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:

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

Duh?

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

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

The 2016 Awards: Best 2016 Election Content

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

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

Nevada marijuana

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

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

Pat Hickey, Question 2, Las vegas, marijuana

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

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

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

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

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

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

The 2016 Awards: The Best ClearCast About Clowns

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

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

(Those were the days).

The 2016 Awards: Browbeat of the Year

Las vegas water laws, 2016 awards

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

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

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

(And yes, they turned the sprinklers off.)

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

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

Thanks for reading. Seriously.

-Brian

 

Footnotes   [ + ]

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

ClearCast #14: In Response to the Rob Graham Matter

[Editor’s note]

Welcome to today’s ClearCast!

A quick word about today’s video.

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

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

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

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

Thank you and Merry Christmas!

-Brian

[End Note]

 

ClearCast Episode 14: Answering Your Questions Regarding Rob Graham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jared Richards: It’s a huge amount.

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

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

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

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

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

Jordan Flake: Ponzi scheme.

Jonathan Barlow: Almost a Ponzi scheme.

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

Jonathan Barlow: Exactly.

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

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

Jonathan Barlow: Who knows if thinking, “I’ll pay it back.”

Jordan Flake: I’ll make it back and I’ll …

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

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

Jared Richards: Exactly.

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

Jonathan Barlow: It’s devastating.

Jordan Flake: It’s devastating to the families.

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

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

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

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

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

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

Jonathan Barlow: It’ll come out.

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

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

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

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

Jordan Flake: Just as a matter of course.

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

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

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

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

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

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

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

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

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

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

Jordan Flake: Great, any last thoughts?

Jared Richards: No, I think Jonathan covered it.

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

 

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

“..to combat moped theft.”

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

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

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

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

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

So they wrote a new law did they..

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

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

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

 

moped las vegas nevada law

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

moped law las vegas nevada

 

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

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

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

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

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

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

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

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

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

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

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

Are Moped Drivers Actually a Risk to Public Safety?

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

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

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

2. Provides additional revenue.

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

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

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

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

Thanks for reading.

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

Footnotes   [ + ]

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

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

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

-Nevada Secretary of State elections deputy Wayne Thorley

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

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

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

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

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

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

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

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

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

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

But do they have to?

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

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

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

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

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

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

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

Wait wut?

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

Some potential questions consider:

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

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

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

(I can keep going.)

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

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

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

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

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

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

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

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

             (1) A qualified elector;

             (2) Present at the meeting; and

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

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

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

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

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

 

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

 

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

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

      (Added to NRS by 2013, 1231)

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

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

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

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

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

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

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

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

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

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

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

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

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

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

Map of the 4 States

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mess With the Electoral College at Your Own Risk

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

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

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

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

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

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

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

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

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

Thanks for reading.

 

 

Footnotes   [ + ]

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

ClearCast Episode 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.

 

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

https://twitter.com/MartysaurusRex/status/777966415403970560

[Editor’s note]

..Not bad at all.

And Welcome to today’s ClearCast!

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

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

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

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

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

Not exactly..

Thanks for watching

-Brian

[End note]

 

 

Transcript:

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

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

Jordan Flake: As far as we know.

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

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

Jared Richards: Now and handless.

Jordan Flake: Now I’m handless.

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

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

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

Jordan Flake: Some just kind of catch fire.

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

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

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

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

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

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

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

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

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

Jordan Flake: For the damage to the person.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jordan Flake: All the way, everywhere.

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

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

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

Jared Richards:  Thank you.

 

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

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

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

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

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

A little background..

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

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

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

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

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

Thanks for watching; all the best.

-Brian

{End note}

Should Nevada Adopt California’s Tough Vaccination Law?

Transcript:

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

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

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

Taylor Waite: Right.

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

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

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

Taylor Waite: Right.

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

Taylor Waite: Yes.

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

Taylor Waite: Absolutely, but I

Jordan Flake: Share your religious beliefs.

Taylor Waite: Yes.

Jordan Flake: With your children.

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

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

Taylor Waite: Right.

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

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

Jordan Flake: Right.

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

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

Taylor Waite: Right.

