Is the ACLU helping Nevada’s indigent criminal defendants – or harming them?

Photo of gavel on scale of justice

If you would have told me in law school that I would spend the first five years of my career as a public defender, I would have scoffed. But that’s exactly what happened, and I couldn’t be more grateful for the experience. In my years with the Washoe County Public Defender’s Office and my time as a prosecutor in two rural counties since then, I have worked with appointed attorneys of every description, and I am proud to call the vast majority friends and colleagues. As a whole they are dedicated, ethical, hardworking folks, and I know I can count on them to ensure my own exercise of power is kept properly limited and confined. A good prosecutor appreciates good defense attorneys more than most people could ever imagine.

And so I read with intense interest – and an incredible amount of frustration – the complaint filed against the State by the ACLU, essentially condemning those colleagues as lazy and unethical as a group. There is much to improve in the way we deliver indigent defense services, especially in the rurals, but this lawsuit may very well do more harm than good.

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The complaint filed by the ACLU is brought in the name of only three specified defendants, and then includes “all others similarly situated.” In each case, their situations are described in the vaguest of terms, with key facts and circumstances (criminal history, facts and strength of the cases against them) left out entirely.

One of the things any competent trial attorney learns early is not to hide or hedge “bad facts.” If you don’t address them yourself at the outset, your opponent will throw them in your face, and the jury will be hard pressed to trust you after that.

Indeed, very little hard data supporting their claims is offered at all – the arguments are broad assertions of general incompetence backed up by a handful of anecdotes from convicted felons facing additional convictions. The harms described are tied to the remedies they seek with only the thinnest evidentiary strands. And their proposed solutions – “we demand the Court order the Governor to come up with a plan!” – are so nebulous as to be meaningless, even if the Governor, Legislature, and Supreme Court hadn’t already been actively focusing on this issue for years now. In some instances, like claiming no standards for indigent defense exist at all, they simply don’t have their facts right.

The lawsuit focuses largely on the way the appointed attorneys are paid, arguing that flat fee contracts (which have been banned for two years now) incentivize contract attorneys to do minimal work to maximize their personal profits. I suppose this is true for a few people, and attorneys for the indigent ought to be better compensated than they are. But when I was a public defender, we were all salaried – I got paid the same whether I filed a bunch of motions or not, but I still filed plenty of ‘em. Like any large organizations, we had a few indolent duds – but by and large, people interested in being public defenders both believe in the importance of the job and are innately competitive enough to actively work their cases. If someone is too lazy to do that, having them bill the county hourly isn’t going to suddenly turn them into hard-chargers for justice.

I have also seen abuses where attorneys must be hired outside the contract, and are paid hourly – an unethical few will drain already limited county resources with flurries of frivolous litigation, resources which could have been used for drug treatment or mental health services. There is no silver bullet here.

The complaint also bemoans the process by which the contracts are awarded, alleging that PDs aren’t independent because government entities hire them. Heads of government, being elected by the people they represent you see, sometimes think (quelle horreur!) politically. Somewhat paradoxically, they also argue that the contract attorneys need more supervision, I can only assume by some sort of… government entity. The ACLU isn’t wrong that there are problems here to be addressed, but sanitizing government action of any political consideration is neither possible nor desirable.

If only there was a licensing body lawyers were required to be part of, independent of the government, which also had disciplinary authority over its members. Better yet, we really should have an independent person in the courtroom charged with ensuring the attorneys are meeting minimum standards of professional competence…

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In addition to the lack of carefully targeted solutions to articulable problems, this lawsuit serves to alienate the people who should be its partners in this mission – the very lawyers currently serving indigent defendants in rural counties. The complaint clumsily tries to avoid this by blaming “the system” and not naming names – but this rings hollow when lawyers, recognizable to their colleagues by the listed circumstances and locations, are accused of letting their clients languish in jail a few more months so they can make a few extra bucks on a private case.

What they should have done was invited a group of rural defenders, frustrated by the lack of resources in their home counties, to join the lawsuit, and include more criminal defendants as plaintiffs. If things are as dire as the ACLU paints, it would have been an easy sell. Instead, heels will be dug in, and otherwise achievable improvements will be resisted.

Worst of all, the lawsuit fails to mention probably the single largest obstacle to better representation of these defendants – a lack of attorneys practicing in the rural counties. (This oversight may or may not have to do with 2/3 of the attorneys bringing the suit living in huge, non-Nevada cities like New York and LA.) Sadly, I have seen more than one rural contract PD lose their contract because, usually due to some personal circumstance, they were failing to adequately represent their clients. (This gives lie to the assertion that chronically ineffective attorneys are tolerated or even tacitly encouraged by rural governments.) The more remote the jurisdiction, the fewer options there are to find a replacement. We should consider scholarships or loan forgiveness programs for law students willing to sign up for these jobs upon graduation, but sparsely populated areas will always struggle with this, and no lawsuit in the world can force lawyers to live or work where they don’t want to be.

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Our criminal justice system is far from perfect, and there is plenty of room for improvement. Professionals at all levels of our government have been working diligently for years to identify and implement those improvements. But the problems are as diverse as our jail populations, and there is no magic wand anyone can waive to solve them all in one fell swoop, which is functionally what the ACLU is attempting to do.  Their hearts may be in the right place, but we all know what the road to Hell is paved with.

By blundering into the fray with an ill-considered lawsuit, the ACLU risks turning allies into enemies, wasting time and resources, and undermining more responsible, local voices who are working hard everyday to continually improve our justice system.

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 deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at orrin@orrinjohnson.com.

The enduring spirit of Nevada statehood

The state seal of Nevada shown on a glass window or door

Constitutions tend to be regarded as sacred civic scripture, devised only after solemn proceedings in which human rights and principles of governance are earnestly pondered by inspired souls committed to justice and the betterment of humanity.

That’s not what this is about.

This is about the making of Nevada’s Constitution.

When Abraham Lincoln signed the proclamation making Nevada a state 153 years ago today (not 153 years ago last Friday), it was, to be sure, partly in aid of the most profound reform in U.S. history – abolishing slavery.

