Flawed messenger comes bearing “gifts”

In the land of the blind, the one-eyed man is king.

— Desiderius Erasmus

Gov. John Vellardita has a plan.

He wants to scoop up $1.4 billion for education by raising the sales tax and the gaming tax to about 10 percent each. Those are increases of nearly 60 percent and 50 percent, respectively, over the current rates.

Both of these ideas, filed in separate initiative petitions last week, are vulnerable to all kinds of reasonable criticism. Beyond the pandering populism (tax the rich guys on the Strip) and regressive taxation (sales taxes hit the poor disproportionately), the notion that the ballot is the proper crucible to make tax policy is highly questionable.

But you know what Vellardita has that no one else in Carson City does? He has… a plan.

Yes, Vellardita is one of the most disliked people in the state because of his thuggish behavior. Many people despise him because he elides facts, struts like a bully, uses confrontation as the tool of first resort.

But while people may loathe the teachers union boss who is acting like the de facto governor, he realizes that politics, like nature, abhors something else. And so, chief executive-like, he steps into the vacuum, speaking loudly and carrying a big stick, one he brandishes to beat everyone about the head: Gaming, lawmakers, progressives, conservatives, even the guy who lives on Mountain Street in the capital, who loves the Knights and Raiders but who has not wanted to play Vellardita’s game.

At least not yet.

Vellardita, who is popular with the only group that matters to him (his members), is simply taking advantage of a culture of cancerous neglect and broken promises by the elected and community elite for decades. It’s more than his attempt to appeal to the Lowest Common Denominator and ensure his job security; he is presenting ideas, albeit highly controversial, because no one else is speaking and everyone has to listen.

Vellardita, who is no dummy, probably knows that going to the ballot is a terrible idea. But with a serially dithering Carson City government, which is better with Band-Aids than major surgery, the chief probably speaks for many who, to paraphrase Churchill, think going to the ballot is the worst form of government, except for all the others that have been tried (or not even tried) to fund education.

The initiative process is tailor-made for Vellardita. If he can qualify the petitions – and neither is a sure thing – he can spend the entire 2021 session holding them like a Damoclean sword over lawmakers to take action or else it goes to the ballot in 2022.

I’m sure he is telling them this is a big favor, taking a poll of their constituents to give them political cover in the Legislature a year from now. My guess is they don’t see it that way — but, of course, we don’t know because of the capital laryngitis epidemic (or worse, gobbledygook) since these petitions were filed.

And what if the petitions fail? What message does THAT send to the Gang of 63 when it comes to funding education in 2021?

For now, every lawmaker and legislative candidate should have to take a position on the initiative petitions, which could be a salutary effect. Unless, of course, they are allowed to get away with saying something like: “I support education. But I need to take a closer look at these plans and see if they qualify first.”

Oh, really? But will you vote for it, Sen X or Assemblyman Y or Candidate Z?

I’m sure the Republicans will see an opportunity here, too, to bludgeon Democratic candidates — another reason for so many to say thank you to Gov. Vellardita. Then again, he may end up being The Great Uniter. After all, how many plans could bring together the gaming industry and the Progressive Leadership Alliance of Nevada?

This is no way to run a state, but this is the natural consequence of a capital failure for far too long. I have written about this many times, including last year when Vellardita again stepped into the breach and made a big deal out of a little deal and threatened to oversee a teachers strike.

Everyone was cowed. He won.

And now, with the session long over and with the Carson City crowd bragging about great strides in education funding that are not so great and a new formula that is really just a study, Vellardita once again capitalized on the lack of leadership. What does he have to lose? Not his job, which pays him five times more than his members, who make up a relatively small percentage of teachers.

The policy in the two initiatives is eminently assailable.

The gamers are not as rich as they once were (MGM is shedding assets and making cuts to reduce debt and learn to speak Japanese) or not as invested here as they once were (Las Vegas Sands makes most of its money in places not named Las Vegas).

Sure, the gamers CAN pay more. But the focus on the casinos, while popular, is not a long-term solution. And that money does not go to education; it goes into the general fund.

As for the sales tax, or the Local School Support Tax (LSST), that revenue source may make more sense. But we already have one of the higher sales taxes in the country, so some will see it as the Least Smart School Tax.

Indeed, progressives who want more money in education have long argued against the sales tax’s regressivity, preferring to tax mining, which is another can of worms since those guys wrote the Constitution and protected themselves.

There are so many other, broader sources of revenue — property taxes and The Commerce Tax, if the floor was moved downward, come to mind. But they are politically dicey, too, especially property taxes, which are low here but people don’t necessarily think so.

And this all begs the question because so many don’t buy the premise that more money is needed — money for the current system of public education, that is. And Vellardita is asking for a Battle at the Ballot, with those opposing him presenting alternatives (merit pay is very, very popular) and rendering state lawmakers irrelevant.

With their sessions of inaction or half-measures, the Gang of 63 may have been asking for that punishment. But while it may be satisfying to some, it’s like any high; you will come down and it won’t feel so good.

John Vellardita is not the issue here. He is just the latest loudest voice in a room full of elected officials and special interests whose insularity has brought this state to its low ranking in virtually every education study.

There’s really only one person, liberated from the hyperbole of campaigns (for now), who can frame the discussion, bring people and groups together and set the agenda. There’s only one person who has the popularity and bully pulpit to make the case, to do whatever it takes to persuade the public that Carson City will act, once and for all, in 2021. There’s only one person who has a bigger stick than Gov. John Vellardita and who can effectively mute him and not worry that he will suffer the same fate as the coach of his favorite hockey team.

It’s time Steve Sisolak took back his title.

Jon Ralston is the founder and editor of The Nevada Independent. He has been covering politics and government in Nevada for more than 30 years.

The internet broke my brain

Digital internet and security graphic

It was a good run while it lasted. I lived nearly four decades without the internet breaking my brain. 

Then this week happened.

Have you ever tried to stare into a bright flashlight and make out a shape in the distance behind it? Have you ever tried to look for something in a dark bedroom after using a brightly lit bathroom? That’s what it felt like trying to make heads or tails out of this week’s news cycle. 

Let’s start at the beginning.

Bernie Sanders is sexist now because he said he didn’t say that women can’t win the presidency in a country that has yet to successfully elect a woman president even though Elizabeth Warren claimed he did. Also, he’s racist and classist, because his campaign may or may not have used a walk script that claimed that Warren’s supporters are more likely to be highly educated and affluent than his supporters (that’s true, by the way) and that implicitly erases the lived experience of poorer, less educated Warren supporters of color. 

On a related note, now I know that misogynoir is a thing. 

Well, more accurately, I now know that the term is a thing. The idea that black women have historically received a particularly raw deal in American society, of course, long predates all of our lifetimes. In my admittedly weak defense, my biggest act of teenage rebellion involved getting baptized as a Latter-Day Saint, so it’s actually almost personally impressive that it took less than a decade between black feminist graduate students coining the term and my learning of it. 

Having said that, deflecting all criticism of a politician, real or perceived, as social injustice is a fractally bad idea, in that it’s a bad idea no matter how closely or remotely you look at it. Elizabeth Warren, like Bernie Sanders, is a politician. Politicians lie. Elizabeth Warren in particular has been caught — let’s be charitable and call it embellishing the truth — more than once. Depending on who you ask, she might have done it again. 

