Federal appeals court weighs arguments in dispute over Venetian sidewalk protests

Wednesday, July 19, 2000 | 11:13 a.m.

RENO -- The 9th U.S. Circuit Court of Appeals, meeting for the first time ever in Reno, was told Tuesday that the Venetian hotel-casino on the Las Vegas Strip has the right to bar union protesters and distributors of pornography from the sidewalk in front of the resort.

Walter Dellinger, a Washington D.C. attorney for the Venetian, posed the question to the court, "Does an individual have a right to protest on somebody else's private property?" And he answered, "No."

But union and ACLU lawyers told the three-judge panel of the court this 10-foot wide section of sidewalk was open to public access and people have a right to exercise their First Amendment rights.

The court took the arguments under submission and will rule later. Sitting on the panel were the circuit court's Chief Judge Procter Hug Jr. of Reno, Judge Mary Schroeder of Phoenix and Senior Judge Melvin Brunetti of Reno. Hug said the Reno hearing was an effort to "outreach to the communities where we normally don't hold court."

He noted both he and Brunetti attended Sparks High School. And Schroeder is in line to be the chief judge of the circuit court that has jurisdiction over cases in the western United States.

Last year a coalition of union members set up picket lines at the Venetian to protest the lack of a Culinary Union contract and to complain that many of the Sands hotel employees were not hired back after the Sands was demolished to make room for the Venetian.

The Venetian called police. But police, acting on legal advice, refused to make any arrests. The Venetian sought a court order to force officers to arrest the pickets. U.S. District Judge Phil Pro ruled against the Venetian, which appealed to the federal appeals court.

This is another in the long line of battles between Venetian owner Sheldon Adelson and unions in Las Vegas.

Michael Anderson, a Boston attorney representing a union joint executive board in Las Vegas, told the court there was an agreement between the Venetian and the state Transportation Department that the sidewalk was to be kept open for access. The property, he said was "subject to public participation"

This agreement, Anderson said, means the Venetian can't stop people from using the sidewalk. He agreed the Venetian would have the right to bar these pickets if they went on to the private property of the resort. But there's a public right to use that sidewalk, even though it's private.

Allen Lichtenstein, a Las Vegas lawyer for the ACLU, said this is a "private sidewalk that is considered a public forum." He suggested the Venetian feels it would have the power to force individuals to walk in the street. "No one can be forced out in traffic," he said.

The state Transportation Department and the Venetian reached an agreement in 1999 by which the Venetian would retain control of the sidewalk but would guarantee unobstructed public access. The state did not condemn the property or get an easement but signed a contract with the Venetian over public use of the sidewalk.

Lichtenstein said the agreement could have been drafted better, but it still allows the public the right to use this stretch of sidewalk.

But Dellinger argued that a land use agreement was reached and this land remained a private sidewalk. The Venetian is responsible for its maintenance and must be liable for incidents that occur there. "We have the right to exclude others who engage in disruptive behavior."

But Hug told Dellinger "You don't have the right to exclude." The chief judge added that this is supposed to be an "unobstructed pedestrian access."

The agreement, Dellinger said, makes it clear that if the Venetian ever abandons the section of the sidewalk, it will go to state. But the state never paid a penny for the sidewalk, he said.

Dellinger said the Venetian made a "business judgment to let everybody use the sidewalk except when it interferes with business." The hotel, he said, "did not give up private property rights."

Brunetti said this is the only case of this type he has been able to find, where a government body signs a contact with a private party over a sidewalk to have public access but to keep it in private ownership.

Schroeder said she found this a peculiar argument since more people mill around on the Las Vegas Strip "than I have ever seen."

She questioned whether the Venetian could bar "short people" from using the sidewalk. Dellinger said those things are covered under federal laws. For instance, he said the sidewalk has to comply with the Americans for Disabilities Act, the same as the casino.

Michael Cohen, deputy district attorney for Clark County, which was sued by the Venetian, said the county has taken a neutral position. "We don't have a dog in this fight," he told the panel.

The court did not indicate when it will rule. But the justices peppered attorneys for both sides with a lot of questions, indicating this is a tough legal issue. At the end of the hearing, Hug said, "This is a very interesting case."