Editorial: Time to stop police from extorting cash and property

The appalling Constitution-bending practice by which law enforcement agencies have for years seized private property under the presumption it is the product of criminal activity without ever having to go the bothersome effort of actually, you know, obtaining a criminal conviction continues apace.

The latest ignoble example of what is called civil asset forfeiture comes to us from Texas in the case of Leonard v. Texas.

The U.S. Supreme Court declined to hear the case because the attorneys for Lisa Olivia Leonard, whose $200,000 in cash was confiscated when her son was detained during a traffic stop, were arguing the seizure violated the Due Process Clause of the Constitution, but they had failed to make that argument before the lower courts. So, it was not yet ripe for the high court.

The Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …”

Humboldt County deputy with K-9 and $50,000 in seized cash.

In April of 2013, a police officer stopped James Leonard for a traffic infraction, and, during a search a safe was found in the trunk. Leonard told police the safe belonged to his mother. After a search warrant was obtained, police found the safe contained $201,100 and a bill of sale for a home in Pennsylvania.

Texas filed for civil forfeiture of the money, claiming it was the profits from illegal drug sales, though Lisa Leonard said the money was from the sale of a house. A trial court and an appellate court did not believe that, even though no one was convicted of a crime.

Though he agreed the court should not yet hear the case, Justice Clarence Thomas wrote a six-page commentary on the evils of civil asset forfeiture.

Justice Thomas said of civil asset forfeitures, “This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. …In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver.”

Nevada has its own record of suspect civil asset forfeiture cases. Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists.

In one case a dashboard camera caught a deputy seizing $50,000 from a man who claimed he won it at a casino. “You’ll burn it up in attorney fees before we give it back to you,” the deputy said. The man was threatened with having his car impounded, too, if he did not cooperate and waive his rights.

Some states have passed laws to curb the extortionate practice by police by requiring that an actual criminal conviction before assets may be taken.

During the 2015 legislative session Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden sponsored a bill that would have established just such a requirement, but by the time the bill came out of the legislative sausage grinder it merely required police agencies to report their confiscations to the state and specifically declared convictions would not be necessary.

No one has deigned to try to challenge civil asset forfeitures this year in Carson City, but someone should.

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.

UPDATE: On Monday state Sen. Don Gustavson filed Senate Bill 358 that would require proof of a criminal conviction, a plea agreement or an agreement by the parties before property could be taken under a civil asset forfeiture.

Newspaper Column: Prevailing wage law change will cost taxpayers

A fool and his money are soon parted.

In Nevada those fools are the taxpayers who keep electing Democrat majorities to send to Carson City to pick their pockets.

Assembly Bill 154, sponsored by a raft of Democrats, would roll back the minor headway made just two years ago to cut the cost of public works. It would raise the cost of construction of university and public school buildings by reimposing the so-called prevailing wage on more projects.

Prevailing wage laws require that workers on public construction jobs to 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.

AB154 would require that contractors doing any university or public school work exceeding $100,000 pay prevailing wage, down from the current $250,00. It also requires the full prevailing wage instead of the current 90 percent.

Las Vegas Democratic Assemblyman Chris Brooks, chief sponsor of the bill, testified before the Assembly Government Affairs Committee recently and actually claimed the bill would save money.

“Research shows that prevailing wage laws lead to more workforce training, a more educated and experienced workforce, safer construction and government savings because workers depend less on social programs,” Brooks said. “Prevailing wage laws are better for the economy because they support the middle-class incomes that boost consumer spending. Eliminating the prevailing wage does not save money and can actually cost more money.”

Warren Hardy of the Associated Builders and Contractors contested this allegation of savings by pointing out that a contract for construction of a middle school in Clark County received a low bid of $2.7 million during a brief period a couple of years ago when the prevailing wage was dropped for schools, but when the prevailing wage was reinstated the low bid jumped to $3.6 million.

In 2000, A.D. Hopkins wrote a series of articles for the Las Vegas Review-Journal, outlining the profligacy of the prevailing wage law. One article stated: “Nevada’s prevailing wage law costs taxpayers about $2.3 million extra on every new public high school being built in Clark County, according to a database analysis by the Review-Journal.”

