Newspaper column: Nevada press shield law protects bloggers

Unlike too many jobs in this country there is no such thing as a licensed journalist, but a Carson City judge has found such in the penumbra of Nevada’s press shield law.

Normally those in the press don’t seek any privilege not accorded any other citizen, but by the very nature of the job — showing up at fires and car crashes, attending public meetings, poking into nooks and crannies of government and society, asking questions and quoting people — there needed to be a means to keep the press independent and not be dragged into court hearings or depositions every other week.

That’s the purpose behind the state press shield law. It prohibits giving the third-degree to the Fourth Estate. Otherwise, there would be considerable disincentive for people to talk to reporters, because reporters could be forced to testify about them or reveal their identities.

Sam Toll

The law says, “No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceeding …”

The devil apparently is in the details.

Earlier this month District Court Judge James Wilson Jr. ordered Sam Toll, creator of The Storey Teller blog, to disclose his sources for a story about Storey County Commissioner and brothel owner Lance Gilman, who is suing Toll for defamation. Toll reported that sources told him the commissioner does not actually live in his district.

Toll wrote in a recent op-ed for the Las Vegas newspaper, “Gilman, one of the wealthiest men in Northern Nevada, insists he lives in a double-wide trailer behind the swimming pool at the Mustang Ranch brothel rather than the home he owns in Washoe Valley. Evidence and interviews I conducted suggest otherwise. In order to be a Storey County commissioner, you must reside in the district you represent.”

The judge concluded Toll is a reporter, but he failed to “provide facts, legal authority, or argument that the Storey Teller is a periodical …” Hair splitting. The law says periodical, which is a journal appearing periodically.

Instead of a press, a blogger uses a computer. It can be argued that Benjamin Franklin’s “Poor Richard’s Almanack” was America’s first blog — self-written, self-printed, self-promoted. Print on paper or print in the ether. It is a distinction without a difference.

The First Amendment guarantee of freedom of the press was extended to radio and television without hesitation.

The judge further concluded Toll is not a reporter for a newspaper and did not join the Nevada Press Association until August 2017 and thus must reveal sources obtained prior to then.

Toll is not a reporter of or for the Press Association. He is a member. It is not a licensing body.

The state Supreme Court has recognized the shield law’s important function for the citizenry.

Justice Myron Leavitt opined in a case in 2000 in which a plaintiff tried to force a Las Vegas newspaper reporter to reveal his sources: “Nevada’s news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions.”

Clark County judges have twice interpreted the shield law differently. In 2014 two judges ruled that the Mesquite Citizen Journal and its reporter, “although an online only news media source,” were protected by the shield law from being forced to reveal communications and records related to a series of stories about the local water district. In 2016 a judge denied demands to review a film maker’s unpublished notes and video interviews with a witness in a criminal case, ruling the press privilege also extended to the film maker.

Despite those rulings, Judge Wilson granted Gilman’s motion to compel Toll to reveal sources of information prior to August 2017 and gave the parties until April 12 for discovery to be completed.

For his part, Toll has said he is willing to be jailed before he will reveal sources. “Integrity is the most precious currency we have as journalists. Without it, the public would not entrust us with the information we need to help protect society from wrongdoers,” Toll wrote.

Let’s hope this current case is appealed and results in a similar outcome to that of the Mesquite Citizen Journal and the film maker.

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: Same-day voter registration invites fraud

Progressives are always clamoring to make it easier to vote. To that end Democratic state Sen. James Ohrenschall of Las Vegas has introduced Senate Bill 123 that, among other things, would allow people to register to vote on Election Day.

“The purpose of SB123 is to make it more feasible for people to be part of the government of ourselves, by making it easier to register to vote, and offer a few more options to vote during the early voting period,” Ohrenschall said during a recent hearing on his bill, according to The Nevada Independent.

Election officials testified that the bill will cost millions of dollars to implement and take years to adequately change the system to comply.

Additionally, Clark County Registrar Joe Gloria warned, “If same-day registration process is handled with a paper form, other than signing an affidavit affirming that the voter has not already voted in the election, there can be no guarantee that the voter has not registered to vote at another location on Election Day. Not until after the election will clerks have the ability to identify that the voter has not voted at another site, which is problematic.”

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, calls same-day voter registration a prescription for fraud and says it does almost nothing to increase voter participation.

“Allowing a voter to both register and vote on Election Day makes it nearly impossible to prevent duplicate votes in different areas or to verify the accuracy of any information provided by a voter,” von Spakovsky writes. “Election officials are unable to check the authenticity of a registration or the eligibility and qualifications of a registrant by comparing the registration information to other state and federal databases that provide information not just on identity, but also on citizenship status and whether the individual in question is a felon whose voting rights have been suspended. Since Election Day registrants cast a regular ballot, even if election officials determine that the registration was invalid after the election, they have no means of discounting the ballot.”

