Many laws have what are known as severability clauses that declare that if any part of the law is dinged by the courts the rest will stand.
Democrats in Carson City have come up with an anti-severability clause. According to the morning paper, Senate Bill 551 cobbles together some education funding and a tax measure that would allow a portion of the modified business tax that is scheduled to be reduced to continue at the current rate, generating an additional $100 million in revenue over the next biennium.
The Legislative Counsel Bureau has opined that the tax rate can be maintained by a simple majority vote, even though the state Constitution requires a two-thirds majority vote in both houses if a bill “creates, generates, or increases any public revenue in any form …” The state Senate is one Democrat shy of having a two-thirds lock.
The newspaper reports, “The bill also includes poison pill language should Republicans challenge the two-thirds requirement in court. A ruling against the tax extension or any other provision of the bill would invalidate it in its entirety. Senate Democrats framed the bill, introduced with only a digest Monday, as a choice between support for education or a ‘corporate tax cut.’”
This is obviously a ruse to get one Republican to vote for the bill so it passes with the constitutionally mandated two-thirds. As dirty a trick as one could devise.
“Using children to try and pass a tax increase? Pretty sad,” Republican Senate Minority Leader James Settelmeyer of Minden was quoted as saying.
Republican Senate Minority Leader James Settelmeyer of Minden. (R-J file pix)
This past week the Legislative Counsel Bureau, the Legislature’s attorneys, told Democratic Gov. Steve Sisolak and the Democratic majorities in both the state Senate and Assembly what they wanted to hear: Extending taxes scheduled by law to be reduced does not require a two-thirds vote of all lawmakers, just a simple majority.
In the 21-member Senate, Democrats are one shy of the 14 votes required to meet the two-thirds threshold established by a constitutional amendment approved by voters in 1994 and 1996, which states “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”
The governor pledged in his State of the State speech at the start of the legislative session that his $8.9 billion general fund budget contained no new taxes, but it does include a proposal to keep at the current rates two taxes that are scheduled to be reduced in June.
The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have. A tax on vehicle registration was also approved with the caveat that it would go down in June, the start of the fiscal year.
The scheduled reduction in the modified business tax would reduce annual revenues by $48 million a year, while the vehicle tax revenue would drop by $21 million a year — a total of $138 million for the two-year budget.
Continuing that burden on taxpayers sure sounds like it “creates, generates, or increases” public revenue. It certainly generates.
But the LCB is telling lawmakers, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”
Not binding? How can something approved by a two-thirds majority be undone by a simple majority?
Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary.
Gov. Sisolak said he appreciated the decision.
“Regardless, I am continuing conversations with legislative leaders of both parties about supporting my budget that would keep funding at our current levels in order to help fund our schools and educators, provide health coverage under Medicaid expansion for our families, and feed our seniors through Meals on Wheels,” his statement said. “As this legislative session comes to a close, I look forward to working with the Legislature to pass a budget that reflects our core values – making sure that Nevada’s economic recovery reaches every family, that our schools prepare every child to reach their potential, and that our health care system is there for every Nevadan who needs it.”
But several media outlets quoted Senate Minority Leader James Settelmeyer as calling the opinion “a work of legal fiction.”
He also said he does not believe any member of the Senate Republican caucus would break ranks and give the Democrats the one vote they would need to reach the two-thirds majority threshold. He also said that passage of the tax extensions by a simple majority would doubtlessly end in litigation.
“Unfortunately, it means that the majority party has decided to not try to reach compromise or discussions on issues, and unfortunately going down this road just guarantees legal challenge,” Settelmeyer was quoted as saying.
The Nevada Supreme Court did rule in 2003 that taxes could be raised by a simple majority vote if the lawmakers failed to adequately fund education as required by the Constitution, but that opinion was reversed in 2006 when the court ruled, “The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.”
If lawmakers try to continue to assess those two taxes without a two-thirds majority, it certainly should end up in court.