In 2012, Geoffrey Lawrence penned a column for the Nevada Policy Research Institute website on Nevada’s expensive prevailing wage law. He noted how a plumber in Mesquite might expect to be paid less than $20 an hour for most jobs, but, if it is a public works project by a state or local government entity, that same plumber would be paid, by law, more than $70 an hour.

Lawrence’s piece pointed out that an NPRI analysis estimated that prevailing wage requirements cost Nevada taxpayers nearly $1 billion extra over 2009 and 2010. The state’s biennial general fund budget is less than $7 billion. “That’s why prevailing wage reform needs to be at the top of the agenda for the Nevada Legislature in 2013,” Lawrence wrote.

NPRI in its “Solutions 2015” handbook estimated the law required the state, cities, counties, school districts and other government entities to pay 45 percent higher wages than necessary — a cost to taxpayers of $1 billion a year.

For a little historical perspective, the prevailing wage law is a vestige of the Jim Crow era and is modeled on the Davis-Bacon Act of 1931 that was expressly intended to keep cheaper Southern black laborers from getting jobs on public works projects.

The discriminatory nature of prevailing wages persists to this day.

Hardy of the Associated Builders and Contractors said during testimony on the bill that his organization does not have a problem with federal prevailing wage law but does object to the way the wage is calculated in Nevada, which results in unions setting the prevailing wage.

“The overwhelming majority of small businesses, the overwhelming majority of minority-owned businesses, the overwhelming majority of women-owned businesses are non-union,” Hardy said. “These folks are not union contractors. So what you’re saying is, we need to build laws, which is what the prevailing law does in this state quite frankly, to incent the hiring of union contractors. That disenfranchises small businesses, women- and minority-owned businesses because they are overwhelmingly nonunion contractors.”

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: Trump right to rein in EPA water grab

Ditch would be under federal control under WOTUS.

President Trump this past week signed an executive order telling the Environmental Protection Agency and the Army Corps of Engineers to review the so-called waters of the United States (WOTUS) rule created under the Obama administration, which attempted to usurp dominion over every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

“We’re going to free up our country and it’s going to be done in a very environmental and positive environmental way, I will tell you that,” Trump said. “[We will] create millions of jobs, so many jobs are delayed for so many years that it’s unfair to everybody.”

Trump ordered the federal agencies to review a 2006 opinion by the late Justice Antonin Scalia, that reduced the scope of the act by defining “waters of the United States” as only permanent bodies of water and not the occasional result of rainfall.

Nevada was one of 23 states to file suit over the WOTUS rule. The Supreme Court ruled this past summer that property owners had a right to sue in court over permitting decisions. The federal agencies had contended property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

But litigation is expensive and time consuming. Heading off the designation to begin with is a better solution.

Nevada Attorney General Adam Laxalt, whose office pressed the federal lawsuit on behalf of the state, said of Trump’s executive order: “The waters of the United States rule proposed by the former administration would drastically expand federal authority over state and local waters, and I am encouraged that this administration is taking action to ensure that the executive branch’s decisions are in line with congressional intent. We are pleased to see that this administration recognizes what the majority of states have already recognized — that federal rules like the waters of the United States rule must be interpreted consistently with the intent of Congress, and that specific needs of individual states must be taken into account by federal agencies like the EPA.”

In December 2010, the Hawkes Co. applied for a permit to mine peat on property in Minnesota. More than a year later the Army Corps denied the application, saying the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away.

In the opinion of the court, Chief Justice John Roberts pointed out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”
Roberts also noted that a specialized individual permit on average costs $271,596 and 788 days to complete. He said the permitting process can be “arduous, expensive, and long.” He left out futile, since the process never ends.

The Western Congressional Caucus said the EPA spurned public comment and input from the states in the rule making process, “This is nothing short of a federal seizure of state waters, to the point where very few, if any, water bodies will be left for the states to manage. Water rights, economic growth, and local conservation efforts will suffer. Instead of working with the local officials and state agencies who know their needs the best, citizens will have to depend on a disconnected federal bureaucracy for management of our most precious natural resource: our water.”

Trump is to be applauded for reining in the overreach of the EPA and Corps in grabbing powers never envisioned by Congress.

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.

