Newspaper column: What a difference a single word makes

Though the Nevada Constitution clearly states that any person serving in one branch of government may not perform “any function” of another branch, the Legislature’s lawyers, the Legislative Counsel Bureau (LCB), in 2002 penned a non-binding opinion that stated a person may serve in the Legislature if they do not exercise “any sovereign functions” in another branch.

The definition of the adjective sovereign is: “possessing supreme or ultimate power,” thus the LCB adulteration of the Constitution emasculates the plain language of the Separation of Powers Clause.

The Nevada Supreme Court will have the opportunity to clear up this matter.

State Sen. Heidi Gansert (R-J pix)

The Nevada Policy Research Institute’s (NPRI) legal arm, the Center for Justice and Constitutional Litigation (CJCL), this past week filed notice with the state high court that it is appealing the decision of a Carson City judge dismissing its lawsuit against a state senator for violating the Separation of Powers Clause.

“Defying the clear language of the Nevada constitution, Nevada Supreme Court precedent, and a 2004 Attorney General Advisory Opinion by then-attorney-general Governor Brian Sandoval, Judge (James) Russell relied upon a non-binding opinion from the Legislative Counsel Bureau in his ruling from the bench — but we believe the actual words of the state constitution should matter more,” declared CJCL Director Joseph Becker in an email press release.

In that 2004 opinion, Sandoval noted that in the 1957 Supreme Court case cited by the LCB as the basis for its opinion, the court never got to the point of ruling on the Separation of Powers Clause and dismissed it on other grounds.

CJCL sued state Sen. Heidi Gansert because she also is an employee of the University of Nevada, Reno.

“We believe the plain language of the constitution should take precedent over a non-binding LCB opinion, or the preferences of the ruling class,” commented Becker. “And we look forward to the appeals process finally giving further legal clarity on the issue.”

This fight has been going on for years.

There have been years in which nearly half the lawmakers in Carson City were either government employees or the spouses of government employees. In some years every Senate and Assembly leadership post was held by a public employee.

Currently 10 lawmakers hold down state or local government jobs. As such, despite clear conflicts of interest, the lawmakers can vote themselves raises and hand out largesse to their employers — as Gansert did in this past session by voting for 2 percent raises for state employees and a capital expenditure budget that included more than $40 million for a new engineering building at UNR.

In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution, but the court ruled that the Constitution gives lawmakers the power to determine the qualifications of their members. Thus, the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause.

Joseph Becker

But the court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”

Under that guidance, the CJCL first sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the Public Utilities Commission. A judge declared the case moot when Denis resigned his PUC job.

NPRI’s lawyers came back with a similar suit against Gansert on behalf of a person who wants her public relations job at UNR — a job that yields $210,000 a year in pay and benefits.

Now that the district court judge has ruled that the Separation of Powers Clause is meaningless, it is back to the Supreme Court.

The court should heed the words of U.S. Supreme Court Justice Louis Brandeis in a dissenting opinion from 1926, “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

Or they could turn to a 1967 Nevada Supreme Court opinion that flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

The words of the state Constitution should not be made meaningless by adding a word plucked out of thin air.

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.

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Can lawmakers raise the minimum wage since it is ensconced in the state Constitution?

miniwage

Democrats in the Nevada Legislature have introduced Senate Bill 106, which proposes to raise the minimum wage by 75 cents a year until it reaches $11 an hour for employers who provide health insurance and $12 an hour for those who do not.

This would affect profitability of employers, tend to push all hourly wage earnings up, possibly result in higher unemployment and increase the cost of goods and services in general — thus affecting nearly everyone in Nevada. The story was relegated to the bottom of the business page in the Las Vegas newspaper, but was the lede story in the Elko paper. AP gave it short shrift.

One minor problem with this proposed law is that the voters approved an initiative petition in 2004 and again in 2006 that amended the state Constitution to require that the minimum wage be tied to the federal minimum wage or inflation, whichever is higher. The current federal minimum wage is $7.25 an hour. The amendment also said the minimum wage would be a dollar higher for employees who failed to provide health insurance. So far as I can find, the amendment does not give lawmakers the option to alter this without asking the voters to again change the Constitution.

