How I got out of jury duty without really trying

I was called to jury duty recently and dutifully showed up early Monday morning for a day of tedious and repetitive questions during voir dire, which a friend of mine swears is French for jury tampering.

It was a lawsuit seeking damages over a car accident. The plaintiff’s attorney asked such inane questions as: What are you passionate about? There were responses about golf and sports betting and teaching and what not. I told him: The First Amendment and the public’s right to know, which set him back a bit. When he augered in, I explained that I’d been in journalism for decades and still freelanced a bit.

I unfortunately managed to survive the first day and returned for the second and cooled my heels with the other potential jurors for more than an hour as the wheels of justice ground to a halt behind closed doors.

Then the attorney got around to asking more pertinent questions about the jurors’ responsibility. He explained that in criminal cases the jury verdict must be beyond a reasonable doubt, but a jury in a civil case should award damages based on a preponderance of evidence, which he explained meant that damages should be awarded if 50.1 percent of the evidence favored such a verdict.

When he asked if anyone had a problem with that, I dutifully raised my hand. When asked, I said I would never publish a story if I knew there was a 50 percent chance it was wrong. I did not think that was what preponderance meant in the first place. A decision to wrest money away from one person to give to another on the basis of only 50.1 percent of evidence favoring it seemed tantamount to flipping a coin. I explained my decision-making process did not work that way and I could not imagine how 50.1 percent of a winning argument could be persuasive. The difference in the scales of justice is imperceptible.

I came close to saying that if that was what the law really said the law is a ass, but I thought better of it, suspecting the Dickens quote might not sit too well and just might get my ass in trouble.

A few minutes later I was kindly invited to hie my principled ass home.

 

 

 

 

Editorial: Universal public service has constitutional flaw

For the past year a national commission has been studying the issue of whether all young Americans should be required to perform public service — either military or some form of civilian service — and whether women should be required to register for the draft as men are currently required to do, even though the draft has not been used since 1973.

The National Commission on Military, National and Public Service is chaired by former Nevada Congressman, emergency room physician and Army Reserve Brig Gen. Joe Heck. He was interviewed on NPR public radio this past week about the status of the commission’s endeavors.

“For the first time in our nation’s history, a commission was tasked to holistically and comprehensively review the Selective Service system along with Military, National and Public Service. It is truly an historic opportunity,” Heck said on the air.

On the topic of whether women should register for the draft, he said, “People have very definitive opinions on this issue. It’s not like when you ask the question, they have to take a moment to think about it. It’s a visceral response. It’s either, yes, they should have to register, it’s a matter of equality — or no, they should not have to register because women hold a special role in American society. I mean, that’s what it basically comes down to. I don’t think there are many people that are on the fence when it comes to deciding whether or not women should have to register.”

Heck said the commission has not yet come to a decision on this aspect of the commission’s mission.

But beyond the draft, Heck signaled a desire to require universal service of some sort, “Our goal is that there should be a universal expectation of service, that instead of the person serving being the odd person, it’s the person who doesn’t serve is the odd person. So that within a generation or two, every American is inspired and eager to serve.”

Fourteen more public hearings are planned, with a final report and recommendations due in a year.

There might be one thing the commission should take into consideration before making its final recommendations. That would be the 13th Amendment. Passed after the Civil War, that amendment states categorically: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Involuntary servitude.

In fact the 13th Amendment was used during World War I — ineffectively as it turned out — to argue against conscription itself as involuntary servitude.

Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance to the Selective Service Act. The pamphlet on its first page quoted the 13th Amendment.

Justice Oliver Wendell Holmes wrote in his 1919 U.S. Supreme Court opinion that was unanimously supported by the court: “In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said ‘Do not submit to intimidation,’ but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed ‘Assert Your Rights.’ It stated reasons for alleging that anyone violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on ‘If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’”

Holmes famously declared this rhetoric was a “clear and present danger” and was tantamount to “falsely shouting fire in a theatre and causing a panic.”

The Espionage Act of 1917 is still on the books, but so is the 13th Amendment. Mandatory public service does appear to be a lot like involuntary servitude. Voluntary service, of course, should be encouraged.

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: State public employee unions will bust the budget

Ramirez cartoon

While Gov. Steve Sisolak has promised no new taxes in his proposed budget for the next two years, he also plans to light the fuse on a huge tax bomb in the future.