In the Nevada territory, however, it was taken as a given that a new state of Nevada, and that new state’s members of Congress, would support the 13th Amendment to the U.S. Constitution. That’s not what the constitutional debate was about. What the Nevada constitutional debate was about, of course, was mining. Some territorial voters wanted mining to be taxed like all other property. Miners wanted to be taxed only on net proceeds. Mining won. To this day, no one holds Nevada’s Constitution more sacrosanct than the mining industry.

Thanks to textbook authors, notably Michael Bowers and Michael Green, Nevada students are well aware of mining’s role in the making of Nevada’s Constitution. (It may surprise the casual Nevadan to learn that the textbooks give far, far more attention to mining than they do to that very long telegram.)

But the mining controversy shaped – and was shaped by – an underlying dynamic that has proved just as enduring as mining’s influence over the state, and in recent years, far more trenchant: the regard in which government would hold Nevadans, both as individuals and as a citizenry, vs. the regard government would grant to wealthy interests from elsewhere.

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The first time Nevada territorial voters had an opportunity to adopt a Constitution, in January 1864, they said no, by a resounding four-to-one margin.

That constitution would have taxed mining the same as all other property. The most powerful mining interests in the territory had objected to the tax provision during the constitutional convention, but they supported approval of that first Constitution anyway.

William Stewart, an attorney for large California mining companies and the Nevada face of what today we might call Big Mining, had gained control over several legislative and judicial candidates – slated to be on the ballot with the Constitution. Stewart made it plain to anyone who would listen that whatever the Constitution said, California-controlled Nevada legislators would only tax mining on net proceeds. Additionally, Stewart was confident that upon statehood, judges controlled by California mining money would settle multiple legal disputes over mining claims, presumably in favor of the corporations Stewart represented – and at the expense of small operations and individual claimholders.

Through written 25 years ago, David Alan Johnson’s Founding the Far West, a study of constitution-making and statehood in Nevada, California and Oregon, remains among the most detailed modern study of Nevada’s origin story. Contemporary press accounts, cited by Johnson, show that Stewart’s “high-handed” machinations backfired with an electorate that viewed his California masters as “imposter[s] … whose effrontery and heartlessness impel them to infer that their rights are the first rights to be known and guaranteed in all this part of Nevada.”

And so voters overwhelmingly rejected that first Constitution. “In defense of individual enterprise, the open marketplace, and the right of the ‘little man’ to join in the race for wealth and prominence,” Johnson writes, “the territory’s residents vanquished the monopolistic enemy.”

Or so it seemed.

A mere eight months later, a second Constitution – this one granting mining its precious tax exemption – was approved.

What changed?

By the spring of 1864, the Comstock Lode’s surface deposits were playing out, and the territorial economy plunged into what Johnson describes as “a devastating depression.” Stock values, overinflated by a speculative bubble, collapsed by as much as 80 percent when the bubble popped. Small mines and prospectors were wiped out. Claims were abandoned. Unemployment skyrocketed. Territorial commerce all but dried up.

In other words, Nevada got its first full introduction to that phenomenon endemic to the extraction-based economies of the American West, the boom-bust cycle.

Nevada’s resentment of the “effrontery and heartlessness” of California corporations and financiers, and the accompanying defense of individual enterprise, withered away. Now Nevadans yearned to be rescued by the only thing that they thought could save them, investment from … California corporations and financiers.

The depression so terrified Nevadans, Johnson writes, that it “forced them to … revise the commitment to economic individualism.” And so on their second try at approving a Constitution, territorial voters supported it – and big out-of-territory interests – by a whopping eight-to-one margin.

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In addition to learning the proper pronunciation of sesquicentennial, the goals of Nevada’s 150th anniversary of statehood three years ago included “promoting the independent spirit” of the state. Commemorative coins were struck, and commemorative literature published. Children marched in parades. Speeches were made. Many of the more eager volunteers and participants will probably remember it all their lives.

In 2014, however, the impulse behind passage of Nevada’s Constitution was on display in ways far more consequential than any sesquicentennial parade. That was the year the state granted a California billionaire and one of his California companies a $1.25 billion incentive package to build a battery factory near Reno.

Nevada’s Constitution-era sense of political economy was evident again last year, when the state agreed to grant a $750 million public subsidy to a California owner of a professional football team.

There has never been, and presumably never will be, convincing evidence that the incentive package was necessary for Tesla to locate in Nevada. There are worries, however, that Nevada should have focused more sharply on how to mitigate the pressures placed on education, social services, and especially housing by large industrial projects.

As for the stadium, the economic impact projections prepared by boosters, and swallowed by state and local officials, are, by most independent accounts, nothing short of absurd.

And even if Nevada’s Constitution had taxed mining the same as all other property, the industry still would have prospered. Mining development plans were – and still are – influenced by mineral prices far more than local tax rates.

Now, on this Nevada Day, state and local officials hope, however implausibly, to muster an incentive mega-package for the ages to attract Amazon’s second headquarters.

Amazon, along with Google, Apple, Facebook and Microsoft, comprise what New York Times writer Farhad Manjoo has dubbed the “Frightful Five,” corporate giants that acquire would-be competitors or crush them through “merciless, sometimes unfair” practices.

The prospect of Nevada bestowing perennially inadequate public resources on a corporate monster that devours markets and stifles competition may be unseemly. But it reflects the enduring principles and core values Nevada embraced when it approved its Constitution at the outset of another Gilded Age: Nevada government has no higher priority, and no higher calling, than doing whatever it takes to please the outside interests with the most money.

William Stewart would heartily approve.

Hugh Jackson is the founder and blogger at Gleaner 2.0, formerly (and still) Las Vegas Gleaner. He is also a U.S. History instructor at UNLV. Hugh was a cohost and political commentator for The Agenda on News 3 Las Vegas (2011-2014), and a senior editor at, and then columnist for, Las Vegas CityLife.

Why Segerblom’s marijuana proclamation is out of bounds

A customer and retailer exchanging money at a cannabis retailer

By Michael Raponi

“I really believe that Nevada can be the marijuana capital of the world,” said Nevada’s godfather of pot, state Sen. Tick Segerblom, D-Las Vegas. “And this will be one more thing in our toolbox.”

