Newspaper column: States should not be granted absolute immunity

The U.S. Supreme Court heard arguments in a case this past week that could alter the ability of a private citizen to seek justice in his state’s courts when public employees from another state abuse their powers and step over the line of common decency. The case is titled Franchise Tax Board of California v. Hyatt.

It all started in 1993 when a tax auditor for the Franchise Tax Board of California read a newspaper article about how wealthy California computer chip inventor, Gilbert Hyatt, had recently moved to Nevada, which, unlike California, has no income tax. The auditor investigated and concluded Hyatt had not moved to Nevada as early as he claimed. The tax board said Hyatt owed California nearly $15 million in taxes and penalties.

Hyatt eventually sued the tax board in Nevada courts for invasion of privacy, intentional infliction of emotional distress, fraud, abuse of process and breach of confidential relationship. According to The Wall Street Journal, California’s lead auditor became obsessed with Hyatt and vowed to “get that Jew bastard.” The auditor reportedly traveled to his Nevada home and “peered through his windows and examined his mail and trash,” as well as pressed estranged family members to testify against him.

A Nevada jury found for Hyatt and awarded him $85 million for emotional distress, $52 million for invasion of privacy, $1 million for special damages for fraud and $250 million in punitive damages. Because Nevada has a law limiting the liability of its own state agencies the award was later reduced to $50,000.

In a strange case of role reversal, the argument now before the U.S. Supreme Court being pressed by California is that one of its earlier opinions should be overturned. That case is known as Nevada v. Hall. California residents brought suit in a California court for damages when a state of Nevada-owned vehicle on official business collided with the Californians on a California highway. The California courts assessed damages of more than $1 million against Nevada.

The U.S. Supreme Court in 1979 ruled that while states have sovereign immunity from being sued in their own courts, a state is not constitutionally immune from suit in the courts of another state.

In yet another twist, the attorneys general of 45 states, including Nevada’s then-Attorney General Adam Laxalt, have filed amicus briefs asking that Nevada v. Hall be overturned.

“The time has come for this Court to overrule its decision in Nevada v. Hall … an outlier among this Court’s consistent protection of the States’ sovereign immunity,” the brief argues. “Although this Court has held that States are immune in their own courts, in federal courts, and in federal administrative agencies, Hall allows a State to be haled before the courts of any other State and be forced to pay money judgments issued by those courts. This affront to the States’ sovereign dignity and financial resources is contrary to the Constitution’s structure and history and should be definitively rejected. For this reason, a total of forty-five States have joined briefs arguing that Hall should be overruled.”

During oral arguments this past week, California’s attorney argued that the “writings and speeches given by Hamilton, Marshall, and Madison” supported his view that states should be immune from legal action in the courts of other states.

Again according to the Journal, liberal Justice Sonia Sotomayor responded, “It’s nice that they felt that way, but what we know is they didn’t put it in the Constitution. And so we talk a lot now about not relying on legislative history, but relying on the plain text.”

Conservative Justice Samuel Alito added that “we are all always very vigilant not to read things into the Constitution that can’t be found in the text.” Justice Brett Kavanaugh asked why something the states supposedly regarded as so important would not have been addressed in the constitutional text.

Where is a citizen to turn when public officials flout the law and run amok? Does not state sovereignty include the right and power to protect its own citizens from agencies in other states when they are extorted and defrauded? You know what they say about absolute power.

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: Federal sports betting bill usurps state powers

Now, precisely where in the U.S. Constitution is Congress given the power to “maintain a distinct Federal interest in the integrity and character of professional and amateur sporting contests”?

But this is what a bill introduced this past week by Republican Sen. Orrin Hatch of Utah and Democratic Sen. Chuck Schumer of New York — dubbed the Sports Wagering Market Integrity Act of 2018 — claim is grounds for imposing federal suzerainty over the eight states that currently allow sports wagering.

“This bill is the first step toward ensuring that sports betting is done right in the states that choose to legalize it,” Hatch said in a press release announcing the introduction of the bill.

