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

[Editor’s note]

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

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

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

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

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

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

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

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

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

We publish; you deduce.1)Copyright pending?

See you next time.

-Brian

[End Note]

 

 

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

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

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

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

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

Jordan Flake: Oh, did not know that.

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

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

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

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

Justin Jones: Correct.

Jordan Flake: Which would require him to do that-

Justin Jones: Start over.

Jordan Flake: Start again.

Justin Jones: Right.

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

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

Jordan Flake: You just won. Yeah

Justin Jones: Right.

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

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

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

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

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

Justin Jones: Right.

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

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

Jordan Flake: Density of residents.

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

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

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

Jordan Flake: Initially, to get-

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

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

Justin Jones: Exactly.

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

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

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

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

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

Justin Jones: I’ll be arguing.

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

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

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

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

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

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

Justin Jones: Thank you.

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

 

 

Footnotes   [ + ]

1. Copyright pending?

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

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

-Nevada Secretary of State elections deputy Wayne Thorley

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

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

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

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

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

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

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

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

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

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

But do they have to?

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

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

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

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

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

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

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

Wait wut?

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

Some potential questions consider:

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

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

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

(I can keep going.)

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

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

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

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

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

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

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

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

             (1) A qualified elector;

             (2) Present at the meeting; and

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

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

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

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

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

 

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

 

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

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

      (Added to NRS by 2013, 1231)

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

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

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

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

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

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

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

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

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

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

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

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

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

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

Map of the 4 States

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mess With the Electoral College at Your Own Risk

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

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

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

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

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

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

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

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

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

Thanks for reading.

 

 

Footnotes   [ + ]

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

ClearCast Episode 12: Pat Hickey Answers Your Tough Marijuana Questions

[Editor’s Note]

Welcome to today’s ClearCast!

The most discussed (Easily!) Ballot Question this year is Question 2, regarding ending the prohibition against the sale of marijuana in Nevada.

And do we have a special treat for you today! A nearly 40 minute conversation with the most prominent advocate of “No on 2,” current Nevada State Board of Education Member, Pat Hickey!

Following along on social media, the conversation surrounding Question 2, unfortunately, has been unable to move beyond 140-character insults. A few days ago, we sat down with a Nevada marijuana dispensary owner, Andrew Jolley, and he was kind enough to explain what marijuana is for those of us not who need a little more background before evaluating Question 2.

In that conversation, he advocated for passage for Question 2, so we wanted have a representative from the ‘No on 2’ Campaign come on the ClearCast so you could hear both sides.

I doubt you will find a more articulate presentation of the ‘No on 2’ materials!1)Just my personal opinion, but I thought Pat was great. I wish the “No on 2” campaign would stop trying to trick people, and adopt this course. You can make good arguments against marijuana legalization without being dishonest. Watch the video!

For many viewers out there2)I speak of the prominent ‘Yes on 2’ folks, Pat may not persuade you to vote No on 2, but regardless, listening to his concerns is certainly worth your while. If marijuana is soon to be legalized in Nevada, it needs to be regulated properly. Pat is raising a lot of valid points here.

In the conversation, you will hear that Pat names Nevada state senator Tick Segerblom three times (in a less-than-becoming manner) in reference to Nevada marijuana regulation.

Know that Monday morning, we are scheduled to sit down with Tick so he will have an opportunity to respond..

Thanks for watching!

-Brian

[End Note]

 

Transcript:

Jordan Flake: Hi, I’m Jordan Flake. I’m an attorney with Clear Counsel Law Group. I’m really excited today to be joined by Pat Hickey, who is leading the coalition I would say against the regulation and legalization of marijuana Question 2 here in Nevada. As always, on ClearCast our goal is to hopefully provide an objective viewpoint of the different issues that we cover. We’re always very interested to where we may have been wrong, what we might have missed, what your opinions are. You can always leave comments on the videos, either on Facebook or on our web page.

Pat Hickey, I don’t know too much about your history. I appreciate you coming. I understand that you have been an assemblyman in the past and that you are kind of the state coordinator for the opposition against this Question 2. Tell me a little bit about yourself and how you came to be interested in Question 2.