Stop messing with the clocks already!

On Sunday morning we are required to spring our clocks forward an hour, if we wish to remain in synch with the rest of the nation, get to church and work on time and tune in at the proper time to our favorite radio and TV programs.

Mankind once worked from can till cain’t, as my ol’ grandpappy used to say — from the time you can see till the time you can’t — and farmers and ranchers like grandpappy still do. But to make the trains run on time, we strapped ourselves to the clock, even though the clock is uniform and doesn’t change when the amount of daylight does.

Ol’ Ben Franklin, while serving as ambassador in France, accidentally figured out that this out-of-synch arrangement was somewhat uneconomical when he mistakenly arose one day at 6 a.m. instead of noon and discovered the sun was shining through his window. “I love economy exceedingly,” he jested, and proceeded to explain in a letter to a local newspaper how many candles and how much lamp oil could be saved by adjusting the city’s lifestyle to the proclivities of the sun.

Franklin observed:

“This event has given rise in my mind to several serious and important reflections. I considered that, if I had not been awakened so early in the morning, I should have slept six hours longer by the light of the sun, and in exchange have lived six hours the following night by candle-light; and, the latter being a much more expensive light than the former, my love of economy induced me to muster up what little arithmetic I was master of, and to make some calculations, which I shall give you, after observing that utility is, in my opinion the test of value in matters of invention, and that a discovery which can be applied to no use, or is not good for something, is good for nothing.”

Then he did the math, and exclaimed, “An immense sum! that the city of Paris might save every year, by the economy of using sunshine instead of candles.”

Thus, in 1918 in a effort to be more economical during the war, Congress borrowed from Europe the concept of daylight saving time — springing clocks forward during the summer and back in the winter. From shortly after Pearl Harbor until the end of the Second World War, the nation was on year-round daylight saving time, or war time, as it was called.

National Geographic photo

Moving the clock forward in summer might well save a few kilowatt-hours in lighting, but in states like Nevada that savings is more than made up for with increased air conditioning costs and the fuel used to drive about more after getting off work.

One recent study found that springing forward causes enough sleep deprivation to cost the U.S. economy $435 million a year. The New England Journal of Medicine found an association between that one hour loss of sleep from daylight saving time and an increase in car accidents, as well as a 5 percent increase in heart attacks in the first three weekdays after the transition to daylight saving time, while an Australian study found an increase in the suicide rate.

The changing of clocks twice a year is really a bit of a nuisance and, dare I say, a waste of time — or at least that is what I said in a newspaper column a nearly a year ago.

In a futile gesture to end the charade, the state Legislature in 2015 passed Assembly Joint Resolution No. 4 that proposes to make Pacific Daylight Saving Time year-round.

“WHEREAS, Congress also found and declared that ‘the use of year-round daylight saving time could have other beneficial effects on the public interest, including the reduction of crime, improved traffic safety, more daylight outdoor playtime for children and youth of our Nation, [and] greater utilization of parks and recreation areas …’” AJR4 reads in part, also noting possible “expanded economic opportunity through extension of daylight hours to peak shopping hour. ”

It passed both the Assembly and Senate and was enrolled by the Secretary of State.

Changing to year-round daylight saving time might not save electricity, but it could increase productivity and prevent car wrecks.

Alas, as with everything else, the power to fix this lies in Washington, though I can’t seem to find this enumerated power in my copy of the Constitution. Perhaps it is outdated.

In another glaring example of the efficiency and sincerity of our elected officials, this past fall, as we were being required to fall back and reset our clocks again, the morning newspaper was reporting that no one in Washington had ever heard of AJR4.

AJR4 concludes by beseeching Congress to amend The Emergency Daylight Saving Time Energy Conservation Act of 1973 and allow each state to opt out, the same as Arizona and Hawaii have opted out, but rather than sticking with standard time, AJR4 would adopt Pacific Daylight Savings Time all year. Why should it get dark at 4:30 p.m. in the winter anyway?

Don’t hold your breath waiting for Washington to figure out what time it is. They don’t know what century it is.

A version of this posting has appeared here for the past two years.

