Editorial: Nevada court rightly upholds public right to know

The Nevada Supreme Court has made it clear that public officials cannot skirt the state public records law by using privately owned electronic devices to conduct the public’s business.

This past week the court unanimously overturned a lower court ruling that rejected a request for records from Lyon County commissioners because those records were not stored on devices owned by the county. The county conceded that public business was indeed conducted using personal phones and email addresses. The county website even lists those phone numbers and email addresses as the commissioners’ contact information.

“The use of private entities in the provision of public services must not deprive members of the public access to inspect and copy books and records relating to the provision of those services,” wrote Justice Michael Cherry, author of the opinion.

The Nevada Public Records Act (NPRA) states that, unless otherwise specifically exempted by law, “all public books and public records of a governmental entity must be open at all times during office hours to inspection by any person, and may be fully copied or an abstract or memorandum may be prepared from those public books and public records.”

Cherry further clarified, “In light of these requirements, (NPRA) cannot be read as limiting public records to those that are physically maintained at a government location or on a government server and are immediately accessible to the public during the business hours of that governmental entity. Such an interpretation would render … (the law) meaningless, as the records of private entities rendering public services would not necessarily be stored at the government office, and providing a time frame for resolving a records request would be unnecessary if records were required to be immediately produced for inspection at that location.”

Barry Smith, executive director of the Nevada Press Association, called the ruling important and substantial.

“If it had gone the other way, it would have created a gaping loophole in the law,” Smith said. “During oral arguments, justices asked the right questions. Essentially, they wondered, ‘How could the open-records law work if public officials could simply avoid it by using their personal devices?’”

Smith noted that John Marshall, the attorney for Lyon County citizens seeking the records, had a good analogy. “He said it would be like an official typing up a county document on his own typewriter at home and storing it in his personal filing cabinet. The principle remains the same. If it was public business, then it was a public document,” Smith explained.

Nevada Policy Research Institute Transparency Director Robert Fellner issued a statement saying, “In finding that public officials cannot hide their activities by simply conducting government business on personal devices, the Court reinforces the mandate within Nevada’s Public Records Law that it ‘be construed liberally to carry out [the] important purpose’ of a transparent and open government.”

In order for the public to properly evaluate the conduct of their elected and appointed officials, they must be able to see, hear and read what those officials are doing, why they are doing it, how they are doing it and for whom.

In this particular case Lyon County commissioners had rejected a zoning request for an industrial development, but later reversed themselves. Citizens filed a public records request seeking access to communications about the zoning matter whether contained on public or private devices.

Cherry’s opinion made it abundantly clear that public business must be transparent, writing, “We conclude that the NPRA does not categorically exempt public records maintained on private devices or servers from disclosure. To withhold a public record from disclosure, the government entity must present, with particularity, the grounds on which a given public record is exempt.”

We applaud the court for again upholding the public’s right to know.

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: 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 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.

Education savings account cases will be heard by state high court in a month — finally

There is a reason the courts routinely expedite cases involving children. If the cases were handled in the usual mañana fashion the children have children of their own by the time the case is resolved.

The state Supreme Court has rightly refused an effort by the ACLU to further delay the hearing of its suit to block enactment of the education savings account (ESA) law passed by the 2015 Legislature, which would allow parents to keep a portion of their taxes — about $5,100 a year in most cases — in a savings account to pay for private schooling or homeschooling.

The court has scheduled hearings for the morning of July 29 for both the ACLU case — Duncan v. State, which challenges the law as a violation of a constitutional prohibition against using state funds for sectarian purposes — and another case — Schwartz v. Lopez, which claims the law impermissibly diverts funds from the Distributive School Account (DSA).

The ESA is under the auspices of state Treasurer Dan Schwartz, who had hoped to make funding available by January 2016, but now the suits make it impossible for funding to start by the beginning of the new school year in the fall. Another delaying wrinkle is that the law requires eligible students to have been enrolled in public school for 100 consecutive days prior to receiving the funds.

The Schwartz v. Lopez case will be heard at 10 a.m. on July 29. In that case a Carson City judge blocked the state from carrying out the provisions of the law, saying it is unconstitutional under that Article 11, Section 6.2 of the state Constitution. He determined that “appropriation” means “to set apart for or assign to a particular purpose or use in  exclusion of all others” and therefore using part of that appropriation for ESAs violates the state Constitution.

Attorney General Adam Laxalt, representing the state, has countered that the DSA is not, as the plaintiffs allege, a lock box from which no funds may be diverted, but rather funds public schools on a per pupil basis. If a student moves out of a district or transfers to a private school or homeschooling, the per pupil funding is affected in the same manner.

The case of Duncan v. State will be heard at 11:30 a.m., after Schwartz. This case raises the question of whether ESAs violate the Constitution’s prohibition against sectarian funding by noting that ESAs could be used to send children to religion-based schools.

“If ESA funds arrive at religiously affiliated schools, they get there only through private, individual decisions by the families who take part in the program — not through government direction,” the AG has argued. “As the U.S. Supreme Court recognizes, these independent parental decisions break the link between government funding and the school a child ultimately attends.”

