg Hamblin:   This is the world of startups.

Jordan Flake:      Yeah, it is. And that’s the thing, it’s kind of surprising. It’s not like all the other startups in the world were clean. I mean, Facebook, Microsoft. All these startups that had these – Apple – that had this potential to change the world had an animosity and greed and intrigue.

Greg Hamblin:   I’m sure.

 

 

new podcast preview

New Podcast Clip From Our Second Episode

 

Earlier today, Greg Hamblin was kind enough to host two of our partners, Jordan Flake and Jared Richards on his new podcastOn The Docket.

We had a great time! We can’t wait to hear the whole episode..

new podcast

 

In the clip above, Mr. Richards and Mr. Flake were asked by Greg to explain how person could leave thousands upon thousands of dollars for a pet. Here is a great example from Britain1)They use common law too! Where do you think we got it from?

Amoungst the new podcast fun, Mr. Richards and Mr. Flake explain what is necessary for person to bequeath a gift to a pet.

new podcast episode

New Podcast Transcript:

Greg Hamblin:   Could you do that kind of thing with an estate?

Jared Richards:  I don’t know anything about estate planning. It is your money, and you can literally do whatever you want.

Greg Hamblin:   It’s a Disney movie waiting to happen.

Jared Richards:  I worked for a poodle named Shotzel once.

Greg Hamblin:   Yes. Did you really?

Jordan Flake:      Yes. I did.

Jared Richards:  Yes, the Hoolihan.

Jared Richards:  The Hoolihan Estate, yes.

Jordan Flake:      The Hoolihan Estate. We all worked for Shotzel. I hope Shotzel is doing okay.

Jared Richards:  Shotzel died 2 weeks after his master.

Jordan Flake:      Oh darn, oh okay. The anxiety of meeting up with Shotzel’s demands is no longer resting on your shoulders. Seriously.

Jared Richards:  All of the most premium of dog bones.

Jordan Flake:      With Prince it’s just interesting maybe he probably didn’t expect to die as young as he did and maybe he just thought this stuff will take care of itself. You just contrast the $300 million of estate assets versus the relatively small amount of money that would have gone to an attorney. I mean it would have been expensive, no doubt, to do the estate planning. It’s really crazy.

Jared Richards:  Yeah, if I’m going to spend part, leave it all to the poodle.

Greg Hamblin:   Leave it all to the poodle?

Jordan Flake:      Leave it all to the poodle and the poodle’s descendants and just call it good, and have them in a big mansion and create a reality TV show about their lives. It’s not that hard. If we have any listeners who have pets who they would like to exalt and publicize, and then you can definite put what we call pet trust provisions in the estate planning.

Greg Hamblin:   Oh my God.

Jared Richards:  Or, if there are any NBC or CBS executives listening, we have an idea.

Jared Richards:  Right, we have an idea.

Jordan Flake: It just struck some serious goals there.

Jared Richards:  Absolutely.

Jordan Flake:      What the provisions generally say-

Greg Hamblin:   Pet lawyer on TLC.

Jordan Flake:      Pet lawyer.

Jared Richards:  If your pet needs a trust.

Jordan Flake:      No, I already am a pet lawyer. I had a client come in, a very nice woman. She was a pharmacist and she has a life insurance policy for a quarter million dollars and she left 100% of the life insurance policy to her 12 cats that she currently has; or, and we made it flexible because the number fluctuates apparently, to whatever companion animals are currently living with her at the time she passes away.

She was very grateful to have that piece of mind. The reality is, it’s her money. If she wants to use it to benefit her pets then that’s well within-

Greg Hamblin:   What are the cats going to do with the money?

Jared Richards:  I’m sure a little catnip , all this…

Greg Hamblin:   It’s just going to ruin them. They’re just going to get on drugs. They’re not going to go to college.

Jared Richards:  Everybody needs a response.

Jordan Flake:      Therein is the genius of the TV show. Look at all the nice clothes they’re buying. Look what they do with their, I’m just an heir lifestyle. “I’m just an heir” to this great fortune, you know? Some will make the videos and bad choices. We talked about that.

Greg Hamblin:   We talked about it. We have these sensitive moments that really connect with the family viewers. Forget Paris Hilton.

Jared Richards:  If you do want to do that though you do have to be careful and set it up properly. Just throwing it into your will saying I want to leave everything to my cat.

Greg Hamblin:   It doesn’t work.

Greg Hamblin:   No. It has to be in a trust and you have to address that problem.

Greg Hamblin:   I’m assuming that’s because you actually have a human being who takes care of the pets?

Jared Richards:  Yes.

Jordan Flake:      That’s right, that’s right.

Jordan Flake:      You have a trustee in that situation and you tell the trustee, listen this is how the money is to be used. You’ll want to compensate the trustee and our trusts that we use generally have provisions for compensating the trustee, because at some point the trustee is going to say, “You know what? I think I’d rather spend this money on myself.”

Greg Hamblin:   Right.

Jordan Flake:      This is a good candidate-

Greg Hamblin:   He won’t be satisfied with the irrevocable living love of the cat.

Jared Richards:  Oddly enough, it’s very, very few people will sue on behalf of the cats.

Jordan Flake:      That’s exactly why I was going to say either a co-trustee or a trust protector, or maybe designating an agent to benefit the cats while the trustee is somebody who manages the money. Those things can give you an idea because usually well, you know who comes along and makes sure the provisions of the trust are being enforced, as Jared hinted at, would be the beneficiaries. As much as the cats are then enjoying their wealth, they’re not going to be in a state of mind to bring a lawsuit against the trustee if they’re fulfilling their obligations.

Jared Richards:  Or if they’re fulfilling other things like if Miss Cruela DeVille were the trustee.

Jordan Flake:      Right, exactly.

Greg Hamblin:   Coming in 2017 on TLC. Oh my goodness…

 

Stay tuned..

In case you missed Episode 1..

Footnotes   [ + ]

1. They use common law too! Where do you think we got it from?
Las vegas water laws

“Nudging” Our Neighbors to Obey the Water Laws

On the effectiveness of our current water laws; on the shortcomings of deterrence; How a Sunstein-type “nudge” would work in application; why fans of behavioral economics need a firm understanding of FDR’s National Recovery Administration; why private enterprise might be the answer.

 

A neighbor1)as in, near our Henderson office on south Stephanie has put me in a devil of a predicament. There is a nearby business flouting the water laws, for now I won’t name, that I have seen first-hand watering their grass both during daytime morning and afternoon hours.

This would irritate me regardless, but in the context of Governor Sandoval standing on a dry lake bed last year (that was three feet deep a few years previous) declaring the seriousness of the drought, it should frustrate everyone. (Stay tuned, I have some fun planned today).

But what am I to do? Advocate that the city pass water laws?

..We already have water laws. As you will see below, each locality in the Valley has promulgated2)fancy law word for wrote a sufficient regulation: It’s illegal to water your lawn, residential or commercial, from 11:00 a.m. to 7:00 p.m. everyday. No Exceptions. Please Stop Watering Your Grass During the Day. 