The appalling Constitution-bending practice by which law enforcement agencies have for years seized private property under the presumption it is the product of criminal activity without ever having to go the bothersome effort of actually, you know, obtaining a criminal conviction continues apace.
The latest ignoble example of what is called civil asset forfeiture comes to us from Texas in the case of Leonard v. Texas.
The U.S. Supreme Court declined to hear the case because the attorneys for Lisa Olivia Leonard, whose $200,000 in cash was confiscated when her son was detained during a traffic stop, were arguing the seizure violated the Due Process Clause of the Constitution, but they had failed to make that argument before the lower courts. So, it was not yet ripe for the high court.
The Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …”
Humboldt County deputy with K-9 and $50,000 in seized cash.
In April of 2013, a police officer stopped James Leonard for a traffic infraction, and, during a search a safe was found in the trunk. Leonard told police the safe belonged to his mother. After a search warrant was obtained, police found the safe contained $201,100 and a bill of sale for a home in Pennsylvania.
Texas filed for civil forfeiture of the money, claiming it was the profits from illegal drug sales, though Lisa Leonard said the money was from the sale of a house. A trial court and an appellate court did not believe that, even though no one was convicted of a crime.
Though he agreed the court should not yet hear the case, Justice Clarence Thomas wrote a six-page commentary on the evils of civil asset forfeiture.
Justice Thomas said of civil asset forfeitures, “This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights. …In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver.”
Nevada has its own record of suspect civil asset forfeiture cases. Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists.
In one case a dashboard camera caught a deputy seizing $50,000 from a man who claimed he won it at a casino. “You’ll burn it up in attorney fees before we give it back to you,” the deputy said. The man was threatened with having his car impounded, too, if he did not cooperate and waive his rights.
Some states have passed laws to curb the extortionate practice by police by requiring that an actual criminal conviction before assets may be taken.
During the 2015 legislative session Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden sponsored a bill that would have established just such a requirement, but by the time the bill came out of the legislative sausage grinder it merely required police agencies to report their confiscations to the state and specifically declared convictions would not be necessary.
No one has deigned to try to challenge civil asset forfeitures this year in Carson City, but someone should.
UPDATE: On Monday state Sen. Don Gustavson filed Senate Bill 358 that would require proof of a criminal conviction, a plea agreement or an agreement by the parties before property could be taken under a civil asset forfeiture.
A bill is wending its ways through the halls of the legislative building in Carson City that would jettison the current Democrat and Republican primaries in favor of an open primary system, in which anyone could sign up as a candidate and anyone could vote for anyone of any party or no party. The top two vote getters would advance to the General Election, even if both are affiliated with the same party.
The bill would make the two major political parties largely irrelevant in actually selecting their own candidates and reduce them to the role of merely endorsing candidates.
Senate Bill 103 was introduced by Republican state Sen. James Settelmeyer of Minden.
The Legislative Counsel Bureau digest says of the bill: “This bill changes the nominating process for partisan offices to create a modified nonpartisan ‘blanket’ primary system in which the names of all candidates appear on the primary election ballot and any registered voter may vote for any candidate, regardless of affiliation with a political party.”
Settelmeyer has told the media that some of his constituents were upset that they could not vote in the primary because they were nonpartisan.
As of December, 39 percent of active Nevada voters were Democrats, 33 percent Republicans and 28 percent nonpartisan or members of some other minor party.
The whole concept of partisan party politics is to facilitate persons of like-minded political persuasions to organize and select candidates that promise to advance a given philosophy of governance — though in recent years the efficacy of this proposition has been suspect in Nevada with self-styled conservatives voting for history making tax hikes.
We’ve never been in favor of forcing all taxpayers, including nonpartisans and members of other parties, to pay for the primaries the state puts on for the Democrat and Republican parties. Let those parties pay for their primaries or caucuses or smoke-filled backrooms.