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

Taylor Waite: Right.

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

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

Jordan Flake: It’s almost-

Taylor Waite: Diagnosis.

Jordan Flake: It’s almost like Dr. Sears, he had a big opportunity, “Like, oh, man.”

Taylor Waite: Yes, to prove his point.

Jordan Flake: To prove his point.

Taylor Waite: Yes.

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

Taylor Waite: Right.

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

Taylor Waite: Yes.

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

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

Jordan Flake: Right.

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

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

Taylor Waite: Right.

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

Taylor Waite: Religious exemptions.

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

Taylor Waite: Correct.

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

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

Jordan Flake: Yeah.

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

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

Taylor Waite: Right.

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

Taylor Waite: Absolutely.

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

Taylor Waite: See you.

 

Footnotes   [ + ]

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

ClearCast Episode 5: A Federal Court Says Nevadans May Not Buy a Gun If They Possess a Medical Marijuana Card

6 September Update:

[Editor’s note] Thanks for all the responses we received!

I’m going to take a few minutes here and address some of the concerns brought to my attention1)because we care!. The points are not related, but I present my points in list form so it is easiest to read.

First, here is the video for you to enjoy:

 

 

If you scroll down, you will see a transcript from the conversation, along with my original analysis from last week.

1. “She claims she wasn’t using, but I don’t buy that.”

This is the most discussed angle of the case, which I just find a little silly, given that there are many an issue in dispute from this Order. This is not one of them.

Some of you may not be versed in the intricacies of appellate law2)Come on, get it together, but you should know that the 9th Circuit panel accepted Ms. Wilson assertion that she does not consume marijuana as true. And it was not an option. Let’s go to the text:

However, taking Wilson’s allegations as true, as we must
on an appeal from a motion to dismiss, Usher v. City of Los
Angeles, 828 F.2d 556, 561 (9th Cir. 1987), she is not
actually an unlawful drug user. Instead, she alleges that,
although she obtained a registry card, she chose not to use
medical marijuana for various reasons, such as the difficulties
of acquiring medical marijuana in Nevada, as well as a desire
to make a political statement. Regardless of her motivations,
we agree that Wilson’s claims do not fall under the direct
scope of Dugan.3)p. 12(emphasis added)

Ah, there it is. What’s going on? There is a (good) rule in appellate law, that the reviewing court accepts all of the allegations of the appealing party as true in a motion to dismiss.

This is necessary because none of these three, 9th Circuit judges were not present4)or even in the state of Nevada when the evidence was introduced. Appellate judges just aren’t in a position to evaluate Ms. Wilson’s claim.

Therefore, in order to give her appeal its full weight, they accept the allegations as true.5)If they would have decided for Ms. Wilson, they could have sent the case back to Nevada district court to have the evidence issues fully litigated. Ms. Wilson was never even given a chance for a trial. Her claim was dismissed even before the summary judgment phase.

Even if are still inclined to disbelieve Ms. Wilson6)You do you!, just know that the 9th Circuit here did not decided against her because they thought she was lying about consumption. They accept her allegations that she only possess the card but doesn’t consume and still denied her gun rights just as a medical marijuana card holder.

 

2.  What’s the Deal With This Term “Unlawful user of or addicted to any controlled substance“?

Great question! Wouldn’t “unlawful user” be sufficient?7)in English, yes, but this is the law What would you say if I told you “unlawful user of or addicted to any controlled substance” is actually of term of art, in law?8)I know; contain yourself

Because I care for you, dear reader, I dissected the Code of Federal Regulations9)You are not the only person asking, wait, what is this? I will explain because we are all about empowering you. Most everyone is familiar with the ‘Separation of Powers’ under our Constitution. The legislature writes the laws, the executive enforces the law, the judicial branch evaluates. It is not practical for the legislature to write out every detail of new laws, so often the rule making (that is, how the law will be put into effect. For example, the legislature will say “No drug users can buy guns,” but how that law is enforced (will the federal government assign an agent to every gun store? Maybe an open letter would be more efficacious) will be assigned to the appropriate executive department, in this case the ATF. and found the definition. I will reproduce it in full so you may see it in all its glory:10)Remember as you read, people classified as an “unlawful user” may not buy a gun in Nevada

Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.11)source (emphasis added)

Thoughts on what the bold section above means? Where did I put my Wittgenstein12)Doubtful, we want to be having a function vs. essence discussion with legal code (Drudge-esq) alarm13)Must have left it in the sandbox again..darn?14)It’s “not limited to…within a matter of days or weeks before”

I have now read that sentence at least 6 times. It makes less sense with each rereading. The problem is the word “recently,” which Merriam-Webster defines as “during a period of time that has just passed15)Did they really split the infinitive? Oy.

Above, we have the government applying the word “recently,” then denying the word’s definition. How can something be “recent” if it hasn’t happened in weeks?16)That’s how it’s done Ron Darling

I don’t have much else to add on this point other than, if you don’t like this, write your congresswoman.

One last point on this section of the CFR. Did you notice that they made a distinction in the definition for members of the armed services17)In theory, I’m not against this?

Would the case have turned out differently if she was retired from the Air Force? Should it?18)I can see both sides

This is not useful for gun sellers that want to obey the law.

This is the open letter19)the link in the opinion is broken cited in the Opinion that the ATF sent to the gun sellers.

..It’s pretty obvious why the seller denied Ms. Wilson a firearm. Can’t blame him; the man is just trying to run a small business without federal interference.

[End Update. Thanks for coming back. Just wait until Friday when I drop 2000 words about the legal ramifications of misnaming a Wade Phillips'20)Apparently “dog” is a defense? “Blitz”… -Brian]

Are We Going to Allow a Federal Court to Distinguish Away Our 2nd Amendment Rights?

[Editor’s note] Hello and welcome to your Labor Day Weekend ClearCast!

Did you hear what a California federal court did your 2nd Amendment rights?

Our friends in the media have only begun to notice what happened in San Francisco earlier this week.

Yes, you read that right. A federal court said that Nevadans may not buy a gun if they are a registered medical marijuana patient.

(I can hear the chorus of objections of all sides…not to worry folks, that’s what we are here for.)

Unfortunately, Mr. Flake and Mr. Barlow had/have client obligations this week, and asked me to supplement this ClearCast.

First, you need to understand that Nevada is under the jurisdiction of the 9th Circuit, as you can see below:

circuit map

Now you understand why a ruling from San Francisco can affect your gun rights. On to the show!

Beneath the video I added aides to help with the discussion.

[Still noting]

Here is a link to the opinion. And here is a link to the ATF form discussed (the question is “e”). Here is how the DEA schedules different drugs.

I think Mr. Barlow and Mr. Flake have the global analysis of this case exactly right: that one of our fellow Nevadans wanted to use the federal courts to expand the scope of the 2nd Amendment (count me in the group that think’s Ms. Wilson’s protest is reasonable), and said protest went horribly wrong, and in fact, they achieved the exact opposite of the desired result.21)This is has been a horrific Summer for fans of conservative jurisprudence [and I’m not talking about North Carolina, that nonsense isn’t conservative, it’s just racist partisanship], or at least as the media describes it. Recall the reproductive rights case handed down by the SCOTUS a few weeks ago? They essentially cemented access to an abortion as a fundamental right. It seems, from afar, that the conservative strategy to undermine abortion was to distinguish away the rights in small phases. For example, see the difference between the rights articulated in Roe v. Wade verses Planned Parenthood v. Casey. In this year’s Texas case, the anti-abortion folks got a little too overzealous, and decided to run that Texas law (requiring abortion clinics to have all the same medical equipment as a hospital, without justification [except that they don’t like abortion, which doesn’t count]) all the way up the chain. Instead of getting the abortion prohibition [which always seemed unlikely], the Supreme Court drew a bright line for how far abortion restrictions can go. The court would have never commented on abortion without prompting; now, (from my humble perspective) they will need a constitutional amendment to outlaw abortion.