In his State of the State speech in Carson City before lawmakers he casually  tossed out that state public employees “should be empowered to bargain collectively in the years ahead.” Since 1969 local government workers in Nevada have been allowed to form unions and collectively bargain for pay and benefits, but   not so state government employees.

Sisolak doubled down during an interview at the Smith Center in Las Vegas with the editor of the news and commentary website The Nevada Independent, saying, state public workers generally are paid less than local government workers and discussion of collective bargaining rights for state workers is long overdue.

Sisolak said, “Our state employees should be treated in a fair and respectful manner. The fact that they haven’t had a raise in 10 years and the fact they don’t have the same working conditions that other jurisdictions had. I’m coming from a county that employees did have collective bargaining … they make a lot more money. … The pay is probably 30 to 40 percent less than any other governmental entity that exists. And to attract good people at those wages is simply not going to happen.”

After editor Jon Ralston pointed out that collective bargaining would cost the state a lot more tax money, the governor responded, “We’re going to invest in our people, Jon. That’s a good thing. I don’t think that’s a downside. We’re going to invest in the people who provide services to Nevada and we’re going to have to find the resources in order to make those accommodations.”

First of all, state workers were given 3 percent cost-of-living pay increases in each of the past two years.

For years local government pay in Nevada has exceeded those in both state government employ and in the private sector, due to collective bargaining. But according to Bureau of Labor Statistics figures for the second quarter of 2018 the average weekly wage for private sector Nevadans was $908, while the local government worker was paid $1,049 and the state public employee averaged $1,097. By the way, the federal employees in Nevada averaged $1,406.

Back on Nevada Day this past year, the researchers at the Nevada Policy Research Institute crunched the Census data for 2017 and found that local government workers in Nevada were the fifth highest paid in the country compared to other local government employees, while Nevada’s private-sector workers ranked a distant 47th compared to private sector workers in other states.

“On a statewide basis, government pay and benefits cost taxpayers roughly $10 billion last year — which was equal to 80 percent of all tax revenue collected by every state and local government agency in Nevada,” noted NPRI policy director Robert Fellner. “Thus, in the event Nevada’s government pay gap continues its upward growth, the resulting tax hikes necessary to sustain such excess may become too great to bear.”

Fellner argued, “Because such outsized pay packages come at the expense of taxpayers who earn much less themselves, elected officials should consider the fairness and sustainability of continually caving in to government unions’ endless demands for even more.”

Imagine what the future will look like if state workers are allowed to form unions and bargain collectively.

Under Nevada’s collective bargaining law, if negotiations come to an impasse, an arbitrator is appointed to settle the dispute and the primary criteria for granting a union’s demands is whether the government entity has the ability to pay what is demanded. That determination is usually in favor of the union.

As we have noted in the past, none other than the icon of progressivism, Franklin D. Roosevelt, pointed out in a 1937 letter the problem with collective bargaining for public employees: “All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people …”

When the people are paid less than their servants, who is the master?

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.

Adelson involvement in issue not worthy of mention in his newspaper

The Wall Street Journal had a front page story recently about how the Justice Department has reversed course on its 2011 opinion that the 1960s Wire Act prohibited only online sports betting and not other forms of online gambling. The paper said the change “hewed closely to arguments made by lobbyists for casino magnate and top Republican donor Sheldon Adelson.”

WSJ reporters compared a memo sent to Justice by Adelson lawyers in April 2017 to the new opinion handed down in November and found the new opinion arguments similar to those in the memo. “Both writings pointed to some of the same case law examples,” the report said.

Adelson has spent millions of dollars campaigning to change the government’s interpretation of the law and spent tens of millions supporting Donald Trump’s presidential election bid. Adelson’s company has long argued that online gambling would hurt revenue at established casinos.

Today the Las Vegas newspaper also has a story on this topic.

“Now that Nevada has a law allowing interstate online poker, regulators will have to re-examine what that means under the new interpretation,” the story says. “Is it illegal and thus banned? Will Nevada’s laws be grandfathered in?”

But nowhere does it mention Adelson’s well known campaign against online betting, nor is there an italicized disclaimer at the end noting the Adelson family owns the paper.

Sheldon Adelson (John Locher AP pix via WSJ)

 

Newspaper column: States should not be granted absolute immunity

The U.S. Supreme Court heard arguments in a case this past week that could alter the ability of a private citizen to seek justice in his state’s courts when public employees from another state abuse their powers and step over the line of common decency. The case is titled Franchise Tax Board of California v. Hyatt.

