Who may apply a ‘balancing test’ for access to public records?

A story in today’s newspaper about police denying the paper access to certain arrest records stated:

The denial also cited a “balancing test” established by a 1990 state Supreme Court decision, now a common method of blocking public access to government records. Donrey of Nevada v. Bradshaw allowed governments to withhold records not deemed confidential if officials decided secrecy was in the best interest of the public.

Actually, Donrey v. Bradshaw stated that the courts could apply a balancing test, not every bureaucrat in custody of records deemed public by virtue of the Nevada Public Records Act. Also, the balancing test that the court applied did not withhold records but rather declared that records otherwise deemed confidential by law could be made public if it was in the best interest of the public. It was a victory for the media and the public, not a loss.

A Reno television station, which was then owned by the same company that owned the Las Vegas newspaper, requested a police investigative report on brothel owner Joe Conforte. The Reno city attorney had dismissed charges of contributing to the delinquency of a minor against Conforte even though police opposed the dismissal. Such reports are by law confidential.

The Nevada Supreme Court applied a “judicial” balancing test and found that “weighing the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government” that the scales tipped in favor of release of the records.

In overturning a district court ruling denying the disclosure of the requested records, the state Supreme Court stated:

There is no pending or anticipated criminal proceeding; there are no confidential sources or investigative techniques to protect; there is no possibility of denying someone a fair trial; and there is no potential jeopardy to law enforcement personnel. Even the district court acknowledged in its order that “if a [balancing] test were applied under the circumstances of this case, petitioners would undoubtedly prevail.”

But, ever since then local governments have been applying the balancing test to argue that records clearly defined by law as public could be kept confidential under their own balancing test — even though there is no specific law allowing this and no court precedent. That argument has been used to deny access to everything from employee evaluations and salaries to cell phone records of county commissioners.

Judges, not bureaucrats with vested interests, are the only ones who may apply a balancing test to determine whether a record is open for public inspection. That is what Donrey v. Bradshaw actually says.

Jim Day cartoon

Editorial: Laws protecting journalists should apply to bloggers

The Nevada Supreme Court unanimously ruled earlier this month that online publications are protected under the state’s 1970s-era shield law that protects journalists for newspapers, periodicals, press associations, radio and television stations from being required to reveal their news sources during litigation — even though lawmakers at the time doubtlessly did not envision the creation of online media.

A district court judge earlier this year held that a blog does not qualify as a newspaper because it is not printed in physical form and therefore is not protected by the news shield law.

The ruling arises from a defamation lawsuit brought by Storey County Commissioner Lance Gilman against blogger Sam Toll, who questioned on his blog The Storey Teller whether Gilman actually lives in the county and is therefore ineligible to serve on the commission.

Gilman, owner of the Mustang Ranch brothel and manager of the Tahoe Reno Industrial Center, has listed his residence as a trailer on the Mustang Ranch property. Toll wrote that sources told him this was not true. One said that Gilman would leave the brothel grounds every night at 8 p.m. and another said he keeps his possessions at a different location, where he actually lives.

During a deposition, Toll was asked to reveal those sources, but he refused.

Blogger Sam Toll

Though the court ruled that online publications may be protected by the shield law, it drew up short of saying whether Toll himself qualified.

The opinion, penned by Chief Justice Mark Gibbons, states, “In light of this modernization of the news media, we are asked to determine whether digital media falls within the protections of NRS 49.275. We hold that it does, but we do not address the specific question of whether or not petitioner Sam Toll qualifies for such protection as a blogger. Therefore, we grant the writ petition in part, so that the district court can conduct further proceedings in light of our holding and reconsider whether Toll’s blog falls within the protection of the news shield statute.”

NRS 49.275 reads in part, “No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation …”

To further complicate matters Toll also filed to have the defamation suit dismissed by citing the state’s anti-SLAPP law. SLAPP stands for Strategic Lawsuit Against Public Participation and is generally defined as vexatious litigation solely designed to squelch free speech under the burden of expensive, tedious and lengthy court wrangling.

Gibbons explained, “The district court held that there was a potentially viable claim under the anti-SLAPP statute. According to the court, Gilman made a prima facie case for a probability of success on the merits as to the falsity of the residency statements and their damaging nature, but he failed to make such a showing for actual malice, which is required to prevail on a defamation claim against a public figure. The district court granted Gilman’s motion for limited discovery on whether Toll had actual malice when making these statements.”

The Supreme Court directed the judge to vacate his order compelling Toll to reveal his sources and to reconsider the motion in light of the superior court opinion.

The courts should keep in mind that at the time of the nation’s founding, when the First Amendment prohibited Congress making any law abridging freedom of the press, the press was often one guy with a press cranking out his views and those of his contributors. Sounds rather like a blogger.

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: Court should block enforcement of Red Flag law

A citizens’ rights organization has filed a lawsuit in Carson City District Court seeking an injunction to prevent the enforcement of the “Red Flag” provision of a law passed by Nevada lawmakers earlier this year.

Under the Red Flag section of the law persons accused of being a potential danger to themselves or others may have their firearms confiscated by order of a judge.

The suit filed by attorneys for NevadansCAN (Citizens Action Network) argues the Reg Flag section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional, violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”

The suit, filed earlier this month, asks that a judge stop the law from taking effect as scheduled on Jan. 1.

“A person accused of being a danger may not even be aware of the court action against him, and his guns can be forcibly taken by law enforcement and his premises searched. Due process never enters into it,” a press release announcing the litigation quotes Mary Rooney, a plaintiff in the suit and a co-founder of NevadansCAN, as saying.