I see something similar here. It seems absurd that a medical condition would prevent someone from buying a gun; so the lawyer here thought he was onto something. However, these constitutional challenges are not free (literally in terms of cost, but also in terms of political risk) because you are at risk of a judge taking your facts and making the law he wants. This means if you are going to bring a constitutional challenge, especially because it affects everyone, you have a duty to argue this case correctly. I agree with my employers, the lawyer here made a huge error of omission of not questioning the government’s assertions that medical marijuana has no medicinal value and/or medical marijuana users are more inclined to be violent. We, as Nevadans, would be better off if they would have never brought this legal challenge. Please don’t challenge constitutional law if you are unable to/won’t prepare sufficiently. It affects all of us.

Before you head off for your Labor Day fun, I want to show my liberal friends why I support my 2A brothers and sisters. I am going to quote a graf22)Yes, I just did that from Wilson:

Because the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and their purpose of preventing gun violence is reasonable but not airtight, these laws will sometimes burden–albeit minimally and only incidentally–the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well. For instance, the Fourth Amendment allows an officer to burden an individual’s right to be free from searches when the officer has “reason to believe” the person is armed and dangerous, see Terry v. Ohio, 392 U.S. 1, 27 (1968), a standard comparable to the “reasonable cause to WILSON V. LYNCH believe” standard of § 922(d). Moreover, as previously noted, there are various ways for individuals in Wilson’s position to minimize or eliminate altogether the burdens that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter place on their Second Amendment rights. Accordingly, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter survive intermediate scrutiny, and the district court did not err in dismissing Wilson’s Second Amendment claims.23)pp 18-19

You see now, liberals? Yes, that’s right. The constitutional amendments are stronger, together24)sorry. They are using that awful Terry decision (where the Supreme Court gutted the 4th Amendment under specious reasoning)25)This is only my opinion to justify why the 2nd Amendment does not mean what we all understand it to mean in a post-Heller world.

ALL of us need to support ALL constitutional rights, or we ALL will be sorry..

Thanks for watching!

-Brian

Transcript:

Jonathan: Welcome to ClearCast, today’s episode of ClearCast. Today, we’ve got Jordan Flake, and myself, Jonathan Barlow, we’re attorneys here, and there’s a super-interesting case that came out of the Ninth Circuit Court of Appeals, that’s based in California, yesterday, and it ducktails two very hot-topic issues in the law and society today. It dealt with gun rights, under the Second Amendment, and Medical Marijuana use, and the rights of those who hold Medical Marijuana cards under State law. The Ninth Circuit is a part of the Court of Appeals that covers nine Western States, including mainly California, is the largest one, of course, but it also covers Nevada, which is where we are.

Jordan, you have to tell us a little bit about what this case said, and what it does?

Jordan: Well, first of all, the very second that you mention Second Amendment rights, Gun Rights, and Medical Marijuana, hopefully, everybody is just filled with opinions, and filled with all kinds of angst, and that’s fine, that’s what we’re here for. We’re very interested in advancing the discussion.

Let me just run down what happened: A woman in Nevada in 2011 went to go purchase a gun, and Brian’s our off-camera support here; he’ll help us and correct us if we get any of the facts wrong

Brian: Hi, everyone!

Jordan: She went to go purchase a gun in 2011, and she was denied, because she has a Medical Marijuana Card. She is confused; she says, “Well, I have a right to bear arms under the Second Amendment, and the mere fact that I have a Medical Marijuana Card shouldn’t be a big deal!” In fact, she said she didn’t even use marijuana …

Jonathan: She just kept the card?

Jordan: She just kept the card because maybe it made her feel cool … Made her be able to hang with the cool kids, and show the card, and be like, “Yeah, I don’t really smoke, because I don’t like it …” Anyway, she was denied purchasing a gun, so she brought this lawsuit, essentially saying, “Listen, this is not valid grounds for restricting, and taking away my Second Amendment rights to bear arms and purchase a gun.”

The government came along and …

Jonathan: The Federal Government …

Jordan: The Federal Government, yeah, it’s really important to know, what we’re talking about here is the Federal Government, because the Federal Government classifies marijuana as a “Schedule 1 drug.” A Schedule 1 drug is a drug that is deemed by the Federal Government not to have any practical medical uses; that’s a hot topic for a different day, because I know a lot of you out there will be saying, “Well, Medical Marijuana has been shown to have …”

Jonathan: It’s legal!