According to Legislative Counsel Bureau fact sheet published in 2015:

“Because provisions governing the minimum wage rate are included in the Constitution, any changes to the minimum wage provisions require a constitutional amendment. There are two ways to amend the Constitution. One way is through the citizen initiative process. Citizen initiatives for constitutional amendments must be approved in identical form in two consecutive general elections. This is the process that enacted the current minimum wage requirements in the Constitution. The second way to amend the Constitution is through the legislative process. The Senate or Assembly may propose a constitutional amendment, which must pass in identical form with a majority of members of both houses in two consecutive biennial sessions. After that, the proposal must pass a popular vote during the next general election.”

Just such a constitutional amendment was proposed in late 2015, but was dropped during the hectic election year, reportedly because the difficulty of getting enough signatures to put it on the ballot.

SB106 proposes to rewrite NRS605.250 to alter the minimum wage. That law currently reads: “Except as otherwise provided in this section, the Labor Commissioner shall, in accordance with federal law, establish by regulation the minimum wage which may be paid to employees in private employment within the State. The Labor Commissioner shall prescribe increases in the minimum wage in accordance with those prescribed by federal law, unless the Labor Commissioner determines that those increases are contrary to the public interest.”

Las Vegas newspaper columnist Victor Joecks quoted Gov. Brian Sandoval’s press secretary as saying:

“Due to the predicted loss of jobs and harm to small businesses, the potential to block young people and individuals with less work experience from open positions, and an increase in consumer prices, the Governor has historically opposed a legislative mandate to increase the minimum wage.”

This implies the governor might veto such a bill even if it passes constitutional muster.

As I’ve pointed out on a number of occasions the impact of such a bill is far ranging and carries unintended consequences.

“Unfortunately, the real minimum wage is always zero,” economist Thomas Sowell points out, “regardless of the laws, and that is the wage that many workers receive in the wake of the creation or escalation of a government-mandated minimum wage, because they either lose their jobs or fail to find jobs when they enter the labor force.”

The Congressional Budget Office has estimated that if the federal minimum wage were increased to $10.10 an hour — as proposed by President Obama and others — up to a million workers would lose their jobs.

According to the American Enterprise Institute, when the minimum wage rose 41 percent between 2007 and 2009, the jobless rate for 16- to 19-year-olds increased by 10 percentage points, from about 16 percent in 2007 to more than 26 percent in 2009 — even higher for minorities.

These are entry level jobs without which younger Americans cannot build the skills needed to earn higher pay.

Another Heritage study reported that every dollar increase in minimum wage really only raises take-home pay by 20 cents once welfare benefits are reduced and taxes are increased.

Then there are the affects on everyone. A Cato Institute analysis reports that a “comprehensive review of more than 20 minimum wage studies looking at price effects found that a 10 percent increase in the U.S. minimum wage raises food prices by up to 4 percent and overall prices by up to 0.4 percent.”

Minimage wages also tend to push younger workers with less worthy skills out of the job market, and Nevada already has the 10th highest youth unemployment rate in the nation at 13.5 percent.

Editorial: State agency orders feds to return stream to church retreat property

Erosion on church retreat property.

Over a tiny tract of land — nestled in the middle of the Ash Meadows National Wildlife Refuge northwest of Pahrump that a church uses for a retreat — a state agency has pierced the dark bureaucratic clouds with a ray of sunshine.

In 2010 the U.S. Fish and Wildlife Service rerouted a stream that had run through the Ministero Roca Solida (Solid Rock) church’s 40-acre parcel of private land since at least the 1880s. The church purchased the land in 2006 and used the stream for traditional baptisms. The federal agency claimed it needed to reroute the stream so it could reintroduce speckled dace, an endangered minnow.