Another plaintiff and co-founder, Julie Chen Hereford, said, “The Red Flag provision violates both the Constitution of the United States and the Nevada State Constitution by giving judges the power to take away an individual’s right to keep and bear arms based on the accusation that the individual is dangerous and should not have a firearm.”

One of the principal arguments by the group’s suit is that a September ruling by the Nevada Supreme Court essentially found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling.

The court ruled a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.

The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial, which was defined as a crime carrying a sentence of greater than six months.

The unanimous Nevada opinion written by Justice Lidia Stiglich stated the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.

NevadansCAN argues that AB291 allows a secret process in which a judge can issue an order for gun seizure from an individual who has not been accused or convicted of violating any law and there is no role for a jury as the state high court deemed necessary.

The lawsuit itself declares, “This law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”

There are seven legal processes that safeguard due process, the suit states, and this law deprives the accused of five of those: “notice; opportunity to make an oral presentation; means to present evidence; cross-examination and response to evidence; and the right of counsel at critical junctures.”

NevadansCAN’s suit notes that under such Red Flag laws those accused receive notice of the case against them when the police show up to confiscate their firearms. It also points out the accuser need never appear in court but merely submit an affidavit.

AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.

An injunction is needed.

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.

Editorial: Denial of Second Amendment rights warrants a jury trial

Earlier this month, the Nevada Supreme Court ruled a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their Second Amendment right to keep and bear arms denied.

In keeping with a 1993 U.S. Supreme Court decision, our state’s high court had previously held that only those persons charged with a “serious” crime are entitled to a jury trial, which was defined as a crime carrying a sentence of greater than six months. 

The unanimous opinion written by Justice Lidia Stiglich stated the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.” 

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich writes in a case out of Las Vegas.

The ruling concludes, “Given that the Legislature has indicated that the offense of misdemeanor domestic battery is serious, it follows that one facing the charge is entitled to the right to a jury trial.”

Attorney Michael Pariente, who represented appellate Christopher Anderson, told the Las Vegas newspaper, “I applaud the Nevada Supreme Court for unanimously doing the right thing. I think it’s a huge decision. They spoke with one voice, and it’s a good day for people who are charged with misdemeanor domestic violence. It forces the prosecutor to prove their case beyond a reasonable doubt to a 12-person jury instead of one single, sitting judge.”

But Nevada Attorney General Aaron Ford, whose office argued against allowing a jury trial in such cases (See clarification/correction below), put out a statement saying, “The devastating consequences of this decision cannot be overstated. Misdemeanor courts across this state are not equipped for jury trials, and this decision could have a widespread chilling effect on domestic violence victims coming forward. My office is working hand-in-hand with city, county, and federal officials to formulate a response and prevent the domestic violence epidemic in this state from further devastating our communities. The most immediate priority for my office is doing whatever it takes to ensure more people are not killed by their abusers as a result of this decision.”

Frankly, we have to ask: Why did it ever come to this?

The Webster’s definition of “all” is: “the whole amount, quantity, or extent of; every member or individual component of; the whole number or sum of; every.”

You see, Article 3, Section 2, of the U.S. Constitution states: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury …”

The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”

The Nevada Constitution says: “The right of trial by Jury shall be secured to all and remain inviolate forever …”

How the U.S. Supreme Court decided “petty” crimes do not warrant a trial by jury is beyond our feeble minds, but in any case the Nevada high court is to be applauded for deciding that the denial of the fundamental right to bear arms constitutes a serious matter and deserves a trial by a jury of one’s peers.

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.

Nevada Supreme Court justices: Seated: Associate Chief Justice Kristina Pickering, Justice Ron D. Parraguirre, Chief Justice Mark Gibbons, Justice James W. Hardesty, Justice Lidia S. Stiglich. Standing: Justice Abbi Silver, Justice Elissa F. Cadish.

 

Clarification/correction

A recent editorial stated that Nevada Attorney General Aaron Ford’s office argued against allowing a jury trial in misdemeanor domestic violence cases. The office was not actively involved in the case in which the Nevada Supreme Court ruled that because the Legislature passed a law allowing the denial of Second Amendment rights for persons convicted in such cases that persons thus accused have the right to a jury trial because the charge is now serious rather than petty.

After the ruling, Ford’s office issued a statement in response to a media inquiry about possible victim impact. Only part of the statement appeared in the media. The full statement reads:

“One of the main areas of focus for my office is the protection of constitutional rights. That means all rights – including the 2nd Amendment right to bear arms and the 6th Amendment right to a jury trial. Accordingly, I understand, appreciate, and accept the analysis and decision of the Nevada Supreme Court on the intersection of these constitutional rights in the context of misdemeanor domestic battery charges which, if proven, result in the loss of the right to own firearms. I do not challenge that conclusion and, in fact, embrace it as an example of how sacred all constitutional rights (e.g., voting, reproductive health, etc.) are. That said, it cannot be denied that this new jury requirement will have very real and practical effects on domestic-violence prosecutions. To properly implement this new jury requirement, more resources are immediately needed, such as access to victim advocates, additional prosecutors and defense attorneys, training for laypersons who serve as justices of the peace, and many other needs. In the meantime, the sad fact remains – domestic violence victims are at risk. And our state is already ranked as one of the worst in the country for domestic violence fatalities. While we seek ways to implement this new jury requirement for misdemeanor defendants, my office will continue leveraging its resources and working with city, county, and federal officials to protect Nevada families from domestic violence.”

 

Newspaper column: Opinion says two-thirds vote not needed to extend taxes

Never tell the boss no.

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.

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.

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.