Behind the Bar is The Nevada Independent’s newsletter devoted to comprehensive and accessible coverage of the 2021 Legislature. 

In this edition: Where the lawsuit seeking to open the Legislative building to the public stands after a 9th Circuit Court dismissal. Plus, details on a bill allowing tiny house development, an icy reception for the organ donation opt-out bill, advancing a state-based Equal Rights Amendment, and changes to tribal burial site laws. Carson City Restaurant Spotlight returns.

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I want to hear from you! Questions, comments, observations, jokes, what you think we should be covering or paying attention to. Email me at [email protected].

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The legal effort to open the halls of the Legislature to the public isn’t going so well.

On Wednesday, the 9th Circuit Court of Appeals denied a motion by an attorney for the group of four conservative lobbyists who sued to open the building in mid-February.

The order was brief — just five lines — and echoed what defendants in the case have said all along: the appeal was inappropriate because it was focused on a non-appealable interlocutory order, which is legal jargon for the procedural order issued by the federal District Court judge in the case. 

The appeal in this case focused on Judge Miranda Du’s order setting a normal and non-emergency briefing schedule in the case — a decision made because the plaintiffs (the four lobbyists) didn’t check all of the boxes needed to qualify for an emergency briefing. 

A filing submitted by Deputy Solicitor General Craig Newby to the 9th Circuit outlines where the initial lawsuit fell short in providing information typically required for an emergency, expedited briefing. It also seeks to have Gov. Steve Sisolak and Attorney General Aaron Ford — named defendants in the lawsuit — dismissed from the case, because, well, the executive and legislative are separate branches of government (the response helpfully links to a Schoolhouse Rock video in a footnote).

“Unlike other cases brought by Plaintiffs’ counsel, there is no emergency directive issued by the Governor mandating that the Legislature close (or open) the Legislative Building,” Newby wrote in a separate filing submitted to the district court. “The Governor understands the risks of COVID-19 spread in our community, resulting in difficult decisions he has had to make. Here however, the difficult decisions for keeping the Legislative Building open or closed lie with the Legislature, not him.”

I’m not an attorney, but I would guess that barring some kind of Hail Mary appeal to the U.S. Supreme Court, the case will fall back to the original District Court.

But even then, the lawsuit still has issues. 

In a filing submitted on Tuesday, Legislative Counsel Bureau General Counsel Kevin Powers told the court that the plaintiffs had “ failed to serve the Legislative Defendants, or an agent designated by them to receive service of process, with the summons and complaint.”

“In the absence of such service, the Legislative Defendants have not officially become parties to this action, and this Court cannot exercise personal jurisdiction over the Legislative Defendants for any matters, including, without limitation, the emergency motion for preliminary injunction,” Powers wrote in the motion, which asked the court to pause all briefings in light of the then-pending appeal with the 9th Circuit Court.

(It should probably be noted that the attorney for the plaintiffs, Sigal Chattah, is running for attorney general in 2022.)

If you made it through all that legalese and are still reading, 1) congratulations, 2) now you know what it’s like to live in my brain and 3) you’re probably wondering where exactly this leaves the lawsuit and potential of a judicial-ordered reopening of the legislative building.

Again, not a lawyer, but I think there’s certainly a case to be made that an expedited briefing is appropriate in this case — we’re already a third of the way into the 120-day legislative session.

But that ticking clock also works against the litigation — legislators and staff got their first COVID vaccine shot last month, and legislative leadership are still targeting mid-April for a tentative, limited reopening date. 

As that tentative date gets closer, I think it makes it less likely that a judge would feel inclined to issue an emergency injunction to open the building, especially if the limited reopening is just a few weeks away.

But I’ll continue to follow the court case regardless; if there’s one lesson I’ve learned, it’s that making predictions in this business should be left to the supremely confident or foolhardy. 

