Editorial: Anti-conversion therapy law tramples free speech rights

With the turning of a page of the calendar to a new year comes a host of new laws on the books in Nevada, among them is a law banning therapists from engaging in something dubbed conversion therapy.

The new law makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18. That is defined as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

This therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

What is therapy? It is speech.

The bill specifically prohibits a professional health care provider from talking to an underage patient about whether their gender confusion is real or not, but just as specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”

One may not discourage a patient’s gender feelings but may encourage. Thus only speech that contains the government-approved content is permitted.

The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

In a recent article, Michelle Cretella, president of the American College of Pediatricians, reported that she had a male patient who between the ages of 3 and 5 increasingly played with “girl toys” and said he was a girl. She referred the parents and the boy to a therapist, who discovered that the boy had a younger special needs sister who required a significant amount of attention from her parents. The boy perceived that his parents preferred girls and thus he would become one.

“With family therapy Andy got better,” Cretella wrote.

In Nevada, that therapist now could have his or her license revoked for engaging in conversion therapy.

Presumably under this law, a therapist could be punished for telling a patient that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults.

Would telling a minor to wait and let nature take its course violate the law?

In the waning days of the 2017 legislative session the bill that is now law was amended in an attempt to protect religious counselors from being punished under the law, but it is a contortion that adds only confusion.

That amendment stated “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

So, which hat is the professional licensee wearing when talking to a child about gender? The pastor hat or the doctor hat?

Unfortunately, the federal circuit courts have rejected arguments that a similar California law violates both the free exercise of religion and free speech aspects of the First Amendment and the Supreme Court has thus far declined to hear appeals.

Now that the law is on the books in Nevada and livelihoods are in jeopardy, someone should take another stab at challenging the constitutionality of this law in court.

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

Gov. Sandoval signs anti-conversion therapy law.

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Newspaper column: Nevada should challenge constitutionality of federal pot law

A week ago the Trump administration rescinded a series of Obama administration memos instructing federal prosecutors to back off enforcing federal marijuana laws in states that have legalized it, sending legal pot businesses into a dither, including those in Nevada.

Attorney General Jeff Sessions said he would leave it up to federal prosecutors to decide what to do when state law clashes with federal drug law. Justice Department officials said the previous administration’s stance allowed states to flout federal law.

Nevada Attorney General Adam Laxalt sent out an email saying his office is reviewing the change in the Justice Department’s stance on federal pot law enforcement and evaluating the ramifications for the state

“Although I opposed the Question 2 ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters,” Laxalt stated. “Since Questions 2’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

We suggest that the state’s attorney do what attorneys do: Sue.

The states aren’t flouting federal law, Congress is flouting the Constitution. If it took a constitutional amendment to allow Congress to make alcohol illegal during Prohibition, the same should be true for marijuana.

The 10th Amendment clearly states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Nowhere does the Constitution grant that power to Congress.

In fact, the divided Supreme Court decision upholding Congress’ power to ban marijuana is an absurdity constructed from a fatuity and makes a mockery of the principles of federalism.

In the case of Gonzales v. Raich, the high court found that Congress had the power under the Commerce Clause to prohibit a person from growing marijuana for her own consumption because it could affect interstate commerce. The court cited as precedent the New Deal-era case of Wickard v. Filburn, which said a farmer who grew wheat for his own consumption affected interstate commerce because, if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.

Thus the court essentially erased any distinction between interstate and intrastate commerce or even no commerce at all. Whatever the imagination can conjure.

 In his dissent in the pot case, Justice Clarence Thomas fumed, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Thomas added, “This makes a mockery of (James) Madison’s assurance (in Federalist Paper No. 45) to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’”

Justice Sandra Day O’Connor also raised the issue of federalism, writing in dissent in Raich, “Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

With the court now more originalist in its composition, the arguments of Thomas and O’Connor might hold sway in a constitutional challenge of the federal marijuana law, should Laxalt and the attorneys general of the states that have legalized pot press the matter.

