running and that may please the court my name is randall jones and i represent about a restaurant services otherwise doing business as i'm at the podium here with mr o'reilly who represents jack la joni's and because this court has consolidated these  arguments mr o'reilly and i got together and discussed dividing our time so that i'm going to do my best to try to present my position in the subjects i'm going to discuss with you all this morning for about five minutes allowed five minutes for the issues he's going to discuss in about two and a half minutes each for rebuttal to the extent we can accomplish that goal ok with that said what are we going to have mr wright o'reilly's take a seat and we'll give you your five minutes and then allow him the five minutes we'll try even though i may not specifically reference that company in my discussions and the discussion that i would hope to be able to get to today i'm going to try to get to the three subjects are going to be the violation of our clear respect to clients procedural due process rights violation of our client's substantive due process rights and how the an act one of the county ordinance at issue today violated our client's rights to equal protection under the law and we believe that any one of the arguments that we're making today that whether it be me or internet itself would be sufficient to justify a reversal of the district court's decision so i just want to make sure that point is made and i want to briefly talk about the history of this business because i think it's really important to understand for purposes of the arguments today on the law the reason i say that is is my client was sort of the the pioneer of this particular business model and the importance of that is over twenty years ago my client came up with a business model  was based upon restrict the gaming license of fifteen machines and they built their business around that business model as did the subsequent companies who followed that business model like jackpot joni's and as a part of that process they spent millions of over the last twenty years building this business out and then the record it in the before the county commission you'll see there was reference to the fact that most people other than the clients didn't think this was going to work they invested substantial sums of money entered into long term leases entered into many contracts with vendors they've employed hundreds of employees over the period of time for i think we're generally from your with that you're going to run out of time long before you get to your arguments if you're not careful i preach hate that so let me try to move on then so with that point being made that there is a great deal of money that has been vested in this and they've been approved at every step of the way by all the agencies they went before for these procedural due process what's the problem what process what you give them all right well so well the process we weren't given was that they didn't follow their own statutory law and they also excuse me ordinances with respect to how they went through this process of trying to change this order if they didn't follow their own statutory provisions of that state a constitutional claim well we're very clear that the failure to follow to follow state law was a matter of state law and not necessarily a matter of constitutional law unless it also violate constitutional norms so what constitutional norms were violated here well first of all i guess that would go to the question of whether or not our clients had a protected property right and i believe that they did not i think that the ninth circuit has held that i also think that the vatican property right in their licenses but no individual license was was deprived here well it your honor that's a that's an interesting point because judge dawson for example which i assume you're referring to said look there was no revocation and so if there is no revocation you essentially their actions short of revocations that will invoke due process in an individual whose mission but this is a legislative action not in the juda kotori action where you're out i certainly will take you take you out of the burgess case that you've cited it's not even close to purchase well i would i would respectfully disagree and the reason i say that is because you can have it adjudicatory process that is acting or are trying to say how many when you're talking about is where legislation affects one particular part alone or maybe two businesses exceptionally that's not the case here that hundreds were affected by this in scores sent in letters in opposition well actually hundreds would have been affected but the way they wrote the statute hundreds were only a very few and we know from the swat valley case that you county's very few because of the grandfathering you're saying well yeah well partly because the grandfathering and also because of the way that they essentially change this this ordinance to really only apply to the particular business model they targeted this busy smart on there remember there was no reason for doing this that th the county commission didn't have a groundswell of constituents who came forward said we have a problem here that this was driven by the competitors who clearly were jealous who brought the problem to their attention and said we want to do something to  it happens it happens all the time it happens in every jurisdiction it certainly can but if you have a protected property right you can't do it where you violate perceived property rights the protected property right is well certainly we believe that it would be where a party has a reasonable expectation of entitlement derived from an existing rule or understanding that stem from an independent source in this case the ordinance that wasn't place in the statute and that that would if your theory is correct that would fix the ordinance that would that would mean that in perpetuity nobody could do anything to it well your honor i would put it this way in terms of a property right if you think about this when applied to the hotels the hotels go out and borrow millions an include ing hundreds of millions of dollars based upon that property right that license they could not borrow money from the bank if that those banks did not believe they had a protected property rights that could not be arbitrary and if they didn't think that nevada tomorrow the financial legislature would for example decide to ban gaming in the state that that's an assumption that the banks are making but there isn't anything that would prevent from nevada legislature from deciding to ban gaming in a vat is there i would i would disagree with that your honor based upon including their constitutional right that would prevent the nevada legislature from deciding to ban gaming what about what if they decided tomorrow to ban brothels in nevada because you got that would you would support that well i think again i know you disagree with this but i think burgess and i also think that the clinton case isn't even close to this distinction the londoner bimetallic distinction is over one hundred years old the supreme court made this clear a long time ago that legislative and adjudicatory procedures are entirely different we're just wasn't a tory procedure this is a legislative process here if the adjudicatory procedure is masquerading as a legislative