-- Las Vegas Review-Journal, September 11, 2017, in response to the Legislative Counsel Bureau’s opinion that state law does not prohibit local governments from permitting for marijuana consumption in businesses.

But not just yet, senator. Please.

Why not yet? Because this is still an experiment with many unknowns. Yes, even given the latest from Colorado and Washington with nearly four years experience in retail sales.

What isn’t an unknown, especially for states new to recreational use, is the need to establish reliable baseline data, known as the first data to be compared to future data. Reliable data should drive public policy, removing all guesswork from those decisions that could have long-term effects on public health and safety. Virtually all state implementation plans, including Nevada’s own playbook, The Regulation and Taxation of Marijuana Act Final Report, call for this type of data collection. No state wants to build this particular plane while flying at 30,000 feet. It’s about putting first things first.

One case in point is the cautionary statements in the Report of the Special Senate Committee on Marijuana for the Commonwealth of Massachusetts (March 2016), where recreational use was approved by voters in November 2016, the same time use was approved in Nevada. The report states “Furthermore, Massachusetts currently lacks the necessary baseline data on marijuana public health, public safety, and economic and fiscal impacts, as well as the ability to track and monitor trends over time. This issue has been particularly problematic for Colorado and Washington in formulating sound marijuana policy.”

This report, published before the ballot measure was voted on, was not biased for or against legalization. It fully recognized existing use rates amongst its populace but clearly professed the need for a thoughtful, careful approach to implementing policy and, most importantly, the need to draw on lessons learned in other states, particularly Colorado and Washington.

With the legalization of medical and recreational use of marijuana in Nevada, certain things are becoming abundantly clear. With strong, initial demand, there is no question of popularity and industry potential. Sales reports in states where use is legal has demonstrated the industry is an economic juggernaut; job creation is already proven. And with Nevada’s monthly sales meeting estimates, tax revenue is there too, and should more than cover the projected income in the state budget.

What isn’t clear yet is just how fast rapid expansion of accessibility should take place. Language in Question 2 appeared to exclude public use. However, depending on the recent decision by the Legislative Counsel Bureau and the refusal to opine on the issue by the attorney general’s office, venues for public consumption may or may not be in Nevada’s immediate future.

Regardless of that outcome, and before espousing rapid expansion to exceptional levels, the following issues represent a sampling of the state-level research needed to ensure sound, coherent policies are implemented based on proven data: usage rates of minors; arrest rates of minors (especially blacks and Hispanics); traffic deaths related to driving under the influence; hospitalization and emergency room visit rates; and effects on existing black markets. There are others.

One may assume information from other states that have been-there-done-that, like Colorado for example, is readily available. Unfortunately, it is difficult to get to the cold, hard facts. Has youth use increased or not? Are there more driving accidents linked to intoxicating levels of THC and resulting in fatalities or not? Have black markets disappeared or do they persist? These are pressing issues, but finding clear answers depends on what you read and what you hear.

The report, “Lessons Learned After 4 Years of Marijuana Legalization in Washington and Colorado,” published by the anti-legalization organization Smart Approaches to Marijuana (SAM), cites troubling data in the aftermath of legalization. In 2013-14, according to the report, Colorado ranked first in youth use relative to the national average by a significant margin, where 12.5 percent of 12-17-year-olds used marijuana compared to 7.2 percent nationally (and 8 percent in Nevada). The report also claims legalization has resulted in limited to no impact on black markets, increased hospitalization and emergency room visits, negative effects on employment and communities of color, and increased driving arrests and fatalities.

Breaking this down further, the SAM report based its driving statistics on information provided by the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA), which reported the percentage of traffic fatalities where operators tested positive for marijuana increased from 16.5 percent to 21 percent over the four-year period following legalization. However, the RMHIDTA reporting methods, like the SAM reporting, have come under criticism for focusing too much on the negative consequences of legalization. Regardless, the volley about this issue continued as the Denver Post recently published a series of news articles that link sharp increases in traffic fatalities to marijuana use. Validating there indeed may be a problem, the Colorado Department of Transportation is increasing the funding of its education efforts, according to the Post.

But some of these troubling numbers don’t size up to other data that show, for example, no substantial increase in youth usage since legalization, as determined by the Colorado Department of Public Health and Environment in its report Monitoring Health Concerns Related to Marijuana in Colorado: 2016. 

All of this would not be such a big deal were it not for how some reports so blatantly contradict each other.

So, for the sake of argument, let’s focus on Colorado’s report which shows outcomes less-than-dire as previously thought. Although it is from this 300-plus page report that comes the good news regarding lower-than-anticipated youth use patterns, there is evidence of increases in marijuana-related emergency room visits and hospitalizations. And there are many references throughout the report attesting to the need for continued monitoring and additional research and evaluation in areas related to public health and safety. Again, this is after Colorado’s nearly four years of retail sales. Nevada is into this four months.

All of this points to one logical conclusion about the merits or pitfalls of rapid expansion: There is not one logical conclusion about the merits or pitfalls of rapid expansion.

Because the jury is still out on this by a long-shot, Nevada needs to proceed cautiously by providing its adult citizens reasonable opportunities for recreational use while expanding access under structures that are, in the words of Governor Sandoval, responsible, restricted, and respected. Nevada needs to determine its own baseline data and follow-up results upon which to make sound decisions. Following the advice of our own task force, the state needs to “… establish and fund a program of research to evaluate and assess the immediate and long-term impact of Ballot Question 2 on marijuana use and public health in Nevada.” The Clark County Commission is correct in pumping the brakes on this right now.

It certainly isn’t the right time for Nevada to trumpet its pioneer spirit by striving to become the “marijuana capital of the world.” For these and other legitimate concerns, Sen. Segerblom’s proclamation is at best wildly premature or at worst downright reckless.

Michael Raponi is a former director at the Nevada Department of Education with 33 years of experience in career and technical education and workforce development. He currently writes guest articles covering a variety of topics, and may be contacted by email at michael.raponi@outlook.com.

Is there daylight for robo-dialer Dane in political extortion case?

Nevada Supreme Court building in Carson City

Conservative dirty trickster and unrepentant robo-dialer Tony Dane is one of the bad boys of Nevada politics.