Thank you neighbor.

Ok then, as the common logic goes, if there still is a compliance issue, then the deterrence is not sufficient.

..Below is the fine schedule used by the Las Vegas Water District3)the utility for city of Las Vegas and unincorporated Clark County

Meter Size (in inches) 1st Violation 2nd Violation 3rd Violation 4th Violation 5th Violation
1 or less $80 $160 $320 $640 $1,280
Over 1 but less than 3 $160 $320 $640 $1,280 $2,560
3 or greater $320 $640 $1,280 $2,560 $5,120

As you can see, those amounts are not anything to scoff at. And yet? More Water Waste.

I know; it’s frustrating.

Can We Do Better?

Perhaps! It’s not going to be easy in the slightest (There’s a reason the laws are the way they are!).

I have a few questions before we begin:

  1. Why do you pay your taxes?
  2. Why do you shop at Whole Foods?
  3. What’s the correct response to an increase in violent crime?

Keep those answers top of mind as we continue..

As with any good discussion of punishments, we must start with deterrence.

America Loves Deterrence!

And it’s across the political spectrum! And there’s a good reason why…it makes us feel good.

Hypothetical: There’s been an increase in home robberies in the Las Vegas Valley. The most common refrain in response? “Increase the sentence!”

Now as to if this is the correct response? I have no idea4)I do actually, it’s not. But I’m here to tease out the logic to see if this makes sense for public policy.

Deterrence is effective, at least to some degree, right? In reference to the tax question above, how did you answer? Likely some variation of “because I’ll go to jail,” right? And I’m sure I don’t even need to ask if you turned them in on time.(Stick a pin in this, we’ll be back in a moment).

Stipulated5)as in, we now all agree to the following: Deterrence is an effective means to get folks already inclined to pay taxes to do so. (Warning: we are nearing the edge of effectiveness for deterrence. Watch your step.) But this conversation isn’t about you; I know you already follow the water laws, dear reader.

But what about those folks who didn’t pay their taxes this year? That same deterrence that got you to pay by 15 April does not seem to be uniformly effective.

..If my preceding sentence is your only takeaway from today, okay by me!

The Drawbacks of Deterrence

Now the bad news: If some deterrence isn’t effective, it is likely that more won’t be either. Stay with me here, if we double the water fines above, what will be the effect on compliance? Very likely not twice as much compliance.

I would contend that double the fines would likely have no effect on compliance, which logically leads to a discussion of the effectiveness of deterrence.

In terms of public policy, this matters less with regards to water laws, but much more significantly to our criminal justice system, for example.

Back to the hypo, it is difficult then to morally justify increased punishment as a means of public policy if we are aware that deterrence is ineffective.

Why are we punishing people the way we are if deterrence isn’t effective? What is it that we expect/desire of convicted criminals? Is it just plain vengeance then? What does that say about all of us?

 

Would a “Nudge” Be Sufficient?

Familiar with the term “libertarian paternalist”? Right, of course you’re not because the term’s ridiculous6)it’s a prima facie oxymoron, no? Also, if the academic types want more people to listen, try using words real people use. You don’t need to be, but I want to use Cass Sunstein’s7)He is one of the country’s leading behavioral economists/advisor to President Obama concept for our discussion.

In essence, the Nudgers think the government should encourage (nudge) folks into socially optimal behavior. A little more background on libertarian paternalism from the NY Times Magazine profile of Mr. Sunstein:

Libertarian paternalists would have school cafeterias put the fruit before the fried chicken, because students are more likely to grab the first food they see. They support a change in Illinois law that asks drivers renewing their licenses to choose whether they want to be organ donors. The simple act of having to choose meant that more people signed up. Ideas like these, taking human idiosyncrasies into account, might revive an old technocratic hope: that society could be understood so perfectly that it might be improved.8)Source

 

Yikes..My gut instinct says even some15)not all! of Bernie’s most ardent followers would be taken aback by that.

Talk about a nudge too far..

See, the thing about the law is, it really is only as effective so much as you can enforce it. To this point, the Wikipedia elucidates the effect of the many NRA regulations passed in the 1930s:

Journalist Raymond Clapper reported that between 4,000 and 5,000 business practices were prohibited by NRA orders that carried the force of law, which were contained in some 3,000 administrative orders running to over 10 million pages, and supplemented by what Clapper said were “innumerable opinions and directions from national, regional and code boards interpreting and enforcing provisions of the act.” There were also “the rules of the code authorities, themselves, each having the force of law and affecting the lives and conduct of millions of persons.” Clapper concluded: “It requires no imagination to appreciate the difficulty the business man has in keeping informed of these codes, supplemental codes, code amendments, executive orders, administrative orders, office orders, interpretations, rules, regulations and obiter dicta.”

 

Even worse, the Roosevelt Administration found out they did not have the power to enforce these new rules.

From John T. Flynn:

The NRA was discovering it could not enforce its rules. Black markets grew up. Only the most violent police methods could procure enforcement. In Sidney Hillman’s garment industry the code authority employed enforcement police. They roamed through the garment district like storm troopers. They could enter a man’s factory, send him out, line up his employees, subject them to minute interrogation, take over his books on the instant. Night work was forbidden. Flying squadrons of these private coat-and-suit police went through the district at night, battering down doors with axes looking for men who were committing the crime of sewing together a pair of pants at night. But without these harsh methods many code authorities said there could be no compliance because the public was not back of it.16)The Roosevelt Myth via wikipedia

 

It is imperative for any governing structure, public or private, that they not have rules that are unenforced for the reasons discussed under the deterrence heading above. Deterrence doesn’t work without enforcement! And given how exceedingly difficult enforcement is, this method of public policy should be avoided when possible.

Don’t just nod at me; think about this in the context of the water laws. For our current regulatory framework to be effective, the Southern Nevada Water Authority would need to enlist an unknown number of enforcers17)hundreds? thousands? to roam the Valley each and every day looking for violators of the waters laws.

I mean if we are talking about real deterrence, these enforcers would apply a “one strike/you’re out” policy where they would just turn off the water of a consumer not abiding by the water laws18)I can see my conservative friends salivating..that is far too draconian. What if the business I am discussing is an apartment complex? Clearly the residents shouldn’t have their water turned off; they don’t control when the grass is watered/if their property management company abides by the water laws. It’s not a terrible idea in theory..it’s just that we don’t live in theory. People need water.. Once we conclude, however, that the “one strike” method is overly harsh, we have to also concede the effectiveness of our friend, deterrence.

 

What Would a “Nudge” of the Water Laws Comprise of?

We are now wading into uncharted territory, so bear with me. Given that I navigated us this far, I have to take a crack at this.19)Hopefully we don’t have any Starbucks[Just go read Moby Dick already] aboard

  1. It’s fair to say most sprinkler systems are automated20)Correct?. Why not mandate that sprinkler systems must be programmed so that they cannot turn on until after 7 p.m.?21)I don’t know this for sure, but I have seen sprinkler systems that can be set for months. This could be done just for Summer
  2. Less extreme: Require sprinkler systems to configure a second switch to be pulled in order for the sprinklers to operate during daytime hours. This seems closer to Sunstein’s “default everyone as organ donors.”
  3. Require a solar sensor on sprinkler systems. If the sprinkler system senses the sun, it doesn’t turn on. Simple enough.