Jordan: It’s legal, and it has been shown to have good uses. Well, one of the frustrating thing about this case, jumping ahead in the story a little bit, is that we missed an opportunity to put some of these arguments about how Medical Marijuana helps people in front of the court. That’s one of the things that’s frustrating about it.

Basically, what happened here, is because it’s a Schedule 1 drug, ATF, Alcohol, Tobacco, and Firearms, the Federal Agency, sent out a letter to all the gun sellers in the country, and said, “Listen: If a potential purchaser of a gun has a Medical Marijuana Card, they can’t purchase the gun, because we have restrictions against people with substance abuse issues purchasing guns.”

Jonathan: The interesting thing for this lady is that that the law, or that mailing, came from the ATF, says it doesn’t matter if they don’t even use marijuana, because the gun seller is required to infer … Something along those lines, the gun seller is supposed to infer that the person, because they hold a card, is a user of Schedule 1, regardless of whether they actually use or not.

Jordan: Right, so the purchaser comes running and screaming into court, screaming “My Second Amendment rights have been taken away!” Whenever rights are taken away, whenever constitutionally-conferred rights are taken away from an individual in this country, the court looks at that with what’s called a “Standard of Review,” which can be kind of like, “Does the law that takes it away, is it somewhat reasonable?” There are different levels of scrutiny there, there’s something called “Strict Scrutiny” that says it has to be … Absolutely, the law has to be narrowly tailored to achieve a compelling purpose, and that’s not really what they said here.

They instead looked at something called “Intermediate Scrutiny,” which is essentially just, “Is the law generally able to fulfill this important, not narrowly tailored to fulfill a compelling interest, but just kind of somewhat tailored to fulfill an important interest …” It’s kind of a weird distinction. You’re the Con Law scholar …

Jonathan: Right, and the woman thought she was going to come in here and expand gun rights; that’s what she really was trying to do, was expand gun rights, and the Court did a 180 on her, and actually shot her in the foot, so to speak …

Jordan: The Court came back and said, “Listen: This thing that the ATF has done, and this thing that the Federal Government has done, is basically okay … It’s only moderately restrictive, because guess what, young woman? You can actually go, shred that Medical Marijuana Card, and then go out and get a gun. It’s not like we’re totally taking away your Second Amendment rights, here; we’re just saying that, if you have a Medical Marijuana Card, you can’t get a gun … But you can get rid of the card, or you can purchase a gun in September, and get a Medical Marijuana Card in October …” You know what I mean?

That’s how the Court looked at it, and they said, “It’s not extremely restrictive; it’s not like we’re saying ‘women can’t purchase guns ever,’” because then it’s like … The woman’s like, “Well, I can’t change who I am,” you know what I mean? This is more … The government’s like, “Listen, this job is somewhat generally tailored towards this objective,” but the real issue here, and the thing I was referencing, and I think the last point that we’ll make here is, the plaintiff’s attorney, the attorney who was representing the young woman, really missed an opportunity to shove a bunch of evidence in front of the court, saying “Things have changed with marijuana since the 1980’s.”

They didn’t present any evidence to show that most of the users of medical marijuana are legit, low-crime, oftentimes high-demographic, socioeconomically speaking, way less likely to commit crimes, oftentimes … The typical example would be your 85-year-old grandmother who is using medicinal marijuana because she has glaucoma. The plaintiff failed to make all of these arguments, and unfortunately, that probably resulted in the door being slammed shut on this situation, and who knows when the Court will bring it back up for review.

Jonathan: That’s the interesting last note, is that we have what? Twenty-five or so states that allow Medical Marijuana use. Again, this Ninth Circuit decision only applies to the nine states in the Ninth Circuit, so theoretically, one of the states that’s not in the Ninth Circuit, you could have a similar case come up in the Sixth Circuit …

Jordan: In that case, hopefully, the attorney would bring forth the mountain of evidence that has justified the use of Medical Marijuana in nearly half the states, and basically use that to have a more robust conversation. What happened here was, the attorney didn’t offer the evidence, so the Court just kind of said, “Okay, well, they’re not offering any evidence here; we’re just going to accept the notions and assumptions we have about drugs, based on studies from the 1980’s, which notions and assumptions have been drastically altered through study, and usage, and things of that nature.