Democrats spit when Dane’s name is mentioned, in no small part because he fed homophobia in a campaign involving legislative stalwart David Parks. Mainstream Republicans cringe at the thought of ever finding themselves on Dane’s Republicans-in-Name-Only (RINO) hit list. And, as more recent events have illustrated, even avowed Silver State conservatives have found something to fear from the political porcupine’s ability to target recorded criticism and innuendo to registered voters.

Fomenting fear and firing up the base has always paid well in Nevada.

It’s safe to say not a lot of people outside Dane’s own home wrung their hands on May 26, 2016 when he was slapped with an 11-count indictment alleging extortion, unlawful wiretapping, perjury and other felonies. From December 2014 through January 2015, it’s alleged Dane tried to pressure state legislators into voting staunch conservative John Ellison in as Assembly speaker prior to the start of the Legislature as a bulwark against Gov. Brian Sandoval’s planned $1.1 billion tax increase to fund and reform Nevada’s struggling K-12 education system.

Dane attempted to play the role of enforcer after learning Republican Assemblyman Chris Edwards, who had successfully campaigned as a conservative, was listening to mainstream influences in his party who wanted John Hambrick in the speaker’s role. Dane and his allies considered Hambrick a RINO and characterized Edwards’ waffling as a betrayal.

Dane did what he’s always done: He went on the attack and made no secret that Edwards was a special project. Edwards responded to the threats by calling law enforcement. After news of the criminal investigation broke, Dane contended that his surreptitious recordings and tough talk were constitutionally protected issue advocacy.

But Metro police and the Clark County district attorney’s office believe it added up to illegal wiretapping and extortion. According to the indictment, Dane allegedly threatened that if Edwards voted for Ellison that Dane “would have an affidavit filed with law enforcement and/or a state regulatory body accusing Christopher Edwards of the crime of attempting to solicit a bribe, and/or that Dane would release private, unlawfully intercepted telephone conversations” of Edwards to the public.

Were they really unlawful?

A judge in the criminal case is giving Dane’s defense attorney Don Chairez a chance to explore whether a recent Nevada Supreme Court opinion effectively defangs the indictment.

In a hearing on Oct. 17 before District Judge Michael Villani that received little notice in the press, Chairez argued the Supreme Court’s decision in the Ditech Financial civil case could substantially impact his client’s criminal trial. Although Dane focused most of his business on candidates and voters in Nevada—a state that requires two-party consent for a tape recorded conversation —he kept most of his computer dialing and recording equipment in Utah, a one-party consent state. The attorney argued that, in the wake of the Sept. 14 Ditech opinion, Dane can’t be guilty of illegal wiretapping.

Ditech’s attorneys successfully argued that Nevada’s two-party law doesn’t apply because the phone conversations recorded during attempts to collect debts were recorded in the one-party states of Minnesota and Arizona.

“Therefore, we answer the certified question in the negative, concluding that NRS 200.620 does not apply to recordings of telephone conversations with a person in Nevada without that person’s consent and uses recording equipment outside of Nevada.” So Justice Mark Gibbons wrote with the court’s full concurrence.

That fresh opinion appears to challenge an important part of the state’s indictment against Dane. It doesn’t however, give the defendant a free pass if he used anything recorded to further an attempted extortion.

In the recent hearing, Chairez also argued that several of the criminal counts were little more than vigorous “issue advocacy” and wouldn’t pass muster on First Amendment grounds. He may be right, but will probably have to win that argument at trial, which has been reset for Jan. 29.

Dane’s enemies in both major parties will have to wait a little longer to find out whether he finally pays a price for playing the political dirty trickster.

John L. Smith is a longtime Las Vegas journalist and author. Contact him at jlnevadasmith@gmail.com. On Twitter: @jlnevadasmith.

Conservative group ranks Nevada's business climate very high, but not the Commerce Tax

You are going to hear a lot about the state of Nevada’s economy in the next campaign year, with candidates assigning blame for weakness and taking credit for robustness.

Contenders, especially for governor, will talk about what needs to be done to continue the success of the Brian Sandoval Era: Keep taxes low. Create jobs. Make Nevada Great Still.

My mind is numb. And it hasn’t even started yet.

This occurred to me last week when I came across The Tax Foundation’s “State Business Tax Climate Index.” The group is an unabashedly conservative outfit, and has been accused of bias. But it provides excellent data on these subjects, and I have found it a great resource. It is ideological but useful, the way Nevada Policy Research Institute was before it became an organ of right-wing hackery and political attacks.

So what does the Tax Foundation say about Nevada’s business climate going into 2018? Nevada has the fifth best tax system in the country, quite an endorsement of the Sandoval Era policies and despite the group’s harsh criticism of the Commerce Tax when it was passed and of gross receipts taxes in general.

It is worth taking a deeper dive into the Tax Foundation’s findings, especially on the eve of Attorney General Adam Laxalt’s gubernatorial announcement tour in which he is expected to call for the Commerce Tax’s repeal. I have previously said Laxalt and others should answer a series of key questions, including: “Do you support the 2015 tax increase, the largest in state history, proposed by Sandoval and passed by large majorities in both houses of the Legislature?”

Beyond the political spectacle of Laxalt opposing a key component of Sandoval’s legacy and his running mate’s (state Senate Minority Leader Michael Roberson) major legislative achievement, there are serious policy questions to be addressed. (Historical note: Sandoval and Roberson lambasted the Tax Foundation in 2015 for criticizing the Commerce Tax.) And being a cockeyed optimist, I am certain, unequivocally and completely, that this race will be all about serious policy questions.

The Tax Foundation uses five indicators and weighting to arrive at a state’s ranking: Personal income tax (33 percent), sales tax (23 percent), corporate tax (19 percent), property tax (15 percent) and unemployment insurance tax (10 percent).

What’s interesting about the report is that Nevada only does well in two of the five indicators and still ranks near the top of the country. Because we have no state income tax (tied for first) and low property taxes (8th), Nevada makes up for its lower grades in sales tax (42nd), unemployment insurance (45th) and corporate tax (33rd).

