Newspaper column: Lawmakers fail to rein in forfeiture abuse, again

In the past three legislative sessions bills have been pushed to rein in the pernicious practice of civil asset forfeiture, which allows law enforcement agencies to seize cash, houses, cars and other property without a criminal conviction and keep the proceeds — a practice dubbed “policing for profit” by the Institute for Justice (IJ).

In 2015 Nevada lawmakers did pass a bill that, as introduced, would have required proof of a criminal conviction or a plea deal before seizure of cash or property. By the time it was sent to the governor, who signed it, the conviction requirement was dropped. The law does say the seized property or money should be returned if charges are dropped or dismissed after a trial, but too often charges are never filed against anyone.

In 2017, as pointed out by Daniel Honchariw of the Nevada Policy Research Institute (NPRI) in an op-ed in the Las Vegas newspaper, another bill that would have required a criminal conviction or plea deal, as well as directing proceeds go to education rather than the law enforcement agency died in the Senate Judiciary Committee where state Sen. Nicole Cannizzaro was vice chair. Cannizzaro is a deputy district attorney in Clark County.

Honchariw noted that Nevada district attorney offices earned more than $250,000 through civil forfeiture in 2016 alone, and the Las Vegas Metropolitan Police Department pulled in $1.9 million. That police department had awarded Cannizzaro a “Commendation and Certificate of Appreciation.”

In the session just ended, still another bill was introduced to curb civil asset forfeiture abuse. It passed the Assembly on a vote of 34-6, but, you guessed it, it died in Cannizzaro’s committee without a vote.

Such a conflict of interest is precisely why the Nevada Constitution clearly states, “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others …”

It is a provision that has been roundly ignored to the detriment of Nevadans.

This past week the Institute for Justice released a comprehensive study showing that civil asset forfeiture programs do little to actually deter crime. “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture” looks at local crime, drug use and economic data from a variety of federal sources.

The study finds more forfeiture proceeds do not translate into more crimes solved, despite claims that forfeiture gives law enforcement more resources to fight crime.

It also found that “when local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment — a standard proxy for fiscal stress — is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.”

As IJ points out in an e-mail, Nevada police and prosecutors confiscated $11.8 million worth of property from 2015 to 2018.

One of the chief problems with civil asset forfeiture is the fact the proceedings take place in civil court, where the person whose property is being taken is not entitled to a public defender. An analysis by NPRI found that more than half of all forfeiture cases brought by the Las Vegas police involved property worth less than $1,000, well below the cost of hiring an attorney. The majority of property owners were unable to afford to contest the confiscation in court.

In fact a Humboldt County deputy once taunted a motorist from whom he’d just seized $50,000 in cash by saying, “You can try to get it back but you’re not,” later adding, “You’ll burn it up in attorney fees before we give it back to you.”

Civil asset forfeiture tortures the intent of the Fourth Amendment’s right to be free of unreasonable searches and seizures and the Fifth’s right to due process.

“The Institute for Justice’s new study shows Nevada policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, IJ’s senior legislative counsel, in a press release. “This study also confirms what experienced legislators in Nevada have long known — the state’s forfeiture laws encourage the pursuit of revenue over the pursuit of public safety and justice. Next session, the Nevada Legislature should enact comprehensive forfeiture reform and end policing for profit by sending all forfeiture revenue to the School Fund.”

The governor does have the power to call a special session.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Book offers historic perspective on the press

The premise of conservative commentator Mark Levin’s new book, “Unfreedom of the Press,” is that modern journalism has devolved into an opinionated, group-think pack of politically partisan propagandists who oppose President Trump at every turn and think he is a danger to freedom of the press.

While we don’t think that conclusion is totally valid, the book does offer a worthy historic perspective on the behaviors of the press and our presidents.

Levin notes that for more than a century the American press was unabashedly partisan, often surviving on printing contracts from the party in power when the newspapers were able to put them there. He seems to accept the notion that sometime early in the 19th Century journalists altruistically embraced the concept of objectivity.

Actually the conversion was mostly profit-motivated. It was borne of the penny press.

The newspaper business model changed from being dependent on government printing contracts and political party handouts to one of being supported by advertisers, whose customers paid the same for a pair of shoes no matter which party they embraced. So why alienate half of your potential customers with partisanship? The newspaper that delivered the highest readership fetched the highest advertising dollar.

