September 2016

Articles written by attorneys for attorneys and published in the “Constitutional Law” issue of the printed journal, Communiqué (September 2016):

© 2016 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (September 2016). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


“Playing It By Ear,” or Equity and Constitutional Construction

By Gerard Dondero, Esq.

Dondero-Gerard-2016-web
Gerard Dondero is an associate attorney who has worked at Paul C. Ray Chtd. since first serving as a law clerk in 2012. He has had success working on appeals and drafting briefs for a variety of complex civil matters in federal and state courts. He holds a B.A. and a J.D. both from the University of Nevada, Las Vegas. While at the William S. Boyd School of Law, he served as an editor of the UNLV Gaming Law Journal.

Few, if any, justices have disagreed with as much panache as the late Justice Scalia. Despite mostly writing dissents, armed with his “originalist” jurisprudence, he managed to expand his influence to such an extent that, in some law scholar quarters, “we are all originalists now.” Originalism rests on the notion that the words and phrases of the Constitution have or might have “time-dated” original meanings that differ from their current meanings. David E. Weisberg, Justice Scalia’s Originalism: A Flawed Theory that Obscures an Important Truth (Mar. 12, 2016), available at http://ssrn.com/abstract=2746859. Justice Scalia laid down the gauntlet for his originalism and competing viewpoints of constitutional construction: “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult.” Also, “Don’t make up your mind on this significant question between originalism and playing it by ear on the basis of whether, now and then, the latter approach might give you a result you like.” Univ. of Virginia Sch. of Law Scalia Defends Originalism as Best Methodology for Judging Law, (Apr. 20, 2010), available at http://www.law.virginia.edu/html/news/ 2010_spr/scalia.htm.

At outset, while Justice Scalia held fast to the idea that “words have meaning . . . [a]nd their meaning doesn’t change,” the reality of any dictionary edition beyond the first provides a sharp counter-example. Justice Scalia was fond of arguing that nine justices should refrain from substituting their judgment for the judgment of the people. However, consulting a dictionary is consulting an entire team of researchers who themselves meticulously document societal trends—trends from many demographics—and assemble those trends in language and meaning into one volume. So, in a sense, a justice consulting a dictionary is deferring to “the people,” and to ignore a modern dictionary would conversely be to ignore “the people.”

Of course, the words in the constitution have remained unchanged for centuries—now, then, and before then. So, Scalia is right, as applied to the constitution, regarding words. The shootouts take place around concepts embodied by phrases within the constitution. How can we best understand what is “cruel and unusual” or what is “free speech?”

While Justice Scalia presented his game as the best and only truly historical game in in town, equitable interpretation also has a long history dating back from medieval England. It started as a position known as the Keeper of the King’s Conscience, by which bishops and others who were learned in Christian philosophy dispensed justice in the king’s name. This justice, often delivered in the chancery courts, differed from the common law courts in that it was discretionary, supreme, and based on more general notions of fairness. Gwilym Dodd Reason, Conscience and Equity: Bishops as the King’s Judges in Later Medieval England, J. Historical Ass’n, Vol. 99, No. 335 (April 2014). Soon, equity became the main vehicle of appeal by the poor and oppressed to overcome the severe effects of the letter of the law. Sharon K. Dobbins, Equity: The Court of Conscience or the King’s Command, the Dialogues of St. German and Hobbes Compared, J.L. & Religion, Vol. 9, No. 1 113-49 (1991). And while some viewed equity as a “roguish thing,” the consideration of the common good has historical roots in the Catholic intellectual tradition, a tradition that spawned the analytical tools used by the courts of chancery. Lee J. Strang, “The Role of the Common Good in Legal and Constitutional Interpretation,” Univ.St. Thomas L. J., Vol. 3, No. I (Summer 2005). Id. But, the text written by the legislature is not necessarily legislature’s conception. Instead, it is the legislature’s attempt to convey the conclusion of “his own internal process of practical reasoning regarding the manner in which society must be ordered to effectively pursue the common good.” Id. So, the text is a strong indicator of the results of this practical reasoning, but the text alone cannot determine every concrete dispute.

Legislature-made law is only aimed at the “majority of cases.” According to Aristotle, a philosopher who informed the original equitable tradition, it is impossible to speak correctly in any universal statement regarding the aim of a law. To Aristotle, the inaccuracy of any single universal law as written is inherent to the law, rather than the fault of any lawmaker. So, practical reasoning—to divine the legislature’s conception of the common good—is necessary to fully flesh out any legal concept.

An example of an equitable maxim would be that when the conventional meaning of a law would work an inequitable result, the judge may decline to apply the law as written in that instance. Why? Because the judge is cooperating with the legislature to bring about the common good as conceived by the legislature. The judge must act as the legislature’s conscience in doing so. Would the legislature, if it had this case before it, allow this outcome to occur despite the law’s written language?

So it is, that the Constitution would itself be a purposive instrument the nature of which is to order society to an effective pursuit of the common good. Alexander Hamilton argued against Justice Scalia’s position (in 1788, no less!) that this type of judicial review is somehow undemocratic. “The courts were designed to be an intermediate body between the people and the legislature in order . . . to keep the latter within the limits assigned to their authority.” The Federalist No. 78 (Alexander Hamilton).

And when it comes to undetermined legal questions, the court cannot in reality “defer” to the legislature because the question is one vested, according to Chief Justice Marshall, with the court itself: “What is the law?” In this limited circumstance, the judges have the authority to act as the people’s conscience. The people are the constitution’s legislature. And the pursuit of the common good, with regard to concepts like “free speech” and “equal protection,” can only be achieved by analyzing these concepts in light of the people’s current circumstance.

