So, every election year, I write the Tall, Arrogant Bastard’s voting guide. This comes with some caveats. First, my thoughts are no substitute for your own. I would be flattered if you considered my viewpoint, bit it is only offered as one of many. Second, I make a reasonable effort to be thoughtful and reasonable in my evaluation and analysis, but there are only so many hours in the day, so it is entirely possible that I haven’t thought of something. Third, I am almost certainly not certain about the opinions stated than as I will present myself as being. The point is, please take this only as seriously as you want. Ain’t nobody making you read this.
 
Also, feel free to comment. I may engage in discussion, or I may ignore it. If it strikes me as ill-thought, poorly supported, insulting, degrading, or overly personal in nature, I am liable to just delete it.
 
OK, so I’ll start with Ballot Questions.
 
Question 1 has been variously referred to as Marcy’s Law and and the Crime Victim’s Bill of Rights. The question provides that that a number of rights will be guaranteed to crime victims by the Nevada Constitution. For a complete enumeration, see here: https://ballotpedia.org/Nevada_Question_1,_Marsy%27s_Law_Crime_Victims_Rights_Amendment_(2018)
 
I don’t necessarily object to much of the policy forwarded under this initiative, but I will be voting against it for a few reasons:
 

1. Marsy’s Law is a cookie cutter initiative that is being pushed by a National organization which is seeking to have a similar victim’s bill of rights adopted through the initiative process in every State. As such, it really does not take into account existing state law. Most of the requirements of this initiative are already a part of Nevada law, so I don’t see how it does any good to enshrine them in the constitution.

 

1. It seems to me that there is at least some risk that some provisions will create unforeseen conflicts with existing due process guarantees for people accused of crimes. For example, the victim notification requirements can create conflicts with constitutional speedy trial guarantees.

 

1. I find the ads supporting this initiative to be really obnoxious. Asserting that this initiative gives crime victims “equal rights” to criminal is just nonsensical. The constitutional due process guarantees afforded criminal defendants are very different than the rights set forth in Question One. Referring to these as “equal rights” for crime victims makes as much sense as saying that apartment complexes should have the same rights as blue whales.

 

1. The set of policies embodied by Marcy’s law can be adopted by the legislature after hearings, revisions, and thought. There is just no reason why the state Constitution needs to be amended to include them.

 
Question 2 provides that feminine hygiene products should be exempted from sales tax. The general argument in favor is that necessary items should not be taxed because such taxes are regressive in nature; they disproportionately impact the less affluent. Obviously, the more specific argument in favor is that a sales tax on necessary items only used by women is inherently discriminatory.
 
The argument against this initiative will be sleeping on the couch. Vote yes.
 
Question 3, the Energy Choice Initiative, would, if passed, incorporate into the Nevada Constitution a provision requiring that, by 2023, would require the Nevada Legislature to:
 

1. Establish an open, competitive retail electric energy market;
2. Ensure that protections are established that entitle customers to safe, reliable, and competitively priced electricity;
3. Protect against service disconnections and unfair practices; and
4. Prohibit the grant of monopolies and exclusive franchises for the generation of electricity.

 
This is easily most hotly contested ballot initiative this year. For a full list of the major supporters and opponents, see the Ballotpedia entry here:
https://ballotpedia.org/Nevada_Question_3,_Changes_to_Energy_Market_and_Prohibit_State-Sanctioned_Electric-Generation_Monopolies_Amendment_(2018)
 
In 2016, when this came on the Ballot the first time (Constitutional Amendments generally need to pass two initiative votes) my position was that we should vote for the question so that we could see (1) what the final draft of the initiative was, and (2) how the debate unfolded.
 
Having read and reflected on the current initiative, and having seen the debate unfold, I strongly recommend a No Vote.

First, there are a lot of reasons to be doubt the wisdom of energy deregulation as a general matter. Many states that have deregulated energy have found that consumer costs went up and quality of service went down. While proponents of the initiative say that this will result in lower energy costs, that has not been the experience in many states that have experimented in deregulation.   
 
Second, this initiative articulates a policy mandate without really stating how the legislature is going to achieve this mandate. I see the reason for this; if the details of energy deregulation were cemented in the constitution, they could not be changed by legislative action even if such action was desperately needed. However, we have recent history to show how badly the Nevada Legislature can foul up energy regulation. In 2015, as rooftop solar installations were approaching a previously set cap, the solar industry pushed the legislature to agree to legislation lifting that cap. The legislature agreed to a compromise by enacting SB 374. At least a few of the legislatures who voted for SB 374 thought they were paving the way for the rooftop solar industry to go forward. In fact, SB 374 had the effect of killing the industry entirely until the 2017 legislature fixed the problem. You can read my blog post about that here, if you are so inclined: http://www.jerrysnyderlaw.com/sensible-solutions/utility-regulation-is-hard. The point is that the Legislature has a demonstrated track record of being bad at utility regulation. If we require the state legislature to restructure the states utility industry, I have no confidence that they will be able to do so. The chances of this ending badly are much higher than the chances of it ending well.
 
Third, this initiative is backed by Sheldon Adelson, MGM Resorts, Switch, Walmart, and other large users of energy. Call me jaded, but I don’t think they are supporting this initiative so that you and I can enjoy green energy that is too cheap to meter. I think they are likely supporting because, under current rate structures, large commercial users subsidize residential users. If you take that subsidy out, the costs for residential users will increase. Opposing the initiative are many labor unions and environmental organizations.
 
Finally, if there is one guy in the state that you should listen to when it comes to clean energy policy, it is Bob Johnston at Western Resource Advocates. Here is what he says: “NV Energy has changed course on renewable energy and is proposing new solar projects that will double its current level of renewable generation by 2023. By taking NV Energy out of the electricity generation business at this critical juncture, passage of Question 3 not only will kill these important projects, but it is likely to create a cloud of legal and regulatory uncertainty that could chill the development of new renewable projects by anyone else over the next 4-5 years while the Legislature figures out the complicated details of restructuring Nevada’s electricity markets. We urge Nevadans to vote No on Question 3.”
 