Levin’s book does point out correctly that Trump’s often repeated and tweeted animus for the press is benign compared to past presidents.

With the ink still damp on the First Amendment President John Adams pushed through the Federal Congress a series of Alien and Sedition Acts in 1798. These acts made it a crime to “write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute …” The penalty was a fine or imprisonment for up to two years.

Under those laws more than 20 Republican newspaper editors were arrested and some were imprisoned. Among those was newspaperman James Callender who called Adams a “hideous hermaphroditical character, which has neither the force of a man, nor the gentleness and sensibility of a woman.” These details are not in the book, by the way.

Levin notes Abraham Lincoln enforced censorship during the Civil War and jailed several reporters, editors and publishers.

Newspaper column: National Popular Vote veto is right call

Nevada Democratic Gov. Steve Sisolak rightly chose to stand up for his state instead of his party and vetoed Assembly Bill 186 — the ill-advised Agreement Among the States to Elect the President by National Popular Vote.

The bill landed on Sisolak’s desk after passing the Assembly and state Senate with every Republican voting in opposition and even five Democrats in the Assembly. It would have awarded Nevada’s six electoral votes — one for each representative and senator in Congress — not according to how Nevadans vote, but those six votes would have been awarded to the president and vice president team that wins the popular vote nationally.

AB186 would have negated Nevada’s votes entirely since it would matter not for whom we vote. It would matter only how the populous states such as California and New York vote.

“Over the past several weeks, my office has heard from thousands of Nevadans across the state urging me to weigh the state’s role in our national elections,” Sisolak wrote in a press release explaining his first veto of the legislative session. “After thoughtful deliberation, I have decided to veto Assembly Bill 186. Once effective, the National Popular Vote Interstate Compact could diminish the role of smaller states like Nevada in national electoral contests and force Nevada’s electors to side with whoever wins the nationwide popular vote, rather than the candidate Nevadans choose.”

The Founders chose to elect presidents via an Electoral College rather than by popular vote to further the Federalist system in which each state is sovereign. They gave smaller states extra votes for each of its senators, just as every state sends two senators to Washington no matter its population. Until the 17th Amendment in 1913 changed the process to a popular vote, state Legislatures elected senators so the states could protect their sovereign powers from usurpation by Washington.

The National Popular Vote has already been approved in 14 states and the District of Columbia. That represents 189 electoral votes. The measure would be binding, though probably face a legal challenge, once states representing a majority of 270 out the 538 electoral votes join the compact.

Sisolak went on to say, “I recognize that many of my fellow Nevadans may disagree on this point and I appreciate the legislature’s thoughtful consideration of this important issue. As Nevada’s governor, I am obligated to make such decisions according to my own conscience. In cases like this, where Nevada’s interests could diverge from the interests of large states, I will always stand up for Nevada.”

Approval of the National Popular Vote probably would have turned Nevada into a state ignored by the candidates for president. On the day of the veto, Democratic presidential candidate Bernie Sanders was campaigning in the Silver State. A baker’s dozen of the 20-odd Democratic presidential contenders have already visited here, some multiple times and more visits are scheduled.

One proponent of the measure was Battle Born Progress. Its executive director, Annette Magnus, was quoted by various news media as saying, “We are disappointed that Governor Sisolak chose this bill, of all bills this session, to be his first veto. AB186 was a chance for Nevada to move towards the principle of every individual person’s vote for President mattering in national elections. This compact agreement would have eliminated the perception that one’s vote doesn’t really count because one lives in a ‘red’ state or ‘blue’ state, which serves as a source of disenfranchisement for many voters.”

Similar bills came up in the Nevada Legislature in 2009 and 2017, but failed to pass.

If the National Popular Vote had been in force in 2000 Nevada’s then four electoral votes would have been enough to flip the election to Al Gore, even though George W. Bush won the popular vote in Nevada by 49.5 percent to 46 percent, winning every county except Clark. Bush won the electoral vote 271 to 266, but lost the popular vote by 540,000 nationally.

The instigation for the current push is the fact that in 2016 Donald Trump won the Electoral College vote by 304 to 227, though Hillary Clinton won the popular vote by 2.9 million. Clinton won by 4 million votes in California.

This country was not founded as a democracy. It was founded as a republic … if we can keep it, as someone once said. The governor’s veto is a move in the right direction to keep it.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: State should not violate one’s moral convictions

And you thought the 13th Amendment prohibited involuntary servitude.