Pat Hickey: I will, and thank you for doing this. It’s a great service to your clients, your potential clients, and the public at large, because ballot questions … Not everyone even knows that issues are going to be on the ballot, much less have an opportunity to avail themselves of this information.

Jordan Flake: Right.

Pat Hickey: I appreciate you doing this. Quickly, yes, I have served in the Nevada Legislature four different terms in two different decades, and in fact in two different centuries, because I came and went … Apparently lost my mind and returned and came to my senses and left again, so I have been a part of the Nevada Legislature. I now am serving on the State Board of Education, appointed by Governor Sandoval, which led me to concerns about recreational marijuana from two points.

One, this is a very serious and impactful public policy question, whether or not to legalize a recreational drug, and I would add commercialize one, because that is a big part of the move behind this, to create should Question 2 be passed by the voters aiding new dispensaries, or as have traditionally been called pot shops, throughout the Las Vegas area.

My two concerns, and we’ll get into it, are number one, for education in Nevada we have serious challenges anyway. The new Nevada that Governor Sandoval and many educators envision is one where the emphasis of career Pat Hickey’s for our students are to be things like advanced manufacturing, the law, a professional industry that’s not just reliant upon tourism and basically catering to the whims and the pleasures of people who may be visiting the Las Vegas Strip.

Secondarily, concerns about work force. I’m in the construction business, and workplace safety is a real consideration for those that are involved in either alcohol or substance abuse, including marijuana. In Colorado, and I’ve been to Colorado three times in the last six months, as a result of legalization … Resulted in real workforce challenges, especially manufacturing and the construction industry, and even the gaming industry, which obviously is important to us.

Jordan Flake: Really there’s just … Education is obviously a big concern for you and the effect that legalization could have on our ability to kind of implement this new Nevada, especially from an educational standpoint, and then just kind of a constructive workforce aspect of this is do we want to have marijuana be something that’s easily accessible to and potentially affect or ability to be productive in this state.

You’ve gone to Colorado a few times and done some research on this. Let’s just kind of take the classic case when somebody comes up to you and says, “Hey, Pat Hickey, I went online and I tried to find resources about the dangers of marijuana,” and I’ve heard people say there’s just no proof that it’s any worse than alcohol. In fact there’s some indication that it’s nowhere near as alcohol. Alcohol is I heard a hundred and fourteen times more toxic than marijuana and there’s never been an overdose in marijuana, whereas alcohol kills people.

Alcohol yet is something that we regulate and something that we allow and something that people can participate in recreationally and socially. Why can’t we just regulate marijuana the same way we regulate alcohol to an extent? How would you respond to that? I’m sure you’ve heard that countless times.

Pat Hickey: Right. Right. In some ways it’s true. Abusing or overusing alcohol can certainly be detrimental to a person and so can marijuana. While it’s technically true that there aren’t instances of people that sat down and smoked so much that it killed them, as can happen in the case of alcohol, but at the same time it’s a cumulative effect. I mean the same could be said about tobacco.

Jordan Flake: Sure.

Pat Hickey: I don’t know of anyone that has sat down and smoked for thirty-five hours straight and has died as a result of it.

Jordan Flake: Right.

Pat Hickey: The health impacts, the costs to society are the result of a lifetime of a habit that is not altogether healthy for you. We have a huge challenge in this country. We seem to be having a growing tendency towards dependency. In fact, there’s an epidemic of prescription drugs that society, and Nevada in particular, is facing right now. To the point about if you regulate something and you tax it, legalize it, then don’t you take care of the problem? I would argue that prescription drugs are both legal and regulated and yet we’re abusing them horrendously.

The new marijuana, while most people who smoke marijuana do not become addicted or become a great detriment to them, but the new marijuana is far more toxic. The THC levels, the  psychoactive elements of them are far stronger than the elements … The THC of the marijuana in the sixties and seventies, sometimes seven or eight times as strong. In the form of edibles, which are now being marketed and arguably are somewhat child-friendly by the big marijuana industry, which I would say is quite akin to the big tobacco industry, that a number of decades ago thought that by marketing Joe Camel they would appeal to a younger clientele and therefore create for themselves a customer base for life … I think the same thing is going on with the marijuana industry.

