Venetian contracts unclear on sidewalk protest rights

Lawyers from the Venetian hotel-casino, the Culinary Union and Clark County are set to clash in U.S. District Court Wednesday, but the subject will not be the Venetian's plan to open as a non-union resort.

The lawyers will be arguing about sidewalks, and their arguments will center on a pair of agreements Venetian officials signed with local and state government officials over the past two years. They will also revisit a 1997 County Commission meeting where the Venetian project was approved.

And lawyers for an independent organization, the American Civil Liberties Union, will ask Judge Philip Pro to let them join the battle as a voice defending the public's First Amendment right of assembly.

The issue lands in Pro's courtroom because of a request by the Venetian for a temporary restraining order and preliminary injunction barring union protests from the sidewalks adjoining the resort. That request stems from a March 1 incident in which 1,300 union protesters rallied in front of the Venetian.

Venetian officials claim the sidewalks are private, and asked Las Vegas Metropolitan Police officers to arrest the protesters. But Clark County District Attorney Stewart Bell told the police that, while the sidewalks may be owned by the Venetian, the unions had a right to rally there.

Metro officers refused to arrest picketers, and the Venetian sued Bell, the County, Metro, and the Culinary and Bartenders Unions on March 3, two days later.

The union dispute with the Venetian goes back to 1996, when Sands hotel-casino owner Sheldon Adelson demolished that resort to make way for the Venetian. The Culinary Union claims Adelson did not give Sands employees a required 60 day notice of termination, and is angry they were not automatically offered jobs at the Venetian.

The union wants Adelson to agree to a card-check/neutrality union organization process, in which the company would not campaign against union representation of workers. Adelson has said he will only allow a National Labor Relations Board-supervised election, a process where the Venetian and union would be able to campaign against and for representation. A union vote would be held via secret ballot.

The union criticizes the NLRB election process as a method companies can use to tie a pro-union vote up in appeals for years, effectively dodging union representation.

Union organizers have vowed to make life difficult for the Venetian if they do not get their way.

But Adelson appears as determined as the union. In a February interview with the Sun, Adelson said his ownership of the sidewalks allows him to bar union protests. In any event, said Adelson, "They can't do it forever, they won't do it every day."

The Venetian's request for a temporary restraining order -- and the larger suit of which the request is a part -- is an attempt to ensure unions can't ever protest on the resort's sidewalks.

The Venetian's argument is simple: the resort's owners agreed with the Nevada Department of Transportation to build a sidewalk on its private property that "provides for a limited right of pedestrian passage by the public on such private walkway, but makes expressly clear that such walkway remains the Venetian's private property in all other respects," according to the Venetian request.

The Jan. 8 agreement between the Venetian and NDOT allowed the agency to widen Las Vegas Boulevard up to the edge of the Venetian's property line. The agreement also called for the Venetian to build and maintain a sidewalk on its property.

According to that agreement, the sidewalk is, "a private sidewalk connecting to public sidewalks on either side of its property." The agreement concludes: "The company retains full rights inherent to the ownership of private property to the full extent permitted by the Fifth and Fourteenth Amendment to the United States Constitution..."

Those Amendments prohibit the taking of property without the due process of law.

The Venetian further argues that its ownership of the sidewalk is underlined by a requirement that it pay to maintain the sidewalk, and by the fact that it is taxed on the land the sidewalk occupies.

Upset that Clark County and Metro issued permits allowing demonstrations on the sidewalk, and that Metro officials did not arrest picketers there, the Venetian is asking the court to bar both entities from issuing future permits for demonstrations on the sidewalk.

The permits and protests, states the Venetian request, "constitute a taking of Venetian's property rights in violation of the Fifth and Fourteenth Amendments."

But papers filed by the county and unions in opposition to the Venetian request paint a different picture of events. According to both filings, the Venetian agreed to create the sidewalk as a public right-of-way in a 1997 agreement with Clark County.

"This dispute arises from a land-use deal with Clark County whereby the Venetian received the benefit of a widened Las Vegas Blvd., which displaced the existing public sidewalk across the Venetian's property line," states the union filing. "This land deal established a public right-of-way over the sidewalk, whereby the Venetian abandoned any right to interfere with public access to the sidewalk."

Taking a more neutral position, the county argues that while the agreement between the County and the Venetian did not explicitly say the public cannot demonstrate on the sidewalks, it did not definitively say demonstrations can be held.

"While the agreement does establish that the sidewalks will be constructed, operated and maintained by the Venetian, it also requires that public use of the sidewalks be 'without restrictions,"' states the County filing. "The right, if any, of members of the public to conduct expressive activity on the sidewalk is not further defined and remains essentially an open issue."