Kind of interesting …

Jonathan: Totally. If you live here in one of the nine states in the Ninth Circuit, and you hold a Medical Marijuana Card, and you want to go and purchase a handgun, now you have a decision: If you want to keep your Medical Marijuana Card, you get no gun; if you want a gun, you’ve got to get rid of your Medical Marijuana Card. That’s the state of law right now in these nine states.

Jordan: Right. As we always say to close these things out, we are very interested in your opinions on Medical Marijuana, and Gun Control, and especially this case. I think that, on our blog, we’ll have a link to the decision. Feel free to hit us up on Twitter, or our blog, or Facebook, and let us know what your thoughts are on this.

Thanks so much for joining us for ClearCast.

 

Footnotes   [ + ]

1. because we care!
2. Come on, get it together
3. p. 12
4. or even in the state of Nevada
5. If they would have decided for Ms. Wilson, they could have sent the case back to Nevada district court to have the evidence issues fully litigated. Ms. Wilson was never even given a chance for a trial. Her claim was dismissed even before the summary judgment phase.
6. You do you!
7. in English, yes, but this is the law
8. I know; contain yourself
9. You are not the only person asking, wait, what is this? I will explain because we are all about empowering you. Most everyone is familiar with the ‘Separation of Powers’ under our Constitution. The legislature writes the laws, the executive enforces the law, the judicial branch evaluates. It is not practical for the legislature to write out every detail of new laws, so often the rule making (that is, how the law will be put into effect. For example, the legislature will say “No drug users can buy guns,” but how that law is enforced (will the federal government assign an agent to every gun store? Maybe an open letter would be more efficacious) will be assigned to the appropriate executive department, in this case the ATF.
10. Remember as you read, people classified as an “unlawful user” may not buy a gun in Nevada
11. source
12. Doubtful, we want to be having a function vs. essence discussion with legal code
13. Must have left it in the sandbox again..darn
14. It’s “not limited to…within a matter of days or weeks before”
15. Did they really split the infinitive? Oy.
16. That’s how it’s done Ron Darling
17. In theory, I’m not against this
18. I can see both sides
19. the link in the opinion is broken
20. Apparently “dog” is a defense?
21. This is has been a horrific Summer for fans of conservative jurisprudence [and I’m not talking about North Carolina, that nonsense isn’t conservative, it’s just racist partisanship], or at least as the media describes it. Recall the reproductive rights case handed down by the SCOTUS a few weeks ago? They essentially cemented access to an abortion as a fundamental right. It seems, from afar, that the conservative strategy to undermine abortion was to distinguish away the rights in small phases. For example, see the difference between the rights articulated in Roe v. Wade verses Planned Parenthood v. Casey. In this year’s Texas case, the anti-abortion folks got a little too overzealous, and decided to run that Texas law (requiring abortion clinics to have all the same medical equipment as a hospital, without justification [except that they don’t like abortion, which doesn’t count]) all the way up the chain. Instead of getting the abortion prohibition [which always seemed unlikely], the Supreme Court drew a bright line for how far abortion restrictions can go. The court would have never commented on abortion without prompting; now, (from my humble perspective) they will need a constitutional amendment to outlaw abortion.

I see something similar here. It seems absurd that a medical condition would prevent someone from buying a gun; so the lawyer here thought he was onto something. However, these constitutional challenges are not free (literally in terms of cost, but also in terms of political risk) because you are at risk of a judge taking your facts and making the law he wants. This means if you are going to bring a constitutional challenge, especially because it affects everyone, you have a duty to argue this case correctly. I agree with my employers, the lawyer here made a huge error of omission of not questioning the government’s assertions that medical marijuana has no medicinal value and/or medical marijuana users are more inclined to be violent. We, as Nevadans, would be better off if they would have never brought this legal challenge. Please don’t challenge constitutional law if you are unable to/won’t prepare sufficiently. It affects all of us.