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: BLM moving forward with fire prevention effort

The Bureau of Land Management posted on the Federal Register a couple of weeks ago a notice that it is beginning the tedious paperwork process to finally do something to prevent the devastating wildfires that have plagued the Great Basin region in recent years.

The notice states the BLM will create two Environmental Impact Statements (EIS)— one will analyze the effects of constructing fuel breaks that clear flammable material along a swath of land to curb the spread of wildfire and another to study the effectiveness of restoring rangeland to counteract the spread of invasive species such as cheatgrass and conifers that burn too easily. The states involved include portions of Nevada, Idaho, Oregon, California, Utah and Washington.

According to the National Interagency Fire Center, wildfires consumed nearly 10 million acres in 2017.

In September Interior Secretary Ryan Zinke, whose responsibilities include the BLM, promised, “This Administration will take a serious turn from the past and will proactively work to prevent forest fires through aggressive and scientific fuels reduction management to save lives, homes, and wildlife habitat. It is well settled that the steady accumulation and thickening of vegetation in areas that have historically burned at frequent intervals exacerbates fuel conditions and often leads to larger and higher-intensity fires.”

The EISs, which are required by federal law, mark the beginning of fulfilling that promise. Comments may be submitted in writing until Feb. 20. Those comments may be submitted via:

* Website: https://go.usa.gov/ xnQcG.

* Email: GRSG_PEIS@blm.gov.

* Fax: 208-373-3805.

* Mail: Jonathan Beck, 1387 S. Vinnell Way, Boise, ID 83709

Meetings to discuss the proposed fire prevention efforts will be scheduled throughout the region and will be announced 15 days in advance in the local media and on the BLM website.

One of the reasons for the current initiative, according to the Federal Register notice, is that wildfires tend to increase the the risk of still more wildfires — a positive feedback loop.

“In warm, dry settings, sagebrush-steppe usually takes, at a minimum, many decades to recover, even where invasive annual grasses or other invasive plant species do not become dominant,” the notice states. “Invasive species and conifer encroachment can be exacerbated as a result of wildfires in sagebrush ecosystems, resulting in an increased risk of wildfires …”

Among the concerns that will need to be addressed and evaluated during the comment period and subsequent meetings is that fuel breaks and the accompanying road improvements, by their very nature, improve access for firefighters but also for the general public, which might lead to an increase in the number of human-caused fires. Also, such breaks reduce the cover for small wildlife to avoid predators.

The Associated Press quoted Matt Germino, a research ecologist with the U.S. Geological Survey, as saying fuel breaks are a bit of a paradox. “Fires, especially large fires, are so unambiguously damaging to wildlife habitat in general — that is the motivating factor for getting these fuel breaks out,” he said. “At this point, it’s really difficult to predict which animal species will benefit and which ones won’t. Sometimes you have to just act in light of the uncertainty.”

That cautionary note aside, we strongly endorse this effort by the current administration to protect not only the environment but also those who earn their living from the land by ranching, farming, logging and mining and those who use the public lands for hunting and recreation. We encourage our readers to submit comments and attend meetings to counter the likely resistance by self-styled environmentalists.

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.

Firefighters battle blaze near Wells this past summer. (Photo submitted to Elko Daily News)

Newspaper column: Why Nevada must hit the brakes on taxes

WSJ illustration

It’s called voting with your feet.

A remarkable number of well-heeled Americans are doing just that, and it should serve as a warning to Nevada voters and candidates as we enter an election year. Though Republican governors in recent years have shepherded through the Legislature record-high tax increases, Nevada still fares fairly well in comparison to other states when it comes to the tax burden borne by citizens of the Silver State.

According to the Tax Foundation’s analysis of state and local tax burdens per capita for fiscal year 2012 — which is after Gov. Kenny Guinn’s billion-dollar tax hike but before the $1.5 billion tax hike pushed by Gov. Brian Sandoval — Nevada ranked 43rd lowest in the nation, while neighboring Taxafornia ranked sixth highest.