But an open primary system makes it more difficult for the average voter to weigh the various candidates based on past allegiances and opens the opportunity for Fifth Column candidates to claim to be what they are not. Faux Democrats or faux Republicans could flood the ballot and split the vote for a party’s real favorite. It also lessens the visibility and potential for third party candidates who likely would be eliminated in the primary.
In Louisiana in the 1970s Democratic Gov. Edwin Edwards hatched a foolproof plan to end the Republican Party in that state. He pushed through an open primary under the assumption Republicans would not make it to the General Election, due to heavy Democratic majorities in the urban areas of the state, meaning two Democrats would face off in November.
But the best laid plans oft gang awry. In the next election there were seven Democrats on the gubernatorial ballot, one nonpartisan and one Republican. When the smoke cleared, Republican Dave Treen was elected governor, leading the way for the state to transition to Republican domination.
At least the open primary is better than letting anyone and everyone decide on Election Day in which primary they will vote, which some states allow.
Think of it this way. Political parties are like brands. Without brands who knows what adulterated product you are getting.
Politics is messy. Open primaries just make it messier.
At the turn of the previous century Baltimore’s notoriously curmudgeonly newspaper columnist, H.L. Mencken, pined for more realism in politics: “The voter would make his selection in the full knowledge of all the facts, as he makes his selection between two heads of cabbage, or two evening papers, or two brands of chewing tobacco. Today he chooses his rulers as he buys bootleg whiskey, never knowing precisely what he is getting, only certain that it is not what it pretends to be. The Scotch may turn out to be wood alcohol or it may turn out to be gasoline; in either case it is not Scotch. … The danger is that the hopeless voters, forever victimized by his false assumption about politicians, may in the end gather such ferocious indignation that he will abolish them teetotally and at one insane sweep, and so cause government by the people, for the people and with the people to perish from this earth.”
In 2014, only 59 percent of those eligible to vote in Nevada even bothered to register. Of those who registered, only 46 percent went to the polls in November, meaning 73 percent of those eligible to vote did not choose any brand of bootleg whiskey.
A bill has been introduced in Carson City that would jettison the current Democrat and Republican primaries in favor of an open primary system, in which anyone could sign up as a candidate and anyone could vote for anyone of any party or no party. The top two vote getters would advance to the General Election, even if both are affiliated with the same party or no party.
The bill would make the two major political parties irrelevant in actually selecting their own candidates and reduce them to the role of merely endorsing candidates.
Senate Bill 103 was introduced by Republican state Sen. James Settelmeyer of Minden.
Settelmeyer told the media that some of his constituents were upset that they could not vote in the primary because they were nonpartisan.
As of December, 39 percent of active Nevada voters were Democrats, 33 percent Republicans and 28 percent nonpartisan or members of some other minor party.
The whole concept of partisan party politics is to facilitate persons of like-minded political persuasions to organize and select candidates that promise to advance a given philosophy of governance — though in recent years the efficacy of this proposition has been suspect in Nevada with self-styled conservatives voting for history making tax hikes.
Now, I’ve never been in favor of forcing all taxpayers, including nonpartisans and members of other parties, to pay for the primaries the state puts on for the Democrat and Republican parties. Let those parties pay for their primaries or caucuses or smoke-filled backrooms.
But the open primary system makes it more difficult to weigh the various candidates based on past allegiances and opens the opportunity for Fifth Column candidates to claim to be what they are not. Faux Democrats or Republicans could flood the ballot and split the vote for a party’s real selection.
In Louisiana in the 1970s Democratic Gov. Edwin Edwards hatched a foolproof plan to end the Republican Party in that state. He pushed through an open primary under the assumption Republicans would not make it to the General Election, due to heavy Democratic majorities in the urban areas of the state, meaning two Democrats would face off in November.
But the best laid plans oft gang awry. In the next election there were seven Democrats on the gubernatorial ballot, one nonpartisan and one Republican. When the smoke cleared, Republican Dave Treen was elected governor, leading the way for the state to transition to Republican domination.