Indeed, Justice Scalia has admitted that Brown v. Board of Education serves as a challenge to his originalist viewpoint. Justice Breyer asked Justice Scalia, ”where would you be with school desegregation[,] . . . [i]t’s certainly clear that at the time they passed the 14th amendment, which says people should be treated equally, there was school segregation and they didn’t think they were ending it.” Justice Scalia responded that he would have voted with the dissent in the Court’s 1896 Plessy v. Ferguson decision, suggesting that he would have sided with the Brown majority. Ronald Turner, A Critique of Justice Antonin Scalia’s Originalist Defense of Brown v. Board of Education, 62 UCLA L. Rev. 170 (Nov. 2014)

Justice Scalia’s originalist defense, relying on Justice Harlan’s Plessy dissent, is tenuous. Justice Harlan himself believed in white supremacy and institutional racism. In fact, it appears in the dissent itself: “the white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” Plessy v. Ferguson, 163 U.S. 537, 561 (1896). Justice Harlan also declared that the closure of an all-black high school and the continual operation of an all-white school in the same area was consonant with the equal protection clause. Justice Harlan also joined a pre-Plessy opinion that upheld a penalty enhancement for adultery and fornication engaged in by black and white couples. Justice Harlan also owned slaves. So, Justice Scalia was misguided when he wrote that Justice Harlan’s dissent even entertains the idea that the equal protection clause interdicts “all laws designed to assert the separateness and superiority of the white race . . . .” Antonin Scalia & Bryan A. Garner, Reading the Law: The Interpretation of Legal Texts (2012) p. 88.

Instead, Brown has been more traditionally interpreted as non-originalist and based in the equitable interpretive power that the court has. Some commentators even blamed the merge of law and equity for this shift. But, several civil rights victories throughout the 19th and 20th centuries find root in non-originalist jurisprudence.

However, jurisprudence that leaves out consideration of the common good or the public’s conscience has had its own time in the sun. For example, “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.” Dredd v. Scott, 60 US 393 (1857). Words that Scalia himself may have uttered. A similar philosophy of doing “what it says” without consideration of “the result” prevailed in Justice Oliver Wendell Holmes’ jurisprudence: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.” Josh Blackman, Holmes: “If my fellow citizens want to go to Hell I will help them. It’s my job.” And he meant it., Library of Law Liberty (Mar. 19, 2014), available at http://www.libertylawsite.org/2014/03/19/holmes-if-my-fellow-citizens-want-to-go-to-hell-i-will-help-them-its-my-job-and-he-meant-it/. And in Buck v. Bell, 274 U.S. 200 (1927), his court upheld compulsory sterilization by the state of the mentally unfit. The lone dissenter in that case? Justice Pierce Butler, a Catholic who did not even bother to dignify the majority with response.

Perhaps equitable interpretation leads to more legal uncertainty, but the victories have been home runs and the defeats have been bunts. When “originalism” offers a victory, it is a single, a small step forward in a developing body of law, but every one of Originalism’s defeats has rained out the ballpark. Justice Scalia called great attention to clarity’s role in lending to legitimacy to the current system, but now, and as always, results matter.


If You Can’t Say Anything Good about Someone, Start a Dark Money Political Action Committee

By Ross Miller, Esq.

8190-Miller-RossJ-2016-web
Ross Miller, Esq. is a partner with the law firm of Gentile, Cristalli, Miller, Armeni and Savarese where he practices Administrative Law, Business Litigation and Election Law. He served as Nevada’s Secretary of State from 2007-2014.

Nevada’s status as an electoral battleground state ensures that every even-numbered year our advertising media are flooded with political messages. Increasingly, this political speech is in the form of so-called “dark money” advertisements, with anonymously sponsored messages intended to influence voters. They are rarely positive in their tone, and as these messages flood our airwaves some Nevadans may be reminded of the famous Alice Roosevelt quote, “If you can’t say something good about someone, come sit here by me.” But, in the current political context, perhaps the famous line should be amended to, “If you can’t say something good about someone, start a dark money PAC.”

The debate regarding regulation of political speech and attempts to rid our political process of the corruptive influence of money is anything but new. As leaders of the legal community, it is important that attorneys understand the legal framework regulating our political speech and the context of the regulation. An historical context, not surprisingly, is a chronology of action and reaction, or more specifically legislation and loopholes.

At the center of the legal and policy debate related to anonymous “dark money” political speech is the intent to prevent political corruption by regulating political speech. According to the Supreme Court’s landmark political speech decision in 1976, Buckley v. Valeo, an absolutely free political marketplace is not required by the First Amendment, nor is it desirable. Freedom of political speech and campaign finance regulations, by their nature, present conflicting means of attempting to preserve the integrity of the political process. Courts have generally resolved the conflict in favor of the First Amendment interests by subjecting any disclosure regulation to “exacting scrutiny”—a lesser standard than strict scrutiny, but still requiring that the regulation to be closely drawn to match a sufficiently important government interest. The Buckley case established constitutional framework for campaign finance regulation, but courts continue to evolve on these issues and many questions remain unanswered.

The Brief History of Campaign Finance Reform

There is nothing new about attempts to control or regulate campaign contributions and spending, nationally or here in Nevada, and that historical context is important in today’s political climate. The first federal campaign finance law was enacted in 1867 when congress passed a Naval Appropriations Bill. Part of that bill prohibited officers and employees of the federal government from soliciting money for campaigns from the naval yard workers. Since that time, it’s been a cycle of scandal, reform, and the ultimate discovery of new loopholes, which lead to a new scandal to complete and renew the cycle.

In 1907, the federal government banned corporate campaign contributions in the wake of a corporate fundraising scandal. Teddy Roosevelt ran for President as a “trustbuster,” but was a little too aggressive in his pursuit of corporate cash. The campaign was successful, but there was a backlash against the reform and after he was elected, Roosevelt closed the door for future candidates when he signed the Tillman Act in 1907, banning corporations and national banks from giving directly to candidates. The pace of campaign reform then slowed for several decades with occasional minor changes.