This past week Nevada’s Democratic Attorney General Aaron Ford joined a coalition of 23 states and local governments in filing a lawsuit against the Trump administration’s Department of Health and Human Services (HHS) rule aiming to protect health care providers from having to provide services contrary to one’s “religious beliefs or moral convictions” — such as abortion, contraception, sterilization, assisted suicide or transgender hormone treatment or surgery.

The so-called Final Rule was announced in early May by Roger Severino, director of the Office for Civil Rights at HHS. He said in a statement that the rule “provides enforcement tools to federal conscience protections that have been on the books for decades” and “does not create new substantive rights.”

Severino added, “Finally, laws prohibiting government-funded discrimination against conscience and religious freedom will be enforced like every other civil rights law.”

HHS Office of Civil Rights Director Roger Severino. (Getty Images via National Catholic Register)

Ford said in a statement accompanying the announcement of Nevada’s role in the litigation, “The Department of Health and Human Services’ rule would allow individuals and entire institutions to deny lawful and medically necessary care to patients, even in cases of emergencies,” though it is difficult to conjure what constitutes an “emergency” abortion, assisted suicide of transgender treatment.

Nevada Attorney General Aaron Ford

The crux of the lawsuit is money.

The lawsuit and Ford’s press release note that noncompliance with the 440-page Final Rule could result in the denial of federal funding. The lawsuit alleges this could amount to hundreds of billions of dollars each year.

Ford’s statement further argues “the Final Rule, which will take effect in July 2019, would undermine the delivery of health care by giving a wide range of health care institutions and individuals a right to refuse care, based on the provider’s own personal views. … The Rule makes this right absolute and categorical: no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse.”

The Wall Street Journal noted at the time the Final Rule was announced that it is an outgrowth of President Trump’s 2017 executive order that included a section on “conscience protections.” The order was seen as a direct response to some Obama administration orders.

“Several religious groups, for example, battled the Obama administration over the Affordable Care Act’s mandate that employers and insurers provide no-cost contraceptive coverage for employees,” the newspaper reported.

Kevin Theriot, vice president of Alliance Defending Freedom, told the National Catholic Register earlier this month that those who have conscientious objections to procedures are not discriminating.

“Our clients that have conscientious objections to participating in abortion or participating in, for instance, sex-change therapy or any of those kinds of things, they don’t discriminate based upon a person’s sexual orientation or their sex or anything like that,” Theriot was quoted as saying. “What they’re saying is they shouldn’t be forced to participate in a procedure that violates their convictions. They won’t do that procedure for anybody, so there’s no discrimination going on at all. What’s going on is acknowledging our time-honored practice here in America of respecting rights of conscience.”

As an example of the problem, the Catholic publication noted an example of a New York nurse who was forced to participate in an abortion procedure despite her conscientious objection as a Catholic.

“I’ll never forget the day my supervisor ignored the law and forced me to participate in an abortion. I still have nightmares about that day,” the nurse said in a statement. “As an immigrant to America because of the freedom and opportunity I saw here, today I’m hopeful that HHS’ new rule will help make sure that no other nurses or health care professionals will be forced to go through what I did and that their rights will be protected.”

Theriot noted that the Supreme Court has repeatedly found that each person determines his or her own conscience, not the government.

And you thought the First Amendment prohibited Congress from abridging the free exercise of religion.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Trump immigration plan merits consideration

Trump in Rose Garden introduces immigration revamp plan.

Minutes after President Trump announced in the Rose Garden this past week a plan to revise the priorities under which immigrants are accepted into the United States, Democrats and media outlets were calling his proposal dead on arrival, having no chance of being approved by Congress.

More’s the pity, Trump’s plan, though short on detail, outlines a path that would boost the economy and in the president’s words “establishes a new legal immigration system that protects American wages, promotes American values, and attracts the best and brightest from all around the world.”

Trump’s proposal would leave unchanged the number of people allowed to legally immigrate to this country — 1.1 million a year — but would drastically alter the criteria for entry. He said fully 66 percent of immigrants are added solely because they have a relative in the U.S. Apparently just about any shirttail relative qualifies. Trump would limit relatives to spouses and children.

The president then noted that only 12 percent of legal immigrants are selected based on skill or merit, unlike Canada, Australia and New Zealand, which use merit as the chief criteria for 60 to 75 percent of their legal immigrants.