That last one may seem odd, and I’ll explore it further in a moment. A few points:

--- The Nevada economy, which suffered disproportionately during The Great Recession because of the narrow tax base (almost all gaming and sales), is doing pretty well. The headline or U-3 unemployment rate has dropped by two-thirds since its high and is now under 5 percent. That may not be great in comparison to other states, and the so-called U-6 rate, which is a more nuanced and layered measure of unemployment, is still in double digits here. But we have come a long way.

The reasons for all of this are, of course, quite complicated and not easily explained in the sound bites to which we are about to be subjected by candidates. The workforce mix, the educational system, the available jobs.

But the economy here has not been affected in any adverse way – at least not yet – by the Commerce Tax that took effect more than two years ago on businesses with $4 million or more in annual revenue. And Sandoval’s semi-successful efforts to diversify the economy and make the state more attractive to employers, despite criticism of his use of tax incentives and abatements, proves that.

--- I doubt any gubernatorial candidates or contender for any other office will complain about our #1 ranking on personal income taxes. “Create a personal income tax” will not be a battle cry of 2018. (This is why I am paid the big bucks to be a political pundit.)

But already Roberson, echoing a nonsense refrain from the session, is excoriating a reasonable proposal to lift property tax caps imposed during the recession that have since had negative and unintended consequences on local governments. The lieutenant governor hopeful has signaled that he and others hope to skew the facts and deceive the public.

Property taxes in Nevada are very low and a very stable source of revenue. They would be raised if substance were the only criterion.

Where, though, are the cries to reduce sales taxes, some of the highest in the country? I wonder if it’s because our brave pols know these have been used to pay for budget items such as police –  the fear of not seeming pro-law enforcement does tend to weaken or erase principles.

--- Unemployment insurance taxes, as the Tax Foundation study explains, are complex in every state and often unfair to businesses. But they are a small part of the overall tax picture, as the study’s weights show. Still, if candidates really want to help businesses, as they will all claim to do, why not call for lowering this tax? Why? Because a slogan of “Keep unemployment insurance taxes low!” is no vote-getter.

--- Finally, let’s look at the Commerce Tax, which is the first real broadening of the tax base in modern Nevada history and which Sandoval considers one of his greater achievements to help stabilize funding or education. Although it is only 4.4 percent of the general fund, it raised just under $400 million in its first two years, which ain't peanuts. How you would replace that much money is not an easy question, but I expect the “waste, fraud and abuse” shibboleth.

As much as nonprofits can be anthropomorphized, the Tax Foundation hates gross receipts levies such as The Commerce Tax. It was up front about this in 2015 – taking about goods being taxed up and down the supply chain, unprofitable enterprises getting socked.

Indeed, Nevada was ranked No. 1 in corporate taxes in the Foundation ratings in 2014 and immediately fell to 26th after the Commerce Tax was passed.

It’s a little difficult to argue that the Commerce Tax is bad for the economy considering the state of the economy. The rates are all so low and the revenue threshold so high that no businesses or customers have complained with any volume or veracity.

The only legitimate concern for businesses – and, ironically, one of the most attractive features for those who want more money for education or pet issues -- is that this broadening of the tax base was the proverbial nose under the tent. That is, that future lawmakers will raise the rates or lower the $4 million revenue floor.

The Tax Foundation is not the definitive word on Nevada’s tax structure and economic health. But the state’s high ranking should be top of mind once the candidates start bloviating anytime now.

Jon Ralston is the editor of The Nevada Independent. He has been covering Nevada politics for more than 30 years. Contact him at ralston@thenvindy.com. On Twitter: @ralstonreports

 

Make every day Nevada Day!

Is there anything better than a small town parade? Boy scouts, Shriners in little cars, unfurled flags, high school marching bands, local politicians doing their best princess waves, horseback riding, infinitely creative hand-decorated floats, and plenty of sweet, sweet candy with the extra flavor that comes of bouncing on the pavement a few times before being tussled over by eager children…. The Carson City Nevada Day parade is a big one, but keeps that feel – it must be the biggest small town parade around. It’s certainly my favorite.

You can’t help but come away from this event with a sense of civic pride and an appreciation for all the best of American tradition and history. As a prosecutor, my day-to-day work hours generally consist of wading around in some of the worst stuff humanity has to offer. Questing for clicks and ratings, too many of our news outlets focus on this underbelly as well – and the more time we spend in front of glowing screens instead of the real world, the more the bad stuff becomes what we believe to be reality. It’s not healthy.

A parade gets everyone outside, sitting next to each other, talking, joking, and fighting over candy instead of politics. It’s a reminder that we’re a community, and a display of so many things that make our state great. It’s a unifying event, weirdly apolitical even as the politicians march or ride by. Only the most wretchedly cynical among us can suppress an appreciative laugh at our local congressman scooping up the horse poo, proving that sometimes even the most obvious symbolism still resonates across all party lines.

The politicians are on display for their constituents, but the statesmen among them understand that the constituents are there to be seen as well. The thousands of people who show up early to get a good spot along the route for their camp chairs aren’t there to pay homage to anyone, but to enjoy a day with their families. With their presence, they remind legislators and governors and civic leaders of their duties and responsibilities to the people and their communities.

***

So much of what non-Nevadans think about our state is what, frankly, we advertise and show off -- casinos and vice, marketed on the grandest of scales. There’s nothing wrong with this, and tourism is obviously a critical part of our economy. But an economy that depends too much on bringing in strangers and inviting them to do things they’d never do in their own homes is perhaps not one that fills people with a sense of civic pride. Maybe this is why we still too often give our tax dollars away to a wealthy few and their entertainment venues, or elect city councilmen who would deprive thousands of students of a needed new school if it means keeping a golf course intact.

Our unique shared celebration is the perfect antidote for all of this. There is a special poignancy to Nevada Day, especially for those of us transplanted here from elsewhere, who have chosen to call this place our home. Like the outpouring of love and community we saw after the horrific attack on our friends, neighbors, and guests a month ago, the Nevada Day parade is the true reflection of the people and potential of this state.

Nevada has always been more than just a place for tourists to come, and we have always been so much more than just a strip of casinos. In the decade that I’ve called this place my home, I feel more and more of our community potential has been unlocked, as we continue to diversify our economy and explore new career paths and opportunities for our citizens. So long as we continue this focus, insisting on planning ahead through prioritizing education, and removing burdensome regulations too often designed to limit competition and new entrepreneurs instead of encouraging their creativity and proliferation, our potential is limitless.