The next broadly significant action came in 1971 when Congress passed the Federal Corrupt Practices Act (FECA). It was a response to skyrocketing campaign costs, and the political influence of special interests. As a means of engaging in speech within the FECA regulatory structure, the phenomenon known as “soft money” became prominent in political speech in 1979 and at the federal level it opened the door for virtually unlimited donations from corporations and unions. By 1996, both Democrats and Republicans had taken soft money to extremes, with both parties offering perks and special access in exchange for soft money support. The upshot was some limited, and eventually fruitless, investigation by the Department of Justice.

Citizens United and the Anonymous Political Speech Aftermath

In 2010, the Supreme Court held in Citizens United that outside political spending by corporations and unions violates the First Amendment. That decision set the stage for the creation of SuperPACS. A SuperPAC is a political action committee that is permitted to raise and spend unlimited amounts of money, including money from corporations and union for political advertising for or against a candidate. The reasoning in Citizens United was that “independent expenditures” is money spent for advertising without the cooperation or coordination of the candidate and therefore cannot possibly have a corrupting influence. Contrary to popular belief, Citizens United did not hold that corporations (or unions) can give unlimited amounts of money directly to candidates. Corporations (and unions) are still prohibited by federal law from giving any contributions whatsoever directly to candidates. Yet, one of the major criticisms of Citizens United is that there are many situations where the notion that the spending is “independent” seems laughable, including oft cited examples where SuperPACs, which are ostensibly “independent” of a candidate, but the candidate actively raises funds for the PAC and the PAC is then run by the candidate’s very-recently departed campaign managers, political advisors, and even the candidate’s parents or family members.

Since Citizens United, campaign operatives on the federal level have found ways to engage in unlimited spending while also staying anonymous. It is a marriage of so-called issue groups and SuperPACs: political actors create a 501(c)(4) “social welfare” group which generally is not required to disclose its donors, raises funds and then donates money to a SuperPAC. Consequently, the SuperPAC generally reports its donors and not surprisingly, simply lists the 501(c)(4) as its only donor. Perhaps in some type of Orwellian sense, we now have transparency without disclosure.

In recent years, we have now witnessed a dramatic increase in the amount of money being pumped into the system by 501 (c) 4 social welfare groups, nonprofit organizations that, at least in theory, have a mission of promoting social welfare causes. Legally, these 501(c) 4’s are allowed to participate in politics, but politics cannot be group’s the main focus. These groups are required to spend less than fifty percent of their money on politics but so long as they don’t exceed that cap, the groups can influence elections, which they typically do through advertising. Donors to these groups, both individuals and corporations, are not required to publicly report the donations. The end result is that sources of much of the money flowing to politically active, tax-exempt groups remain unknown. Much of the advertising in the current election cycle is attributable to this anonymous speech funded by 501(c)(4)’s.

Irrespective of one’s views on how much regulation is needed to control against the corruptive influence of money in politics, it is undeniable that the significance of the debate should weigh heavily on our legal community. And, as a body of respected voices, we need to remain engaged in the ongoing debate about speech that influences our elections. As one of our recent Supreme Court Justices recently said:

“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously . . . This does not resemble the Home of the Brave.”

Evidencing that participation in the public campaign finance debate can have surprising results, that is a quote from Justice Antonin Scalia—yes, Scalia—from his concurring opinion in John Doe No. 1 v. Reed, (2010).

If our states are going to be laboratories for democracy, then we should support the work in those laboratories that will make our democracy healthier. As Nevada’s legal community, we owe an obligation to the public to remain informed about the context of the political speech influencing our elections and the legal framework in place to regulate it.


Free Speech Can Be Expensive for Government Employers

By Andre Lagomarsino, Esq.

6711-Lagomarsino-AndreM-2016-web
Andre Lagomarsino, Esq. has practiced law in Nevada since 1998. He is the managing partner of Lagomarsino Law, a boutique firm based in Henderson, Nevada. He has litigated constitutional claims against various political subdivisions in Nevada.

It is illegal for government employers to retaliate against employees who engage in free speech, as private citizens, relating to matters of public concern. When a government agency breaks this well-recognized rule, the consequences can be costly.

In order to determine whether an aggrieved employee can sustain her case, a court will consider the following factors: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).

The employee has the burden to satisfy the first three factors of the five-step test. Ellins v. Cnty. Of Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013) (citing Eng, 552 F.3d at 1070). If the employee succeeds, then the burden shifts to the employer to establish the fourth and fifth steps. Ellins, 710 F.3d at 1046 (citing Robinson v. York, 566 F.3d 817, 822 (9th Cir. 2009)).

Whether a matter is one of “public concern” is a question of law. Gibson v. Office of Attorney General, State of California, 561 F.3d 920, 925 (9th Cir. 2009). Employee complaints for personal issues such as mean bosses, smelly co-workers, and inadequate parking spots are not matters of public concern. Speech concerning the corruption of public officials is clearly a matter of public concern. Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir. 2007). Speech regarding public health and safety is also easily categorized as a matter public concern.

The question of whether the employee made the statement pursuant to official job duties or a private citizen is a question of fact. A public employee can be deemed to have spoken as a private citizen “if the speaker ‘had no official duty’ to make the [subject] statements, or if the speech was not the product of ‘performing the tasks the employee was paid to perform.” Eng, 552 F.3d at 1071. In Posey v. Lake Bend Oreille School District No. 84, 546 F.3d 1121, 1129-31 (9th Cir. 2009), the Ninth Circuit instructed that an employee’s job duties should be determined by the fact-finder and the court should decline to render judgment on the issue at the summary judgment stage.