Nevada tax collectors grabbed 8.1 percent of the state income through state and local taxes or $3,349 per capita. Meanwhile, California snatched 11 percent of state income or $5,237 per capita.

Perhaps that explains why, according to Internal Revenue Service data on taxpayer migration, from 2014 to 2015 about 10,500 Nevada taxpayers moved to California, while 17,700 California taxpayers moved to Nevada. Even more telling is the fact that the Californians fleeing to lower-taxed Nevada averaged $91,000 in gross adjusted income, while the Nevadans heading to California averaged only $47,400 in adjusted gross income.

It seems people with higher income have a tendency to find ways to keep more of it for themselves.

From 2014 to 2015 Nevada netted an increase in total adjusted gross income reported to the IRS of $1.43 billion. Of that, $1.1 billion came due to the influx of Californians changing residencies.

An analysis of a sampling of that IRS data shows the California-Nevada migration pattern is no anomaly.

In that one year, the state of New York, which has the highest state and local tax burden of any state at 12.7 percent of income and $6,993 per capita, lost $4.4 billion in income.

No. 2 highest Connecticut lost $1.3 billion in income. No. 3 highest New Jersey lost $2.46 billion. No. 5 Illinois lost $3.47 billion. No. 6 California lost $2.09 billion.

Meanwhile, state income tax-free Texas, ranked 46th lowest, added $3.61 billion, and state income tax-free Florida, though only 34th lowest, added $11.65 billion. The latter might have something to do with weather as well, since $2.62 billion of that came in from former New Yorkers, $1.49 billion from former New Jersey residents and $1.47 billion from former Illinoisans.

The New Jersey residents who moved to Florida had an average income of $121,000, while Floridians moving to New Jersey averaged $72,500.

This is hardly surprising nor a new phenomenon. In an article in The Wall Street Journal in 2009 under the headline, “Soak the Rich, Lose the Rich,” economist Arthur Laffer and WSJ economics writer Stephen Moore updated previous studies and found that from 1998 to 2007, more than 1,100 people every day of the year relocated from the nine highest income-tax states — such as California, New Jersey, New York and Ohio — mostly to the nine tax-haven states with no income tax — including Florida, Nevada, New Hampshire and Texas.

Laffer and Moore determined that over that period of time the no-income tax states created 89 percent more jobs and had 32 percent faster personal income growth than the high-tax states.

“Did the greater prosperity in low-tax states happen by chance? Is it coincidence that the two highest tax-rate states in the nation, California and New York, have the biggest fiscal holes to repair?” they asked. “No. Dozens of academic studies — old and new — have found clear and irrefutable statistical evidence that high state and local taxes repel jobs and businesses.”

A recent WSJ editorial noted that billions in income are still flowing out of New York, New Jersey and Connecticut and into Florida.

“As these state laboratories of Democratic governance show, dunning the rich ultimately hurts people of all incomes by repressing the growth needed to create jobs, boost wages and raise government revenues that fund public services,” the editorial concluded.

Voting with the feet is sure to increase since the recent tax reform limits federal income tax deductions for state and local taxes.

Let this be a lesson for Nevada. Chase the rich, they’ll run away.

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.

Public safety project delayed over petty prevailing wage law dispute

Workers installing bollards along the Strip. (R-J pix)

Talk about the tail waging the dog.

The geniuses at the Clark County Commission postponed approving a $2.5 million contract to install 500 steel post barriers along the Strip to protect pedestrians from vehicles veering onto sidewalks, because three construction workers might have been shorted a couple of hundred dollars for work performed on a previous contract, according to the Las Vegas newspaper today.

It is all because of the state’s prevailing wage law that mandates public works projects pay workers what amounts to union scale, inflating the cost of such projects by millions of dollars and now delaying a public safety project by at least a few weeks over a petty dispute.