Newspaper column: Bill proposes to turn Nevada into a ‘sanctuary state’

Return with us now to those thrilling days under the Articles of Confederation when every state made up its own rules regarding immigration and naturalization of foreigners, back before the Constitution gave Congress the sole authority to establish such rules.

In arguing for enactment of the Constitution in Federalist Paper No. 42, James Madison wrote, “The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States.”

Now along comes Democratic state Sen. Yvanna Cancela of Las Vegas, along with a host of fellow scofflaw Democrats, with a bill in Carson City that would turn Nevada into a “sanctuary state” by forbidding law enforcement cooperating with federal immigration authorities in identifying persons in their custody who are in this country illegally.

Senate Bill 223 states: “No state or local law enforcement agency, school police unit or campus police department shall: (a) Use money, facilities, property, equipment or personnel of the agency, unit or department to investigate, interrogate, detain, detect or arrest a person for the purposes of immigration enforcement …”

Cancela was quoted by the Reno newspaper as saying the bill “limits the ability to participate in immigration enforcement as far as what’s under federal purview.”

She went on to say, “The uncertainty that (President) Trump has created because of his executive orders, because of his political – frankly – hate speech around them has created a lot of problems not only for local law enforcement, but individuals. I think it’s our responsibility as legislators to provide as much clarity not only to law enforcement but families who are affected by those policies.”

Currently, under a program called 287(g), cooperating police departments that take a suspected illegal immigrant into custody notify U.S. Immigration Customs and Enforcement agents and they have 48 hours to pick up that person. In the past, ICE has been notoriously lax in showing up within those 48 hours, but, according to numerous press accounts, this is no longer the case under the new Trump presidential administration.

Under SB223 this would come to a screeching halt, despite the fact all lawmakers are required to take an oath of office swearing to “support, protect and defend the Constitution and Government of the United States … that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding …”

In reaction to the bill, Senate Republican Minority Leader Michael Roberson released a statement to the press, saying, “This ‘Sanctuary State’ bill is, without question, the most recklessly irresponsible piece of legislation that I have witnessed during my six plus years in the Nevada Legislature. This Democrat bill will undoubtedly result in violent criminals, who have no business being in our state, to be released back into our communities to wreak more havoc on Nevadans.”

One of the arguments made by sanctuary proponents is that illegal immigrants are loath to report crimes for fear they will risk deportation and this increases criminal activity. But state and local law enforcement currently does not ask those who report crimes about their immigration status, only those who are in custody, those most likely to continue criminal activity if ICE is not given the opportunity to deport them because they pose a danger to the entire community — illegal immigrants included.

To add potential impact on state taxpayers to real danger of criminal activity, it should be noted that President Trump has threatened to withhold federal funds from sanctuary cities, and presumably sanctuary states.

He signed an executive order directing government officials to identify federal money that can be withheld to punish sanctuary cities.

So what could this mean for the “sanctuary state” of Nevada should SB223 pass in a Democrat majority Legislature?

The state’s total budget for the past two years was $26 billion. Fully $9 billion of that came from federal funds, according to the state budget.

Passing SB223 could have serious consequences to the bottom line of the state of Nevada, but that has never stopped the self-righteous Democrats, has 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: Why separation of powers must be enforced in Nevada

Assembly Bill 121 is Exhibit A in the case for finally enforcing the state constitutional mandate for separation of powers, such that each branch of government may provide checks and balances to prevent the abuse that results when power is concentrated in too few hands.

The bill — introduced in Carson City by Democratic Las Vegas Assemblyman Steve Yeager — would wipe out much of the progress made in 2015 in public employee collective bargaining reforms.

Yeager, who also happens to be a Clark County public employee, would erase a provision in the law that prohibits paying union officials from public coffers for time spent doing union business. It also negates a provision blocking pay increases after a union contract has expired and before a new one is inked. It further requires any new contract to be retroactive to the expiration date of the previous contract — greatly reducing incentives for union members to accept a lower offer.

State Sen. Heidi Gansert sits in the Legislature. (R-J pix)

State Sen. Heidi Gansert sits in the Legislature. (R-J pix)

The bill is redistributionism. Taking from the taxpayers to line the pockets of public employee union members.

Yeager is employed by the Clark County Public Defenders Office, whose union contract expires in June.

