November 2017

Click to download the 48-page (5 MB) PDF file of COMMUNIQUÉ (November 2017 issue).

Read the main articles from the “Legal History” issue of Communiqué (November 2017):

Also, the printed magazine are practical features and highlights for Nevada attorneys including:

  • “Brave New World” By CCBA President Tami D. Cowden, Esq.
  • “View from the Bench of the Nevada Court of Appeals: A Look Back After Three Years” By Chief Judge Abbi Silver
  • “View from the Bench of the Las Vegas Justice Court: Community Impact Center” By Chief Judge Joe Bonaventure
  • “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
  • “Pro Bono Corner: Helping a Veteran in Her Time of Need” By Kevin L. Hernandez, Esq.
  • “Remembering Our Colleagues at the Annual Attorney Memorial Service” by Mariteresa Rivera-Rogers, Esq.

© 2017 The following articles were originally published in Communiqué, the official publication of the Clark County Bar Association. (November 2017). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


History of Gambling in Nevada

By Jennifer Roberts, Esq. and Abigayle Farris, Esq.

Jennifer Roberts, Esq.
Abigayle Farris

Did you know gambling is illegal in Nevada? Technically, it is unlawful to operate any gambling, unless you have a license issued by the Nevada Gaming Commission (and local authorities) to offer gaming. NRS 463.160, 463.180, 463.190. And there is actually one jurisdiction in southern Nevada where gambling is prohibited – Boulder City!

So, how did Nevada become one of the largest tourist destinations in the world with the “gold standard” of regulated casino gambling? Even before we were a state, gambling was a big part of life here, and particularly popular among prospectors and others passing through the area. Nevada Gaming Commission & Gaming Control Board, Legalized Gambling in Nevada, at 7. But, just a few years before statehood, Nevada made it a felony to operate a gambling game and a misdemeanor to make a wager in one. Id. Despite this, gambling remained a popular activity, especially among the booming mining industry in northern Nevada.

When Nevada officially became a state on October 31, 1864, gambling wasn’t addressed, but our state constitution included a prohibition on lotteries. Id. To this day, the Constitution of the State of Nevada prevents Nevada from authorizing a lottery or allowing lottery tickets to be sold. See Nev. Const. Art. 4, Sec. 24. And, to this day, in almost every biennial legislative session, a proposal to eliminate the ban is set forth, and fails.

The first official prohibition on gambling after statehood was enacted by the Nevada State Legislature during its first meeting, although as a compromise with proponents of legal gambling in the state, the penalties were reduced — it was no longer a felony to offer gambling and it wasn’t a crime to place a bet. Legalized Gambling at 8. It only took one year for the legislature to pass a bill legalizing gambling, but then-governor Henry G. Blasdel, who was morally opposed to gambling, vetoed it. Id. Four years later, the legislature overrode Governor Blasdel’s veto, and, finally, the State of Nevada had legalized gambling. Id. Gambling could be offered upon paying a quarterly license fee that was split between the state and local jurisdictions. Id. at 9.
Nevada continued with this legal gambling system for several decades. But, in 1909, riding a wave of anti-gambling sentiment fueled by many prominent proponents, the Nevada State Legislature again made it a felony to operate any form of gambling. Id. at 10. Six years later, the state allowed low-limit gambling for cigars, drinks, or prizes of $2 or less. Id. Not surprisingly, illegal gambling with much higher stakes continued to flourish.

Though the the anti-gambling faction remained active and state legislators remained unwilling to risk their political careers by supporting legalizing gambling, in 1931 a freshman state assemblyman from Humboldt County, Phil Tobin, introduced legislation (authored by another legislator who was afraid to introduce it) to legalize “wide-open gambling.” See Lionel Sawyer & Collins, Nevada Gaming Law (3d ed.) at 10. The bill passed and was signed by the governor, making Nevada the first state in the United States to have legalized casino gambling as of March 19, 1931. Id. In fact, the state retained that exclusivity for several decades, until New Jersey legalized casinos in Atlantic City in 1978.