To be clear, that’s not unusual nor even necessarily malicious behavior from a politician or anyone else. Memories drift and change over time. We’re not fleshy data recorders transcribing reality in our heads one neuron at a time. It’s also absolutely necessary to point out when we’re holding a woman accountable and not holding men accountable for behavior that is perfectly human, regardless of gender. However, the purpose behind doing so must be to hold all politicians accountable for their mis-remembrances, their exaggerations, and their lies, not to remove accountability from politicians merely because they’re women. 

People misremember. People exaggerate. People lie. Which brings me to Tuesday. 

While CNN was asking Sanders and Warren about their latest Twitter feud and Tom Steyer was saying hi, news came out that Rudy Giuliani, in his official capacity as President Trump’s personal lawyer (note: this is not an official capacity), recruited someone to spy on Marie Yovanovitch, our ambassador to Ukraine. Much to everyone’s surprise, perhaps even including their own, Trump’s associates were actually effective at what they were trying to do and successfully tracked her movements closely enough to create a potential security risk. 

In retrospect, President Trump is probably wishing Giuliani just tried to organize a burglary of the national Democratic Party headquarters instead. 

This, somehow, brings me to Wednesday, but only because time moves linearly and independently of human agency. 

On Wednesday, the Clark County Education Association dropped the second of two petitions designed to strongly encourage the Legislature to fund education, in much the same way “Little Boy” and “Fat Man” strongly encouraged the Japanese to hurry up and issue articles of surrender already. Trouble was, while the atomic bombs were dropped at a time in the war where everyone, even in Japan, knew it was over, the CCEA dropped their gaming and sales tax hike referenda before candidates even get to file for office, much less finish their campaigns. 

Which brings me to Thursday.

Thursday was the first day we got to see the year’s first campaign finance reports. We learned that, as has been the case for over a decade now, the “official” GOP chapter in Nevada remains a vestigial organ that exists solely to launder money and influence to people that deserve neither. We also learned that, despite that handicap, Republicans do surprisingly well at decentralized self-organization when the occasion calls for it, at least when the occasion calls for fundraising. Considering how Republicans in Nevada have been routing around the “official” state Republican Party since at least the 2012 election, I’m not surprised they’re getting halfway competent at it – they certainly have had enough practice.

Which brings me to Friday, at which point I just gave up entirely.

Are the Democrats going to wokescold their way out of the White House against the least popular president in decades? Are Republicans in the Senate actually going to hold President Trump accountable for literally anything, ever, just once, if only to see what it feels like? Did the CCEA make a mistake by dropping two potential tax hikes into a pivotal election on an electorate that gets angry over a $30 per year fee hike, to say nothing of increasing sales taxes by another 1.5 percent? Will Republicans in Nevada be able to spackle over their persistent organizational deficiencies with campaign cash? Does Betteridge’s Law of Headlines apply to sentences in a concluding paragraph?

I don’t know. I feel like at least one of those questions could be answered in the affirmative. Maybe if I refresh Twitter one more time, I’ll find an answer…

David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and an IT professional. You can follow him on Twitter @DavidColborne or email him at david.colborne@lpnevada.org.

Mexican methamphetamine pipeline leads straight to the streets of Las Vegas

A view of Las Vegas Boulevard in the evening

Las Vegas resident Israel Tellez-Nava is no kingpin. He says he normally works as a landscaper.

But on the evening of Nov. 21 outside Kingman, Arizona, he found himself behind the wheel of his silver VW van weaving through traffic on Interstate 40 and chauffeuring 43 pounds of methamphetamine from a pickup point outside Williams 115 miles east on the busy highway. That’s where Tellez-Nava’s excessive speed and erratic driving caught the attention of the Mohave County Sheriff’s Office deputies attached to the MAGNET regional narcotics task force that patrols one of the nation’s busiest drug pipelines.

The traffic stop was anything but routine. The wide-eyed 35-year-old was so nervous he couldn’t keep his feet still or put his hands in his pockets. He clearly hadn’t expected to see the officers’ flashing lights in his rear-view mirror. When he was asked for his license and registration, according to the officers’ incident report, his hands trembled as he complied. He admitted he spoke little English and was about to be let off with a warning when an officer looking through a side window and noticed a partially opened box filled with small bundles wrapped in green cellophane. In all, three such boxes were found. Tellez-Nava was taken into custody, and the Arizona county’s busy drug interdiction team took into evidence 43 pounds (20 kilos) of methamphetamine with an estimated street value exceeding $2 million. Tellez-Nava was arrested and charged with possession and transporting dangerous drugs for sale.

It was a sizable bust, one soon noted by authorities in the press. But considering the size of the pipeline, the scale of the cartel-backed manufacturing of meth, and the voracious appetite of the American market, it amounted to grains of sand on an endless beach.

With the assistance of a Drug Enforcement Administration special agent and translator, details emerged that surely sounded familiar to law enforcement. Tellez-Nava was told he’d be paid $5,000 to closely follow a black Dodge Ram pickup driven by “El Cholo,” slang for “gangster,” from Williams to Las Vegas. Although he nervously contradicted his story multiple times, according to the report, the landscaper eventually admitted he “knew it was drugs in the _____ but did not know how much drugs.”

It was a lot of drugs. And this isn’t your outlaw biker uncle’s batch of stepped-on crank. If it’s like other loads seized in recent years, it’s manufactured in Mexico. Its potency is high, its purity higher still.

Even the experts can only estimate how many tons of methamphetamine enters the country through the Southwest border. But the Drug Enforcement Administration has a method of measuring the impact law enforcement efforts at slowing the flow have on the availability and price of the drug. From January 2012 to March 2017 the price of meth on the street declined 13.6 percent as competing Mexican cartels flooded an ever-expanding market, according to the DEA. While the misery wrought by prescription opioid abuse and the damage done by fentanyl made most of the headlines, meth was increasing its market share.

Although the Sinaloa cartel is probably the best known of the Mexican meth manufacturers and traffickers these days, thanks to the notoriety of its now-imprisoned boss Joaquin “El Chapo” Guzman Loera, the DEA reports the intensity among cartel competitors continues to increase. A majority of the country’s transnational criminal organizations (TCO) now operate factories with the American market in mind. Increased availability has driven down price.

That potency and proliferation have contributed to a nearly 400 percent rise in psycho-stimulant poisoning deaths, up to more than 7,500 in 2016 with 90 percent linked to meth intoxication, according to the DEA.

The trend continued in 2019. Phoenix DEA official Erica Curry tells me, “It’s coming across in larger quantities than we have ever seen.”

The agency’s meth seizure numbers by Arizona law enforcement rocketed from 11,887 pounds in 2017 to 26,578 pounds in 2018, and 31,511 last year. And the price of product per pound actually declined.

