Editorial: Supreme Court should limit civil asset forfeitures 

The U.S. Supreme Court finally has taken up a case that could result in the reining in of the larcenous practice by local and federal law enforcement agencies of seizing private property to pad their budgets.

This past week the court heard arguments in the case of Timbs v. Indiana. Tyson Timbs was caught in a police sting selling heroin, and during one of his transactions he was driving a $42,000 Land Rover, which the police seized.

Timbs’ attorney argued the seizure of the expensive vehicle was a violation of the Eighth Amendment prohibition against excessive fines and punishment. 

The Indiana Supreme Court held that the excessive-fines clause doesn’t apply to states, according to a Wall Street Journal account, which is dubious since the 14th Amendment declared, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States …” which are spelled out in the Bill of Rights. 

The attorney for Indiana also argued that the seizure was an “in rem” asset forfeiture, meaning the property was guilty of a crime and therefore its value was not subject to the proportionality of any fine.

This caused Justice Stephen Breyer to speculate, “So what is to happen

if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy? (Laughter.)” — even if the speed limit were exceeded by only five miles an hour.

The state attorney’s quick reply was, “Yes, it’s forfeitable.”

Chief Justice John Roberts seemed to concede that there is difference between a fine and the seizing of guilty property, saying, “And I certainly understand the argument that the disproportion and excessiveness arguments would be quite different with respect to forfeiting the instrumentalities of the crime.  I mean, an argument could be made, well, that’s always proportionate since it’s the way the crime is accomplished.”

But Timbs’ attorney argued the seizure still constitutes a fine.

Yes, it is a distinction without any practicable difference. The person is still deprived of valuable property, which arguably is prohibited by the Eighth Amendment.

This case is not academic for Nevada. There have been a number of asset forfeitures that appeared to exceed the excessive-fine clause prohibition. Over a two-year period Humboldt County deputies alone seized $180,000 in cash from motorists, though some were never convicted of a crime.

Police in Elko County confiscated $167,000 in cash from a man driving a motor home after a drug dog “alerted,” though no drugs were found and no charges were ever filed.

Let’s pray the U.S. Supreme Court sees fit to require law enforcement to abide by the Bill of Rights from now on.

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.

Tyson Timbs (AP pix via WSJ)

Newspaper column: These statewide candidates worthy of your vote

The statewide elective offices on the November ballot are of doubly vital concern to rural Nevadans this year, primarily because the urban counties are likely to stack the Legislature with tax-and-spend Democrats beholding to public employee unions and eager to throw more of our money into the bureaucratic maw.

Topping the list is the race for governor, pitting Republican Adam Laxalt against Democrat Steve Sisolak. During his term as attorney general Laxalt has proven himself to be a staunch defender of Nevada’s rights in the face of federal encroachment and displayed conservative bona fides. The voters need to hand the veto pen to Laxalt so he can protect us from a likely left-leaning collective of lawmakers. Sisolak would be a rubber stamp.

Republican lieutenant governor candidate Michael Roberson, who backed Gov. Brian Sandoval’s record-breaking tax hikes, might not be our first choice for the office or even second or third, but letting Democrat Kate Marshall preside over the state Senate in 2019 and cast tie-breaking votes would not bode well either. Roberson as the Senate minority leader has tried to rein in lobbyist and special interest influence in Carson City and advocated for economic development and school choice. Roberson is the better choice.

During her first term as secretary of state, Republican Barbara Cegavske has worked tirelessly to assure the integrity of Nevada’s elections and record keeping. She has worked to increase voter registration and turnout.

Cegavske says that during a second term she will work with county officials to increase cyber security of county registration databases, improve audits and physical security of voting equipment. She is the obvious choice, because her 30-year-old Democratic opponent Nelson Araujo lacks the experience and credentials.

In the race for state treasurer, Republican Bob Beers — a certified public accountant, former legislator and Las Vegas city councilman — is the clear choice over Democrat Zach Conine. The treasurer is the state’s chief financial officer and is responsible for investing state funds, maintaining the state budget, managing college savings plans, keeping records of unclaimed property and maintaining records of the state’s accounts.