Nevada Day is a wonderful opportunity to remind ourselves of the best of who we are. If we keep the spirit of this day in mind all year long, it can spur us to be the best we can be.

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 deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at orrin@orrinjohnson.com.

Walters’ fan club crashes former US Attorney Bharara’s UNLV talk, comes up short

Well-connected sports gambler and consummate Nevada political player Billy Walters has started serving his 60-month sentence for insider trading, but it’s obvious he still has plenty of pals in Las Vegas.

Several of his acolytes, in fact, turned out Monday evening at UNLV to fire a few questions at former U.S. Attorney for the Southern District of New York Preet Bharara, the person arguably most responsible for pursuing insider trading charges against  Walters in connection with a $43 million manipulation of Dallas-based Dean Foods stock.

Accompanied by a video camera and several associates, longtime GOP bomb-thrower and occasional Walters consultant George Harris set up near the back of the crowded meeting room inside the Richard Tam Alumni Center and waited through Bharara’s speech. The former top prosecutor focused on the importance of respecting the institutions and traditions of government and defending the rule of law in the age of Trump. At times soft-spoken but always compelling, Bharara confirmed to the legal scholars in attendance why he’s considered one of the nation’s most formidable legal minds.

Team Walters seemed unimpressed. But by the time they finished trying to pull Bharara’s tail, Harris & Co. came off like extras from “Alex Jones’ Infowars.”

They raised predictable defense issues. Had the federal investigation been tainted substantively by an FBI agent’s press leak? (A judge ruled it wasn’t. The agent remains under investigation.) Did the Southern District have a high rate of overturned convictions during Bharara’s tenure? (It didn’t.)

The attempted sparring didn’t lay a glove on Preet.

That’s not surprising. Bharara isn’t just another former prosecutor. He served as US attorney in Manhattan from 2009 to 2017, pressed the biggest insider trading cases on record -- remember Bernie Madoff? -- helped lead a terrorism task force and battled international narcotics traffickers. As UNLV  William S. Boyd School of Law Dean Daniel Hamilton reminded his audience, which included retired U.S. Sen. Harry Reid,  Bharara set the standard for public service.

He was a genuine crusader for justice from all accounts. His team didn’t always win, and on rare occasion had victories reversed. But it took after suspected criminals without fear or favor.

In the wake of his firing by President Donald Trump, Bharara has been in the press a lot lately. While he didn’t shy away from that controversy, he managed to get laughs with it and playfully remind the crowd that, in addition to teaching as a fellow at the New York University Law School, he hosts a podcast everyone is welcome to download. (It’s called “Stay Tuned with Preet.”) Although Trump’s questionable conduct is low-hanging fruit, the podcast will take on many justice issues, according to USA Today.

Bharara, in fact, spent most of his public speaking time Monday addressing the importance of defending the rule of law and the traditions of the executive branch.

After listening to Bharara, and hearing some of the sour-grapes questions, it makes me wonder whether Team Walters was expecting the former prosecutor to crack wise and admit federal law enforcement was out to get their man. Were they hoping to capture an appealable issue on tape? One can only guess.

Even more difficult to understand was the reason Nevada Republican Party Chairman Michael McDonald attended Bharara’s speech. Perhaps it has something to do with the controversial former cop and Las Vegas city councilman’s longtime relationship with Walters. When a reversal of fortune forced McDonald to lose his handsome home several years ago, it was Walters who bought it back from the bank and returned the keys to McDonald. Hey, the least the head of the state GOP, who also is a huge Trump fan, can do is show up and razz a prosecutor, right?

If they had really been thinking on their feet, Walters’ loyalists might have put Bharara on the spot, at least socially, by asking him whether he believed justice would have been served without placing the 70-year-old gambler in prison.

Perhaps they’d forgotten it was Bharara’s good friend Harry Reid -- sitting in the front row -- who joined many influential Nevadans in writing glowing pre-sentencing letters on Walters’ behalf to U.S. District Court Judge Kevin Castel.

Reid lauded Walters’ many philanthropic acts and offered, “I am sure there are people who do not like Billy Walters, but I have not met one of them.” And then, “I do not see how this man getting probation would, in any way, adversely affect the criminal justice system.”

It’s just a guess, but I don’t think Reid consulted with Bharara before penning that letter. The existence of Reid’s heart-felt correspondence had gotcha moment written all over it. It might even have caused Bharara some discomfort.

Instead, he dispatched Walters’ cheerleaders without breaking stride and made them look like diehard sports fans after a very bad beat.

 

John L. Smith is a longtime Las Vegas journalist and author. Contact him at jlnevadasmith@reviewjournal.com. On Twitter: @jlnevadasmith.

 

States that mandate reasons for recalls have very good ones

“Lack of fitness, incompetence, neglect of duties or corruption.”

“Act of malfeasance or misconduct while in office; violation of oath of office; failure to perform duties prescribed by law; willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. “

“Conviction for a felony, misconduct in office, incompetence, or failure to perform duties prescribed by law. “

“Physical or mental lack of fitness, incompetence, violation of oath of office, official misconduct, conviction of certain felony offenses.”

Those are the grounds for recalling state officials in Alaska, Georgia, Kansas and Montana, respectively. Others states that allow recalls have similar language, requiring misuse of office or criminal activity.

Nothing in any of the states that require a predicate for recalls have anything approaching the manufactured reasons being used this holiday season in Nevada. As you may, ahem, recall, these efforts are being undertaken purely because the Republicans have no chance to take the state Senate in 2018 and want to overturn the 2016 results for either hypocritical or ginned-up reasons.

I reached out last week to the impeccable National Conference of State Legislatures (NCSL) to ask how other states handle recalls. The deadlines for the Nevada efforts to submit signatures are fast-approaching. The first one is in about 10 days, the others a few weeks later.

The information is illuminating. To wit:

---Only 19 states have recall provisions in their Constitutions. Why? Maybe because it makes sense that terms should not be truncated unless an elected official commits a crime or displays malfeasance. That’s the way the system should work; that is the system state Senate Minority Leader Michael Roberson and his caucus wants to subvert to reverse election losses.