There are many more detailed arguments on both sides. If you are curious or just plain dissatisfied with my analysis, please dig deeper. This issues are complex and warrant as much thought as you can spare.
  
 
Question 4  would provide that medical devices are exempt from sales tax. Again, I guess there is a general argument that we shouldn't tax people on necessities, like food. The counter argument is that we shouldn't erode the tax base by making various exemptions from a sales tax. These issues don't need much explanation. I will probably vote yes, but I don't feel terribly strongly.
However, I think it is worth pointing out the the general reason that we want to exempt certain items from sales tax is because we feel that it is unfair to place an undue tax burden on people who can least afford it. However, sales taxes by their very nature place a greater burden on poor people because people at the lower end of the economic spectrum spend a larger portion of their income on consumer goods.
In addition, sales tax revenue tends to be pretty volatile; it is tied to consumer spending, which is cyclical.
And this leads me to the reason why I will never be elected to political office in the State of Nevada: I think we should grow the fuck up and think about putting a state income tax into place.
 
Question 5 provides for automatic voter registration through the DMV. If a person applies for issuance or renewal of a driver’s license or ID, that person (if over 18) is automatically registered to vote, unless they elect not to be.
 
Look, I think we should make it as easy as possible to vote. The arguments against automatic registration are (1) it obliges people to register to vote, which they should be able to choose not to do, and (2) it will allow people who aren’t legally able to register to do so. These arguments are specious. First, under the express terms of the initiative, there must be a process to opt out. If you really don’t want to be registered, you can do so. Second, there is absolutely no evidence that automatic DMV registration will lead to an increase in any kind of voter fraud. Vote yes.     
 
 
Question 6  would increase the state’s renewable portfolio standard (“RPS”), or the amount of electricity that electric utilities need to obtain from renewable sources, to 50% by 2030. Currently, about 20% of the energy supplied by NV energy comes from renewable resources. Under current law, that will increase to 25% by 2025. I strongly urge you to vote Yes on 6.
 
It is way past time to stop fucking around on climate change. Increasing the RPS portfolio obviously isn’t the whole solution, but it is a good sized step in the right direction. A 50% target seems like a bit of a challenge, but well within the scope of what can be accomplished by a society that has figured out how to get people to pay $6 for goddamn cup of coffee. PV solar is cost competitive with natural gas and coal. Storage technology is advancing quickly. Let’s make this happen.
 
Obviously, there are legitimate concerns. While the long term cost of solar and wind generation cost competitive with coal and natural gas, taking fossil fuel plants offline before their cost is fully amortized leaves Nevada Energy with stranded assets. Warren Buffet wont eat that cost with a grin; it will be passed on to rate payers. I don’t know how much of a burden that will actually impose, but it doesn’t seem unmanageable; after all, NV energy has stated that it intends to double its renewable portfolio in the coming years without impacting ratepayers; the burden posed by the additional renewable capacity cannot be that massive. Given that climate change poses an imminent and existential threat, I don’t care if I have to pay a little more every month.
 
WC-1 is a Washoe County ballot question that would increase property tax by about a quarter for every 1000 of assessed property value in order to pay for flood control initiatives.
I am almost always going to tell you that we need to pay for infrastructure, and this is no exception. The argument opposing this measure seems to be based on the notion that it is taxing all county residents for the benefit of only those folks that live on the Truckee River. That argument does not seem very persuasive to me; any infrastructure project is going to benefit some people more than others. It isn't really practical to pass a single omnibus bond question that contained all infrastructure projects for the next 10 years; we do that stuff piecemeal.
Recommend yes.
 
Judicial races
Three Nevada Supreme Court seats are up for election this year, but only two of these races are contested.
Elissa Cadish is running against Jerry Tao. I have known Judge Cadish since we both worked at Hale Lane back in the day. She is fair minded, she works hard, and she goes where the facts and the law lead her. Cadish has served as a district court judge in Las Vegas since 2007. Her opponent, Jerry Tao, has served on Nevada’s court of appeals since 2015 and was a trial court judge before that. He seems bright and experienced enough, but his campaign has been weirdly partisan; he published a campaign pamphlet stating: “Is the Court going to drift even further to the left, or can we change the direction? Do we want a Court that gets even more liberal, or can we make it one that follows the Constitution and believes in individual liberty?” This borders on an ethical violation, and it is, at the very least, inappropriate rhetoric in a judicial race. I strongly recommend Judge Cadish.
Abbi Silver is running unopposed.
Judge Lidia Stiglich is running against Judge Matthew Harter. Stiglich was a District Court Judge in Washoe County for several years before she was appointed to the appellate court. I have been impressed with her. She shows up prepared, she asks questions showing that she understands the law and has read the file, and her analysis is well-thought. She is exactly the kind of judge you want on the Nevada Supreme Court. Her, opponent, Judge Harter, is a family court judge in Las Vegas. I don’t know much about him, so I visited his campaign website. I’m not sure what I find more off-putting: his hyperbolic rhetoric; his not-so-veiled appeals to nativism and homophobia (“my opponent is a native of the San Francisco area, she moved to a home in Nevada in 2008 with her life partner”); or his regrettable graphic design choices. However, any one of these problems takes him out of serious consideration. I strongly recommend Judge Stiglich.
 
With respect to races for the Second Judicial District Court in and for the County of Washoe, Kathleen Drakulich, Egan Walker, and Barry Breslow are running unopposed for a new term.
Dixie Grossman who was appointed as a family court judge earlier this year is running against challenger Aaron Bushur. I don’t practice family law, so I can’t really claim any firsthand knowledge here. Bushur does not have a campaign website. Indeed, I have not been able to find any readily available source in which he articulates a basis for his candidacy. I don’t know, maybe he has kin what owns a sign company that he wanted to help out. In contrast, every family lawyer who I have spoken with on that matter has told me that Judge Grossman is the clear choice. So I am going to recommend her strongly.   
 