In order to show that a plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action, the plaintiff employee will have to prove to the factfinder that the government employer would not have taken an adverse employment action in the absence of the protected speech. This type of proof could include evidence that the employer disagreed with the employee’s speech. O’Connor v. Chicago Transit Auth., 985 F.2d 1362 (7th Cir. 1993). The amount of time between the speech and the adverse action is also one of many elements to consider when proving this causation-type element. Id. at 1368. Proximity in time, together with other evidence, is sufficient to allow for an inference of retaliation. Durant v. Independent Sch. Dist. No. 16 of Leflore County, 990 F. 2d 560, 564 (10th Cir. 1993). This element is usually a question of fact and is appropriately left for the factfinder. Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988).

When the burden shifts to the governmental employer to show that it had adequate justification for treating the employee differently than any other member of the public, the employer must show that “the government’s interest as an employer in a smoothly running office outweighs an employee’s First Amendment right…” Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009). To sustain its burden, the government “must demonstrate actual, material and substantial disruption, or reasonable predictions of disruption in the workplace.” Id. Absent this type of evidence, the government employer should lose on this element (assuming the law is properly applied).

The last factor to be considered is whether the government can sustain the burden of proving that it “would have reached the same adverse employment decision even in the absence of the employee’s protected conduct.” Eng, 552 F.3d at 1072. This “but-for causation inquiry is purely a question of fact.” Robinson, 566 F.3d at 825. If a Plaintiff has established the third element, that the protected speech was a catalyst for the adverse employment action, this element, which is “purely a question of fact,” is usually left for the jury.

First Amendment retaliation claims are brought under the authority of 42 USC §1983. These claims are fact-intensive and can often require extensive discovery efforts and motion practice. Trials can take weeks or months. The attorney fees and costs, alone, make trying these cases very expensive. If a Plaintiff prevails on this type of a claim, she will be entitled to an award of not only damages and costs of suit, but also attorney fees under 42 USC §1988. In cases that last years, the prospect of the government having to pay the Plaintiff’s attorney fees can be daunting.

Based on almost two (2) decades of experience, it is this author’s opinion that governmental entities, when faced with what appear to be meritorious cases, should strive for settlement at the earliest stages of litigation. This strategy would save the taxpayers millions dollars that would otherwise go into the black hole of litigation defense.

Courts have long held that employees cannot be punished for exercising their First Amendment rights. Despite this established area of the law, Nevada government entities, too often, litigate and try claims that could have been avoided had their managers and executives acted legally in the first place.


A National Tradition: Prayers and Government

By Joseph R. Meservy, Esq.

14088-Meservy-Joseph-web
Joseph R. Meservy, Esq. is a Nevada attorney focusing on civil litigation. During law school, he served as the president of an award-winning student chapter of the J. Reuben Clark Law Society, an international society that affirms the strength brought to the law by a lawyer’s personal religious conviction.

The First Amendment of the Bill of Rights states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Pursuant to the establishment clause, federal and state governments may not establish or endorse a state religion and “[n]o person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.” Everson v Board of Ed. of Ewing Tp., 330 U.S. 1, 15-16 (1947). Americans cannot be forced to pray to another god or in a manner that is objectionable to them. Nevertheless, in the spirit of internally-exercised self-determination, even government officials may offer a prayer consistent with the free exercise of religion clause. See Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (Dec. 10, 1948), art. 18. The consequences of the religion clauses of the first amendment and subsequent relevant jurisprudence regarding application of the First Amendment may raise some questions relating to the balance of free exercise of religion among elected and appointed state officials and the answers to those questions may be surprising.

Is legislative prayer permitted?

The U.S. Supreme Court has held that opening legislative sessions with a prayer offered by a hired clergyman and consistent with the clergyman’s beliefs was a permissible governmental action. See generally Marsh v. Chambers, 463 U.S. 783 (1983), overruled in part by Town of Greece, N.Y. v Galloway, 134 S. Ct. 1811 (2014). Similarly, opening town board meetings with rotating denominational prayers offered by volunteer private citizens was likewise permissible. See generally Town of Greece, N.Y. v Galloway, 134 S. Ct. 1811 (2014). A 2014 determination by the U.S. Supreme Court on the subject of rotating denominational prayer states: “As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable court’ at the opening of this court’s sessions.” Town of Greece, N.Y., 134 S. Ct. at 1825. The court’s majority opinion regarding opening town meetings with prayer continues: “The inclusion of the brief, ceremonial prayer as a part of a larger exercise of civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers.” Id. at 1827. Every citizen’s beliefs are protected because, “[o]nce it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates.” Id. at 1822-23.

In a majority opinion offered 30 years earlier, the court explained that, “legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations.” Marsh, 463 U.S. at 791. Presently, both branches of the U.S. Congress hire clergymen to open legislative sessions with prayer. The practice of opening sessions of Congress with prayer has continued without interruption for more than 200 years, since before the passage of the Bill of Rights. See Id at 783, 792. In fact, the Hall of the House of Representatives regularly substituted as a Sabbath meeting place for various denominations for more than 50 years, commencing during the presidency of Thomas Jefferson, who even attended just two days after penning the famous “separation of church and state” letter to the Danbury Baptists. Library of Congress, Religion and the Founding of the American Republic: Religion and the Federal Government, Part 2, available at https://www.loc.gov/exhibits/religion/rel06-2.html; see also 6 Annals of Cong. 797 (1800) (Joseph Gales ed., 1834). The U.S. Constitution, Article 6 also prevents religious tests for elected officials and is a dramatic departure from the practice of the states at the time of the framing of the Constitution.

Is executive prayer permitted?