Beers has experience managing public money because of his five sessions on the Legislature’s Finance Committee and five years on the city council, plus many years in private business. His integrity is unquestioned.

In his first term as the state’s controller, Republican Ron Knecht has introduced cost-savings and increased transparency in the handling of the state’s funds. The controller is essentially the state’s chief fiscal officer, responsible for the state’s accounting system, settling claims against the state and collecting debts. The office protects the citizens’ money by ensuring that it is properly accounted for and spent in the most efficient and cost effective manner at all times.

Knecht boasts that he has cut the controller’s office spending by more than 13 percent, returning more than $1 million to the treasury and increased debt collection by $1.3 million a year. As a legislator he was a staunch opponent of higher taxes in general and still favors a repeal of the complicated and burdensome commerce tax. Knecht also published the state’s first annual report on the fiscal management of state funds, put the state checkbook online for direct inspection by citizens and has worked to improve data security.

Knecht has the credentials and experience that his Democratic opponent Catherine Byrne lacks.

The major party contenders to be the state’s next attorney general are Republican Wes Duncan and Democrat Aaron Ford. The attorney general is the state’s top lawyer, representing citizens of Nevada in civil and criminal matters. The attorney general also serves as legal counsel to state officials, providing opinions on how to interpret the law.

Duncan has been Attorney General Laxalt’s assistant attorney general and has served as an assemblyman and a county prosecutor and Air Force judge advocate. Ford is an attorney and former state senator who has advocated for higher taxes, though the IRS has filed liens against him for unpaid taxes. Duncan has the experience and conservative philosophy fitting for our next attorney general.

There are two contested Nevada Supreme Court seats on the ballot. The nonpartisan contests pit Nevada Court of Appeals Judge Jerry Tao against Clark County District Judge Elissa Cadish and Supreme Court Judge Lidia Stiglich, appointed to the court two years ago, against Clark County District Judge Mathew Harter.

Both Tao and Harter have vowed to be conservative arbiters of the law and have been rated well by lawyers appearing before them and are worthy of support. Stiglich also dissented from a recent decision strengthening access to public records.

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: Can a Nevada law pass constitutional muster?

Our federal and state constitutions are meant to lay the ground rules for what our governments can and cannot do, spelling out the rights of the individual to be free from the dictates for well-meaning but overweening lawmakers.

A recent obscure and little-noted Supreme Court case out of Minnesota tore the heart out of one of those rights by flippantly dismissing the significance of one of those rights and claiming the outcome is what is best for the lackadaisical peons.

What other rights might be in jeopardy?

The case was a challenge to a Minnesota law that requires a divorced spouse to be automatically dropped as a life insurance beneficiary — a law that treads on the U.S. Constitution’s Contracts Clause, which states, “No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts …” A life insurance policy is most assuredly a contract.

From SCOTUS blog

Nevada has a similar law, NRS 111.781, passed in 2011, that states all listed beneficiaries on life insurance policies are automatically revoked once a divorce is finalized.

Nevada’s state Constitution also states, “No bill of attainder, ex-post-facto law, or law impairing the obligation of contracts shall ever be passed.” Doesn’t abrogation constitute impairment?

The underpinning of such laws is that lawmakers believe the average mope is too lazy or too ignorant to initiate a change in life insurance beneficiaries following a divorce.

The case of Sveen v. Melin upheld the Minnesota version of this law by a vote of 8-1 with only Justice Neil Gorsuch dissenting.

In 1998 Mark Sveen purchased a life insurance policy naming his wife Kaye Melin as beneficiary. In 2002 Minnesota passed the law in question. Sveen and Melin later divorced and Sveen died. Melin and Sveen’s children from a previous marriage sought the insurance money.

The court held: “The retroactive application of Minnesota’s statute does not violate the Contracts Clause.” No one even raised the question of whether it was ex post facto.

