Our day that will live in infamy

Where were you on September 11, 2001?

I wrote on the Sunday following that day of infamy:

“I sat down at my computer at about 6 a.m., unfolded the newspaper and switched on the television. There was smoke pouring from the top of one of the unmistakable landmarks of New York City, the World Trade Center. Well, I thought, there’s a story and photo for tomorrow’s front page, and started into the morning’s routine.

“Minutes later a fireball blossomed from the other tower, and it began to dawn on the commentators and me that this was no ordinary accident and Sept. 11 would be no ordinary day.”

I started making phone calls. Reporters and photographers were dispatched to Hoover Dam, McCarran International, City Hall, Nellis Air Force Base, the Strip and elsewhere. Editors huddled. The publisher called in and said we should add 24 pages to the Wednesday newspaper. All plans were scrapped and we started from scratch, hoping to help our readers make sense of a senseless act.

Every section of the paper kicked in its resources.

The press crew rolled the presses early and cranked out thousands of extra copies.

Then I wrote that Sunday:

“I was proud of what we all had accomplished, of the concerted effort and professionalism, as I drove home at 1 a.m. … until I heard the callers on the radio. People were saying they would gladly give up some freedoms for the sake of safety.”

I wanted to reach into the radio and slap some sense into the callers.

The column proceeded to tick off some of the rights spelled out in the Bill of Rights and I wondered aloud which people would willingly sacrifice. The First’s right of assembly, lest there be a bomb, and no freedom of speech and religion, especially that one? The Second’s right to bear arms? The Fourth’s prohibition against warrantless search and seizure? The Fifth’s right to due process? The Sixth’s right to a public trial?

I concluded:

“If this is the consensus of the nation, the bastards have already won, destroying our will and our principles as well as planes, buildings and lives.

“We will have surrendered without firing a shot in the first war of the 21st century.”

The column appeared sandwiched between a Jim Day cartoon and a Vin Suprynowicz column with the headline: “The passengers were all disarmed.”

In a comment to a local magazine on an anniversary of 9/11 I called it “our Pearl Harbor.”

A version of this was posted on this day in 2017, 2018 and 2019.

 

All-mail balloting rife with problems

What could possibly go wrong?

Just put more than 1.6 million ballots — and that was the number of active registered Nevada voters back in January, before the push to register voters prior to the November General Election — in largely unsecured mailboxes. No one would ever think to follow the mail carrier around and pluck said ballots from said boxes. Why that would be a crime.

But with the passage of Assembly Bill 4 on a party-line vote in a special session of the Nevada Legislature, already signed by Gov. Steve Sisolak, the governor can use the excuse of the coronavirus pandemic to order November ballots be mailed to all active registered voters. It’s not as if they are being dropped out of airplanes. And hopefully no county will do like Clark County did in the primary and demand that ballots be mailed to inactive voters who have mostly already moved from the addresses on file with the registrar of voters. That resulted in many blank ballots piling up in trash cans.

Surely there’ll be no problem with the part of AB4 that says that the validity of a ballot signature may only be challenged if “at least two employees in the office of the clerk believe there is a reasonable question of fact as to whether the signature used for the mail ballot matches the signature of the voter …” What is reasonable? “There is a reasonable question of fact as to whether the signature used for the mail ballot matches the signature of the voter if the signature used for the mail ballot differs in multiple, significant and obvious respects from the signatures of the voter available in the records of the clerk,” AB4 spells out.

Under previous law, it was illegal to “harvest” ballots. Only a family member or certain other persons were allowed to return a mailed ballot for a voter. AB4 allows the voter to designate anyone, though the law prohibits that person from failing to return the ballot or altering, changing, defacing, damaging or destroying the mail ballot. Who would ever do such a thing.

No one would ever be intimidated by their union shop boss, for example, into just turning over their blank but signed mail ballot. Nor would anyone, say at a nursing home, dare to collect such ballots. Turn in your ballot in exchange for a free beer at the neighborhood bar?