Las Vegas is far from alone as a market. Big cities and small towns are part of the American meth epidemic. But the nature of the beast has changed. Its manufacture and distribution is no longer the purview of outlaw motorcycle gangs and mom-and-pop “one-pot” cookers. Cartels import methamphetamine precursor chemicals by the container load from overseas to supply clandestine factories that annually churn out tons of product. From there, it finds its way across the border through bustling ports of entry and across the desert. Occasionally, a Las Vegas landscaper plays courier and gets caught.

This isn’t exactly breaking news, but it’s something to think about the next time you hear officials discuss the ongoing homeless issue in Southern Nevada. A sad percentage of those suffering most, including those least likely to seek and acceptance assistance even when it’s available, are buried by their addiction.

And meth proliferates here. Whether waiting for their next connection on the edge of a storm drainage blocks from UNLV, or frequenting the low-rent motels downtown and on the Boulder Highway, the signs of substance abuse among society’s poorest citizens isn’t difficult to find. And they’re worked relentlessly as easy customers for drug dealers.

On the Las Vegas streets, easy access to meth is a cruel card dealt to people already holding a losing hand.

 John L. Smith is an author and longtime columnist. He was born in Henderson and his family’s Nevada roots go back to 1881. His stories have appeared in Time, Readers Digest, The Daily Beast, Reuters, Ruralite and Desert Companion, among others. He also offers weekly commentary on Nevada Public Radio station KNPR. His newest book—a biography of iconic Nevada civil rights and political leader, Joe Neal—”Westside Slugger: Joe Neal’s Lifelong Fight for Social Justice” is published by University of Nevada Press and is available at Amazon.com. Contact him at jlnevadasmith@gmail.com. On Twitter: @jlnevadasmith

Love Ranch is right to demand other brothel audits from state

Nevada state seal

Some of the most important legal cases protecting your rights – from free speech protections to the limitation on abusive police practices – come from rather unsavory litigants. Think of Larry Flynt and the Illinois Nazis, who along with the ACLU (back when they were a legitimate civil liberties organization instead of just another partisan political advocacy group) ensured that everyone’s First Amendment rights were honored. Neither Ernesto Miranda nor Clarence Gideon nor John Terry were model citizens, but their cases helped make our criminal justice system more just for us all.

And while I am not normally in the habit of cheering on brothels, I was very happy to read this week about their pushback against government bureaucrat attempts to substantially alter their business models. 

The dispute comes from the Nevada Department of Employment’s Employee Security Division (ESD) determination that prostitutes working at brothels should be classified as employees rather than as independent contractors. Millions of dollars are at stake for either the brothels or state coffers. But in the long term, every business in the state should fear the ESD’s actions.  To make things worse, this is an abrupt change, and counter to previous years of treatment by government regulators.

Many well-meaning folks on the leftward side of our political debates believe that the only reason any worker would be classified as an “independent contractor” is to maliciously screw those workers out of various benefits. Sometimes that’s even true, and I have argued in this space that the relationship between brothel owners and prostitutes is not exactly an equitable one. But the solutions my friends on the left propose often have terrible unintended consequences.

For example, California passed an already infamous bill which reclassified tens of thousands of workers as employees, ostensibly to bring “justice” to so-called gig-workers who don’t get benefits from the organizations they work for. The problem is that employees are far more expensive for those companies, and in many cases, the workers would rather be independent. The options are not simply, “pay people more or less depending on their classification,” but “do I hire someone at all?”  

Truckers in California have already successfully (for now) sued the state to prevent the law from applying to them, citing significant hardships industry-wide. Freelance journalists and photographers have not been so lucky in their own lawsuits, doing great harm to the free flow of information (and the laid-off freelancers themselves). In the end, the only winners will be employment law attorneys who will rake in the cash that small businesses could otherwise have spent expanding their companies and hiring more people. 

But hand it to California – when they do stupid things, at least they actually pass a law via their elected representatives in the Legislature. The designation of prostitutes as employees on whom the brothels must pay unemployment insurance is new (and contrary to previous decades of treatment by those same bureaucrats). The ESD is accountable to no voter, and yet they have the power – through their decision-making – to upend or even destroy legal businesses which have been operating in a certain manner for years. 

The current litigation between the brothels and the government involves the Love Ranch demanding that ESD audits of all other brothels be turned over as the public records they are, with the government trying to keep that information secret because of the personal information it contains. But the brothel’s request is a fair one – we are all guaranteed equal protection (which also means equal application) under the law. If a government agency is allowed to keep their treatment of various citizens secret, how can we know or trust that this fundamental guarantee is being honored?  

There is a reason criminal trials and other proceedings must be open to the public. The same logic should be applied any time the government is seeking to take money from a citizen by force of law. The Love Ranch is right to force the issue.

Ultimately, the best way to protect employees of any kind is to set them free. The problem with the relationship between brothels and their prostitutes isn’t the unemployment tax structure, it’s that other heavy-handed government regulation has given brothels in every county functional monopolies, which means their workers don’t have anywhere else to go if they don’t like their working conditions. 

This situation isn’t limited to brothels. How much better off would our talented teachers be if they had more school options to choose from when they don’t like how their current principal or superintendent treats them?  How much better off are we that Uber and Lyft have broken the taxi cartels (a situation California’s law is shamefully trying to reverse)? How much better off would we be if the cannabis industry wasn’t so aggressively regulated that cheating and corruption would be inevitable? 

And most importantly, if the ESD can simply announce they will radically alter the long-standing relationship between workers and businesses, when and how will other businesses be affected?  What other bureaucratic agencies will empower themselves to make substantial policy changes out of the blue? Plenty of damage can be done by well-meaning bureaucrats with too much power. What happens when one of those bureaucrats has an axe to grind, or maybe isn’t so well-meaning?  

Whatever my reservations about legal prostitution, I am grateful for the sake of all private businesses in Nevada that the Love Ranch is pushing back hard against the government. If they are successful – and they should be – it will be a victory for economic freedom everywhere. In the meantime, let’s hope our lawmakers step in to rein in the bureaucrats, and allow our state economy to reach its full potential. 

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.

Not all solar power is created equal

The Crescent Dunes solar plant, the bright curiosity that gazed upon every passing motorist driving north of Tonopah, has become Nevada’s latest taxpayer-subsidized monument to fail.

Thinking like a government, it initially penciled out. Nevada has as much of an abundance of sunshine as it has a scarcity of water and for the same reason. Tonopah, meanwhile, has needed all the help it can get from the government to keep the lights on since its initial gold and silver deposits exhausted themselves before World War II and has always been eager to receive it. Solar thermal power, the technology used by Crescent Dunes instead of the more familiar photovoltaic technology used on rooftops and in old calculators, can, at least at residential scale, be much more efficient than photovoltaic power generation. 

Additionally, utility-scale projects are bureaucratically legible. It’s a lot easier to monitor one or two large power plants than it is to monitor several small ones. Consequently, if you think like a government, it saves time and money in the long run to spend hundreds of millions of dollars checking in on one large experimental power station instead of hundreds of smaller experimental power stations.

So that’s what our government did. Twice.

The trouble with solar thermal power is that, while it’s very efficient at converting solar heat into water heat in a house or an RV, it’s much less efficient at converting solar heat into actual electricity that someone might actually use to, say, write a snarky op-ed against building taxpayer-funded solar thermal power plants. Unlike photovoltaic technology, which is designed to convert sunlight directly into electrical energy, solar thermal technology has to collect heat from the sun and convert that heat into electricity. 