Even Justice Gorsuch throws the Contracts Clause under one wheel of the bus, writing, “Everyone agrees that the law is valid when applied prospectively to policies purchased after the statute’s enactment. But Minnesota wants to apply its law retroactively to policies purchased before the statute’s adoption. The Court of Appeals held that this violated the Contracts Clause, which guarantees people the ‘right to “rely on the law … as it existed when the[ir] contracts were made.”’ …That judgment seems to me exactly right.”

A prospective contract impairment is OK, but not a retroactive one?

“Of course, the framers knew how to impose more nuanced limits on state power,” Gorsuch writes later. “The very section of the Constitution where the Contracts Clause is found permits states to take otherwise unconstitutional action when ‘absolutely necessary,’ if ‘actually invaded,’ or ‘wit[h] the Consent of Congress.’…  But in the Contracts Clause the framers were absolute. They took the view that treating existing contracts as ‘inviolable’ would benefit society by ensuring that all persons could count on the ability to enforce promises lawfully made to them — even if they or their agreements later prove unpopular with some passing majority.”

But Justice Elena Kagan, writing for the majority, rationalizied, “True enough that in revoking a beneficiary designation, the law makes a significant change. As Melin says, the ‘whole point’ of buying life insurance is to provide the proceeds to the named beneficiary. … But … the statute is designed to reflect a policyholder’s intent — and so to support, rather than impair, the contractual scheme.”

Lawmakers and justices are mind readers who can tell what people really want to do rather than what they actually do under signed contracts.

Gorsuch concluded, “The judicial power to declare a law unconstitutional should never be lightly invoked. But the law before us cannot survive an encounter with even the breeziest of Contracts Clause tests. It substantially impairs life insurance contracts by retroactively revising their key term. No one can offer any reasonable justification for this impairment in light of readily available alternatives. Acknowledging this much doesn’t even require us to hold the statute invalid in all applications, only that it cannot be applied to contracts formed before its enactment.”

Since Nevada’s law and Nevada’s Constitution appear to be in conflict, there is a chance this controversy could arise here and be settled at the state level. There are principles at stake, as well as money.

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.

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.

Editorial: Second Amendment is not a second-class right

Do the courts treat the Second Amendment like a second-class right?

Supreme Court Justice Clarence believes they do and makes a compelling argument.

This past week the U.S. Supreme Court refused to hear an appeal of a 9th U.S. Circuit Court of Appeals ruling upholding a California law requiring a 10-day waiting period for the purchase of any firearm. Justice Thomas penned a scathing 14-page dissent.

“The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Fourteenth Amendment requires the States to respect that right …” Thomas writes. “Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.”

Thomas says the 9th Circuit upheld the 10-day waiting law based solely on its own determination that it was “common sense,” without requiring any supporting evidence and without acknowledging a lower court’s factual findings that caused it to agree with plaintiffs that the law was unconstitutional when it was applied to people who already own guns, because it would not serve as a “cooling off” period for those who might use a firearm to harm themselves or others.

Thomas’ dissent notes that the 9th Circuit ignored the testimony previously given despite the legal requirement to weigh its validity. “California’s expert identified only one anecdotal example of a subsequent purchaser who had committed an act of gun violence, and the expert conceded that a waiting period would not have deterred that individual,” the justice observes, noting the appellate court allowed California to justify its waiting period with mere “rational speculation unsupported by evidence or empirical data …”

The courts are picking and choosing what constitutional rights to favor and which to ignore, Thomas argues, calling it “emblematic of a larger trend.” For example, the 9th Circuit struck an Arizona law that established a “cooling off” period for a woman seeking an abortion. It also invalidated a county ordinance requiring a five-day waiting period to obtain a nude-dancing license because it interfered with the First Amendment right of free expression. In another case, the 9th held that laws embracing traditional marriage failed because they were based on no evidence other than speculation, though such law reflects “thousands of years of human history in every society known to have populated the planet.”

