Tom Grover

Civil Litigation Attorney ** Las Vegas, Nevada

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What’s the difference between cheating and utilizing skill in a Nevada casino?

October 22nd, 2014 · Uncategorized

Wired has a great story about a couple of local gamblers who happened upon a programming bug in IGT’s ubiquitous “Game King” video poker machine.  The bug allowed the gamblers to essentially replay winning hands, but at much higher stakes.  The gamblers, predictably, took the casinos for undisclosed amounts of money, in the hundreds of thousands of dollars.  According to the story,”[t]he Wynn, where Kane kept four nines on one Game King for days, was the biggest loser at $225,240.”

Wow!

Of course, the attorney for one of the gamblers insists that no cheating was involved.

“All these guys did is simply push a sequence of buttons that they were legally entitled to push,” says [Andrew] Leavitt, Kane’s attorney.

While that argument may be compelling as to the federal computer hacking charges in this case, I’m not sure how convincing it would be as to state law.

NRS 465.083:

It is unlawful for any person, whether the person is an owner or employee of or a player in an establishment, to cheat at any gambling game.

NRS 465.013:

“Cheat” means to alter the elements of chance, method of selection or criteria which determine:
(a) The result of a game;
(b) The amount or frequency of payment in a game;
(c) The value of a wagering instrument; or
(d) The value of a wagering credit.

Based upon the information in the Wired article, there is little question that the gamblers “altered the elements of chance” as to the “result,” “amount of payment,” and the value of the wager.  One of the gamblers essentially admits to as much in the article itself:

“You had complete control over how much you could win,” Nestor says. “If you wanted to go to a casino and win $500,000 in one day, you could win $500,000 in one day.” [emphasis added]

“Complete control” over payouts is the essence of “altering the elements of chance.”  Put in simpler terms, if you’re beating the house over a long period of time, you’re almost certainly altering the elements of chance, and thus, cheating.

Ace Rothstein said it best:

Ace Rothstein: You didn’t see the scam? You didn’t see what was going on?
Don Ward: Well, there’s no way to determine that…
Ace Rothstein: Yes there is! An infallible way, they won!

That said, even though card counting in Blackjack arguably “alters the elements of chance,” (at least relative to the size of the bet), the Nevada Supreme Court has held that card counting is not cheating and thus not illegal:

In contrast, consider the gaming patrons who are specially gifted and can increase the odds in their favor by “card counting.” Or perhaps the patron who notices and takes advantage of a dealer’s habit of play that will occasionally provide an unintended view of the dealer’s cards. Unquestionably, neither category of patron would be subject to prosecution under the statute, although casino management may take 222*222 measures to deny them the right to play. In both cases, the players simply exploit what their skills and the play of the games will afford them. And yet, they are altering the usual criteria, i.e., the characteristic complex or standard of play that determines the frequency of payment.

Lyons v. State, 775 P. 2d 219, 221-222 (Nev. 1989).

So, yes, as it turns out, Alan was exactly right about the legality of card counting:

I am sure that if charged with violating Nevada’s statutes against cheating while gambling, the gamblers from the Wired story would argue their ability to find and exploit the programming bug was a matter of skill akin to a card counter. That said, while finding the programming but may be a matter of skill, simply memorizing the sequence of buttons to push probably isn’t.  This would mean that a person who was simply told about the bug would have a harder time arguing skill than the person who actually found it.

The two were eventually arrested, though the charges were later dropped.

One of the gamblers was busted at the Silverton:

But it all began to unravel the night Kane found himself waiting for a payout at the Silverton. The casino’s head of security stood just outside the slot area. Kane paced and huffed, spun the swivel chair back and forth like a metronome, and complained to passing slot attendants. Finally, three men strode up to him. The head of security directed Kane to an alcove, handcuffed him, and escorted him away from the video poker machines.

It is not widely known, but Nevada casinos enjoy something similar to a “shopkeepers privilege” in that the casinos can arrest and detain suspected cheaters.

From NRS 465.101:

Any licensee or any of the officers, employees or agents of the licensee who has probable cause for believing that there has been a violation of this chapter in the licensee’s establishment by any person may take that person into custody and detain that person in the establishment in a reasonable manner and for a reasonable length of time.

Not surprisingly, this statute has resulted in substantial litigation and a number of opinions from the Nevada Supreme Court.  If the casino detains someone wrongfully, they could be sued for false imprisonment, among other claims.

When the old Sahara closed down in 2011, they let the public roam free through the entire property in order to sell off the furniture and equipment throughout the building.  A buddy and I enjoyed exploring the property, including the count room.  Near the count room was essentially a jail cell.  It was a large cage, made up of a chain link fence on all sides, with a bench.  I presume this is where the house detained cheaters.

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In Nevada, witnesses to a will must sign in the presence of the testator

October 8th, 2014 · Uncategorized

Unfortunately, fraud, or attempted fraud, is all too common among some heirs, beneficiaries and family members when an Estate is probated.  Unscrupulous individuals have proven able and willing to attempt to forge a will.  There are several safeguards against this fraud found in Nevada’s statutes.  One safeguard requires a valid will to be witnessed and signed by two individuals.