I’d say that’s not a terrible attempt at the problem, given that my only background I have with water is consumption22)Don’t know about you, but I always preferred a good self evaluation. Please don’t see those three items as some sort of comprehensive attempt to solve the issue23)it’s more like a demonstration.

Although I see those proposals as fairly benign, it is very likely many of you do not.  The idea of anyone from the government controlling your water (or any other) supply makes you crazy; I’ve lived in Nevada long enough to understand the sentiment24)It’s a principled stand based on liberty..I swear I’m listening.

In that NY Times Magazine article on Sunstein, it is emphasized a couple of times that Glenn Beck25)Republican, cheetos is very creeped out by the work of Cass Sunstein (Unfortunately, the piece does not tell us why). Not sure if Beck has some background with Sunstein (the complaint seemed strangely personal), but I think I understand what Beck26)Things I never thought I’d be doing on the Clear Counsel blog: defending Glenn Beck was getting at, and I believe that it’s related to the liberty-minded sentiments we often hear in Nevada.

Sunstein seems like a nice enough guy (Don’t know him either) with benevolent intentions, but if he takes this concept even one step beyond school lunches, people are going to be upset. Unfortunately27)the appropriate adverb is debatable, we as a society have not stipulated what we consider to be moral behavior and there’s a lot of disagreement out there.

And you know what? That’s ok! We can have disagreements, and we can use our democracy to make collective choices.

It is just that we, collectively, just aren’t ready to determine what behavior should be nudged by the government. I think it is fair to say, given the choice, that most Americans28)given that many of our moral issues are still being debated would prefer the government stay impartial.

And those of us who want better compliance with the water laws need to respect this. An issue that is so morally clear cut for me (We only have one earth, last I checked), is not for my fellow Nevadans.

And because I respect and value the opinions of my neighbors, applying these techniques without a clear Supermajority just isn’t the right thing to do.29)A lot of my liberal friends disagree with me on this. It’s not just about being right though. If I care about the water laws as much as I say I do, I should be attempting to persuade those with whom I disagree30)reasonably, respectfully.

 

So Where Does That Leave Us?

You know what they say..A nudge is only as good as its nudger? It’s something close to that31)No it isn’t. Just making up cliches again..

Point being, the quality of output (that is, the nudge) is completely a product of its creator. And in order to institute “nudging” as public policy, we would need thousands upon thousands of people with the sufficient intellect and morality to specifically craft policy for each locality.

I don’t know how many Cass Sunstein’s32)If you are looking for the conservative alternative, think Judge Posner of the 7th Circuit. How much fun would it be to live in a city where he was doing the nudging?? there are out there, but likely not enough for each of the nation’s municipalities.

Whereas I would be open to some “nudging” legislation if it was to implemented by someone that much smarter (and hopefully moral) than me, I am completely against the concept if we are going to settle for a run-of-the-mill politician’s half-arsed33)#Brexit!! effort.

Like many other concepts/proposals in public policy, this concept needs to be implement completely correctly, or it should not be done at all.

 

Perhaps More Government Isn’t the Answer

Are you familiar with what Google’s Trusted Store campaign? Perhaps our answer is here.

If you are unfamiliar, Google will allow certain vendors to display a badge that declare that a retailer is a “Trusted” by Google if the vendor is willing to meet certain requirements from Google. The standards are so rigorous that Google is willing to insure a purchase from a Google Trusted Store up to $1,0000. For an example, see Overstock.34)Overstock doesn’t pay me anything, just the first example I could find. Scroll to the bottom of the page

I think we sufficiently fleshed out why government nudging likely isn’t our short-term answer above, but we neglected our friends in the private sector!

What’s to stop two or three people with a passion for observance of the water laws from forming an organization to promote that idea? Now, I’m no expert on corporations, (if you need help in this arena, I recommend my boss Mr. Barlow.)35)If you search our legal blog, he has discussed this topic extensively. Here is a good example but it might be worth your time to read about 501(c) Organizations.36)501(c) refers to the tax code

These said two or three people could design their own version of the Blue Eagle, drum up public support37)easier now than ever with social media, raise money38)or self-fund. Again, many more options when you use private enterprize, and offer a large poster (in today’s age, a badge to be displayed on the company’s website/social media pages) to be displayed for all potential customers if these companies follow prescribed rules.

And the best part of these rules? They can be whatever you want them to be. These are private individuals doing business with private companies—no government/extra water laws needed!

Draft your own contacts with your own terms which, of course, can include provisions for if a company violates the terms.

The possibilities are endless. For a great example of the potential of benevolent citizen organization creating change, see this Politico discussion about Cincinnati.

We aren’t the only one’s nudging. Just today, The Washington Post published a proposal on how to get more people to vote39)Pretty good idea if you ask me.

Thanks for reading.

Below is the relevant water laws from the City of Henderson (Just in case you don’t believe me). Ordinance 24.34.020 (the second one) is very clear when folks are permitted to water their lawns.

14.14.020 – Water waste.
A. Water waste unlawful.
1. It shall be deemed unlawful for owner, occupant, or manager of real property served by the city to permit the excess use, loss or escape of water through breaks, leaks or malfunction in the water user’s plumbing or distribution facilities for any period of time after such escape of water should have been reasonably discovered and corrected as determined by the director.

2. It shall be deemed unlawful for owner, occupant, or manager of real property served by the city to waste water after a notice has been issued. Water waste includes, but is not limited to the following:
a. Allowing water to flow or spray off private property onto a sidewalk, pavement, gutter, street, alley, right-of-way or drain.
b. Failure to repair a malfunction of an irrigation system or supply line within 48 hours of notification by the city. Such malfunctions may include, but are not limited to: pooling due to broken sprinkler head, geyser or jet of water caused by broken drip irrigation line, etc.
c. Failure to repair a water leak.
B. Responsibility for waste. Any waste of water as set forth in this chapter, together with proof that such waste originated at any residence or place of business, shall constitute a rebuttable presumption that the current owner, account holder, or manager of such property or residence or place of business was responsible for such waste.
(Ord. 2798, § 5, 1-20-2009)

 

24.34.020 – Limitation on irrigation.

(Ord. 2934 § 4, 2003: Ord. 1271 § 1 (part), 1991)

14.14.030 – Landscape watering restrictions.

A. Landscape watering schedules shall apply to all areas, both residential and commercial, including, but not limited to: single family residential properties, multi-family residential properties, commercial properties, common areas, medians, and private parks. Community use recreational turf shall be subject to the provisions outlined in section 14.14.040(E).

B. Beginning May 1 until September 30 of each calendar year, it is deemed unlawful to use water to spray irrigate turf, gardens, trees, shrubbery, or other vegetation between the hours of 11:00 a.m. and 7:00 p.m.

 

14.14.040 – Golf courses.