It all started in 1993 when a tax auditor for the Franchise Tax Board of California read a newspaper article about how wealthy California computer chip inventor, Gilbert Hyatt, had recently moved to Nevada, which, unlike California, has no income tax. The auditor investigated and concluded Hyatt had not moved to Nevada as early as he claimed. The tax board said Hyatt owed California nearly $15 million in taxes and penalties.

Hyatt eventually sued the tax board in Nevada courts for invasion of privacy, intentional infliction of emotional distress, fraud, abuse of process and breach of confidential relationship. According to The Wall Street Journal, California’s lead auditor became obsessed with Hyatt and vowed to “get that Jew bastard.” The auditor reportedly traveled to his Nevada home and “peered through his windows and examined his mail and trash,” as well as pressed estranged family members to testify against him.

A Nevada jury found for Hyatt and awarded him $85 million for emotional distress, $52 million for invasion of privacy, $1 million for special damages for fraud and $250 million in punitive damages. Because Nevada has a law limiting the liability of its own state agencies the award was later reduced to $50,000.

In a strange case of role reversal, the argument now before the U.S. Supreme Court being pressed by California is that one of its earlier opinions should be overturned. That case is known as Nevada v. Hall. California residents brought suit in a California court for damages when a state of Nevada-owned vehicle on official business collided with the Californians on a California highway. The California courts assessed damages of more than $1 million against Nevada.

The U.S. Supreme Court in 1979 ruled that while states have sovereign immunity from being sued in their own courts, a state is not constitutionally immune from suit in the courts of another state.

In yet another twist, the attorneys general of 45 states, including Nevada’s then-Attorney General Adam Laxalt, have filed amicus briefs asking that Nevada v. Hall be overturned.

“The time has come for this Court to overrule its decision in Nevada v. Hall … an outlier among this Court’s consistent protection of the States’ sovereign immunity,” the brief argues. “Although this Court has held that States are immune in their own courts, in federal courts, and in federal administrative agencies, Hall allows a State to be haled before the courts of any other State and be forced to pay money judgments issued by those courts. This affront to the States’ sovereign dignity and financial resources is contrary to the Constitution’s structure and history and should be definitively rejected. For this reason, a total of forty-five States have joined briefs arguing that Hall should be overruled.”

During oral arguments this past week, California’s attorney argued that the “writings and speeches given by Hamilton, Marshall, and Madison” supported his view that states should be immune from legal action in the courts of other states.

Again according to the Journal, liberal Justice Sonia Sotomayor responded, “It’s nice that they felt that way, but what we know is they didn’t put it in the Constitution. And so we talk a lot now about not relying on legislative history, but relying on the plain text.”

Conservative Justice Samuel Alito added that “we are all always very vigilant not to read things into the Constitution that can’t be found in the text.” Justice Brett Kavanaugh asked why something the states supposedly regarded as so important would not have been addressed in the constitutional text.

Where is a citizen to turn when public officials flout the law and run amok? Does not state sovereignty include the right and power to protect its own citizens from agencies in other states when they are extorted and defrauded? You know what they say about absolute power.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Adoption incentives could curb wild horse population

Why not?

Unless some self-appointed “wild horse lovers” step in and manage to quash the idea, the Bureau of Land Management is seriously considering still another method for reducing the wild horse and burro population on the open range and in pens.

The idea was floated in a report to Congress this past April. Instead of charging people $125 a head to adopt a wild horse or burro, pay people $1,000 a head to adopt and care for the feral animals instead of letting them starve on overgrazed range or languish in pens.

The report predicted, “If the incentive proves to increase adoptions beyond the planned 5,000, the BLM could decrease the use of permanent sterilization and increase removals to match adoption/sale totals. While this incentive would increase costs in the initial years, it will quickly pay for itself by lowering off-range holding expenditures,” adding that the program could reduce the 83,000 horses and burros on the open range to the goal of 27,000 by 2030.

The idea was endorsed in the latest issue of PERC Reports — a magazine published by the Property and Environment Research Center, a nonprofit institute dedicated to improving environmental quality through markets and property rights.

Writers Hannah Downey, the policy and partnerships coordinator and a research fellow at PERC, and Tate Watkins, a research and publications fellow at PERC and managing editor of PREC Reports, reported that under the current plan the BLM would pay adopters a $500 first installment 60 days after adoption. Once new owners demonstrate they are providing quality care after a 12-month probationary period the new owners would get another $500 payment.