NRS 133.040 provides as follows:

No will executed in this State, except such electronic wills or holographic wills as are mentioned in this chapter, is valid unless it is in writing and signed by the testator, or by an attending person at the testator’s express direction, and attested by at least two competent witnesses who subscribe their names to the will in the presence of the testator. [Emphasis added].

Note that the witnesses must be contemporaneous to the execution of the will (ie, “in the presence of the testator” – the “testator” is the person signing their own will).  In other words, a person who attempts to probate a will, cannot produce attesting witnesses after the fact.  To do so would be to undermine the witness requirement and to reduce the barrier to probating forged and fraudulent wills.

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Recap of April 29 debate between Niger Innis and Cresent Hardy

April 30th, 2014 · Uncategorized

Cresent Hardy and Niger Innis debated one another tonight at Temple Beth Sholom in an event sponsored by various civil and Jewish groups. The event was well attended, held in Temple Beth Sholom’s beautiful sanctuary. The organizers projected real time tweets from the audience as the debate progressed, which was a lot of fun.

Overall Impressions

The contrast between the two candidates in terms of delivery, style and execution could not be more stark. Innis, a frequent talking head on conservative broadcast media, was prepared, polished and engaging. In contrast, Hardy wasn’t polished. Innis continually attacked Hardy, some of the attacks utterly absurd, but, as a debate tactic this was extremely effective. Innis kept Hardy on defense, forcing Hardy to explain and defend himself throughout the night.  The first rule of these kinds of debates is that if you’re explaining and defending, you’re losing. And Cresent Hardy was losing tonight. A lot.

That said, Hardy was authentic (even though I often disagreed with him). His answers were honest and too detailed. Innis, who is more experienced in sophistry, preyed on Hardy’s candor by using it to keep him on the defensive.

While I think that substantively Niger Innis is a a pandering fake, tactically there is no question in my mind that he won this debate. In future debates, Hardy needs to be better prepared, better coached and more polished.

In his closing remarks, Hardy did land a direct blow by noting that Innis has only voted four times since 2000, contrasted with Hardy’s actual years of service.  This was very effective and very powerful. But this was too little, too late.

The recap below doesn’t cover everything, just a highlight reel of sorts (of what was interesting to me).

Personal Finances

The nastiest parts of the debate came when each candidate brought up the finances of the other.  Hardy attacked Innis’ personal finances, questioning whether they disqualify Innis from serving.  Innis, having attacked Cresent Hardy personally all night on virtually every issue, became morally indignant that he was being personally attacked.  Another moment of unintentional humor.  The truth is that Niger Innis’ finances display a decade long patter of evading and avoiding personal responsibility.  Innis may be a skilled public speaker, but his financial irresopnsibility and incompetence should raise the eyebrows of voters.  Innis even compared himself to the regular Nevadan hurt by the recession, but Innis’ financial problems predate the recession by many years.

From Ralston Reports:

These problems date back more than a decade to when he lived in New York City and include a $8,968 IRS tax lien in 2005, a $11,430 New York tax lien in 2003, a $9,953 IRS lien in 2002 and the largest one, a $57,255 tax lien in New York in 2003. They also inlcude a $1,680 judgment in a suit by Ford (his car was repossessed), a $1,047 judgment with AMEX, $9,518 with his New York City landlord (he was evicted) and a $9,953 judgment after he defaulted on his student loans.

Evictions? IRS tax liens? Civil judgments? What a winner!  This guy’s credit is so pathetic he probably couldn’t qualify for a used car loan, and yet he wants us to elect him to a position where he gets to vote on the largest budget in the world?  In the immortal words of John McEnroe, Mr. Innis, you cannot be serious!

The absurdity of electing Innis to Congress reminds me of that great, old P.J. O’Rourke quote, “Giving money and power to government is like giving whiskey and car keys to teenage boys.” Niger Innis campaigning on fiscal responsibility is like Lindsay Lohan giving a seminar on sober living. Then, Innis invited the audience to Google him. Given his financial history, this raises the serious question of whether Niger Innis has googled Niger Innis.

Anytime that Hardy brought up Innis’ finances, Innis countered with a one-two punch of righteous indignation of the “politics of personal destruction” and references to Hardy’s corporate bankruptcy.

From the Review-Journal:

Republican Assemblyman Cresent Hardy is running for Congress as a small business owner who “knows what it takes to create jobs, make payroll, and meet a budget,” according to his campaign website.

But after 20 years in business, in January 2012, his Mesquite-based construction company, Legacy Construction & Development, Inc., declared Chapter 11 bankruptcy with 73 creditors owed more than $8.1 million.

Hardy on Tuesday blamed the recession, which knee-capped the construction industry, shrinking his workforce from more than 300 in 2006 to 70 in 2010. He said the company is paying all its debts while under reorganization. Last year he sold the business to his partner to focus on his campaign to unseat U.S. Rep. Steven Horsford, D-Nev.

“All the vendors have been paid back ahead of schedule,” Hardy said in an interview, although he added that a handful of vendors have yet to be paid in full. “The key thing for me is the jobs we saved.”

Innis effectively pounded Hardy on this bankruptcy, presenting it as a personal bankruptcy and a personal moral failing by Hardy.  Hardy did not effectively counter, which is unfortunate, given that this is an outrageous false equivalency by Innis.