---Only eight of those 19 states actually require reasons, so Nevada is one of 11 that do not. That, of course, is silly and antidemocratic. But it is inherently why, as the NCSL site says, a recall is “a political device.” And NCSL provides recent evidence: “In most states, any registered voter can begin a recall campaign for any reason. Often, the reasons are political. The 2011 recall efforts provide a good example for politically-motivated recalls. In Wisconsin, Republican senators faced recalls for their support of the governor's effort to reduce the influence of public employee unions, while Democratic senators faced recall because voters disapproved when they left the state to delay a vote on the union issue. In Arizona, a senator faced recall for his sponsorship of a controversial immigration bill.”

Compare those recalls to the ones of three state senators here, with the ostensible reasons being votes that many Republicans also cast (the largest tax increase in history). That is unprecedented and likely will lead to unending recalls by both sides and a permanent campaign that will paralyze lawmakers.

---NCSL also provides an instructive arguments for and arguments against distillation:

“Supporters of the recall maintain that it provides a way for citizens to retain control over elected officials who are not representing the best interests of their constituents, or who are unresponsive or incompetent. This view holds that an elected representative is an agent or a servant and not a master.

Opponents argue that it can lead to an excess of democracy, that the threat of a recall election lessens the independence of elected officials, that it undermines the principle of electing good officials and giving them a chance to govern until the next election, and that it can lead to abuses by well-financed special interest groups.”

Which of those seems applicable to the Nevada recalls being orchestrated by cowards who will not return calls, who have been mendacious at the doors and who can make no reasonable argument that the NCSL arguments for these efforts apply?

On the other hand, every word of the arguments against section applies to Roberson & Co. Every word. And that is why I continue to say that everyone involved, everyone who has cowered and remained mute and everyone who has been used to bolster the recalls will wear this as a mark much worse than Hester Prynne’s.

---NCSL lists all of the recalls attempted against state lawmakers – there has never been a successful one in Nevada. But it also shows how they recently have become weaponized by partisans and special interests – indeed, Roberson recently visited a national group to sell the utility of the efforts to change a house. This is instructive:

“Recall efforts against state legislators are more common, but still unusual. Recall attempts against legislators have gathered sufficient signatures to trigger an election just 38 times, and eleven of those occurred in a single year, 2011. Fifty-five percent of all legislative recall elections have succeeded in unseating a legislator, and additionally two legislators resigned after petitions with sufficient signatures were submitted. Seventeen recall attempts have failed, and the legislators subject to the recall remained in office. While there have been more legislative recall elections in recent years (45 percent have taken place in the years 2011-2013), they have been less successful than in the past:  just eight of the 17 recalls attempted between 2011-2013 succeeded in unseating a legislator, a 47 percent success rate.”

So the odds are against these recalls, even though they are well-funded and hordes of folks are on the streets peddling nonsense and lies. But Democrats, who have launched an expensive “Decline to Sign” campaign believe they may well qualify and last week filed a federal lawsuit raising issues that have nothing to do with the state constitutional right. Another suit challenging signatures is inevitable, too.

All of this should make anyone who still believes in the republican form of government quite queasy. It takes a special kind of amorality and ambition to do what is being done here.

I’m hopeful there will be a move in the next Legislature to change the no-reason-needed recall law. But if these are successful, if this hypocritical and sad effort bears fruit, then I have little doubt that the Democrats will scuttle any such recall reform effort so they can adopt the same business model.

If there’s one certainty in politics, it is that hypocrisy and opportunism have no partisan hue.

Jon Ralston is the editor of The Nevada Independent. He has been covering Nevada politics for more than 30 years. Contact him at ralston@thenvindy.com. On Twitter: @ralstonreports

Cheating education statistics only cheats ourselves

This past week an attorney friend of mine forwarded me an article, accompanied by much correct and righteous indignation, about how the Nevada Supreme Court was lowering the standards for our state bar exam. Apparently, one of the big motivators for the move was that the old standard was just a little too high for our state’s one and only law school, and their grads needed a little bailout.

The article was a couple months old, and I had read something in passing about it. But what made it relevant to me was the news this week that the Washoe County School District’s high school graduation rate had magically spiked 7 percentage points, up to 84 percent.

I wish my first thought could have been, “Fantastic! I am now confident that I live in a substantially better-educated community!” Sadly, WCSD’s well-documented ineptitudes and dishonest approach to explaining inconvenient facts left me cynically thinking, “Meh. They probably just did what the Bar did – lowered the standards to allow people graduate who probably shouldn’t have.”

A few days later? Sure enough – “Temporarily relaxed graduation requirements likely gave boost to WCSD's 'historic' grad rate,” read the Reno Gazette-Journal headline.

Not to worry, though. Only part of this statistical happiness is the result of tinkering with the numbers. Our superintendent may be obscenely overpaid, but maybe we’re paying for an amazingly insightful data analyst who can identify causal relationships mere mortals would miss. The RGJ story answered that question, too:

In a press conference Wednesday, [Washoe County School District Superintendent Traci] Davis said exempting students from end-of-course exams could be responsible for a gain of 2 or 3 percentage points on the district's overall rate.

Later in the press conference, Davis also said, "I think that impact is small and I don't know how to measure it."

That’s not “thinking,” that’s guessing. If you don’t even know how to measure something, the only way to attach a number to it is to pull said number out of one’s tukas. The fact that the made-up number is self-serving makes it even less plausible.

Surely, though, even if Traci Davis herself can’t figure it out, we have armies of well-paid bureaucrats who do nothing but drill down into the data. They have the answers, right?

Steve Canavero, Nevada's superintendent of instruction, said the state hasn't been able to sift through the data closely enough to determine how much of an impact the relaxed graduation requirements may have had. He said the department of education will be taking a closer look at the 2017 graduation rate in the coming weeks.

But Canavero said Davis's 2 to 3 percent estimation is likely near the mark.

"Her number feels right to me," Canavero said.

