Editorial: Keep a close eye on enforcement of virus regulations

 by Thomas Mitchell

Shortly after state health officials confirmed the first presumptive case of the coronavirus — dubbed COVID-19 — in Nevada this past week, Gov. Steve Sisolak issued an emergency regulation regarding insurance coverage for testing and treatment of the rapidly spreading virus.

State law gives the governor the power in emergency situations to make, amend and rescind regulations in response to the emergency. Customarily one thinks of such things as calling out the National Guard to prevent looting or other problems after a national disaster.

In this case the Commissioner of Insurance Barbara Richardson made a finding that an emergency affecting the health and safety of the public exists and that adoption of an emergency regulation was appropriate.

What Sisolak did was attempt to avert potential adverse financial impact for those who carry health insurance.

We highly recommend the governor keep a close eye on the effects of his order lest it have unintentional adverse affects on the availability of testing and potential vaccines or treatments for the disease. Dictating the price of things in the marketplace has been known to deter availability of goods and services when adequate compensation is not forthcoming.

There has been plenty of anecdotal evidence over the years that so-called anti-price-gouging laws merely limit the supply of necessary goods and services in a crisis.

For example, according to the American Institute for Economic Research, in 2005 a Kentucky man took time off from his job, bought 19 power generators, rented a truck and drove to hurricane-ravaged Mississippi intending to sell the generators at twice the price he paid to cover his costs and make a profit. Police confiscated his generators for price gouging, held him for four days and kept the generators in police custody. Those who urgently needed them and would have gladly paid the asking price suffered in the dark instead.

“This pre-emptive emergency regulation should give Nevadans confidence to continue taking preventative measures to stop the spread of COVID-19 as well as seeking necessary medical services and prescriptions without fear of higher than normal costs,” Sisolak was quoted as saying in a press release accompanying the emergency declaration. “Protecting Nevadans is my top priority, and adopting this emergency regulation is a critical piece of our broader plan to anticipate and prepare for the potential impacts of COVID-19.”

The press release said the order prohibits a health insurance company from imposing an out-of-pocket charge for an office, urgent care center or emergency room visit for the purpose of testing for the virus. “Additionally, the regulation prohibits insurers from charging Nevadans for the COVID-19 test itself or an immunization as one becomes available and further requires coverage for off-formulary prescription drugs if a formulary drug is not available for treatment,” the press release says.

Sounds confiscatory. If companies are prohibited from recouping their expenses for services provided, how readily available will those services be?

The regulation further requires health insurance companies to pro-actively provide information on available benefits, options for medical advice and treatment through telehealth systems and ways to prevent exposure to the virus.

With only a few cases in Nevada so far such measures may be premature. There have been no reports of insurance price gouging due to the virus that we are aware of, which is what the governor’s emergency order appears to be intended to stave off.

We suggested the commissioner of insurance and health officials keep a close watch on events as they develop to assure these shackles on the free market do not interrupt the availability of necessary services and thus create the opposite effect of what the governor intends.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Source: Editorial: Keep a close eye on enforcement of virus regulations

Diverse “transparency” coalition in Nevada holds government accountable

By Robert Fellner, Nevada Policy Research Institute and Tod Story, ACLU of Nevada

Sunshine Week is dedicated to celebrating the principles of a transparent and accountable government, which makes it the perfect time to announce the launch of the Nevada Open Government Coalition.

The ideologically diverse Coalition was created to continue the success of our efforts to update the Nevada Public Records Act (NPRA) in 2019, and ensure that governments are transparent with the public as we seek information in the pursuit of accountability. The law aims to “foster democratic principles” by requiring that “all public books and public records of a government entity” are open to the public.

The latest example of a government agency trying to avoid their statutory obligations was highlighted in a state Supreme Court ruling from last month.

The case centered around efforts to obtain the results of an investigation by the Clark County School District into reports of inappropriate behavior by an elected school trustee.

While it’s hard to imagine an example of a document that more clearly falls within the realm of public records — the report about the conduct of an elected official seeking re-election was created by a public agency with public money — the school district nonetheless refused to disclose the report in response to a public records request submitted by the Las Vegas Review-Journal.