First, Hardy’s bankruptcy wasn’t personal, unlike Innis’ problems.  Second, Hardy’s corporate bankruptcy is a single instance whereas Innis’ problems are an established pattern of irresponsibility over several years, including a failure to pay his taxes. Third, is it really that remarkable that, in the wake of the recession, the debts of a Clark County construction company were restructured (not discharged)?

All of these distinctions were lost in the debate because Innis kept throwing punches and Hardy kept taking them.

Marriage Equality

The candidates were asked for their positions on marriage equality, as well as their thoughts on the Nevada Republican Party’s removal from the platform of opposition to marriage equality.

Recall that Hardy absurdly compared ENDA to racial segregation.

In some expert-level pandering, Cresent Hardy affirmed that he believes marriage is exclusively between a man and a woman based upon his “righteous” religious beliefs received from “Elohim above.”

Surprisingly, Innis lead out with a response that praised the advocates of marriage equality. Innis also said that changing the platform was the right thing to do.  Then, when  pressed, like Hardy, he too took a position against marriage equality. Basically, Innis took every side of the issue. He is for the change to the Nevada Republican Party platform. He admires the advocates of marriage equality. But he’s also against marriage equality. This was an extraordinary act of mental contortion that would leave even Mayor Quimby in awe.

Israel

Of course, the candidates were asked about Israel generally, and John Kerry’s apartheid comments specifically.  In the course of this discussion, Niger Innis made the absolutely embarrassing assertion that the Palestinians, whom Innis referred to as “Israeli Arabs,” were the “freest” Arabs in the world, proving that either Innis has never heard of the Gaza Strip, or, more likely, that he is just a shameless panderer willing to say any outrageous thing to any group depending on what is to his advantage in the moment.

If Innis gets the nomination, expect Democrats to be all over this video footage.

Cliven Bundy

In a moment of unintentional humor, Niger Innis, who was an outspoken supporter of Cliven Bundy’s armed insurrection, claimed that he was a key player in “defusing” the situation in Bunkerville.  This is the kind of unflinching bullshitting that comes so effortlessly to Niger Innis. One week, he lends political support to those who are ratcheting up tensions and an armed stand off, and the next, when convenient, the’s the guy who is the peacemaker.

Cresent Hardy did flat out state that Steven Horsford is fabricating allegations that militia members are running armed check points in Bunkerville.  Given that I haven’t seen any pictures or videos of these checkpoints, I tend to share Hardy’s skepticism.

Taxes

Innis has borrowed a meme from Sue Lowden’s campaign against Mark Hutchison, namely that Hardy voted for dozens and dozens of tax increases. This was one of the few retorts that Hardy handled well. In his defense, Hardy brought up the “marriage tax” which is really just a $25 fee for a license, asking Innis whether it would be fair for taxpayers to pick up the cost instead of the actual users.  Innis didn’t have a response. While both Hardy and Hutchison are legitimately vulnerable for voting for tax increases, Innis and Lowden over reach by mischaracterizing some fees, like the marriage license fee, as a tax increases.

Immigration

The immigration discussion was mostly unremarkable. Cresent Hardy did state he supports a path to citizenship for those brought here while children, which is a level of pragmatism that is sadly often absent in these red meat primary debates.

Conclusion

I walked into the debate less than enthused about either candidate.  I am troubled by the fact that both are 20th century social conservatives. However, after tonight, I am absolutely convicted that Niger Innis is a masterful bullshitter who will say anything to anyone to get elected.  Within the same moment he will take all sides of an issue.  He is a shameless panderer with a horrible personal financial history.  He has no idealogical core. He is rudderless. He is bad for the Republican Party and I sincerely hope he does not get the nomination.

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EDCR 2.20(e): The importance of filing a timely Opposition

April 23rd, 2014 · Uncategorized

By Thomas R. Grover, Esq.

Deadlines are ubiquitous in litigation. One, often overlooked, is the deadline by which a party must file an Opposition to a Motion. In Nevada’s Eighth Judicial District (Clark County), that deadline is set by EDCR 2.20(e):

Within 10 days after the service of the motion, and 5 days after service of any joinder to the motion, the opposing party must serve and file written notice of nonopposition or opposition thereto, together with a memorandum of points and authorities and supporting affidavits, if any, stating facts showing why the motion and/or joinder should be denied. Failure of the opposing party to serve and file written opposition may be construed as an admission that the motion and/or joinder is meritorious and a consent to granting the same.

A couple of years ago, my firm represented Business A in a contract dispute with Business B. Early in the litigation, we filed a Motion to Strike the pleadings of Business B. Opposing counsel did not file an Opposition within 10 days, as required by EDCR 2.20(e). The District Court Judge shocked all of us by granting Business A’s Motion to Strike sua sponte before the hearing date.

Here’s the Minute Order:

Having examined the Motions and noting no other Opposition has been filed and good cause appearing, COURT ORDERED, Motion to Strike Defendant’s Answer and Counterclaim is hereby GRANTED pursuant to EDCR 2.20(e). Matter set for April 24, 2012 is VACATED pursuant to EDCR 2.23. Order to be submitted to the Court within 10 days from this minute order, or not later than April 27, 2012 pursuant to EDCR 7.21.