At least the open primary is better than letting anyone and everyone decide on Election Day in which primary they will vote.
Think of it this way. Political parties are like brands. Without brands who knows what adulterated product you are getting.
Politics is messy. Open primaries just make it messier.
At the turn of the previous century Baltimore’s notoriously curmudgeonly newspaper columnist, H.L. Mencken, pined for more realism in politics:
“I can imagine a political campaign purged of all the current false assumptions and false pretenses — a campaign in which, on election day, the voters went to the polls clearly informed that the choice between them was not between an angel and a devil, a good man and a bad man, but between two frank go-getters, the one perhaps excelling at beautiful and nonsensical words and the other at silent and prehensile deeds — the one a chautauqua orator and the other the porch-climber. There would be, in that choice, something free, candid and exhilarating. The Buncome would be adjourned. The voter would make his selection in the full knowledge of all the facts, as he makes his selection between two heads of cabbage, or two evening papers, or two brands of chewing tobacco. Today he chooses his rulers as he buys bootleg whiskey, never knowing precisely what he is getting, only certain that it is not what it pretends to be. The Scotch may turn out to be wood alcohol or it may turn out to be gasoline; in either case it is not Scotch. How much better if it were plainly labeled, for wood alcohol and gasoline both have their uses — higher uses, indeed that Scotch. The danger is that the swindled and poisoned consumer, despairing of ever avoiding them when he doesn’t want them, and actually enforce his own prohibition. The danger is that the hopeless voters, forever victimized by his false assumption about politicians, may in the end gather such ferocious indignation that he will abolish them teetotally and at one insane sweep, and so cause government by the people, for the people and with the people to perish from this earth.”
In 2014, only 59 percent of those eligible to vote in Nevada even bothered to register. Of those who registered, only 46 percent went to the polls in November, meaning 73 percent of those eligible to vote did not choose any brand of bootleg whiskey.
Here we go again. Teeth are being gnashed. Hands are being wrung. People are whining about how unseemly, uncouth and unAmerican the very thought of a presidential caucus is compared to a nice aseptic primary.
The Legislature dithers.
Assembly Bill 302 would change the presidential caucuses of the two major parties to primaries in February, though why the Democrats need bother is another question entirely.
Senate Bill 421 would move all statewide primaries to the last Tuesday in February of even-numbered years, which would mean candidates would have to file a year before the General Election and make the general election season run from March through October. Hopefully, that is going nowhere fast. That is more politics than any of us could tolerate.
Republican state Sen. James Settelmeyer of Minden, a co-sponsor of SB421, has been quoted as saying his constituents “didn’t feel they had the ability to speak freely or felt intimidated by the (caucus) process,” and that voting “is a private thing, and I don’t believe the caucus is private.”
Unlike primaries, in which people show up sometime during the day and take a few minutes to step behind the veil of a voting machine, caucuses typically take place on Saturday and can involve hours of breaking up into precinct meetings, debating candidate qualification and voting by a show of hands or some other public expression of support.
Republic caucus meeting in Las Vegas high school in 2012. (Getty Images)
Frankly, political parties should nominate their candidates by whatever means they choose without interference from the state or funding by the taxpayers. By the way, the Australian, or secret, ballot was not widely used in this country until the late 1800s.
After the Nevada Republican presidential caucuses in 2012, it was widely reported that it wasn’t exactly a well-oiled machine. There were long delays, breakdowns in communication, misfires and miscues. One person tweeted: “GOP organization — an oxymoron.”
At the time people complained that they actually were required to publicly vote and actually talk to other human beings about politics. You’d think they’d been required to mud wrestle each other.
Back in 2008 Democrat Dina Titus, now in Congress, promised to introduce a bill to change from presidential caucuses to primaries in Nevada. “This notion of neighbors getting together with neighbors to talk about politics, that’s just not Nevada,” she said. “What I found in my caucus is that the meeting didn’t lead to collaboration, cooperation and a good discussion. It led to hostility. It’s too complicated.” And she was a professor of political science — another oxymoron.