“The biggest change we make is to increase the proportion of highly skilled immigration from 12 percent to 57 percent, and we’d like to even see if we can go higher,” Trump said, being interrupted by applause. “This will bring us in line with other countries and make us globally competitive.”

Trump said that brilliant foreign graduates of our finest colleges every year are forced to return to their home countries because they have no relatives here to sponsor them. He said we should want exceptional students and workers to stay, flourish and thrive in America.

“As a result of our broken rules, the annual green card flow is mostly low-wage and low-skilled,” Trump said. “Newcomers compete for jobs against the most vulnerable Americans and put pressure on our social safety net and generous welfare programs.”

Should we be inviting people to come here who will be a drain on our economy or who will be a boost?

Trump’s answer to that question, “America’s immigration system should bring in people who will expand opportunity for striving, low-income Americans, not to compete with those low-income Americans.”

His plan, reportedly spearheaded by Trump’s son-in-law and adviser Jared Kushner, would create a points-based selection system. Points would be awarded for being a younger worker who could contribute years of revenue for our social safety net. Points would be awarded for having an existing job offer, having a valuable skill, an advanced education and having a plan to create jobs. Also, priority would be given to higher-wage workers who would be self-sufficient.

“Finally, to promote integration, assimilation, and national unity, future immigrants will be required to learn English and to pass a civics exam prior to admission,” Trump insisted.

As for the current problem with illegal immigration and smuggling of contraband, Trump proposes investing in technology that would scan 100 percent of traffic crossing our borders and continue building miles of barriers along the border, saying 400 miles of this barrier should be completed by the end of next year.

The president, again without addressing specifics, called for changing our current law, which provides incentives for smuggling women and children, noting that 65 percent of all border-crossers this year were either minors or adults traveling with minors. He also called for quickly reuniting unaccompanied children with their families in their home countries.

“We must also restore the integrity of our broken asylum system,” Trump stated. “Our nation has a proud history of affording protection to those fleeing government persecutions. Unfortunately, legitimate asylum seekers are being displaced by those lodging frivolous claims — these are frivolous claims — to gain admission into our country.”

He said asylum abuse strains our public school systems, hospitals and shelters, draining funds that should go to helping Americans in poverty, the elderly and at-risk children.

The president’s critics were quick to fault him for not addressing the millions who are already here illegally, as well as those who were brought here illegally as children, the so-called Dreamers. That is easy enough to address. Let them apply for legal entry under the new point-based system.

Trump’s proposition merits serious consideration, not partisan dismissiveness.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Opinion says two-thirds vote not needed to extend taxes

Never tell the boss no.

This past week the Legislative Counsel Bureau, the Legislature’s attorneys, told Democratic Gov. Steve Sisolak and the Democratic majorities in both the state Senate and Assembly what they wanted to hear: Extending taxes scheduled by law to be reduced does not require a two-thirds vote of all lawmakers, just a simple majority.

In the 21-member Senate, Democrats are one shy of the 14 votes required to meet the two-thirds threshold established by a constitutional amendment approved by voters in 1994 and 1996, which states “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”

The governor pledged in his State of the State speech at the start of the legislative session that his $8.9 billion general fund budget contained no new taxes, but it does include a proposal to keep at the current rates two taxes that are scheduled to be reduced in June.Gov. Steve Sisolak gives State of the State speech. (R-J pix)

The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have. A tax on vehicle registration was also approved with the caveat that it would go down in June, the start of the fiscal year.

The scheduled reduction in the modified business tax would reduce annual revenues by $48 million a year, while the vehicle tax revenue would drop by $21 million a year — a total of $138 million for the two-year budget. 

Continuing that burden on taxpayers sure sounds like it “creates, generates, or increases” public revenue. It certainly generates.

But the LCB is telling lawmakers, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”

Not binding? How can something approved by a two-thirds majority be undone by a simple majority? 

Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.

Gov. Sisolak said he appreciated the decision. 

“Regardless, I am continuing conversations with legislative leaders of both parties about supporting my budget that would keep funding at our current levels in order to help fund our schools and educators, provide health coverage under Medicaid expansion for our families, and feed our seniors through Meals on Wheels,” his statement said. “As this legislative session comes to a close, I look forward to working with the Legislature to pass a budget that reflects our core values – making sure that Nevada’s economic recovery reaches every family, that our schools prepare every child to reach their potential, and that our health care system is there for every Nevadan who needs it.”