 

Pat Hickey, Question 2, Las vegas, marijuana

 

Jordan Flake: You raised a lot of additional questions that I have just in your response there. First by way of clarifying what you said, the alcohol corollary is one way to argue it, but the prescription drugs is another. People would disagree about that, whether it turns out to be regulation leads to dependency of use, as in the case of prescription drugs. Just kind of having you respond a little bit more on the alcohol front, would you favor the prohibition of alcohol if you were the end all, be all, and could just make it happen?

Pat Hickey: We tried that once in our history and there were socio and economic reasons for doing that. The reality is at this point in time … I think it’s somewhere in the category of seventy percent of Americans participate in one way or another in the consumption of alcohol. It’s somewhat like eight percent for marijuana, and alcohol has a long cultural history to it as well. On the surface, yes, it’s another substance that certain people choose to enjoy. I don’t have a problem with decriminalizing possession, and while a member in the Legislature I looked for people to co-sponsor that. The problem that I have with it is the over-commercialization of it that Question 2 is going to do.

For example, not putting in the language of the initiative petition anything to restrict advertising, anything to control the potency or the THC levels, or to even ban the marketing of edibles such as gummy-bears, pot tarts, soda pot and other ice creams and things that obviously have an appeal-

Jordan Flake: It’s the Joe Camel of marijuana.

Pat Hickey: It absolutely is.

Jordan Flake: To that point, you mentioned big marijuana. We know who big tobacco is. We can get on our websites and we can identify these companies that really are big tobacco. Who is big marijuana? Do we know who these people really are?

Pat Hickey: Yes, we do, but let’s talk about Nevada, and especially with the law firm you’re certainly aware of … And the “Panama papers” recently disclosed the fact that it’s quite easy to hide behind shadow corporations in the state of Nevada, given the way that we’ve marketed ourselves in the use of resident agents and other corporations for tax reasons and others. It’s quite easy to incorporate in Nevada.

Yes, we do know a number of the people behind them, and in fact they’re not Woodstock hippies. They’re corporate folks with trust funds and others that are investing into a market that they think will be profitable. An example can be a corporation just purchased from the Bob Marley family, the old Reggae singer from Jamaica, where marijuana is somewhat of a religious icon or a custom. They just purchased the naming rights from Bob Marley for a product, Marley Naturals, for fifty million dollars, so we’re talking about corporate interests who are behind this.

Specifically, this is on the ballot in Nevada due to the support of the Marijuana Policy Project, which is a Washington DC lobbying organization, somewhat of a guild for the industry itself, funneling its investment monies, and much of the original monies were from Colorado, California and others, where the industry already has a foothold. This is big business.

We love big business in Nevada. My argument is I would much rather see the Teslas, the Switches, the Faradays, socially responsibly investing in our future rather than trying to produce a new economy where what the jobs are pot shop cashiers.

Jordan Flake: Right. I get your point. That’s interesting. I admit that I don’t know who these big players are, who the big investors are, and it does give me a little bit of pause to think about what their motives and intentions are and just-

Pat Hickey: It’s green.

Jordan Flake: Right, yeah.

Pat Hickey: And not necessarily the stuff that is rolled into the joint if you’re still smoking it.

Jordan Flake: I have no doubt that’s the case. With respect to children, my understanding when I spoke with the owner of a dispensary the other day is that here in Nevada it would be illegal to have anything shaped like a bear, anything shaped like a … Something that would identify with kids.

Pat Hickey: That’s not accurate. That’s in response to the fact that in the initiative itself there are absolutely no restrictions to the way it can be packaged, produced or marketed.

Jordan Flake: There’s not a restriction on the ability for it to be something that would be easily opened by a child?

Pat Hickey: No, no, but now they hope to put that in through regulation. You’ll see proponents like Tick Segerblom and others say we’re going to go with the Legislature and fix all of these things that the concerns have been raised. My argument would be why don’t we do this at the Legislature to begin with and really have this discussion out in front of the public and with the public involved? In other words, a person should be at the table from the business interests involved with the government entities that are going to have to regulate this, with educators who are going to have to deal with its impacts, with Metro and law enforcement. We ought to all be at the table and have this discussion.

