Nevada voting election vote

Election Day Special: Know Your Voting Rights

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

 

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

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

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

Know Your Election Rights by Statute

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

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

Let’s start with election day observation:

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

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

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

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

      (a) Gathers information for communication to the public;

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

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

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

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

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

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

You Do Not Need State-Issued ID to Vote

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

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

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

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

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

      (b) A driver’s license;

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

      (d) A military identification card; or

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

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

NRS 293.285  Procedure for taking registered voter’s signature.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks for reading.

 

Footnotes   [ + ]

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

A Not-Very-Modest Proposal to Fix Nevada Election Problems

Insanity: Doing the same thing over and over again and expecting different results.

-Albert Einstein

 

(Editors note: the piece has been reformatted for better accessibility-6/2/2016)

 

If We Change Nevada Election Laws, What Should They Be?

Good news! The answer isn’t all that complicated, and we don’t have to start from scratch.

We clearly (given that Nevada has been a state for 150 years and still cannot host an election) don’t have (or desire to spend) the resources to adequately (some might contend “Constitutionally”) administer elections. This is important to acknowledge.

If learned anything from the state convention, it is that the people working for the Nevada Democratic Party cannot administer an unbiased primary.1)It wasn’t just the convention; I have talked with multiple voters that told me their Caucus wasn’t not administered properly. I caucused up in Anthem (with Sen. Reid in the building, though in a different precinct), and I personally witnessed at least three caucuses run improperly (as in, not according to the party’s rules. Worse, I saw caucuses run by the same precinct chair, administered differently [I guess if you wanted to be in a caucus that followed party rules, it was luck of the draw] in the same gymnasium). If the party doesn’t administer the caucus correctly with the Godfather in the building, I have no reason to think any Caucus meeting was completed in the proper order. If the people working for the NV Dems are so passionate about Hillary Clinton (nothing wrong with that) that they could not administer a caucus fairly, they should have asked someone else to do it. Updating the rules, on the fly, the meet the needs of their preferred candidate, is just not good enough. Our friends in the Nevada GOP have their own legitimacy issues. Do a little reading about the 2012 race; the google can help.

For the reasons discussed above, legitimate ruling authority is more important than any other single issue the legislature will address next session. If the people in office were not put there by legitimate means, no subsequent action taken by these officials will be seen as legitimate.2)Keep going down the logic tree, or read about the ongoing coup in Brazil if you want a real world exampleThis speaks to the very essence of our society.

If we were going to a Rawslian3)I just mean starting from a “state of nature,” as in the famous thought experiment where you would design a system of justice from scratch, perhaps with equal outcomes. experiment here, perhaps I would propose something far more radical4)Imagine if our elections were community meetings of say a couple dozen people that had a fruitful discussion before each individual declared her preference. Or if the complex issues of the day got the debate they deserve. Or if the elected officials entrusted to make tough decisions aren’t permitted to leave the room before action has been taken, etc..

But we don’t need to “revolutionize” the Nevada election process. Our 9th Circuit neighbors to the north have done most of the legwork for us. Up in Oregon, they have enacted (and tested) vote-by-mail laws. 30 years later, the results from their experiment are extraordinary! (wait until you see their voter participation numbers). Let me quote the Oregon Secretary of State to explain the process:

 

Registered voters receive a ballot two to three weeks before an election, giving time to research issues or candidates.

Voters also receive an official ballot to complete and insert into the security envelope which is placed in the ballot return envelope and signed by the voter. The ballot return envelope can be stamped and mailed or dropped off at any official drop box across the state. If a voter casts their ballot after the Wednesday before an election, the ballot should be left at a drop box site to ensure it’s counted.

Ballots must be received by 8 p.m. on Election Day.

 

Better than that? The same process applies for the primary! Problem solved!

Just in case the benefits don’t jump off your mobile device at you, allow me to list the first ten I could think of:

  1. No More Long lines: In a state where folks work around the clock, having folks stand in line for hours to vote is terrible for our economy. Just think of all the waste from the February caucus.
  2. No More Voter Intimidation: There have been complaints5)I’m not speaking to their veracity that certain voters, from both parties, feel intimidated.6)I recall seeing pictures on State Sen. Aaron Ford’s account of voter intimidation that will infuriate any good Nevadan. Being able to express your voter preference is a fundamental tenant of American life and should be protected. This is the best means to do so.
  3. Improved Fairness for Our Senior Citizens: The first concerns listed above are particularly acute for our area seniors. Allowing folks to vote from home at their own convenience is an idea I believe most of our senior citizens would support.
  4. Improved Fairness for Casino Workers: If you haven’t worked in the casino industry, the shifts constantly are in flux (until you have tenure) and it is difficult to plan for anything too far in the future. Under the caucus system, people only have a 2 hour window to express their preference. Saturday is a busy day in the casino industry, and most of the Valley’s casino shifts include working on Saturday. Casino workers are the true foundation of our economy here, and we should be doing everything possible to make it easy for them to vote. I’m sure the Casino owners do not want to continue to pay their workers during the caucus either. Let casino workers vote when they can.
  5. Potential for a Significant Voter Turnout: In 2012, 2/3rd’s of the country didn’t vote. This is a huge problem for a number of reasons. 10% of registered democrats in the state voted in this year’s caucus. This is a civic failure of which we could blame any number of institutions, but now is not the time for distractions. The more cynical folks in the media like to use these stats to make unfavorable conclusions about Americans generally. Me? I think most Americans are willing to participate, they just don’t have 6 hours to dedicate to the process with families, work and other obligations. Don’t believe me? With a vote-by-mail option, More than 70% of Oregon residents voted in the 2014 midterm.
  6. More Honest Political Parties: Closed primaries don’t make sense in Nevada where as much as 1/3 of the voters do not want to be apart of either major political party. An open, vote-by-mail primary allows every citizen to have an equal voice in the process. Once the major parties have competition, they will be forced (as much as they can be) to meet the will of the voters. My conservative readers have to be in favor of more competition..
  7. People Will Feel Invested in Their Community: When 2/3rds of the country didn’t vote, these folks can just turn around and blame the other 1/3 without having to take any responsibility. We want our citizens to have skin in the game, to care about the results. I suspect that there are many people with the civic spirit in Nevada that want to participate and be a part of the process, but they are disincentivized by the impropriety of the process (even just the look of it). A more engaged citizenry will lead to a better Nevada, no question about it.7)There will be growing pains, but that’s ok!
  8. Fairness for Non-Partisan Voters: Did you know the fastest growing voter demographic in Nevada is non-partisan voter? Shouldn’t folks with independent streaks/non uniform political opinions be allowed to participate in the primary? Wouldn’t the result likely be a candidate that more of the country actually likes?8)Note, Nevada currently uses a closed primary system to exclude non-partisans from the process. This can be easily fixed.
  9. Lower Cost: Think about the cost of running an election for a moment: supplies, personnel, rent for polling locations, plus the opportunity cost of having public officials not completing their regular business. Then add on early voting! Know also that the ballot drop boxes around the state (under Oregon law) don’t need to be supervised (like a mail box). Also, in terms of added cost, we already send out a voter guide! Why not just include the ballot as well?
  10. A Better Government: Our government, like the rest of life, is a product of what we put in. A more engaged/inspired voting public will produce a more engaged/inspired government. When in life have you received something worthwhile that didn’t take serious effort to produce? It’s time to stop pretending our government is any different.