The law firm of Campbell & Williams has already filed suit on behalf of the Trump campaign, the Republican National Committee and the Nevada Republican Party. The suit notes the new law authorizes ballot harvesting and that, along with other provisions, dilutes “Nevadans’ honest votes. Dilution of honest votes, to any degree, by the casting of fraudulent or illegitimate votes violates the right to vote.”

What could possibly go wrong?

 

Nevada churches denied the same capacity allowances given to casinos

Let’s get this straight, according to a 5-4 one-sentence U.S. Supreme Court ruling Friday, if a Nevada church were to hold a bingo night in its 500-seat auditorium, under Gov. Steve Sisolak’s diktat, 250 people could attend, since the governor’s orders allow 50 percent capacity for casinos, but, if someone were to say a prayer, 200 would have to leave, since the governor says only 50 people may attend church services.

Four justices thought that a little bit duplicitous.

Justice Neil Gorsuch wrote in his dissent:

This is a simple case. Under the Governor’s edict, a 10-screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers — no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Justice Samuel Alito, joined by Justices Clarence Thomas and Brett Kavanaugh, was equally incensed at the disparate treatment, writing:

The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy — and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.

The suit was brought by Calvary Chapel Dayton Valley, a church in Lyon County east of Reno. It wanted to conduct services for 90 congregants, about 50 percent of its fire-code capacity. According to Alito, it planned to ask attendees to adhere to proper social distancing of six feet separation, would cut the length of services in half, prohibit items being passed among the congregation, guide congregants to designated doorways along one-way paths, and to leave time between services so the church could be sanitized.

Do casinos require as much?

Justice Kavanaugh wrote in a separate dissent:

But COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services. There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech. This Court’s history is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserted crisis circumstances to override equal-treatment and free-speech principles. The court of history has rejected those jurisprudential mistakes and cautions us against an unduly deferential judicial approach, especially when questions of racial discrimination, religious discrimination, or free speech are at stake.

But Chief Justice John Roberts — joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — denied the church’s appeal without deigning to comment on such a significant constitutional matter.

Dayton Courier file photo

Consistency sacrificed for the sake of kowtowing

That’s Discriminatory — with a capital D.

A month ago The Associated Press edited its Stylebook to declare that the word black, “when referring to people in a racial, ethnic or cultural context,” should be capitalized in news stories. The Stylebook is almost universally followed in newsrooms. It is gospel.

John Daniszewski, AP’s vice president of standards, said at the time that this change conveys “an essential and shared sense of history, identity and community among people who identify as Black, including those in the African diaspora and within Africa. The lowercase black is a color, not a person.”

The AP said it would decide within a month whether to also capitalize white when referring to people.

On Monday, the AP announced it would not capitalize white when referring to people.

Daniszewski’s rationale was contorted.

“We agree that white people’s skin color plays into systemic inequalities and injustices, and we want our journalism to robustly explore these problems,” he wrote in a memo to staff Monday. “But capitalizing the term white, as is done by white supremacists, risks subtly conveying legitimacy to such beliefs.”

Legitimacy to white supremacists? What about consistency? What about equal treatment?

The dithering and navel gazing began shortly after the death of George Floyd, a Black man, while being arrested by police. This resulted in protests and riots and the tearing down of statues and the near universal presumption of systemic racism, though evidence of this was entirely lacking.

What’s fair is fair. This decision by AP is kowtowing to the blindly stampeding herd and distorting the language in an Orwellian manner, conveying editorialization instead of fair and objective reporting.

The definition of racism is: “prejudice, discrimination, or antagonism directed against a person or people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalized.”

Marginalized?

This is tantamount to capitalizing Woman to recognize the gender’s significant contributions and hurdles, but lower casing man lest one propagates systemic and malignant masculinity.

 

Supreme Court is usurping the duties of Congress

Twice this week the allegedly conservative U.S. Supreme Court chose to legislate rather than litigate.