State Constitutional Offices:
I’m just going to discuss the top two candidates for all constitutional offices. If you are really thinking about voting for Ryan Bundy, this is not the voter guide for you.
The governor’s race between Steve Sisolak (D) and Adam Laxalt (R) is polling within the margin of error, so this is one where every vote matters. And look, I get it. Progressives really wanted Chris G to win the nomination. Also, Sisolak kinda looks like he stepped out of central casting as the heavy in a movie where a plucky kid takes on corrupt city hall. When Sisolak was a regent, he was not really regarded as a friend to Northern Nevada. I don’t care. Vote for him anyway. Laxalt has, from the beginning, demonstrated nothing so much as a desire to do the bidding of the social conservative right. The list of issues on his website is a virtual laundry list of stupid ideas. Sisolak doesn’t offer much to get really excited about, but he at least seems to be reasonable pragmatic and sensible. I strongly recommend Sisolak.
For Lt. Governor, Kate Marshall (D) and Michael Roberson (R) are running for an open seat. Marshall was the State Treasurer from 2006 to 2014. She seemed to do that job competently. As a legislator, Roberson showed a lot more interest in partisan posturing than in legislative solutions. Strong recommendation for Marshall.
In the Attorney General’s race, Aaron Ford (D) is running against Wes Duncan (R). Duncan was Laxalt’s assistant attorney general. Ford is a State Senator. It seems to me that Duncan will represent a continuation of Laxalt as AG. I am just not terribly impressed; I don’t think Duncan has either the experience, the talent, or the political bent to make much of an AG. Ford’s personal story is amazing. Raised by a single mom, first one in his family to go to college, he obtained all the degrees (M.A., J.D., Ph.D). People who know him from his work as a Senator say he is bright, open minded, and works his ass off. Strongly recommend Ford.
For the Secretary of State race, Barbara Cegavske (R) is running for reelection against Assemblyman Nelson Araujo (D). I don’t know much about either candidate. From where I sit, it seems to me that the Secretary of State’s office is working fine, so I tend to think the person running it should keep doing so. But hey, I’m open to persuasion. Weak recommendation for Cegavske.
For State Treasurer, Zach Conine (D) faces Republican Bob Beers (R). Beers has enjoyed a long political career as a knee-jerk anti-tax gadfly. Conine seems to have no real political experience. I’ll take the new guy over the idiot any day. Strong recommendation for Conine.
For Controller, Ron Knecht (R) is facing Catherine Byrne (D). Knecht distinguished himself in 2015 by introducing a tax plan that, he said, would pay for Governor Sandoval’s educational program without raising taxes. It was totally crackheaded. Byrne is a CPA; that is about the extent of my knowledge. I will take a CPA who I do not know to be crackheaded over a known crackhead (just so we are clear, I am using that term colloquial. I don’t know anything about Mr. Knecht’s recreational drug use). Strong recommendation for Byrne.
 
City of Reno and Washoe County Races:
For Mayor, Hillary Schieve is running for reelection against Eddie Lorton. I think that Mayor Schieve has been an outstanding Mayor. She has been outspoken and active in supporting the arts, she has worked hard to make infrastructure improvements, and she has been reasonably fiscally disciplined, and she has generally been a decent and compassionate leader. I’m sure I don’t agree with everything she has done, but I am generally impressed.
In contrast, Lorton has been a passionate advocate for dumb ideas. From what I can tell, Lorton’s campaign is based on 3 policy positions. (1) The City of Reno should sell City owned land to retire city debt; (2) The City should solve the problem of homelessness by suing Washoe County, and (3) Space Whales are stupid. As Anjeanette Damon pointed out in the recent mayoral debate, the value of any City land that is unencumbered and reasonably available for sale is on the order of $20 million, not the $450 million claimed by Lorton. I don’t really see how suing the county helps either the homeless or City taxpayers; over half the population of Washoe County is in the City of Reno, even if a lawsuit shifted the financial burden to Washoe County, its really just taking money out of one pocket and putting into another. Finally, I think Space Whales are cool. Very strong recommendation for Schieve.
For City Council Ward 2, Naomi Duerr is running against Joe Lawrence. I think Ms. Duerr has been doing a fine job. Also, a couple years ago, she had a drink in my bar at Burning Man. So I know, as a point of fact, that I could grab a beer with her. Joe Lawrence has never raised a glass with me, at Burning Man or elsewhere. Strong recommendation for Duerr.
In City Council Ward 4, Paul McKenzie is running for reelection against former County Commissioner Bonnie Weber. I have found MacKenzie to be stubborn, non-responsive, and not very curious. I remember a particular workshop in which a local businessman asked questions about levels of police staffing. McKenzie stated, and I am close to quoting verbatim, that he “thought is was never appropriate to question police decisions.” Really??? The Council has no oversight role at all? Fuck that. Moreover, McKenzie approaches a problem with the assumption that he has already solved it; he is not very interested in hearing the concerns raised by the people he represents. On the other hand, Bonnie Weber is a conservative Republican. I can’t get excited about either candidate. Pick your poison, Ward 4. I was in that Ward, I might vote Weber. I’d rather have someone I disagreed with who I felt would listen occasionally.
For City attorney, Karl Hall is running for reelection against former city attorney John Kadlic. I don’t think that Hall has been an ideal City Attorney. This is not the moment in history to ask the plaintiffs in a sexual harassment lawsuit to disclose their sexual histories. Nonetheless, I can’t help but admire a guy who is willing to draw the ire of people who program the content on digital billboards. The problems that I hear people complain about with the City Attorney’s office certainly existed when Kadlic had that job. Finally, the folks who I have spoken to who have worked with both recommend Hall. Medium recommendation for Hall.
County Commission: I guess the most significant issue for me here is protection of public lands in light of the Washoe County Lands Bill, which I think is not a great idea. As such, I recommend Wolgast, Jung, and Judd.
Sheriff: Darin Balaam and Heidi Howe are running to replace Chuck Allen. I hear reasonably positive things about both. I like the idea of having a woman in a leadership position in such a traditionally male dominated field, so I’m likely to vote for Ms. Howe. Plus, it is really fun to say “Heidi Howe” in your best Mr. Hanky voice.
County assessor: Chip Evans just comes across as a smart guy who is devoted to public service.
Public Administrator: Verita Black Prothro has always impressed me. I’m not really sure what the public administrator does, but I have every confidence that she will do it well.
It is amazing to me that we vote for things like County Recorder and Treasurer. I don’t have strong feelings here, although people who I respect recommend the current recorder in strong terms. If anyone does, chime in.
 