 

In case any of the members of our fine Nevada Assembly come across this discussion, I have included the Oregon statutes below for your perusal. Additionally, I included Oregon voting statistics, which alone should be enough to get you to consider this idea.

I would be the first to concede that my proposal is, by no means, modest. But for the listed reasons above, I ask the citizens of Nevada to take it under serious consideration.

We do not have to pick insanity. Our democracy is a beautiful thing. It’s time to reinvest.

 

How We Got Here

By now, you’ve heard at least a little bit about what happened at the Nevada Democratic Party State Convention from the Paris Hotel. Frankly, I’d be impressed if you haven’t.

If you missed all the fun, this Maddow segment sums up the Nevada election fun.

 

The look on Ralston’s face is priceless.9)How’s that #fallofTrump hashtag going by the way?

Here’s a litany of “thinkpieces”10)How long does someone need to think about something before a “reaction” becomes a “thinkpeice”? from the Convention, if it’s a recap you are after: NY Times CNN  Commentary Medium Salon Statement from Lucy Flores

I am less interested in what occurred last weekend, but much more concerned about what we should do going forward. As I wish more people were.

But how much does what happened last weekend matter? If the Nevada Democratic Party followed their own convention rules, Hillary would have won 13-12. With the new, updated11)to account for Bernie’s supporters winning too many delegates at the county conventionsconvention rules, Hillary won 15-10.

That’s right, all of this is about two delegates. Yes, every delegate counts. And Hillary is currently 274 delegates ahead of Bernie. For those of you not math inclined, we are talking about less than 1% of the total delegates. Unless Bernie wins at least 70% of the California vote, Hillary is going to win the primary.

As we keep calling each other names, please keep that in mind.

One last point regarding the Convention..

https://twitter.com/karpmj/status/733719356249628673

 

I, for one, would appreciate it if the national media stops reporting false facts to make Nevadans look bad. As far as I can tell, no Nevadan threw anything at anyone.

As for the disgusting harassment of Roberta Lange, no one has proven anyone from Nevada had anything to do with that either. Over on Jezebel, Anna Merlan wrote a great piece where she called up a few of these harassers and asked them to explain themselves. It’s worth reading in full. Of the three harassers she spoke to, none was from here.12)For all I know, these jerks all work for David Brock..I kid David, I’m sure he doesn’t do stuff like this anymore..

 

Now That We Got That Silliness Out of the Way, Onto Important Business

That is, that our primary (at the very least) has the appearance of impropriety. And that is a huge problem.

Yet, it is important to acknowledge that administration of a legitimate election is not a Nevada-specific issue. In fact, this is a problem in many13)but not all…stay tuned states in the union.

But how bad are things across the country?

http://www.esquire.com/news-politics/politics/news/a43311/war-on-voting/

Well, Charles Pierce had to write about it without cursing, so yes, pretty serious. In that piece, he aggregates voting issues in North Carolina, Wisconsin, and Alaska. Anyone else see a common theme across jurisdictions making it more difficult to vote?14)George W. Bush’s politics/results showed that conservative values can easily win on the merits; there’s absolutely no need/value for these laws.

We could continue to complain on social media, write terse letters to the editor, and create (less than mature) vines to express our displeasure, or we could Make a Change.

 

Why This Matters

In my humble opinion, this matters as much as anything we’ve written about on the Clear Counsel Legal Blog. We are talking about the fundamentals of our democracy here, the essence of our social contract. Allow me a moment to take a step back so we can get a little perspective.

When the uproar in Tunisia began in the end of 2010, I speculated15)#humblebrag…you’ll just have to believe me. Also, there were many a folk that said the same thing that it was very possible for the unrest to spread to the other neighboring countries. Why?16)I apologize for the Darling-esq rhetorical question

The conditions that acted as a catalyst in Tunisia were present across the Middle East17)Not the murder of the fruit vendor, but that the government was not chosen by the people but imposed on the people, and not the surprisingly, the unrest spread beyond Tunisia’s borders18)I’m going to put a pin in the discussion of the Arab Spring for now. Yes, I am aware of that there are many, many variables at play, and I am not omniscient. If you want more information about the Arab Spring, the Google can help.

That condition I speak of? The lack of legitimate authority over the citizens by the autocratic governments in question. This is incredibly important.

Beginning with the American Constitution of the 18th Century, peoples of the Western World declared that we (collectively) have the right to live by self-determination through self-governance. Europeans/fellow Americans followed suit over the next 200 years to the extent that now most Western societies consider governments that were not popularly elected as illegitimate19)I am fully aware of the happens of Brazil…We should let that play out before drawing conclusions. Certainly, it’s concerning.

The brilliance of our American experiment is that we,

1. Established a repeatable means to determine whom should lead us, and

2. Instituted an invaluable20)literally, try to put a price on this method for the peaceful transition of power.

Let’s reflect why this is important. Before 1776, Every person in the world was born into a society in which s/he had no voice/power to make a change. Political transitions before the Great American Compromise were, in essence, a storming (then subsequent re-storming) of the Bastille. The peasants of this era (and before) had no means to express their displeasure, except a good storming.

Imagine, if instead of having an election every 4 years, there was a violent conflict for power? Sounds awful, right? There’s real value in our political development over the past 200 years.

Good. We start here.21)Unfortunately, this is where most of the analysis I have seen stops. We seem to have hundreds of people ready/able/willing to disseminate an opinion, less that want to try to address the issues in question.

In reference to the Einstein quote to open the piece, if we don’t make serious changes to the Nevada election laws, there is no reason to think all of this chaos won’t happen again in 2018, 2020, 20204..

It doesn’t have to be that way!