First, in the case of Bostock v. Clayton County the court found that the Civil Rights Act of 1964 barring workplace job discrimination on the basis of sex also covers homosexuals and transgendered, not just males and females, even though in 1964 no one knew what transgender was.

Now, in the Department of Homeland Security v. Regents of the University of California the court has decided Trump must state valid reasoning for withdrawing Obama’s executive orders that created DACA and DAPA — Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents. Both orders basically rewrote immigration law by allowing certain illegal immigrants to be immune from deportation as the law allowed.

In the first case Congress has had ample time to pass the so-called Equality Act that would do just what the court ruled, but it has not. Neither has Congress acted on proposals that would actually do what DACA and DAPA have done.

In the first case Justice Brett Kavanaugh succinctly wrote in dissent:

In the face of the unsuccessful legislative efforts (so far)to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.

On the immigration ruling Justice Clarence Thomas wrote in dissent:

Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rule-making, DHS unilaterally created a program known as Deferred Action for Childhood Arrivals (DACA). The three-page DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Acting Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.

Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case.

Back in 2015, when the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas judge in response to a lawsuit filed by 26 states, Nevada was one of the states seeking the injunction due to the costs the executive orders imposed on the states.

At the time, then-Nevada Attorney General Adam Laxalt issued a statement saying:

“After careful consideration and extensive briefing, another federal court has once again upheld the states’ injunction, illustrating that the president, like everyone else, must follow the rule of law. Our Constitution establishes a process that must be followed when changing or creating new laws, and no one, regardless of title or position, is above the Constitution. It is encouraging to see the principles of the Constitution affirmed by a third federal court ruling in this case.”

In his original injunction, Texas federal Judge Andrew Hanen stated that “the states cannot protect themselves from the costs inflicted by the Government when 4.3 million individuals are granted legal presence with the resulting ability to compel state action. The irony of this position cannot be fully appreciated unless it is contrasted with the DAPA Directive. The DAPA Directive unilaterally allows individuals removable by law to legally remain in the United States based upon a classification that is not established by any federal law. It is this very lack of law about which the States complain. The Government claims that it can act without a supporting law, but the States cannot.”

According to Pew Research data from 2016, Nevada bears the highest cost in the nation to educate the children of illegal aliens, because fully 20.2 percent of all K-12 students are the  children of illegals. According to Pew data from 2014, Nevada has the highest ratio of illegal immigrants in its workforce — 10.4 percent.

Nevada is bearing the costs without the aid or authorization of Congress. This not how laws are supposed to be made.

DACA recipients celebrate in from of Supreme Court. (AP pix)

 

 

 

 

Governor won’t even ‘permit’ discussion?

Many people are aghast that Las Vegas Mayor Carolyn Goodman has had the audacity to suggest the coronavirus shutdown might not have been necessary in the first place and reopening should begin soon — even suggesting Las Vegas could be used as a placebo or control group to compare the impact of reopening to staying shutdown.

People have called on her to resign, have called her suggestions reckless and deranged. A television interviewer called her ignorant for saying Las Vegas is not like China.

But what I found disturbing was a quote in the morning paper from Gov. Steve Sisolak, “I mean, there is no way I would even permit the discussion about using the city of Las Vegas as a control group in dealing with the spread of the coronavirus. That’s beyond the pale. I can’t even imagine someone even contemplating that.”

He would not “permit” the discussion? He would silence debate? You know what they call people who do that.

He further declared, “You cannot allow our citizens, our folks, to be used as a ‘control group’ in this unscientific experiment that she’s talking about, relating to the spread of the virus. That’s just simply not allowable.”

Unscientific? What are control groups? They are the ones who do not get the experimental treatment, but perhaps a placebo, so the effectiveness of the experimental treatment can to compared to doing nothing.

Goodman may well be wrong. Granted, she is probably wrong.