Thomas does not let his own court off without a few verbal wrist slaps. He notes, “We have not heard argument in a Second Amendment case for nearly eight years. … And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment — even though our jurisprudence is much more developed for those rights. If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.”

The four liberal members of the court are singled out for chiding by Thomas. He says those four would have agreed to hear a case involving a 10-day cooling off period for abortion or a case involving a 10-day cooling off period for publication of racist articles or a case involving even a 10-minute delay at a traffic stop while a dog sniffed the vehicle.

“The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights,” Thomas writes. “The right to keep and bear arms is apparently this Court’s constitutional orphan.”

All enumerated rights in the Constitution should be accorded their proper respect and none relegated to a second-class status, subject to different standards.

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.

 

High court allows Trump travel ban to take effect

Protesters oppose Trump travel ban. (Getty pix)

The Supreme Court today, the last day of its session, lifted lower courts injunctions against President Trump’s executive order restricting travel from six majority-Muslim nations, though its ruling exempted those with existing ties to the U.S. The court said it would hear arguments in the case when it returns in October, though it may be moot by then, because the 90-day ban will have expired.

The justices basically agreed foreigners do not have constitutional rights to enter the country:

But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. … (“[A]n unadmitted and nonresident alien … ha[s] no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.

At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. … The interest in preserving national security is “an urgent objective of the highest order.” … To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.

We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions …

Trump released a statement applauding the decision:

Today’s unanimous Supreme Court decision is a clear victory for our national security.  It allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective.

As President, I cannot allow people into our country who want to do us harm.  I want people who can love the United States and all of its citizens, and who will be hardworking and productive.

My number one responsibility as Commander in Chief is to keep the American people safe.  Today’s ruling allows me to use an important tool for protecting our Nation’s homeland.  I am also particularly gratified that the Supreme Court’s decision was 9-0.

Actually, Justice Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, wrote a dissent which argued the injunctions should be lifted in their entirety with no exceptions, because:

Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. … The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed …

The court partially restored the congressionally dictated power of the executive branch to control immigration.

In trademark case Supreme Court upholds principle that government may not limit free speech

The Slants

The Supreme Court has struck a blow for free speech in a case that might on its face seem rather petty, but maintains the principle that government must butt out of judging what is a permissible level of offensiveness.

The case involved the Patent and Trademark Office refusing to grant a trademark to an Asian-American rock band that wanted to call themselves “The Slants.” The agency cited a section of the law that denies trademarks for names that are “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute …”

According to the opinion by Justice Samuel Alito, the band wanted to use the ethnic slur as its name to “reclaim” the term and drain it of its denigrating force.

But the government argued that issuing a trademark was tantamount to the government engaging in disparaging speech, citing a previous case in which the court held that the state of Texas was not required to issue car license plates commemorating Confederate Veterans.

Alito held that license plates are government speech but a trademark is not. He wrote that the federal law did not create trademarks but merely was instituted to protect trademarks from being usurped:

The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” … We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

“The principle underlying trademark protection is that distinctive marks — words, names, symbols, and the like — can help distinguish a particular artisan’s goods from those of others.” … A trademark “designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the sale of another’s product as his.” … It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid.

“[F]ederal law does not create trademarks.” … Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. … For most of the 19th century, trademark protection was the province of the States. … Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. (Citations omitted.)

Justice Anthony Kennedy strongly concurred and wrote:

At its most basic, the test for viewpoint discrimination is whether — within the relevant subject category — the government has singled out a subset of messages for disfavor based on the views expressed. … (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). In the instant case, the disparagement clause the Government now seeks to implement and enforce identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols.” Within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination. …

A law that can be directed against speech found offen- sive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

As The New York Times points out, this bodes well for the Washington Redskins football team, which had been granted trademark status for many years but was denied in 2014 because of the disparagement clause.

But more importantly it underpins the principle that government may not approve or disapprove of the content of a message for whatever excuse.