The agreement in question was signed April 8, 1997, by officials from the Venetian and the county. It addresses the sidewalk issue in two relevant clauses:

"The developer (Venetian) agrees to convey all proposed public property rights owned by the developer to the county or the State of Nevada Department of Transportation, at no cost or expense, free and clear of all liens, convenants, restrictions and encumbrances, as required for the construction, maintenance or use of the improvements within the development..."

Later, under the heading "No Barriers to Public Access," the agreement states:

"The parties hereto mutually agree that no barriers shall be constructed on any portion of the improvements located within public rights-of-way that would obstruct the use, operation and maintenance of improvements or that would interfere with the free access and movement of the parties and the public through the improvements located within public rights-of-way."

The county's position is that this language is unclear, and the county welcomes "direction from the court."

The dispute was foreshadowed in the Feb. 18, 1997, County Commission meeting where the development agreement was approved. A review of transcripts from that meeting shows two things: a majority of the commissioners wanted the Venetian's sidewalks open to public protest, but the Commission never received a clear answer whether language in the development agreement would achieve that goal.

"There is absolutely no way that I can support and I will go kicking and screaming if you don't clarify that ... these people or anybody has the right to freely assemble," said Commissioner Erin Kenny to Deputy District Attorney Chris Figgins. "If not, it's war and I want to have an answer from you that's definitive."

Kenny's comments were echoed by Commissioner Myrna Williams a few minutes later:

"The most important issue to me was to make sure the sidewalks were public, not private, that there was freedom to assemble and I was assured that was so by this language and I want to know, the same as Commissioner Kenny. Right now. Right now."

Asked several times if the language in the development agreement assured that the public could hold rallies on the Venetian sidewalks, Figgins said "I believe it does."

But later, he conceded that the agreement might be open to a later challenge.

"I can't predict what a judge can say with respect to whether or not there's rights on there," said Figgins.

But he noted that the agreement language had satisfied Culinary Union attorneys.

"I spoke with the union's attorney," said Figgins. "He was satisfied with this language, but for me to predict what a judge is going to say in the future if they tried to litigate it, I can't tell you."

The commissioners tried one last time with Adelson attorney Paul Larsen.

"Could we ask the Sands attorney if it's their understanding that there could be any type of legal assembly on these sidewalks?..." asked Commissioner Mary Kincaid.

Larsen's answer was also ambiguous:

"As Mr. Figgins has indicated ... this language is more restrictive than any other agreement that has been proposed to you ... At a very minimum the National Labor Relations Act applies private or public to the sidewalks. Now, if we're only talking about the First Amendment, which has different implications depending whether you're talking about private property or not, and I'm not sure I can give you any more definitive answer than Mr. Figgins gave. However, at minimum the National Labor Relations Act certainly gives you rights on private property that you don't have on public property. That you don't otherwise have, so we concede that the NLRA certainly applies in this situation."

The unions contend that the language of the development agreement and the discussion before the Commission make it clear that the Venetian agreed to keep the sidewalk public, and to respect public rights of assembly.

The union filings also address the apparent discrepancy between the NDOT and County agreements, arguing that the Venetian's later agreement with NDOT cannot be used by resort officials as an excuse to escape terms they agreed to in the earlier county agreement.

For the ACLU -- which is asking the court for permission to file a motion against the Venetian -- all of these arguments overlook a more central issue: whether governments have the right, even if they wanted to, to sign away First Amendment rights of public assembly.

"The Venetian's entire argument is based upon the incorrect premise that because the government agreed to establish the new pedestrian right-of-way replacing the old public sidewalk on land belonging to the hotel, rather than using the power of eminent domain to expropriate the land, plaintiff obtained some new right allocating control over the public's expressive activity," states an ACLU motion opposing the Venetian request.

"This request, if granted, would severely undermine the venerable principle that streets and sidewalks comprise the quintessential public forum where the public can exercise the right of free speech regardless of the social or economic status of the speaker or the popularity of the message," continues the motion. "The government does not have to grant the public the right of freedom of speech on the public pedestrian right-of-way. These rights are constitutionally guaranteed. Neither Clark County nor NDOT nor the police have the authority to give away these public rights to the Venetian."

Both the ACLU and the unions argue that if the court does determine property has been taken from the Venetian without due process or compensation, the proper remedy is to pay the Venetian for the land.

"There is no public interest in allowing a private hotel-casino the exclusive right to control expressive activity on the sidewalk," states the ACLU filing.

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