— Riley Snyder

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More options for tiny houses in Nevada

Sen. Dallas Harris (D-Las Vegas) is the latest supporter of a housing movement that began when Henry David Thoreau rejected society and moved into a 150-square foot cabin near Walden Pond outside of Concord, Massachusetts.

Though Harris has not committed to a solitary existence in a small cabin near a pond, nor the modern-day option of applying for the popular television series Tiny House Nation, she did say that allowing more tiny homes to be built in Nevada could help address the state’s housing shortage.

"This is something I personally would choose to live in and maybe build as a permanent residence because of who I am and my own personal tastes," Harris said during a Senate Government Affairs committee hearing on the bill SB150 on Monday. "What I'm looking to do here is to allow those who like to build one ... or who would like to put it in their backyard, I would like to give them the option." 

Under Harris' proposed bill, municipalities in counties with more than 800,000 people would have to create zoning laws for tiny houses no more than 400 square feet in size that would: 

• allow homeowners to build tiny houses as an addition to a property
• recognize tiny homes as single-family dwelling units
• set aside space for tiny house parks similar to mobile home parks. 

Counties with 100,000 residents or less would follow through with at least one of the three options, Harris said.

The bill addresses a need for specificity around zoning for tiny houses which are often a smaller square footage than what is normally permitted for single-family residences and sets up a regulatory structure for the housing type, supporters said.

But one skeptic of the bill, Sen. Dina Neal (D-North Las Vegas), worried tiny homes might depreciate housing values or exacerbate zoning disparities.

"I'm not a fan of tiny houses, mainly because I don't want it to go into poor areas. And I don't want it to go into poor areas that I want redevelopment to occur and actually have sustainable homes, good homes ... the American Dream home " she said.

Harris chalked up Neal's comments to a difference in philosophies. She said the legislation would provide an alternative for people who may not be able to find or afford a larger home and a way to increase density in more established communities.

"I also see [tiny homes] as a stepping stone to larger home ownership in that American Dream sense," Harris said.

— Tabitha Mueller

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Proposed opt-out organ donation system gets icy reception

Critics of a new bill that would make Nevada the first state with an opt-out organ donation system are concerned that the new method would infringe on personal liberties and might even reduce the state’s donor pool.

The bill, SB134, would adjust the current opt-in system by making Nevadans who update or apply for a new driver's license or state ID card organ donors by default. If the bill is passed, someone filling out a DMV application would have to opt out of becoming an organ donor instead of opting in.

“I'm afraid that Nevada Donor Network has a very deep concern that an opt-out system is likely to have unintended negative consequences that would actually result in decreasing the availability of organs and tissues,” said lobbyist Dan Musgrove, a representative for the non-profit organ procurement organization, during a Monday hearing of the bill.

Musgrove explained that the opt-out system could create conflict with the Uniform Anatomical Gift Act, which sets a regulatory framework for organ donation across different states. And he said the system could pose a problem by creating a group of people who decide to not be organ donors and remove themselves from the donor pool.

The main presenter of the bill, Ashley Biehl, a 30-year-old who had a heart transplant in 2017, pointed to the thousands of Americans who die each year waiting for a transplant, as well as Nevada’s “abysmal” rate of organ donor registration, which at 41 percent sits below the national average of 49 percent.

“Senate Bill 134 seeks to help alleviate that burden and reduce the number of unnecessary deaths by making more organs eligible for donation,” Biehl said.

Those who opposed the bill during the meeting, as well as some of the lawmakers on the Senate Growth and Infrastructure Committee, expressed concerns that a change to the organ donation system could infringe on individual rights.

“The general consensus has been over the years that government can't make choices over our bodies, over our personal opinions. And yet, this would seem to do violence to that concept,” Sen. Keith Pickard (R-Henderson) said during the hearing. 

Sen. Scott Hammond (R-Las Vegas) also said the change to an opt-out system could potentially confuse people. Hammond said that someone could miss the change to the system and become an organ donor, even though they do not actually want to be one.

