Category Archives: Nevada news

Everybody Wants to Bargain: Nevada’s SB 158

gridlock

The intent of SB 158, currently being discussed in the Nevada Assembled Wisdom, is relatively apparent – make the provisions of collective bargaining agreements between local governments and teachers, firefighters, police and law enforcement personnel, etc. publicly available 10 days prior to the meeting during which the agreement is to be voted upon.

If I’m reading the current law correctly, such agreements must be part of a public meeting agenda, duly posted, and subject to all the rigmarole associated therewith.  A copy of the “supporting material” available to the board or commission is also to be made available to the public. [NRS 288.153].  So, why SB 158?  Time.  From three working days prior to the hearing to “ten days before the date of the hearing.”

Superficially speaking this might allow for more time for public commentary and consideration of the agreement or master contract.  Realistically speaking, there are very few interest groups which are enamored of plowing  through contractual language and financials – the negotiating committees from labor and management, and the “anti-government” organizations which delight in microscopically examining supporting materials for clues to how “over-time is being abused,” or how “teachers are overpaid and underworked.”

SB 158 clearly gives the latter a few extra days to gather opponents of the collectively agreed upon contract prior to the hearing.  School Board members and County Commissioners already know the contents – they’ve been scrutinizing them throughout the bargaining process.  Members of union negotiation committees already know the contents – they, too, have been engaged in the same proposal, counter-proposal, amended proposal, process as their counterparts across the table.

The object is always that the employer (Commission or Board) will give the most they can without jeopardizing the priorities of the government entity, and the employees’ representatives will accept as little as they can without having to face a truly unpleasant mass meeting session with their membership.  The bargaining process itself can be competitive without being combative.  When things get combative there are ways out of the bind – mediation and arbitration.  And, herein lies the problem with SB 158.

Let’s assume that both sides in a bargaining agreement between, say. the Firefighters and the City have been negotiating in good faith.  The city has been forthcoming about its revenue projections, and the firefighters have been rational in their wage breakdowns.   They discussed hours and working conditions along with other related matters in a rational way.  They’ve avoided mediation and arbitration processes by agreeing to a collectively bargained contract. Now, we come to the question – why do opponents of the agreement need those extra days to round up their forces prior to the meeting?

  • Is it that the opponents of the agreement don’t trust the negotiating team from the city, district, or county?
  • Is it that the opponents of the agreement want to scuttle any deal which includes a modification of hours, adjustments in working conditions, or increases in pay?
  • If the negotiations hit a hard patch, and mediation or arbitration has adjusted the proposed agreement, then do the opponents want to scuttle the decision of the mediator or arbiter?

If the “scuttle strategy” is in place and the anti-government types want extra time for their media releases, press conferences, and the like, then what we have is an instance of obstruction at a key moment – a moment in which the intentions of both sides (both labor and management) are questioned and if the strategy is successful they’re both back at the bargaining table – and not where they want to be, which is home for a nice evening with the families.  In other, less delicate terms, Gridlock.

Public employee union representatives and members of school boards, city councils, and county commissions have donated countless hours of their own time to bargain these agreements.  They’ve authored proposals, revised them, spoken to them, adjusted them, and agreed upon compromise positions, usually on their own time and their own resources.  In this they should be praised – and should not be subjected to more organized (often professional) opposition which seeks to shoot down their efforts with shots below their Plimpsol Lines.

The burden of proof is on the proponents of SB 158 to demonstrate that the posting and publication of materials associated with the bargaining efforts of labor and management in the public arena, must allow for extra days for the processing and analysis of those materials – and NOT merely more time for the professional nay-sayers to advance their own narrow agendas.

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Well now, that was embarrassing: NV Treasurer Diss’es Governor

Schwartz bus  The following masterpiece of understatement captures what happened yesterday at the Assembled Wisdom in Carson City:

“Things did not go well for newly elected Nevada Treasurer Dan Schwartz Thursday at the Nevada Legislature.” [RGJ]

It really doesn’t do to garner headlines like: “Nevada lawmakers tell treasurer his budget proposal is embarrassing.” [LVRJ] Or, “Nevada treasurer blasted by own party for submitting alternative budget.” [LVSun]  Then the Elko Daily Free Press chimed in, “Nevada treasurer’s budget called ‘absurdity’.”  And, to ice the cupcake, there’s the part wherein some conservative members of the Assembled Wisdom may have tossed Mr. Schwartz under the venerable clichéd bus:

“Schwartz told The Associated Press last week that he met with a group of Assembly and Senate Republicans interested in drafting a bill reflecting the alternative budget. Several conservative Republican lawmakers say they’re trying to block Sandoval’s plan, which will need the votes of two-thirds of the Republican-controlled Legislature to pass.” [EDFP]

Needless to say, Mr. Schwartz back-tracked after the Debacle, saying the whole thing was his idea.  Treasurer meet the underside of the bus tires? Newly elected State Controller Ron Knecht seems to have had the good sense to remain quietly in the background after initially approving of Mr. Schwartz’s proposition. [LVRJ]

When the Dynamic Duo launched their Alternative Budget on or about February 3rd, it did have some numbers in it…they just weren’t the Governor’s numbers.  Nor did the Duo think through the implementation of their specifics, all three pages of them.  For example, precisely how would the state collect their Quarter a Plate restaurant tax? Then, there was the infamous, and illegal, airport tax notion. [LVRJ] It’s not like he wasn’t warned the ill-fated proposal wouldn’t have a glorious reception.

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Gavel Unravel: Appellate Court Proposal in Nevada

What do Delaware, Maine, Montana, Nevada, New Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming have in common?  Ans: None of these states have an intermediate appellate court.

Nevada Supreme Court Justice James Hardesty is now among those advocating for the latest proposal to incorporate an intermediate court into the Nevada judicial system. [LVRJ]  What’s different this time,  different from the last time Nevada voters rejected an intermediate court plan in 2010?   The 2014 proposal is a “push down” system, in which all cases on appeal go to the Nevada Supreme Court but cases such as appeals of driver’s licenses revocation and inmate writs of habeas corpus could be sent (pushed down) to the appeals court.

The problem is essentially a numbers game. There are approximately 2,200 cases coming to the Nevada Supreme Court each year, and some 733 of these fall into categories that would be under the jurisdiction of the appeals court.  Each Nevada Supreme Court judge is now handling an average of 333 cases (2013 figures) which is about 100 more than is recommended by the American Bar Association. [LVRJ] Under the latest proposal the Supreme Court would be taking on 1467 cases per year, or 209 cases per judge per year.

When Question 2 came to the voters in 2010 the results were closer than might have been expected, 313,769 voted “yes,” while 53.8% or 356,356 voted “no” on the appeals court creation. [Bllped]  Opponents argued there might be a need for an appeals court, but “There may be a need for an appellate court, but now is not the time fiscally. There is no way to create an entire separate level of courts without creating funding to support it on the taxpayers’ dime down the line.” [RGJ]

The funding question appears to be answered for the moment, with the appellate court needing about $800,000 in start up funds, and about $1.3 million per year for operations. [LVS] And, the support is bipartisan with both Republican Governor Sandoval and Democratic Attorney General Masto both advocating the new system.

Before anyone jumps on that rather tired “Taxpayer Dime” argument once more, consider the costs for Nevada citizens and businesses if nothing is done.

Under the current system it is taking about two years from the time an appeal is filed until the Nevada Supreme Court issues a response. [LVRJ]  That’s two years worth of an attorney on retainer, two years worth of waiting for a decision, two years worth of unnecessary delay – and the old saw is true: Justice delayed is justice denied.

There are some important cases coming before the Supreme Court this term, one is a 2013 Lincoln County case of child sexual abuse one of the central questions of which is does the defense have the right to demand an independent psychological examination of the victim(s)? [63563] In Hallenback v. Hallenback the Nevada Supreme Court is asked to decide if in a community property state one person is entitled to a full pension earned while separated from the other spouse.  In Slade v. Caesars Entertainment the court is asked to decide if an eviction from one casino property (in this case Mississippi) means a person is prohibited from attending any event in any other property owned by the casino corporation. The corporation has been involved in this litigation since March 2013.   These and other decisions pertain to civil liberties for both individuals and businesses, [NVSC] and should not have to compete with the justices’ time amid disputes over the revocation of driver’s licenses and inmate habeas corpus filings.

On the other hand it can be argued that a person who feels his or her driver’s license has been unfairly revoked, or an inmate who sincerely believes his habeas corpus rights have been violated, shouldn’t have to wait for a decision while cases involving community property, multi-state casino operations, and defense rights in important prosecutions, etc.  take up more of the court’s time.

Neither the aggrieved driver’s license litigant nor the multi-state casino corporation is well served by having a prolonged wait for the adjudication of their complaints, and there are costs associated with both kinds of cases, certainly beyond the cost of judicial operations and administration.  To argue that the state “can’t afford” to expand its judiciary because it might “ride on the Taxpayers’ dime” is also to contend that citizens and businesses in this state will have to spend more of their income and resources on delayed litigation and adjudication in a truncated system.