 

Thanks for reading.

http://sos.oregon.gov/elections/Documents/246.pdf

 

 

http://sos.oregon.gov/elections/Documents/251.pdf

http://sos.oregon.gov/elections/Documents/Voter-Turnout-History-Primary.pdf

http://sos.oregon.gov/elections/Documents/Voter_Turnout_History_General_Election.pdf

 

 

 

Footnotes   [ + ]

1. It wasn’t just the convention; I have talked with multiple voters that told me their Caucus wasn’t not administered properly. I caucused up in Anthem (with Sen. Reid in the building, though in a different precinct), and I personally witnessed at least three caucuses run improperly (as in, not according to the party’s rules. Worse, I saw caucuses run by the same precinct chair, administered differently [I guess if you wanted to be in a caucus that followed party rules, it was luck of the draw] in the same gymnasium). If the party doesn’t administer the caucus correctly with the Godfather in the building, I have no reason to think any Caucus meeting was completed in the proper order. If the people working for the NV Dems are so passionate about Hillary Clinton (nothing wrong with that) that they could not administer a caucus fairly, they should have asked someone else to do it. Updating the rules, on the fly, the meet the needs of their preferred candidate, is just not good enough. Our friends in the Nevada GOP have their own legitimacy issues. Do a little reading about the 2012 race; the google can help.
2. Keep going down the logic tree, or read about the ongoing coup in Brazil if you want a real world example
3. I just mean starting from a “state of nature,” as in the famous thought experiment where you would design a system of justice from scratch, perhaps with equal outcomes.
4. Imagine if our elections were community meetings of say a couple dozen people that had a fruitful discussion before each individual declared her preference. Or if the complex issues of the day got the debate they deserve. Or if the elected officials entrusted to make tough decisions aren’t permitted to leave the room before action has been taken, etc.
5. I’m not speaking to their veracity
6. I recall seeing pictures on State Sen. Aaron Ford’s account of voter intimidation that will infuriate any good Nevadan
7. There will be growing pains, but that’s ok!
8. Note, Nevada currently uses a closed primary system to exclude non-partisans from the process. This can be easily fixed.
9. How’s that #fallofTrump hashtag going by the way?
10. How long does someone need to think about something before a “reaction” becomes a “thinkpeice”?
11. to account for Bernie’s supporters winning too many delegates at the county conventions
12. For all I know, these jerks all work for David Brock..I kid David, I’m sure he doesn’t do stuff like this anymore..
13. but not all…stay tuned
14. George W. Bush’s politics/results showed that conservative values can easily win on the merits; there’s absolutely no need/value for these laws.
15. #humblebrag…you’ll just have to believe me. Also, there were many a folk that said the same thing
16. I apologize for the Darling-esq rhetorical question
17. Not the murder of the fruit vendor, but that the government was not chosen by the people but imposed on the people
18. I’m going to put a pin in the discussion of the Arab Spring for now. Yes, I am aware of that there are many, many variables at play, and I am not omniscient. If you want more information about the Arab Spring, the Google can help
19. I am fully aware of the happens of Brazil…We should let that play out before drawing conclusions. Certainly, it’s concerning.
20. literally, try to put a price on this
21. Unfortunately, this is where most of the analysis I have seen stops. We seem to have hundreds of people ready/able/willing to disseminate an opinion, less that want to try to address the issues in question
Caucus, Nevada, Democrats, republicans, trump, hillary, bernie, cruz

The Answers to All of Your Caucus Questions!

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

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

If only we had more time!

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

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

 

When and Where is the Nevada Caucus?

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

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

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

 

What are the Requirements to Caucus?

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

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

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

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

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

 

What Happens at the Caucus Once You Arrive?

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

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

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

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

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

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

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

 

What Caucus Rules Do You Need to Know?

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

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

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

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

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

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

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

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

 

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

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

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

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

 

The Republicans

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

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

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

Thanks for reading.

More information:

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

 

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

 

Footnotes   [ + ]

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

Your Much-Needed, All-Encompassing Caucus Preview! Now with a Small Debate Recap

**Updated With a Debate Recap**

 

To be the man, you have to beat the man.

-Pro Wrestling Proverb

 

 

The First GOP debate of 2016 affirmed my analysis of the race, see below. It is still a two-man contest between Mr. Cruz and Mr. Trump. Fox Business held the first laissez-faire debate of the season last night where candidates could come and go into conversations as they please, and answer only the questions they wanted. In terms of raw entertainment value, this was the best debate by far; each of the candidates is getting better with practice, some improving faster than others.1)Even Jeb!

Mr. Cruz showed last night that yes, indeed, he can win this thing. What you are about to see is the first candidate in the race actually stand up to Mr. Trump:

 

 

That “Constitution didn’t change since September” line was great. Mr. Cruz’s gab gift is such that Mr. Trump even smiled at a few of his quips! If you can’t stand up to Mr. Trump, how will you face Mr. Putin?

Shockingly, Mr. Cruz then found a way to make Mr. Trump sympathetic. Don’t believe me? Watch:

 

 

Five months ago, I would have never imagined Mr. Trump could do that. Unfortunately for Mr. Cruz, he had to burn many a bridge to get himself to his peculiar status as the “insider/outsider”2)Could someone not from Texas pull this off even??. Mr. Cruz may not have enough allies left in the establishment to muster a sufficient challenge to overcome the momentum of the Trump Train.

It’s clear after last night though; Cruz can win.

 

 

Welcome to our Iowa/Nevada caucus3)Yes, some New Hampshire too preview! In only4)haha, yeah only eleven months from now, all this jockeying will be over and the cable news will have to go back to talking about…What did they talk about before? Oh right! Airplanes lost at sea! Weird how no planes got lost over Bermuda during most of 2015; it is as if they know when to get lost to maximize news coverage, or something.

I know you see eleven months noted above and you’re thinking “Pshh, eleven?? Call me in October and I’ll see what these folks are up to.” Ah, my good friend, you do have a little time to head over to Kingman and burn your hard-earned money on an immoral national lottery that the Nevada Gaming Board would never permit5)because of the horrendous odds, but we will need your attention upon your return!

The Caucuses are coming; the caucuses are coming! Shockingly, our two-party political system has produced candidates from each party that differ to such an extent that these primaries will have a significant effect on the political process and the country as a whole. Not only should you be voting the celebrate the sacrifices of the countless others that died for your right of popular political participation, but because you can have a tangible effect on what it means to be an American for five, ten, maybe even twenty years from now.