In Lynch v. Donnelly, the U.S. Supreme Court listed Congress’ law regarding a National Day of Prayer and similar Presidential proclamations recognizing religion as permissible recognition of religion under the religion clauses of the First Amendment. 465 U.S. 668, 677-78 (1984), reh’g denied, Lynch v. Donnelly, 466 U.S. 994 (1984).

Nearly thirty years later, in Freedom From Religion Found., Inc. v. Obama, a per curiam federal circuit decision held that an organization of nonreligious people lacked standing to argue against the constitutionality of a National Day of Prayer because they had not been injured by statute or by proclamations for a National Day of Prayer. Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803, 805 (7th Cir. 2011).

Executive proclamations for prayer are customary. Between 1789 and 2016, there were at least 145 formalized national calls to prayer, humiliation, fasting, and thanksgiving by the President of the United States. Pursuant to federal law, on the first Thursday in May, the nation holds a National Day of Prayer, on which “the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” 36 U.S.C. § 119 (2016).

Similarly, the last Monday in May is designated as Memorial Day, and the President is requested by Congress to issue a proclamation “calling on the people . . . [to] unite in prayer for a permanent peace.” 36 U.S.C. § 116 (2016).

Historically, presidents have dedicated national days of prayer for a variety of reasons including thanksgiving, reuniting a deeply divided nation, wartime pleas for the success of soldiers, and pleas for the safety and recovery of persons presumed lost to tragedy and violence. See, e.g., 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897); Proclamation Appointing a National Fast Day, (Mar. 30, 1863), in 6 The Collected Works of Abraham Lincoln 156-­7 (Roy P. Basler et al. eds., 1953); Franklin D. Roosevelt, D-Day Prayer, (Jun. 6, 1944), available at http://docs.fdrlibrary.marist.edu/odddayp.html.

Is judicial prayer permitted?

Under the establishment clause, it appears that judge offered prayers have generally faced less favorable scrutiny than prayers offered in the other branches of government. Unlike plaintiff prayers for relief, court administered prayers, have not been accepted. There is no long-standing tradition of opening courts with prayer. N. Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1148 (4th Cir. 1991). In N. Carolina Civil Liberties Union Found., a resolute federal circuit court affirmed a lower court decision ruling that a state court judge’s practice of beginning sessions with an invitation to “[l]et us pause for a moment of prayer,” followed by a rote prayer, entangled government and violated the establishment clause. See generally id. at 1146-53 (applying the Lemon Test.). The federal circuit court’s opinion noted that a judge is the court and the presiding officer in a courtroom, unlike a legislator or chaplain situated among legislators in a capitol building. Id. at 1149. Thus, judge-offered prayers subjected attorneys, plaintiffs and defendants to that prayer. See generally id. at 1146-53. The panel noted that the judge was free to pray privately in his home or chambers in harmony with the law before going onto the bench. Id. at 1151, n.*; cf. also Model Code of Judicial Conduct R. 3.6, cmt. [4] (2011).

Having no clear U.S. Supreme Court interpretation on this matter, additional considerations are arising; for instance, whether a court may institute a chaplaincy program whereby the judge does not offer the prayer, remains a subject of contemporary discussion. See Letter from Dan Patrick, Lt. Governor of Texas, to Ken Paxton, Texas Attorney General (Feb. 16, 2016), available at https://www.ltgov.state.tx.us/wp-content/uploads/docs/DP-OAG_opinion_request_20160216.pdf.

Many courts, including the U.S. Supreme Court, open with the words, “God save the United States and this Honorable Court.” N. Carolina Civil Liberties Union Legal Found., 947 F.2d at 1151; see also Marsh, 463 U.S. at 786. The U.S. Supreme Court recently held that this recitation “lend[s] gravity to public proceedings and . . . acknowledge[s] the place religion holds in the lives of many private citizens.” Town of Greece, 134 S. Ct. at 1825.

The U.S. Constitution does not require a person to surrender his or her beliefs upon the assumption of judicial office. Moreover, the U.S. Supreme Court has held that state conduct that merely happen to coincide with or harmonize with the tenets of all or some religions are not banned by the establishment clause. McGowan v. State of Md., 366 U.S. 420, 442 (1961). Thus, it is likely that the consistency of those words with religious belief is an acknowledgement, rather than an endorsement, of religion.

Finally, the ABA’s Model Code of Judicial Conduct, adopted in several states, provides guidance regarding a judge’s duty when presiding over cases, including those involving prayer. See Model Code of Judicial Conduct R. 2.3 (2011). Additionally, nothing in the law ought to compel or prohibit a state bar association from establishing a religious liberty section for admitted attorneys to better familiarize themselves with the state of the law in that area.


Advertising in Nevada in today’s legal environment

By Farhan Naqvi, Esq.

8589-Naqvi-Farhan-2016-web
Farhan Naqvi, Esq. is managing partner of Naqvi Injury Law, which he founded in 2008. He is a member of the State Bar’s Lawyer Advertising Committee. Contact Farhan at (702) 465-8733 or e-mail at Naqvi@naqvilaw.com.

Attorneys in Nevada frequently advertise their services and successes to their target audience throughout the state. As a member of the Southern Nevada State Bar Lawyer Advertising Advisory Committee for the past three years, I have seen just about every advertisement that has been published, aired or posted. As a licensed Nevada attorney, you are required to submit all of your ads to this committee for its review of potential ethical violations. You are also required to retain a record of each advertisement for four years after its last dissemination, along with a record of when and where it was used.

The purpose of the State Bar’s guidelines for advertising are certainly not to curb your freedom of speech or constitutional first amendment rights . . . which is why the committee generally reviews advertising AFTER it is published, rather than before (though you can request an advanced advisory opinion from the Bar as well). Your constitutional right of free speech allows you to choose your own advertising, but the public relies on you to be ethical and truthful. The State Bar only intervenes when advertising is non-compliant with the Nevada Rules of Professional Conduct 7.1 thru 7.5 and Supreme Court Rule 106.