 

 

 

Footnotes   [ + ]

1. as in, near our Henderson office on south Stephanie
2. fancy law word for wrote
3. the utility for city of Las Vegas and unincorporated Clark County
4. I do actually, it’s not
5. as in, we now all agree to the following
6. it’s a prima facie oxymoron, no? Also, if the academic types want more people to listen, try using words real people use.
7. He is one of the country’s leading behavioral economists/advisor to President Obama
8. Source
9. please don’t overcomplicate this
10. Like shouting “War Eagle,” but for fans of labor
11. As John Oliver astutely pointed out, the more famous NRA isn’t even that big..Apparently planet fitness has more members? Also, apparently that matters..
12. There’s good reason today to think this is incorrect. Any discussion of the Great Depression is incomplete unless debt crisis of the 1920s included
13. game theory term for “race to the bottom”
14. Imagine living in an era where you had to go to the movies to watch the news
15. not all!
16. The Roosevelt Myth via wikipedia
17. hundreds? thousands?
18. I can see my conservative friends salivating..that is far too draconian. What if the business I am discussing is an apartment complex? Clearly the residents shouldn’t have their water turned off; they don’t control when the grass is watered/if their property management company abides by the water laws. It’s not a terrible idea in theory..it’s just that we don’t live in theory. People need water.
19. Hopefully we don’t have any Starbucks[Just go read Moby Dick already] aboard
20. Correct?
21. I don’t know this for sure, but I have seen sprinkler systems that can be set for months. This could be done just for Summer
22. Don’t know about you, but I always preferred a good self evaluation
23. it’s more like a demonstration
24. It’s a principled stand based on liberty..I swear I’m listening
25. Republican, cheetos
26. Things I never thought I’d be doing on the Clear Counsel blog: defending Glenn Beck
27. the appropriate adverb is debatable
28. given that many of our moral issues are still being debated
29. A lot of my liberal friends disagree with me on this. It’s not just about being right though.
30. reasonably, respectfully
31. No it isn’t. Just making up cliches again.
32. If you are looking for the conservative alternative, think Judge Posner of the 7th Circuit. How much fun would it be to live in a city where he was doing the nudging??
33. #Brexit!!
34. Overstock doesn’t pay me anything, just the first example I could find. Scroll to the bottom of the page
35. If you search our legal blog, he has discussed this topic extensively. Here is a good example
36. 501(c) refers to the tax code
37. easier now than ever with social media
38. or self-fund. Again, many more options when you use private enterprize
39. Pretty good idea if you ask me

Podcast Preview!

 

Earlier today, Greg Hamblin was kind enough to host two of our partners, Jordan Flake and Jared Richards on his podcast.

Greg was very generous in allowing me to film the podcast session1)and we appreciate it very much.

podcast

 

In the clip above, Mr. Richards was asked by Greg to explain how an East Cleveland man could be awarded a 22 million dollar verdict from a jury.

Specifically, Mr. Richards explains the difference between compensatory and punitive damages and how they are related.

 

Podcast Transcript:

As far as the punitive element, you have an issue because generally punitive elements need to be somewhat in line with the compensatory element. For those people that are listening that don’t know, compensatory damages is just to reimburse the person for what was taken from them.

Punitive damages has nothing to do with compensating, reimbursing, awarding the victim. It has everything to do with punishing the person who has abused the victim. It has to be large enough to sting.

Listen, most cops out there are good cops.podcast

 

They follow the rules.

They do the right thing.

I can’t think of any justification for locking somebody in a closet for four days. I don’t care what they did, that’s not due process, certainly not at a traffic stop.

Again, I don’t care what you did, that’s not due process, that’s not allowed.

That kind of police abuse needs to be addressed and this is the proper way to address it. Whether it’s $12 million or some other number, I don’t know, but unless you have a high compensatory, then the punitive has to be somewhat in line, generally like a multiple of three in most cases.

It’s the maximum you can award.

If you don’t have the $10 million component, or at least like a $4 million component, for the compensatory, you can’t get to the $12 million punitive. It doesn’t make that analysis fair or rational, but it does allow the punitive to stand.

 

Stay tuned..

Footnotes   [ + ]

1. and we appreciate it very much
Nevada voting election vote

Election Day Special: Know Your Voting Rights

Need to find your polling place in Clark County? Just click here. Voting is open until 7 p.m. 

 

Happy Election Day! Good news! We have moved into the state-administered calendar of the election season. Why is this good? Because when the state administers an election (as opposed to a political party), you have rights as a Nevada citizen to ensure the election is administered fairly.

More good news! As I’m sure you have heard how new voter-ID laws across the country are disenfranchising people (who could forget Sen. Burr having to vote with a provisional ballot?). Well, we don’t have one! In fact, the next time someone brings that silly topic up, refer them to NRS1)which stands for Nevada Revised Statute 293.775 that states that anyone “who votes or attempts to vote knowing that he or she is not a qualified elector is guilty of a category D felony.”2)Cite

Yes, voter fraud is already a crime. Let’s move on talk to about stuff that’s really important…like bathrooms3)kidding!.

Know Your Election Rights by Statute

It’s one thing to know that it’s “the law” that you do not have to provide state-ID to vote (for example), but what fun is that?

It’s much more fun to vote knowing the precise statute that empowers you!

Let’s start with election day observation:

NRS 293.274  Members of general public allowed to observe conduct of voting at polling place; photographing or otherwise recording conduct of voting by members of general public prohibited.

      1.  The county clerk shall allow members of the general public to observe the conduct of voting at a polling place.

      2.  A member of the general public shall not photograph the conduct of voting at a polling place or record the conduct of voting on audiotape or any other means of sound or video reproduction.

      3.  For the purposes of this section, a member of the general public does not include any person who:

      (a) Gathers information for communication to the public;

      (b) Is employed or engaged by or has contracted with a newspaper, periodical, press association, or radio or television station; and

      (c) Is acting solely within his or her professional capacity.

      (Added to NRS by 1995, 2772; A 1999, 264) (emphasis added)

There was some confusion online if people are allowed to take pictures of their ballots and post them (I am not going to reproduce a potential crime here). There’s been a national rise in demand for folks to film themselves casting a ballot out of fear of voter fraud, but you do not need to worry about that here. In Nevada, you can see a print out of your voter preferences before you leave the booth. I can verify this firsthand.

My point being, you don’t need to film yourself voting. Also, it’s illegal.4)Yes, Jon’s right. Doesn’t excuse that tone of his though.

One last point regarding NRS 293.274 in reference to the general public being permitted to “observe.” That means you can stand near the poll location and watch people vote. “Observe” has a different meaning than “talk to,” “intimidate,” “question” or any other action that involves you interacting with voters.5)Small aside. In 2008 i worked for the “Election Protection” team in Las Vegas where we went to the polls to make sure voters weren’t being made uncomfortable. At the North Las Vegas polling place I visited, there was in fact a man there in a white button down shirt, bright red tie, with a steno pad, looking at each voter’s face and making a note on his pad. I just went and stood next to him..he left 10 minutes later. Guess he had all the notes he needed. Leave them voters be!

