Government power in the temporary apocalypse

I have a confession. I think this might be all my fault. A few months ago, I bit off a little more than I could chew, taking on a few more cases than, strictly speaking, I had time to deal with during regular working hours. I was working a lot of nights and weekends to keep up, and in frustration I would say, “[Gosh!] – if only the world could just pause for a couple of weeks so I could catch up.”

Apparently, I have a little too much pull with Cthulhu, or whomever is pulling on some of these strings. Sorry about that, and from now on, I promise only to use this power for good. 

But I am getting marvelously caught up on things, as least for now. Our collective situation sucks, but there are silver linings aplenty to be found as we adjust to this situation with no historical precedent to guide us. Among those are opportunities to better understand – and clean up – our own governments’ various practices, both during and after this crisis.

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My particular profession gives me a front-row seat to some of the challenges of a vibrant society trying to shut itself down. No, that’s not right – I’m not in the audience, I’m on stage in the production. Right now, I have cases in six counties and 11 distinct courts, and all of them are dealing with the shutdown in their own ways. I have clients in four different county jails and five different prisons – visitations are cancelled and most of them are not being transported to court. This is a new and stark twist to the ever-present challenge in finding the balance between public safety and individual liberty. 

For the most part, the courts have risen to the challenge. The Supreme Court has been assisting the district courts in crafting individual administrative orders tailored to their own unique geographies and circumstances – Lyon County is dealing with things differently than Washoe County, for example, and given the numbers of people likely to be in their respective courthouses, this makes all the sense in the world. 

This is one of many illustrations of why the temptation to centralize power in a crisis should be avoided. The age and physical layout of every courthouse is different, creating unique problems to solve with respect to crowd spacing, security, telephonic/video capabilities, prisoner transportation, etc. Different courts have different functions – even just logistically, violent felons cannot be dealt with in the same way as the kid in custody for a DUI. Probate matters must be afforded urgency and flexibility that other ordinary civil cases lack. Some deadlines are more critical than others. As with so much else, one size rarely fits all.

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Our school systems provide another perfect example of this. My kids’ public charter school, Doral Academy of Northern Nevada, knew that school closures were very likely coming, and so started planning weeks ago to move to online lessons if it became necessary. Prior to the governor’s order to close schools, DANN made the decision to shut down, beginning the week prior to spring break. Over the weekend, with last Monday to tweak things, the staff worked their collective butts off to prepare pre-recorded video lessons, a complete online curriculum, methods of checking attendance and collecting homework, and schedules for live-chats if students (or parents) had any questions. School-owned laptops were made available for checkout if needed, and Charter offered free internet during this crisis to families who didn’t have it at home. To keep things light, each day had a theme – Bring your Pet to School day, “Spirit Wear” Day, Pajamas Day – that sort of thing. There were hitches, but they were minor. Sitting with my kids and watching the first week roll out so successfully made me so, so proud of my kids’ school.

The bigger the jurisdiction, the more turgid their responses. Washoe has been on spring break since the closure announcement was made, but up until the day of the announcement from Governor Sisolak, was defiantly insisting that they would simply stay open (a lamentable failure to read some pretty obvious tea leaves). The same was true of Clark County. Education solutions so far have been to post a few links to external education resources on their websites, and telling us they’re planning. The state superintendent announced that some online learning ought to start by March 23. WCSD “plans” for “student learning to restart” on April 1. Washoe is lucky in how spring break fell, giving them extra time to plan, but the “we’re planning our plans” press releases are not as reassuring as they should be.

I know that my kids’ school is extraordinarily well-led and well-staffed. But I also know that there are thousands of other bright, motivated, and creative teachers and principals throughout the state who, given both the freedom and flexibility to implement solutions for their own students, wouldn’t be waiting weeks to get off the ground. It is bureaucracy that holds us up in these times when we need it the least, and when all this is over, we should understand that there is no reason to keep those obstacles in place. (It’s also a good time to observe how much leadership potential lies latent in our own local schools, and what a waste of time and money national headhunting firms are when we need to hire a new superintendent.) 

These important lessons aren’t limited to schools, either. At all levels, government is streamlining application processes, flexing deadlines, and coming up with ways to accommodate the hundreds of unique situations citizens find themselves in. I have personally observed a few of these bureaucrats clinging to their petty power and making life more difficult than it needs to be during a challenging time, but they are in a small minority. But again, when all this was over, we should remember all the regulations we learned we didn’t need after all, and keep them in the dustbins. 

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This is not to say there is no place for more muscular, swift action which only a chief executive can take. State and local governments have long been understood to have broad powers with respect to quarantines and isolations to prevent disease, although those actions are subject to challenge, must be factually justified, and cannot be arbitrary or capricious. The federal government has other, more limited but still significant powers to act. 