Potential ethical violations

Some potential ethical violations include:

  • Calling yourself “the best” without substantiating the claim. Per the Lawyer Advertising Interpretive Guidelines, “such statements are subject to proof of verification, to be provided at the request of the State Bar or a client or prospective client.” RPC 7.2 (g).
  • Making false or misleading statements about your character or the quality of your services.
  • Making vague statements that require clarification. For example, claiming there is “No Fee Until You Win” may be true if you are working on a contingency fee basis. But in the case of a loss, the client may have to pay the other side’s attorney or other fees.

If you are currently advertising or considering advertising, you must carefully consider the claims you make in your ads. Discussing past results brings a few requirements that you must consider. If you include or make claims on past results in your advertising:

  • You must note that they don’t guarantee, warranty or predict the outcome of future cases.
  • You must have served as lead counsel in the matter you are referring to, or were primarily responsible for the settlement or verdict.
  • If you include a monetary sum, the amount must have actually been received by the client AND you must include adequate information on the nature of the matter and damages sustained.
  • If you include a gross amount received, attorneys’ fees and litigation expenses withheld from the amount must also be stated.

And of course, every advertisement for a licensed Nevada attorney must clearly identify the attorney. The rules provide that “all advertisements and written communications disseminated pursuant to these Rules shall identify the named of at least one lawyer responsible for their content.” RPC 7.2(c). If you’ve ever seen my billboard advertisements, you know that I practice what I preach in this area! And speaking of billboards, did you know the State Bar requires disclaimers on billboards to be readable? You would be surprised at how often they are not.

One area in which some attorneys might not be aware of the advertising rules is social media. All social media posts/platforms and attorney and firm websites must follow the advertising guidelines set forth by the State Bar. This doesn’t mean you can’t have fun with your posts and website, just that the same rules apply.

What happens if my ads are non-compliant?

What happens when your advertising is found to include ethical violations? You will be notified with a correction request from the State Bar for non-compliant ads. Depending on the violation, more serious sanctions may be warranted.

How to file your ads with the state bar

Nevada attorneys are required to submit their advertising to the Bar within 15 days of dissemination. You can email the files to advertising@nvbar.org or mail them.

You also have an ethical responsibility to contact the Bar if you see violations in Southern Nevada attorney advertising. Bar counsel will review the ads in question and report to the committee for further action.

Advertising is a great way for attorneys to distinguish themselves from their peers. By knowing the rules in advance, you’ll avoid potential ethical violations and keep the focus where it should be . . . on you and your firm.


Gun Restrictions and the Second Amendment

By Stephen F. Smith, Esq.

4478-Smith-Steve-2014-web
Stephen F. Smith, Esq. is a member of the Nevada Bar since 1991, member of the CCBA, and has written and lectured on Nevada gun laws.

Firearms are regulated by federal and state law. Two Supreme Court of the United States cases, District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010) forever changed the landscape regarding the Second Amendment. These cases created the Second Amendment as an individual right applicable to the states. In Heller, the Court held that the ban on handguns in the District of Columbia violated the Second Amendment by prohibiting an entire class of guns. Then in McDonald, the Court relying upon its reasoning in Heller held that the City of Chicago’s ban on the possession of handguns violated the Second Amendment, which was then applicable to the states via the due process clause of the Fourteenth Amendment. After these two decisions, gun rights advocates sought to challenge states which restricted gun rights, but then Justice Antonin Scalia suddenly passed away creating doubt with respect to further challenges. Even Justice Scalia acknowledged in Heller that nothing in the Court’s opinion would restrict banning guns from felons or the mentally ill or forbid carrying guns in sensitive places, such as schools and government buildings. In other words, the Court would allow reasonable amount of gun restrictions, but not outright bans. These Supreme Court cases have little to no effect in Nevada because Nevada generally permitted firearms for defense in the home and outside the home.

Nevada has its own version of the Second Amendment found in the Constitution of the State of Nevada, Article I, Section 11(1) which states that “(e)very citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.” Nevada’s version is broader and stronger. By contrast, the Second Amendment of the Constitution of the United State of America provides “(a) well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Some commentators view Nevada as a “gun friendly state,” while other commentators contend that Nevada has a confusing labyrinth of restrictions. In one survey, Nevada was found to be the 22nd most restrictive state. The 78th (2015) Session of the Nevada Legislative saw a number of gun bills make it through and signed by the governor. But the most important bills, such as campus carry and abolishing a concealed weapons permit, never made it to the governor’s desk. There was an attempt or a movement to make Nevada a “constitutional carry” state, which does not require a permit to carry concealed a handgun or firearm. It is still a class C felony to carry a handgun or firearm concealed without a permit. Open carry is permissible in Nevada but not concealed carry without a permit. By contrast, Arizona and seven other states eliminated the requirement to obtain a permit for a concealed firearm.

In the 2015 legislative session, SB 175 eliminated the gun registration blue card program which had only existed in Clark County, Nevada. However, the bill also made it expressly prohibited to preclude those convicted of a misdemeanor domestic violence offense from possessing a firearm.

Essentially, the same restrictions on guns and places to bring guns has remained in place with one exception. The “Preemption Bill” in 2015 (SB 175 and 240) repealed local restrictions to bring guns to county and city parks in Clark County. It also caused certain municipalities to stop enforcing ordinances which prohibited loaded handguns in automobiles. As a general rule, cities and counties may not pass ordinances or regulations regarding firearms except those pertaining to unsafe discharge. If the sign to a public or private establishment says “Firearms prohibited” or “No Firearms,” the firearms are prohibited and firearms should not be brought onto the premises, such as a casino. Federal law prohibits firearms inside federal buildings, post offices, and buildings used by government offices. State law prohibits firearms in child care facilities, as well as schools, including public, private and higher education facilities. Similarly, such prohibitions also apply at airports and buildings on the property of a public airport, as well as buildings with metal detectors at the entrance and buildings used by the state or municipal governments with “no weapons” signs posted at the entrance. Private property establishments have the authority to prohibit firearms while on their premises even though state law does not make it a criminal offense.


