Newspaper column: Let the public see the work of public servants

Next week is Sunshine Week, March 11-17. The annual observation was created by the American Society of News (formerly Newspaper) Editors to spotlight the importance of public access to government information in a democratic republic, allowing citizens to be the watchdogs over their elected and appointed representatives.

The sunshine label was derived from a quote by Justice Louis Brandeis, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.

Which brings us to the current tension between the right to know and the right to privacy.

Earlier this year a district court judge ruled in favor of a request from The Associated Press and the Las Vegas Review-Journal to obtain copies of the autopsies of the 58 victims of the Oct. 1 Route 91 country music show shooting. The judge did require that the names of the victims be redacted.

A few weeks later another judge, at the behest of the widow of off-duty police officer Charleston Hartfield who was killed at the concert, ruled that his autopsy report was private and demanded the news outlets return it. How they were to determine which one was his is unclear.

A three-justice panel of the Nevada Supreme Court quickly stepped in and basically ruled that once the cat’s out of the bag it can’t be put back. It left unsettled the question of whether autopsy reports are public records under the law in the first place.

The court opinion, penned by Justice Kris Pickering, relied on a U.S. Supreme Court ruling in a 1989 case involving a Florida newspaper called the Florida Star. The paper published the name of a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”

That court ruling said the Star’s intern reporter lawfully copied the information from records made available by the local sheriff’s office and the paper could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.

Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”

The question remains: Are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?

Back in 1982 then-Attorney General Richard Bryan issued a non-binding opinion that they are not, writing, “An autopsy protocol is a public record, but is not open to public inspection upon demand, because disclosure would be contrary to a strong public policy …”

That public policy was described as the expectation that “the secrets of a person’s body are a very private and confidential matter upon which any intrusion in the interest of public health or adjudication is narrowly circumscribed.”

But does that privacy expectation carry over beyond death and supersede the public’s right to observe how well their public servants are serving them?

The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.

All the Nevada high court panel did was say the media obtained the records legally and prior restraint would be unconstitutional. It did not say whether in the future the coroner could refuse to release autopsies.

We believe the courts or lawmakers should make a final determination in favor the public’s right to know and let the sun shine in.

It is analogous to the debate currently underway in Florida over what information should be made public about what law enforcement did prior to and during the tragic high school shooting that killed 17.

The public needs to see how well public officials are doing their jobs … or not.

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.

Nevada Supreme Court

Newspaper’s court win so narrow as to be really meaningless

Well, that was a victory so narrow as to be almost meaningless.

The banner story in the morning newspapers relates that a district court judge’s ruling barring the paper from further reporting on an autopsy report of one of the victims of the Oct. 1 Route 91 shooting was overturned by a three-justice panel of the state Supreme Court.

Justice Kris Pickering

But the ruling completely skirts the core issue of whether autopsy reports are public records and relies solely on a 1989 case out of Florida that basically stated that once the cat is out of the bag it can’t be put back. In the Florida Star case the court held that a reporter copied and published a publicly available police report about a rape victim, even though Florida law makes it “unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense …”

The court said the Star lawfully obtained the information and could not be punished because the sheriff’s office failed to follow its own policy of redacting the names of rape victims.

The Nevada court ruling essentially said this was the case with the autopsy report and did not rule on whether the report was a public record. Justice Kris Pickering wrote, “For purposes of our analysis we assume, without deciding, that the Hartfield Parties had a protectable privacy interest in preventing disclosure of Mr. Hartfield’s redacted autopsy report.” The key phrase is “without deciding.”

The autopsy of off-duty police officer Charleston Hartfield was one of the 58 autopsy reports released to the newspaper and The Associated Press after they sued to obtain the records. The names and personal identifying information were redacted, which according to Pickering the “Review-Journal conceded was appropriate.” His widow sued in an effort to block further publication, citing privacy grounds.

So, the question remains, are records prepared by a public official using public funds to determine a public safety matter covered by the state’s strong public records law that states records are available to the public “unless otherwise declared by law to be confidential …”?

The closest the state Constitution comes to addressing this question is when it states that victims of crimes are to be “treated with fairness and respect for his or her privacy and dignity” and defines a victim of a crime as including a deceased person’s family members.

All the court panel did was say the paper obtained the already heavily redacted records legally. It did not say whether in the future the coroner could refuse to release any information.

The heavy lifting remains to be done.

 

 

 

Voter must weigh pros and cons of creating an appeals court in Nevada

Between now and the November election you likely will hear this phrase repeated frequently: “Justice delayed is justice denied.”

This pithy little aphorism is usually attributed to 19th century British Prime Minister William Gladstone and argues that legal redress not delivered in a timely fashion is tantamount to no redress at all — such as some court cases here in Nevada that are still pending, though most of the original parties have long since died.

It is the favorite argument proffered by advocates for setting up an appeals court in Nevada, even though voters rejected similar proposals in 2010 and 1992.

Actually, that is not the strongest argument for ballot Question No. 1. You see, in order to keep up with its truly monumental caseload, the Nevada Supreme Court has over the past years resorted to disposing of most cases with non-precedential memorandum, or what are called unpublished opinion, since these can be prepared quicker and more easily than a full blown opinion. The case is settled but the ruling sets no precedent for similar cases, and thus offers no guidance for the courts, attorneys and parties. The same legal ground gets plowed over and over, wasting time and money for litigants and taxpayers.

Kris Pickering addresses Nevada Legislature (AP file photo)

“The published opinions that establish guidance on unsettled questions of Nevada law, as a percentage of the number of total dispositions, has declined over the years to where it now hovers between 3 and 4 percent,” the court reported in its fiscal year 2013 annual report.