Or to put it more simply – it makes fiscal and judicial sense to adopt the appeals court proposal.

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Amodei: Not So Mr. Moderate?

Amodei 3Now this is some turn-around!  On April 28, in the year of our Lord 2014, Representative Mark Amodei (R-NV2) was “chiding” Senate Majority Leader Harry Reid (D-NV) for his position on the Bundy Brigands:

The Republican says he disagrees with Senate Majority Leader Harry Reid’s branding of them as “domestic terrorists” and doesn’t think Heller’s labeling of them as “patriots” helps to resolve the dispute over Bundy’s cattle.  Amodei says the issue is the “culture” of U.S. Bureau of Land Management law-enforcement operations in the West. [KOLO]

But wait! On the same day Representative Amodei was heaping praise on the BLM decision to stand down and refuse to offer the ersatz ‘patriots’ a chance to turn the situation in Bunkerville into their own Ruby Ridge, Waco, whatever other fantasy-land re-enactment they’d imagined for themselves.  Those inclined to accept Representative Amodei’s quick-whip-around talking points as evidence of moderation, should look to his recent voting record.

Exhibit One:  The House GOP budget proposal which leaves Pentagon spending unscathed but slashes funding for the Indian Health Service by 18%.  Also under the GOP meat axe, funding for fire fighting on federal lands, again cut by 18%. [HuffPo]  Not only does Rep. Amodei’s district contain a lengthy list of Reservations, but it’s also been known as the site of several recent, and truly large, wild land fires.  Rep. Amodei is fond of referring to his concern for ranchers in the 2nd District, but is apparently not quite so alarmed at the prospect of range fires destroying their grazing lands.

Nor should we miss the fact that the latest incarnation of the House GOP budget included the “Coupon Care” proposal which would eliminate Medicare as we know it, and substitute a voucher plan in its stead. [CBPP]

In case there are any consumers in the 2nd Congressional District, it should be noted that the Ryan Plan would eliminate the provisions of the Dodd Frank Act which requires that Big Banks have a plan in place to wind down operations, and that the FDIC can require the bankers to establish the plans to PREVENT future bailouts.  The ‘plan’ would also put the future of the Consumer Finance Protection Bureau under the guillotine of future Congressional budget cuts. [Hill]

When H.Con. Res. 96 (Ryan Budget) came to a vote on the House floor on April 10, 2014 — Representative Amodei supported it. [Roll Call 177]

Exhibit Two:  Once upon a time there was a mid-level IRS employee in a regional office who was accused of targeting conservative groups by not allowing political organizations to pass themselves off as social welfare institutions.  Truth be told, Lois Lerner acceded to a plan to look for key terms, like “political,” or “party,” on a watch list of sorts to cull the political from the social.  The ultra-right when ballistic.  “Conservatives were Targets of the IRS!”  Not. So. Fast.  Also on the list were terms like “Blue” and “Green Energy” and “occupied territory” organizations. [Wire]

However, this didn’t stop Government Affairs Committee Chr. Issa from claiming that the IRS ultimately “intended” to target more conservative groups, even as it was actually looking for ACORN successor organizations.

Failing to find any solid evidence of IRS targeting, or even of IRS ‘intent’ to increase scrutiny of conservative applicants, the Republican lead House voted anyway to recommend that Lerner be held in ‘contempt of Congress’ for citing her 5th Amendment rights.

This sort of thing happened on Capitol Hill before during the McCarthy Witch Hunt Era.  Lerner joins 10 Hollywood writers, producers, and directors who were voted “in contempt of Congress” for not cooperating with the infamous HUAC.  [Hist]  Rep. Issa may be missing the point that short term theatrical political gains can easily become long term memories of political infamy.

Who joined in the vote to find Lerner in contempt of Congress? None other than Rep. Mark Amodei (R-NV2), and Rep. Joe Heck (R-NV3).  [Roll Call 203]

Aligning oneself with the likes of Hamilton Fish III, Martin Dies, Jr., is not the way to convince most people that you are a proponent of moderation.

 

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This Could Get Interesting? Nevada District 2 Primary

Donkey RunningThe candidates have filed, and we’re off to the Nevada Races.  At the top of the ticket we have our Congressional candidacies, complete with the ever-present visage of Janine Hansen (IAP) of the Hansen Family Party running in the 2nd Congressional District race. Her last foray into the fray was a 2012 race against incumbent Republican state senator Pete Goicoechea for his District 19 seat; she got 19.5% of the vote in the general election.  Hansen espouses an anti-tax, anti-immigrant, and for that matter, anti-government philosophy.