One of the arguments, and it was made by the Colorado Governor, when he’s advised Governor Sandoval and others to say wait a few years. See how it’s working in other states before you go headlong into it. We just legalized medical marijuana, and oh, by the way, there are still some real challenges there.

Jordan Flake: Skeptics would say that that Colorado Governor is potentially saying I want to keep the money and I want to keep people coming here for a few years and keep the party going in Colorado.

Pat Hickey: Fine. As far as I’m concerned, let him.

Jordan Flake: No, this is great. This is great information. One thing that … You said so many things that I could kind of pick up and very interesting, want to go with it. One thing I think is indispensable here is you said, Pat Hickey, that you actually wouldn’t have a problem … I don’t want to put words in your mouth, with private possession of marijuana. Maybe it sounds like you’re more concerned about the corporate kind of policy effects, and not so much of the individual’s choice and right to consume. Is this a-

Pat Hickey: Right. Even Adam Laxalt, conservative Attorney General, chief law enforcement official in Nevada, has said we are not interested in arresting people for what they do in their private life. In fact, we already have de facto decriminalization. It’s been by legislative regulation reduced down to a misdemeanor. Most people, if they’re arrested, are just going to get a ticket or sent to an education class or a drug enforcement court.

Police in the state are not interested in arresting people for it, and by and large federally less than one percent, 0.7 percent in fact are in federal prisons or state prisons for that matter for mere possession of marijuana. There are still a lot of monies and crime related to selling drugs. One of the arguments against it is the black market on drug dealership, it doesn’t go away.

The Attorney General of Colorado has said we have more cartel activity than ever as a result of it, because when you legalize it, then a person’s possession of it is no longer a factor whatsoever, so drug dealers, as we’ve seen in Las Vegas, they simply innovate and they find ways to still pretend to be legal delivery services in the instance of medical marijuana, and in fact they’re not, and they’re going to pop up all over should legalization take place.

The tourist that comes down on the Strip and visits from Ohio for a convention isn’t going to want to try to go over to Maryland Parkway and find the closest pot shop. They’re going to order off an internet service that they find that says it will deliver to their hotel room, and they’re probably going to pick the cheapest one, which will in most cases probably result in them being an illegal one, since they don’t have to comply with the regulations, they aren’t taxed, and so these … Drug dealing will continue as it has in Colorado. We’re not going to get rid of it by legalizing.

Jordan Flake: Interesting. I haven’t read up on it and I don’t know the extent to which … I’m at a loss to kind of respond with counterarguments that might be out there at this point. That being said, one thing that you mentioned earlier that I want to come back to was the threat of marijuana use on the workplace. I understand that the question actually continues to protect an employer’s right to drug test their employees. If every employer, including for example Clear Counsel Law Group, my law firm, we could do this, even if it gets legalized I could still say, “Hey, employees, we’re all getting tested because this is one of the conditions of working at this job.” Doesn’t that cover that-

Pat Hickey: As written, that’s correct. Question 2 does not take away that right of an employer to still have a zero tolerance drug policy in effect, drug test. Many industries in the state in fact are required to. Certainly the gaming industry does, our largest. Anyone involved in transportation, the construction industry, which I’m a part of. I mean workers comp, and you deal with things like that … Our liability insurance dictates that you better have a zero tolerance drug policy or you’re going to see the expenses for workers comp and insurance go through the roof.

Jordan Flake: Right.

Pat Hickey: While it does not remove that, what it does is create additional challenges for human resources departments and others, because then you’re going to get litigated persons that have a medical marijuana card and say I should be able to be using it on work since it was “prescribed” by a physician. So far in Colorado, the courts have held up the rights of employers to still make those decisions and dismiss employees who have broken their policies. On the other hand the Marijuana Policy Project … This will be good business for lawyers, by the way, have promised to litigate this right and left.

Tick Segerblom said he thinks Nevada employers if legalization takes place, and he’s on record for saying this, that they’ll probably have to loosen their drug enforcement laws because everybody will be smoking it. That’s okay, but as a parent and grandparent and member of the State School Board, I don’t want that relaxed for school bus drivers, for teachers, for airline pilots, or for people that climb my forty foot ladders in my painting business.