So we best get this right, eh? This isn’t like those previous caucus seasons when you could pick any of the handful of politicians from one party and the policy result would not differ. You happen to be privileged enough to live in a country where you can actually participate in its future6)At the risk of being mercilessly mocked on the twitter, it is worth taking a moment and appreciating how lucky we are all to live here. You could have ended up in any of the nearly 200 countries in the world, and we are in the richest/most free. Yes, we have many an issue, but it is important not to lose perspective.

Time to get informed then? Insiders tip: don’t tell your coworkers you just noticed last night that we have a caucus in a months’ time. Play it like, “yeah, I’ve been following this stuff this whole time, I just didn’t want to talk about it too much to make y’all feel bad.” People seem to get defensive if you only recently made your 2016 caucus choice, as if your preference has less value than the bro who has been praying that Mr. Trump run for office since 2003.

Above, you see the most recent Nevada caucus polling. There is not much Nevada polling, and frankly, none of it would matter much anyway. We see the press (and Mr. Trump) playing a lot with national polls, yet there is no national caucus to decide the candidate for each party. No, the caucus or primary takes place in a pre-ordained sequence, meaning, in a Samuel Huntington7)Huntington wrote political theory about developing countries saying the the order in which institutions are established matters significantly to the outcome.-esq way, sequences matter! If New York voted first, followed by Texas then California, we would be looking at a completely different race!8)Shout-out to William Vollmann whose excessive use of exclamation points I am currently [poorly] emulating

My point being that the result of Iowa, New Hampshire, and South Carolina will affect the caucus here, so taking snap-shots of the current Nevada polling doesn’t mean that much/have much value. In turn, to understand potential outcomes for the Nevada caucus, we need to glance at the state of the race in Iowa and New Hampshire.

After tossing the coin, the Republicans9)not surprisingly advised by Bill Belichick opted to defer to the 2nd half, so we will start with your friends, Hillary and Bernie.

 

The Democrats and Their Caucus

I haven’t written much about our Democratic friends, as there really wasn’t much news to report. Hillary was up by 20 points, nationally and in all the early states, and there was no reason to presume that Bernie would be able to rise above the 30% plateau attributed to his support in November. Then there was Christmas, New Year’s…and all of a sudden:

 

Whoa! #Bernmentum indeed. I always knew America would take to democratic socialism, it just needed the right, pretty spokesman to do the job10)On a related note, Bernie’s hair is combed in nearly half his television appearances now, much marked improvement. Trends/momentum are important for the caucus, and as you can see above, Hillary must be having nightmares of 2008 all over again (she was up by about the same amount in 2007 December over Obama and Edwards).

I have no insider Hillary knowledge11)I should disclose here that they offered my a job in 2008 but I declined, but my guess is that Team Hillary hoped to hire all the Obama operatives (I watched these folks work in 2008, they are very impressive), and then transfer his popular support directly to Hillary. The plan did not go as hoped. Hillary has been unable to form Hope and Change 2.0 and instead is dealing with all the same issues she had in 2008 with the base democrats, just with new topics. In 2008, the base dems saw Hillary as a war hawk, and her rival campaigns used the base’s hatred of Mr. Bush’s Iraq adventure to defeat Hillary.

Instead of foreign policy12)apparently all the politicians in Washington believe in war in perpetuity now that Mr. Obama has embraced the Bush doctrine, now Hillary is getting attacked for being too moderate on the income inequality, which happens to be Bernie’s pet issue/the issue he speaks best on. The difference eight years later is that as opposed to the 5 competing campaigns teaming up to defeat Hillary in Iowa13)She was that much of a sure-thing then, promise, Bernie is doing it all by himself14)well, along with his coalition of the willing. Unfortunately for Hillary, it looks like the old Edwards/Obama/Biden supporters did in fact come together in a big tent, just against her. Again.

Things are even worse in New Hampshire, Bernie’s next door neighbor:

 

https://twitter.com/RichardAngwin/status/685634979179593728

 

I don’t know about KABOOM, but yes, Bernie is doing well. Does it mean he has got this thing locked up? Not even close. Hillary is up big in South Carolina, and as you saw above, polled very well in Nevada in late December.

The state count could be 2-2 come Super Tuesday. Hillary is not going to go down easy, folks. Take a look at this ad they put out yesterday:

 

 

Pretty effective on the liberals and their hatred of all things gun. Hillary is at risk of the sky falling on her campaign if she does not win one of the first two states. The every-moment-of-the-day15)trademark pending media will just go crazy with their hot-takes and “I told you so’s”.

Yet if the worst occurs, and if she can get out of Nevada with the score 2-2, Hillary is still a -200 favorite to win the nomination, given her fundraising.

Like I said before, your Nevada caucus preference16)This is correct term for a caucus, not “vote,” talk like you’ve done this before really matters!

 

The Republicans and Their Caucus

 

“More than 1,000 words and no Trump talk yet?? I thought you said we were going to ‘Make Caucusing Great Again’?”

Ok ok ok, sorry. Yes, your friend Mr. Trump has turned out to be a much better politician than anyone (besides the Donald) gave him credit for. And yes, like I wrote a few weeks ago, he remains the front-runner.

..But there is a bit of overcast for Team Trump. Of course, though, we have to start with a national poll that Trump dominates:

 

Twenty-eight points! The republicans found lots of folks to run for President, yet none of them have any military or state experience. Imagine if Jim Webb didn’t promote organized labor and registered republican; no way Mr. Trump is up by this much. More than a dozen candidates for President, and the candidate with the most military experience was a JAG lawyer and already dropped out17)Come back Lindsey!. You have to think that if Gen, Petraeus didn’t ruin his career with the book lady, he would have been the nominee for the Republicans, and given all the worry over terrorism, he’d probably be polling pretty well.

But here we are, with a combination of first-term senators, governors, and private sector folks with a combined zero days of military experience. Thus, Trump.

 

But sequence matters with the republicans too! Let’s see what’s going on in Iowa:

 

Mr. Cruz is winning! (probably). Guy is working his tail off in Iowa; I have no doubt he will have visited each of Iowa’s 99 counties by caucus day on 1 February. Iowa voters take their responsibilities very seriously, as they say, they got to kick the tires of a candidate two or three times before an individual would even consider caucusing for him or her.