He notes that Wisconsin allows same-day registration and after a comprehensive investigation of voter fraud in the 2004 election, the Milwaukee Police Department concluded that the “one thing that could eliminate a large percentage of fraud or the appearance of fraudulent voting in any given Election is the elimination of the On-Site or Same-Day voter registration system.”

Von Spakovsky also points out that Oregon dumped its same-day registration law after a cult tried to take over a county by planning to bring in large numbers of nonresidents, many of them homeless, to flood the polls with ineligible voters.

Kansas Secretary of State Kris Kobach said at a Heritage Foundation meeting in 2013 that voters can make up names and addresses and go from poll to poll to vote, and there is no automated system that can stop such nefarious deeds.

While Election Day registration invites fraud, it does little to actually increase turnout.

In 2008, according to von Spakovsky, four of the eight states with same-day registration reported lower turnout than in 2004. The state with the largest decrease in turnout in 2008 was Maine, which also has Election Day registration.

“It has always been abundantly clear that, after four decades of making it easier to vote and having turnout decline (among most groups) except for elections driven by fear and anger,” wrote Curtis Gans of the Center for the Study of the American Electorate in 2008, “the central issue governing turnout is not procedure but motivation. These new procedures, except for Election Day registration for some states, don’t help turnout and pose some discrete dangers for American democracy.”

In Nevada one can already register online or at the DMV or any county elections office.

The risks of fraud due to Election Day registration far outweigh any convenience for those too lazy or disinterested to register to vote by the deadline before each election.

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: Do not shroud public employee pensions in secrecy

Some lawmakers in Carson City are pushing a bill that basically declares that it is none of your business how your tax money is spent. Senate Bill 224 would make the names of recipients of pensions through the Public Employees’ Retirement System secret.

The first glimpse at the kinds of duplicity this bill invites is the fact that two of the three chief sponsors of the bill — state Sens. David Parks and Joyce Woodhouse — are currently drawing six-figure pensions from PERS, a fact that would not be known if this bill were already in law.

At a recent hearing on the bill, the third sponsor, state Sen. Julia Ratti, argued that PERS benefits are set aside for the public employees’ future use and asked, “At what point is public servant no longer a public person?”

The answer is: When that person no longer obliges the public to guarantee that pension. Right now the taxpayers are on the hook for $40 billion in unfunded liabilities, when standard accounting practices are used to make the calculation. Never mind that the taxpayers paid half of the pension contributions for that government worker retiree and all of the rather princely salary that public employee used for their half of the contribution.

Perhaps the most egregious argument made in the hearing is that the bill would cut the cost of litigation. It was PERS itself that created that cost by trying to skirt court rulings that stated the names of public pensioners and their pension amounts are public records under the Nevada public records law, which states that its purpose is to foster democratic principles by providing taxpayers with access to public records.

After the state Supreme Court ruled the records were public, PERS changed the way it kept the records, prompting Chief Justice Michael Douglas to suggest PERS had “gone out of its way to violate the spirit of the law.”

The bill’s backers are still arguing that revealing the names of pensioners might expose them to identity theft and fraud. The state Supreme Court dismissed that claim in its 2013 ruling by 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.”

During a hearing on SB224, Robert Fellner, policy director for the Nevada Policy Research Institute, countered that the publication of public pension information has enabled the public to correct abuses of such systems. A tip to California’s fraud hotline resulted in the system recovering more than $200,000, Fellner noted, 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.”

In another example, Fellner noted that the importance of disclosing names was highlighted when a Los Angeles television station 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.

“This type of abuse will be impossible to detect if SB224 becomes law and makes secret the names of those drawing tax-funded public pensions,” he testified, adding that 20 states maintain online public pension databases.

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 previous court case NPRI’s 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,” he wrote.

Lawmakers should reject SB224’s effort to blinder the public. If not, Gov. Steve Sisolak — who once told a newspaper columnist, this one, that public employee contracting should be transparent and that the public employee pension system was overdue for reform — should veto 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.

Does anybody really know what time it is?

It is time to cast off our chains and free ourselves from slavery to the clock.

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 such as 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 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.

In a probably futile gesture to end the charade, the state Legislature a couple of years ago 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, AJR4 passed, the morning newspaper reported 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?

Get used to it. Washington is in another century, much less a different time zone.

Versions of this tome have been posted since 2015.

Editorial: No need for murky water law changes

Two bills proposing to alter water use policy are pending in the Nevada Legislature. They are at best problematic.