Jordan Flake:     So we’re not quite as concerned immediately that people are going to be showing up to work high? It’s the fact that this is going to create litigation, additional policies, additional need for regulation, and just basically a ton of HR headaches essentially, along with the likelihood that as a result of that litigation the door will possibly get wider open to permit a high school bus driver, for example?

Pat Hickey: Yeah.

Jordan Flake: These are some of the concerns that are out there?

Pat Hickey: One of the problems … Look, I fully understand as an employer the problems that alcohol can bring to bear on a family, on an employee. If someone falls off one of my ladders in my painting company, we’re going to rush them to the emergency room. They’re going to be treated, but one of the first things that’s going to happen is a drug test by the hospital. If it comes out that this person was inebriated or impaired on the job because of abuse of a substance, marijuana or another drug, it’s going to impact my workers comp rates, my insurance rates. I may even be taken to court for not enforcing a drug-free policy because it endangers my fellow employees, it endangers my customers, so it presents all kinds of problems, which translate into costs.

Let me tell you something specific about our industry, the gaming industry. In Colorado I visited with the head of their Resorts Association before I briefed members on the Strip of our Resorts Association, who took a very strong stand against this. There I was told that they’re having a particular problem in their casinos in Colorado, and they’re few and far between, nothing like Nevada, but especially in their entry level positions in food and beverage departments. They are finding more and more employees, because they do drug test and they have to because it’s against federal law, and in order to keep their gaming licenses, our Gaming Control Board has been adamant to gamers in Nevada, big and small, you cannot have anything to do with this industry whatsoever, the Gaming Control Board has.

You can’t take monies that come in from the cash business. You can’t be investors yourself. You’re going to have to report under sections of money laundering any people that you bring in that you suspect are coming from a marijuana dispensary, because maybe it smells like skunk. I say that affectionately of course.

Back to the point in Colorado, they are having entry level employee problems because there are people that are applying for jobs and they’re typically eighteen to twenty-nine year olds who are now frequently using more in Colorado, number one it’s popular, legal, permissible, abundant, and they’re failing pre-employment drug screens. When that happens, then where do they get jobs and does society have to take care of them in other ways?

Jordan Flake: I have some brothers who work for the federal government and I think it’s the same story on the federal level, that’s just not going to be permissible. That’s interesting. You kind of heard it here first from Pat Hickey, that if this passes and you don’t consume marijuana, then you’re almost assured to get an entry level job. Is that right? Because they’re going to have a hard time-

Pat Hickey: That’s a good point. We in the construction business … Let’s assume the Oakland Raiders become the Vegas Raiders and the stadium is built. One of the reasons for the support of lawmakers, which I used to be one, is predicated on the notion we’re going to have a lot more construction jobs. Great. The industry has been somewhat depressed since the Great Recession. Okay, but still those guys, union or non-union, are going to be drug testing because they’re going to have to. Already the construction industry has great challenges finding qualified employees. I can tell you that personally. This is one more barrier to that.

Another problem with marijuana impairment, we haven’t scientifically come up with a test to be fair about what is real impairment. People can actually test positive because it stays in your system, in your fatty areas, unlike alcohol which is in blood and then it sort of dissipates, so you can tie one on Friday night, come to work on Monday, maybe experience a random drug test and be fine. That may not be the case with marijuana. You may be determined to be impaired even when you’re actually not, and that’s certainly not fair either.

Jordan Flake: Right, and that’s interesting, because that issue of impairment, that’s another one we could spend a very long time on that, but I know that that’s part … As a voter, part of what makes all this very hard to read and understand is that both sides are obviously going to use the data that supports their position, and I don’t blame them. That’s the reality of politics that I’m sure you know a lot about.

Some of the data that says, for example, more accidents are as a result of marijuana abuse. I’m wondering if that’s relying on data about impairment that means that yes, there was marijuana, the person that caused the accident had marijuana in his system, but it was actually from two days ago and he was just a bad driver because he was checking his cell phone. You see what I’m saying? There’s data problems that-

Pat Hickey: Of course there are, and you’re right to the point that both sides can use things selectively for their own argument. I get that, okay? That’s why I appreciate an opportunity like this where we’re talking about not just the talking points that the other side would use. We’re going to have all kinds of money for schools. Let’s talk about that, or are the edibles or DUIs going to affect us.