That’s trickier than it sounds.

To explain why, consider a tea kettle. In order for it to whistle, the water within it has to be brought to a boil. This takes time, especially if someone is watching it. That time it’s taking to come to a boil is time it’s not taking to let half of your neighborhood know that you have a kettle full of boiling water and you’re currently in the bathroom tending to more important business. Until that time has passed, you might be able to use the bathroom in peace but you won’t be able to pour yourself a satisfyingly warm cup of tea. Similarly, time spent waiting for water to come to a boil in a power plant is time not spent actually generating electricity. This is just as true for solar thermal power as it is for coal, natural gas, nuclear, geothermal or any other novel method of boiling water we come up with in the future. 

Now imagine if you left that tea kettle outside during winter and the only way you could heat it up was with mirrors. 

There are a couple of ways to make this problem less intractable. The first way is to boil something other than water. Water, after all, boils at 212° Fahrenheit; salt, on the other hand, boils at a temperature well above that, so it absorbs more heat during the day and retains more heat at night. The second way is by keeping whatever is boiling warm using something else. This leads to the unintentionally hilarious idea of natural gas-powered solar power plants contributing greenhouse gases. 

Unfortunately, we have a lot more practice keeping boiling water under control than we do keeping melting salt under control and that’s when we’re working with a single source of heat. Solar thermal heating, however, uses thousands of mirrors, each an independent redirector of the sun’s heat, each needing to move and coordinate to heat the same point at the same time. 

Sometimes the mirrors miss.

Between Crescent Dunes and the Ivanpah solar power facility in the Mojave Desert, the Department of Energy loaned over $2 billion, most of which it’ll never get back. In return, Crescent Dunes never generated more than a quarter of the power it was designed to deliver. Ivanpah, meanwhile, delivers 40 percent of the power it was designed to deliver and burns four times as much natural gas as it was originally supposed to while doing so.

Meanwhile, we’ve been buying inexpensive solar-powered calculators for decades.

Why wouldn’t we? Even with the laughably inefficient solar cells available during the 1980s, small, inexpensive solar panels saved customers from having to buy batteries and saved manufacturers from having to include both the space and circuitry necessary to store batteries and convert their energy into math.

As photovoltaic technology developed, people found more and more useful applications for it. The most useful applications thus far mirrored those old solar powered calculators – photovoltaic technology is fantastic at providing small, easily scalable amounts of portable power, especially when paired with rechargeable batteries. This makes it a perfect technology to deploy for road signs, motorhomes and RVs, and remote locations that don’t justify running a power line to the grid. It’s also a handy way to provide backup power for businesses and institutions that wish to minimize downtime and wish to fire up their backup generator as seldom as possible.

Photovoltaic technology has also enabled those with a more individualistic bent to achieve a bit more self-sufficiency than they might otherwise have by powering their homes and contributing their surplus power to the grid. Economically speaking, this makes about as much sense as growing vegetables in your yard (namely, not much if you value your time at all), but there’s nothing wrong with having hobbies or purchasing individual energy independence as a luxury good. 

Photovoltaic technology is also scalable. If you need more power, you put up more solar panels. If you need less power, you take them down. Good luck doing that with a large solar thermal plant. 

Having said all that, even though photovoltaic technology is far more promising than solar thermal technology, it’s not a panacea. Solar panels are semiconductors, and like all semiconductors, they’re a mess to produce or dispose of. This, of course, isn’t unique to solar panels; you can’t exactly throw a coal or natural gas fired plant into your kitchen trash and haul it to the dump, either. Though they’re far more efficient than they used to be, they’ve historically also required considerable government subsidies – Chinese government subsidies, to be more specific – to be directly competitive with more traditional modes of power generation. 

As for rooftop solar, it’s hard to tell whether it’s economical or not as long as we insist on maintaining a regional monopoly on power distribution with government-mandated rates. That said, it’s also hard to deny that our power grid was designed around delivering power to homes, not receiving power from them. Additionally, the vision of ubiquitous rooftop solar bumps gently against the vision of denser, more walkable cities. The Reno City Council already had to swim against the tide a bit by overturning a restrictive shade ordinance that had no business being applied in a downtown area. It did the right thing by doing so, but the more money there is to be made or saved by putting a solar panel on a neighbor’s roof, the more likely each neighbor will view sunlight as a property right. This may make approving taller construction more politically complicated than it already is. 

Thankfully, there are easy enough ways to address most of these issues as long as governments don’t treat solar power as if it’s functionally identical to fossil fuels or nuclear power and both regulate and subsidize it accordingly. The sun’s rays are ubiquitous and transport freely. Consequently, we don’t have to put all of our solar production in large, heavily capitalized, centralized locations as we have to with coal, natural gas, or nuclear power, all of which require complicated logistics to ship and store fuel. Instead, we can safely rely on individual choice and voluntary action, not government coercion, to determine where best to site solar panels, how many solar panels are necessary and which solar technologies to use depending upon the desired application. 

If we leave solar power up to the government, our deserts will be littered with fossil fueled mirrors, molten salt, and billions of dollars worth of debt. If we leave solar power up to individuals, our cities will generate power from our rooftops. 

Which sounds easier to clean up to you?

David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and an IT professional. You can follow him on Twitter @DavidColborne or email him at david.colborne@lpnevada.org

In asking neutrals to take sides, everyone loses

Photo of the front of the Nevada Legislature building.

I hate to admit it. I hope I don’t get put on double secret probation by the State Bar by saying this. Don’t tell anyone I said it. But it’s true.

Lawyers make mistakes. We get things wrong sometimes. We’re just as subject to all the flaws of being human as anyone else.

This, of course, is why in any sort of dispute, every party to the dispute should have his or her own lawyer. A single lawyer handling even an amicable, non-contested divorce can be dicey. We certainly want defense attorneys to stand against prosecutors to ensure the rules are followed, and if there is more than one defendant, everyone gets a lawyer lest fingers start being pointed. Having your own lawyer review a contract before you sign it can save a lot of litigation down the road.

It’s more expensive to do it this way, and more time consuming – at least in the short term. But robust debate between transparently partisan advocates is an excellent way to reach correct conclusions and outcomes, ensuring that the concerns of all sides are at least heard. It’s not perfect, but it beats the alternative.

But it does require that those advocates take sides. And once a lawyer takes one side, he or she can’t also take another one. And so if you’re a lawyer with an obligation to multiple people within a single organization, you can’t represent ANY side where members are pitted against each other. Advocates who try to serve two masters will inevitably betray one of them – and very likely both.