You Do Not Need State-Issued ID to Vote

NRS 293.277 and NRS 293.285 states what is required of you to vote:

NRS 293.277  Conditions for entitlement of person to vote; forms of identification to identify registered voter.

      1.  Except as otherwise provided in NRS 293.283 and 293.541, if a person’s name appears in the roster or if the person provides an affirmation pursuant to NRS 293.525, the person is entitled to vote and must sign his or her name in the roster when he or she applies to vote. The signature must be compared by an election board officer with the signature or a facsimile thereof on the person’s application to register to vote or one of the forms of identification listed in subsection 2.

      2.  Except as otherwise provided in NRS 293.2725, the forms of identification which may be used individually to identify a voter at the polling place are:

      (a) The card issued to the voter at the time he or she registered to vote;

      (b) A driver’s license;

      (c) An identification card issued by the Department of Motor Vehicles;

      (d) A military identification card; or

      (e) Any other form of identification issued by a governmental agency which contains the voter’s signature and physical description or picture.

      (Added to NRS by 1960, 252; A 1985, 559; 1991, 2219; 1993, 2181; 1995, 2263; 2001, 2595; 2003, 2176; 2015, 3151) (emphasis added)

NRS 293.285  Procedure for taking registered voter’s signature.

      1.  Except as otherwise provided in NRS 293.283, a registered voter applying to vote shall state his or her name to the election board officer in charge of the roster, and the officer shall immediately announce the name, instruct the voter to sign the roster and verify the signature of the voter in the manner set forth in NRS 293.277.

      2.  If the signature does not match, the voter must be identified by:

      (a) Answering questions from the election board officer covering the personal data which is reported on the application to register to vote;

      (b) Providing the election board officer, orally or in writing, with other personal data which verifies the identity of the voter; or

      (c) Providing the election board officer with proof of identification as described in NRS 293.277 other than the card issued to the voter at the time he or she registered to vote.

      3.  If the signature of the voter has changed in comparison to the signature on the application to register to vote, the voter must update his or her signature on a form prescribed by the Secretary of State.

      (Added to NRS by 1960, 253; A 1971, 442, 1486; 1987, 692; 2007, 2588; 2015, 3152)

If you are looking to remember one election statute, NRS 293.277 is the one you are looking for. As you can see above in the bolded section, if your name is on the voter rolls, with a signature and an affirmation6)legally binding statement, you get to vote.

I was going to add “no questions asked” but that could be literally untrue. Take a look at NRS 293.285. If your signature doesn’t match with the one on file, the election official present will likely ask you a few questions. This is okay!

The procedure for how the election officials ask and take your signature is specifically prescribed by statute. If the above procedure is not followed at your polling place, please inform that Clark County Election Department at (702) 466-8683.

Just in case, here is the language from the Clark County Election website regarding voter identification:

You will give your name to a Clerk at the precinct table. The Clerk will find your name in the Precinct Register and ask you to sign next to your facsimile signature. The Clerk will then verify your identity by comparing your handwritten signature to your facsimile signature. It may be helpful to bring picture identification with you when you vote.

I cannot get enough of that last sentence. I must have read it at least 20 times.

Lastly, if voting is difficult for you because of language or physical disability, the election officials are required to allow assistance:

NRS 293.296  Assistance to voter who is physically disabled or unable to read or write English.

      1.  Any registered voter who by reason of a physical disability or an inability to read or write English is unable to mark a ballot or use any voting device without assistance is entitled to assistance from a consenting person of his or her own choice, except:

      (a) The voter’s employer or an agent of the voter’s employer; or

      (b) An officer or agent of the voter’s labor organization.

      2.  A person providing assistance pursuant to this section to a voter in casting a vote shall not disclose any information with respect to the casting of that ballot.

      3.  The right to assistance in casting a ballot may not be denied or impaired when the need for assistance is apparent or is known to the election board or any member thereof or when the registered voter requests such assistance in any manner.

      4.  In addition to complying with the requirements of this section, the county clerk and election board officer shall, upon the request of a registered voter with a physical disability, make reasonable accommodations to allow the voter to vote at his or her polling place.

      (Added to NRS by 1973, 293; A 1977, 244; 1985, 1093; 1987, 693; 1999, 2156; 2015, 1146)

You, the voter gets to pick whom will assist you. No one else (there are exceptions, see the rest of the law below). 

Still think it is too difficult/inconvenient to vote? I wrote a Not-Very-Modest Proposal to fix our election problems..

Thanks for reading.

 

Footnotes   [ + ]

1. which stands for Nevada Revised Statute
2. Cite
3. kidding!
4. Yes, Jon’s right. Doesn’t excuse that tone of his though.
5. Small aside. In 2008 i worked for the “Election Protection” team in Las Vegas where we went to the polls to make sure voters weren’t being made uncomfortable. At the North Las Vegas polling place I visited, there was in fact a man there in a white button down shirt, bright red tie, with a steno pad, looking at each voter’s face and making a note on his pad. I just went and stood next to him..he left 10 minutes later. Guess he had all the notes he needed.
6. legally binding statement

Filing for Bankruptcy and Your Tax Refund

 

 

Tax Refunds and Bankruptcy: What You Need to Know

Transcript:

Hi, Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. This time of year, tax season, a very common question that I receive is how will filing bankruptcy affect the status of my tax returns and any tax refund that I may be entitled to if I file?

This is a somewhat important issue for people filing for bankruptcy because people filing for bankruptcy typically don’t have a lot of disposable income and tax refunds are often treated like a nice little bonus that you can use to catch up on bills, pay for the bankruptcy itself, or do some other needed things because it’s money that wasn’t really being counted on that’s now available to you.

The problem is, specifically if you’re filing a Chapter 7 bankruptcy, is that when you file for bankruptcy anything valuable that you own is potentially part of the bankruptcy estate and even the right to receive a refund can be considered a valuable asset.

In other words, if you filed your bankruptcy in January and you filed your tax return in February and you’re entitled to receive a certain amount of money as part of your tax refund, then the bankruptcy case that was filed in January is going to possibly include part of that refund as property in the bankruptcy estate.

 

What does that mean?

That means if it’s property in the bankruptcy estate the court has the power to take that money, make it available to your creditors and make distributions to your creditors.

For example, a person filing in January that files their tax return in February, let’s suppose that they’re entitled to a refund of $2,000. If this person didn’t have any protections available to protect that refund the court has the power to take that $2,000.

They can either intercept it directly from the IRS or require you to pay that amount to the bankruptcy court and then they take that money and give it to your creditors. That’s considered fair price to pay for wiping out all the other debt that you may have.

 

Tax Return, bankruptcy, Las Vegas, Nevada

 

The important question is do you have protection that’s available to exempt the refund from being part of the bankruptcy estate? In the State of Nevada there are 2 main types of protections that we typically use to protect the tax refund.