But such power must be exercised correctly and wisely. I personally like Reno Mayor Hillary Schieve, but her terribly botched attempt to issue an order closing non-essential businesses in the city was a perfect example of how not to do things. Governor Sisolak’s efforts earlier this week was better, but still left much to be desired in terms of clarity and enforceability. And I am far less comfortable with his Friday “order” to shut businesses down.

Any such sweeping pronouncements or orders must, first and foremost, be specific in their instructions and firmly grounded in legal authority. For example, no one questions the governor’s legal right to shutter casinos, owing to the broad powers our statutes give to regulate gaming. But if you “order” any other business to close, or to conduct themselves in a certain way, you had damned well better be able to back that order up with a specific authorization in the law, which was not done initially. Failure to do so undercuts people’s faith in the legitimacy of that action, and by extension, other more legitimate actions. In a crisis, cutting the legs out from underneath your credibility makes it pretty tough to lead.

You also must communicate effectively. On Friday, the governor held a “I really mean it!” finger wagging press conference – politicians would do well to remember they aren’t our parents, and shouldn’t try to act like it. The press release came out before the accompanying executive order was available, which led to a great deal of confusion.

As an example, it is literally my job to know when someone has broken the law and when they haven’t. But based on the governor’s legally and factually unclear announcements, I had no idea if my law office would be “essential” for purposes of potential criminal penalties. I have clients who are literally in cages, whose cases are settled and will get out just as soon as I make a court appearance already deemed “essential” by various courts’ administrative orders. I think that makes me essential, but what if some overeager police office thinks otherwise? What about this very publication? What about the other lawyers in my office drafting wills in a time where risk of death is higher than normal? What about the thousands of other businesses the governor is otherwise unfamiliar with, which don’t fit tidily in his definitional boxes?

To make it worse, the State Bar sent out a poorly worded “guidance” email an hour or so later, suggesting that law offices did, in fact, need to shutter as a result of the governor’s order (this guidance also seemed at odds with various court administrative orders, too). A few hours after that, on a Friday evening, no less, emergency regulations were finally promulgated confirming that my firm and a multitude of other businesses (including the press) could remain open, but we also know additional regs could drop at any time. 

And we have been inundated with calls from all sorts of other businesses for whom those regulations remain unclear who want to do the right thing, but also want to stay in business if they can. Forcing people into tremendous uncertainty about criminal penalties when they are already hugely anxious about a pandemic is a major blunder that will undercut the government’s credibility. It smelled of panic and chaos when we need to know state leaders are calm and on top of it. Next time, release the laws, and then hold a presser to explain the laws.

Regardless of legal authority, any order of this type must have broad buy-in. Personally, I am convinced of the importance of cloistering ourselves as much as reasonably possible. But the more extraordinary and robust the government response, the more clear and convincing the evidence of the necessity of that action must be. There are not enough cops in Nevada to go door-to-door checking to make sure commerce has been shut down, and knowing as many law enforcement officers as I do, I can tell you a good hunk of them wouldn’t comply with orders to put on the jackboots unless the necessity was beyond any doubt. 

And this is a good thing. There is only so long Americans will tolerate such a heavy hand, and such orders must have, if not a definitive end date, at least a light at the end of the tunnel and clear benchmarks for when things go back to normal. That is missing a bit from our current pronouncements, I think, and without a well-publicized endgame, people will start to increasingly ignore sound isolation advice – Las Vegas Mayor Goodman will remain an outlier for only so long. And it is what would make a state-wide “shelter in place” (an inappropriate and inflammatory way to describe asking people to stay home, in my view) along the lines of California’s a bridge too far for Nevada. 

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In general, I believe this plague has revealed that we are still Americans, willing to sacrifice to vanquish a collective threat while still insisting our individual liberties be respected. The wisdom of decentralized government and separation of powers is more evident than ever. We are cooperating with civil authority’s recommendations and temporary laws, while still appropriately pushing back and reasonably questioning government’s actions. The press – both in the traditional sense and in individuals’ rights to gripe on social media – remains in its crucial independent watchdog role* (there is no better example than the pushback against UNR after they tried to kick students out of their dorms early without refunds). 

Things could change, which is why I have a safe full of guns and a pantry full of canned produce from last year’s garden (and why you should, too). But I don’t think so. The silver linings and lessons to come out of this better than ever are everywhere, and I am confident that our free spirits as Americans and Nevadans will remain intact.

*To be great, the press must be free – but great journalism isn’t. I believe most government officials, even ones I disagree with, want to do the right thing and don’t have plans to intentionally abuse their power. But in a crisis, some of them inevitably will. Now more than ever, organizations like The Nevada Independent count on an engaged populace who understand that timely, accurate, and objective reporting is life and liberty saving. I am so proud to be part of this publication and so grateful as a Nevadan that we have it. From my little corner of the Indy, I sincerely thank you in advance for reading, sharing, and lending your financial support where you can.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at orrin@orrinjohnson.com.