Federal Congressional Candidates.
I’m not going to spend much time here, because it seems to me that most people have probably made up their mind based on party affiliation. I do think that the Republican Congress has been an absolute embarrassment. What called itself the “Party of Ideas” in 2014 and 1016 has failed to pass infrastructure legislation, has failed to do a thing to provide affordable access to health care, and has failed to address immigration reform. What they have done is pass a massive tax cut. If you think that was a good idea, then you must forevermore refrain from feigning a concern about the deficit.
Strongly recommend Rosen and Koble.
 

On March 14, 2017, the day of the National Student Walkout, a protest seeking legislative action relating to school shootings, Noah Christiansen, a 17-year-old student at McQueen High School, called Rep. Mark Amodei's (R-NV) office to express his opinion on the necessity for gun control measures. He did so somewhat colorfully, by by stating that “Congress people who are not acting on gun control reforms need to get off their fucking asses and do something.”

Rep. Amodei's staffer who took the call, Arturo Garzon, called the school and relayed the incident to administration. The school administration consequently suspended Mr. Christianson for two days and determined that he may not serve in student government the following year. The School gave Christiansen a one-day reprieve from suspension so he could participate in a debate tournament.  

There is a lot of room for opinion on the questions of whether Rep. Amodei’s office scored a public relations win or loss based on this incident. There is also probably some room for opinion as to how the school administration ought to have handled the matter. What I want to talk about is specifically the question of whether the school violated Mr. Christiansen’s first amendment rights by punishing him for engaging in the subject speech.   

Summary of Relevant United States Supreme Court Cases

The Seminal case regarding free speech rights of high school students is Tinker v. Des Moines Ind. Comm. School Dist. (1969). In Tinker, the United States Supreme Court held that a school violated its students’ free speech rights when it suspended five students for wearing black armbands to protest the Vietnam War. The Court held that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” The Court ruled that in order to justify prohibition of a particular expression of opinion voiced by a student, a school district must show that the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The Court noted that the black armbands constituted speech that did not “intrude upon the work of the schools or the rights of other students.” Notably, the speech at issue in Tinker was expressly political speech, which “is at the core of what the first amendment is designed to protect.”

The Supreme Court has decided a number of cases in the wake of Tinker that limit the extent of the ruling in Tinker. In Bethel School Dist. No. 403 v. Fraser (1986), the court held that the school may punish a student for delivering a speech nominating a fellow student for a student government position using “an elaborate, graphic, and sexually explicit metaphor.” The school concluded that this speech violated a disciplinary rule which provided that “conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.” Consequently, the school suspended the student for three days. The Supreme Court held that the student’s speech was not entitled to protection because to permit such “vulgar and lewd speech … would undermine the school’s basic educational mission.” The court further noted that speech may be restricted where its content is sexually explicit and the audience may include children.

In Hazelwood School Dist. V. Kuhlmeier (1988) the Supreme Court held that a school did not violate students' First Amendment rights when it deleted two pages of a school newspaper prior to publication. The deleted stories included a story about three students’ experience with pregnancy, and a story about divorce. The school concluded that the discussions of sexual activity and birth control were not appropriate for younger students. The court noted a distinction between the questions of “whether the First Amendment requires a school to tolerate particular student speech” and “whether the First Amendment requires a school affirmatively to promote particular student speech.”  The court noted that educators may exercise greater control where the expression occurs in the context of instructional activity such as school theatrical productions or publications. Accordingly, the court held that the standard articulated in Tinker applies only to the question of whether a school may punish student expression and not to the question of whether a school must assist in publishing student expression.

The Supreme Court next addressed the question in Morse v. Frederick (2007). In that case, a student displayed a banner reading “BONG HITS 4 JESUS” at a school sponsored trip to view the Olympic torch relay. The school principal confiscated the banner and suspended the student. The Supreme Court found that the analytical framework of Tinker was not absolute; that the “substantial disruption” analysis was not necessarily the test to be applied in every case. The Court held that because schools have an “important – indeed perhaps compelling” interest in deterring drug use, the school acted properly in limiting speech that promoted marijuana use.

Summary of the Legal Rule

In Tinker, the Supreme Court held that schools may only restrict student speech where that speech “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” The court has since held that this analysis does not fully apply in instances where the speech at issue is not merely “tolerated” by the school, but is “promoted” by the school by appearing at an assembly or in a school newspaper. The Court has further held that the Tinker “substantial interference” analysis does not apply where schools have an important or compelling interest in limiting the particular expression.

Did McQueen Violate Christiansen’s First Amendment Rights?

The first question is whether Christiansen made the subject speech in the context of a school sponsored event. The Reno Gazette Journal has reported that Christiansen made the phone call during a 17-minute student walkout. This walkout was not a school-sponsored activity; while the Washoe County School District advised that it would not punish students for participating, it did not sponsor and condone the walkout. As such, this matter falls within what the Hazelwood Court referred to as the question of “whether the First Amendment requires a school to tolerate particular student speech,” and not whether the school must promote that speech.
The next question is whether Mr. Chistiansen’s speech intruded into an area where the school has an important or compelling interest. There is no indication that it does. Mr. Christiansen’s speech did not promote drug use or other activity that the school has an important of compelling interest in regulating. Most importantly, Mr. Christiansen’s call to Rep. Amodei was, at its core, political speech, and as such entitled to the highest degree of protection.

Because none of the cases that have limited the scope of Tinker apply to the facts here, I think that the core ruling of Tinker defines the rule to be applied: the fundamental question is whether Mr. Christiansen’s call to Rep. Amodei’s office “materially and substantially interfered with the requirements of appropriate discipline in the operation of the school.”

