Editorial: Is minimum wage hike constitutional?

This past week Gov. Steve Sisolak signed Assembly Bill 456 into law fulfilling a promise to raise the minimum wage in Nevada.

AB456 raises the minimum wage 75 cents per hour each year as it climbs from the current $7.25 per hour for those receiving company health insurance and $8.25 for those not insured until it reaches $11 or $12 per hour in 2024.

“Keeping working Nevadans stuck in a 10-year-old minimum wage erodes the real value and purchasing power of the wages of hardworking Nevadans,” Sisolak was quoted as saying by the Las Vegas newspaper before signing the bill. “But with this bill, hundreds of thousands of working Nevadans will see a difference in their paycheck — extra hard-earned money they can use to put food on the table, save for their kids’ education, and re-invest into the economy.”

Yet, some will go from minimum wage to no wage as jobs are eliminated and new jobs fail to be created. Others may see their hours cut to compensate for the higher wage cost. One study found the average low-wage worker in Seattle lost $125 a month because the minimum wage was raised to $15 an hour.

Further, a recent study released by the National Bureau of Economic Research found “robust evidence that minimum wage hikes increase property crime arrests among teenagers and young adults ages 16- to-24, a population for whom minimum wages are likely to bind.”

The study projects that raising the minimum wage to $12 an hour nationally would result in approximately 231,000 additional property crimes, costing the nation $1.3 billion. Raising the minimum wage to $15 an hour would generate more than 410,000 additional property crimes and $2.4 billion per year in additional crime costs.

“We conclude that increasing the minimum wage will at best be ineffective at deterring crime and at worst will have unintended consequences that increase property crime among young adults,” the study authors concluded.

Additionally, raising the minimum wage will increase the cost of goods to consumers. A Cato Institute analysis in 2012 found that a 10 percent increase in the U.S. minimum wage raises food prices by up to 4 percent. The governor just signed a bill increasing the minimum wage in Nevada by 45 percent in five years.

But don’t start spending that minimum wage check just yet. There is a possibility it could be legally challenged.

In 2006 the minimum wage and how it would be raised was established by Nevada voters through a constitutional amendment. Arguably, it would take another constitutional amendment to change that, not a mere change in law.

The amendment set the minimum wage at $5.15 for employees with health insurance and $6.15 for those without. It dictates that raises would match any increase in the federal minimum wage or increase in the consumer price index, whichever is greater, though any CPI increase would be limited to 3 percent. AB456, in the first year, amounts to an increase of 9 percent for the insured and more than 10 percent for uninsured.

The constitutional amendment states how the minimum wage is to be raised and that does not include permission for the lawmakers to raise it by some other means.

In fact, in 2015 the Legislative Counsel Bureau (LCB), the lawmakers’ lawyers, opined, “Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment.”

The ever-compliant LCB reversed that opinion in 2017.

In the law there is a Latin maxim that states “expressio unius est exclusio alterius,” which means the expression of one thing is the exclusion of the other.

So, if the Constitution dictates just how the minimum wage is to be increased, lawmakers may not cherry pick another means to do so.

This should end up in court.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

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.

Editorial: File suit to uphold two-thirds vote requirement for taxes

So, the governor is confident that the extension of the modified business tax rate will withstand a legal challenge, according to the Las Vegas newspaper.

“We’ve got legal opinion from LCB (Legislative Counsel Bureau) that, you know, a simple majority is what’s needed,” Gov. Steve Sisolak was quoted as saying this past week. “I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”

Be prepared to move back, governor, by nearly $100 million in your budget for the next two years — the budget that promises 5 percent raises for teachers.

Republicans have promised a legal challenge if the business tax were extended without a two-thirds majority of both houses as prescribed by the Constitution. The tax extension passed the Senate on a party line vote of 13-8, one vote shy of two-thirds.

Voters in 1994 and 1996 amended the Nevada Constitution to state “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 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.

But the compliant LCB told the majority Democratic lawmakers and the Democratic governor, “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.”

The bill clearly “generates” revenue that two-thirds of the lawmakers in 2015 said would decrease as of July 1, 2019.

The state Constitution is not something to tamper with. Republicans should take it to court and make the Democrats abide by the rules, even if it means a special session would have to called. In fact, the GOP lawmakers should go directly to the state Supreme Court for an opinion that would be binding, unlike the LCB opinion “that future decrease or expiration is not legally operative and binding yet …”

Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary. So, governor, when do you trust your attorneys? Now or then?

Republican lawmakers should join forces with those who will be paying the tax — Nevada businesses — and sue at the earliest possible convenience to defend the state Constitution. Randi Thompson, a lobbyist for the National Federation of Independent Business, has told the Las Vegas newspaper the organization is looking at the option of filing suit. Perhaps, the conservative Nevada Policy Research Institute can join the fray. The more the merrier.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Gov. State Sisolak, right, talks to reporters. (R-J pix)

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.

Editorial: Public employee pensions now shrouded in secrecy

Gov. Steve Sisolak has signed into law a bill that will make it impossible for the public and even elected officials to act as a watchdogs and catch abuses in the taxpayer-funded Public Employees’ Retirement System (PERS).

Senate Bill 224, sponsored by Democratic Sen. Julia Ratti, declares much of the information about state and local government retirees confidential. Only the names of pensioners and pension amounts would be public records. Such vital information as the last employer, years of service credit, the retirement date and whether the benefit is a disability or retirement benefit are all confidential.

The bill passed both the state Senate and Assembly largely along party lines, with only a handful of Democrats voting in opposition.

Ironically, when Democratic Gov. Sisolak was a Clark County commissioner, he used public records to expose abuse of county firefighter overtime pay and sick leave. According to the Las Vegas newspaper, Sisolak spearheaded reforms that resulted in an 80 percent drop in sick leave among fire department battalion chiefs.

