Venetian to appeal sidewalk order

Venetian hotel-casino officials plan an emergency appeal of a federal judge's decision Tuesday that union protesters cannot be banned from the resort's sidewalks.

U.S. District Judge Philip Pro on Tuesday denied a Venetian request for a temporary restraining order and preliminary injunction barring protesters from the resort's sidewalks.

The issue arose after 1,300 Culinary and Bartenders Union members picketed the Venetian March 1. Police refused to arrest the protesters after Clark County District Attorney Stewart Bell ruled the sidewalks would likely be considered a public forum by the courts.

The Venetian sued the Unions, Clark County and the Las Vegas Metropolitan Police Department. The restraining order would have barred union protests, and prohibited Clark County and Metro from issuing permits for rallies on the Venetian sidewalks, while the lawsuit is in process.

Pro's ruling effectively killed that request. The Venetian will now take its request to the 9th Circuit Court of Appeals, based in San Francisco.

"The Venetian is filing a notice of appeal this morning," said Rodney Jean, an attorney for the Venetian.

But lawyers familiar with the Court of Appeals doubt the emergency request will be granted.

"I think an appeal is doomed to failure," said Richard McCracken, a lawyer for the Culinary Union.

Judges have wide latitude when it comes to granting temporary restraining orders and preliminary injunctions, said McCracken.

"Rarely are the judges overturned," he said.

The Venetian had argued that because its sidewalks are privately owned, it can control access to them. In an agreement with the Nevada Department of Transportation, the resort agreed to allow the public to traverse its sidewalks, but retained the right to block protests, argued the Venetian.

But Pro didn't buy that argument. While property owners generally have a right to bar protests from their property, that right does not extend to a private sidewalk that performs all the functions of a public sidewalk, he ruled. In the Venetian case, the private sidewalk links public sidewalks on either side of the resort's property. Pedestrians wishing to pass the property have no choice but to traverse the Venetian's sidewalk, noted Pro.

"If ever there was a case where the protections of the First Amendment ... should be applied to private property used for a particular public function, this is the case," wrote Pro in his ruling. "Thoroughfare sidewalks parallel to the main public street in a city, that allow citizens to move from one part of the city to the next, have traditionally been exclusively owned and maintained by the government. Consequently, by owning and maintaining the particular sidewalk at issue in this case, the Venetian is performing a public function."

"As such, it falls within a very limited exception to the general rule that private property is not subject to the First Amendment," wrote Pro. "Since the sidewalk performs an essential public function, the Venetian does not have the right to exclude individuals from the sidewalk ..."

The unions want the Venetian to agree to a card check/neutrality organizing process, in which company officials agree not to campaign against union representation. The Venetian wants an NLRB-supervised election, in which it can campaign against union representation. The unions criticize the NLRB election process, saying employers can tie an election up in endless appeals.

The unions have vowed to picket the Venetian until it agrees to a card check.

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