The sooner this is resolved, the sooner parents and children can exercise choice in education.

Newspaper column: State Constitution does not allow laws regulating political speech

The Nevada Supreme Court made the right decision but for the wrong reason.

In the case of Citizen Outreach vs. State, the court ruled 5-2 a couple of weeks ago that the organization did not violate a 1997 law requiring those who engage in express advocacy to file paperwork with the secretary of state’s office revealing donors and expenditures.

The majority said the fliers mailed out by Citizen Outreach during the 2010 election season criticizing Assembly member John Oceguera for being a double-dipper — drawing pay as a North Las Vegas firefighter while serving in Carson City — did not contain the “magic words of express advocacy,” such as “vote for” or “vote against,” which would trigger the need to comply with the law.

The ruling overturned a summary judgment by Carson City District Judge James Todd Russell, who fined the group $10,000 plus $7,600 in costs in 2013.

Nevada Supreme Court (R-J photo)

The ruling states, “Because it is undisputed that Citizen Outreach’s flyers do not contain magic words of express advocacy, the flyers were not subject to regulation under Nevada’s campaign practices statutes that were effective in 2010.”

The problem now is that in 2011 the Legislature rewrote the law so that it now states that express advocacy “means that a communication, taken as a whole, is susceptible to no other reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate.”

The court majority noted that the secretary of state testified that the change would “make it clear that Nevada does not require” magic words for a communication to be express advocacy.

That makes the revised law highly subjective and subject to as many interpretations as there are people. It erases any bright line test.

The problem is that both the 1997 and the 2011 law blatantly violate both the First Amendment and the Nevada Constitution because they are not “content neutral” and address no “compelling government interest.”

In a similar case involving a Virginia-based organization that failed to file the proper paperwork with the state, Judge James E. Wilson Jr. stopped televised ads from being broadcast and said, “Nevadans have a right to know who is behind election advertising.”

There is no such right to know. The voters get to decide what communication is persuasive, whether the source of funding is revealed or not. The voters tell the government what to do, not the other way around.

Article 1, Section 9 of the Nevada Constitution states: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

This law clearly restrains and abridges.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine in any dictionary is a restraint.

In this day and age, donating to certain causes, such as the anti-gay marriage campaign in California, have resulted in threats, intimidation, boycotts and ruined careers.

Justice Clarence Thomas said in a dissent in Citizens United v. FEC, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’

Just this past week a federal judge in California temporarily enjoined the state attorney general from enforcing a law similar to Nevada’s.

“Donors who have witnessed harassment of those perceived to be connected with plaintiff’s co-founders have experienced their unwillingness to continue to participate if such limited disclosure is made,” Judge Manuel Real wrote, adding that there is “sufficient evidence establishing that public disclosure would have a chilling effect on free speech.”

There is no constitutional authority for government to drag more information out of a speaker than the speaker wishes to convey, under the excuse that voters are just too darned stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

The Legislature should repeal this law or someone should challenge the 2011 version of the law in the courts and make the right argument.

Free speech must be free of government restrictions, especially political speech.

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 and the Lincoln County Record — and the Elko Daily Free Press.

Nevada Supreme Court rules too narrowly in free speech case

Nevada Supreme Court

The Nevada Supreme Court made the right decision but for the wrong reason.

In the case of Citizen Outreach vs. State, the court ruled 5-2 that the organization did not violate a 1997 law requiring those who engage in express advocacy to file paperwork with the secretary of state’s office revealing donors and expenditures. The majority said the fliers mailed out by Citizen Outreach during the 2010 election season criticizing Assembly member John Oceguera for being a double-dipper — drawing pay as a North Las Vegas firefighter while serving in Carson City — did not contain the “magic words of express advocacy,” such as “vote for” or “vote against,” which would trigger the need to comply with the law.

The ruling overturned a summary judgment by Carson City District Judge James Todd Russell, who fined the group $10,000 plus $7,600 in costs in 2013. (In a bizarre twist, the court first reported that case was affirmed 5-2, but the ruling and dissents contained identical language. The court blamed a clerical error. This turn of events practically gave Citizen Outreach head honcho Chuck Muth whiplash.)

The corrected ruling stated:

“Because it is undisputed that Citizen Outreach’s flyers do not contain magic words of express advocacy, the flyers were not subject to regulation under Nevada’s campaign practices statutes that were effective in 2010.

“Accordingly, we ORDER the judgment of the district court REVERSED.”

The problem now is that in 2011 the Legislature rewrote the law to remove the question of whether “magic words” — a silly creation of the U.S. Supreme Court — and state that express advocacy “means that a communication, taken as a whole, is susceptible to no other reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate.”

The court majority noted that the secretary of state testified that the change would “make it clear that Nevada does not require” magic words for a communication to be express advocacy.