The rerouted spring-fed stream promptly overflowed its poorly engineered banks during a rain storm in 2010, presumably washing away the dace as well. Flooding occurred again in 2015 and twice this year, extensively damaging buildings and creating massive gullies.

But in an order dated Nov. 4 the state Division of Water Resources, arbiter of water rights in Nevada, demanded that Fish and Wildlife within 90 days return the stream to its original banks transversing the church retreat property or face a fine of $10,000 per day.

The state water agency concluded that the contention by Fish and Wildlife that it was reestablishing a historic natural drainage course is clearly wrong and the Carson Slough historically traversed the church land and the church has vested rights to the water, as well as the evidence to prove it, dating as far back as 1887.

The Solid Rock church, pastored by Victor Fuentes, a Cuban immigrant, has been fighting the federal land agency in court for several years with the aid of Nevada Policy Research Institute’s legal arm, the Center for Justice and Constitutional Litigation. The court case is currently pending in the U.S. Court of Federal Claims.

“Getting the water returned would be a major first step in making the Ministry whole, after years of suffering litigation and egregious constitutional violations by the U.S. Fish and Wildlife Service,” said Joe Becker, director of NPRI’s legal unit. “However, the Ministry still suffered significant harm in the interim from the federal government’s actions — including repeated flooding and five years of flood damage resulting from the illegal water diversion project.”

The first flooding caused $86,000 in damages, but subsequent floods have created so much damage the church is seeking $3 million or complete restoration of the property to its original status. Becker said, “A mini-grand-canyon now cuts through what was once lush wetlands, and the significant improvements made to structures and the land for the benefit of young campers are being undone with each recurring flood.”

The state’s action is a step in the right direction toward restoring the church’s property and water rights, but the federal government needs to repair or pay for the damage it has caused.

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: Lawmakers hand out unconstitutional corporate gift to another billionaire

Gov. Brian Sandoval signs a bill giving public tax money to build a football stadium. (AP photo by John Locher)

Gov. Brian Sandoval signs a bill giving public tax money to build a football stadium. (AP photo by John Locher)

Meeting in special session in Carson City this past week Nevada lawmakers opened the windows and threw caution and tax money to the wind, voting to raise the room tax rate in much of Clark County by 0.88 of a percentage point in order to contribute $750 million toward construction of a 65,000-seat domed football stadium estimated to cost $1.9 billion.

The measure, Senate Bill 1, passed by the constitutionally mandated two-thirds majority in both the Senate and Assembly – 16-5 in the Senate and 28-13 in the Assembly.

The stadium is being pushed by billionaire casino and newspaper owner Sheldon Adelson who promises to shell out $650 million from his rather deep pockets to pay for construction. The National Football League and the Oakland Raiders are supposed to contribute $500 million toward construction. The $750 million public sop is the largest ever by any public entity for a sports facility in this country.

All profits from stadium operations accrue strictly to the private investors.

At one point during the Assembly hearings, Assemblyman Ira Hansen of Sparks asked what happens if the stadium comes in under the $1.9 billion estimate. Would the taxpayers still be on the hook for the full $750 million?

Steve Hill of the Governor’s Office of Economic Development, which had touted the project, replied: “Technically that’s correct.”

Before Hill could elaborate, Hansen cut him off with a terse: “Thank you.”

So, if the project comes in closer to the original estimate of $1 billion, the taxpayers will pick up 75 percent of the cost and the billionaires keep their money.

One of those testifying against the public spending for a football stadium for the Raiders was former Las Vegas City Councilman Frank Hawkins, who noted that he played seven seasons for the Raiders, including winning a Super Bowl. Hawkins said billionaires don’t need the public tax money to fund 40 percent of their stadium. He also noted that Raiders owner Mark Davis had called to try to change his mind by agreeing to no television blackouts locally for games that are not sellouts.

SB1 creates a stadium authority to build and operate the stadium, exempts the authority from any legal requirements for competitive bidding and makes just about every financial deal cut by the authority exempt from public records laws.