If Mr. Cruz can pull off the upset and defeat Trump, the sequencing effect likely takes hold (people want to vote for a winner after all). An Iowa win for Mr. Cruz could completely change the dynamics of the race (for him and Mr. Trump only, sorry kids). If Mr. Trump blows out his establishment opponents in the first two states, he potentially18)can’t believe I’m typing this could sweep the field. He’s up Yuge in New Hampshire, South Carolina and Nevada, and if he sweeps the first four states, I cannot imagine another candidate will be able to raise enough money to compete with him. Mind you, Mr. Trump has spent very little19)around 2 million dollars, compare with the 9-figure expenditures of the Jeb PACs, and will likely have sufficient funds available to get the vote out on Super Tuesday.

But if you think Mr. Trump will just allow Mr. Cruz to take away his nomination, think again. By early February, expect all the country to know that Mr. Cruz was born in Canada20)stay tuned for a more in depth discussion on the qualifications for the office of the President. “Natural born citizen” confuses many. What isn’t clear is how well-organized21)in this context it just means, he employs plenty of staff, has lots of volunteers/veterans of the process Mr. Trump is. Look at these articles, for example:

http://www.politico.com/story/2016/01/trump-builds-data-juggernaut-217391

 vs.

Both of these pieces can’t be accurate. Did The Times just find dull Trump supporter in Ottuma to make him look bad? Is The Politico just trying to get back in Mr. Trump’s good graces? We will find out in three weeks. As much as the press loves the “yeah well it’s neat that all them folks came out for the rally, but are they really going to vote” angle22)example , given how well Mr. Obama did in 2008, might be time to give the candidate the benefit of the doubt that if you can get that many folks to attended a political rally in freezing weather, a good number of these folks are likely to caucus.23)Unfortunately for Mr. Obama, he was never able to muster the same enthusiasm for the rest of his party

The future of the Party of Lincoln rests in Iowa. Will they go the way of the Whigs/No-nothings? Will the populist-right break off and form their own party if the nomination is taken away from Mr. Trump? Stay tuned!

If you have a little extra time, I suggest this Guardian piece written by Ms. Abdul pictured below (right), on why she brought her extra-large Koran to a Trump event in Reno. I am happy to report the Reno folks kept their disrespect to micro-aggressions. Yay Nevada.

 

http://www.theguardian.com/commentisfree/2016/jan/13/i-went-to-donald-trump-rally-in-my-hijab-supporters-arent-just-racist-caricatures

Footnotes   [ + ]

1. Even Jeb!
2. Could someone not from Texas pull this off even??
3. Yes, some New Hampshire too
4. haha, yeah only
5. because of the horrendous odds
6. At the risk of being mercilessly mocked on the twitter, it is worth taking a moment and appreciating how lucky we are all to live here. You could have ended up in any of the nearly 200 countries in the world, and we are in the richest/most free. Yes, we have many an issue, but it is important not to lose perspective
7. Huntington wrote political theory about developing countries saying the the order in which institutions are established matters significantly to the outcome.
8. Shout-out to William Vollmann whose excessive use of exclamation points I am currently [poorly] emulating
9. not surprisingly advised by Bill Belichick
10. On a related note, Bernie’s hair is combed in nearly half his television appearances now, much marked improvement
11. I should disclose here that they offered my a job in 2008 but I declined
12. apparently all the politicians in Washington believe in war in perpetuity now that Mr. Obama has embraced the Bush doctrine
13. She was that much of a sure-thing then, promise
14. well, along with his coalition of the willing
15. trademark pending
16. This is correct term for a caucus, not “vote,” talk like you’ve done this before
17. Come back Lindsey!
18. can’t believe I’m typing this
19. around 2 million dollars, compare with the 9-figure expenditures of the Jeb PACs
20. stay tuned for a more in depth discussion on the qualifications for the office of the President. “Natural born citizen” confuses many
21. in this context it just means, he employs plenty of staff, has lots of volunteers/veterans of the process
22. example 
23. Unfortunately for Mr. Obama, he was never able to muster the same enthusiasm for the rest of his party
Las Vegas GOP Debate, Trump

Your Last of 2015, Las Vegas Republican Debate Recap

Well we made it.

You thought there was not way we could get through 5 of these things, yet, here are are, still intact, awaiting the 7th1)no idea if this is accurate Space Warriors movie. The Iowa Caucus is a little more than a month away, so we are pretty much done with these debate stuff?

..Not exactly. If you round down, there are only like a dozen more debates left, which is less than 20, which is preferable to 30? (Doing the best I can here..).

Given how the race has shaken out to this point, it is difficult for me to add much analysis. It’s a one man show right now, according to polls/media coverage/social media mentions. Between you and me, it is fascinating how a reality TV host with no political experience could dominate the party of Lincoln, but here we are. Unfortunately, Mr. Trump has blown the dust off the ole Dixiecrat playbook from the early 20th century2)Gov. Pataki called him a “Know-nothing” during the JV debate, which is a great/pretentious reference that a few of us enjoyed, and has seriously offended more than half the country.

I watched the Trump Vegas rally from Tuesday night, and it was political theater at its very best. Yet I cannot write the explainer3)Trump: How did this happen? that I want to, because I do not want folks to think that I or anyone here at Clear Counsel endorse any of Mr. Trump’s policy ideas.

Therefore, as any discussion of Mr. Trump is 3rd rail, and there is no serious contender to him for the nomination as of now, I am left to provide a few highlights from the debate, and then a nice selection of links so you get can an idea of how much disagreement there is over who won/lost/flubbed.

…Don’t worry, I have some comedy at the end.

 

Debate Highlights Part I: Trump vs. Bush

Jeb! earned that exclamation point last night. Finally, someone had the gall to question Mr. Trump, yet the fellow establishment Republicans just left him to flounder alone. It went about as well for Jeb! as you would guess:

 

 

About 4 debates too late. But still, it is nice to see that Jeb! has a little fight left in him. Jeb! desperately needed Sen. Graham on stage to back him up4)Who might be the only Republican that can match Sec. Clinton on foreign policy. The rest of these folks have seen the poll numbers showing how nearly 2/3rds of Republican primary voters like Mr. Trump’s policy ideas. Is this about principle or winning?

There’s a reason Jeb! hasn’t taken on Mr. Trump until now.

At one point, the Rand Paul fans in the crowd5)they were a boisterous bunch, much to the chagrin of the political reporters tweeting from inside the debate hall, started booing Mr. Trump for surveillance of potential terror suspects, of all things6)I know, contain yourself. Let’s see how Mr. Trump handled it:

 

Seems to have gone fine. The establishment folks should be worried, Mr. Trump is getting better at this format.

But maybe Jeb! and Mr. Trump are going to make-up and play nice?

