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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Newspaper column: Separation of Powers Clause being ignored

Frankly, it sounds like a self-contradictory argument. Or circuitous at best.

Until the 1960s, it was largely agreed that public employees could not also serve in the Nevada Legislature.

This was because the Separation of Powers Clause in the state Constitution stated that no one who exercised power in one branch of state government — legislative, executive or judicial — could “exercise any functions” in another branch, no matter how menial.

But along the way a couple of non-binding legal opinions found that it was OK for someone to exercise legislative powers so long as that person did not exercise “powers” — rather than the all-inclusive “any functions” — in another branch.

With the flood gates open, 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 nearly a dozen lawmakers hold down state or local government jobs.

Recognizing the growing problem, in 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution. Heller asked the court to find that service in the Legislature by unidentified executive branch employees violates the concept of separation of powers and to direct the Legislature to enforce the Separation of Powers Clause.

But the court ruled that doing so would violate — wait for it — the Separation of Powers Clause, because the Constitution also states that the Senate and Assembly are 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. Got it?

Never mind that the reason for separation of powers is not to allow each branch to stand totally autonomous and unanswerable to anyone, but to provide checks and balances when one branch runs amok.

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.”

A couple of years ago the libertarian-leaning think tank, Nevada Policy Research institute, did just that. It 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 has come back with a similar suit against state Sen. Heidi Gansert on behalf of a person who wants her public relations job at the University of Nevada, Reno — a job that yields $210,000 a year in pay and benefits.

This past week Carson City Judge James Russell ruled from the bench against the NPRI suit.

NPRI’s attorney, Joseph Becker said in a press release, “Essentially, we were told that in order to sue Senator Gansert for a constitutional violation, the Plaintiff must file similar suits against every other potential violator,” which is precisely what the Supreme Court said Heller could not do.

The judge has two weeks to put his ruling in writing, after which Becker said NPRI and its client will decide what to do next.

From what the judge said it court, Becker said it appeared Russell ignored the legal arguments but chose to embrace a non-binding opinion from the Legislative Counsel Bureau, which is the Legislature’s lawyers, who have a history of telling lawmakers what they want to hear.

“Apparently the non-binding LCB opinion held more weight with Judge Russell than the actual text of the Nevada constitution or the Nevada Supreme Court opinions, which interpreted that constitutional provision in Plaintiff’s favor,” Becker said.

That LCB opinion said “the separation-of-powers provision in the state constitution does not prohibit a member of the Legislature, during his term, from occupying a position of public employment in another department of state government, because a person in a position of public employment does not exercise any sovereign functions appertaining to another department of the state government.”

The word “sovereign” is not in the Constitution. It just magically appeared.

It is hard to win when the rules keep changing in the middle of the game.

In a 1967 case, the Nevada Supreme Court flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

That was 50 years ago. Yet, while lawyers and judges dither, the flouting of the concise words of the state Constitution continues, resulting in a farce and a canard.

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.

A bill making libraries gun-free zones is a superfluous exercise

So, what is the point of this bill?

Now that the video has been posted from Thursday’s Senate Judiciary Committee meeting, we learn that Senate Bill 115 — which purportedly would add public libraries to the legislatively mandated gun-free zones — can be whisked away by a simple vote of any library district board.

The Legislative Counsel Bureau’s digest of the bill states: “This bill additionally prohibits a person from carrying or possessing certain weapons while on the property of a public library unless the person has written permission from the governing board of the public library to carry or possess the weapon.”

The bill amends current law which creates gun-free zones on the parking lots and in the buildings of universities, public and private schools and child care facilities by adding public libraries.

According to the LCB attorney present at the meeting, “written permission” need not be for every individual seeking to bring their weapons onto library grounds and into library buildings, but can be a sweeping policy to allow any any patron to openly or concealed carry.

As is pointed out in this week’s newspaper column, the Las Vegas-Clark County Library District already prohibits weapons in library buildings, and presumably any library district could do so as well, making SB115 a superfluous exercise in hoplophobia by nanny state lawmakers. One person joked that Eureka could allow patrons to bring their shotguns.

We still think someone should a amend the bill to add language from Assemblyman John Hambrick’s unsuccessful 2015 legislation that  would have allowed guns in vehicles at the aforementioned locales so long as the vehicle was locked or occupied.

 

Newspaper column: Lawmakers should narrow, not expand gun-free zones

Lawmakers in Carson City continue to exhibit rabid hoplophobia — fear of guns. A bill has been introduced to further extend gun-free zones to public libraries and their parking lots. Senate Bill 115, introduced by state Sen. Mo Denis of Las Vegas, would add public libraries to the current law, which already prohibits guns and other weapons in the buildings and parking lots of universities, public and private schools and childcare facilities. Now, we have no problem with the private owners of land and buildings demanding that visitors come unarmed, and the state is surely the owner or custodian of universities and public schools. Though why lawmakers should be allowed to dictate to private schools and private childcare facilities is beyond us.