 

The Income Credit Exemption

The first is the earned income credit exemption. In the State of Nevada, if you receive earned income credit as part of your tax refund, that is 100% exempt and is yours and is not part of the bankruptcy estate. This is kind of a confusing issue and if you’re concerned or not sure whether you received earned income credit it’s going to be important to take a look at your tax return.

An experienced bankruptcy attorney should be able to find this with you, or a qualified tax professional should be able to help you determine whether or not your entitled to earned income credit. Generally speaking, if you get earned income credit it’s protected though, and that’s a good thing for filing bankruptcy and protecting your tax refund.

 

The Wildcard Exemption

The other protection that we have available in most cases in a Chapter 7 bankruptcy in the State of Nevada is what we call the wildcard exemption. This is $1,000 or $2,000, depending if it’s an individual or a couple filing jointly, that is available to be applied to any asset, any personal property, so it can be applied to a tax refund in other words.

In the optimal situation, a person filing for bankruptcy would have some earned income credit that would be 100% protected and any remaining portion of the refund that might not be covered by the earned income credit would be covered by the $2,000 wildcard or the $1,000 wildcard. Anything over that amount and that’s technically part of the bankruptcy estate, that may be required to be turned over to the court for your creditors to make a claim against.

If you have any questions about your ability to protect your tax refund, especially this time of year, in tax season, and you’re thinking about filing for bankruptcy please come and see me before you file for bankruptcy. I’d be happy to walk you through this and make sure that we’re being able to protect your tax refund to the extent possible. Hope to hear from you soon and be part of your path back to a fresh start. Take care.

 

Caucus, Nevada, Democrats, republicans, trump, hillary, bernie, cruz

The Answers to All of Your Caucus Questions!

You knew all the fun had to end eventually, right? I wonder if the national parties (in collusion with the cable news networks) decided to move the first primary or caucus back to April, what the candidates would do? Could they possibly keep up this pace for another three months?

Assuming the caucus dates will not be moved (to the chagrin of some establishment types that need more time to buy this thing), we still have so many unanswered questions: Will Rick Santorum wear his patented sweater vest without sleeves once it gets warmer? How many pairs of fancy boots does Mr. Rubio own? Is there anyway to distract Bernie from discussing income inequality?

If only we had more time!

Whether you are all aboard the Trump-train, feeling the Bern, “in” with Hillary, or part of the CruzCrew, you have likely heard all you need and are ready to declare that all import vote in the primary process. Now the only remaining issue is: How?

Below is a composite of most Frequently Asked Questions about the caucus process:

 

When and Where is the Nevada Caucus?

For some reason, (I have a guess but it is not appropriate to speculate), the two political parties host their caucuses on different days:

The Democrats: 20 February 2016, Saturday. Registration starts at 11am, the doors close at 12 Noon. They claim that if you are not at your caucus location by 12 Noon, they may not let you in.1)if you call their bluff, let me know by email what happened! brian@clearcounsel.com. Find your caucus location here.

The Republicans: 23 February 2016. Tuesday night. You have to register Republican by 13 February to participate. If you do not register by 13 February, you will not be permitted to attend (There is a link below to help). Find your caucus location here. (You need to register to vote first).

 

What are the Requirements to Caucus?

Here in Nevada, the state government only administers general elections. The Democratic and Republican Caucuses are administered by their respective party. In turn, the rules are entirely determined by the state parties.

You must abide by the following necessary conditions to participate in the Nevada Caucus:

  1. You must be 18 years old by the date of the Presidential Election on November 8, 2016. Yes, this means, a high school senior (that is currently 17) that will be 18 years old by November may (and in fact, is very much encouraged) join his or her caucus meeting.
  2. You must be a Resident of the state of Nevada.
  3. You must register as a Democrat or Republican (we do not have a so-called “open primary” where folks of any party may vote in any primary). Does this mean that you have to vote for the same party that you caucus for? No! Don’t let them tell you otherwise.

Important note for registration: If you are a democrat, you may register at the caucus site on the day of the meeting. If you are a republican, you have to register to vote by February 13, 2016. You may do so here.

Once more, because it is important, if you intend to caucus for a Republican, you must be registered to vote 10 days before the Caucus! Just click the link above, and so long as you have government-issued ID, you will be able to register to vote online.

 

What Happens at the Caucus Once You Arrive?

Upon arrival at your caucus site, you will register with the nice folks that will have a table near the door. Next, head over to your Presidential Preference Group if you already have a candidate in mind that you want to manifest a preference to support. If you have not made a decision yet, that’s ok! There will be a grouping of folks for “undecided.”

Important note: Standing2)or sitting with an initial group does not lock in your support for that candidate. You will have another chance to change your mind!

Next, (once everyone has arrived and sectioned off into their beginning preference) the Chair of your meeting will likely read/make statements from Nevada elected officials/party leaders.

After which, each campaign represented will be invited to speak on behalf of their candidate to persuade others in the room to help support their candidate.

Yet another important note: You do not have to do any public speaking if you do not want to! Folks volunteer for this responsibility; at the same time, the speaking gig is not assigned by the campaigns. The folks in your preference group will decide whom will speak for the whole.

After the speeches, there will be a fixed time for “persuasion.” Now comes the fun part! At this point in the process, folks supporting any candidate may try to persuade other people to come join their preference group. Don’t worry, no one is going to bully you/make you support any candidate. Better to think of this as the civil, community meeting portion of the event. After the persuasion period, folks head back to their preference groups and the total number of folks preferring each candidate will be calculated.

That’s it. Does it take a little more time than voting in a booth? Sure. But this is so much more memorable and fun (and you can play on your phone the whole time if you want).

 

What Caucus Rules Do You Need to Know?

Viability, mostly.3)Your precinct chair will read the rules to the caucus when you get there

Because the democrats and republicans will administer there own caucuses, they make their own rules. Better yet, the each caucus is different from the other.

Let’s start with the Democrats (because they go first).

The proceeding text comes from the 2008 Democrats Caucus guide, and the Nevada Democratic Party has confirmed4)through their spokesman Stewart Boss that these viability demarcations will be used in 2016 as well:

Caucus Viability Formulas Caucuses which elect Viable groups must contain 25% of Two (2) delegates attendees (# eligible attendees × .25).

Caucuses which elect Viable groups must contain 1/6th of Three (3) delegates attendees (# eligible attendees ÷ 6).

Caucuses which elect Viable groups must contain 15% of Four (4) or more delegates attendees (# eligible attendees × .15).

Always Round all fractions UP to a whole number when determining viability (e.g. If 1.1 Round to 2 — If 1.8 Round to 2)

 

Did your eyes just glaze over? Stay with me here, I can easily summarize. If you live in the Las Vegas Valley, it is most likely you will be at a caucus with four or more delegates (The orange line). What you need to know is that the Democrats do not count preferences for a candidate unless s/he has a sufficient level of support, a la at least 15% of the total number of people present. 

Insider tip: Folks who really care about winning for his/her candidate should start counting participants as soon as the doors are closed to figure out the 15% threshold. For example, if you are (if not all in, but at least partly) “In for Hillary,” and you count a total of 100 people at your caucus location, you will know that a candidate must have at least 15 folks in his/her corner to earn anything.