But somewhere someone needs to contemplate a gradual return to normalcy. Whether some businesses reopen tomorrow or six months from now there is likely to be an uptick in contagion. At which the doomsayers will declare, “I told you so.”

In a separate story in the morning paper Sisolak was quoted as being dismissive of suggestions by the Elko mayor in a letter in the Elko Daily Free Press that said the sparsely populated and less affected rural counties should not be treated in the same manner as the more densely populated areas.

Elko Mayor Reece Keener wrote in an open letter to Sisolak:

It is a given that we will see outbreaks and “hotspots” into the foreseeable future. This virus is tenacious and will continue to be a threat until we have either better medicines or a vaccine. However, we cannot and must not continue to put our lives and civil liberties on hold until it is deemed “safe” to resume a semi-normal state. If, and when we experience an increase in new infection rates, we will be prepared to dial things back accordingly in a measured response.

We accept the responsibility, and with this, we need the flexibility to have local decision-making authority for our reopening timetables and planning. Please consider that a “one size fits all” approach does not work for a largely rural and sparsely populated Nevada. A statewide extension mandate will further deepen the economic damage that we have already incurred, plus it will be a huge psychological blow to the citizens that have diligently complied with the orders. Crucially, a statewide extension will invite civil disobedience and unrest. As mayor, I do not want to place our police officers in the untenable position of having to enforce state directives that are unpopular and impractical for our community.

Keener also pointed out, “Despite the best of intentions, the models and projections have been grossly overstated.”

But the governor reacted by saying, “If you open up Elko County, and you don’t open up Clark County or Washoe County, and in Elko all the stores are open, the restaurants and bars, all the entertainment’s open, well, then the people from the other counties are going to go to Elko County because they’re tired of being locked up in their houses, and they want to experience that, and they’re all going to go back to their counties and then the virus is going to continue to spread. So that wouldn’t work.”

He added, “It’s not just that we don’t want them to open. It’s just that it has to be done in a way that it doesn’t negatively impact that county or the surrounding counties.”

And what way is that, pray tell, and when, if ever?

Las Vegas can’t reopen, Elko can’t reopen. Who can? When? How long must everyone cower in the corner?

Who will “permit” at least a discussion?

Mayor Goodman interviewed by Anderson Cooper on CNN

Editorial: Voters don’t need protection from free speech

Democrats never let the inconvenient facts get in the way of their blindly held firm belief that money is the root of all evil and the ultimate bane of democracy.

You know, beliefs like the one that the 2010 U.S. Supreme Court decision in Citizens United v. Federal Election Commission — that found a federal law prohibiting people from spending their own money to make their political opinions and desires known could not pass constitutional muster — was wrong, wrong, wrong.

The 5-4 Citizens United ruling overturned a portion of the McCain-Feingold campaign finance law under which the FEC barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

Democrats have been fighting against the ruling ever since, claiming it lets the rich and powerful and deep-pocketed corporations buy elections. They’ve even floated the idea of amending that portion of the Bill of Rights prohibiting Congress from abridging freedom of speech.

Of course, Nevada’s Democratic delegation to Congress has been in the thick of it. Sens. Catherine Cortez Masto and Jacky Rosen have signed on as sponsors of the proposed amendment, which would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Cortez Masto proclaimed, “A constitutional amendment putting the democratic process back in the hands of voters will help ensure that our government represents the will of Americans, not just the wealthy few.”

Rosen chimed in, “Our elections should be decided by the voters — but because of Citizens United, billionaires and corporate interests can spend as much money as they want to elect politicians to do their bidding.”

Pay no attention to the fact President Donald Trump was outspent two-to-one by the aforementioned Hillary Clinton.

Over on the House side Nevada Democratic Reps. Dina Titus, Susie Lee and Steven Horsford have co-sponsored the 600-page H.R. 1, dubiously dubbed “For the People Act,” which, along with other things, would require increased disclosure of donors and online advertisers.

