Hallie and Brent Murphy: Checks and balances

“Towards the preservation of your government...it is requisite...that you resist the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system...” - George Washington, 1796

In the Jan. 30, Nevada Appeal “Judge narrows suit against Catalyst,” District Court Judge James Todd Russell questioned whether it is up to the court to “second guess the Nevada Legislature as to the establishment of a business program.”

Of course it is up to the court to second guess the legislature. It’s called checks and balances. And the court has been interpreting the intent and constitutionality of the actions of the legislative and executive branches since the inception of the Catalyst Fund.

But according to reporter Geoff Dornan of the Nevada Appeal, Judge Russell “wasn’t certain that’s the court’s business.” (Jan 30, 2015, p. A4)

Really. Our system of government relies on checks and balances between three centers of power; legislative, judicial, and executive. Actions taken in the legislative and executive offices are routinely checked for legality by members of the judicial branch and professionals licensed to practice law.

Why would Judge Russell be unwilling to closely examine a specific charge from a group of concerned citizens that the Catalyst Fund is unconstitutional? According to Dornan’s article, the broad challenge would require the 13 Catalyst Fund award recipients to be part of the lawsuit, and we can all infer how much work that would be for all parties... so Judge Russell’s position that it’s not the court’s business to second guess legislative intent actually also “enabled him to narrow the case to a specific challenge of [GOED]” (Dornan, p. A4) when the scope of the original challenge would have allowed for a more complete examination of the thus-far $9 million program.

How is it the Judge Russell can get away with narrowing the scope of his duty to our citizens? Shouldn’t the judge be upholding necessary checks and balances when called to do so? Checks and balances exist for the common good of the people, and current trends in process and policy within the judicial system have pushed it away from the interests of the common people. It is equipped instead to pursue the interests of corporations at the expense of regular folk who can’t afford expensive lawyers to hold the system accountable.

The Catalyst Fund has been controversial since its inception, and for good reason. Before 2011, Article 8, Section 9, of the Nevada Constitution pretty clearly said “Prohibited. The State shall not donate or loan money, or its credit, subscribe to or be interested in the stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.” As a common citizen, I interpret “stock” in today’s sense as the business success of any private company, not just the actual purchasing of stocks. And I consider what the intent may be of the two noted exceptions to the rule: educational or charitable purposes. And I conclude that the people who formed our state government would consider the only people among us worthy of exception to this prohibition are those in need of education and those in need of charity.

In 2012, Nevada’s Attorney General Catherine Cortez Masto published a legal opinion regarding the constitutionality of the administration of the Catalyst Fund. She cited a 2011 legal decision which reinterpreted the scope of Article 8, Section 9 from specific exemptions for “educational or charitable purposes” to include the much broader, more general “public purpose,” (p.2). She states “the administration of the Catalyst Fund serves a legitimate public purpose,” and does not violate the prohibition of direct distribution of funds from state to company, despite appearances that the process is a workaround.

The interpretation clearly corrupts the intent of the Nevada Constitution to force decision-makers to consider the state of the least among us - those in need of education, and those in need of charity - before we commit our collective resources to limited private gain? Isn’t it the role of the judicial branch - District Court Judge Todd Russell - to check the intent of the Nevada Legislature when asked to do so, when it seems the system has become distorted in power and purpose?

The relationship between local governments, GOED, and the regional development agencies appears quite opaque. Granted, the Catalyst program is in the developmental stages and some process chaos is to be expected. Yet, Karen Gray reports in the Nevada Journal, “some municipalities have... refused to get involved at all, while others have made a point of remaining at arm’s length ,” (Feb 3, 2014). And two of the state’s largest population centers are actually represented in the grant funding process by private companies, EDAWN and LVGEA, who are contracted with local governments to provide economic development services. At this point of the program, we regular folk are expected to understand that transparency is impossible, so what is GOED doing to ensure accountability and transparency in reporting the use of public money for public purpose?

Shouldn’t District Judge Russell step up and see how it’s all working out, since the judicial branch thought the Catalyst Fund was for the “public good?”

Why is District Judge Russell avoiding responsibility to close legal examination of the actual operations of a controversial public funding issue? Is this more evidence of a court that is gaining distance from the common citizen? Why choose to relieve a dozen companies of involvement in a lawsuit instead of honoring the constitutional concerns of the common folk? Oh, that’s right - the companies are already navigating the local approval process, and providing documents and testimony to the court might be too much more work for what they stand to gain.

To the average citizen like me the program smacks of cronyism. Common folk understand the basic intent of the unaltered constitutional article to mean what it says, not some reinterpretation by a court system that is gaining distance from the ordinary citizen. Further, and without more research, it is hard to tell what funds have actually been encumbered or expended via the 13 agreements apparently approved thus far by GOED. But they are reported to total more than $9,000,000.00 in taxpayer funds, and a Las Vegas Review-Journal article (Vogel, Feb 2014) states “the first money for the fund wasn’t appropriated until the 2013 legislative session.” Is GOED making unfunded promises?

And how much will GOED want this year? That is beyond the scope of this letter. But to regular folk, these are compelling reasons for the judicial system - Judge Russell - to step in and check the intent of the legislature by interpreting the actuality of what is happening across the broad scope of the original challenge.

Hallie and Brent Murphy live in Carson City.