The bill’s sponsor, Sen. James Ohrenschall (D-Las Vegas), said during the meeting that he would continue to work with stakeholders to address concerns about the bill language.

“Certainly the intent of this bill is to make a bold statement that Nevada would be the first opt-out state in the nation,” Ohrenschall said. “There is no intent to replace anyone's conscious decision as to whether they want to participate or not.”

— Sean Golonka

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Nevada Equal Rights Amendment moving on to the next round

The Nevada Equal Rights Amendment is one step closer to the 2022 ballot, after the resolution passed out of committee with a 4-1 vote on Tuesday. 

The Senate Legislative Operations and Elections Committee passed the resolution, SJR8, that would amend the Nevada Constitution to include that rights shall not be denied or abridged “on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.” It echoes language from the federal Equal Rights Amendment, which Nevada ratified (35 years after the fact) in 2017.

Sen. Carrie Buck (R-Las Vegas) was the sole vote opposing the resolution. She argued that the bill is “redundant” as it lays out equality and protection to multiple groups that the federal and state constitutions already protect. She also said the resolution’s list of specific groups of citizens is “bound to miss some.” 

“I believe in the rights of all people… I embrace those voices and the narratives behind those who have said ‘enough is enough,’ they are equal and I am equal with them,” Buck said. “I just cannot in good conscience support a bill that has the potential to harm, exclude or potentially forget a subgroup of people who were left off the list.” 

This is the proposed constitutional amendment’s second round of approval after being passed during the 2019 legislative session. If approved by the full Legislature, the resolution goes to a statewide vote in 2022. 

The committee vote comes after a setback for a national movement to add the ERA to the U.S. Constitution. A judge ruled last week that the effort could not advance, even though Nevada and two other states recently ratified the proposed amendment, because a 1982 deadline set by Congress has passed.

Democratic Attorney General Aaron Ford said he is exploring further legal options, and Sen. Pat Spearman (D-North Las Vegas) said she would continue the fight.

“There have been a long list of people who have been fighting for this, hoping for this, and praying for this,” said Spearman, who led the charge to have Nevada ratify the national amendment. “We are the hope. We are an answered prayer. We are the continuation of their work. We will not stop until the work is finished, and it will not be finished until the Equal Rights Amendment becomes the 28th amendment in our U.S. Constitution.” 

— Jannelle Calderon

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Bill amends law that protects Native American burial sites

It’s illegal in Nevada to knowingly excavate an Indian burial site, which has been the case since 2017. 

But the current law exempts entities engaged in lawful activity, such as construction, mining and ranching, from obtaining permits from the State Museum so long as the purpose of the activity is exclusive from excavating a burial site. 

Nevada lawmakers are looking to clear up any ambiguities in the law through AB103, which seeks to clarify that the activity in question can only occur on the portion of the private land that does not contain the known burial site. 

“It got interpreted that there was an exemption,” said Marla McDade Williams of the Reno-Sparks Indian Colony during the bill’s presentation in the Assembly Natural Resources committee on Monday. “So this legislation in front of you simply makes that clarification to say that as long as the activity occurs only on a portion of the private land that does not contain the known site, then they don't have to get the permit.” 

Although the bill doesn’t significantly change the scope of the existing law, it brought an important conversation to the Legislature regarding the presence of Native American peoples who lived, died and were buried throughout the state before other populations settled here. 

“The core theme of AB103 is to ensure protection of our ancestors' final resting place where they were originally buried, and to ensure Nevada tribes are part of the discussions and decisions made affecting the management, treatment and disposition of Native American ancestral human remains,” said Michon Eben, manager for the Reno-Sparks Indian Colony cultural resource program. 

Eben said that just as any other human remains are respected as they lay within cemeteries, so too do Native American remains throughout the state need to be respected and remain undisturbed. 

“Native American remains and sacred objects were desecrated by early pioneers and settlers, but what remains buried throughout the state is still important to contemporary Native society,” Eben said. 