We’re having a more nuanced conversation here, and that’s why … Part of my argument is what’s the rush folks? Even Colorado took twelve years to go from medical to recreational. We’re trying to do it in the span of one or two years, when we still have real challenges and questions about how to regulate appropriately and fairly the medical marijuana industry, which I do not oppose and I voted for the funding mechanism for it.

 

Pat Hickey, Las Vegas, Nevada, marijuana, question 2

 

One of the real challenges is this coming under the Department of Taxation as written in Question 2 in the initiative. There are huge challenges for them to become the new super agency to have to manage this. In fact, in Colorado their counterpart met with our head of Department of Taxation and said I’m here to tell you three things. This is going to be far more complicated than you think. Are you setting up the infrastructure, the ecosystem to manage this whole new business, because make no mistake, government is going to be now in the business of marijuana even in more significant ways than we are alcohol, I’d be happy to point that out.

He said it’s going to be far more complicated than you think and it’s going to take much more time, and maybe most importantly, or it should be most important to the taxpayers, it’s going to be far more costly than you think, and it’s all front-loaded, because we’re going to have to put all this money into infrastructure, in growing a department … And if you’re in business, you know the Department of Taxation has taken fourteen months to figure out the two-sided form for the new commerce tax, and it’s still a big fat mess.

Now we’re going to ask our glorious Department of Taxation, I have friends there, to become the new Food and Drug Administration, to deal with pesticides, with labeling, with potency, with background checks, with educational programs to present to schools to warn people-

Jordan Flake: What we have is some-

Pat Hickey: We’re ill-equipped for this to go rushing into.

Jordan Flake: We have some bureaucratic heavy lifting to do and a really steep growth trajectory, but don’t you think that … Isn’t it the case that the taxation of marijuana over the course of time, the taxes that they levy on the actual purchase and consumption, et cetera, et cetera, will be a great boon to the coffers of the State of Nevada?

Pat Hickey: The proponents would certainly like it to be a great boon.

Jordan Flake: Has it not been in Colorado?

Pat Hickey: For those … Not exactly. They’ve said that. The Governor and the drug czar and others have said those things. The Governor said, “If you think this is going to pave roads and hire new school teachers, you’ve got another think coming.” Most of it is going to go into creating the infrastructure implementing. Nevada law as it’s proposed, thirteen pages, is very different from Colorado’s. At least with Colorado’s Amendment 64 a certain percentage of monies went to education first.

In the Nevada initiative, we’re third on the list. Education sort of gets the crumbs. After taxation, local municipalities, counties and cities are repaid for their expenses, then the budget of the district schools … Let me say this specifically about it. Proponents will tell you in advertisements from their studies that when all is said and done and all those back-fills have been done to government, they project Nevada will get annually twenty million dollars a year pure for education. You say that’s good, I’m a proponent for education.

As a Republican, I voted for more taxes for schools, for education, which got a lot of people un-elected as Republicans standing with Brian Sandoval on that. I’m for more money for education spent appropriately, but take that twenty millions in the context. We spend, and I know this as a member of the Budget Committee and a chair of some of the sub-committees on funding … We spend a total of $5.9 billion annually in education from all sources, federal, state, local, property taxes. That twenty million that they’re projecting is less than one-third of one percent of our overall education budget, so to say it’s a mere drop in the bucket … Even Chris Giunchigliani on PBS television admitted there’s very little money that’s going to go to schools, but they’ve been advertising-

Jordan Flake: Right. That doesn’t stop people from saying, “Smoke marijuana, help our children.”

Pat Hickey: Yeah. Think about the logic of that. I love the editorial recently by … Our rural papers keep us somewhat sane in Nevada. The Elko Daily, which is not all that unsophisticated with their billion dollar companies, Barrick and Newmont Mining out there, recently editorialized against Question 2 and said selling marijuana in order to pay for schools is kind of like selling pornography to support daycare, something to think about.

Jordan Flake: Yeah. That’s a very visceral kind of … You have a very visceral reaction to that quote for sure.