22. Yes, I just did that
23. pp 18-19
24. sorry
25. This is only my opinion
Las Vegas Casino host employee non-compete

Podcast Preview: Las Vegas Casino Workers Need to Know About the New Law for Non-Compete Contracts

Rising podcast star, Greg Hamblin, hosted one of our partners, Jared Richards, on the latest episode of his podcastOn The Docket.

Thank you for all the wonderful feedback as well!

For today’s episode, I would like to call your attention to this article in the Las Vegas Sun describing the recent opinion from the Nevada Supreme court, Golden Road Motor Inn v. Islam (The last name of the employee litigating).

A quick summary: The Nevada Supreme Court held that non-compete provisions in employment contracts must be reasonable, or they are invalid.

What does this mean for you? If you are working in Nevada and signed a non-compete agreement, watch this short clip.

The segment begins just as Mr. Richards is describing the facts from Golden Road Motor Inn..

 

 

Transcript:

Jared Richards:  The non-compete agreement was too broad. Traditionally, trial courts have the ability to take a non-compete agreement, and it’s called blue pencil, they can amend, if they find something that’s unreasonable because non-competes can’t be so unreasonable as to really bar somebody from gainful employment and I think this one barred her from working for any casino within 150 miles.

Greg: Oh, wow.

Jared Richards: That destroys her employment opportunities. 150 miles, that’s a long distance for somebody who I think was a janitor or a menial worker. Normally, a court would just simply say, “We are going to bar you from performing … We’re going to change the contract to bar you from performing this specific service that you were doing for your old employer and other employers,” so if you were a janitor there, you could still be a server, you could still be anything else.

But the Nevada Supreme Court moved away from the blue line principle and just simply said, “Guys, it’s in a valid contract, and that’s it,” which throws into question a huge number of contracts in the state of Nevada because so many people will take slightly over-broad, unreasonable positions with the hope and understanding that the trial court, if it’s found to be unreasonable is going to reduce it to the point of being reasonable.

Brian: Right, okay.

Jared Richards: Now, instead of reducing to the point of being reasonable-

Brian: They’re just tossing it out.

Jared Richards: They’re just tossing, which means, if you’ve put, and the restrictions generally are, they look at the type of work you’re doing and whether you could easily switch to another type of work. They look at the distance that you’re being restricted and they look at the time on which you’re being restricted. Now, a lot of employers are asking whether or not their contracts are valid at all.

Brian: Can I ask about casino hosts in Las Vegas in particular? Very competitive industry. The high end hotels – I used to work in casino – the hosts move in between hotels a lot.

Jared Richards: They don’t want their high rollers running with the hosts.

Brian: But any of these host contracts valid?

Jared Richards: Well, I don’t know. I mean, it would depend on the-

Brian: If they had one of these non-competes in them?

Jared Richards: No, it would depend. Now, I think that if you were to say, “You cannot work as a … If you come and work for us a host, you can’t work as a host, that very specific field, in the Las Vegas area, or within a 5 mile radius of our casino, or 10 mile radius of our casino” you might be able to get away with that, a court might look, for a year. A court might look at that and say, “Well, that’s reasonable.” The whole thing of 5 years or 150 miles, or just you’re not able to-

Brian: Or working at a casino.

Jared Richards: Right, or working for a competitor at all.

Brian: Right.

Jared Richards: Those things, now are extremely risky and if you have any of those in your contracts, your contracts may be invalid, or at least the non-compete provisions.

Brian: Right. Do you think that the casinos should rewrite the contracts or just hope that they don’t get sued.

Jared Richards: No. It’s not that they’ll get dues. It’s that they can’t enforce them. They’re never going to get sued for the non-compete. I won’t say never, but it’s when the casino tries to enforce the non-compete that everyone can just thumb their nose at the casino saying, “This is not a valid portion of your contract.”

If the casino really wants that protection, they need to now reconsider, they need to narrow the restriction and yeah, they’ll need people to re-sign.

 

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