Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

Today the Ninth Circuit upheld the NLRB’s exoneration of the Aladdin on certain anti-union charges, and found that Arizona’s specialty license plate program violated an anti-choice group’s First Amendment rights.

In Local Joint Exec. Bd. of Las Vegas v. NLRB, the Ninth Circuit upheld the NLRB’s decision reversing the decision of the ALJ that had held Aladdin Gaming, LLC to have engaged in illegal surveillance of labor activities. The Court upheld the Board’s adoption of a three part test to determine whether activities constitute illegal surveillance that considers the indicia of coerciveness during observation, the employer’s distance from employees while observing, and whether the employer engaged in coercive behavior during its observation.  In this case, the conduct consisted of two individual members of management offering opinions and advice regarding union promises while union organizers were talking to employees.  The Board found there was no evidence of coercive conduct.

In Arizona Life Coalition,  Inc. v. Stanton, the Ninth Circuit held that the Arizona License Plate Commission violated the plaintiff’s first amendment rights when it denied the request for a special organization license pledge that contained the message “Choose Life.”  The Court found that Arizona had created a limited public forum for nonprofits by offering its specialty license plate program.  The Court rejected the claim that the license plate program created an endorsement by the state of the views presented on specialty plates.

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In Davenport v. Washington Ed. Assn., the U.S. Supreme Court held that “opt-in” schemes to permit unions to use fees paid by non-unions members for political purposes are constitutional.  The case involved fees paid by non-union members to the Washington Education Association, a union representing education workers in the State of Washington.  Through payroll deduction, it collects fees from nonmembers. , and used approximately $10 of those fees per contributor for political activity.  The Washington Supreme Court  determined the statute violated the first amendment, as it interfered with the union’s right of expressive association.

The U.S. Supreme Court reversed, finding that because the state had the power to determine the union’s ability to collect fees from nonmembers in the first place—in essence, a power to tax government employees—that right necessarily included the ability to place limitations upon the use of such fees.  Unions have no constitutional right to fees from nonunion members. The statute’s does not restrict “how the union can spend ‘its’ money”; it places a condition on “the union’s extraordinary state entitlement to acquire and spend other people’s money.”

The decision does address not the constitutionality of opt-in requirements for private-sector unions that  “collect agency fees through contractually required action taken by private employers rather than by government agencies” and therefore present “a somewhat different constitutional question.”

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In U. S. v Curtin, acting en banc, the Ninth Circuit reversed a conviction for traveling across state lines for the purpose of enticing a minor. The issue in the case was whether 5 e-stories consisting of graphic text descriptions of adult/child sexual activity contained on the Curtin’s PDA were properly admitted into evidence. Curtin was arrested following a sting in which he arranged to meet with his IM chat partner, who had purported to be a 14 year old girl.

The Court determined the stories were relevant to rebut Curtin’s defense that he believed himself to be conversing with an adult woman who wanted to participated in his father/daughter incest fantasy. The stories revolved around tales of minor daughters having sexual relations with their fathers, not adult woman engaging in such activity.  Of particular relevance was the parallel between the activities in the stories, and Curtin’s messages to his intended victim regarding the activities he hoped to engage in with “her.”

However, reversal was required because of the inadequate determination by the district court as to whether the reading material was more prejudicial than probative.   Rather than reading through the stories themselves, the district court relied upon an offer of proof. The district court candidly admitted to having been able to get no further than part way through the second story. 

Five judges concurred in the reversal, but disagreed that reading material is relevant to show intent.   The concurring opinion asked whether  possessing a copy of DVDs of The Thomas Crown Affair would be relevant to show intent to rob a bank (obviously, the concurrence refers to the 1968 version of the film) or Dirty Harry to show intent to deprive a person of their constitutional rights. Judge Kleinfeld states  “The trial court should have managed the admission of evidence so as to allow the government to prove Curtin’s intent and purpose, but protect him from being convicted for his execrable taste in reading material and repulsive fantasies.”

Rulings like this can make one glad not to be a judge. Essentially, on remand, Judge Jones will be required to read all of the pornographic stories involving children having sex with adults the prosecution hopes to admit.

I believe in the 1st amendment, and therefore, would not support any attempt to outlaw such stories, because  no real child is injured or exploited in the creation of the story.   No thought police, please.  Nor do I think that a choice in reading material is generally very probative to prove intent – I own too many murder mysteries to favor that view. 

Nevertheless, this is a case where the particular defense probably opened the door to the admission of the evidence.  

And  I sincerely pity any person, judge or otherwise, who is forced to read the content described here. Even knowing that the presumed 14 year old was actually a male detective in his ‘40’s, I found reading the opinion, with its quotes of   Curtin’s IMs with the person he believed to be a 14 year old, difficult to stomach –

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The R-J today has a story entitled Enforcing the State Smoking Ban: Public health v. free speech. The Southern Nevada Health District has filed it first law suit seeking to enforce the smoking ban enacted through a ballot initiative against Bilbo’s Bar & Grill. Bilbo’s responds that its advertising use of matches and ashtrays is its first amendment right.  The Health District seeks a preliminary injunction to force the bar to cease is display ofthe ashtrays.  A hearing is set for June 6.

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