Early regulation of gaming was light, focusing primarily on paying license fees to local sheriffs. Indeed, in 1932, the Nevada State Prison opened a casino (including sports betting!) for its prisoners. Prison Casino is History, Las Vegas Review Journal (Nov. 26, 2010), available at https://www.reviewjournal.com/news/prison-casino-is-history/. Believe it or not, this prison casino, affectionately known as “The Bullpen,” operated for 35 years. Id.

In 1945, the Nevada Tax Commission was given authority to oversee gaming licensing at the state level. Legalized Gambling at 12. The Tax Commission was also given gaming audit and enforcement powers. Id. However, there was an increasing presence of organized crime in Nevada casinos, especially since Benjamin “Bugsy” Siegel opened the second resort casino on Las Vegas Boulevard — known as The Flamingo — in 1947 (the first was the El Rancho Vegas constructed in 1941). Gaming Law in Nevada, at 12-13. Thus, the Nevada Gaming Control Board was created in 1955 to help with licensing investigations and enforcement issues within the Nevada Tax Commission. Legalized Gambling at 12.

Amidst increasing federal pressure to eliminate organized crime from Nevada casinos, the father of modern gaming regulation, Governor Grant Sawyer, asked the Nevada State Legislature to establish the Nevada Gaming Commission. Id. And, in 1959, our current two-tier gaming regulatory system in Nevada was born, with the Nevada Gaming Control Board serving as a full-time body with a staff of about 400 that conducts pre-licensing investigations, oversees audits, reviews new technologies, conducts overt and covert inspections of casinos, and performs many other functions in gaming, and the Nevada Gaming Commission, serving as a part-time member body that makes final decisions on licensing.

Although eliminating organized crime took some years and has been the subject of several Hollywood movie portrayals (most notably the movie Casino starring Robert DeNiro, whose character was based upon the real-life Frank Rosenthal), the Nevada regulatory structure has thrived, and has been crucial in the development of Las Vegas as a major international tourist destination.

Jennifer Roberts is the Associate Director of the International Center for Gaming Regulation at UNLV. She also owns her own boutique law firm, Roberts Gaming Law, Ltd. Her legal practice focuses on federal, state, and local liquor laws, as well as land use and zoning; business licensing and compliance; and regulatory and administrative law. She teaches gaming law at the William S. Boyd School of Law at UNLV and the S.J. Quinney College of Law at University of Utah.

Abigayle Farris is a member of the law firm Stone Pigman Walther Wittmann, in New Orleans, Louisiana, where her practice focuses on gaming and commercial litigation. Before becoming a lawyer, Abigayle worked in gaming for nearly ten years, in both Louisiana and Nevada. She teaches gaming law at the University of Southern Mississippi, and is licensed to practice in Nevada, Mississippi and Louisiana.


Considering the Influence of Corporate Law on the United States of America

By Gerard Dondero, Esq.

Gerard Dondero

American thought toward corporations has always been wary, to put it charitably: “I hope we shall crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country,” said Thomas Jefferson. And “incorporated companies with proper limitations and guards may, in particular cases, be useful; but they are at best a necessary evil only,” according to James Madison. These quotes fit right in with modern day anti-corporation carping, but they predate the twentieth century. This pejorative attitude may arise from the fact that like taxes, corporations are ubiquitous and have been so throughout American history. Indeed, the general idea of a fictitious “legal person” separate and distinct from the people composing it is a very old idea tracing back to Rome, Greece, or even our hunter-gatherer ancestors. Williston, Samuel. “History of the Law of Business Corporations before 1800. I.” Harvard Law Review 2, no. 3 (1888): 105-24, 106. So, while American history enjoys its august Republican callbacks to Rome and Greece, the very structure of our country owes a huge—but unsung debt—to the corporate form, which offered a method of organization that lent itself to efficient development and allocation of the New World’s abundant resources.