The bill says “the Stadium Authority shall keep confidential any record or other document provided to the Stadium Authority by a developer partner, the National Football League team or the Stadium Events Company,” if asked to do so. The public will be kept in the dark about whether their “public” stadium is providing valuable public assets to a favored few at below market value.

The Legislature certainly has the power to create exemptions to existing laws.

What it does not have is the power to create exemptions to the state Constitution. That document has a Gift Clause, which states, “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

Self-styled economic development advocates have tried three times to amend the Constitution and remove the Gift Clause. The voters rejected those attempts all three times — in 1992, 1996 and again in 2000 by wide majorities.

The state Supreme Court has said that when the state provides something to a private entity without getting adequate compensation for the value, that is a gift and thus a violation of the Constitution.

Nevada’s high court has cited an Arizona Supreme Court ruling on that state’s nearly identical Gift Clause. The Arizona court said its Gift Clause “represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities, and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.”

Professional football hardly qualifies as even a quasi public purpose unless you include “bread and circuses.”

This was the third special session in as many years. The previous two handed out billions in tax breaks and abatements to the billionaire owners of electric car companies Tesla and Faraday Future.

Perhaps some public spirited group will ask the courts to take a look at this latest generous gift and determine whether it truly is for a public purpose.

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.

Update: Space was insufficient to provide this quote from a Nebraska court ruling:

“Every new business, manufacturing plant, or industrial plant which may be established in a municipality will be of some benefit to the municipality. A new super market, a new department store, a new meat market, a steel mill, a crate manufacturing plant, a pulp mill, or other establishments which could be named without end, may be of material benefit to the growth, progress, development and prosperity of a municipality. But these considerations do not make the acquisition of land and the erection of buildings, for such purposes, a municipal purpose. Our organic law prohibits the expenditure of public money for a private purpose. It does not matter whether the money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does not matter what such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system.”

This and the Arizona court ruling were cited by the the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation in its case against the Governor’s Office of Economic Development for handing out state gifts to companies such as SolarCity.

 

Editorial: Federal stream diversion has washed out church property

Patch of Heaven erosion

The little Patch of Heaven keeps getting washed away a little bit at a time.

Since 2010 the Ministero Roca Solida (Solid Rock) church, which owns a 40-acre parcel of private land nestled in the middle of the Ash Meadows National Wildlife Refuge northwest of Pahrump that it calls Patch of Heaven, has been fighting to protect its property and water rights from the federal government.

After the U.S. Fish and Wildlife Service rerouted a stream that had run through the church property since at least the 1880s, putatively in an effort to reintroduce speckled dace, an endangered minnow, the rerouted stream overflowed its poorly engineered banks in 2010, again in 2015 and now twice this year extensively damaging the private land.

The first flooding cause $86,000 but the subsequent floods have created so much damage the church’s attorney is asking the federal court to award the church the entire value of the now practically unusable property and the value of five years of water rights for which the church as been deprived — $3 million or completely restore the property to its pre-diversion-project status.

The church claims the stream diversion was in violation of both federal and state laws.

Church minister Victor Fuentes and his wife purchased the land and its buildings in 2006 for $500,000 using church donations with the intent of using the property as a church retreat and to use the stream that ran through it for baptisms, recreation and for livestock. The church has since upgraded the buildings.

The church is being represented by the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation, which is operated by attorney Joseph Becker.

Becker wrote in the latest lawsuit, filed this past month, that the Fish and Wildlife stream diversion moved the stream completely off of the church property and onto higher ground, which has resulted in modest rainfalls causing the stream to flood back into its original channel but in such a way that the water has eroded the land, “leaving a mini-Grand-Canyonlike landscape in the flood’s wake.” (Fuentes final complaint)

He added, “With each subsequent rainfall, the new rainfall creates new pathways for rushing water to re-enter Plaintiff’s land. The result is that less and less rainfall now results in more and more flooding and flood damage.”

The case has dragged on so long that there is a danger of running past the statute of limitations for a takings claim under the Fifth Amendment, which prohibits taking of private property without just compensation.