I don’t see facts to support the School’s action. Christiansen made the call during a student walkout, not during a school sponsored activity. There are no facts to indicate that other students even heard the allegedly offensive comment. His comment was made in the context of political speech and as such is at the heart of what the First Amendment protects.
​
This analysis is not terribly deep; I have not delved into Circuit court cases that may be relevant. Furthermore, I can’t pretend accurately predict what nine people who live in Washington and wear black robes might do. However, based on the broad principals articulated by Supreme Court cases since Tinker, it seems to me that the School administration, in punishing Christiansen for the statement he made to Rep. Amodei’s office, has violated Mr. Christiansen’s First Amendment Rights. 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." First Amendment to the United States Constitution.

On the afternoon of Sunday, August 13, 2017, a photograph circulated on social media showing UNR student and employee Peter Cvjetanovic participating in a march to prevent the removal of confederate monuments in Charlottesville, Virginia. This march, although nominally an exercise in “uniting the right,” was organized by neo-Nazis, and it appears that the large majority of the participants were on the most racist and white supremacist fringe of the right. The march was accompanied by a vigorous counter-protest. One of the counter protesters was murdered, and several were injured, when James Shields Jr. drove his car into a group of counter-protestors.
 
Almost immediately upon learning that Mr. Cvjetanovic was involved in the protest, community members called for him to be disciplined and/or terminated from employment at UNR. UNR’s president has announced that Mr. Cvjetanovic will not be disciplined or terminated. In my analysis, that is, as a matter of law and as a matter of public policy, the right decision.
 
The United States Supreme Court has held that public employees may not be terminated or disciplined for exercising free speech rights where the subject speech (1) relates to a matter of public concern, and (2) does not relate to the employee’s job duties. Garcetti v. Ceballos (2006). Here, I think that the subject of Mr. Cvjetanovic’s speech most certainly is a matter of public concern – the fact that he is on the wrong side of the argument does not mean that the topic is not a matter of public concern. I am speculating that this does not relate to his job duties, although, to be fair, I don't know what his job at UNR is.
 
So the next question is whether Cvjetanovic’s is protected speech in the first place. The US Supreme Court has created two potentially applicable classes of unprotected speech that may be applicable here: the "incitement" doctrine and the "fighting words" doctrine.
 
In Brandenberg v. Ohio (1969), the U.S. Supreme Court overturned a conviction for advocating violence under Ohio law where the defendant, a KKK member, invited a television station to film a KKK rally. At that rally, Brandenberg made public statements that made reference to the possibility of "revengeance" against "n------", "Jews", and those who supported them.
 
The Brandenberg Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, in order to find that the speech is unprotected incitement, there must be intent, imminence, and likelihood. Thus, when Ice-T sings “I’ve got my twelve gauge sawed off/ I got my headlights turned off/ I’m ‘bout to bust some shots off/ I’m bout to dust some cops off,” it is protected speech. If I told a man holding a loaded gun pointed at a cop that he should squeeze the trigger, that would be unprotected incitement.
 
Here, I have not seen any evidence to indicate that Mr. Cvjetanovic made any statement that rises to the level of incitement. The slogans shouted at that rally were certainly as vile a statement as one can imagine. The underlying sentiments are an unconscionable evil arising from the darkest dungeon of history. But I have not seen evidence to show that they were intended to incite imminent lawless action or that they were likely to incite imminent lawless action. It is early, and I am open to the possibility that such facts come to light, but I have not seen facts showing that Mr. Cvjetanovic made statements that could be classified as “incitement” under the standard articulated in Brandenberg.
 
As far as the “Fighting Words” doctrine: in Chaplinsky v. New Hampshire (1942), the court held that fighting words, or words "that by their very utterance inflict injury or tend to incite an immediate breach of the peace." are unprotected. The Court has tended to interpret this doctrine narrowly since that time. In the most relevant application, the Supreme Court in National Socialist Party of America v. Village of Skokie, (1977), held that displaying the swastika in a Nazi march in a town with a large Jewish population did not constitute "fighting words" and was thus protectable speech.
 
As with my analysis of incitement, I have not seen any evidence to indicate that Mr. Cvjetanovic made any statement that the court can define as “fighting words” as the U.S. Supreme Court has defined that term. Maybe such evidence will come to light, but I have not seen it yet. Maybe the court could, in a case brought before it today, hold that sensibilities have changed to such a degree that the bar has been lowered for what qualifies as “fighting words.” However, I do not see much reason to think that will happen.
 
Because Mr. Cvjetanovic’s participation in the rally does not qualify as incitement or fighting words, I believe that the U.S. Supreme Court would today find that this participation is protected speech, and as such cannot form the basis for termination or academic discipline.  
 
I have heard various voices arguing that even if Mr. Cvjetanovic’s speech is protected, he could still be disciplined under the UNR Code of Conduct. That dog won’t hunt. UNR is a state university, and as such its actions are government actions. A local government entity cannot get around constitutional limitations on government action by imposing a “code of conduct” on its students or employees. The United States constitution is the supreme law of the land. Full stop.
 
I think that the legal analysis settles the question of whether UNR ought to have taken disciplinary action; in my practice I do my best to encourage clients to act within the law. By taking disciplinary action against Mr. Cvjetanovic, UNR would not only be acting contrary to established first amendment principles, it would be courting an expensive legal disaster.
 
That is the legal analysis. This is why that analysis, and these principles, matter to me; why I think that this analysis embodies an important public policy – indeed, maybe the most important public policy.
 
First, I don’t want the first amendment eroded at any margin – even at the Nazi margin. If we say the government has the ability to control speech one area, do we think that it will remain limited to that area? Donald Trump has repeatedly made statements that evidence a desire to control what can be said about him by the press. Do we trust this administration to make good judgments about what kind of speech we want to allow and what kind we do not? I think that putting up even marginal limitations about what kind of speech must be tolerated is a slippery slope.
 
Second, I don’t think that any bad idea ever died because a government told people not to talk about it. To the contrary, I think that attempts to limit speech often lend force to the underlying ideas. I think that current American Nazis, white supremacists, and other brands of right wing whackos define themselves by a misguided sense of being oppressed. Attempts to limit the ability of these groups to demonstrate feed that sense of oppression and therefore strengthen the power of the identity. If you justify your actions by telling yourself that you have been treated badly, any limitations imposed on your ability to speak will only serve to solidify your view.
 