Continuing the hypothetical, if said Hillary supporter saw only 12 people standing on the side of the room to support Gov. O’Malley, it makes sense to make a beeline toward them once the persuasion period begins5)With a pitch like, “given that you don’t have enough supporters present, don’t you want your vote to count?”

I don’t have anything against Mr. O’Malley6)minus what happened in Baltimore under his tenure, but it unlikely, given his poll numbers, that he will be viable at the Nevada (or Iowa) Caucus. Some polls have Mr. O’Malley as high as 6%, which leaves many a 2nd-choice voter to be recruited for the Bernie/Hillary campaigns. How funny would it be for O’Malley supporters to be the ones to determine the Caucus outcome7)By the way, this happened in Iowa in 2008. Many Edwards preference groups did not meet the viability threshold. If those folks’ 2nd choice had been Hillary Clinton instead of Barack Obama, the entire course of human history could be different!8)There is no chance Mr. Obama is elected if he did not win Iowa…he has admitted as much.

 

The Republicans

For our Republican friends, don’t worry, none of this viability silliness applies. One person representing each campaign will give a public statement, and then each person will vote for his/her preferred candidate on a paper ballot. All Republican votes will be counted as there is no viability threshold.

If you are still concerned about the process/have questions, please do not hesitate to call (ask for Brian) or email, and I will do everything I can to help. We are Clear Counsel are not making an endorsement for the primary season, but we all strongly believe in representative democracy, and therefore, will help anyone of any party.

Even if you are still unsure about the caucus and don’t have time to call/write, just show up! I promise you will be able to figure it out; we all are Americans after all.

Thanks for reading.

More information:

http://nvsos.gov/index.aspx?page=1058

 

http://www.rgj.com/story/news/politics/2016/01/21/confused-nevada-caucus-s-easier-than-you-think/79086178/

 

Footnotes   [ + ]

1. if you call their bluff, let me know by email what happened! brian@clearcounsel.com
2. or sitting
3. Your precinct chair will read the rules to the caucus when you get there
4. through their spokesman Stewart Boss
5. With a pitch like, “given that you don’t have enough supporters present, don’t you want your vote to count?”
6. minus what happened in Baltimore under his tenure
7. By the way, this happened in Iowa in 2008. Many Edwards preference groups did not meet the viability threshold. If those folks’ 2nd choice had been Hillary Clinton instead of Barack Obama, the entire course of human history could be different!
8. There is no chance Mr. Obama is elected if he did not win Iowa…he has admitted as much
puppy mill, Las Vegas, pet stores

Is the Las Vegas Puppy Mill Ordinance Constitutional?

The greatness of a nation and its moral progress can be judged by the way its animals are treated.

Mahatma Gandhi

 

On 30 November, the City of Las Vegas held a meeting to get public comment regarding the proposed city ordinance that would ban pet stores from selling dogs that were purchased from a so-called “puppy mill.”

Elizabeth Gadley of KTNV was nice enough to post a few photos from the public meeting. Folks look as cheerful about the subject as you would expect1)Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.:

 

 

You can read a media account of the meeting here.

The city only took public comment at the meeting and did not pass any regulations, making this the best time to evaluate the law (as in, before it will go into effect). Before we can discuss the constitutionality of the proposed ordinance, however, it is best to take a step back and look at what a puppy mill is.

 

What is a Puppy Mill?

 

In short, very distasteful. In essence, they are factory farms for producing puppies at the best profit margins. Imagine you were going to attempt to breed dogs for the most amount of money possible, how would you do it?

  1. Keep the female dogs in a constant state of pregnancy to produce the maximum number of puppies during the mother’s lifetime.
  2. Store the dogs in the smallest confines possible in an effort to keep costs as low as possible.
  3. Leave the dogs in the cages in order to keep labor costs minimal.

Distasteful indeed.

This is not the correct forum to be anymore graphic than my description above, but the pictures of a puppy mill are the most persuasive. Take a little time if you are unfamiliar to check out these links before continuing:

 

http://www.humanesociety.org/news/publications/whitepapers/puppy-mill-research.html?referrer=https://www.google.com/

http://www.vice.com/read/i-worked-for-a-puppy-mill-915

http://www.newsweek.com/investigating-puppy-mills-94245

http://usatoday30.usatoday.com/news/nation/2007-10-31-puppy-mills-main_N.htm

 

https://www.aspca.org/animal-cruelty/puppy-mills

 

That should be sufficient. The City of Las Vegas is righteous and moral in its attempt to cease the sale of puppy mill dogs by area pet shops, and this piece will continue under that assumption. Yet, an inquiry into the constitutionality of the proposed ordinance is a different matter.

 

What Does the Las Vegas Puppy Mill Ordinance Say?

 

First, I would like to thank the folks managing the City of Las Vegas twitter account for providing me the text of the ordinance2)Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy..

The ordinance is only a page and half long, the most important part being Section 1(A):

No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose3)??? of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization

The ordinance goes on in Section 1(B) to require pet stores to keep certification that their animals are not from puppy mills for one year. Section 2 declares if one section of the ordinance is unconstitional, than the rest of the ordinance remains good law. Section 3 repeals any part of the city code in conflict with the new ordinance, and Section 4 defines the punishment for violation of the ordinance4)a fine of no more than $1,000 or a jail term of not more than 6 months.

Seems simple enough, right? Think again; this is constitutional law we are talking about after all.

 

Applying the Phoenix Puppy Mill Law for Comparison of Constitutionality

 

Multiple media accounts have stated, erroneously5)I’m sure it was an accident, that the Las Vegas ordinance is similar to the one passed by Phoenix. They are correct in stating that each concerns the subject of pet stores selling puppy mill dogs, but there is a very important distinction between the laws, which we will get to in a moment.

The Phoenix law is important because its constitutionality was challenged in federal court by the disaffected area pet store. As much of an6)self-proclaimed expert as I am of constitutional law, it seems reasonable to rely on the analysis of the Arizona judge regarding the constitutional questions at hand7)His 36 page opinion also happens to be well-reasoned and thoughtful

First, let’s take a look at the Phoenix law:

8-3.06 Prohibition on sale of dogs or cats:

A.    No pet shop or pet dealer shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from:

1.    An animal shelter;

2.    A private, nonprofit humane society or nonprofit animal rescue organization; or

3.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

B.    All pet shops and pet dealers shall maintain records, for a period of one year from the date of acquisition, listing the source of all dogs or cats under their ownership, custody or control. Records shall be immediately available, upon request, to law enforcement, code compliance officials, and any other City employees charged with enforcing the provisions of this section.

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

Date of Addition/Revision/Deletion – Section 8-3.06

+1    Addition on 12-18-2013 by Ordinance No. G-5873, eff. 1-17-2014

 

Section A and B are very similar to the Las Vegas ordinance, which we will deal with first (Section C will come soon, not to worry).

That’s right, now it is time to get out our pocket constitutions!8)Get out from under the desk, it’s going to be ok.

Article I, Section 8 Clause 3 of the U.S. Constitution states that the Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Much of our discussion going forward will concern just those first three words.