In addition to the erosion and other damages, the suit notes that the federal land agency has been frequently closing access roads to the church’s property, purportedly due to the flooding caused by the government, and is failing to maintain access roads as required by an agreement with Nye County, making it difficult to even access the property.

Further, Becker writes, “Campers are typically dropped off in buses, which then depart the premises and return at the conclusion of camp, thus leaving would-be campers stranded and in danger of harm on the grounds in the event of precipitation and flooding.”

The courts need to step up and force the federal land agencies to treat private property and water rights with the respect guaranteed in the U.S. Constitution.

Patch of Heaven flooding

A version of this editorial appears this past 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.

Owners of church await justice

Church tries to get Supreme Court to hear case

Feds can take property rights

NPRI fights federal power

 

Newspaper column: Lawsuit challenges practice of state gifts to private companies

Earlier this month the Nevada Supreme Court heard arguments on procedural matters in a case that seeks to have declared unconstitutional the state’s practice of handing out gifts to businesses that agree to operate in Nevada and create jobs.

The plaintiff in the case is Michael Little, owner of a company that converts recycled landscape trimmings into biomass, a renewable energy source. The suit grew out of the fact the Governor’s Office of Economic Development (GOED) gave $1.2 million to one of his competitors, SolarCity, a company that installs solar panels. That was part of a $10 million Catalyst Fund.

Plaintiff Michael Little

The suit claims the gift to SolarCity violates the Gift Clause of the state Constitution, which prohibits the state donating or loaning money to any company. Little is represented by Center for Justice and Constitutional Litigation (CJCL), a division of the Nevada Policy Research Institute.

Joseph Becker, chief legal officer and director of the CJCL, said he is pleased the state Supreme Court agreed to hear arguments on whether Little has “standing” as a taxpayer to pursue the lawsuit.

“It seemed to me the court was very sympathetic to our plight, and that is that absent taxpayer standing it’s very difficult to keep a state government within its constitutional constraints,” Becker said in a recent interview. “Forty-six states have at least some form of taxpayer standing, three explicitly have rejected taxpayer standing, and one state, up until now, has no taxpayer standing jurisprudence whatsoever, according to legal scholars, and that state, of course, is the very one in which we find ourselves. Given the nature of the questions, I’m optimistic that they see this as problem and they’re willing to address it.”

A ruling giving Little standing as a taxpayer would send the case back to district court to be heard on its merits.

Becker explained that CJCL is in the business of trying to set precedent that serves the public interest, and having the Supreme Court say a taxpayer has standing to challenge unconstitutional tax expenditures is very important.

The Supreme Court hearing gave Becker the chance to point out to the court the fact that the voters have on three occasions rejected attempts to amend the state Constitution and remove the Gift Clause — in 1992, 1996 and again in 2000 by wide majorities.

Gift clauses started appearing in state constitutions in the mid-1800s after state governments in the East invested heavily in private companies building infrastructure such as canals and railroads that went bust. The states of Indiana, Illinois and Michigan were bankrupted as a result.

The Nevada Constitution specifically states: “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

“We needed a vote of the people to change the Constitution, which never happened, but now suddenly its OK for the state to do something that up until now, even they insisted, would take a constitutional amendment,” Becker said bemusedly. “I tried to make that point and I think did,” noting the justices asked for citations about the balloting.

Becker also noted the very timeliness of the case in light of the fact SolarCity, after drawing $400,000 of its allocated $1.2 million, announced just before Christmas that it is ceasing new operations in Nevada and laying off 550 employees after the state Public Utilities Commission drastically increased the connection fees for solar panel owners and slashed the amount paid for solar power uploaded to the grid.

Becker noted his organization has been arguing all along that the reason these Gift Clause provisions were put in Western constitutions is because of the experience of those bankrupted Eastern states, where taxpayers found themselves having to bail out government spending boondoggles that benefited some private party that was somehow friendly with the people in office.