This concept is nothing new, and the obvious logic behind these principles is why, last November, Judge James Russell told lawyers from the Legislative Counsel Bureau that they couldn’t represent individual Democratic state senators in a lawsuit over the constitutionality of a late-session tax increase.

~~~

LCB lawyers do an incredibly difficult job under the direction of 63 bosses – bosses who are always at odds with one another. When a lawmaker says, “I want a law that does This Thing,” the LCB lawyer has to figure out how to actually draft a statute which would, in fact, do This Thing instead of inadvertently doing That Thing. They are also called upon to give their opinions on whether or not This Thing or That Thing are even legal to do. Towards the end of any legislative session, LCB lawyers are somehow working upwards of 30 hours a day or more, hoping that the sleep they got last March will be enough to sustain them.

What has always been remarkable to me about these folks is their usually successful efforts to remain politically neutral. This may surprise some people, but lawyers tend to be a) opinionated, and b) not afraid to share our opinion. Lawyers use the mechanisms of government to solve their clients’ problems, and we therefore naturally have strong feelings on the workings (or not) of those mechanics. LCB lawyers have to keep their own opinions to themselves, and help lawmakers they may disagree with draft legislation they may not like. 

None of us are ever truly, one hundred percent neutral or objective about anything, even when we’re trying to be. But as an institution, LCB tries, and usually succeeds. LCB’s obligation must be to the work they do for the institution, and not in defending policy choices. 

But once they become partisans, they will stay partisans. That sounds good when you’re the legislative partisans in power, and think you’ve gerrymandered your way to permanent majorities, but balances of political power always inevitably shift, and politicians should never take advantages for themselves they don’t want their adversaries using in the future.

In order to prevent this, the legislators themselves must be on constant alert to avoid dragging LCB over to one partisan side or another. Unfortunately, this is exactly what happened last year, forcing the judge to step in.

~~~

Last legislative session, Democrats wanted more money to spend than they had in the budget – public health epidemics like vaping don’t solve themselves, you know. But increases in revenue require a 2/3 vote, and the Dems were one vote shy in the Senate to raise taxes. As a workaround, they wrote a bill to eliminate a scheduled sunset, and then argued that because it wasn’t “new,” it wasn’t an increase. This argument is absurd – previous lawmakers had approved that revenue stream for a determinate period of time and no longer, and extending that stream means taxes were higher after their vote than they would have been without it. Nevertheless, Democratic legislators asked LCB for an opinion indicating whether or not extending scheduled tax sunsets required a 2/3rds vote, and LCB issued the opinion desired by the majority.

This, I believe, was a grave error on the part of both LCB and legislative Democrats, regardless of how you feel about the merits of their creative constitutional scholarship. It forced LCB – an organization known for its non-partisanship – into a partisan battle, where their opinion would be used as a cudgel. Republicans had already threatened to litigate the issue of the bill passed.

Democrats continue to argue that LCB should be allowed to defend the non-2/3rds vote in court, because they would be representing “the will of the legislature,” and therefore still remaining loyal to the institution. 

But particularly when it comes to constitutional issues, this “will of the legislature” stuff simply does not comport with our republican (small “r”) form of government. This is where the distinction between a republic and a democracy is no longer pedantic, but is crucial to the protection of our rights. 

For example, say legislators overwhelmingly passed a Sedition Act which outlawed criticism of the governor. Obviously, this would be unconstitutional, and a healthy LCB would hopefully advise lawmakers that it was so. But if LCB was bound to defend the acts of a tyrannical majority passing unlawful legislation because that was the “will of the legislature,” how could anyone ever trust their advice again?  And what remedy would the minority legislators who recognized the illegality of such a bill have to attack the wrongful acts of their colleagues?

Democrats are complaining that LCB’s culture of neutrality is at risk because of the Republican challenge to their dubiously lawful budget bill, and more specifically, to GOP objections to LCB litigating on behalf of specific legislators. But that’s exactly backwards. LCB was damaged the moment it was asked to write a very partisan legal opinion that, no matter how substantively defensible it might be, would inevitably be seen as partisan hackery instead of sound analysis. The Democrats want to present LCB as some unassailable group of gurus whose legal conclusions might as well be written on stone tablets. But as good as those lawyers are, they’re still mere human beings.

By successfully fighting to keep LCB on the sidelines of this fight, Senate Republicans are healing this new wound to LCB’s culture and future reputation. They were right to fight the unlawful tax hike, and they are right to fight to keep LCB neutral. 

Partisan legislative battles, particularly over matters of constitutional concern, will end up in court from time to time. There is nothing wrong with this – courts exist in part to resolve such controversies, and keep the boundaries of government (and government agent) power as clearly defined as possible. But LCB should never again be put in the position of having to take one side or another in such battles. The long term credibility of the legislative process itself – and the staff our legislators of all parties need to do their work – depends entirely upon it.

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.

Goodman keeps the homeless hand-wringing to a minimum during State of the City

Four Vegas council members

There may have been homeless advocates protesting outside City Hall Thursday evening and street campers just blocks away, but Las Vegas Mayor Carolyn Goodman didn’t miss a beat during her State of the City address in the council chambers with its “Back to the Future” theme.

Like Las Vegas mayors before her — especially the one she lives with — she’s a glass more-than-half-full kind of person. Goodman didn’t actually say the words “Let them eat cake,” during the brief aside she devoted to the city’s ongoing homeless crisis. But, well, mostly she let them eat cake.

Did anyone inside the building notice?

Were the people watching on the city’s website, as I was, filled with a righteous indignation?

I’m guessing the answer is, “Not many.”

For her ninth address, the city’s chief promoter of redevelopment promised some “fun surprises.” By that I think she was talking about that “Back to the Future” theme, which included a video skit accompanied by former Mayor Oscar Goodman and featured a ride through time in a DeLorean. After giving a heartening reflection about her struggle with cancer, she unpacked a remarkable amount of good news about the progress being made in a corridor that was down-at-the-heels at the start of the new century. Make no mistake: Although it sometimes goes on like a visit to a dentist office, in Las Vegas the State of the City address is a celebration, an advertisement for the great American boomtown. Every speech in one way or another is a variation on a “Back to the Future” theme.

Homelessness? It’s a real downer. And nobody at a party likes a downer.

There’s a lot to celebrate at the city these days. Economic growth has returned to the valley. Inside the city limits, and especially the downtown redevelopment zone, the dizzying expansion includes a new $56 million municipal courthouse constructed by the Molasky Group, Derek Stevens’ Circa hotel-casino high-rise, progress in the Las Vegas Medical District, the Arts District, Cashman Field, and the Fremont Street Experience canopy. There’s also the International Innovation Center, the Expo trade show center and other expansion at Symphony Park and elsewhere. Even the beleaguered Huntridge Theater received a shoutout for yet another planned comeback.

Goodman raised the homeless issue approximately one hour into the program and lauded the efforts of Catholic Charities, the Salvation Army and other organizations and nonprofits that are dedicated to helping the needy on the street.

That done, she touted Mayor’s Fund and the city’s new Courtyard Homeless Resource Center and defended a controversial new ordinance that would make camping in many areas of the city a crime punishable by up to six months in jail if homeless refuse available social services. Similar laws are in effect in dozens of other jurisdictions as cities struggle to address the issue.

Then she went further, jabbing at critics and painting the homeless as dangerous and germ-ridden.

“Those responses that say the city is trying to criminalize the homeless, our entire effort is humanitarian and compassionate,” Goodman said. “I will not allow the City of Las Vegas to become a skid row harbor of rampant crime and potentially pandemic disease.”