All in the name of muting the power of money’s influence over elections.

Pay no attention to the facts just presented by the outcome of the Democratic presidential nominating process.

According to news accounts, former New York mayor and billionaire Mike Bloomberg recently dropped out of that competition after spending somewhere between $500 million and $700 million of his estimated $60 billion net worth. That netted him a grand total of 61 delegates out of the nearly 4,000 delegates awarded thus far.

Then there is the case of Tom Steyer, who is said to be worth a paltry $1.6 billion but spent more than $250 million of his own money on his failing presidential campaign through the end of January. He netted no delegates whatsoever.

Both of the these candidates were allowed the freedom of speech to disseminate their messages and arguments loudly and frequently. But as Justice Anthony Kennedy said in his majority opinion in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”

The poor pliable voters don’t need to be protected from political speech. They can think for themselves — as the facts have again borne out.

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.

Branco cartoon

Newspaper column: Rural water grab may be dead in the water

A state judge’s implacable ruling this past week may have finally forestalled attempts by the Clark County water agency to tap groundwater from White Pine, Nye and Lincoln counties.

Senior District Judge Robert Estes rejected proposals by the state water engineer to grant groundwater rights to the Southern Nevada Water Authority (SNWA), calling the plan illogical, contrary to state water law, as well as arbitrary and capricious.

In 1989 the agency that is now the SNWA filed paperwork with the state engineer to lay claim to 589,000 acre-feet of groundwater in central Nevada, planning to drill a network of water wells and a 300-mile pipeline from near Ely to Las Vegas. The litigation began immediately. Since then the amount of water sought has been trimmed to 84,000 acre-feet while the price tag on the pipeline has grown to an estimated $15 billion.

A lawyer for the Great Basin Water Network (GBWN), which along with White Pine County filed suit seeking to block the water grab, called the ruling a death knell.

“Judge Estes saw clearly through the various subterfuges and false reasoning advanced by both SNWA and the State Engineer, and he systematically ruled against them on every significant point in contention,” said public interest water attorney Simeon Herskovits in an emailed press release. “In our view, the rigor and care in Judge Estes’s ruling makes it highly unlikely that any part of this ruling would be subject to reversal on appeal. Under any reasonable reading, this powerful ruling should sound the death knell for this fatally misguided and potentially devastating groundwater export proposal.”

Estes’ language in his ruling was often stern. At one point he wrote, “Illogically, the Engineer has concluded that sustainability and beneficial use are mutually exclusive. Actually, sustainability and maximum beneficial use are two sides of the same coin. One cannot exist without the other. This not a case of this Court substituting its judgment for that of the current Engineer. It is a case of this Court agreeing with the Engineer’s practice before the Engineer’s, for no logical, lawful or rational reason for changing the definitions of perennial yield.

“For decades, Nevada’s Water Engineers have recognized — and stated — that water appropriations must be sustainable, indefinitely, for both the appropriator and the reservoir, as required by Nevada law.”

Studies have found that the various aquifers involved are already at equilibrium — the amount of water being withdrawn is replaced annually by an equal amount due to rainfall and inflow from other aquifers — and any increased use would threaten agriculture, livestock watering, wildlife and natural springs.

The judge further ruled that the SNWA’s so-called 3M plan to monitor, manage and mitigate the effects of its water use when a trigger level is reached was no plan at all. The judge said “it is not a trigger at all. It is a process, obviously, or even not so obviously, understood by SNWA only. Compare this investigation ‘trigger’ with the trigger used by the BLM (Bureau of Land Management) in Armagosa Valley. ‘When the water level falls 2.7 feet below a copper washer, mitigation must occur.” (Meaning the Amargosa Valley, of course.)

Estes concluded, “Accordingly, this Court finds that the water appropriations in Spring Valley threaten to prove detrimental to the public interest because the awards, at the current well configuration, result in water mining, will never reach equilibrium, and will result in depletion of the Spring Valley aquifer. The award is inconsistent with Nevada water law … is inconsistent with the State Engineer’s long held rules of water appropriation, and is arbitrary and capricious.”