“As a lifelong sports fan I treasure the purity of the game, and after Murphy v. NCAA, I knew that Congress had an obligation to ensure that the integrity of the games we love was never compromised,” Schumer was quoted as saying.

Murphy v. NCAA was the case in which the Supreme Court struck down the Professional Amateur Sports Protection Act (PASPA) of 1992, which outlawed sports gambling, though Nevada and a couple of other states were grandfathered. Hatch was one of the authors of that overturned law, which dictated how states should regulate sports betting.

Justice Samuel Alito’s opinion stated, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA ‘regulate[s] state governments’ regulation’ of their citizens … The Constitu­tion gives Congress no such power.”

This is because the 10th Amendment states that powers not delegated to the federal government are retained by the states and the people.

But Hatch and Schumer appear to be overreaching on Alito’s contention that Congress can regulate sports gambling directly, presumably under the Interstate Commerce Clause. But Nevada and the other states are regulating the intrastate commerce of sports betting, and doing just fine without federal meddling, thank you.

The bill would prohibit sports wagers on amateur sporting events, except the Olympics and college sports; prohibit sports wagering by anyone under 21, as well as athletes, coaches, officials and others associated with sports organizations; and would require sports betting operations to buy their data from sports organizations.

That latter requirement is one reason the various professional sports leagues are in favor of the bill. It lets them tap into the lucrative proceeds of legal sports betting.

The bill also dictates that sports wagering operators allocate an “appropriate percentage of the revenue from sports wagering” to treat gambling addiction and educate on responsible gaming. Might appropriate become confiscatory?

There is already a federal excise tax on sports betting that nets an estimated $12 million a year, which presumably would increase as legal sports betting spreads and the percentage rake is increased by revenue hungry lawmakers in D.C.

Of course, at some point the feds will want to take their cut from the state taxes on sports betting.

“This bill is the epitome of a solution in search of a problem, representing an unprecedented and inappropriate expansion of federal involvement in the gaming industry, which is currently one of the most strictly regulated in the country,” the Nevada Independent quoted Sara Slane, American Gaming Association’s senior vice president of public affairs, as saying. “Across the country, nearly 4,000 dedicated public servants already regulate all forms of gaming, including sports wagering, with more than $500 million committed to ensuring the integrity of commercial casinos’ operations and $822 million spent on regulation of tribal gaming in 2015 alone.”

The online news website also quoted Nevada Democratic Rep. Dina Titus, whose district includes the Las Vegas Strip, as saying, “This bill undermines Nevada’s expertise and experience in establishing a successful, regulated sports betting market. It would inject uncertainty into an established and regulated industry, weaken Nevada’s ability to promptly adapt to maintain its gold standard, and risk causing bettors and operators to leave the regulated market.”

As for integrity, who uncovered that 1994 point-shaving scheme at Arizona State? Oh yes, it was bookmakers.

This bill is a federal power grab that usurps the rights and powers of the states and does nothing for the “integrity” of sports.

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: Courts are solidifying gun rights

The courts in recent years have been nailing down ever more solidly the right to keep and bear arms.

In the District of Columbia the U.S. Supreme Court struck down restrictive ordinances that required that guns be kept at home disassembled or nonfunctional with a trigger lock mechanism, saying this violated the Second Amendment.

Justice Antonin Scalia opined that the Second Amendment reference to a “militia” is a prefatory clause that does not limit the operative clause of the amendment, which guarantees “an individual right to possess and carry weapons in case of confrontation.”

In the case of McDonald v. Chicago the high court overruled a 7th U.S. Circuit Court of Appeals and held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense apply to the states. This overturned a Chicago ordinance banning the possession of handguns.

Justice Samuel Alito wrote that rights “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment.

Now, a panel of the usually reliably liberal 9th U.S. Circuit Court of Appeals has ruled 2-1, in the case of Young v. Hawaii, that states may not prohibit open carry, though the ruling still lets states require permits for concealed carry.

