Smarter Than the Reasonable Bear

The Nevada Supreme Court: What’s a little cash among friends?

The Nevada Supreme Court, Carson City, Nevada - photo: Ken Lund licensed under CC BY-SA 2.0

Opinion

A three-judge panel of the Nevada Supreme Court handed down a little-noticed ruling back in January, denying an appeal filed by residents of a small town in the north end of Lyon County. It was an unpublished decision, which meant—prior to recent rule changes—it was not important enough to be cited or serve as legal precedent. 

The case involved a run-of-the-mill land use decision by county commissioners in a growing, but undistinguished rural county. A mining company had acquired some property in a little town and they wanted to mine it. In order to do so, they had to change the property’s existing master plan land use designation and residential zoning, which prohibited mining. These restrictions had been in place for decades, since the county first introduced planning and zoning in the 1980s. 

Of course, the inhabitants of this little town fiercely opposed the change. It would open the door for open pit mining literally across the road from some residents’ homes, and within a stone’s throw of everyone else. 

Not surprisingly, the County Planning Department staff and the County Planning Commission—made up of ordinary citizens–recommended denial of the mining company’s application. The company then took the matter to the County Commission, who dutifully reversed the previous recommendations and approved the application.

It was well within the Commissioners’ power to revisit recommendations by the Planning Commission and come to their own conclusion. But this is where the case jumps the tracks and goes beyond being just another rural Nevada nothing burger.

The facts are these: The same mining company bringing the master plan amendment and zoning changes before the Lyon County Commissioners had, 1) made a donation of $17,500 to the political campaign of one commissioner and 2) was paying another commissioner and her husband $7,083 per month in consulting fees, at the very time their application was before her. 

The town’s residents argued that these two Commissioners had a clear conflict of interest, and should recuse themselves. The commissioners refused, which became grounds for a lawsuit in District Court and, when that failed, an appeal to the Nevada Supreme Court. The three-judge panel, acting as the Court, rejected this appeal. 

In excusing the two Commissioners, the Court said they had properly disclosed their “pecuniary interests,” and that none of the financial relationships they described required recusal. 

State law does address this kind of situation–NRS 281A.420 if you want to look it up—both with respect to requirements for recusal by public officers and assurance of due process. However, the law has a blatant contradiction. The Court’s ruling showed us just that, in two consecutive sentences:

 “A public officer may not vote on a matter where their private interest would materially affect ‘the independence of judgment of a reasonable person’ in their situation (NRS 281A.420(3). Public officers, however, are presumed to be independent from their private interests (NRS 281A.420(4)(a)).”

Laws attempt to apply subjective terms like “reasonable” as objectively as possible to real life. Semantics are fine, but the best way to understand such things is through example. 

Let’s return to the day of the hearing, when the two Commissioners in question refused to recuse themselves. Both went through the motions of what is called “disclosure,” although the rules of the game did not require anything beyond passing reference to a financial relationship of some sort with the mining company. 

They omitted the most crucial element of this relationship, and the very first thing any “reasonable person” would want to know. Namely, how much money are we talking about here? 

Commissioner 1—a California transplant who had never run for office before—did not say, “The mining company gave me $17,500 for my very first political campaign. This was the largest single political contribution in the history of Lyon County. It was seven times more than any other cash contribution to any Lyon County campaign, ever, with the exception of candidates’ self-funding. It was sixty percent of my total campaign. However, no ‘reasonable person’—namely me—would have their ‘independence of judgment’ affected by this money, especially with respect to the application before us now, from this very same mining company.” 

Commissioner 2 did not say: “The mining company is at this very moment paying my husband and myself $7,083 per month. They’ve done so for the past nine months, totaling $63,747, and because our current contract extends for another year and four months, we look forward to being paid an additional $113,328. And to echo my fellow commissioner, no ‘reasonable person’—namely me—would have their ‘independence of judgment’ affected by this money, especially with respect to the application before us now, from this very same mining company.” 

The second half of the contradiction is even more stunning. Nevermind the judgment of a reasonable person. Public officers, i.e. politicians, are granted a presumption of independence—innocence—from their private interests. NRS  281A.420 does nothing less than cram down our throats the old politicians’ canard that money doesn’t affect them. 

There is no group of people on the face of the earth less deserving of this presumption of innocence than politicians. Politicians? The people whose positions and power—their very existence—depend upon pulling together enough money to win elections. Where, and in what reality, is that money irrelevant and its source completely without consequence? 

Finally, the Court—and the mining company’s attorneys—made the point that recusal is “disfavored” because it deprives the public officer’s constituents of their voice. 

This is the most revealing aspect of the Court’s decision. Contradictions in law invite the Court—individual justices knowing right from wrong—to define justice. It’s a chance to make a statement, to pick a side The justices made clear which side they were on. 

The ordinary—and I would add “reasonable”—citizens were invisible to the Court. They were the ones who did not happen to have $17,500 on hand, nor could they pony up seven grand a month. So their disenfranchisement was of no concern. 

Like I said, this is a totally under-the-radar event. Important to the two hundred or so residents of one small town, not so much to the other 3.08 million Nevadans. At least not until it’s their turn, until their lives are turned upside down by judges who live in a world in which politicians are endowed with the super-virtuous power to ignore self-interest. 

One chance remains. The full Supreme Court has been asked to review the three-judge panel’s decision. One might ask a very reasonable, ordinary question. This is all okay with you? Really?


Erich Obermayr is an author, community activist, and career archaeologist specializing in sharing historical and archaeological research with the public. He writes about Nevada politics and social issues. He lives in Silver City, Nevada, with his wife.

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