Probably not:

 

Rubio vs. Cruz

This is the nightmare scenario for the establishment GOP folks. I have two more clips to show you, then we will discuss:

 

 

 

Thoughts on who won? Unsure, right? Both men speak very well and are aware that there is not enough room in the race for both of them with Mr. Trump taking all of the free-media attention. The attacks on Mr. Cruz’s honesty/integrity hurt him with the voters he has taken/still wants from Mr. Carson. The “amnesty” line of attack on Mr. Rubio hurt him with the much of the anti-immigrant section of the GOP electorate.

In a fight, one senator has to win and the other has to lose, right? The other possibility is that they both lose. Which is what happened last night. In order to beat Mr. Trump, the establishment candidate will need to unite the suit-and-tie element of the party. A divided establishment cannot stand7)up, at least to a billionaire bully.

I aggregated a good selection of links below so you can see the split by the corporate media in regard to winners/losers. Mr. Trump’s easiest path to victory is a divided GOP.

The last 4 links are provided for entertainment purposes only. Thanks for reading.

 

https://twitter.com/DanScavino/status/677117117519425536/photo/1

 

http://www.washingtonexaminer.com/nevada-gov.-sandoval-warns-gop-trump-spells-electoral-disaster/article/2578517

http://www.vox.com/2015/12/16/10288202/republican-debate-cnn-trump-cruz

http://www.desmoinesregister.com/story/news/elections/presidential/caucus/2015/12/16/iowans-trump-falls-short-gop-debate-rubio-shines/77392200/

http://www.cnn.com/2015/12/16/politics/marco-rubio-ted-cruz/index.html

http://www.washingtontimes.com/news/2015/dec/15/charles-hurt-cnn-turns-gop-debate-aggravating-irre/

http://www.breitbart.com/big-government/2015/12/15/yuuuge-donald-trumps-best-gop-debate-yet/

Ted Cruz’s Missed Moment?

http://www.bloombergview.com/articles/2015-12-16/republicans-debate-foreign-policy-divorced-from-reality

http://www.latimes.com/politics/la-pol-prez-republican-debate-trump-analysis-20151216-story.html

http://www.thedailybeast.com/articles/2015/12/16/was-marco-rubio-overrated-all-along.html?via=desktop&source=twitter

Does Cruz Satisfy Trump Backers?

http://www.weeklystandard.com/the-war-in-vegas/article/2000244

http://www.slate.com/articles/news_and_politics/war_stories/2015/12/gop_candidates_proved_they_know_nothing_about_foreign_policy_in_the_cnn.html

http://www.washingtonexaminer.com/power-rankings-december-debate-leaves-trump-cruz-rubio-as-clear-front-running-trio/article/2578484#.VnFo2CUprLo.twitter

http://www.usnews.com/opinion/articles/2015-12-16/9-republicans-need-to-go-after-the-debate

https://twitter.com/KateBennett_DC/status/676978704258621440/photo/1

Footnotes   [ + ]

1. no idea if this is accurate
2. Gov. Pataki called him a “Know-nothing” during the JV debate, which is a great/pretentious reference that a few of us enjoyed
3. Trump: How did this happen?
4. Who might be the only Republican that can match Sec. Clinton on foreign policy
5. they were a boisterous bunch, much to the chagrin of the political reporters tweeting from inside the debate hall
6. I know, contain yourself
7. up, at least to a billionaire bully
puppy mill, Las Vegas, pet stores

Is the Las Vegas Puppy Mill Ordinance Constitutional?

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

Mahatma Gandhi

 

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

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

 

 

You can read a media account of the meeting here.

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

 

What is a Puppy Mill?

 

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

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

Distasteful indeed.

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

 

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

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

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

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

 

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

 

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

 

What Does the Las Vegas Puppy Mill Ordinance Say?

 

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

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

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

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

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

 

Applying the Phoenix Puppy Mill Law for Comparison of Constitutionality

 

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

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

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

8-3.06 Prohibition on sale of dogs or cats:

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

1.    An animal shelter;

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

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

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

C.    This section does not apply to:

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

2.    An animal shelter;

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

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

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

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

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

 

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

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

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

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

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

 

Puppy Mill and the Dormant Commerce Clause

 

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

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

..Like the Commerce Clause above.

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

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

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

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

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

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

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

 

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

 

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

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

C.    This section does not apply to:

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

2.    An animal shelter;

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

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

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

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

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

But this may have unintended consequences.

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

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

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

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

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

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

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

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

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

 

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

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

 

A couple more links for further reading:

 

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

 

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

 

Footnotes   [ + ]

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

What is America’s Greatest Thanksgiving Tradition? (Hint: Not Football)

Thanksgiving Pop Quiz, dear readers, what is America’s Greatest Thanksgiving Tradition?

Is it:

A.) Turkey, stuffing, et al.1)and the subsequent malaise from over-eating

B.) Football, football, football2)This can’t be the right answer, Iowa doesn’t play until Friday…Go Hawks!

C.) The Department Store-sponsored parade of over-sized, inflated objects.

D.) Awkward3)sometimes very. My instincts say Mr. Trump will only help with this political conversations with relatives you should know a little better before speaking to with such a harsh tone.

 

I mean these are all great, obviously. But the greatest? It does not seem to be listed above…

 

Thanksgiving Means “Alice’s Restaurant”

This is the 50 year anniversary of what might be America’s best holiday song4)after that awkward Adam Sandler one, obviously. There seems to be two groups of folks when it comes to “Alice’s Restaurant”: those who know and love the song dearly, and those who have yet to have the pleasure. We will need to cultivate this conversation for the latter group, as we do not want anyone to feel left out.

Most of the pieces I have read about Arlo Guthrie’s (Yes, he is the son of Woody) song spend some time discussing the song, then wait until the end to have folks give it a listen. I think this is a mistake. The following tidbits are much more fun if you are familiar with the song, so let’s start here, without context (this is where you trust me). The humor is a bit subtle, and if you would like to read along (helpful but not necessary) I recommend the Genius annotations. Plus, you’ll get to see a few of the locations/characters mentioned in the piece.

http://genius.com/Arlo-guthrie-alices-restaurant-massacree-lyrics

 

The Story Behind “Alice’s Restaurant”

For the 40th year anniversary of the song, Arlo Guthrie did an interview with “Fresh Air” on NPR in which he gave us a little background:

A lot of people thought it was fiction and this is all real stuff. I had visited my friends during the Thanksgiving break, Ray and Alice, who lived in this abandoned church. They were teachers at a high school I went to just down the road in the little town of Stockbridge, Massachusetts. And a friend of mine and I decided to help them clean up their church, and because I had gone to school there, I was familiar with all of these little back roads and nook-and-cranny places. And I knew a place that local people were using to get rid of their stuff.