Incumbent Representative Mark Amodei (R-NV2) is running unopposed in the GOP Primary (June 10), which should come as no surprise to anyone. That the former president of the Nevada Mining Association (2007-2008) and career politician would be the ‘man in waiting’ for future elections isn’t surprising either.

There will be a hotter primary for the Democratic candidates.   Dr. Vance Alm, MD (Reno) filed on March 5th saying on his web site: “I can no longer sit by and watch America falter and fall from its position as World Leader. I want my children and grandchildren to have opportunities similar to those I enjoyed. Complacency, apathy and cynicism; saying things such as, “It’s not that bad”, “I don’t care” and “It just doesn’t matter” need to be replaced with a desire and goal to once again make America the indisputable greatest nation on earth.”

Brian Dempsey (Gardnerville) offers more specificity in his issues section of his campaign site.  His position on economic development is generalized, but does emphasize small business: “Nevadans have been facing high unemployment rates for too long.  We need to find solutions to bring companies to our communities that will create jobs.  Our country was founded with an entrepreneurial spirit.  We need to focus on helping start-ups and small businesses grow.  With their growth, Nevada can recover economically and begin to grow again.”

Ed Lee (Reno) has also filed but his web site is apparently a work in progress.  “Watch this space.”

Kristen Spees (Incline Village), an estate planning attorney,  filed for the primary, her message in part: “My platform is based on government transparency and simplified politics.  I want residents to be informed about what is going on in the government and I want everyone to be able to make well-founded decisions when voting.  Transparency provides information for citizens about what the government is doing and it promotes accountability.   I want to simplify politics by teaching and informing residents about the pros and cons of important issues…

Superficial Analysis

Representative Amodei’s problem is not “how to get elected,” he’s been able to do that successfully since his race against Ernie Adler, his issue may be how to keep from getting sucked into the far right whirlpool of LoonyBin-ness Tea Party, Gold Standard, Anti-Government rhetoric with which the 2nd District is awash.  His problems will obviously surface in the general election IF his ultimate opponent (and not the IAP) manages to identify him with far right stances on the Affordable Care Act, and banking deregulation.

The Democratic Party candidate’s problem will be equally obvious.  There aren’t that many Democrats in the 2nd Congressional District.  There are 110,795 ‘active’ Democratic registered voters in the district, 17,202 IAP voters, 2,933 Libertarians, and 2,840 categorized as “other.” There are 144,255 registered ‘active’ Republicans.  56,714 are registered as ‘non-partisan.’ [NVsos pdf] Expecting all those independent voters to vote on the Democratic side is utterly unreasonable.

Department of Unsolicited Advice

Representative Amodei’s been successful so far at being all things to all people, his messages are highly generalized and verge on consisting entirely of talking points without drilling down beyond the surface ideological level.

The Democratic candidate who emerges from the primary with one hopes a bit more name recognition than the current “Who?” level, might do well to:

(1) Run on, rather than away from, “Obamacare.” Thus far Representative Amodei has been a good little GOP soldier, voting for every House Republican attempt to repeal the Affordable Care Act. [BallotP]   Amodei can continue to run as a ‘repealer’ IF no one calls him on the specifics.  For example: Does he really want to allow insurance corporations to be able to raise premiums more than 10% without scrutiny?  Does he really want insurance corporations to be able to deny health insurance based on pre-existing conditions (like being a woman)?  Does he really want to tell parents that their 21 year old son or daughter can no longer remain on the family policy?  Does he really want to make their grandparents pay out of pocket for preventative screenings?  Does he really want to allow insurance corporations to refuse to cover immunizations for children? Does he really want to allow insurance corporations to able to rescind policies when a person become ill or has an injury?

IF Amodei’s answers are ‘yes’ to these specifics then he’s on the defensive.  If his response is “we, the GOP, have another plan.” Then he can be reminded, none too gently, that the repeal and replace slogan has already been used — and suspiciously enough the ‘replace’ part only shows up during election seasons, thence to fade and die in the actual legislative part of the process. If he does try to sell the “GOP Plan” he can be reminded early and often that the GOP plan is more expensive, and covers fewer American families than the current system.