Pat Hickey: Yeah. The other side of it is though … Your more serious question was isn’t over time this going to be a boon or a help to the expenses of society? Again, I would point to both alcohol and tobacco, to the proponent’s point if we regulate and tax it, isn’t that a good thing? The reality is for both alcohol and tobacco, for every dollar in revenue that is paid, and this is from national studies, ten dollars goes out other doors to pay for related health costs, for regulation, for lost employment time because of substance problems that people have, just the whole infrastructure. Tobacco, cigarettes, and I would argue marijuana, they’re money drainers on society. They’re not money makers.

Jordan Flake: That’s interesting. I think any proponents listening to this would kind of freak out at the idea that you’re equating tobacco-

Pat Hickey: They can just chill out. Just take some Segerblom haze and it’ll calm them.

Jordan Flake: Tobacco and marijuana, equating those I think would be a big problem in the minds of some of the proponents.

Pat Hickey: Okay. I’m happy to make that comparison. The industries are comparable.

Jordan Flake: I’m talking about from anatomy, biological standpoint.

Pat Hickey: Do you think it’s any safer to smoke marijuana than it is to smoke tobacco? I think the science says no. That’s why it’s evolved into edibles and things like that, just because of that very fact. Isn’t it also true the tobacco industry argued effectively for decades that tobacco was not addictive?

Jordan Flake: That’s true. Yeah.

Pat Hickey: In fact, there’s famous scenes … I think one of Michael Moore’s movies, you know, where they’re all lined up before Congress and the committee chair is now, “Is tobacco addictive or not?” “No, it is not,” Philip Morris. “No, it is not,” Marlboro Man, all the way down the line, when in fact Congressional research found that they knew from the 1930s that tobacco was addictive.

Proponents are saying marijuana is not addictive. It’s less harmful, less addictive. I think studies will show otherwise, and I do think we should be studying it more. Anecdotally, I think many of us know people, and I do as a child of the sixties … You can say it’s addictive or not, but I have friends that smoke it four or five times a day. Now if you want to call that an addiction or just a serious habit, to me that’s all … That’s a matter of-

Jordan Flake: Yeah. Pat Hickey, I appreciate you so much coming and talking to us. I have one more question here and then I’ll let you go. You’ve been great to answer all my questions. You make the argument that Sandoval’s new Nevada should focus on getting Faradays and Teslas in here. I certainly agree with that vision for our future, but at the same time isn’t there kind of this idea that we live in Sin City, we already participate in many, many of the vices out there and we actively market that image, and it would almost seem that marijuana is just a natural fit for that industry, that if you come to the Strip you can participate in a wide array of debauchery and now legally marijuana?

Part of the boon to the economy is this idea not necessarily of just the twenty million that would go to the schools, but also the increased commercial activity based on the … This is an argument out there and-

Pat Hickey: I get that. Of the forty-two million tourists that fly in annually and the rest that drive in from SoCal, maybe sixty million-

Jordan Flake: Sixty million a weekend.

Pat Hickey: Okay. According to proponents, and I think it’s true, and according to Metro, if they want to get marijuana now they can. Frankly, I don’t care about the impact of marijuana upon tourists. I do care about its impact upon Nevadans. This is a Nevadan’s choice, whether or not we want to decide to legalize, regardless of what other states have done. In the overall, I would say I don’t think it supports the direction that we’re trying to go in. I don’t think it’s going to be helpful for students in the state, where once it’s legalized, popularized, it will become more abundant, more acceptable, frankly more used. Colorado and Washington state already proved that. It’s just common sense.

I don’t want to see more barriers. I teach in the schools. I teach at the university level. I’m on the board of a charter school. I substitute teach in the Washoe County School District. I don’t want more barriers to our students’ finding success either beyond school or once they get into the workplace, and that’s why I’m opposing it.

Jordan Flake: Great. Pat Hickey, I really, really appreciate it. I feel like we could have talked two or three times this long. You have a lot of opinions and views on this and a lot of information. Thank you so much for giving us so much of your time. I really appreciate it. Thank you for joining us for ClearCast and please let us know what you think. We could potentially do a follow-up, especially if it doesn’t pass and comes on for another-

Pat Hickey: If it doesn’t pass, I’m taking a long vacation and I’m not going to talk about this stuff-

Jordan Flake: For a long time. Thank you so much Pat Hickey.