 

It’s hard to pick out a favorite part of the song, but for starters, when they come across the sign below, for some reason, they just turn around and continue on, looking for the one dump in the area that is open on Thanksgiving? Pretty great.

 

Additionally, I challenge you to find a better description of a trial in song than that of “Alice’s Restaurant.”5)Not counting Dylan’s “Hurricane” of course As the Genius annotations highlight, it is just too much that Arlo is convicted by a blind judge with the only evidence being the twenty-seven, 8-by-10 “color glossy pictures with circles and arrows and a paragraph on the back of each one.”

There is another great excerpt from the NPR interview I want to share:

ELLIOTT: So do you remember the first time you actually played “Alice’s Restaurant” for an audience?

Mr. GUTHRIE: Well, the first time I started talking about it some of the events hadn’t taken place. I started it the night that Officer Obie called. He called in the daytime–in the morning–the–which would have been Friday after Thanksgiving, 1965. We went and we picked up the garbage. We went back and we were sitting around the kitchen in the church that night. And I had a guitar and we were making up funny little verses like, `You can hide from Obanhein at Alice’s Restaurant,’ stupid stuff. We were just, you know, just hanging out. And it wasn’t a song and there was no story. We were just having fun. But as the draft scenes unfolded in my real life, I began to include them in the song and it took about a year to put that together…

The only thing I really miss about doing it these days is that there’s maybe a few people in every crowd that haven’t heard it, but it’s nothing like having the few hundred or a few thousand people years and years ago–40 years ago–when nobody had heard it. Those moments can’t be repeated. And not only that, there were people singing this song together who politically had nothing in common and probably wouldn’t have talked to each other. But to see them all singing together reminded me of the spirit of what the country was all about, and I was thrilled. And, unfortunately, those days are gone for me. Not–that can’t be repeated. (bold added)

 

Completely agree with the bold statement above. Might not be such a bad idea, especially in political season, for all of us to take a moment on this Thanksgiving to think about what unites us all.

It is a Great American Tradition to Give “Alice’s Restaurant” a Listen Every Thanksgiving

As you saw in the quote above, the first time Arlo Guthrie played “Alice’s Restaurant” was in front of his friends in 1965. In 1966, at radio station WBAI in New York City, Mr. Guthrie played the track live on Bob Fass’ overnight radio show6)Source. Every since then, classic rock radio stations throughout the country adopted the tradition; the earliest example I could find was Chicago station WXRT which claims to have begun playing the song on Thanksgiving in 1973.

Unfortunately, our radio friends in in the Las Vegas area stopped playing “Alice’s Restaurant” years ago. But do not despair dear reader! Besides Youtube, SiriusXM channel 741, The Village, will play four different versions of the song throughout the Thanksgiving holiday.

But I am most excited to report that your local PBS station will be showing a live performance of “Alice’s Restaurant” with the original band to celebrate the 50th year anniversary! (8 p.m. local time in Las Vegas). For those of you just learning of “Alice’s Restaurant” for the first time, what a perfect time to begin the yearly tradition!

Below is a a little further reading if you are interested, plus a live performance of “Alice’s Restaurant” recorded for the 40 year anniversary.

All the best from us at Clear Counsel Law.

 

 

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/11/AR2005081100624.html

 

http://www.rollingstone.com/music/features/arlo-guthrie-looks-back-on-50-years-of-alices-restaurant-20141126?page=2

 

Footnotes   [ + ]

1. and the subsequent malaise from over-eating
2. This can’t be the right answer, Iowa doesn’t play until Friday…Go Hawks!
3. sometimes very. My instincts say Mr. Trump will only help with this
4. after that awkward Adam Sandler one, obviously
5. Not counting Dylan’s “Hurricane” of course
6. Source
veterans day parade, las vegas, nevada

In Case you Missed the Las Vegas Veterans Day Parade

And what a Veterans Day Parade it was! A special thanks to the parade organizers (visit their website) for their kindness and hospitality. The atmosphere could not have been more friendly and welcoming; it was a real joy to cover for the blog.

Also, did you know that the Las Vegas Veterans Day Parade is the 2nd largest in the nation (after New York), and thus, the largest this side of the Mississippi? Pretty darn impressive.

I have organized the photos into two parts: Part I featuring our brothers and sisters in uniform, Part II (you will want to make sure you don’t miss these), pictures of our young people, some very small (and adorable), some much larger than I.

Click on the photos that intrigue you to see them full size. They may take a handful of seconds to load, but it is well worth it.

 

Photos from the Las Vegas Veterans Day Parade

There is Parade Marshall, Brigadier General Joe Heck (Also our Congressman). From my perspective, he really seemed to be enjoying himself.

There is stand from which the ceremonies were administered. The City should be proud for how well the parade was organized.

Congresswoman Dina Titus of Las Vegas, riding in style.

Commissioner Steve Sisolak received an award of gratitude before the parade of his assistance.

I don’t know about you, but I could either ride a horse or carry a flag

The Goodmans, Mayors past and present

Apparently I wasn’t the only one sensitive to the noise.

Yes, that vehicle is called a “Bone-Crusher”.

 

You can’t have a Military Parade without the USO.

My little flag is found a home on my desk.

Is the dog wearing goggles? You betcha.

City Councilman Steve Ross.

The Knights of Columbus.

Who is the Trump person I keep hearing about?

Yes, you are reading that right.

Part II: Our Future Leaders

A tip of the hat to the Valley High School March Band that played (and memorized) a great Sousa melody.

 

The folks here at Clear Counsel just want express our gratitude for the service of our men and women in uniform. Bless you all.

Cryotherapy, nevada, product liability

Cryotherapy and Liabilty

There can be so many benefits to unconventional therapies and natural remedies. Many people like to dabble in essential oils, vitamins, and yoga. But some people like to go to the extreme. Case in point: Cryotherapy. This new and largely unknown procedure works by exposing people to extremely cold temperatures using liquid nitrogen for short periods of time. This exposure to various parts of the body is thought to act as an extreme “ice pack” of sorts by reducing inflammation, pain, and soreness in the body. Cryotherapy also claims to be able to heal tissues of the body, increase energy, reduce aging, and combat depression1)according to the company that sells it, anyway…. Certain athletes are rumored to use it to heal injuries instead of an ice bath. These cryotherapy “spas” have recently popped up in Las Vegas, and then quickly made the news when an off-duty manager froze to death in a cryotherapy chamber after hours. Sounds terrifying if you ask me, but apparently it is catching on.