But several media outlets quoted Senate Minority Leader James Settelmeyer as calling the opinion “a work of legal fiction.”

He also said he does not believe any member of the Senate Republican caucus would break ranks and give the Democrats the one vote they would need to reach the two-thirds majority threshold. He also said that passage of the tax extensions by a simple majority would doubtlessly end in litigation.

“Unfortunately, it means that the majority party has decided to not try to reach compromise or discussions on issues, and unfortunately going down this road just guarantees legal challenge,” Settelmeyer was quoted as saying.

The Nevada Supreme Court did rule in 2003 that taxes could be raised by a simple majority vote if the lawmakers failed to adequately fund education as required by the Constitution, but that opinion was reversed in 2006 when the court ruled, “The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.”

If lawmakers try to continue to assess those two taxes without a two-thirds majority, it certainly should end up in court.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Not enough money to cover school spending plans

Penny wise and pound foolish?

Democratic Gov. Steve Sisolak announced recently that he is donating his $163,000-a-year salary to the state’s poorest public schools.

“I asked the people of Nevada for the chance to lead this state for many reasons, chief among them being the opportunity to improve educational outcomes for every child in every classroom in the state,” Sisolak wrote in a letter to the Nevada State Board of Education. “To show my commitment to this goal, the First Lady and I are donating my net state salary back to public education. It is my sincere hope that with these donations, I can begin to fulfill my promise to our educators, families, and children and make a positive impact on our public schools.”

According to news accounts, the money would be split among the state’s 416 poorest schools — less than $400 per school.

This is the same governor who declared in his State of the State speech that he would increase the cost to build new public schools and playgrounds.

“This session I will work to return prevailing wage to public construction projects  — as it was before the 2015 session — including, and most importantly, for our children’s schools,” Sisolak declared. “Not only do prevailing wage laws support highly skilled workers in Nevada, they guarantee our children are learning in well-constructed, high quality educational facilities. Let’s do this.”

(R-J pix)

(R-J pix)

In pursuit of that largesse for state construction unions, the Assembly at the end of April passed Assembly Bill 136, which would reverse a modest rollback passed in 2015 that reduced the prevailing wage for public school and college construction to 90 percent of the prevailing wage and raised the threshold for covered projects from $100,000 to $250,000.

The prevailing wage law requires that workers on public construction jobs be paid no less than the “prevailing” wage in the area where the work is being done. The wage rate is set by the state Labor Commissioner based on a survey of contractors. The survey is so time consuming that in reality only union shops bother to comply, meaning the prevailing wage is the highest union wage.

Every Assembly Republican present voted against AB136.

Assemblyman Gregory Hafen, a Pahrump Republican, was quoted by the Carson City newspaper as saying that the state’s school districts have estimated AB136 would add $35 million to the cost of building public and charter schools. Alexis Hansen, a Sparks Republican, said it would add 25 percent to the cost of new schools.

Strangely, Nevada System of Higher Education originally said the bill would cost it $18.5 million over the next two years, but later withdrew its fiscal note during testimony before the Assembly Ways and Means Committee, saying it was too difficult to forecast what the market will be in the next two years.

Should the bill pass the Senate and be signed as promised by the governor it will snatch funds from schools that could have been spent on such things as Sisolak’s proposed 3 percent salary hikes for all state teachers, plus 2 percent merit raises in each of the next two years.

The Clark County School District is already complaining that the funding earmarked for the district is inadequate to cover those proposed raises.

The outlook was further clouded this past week when the Economic Forum, which by law sets the amount of money the Legislature may spend during the next biennium based on current taxes, said a paltry $42.8 million more than previous estimates will be available to spend. That’s less than 0.5 percent of the $8.8 billion general fund budget.

Gov. Sisolak spun the news by boasting that the report means Nevada has the “fastest growing economy in the country and continues to outpace the rest of the nation in terms of job growth.”

Assembly Republican Leader Jim Wheeler said the Economic Forum forecast will put the governor’s no new taxes promises to the test.

“In its simplest terms, the Governor and the Democrats are trying to spend more money than is available,” Wheeler said in a statement put out by the Republican leadership. “How will Democrats keep their promise to teachers and unions while still balancing the state budget?”

Republican Assemblywoman Robin Titus remarked, “Simply put, there is not enough money to go around.”

It is time for our lawmakers to make some tough decisions and not be penny wise and pound foolish.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.