Third, I think that “evil hateth the light.” I think that an open and public discussion of bad ideas is a more effective way to counter those ideas than is an attempt to prevent the public articulation of those bad ideas. I am not so naïve to think that there are not plenty of horrible ideas that spread like a brush fire in cheat grass – particularly in today’s social media environment. However, I not seen anything to shake my conviction that the solution to speech we don’t like isn’t censorship or punishment, it is better speech.

In 2015, the Nevada Legislature, occupied with historic education reform and tax bills, inadvertently killed Nevada’s fledgling rooftop solar industry. The 78th legislature passed SB 374, lifting the 235 megawatt cap on rooftop solar, but at the same time providing that the Nevada Public Utilities Commission (PUCN) “Shall not approve a tariff… or authorize any rates or charges for net metering that unreasonably shift costs from customer-generators to other customers of the utility.” On December 15, 2015, the PUCN issued an order concluding that under SB 374, it was compelled to cut by two thirds the rate NV Energy paid for electricity generated by rooftop arrays.

In the wake of that decision, Nevada lost several hundred good paying jobs in the solar industry and lost any claim to leadership in the green economy. The solar industry filed lawsuits seeking judicial review of the PUCN decision, Governor Sandoval convened a New Energy Industry Task Force, and the Reno Gazette Journal opined that stakeholders should “just fix it.”

These efforts did not result in the problem being fixed. While the PUCN ultimately decided to restore the previous rates for consumers who had already purchased net metering systems, that did little to bring back the industry. Like any problem created by hastily drafted and ill-conceived legislation, the solution is to be found only through thoughtful and deliberative legislative leadership.

The Nevada Legislature has three critically important clean energy bills in front of it this term. AB 405 provides a rate schedule for net metering customers that will encourage consumers to install rooftop solar without imposing any significant costs on ratepayers. SB 392 creates a mechanism to create community solar gardens so that condo owners, renters, and other people who cannot install rooftop solar can still participate in the green economy. AB 206 raises the amount of renewable energy that NV Energy is required to provide from 20% currently to 50% by 2030 .

The benefits of reclaiming Nevada’s role as a leader in the green economy are many.

• It is abundantly clear that climate change is not a theoretical problem to be dealt with by future generations, but a pressing and existential calamity that needs to be addressed twenty years ago.
• The clean energy economy will create, by some estimates, 28,000 jobs in the state of Nevada – jobs that pay a living wage, cannot be outsourced to the developing world, and that won’t be replaced by robots.
• Finally, solar, wind, geothermal, and other clean energy resources will help ratepayers’ pocketbooks. The cost of generating clean energy has fallen dramatically over the past decade, and is expected to continue to do so. In addition, renewable generation resources create price stability in energy by providing a hedge against volatility in the fossil fuel markets. Anyone who tells you that natural gas prices will be stable for the foreseeable future has probably not picked up a newspaper since the Johnson administration.     

​The Nevada Legislature has an opportunity to provide the leadership needed to place Nevada squarely in the center of the burgeoning clean energy economy. AB 206 and AB 405 have passed the Assembly and are now pending before the Senate. I urge our elected representatives to take this opportunity by thoughtfully considering and deliberating this legislation, thinking through any necessary changes, and sending these bills to the Governor for signature. I urge everyone else to contact your Senator and Assembly member to voice your support.

There is a perception, widespread among folks of a particularly political bent, that the Federal Government came to own land in the West by taking that land from Western States, presumably through some nefarious means. Recently incarcerated rancher Clive Bundy asserted that the Federal Government could not regulate his use of public range land because “The federal government has seized Nevada's sovereignty ... they have seized Nevada's laws and our public land.” Republican Presidential Candidate Ted Cruz recently ran an ad in Nevada promising that if elected he would “fight, day and night, to return full control of Nevada’s lands to its rightful owners -- its citizens.” (Emphasis added.)  

This is deeply silly.

The United States Government came to own land in the West when it purchased (OK, purchased at gunpoint) California, Nevada, Arizona, and Utah, as well as a good chunk of New Mexico, Colorado, and Wyoming from Mexico for 18.25 million dollars through the 1848 Treaty of Peace, Friendship, Limits and Settlement between the United States of America and the Mexican Republic, better known as the Treaty of Guadalupe Hidalgo. (As far as I know, it did not occur to anyone to wonder whether the indigenous people might have something to say about this arrangement). In today's dollars, that works out to something like $511,000,000.

OK, so this may be off track a little, but let’s be clear: The United States Government bought THE ENTIRE SOUTHWESTERN UNITED STATES for about one seventh of what it cost to build One World Trade Center. For what it costs to operate the United States Military for about 8 hours today, The United States bought California’s gold fields and farms, the Grand Canyon, a good chunk of the Rocky Mountains, Yosemite Valley, the San Francisco Bay, Lake Tahoe, the Colorado River, and quite a lot of spectacular desert, mountains, hot springs, trout streams, silver deposits, mule deer, aspen groves, and timber in between.

Through a strange quirk of history, the Mexican Government is not the party that is screaming about this land being taken from them.

At any rate, when Nevada became a state in 1864, the U.S. Government did not transfer all the land in Nevada to the state. To the contrary, the United States Government fairly specifically stated, in the Nevada Statehood Act of March 21, 1864, that as part of becoming a state, Nevada must "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..... " Congress further provided, in the Nevada Statehood Act, that it could continue to dispose of lands within the state’s boundaries as it saw fit, so long as it gave some land to the state to build schools, prisons, and other state buildings. No one seemed to object to this at the time.

A few years after the state was formed, the United States Government began trying to give land in Nevada, and throughout the West, away. Through the 1877 Desert Lands Act, the Federal Government allowed anyone who could irrigate and cultivate the land to claim 640 acres for their very own. In fact, to this day, if one can find a suitable place to farm and successfully irrigate that property, one can make a desert land entry and claim 320 acres.

