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Power of Attorney Documents

Do I Need an Attorney to Sign Power of Attorney Documents?

What are Power of Attorney Documents?

When you think of estate planning, you most often think of wills and trusts. With a will and/or trust you can direct your loved ones on how to handle your affairs after you die. But what if you are alive and sickness or age has left you incapable of caring for yourself? A will or trust will not help in this situation. If you want to decide who will take care of you and your financial affairs in the event of your incapacity, then you must execute valid power of attorney documents while you still have capacity to do so.

What are the Different Types of Power of Attorney Documents?

Power of Attorney DocumentsPower of attorney documents are generally split into two types of documents: financial power of attorney and health care power of attorney. The financial power of attorney will authorize an agent to make decisions regarding your financial affairs. The health care power of attorney will generally authorize your agent to accept or reject medication or medical treatment on your behalf.

Must an Attorney Prepare Power of Attorney Documents?

Clear Counsel Law Group believes it is best to consult with an attorney when signing power of attorney documents (we realize that sounds self-serving), but no, an attorney is not required to prepare valid power of attorney documents. Indeed, in the current COVID-19 environment, meeting with an attorney may not be desirable or even possible. In hopes of helping those that want the peace of mind of having such documents prepared and in place during this troubled time, below are simple instructions on completing your own power of attorney documents.

In Nevada, the forms for financial and health care power of attorney can be copied and pasted directly from Nevada Statutes.

  1. Financial Power of Attorney (Statutory Form Power of Attorney). The form for financial power of attorney can be found in NRS 162A.620. You should include ALL the language from that provision.
  2. Health Care Power of Attorney (Durable Power of Attorney for Health Care Decisions). This form can be found in NRS 162A.860. You should include ALL the language from that provision.

Once printed, you must coordinate with a notary public to properly execute and notarize the document. If you are unable or unwilling to physically interact with a notary, then you can use an electronic notary.

https://www.nvsos.gov/sos/licensing/notary/electronic-notary-solution-provider-information-1678

Clear Counsel Law Group is currently accepting in-person meetings, but we are also available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

Typing a Will

How To Prepare Your Own Simple Will, including Witnesses

The start of school looks very different this year for teachers and students alike. Instead of worrying about backpacks, binders, and what to wear, many are thinking about lost wages, loved ones, and a last will and testament.

Typing a Will

Yes, you can type a will rather than hand write it, but there’s a few rules to follow.

Clear Counsel Law Group is grateful for the lifelong impact teachers, administrators, coaches, and many others have, and will have, on the education and growth of our children. We hope the information below regarding preparing a simple will is helpful in these troubled times to all our educators and any others that work high-risk jobs in the current pandemic.

While a handwritten (holographic) will is valid in Nevada,[1] a signed and witnessed will is a more secure way to make your wishes known. With the help of a couple of neighbors, friends, or co-workers (the law requires 2 competent witnesses), you can prepare a valid will, including witness statements. Follow these simple steps to prepare a valid will in the State of Nevada:

  1. The Document – The Last Will and Testament of the Most Amazing Teacher in the World. Sit down at a computer or laptop and type up a will that answers the following important questions:
  • Who are you?
    • This section should identify:
      • Your full legal name,
      • If you are married and to whom, divorced, consciously uncoupled (whatever that means), and
      • If you have kids, pets, etc (list them).
    • Who is in charge?
      • This section should identify the individual(s) that you want to be the executor of your estate after you die, including address, phone number, and email if available.
      • You can identify a backup as well if you want to.
    • Who gets your stuff?
      • This section should direct your administrator on how to divide your assets among your beneficiaries. Try to be as clear and specific as possible in describing who gets what.
    • Anything else? The questions above are enough, but you can also include details regarding the following:
      • Whether you want a traditional burial or cremation.
      • Where you want to be buried.
      • Who should take care of your children or pets.

(See NRS 133.020 and 133.040 regarding details of a valid will)

  1. Your Signature:
    • Sign in the presence of the witnesses.
    • The documents must be dated and signed.
    • Your signature should be accompanied by a statement declaring that you are of age, of sound mind, and that you are signing of your own free will.
  1. Witness Statements and Signatures.
    • A typed will requires signatures from at least two (2) competent witnesses. The witnesses cannot be beneficiaries of your will or related to any beneficiaries of your will.
    • The witness signatures should be accompanied by a statement declaring that:
      • They watched you sign the will,
      • You watched them sign the witness statement, and
      • That they believe you are of age and of sound mind. (see NRS 133.050 for specific language regarding witness declarations).
    • Your witnesses should provide address, phone number and email, if possible.