The state of Nevada operates under the Dillon Rule, which limits the power of local governments to those expressly granted by the Legislature, meaning local governments are basically subsidiaries of the state and employees of those local governments, such as Yeager, essentially are serving in the executive branch of state government.

Which brings us to Article 3 of the Nevada Constitution, which 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, except in the cases expressly directed or permitted in this constitution.”

Therefore, Yeager, while currently serving in the Legislature, is also a member of the executive branch and, since he works in the court system, he is an employee of the judicial branch — a triple threat!

Such ignoring of explicit requirements of the state Constitution has been ongoing for decades and currently there are several lawmakers whose day jobs are with a local government.

In 2011, the libertarian-leaning Nevada Policy Research Institute’s legal arm, the Center for Justice and Constitutional Litigation, filed suit against state Sen. Mo Denis because he also was an employee of the state Public Utilities Commission, and had been for 17 years.

Denis immediately resigned from his $56,000-a-year state job in order to maintain his part-time $10,000-every-other-year state senator post, and a judge declared the lawsuit moot.

A week ago CJCL filed a similar suit against state Sen. Heidi Gansert, who holds a $210,000-a-year in pay and benefits public relations job with the University of Nevada, Reno.

 “Gansert’s continued employment in the state’s executive branch, as Executive Director of External Relations for the University of Nevada, Reno, puts her in direct violation of Nevada’s Separation of Powers clause, now that she is also serving in the state senate,” CJCL Director Joseph Becker said in a press release reporting on the litigation. “As a senator, she can simply not continue her employment in the executive branch without violating this clearly worded constitutional provision.”

In a statement Gansert called the suit meritless and said, “Nevada has an unambiguous precedent of legislators taking time off from their jobs in higher education to serve the people of the state.”

Of the unambiguous Separation of Powers clause, Becker said it was designed to preserve the independence and integrity of each branch, and having a legislator make decisions that might directly benefit employees of another branch creates a clear conflict of interest.

As witness AB121.

Thomas Jefferson wrote in “Notes on the State of Virginia” in 1784: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. … An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

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.

Turning Nevada into a ‘sanctuary state’ could have severe consequences

ICE agents at work in Las Vegas. (R-J pix)

ICE agents at work in Las Vegas. (R-J pix)

Be careful what you ask for, because you just might get it — good and hard.

Democratic state Sen. Yvanna Cancela of Las Vegas, along with a number of fellow Democrats, has introduced a bill that would turn Nevada into a “sanctuary state” by forbidding law enforcement cooperating with federal immigration authorities in identifying persons who are in this country illegally.

Senate Bill 223 states:

No state or local law enforcement agency, school police unit or campus police department shall:
(a) Use money, facilities, property, equipment or personnel of the agency, unit or department to investigate, interrogate, detain, detect or arrest a person for the purposes of immigration enforcement, including, without limitation:
(1) Inquiring into or collecting information about the immigration status of a person.
(2) Detaining a person on the basis of a hold request, except where there is an independent finding of probable cause.
(3) Responding to a notification request or transfer request.
(4) Providing or responding to a request for nonpublic personal information about a person, including, without limitation, information about the person’s home address, work address or date of release from custody.
(5) Making an arrest on the basis of a civil immigration warrant, except where there is an independent finding of probable cause.

Etc. Etc. Etc.

Under a program called 287(g) local cooperating police departments, which includes Clark County, that take a suspected illegal immigrant into custody notify U.S. Immigration Customs and Enforcement agents and they have 48 hours to pick up that person.

According to an account in the Las Vegas newspaper, in the past that rarely happened, but in recent weeks ICE officers are at the jail almost every day, apparently stepping up enforcement of immigration laws under the Trump administration.

Under SB223 this would come to a screeching halt.

But Tump has threatened to withhold federal funds from sanctuary cities. He signed an executive order directing government officials to identify federal money that can be withheld to punish “sanctuary cities.”

So what could this mean for the “sanctuary state” of Nevada?

The state’s total budget for the past two years was $26 billion. Fully $9 billion of that came from federal funds, according to the state budget.

Passing SB223 could have serious consequences to the taxpayers of Nevada, but that has never stopped the self-righteous Democrats, has it?