The Nevada Supreme Court handles everything from appeals for driver’s license revocations to appeals in family law, foreclosure mediation, business, and death penalty cases.

At the urging of the justices, the 2013 Nevada Legislature passed SJR14, which would, if approved, create the Court of Appeals. But it would not be just another layer of judicial bureaucracy between the 171 district court judges and the seven-member Supreme Court. It would be a push-down court.
All appeals would go straight to the Supreme Court, but about a third of all cases, estimated to be about 700 a year, would be sent to the three-justice appeals court — such as timely cases involving child custody and criminal convictions.

The Nevada Constitution requires mandatory review of all cases, but the appellate court would allow discretionary review. The few cases anticipated to be appealed from the intermediate court would have been thoroughly reviewed and the high court could make short work of those cases.

The 2013 Annual Report of the Nevada Judiciary indeed shows the state’s high court carrying a huge caseload. Of the 10 states that do not have an appellate court, the report showed Nevada had the highest caseload by far — 2,333 cases compared to the second highest of 1,524 in West Virginia and 910 in third highest New Hampshire. That caseload means there are 333 cases for each of the seven Nevada justices. The American Bar Association recommends no more than 100 cases.

In a comment to the 2013 Legislature, Chief Justice Kris Pickering said, “In 2012, filings exceeded the dispositions and will likely continue to do so. Delayed dispositions and lack of precedent by which citizens can predict outcomes and regulate themselves are the result. This hurts not only citizens whose cases are delayed but Nevada’s nascent economic recovery as well.”

If approved by the voters, the appeals court would be housed in the Regional Justice Center in Las Vegas, closer to the vast majority of parties in legal disputes and thus saving time and money.

The cost of implementing the Court of Appeals is estimated to be $1.5 million a year to pay for the three judicial positions as well as staff — one executive legal assistant and two law clerks per judge. Since the Supreme Court is expected to spend less due to this intermediate court the total increased cost to taxpayers should be less than $1.5 million.

Nevadans are not getting the timely justice they deserve and are having to spin their wheels making the same legal arguments time and again. This time we believe the justices and lawyers supporting this measure have made a better case for an appellate court.

On the other hand, it might be cheaper to just change the state constitution so that the Supreme Court would hear only the most significant cases — discretionary review.

Nevada is one of the few states that allow high court review of darned near any case for any reason or no reason — other than one party not liking the outcome at the lower court level. Most states, like the U.S. Supreme Court, allow discretionary review. Only cases deemed worthy for some stated reason are taken up by the highest state court.

If you look at the stats from 2012, you’ll find the Nevada Supreme Court handled 2,248 appeals. Out of all those cases, the high court reversed only 10 cases and reversed/remanded only 95 cases. The vast majority were affirmed, denied or dismissed.

So, does the state of Nevada need to amend its Constitution to add another court at a cost of $1.5 million or should it amend the Constitution to make appeals discretionary? The justices argue the appeals would essentially be a discretionary review process.

study conducted 30 years ago found that in only a couple of years after creating appeals courts the number of opinions written by the state court of last resort was nearly the same as before the creation of the appeals court.

The voters have only the option of yes or no to an appeals court.

 

 

Newspaper column: Writing laws for a ‘reasonable person’ supposes there is such an animal

Imagine if the traffic laws were written in the same manner as Nevada’s public ethics law — using a “reasonable person” standard.

Thus the speed limit would be what a “reasonable person” would perceive it to be depending on traffic and road conditions. You might think 85 mph reasonable but the trooper who pulls you over is thinking 55 is more reasonable.

Don’t fret, if your speeding was not “willful,” you don’t have to pay a fine.

There was opposition to the Lazy 8 hotel and casino project in Sparks.

That’s one way to look at the recent 5-2 Nevada Supreme Court ruling in the case of Sparks City Councilman Michael Carrigan. Carrigan had his wrists slapped by the Nevada Ethics Commission because he voted to approve the Lazy 8 hotel and casino project, which was being lobbied for by Carrigan’s campaign manager, Carlos Vasquez, as recounted in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

At the same time Vasquez was receiving a $10,000-a-month retainer from the Lazy 8’s principals, he was serving as Carrigan’s campaign manager for free and placing campaign ads at cost.

Carrigan testified that the Sparks city attorney advised him that his relationship with Vasquez was not a conflict of interest because Carrigan would not personally benefit from the Lazy 8 project. Carrigan could have asked the Ethics Commission for an advisory opinion but chose not to.

The ethics law states that “a public officer shall not vote upon … a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by … [h]is commitment in a private capacity to the interests of others.”

The majority opinion, penned by Chief Justice Kris Pickering, found that, while the “reasonable-person standard in tort law” might require case-by-case evaluation, “they do not call for the wholly subjective, unreviewable judgments …”

Justice Michael Douglas wrote the dissent. He delivered a syllogistic slam dunk against the majority’s conclusion that the law is not too vague.

“As the majority indicates, a law is impermissibly vague ‘if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited. …”’ Douglas writes. “Here, in determining that Carrigan’s violation was not willful, the Commission inescapably concluded that he did not know and should not have reasonably known that his conduct would violate (the law). In this lies the dispositive contradiction: the constitution requires that laws be of a nature that a person reasonably should know what is prohibited; yet, here, the Commission concluded that Carrigan should not have reasonably known that his conduct was prohibited. Thus, the Commission’s determination that Carrigan did not willfully violate the statute equates to a legal conclusion that (the law) is vague as applied to Carrigan. Accordingly, this court should vacate the Commission’s censure of Carrigan.”