And again, “The City of Las Vegas is no longer tolerating the extremely dangerous, safety sanitation and health conditions that face us daily and put us all in jeopardy.”

At one point she sounded almost like a homeless advocate, “Our country, our state, this city government must provide safe, healthy and supportive caring facilities for those who cannot choose or cannot care for themselves.”

The truth is harder to spin.

I think Goodman missed a real opportunity to level with her audience, filled with innovators and influencers in the business community, and admit that the city and county are under-equipped to fully address this complex issue.

In Las Vegas, as in most cities, the poor and homelessness is a “them” problem. No one wins election advocating for the rights of the downtrodden. Beyond the noise of a few dozen protesters, there’s no community uproar on this issue. Elected officials, even those who care, know the homeless and their allies aren’t a powerful voting bloc.

Reporters and other hand-wringers may dwell on it and some government staffers have devoted their careers to addressing it. The city’s no-camping ordinance has been jeered by advocates for the unwashed, and even its new outreach center has been panned by some who’ve tried it.  While the enthusiasm for growth appears unlimited, the budget for compassion is always tight.

The complex problem of homelessness in the valley’s urban core promises to remain long after the applause has faded and the city’s latest, greatest cheerleader has left the stage.

 John L. Smith is an author and longtime columnist. He was born in Henderson and his family’s Nevada roots go back to 1881. His stories have appeared in Time, Readers Digest, The Daily Beast, Reuters, Ruralite and Desert Companion, among others. He also offers weekly commentary on Nevada Public Radio station KNPR. His newest book—a biography of iconic Nevada civil rights and political leader, Joe Neal—”Westside Slugger: Joe Neal’s Lifelong Fight for Social Justice” is published by University of Nevada Press and is available at Amazon.com. Contact him at jlnevadasmith@gmail.com. On Twitter: @jlnevadasmith

Progress in the Clark County School District

Front view of the building front of the Clark County School District administrative building

By David Osborne

On the recent National Assessment of Educational Progress (NAEP)—the “Nation’s Report Card—the Clark County School District showed significant improvement at the fourth grade level but no progress in eighth grade. On NAEP’s fourth and eighth grade reading and math tests, CCSD students performed about half a grade level below the national average—roughly equal to the average large urban district.  

Beneath these numbers lies a more important story, however. African Americans, who make up 16 percent of all CCSD students, tested about 30 points—or three grade levels—behind white students. (On the NAEP tests, 10 points is considered one year of learning.) Hispanics, who make up 46 percent of students, tested about 20 points—two grade levels—behind whites. 

This is the sad reality of education in America: low-income minorities—those who need the most help to share in the American dream—lag the furthest behind. 

How can CCSD change that by expanding opportunity to as many students as possible? Last September, more than 200 civic and education activists and leaders, brought together by Opportunity 180, attended a summit on “Creating a 21st Century Education System.” They heard from leaders in other cities that were attacking this challenge, including Denver and Indianapolis. After discussing what these cities had done, participants voted on which strategies had the greatest potential in Clark County. 

Their top choice was a strategy that has generated the fastest improvement in the nation, from Chicago to Washington, D.C., New Orleans to Denver: replacing struggling schools with new ones operated by leaders who have already proven they can succeed with poor, minority kids. (School boards can guarantee jobs in other district schools to staff from closed schools, if they so choose.)

In Chicago, for instance, Arne Duncan launched “Renaissance 2010,” with a goal of replacing 100 struggling schools (out of 650 total schools) between 2005 and 2010. Duncan left in 2009 to become President Obama’s secretary of education, but Chicago still managed to close 60 schools and replace them with 92 new ones—charter schools, district schools, and nonprofit schools on contract with the district. The result: between 2009 and 2014, Chicago experienced some of the fastest academic growth in the country.

In New Orleans, after Hurricane Katrina flooded most public schools in 2005, the state legislature placed all but 17 city schools in a statewide Recovery School District (RSD) it had created two years before, to turn around failing schools. As the RSD reopened schools, it gradually handed them to charter school operators. 

The transition took a decade, but today all public schools in New Orleans are charter schools, which report to the local elected school board. They have significant autonomy, but the board holds them accountable: If the children are not learning enough, the school loses its charter and another operator usually takes over.

In the first decade of this transition, New Orleans achieved the nation’s most rapid academic growth. Before the state adopted a new standardized test in 2015, the RSD charters in New Orleans improved almost four times faster than the state, moving from 23 percent testing at grade level in 2007 to 57 percent in 2014. Before the reforms, 62 percent of New Orleans students attended “F” schools, rated failing by the state. Today the bar is set higher, but only 8 percent attend “F” schools. Before reform, fewer than 20 percent of all students went on to college. In 2018, 78 percent graduated in four years and 60 percent of them entered college—higher than the state rate. New Orleans was our first high-poverty city to outperform its state on two important metrics: five-year graduation rate and college-going rate.

Economist Douglas Harris, who leads the Education Research Alliance at Tulane University, has studied this process in depth. His conclusion: “We are not aware of any other districts that have made such large improvements in such a short time.” The most important factor, Harris found, was the replacement of failing schools by more effective schools. 

The second most popular strategy at September’s summit was creating a universal enrollment system for all public schools, both district- and charter-operated. Cities as diverse as Denver, Washington, D.C., Newark, New Orleans, and Indianapolis have done this, to make sure all families have an equal shot at quality schools.

In Clark County, with 360 district-operated schools, most children are assigned, or “zoned,” to a school near their home. Families do have some choices: they can apply to one of the district’s 46 magnet schools, career-tech high schools, or “select high schools” (with career-tech, advanced placement, and other specialized courses). They can request a variance to send their child to a non-assigned school, which requires permission from both principals. They can enroll in one of the roughly 60 schools with empty seats that accept choice students—but this helps only about 3,700 of the district’s 320,000 children. Or they can choose from among 55 public charter schools, which educate another 45,000.

In situations like this, where limited choice exists, those with more education, money, and time to research schools and butter up principals wind up with the best opportunities. Parents who don’t speak English, work two jobs, don’t have a car, or don’t have the confidence to lobby principals usually settle for their neighborhood school. If they are poor, their children’s chances of landing in a high performing school are low.

By letting every family list their top six or more choices and using a computer program to match children to schools, districts level the playing field, giving low-income families more equal opportunity. In a district as sprawling as CCSD, transporting students all over the county would be expensive, so universal enrollment zones within each of its three regions might make more sense.

Over time, these two strategies would increase the number of quality schools and give all students a more equal chance to enroll in them. That could turbocharge the progress CCSD is already making.

David Osborne, author of Reinventing America’s Schools: Creating a 21st Century Education System, leads the K-12 education work of the Progressive Policy Institute, in Washington, D.C.

Your inherent rights are at risk

By Howard McCarley

It’s no accident that the authors of the U.S. Constitution singled out one profession for special protection. The language of the First Amendment, while simple, is sweeping in scope: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The framers of the Bill of Rights recognized that the free exchange of views and ideas and the provision of protection for those exchanges was essential to the maintenance of a free society. At the time, ‘the press’ was rather easily defined — newspapers of various persuasions. As technology has advanced, what was traditionally viewed as ‘the press’ has undergone significant changes. 