Assembly Bill 30 appears to give the state engineer greater leeway in the use of monitoring, management and mitigations — known in the jargon as 3M — to resolve conflicts in water rights. The language is rather vague and subject to interpretation.

Assembly Bill 51 appears to give the state engineer more flexibility in what is called conjunctive management of water. While current law treats surface water and groundwater as interchangeable in a basin in the scheme of allocations, AB51 tells the state engineer to adopt regulations that mitigate conflicts between the two water sources.

Nevada water law is based on the concept of prior authorization, in other words the first one to use a water resource has priority or senior water rights. Those who come later, if there is enough water available, have junior rights that must yield to the senior rights if supply becomes inadequate for any reason.

The Great Basin Water Network, an organization that has been fighting attempts for years by the Las Vegas Valley water provider to tap groundwater in eastern Nevada basins, suspects these two bills are intended to give the state engineer the flexibility needed to allow the project to reach fruition.

GBWN says the Southern Nevada Water Authority’s $15 billion groundwater importation plan would pump 58 billion gallons of groundwater annually in a 300-mile pipeline to Las Vegas. They say the Bureau of Land Management has estimated the project would irreparably harm 305 springs, 112 miles of streams, 8,000 acres of wetlands, and 191,000 acres of shrub land habitat.

A federal judge has so far blocked the water grab from Spring, Cave, Dry Lake and Delamar valleys, saying the state engineer failed to establish any objective criteria for when mitigation — such as halting pumping — would have to be initiated. The engineer plans to appeal that ruling, but a change in state law could moot that.

GBWN questions the effectiveness of the two bills’ calls for monetary compensation and water replacement to make whole senior water rights owners.

Abby Johnson, GBWN’s president, says in an op-ed she has penned for area newspapers, “From ranchers to environmentalists, there is a consensus that we don’t need to fix what isn’t broken. Nevada water law has served Nevadans well for more than 100 years and continues to serve the public interest. That success, however, has stymied a select few.”

The select few, Johnson says, include real estate developers and the Southern Nevada Water Authority, which has “not had much luck in recent years getting what they want under the current legal and regulatory framework. Why? Because what they want is to facilitate unsustainable over-pumping of the state’s fragile, limited groundwater resources.”

She adds, “ The problem –– for all of us –– is that they want water that either doesn’t exist or already belongs to someone else.”

Johnson further charges that the change in law would grant the state engineer “czar-like powers to unilaterally choose winners and losers without regard to senior water rights holders’ existing property rights … which would mire Nevada water rights owners and the state government in complex and unpredictable litigation for years.”

Assemblyman John Ellison of Elko released a statement saying the bills would constitute an unconstitutional “taking” of water rights and said a recent hearing saw a consensus of opposition from industry, ranchers and farmers and not one person testifying in support of either bill.

“We cannot allow an unelected bureaucrat to wield this much power over one of our state’s most precious resources. I’m reminded of the famous Mark Twain quote, ‘Whiskey is for drinking; water is for fighting over.’” Ellison said. “I will never stop fighting for the rights of senior property rights owners in my district and throughout Nevada.”

Though Twain probably never said that, it sounds like something he would say and is apropos to the current situation. AB 30 and AB51 need to be sent down the drain.

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.

 

Judge rules Nevada press shield law does not cover blogger

There is no such thing as a credentialed or card-carrying journalist. Unlike too many jobs in Nevada and the U.S. there is no government licensing of journalists. If you talk to two people you are a gossip. If you talk to three you are a journalist.

But a Carson City judge apparently thinks the Nevada press shield law created the concept of a licensed journalist.

Normally those in the press don’t seek any privilege not accorded any other citizen, but by the very nature of the job — showing up at fires and car crashes, attending public meetings, poking into nooks and crannies of government and society, asking questions and quoting people — there needed to be a means to keep the press independent and not dragged into court or depositions every other week.

Sam Toll

That’s the rationale behind the state press shield law. It prohibits dragging members of the Fourth Estate in for a third degree interrogation. Otherwise, there would be little incentive for people to talk to reporters, because that reporter could be forced to testify against them.

The law says, “No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceeding …”

The devil is in the details. The law predates the blogosphere.

This week Judge James Wilson Jr. ordered Sam Toll, editor of The Storey Teller blog, to disclose his sources for stories about a Storey County commissioner, who is suing Toll for defamation, according to USA Today.

It seems the stories were written in the months before Toll joined the Nevada Press Association.

One of Toll’s attorneys issued a statement saying, “Such a ruling undermines the protection of fundamental Constitutional principles of freedom of speech and of the press and stifles the free flow of information that is essential for any free society to exist.”