If that sounds far-fetched, it’s worth noting that three of the original thirteen colonies were in fact corporations. And before the British colonies were demarcated as either provincial, proprietary, or charter, all of the British colonization of North America was financed and settled by joint stock companies operating under charters granted by the crown. Osgood, Herbert L. “The Corporation as a Form of Colonial Government. I.” Political Science Quarterly 11, no. 2 (1896): 259-77.

Medieval corporate charters originated as grants by the king and agreements among a majority of feudal lords (“houses”). However, the medieval corporation innovated on the ancient corporation. Ancient corporations—even municipal ones—had specific limits on who was bound to and a member of the corporation. One could not simply reside within the city to obtain the protections, privileges, and burdens of the corporation. Williston, “Business Corporations,” 108.

The medieval guilds, however, had complete dominion over their particular area of trade. To practice a trade in a medieval town was to be regulated by the guild of that respective trade—so long as the guild’s by-laws were consonant with public policy and the law of England. This expansive power led to the distinction between trade-regulating guilds and municipal corporations being blurred to the point of irrelevance. Individuals obtaining membership within a corporation and deriving benefit from and being bound by it through merely residing or being present within the entity’s zone of influence comes from medieval corporate law. Williston, “Business Corporations”108; Nick Szabo, “Corporate Origins of the United States” http://unenumerated.blogspot.com/2006/03/corporate-origins-of-united-states.html.

The tight control over trade—honed over centuries of testing in medieval towns—proved a useful soft regulatory mechanism for the monarchy, and the Age of Exploration made great use of the corporate form. Typically, the venture would begin as a partnership or joint stock venture which would then become a corporation, and this corporation would receive ever more sovereign power until it was effectively an arm of the government. Francis Bremer, “The Thirteen Colonies” The Gilder Lehrman Institute of American History, https://www.gilderlehrman.org/history-by-era/thirteen-colonies/essays/thirteen-colonies. The East India Company is the example par excellence, beginning as something resembling the trade guilds and joint stock companies and then transforming into the first large multi-national corporation: the perfect example of the corporation being a “chip off the old block” of the sovereign, as Thomas Hobbes put it.

The American colonies were started for much the same purpose—to control trade in the new world. While Massachusetts, Connecticut, and Rhode Island were literally corporations and self-sufficient, the other “province” colonies were similar in fact. Osgood, “Corporation” 262. Virginia typified this gradual evolution: the king first granted a provincial charter—meaning that one person or a group of people were granted rights by the King to administer a territory. A problem soon arose: inefficient government interference. The charters created councils that reported to and, as John Smith noted, were tightly and clumsily controlled by, the King of England from across the ocean. The original patentees funding and laboring for the venture received no governmental powers, which created tension. This system proved unmanageable and the corporate form triumphed;  in the early 17th century, those under provincial charter functioned like de facto corporations. Osgood, “Corporation,” 265-268.

Proprietors, and companies considered as proprietors, were distinct from the colony. They predated the colony and drew their power from a source beyond the colony. Their fortunes were tied to the colony’s fortune, but they were essentially intermediaries between the colony and the King. Thus, they had relations with the King that the colony did not have and even received the power to tax their local communities. Armed with this limited sovereign power, the colonies were able to develop their territory to its full capability. Osgood, “Corporation” 262.

While the main callback to the revolution concerns tea and “no taxation without representation,” the truth is that most of Britain lacked representation (only 3% of the populace held the vote) and the taxes were reasonable. The principle of representation boiled down to one main thing: to Parliament, the colonies were just one big commercial enterprise and could be taxed like one. For instance, even though the colonies were expected to maintain themselves and provide their own defense, Britain still found it fit to tax the colonies to replenish its war chest after the Seven Years War.
These enterprises and business ventures transformed the bare provinces into thriving colonies that were communities unto themselves. They believed that they were more than just businesses. And they expected to be treated as such. The culmination of this tension was war.