The problem is not with magic words. The problem is that both the 1997 and the 2011 law blatantly violate both the First Amendment and the Nevada Constitution because they are not “content neutral” and address no “compelling government interest” in curtailing free speech by requiring revealing donors and expenditures under penalty of $10,000 fines.

In a similar case involving a Virginia-based organization that failed to file the proper paperwork with the state, Judge James E. Wilson Jr. stopped televised ads from being broadcast and said,“Nevadans have a right to know who is behind election advertising. … Irreparable harm will occur to the voters and to the electoral process if broadcasting of the Ad is not enjoined, because voters are being deprived of the information to which they are entitled under Nevada law prior to casting their ballots.”

There is no such right to know. A compelling government interest might be public safety, but not whether voters must be told who is donating to a given cause. The voters get to decide what communication is persuasive, whether the source of funding is revealed or not. The voters tell the government what to do, not the other way around.

Article 1, Section 9 of the Nevada Constitution states: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

NRS 294 clearly restrains and abridges.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine in any dictionary is a restraint.

In 1988, Margaret McIntyre was fined $100 for distributing leaflets opposing a school tax levy at a public meeting in Westerville, Ohio. She had violated a state law prohibiting unsigned leaflets — similar to unrevealed donors, don’t you think?

In declaring the Ohio law unconstitutional, Justice John Paul Stevens wrote:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”

The Federalist and Anti-Federalist papers, as well as “Common Sense,” were all penned anonymously. The former to avoid clouding the message about the new Constitution with personalities, but the latter to avoid being hanged for treason.

In this day and age, donating to certain causes, such as the anti-gay marriage campaign in California, have resulted in threats, intimidation, boycotts and ruined careers.

Justice Clarence Thomas said in a dissent in Citizens United v. FEC:

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’

As I said, the Nevada high court made the right decision but for the wrong reason. The law itself should have been declared unconstitutional.

There is no constitutional authority for government to drag more information out of a speaker than the speaker wishes to convey, under the excuse that voters are just too darned stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

The Legislature should repeal this law or someone should challenge the 2011 version of the law in the courts and make the right argument.

Free speech must be free of government restrictions.

 

Nevada Supreme Court refuses to hear appeal of Las Vegas rural water grab

The Nevada Supreme Court has dealt another blow to the Las Vegas attempt to grab groundwater from Lincoln and White Pine counties.

In December 2013, state court Senior Judge Robert Estes ruled that State Engineer Jason King had failed to establish adequate criteria for protecting the residents of eastern Nevada and western Utah from damages that might result from drawing down the groundwater to supply the Southern Nevada Water Authority with 84,000 acre-feet a year of groundwater from Spring, Cave, Dry Lake and Delamar valleys.

Now the high court has ruled that since the judge remanded the matter to the state engineer for further studies and review that the case is not yet appealable.

Crops in eastern Nevada already are irrigated with groundwater. (Photo by Kristi Fillman for GBWN)

The unpublished opinion cited the judge’s own words about how the engineer’s findings were lacking. Judge Estes repeatedly called the plans for monitoring, mitigating and managing the water transfer “arbitrary and capricious.”

“There are no objective standards to determine when mitigation will be required and implemented,” the judge wrote. “The Engineer has listed what mitigation efforts can possibly be made, i.e., stop pumping, modifying pumping, change location of pumps, drill new wells … but does not cite objective standards of when mitigation is necessary.”

Judge Estes concluded that if “it is premature to set triggers and thresholds, it is premature to grant water rights.”

In a press release, attorney Simeon Herskovits, representing one the groups suing to halt the water grab, Great Basin Water Network, said, “SNWA has had 25 years to provide basic information proving that its proposed project to pump and pipe water out of these rural valleys would be sustainable and comply with the most basic requirements of Nevada’s water law. The fact that they not only have failed to produce such evidence in all that time, but also have gone on record saying repeatedly that they cannot produce such evidence, only goes to show this misguided proposal never has been and never will be scientifically defensible or legally permissible.”

Abby Johnson, president of GBNW, added, “All of the science actually shows that SNWA’s plan to pump groundwater out of these rural valleys and pipe it down to the Las Vegas Valley simply will not be sustainable and cannot avoid destroying existing water rights and the environment in the vast affected area.”

Since Estes’ ruling a study by the U.S. Geological Survey calculated all the annual groundwater recharge for the valleys involved from various sources is about 175,000 acre-feet. The current outflow — current wells, springs, streams and outflow to other aquifers — is almost precisely the same amount of water — equilibrium.

“Increased well withdrawals within these high transmissivity areas will likely affect a large part of the study area, resulting in declining groundwater levels, as well as leading to a decrease in natural discharge to springs …” the study concluded.

It is those springs and streams that support livestock, agriculture and a vast array of wildlife, some of which are threatened or endangered. Declining groundwater levels would mean local wells might have to be drilled deeper, a very expensive proposition for local landowners and homeowners.

A study for SNWA found the cost of wells, pumps and pipelines could top $15 billion and triple Las Vegas water bills.

Whiskey might be cheaper.