“But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” writes Judge Diarmuid O’Scannlain. “We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.’ … While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’”

Nevada is one of 30 states that currently allow open carry, while 15 require permits, including neighboring Utah, for open carry and five states, including California of course, plus the District of Columbia prohibit open carry.

Judge Scannlain further pointed out that the right to self protection is one of those unalienable rights that existed prior to the Constitution and the Bill of Rights merely restrained Congress from infringing.

The ruling cited the English Declaration of 1689 as having enshrined “the right of having and using arms for self-preservation and defence.”

“In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. …” the judge explained. “In determining whether the pre-existing right codified by the Second Amendment was ‘fundamental to our scheme of ordered liberty,’ the Court stressed the centrality of self-defense: ‘Self-defense is a basic right, recognized by many legal systems from ancient times to the present day …’”

Perhaps, such sound reasoning will deter Democratic legislators in 2019 from trying to restrict gun rights, as they have so often in the past.

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.

Free speech includes the right to be silent

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political view might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flowing arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in a matter of days.

Today the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree. Justice Samuel Alito writes in the 5-4 opinion:

The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” … The right to eschew association for expressive purposes is likewise protected. … (“Freedom of association … plainly presupposes a free­dom not to associate”) … (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constella­tion, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech. The ruling overturned a 9th U.S. Circuit Court of Appeals ruling.

Justice Clarence Thomas wrote in the majority opinion:

Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly “alters the content” of petitioners’ speech.

A little more than a week ago in a 7-2 ruling the court held the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion and free speech.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against (Masterpiece Cakeshop owner Jack) Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”
Shortly thereafter the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.
The state of Nevada, under the direction of Attorney Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.
Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

Lame-duck Democratic Rep. Ruben Kihuen sent an email saying, “It is disappointing that today’s Supreme Court decision will allow unlicensed facilities to continue misleading women about the health care services they provide. No woman seeking accurate information about her health care options should be lied to, shamed, or denied access to basic medical care. This ruling is a huge setback in our nation’s fight to protect and advance women’s rights and will make it harder for women to access the health care services they need. We must continue fighting to ensure that every woman has the right to make her own health choices and has access to the full range of options.”

Laxalt’s political campaign sent out an email crowing about the two most recent court ruling and rubbing Sisolak’s nose in it:

The Supreme Court has reaffirmed that the government cannot force Nevadans to advocate political positions against their beliefs. We know Steve Sisolak disagrees. Steve said it was “shameful” when Adam visited a Nevada pregnancy care center, and he favors zero restrictions on abortion — a position to the left of most Nevada Democrats. He is benefiting from the government union in this case, AFSCME, that is running over a million dollars in attack ads against Adam right now — attack ads that PolitiFact has called “false.”

These were great victories for free speech. Adam protected pregnancy care centers from a radical California law that would have forced these pro-life centers that offer care for pregnant women to advocate for policies they disagree with. Adam protected workers from being forced to give up their wages to a government union that pays for political lobbying and advertising that they may disagree with.

Steve Sisolak’s fringe agenda is being exposed. This is a great week for freedom of speech in Nevada, and a terrible week for Steve Sisolak’s radical political machine.

Anti-abortion activists celebrated outside the Supreme Court on Tuesday. (Reuters pix via NYTimes)

 

Court breathes life back into 10th Amendment

In a sports book.

What a refreshing concept: Congress may exercise only those powers granted to it by the Constitution, all other powers belong to the states and the people themselves.

In an opinion issued today, Justice Samuel Alito tossed the Professional Amateur Sports Protection Act of 1992, which outlawed sports gambling, though Nevada a couple of other states were grandfathered. The decision was 6-3.

Here is what Alito stated:

The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.

The legalization of sports gambling requires an im­ portant policy choice, but the choice is not ours to make.

 

Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens … The Constitu­tion gives Congress no such power.

The long dormant 10th Amendment lives.