(2) Run on a platform of economic development for the 21st century not the 19th. Amodei’s on record saying: “I pledge to advocate for changes in federal tax and spending policies that will reduce the burden on struggling American Families and the small businesses that are the backbone of our economy.”  This core statement is relatively little more than the old “Tax and Spend Democrat” refrain.

If Nevada families are struggling — and they are — then is that tax burden all that much of  a burden to the average Nevadan earning about $50,000 per year?  The chink in the Amodei/GOP armor is that the tax burden of late has been shifted toward the middle class, those self-same small business owners and their employees, he purports to defend.   Republicans in general, and Amodei specifically, need to answer why they support subsidies for millionaires and billionaires and multi-national corporations when the burden has been shifting to the middle class.

It would be refreshing to hear a Democratic candidate for Congress dump the Austerity/Trickle Down Economics Hoax, and start talking about creating demand for American products and services.  Here’s where the advocacy of increasing the minimum wage comes into play.  If we increase the minimum wage closer to a living wage this (a) helps American families and (b) creates demand for local businesses who offer goods and services in the state.

(3) Run toward reasonable gun safety regulation, and respond to the NRA attacks with calm arguments — no one, except people who were never going to vote for you anyway — believes that felons, fugitives, juveniles, and the severely mentally ill should have easy access to firearms, and these categories of individuals are prevented from gun ownership under current Nevada statutes.  Advocate background checks to insure that these individuals aren’t obtaining guns, and thereby improve the enforcement of what is already in the statute books.

(4) Refute the Welfare Queen Mythology.  There are some quick references which will inform all but the most obtuse that if we are really looking for “waste, fraud, and abuse” in federal spending — it isn’t to be found in the Food Stamp (SNAP) or ‘welfare’ programs.  Speak to revising federal procurement policies which could minimize those single source no bid contracts.  Does, for example, Representative Amodei support the latest incarnation of the  “Ryan budget?”  If ‘yes,’ then does that mean he has espoused the philosophy behind that presentation — before Rep. Ryan started back-pedaling for all he was worth? [TP]  Interesting, isn’t it, how when a Republican is caught out being a boor, he or she responds, “I was inarticulate….?”

(5) Get real about the national debt.  The trend is actually declining. Yes, the number looks astronomical, however — if I am $8,000,000 in debt that’s a big deal, but if one of the Koch Brothers were $8,000,000 in debt that’s pocket change.  The National Debt is hauled out during campaigns as a banner to wave before people to whom candidates feel no necessity to  explain that (a) we owe most of the debt to ourselves, (b) we are still considered the safest place to invest on the planet and people want to invest in our Treasury bills and notes, and (c) we have the largest economy on Planet Earth and we can handle a great deal more debt than Greece, Portugal or any other location the doom and gloom contingent can hold up as an exemplar.

And, remember, even a charismatic, sharp, and well organized Democratic candidate will be running an uphill battle in the 2nd Congressional District.  Go ahead, ‘run as a Democrat,’ at worst it might secure some votes otherwise lost in the shuffle, and at best it will force the Amodei campaign to offer more than sloganeering to the constituents.

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Roundup

Cattle RoundupRecommended Reading:  The Nevada blogs have some posts well worth the click and read time — See Nevada Progressive’s “Freedom,” on the efforts to get rid of the Nevada gay marriage ban.  Meanwhile in Virginia, a federal judge has overturned their ban saying, “Wright Allen showed no hesi­ta­tion in overturning the state constitutional amendment, saying none of the reasons proponents offer for denying same-sex marriages make legitimate governmental interests.” [WaPo] Just a helpful reminder:  The U.S. Senate confirmed Wright Allen’s nomination to the bench on a 96-0 vote in 2011. [rc 069]

** Don’t miss the Sebelius piece on the Pathology We Just Keep Enabling, or how we must learn to live with our reality challenged neighbors like Sharron Angle.  However bemusing the antics of Mrs. Angle, her message advocating the suppression of voting rights is serious, and other advocates have adopted or are considering the adoption of strategies to suppress the turn out of voters.  Cincinnati, OH has found a way to make voting as inconvenient as possible. [HuffPo] The Tea Party controlled North Carolina legislature has enacted some of the most repressive voting laws in the country, and people are beginning to act. [TruthOut]  Republicans in Florida want to block the use of the UF Student Union as a polling place [BayNews9] and Manatee County, FL eliminated polling stations in minority heavy areas of its jurisdiction. [TP] The commissioner made this alarming statement about voting rights: “I wouldn’t have any problem making it harder. I would want them to vote as badly as I want to vote. I want the people of the state of Florida to want to vote as bad as that person in Africa who’s willing to walk 200 miles…This should not be easy.”  Reminder, we use the voting process to determine the will of the people, not the fortitude of the individuals in the lines.