Ouch.

Opposing counsel tried to undo the damage by filing a motion for reconsideration, however, the district court judge had none of it and denied reconsideration. I have since been told that this particular judge frequently grants motions which are not timely opposed.

As it turns out, the Nevada Supreme Court has affirmed the discretion of district judges who grant motions which are not timely opposed.

In Las Vegas Fetish & Fantasy v. Ahern Rentals, 182 P. 3d 764 (Nev. 2008), a third party vendor, Ahern Rentals (“Ahern”) prevailed in a lawsuit against Las Vegas Fetish & Fantasy (“LVFF”) for monies owed for rentals provided to a Halloween Party, among other claims. Following trial, Ahern brought a Motion for Attorneys’ Fees & Costs, which LVFF did not oppose timely.  The District Court, pursuant to EDCR 2.20(e), exercised it’s discretion and granted the motion.  LVFF appealed the award of fees, arguing “that the district court abused its discretion in granting Ahern’s motion for attorney fees after LVFF failed to file a timely opposition pursuant to EDCR 2.20(c)…” Las Vegas Fetish & Fantasy, at pg. 768. The Nevada Supreme Court held as follows:

…since nothing in the record suggests that the district court abused its discretion in treating LVFF’s failure to file a timely opposition as an admission that Ahern’s motion was meritorious, we affirm the district court’s attorney fees award

The bottom line is that the deadline by which an opposition to a motion must be filed is serious. The non-moving party has 10 days to oppose the motion. By filing a late opposition, a party and their counsel take the risk that the Court may grant the motion sua sponte, as described in the cases above.

Thomas R. Grover, Esq. is a civil litigator in Las Vegas, Nevada.

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The libertarian case against Cliven Bundy

April 15th, 2014 · Uncategorized

Believe it or not, Cliven Bundy and I have a lot in common.

We both claim to believe in limited government. We both have a deep appreciation for our Mormon pioneer heritage. In fact, both of us can look to Mormon pioneer ancestors who helped settle and tame the Mojave Desert.[1]

That’s why it’s like nails on a chalk board to hear Bundy invoke ideals of limited government as he stands off – literally – with the federal government. Cliven Bundy isn’t a champion of libertarian ideals, but rather a limited government charlatan who has cloaked his criminal activity in libertarian rhetoric. It saddens me to see so many libertarian friends and politicians rally around Bundy.  As libertarians, Bundy deserves our scorn, not our support.

This matter is simple.  Cliven Bundy is a deadbeat who has refused to pay his range fees for the past twenty years. He’s a scofflaw for, in direct defiance of court orders, refusing to remove his cattle from land that does not belong to him.

That doesn’t stop Cliven Bundy from wrapping himself and his indefensible acts in the flag.  From the Las Vegas Sun:

Bundy said he stopped paying grazing fees because he believes the land is owned by the state and that he has a right to use it for his cattle.

When challenged about why he stopped paying, Bundy said he attempted to pay what he considers the proper authorities — not the BLM.

The fight, Bundy said, has become more than just about cattle.

“I feel it’s a constitutional thing; it’s a state sovereignty thing; it’s a county government thing,” Bundy said.

Fortunately, ownership of public lands isn’t determined by the ignorant delusions and legal fantasies of a rogue Bunkerville rancher.  In fact, this issue is explicitly resolved in the Nevada Constitution:

…the people of Nevada to form a constitution….do agree and declare, that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States;

Emphasis added. As part of our admittance to the Union, we, the citizens of Nevada, disclaimed title to all unappropriated public lands to the federal government. Legally – and constitutionally – it doesn’t matter whether Bundy’s Mormon ancestors grazed their cattle on the same land.  It belongs to the federal government.

Even more, as noted by the Atlantic, Nevada’s constitution includes a “paramount-allegiance clause,” wherein “the Paramount Allegiance of every citizen [of Nevada] is due to the Federal Government in the exercise of all its Constitutional powers…”  Additionally, “the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.” Emphasis added.

From the Atlantic:

Nevada isn’t the only state with a paramount-allegiance clause. Republicans added similar clauses to Reconstruction-era state constitutions throughout the South, although few survived subsequent revisions after federal troops departed. Even the states that retain the phrase “paramount allegiance” today, like North Carolina and Mississippi, don’t share Nevada’s explicit constitutional openness toward armed federal intervention to enforce it.

The Atlantic then notes that the Nevada constitution predates the arrival of Bundy’s Mormon pioneer ancestors by a full two decades, concluding, “It’s doubtful even the Nevada Constitution will change their minds—if legal and constitutional arguments could persuade the militia movement, there might not be a militia movement.”

Ouch.

Backed into the corner of this legal reality, some of Bundy defenders pivot from a misstatement of what the law is to an argument of what the law should be.

John Hinderaker at Power Line makes just such an argument:

The bedrock issue here is that the federal government owns more than 80% of the state of Nevada. This is true across the western states. To an astonishing degree, those states lack sovereignty over their own territory. Most of the land is federal. And the federal agencies that rule over federal lands have agendas. At every opportunity, it seems, they restrict not only what can be done on federal lands, but on privately-owned property. They are hostile to traditional industries like logging, mining and ranching, and if you have a puddle in your back yard, the EPA will try to regulate it as a navigable waterway.

