Newspaper column: Courts can’t tell lawmakers to hike education funding

An education advocacy group has filed suit on behalf of nine parents of Nevada public school children demanding that the courts force lawmakers to adequately fund K-12 education — declaring that the students “inhabit one of the lowest-rated and worst-performing state school systems in the United States.”

The suit, filed in the 1st Judicial District Court in Carson City, by Educate Nevada Now asks the court to find that the level of funding of public education in the state has fallen short of the constitutional requirement to “ensure a basic, uniform, and sufficient education for the schoolchildren of this state.”

The 37-page lawsuit cites a litany of woes — including the fact Nevada ranked 50th out of the 50 states and the District of Columbia in Education Week’s most recent Quality Counts report’s Chance-for-Success Index and has the third largest class sizes and ranked first in the U.S. in class size growth according to the National Education Association.

The suit further noted that in the 2019 National Assessment of Educational Progress (NAEP) only 34 percent of Nevada fourth graders were proficient in math and only 31 percent were proficient in reading. Both rates were even lower for eighth graders.

Nevada holds “places near the top of every ‘bad’ list, and the bottom of every ‘good’ list, in myriad rankings of public schools systems and student performance across the country,” the suit states.

The Nevada Supreme Court in the case of Guinn v. Legislature in 2003 held that Nevada students have a basic right to a public education under the state constitution, the suit states. In that case the court decided education funding had to take precedent over a constitutional amendment requiring a two-thirds majority to raise taxes.

Justice Bill Maupin was the only dissenting vote in the case, citing separation of powers, “Again, we are powerless to order co-equal branches of government to exercise individual acts of constitutional discretion. Our authority depends upon whether extraordinary relief is warranted and in exercising our authority to grant relief, we would be restricted to an interpretation of the Constitution, utilizing recognized tenets of statutory construction.”

The current lawsuit neglects to point out that the justices three years later overturned Guinn v. Legislature, largely for the very reason cited by Maupin.

The Educate Nevada Now suit further quotes the state constitution, which says, “The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district […].” 
The quote is cut off before the part that says such schools must be open “at least six months in every year …”

The suit further notes that the constitution states that the Legislature shall appropriate education funds “the Legislature deems sufficient …” That would seem to dictate that lawmakers are to determine what is “sufficient” rather than
the courts.

The litigation comes despite the fact Nevada lawmakers in 2015 passed the largest tax hike in history, $1.5 billion, largely to fund education, and lawmakers this year approved 3 percent raises for teachers. It also comes while the Clark County teachers union is preparing to circulate petitions seeking to increase sales and gaming taxes by $1.4 billion a year.

The problem with Nevada public education is not so much a lack of funding as it is a deficiency in accountability.

At one time Nevada high school students were required to pass a proficiency exam in order to graduate. That was dropped in 2018.

With the 2015 tax hike came a requirement that third graders who could not read at a certain proficiency level would be held back to repeat the third grade. That has since been dropped.

At one point 50 percent of teacher evaluations were based on pupil achievement growth. That has been cut to 15 percent.

Amanda Morgan, an attorney for Educate Nevada Now, told the Las Vegas newspaper after the suit was filed that the intent of the litigation is to prod lawmakers into addressing education funding.

“The court won’t say you need to put x amount of dollars into education,” Morgan was quoted as saying. “But it will say, ‘What you’re doing right now doesn’t meet your constitutional obligation. Go fix it.’”

The constitution seems clear when it says education funding is whatever “the Legislature deems sufficient …”

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: No primaries would be better than blanket primaries

An initiative petition filed two weeks ago would, if successful, make political parties in Nevada largely irrelevant.

The proposal filed by Reno Republican state Sen. Ben Kieckhefer seeks to change the June primary elections to a blanket system in which all candidates, regardless of party affiliation, would be voted on by all registered voters no matter their party affiliation or no party affiliation. The top two vote getters would advance to the General Election in November, no matter their party affiliations, if any.

A bill that would have done the same thing failed to get a vote in the 2017 legislative session.