 

Puppy Mill and the Dormant Commerce Clause

 

Is the ordinance constitutional? You are going to be sorry you asked..Kidding, please don’t go! I promise we will get through this without too much pain9)I will skip the really trying parts.

Before we move on to the Commerce Clause analysis, I can hear our loyal readers shouting at their ithings10)trademark pending “I remember that GMO discussion regarding the Supremacy Clause. How can these municipalities regulate interstate commerce in this instance?” Great question! The difference here is that the federal law regulating the treatment of animals, the Animal Welfare Act, states that it “shall not prohibit any State (or a political subdivision of such State) from promulgating standards in addition to those standards promulgated11)Subsection 2143(a)[1]. Thus, the answer to your question is that the states are permitted to regulate in this arena, so long as the rest of the constitution is abided by.

..Like the Commerce Clause above.

Now we need to define to the so-called Dormant Commerce Clause. Judge Campbell, the author of the Phoenix decision, explains it better than I can:

The Clause also contains a “‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.”…This negative aspect has come to be known as the “dormant Commerce Clause.”… Courts “analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach.”…“The first tier asks whether the Ordinance ‘either discriminates against or directly regulates interstate commerce.’” …If so, the Ordinance is subject to strict scrutiny – a “virtually per se rule of invalidity[.]”…The second tier has come to be known as the Pike balancing test. Under Pike, the Court asks whether the burden the Ordinance imposes on interstate commerce is “clearly excessive in relation to the putative local benefits.” (citations omitted, emphasis added)12)Puppies ‘N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link

I will spare you anymore Commerce Clause discussion13)we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long, it is the bold part above that really is pertinent to our discussion. The Las Vegas law, like the Phoenix law, will not be subject to strict scrutiny14)because it does not directly regulate interstate commerce, but instead will be evaluated by the Pike balancing test.

We will assume, for sake of brevity, that the ordinances being discussed only incidentally affect interstate commerce. With that being so, the ordinance will be upheld “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.”15)Id. at 28.16)This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just “referees,” for example, stop taking that person seriously at once.

Judge Campbell weighs the factors of the Pike test in favor of Phoenix. He concludes:

“The modern law of what has come to be called the dormant Commerce Clause is driven by concern about ‘economic protectionism, that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’” The Ordinance is not an act of economic protectionism. It is a legitimate attempt to curb the problems associated with the inhumane treatment of animals and local dog homelessness and euthanasia. (citation omitted) 17)Id. at 30.

There is no reason to think the the proposed Las Vegas ordinance would not pass a similar evaluation, given that the need to curtail the inhumane treatment of animals and help find homes for homeless animals is no less serious here. A similar law in Chicago was also recently upheld.

 

Where the Las Vegas Puppy Mill Ordinance May Have Some Constitutional Trouble..

 

So everything’s dandy right? The Phoenix law got the sign-off from a federal judge, so there is no reason to to think the Las Vegas ordinance will have any legal trouble…or is there?

Recall earlier that I claimed the Phoenix law differs from the Las Vegas ordinance in one major regard. Allow me to reproduce Section C of the Phoenix Ordinance:

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

The proposed Las Vegas ordinance copied Sections A and B from Phoenix, but left out the above text. Why? Well, I am happy to speculate. Of the 36-page opinion quoted above in our Dormant Commerce Clause discussion, more than 2/3rds of it addresses the constitutionality of Part C. Any serious constitutional challenge to the ordinance would concern the municipalities creating an economic climate that favors local sellers to the detriment of out-of-state sellers.18)Judge Campbell upheld Section C above as constitutional, by the way.

Perhaps the City of Las Vegas thought the best way to avoid a constitutional challenge would be to delete the most controversial language of the Phoenix ordinance19)Or maybe their copy/paste functions as well as mine. Politically, this seems like the best course of actions and the city attorney should be commended on his cleverness.

But this may have unintended consequences.

Chew on this question: Based on the quoted language of the Las Vegas ordinance above20)No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization, what is the definition of “pet shop”?

The purpose of Section C of the Phoenix ordinance is to clarify what businesses the new ordinance would apply to. There is no language in the Las Vegas ordinance addressing this issue.

This is a big deal, honest. If you breed your own dog and sell a puppy to a neighbor, are you a pet shop? If not, how many dogs would you have to sell before you would be classified as a pet shop? Are only shops with business licenses considered pet shops?21)And so on, and so on.

There’s a constitutional law theory called the Vagueness Doctrine that may come into play here. The Legal Information Institute will assist us with a definition:

1) A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.  Criminal laws that violate this requirement are said to be void for vagueness.  Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.  By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.22)Source

A word on the practicalities of constitutional law before we continue. A law or ordinance is never unconstitutional on its face; meaning, the legislature/city council cannot pass a law that is unconstitutional upon ratification. A court must declare a law unconstitutional for it to be so. My point being that all laws are constitutional until a court says otherwise.

So, for the sake of this conversation, neither of these ordinances, as passed, are unconstitutional. I am only saying that there may be a risk that a court might declare the ordinances unconstitutional.

The City of Las Vegas, while cleverly23)I mean that in the true connotation of the word omitting the disputed language from the Phoenix case, may have opened the door to a different constitutional issue. One might say that it makes more sense24)in terms of risk, not to mention good law/clarity to just include language similar to Section C of the Phoenix ordinance as a federal judge has already declared it constitutional. Why open a fresh can of worms with little legal precedent?

 

That was fun, right? I appreciate you sticking around and spending a little time with us on the Clear Counsel blog. If you are thinking of adopting, I highly recommend the Nevada SPCA25)That little dog in my avatar came from there. They even post photos online of the dogs (and other animals) available for adoption. Look at those cute faces and tell me your home would not be improved with a little fury friend!

http://www.nevadaspca.org/adoptable-animals/adoptable-dogs

 

A couple more links for further reading:

 

http://lasvegas.suntimes.com/las-news/7/104/18721/puppy-mill-regulations-map

 

http://www.abajournal.com/magazine/article/anti_puppy_mill_legislation_across_the_country_is_dogging_pet_stores/

 

Footnotes   [ + ]

1. Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.
2. Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy.
3. ???
4. a fine of no more than $1,000 or a jail term of not more than 6 months
5. I’m sure it was an accident
6. self-proclaimed
7. His 36 page opinion also happens to be well-reasoned and thoughtful
8. Get out from under the desk, it’s going to be ok
9. I will skip the really trying parts
10. trademark pending
11. Subsection 2143(a)[1]
12. Puppies ‘N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link
13. we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long
14. because it does not directly regulate interstate commerce
15. Id. at 28
16. This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just “referees,” for example, stop taking that person seriously at once.
17. Id. at 30
18. Judge Campbell upheld Section C above as constitutional, by the way.
19. Or maybe their copy/paste functions as well as mine
20. No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization
21. And so on, and so on.
22. Source
23. I mean that in the true connotation of the word
24. in terms of risk, not to mention good law/clarity
25. That little dog in my avatar came from there.
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