Without the ability to analyze the information made secret by SB224 the public will not be able to tell whether government retirees are drawing excessive pensions.

PERS costs $2 billion a year and the taxpayers are on the hook for $40 billion in unfunded liabilities.

According to an analysis by American Enterprise Institute, the average Nevada public employee pension is $64,000 a year, the highest in the nation, while the average Social Security annual benefit is $16,000. Currently more than 1,500 Nevada public employee pensioners are drawing more than $100,000 a year.

The law that set up PERS states: “It is the policy of this State to provide, through the Public Employees’ Retirement System: A reasonable base income to qualified employees who have been employed by a public employer and whose earning capacity has been removed or has been substantially reduced by age or disability.”

Yet, in a court case seeking PERS records, Nevada Policy Research Institute’s (NPRI) attorney Joseph Becker observed that there are retirees in their 40’s collecting six-figure disbursements from PERS, while still earning income from other sources. “Only through the publication of name, pension payout and related data can the public better understand how the system works and the legislative purpose be effectuated,” Becker wrote.

During hearings on SB224, NPRI’s policy director, Robert Fellner, noted that a tip to California’s fraud hotline resulted in the system recovering more than $200,000, causing CalPERS to release a statement praising “the great value of the public’s assistance in CalPERS’ efforts to protect the state pension system from fraud, waste, and abuse.”

Fellner also noted the importance of disclosing whether PERS payments are for disability or retirement. A Los Angeles television station, using public records, discovered that a police officer who was drawing a disability pension from one city was working full-time as a police officer for another agency.

SB224’s backers argue revealing the names of pensioners might expose them to identity theft and fraud. The Nevada Supreme Court dismissed that claim in a 2013 ruling, saying, “Because PERS failed to present evidence to support its position that disclosure of the requested information would actually cause harm to retired employees or even increase the risk of harm, the record indicates that their concerns were merely hypothetical and speculative. Therefore, because the government’s interests in nondisclosure in this instance do not clearly outweigh the public’s presumed right to access, we conclude that the district court did not err in balancing the interests involved in favor of disclosure.”

Now, the secrecy is embedded in law and the public is blindered.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.


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.

Editorial: Beware of changing state water law

A controversial bill that would have drastically changed state water law apparently has been scuttled for this session of the Legislature.

Gov. Steve Sisolak said no consensus on the bill could be reached by the time the session ends this week and state water regulators should put together a panel to study the matter prior to the next session, according to The Nevada Independent.

Opponents of Assembly Bill 30 said it would have eroded the foundation of our current water law that protects senior water rights holders and the environment as well.

Existing law requires the State Engineer, who is assigned the task of regulating water appropriations, to reject an application for a permit to take water if there is no unappropriated water at the source or if the proposed use conflicts with existing water rights in wells, springs or streams. AB30 would have allowed the State Engineer to authorize a new water use if an adequate monitoring, management and mitigation plan — known as 3M — is reached.

Kyle Roerink, executive director of the Great Basin Water Network, which has been fighting for years an effort by the Las Vegas water district to pump groundwater from valleys in Eastern Nevada, said the bill was just a way for deep pocketed interests to get water.

“We are pleased at AB30’s demise and committed to working with all stakeholders on policy,” Roerink said. “But we will never compromise on the pipeline or any nefarious attempts to undermine the law. No part of the state should be viewed as a water colony or sacrificial lamb for another part of Nevada.”

He explained the problem with the bill as written, “The real key distinction is that, if you’re avoiding a conflict that means a conflict never happened, but if you are eliminating a conflict that means you’re allowing the state engineer to grant a permit when a conflict exists and say, well, we’ll grant the permit and you go ahead and you start and we’ll figure out how to eliminate the conflict, but go ahead. Start pumping.”

Efforts to change the water law have been ongoing since the state Supreme Court in 2015 ruled that the state water law says the State Engineer “shall reject” an application for use of water when the use “conflicts with existing rights.” The court also said there was insufficient evidence that mitigation efforts would eliminate the threat to the existing rights holders.

The case involved an application for water rights for a molybdenum mine in Eureka County. Just this past week the mining company and local ranchers announced an agreement to allow the mine to access water in return for a $1 million payment, pending approval by the State Engineer.

That’s how such conflicts should be settled. Let the free market decide the value and distribution of water from the original owners to others.

(GBWN pix)

Meanwhile, any panel that works on this topic should keep in mind that estimates about available water resources and the effectiveness of mitigation efforts are difficult to pen down.

For example, after the State Engineer granted the Las Vegas water authority permits for groundwater in several valleys in Eastern Nevada by creating a 3M plan, a state judge tossed the permit, saying, “There are no objective standards to determine when mitigation will be required and implemented. The Engineer has listed what mitigation efforts can possibly be made, i.e., stop pumping, modifying pumping, change location of pumps, drill new wells … but does not cite objective standards of when mitigation is necessary.”

In a recent op-ed in the Reno newspaper, Mark Butler, the retired superintendent of Joshua Tree National Park, and Alan O’Neill, the retired superintendent of Lake Mead National Recreation Area, said the use of 3M plans jeopardize fragile ecosystems that pronghorn, bighorn sheep, mule deer, desert tortoises and other creatures call home.

“We are not opposed to the state engineer permitting water and seeking to modernize water law,” the retirees wrote. “However, we are opposed to the state engineer unilaterally permitting water projects that do not adequately account for natural recharge and that fail to consider the intrinsic value of leaving water in the ground for the benefit of future generations.”

Be cautious of making changes to water law that could affect current rights holders and lead to the draw down of water tables that might take centuries to replenish — long after vegetation and wildlife have disappeared.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.