Radio, television and the internet all have changed media roles and perceptions of what constitutes ‘the press’ — and these new mediums and platforms are not always protected by the absolute nature of the First Amendment prohibition against interference with the free exchange of ideas.  

Currently, there is a pending lawsuit filed by U.S. representative Devin Nunes seeking suppression of two separate Twitter accounts which he claims have defamed him. Closer to home, a Nevada judge very narrowly interpreted the definition of a journalist and held that a person reporting on only electronic media did not enjoy the same protections as a print journalist. Then, in December 2019, the Nevada Supreme Court ruled that “one can print in more than one way.” (The ruling followed a lower court opinion that electronic media did not constitute “printing”.) This ruling, too, is very narrow, addressing only the mechanism of printing — it still did not extend the full benefits of Nevada’s media shield law to electronic media. 

The Nunes suit against the Twitter accounts was filed by a rather deep-pocketed individual. Apparently unaware of the Streisand effect, the plaintiff created a backlash of funding toward fighting the suit — but that’s not always the case, nor should it be necessary for us to pay in order to speak our minds. In many of these cases, helpful funding does not appear, the validity of the criticism is never really assessed and the critic is silenced — even if the criticism was valid.

In a different kind of free speech case (Clark County District Court VIII Case A-17-765257-C), a Nevada judge ruled that Homeowners Associations are private entities and are thus not subject to anti-SLAPP provisions (short for strategic lawsuits against public participation, SLAPPs have become a tool for intimidating and silencing criticism through expensive, baseless legal proceedings). The ruling came despite HOAs performing many of the functions traditionally provided by municipalities and centered on a case involving questions raised by a candidate for an HOA Board about the level of expenditures and action of a (substantially) developer-controlled HOA Board. 

The parent company of the management company filed a defamation action against the candidate. The defendant asked for dismissal, arguing that homeowners association meetings constitute a “public forum” that qualify as a meeting covered by the anti-SLAPP statute (NRS 41.660) because they serve a function similar to that of a governmental body.  The judge denied the motion to dismiss, finding that the defendant “failed to meet its burden to invoke NRS 41.660”. Effectively, the decision denied that HOA meetings and processes are public forums. The court chose to ignore the precedent set by actual municipalities — and the source material for most Nevada HOA law — which clearly holds that HOAs are enjoined by anti-SLAPP provisions

And so they should be. Homeowner associations are prevalent in the urbanized parts of Nevada. In many ways, they are embraced by local governments as they provide a means and method to avoid costs (and tax increases) in order to provide street lighting, street landscaping, parks and hiking trails and their maintenance in new communities. Because homeowner boards and management companies act as de facto municipal agencies, they should not enjoy protections against criticism exceeding the protections afforded public agencies (and elected or appointed public officials). 

While the truth is an absolute defense, it may be a long and expensive process to be vindicated, and few want to trudge that path when just shutting up is so easy. But doing so perpetuates the loss of rights. This is wrong.

So, too, with radio, television, the internet, blogs, social media — all serve to facilitate the same thing: the free exchange of opinions and ideas about society and life. What has changed is the scope of the communications and the speed at which they occur.  As long as the statements made do not on their face display a reckless disregard for the truth, they should be permitted to stand and freely discussed.

Defenders of the Second Amendment are unconditional in their insistence that the technology advancement from muzzle-loading muskets to semi-automatic high capacity weapons did not alter the intent and application of the amendment. We must be equally diligent in protecting the rights enumerated in the First Amendment including that it apply to any technological changes since the printing press held sway as “mass communication”.  

Our rights are under attack at all levels of government, and everyone needs to be aware of and resist these attacks the freedoms we ought to enjoy.

Howard McCarley is a homeowner in Las Vegas. Prior to retirement, he had a 30-year career as a construction superintendent and project manager, and he most recently was a real estate professional. 

Judicial Discipline Commission not getting the job done

Photo of gavel on scale of justice

When I first started my law practice in the 1990s, I’d often spot older individuals sitting in the back of courtrooms – unaffiliated with any of the proceedings of the day – but nonetheless present from the moment the judge took the bench until the end of the court calendar.  I came to learn these folks weren’t part of any organized group but simply shared, in their retirement, an utter enjoyment for observing proceedings. Maybe they thought of it as a free, immersive 3-D Matlock experience or a TV show called Murder, She Easily Proved In Front of An All-White Jury With A Biased Judge.  

Sometimes, these court watchers (or “bench birds” as one called his kind) became friends with each other. I’d see them convening after court at a nearby cafe to share stories of offbeat cases, trial drama or judicial antics. Sometimes I’d find myself chatting up one on a courtroom break. It was often a treat learning about their rich histories (including former cops and lawyers). But for a young lawyer, it was their informed view of the judges based on hundreds of hours of steady observation that was invaluable. Having precious little experience at the time, a thoughtful insight about a judge’s mood of the day, or trend on an issue with specific examples, was a cache of useful knowledge unavailable in any law book.

I miss the court watchers. As Court TV and other “reality” programs became prevalent, their motivation to schlep downtown to see the same thing at the courthouses probably dropped. And, well, as time did what time does, they probably dropped, too, not to be replaced in the age of social media and even live-twittering of hearings. But what if “court watching” wasn’t just an antiquated hobby, but a vibrant part of a joint legal and journalist tradition? What if we thoughtfully kept our eyes on every courtroom (and judge) to not only understand the process but be alerted when injustices were occurring?

My thoughts turn this way as I sporadically peek into the remarkably ridiculous, possible never-ending tribunal recently paraded in the public eye about the off-bench, perhaps salty but not particularly salacious conduct of two female judges. I emphasize the gender of these judges because (as others have pointed out), the whole thing reeks of an attempted, sexist smackdown of jurists with the audacity to not adhere to some sort of old, male standard of “conduct becoming a judge.”  

Likely to go nowhere near the possible goal of sanction or even removing these judges from the bench (as the first after-hearing announcement affirms with the only finding of a “continuing investigation”), this proceeding has had the unintended consequence of shining light anew on the long-criticized, limited effectiveness of the Nevada Commission on Judicial Discipline.  Indeed, because of this over-the-top inquiry into (no joking) why the word “shit” was on a sweater under her robe, if the judges cussed in the hallway and if they preferred some clerks working for them over others – some in legal quarters are calling for the disbandment of this group of appointed overseers to a fair and just legal system.

Despite the folly of the current proceedings, that would be short-sighted.

Now more than ever, upon the upcoming election involving well over 50 judicial races in Clark County, many for open positions, there needs to be a strong discipline commission (and more likely staff who do the screenings of complaints) because the voters are invariably going to seat individuals who are likely to not be good at their jobs. And while that may sound harsh, the point is that non-partisan, judicial races are typically the lowest-information campaigns in town and with judicial canons prohibiting candidates from expressing their position on a large range of matters it too often comes down to a pleasant face on a poster over a keen mind. 