This proposed change applies to statewide constitutional offices and other partisan races, such as the state Assembly and Senate and local political offices, as well as U.S. House and Senate elections. The presidential nomination process would still be determined by party caucuses.

Currently the state conducts primaries for the two major parties — Republican and Democrat — in which only registered voters who are members of those parties my participate. The winner in each party advances to the November ballot. Up until 2015 if one party did not post a candidate in a given race, the top two vote getters of the other party would advance to November. The Legislature changed the law so that only the winner of the party primary advanced. This resulted in some races being uncontested, though third party candidates such as the Independent American Party and the Libertarian Party of Nevada could and did file for the General Election.

In fact, in one Assembly race in 2016 a Libertarian candidate garnered nearly 40 percent of the vote in the General Election.

The blanket system — sometimes pejoratively called the “jungle primary” system — apparently would require all candidates to be on the primary ballot, leaving voters only two choices in November.

Kieckhefer told the online Nevada Independent news outlet, “I’ve always had a fundamental problem with the idea we have taxpayer-funded elections, but citizens are required to join a private organization to participate. That always tasted wrong to me.”

According to data posted by the Secretary of State’s office 29 percent of Nevada’s active registered voters are either nonpartisan or registered as members of a minor party. Democrats account for 38 percent and Republicans 33 percent.

Frankly, we agree with the state senator about the unfairness of the state funding only the primaries of the two major parties. The whole concept of partisan party politics is to facilitate persons of like-minded political persuasions to organize and select candidates that promise to advance a given philosophy of governance.

We’ve never been in favor of forcing all taxpayers, including nonpartisans and members of other parties, to pay for the primaries the state conducts for just two parties. Let them pay for their primaries or caucuses or smoke-filled backrooms.

A blanket primary system makes it more difficult for the average voter to weigh the various candidates based on past allegiances and opens the opportunity for Fifth Column candidates to claim to be what they are not. Faux Democrats or faux Republicans could flood the ballot and split the vote for a party’s real favorite. It also lessens the visibility and potential for third party candidates who likely would be eliminated in the primary.

There is currently talk of South Carolina Republicans being encouraged to vote for socialist Bernie Sanders in that state’s primary to keep the Democratic presidential contest in turmoil. This is reminiscent of Rush Limbaugh’s self-styled “Operation Chaos” in 2008 in which he encouraged Republicans to vote for Hillary Clinton over Barack Obama to weaken Obama’s chances in November.

Politics is messy. Blanket state-run primaries create a different mess. One problem is called splintering, in which one party has perhaps only two candidates in the primary and another has a dozen office seekers, increasing the likelihood of one party winning both General Election slots.

Adding to the potential tumult, in 2019 lawmakers approved a law allowing people to register to vote on the day of an election.

For this proposal to advance backers must gather nearly 100,000 valid signatures by November with about 25,000 coming in each congressional district. If successful, the initiative would be presented to the 2021 Legislature, which would have 40 days to approve it. If not, it would appear on the 2022 ballot.

No primary would be better than a blanket primary. Let the parties choose their candidates as they see fit and at their own expense. That is freedom of association, and gives voters clearer choices.

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: Homeland Security concerned about illegals driving legally

The acting head of the Department of Homeland Security (DHS) has ordered all the agencies under his purview to review the ramifications of state laws that allow illegal aliens to obtain driver authorization cards and restrict sharing data with immigration enforcement authorities.

Nevada is one of those 14 states.

Lawmakers passed Senate Bill 303 in 2013 and it was signed by Gov. Brian Sandoval. Ostensibly, the bill was intended to reduce the number of uninsured motorists on the roads, because it is difficult to obtain car insurance if one can’t legally drive.

But the bill, now ensconced in law as NRS 481.063, also dictates that the DMV “shall not release any information relating to legal presence or any other information relating to or describing immigration status, nationality or citizenship from a file or record relating to a request for or the issuance of a license, identification card or title or registration of a vehicle to any person or to any federal, state or local governmental entity for any purpose relating to the enforcement of immigration laws.”