Columbia School of Law professor and election law expert Nathaniel Persily once observed, “The move toward primaries has transferred power away from political parties to the media, who are then in a position to describe someone as having momentum.” We agree.
In fact, current state law has the two major parties permanently ensconced, conducting primaries for them and paying costs and dictating when they will occur, while other minor parties must fend for themselves in conventions or caucuses to select their candidates. The Democrats and the Republicans should do the same. Perhaps, with real competition one of them might be overtaken by one of those minor parties.
Maybe we should bring back smoke-filled rooms with ward heelers arm wrestling and cajoling and making deals. Maybe then we would get candidates who stand for principles instead of hollow platitudes and slogans appealing to the widest possible range of slack-jawed dullards too simple minded to express an opinion in public and actually have to defend it.
Actually, we sometimes think Thomas Jefferson had the right idea: “I am not a Federalist, because I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to heaven but with a party, I would not go there at all.”
The state should remove itself as far as possible from the conduct of all political parties, major or minor.
Here we go again. Teeth are being gnashed. Hands are being wrung. People are whining about how unseemly, uncouth and unAmerican the very thought of a presidential caucus is compared to a nice aseptic primary.
As the Legislature dithers on this topic, it warranted a story on the front page today in the Las Vegas newspaper, including the absurd claim that some presidential campaigns are threatening to skip the Nevada Republican caucus due to fears that the libertarian-leaning party is stacked in favor of Rand Paul, son of Ron Paul who finished second in 2012. (Side observation, the story warrants the front page in print, but I defy you to track it down online. It is relegated to the “Today’s headlines” bone yard.)
Assembly Bill 302 would change the presidential caucuses of the two major parties to primaries in February, though why the Democrats need bother is another question entirely.
Senate Bill 421 would move all statewide primaries to the last Tuesday in February of even-numbered years, which would mean candidates would have to file a year before the General Election and make the general election season run from March through October. Hopefully, that is going nowhere fast. That is more politics than even I could stand.
The paper quotes Republican state Sen. James Settelmeyer of Minden, a co-sponsor of SB421, as saying his constituents “didn’t feel they had the ability to speak freely or felt intimidated by the process,” and that voting “is a private thing, and I don’t believe the caucus is private.”
No, the political parties nominate their candidates. They should nominate them in whatever way they choose without interference from the state or funding by the taxpayers. And, by the way, the Australian, or secret, ballot was not widely used in this country until the late 1800s.
After attending the Republican presidential caucus in 2012, I reported that it wasn’t exactly a well-oiled machine. There were long delays, breakdowns in communication, misfires and miscues. In fact, 20 minutes into it I sent out a tweet or twit or whatever saying: “GOP organization — an oxymoron.”
Yes, people complained that they actually were required to publicly vote and actually talk to other human beings about politics. You’d think they’d been required to mud wrestle each other.
Back in 2008 Democrat Dina Titus, now in Congress, promised to introduce a bill to change from presidential caucuses to primaries in Nevada. “This notion of neighbors getting together with neighbors to talk about politics, that’s just not Nevada,” she said. “What I found in my caucus is that the meeting didn’t lead to collaboration, cooperation and a good discussion. It led to hostility. It’s too complicated.” And she was a professor of political science — another oxymoron.
I used that quote in a column in which I talked about Columbia School of Law professor and election law expert Nathaniel Persily saying, “The move toward primaries has transferred power away from political parties to the media, who are then in a position to describe someone as having momentum.” I agreed.
In fact, state law has the two major parties permanently ensconced, while other parties must fend for themselves in conventions or caucuses to select their candidates. The Democrats and the Republicans should do the same. Perhaps, with real competition one of them might be overtaken by Curmudgocrats or the Latter-day Whigs.