“The plan has the potential to help improve the lives of wild horses while also benefiting taxpayers,” the PERC Reports article states. “Owning and caring for a horse is not cheap. The $1,000 payment should promote adoptions as the stipend can help cover veterinary and training costs. This sort of approach has been widely used by animal shelters that offer free adoptions or waivers for veterinary care to help get pets placed in loving homes, and it has potential to make a real difference in the lives of wild horses and burros.”

Why not treat wild horses and burros in a manner comparable to dogs and cats?

“Adoption is clearly a better outcome for a wild horse than starving on the range or living out the rest of its days in an overcrowded corral,” Downey and Watkins argue. “For taxpayers, the per-horse savings is undeniable. Spending $1,000 to find a mustang a good home is orders of magnitude cheaper — and likely much more humane — than caring for it in a government holding facility for the rest of its life.”

The BLM now spends more than $50 million a year to warehouse wild horses and burros, about 60 percent of its budget for protecting the beasts.

It’s worth a try.

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.

Wild horses being warehoused at Palomino Valley near Reno. (Photo by Jo Mitchell)

Newspaper column: Ending net neutrality speeded up Internet

It has been a year since the Federal Communication Commission repealed net neutrality rules created by Obama’s FCC in 2015. Yet, the Internet miraculously survives. In fact, it is running 36 percent faster now that the meddlesome feds have been removed from the equation and the free market has been allowed to compete and innovate.

Net neutrality resurrected 1930s-style Ma Bell regulations to prohibit Internet service providers from charging anyone different rates, even the bandwidth gluttons such as Netflix and Google.

Back in May the Senate even passed a resolution seeking to bring back net neutrality. Though the effort fortunately stalled, Nevada’s Democratic delegation to D.C. was all for putting the Internet under the heavy hand of the central planners.

Sen. Catherine Cortez Masto took to the Senate floor in support of the resolution, saying, “Net neutrality has leveled the playing field for every American consumer, allowing everyone to access and enjoy an open Internet. … We can’t afford to repeal net neutrality. (FCC) Chairman (Ajit) Pai’s misguided decision to repeal net neutrality protections threatens to change the Internet as we know it. It threatens our small businesses, access to online education, job growth and innovation by giving those who can afford to pay more the ability to set their own rules.”

Rep. Dina Titus declared, “I agree with the vast majority of Americans who want the internet to promote innovation, access to information, and a competitive economy. All of that is at risk without strong net neutrality protections.”

Getty Image via WSJ

Then-Rep., now-Sen. Jacky Rosen stated, “This administration’s reckless decision to repeal net neutrality gives internet service providers the ability to stack the deck against Nevada’s hardworking families and small businesses who could be forced to pay more to connect to an internet with slower speeds. This resolution would reverse the FCC’s misguided ruling, which places large corporate profits ahead of people, and restore access to a free and open internet for Nevadans.”

Sen. Dean Heller at the time reasonably argued for the free market approach. “I do not want the federal government to determine content. …” Heller said. “I also don’t want the federal government to tax the Internet. I believe the Internet is the last bastion of freedom in America, frankly both good and bad, but it’s freedom. … Access to free and open internet service providers is especially important for Nevadans living in rural communities.”

Heller was right. Rosen was wrong.

According to Speedtest, fixed broadband speeds in the United States are rapidly increasing. Data for 2018 revealed a 36 percent increase in mean download speed and a 22 percent increase in upload speed. This meant the U.S. ranked seventh in the world for download speed and Nevada ranked seventh in the nation.

Back when the net neutrality rules were jettisoned many in the news media predicted doom and gloom. CNN declared it was “the end of the internet as we know it.”

But The Wall Street Journal correctly stated at the time that net neutrality created uncertainty about what the FCC would allow and thus throttled investment in new technology, because it prohibited paid prioritization — under which bandwidth hogs, such as video streaming companies, could have opted out of heavy traffic and switched to a toll road — which could increase profits to pay for innovation and greater speed.

The newspaper predicted both content providers and consumers would benefit from increased investment in faster wireless and fiber technology in the free market.

The invisible hand of the free market has again proven itself superior to the heavy hand of the central planners.

As economist Milton Friedman once said: “When government — in pursuit of good intentions tries to rearrange the economy, legislate morality, or help special interests, the cost come in inefficiency, lack of motivation, and loss of freedom. Government should be a referee, not an active player.”

Be forewarned, when Democrats take control of the House, expect another ill-advised attempt to resurrect net neutrality, despite empirical evidence to the contrary.

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.