Contempt and Domestic Orders: Impact of Nevada Constitution Art. 1 § 14

By Senior Judge Gerald W. Hardcastle and Gerri Lynn Hardcastle, Esq.

At the most basic level courts perform two functions: they make orders and they enforce orders made. One tool available to enforce court orders is the inherent power of contempt. The contempt power includes the power to jail those who are found to have violated orders or are disrespectful to the court’s processes. Regardless of the other powers included in the court’s arsenal, the power to incarcerate tends to be a most effective remedy.

The Family Court frequently receives requests that one party or the other (or both) be held in contempt for violating an interim or final order. The purpose of this article is to discuss the court’s power to hold a party in contempt for violating child support, spousal support, or property distribution provisions of a domestic order in light of Nevada Constitution art. 1 § 14.

History has taken a cynical view of imposing incarceration for failure to pay one’s debts. Brown v. Brown, 412 A.2d 396, 399-401 (Md. Ct. App. 1980). Under Nevada Constitution art. 1 § 14, the court’s inherent contempt power is constitutionally limited by the provision which provides, “there shall be no imprisonment for debt, except in cases of fraud, libel or slander. . .”

In commercial transactions provisions similar to art. 1 § 14 impose significant restriction on debt collection practices. While creditors may obtain a judgment, post-judgment remedies do not include the ability to seek incarceration of the debtor for failure to pay the judgment. However, courts have treated obligations under domestic orders differently.

A. Child support and spousal support obligations

There is universal support for the proposition that child support and spousal support provisions of an interim or final domestic order are not subject to constitutional proscriptions prohibiting imprisonment for debt. Jurisdictions tend to characterize support obligations under a domestic order as a “legal duty” instead of a debt. As early as 1920 in Ex parte Phillips, 43 Nev. 368, 373, 187 P. 311, 311-12 (1920) and more recently in Hildahl v. Hildahl, 95 Nev. 657, 662-63, 601 P.2d 58, 61-62 (1979) the Nevada Supreme Court determined that support obligations do not constitute “debt” within the meaning of art. 1 § 14.

B. Property distribution provisions

The application of art. 1 § 14 is not as clear when considering property distribution and marital debt provisions in domestic orders. Subtle issues of language and conflicting law must be considered.

1. Constructive trust provisions

There are many property and debt distribution provisions contained in domestic orders wherein one party is required to perform a ministerial act. For example, a party may be required to transfer a residence to the other, or one spouse may be required to close a bank account and pay over a portion of the proceeds to the other, or one spouse may be required to pay a portion of his or her retirement to the other when received.
The generally accepted rule for such provisions is expressed in In re William L. White, No. 12-08-00214, 209 WL 1153396 at 82 (Tex. Ct. App. Apr. 30, 2009):
If a court finds that a certain property at issue currently exists and awards that property as a part of the community estates’ division, the contemnor is not indebted to the other party but becomes a constructive trustee who holds that party’s assets.

Accordingly, contempt is available and constitutional restrictions such as art. 1 § 14 are inapplicable.

2. Debt obligations in nature of support

Many courts have concluded that a debtor may be held in contempt for failure under a decree or interim domestic order to pay obligations determined to be in the nature of support. For example, assume Husband is required to pay the parties’ marital debt. Even though the provision is found in the property division portion of the decree, the argument can still be made that the assumption of the debt was intended to provide support for Wife and the children. In Hall v. Hall, 838 P.2d 995, 1004 (N.M. Ct. App. 1992) the New Mexico court stated:

The payments husband was supposed to make under the property division portion of the final decree were not mere civil money judgments. They were recognized to be in the nature of alimony or support to wife to meet her needs. A divorce court has discretion to use available means including contempt to insure that its orders of support are obeyed. Nor is it a violation of the constitutional provision against imprisonment for debt. (citations omitted).

In Decker v. Decker, 326 P.2d 332, 338 (Wash. 1958) the Washington Supreme Court reaches the same conclusion and puts the obligation on the obligor to demonstrate that an obligation to pay under a property settlement provision in a domestic decree is not a support obligation.

3. Debt ex contractu

In efforts to limit provisions similar to art. 1 § 14, some courts have distinguished between court-ordered payments and “debts ex contractu,” referring to debts arising as the result of agreement between the parties. Does it make a difference whether the parties agreed to the property and debt provisions or whether the court ordered the division after trial or hearing? Some courts conclude that it does. Contempt is prohibited as to the agreed provisions but not as to obligations ordered by the court after contested hearing. Smith v. Smith, 703 So.2d 418 (Ala. Civ App. 1997); Dolberry v. Dolberry, 920 So.2d 573 (Ala. Civ. App. 2005); and Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa. Super. 1995).

4. Conflicting decisions

The above issues aside, there are clearly instances where the obligations imposed by the decree or order are like debts in a more traditional sense. Requiring one party to assume a portion of the mutual indebtedness incurred during the marriage or requiring one party to pay a sum certain for the other party’s share of a marital residence are more like indebtedness, albeit in a domestic rather than commercial setting. The issue is whether these domestic property division and marital debt provisions can be enforced by contempt consistent with constitutional provisions similar to art. 1 § 14.