 

Newspaper column: Court case is about free speech, not abortion

This past week the U.S. Supreme Court heard arguments in a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on certain professionals is a violation of the free speech clause of the First Amendment.

NIFLA is the National Institute of Family and Life Advocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices informing pregnant women about state-subsidized free or low-cost abortions.

The law also requires pro-life, religious-oriented unlicensed centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services, significantly increasing their cost to advertise. The law exempts abortion providers, hospitals and other healthcare facilities.

The Ninth Circuit upheld the law.

The case could reverberate in this year’s Nevada gubernatorial election, because Attorney General Adam Laxalt, who is running for the Republican nomination to be governor, signed onto to an amicus brief in the case with 21 other states, challenging the law as an unconstitutional burden on free speech.

According to the donation-funded news website The Nevada Independent, the two leading Democratic gubernatorial candidates, Clark County Commissioners Steve Sisolak and Chris Giunchigliani, have sharply criticized Laxalt for taking sides in the lawsuit, calling him “anti-choice.” Sisolak and Giunchigliani are both donors to the website.

The amicus brief argues the California law is not “an informed consent” law, which the courts have upheld.

“Informed consent is required specifically so that the patient can assess the risks and consequences of a procedure that a doctor is seeking to perform. …” the brief in question argues. “In contrast, a State’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.”

The targeted clinics provide pregnancy tests, ultrasounds, referrals and consultations, which involve little, if any, risk.

The brief concludes, “If there is evidence of wrongdoing on behalf of any of the medical clinics, California may unquestionably enforce those standards through the power of its regulatory authority, like any other State. But enforcing standards does not necessitate a blanket requirement compelling medical clinics to advertise state- subsidized services they do not provide.”

During oral arguments this past week, the questions asked by both liberal and conservative justices indicated they thought the law an overreach.

“If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” asked the court’s newest conservative member, Neil Gorsuch. He later added, “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Conservative Justice Samuel Alito asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech.

“I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences. …” Alito said from the bench. “But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?”

Justice Elena Kagan, one the markedly liberal justices, questioned the way the law was “gerrymandered” to target a select group for the content of their speech.

“Because if it has been gerrymandered, that’s a serious issue,” she stated. “In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”

The question to be resolved in California is about free speech, not abortion.

Laxalt did join a 25-state amicus brief a year ago defending a Texas law banning “dismemberment” abortions, in which fetuses are torn apart in the womb.

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.

Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra. (AP pix).

Justices ask questions about California law requiring abortion information

On Tuesday the U.S. Supreme Court heard arguments on the constitutionality of a California law requiring pro-life pregnancy clinics to inform women about the availability of state-sponosored abortions.

The lawyers were frequently interrupted by the justices asking pointed questions. One by Justice Samuel Alito was particularly concerning. He asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech:

I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences.

And I — I — I’d like you to explain why that is consistent with Stevens and other cases where the Court has recently said we are not going to recognize any new categories of unprotected speech and how you would define the boundaries of professional speech.

And there have been a lot of cases on — there have been some cases on this in the lower courts. But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? 

How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents?

I mean, wouldn’t we be getting into very dangerous territory if we do this?

The lawyer replied that the such laws would not not include economists or journalists, but would include doctors and lawyers and maybe accountants.

And why the distinction? The state is commandeering the free speech of pro-life pregnancy centers to convey its message, why not journalists?

Justice Neil Gorsuch offered this:

Well, if it’s the first kind of statute, then why shouldn’t this Court take cognizance of the state’s other available means to provide messages? If — if it’s about just ensuring that everyone has full     information about their options, why should the state free-ride on a limited number of clinics to provide that information?”

Justice Anthony Kennedy asked whether a pro-life clinic that posts a billboard saying “Choose Life” would have to comply with the law. The answer was, yes. Actually 29 words in the same size font. It was not made clear whether that included posting the message in 13 languages.

Would this billboard have to include a message on where to get an abortion under California law? Yes.