“I pointed out to the court that this is exactly the kind of problem that this provision was intended to prevent and the voters didn’t want that changed,” the attorney said. “It is the court’s job to protect against the tyranny of the majority, but here we’re protecting against the power elite.”

Pure cronyism.

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

 

Newspaper column: Courts should put a stop to governor’s corporate welfare program

The attorney for the legal arm of a libertarian-leaning Nevada think tank this past week asked the state district court in Carson City to issue a summary judgment that would essentially put the Governor’s Office of Economic Development (GOED) out of business.

The GOED was created as a way to dispense public tax money from a $10 million Catalyst Fund to companies in hopes of creating new jobs and jumpstarting the recession-retarded economy.

The request for summary judgment grows out of a lawsuit filed earlier this year by the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation (CJCL) on behalf of Michael Little, a Nevada alternative-energy entrepreneur and a taxpayer, because the GOED planned to give $1.2 million to one of his competitors, SolarCity, a company owned by a billionaire that installs solar panels.

Little owns Landfill Alternative, a company that converts recycled landscape trimmings into biomass.

Michael Little at his biomass business.

The suit claims the gift to SolarCity violates the Gift Clause of the state Constitution, which prohibits the state donating or loaning money to any company.

In a deposition given in the court case, GOED’s Executive Director Steven Hill admitted that the state giving money directly to a company would violate the Constitution, so instead the money is funneled through the various county governments.

Sounds like the very definition of a money laundering scheme — a third-party is used to obscure the transfer of illicit funds from the source to its destination.

In the recent court filing, Joseph Becker, chief legal officer and director of the CJCL, points out the state has three times asked the voters of Nevada to amend the Constitution to allow handing out public funds to private companies and each time the amendments soundly defeated.

“This scheme … runs afoul of the plain language of the Nevada State Constitution, the will of the people of Nevada as evidenced by three consecutive four-year elections,” writes Becker, “and, if not held unconstitutional, sets a very dangerous precedent whereby the State, when constitutionally prohibited from acting in certain ways, firsts creates a political subdivision and then subcontracts with that political subdivision to act as an intermediary to do the very thing the Nevada Constitution explicitly prohibits. What next?! Hiring private security companies to conduct warrantless searches in instances where the state would otherwise be constitutionally prohibited?!”

Becker asserts that the case presents no genuine issue of material fact and his client is entitled to judgment as a matter of law because the state “is not entitled to build a case on the gossamer threads of whimsy, speculation, and conjecture” — a reference to case law.

The CJCL motion also quotes at length from an opinion by the Nebraska Supreme Court discussing the constitutional and practical ramifications of that state’s almost identical Gift Clause. The opinion concedes that just about any new factory or retail store might be deemed to benefit a community’s progress and prosperity, but under state law public money cannot be appropriated for private purposes and doing so is self-destructive as well.

“It does not matter what such undertakings may be called or how worthwhile they may appear to be at the passing moment,” the court opines. “The financing of private enterprise by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system.”

In fact, Gift Clauses were enacted in many state constitutions precisely because of the experiences of a number of states during the mid-19th century that loaned public money to private firms for the construction of railroads, canals and other infrastructure only to see the companies go broke and leave the taxpayers holding the debt with no assets to show for it.

“It is an illusion — one that seems to have the persistence of original sin — that prosperity can be attained by taking money from taxpayers and handing it to favored businesses. …” the motion for summary judgment concludes. “The idea of government intervention to influence the composition of a country’s output has long been derided by economists for breeding inefficiency, reducing competition, encouraging lobbying and saddling countries with factories producing products nobody wants.”

As Adam Smith wrote in 1776: “It is the highest impertinence and presumption, therefore, in kings and ministers to pretend to watch over the economy of private people … They are themselves always, and without any exception, the greatest spendthrifts in the society.”

The state should not take from some taxpayers and give to others no matter its motives or methods.

This column ran this week in The Ely Times, the Mesquite Local News and the Elko Daily Free Press.