Additionally, this bill is a pointless endeavor that does nothing but add needless paperwork and wastes time, because every library district in the state has the power to control its own grounds and facilities. The Las Vegas-Clark County Library District already has a policy barring arms inside buildings and has guards who check to make sure that the holster on your belt holds a cellphone and not a handgun.

This law would require someone to get written permission to bring his or her weapon onto a library parking lot or into a library building.

During a recent committee meeting on the bill, Republican state Sen. Michael Roberson of Las Vegas, said, “I’m concerned that if these libraries don’t have adequate security that what we’re doing is we’re telling the public that we’re creating gun-free zones. And those here that want this bill can disagree with me but there have been studies that show gun-free zones are a magnet for criminal activity and mass shooters.”

He said the bill undermines law abiding Nevadans and actually endangers the public.

Republican state Sen. Don Gustavson — who represents all of Esmeralda, Humboldt, Lander, Mineral, Pershing and parts of Nye and Washoe counties — echoed Roberson’s concerns about creating gun-free zones. He asked rhetorically whether one would have a quicker response by pulling out a cellphone and calling 9-1-1 or pulling out a weapon. He said many in his district carry concealed weapons wherever they go.

According to the Nevada Firearms Coalition, since about 1950, more than 95 percent of all mass shootings in America have taken place where law-abiding citizens are banned from carrying guns.

Most puzzling is why it is a crime to have a gun in your car in the parking lot of these facilities. In fact, in the 2015 legislative session Assemblyman John Hambrick introduced a bill that would have allowed guns in vehicles at the aforementioned locales. A hearing on the bill was packed with proponents and opponents. A digest of the bill stated it would add an exception to the law so that a person would not be prohibited from possessing a weapon on those specific grounds if it were inside a locked or occupied motor vehicle. Seemed like a common sense approach, but it never got out of committee.

So people who are accustomed to keeping a pistol in the glove compartment or a rifle in a gun rack or the trunk are breaking the law if they drop their children off on school or daycare parking lots or visit a college campus. Now this bill would add public libraries, even if one is dropping a book at an outside collection box. Having a gun in the parking lot is not as good as having one on your person if the need arises. Just ask the vice principal of the Pearl, Miss., school who had to run a quarter mile to his vehicle to retrieve a gun to stop a shooter.

In October of 1997 a young man showed up on a school campus carrying a .30-30 rifle. He fatally shot two students. At the sound of gunshots, the vice principal ran a quarter of a mile to his truck, because the school was declared by law to be a gun-free zone, to recover and load his pistol before returning to campus, where he captured and disarmed the gunman and held him for four minutes until police could arrive. This could be an opportunity for an enterprising lawmaker to show some common sense for a change. Amend SB115 by adding the parking lot exception offered by Hambrick two years ago. That would not go far enough but would be a move in the right direction. Also, let library districts set their own policies.

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.

Newspaper column: Why separation of powers must be enforced in Nevada

Assembly Bill 121 is Exhibit A in the case for finally enforcing the state constitutional mandate for separation of powers, such that each branch of government may provide checks and balances to prevent the abuse that results when power is concentrated in too few hands.

The bill — introduced in Carson City by Democratic Las Vegas Assemblyman Steve Yeager — would wipe out much of the progress made in 2015 in public employee collective bargaining reforms.

Yeager, who also happens to be a Clark County public employee, would erase a provision in the law that prohibits paying union officials from public coffers for time spent doing union business. It also negates a provision blocking pay increases after a union contract has expired and before a new one is inked. It further requires any new contract to be retroactive to the expiration date of the previous contract — greatly reducing incentives for union members to accept a lower offer.

State Sen. Heidi Gansert sits in the Legislature. (R-J pix)

State Sen. Heidi Gansert sits in the Legislature. (R-J pix)

The bill is redistributionism. Taking from the taxpayers to line the pockets of public employee union members.

Yeager is employed by the Clark County Public Defenders Office, whose union contract expires in June.

The state of Nevada operates under the Dillon Rule, which limits the power of local governments to those expressly granted by the Legislature, meaning local governments are basically subsidiaries of the state and employees of those local governments, such as Yeager, essentially are serving in the executive branch of state government.

Which brings us to Article 3 of the Nevada Constitution, which states: “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

Therefore, Yeager, while currently serving in the Legislature, is also a member of the executive branch and, since he works in the court system, he is an employee of the judicial branch — a triple threat!

Such ignoring of explicit requirements of the state Constitution has been ongoing for decades and currently there are several lawmakers whose day jobs are with a local government.

In 2011, the libertarian-leaning Nevada Policy Research Institute’s legal arm, the Center for Justice and Constitutional Litigation, filed suit against state Sen. Mo Denis because he also was an employee of the state Public Utilities Commission, and had been for 17 years.

Denis immediately resigned from his $56,000-a-year state job in order to maintain his part-time $10,000-every-other-year state senator post, and a judge declared the lawsuit moot.