I’ll agree that it would be better policy to have the State of Nevada own and manage public lands than the federal government. However, that is completely irrelevant to Bundy’s situation.  Bundy doesn’t get to wiggle out of accountability to the law by invoking the law as he thinks it should be. We are all governed by the law as it is. Further, we don’t make these kinds of changes to law in response to or during an armed stand-off in the desert.

Imagine the year is 1975. The nation has a national speed limit of 55 MPH. Jim gets a ticket for driving 75 MPH in a 55 MPH zone. Jim doesn’t get to avoid accountability under the 55 MPH law by arguing the speed limit should be 75 MPH. Similarly, Cliven Bundy and his defenders can’t excuse his misconduct by mounting a defense on what he thinks the law should be. Like all of us, Cliven Bundy is accountable to the law as it is.

In response to AG candidate Adam Laxalt’s incredulous claim that the standoff, “is yet another example of why it’s important for Nevadans to gain more control over our lands and the decision-making process in how it is managed,” Steve Sebelius at the Las Vegas Review-Journal correctly noted as follows:

Here, Laxalt descends into the ridiculous. This is not about federal control of Nevada lands. This is a case of a rancher refusing to pay fees that are entirely legal and which all other law-abiding ranchers pay. Laxalt must know this. But instead of characterizing it properly, he panders to a conservative base in order to get votes. No, that’s not unusual, but it is always despicable.

Indeed.

This leads to the very core of why Bundy’s actions can’t be defended by libertarians. Critics of libertarianism often conflate our philosophy with anarchy. This a major libertarian pet peeve.

Anarchists shun the very need for the state. Libertarians, in contrast, recognize that the state is necessary to define and protect property rights, which, in turn, are required for a voluntary market based economy.

Bundy flouts these libertarian principles.

As libertarians, we balk at government subsidies and bailouts of businesses. We believe the government should not intervene into the market on behalf of one person or entity over another. And yet by taking grazing rights without paying for them, Bundy’s cattle operation is receiving a de facto federal subsidy.

Bundy has shown a disregard for legally defined property rights by grazing his cattle on land that doesn’t belong to him without authorization or payment.

Even after a Court of law ruled against Bundy, Bundy doubled down on his cowboy anarchy.

From Politico:

“My Clark County sheriff, Doug Gillespie, didn’t finish his job,” Bundy said. “What the mandate from we the people was, Saturday was to disarm the park service and BLM. And when he didn’t do that, and his time was up, then we the people took it into our hands and had to do the sheriff’s job and the governor of Nevada’s job.”

Bundy said his supporters marched “and they faced an army of bureaucrats, and they faced those guns with courage and faith and much danger, and they backed those bureaucrats down and they run out of this county into Utah.”

Bundy prevailed in driving the BLM out – temporarily – not because the government enforced a property right in his favor, but because he had more guns. Like medieval times, might made right.

From Elaine Hurd on Let’s Talk Nevada:

Cliven Bundy won. Through threats of violence fueled by armed militias called in by our local tea party “patriots,” he won. The Bureau of Land Management was forced to dismantle their operation to rectify 20 years of his lawbreaking with court orders to back up removal of his cows from public land because Clark County Sheriff Gilllespie made the BLM stand down. He didn’t want a shoot-out on his watch.

Law abiding citizens, especially libertarians, should be offended that in the United States in 2014, an anarchist like Cliven Bundy has been able to subvert the law through threat of violence.

Even so, some politicians have turned their back on the rule of law. Niger Innis, for example, has made the preposterous claim that “Cliven Bundy’s fight is a civil rights issue,” in this Las Vegas Review-Journal article. Explain to us, Niger, how refusing to pay range fees for 20 years, thus taking a resource that doesn’t belong to Bundy, and defying federal court orders, is a “civil rights issue.”  Ridiculous. Anyone with basic critical thinking skills should recognize that this is an issue of (1) theft by a deadbeat and (2) contempt of court by a scofflaw.

The core ideals behind libertarianism include personal property rights and individual responsibility. Bundy’s actions are in direct defiance of both ideals. He is a deadbeat who refuses to pay for the use of property that does not belong to him. He maintains that he is entitled to a de facto federal subsidy for his cattle operation. He insists that he is literally above the law and does not have to obey court orders, like the rest of us.  No libertarian, in good conscience, can or should support Cliven Bundy.

………..

[1]Bundy’s family settled what is now the northeast corner of Clark County, Nevada. My great (x3) grandfather, Charles C. Rich, for whom my newborn son is named, lead the Mormon settlement of San Bernardino, California.

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Sue Lowden may get what she wants, and she may not like it

April 10th, 2014 · Uncategorized

Sue Lowden continues to goad Mark Hutchison into more broadcast debates.  Lowden’s latest effort is a very clever letter she penned to Mike Slanker, Hutchison’s campaign manager.

From Ralston Reports:

Dear Mike,
Thank you for allowing your client, Sen. Mark Hutchison, to debate me on Nevada Newsmakers next month. I’m writing this letter to respectfully ask that you please change your mind and allow your client to debate me on several other TV and/or radio stations in the Nevada lieutenant governor race.