The newspaper was forced to sue and thankfully obtained the report just two weeks before the election, but only because it had the resources necessary to file a lawsuit.

One reason the newspaper was willing to take on the significant cost of litigation, however, was because of a provision within the Public Records Act that requires the government to reimburse the legal costs incurred by the requesting party, if a court finds that the government did, in fact, violate the law by withholding public records.

Absent this provision, the NPRA would be far less effective because government agencies could unlawfully withhold documents knowing that few organizations would be willing to pay the tens of thousands of dollars it would cost to force the government to comply.

This was precisely what CCSD argued for in its appeal.

Not content with wasting tax dollars to keep the investigation itself secret, the school district engaged in a lengthy appeal asking the Court to require the newspaper to pay its own legal fees.

The Nevada Supreme Court ultimately rejected the school district’s frivolous and self-serving argument. However, the whole ordeal will still end up consuming more than $125,000 of public money that should have gone instead towards education.

More must be done to ensure compliance with the Public Records Act. The importance of this law and government transparency cannot be overstated.

Using the public records law, the Reno Gazette-Journal recently discovered that Tesla defied a court order and search warrant by refusing to allow federal investigators access to their property. Given the enormous subsidies the state has provided to Tesla, the report is of significant public importance, but would never have seen the light of day if not for the public records law.

The Review-Journal used the law to help uncover numerous scandals and examples of corruption that officials would have preferred remained hidden, including failed oversight by the state Dental Board, improper use of government funds at the Las Vegas Convention Visitors Authority that would ultimately lead to criminal charges, and highly questionable activities at the Nevada DMV, where employees are alleged to have sabotaged a botched $75 million computer upgrade in an attempt to obtain bribes.

Thankfully, many public agencies comply with the law without a court order. But as this latest ruling reminds us, some agencies have no problem squandering significant amounts of tax dollars on frivolous legal efforts in an attempt to keep the public in the dark.

By educating, training, and providing resources on government transparency, the Nevada Open Government Coalition hopes to empower citizens with the knowledge and tools they need to hold public officials accountable.

The Coalition will also advocate for legislative changes designed to discourage the type of noncompliance exemplified in the recent CCSD case, which is sadly far too common.

To that end, the Coalition believes that public officials who violate the NPRA should face a penalty for doing so. This would ensure all Nevadans, taxpayers and public officials alike, are treated fairly under the law, while also providing the accountability needed to ensure Nevadans receive the fully transparent government to which they are entitled.

Robert Fellner is Vice President & Director of Policy of the Nevada Policy Research Institute, an independent organization that promotes free markets and individual freedom in the Silver State. Tod Story is the Executive Director of the ACLU of Nevada, which works to defend and advance the civil liberties and rights of all Nevadans. They are founding board members of the Nevada Open Government Coalition.

Source: Diverse “transparency” coalition in Nevada holds government accountable

Editorial: Courts should overturn ‘Red Flag’ law

A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge.

But rather than threatening to flout the law, the better route is the one taken by Elko County commissioners recently and that is to challenge the law in the courts. The commissioners voted to join a lawsuit filed in December by attorneys for NevadansCAN (Citizens Action Network) that argues the “Red Flag” section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional because it violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”

According to the Elko Daily Free Press, at the start of the meeting Elko County Sheriff Aitor Narvaiza declared, “On Jan. 7, 2019, I was elected sheriff of Elko County. I took an oath to protect the constitution of the United States and the constitution of the state of Nevada. I’m here to tell the lawmakers to keep your hands off our guns.”

He was quoted as saying, “Let’s enforce the laws that we have which are reasonable instead of enacting more laws which are unconstitutional. … A great president once said this country cannot be defeated in combat, but it can be defeated within. Right now this country is crumbling, slowly, due to weak-minded politicians and lawmakers who push unconstitutional laws for personal gains and to fill their pockets.”

He received several rounds of applause the newspaper reported.

The litigation appears to have sound legal footing due to a recent unanimous Nevada Supreme Court ruling. The court found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling, opining that a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.

The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial. The unanimous Nevada opinion written by Justice Lidia Stiglich states the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.