It is time to scrap the idea of primaries and caucuses. Bring back smoke-filled rooms with ward heelers arm wrestling and cajoling and making deals. Maybe then we would get candidates who stand for principles instead of hollow platitudes and slogans appealing to the widest possible range of slack-jawed dullards too simple minded to express an opinion in public and actually have to defend it.
“I am not a Federalist, because I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to heaven but with a party, I would not go there at all.”
Only four state senators had the gumption today to vote against the governor’s margin tax lite, which taxes businesses based on their gross receipts in the same way as the proposal on November’s ballot, which was defeated by voters by a 4-to-1 margin.
The four were Republicans Pete Giocoechea, Donald Gustavson, Scott Hammond and James Settelmeyer. That means seven Republicans and all the Democrats voted for Senate Bill 252, making the final vote 17-4. It now goes to the Assembly, where its fate is unknown.
State Treasurer Dan Schwartz and Controller Ron Knecht jointly sent out a press release calling on the Assembly to reject the bill. Press release on SB252
“To propose a tax that has been explicitly rejected by Nevada voters displays a blatant disregard for the democratic process. The Governor has called for alternatives. Those have been provided. They should be considered along with reprioritizing several proposed expenditures,” said Schwartz.
Assembly member Michele Fiore sent out an email pointing out that SB252 has 1,811 unique tax brackets based upon gross receipts. (The state Constitution states: “The Legislature shall provide by law for a uniform and equal rate of assessment and taxation …”)
She noted that the unemployment rate is still 7.1 percent in Nevada and “the last thing the Legislature should be doing is taking money out of the private sector, where it’s needed to create jobs, and transferring it to the public sector so that government can continue to spend beyond its means.”
Nevada Policy Research Institute’s Executive Vice President Victor Joecks commented:
“The voters of Nevada made clear in November that they do not want to impose a gross-receipts business tax, yet today the Senate passed a similar tax. Unlike the 17 Senators who voted in favor of SB252, Nevada voters recognized that raising taxes on businesses that are struggling or even losing money will only hurt families and parents throughout Nevada.”
Actually, as a survey reported by NPRI points out, Nevada voters apparently aren’t paying any attention. The poll, conducted by Google Consumer Surveys in March, found 89.4 percent either did not know Sandoval supports the largest tax increase in Nevada history or mistakenly thought the governor supports keeping taxes low.
Gov. Brian Sandoval has said the so-called business license fee based on gross receipts will eventually rake in $250 million a year. The Nevada Registered Agent Association commissioned a study that says his figure is off by $65 million. NRAA Study
When Texas launched its margin tax it was expected to bring in $5.9 billion a year, but only netted $4.45 billion its first year and $4 billion the next.
Never mind that most of what Sandoval plans to spend on improving education will not work and has not worked when tried elsewhere.
What’s that old saw? When the only tool you have is a hammer, every problem is a nail.
Likewise, when we send people to Carson City and call them lawmakers, they think everything has to have a law.
If I pick my phone and call a friend to ask for a lift to the store and say I’ll give him a few bucks to cover gasoline and his time, do I need the nanny state to hold my hand and make sure my friend has adequate insurance and isn’t a criminal?
The same should go for picking up my cell phone and pressing an app, such as Uber, and asking the same of a stranger.
No, Senate Bill 439 proposed 12 pages of regulations on so-called transportation network companies to put Uber and similar businesses on a more even footing with taxi and limousine companies.
In advocating for the bill, Republican Sen. James Settelmeyer strangely argued that new technology should not be stifled to protect the legacy technology — saying candlemakers shouldn’t be able to use the law to block the use of electric lightbulbs or encyclopedia publishers to block wikipedia.
“I think that it is wrong of us to consider the concept of preserving the status quo by stifling this technology,” Settelmeyer argued Wednesday on the Senate floor. “The people, the citizens of the state of Nevada, have a thirst for technology, they’re looking for this. They’re looking for the opportunity to utilize this technology, but in my opinion it needs regulation.”