Won’t you please give Mark another try? I’m sure he’ll do better next time; he just needs you to show a little confidence in him. And besides, how’s he ever going to learn if you don’t let him play? Come on, Mike. Put him back in the game.

The letter is effective for the obvious reasons – it portrays Hutchison as incapable and afraid. However, the real genius  is asking Mike Slanker to give Hutchison “permission” to come out and play. Within the Nevada GOP civil war, a major criticism of the establishment is that professional consultants, like Slanker, usurp power from the grassroots and even elected officials themselves. Recall that Michael McDonald handily won re-election over Governor Sandoval’s hand picked candidate, Robert Uithoven, by casting the race as a battle between the base and professional consultants. Through this letter, Lowden is following the same narrative, arguing that Mike Slanker is really in charge and that Hutchison is just a puppet.

From Steve Sebelius at the RJ:

So not only is Lowden insinuating that Hutchison is afraid of debating (and of a girl, to boot!) but she’s insinuating that he’s not even man enough to make decisions pertaining to his own campaign. While it’s essentially the equivalent of calling Marty McFly “chicken,” and expecting him to do whatever he’s been challenged to do, it’s also a blatant attempt to politically emasculate Hutchison before Republican primary voters, and goad him into making a big mistake.

If Hutchison does agree to more debates, don’t be surprised if Lowden challenges him to “man up.”

Of course, Lowden’s narrative skips over some obvious tactical realities. As the financial underdog, Lowden has more to gain and less to lose from televised debates. Hutchison meanwhile, understandably is unwilling to concede his media advantage by giving Lowden free exposure through more debates.  So Lowden is left to bait him into giving her the free publicity by goading him, as with the letter above.

Hutchison’s response has been to remind voters, through Twitter, that there have been five debates so far:

Of course, only one of those debates has been broadcast, a fact which Lowden enthusiast Chuck Muth was more than happy to remind Hutchison of:

The 20 minute debate on Ralston Reports, wasn’t really a debate. It was 20 minutes of three strong personalities talking over each other. Substantively, it wasn’t instructive to voters. However, Hutchison lost his cool, which became the take away of the otherwise muddled event.

I practice in the same area of law as Hutchison – trust and estate litigation. Over the past three years, I have seen him argue on Fridays in Probate Court many times. He is very skilled.  He is more than capable of easily taking down Lowden in a debate.  Lowden underestimates him at her own peril.  In a debate that is longer and more substantive, Lowden, skilled in her own right, will be at a substantial disadvantage.  Lowden’s campaign has relied heavily upon hyperbole, misdirection and misrepresentations, which are less likely to stand up in a longer format debate.

Hutchison needs to agree to more debates. If he doesn’t, he will continue to appear to be hiding from Lowden or incapable or afraid to take her on.  He should agree to debates with longer formats where substantive, factual debate is more likely to take place.  I would think that ideal outlets would include KNPR’s State of Nevada, Nevada Newsmakers, Vegas PBS and the Alan Stock Show on KDWN.

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Nevada Court of Appeals

April 4th, 2014 · Uncategorized

John L. Smith has a great piece in today’s R-J about the need for a Court of Appeals in Nevada:

With 82 District Court judges deciding cases, there’s no shortage of appeals to the high court. In fiscal year 2013 alone, there were 2,333 cases filed. The court, justices and litigants agree, is simply overwhelmed by one of the highest ratios in the nation. That load can’t help but translate into delays, whether the subject before the court is a child custody dispute or a complex litigation.

The massive Supreme Court case load creates even more problems.

When advising a client whether to proceed with litigation, I always check (1) the relevant statutes and (2) the case law interpreting those statutes. When the law is clear, parties are more likely to settle out of Court or avoid litigation entirely.

However, because Nevada is young, and, more importantly, because the Supreme Court is so overwhelmed, there is often little or no case law for any given Nevada statute.  This case law comes through “published opinions” from the Nevada Supreme Court.   Of the over 2,000 cases submitted to the Supreme Court each year, only about 100 are “published,” thus becoming binding precedent on the district courts.  Published opinions make Nevada law more predictable for judges, lawyers, litigants, businesses and the general public.  Decreased uncertainty about what a statute means litigation, which is extremely expensive, is less likely.

A Court of Appeals could handle more routine appellate matters, leaving the Supreme Court to publish more opinions.  This would make Nevada statutes more predictable, and in turn decrease litigation for Nevada families and businesses.

If you think the world is too litigious, then you should support a Court of Appeals.

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Sue Lowden needs to clarify her role (if any) in rape fundraising letter

March 30th, 2014 · Uncategorized

SEE UPDATES BELOW

Sue Lowden needs to clarify her role (if any) in a fundraising letter which leverages the survivors of serial rapist and murderer James Biela for campaign contributions to Lowden’s campaign.

The intense Nevada Republican Primary race for Lt. Governor went nuclear today. Steve Sebelius at the Review-Journal broke the story about a letter from Amanda Collins, a rape survivor, attacking Senator Mark Hutchison, who is facing off against Lowden, in the Lt Gov. Race. The attack against Hutchison is for allegedly failing to support a conceal-carry campus bill in the last session.