Oh, good Lord. “Feels right”?!? They have the answers, all right, but they have no basis for them. Worse, assuming real improvements are being made, not knowing why or how this is happening with more certainty prevents us from building on those successes.

Like bar passages rates, graduation rates are an easy statistic to “solve.” If I were king of Nevada, I could make both numbers 100 percent tomorrow by decreeing that everyone gets a diploma no matter what their grades were, or that every Boyd School of Law student passes no matter how little he paid attention in Contracts.

***

When that news article on bar passage came out, Assemblyman Elliot Anderson, who took and passed the bar just last year, wrote an interesting piece about it here in the Independent. While largely correct, Anderson missed the most important advice for those taking a bar exam (and I suspect any other type of entrance or licensing test).

The bar is not a knowledge test; it’s a performance test. You don’t study for it. You rehearse it. What makes a difficult exam a good filter against bad lawyers isn’t the required knowledge base, it’s that successful preparation takes planning ahead, discipline, and repetitive practice over several months. I’d rather be represented by a B student who knows how to keep his nose to the grindstone than the brilliant kid at the top of his class who can’t get out of his own head, and a tough bar exam rewards that sort of productive grit.

And lower standards do marginal law school graduates no favors in the long run. We already have far more lawyers in this country than we have demand for their services – having people begin a profession improperly equipped to succeed in it drives those individuals deeper into debt, diminishes the profession as a whole, and more importantly, does a disservice to the various clients the profession must serve.

The same is true for anyone. Graduation rates are meaningless if the high school diploma doesn’t represent the meeting of some minimum standard. The reason I am most skeptical about this “historic” improvement in Washoe County (and state-wide) is that doesn’t seem to be reflected in other, more objective measures, like ACT scores, which remain flat. An over-credentialed but under-educated workforce is not the way to entice technology companies to come here, nor will it fill our states with home grown innovators or entrepreneurs.

We can and should constantly re-evaluate the performance standards we demand of our students at any level. But merely jiggering statistics to make us look better doesn’t actually improve anything. There is no “get rich quick” scheme for creating a better educated population, or developing a culture which values education.

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 deputy district attorney for Carson City. His opinions here are his own. Follow him on Twitter @orrinjohnson, or contact him at orrin@orrinjohnson.com.

Nostalgia aside, sports fans, LVCVA’s stadium “naming rights” play is just another giveaway

Allow me to set cynicism aside for a moment and lapse into nostalgia. It’s hard not to get sentimental when the subject is baseball.

I was raised with the game, a Dodger fan in the Koufax era. Glued to the AM radio, Grandma Curtis and I spent long Henderson summers in her Victory Village apartment listening to the sainted Vin Scully rhapsodize and report about the men who seemed at once very human and so much larger than life.

I played the game with the tenacity the enthusiastically under-skilled can appreciate. When my life turned toward journalism, I spent hundreds of nights as a sportswriter and columnist at Cashman Field covering the Las Vegas Stars. I eventually moved to a different section of the newspaper, and the Stars eventually morphed into the 51s, changing owners along the way but maintaining a home at Cashman Field.

Come to think of it, I became more than a little sentimental about Cashman, too, as it aged into one of the oldest ballparks in the Pacific Coast League. The 51s management, led by the extremely capable Don Logan, lobbied unsuccessfully for many years for a new place to play ball.

And in 2019 the team is scheduled to have one in Summerlin, miles from its current home on the edge of downtown. Its new owners, The Howard Hughes Corporation, purchased the ballclub franchise for $20 million in 2013, and the stadium in Summerlin is being constructed at an estimated cost of $150 million.

Those aren’t the numbers that should give baseball fans pause. It’s the recent approval by the Las Vegas Convention and Visitors Authority to approve an $80 million expenditure (over 20 years) for the “naming rights” to the stadium that ought to have even the most dedicated baseball Annie heading for the exits.

How shameless is the naming rights hustle? The agreement calls for the stadium to be called “Las Vegas Ballpark.” How creative. Is that all the LVCVA gets for its $80 million? These are the kind of people who trade the family cow for magic beans.

Just a few years ago, the ham-handed gift to Hughes, which will develop and construct the stadium on eight acres in Downtown Summerlin, would have been loudly ridiculed in the local press and called the audacious stickup that it is. But after watching the jaw-dropping journalistic cheerleading that took place prior to the approval of $750 million in public financing to build a new stadium home for the NFL’s Oakland Raiders, the Hughes heist seems like barely a handout at all.

The room-tax-dollar spigot is wide open -- as long as you have the political juice.

Some in the grandstands of Southern Nevada politics and business may ask themselves, “Why does Hughes, a hugely successful company, need such an obvious giveaway?”

The answer is simple. Because it can.

If there’s one lesson watching the $750 million stadium deal teaches even the densest government student is that it’s much, much cheaper to spend money on lobbyists, politicians, and even Nevada’s largest newspaper than it is to pay the full bill.

But if $750 million is doable with the right political juice, and an $80 million outlay causes barely a blip on the radar screen, what sport is next? If you’re willing to bring out the checkbook, fast-talking promoters and unabashed fans can make plausible arguments for any number of activities.

Professional lacrosse looks entertaining, and the amateur version is increasingly popular among Southern Nevada youth. How about a professional lacrosse stadium? Come on, lacrosse fanatics, grab your crosses and raise your voices.

Or a state-of the-art volleyball complex. Or a cycling velodrome. Or something that would have made sense three decades ago: a rodeo stadium designed as a permanent home for the National Finals Rodeo and other major equestrian events.

When corporate America goes looking for a location for a new factory or headquarters, CEOs invariably want a location with a welcoming business environment, the right infrastructure and -- perhaps most importantly -- an educated workforce. It’s not exactly breaking news.

Neither is the fact that our public education system continues to struggle as it strives to  pull itself up from the bottom of most national performance rankings. It would be nice if those stadium handouts were met with half the skepticism heaped on our education structure.

The LVCVA’s $80 million ballpark giveaway sends the faith of even the most nostalgic baseball fan well into foul territory, but after the audacious $750 million football stadium robbery, it’s strictly minor league.

 

John L. Smith is a longtime Las Vegas journalist and author. Contact him at jlnevadasmith@gmail.com. On Twitter: @jlnevadasmith.