Jon Ralston looks at creative lawyering by Gibbons, gaming

Friday, Dec. 14, 2007 | 7:23 a.m.

There's a reason the most accessible line from "Henry VI" still draws hearty laughter 400 years later.

But instead of killing all the lawyers, let's ponder different answers in different cases to this ageless question: What do lawyers do when they can't argue righteousness (i.e., trying to keep documents secret for no reason or stopping the gaming tax from being raised)?

In one case, the answer is that they make up crazy stuff; in the other, the answer is they throw the kitchen sink and hope something sticks.

Let's look at both cases.

First, the ongoing travesty that is the Gibbons Lack of Administration is trying to prevent the public from seeing agency recommendations for budget cuts. The Gibbonsites have argued that the documents are part of the "deliberative process privilege" - a case that should be thrown out based on a gaffe-stuffed first year in office that clearly shows no deliberative process exists.

The Reno Gazette-Journal has sued the state and demanded the documents be made public because they are so obviously public documents. The administration responded this week with a legal document that should live in infamy.

The reasons the administration gave, aided in its legal argument (if you can call it that) by the attorney general's office, are distilled in this paragraph from the legal brief:

"It is reasonably foreseeable that employees prematurely identified in a budget-cut 'recommendation' by their agency head would become insecure in their employment; might opt for early retirement; might resign in favor of more secure employment; might feel betrayed or unappreciated by their direct agency head; and might engage in aggressive or passive-aggressive behavior in the workplace."

This is so stunning, so outlandish that a first reading might yield a conclusion that it is meant as parody, that accidentally a joking iteration of the legal filing was prepared. But not so.

Perhaps what makes the Gibbons Lack of Administration so frightening is that these folks actually believe the nonsense they disgorge, no matter the subject. And they want people to believe that releasing these agency recommendations for cuts would turn state employees into quivering balls of mush, running for the exits. I wonder how the legion of hardworking state employees feel about this scornful view the governor has of them.

The second case is the Nevada Resort Association's argument, mirrored in a separate suit by Las Vegas Sands, to block the teachers from getting an increased gaming tax on the ballot. (Some of the same arguments will soon be used to try to erase attorney Kermitt Waters' attempts to raise the casino tax six times more than the teachers would.)

This time it's the estimable Todd Bice making the case for the gamers and, in his brief, he relies on what many will view as technicalities. The casino industry's strategy here already has been telegraphed: Mount a legal assault on whatever is proposed to delay it long enough so it can't qualify because they fear what will happen if it makes the ballot.

Thus, the kitchen sink approach. For instance, Bice argues that the teachers' use of the word "new" to describe the tax is misleading and meant to imply the casinos don't already pay a tax. This shows about the same respect for the electorate that Jim Gibbons has for state employees.

The only resonant argument is that the teachers' initiative violates a state law that mandates each petition address only one subject. Clearly, there are at least two - raising the gaming tax and setting a minimum funding requirement for education.

Bice writes compellingly that the initiative "is advertised as a proposal to make big gaming pay its fair share. To the general electorate, the (teachers union) believes it has found a soft target. However, with a proposal that it believes is politically popular, (it) then seeks to tie the separate, unnecessary and wholly sweeping public policy change - forever imposing a spending obligation on the voters of Nevada that increases each year, regardless of whether tax revenues from the general budget rise sufficiently to meet the increasing obligation."

That's a serious issue, and Bice is correct that if those two initiatives were separated, the teachers might not get what they want. In Bice's kitchen sink, that argument is the cleanest.

Voters, alas, probably don't care enough about the governor keeping public documents private to raise a stink. But a gaming tax increase is another matter. If the court buys Bice's arguments and keeps it from a vote, people will look past the lawyers and want, even more than they do now, to kill the gamers.