From Sebelius’ article in the RJ:

From the very first line, the letter grabs readers as sexual assault victim Amanda Collins tells her horrifying story: “He put a gun to my head, clicked off the safety and told me not to say a word … before he brutally raped me,” she writes. “Those were the worst 10 minutes of my life. And thanks to lawmakers such as Nevada state Sen. Mark Hutchison, your mother, daughter, sister or wife could go through the same hellish nightmare!”

The letter is incendiary to say the least. Sebelius said the letter could be one of “most brutal [fundraising pitches] ever in Nevada.”

The letter criticizes Hutchison for not sponsoring a campus-conceal-carry bill in last year’s session, but seems to conflate sponsorship with support.  Senator Hutchison did not sponsor the bill, but the bill also never reached the Senate, so he never had an opportunity to vote on it.  While it is honest to say Senator Hutchison did not sponsor the bill, it is not accurate to claim he did not support the bill.

Election law attorney Daniel Stewart noted this distinction:

Indeed. More from the letter:

But when Sen. Mark Hutchison was asked to sign onto the bill, he declined – even though six of his GOP colleagues had already joined the effort – saying he first had to check with Senate Minority Leader Michael Roberson!

The letter includes this image of a handwritten note, an exchange that allegedly took place between Senator Hutchison and Assemblywoman Michelle Fiore: From the letter:

Fiore: “Will you sign my campus carry (bill) this morning?” Hutchison: “Roberson wants to caucus on this beforehand — asked us to wait to hear debate.”

The letter raises a lot of (political) questions:

  1. Assuming the letter is mailed or will be mailed, who paid for it? The letter itself does not indicate as much. I am not an election law attorney, but it seems this question could implicate campaign finance law. I will leave that question to my colleagues who specialize in this area of law.
  2. How did the author(s) of the letter get the handwritten note (purportedly) from Senator Hutchison?
  3. How much involvement did Sue Lowden’s campaign have in the letter, directly or indirectly?

Reaction to the letter is red hot on Twitter, from both the right and left. From the left, commentator Jon Ralston speculates* that his nemesis, conservative activist Chuck Muth is responsible for the letter:

Muth didn’t admit to involvement in the letter, but fired back at Ralston:

Whether or not Muth was involved directly with the letter, he didn’t skip a beat, sending out an email at 5:16 PM tonight:

Reno rape survivor Amanda Collins has signed a blistering fundraising letter for conservative Republican lieutenant governor candidate Sue Lowden, slamming Lowden’s moderate GOP opponent, Sen. Mark Hutchison, for refusing to co-sponsor a “campus carry” bill in the 2013 legislative session.

Muth’s email links to MarkHutchison.Info, an anti-Hutchison site run by Muth. The linked page recapitulates the same attack on Hutchison, with this invitation:

Click the button below if you’d like to make a donation to Sue Lowden’s campaign…

James Biela was Collins’ attacker. Subsequent to attacking Collins, Biela went on to murder Brianna Denison. From Wikipedia:

Brianna Zunino Denison (March 29, 1988 – January 20, 2008) was a college student from Santa Barbara, California, who was abducted on January 20, 2008 from a friend’s house in Reno, Nevada. Her body was discovered on February 15, 2008 in a field near a Reno business park after being raped and murdered. A man named James Biela was convicted of the murder.

The letter references Denison’s rape and murder:

During the 13 months after my attack, the man who sexually assaulted me also raped at least two other women, killing one of them… 19-year-old Brianna Dennison. [sic] … No, unlike Brianna, I wasn’t murdered. But the young woman inside me died on that parking garage floor. And who I would become was forever changed. … And the fact that [Biela] is now on death row is of little comfort…and won’t bring Brianna back. … Had I been allowed to carry my weapon with me on campus, there is no doubt in my mind that at some point I would have been able to stop my attack…which would have prevented at least two other rapes and Brianna’s murder. … This is, literally, a life-or-death issue…as Brianna Dennison’s [sic] murder attests. … Close your eyes for a minute…and imagine feeling the terror I felt…if it was you or one of your loved ones who were in my shoes or Brianna Dennison’s [sic] shoes. And then join me in supporting Sue Lowden for lieutenant governor by returning to her as large of a donation as you can to financially support her campaign…$1,000, $500, $250, $100 or whatever you believe is an appropriate amount.

I wonder how Denison’s family feels about using Brianna’s murder as the lead up to a pitch for campaign donations in a political race.  Were they consulted before the letter went out? For what it’s worth, Denison’s family founded the “Bringing Bri Justice Foundation.” You can visit the website here. From the Foundation’s website:

These are the focus areas of the Foundation’s efforts:

  • ~ DNA Legislation
  • ~ Brianna Guides – kits designed to aid those with missing loved ones
  • ~ Community Personal Safety

The “about” page provides more detail as to the “community personal safety” prong:

Community Personal Safety:

  • Safety awareness kits
  • Community safety events
  • ASUN Campus Escort Service – UNR student courtesy vans