According the paper, the Nevada Foundation for Fair Contracting, whatever that is, complained that three, just three, concrete finishers performed jobs that under the law should have been paid at a higher scale — $6 to $7 an hour more. Of course, Tuesday was the first the company heard of the claim.

At $5,000 per post, called bollards, apparently the job is not as simple as digging a post hole and cementing in a steel pipe, but what government job ever is?

Local police would prefer there be no delay, but have no control over the situation, Metropolitan Police Department spokesman Larry Hadfield said.

“Although it would be optimal for these to be installed on time the LVMPD is not part of the construction of the bollards,” he said.

Commission Chairman Steve Sisolak was quoted as saying of the delayed contract, “That’s just the beginning, the next 500. We’ve got thousands coming after that, and I want to make sure the company is doing the right thing by paying their workers at the appropriate rates.”

Why should a dispute over a past contract delay a future one, especially over such a petty amount. In fact the head of the complaining organization was quoted as saying, “They basically got cheated who knows how many hundreds of dollars.”

Where are the liberals shouting: If it saves one life, it is worth it?

Editorial: Nevada still leads nation in public worker pay

Once again Nevada has earned a worst-in-the-nation ranking.

An analysis of 2016 payroll data by Key Policy Data found Nevada’s state and local public employees are the least productive in the country, according to a news account by Watchdog.org.

Though researcher J. Scott Moody found that Nevada’s state and local governments employed only 11.7 people per every 100 workers in the taxpaying private sector, the lowest ratio in the nation and well below the national average of 15.7, Nevada pays those “public servants” far more than the private sector, the highest in the nation.

Public employees were paid 54 percent more than their counterparts in the private sector, which is 295 percent higher than the national average of 14 percent. The gap has grown like topsy, from only 6 percent in 1969 to today’s 54 percent.

Moody said the driving factor for the gap are the benefits provided public employees, many growing due to union contracts.

In state and local benefits Nevada public employees were provided 286 percent more than those in the private sector, the highest benefit gap in the country, while the national average was 127 percent.

“It is unfair to private sector workers because they are ultimately footing the bill for these very generous benefits,” Moody said. “Additionally, it hurts the private sector overall because it distorts the labor market as workers are enticed into the public sector. The private sector has to raise compensation to compete for labor, but that can make Nevada’s businesses uncompetitive in the national or international marketplace.”

He added that it is easy for politicians to “kick the can down the road” by increasing benefits today, knowing the bill won’t come due for years or even decades. The bill is now coming due.

Here is how the compensation gap breaks down by county: In Carson City, public employees are paid 258 percent more than private sector workers in total salary and benefits; Clark, +61 percent; Washoe County, +55 percent; Douglas; +46 percent; Lincoln; +46 percent; Lyon; +41 percent; Churchill, +37 percent; White Pine, +27 percent; Elko, +26 percent; Mineral, +21 percent; Nye, +19 percent; Humboldt, +15 percent; Storey, -20 percent; Lander, -22 percent; Pershing, -28 percent; Eureka, -41 percent; and Esmeralda, -47 percent.

It should be noted, according to the Department of Employment, Training and Rehabilitation, that 88 percent of the jobs in Eureka are largely better paying mining jobs, while 60 percent of Lander’s jobs are in mining, 52 percent of Esmeralda’s and 30 percent of Pershing’s. But only 1 percent of Storey’s jobs are in mining. Go figure.

Michael Schaus, the communications director for the Nevada Policy Research Institute, blamed the compensation gap on local public worker labor unions.

“A big part of it is on the local level,” Schaus said. “The local governments in Nevada tend to have very, very strong unions and as a result, every year they seem to get a little bit more pay, a little bit more benefits and, of course, that all comes out of the taxpayer pocket. State level employees, I don’t believe that they’ve actually increased quite as fast and that’s largely because they are not unionized.”

As we have suggested editorially over the years, Moody recommends Nevada lawmakers change the retirement benefits for public employees from the current defined benefit program, which guarantees a percent of one’s final salary for life upon retirement, usually well before the age of 65, to one similar to the 401(k) funds used in private industry.