The following cases conclude that provisions similar to art. 1 § 14 prohibit contempt proceedings in such cases: In re Bielefeld, 143 S.W.2d 924, 927-29 (Tex. App. 2004); Fisher v. Fisher, 787 So.2d 926, 929-30 (Fla. App. 2001); Marriage of Nussbeck, 949 P.2d 73, 76-77 (Colo. App. 1997); Burgardt. Burgardt, 474 N.W.2d 235, 236 (Minn. App. 1991); Profitt v. Proffit, 105 Ariz. 222, 462 P.2d 391, 393 (Ariz. 1964); and Stone v. Stidham, 96 Ariz. 235, 237-39, 393 P.2d 923, 925-26 (Ariz. 1964).

In an often cited decision the California Supreme Court in Bradley v. Superior Ct., 48 Cal.2d 509, 518, 310 P.2d 634, 642 (Cal. 1957) stated:

We are satisfied that the better view is that payments provided in a property settlement agreement which are found to constitute an adjustment of property interests, rather than a severable provision for alimony, should be held to fall within the constitutional proscription against imprisonment for debt.

In contrast to this determination, there are other cases which have determined that property distribution and marital debt provisions are enforceable by contempt. See Ryan v. Ryan, 2014 Ohio 3049, 5-6 (Ohio App. 2014). In Harris v. Harris, 390 N.E.2d 789, 793-94 (Ohio 1979). the Ohio Supreme Court determined that that there are no policy distinctions between property distribution and support provisions of a domestic order, concluding that property provisions incorporated into a decree would be enforceable through contempt without violation of Ohio’s constitutional provision proscribing imprisonment for debt. The Ohio court determined the distinctions were “arbitrary and artificial.”

Nevada has not extended its position beyond the principles rendered in 1920 in Ex parte Phillips. For attorneys seeking enforcement of property distribution and marital debt provisions of a domestic order via contempt the conflicting case law should be considered.

The Honorable Gerald W. Hardcastle, admitted to the Nevada Bar in 1974, is a retired Family Court Judge with the Eighth Judicial District Court. He continues to serve as a Senior Judge.

Gerri Lynn Hardcastle, Esq., describes herself as a “kinder and gentler” Gerri Hardcastle. She was admitted to the Nevada Bar in 2013 and recently concluded her position as a law clerk to the Honorable Justice Michael A. Cherry.
In August 2013 she began employment as a deputy in the Nevada State Attorney General’s office.


The Court giveth and the Court taketh away: The right to be a parent

By Jason P. Stoffel, Esq.

Jason P. Stoffel, Esq.
Jason Stoffel, Esq. is one of the partners of Roberts Stoffel Family Law Group in Las Vegas. His area of practice for over 12 years has been in family law. He proudly serves on the Executive Board of the Clark County Bar Association for several years.

Parents have a right to be a parent. It is a constitutionally protected right. In the case of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), the United States Supreme Court has said that “the interest of parents in the care, custody and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.” See Id. In limited cases, the court can remove this right.

The United States Supreme Court reminds us that a parent-child relationship is a constitutionally protected one and the decision to terminate rights of a parent must be supported by at least clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388 (1982); In re Carson, 76 Nev., 446, 357 P.2d 591 (1960).
The bond between a parent and a child is a fundamental liberty interest that is protected by the Unites States Constitution. In the Matter of the Parental Rights as to Q.L.R., 118 Nev. 602, 54 P.3d 56 (2002).

A family law practitioner has to be the bearer of bad news when we are occasionally asked to file a Petition on behalf of a client to terminate the other parent’s parental rights but the facts do not justify this rare relief. Here, are the top 5 examples I get when a parent wants to have the other parent’s rights terminated:

  1. The non-custodial parent is behind on child support.
  2. One parent is using illegal drugs.
  3. One parent is incarcerated.
  4. One parent believes the other parent is “unfit” and applies their own definition.
  5. One parent refuses to maintain a regular relationship with the child.

To terminate the constitutional rights of a parent, the court is required to find by clear and convincing evidence that: 1) the best interests of the child are served by the termination; and 2) parental fault exists. In the Matter of Parental Rights as to N.J., 116 Nev. 790, 8 P.3d 126 (2000). This is codified in NRS 128.105.

Parents have a constitutional right to be a parent under the plethora of substantive due process cases line of cases. See Id. Terminating parental rights is an exercise of awesome power “tantamount to imposition of a civil death penalty.” Drury v. Lang, 105 Nev. 430, 433, 7765 P.2d 843, 845 (1989).

Parents are given much discretion as to how to raise their children. Where the government gets involved is when the facts and circumstances arise that exceed this discretion. The court should not be in the business second-guessing the parent’s right to raise their children. See Steward v. Steward, 111 Nev. 295, 890 P.2d. 777 (1995). The government has to ensure safeguards are in place such as reunification, preventing the risk of serious injury to a child, failure of parental adjustment, etc.

However, the issues I regularly see in my practice often time do not result in a Termination Petition absent some clear and compelling reason such as a parent that cannot quit using drugs or a parent that has been absent for years and then wants to be a parent years later. The court also does consider the purpose of the termination proceeding and often times it is for subsequent step-parent adoption.

These termination actions are one of the rare times that the Legislature has codified the legislative intent as to when the proceeding should be completed and shall use best efforts to complete this action (6 months). See NRS 128.055.

In summary, the court has broad discretion to consider all facts to make the appropriate findings to remove a parent from the child’s life and from the child’s birth certificate. These are tough and emotional cases, but at least parents have constitutional protections. The Court may (not shall) appoint counsel for their defense of the action because of the fundamental liberty issues presented. NRS 128.100.


About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2016 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

COMMUNIQUÉ accepts advertisements from numerous sources and makes no independent investigation or verification of any claim or statement made in the advertisement. All articles, letters, and advertisements contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Clark County Bar Association.

COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.