A Judicial Discipline Commission that keeps an eye on every courtroom, or at least takes serious, reliable accounts of mistreatment of litigants, racial biases, conflicts of interest, fundamental violations of due process and patterns of unrepentant errors of legal judgment – well, it should have a mechanism to swiftly and materially sanction, suspend and even remove judges to a much greater degree. As is, they only seem to pick cases (and rarely at that) where the judges are either so damaged or already toasted that redemption is lost — or concerning spectacle shenanigans like the current justice of the peace with a funky sweater. As is, the Nevada Commission on Judicial Discipline seems fuller of itself than actual impacts on a challenged and ever-growing system of civil, criminal, juvenile and family law courts. Sadly, it also lacks the self-awareness of where it’s gone wrong and perhaps suffers from an institutional bias against doing anything too radical, at least when it comes to the actual systemic faults of Nevada’s frequently wonky crapshoot that we call justice. A new start with a fresh panel following even more transparent rules and guidelines, as well as more effective consequences (or corrective measures) for bad judges, is critically needed.  

A quick overview of this entity is instructive as to why it’s so vital and how it has too frequently (but not always) failed the community.

Aping their website, “the Commission was created by a Constitutional amendment on November 2, 1976, to investigate allegations of Judicial misconduct in office, violations of the Revised Nevada Code of Judicial Conduct, or disability of judges. The Commission is composed of seven members: two judges appointed by the Nevada Supreme Court, two attorneys appointed by the Board of Governors of the State Bar of Nevada; and three lay persons appointed by the Governor of the State of Nevada. Its staff consists of a full-time General Counsel/Executive Director, Associate General Counsel and three Management Analysts.” The current composition of the regular Board (six men, one woman) is found here – though there are no links to the qualifications or reasons why the members (especially the lay representatives from the public) were appointed but their day jobs are listed. For instance, the Chair, Gary Vause, is the owner of Lit’l Scholar Child Care Pre-Schools and Kindergartens, where presumably wearing a sweater that said “shit” on it could be a 15-minutes-in-the-corner time-out level offense.

Essentially, the Commission has a set of forms that allow a signed complaint to be levied against a judge. And while seemingly designed to mostly cater to litigants in a case who have a specific concern about a specific judge, there is an allowance for any person to lodge a complaint so long as they affix their signature to the form. As such, no anonymous complaints are considered even if the conduct is egregious or otherwise provable. 

This lack of anonymity is obviously a cause for some concern since good or bad, judges have a degree of power and in the legal community. There is an inherent fear of reprisal. As such, there are likely a number of legitimate complaints that never get submitted. It’s unclear whether the commission takes special notice of things like Nevada Supreme Court opinions that call out judicial errors, or news (or even social media?) revelations, but Nevada law seems to suggest that only a formal complaint begins the process.

There is no true limitation on the content of the complaint so long as it touches upon one of the very broad “canons” of judicial conduct which cover everything from impartiality and bias to competence and decorum in the courtroom with litigants, attorneys, jurors and staff as well as no-nos during campaigns and limitations of extra-judicial activities. The canons also contain a very expansive “propriety” phrase (currently being tested in the pending proceeding with the two justices of the peace) which states in full: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.” There’s also a requirement that if one judge learns of another judge violating any of the rules, they are required (lest they be breaking the rules) to rat out their colleague.

All in all, there are dozens and dozens of specific and ethereal rules that judges must abide lest they (theoretically) face the scrutiny of the commission.

Once filed, a complaint then goes into a mystery hopper to determine if further action is warranted and that’s one of the biggest criticisms of the process.  Understandably, and by design, judges would want unwarranted complaints to remain confidential – and the named whistle-blower may also want to stay out of the public eye until there’s actual findings.  On the other hand, the law allows a judge against whom the complaint is filed, or the person who filed the complaint to disclose the existence or substance of the complaint. Still, the thresholds for determinations to move forward are somewhat (and problematically) too discretionary.

Typically, a complaint will be filed and acknowledgement of receipt will happen fairly quickly.  The entire process to decide what (if anything) will happen next is required to take no longer than 18 months. Most are dismissed.

And while it’s a little difficult to track the actual dismissal rate since annual fiscal year reporting encompasses complaints received and dispositions that might have come from other years, it’s not hard to see the trend. Between 2016 and 2018, there were about 550 complaints submitted to the Nevada Commission on Judicial Discipline. During that same time frame (and without exact tracking to the complaints), only 23 cases proceeded to the formal charge phase and even fewer made it to a sanction of any sort. We can look at public reprimands, however, and see that during that same period 3-year period of 2016-2018, 20 different judges received some manner of reprimand or discipline (mostly fines or the requirement to take classes).

But when a potentially righteous complaint is filed (and dismissed) the reasons given to the complainant are often ambiguous. For example, one common complaint is that the judge is not competent and does not follow the law. (Canon 2). And while there is an allowance that judges can make good-faith errors of fact or law, what if a judge does it over and over, even after being admonished by the Nevada Supreme Court – or when the Nevada Supreme Court does it despite being admonished by the Ninth Circuit Court of Appeals or the United States Supreme Court? Commonly, the commission cites its own procedural rules and Nevada law, to avoid ruling on matters of repeated conduct, instead telling the complainant (if a litigant) to basically appeal any wrong decision they think the judge is making. Indeed, it looks like the only time a judge gets any serious scrutiny from the Judicial Discipline Commission for more systemic failures (like competence) is when other judges get involved.

Otherwise, when a judge clearly (and on the record) goes off the rails in a single case, like abusing contempt power (which happens a lot) or punishing a juvenile and threatening her lawyer for invoking a Constitutional right or engages in some weird campaign nonsense – it does seem the commission (slowly) but surely does something to bring attention to the matter. But if a litigant or member of the public points out a pattern of conduct of a judge in many cases leading to unfair dispositions, violations of basic rights, and general incompetence to continue to be a judge – they basically say “we can’t help ya.” (Still not sure where wearing a “shit” sweater falls on this spectrum or why there was a two-day hearing where this came up.)

Which brings me back to the bench birds: everyday citizens who sat in the courtrooms and got maybe the best sense of was happening without fear of reporting — or reprisal over a cup of coffee across the street from the courthouse. Our justice system is reliant on campaigns over real criteria to put judges in place. Our judicial watchdog (the Nevada Commission on Judicial Discipline) is generally inadequate, ineffective or at least inconsistent in acting in ways that help the public by ensuring that the system is working. Truly bad actors can too easily avoid legitimate correction or removal; the dial that needs to turn for judicial reforms to benefit the public seemingly stuck. 

Perhaps we should incentivize retired folks to come back to court, set them up with a Twitter account (oh my) and encourage them to go at it. Or maybe we do a little more to keep eyes in courtrooms all the time, not just snapshots of sensational matters, for it is in the mundane (over time) where the real strengths or weaknesses of judges are revealed. It could be just as simple as pouring over appellate court decisions and make judges answer whenever they give wrong instructions, or abuse their discretion, or commit any other host of errors which transcend mere “good faith” mistakes. We need the best and the brightest judges with proper dispositions and the self-awareness to seek improvement. To ensure that, we need a strong, but fair system in place for issues big and small. More than 500 complaints with only around 5 per cent moving forward does not suggest that is happening. The “shit show” — as some people are now calling the commission after this most recent proceeding – is not getting the job done.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.