Thanks for joining us.

 

Footnotes   [ + ]

1. Just my personal opinion, but I thought Pat was great. I wish the “No on 2” campaign would stop trying to trick people, and adopt this course. You can make good arguments against marijuana legalization without being dishonest. Watch the video!
2. I speak of the prominent ‘Yes on 2’ folks

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

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

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

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

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

A little background..

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

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

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

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

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

Thanks for watching; all the best.

-Brian

{End note}

Should Nevada Adopt California’s Tough Vaccination Law?

Transcript:

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

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

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

Taylor Waite: Right.

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

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

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

Taylor Waite: Right.

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

Taylor Waite: Yes.

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

Taylor Waite: Absolutely, but I

Jordan Flake: Share your religious beliefs.

Taylor Waite: Yes.

Jordan Flake: With your children.

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

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

Taylor Waite: Right.

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

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

Jordan Flake: Right.

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

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

Taylor Waite: Right.

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

Taylor Waite: Right.

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

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

Jordan Flake: It’s almost-

Taylor Waite: Diagnosis.

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

Taylor Waite: Yes, to prove his point.

Jordan Flake: To prove his point.

Taylor Waite: Yes.

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

Taylor Waite: Right.

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

Taylor Waite: Yes.

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

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

Jordan Flake: Right.

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

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

Taylor Waite: Right.

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

Taylor Waite: Religious exemptions.

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

Taylor Waite: Correct.

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

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

Jordan Flake: Yeah.

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

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

Taylor Waite: Right.

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

Taylor Waite: Absolutely.

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

Taylor Waite: See you.

 

Footnotes   [ + ]

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

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

6 September Update:

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

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

First, here is the video for you to enjoy:

 

 

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

circuit map

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

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

[Still noting]

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

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

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

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

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

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

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

Thanks for watching!

-Brian

Transcript:

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

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

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

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

Brian: Hi, everyone!

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

Jonathan: She just kept the card?

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

The government came along and …

Jonathan: The Federal Government …

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

Jonathan: It’s legal!

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

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

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

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

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

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

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

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

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

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

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

Kind of interesting …

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

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

Thanks so much for joining us for ClearCast.

 

Footnotes   [ + ]

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

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

22. Yes, I just did that
23. pp 18-19
24. sorry
25. This is only my opinion
Panaca, FBI Las Vegas Nevada

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

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

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

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

 

 

Transcript: The Panaca Bombing and the Subsequent FBI Investigation

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

Jordan: Oh, yeah.

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

Jordan: Oh, no! The Bundys?

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

Jordan: The Finicums?

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

Jordan: This is crazy. This is really bizarre

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

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

Greg: Right, right.

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

Greg: I hadn’t heard that!

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

Greg: Facebook profile …

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

 

Panaca, Nevada, Las Vegas, FBI

 

Greg: That’s a little …

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

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

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

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

Greg: Now they know.

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

Greg: They’re all connected.

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

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

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

Greg: Sure.

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

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

Jordan: Right, right.

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

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

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

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

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

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

Greg: Thank you!

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

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

Greg: Right, no explanation …

Jordan: No explanation, and here they are

 

Las vegas water laws

“Nudging” Our Neighbors to Obey the Water Laws

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

 

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

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

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

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

Thank you neighbor.

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

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

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

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

I know; it’s frustrating.

Can We Do Better?

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

I have a few questions before we begin:

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

Keep those answers top of mind as we continue..

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

America Loves Deterrence!

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

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

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

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

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

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

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

The Drawbacks of Deterrence

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

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

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

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

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

 

Would a “Nudge” Be Sufficient?

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

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

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

 

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

Talk about a nudge too far..

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

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

 

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

From John T. Flynn:

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

So Where Does That Leave Us?

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

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

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

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

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

 

Perhaps More Government Isn’t the Answer

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

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

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

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

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

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

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

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

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

Thanks for reading.

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

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

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

 

24.34.020 – Limitation on irrigation.

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

14.14.030 – Landscape watering restrictions.

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

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

 

14.14.040 – Golf courses.

 

 

 

Footnotes   [ + ]

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

 

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
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