It is time to put the brakes on what Nevada pays its “public servants.” — TM

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.

Nevada state capitol building in Carson City.

Newspaper column: Bundy case secrecy being rightfully challenged

Bundy family exit court. (R-J pix)

Though the most recent trial of four defendants in the April 2014 standoff between armed protesters and Bureau of Land Management agents trying to confiscate Cliven Bundy’s cattle ended in a mistrial, the case will stand as an historic example of how sweeping secrecy can cast doubt on whether justice is being served.

This past week U.S. District Judge Gloria Navarro halted testimony in the trial and sent the jurors home while she heard arguments behind closed doors over whether the prosecution had failed to provide the defense with potentially exculpatory evidence quickly enough. The judge said the prosecution’s repeated failure to timely disclose information was “sufficient to undermine the confidence in the outcome of the trial,” which she said could result in a mistrial. This week she declared a mistrial.

Attorney Maggie McLetchie — representing the Las Vegas Review-Journal newspaper and Battle Born Media, which publishes weekly newspapers in Mesquite, Ely, Eureka, Sparks and Lincoln and Mineral counties — promptly filed a motion seeking to intervene, which was granted. The newspapers are asking that all documents previously filed under seal be unsealed and that future hearings be conducted in open court.

In July 2016, despite objections from the newspapers, the judge granted the government’s request for a protective order that required nearly every piece of paper to be filed under seal due to some vague suspicions that witnesses and law enforcement officers might be subjected to threats or intimidation.

Though the case involves the April 2014 effort by the BLM to impound 500 head of Bundy’s cattle for failure to pay $1 million in grazing fees over two decades for his Bunkerville ranch, arrests of the original 19 defendants were not made until early 2016. Most remained jailed until recently on charges that include conspiracy, extortion, carrying a firearm during a crime of violence, threatening an officer and obstruction of justice.

The BLM released the cattle rather than risk a shootout.

The complex case, which includes an estimated 1.4 terabytes of electronic evidence, was broken into three trials. The first ended in a mistrial. At retrial two were acquitted and two pleaded to misdemeanors and were released on time served.

The just ended trial was the second and a third is scheduled for 30 days after this one ends, whenever that might be.

In arguing as to why the veil of secrecy should be lifted, McLetchie states that one of the most critical aspects of news reporting is to inform the public as to whether justice is being carried out, quoting a classic Supreme Court aphorism: “In short, justice must not only be done, it must be seen to be done.”

McLetchie goes on to say, “This shroud of secrecy is anathema to the presumption under the First Amendment and the common law that all documents filed with a court are presumptively public documents open for review and inspection. Moreover, closing hearings and filing documents under seal has prevented Intervenors from carrying out their constitutionally protected function of reporting the news. This is troublesome given the importance of this case, and the public’s right to know about the government’s handling of its investigation and prosecution …”

One of the documents apparently filed under seal — meaning the defendants can’t even discuss it — is an 18-page Nov. 27 memo from a BLM investigator to a Justice Department attorney alleging “a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct, as well as likely policy, ethical, and legal violations” by BLM staffers involved in the Bundy case.

The memo was leaked to numerous newspapers. It is a rambling, often redundant, typo-filled diatribe against the agent’s supervisors and prosecutors.

The agent said he was dismissed from reviewing the Bundy case in February and his files confiscated. “Futhermore,” he wrote, “when I did report the misconduct, ethical, professional, and legal issues, I also became a victim of whistleblower retaliation.” He wrote that he “feels” the prosecutor’s judgment is “likely clouded by extreme personal and religious bias and a desire to win the case at all costs. I feel he is likely willing to ignore and fail to report exculpatory material, extreme bias and act unethically and possibly deceptively to win.”

Though it may well be a self-serving effort on the part of a BLM staff member scorned, this is the very thing the public should be allowed to evaluate.

McLetchie notes the tradition of openness “serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp” for law enforcement.

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.