At least it was.

A Fatal Cryotherapy Accident

On October 20th, the body of the 24 year old manager was found in the fetal position, frozen to death inside the chamber. According to various news sources, it appears that the worker attempted to use the cryotherapy chamber on herself while she was alone, against standard procedures. However, at this time of publication, it is unclear what really happened. The chambers are supposed to be properly adjusted for a person’s height so they always have access to oxygen above the level of the cryotherapy chamber. News reports speculate that the machine may have put out too much nitrogen, possibly locked her in, or otherwise malfunctioned. But a machine malfunction is nothing more than speculation at this point until further investigation can be done. News reports are also fairly consistent in noting that the cause of the death was most likely “operator error.”

 

Will There be a Lawsuit?

But what about compensation for the victim’s family? This is a tougher question. No regulatory agency appears to oversee the cryotherapy business. Not the cosmetology board, not the medical board, and certainly not the FDA. Users are invited to participate in cryotherapy at their own risk. This is the same as the disclaimer on a bottle of vitamin C, which notes that it is not a drug regulated by FDA; but clearly the risk is quite different. So, the only option at this point looks like civil litigation. Although it would initially appear to be an uphill battle because users participate in the therapy at their own risk, this might not really be the case. Depending on what actually went wrong, if the victim’s family can prove that the “operator error” was a reasonably foreseeable misuse, then they will have a fairly strong case against the company. Should it have been fairly obvious that a user of the machine might try to operate it alone? Maybe the machine should have had an automatic shut off or a finger print pad confirming that there were two operators overseeing the use…. On the other hand, the victim was clearly violating safety procedures by using the machine alone after hours. But again, maybe her employer should also be held liable for not having better security which could have prevented employees from entering the building after hours alone. These are all factors that will play out in what will most definitely be an interesting case.

Products liability is a somewhat unique area of law which puts a huge burden on the manufacture of a product to anticipate all “reasonably foreseeable” misuses. In this case, a cryotherapy chamber carries so much risk as a reasonably foreseeable misuse can (and maybe did) cause death. No amount of warnings and disclaimers can negate liability if an economically feasible safety feature could have been incorporated into the product. The examples above, like an automatic shut off or device to ensure two operates were present, certainly do not seem too complicated in light of the innate risk of the product being sold. If there is a company policy that a person should never use the machine alone, then this is clearly a foreseeable misuse. But, this is all just speculation at this point, as we do not know enough facts surrounding the incident to know anything for sure. We will continue to follow the matter closely as it plays out.

Footnotes   [ + ]

1. according to the company that sells it, anyway…
Divorce, estate planning, nevada

Estate Planning and Divorce: What to Keep in Mind

Here at Clear Counsel Law Group, we make sure all of our clients know how important estate planning is. While it is daunting to plan for the unexpected, we have all too many probate cases where families disagree over what the deceased would have wanted, but without something in writing, there is only so much attorneys can do. For instance, if someone’s grandmother intended to leave one specific grandchild her home but never put anything in writing, it is unlikely that the home will end up with that grandchild when there are other heirs. With an estate plan in place, the house will end up in the right hands. But even a good solid estate planning might need to periodically updated.

For example, over half of all marriages sadly end in divorce. No one ever thinks it will happen to them, yet it does.

 

How Divorce Affects an Estate Plan

We have seen several cases where someone passes away at an intermediate stage of the divorce process, before the divorce becomes final. While it would seem rather obvious that a person divorcing their spouse would not want their estranged partner to inherit all of their assets, unless the divorce is final, a spouse is considered a spouse under the eyes of the law. Therefore, even with divorce papers on file, unless the ink is dry, the soon-to-be ex-spouse has all the same rights to inherit as a spouse who was not divorced.

In addition to divorce papers, when couples separate they are likely financially tied in even more ways than they realize. Situations often come across my desk where life insurance policies are designated to a future ex-spouse. Fortunately, life insurance designations are automatically revoked upon divorce in case someone forgets to amend. But even so, life insurance policies with revoked beneficiaries often go to a decedent’s estate, which might then end up in the hands of that same divorcing spouse. Not only that, but sometimes married couples with joint bank accounts forget to remove an ex-spouse who then drains the account upon death with no regard for children or other intended beneficiaries1)This is not an exhaustive list of examples. Some spouses never legally divorce but live for 30 years completely separate and apart, practically forgetting they were even married in the first place. But, the Nevada probate courts are crystal clear on the issue: if two people are legally married, the spouse inherits in the exact same manner as a spouse that never spent a day away from her partner. We have even had cases where a decedent “married” twice and the legal wife and the cohabitating wife were left to duke it out. What a mess this can cause, financially and emotionally!

 

Divorce and Incapacity: A Lesson from Recent Headlines

In addition to a divorcing spouse inadvertently inheriting an entire estate, what about a divorcing spouse who becomes incapacitated? This situation arose very publicly this month with “Keeping up with the Kardashians” star Lamar Odom. The former NBA player was found comatose and required someone to make medical decisions that he could not make while unconscious. Lamar was in the midst of a nearly-but-not-quite-final divorce from Khloe Kardashian. Because the divorce is not final, Khloe is the spouse for all intents and purposes, as if the couple were headings towards happily ever after. It is unlikely that a person facing an impending divorce would think to designate a medical power of attorney once they file for divorce, but this is important!

Strangely enough, the tabloids are reporting that Khloe and Lamar have decided to give their relationship another shot after Lamar’s near death experience. But, I do not suspect that this is the typical outcome. Although we never really anticipate this specific situation, someone whom you are getting divorced from is probably not the person you want making medical decisions on your behalf, much less inhering under your estate.

As estate planning attorneys, we regularly check in with clients to update their plans. Any new homes purchased, accounts acquired, children born, or even a new job with a 401k plan can warrant updating an estate plan. I mention to all estate planning clients that not only should they contact me for changes in assets and when they get divorced, but they should contact us the minute they decide to divorce so we can help them adjust their estate plan accordingly. In some situations, it is even appropriate to insert a divorce contingency in certain estate planning documents to make clear what should happen if it appears parties are headed towards divorce.

We can never plan for the unexpected, but we can certainly try. Contact our attorneys today for a free consultation to set up an estate plan, including a plan for whom should make decisions on your behalf if you ever become unable.

Footnotes   [ + ]

1. This is not an exhaustive list of examples
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