Whether Toll is press or not, he still has the right of free speech. Perhaps, he should have to face his accuser but should he be required to drag others into the fray?

The state Supreme Court has twice upheld the shield law as serving an important function for the citizenry.

When the First Amendment was written no one could have imagined radio and television, but they came under the protection of the “press.” Shouldn’t bloggers also be allowed to don the mantle?

Justice Myron Leavitt opined in a case in 2000 in which a plaintiff tried to force a Las Vegas newspaper reporter to reveal his sources: “Nevada’s news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions.”

In 2016 a Clark County judge interpreted the shield law differently, denying lawyers request to review a film maker’s unpublished notes and video interviews with a witness in a criminal case.

The ruling, according to a Las Vegas newspaper, marked the first time a Nevada judge extended the press privilege beyond institutional reporter. “This is the first time any court in Nevada has looked at that,” the film maker’s attorney was quoted as saying. “It is a good victory for all information gatherers in the state.”

Let’s hope this current case is appealed and a similar outcome is reached. Or, perhaps, the lawmakers in Carson City could update the law.

The Nevada Independent has posted a copy of the judge’s ruling.

Newspaper column: Assisted suicide bill creates perverse incentives

Sometimes good intentions can create more problems than they solve. Take Senate Bill 165 for example.

Nevada lawmakers held hearings recently on this bill that would legalize and tightly regulate physician-assisted suicide for the terminally ill. The bill would allow competent adults diagnosed to be within six months of death, as diagnosed by two physicians, to be prescribed medication that the patient could self-administer to “peacefully end his or her life.”

The problem is that the 28-page bill goes far beyond that simple, seemingly liberating and decriminalizing notion by opening up the potential for widespread abuses and unintended consequences.

Dr. Brian Callister testifies

First of all, the bill requires doctors to falsify official records. “The medical certificate of death of a patient who dies after self-administering a controlled substance that is designed to end the life of the patient … must be signed by the attending physician who shall specify the terminal condition with which the patient was diagnosed as the cause of death of the patient,” SB165 reads.

Further, the bill turns suicide into an acceptable medical treatment on par with protracted and expensive treatment intended to prolong life. This provides health insurers with a perverse incentive to cover the cost of suicide but not the medical care that prolongs life.

Dr. Brian Callister, an associate professor at the University of Nevada, Reno School of Medicine, testified at a recent hearing on the bill that he once called two health insurance companies on behalf of two patients seeking lifesaving treatment in California and Oregon, both of which have assisted suicide laws. He said he was told procedures or transfers would not be covered, but he was asked if he had talked to the patients about assisted suicide, which was covered. He also told lawmakers that 50 to 70 percent of death prognoses are in error.

Others testified about family members who lived comfortably for years after being told they had six months to live.

Dr. Callister told a newspaper in 2017, “We have the physicians, the medicines, and the skills to keep people comfortable in palliative care and hospice. Assisted suicide changes the way we care for patients. It creates a dangerous segue to perverse incentives for insurance companies and there’s no going back from that.”

A group called the Patients Rights Council claims, “In California, after finding that her insurance company would not cover the chemotherapy her doctor had prescribed, a woman asked if assisted suicide was covered under her plan. She was told, ‘Yes, we do provide that to our patients, and you would only have to pay $1.20 for the medication.’”

Opponents of the bill also note that there is no requirement to have trained medical personnel present at the time the lethal drugs are being self-administered. They also note the request for the lethal drugs must be signed by two witnesses other than the doctor and one of them could be an heir, which creates a financial incentive to encourage a hastened death. There also is no requirement for psychiatric counseling.

Though the law makes it a felony to coerce someone into taking his or her own life, when does candid and honest discussion of the options cross the line into coercion? This raises a free speech issue.

Some of the drug cocktails prescribed can cause unintended pain and prolonged suffering. This is why the death penalty has been effectively put on hold in many states, including Nevada. It’s OK for the innocent but ill.

Opponents of the bill also note that a recent report on Oregon’s assisted suicide law states that avoiding pain and suffering is not the primary incentive for suicide. Fully 55 percent of those who used the state’s assisted suicide law cited a fear of being a burden to others.

The bill further restricts life insurance companies from writing fiduciarily sound contracts. Currently under Nevada law life insurance benefits can be denied only if someone commits suicide during the first two years of the insurance contract. SB165 dictates that a life insurer shall not deny a claim, cancel a policy or charge more solely because the insured has chosen assisted suicide. Nor may the company refuse to sell a policy to someone who has requested a prescription for life-ending drugs.

That, of course, means the rest of us will pay higher premiums.

This bill creates more problems than it solves.

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.