Motions by Democrats to make the bill even more onerous were rejected by the Senate along party line votes.
The final Senate vote on the bill was all 11 Republicans in favor and all 10 Democrats against, but because the bill also included a 25-cent per ride fee for the highway fund it needed a 14-vote supermajority to pass. The bill’s failure means firms like Uber are blocked from operating in Nevada under current law and court rulings.
The debate got a bit acrimonious when one Democrat objected to a Republican applauding Settelmeyer’s speech. The word disrespect was bandied about in the subsequent discussion.
As with taxes, the difference between Republicans and Democrats on the issue of regulation is merely a matter of degree — harsh or harsher.
You may view the entire debate online. The SB439 part starts at about 2:06:00 of the session.
The whole concept of civil asset forfeiture turns the law on its head, essentially finding people guilty until they can prove their innocence.
Police departments and federal agencies across the country have been using civil procedures to seize cash, cars and homes that just might be somehow, maybe linked to a crime.
In Humboldt County here in Nevada a county deputy seized $50,000 from a California tourist who said he’d won it at a casino. The deputy claimed he might be a drug dealer.
According to a recording from a dashboard-mounted camera in the patrol car, the tourist asked why he was being searched, and the deputy replied, “Because I’m talking to you … well, no, I don’t have to explain that to you. I’m not going to explain that to you, but I am gonna put my drug dog on that. If my dog alerts, I’m seizing the money. You can try to get it back but you’re not.”
He also told the tourist, “You’ll burn it up in attorney fees before we give it back to you.”
Over a two-year period Humboldt deputies seized $180,000 in cash from motorists, some of them got their money back after fighting the seizure in court.
Deputy seized cash from motorist.
The Nevada Attorney General’s office reportedly is investigating the county’s highway interdiction program, which smacks of highway robbery to us. The county’s new sheriff, who took office in January, has placed the deputy quoted above on paid leave pending an investigation.
In another Nevada case, the U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running the office of her brother, who was later convicted of mortgage fraud.
U.S. District Judge Roger Hunt called the federal forfeiture effort against Jenna Depue “the most egregious miscarriage of justice I have experienced in more than twenty years on the bench. I refuse to be a party to it.”
Recently, New Mexico lawmakers passed a bill essentially ending most civil asset forfeitures in that state until someone is convicted of a crime. It also would not let police agencies keep the proceeds of a seizure and instead channels it into the state general fund, thus ending an incentive for police to use seizures to raise money.
In Carson City, Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden have sponsored Senate Bill 138, which is similar to the one in New Mexico. It also requires a conviction prior to seizure and states that any money left over after expenses are covered goes to the state general fund. The bill also mandates annual reports to the state on civil asset forfeitures.
The Fifth Amendment provides that “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
But too often police intimidate people by basically extorting waivers of due process rights. In the case of the tourist in Humboldt, he was threatened with having his car impounded, too.
The Institute for Justice has been fighting civil asset forfeiture in the courts and on op-ed pages of newspapers for years. President and General Counsel Chip Mellor of IJ once said: “The Institute for Justice has documented time and again that civil forfeiture invites a lack of accountability, a lack of due process and a lack of restraints on government authority. Civil forfeiture needs to end. If the government wants to take someone’s property, it should first be required to convict that person of a crime.”
In a 73-page article published in the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of Law, laid out the case against civil forfeiture.
“Given the dubious policies behind facilitating property forfeitures, and the due process problems inherent in carrying them out, the more potent question is whether facilitating property forfeitures should be allowed at all,” writes Pimentel. “If the taking of such property is to be justified, or even tolerated, it must be for the most compelling public policy purposes, none of which can be demonstrated for facilitating property forfeitures.”
Let’s hope SB138 breezes through the legislative process and the governor signs it into law.
4TH ST8 