Noticeably absent? Any reference to conceal-carry legislation, or guns at all. This really drives the question of whether Denison’s family was consulted before the letter went out. It is an unforgivable sin if this letter sent without the knowledge or consent of the Denison family. Regardless of how you feel about conceal-carry laws or the Lt. Gov. race, I think we can all agree that it is inexcusable to leverage for political purposes, and without consent, the unimaginable tragedy of the Denison family. If the letter was sent without the knowledge and blessing of the Denison family, a very public, very groveling apology is in order from every single person even remotely involved with the letter. All of those responsible for the letter should step forward and answer for it.  Sue Lowden needs to be perfectly clear as to her role (if any) behind the letter. If she had nothing to do with the letter, she should make an unqualified denunciation of it. Until today, I have been undecided in the LG race. However, if Sue Lowden can’t show the basic sense of moral decency to denounce the letter, I just can’t see how I could vote for or support her. *Ralston refuses to address Muth directly on Twitter, instead opting for the #CitizenOuthouse hashtag, a wordplay on Muth’s Citizen Outreach. UPDATE #1 (SUNDAY, MARCH 30, 8:00 AM): Sin City Siren has responded to the letter, here. SSS has some really great observations on this.  Before I get to those, however, it seems SSS made the same initial assumption about the letter that I did – that it was “released by Lowden’s camp.”  While the letter asks for money to be donated to Lowden’s campaign, it doesn’t actually indicate who is responsible for disseminating the letter, or, if the letter is mailed, who paid for it. It’s possible the Lowden herself had nothing to do with it. Of course, if she has clean hands she must step forward and say so immediately, coupled with an unqualified denunciation of the letter. From SSS:

As a fellow survivor, I respect Collins’ ability and freedom to decide how and when (or if) to share her story with others… … Make no mistake, there is a power in speaking our truth and I would not deny that to any survivor, whether I agree with them politically or not. Just because we are both survivors doesn’t mean that Ms. Collins and I will see eye-to-eye politically or philosophically, but I will not stand in her way to speak her truth. And when she passionately testified for Assembly Bill 143 during the 2013 Legislature, you may recall I didn’t say anything. That’s because even though I disagree with her philosophy on guns, I respect her as I hope fellow survivors do me. (We’ll circle back around to the gun thing.) It doesn’t cost me anything to show even basic solidarity with a fellow survivor.

This is completely fair. I don’t think anyone is calling into question Amanda Collins, nor should they. It’s her story, her experience and her truth. She gets to share it how she wants to. SSS then lowers the boom:

Sue Lowden gives zero fucks about concealed weapons on campuses — the fact that Lowden herself has a concealed weapons permit does not mean she backs them on campuses — or helping sexual assault survivors. (I found nothing that suggests Lowden spent any time in her one term in the State Senate to help rape survivors or fund prevention programs.) The only thing Lowden cares about here is herself, her campaign, and her dwindling war chest. (Need I remind you that Lowden is still making deals with creditors for failing to pay her bills from her last campaign?) This is the Chicken Lady’s attempt to not only toss a few, juicy, controversial red-herrings into the fray, but to gain some attention (and money?) while she’s at it.

Again, right now we don’t know that Sue Lowden has any involvement directly or indirectly with the letter. But we need to know. Now. What knowledge/involvement did Lowden have? As to the actual issue of guns SSS has this take:

My philosophy on guns is that it is not just a right but a great responsibility and there are far too many feckless idiots who take no responsibility. I believe we need far more education about guns and responsible gun-ownership, because yes, I will go on blast about two-year-olds who accidentally kill their siblings because they are allowed to play with “toy” rifles that are left unlocked in a living room corner. You cannot convince me that is an example of responsible gun ownership. (Indeed, almost 200 children died from gun violence nationwide in the year following the mass school shooting in Sandy Hook.) While pro-gun folks like to say an armed citizenry is a safe one, gun violence statistics tell a very different story. When it comes to concealed weapons, I have grave reservations about their use in certain public settings, including schools (higher and lower), precisely because of situations like Amanda Collins’. Her attacker had a gun and went on to rape others — because 9 out of 10 college rapists are serial rapists. So, I see guns on college campuses as more enabling of a culture that turns a blind eye toward sexual assault prevention in the first place.

This is not how I see it, but is nonetheless a thoughtful and reasonable position. My feeling is that gun violence is an incredibly complex problem and that government is not very effective tool in mitigating the violence. I do at least somewhat agree that CCW are not likely to substantially curtail gun violence.  My feeling is that CCW do little to perpetuate or prevent violence, and as such, I’ll err on the side of individual liberty to carry. Finally, SSS makes this observation, “People who have survived the brutality and trauma of sexual assault deserve the dignity of not being labeled victims.” She is right. As such, I’ve edited this post to reflect as much.

UPDATE #2 (SUNDAY, MARCH 30, 10:33 AM): Well, Jon Ralston has the answer as to Lowden’s involvement:

So with that, Sue, as a Republican primary voter, I simply can’t vote for you. Not only was the letter sent out by Lowden’s campaign, they wrote it, with edits from Collins after the fact.

One serious question remains: Did Sue Lowden get the permission of the Denison family before using her rape/murder in the lead up to the pitch for money.

Well, Sue, did you?

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Testing

February 22nd, 2014 · Uncategorized

This is a test.

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Songs About Nebraska

April 21st, 2011 · Uncategorized

And of course…

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