While many areas are not necessarily marked as burial sites, the law holds that landowners who find remains (called “inadvertent findings”) must notify the State Historic Preservation Office, which then catalogs the findings into a database of known findings. The database is not publicly accessible. 

Eben also clarified that while the law currently protects Native American remains, it does not protect Native American cultural items or objects found across the state, adding that this is something “we’d like to change in the future.” 

— Jazmin Orozco Rodriguez

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Carson City Restaurant Spotlight: Antojitos la Jefa

I thought it was a pretty good sign when the woman answering the phone to take my order at Antojitos la Jefa did so in Spanish.

And it was another good sign (although a little nerve-wracking for this half-vaccinated restaurant critic) that this cozy joint on Carson Street was positively hopping on a Friday night.

Antojitos la Jefa is one of the newest restaurants in town, replacing what used to be a sushi joint sandwiched between the FISH thrift store and O’Reilly Auto Parts. Loosely translated, the name is “Snacks from the Girl Boss.”

I ordered a gordita with asada and all the fixins and a “pambazo” al pastor — an item I’d never heard of but that entailed a guajillo sauce-treated sandwich roll filled with all the tasty pork taco fixings you’d otherwise find on a tortilla. It was all quite delicious, particularly after watching the tortillas made by hand just behind the counter.

If you miss Tacos El Gordo in Vegas, this place can fill the void in your heart. And at less than $20 out the door for two entrees plus beans, rice and a few chips, it won’t leave much of a void in your wallet.

Antojitos la Jefa is located at 1701 North Carson Street. Open until 9 p.m. Order your takeout in English or Spanish at (775) 461-0771.

Have a restaurant suggestion for the Spotlight? Tell me at [email protected]. FYI: We’re not accepting free food in order to preserve the integrity of the reviews.

What we’re reading:

Daniel Rothberg and Joey Lovato’s must-read interview with Blockchains CEO Jeff Berns, who wants to build a 36,000-person, self-governing, blockchain-run “Innovation Zone.” (Berns: “I don’t know yet how we’re going to raise money.”)

The Guinn Center does its best Dina Titus impression and finds that Nevada is still on the bottom of the good list of states that receive the most federal grants.

Jannelle Calderon reports on the bill from Howard Watts (D-Las Vegas) to ban racially discriminatory language or imagery in school “identifiers.”

A state of play on where state worker collective bargaining contracts stand.

We also report on Sen. Chris Brook’s big energy policy plans for the 2021 session; $100 million for electric vehicle charging stations, potentially moving the state to a wholesale electric market, expanding renewable energy tax credits, calling for more transmission infrastructure build-out, and prison sentences for Hummer owners after 2025 (one of those may not be true).

Unions and labor groups contributed more than $1 million to legislative candidates in the 2020 election cycle, Jacob Solis reports

A provision in the recently-passed federal defense bill could shine more light on company transparency — and possibly affect the millions of dollars in registration fees that Nevada makes on being a haven for “shell” companies. (Reno Gazette-Journal)

Another look at the opt-out organ donation bill. (Nevada Current)

A bipartisan group of 17 female lawmakers are sponsoring a bill to focus the state’s Maternal Mortality Review Committee to focus on “disparities among persons of color, geographic region and age.” (Nevada Current)

Las Vegas Justice of the Peace Melanie Tobiasson filed a federal civil rights lawsuit accusing the state’s judicial commission of conspiring to ruin her reputation after she criticized officials including Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson. (Nevada Current)

A lawsuit over MGM Resort’s use of resort fees. (Las Vegas Review-Journal)

Sisolak lays down the marker and tells the AP that Nevada will be “the safest place to have a convention or to come and visit.” (Associated Press)

UPCOMING DEADLINES

Days to take action on Initiative Petitions before they go to the 2022 ballot: 1 (March 12, 2021)

Days Until Legislator Bill Introduction Deadline: 4 (March 15, 2021)

Days Until Sine Die: 81 (May 31, 2021)