An appeal of Estes’ ruling does not appear to be imminent. The water agency issued a statement to the press saying, “Since these groundwater applications were filed more than 30 years ago, Southern Nevada has emerged as a world leader in urban water conservation. Through SNWA’s proactive water resource management and the community’s achievements in water efficiency, there is no scenario in our Water Resource Plan where this project would be needed within the next 30 years.”

In 2017 a federal judge even blocked BLM from granting the water authority a right-of-way across federal land for its proposed pipeline, saying the environmental impact assessment was inadequate.

“SNWA has no right-of-way for the pipeline, and no rights to water with which to fill the pipeline,” said Kyle Roerink, GBWN executive director. “This project is dead in the water. It’s time for SNWA to finally move on.”

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: Keep a close eye on enforcement of virus regulations

Shortly after state health officials confirmed the first presumptive case of the coronavirus — dubbed COVID-19 — in Nevada this past week, Gov. Steve Sisolak issued an emergency regulation regarding insurance coverage for testing and treatment of the rapidly spreading virus.

State law gives the governor the power in emergency situations to make, amend and rescind regulations in response to the emergency. Customarily one thinks of such things as calling out the National Guard to prevent looting or other problems after a national disaster.

In this case the Commissioner of Insurance Barbara Richardson made a finding that an emergency affecting the health and safety of the public exists and that adoption of an emergency regulation was appropriate.

What Sisolak did was attempt to avert potential adverse financial impact for those who carry health insurance.

We highly recommend the governor keep a close eye on the effects of his order lest it have unintentional adverse affects on the availability of testing and potential vaccines or treatments for the disease. Dictating the price of things in the marketplace has been known to deter availability of goods and services when adequate compensation is not forthcoming.

There has been plenty of anecdotal evidence over the years that so-called anti-price-gouging laws merely limit the supply of necessary goods and services in a crisis.

For example, according to the American Institute for Economic Research, in 2005 a Kentucky man took time off from his job, bought 19 power generators, rented a truck and drove to hurricane-ravaged Mississippi intending to sell the generators at twice the price he paid to cover his costs and make a profit. Police confiscated his generators for price gouging, held him for four days and kept the generators in police custody. Those who urgently needed them and would have gladly paid the asking price suffered in the dark instead.

“This pre-emptive emergency regulation should give Nevadans confidence to continue taking preventative measures to stop the spread of COVID-19 as well as seeking necessary medical services and prescriptions without fear of higher than normal costs,” Sisolak was quoted as saying in a press release accompanying the emergency declaration. “Protecting Nevadans is my top priority, and adopting this emergency regulation is a critical piece of our broader plan to anticipate and prepare for the potential impacts of COVID-19.”

The press release said the order prohibits a health insurance company from imposing an out-of-pocket charge for an office, urgent care center or emergency room visit for the purpose of testing for the virus. “Additionally, the regulation prohibits insurers from charging Nevadans for the COVID-19 test itself or an immunization as one becomes available and further requires coverage for off-formulary prescription drugs if a formulary drug is not available for treatment,” the press release says.

Sounds confiscatory. If companies are prohibited from recouping their expenses for services provided, how readily available will those services be?

The regulation further requires health insurance companies to pro-actively provide information on available benefits, options for medical advice and treatment through telehealth systems and ways to prevent exposure to the virus.

With only a few cases in Nevada so far such measures may be premature. There have been no reports of insurance price gouging due to the virus that we are aware of, which is what the governor’s emergency order appears to be intended to stave off.

We suggested the commissioner of insurance and health officials keep a close watch on events as they develop to assure these shackles on the free market do not interrupt the availability of necessary services and thus create the opposite effect of what the governor intends.

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. Steve Sisolak announces emergency regulations. (R-J pix)

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.