This apparently was intended to assuage illegal aliens of the notion that obtaining a driver authorization card — which allows one to drive in Nevada but cannot be used for such things as boarding an aircraft — would subject them to actual enforcement of existing immigration law.

A March article in The Nevada Independent reported that there were at the time 49,000 active driver authorization cards issued in the state and another 3,500 learners’ permits for the cards.

What prompted Chad Wolf, the acting director of Homeland Security, to issue his memo this past week was the passage of similar laws in New York and New Jersey recently, according to The Daily Caller.

“Accordingly, I am instructing each operational component to conduct an assessment of the impact of these laws, so that the Department is prepared to deal with and counter these impacts as we protect the homeland,” Wolf’s memo read. Those components include U.S. Customs and Border Protection, the Coast Guard and the Transportation Security Administration.

After passage of the illegal alien driver authorization law in New York numerous county clerks pointed out that such a policy could pave the way for voter fraud, identity theft and even terrorism.

“Laws like New York’s greenlight law have dangerous consequences that have far reaches beyond the DMV,” Homeland Security spokeswomen Heather Swift was quoted as saying. “These types of laws make it easier for terrorists and criminals to obtain fraudulent documents and also prevent DHS investigators from accessing important records that help take down child pornography and human trafficking rings and combat everything from terrorism to drug smuggling.”

Wolf’s memo ordered agencies to determine what DMV information is currently available and what the consequences would be if that data were restricted.

“Never before in our history have we seen politicians make such rash and dangerous decisions to end all communication and cooperation with the Department of Homeland Security law enforcement,” The Daily Caller further quoted Swift. “The Secretary is prepared to take every measure necessary to ensure the safety and security of the homeland and we look forward to the recommendations of our agents and officers in the field.”

Las Vegas newspaper columnist Victor Joecks pointed out in an April 2018 column that the DMV uses the same forms for those getting a driver authorization card as for those getting a regular driver’s license. At the bottom of the form is a voter registration application. The form asks whether the applicant is a citizen and old enough to vote, but requires no proof whatsoever. Neither does the Secretary of State’s office, which processes the voter registration.

Highway safety concerns are important, but state abrogation of federal immigration law and voter registration integrity is hardly justifiable.

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: All provisions of state Constitution must be adhered to

The lawyers for Nevada’s lawmakers appear to have finally stumbled onto a provision of the state Constitution worthy of being adhered to.

In mid-November the state Department of Conservation and Natural Resources (DCNR) announced that four-term Las Vegas Democratic Assemblywoman Heidi Swank had been selected to head up the Division of Outdoor Recreation, which had been created by the 2019 Legislature and funded with $657,000 during the current two-year budget. The salary of the new director has not been disclosed. The new unit is tasked with promoting outdoor recreation businesses and conservation of public lands.

The agency told The Nevada Independent — a donor-funded, web-based news outlet — that there were dozens of applicants for the job and several people were interviewed.

DCNR’s Director Bradley Crowell was quoted as saying, “Heidi’s extensive professional and legislative experience combined with her vision for the new Division are the perfect match to ensure outdoor recreational opportunities reach every corner of and every community in Nevada.”

Swank chaired the Assembly Natural Resources, Agriculture and Mining Committee in each of the past two sessions. She was quoted as saying, “I look forward to bringing all of these entities together to further Nevada’s outdoor recreation economy and get more Nevadans outdoors.”

Nevada Legislature

Two weeks later, an attorney for the Legislative Counsel Bureau (LCB), the lawmakers lawyers, approached Swank and basically said: Not so fast.

It turns out there is a section of the state Constitution that reads: “No Senator or member of Assembly shall, during the term for which he shall have been elected, nor for one year thereafter be appointed to any civil office of profit under this State which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people.”

There is a similar provision in the U.S. Constitution barring members of Congress from being appointed to any civil office they created while in office.

Such provisions are intended to prevent lawmakers from creating lucrative sinecures for themselves. Swank voted for the bill creating the new executive branch job.

“I can’t blame anyone in this,” Swank resignedly told The Independent. “It was a bit of bad luck.” She did not say whether she now plans to seek re-election.