You can invite a notary to notarize the execution by yourself and your witnesses, but a notary is NOT required to complete a valid will in Nevada.  Once prepared, signed, and witnessed, put the will someplace safe.

When things are clearer in the future, Clear Counsel Law Group will be glad to review your will for free to make sure that it is valid and says what you want it to say. We are currently accepting in-person meetings, but we are available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

[1] Holographic Wills. If you are home alone and unwilling to venture out, you can still prepare a valid will. The following blog post from Clear Counsel Law Group will give you simple guidance on preparing a handwritten will at home. https://www.clearcounsel.com/how-to-write-your-will-while-stuck-at-home-during-the-corona-virus-pandemic/.

 

Write your own will

How to Hand Write Your Will (While Stuck at Home During the Corona Virus Pandemic)

The current Corona Virus pandemic has caused all of us, to some degree, to recognize that our time on earth can be fleeting. I know that I have felt an increased desire to have those I love close to me, and to know that they are, and will be okay.

Write your own will

Yes, you can even write your own will on a napkin.

Maybe you have previously thought about preparing a will, and now you are worried that you will not be able to see an attorney to help review and prepare the document. Do not despair, Nevada, and many other states, allow for what is called a Holographic Will that you can prepare on your own while in lock down. To prepare a valid holographic will in the State of Nevada requires:

• You are over the age of eighteen and are of sound mind;
• All material terms – the important parts – must be written in your handwriting; and
• The document must be signed and dated (NRS 133.090).

So grab a sheet of paper, or anything you can write on, and write down your desires and last wishes (though I’d suggest you save the toilet paper for other uses right now). Date it, sign it, and put it somewhere safe. There are betters to come, so let us be hopeful and do what we can right now. Stay safe out there.

For more information see https://www.clearcounsel.com/holographic-wills-you-may-write-out-a-will-on-almost-anything/.

When things are clearer in the future, Clear Counsel Law Group will be glad to review your holographic will for free to make sure that it is valid and says what you want it to say. We are currently accepting in-person meetings, but we are available for phone calls and video conferences to discuss your estate planning needs.

Taylor L. Waite
702-476-5900
taylor@clearcounsel.com

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

[Editor’s note]

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

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

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

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

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

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

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

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

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

We publish; you deduce.1)Copyright pending?

See you next time.

-Brian

[End Note]

 

 

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

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

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

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

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

Jordan Flake: Oh, did not know that.

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

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

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

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

Justin Jones: Correct.

Jordan Flake: Which would require him to do that-

Justin Jones: Start over.

Jordan Flake: Start again.

Justin Jones: Right.

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

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

Jordan Flake: You just won. Yeah

Justin Jones: Right.

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

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

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

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

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

Justin Jones: Right.

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

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

Jordan Flake: Density of residents.

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

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

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

Jordan Flake: Initially, to get-

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

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

Justin Jones: Exactly.

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

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

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

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

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

Justin Jones: I’ll be arguing.

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

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

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

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

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

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

Justin Jones: Thank you.

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

 

 

Footnotes   [ + ]

1. Copyright pending?

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:

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.

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.

Asking the Tough Questions About Nevada Marijuana Question 2

[Editor’s Note]

Welcome to today’s ClearCast!

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

Specifically, the ballot question asks the following:

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

Yes  No 

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

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

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

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

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

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

Thanks for watching!

-Brian

[End Note]

 

Inquiring Into the Tough Issues Surrounding Nevada Marijuana Ballot Question 2

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

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

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

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

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

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

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

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

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

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

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

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

Andrew: 21.

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

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

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

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

Jordan: Like the 1920s prohibition.

Andrew: That was an utter disaster, right?

Jordan: Right.

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

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

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

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

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

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

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

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

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

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

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

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

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

Jordan: 45?

Andrew: 45.

Jordan: That’s still more than you want.

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

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

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

Jordan: Wow, okay.

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

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

Andrew: That’s correct.

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

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

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

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

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

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

 

question 2 las vegas marijuana nevada

 

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

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

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

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

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

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

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

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

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

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

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

Thank you.

 

ClearCast Episode 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.

 

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