The Federal Government’s attempt to give away most of the Western United States was not terribly successful in Nevada because there just isn’t enough water in most of the state to successfully irrigate a farm. Consequently, it was difficult to make a qualified desert land entry in all but a few areas in the state. These publicly owned desert lands were, however, perfectly suited to providing forage for cattle and sheep. As the West was settled, ranchers were allowed virtually unrestricted access to public lands range lands to run cattle and sheep.

Over the next few decades, it became pretty clear to everyone involved that unrestricted access was a calamitous range management strategy. Incidents like the Johnson County War in Wyoming are the stuff of Western legend, but the more pernicious problem was destruction of the range due to overgrazing. By 1934, it became clear that if the United States Government did not take some steps to manage the range, there would not be much range left to manage. Consequently, in 1934, the United States Congress passed the Taylor Grazing Act, which set up a system of grazing permits and which ultimately resulted in the creation of the Bureau of Land Management.

In the 1960's and 1970's, federal involvement in managing public lands came to focus not just on resource extraction, whether through grazing, logging, or mining, but also on environmental stewardship. This principal was embodied in the Multiple Use Sustained Yield Act of 1960 (applying to Forest Service Lands) and the Federal Land and Policy Management Act of 1976 (applying to land managed by the BLM). This increased emphasis on the environment at the expense of agriculture prompted a reaction in the west that culminated in the Sagebrush Rebellion.

The legal argument underpinning the Sagebrush Rebellion is that the Federal Government cannot hold title to public lands under the Equal Footing Doctrine. Under this doctrine, any newly admitted state must have the same rights as the original 13 Colonies. As the Federal Government did not own land in those colonies, the argument goes, it can't own land in any other state. This argument has been uniformly rejected by courts. U.S. v. Gardner, 107 F.3d 1314 (1997) (providing a good background summary for the basis of Federal land ownership in Nevada). 

The point of all this is to make one thing very clear: there is nothing remotely illegitimate, unconstitutional, or improper about the fact that the Federal government owns and manages a great deal of public land in the West.

I grew up on a ranch in Mason Valley, Nevada. I understand that the BLM can make decisions that, depending on one’s point of view,  are pigheaded, bureaucratic, and just plain wrong. Hell, it’s hard to find anyone in the state who doesn’t feel aggrieved by at least one decision by the BLM. I have some sympathy for the difficult position that ranchers -- good people who provide us with delicious beef -- are placed in. I don’t like Clive Bundy’s arguments, I deplore his lack of respect for the rule of law, and I despise the fact that he is willing to put lives in danger on his quixotic crusade. But I don’t really question his sincerity.  
​
The thing is, I also went to law school. And when a smart, Harvard educated lawyer like Ted Cruz looks into the camera and tells you that he wants to “return” control of public land to the people of Nevada, I know very well that he understands that he is making a promise that is historically inaccurate, intellectually dishonest, and practically absurd. Promises like that aren’t just insincere, they are downright cynical.   

​I hope that you find legally informed take on things that you read about in the news informative and entertaining. If it seems like your brand of vodka, please subscribe to my blog!

On December 21, 2015, the Nevada Public Utility Commission issued an order reducing the rate at which NV Energy is obliged to purchase electricity generated by net metering customers. The ensuing discussion of this order has been characterized (with a few exceptions) by a great deal more rhetoric than analysis. Now, normally, that is my cup of tea; writing an impassioned argument on a controversial issue is a lot of fun. However, the issues at stake in setting energy tariffs are complex and technical. I think it is difficult for honest and thoughtful people to take any absolute stands on the details of utility regulation. So I thought it might be a better use of time to try to at least outline the issues involved than to stake out my position.   ​

Background:

First, a couple of vocabulary words: in the context of utility regulation, a “tariff” is the set of rules that the utility and its ratepayers are required to abide by. These rules govern things like the rates charged for electricity, the manner in which utilities need to provide service, public safety requirements, etc. “Net metering” refers to the practice through which an electrical utility’s customers are able to generate their own electricity through an alternative energy like solar or wind, and sell that power back to the power company. Customers who net meter are typically allowed to sell back only as much electricity as they use. In other words, if a you have solar panels producing electricity during the day while you are off at work, you can sell that enough of that unused energy to the utility to reduce your bill to zero, but the utility won’t be sending you a check.

Nevada started allowing net metering in 1997. Up until January 2016, NV energy was obliged to buy power from a net metering system at “retail” rates of approximately $.10/ Kilowatt Hour (“KwH”). With the PUC’s recent order, as of January 1, 2016, the rate NV Energy is required to pay for electricity purchased from net metering customers will start going down until, in a few years, it reaches a rate of about $.03/ KwH. In addition, NV Energy will be raising the monthly fees it charges net metering customers for the privilege of having a power plant on their roofs.  

Net metering customers who installed rooftop residential systems under the previous net metering rates assert that the PUC duped them into believing those rates would continue indefinitely. Large residential solar companies like Solarcity and Sunrun have indicated that this decision will force them to cease operations in Nevada and lay off hundreds of employees. A class action lawsuit has been filed against Nevada Energy alleging unfair trade practices, price fixing, and all manner of nefarious conduct.  

​A lot of the discussion of these issues, from all sides, seems to miss some crucial points.

Net Metering Has A Built In Structural Problem. A lot of things go into the cost of generating a KwH of electricity. For instance, the utility needs to pay for (1) maintaining power lines, and power plants, (2) ensuring that it has enough generation capacity to meet demand, (3) pay the salaries and benefits for thousands of employees, and (4) pay for the fuel used by its power plants. The PUC sets rates that allow NV Energy to charge enough for electricity to pay for all those things, as well as provide a reasonable return on investment to its shareholders. The utility business model depends on the notion that it can spread these costs over all ratepayers. If the utility is buying electricity from a net metering customer at the same rate the utility charges for electricity, the the net metering customer gets the benefit of the vast utility  infrastructure without paying for that benefit; the cost of maintaining that infrastructure is born by all non-net metering ratepayers. In that way, net metering customers are subsidized by a utility’s other ratepayers.