The NevadansCAN lawsuit declares, “This (“Red Flag”) law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”

Proponents of such laws often cite the Oct. 1, 2017, mass shooting that left 58 country music concert goers dead in Law Vegas as justification, but neither this “Red Flag” law nor the recently enacted tougher background check law would have prevented that tragedy.

AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.

It must be overturned and litigation is the proper route to do so.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Source: Editorial: Courts should overturn ‘Red Flag’ law

Nevada Supreme Court holds hearing on Pahrump water order appeal | Pahrump Valley Times

A decision on water law and the extent of the Nevada State Engineer’s authority over domestic wells is one step closer to reality, with the Nevada Supreme Court recently holding a hearing to take oral arguments from both parties in the appeal lawsuit filed by the engineer’s office over water Order #1293(A).

A decision on water law and the extent of the Nevada State Engineer’s authority over domestic wells is one step closer to reality, with the Nevada Supreme Court recently holding a hearing to take oral arguments from both parties in the appeal lawsuit filed by the engineer’s office over water Order #1293(A).

The water order was issued in Dec. 2017 as a method of curbing the drilling of new domestic wells in Pahrump’s Basin #162. The order created a new requirement for property owners to purchase two-acre feet of water rights and relinquish them back to the state prior to drilling a new domestic well, unless water rights had already been relinquished or dedicated to the property for that purpose.

This prompted immediate resistance from local property owners, real estate agents and well-drilling companies. Together, those opposing the order formed Pahrump Fair Water LLC and filed a lawsuit with a Nevada district court to halt the order. That court decision late last year to overturn the water order, leading to the state engineer’s appeal of that decision.

The matter has been with the Nevada Supreme Court since early this year, with a stay on the lower court’s decision issued, keeping the order in effect until such time as the Supreme Court renders a decision. The case, #77722, has now been submitted for a final ruling.

Due to the significance of the subject at hand and the wide-ranging impact a decision on the case could have, the decision has been placed in the hands of the “en banc” court rather than a smaller panel. In typical cases, a panel of only three Nevada Supreme Court justices is used to make rulings but for the appeal on Order #1293(A) the entire court of all seven justices is being utilized.

Attorney David Rigdon of Taggart and Taggart, LTD, the law firm representing Pahrump Fair Water, explained that the hearing held on Nov. 5 focused primarily on two central arguments, whether the state engineer needed to provide notice and hold a hearing before issuing the order, and whether or not the state engineer had the authority to regulate domestic wells in this manner in the first place.

“Both sides had what we call in the business a ‘hot bench’ with judges regularly interrupting the presentation to ask questions,” Rigdon detailed when asked to provide a brief overview of what occurred at the hearing on Nov. 5. “Most of the questions about the notice were directed at the state engineer’s attorney, while most of the questions about legal authority were directed at us.”

The Nevada Attorney General’s Office, which is representing the state engineer’s office, declined to provide an overview of the Nov. 5 hearing.

However, Rigdon said he felt both sides had made good presentations but there was no way of telling which direction the justices would ultimately turn. He, Pahrump Fair Water and the state engineer’s office, as well as the many local property owners and other stakeholders involved, will simply have to wait to see how the Nevada Supreme Court rules.

For those who would like to listen to the oral arguments made during the Nevada Supreme Court hearing visit bit.ly/2QAokKH

Docket Number(s): 77722
Date: 11/05/2019 Time: 10:00 a.m. Location: Carson City
Before the En Banc Court
Appearances:
James N. Bolotin
Paul G. Taggart

Start Time Speaker Notes
10:03:42 AM Chief Justice Gibbons Voluntary Disclosure
10:05:11 AM Chief Justice Gibbons Case Called
10:05:44 AM James N. Bolotin As counsel for the Appellant
10:23:57 AM Paul G. Taggart As counsel for the Respondents
10:43:17 AM James N. Bolotin As counsel for the Appellant
10:48:49 AM Chief Justice Gibbons End Argument, Case Submitted

Source: Nevada Supreme Court holds hearing on Pahrump water order appeal | Pahrump Valley Times