** When your party has to send out a memo saying your endorsement process doesn’t cancel out your primary, there are some serious organization issues in play.  See Ralston Reports on the latest in the continuing soap opera which is the Nevada Republican Party.

** The Reno Gazette Journal has spoken to its motives in wanting access to Public Employee’s Retirement System data, but the intentions of a certain newspaper in the southland aren’t quite so clear.  Take note of this post from February 2nd on Nevada Public Employee Focus.   There is now, and has been, a coordinated attack on defined benefit retirement systems.  Opponents first publicize the “trouble” the pension systems have, or their alleged lack of solvency.  The second tactic is to issue derogatory statements about the “luxury” of public employee retirement benefits, hoping to split public employees and private sector employees politically.   What we ought to be doing is fighting for defined benefit pension plans in the private sector, not disestablishing them in the public sector.

** I wouldn’t have believed this, but it’s documented: “South Carolina policy requiring a fee and permit to feed homeless begins.” [ATTP]  There’s more information here:

“The most recent report, Out of Sight – Out of Mind?, which surveyed advocates and service providers in 50 of the largest U.S. cities, found that 86 percent of the cities surveyed had laws that prohibited or restricted begging, while 73 percent prohibited or restricted sleeping and/or camping. Over one-third of the cities surveyed have initiated crackdowns on homeless people, according to the survey respondents, and almost half of the cities have engaged in police “sweeps” in the past two years.”

A crack down policy might literally sweep the homeless off the streets, but this is simply mean spirited if not done in conjunction with efforts to find housing or shelter for those who need it.

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Defending the Indefensible

Nothing like the little troopers of Leonidas I intrepidly defending their self described Thermopylae against the encroachment of the 21st Century, and marriage equality! Nevada Secretary of State candidate Adam Laxalt announcing to anyone listening, “Today, Nevada’s Constitution still stands strong,” he said. “The preference of our voters is the law of the state and nothing the attorney general did changes that.” [LVSun]

No, nothing changes the unfortunate choice made by Nevada voters on Question 2, a citizen initiated referendum to alter the state Constitution in 2000, and affirming that vote in 2002.  However, the buyer’s remorse is evident in the polling done since the adoption of the amendment.  In 2009 a Las Vegas Sun poll found 38% favoring same-sex unions, and by October 2013 those favoring 57% now approve of removing the amendment to the Nevada Constitution. [ranNV pdf]

But, no, nothing is to prevent the Governor and the Nevada Attorney General from continuing the case in question.  Before they do so it would be nice to have some assurance that all the effort, overtime, and taxpayer expense has the possibility of success.   The appeal in Sevcik v. Sandoval (pdf) maintains (1) the inequality in marriage creates ‘harms’ the domestic partnership law doesn’t mend, (2) the marriage ban creates fundamental violations of the rights of the partners, and (3) the marriage ban violates the equal protection provisions of the 14th Amendment.   Sandoval/Masto responded that the decision in Baker v. Nelson is still controlling and the legal action is outside the jurisdiction of the court.  [Sandoval/Masto pdf]

The problem here is that the Baker v. Nelson decision was rendered in October 1972.  Times have indeed changed, and the judiciary along with it. Conservatives have been hanging their hats on Baker v. Nelson, but the nails have come out of the wall for this hat-rack.

When the Obama Administration dropped its advocacy of DOMA, the Republicans in the House of Representatives stepped in, with the Baker v. Nelson Defense.   The Circuit Court of Appeals gave the argument short shrift. [SCOTUS]  The decision in U.S. v. Windsor took the cases into new territory:

“By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.” [SCOTUS Kennedy]

And then the winds swept over the plains in Oklahoma:

“In ruling against the state’s ban on same-sex marriage, the judge declared that it violated the U.S. Constitution’s guarantee of legal equality.  He ruled that the Supreme Court’s ruling last Term in United States v. Windsor actually provided some support both for the challenging couple and for state officials defending the state ban.

“The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage.  It supports the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.” [SCOTUS]

Therefore, in essence what candidate Laxalt is saying is that he would continue pressing a case in which that formerly  controlling precedent has had the props knocked from under it, and would continue to appeal a decision already on tenuous grounds in Utah and Oklahoma.  Some exercises in futility may have some intrinsic merit, but this certainly doesn’t seem like one of them.  There’s another aphorism which might be more appropriate: Quit while you’re still ahead.

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