There are currently only a few thousand net metering customers out of hundreds of thousand of ratepayers, so the cost of this subsidy to ratepayers is fairly insignificant. As such, this structural problem probably remains theoretical at this point. However, as the percentage of net metering customers grows, so does the size of the subsidy. If, hypothetically, 50% of energy customers in Nevada were able to zero out their power bill, then the cost of maintaining the electrical infrastructure would need to be entirely borne by the remaining 50% of ratepayers. In other words, if the percentage of net metering customers is allowed to grow without limitation, eventually it becomes a problem.  

The Legislature told the PUC that Ratepayers Should Not Have to Pay for Net Metering.   Prior to 2015, the
legislature had  addressed the problem posed by the potential success of the net metering program by capping the total amount of electricity that could be net metered at approximately 235 megawatts. Between 2008 and 2014, the solar industry everywhere exploded as the cost of solar panels dropped and state and local tax incentives reduced the price of installation even further. In 2014 and 2015, large rooftop solar companies like Sunrun and Solarcity had begun installing systems in Nevada. Unfortunately, it was becoming clear that the net metering cap was close to being reached.   

​The waning days of the 2015 legislature were, by all accounts, a complete shitshow. While everyone's attention was focused on the governor's tax plan and on whatever Michele Fiore was up to, solar advocates were making an ill-fated attempt to have the cap on net metering raised. When it became apparent that the cap was not going to be raised, the rooftop solar industry made a tactical retreat and agreed to support a measure that would kick the decision on net metering to the PUC.

This compromise was embodied in SB 374, which provides, in relevant part at section 2.3(2)(d), that the PUC “May authorize a utility to establish just and reasonable rates and charges to avoid, reduce or eliminate an unreasonable shifting of costs from customer-generators to other customers of the utility.” Section 2.3(2)(e) further provides that the PUC “Shall not approve a tariff… or authorize any rates or charges for net metering that unreasonably shift costs from customer-generators to other customers of the utility.”

So, this statute authorizes the PUC to set “just and reasonable rates” for net metering, but requires that those rates may not “unreasonably” shift costs from net metering customers to the other ratepayers. It seems, from the PUC’s recent decision on net metering, that the PUC read that language to mean that any subsidy on the part of ratepayers was unreasonable and should steadily be eliminated.

The PUC may or may not be correct in interpreting what the legislature meant by “unreasonably shifting costs from customer-generators to other customers of the utility.” It is possible that PUC is justified in thinking that the legislature told it to make sure that ratepayers were not subsidizing net metering customers; that is something that a reviewing court will probably need to sort out. Could the PUC have also justifiably come to a different conclusion? Maybe. I will explain how in a couple paragraphs. But it is at least arguable that the PUC’s decision here is in line with the directions they received from the legislature.

It seems unfair for solar advocates to claim that the PUC acted entirely at the behest of NV Energy in arriving at this decision. The legislature, at the very least, told the PUC to pay close attention to the impact that the net metering program was having on other ratepayers. The renewable energy community should probably be directing their ire, and their lobbying efforts, at the legislature rather than at the PUC.      

Everyone Subsidizes Carbon Based Energy. While ratepayers subsidize net metering customers, at least to some extent, those same ratepayers also enjoy some hidden subsidies that solar generators do not pay. There are a lot of subsidies built into energy that is generated by burning hydrocarbons. Along with direct and indirect subsidies provided to fossil fuel producers, there is a substantial (but difficult to quantify) environmental cost built into generating electricity by burning fossil fuels. The environmental costs of producing and consuming fossil fuels is generally not reflected in the price paid for those fuels. NV Energy’s ratepayers don’t pay for greenhouse gasses and other pollutants released in the atmosphere. Instead, every last one of us, as well as our children, will bear the cost of the environmental damage caused by traditional energy production. The fact that it is difficult to quantify this cost doesn’t make it any less real. Developing the regulatory framework for accounting for this cost is one of the most urgent and difficult challenges that has faced policy makers and will continue to do so. Despite a great deal of imagination and vigor that a number of policy makers and academics  have applied to the problem, state and federal legislative bodies in the United States have largely failed to adequately address this question.  

Utility Regulation Is Hard. While I have some interest in energy regulation, as well as a bias toward policies that encourage solar production, I do not have any particular expertise in the area. I have thought about these issues a fair amount, and I have read many different perspectives. The more I read, the more I am convinced that these issues need to be thought through carefully, and by people with the patience and technical expertise to analyze the issues in the light of data. While I provide some thoughts here about the legislative framework in which the PUC made its decision, I very specifically do not offer any opinion as to whether the evidence supports the technical and factual findings that the PUC made.   

However, this is my blog, so I’m not going to let my own limitations stop me from offering a couple opinions, ill-informed though they may be:

First, I submit that the PUC could have concluded that, in light of the hidden subsidies that inure to the benefit of ratepayers purchasing carbon based energy, it would not be “unreasonable” under SB 374 to have ratepayers bear some cost of encouraging rooftop solar production through the net metering program. It make take a little more imagination than the PUC is accustomed to using to come to that conclusion, but I think it would be at least defensible for the PUC to determine that it has the discretion to allow net metering customers a reasonable subsidy.

Second, while I think there may be room in the existing legislative framework to provide a tariff that is more favorable to net metering, the PUC has just demonstrated that it does not share my view. As set forth above, even if I don't like the PUC's conclusion, it is arguable that the PUC did exactly what the legislature told it to do, or at least acted within its discretion in interpreting the statute.  A reviewing court will need to decide whether the PUC “abused its discretion” in setting net metering rates, and whether these rates are “arbitrary and capricious.”  

Finally, I suspect that the clearest pathway to restoring net metering rates to a level that will support development of rooftop solar leads through the Nevada Legislature, which will meet again in just over one year.  Solar advocates — from grassroots supporters to industry lobbyists — need to prepare and execute a strategy for the 2017 session.

​I don’t know what the specific goals and parameters of a pro-solar legislative strategy ought to be. However, I am fairly confident that participation in the November 8, 2016 election is the best shot most of us will have at influencing the shape of Nevada’s policies on alternative energy for the next few years. I am also pretty confident that the solar industry needs to be a good deal more prepared for the 2017 legislative session than it was in 2015.
​