And the structure that proved instrumental in administering the New World, according to legal scholar (and rumored bitcoin creator) Nick Szabo, lived on in the framework of the new nation:

The corporate influence went far beyond style to the very structure of our government. . . . The idea that a majority can “consent” for other members of their class also comes from medieval corporate law (it certainly does not come from contract or tort law). “Constitution”’ was often used as a synonym for “charter.” The United States Constitution can be profitably viewed as a corporate charter, ratified by a majority of delegates to conventions in each State but shorn of royal imprimatur. . . .“We the People” granted rights to ourselves, in some vague collective way. This makes no sense in legal terms outside the context of corporate charters.

Szabo, “Corporate Origins.”

Today, we see the same tension between United States corporations and the United States government. These entities were first chartered by the government in much the same way medieval guilds were chartered—public works and revenue-raising projects for the sovereign. Yet, as these entities developed the infrastructure of cities, industries, and social life, they increasingly demanded more autonomy. Rather than cases such as Citizens United being an aberration and affront to the history of corporations, taking English common law and the colonies into account, it may just be history repeating itself. Once you break a chip off the sovereign, building an entire house may be unavoidable.

Gerard Dondero is an associate at Hand & Sullivan, LLC. Gerard has worked on several appeals, including two petitions for writ of certiorari to the Supreme Court of the United States, and district court business litigation cases in both federal and state courts. Gerard currently focuses on subrogation and business law.


Meeting Growing Demands of Jury Service

By Mariah Witt

Mariah Witt

With an estimated population of approximately two million residents, as reported by the United States Census Bureau in 2016, Clark County, Nevada comprises roughly two-thirds of the entire Nevada population. In the last six years alone, Clark County has added more than 200,000 new residents. Over this same period, there has understandably been a related increase in the volume of jury trials at the Eighth Judicial District Court; and, as the demand for more jurors grows, the Jury Services Division continues its efforts to meet this increasing demand despite limited space and resources. In this regard, the court has, within the aforementioned six-year period, taken a number of steps to implement meaningful improvements in the delivery of jury services for the citizens of Clark County.

One recent trend over the last few years is the increased utilization of case-specific juror questionnaires by litigation counsel. Generally, the jury process operates with jurors being summoned for jury service and appearing in person to complete a questionnaire to assist with voir dire in advance of the trial. Questionnaires frequently involve larger juror panels and can extend jury service processing time because prospective jurors return for the selection process in court at a later date. Jurors are frequently called back for selection in smaller groups, which are easier to manage. This helps reduce the time spent waiting in the courthouse because jurors are called to appear when the court is ready for them. In order to facilitate the timely delivery of questionnaire panels, while taking into consideration the space constraints of the jury room, the court is exploring the feasibility of technological improvements, such as administering questionnaires through a link online. This would eliminate the requirement to appear for an extra day to complete the questionnaire in person.

Another development is improved examination of race/ethnicity demographic trends. In order to help ensure the court meets its constitutional requirement to draw prospective jurors from a fair cross section of the community as the Clark County population increases and demographics fluctuate, the court increased its jury pool source list to include the list of registered voters via administrative order, and is currently in the process of incorporating Department of Economic and Training Rehabilitation lists as mandated by Assembly Bill 207 to further enhance diversity in its jury pools.

Finally, the court, via administrative order, has formed a jury services committee, comprised of judges and bar members, to help identify and implement further improvements in the delivery of jury services. One such improvement on the horizon may be in the form of a capital improvement allocation that will be spent on seating, technology, and amenities in the jury assembly room. The committee is also contemplating possible ways to address hardships, community outreach to educate and encourage jury service, and other factors to elevate the jury service experience and make it more convenient.

Mariah Witt has served as Jury Commissioner of the Eighth Judicial District Court since November 2012. Her experience includes almost eighteen years working for the Court and Clark County and more than a dozen years working in the private sector. She is an eight year veteran of the United States Air Force and a graduate of the Clark County Leadership Forum Class of 2003.


About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2017 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.