A week ago CJCL filed a similar suit against state Sen. Heidi Gansert, who holds a $210,000-a-year in pay and benefits public relations job with the University of Nevada, Reno.

 “Gansert’s continued employment in the state’s executive branch, as Executive Director of External Relations for the University of Nevada, Reno, puts her in direct violation of Nevada’s Separation of Powers clause, now that she is also serving in the state senate,” CJCL Director Joseph Becker said in a press release reporting on the litigation. “As a senator, she can simply not continue her employment in the executive branch without violating this clearly worded constitutional provision.”

In a statement Gansert called the suit meritless and said, “Nevada has an unambiguous precedent of legislators taking time off from their jobs in higher education to serve the people of the state.”

Of the unambiguous Separation of Powers clause, Becker said it was designed to preserve the independence and integrity of each branch, and having a legislator make decisions that might directly benefit employees of another branch creates a clear conflict of interest.

As witness AB121.

Thomas Jefferson wrote in “Notes on the State of Virginia” in 1784: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. … An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

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.

Bill would add public libraries to gun-free zones

Lawmakers in Carson City continue to exhibit rabid hoplophobia.

A bill has been introduced to further extend gun-free zones to public libraries and their parking lots. Senate Bill 115, introduced by state Sen. Mo Denis, would add public libraries to the current law, which prohibits guns and other weapons in the buildings and parking lots of universities, public and private schools and childcare facilities.

The Senate Judiciary Committee has a hearing scheduled on the bill for 1:30 p.m. Tuesday. The Nevada Firearms Coalition is urging people to contact the committee members to oppose the bill and register their opposition at a legislative web page.

Now, we have no problem with the owners of land and buildings demanding that visitors come unarmed and the state is surely the owner or custodian of universities and public schools, but why should the state dictate to private schools and private childcare facilities? But most of all, why make it a crime to have a gun in your car in the parking lot?

In fact, in 2015 session Assemblyman John Hambrick introduced a bill that would have allowed guns in occupied or locked vehicles at the aforementioned locales. A hearing on the bill was packed with proponents and opponents.

Its digest stated:

Existing law generally makes it a gross misdemeanor to carry or possess certain weapons while on the property of the Nevada System of Higher Education, a private or public school or a child care facility, or while in a vehicle of a private or public school or a child care facility except in certain circumstances. (NRS 202.265) This bill adds an exception so that a person is not prohibited from possessing such weapons on the property of the Nevada System of Higher Education, a private or public school or a child care facility if the weapon remains out of public view and if the weapon is: (1) inside a motor vehicle that is occupied or, if the motor vehicle is unoccupied, the motor vehicle is locked; or (2) stored in a locked container that is affixed securely to the motor vehicle. 

Seems like a common sense approach, but it never got out of committee.

Having a gun in the parking lot is not as good as having one on your person if the need arises, but tell that to the vice principal of the Pearl, Miss., school who had to run a quarter mile to car to retrieve a gun to stop a shooter.

Vin Suprynowicz recounted in a newspaper column in 2012:

Law-abiding Americans with guns have an impressive record of cutting short the mayhem of would-be mass killers. In a shooting in Pearl, Miss., in October 1997, young Luke Woodham had slit his mother’s throat before carrying a .30-30 deer rifle to school.

Woodham fatally shot two students as Vice Principal Joel Myrick, responding quickly to the sound of shots, dashed to his truck — parked more than a quarter-mile away as required by the ‘gun-free school zone’ law — to recover and load his own Colt .45. He then raced back, captured and disarmed Woodham, holding a gun to his head for more than four minutes while waiting for police to arrive. This almost certainly saved lives, as Woodham had declared his intent to also shoot up another nearby school.

Pearl, Miss., school shooter.

Pearl, Miss., school shooter.

 

GOP candidates relegated inside Las Vegas paper, while Hillary gets front page

There used to be a time in the newspaper business that papers tried to balance the significance of the news with the fairness of the coverage. For example, the announcements of candidacy for elective office by the major contenders were given similar “play” in the paper whenever possible — same page in the paper and same size photos was ideal.

That doesn’t seem to be the case now.

On March 24 the Las Vegas Review-Journal reported Republican Ted Cruz had announced his presidential candidacy. The story was on page 5A with no photo.

On April 8 the paper reported Rand Paul’s announcement that he too was seeking the Republican nomination. That ran on 9A with a photo. When he held a rally in Las Vegas a couple of days later, that garnered 1B coverage with a small photo.

When Hillary Clinton announced her Democratic presidential run, on April 13 the paper carried two stories and a photo on the front page.

Today the paper reports that Marco Rubio has announced his Republican bid. That appears on 6A with a photo. The story makes no mention of the fact that Rubio lived in Las Vegas and attended school here from third through eighth grade while his father tended bar at Sam’s Town and his mother was a maid at the Imperial Palace. While living in Las Vegas the family attended Mormon Church services, according to his cousin Mo Denis, a Democratic state senator.

I guess you could make argument there is only one Democratic candidate and there may a dozen GOP hopefuls.

rubio