Now that the LCB has discovered this prohibition in the state Constitution, perhaps there are a couple of other sections they should reconsider.

For example, there is the provision approved by Nevada voters in 1994 and 1996 amending the 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 …”

But during the spring legislative session the LCB — after stating otherwise in 2011, 2013 and 2015 — opined that a two-thirds vote was unnecessary if a bill delayed a scheduled reduction in tax rates — in this case the modified business tax. The bill continued the then-current tax rate, which was scheduled to be cut on July 1, though it failed to garner a two-thirds vote in the state Senate. Senate Republicans are currently suing to overturn the action as unconstitutional.

Then there is the section of the state Constitution that reads, “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, except in the cases expressly directed or permitted in this constitution.”

But the LCB has determined that public employees can serve in the Legislature so long as their “public employment does not exercise any sovereign functions appertaining to another department of the state government.”

“Any function” became “sovereign function,” whatever that means. In some years, as many as 20 percent of lawmakers have been public employees able to hold life or death sway over the budgets of their bosses.

James Madison wrote in Federalist Paper No. 47, “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The state Constitution spells out these prohibitions in unambiguous terms and for a good reason. The flippant misinterpretation of the language results in abuse of power.

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: CCW holders should not undergo background checks, too

It appears that a bill passed earlier this year to require background checks prior to the sale or transfer of firearms from one private party to another is being misinterpreted to apply also to Concealed Carry Weapon (CCW) Permit holders, who are currently exempt from such background checks when buying from a licensed firearm dealer.

First reported by The Nevada Independent, a donation-sponsored online news outlet, Department of Public Safety (DPS) a month ago sent a letter to all licensed firearm dealers telling them CCW holders will have to now undergo a background check. Senate Bill 143 changed the law to require dealers to conduct background checks for private sales.

The letter does not cite any verbiage in the law but rather relies on testimony before a joint meeting of the Senate Judiciary and Assembly Judiciary committees in February to support its conclusion.

The pertinent testimony involves questions to the attorney for the gun-grabbing, Michael Bloomberg-financed Everytown for Gun Safety, which pushed a narrowly approved voter referendum in 2016 to require background checks prior to private gun transfers. Because the initiative required the background checks to be conducted by the FBI and the FBI refused to do so, it was deemed unenforceable.

SB143 fixed that flaw by requiring a state agency to conduct such background checks after submission by licensed firearm dealers, who may charge an unspecified fee for doing so.

In the committee testimony, Everytown attorney William Rosen was asked by Assemblywoman Jill Tolles whether CCW holders would be required to undergo background checks under the law. Rosen replied, “That is correct.”

Tolles followed up, “It makes sense that someone who is licensed for a CCW and shows his or her card should not be subject to additional checks. Why would that not apply to private sales?”

Rosen basically replied that CCW permits last for five years and there is a possibility a disqualifying event such as a restraining order might not get into the system to revoke the CCW. Might?

No lawmaker voiced an agreement with Rosen’s contention that this is what the new law requires. Only Rosen’s contention was relied on to show legislative intent.

As a result, Don Turner, president of the Nevada Firearms Coalition, sent a letter to DPS challenging the interpretation of the law. “A review of SB143 provides no basis for this determination by DPS. Moreover, the minutes of the Joint Meeting of the Senate Committee on Judiciary and the Assembly Committee on the Judiciary have no legal weight or authority and were never incorporated into the statute itself,” Turner wrote.

Turner noted that the statue requires a licensed dealer to treat the private transaction as if the dealer was conducting the sale from its own inventory. A licensed dealer is allowed to accept the CCW permit in lieu of a background check.

He argues the state cannot override federal law as it pertains to background check exemptions for CCW holders and calls on the agency to change its directive to firearm dealers.

The Nevada Independent notes that the change in background check requirements would especially burden rural counties — pointing out for example that 15 percent of individuals in Nye County and 13 percent of the people in Storey County are CCW holders.

DPS should change its interpretation of the law to one that relies on what the law actually says rather than the vague wishes and whims and speculation of East Coast gun grabbers.

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.