procedure because that's what happened here essentially what they issued that's their own code they didn't do that in the manner in which they claim to have given notice that was so flawed in so many different ways it was flawed in the sense that it did not give there were four different things that were thrown out there that that changed over the course of time that the they didn't follow they failed to comply with the statutory rule of the business impact statement they didn't follow that then during the course of the discussion actually they changed the text during the hearing after the hearing was closed they changed what they were going to vote on and in fact it was so bad in your honor that they they said i'm going to shows we're going to have to wait and see what gets written up after we voted to see what we voted upon that procedure was fatally fl ok and the failure to follow it's kind of procedures let's assume that you're correct that they failed to follow their own procedures and that states a due process constitute due process violation because of what well first of all i think they they didn't follow their own violated state state law that's a problem for nevada to solve to came here alleging that there are constitutional violations i need to know what the what provision of the constitution does that violate i believe that it violates the fourteenth amendment  process to procedural due process was not followed in general the failure to follow state law is not an independent violation of the due process clause it's pretty that's pretty well established otherwise every  don't know how i can respond to that that that is our belief that between that and also the cooper case where the court even had a case it's unpublished cases ninth circuit case from twenty thirteen where the cooper versus clark county where the applicant just seeking a an app had an application in the ninth circuit held that he had but at least potentially had a protected property right and that was not the proper procedure which was a state procedure can you cite any case where the court found that the action was legislative not to do you could have and i know you dispute that here but assuming that some court found an action to be legislative and then found procedural due process violation has that ever happened we have not to that effect but i would tell you that this creates an incredibly insidious loophole in my mind that if you say that you can masquerade a adjudicative process as a legislative one where the fact the reality now what you call it but the reality is the same because here we're talking about a restriction that if this restriction that in this business model said we have to build it this way we've invested these millions of dollars and if you change it and if your goal is to change it so that we don't refocus we're not going to totally throw you out of business of stench of lee but they know the effect of that change will be the same that it it is adjudicated because it puts you out of business it just does it by a matter of stealth we think that's wrong that should never be supported by this court or any court and that's that reason alone we think it's a grand jury thing on the record that shows that there are only one or two businesses that the two appellants here for instance that were affected adversely by this ordinance that there were not more than just one or this may have multiple taverns that's that's true that's true you're ok all right we take on these other your time let's let's let's hear from mr o'reilly for your planning purposes mr jones i am going to afford you the time for applied to both clients even though we don't represent one group address her on a fact that this ordinance the two thousand and eleven clark county ordinance violates the clear requirements the nevada laws which mandate competition and game in the data and for him anti competitive ordinances i think it is clear competition is the basis of than about economy legislature and that is mandated competition when it comes to gaming point number two and i would address is that the it's two thousand and eleven ordinance was and acted by clark county without following the requirements of their business impact statements and if you look through the business impact statement provisions generally they require an economic analysis in terms of  ordinance and has now been found by clark county and its district attorney to be fatally flawed it's ambiguous they say in an unenforceable as publicly stated by not only the clark county manager the director of business licensing the chairman out what the hook is here there's lots of laws in which we find ambiguities we discover them all the time sometimes we can reinforce them if they're in that in a criminal context because we have to be very careful about what kinds of rules we impose on each other but there's lots of ambiguities and lost just part of the of of the limitations of language so if it's if something is ambiguous or they're having difficulty enforcing it what hope does that give the court to overturn the regulation well i think we're talking here factor triable so there is a factor a trial before him before you can reach a conclusion and that a business impact statement was fully a requirement was fully complied with ok that's that's not the business impact same as a whole different argument from the idea that this was  to read with you that it's ambiguous ok and then i want we can overturn things that are ambiguous is that a general principle of lots of principle of constitutional law as a principle of nevada law what gives us the authority to overturn and to conclude otherwise that the ninth circuit or just record is inappropriate you're not you're not referring to the post briefing evidence from from the conversations before the county commission where they said well we don't lawmaking they have caused our clients a lot of time and a lot of money so in essence i would say that is a mission of their and adequacy their liability and their responsibility and that it should be litigated in terms of what the damages are mr right and let me go  back let me go back to the question let's assume that the ordinance is difficult to enforce the county commission is not sure what to do about it and that the county commission now thinks that they probably could have been more specific in the in the adoption of this ordinance what gives the power to overturn an ambiguous ordinance what this point in time your honor i would request the court refer back to the district court because there really is no but you can't bring it you can't now bring a tort suit against the county and bring it before us trying to collect damages for the money that you spent in these hearings well i'm trying to figure out what i'm trying to figure out what it is that you want to do if the if the ordinance isn't being enforced then it sounds it sounds like you've you've at least partially succeeded but that doesn't require in this court to do anything if you think that the at the end of the ordinance is ambiguous i'm still trying to figure out what principle of law allows the court to overturn ordinances that are ambiguous it's not a criminal ordinance it's a regulatory provision there are lots of ambiguities we see them every day and what we do but we don't go striking  particular organs as written there are other ordinances now that have gone forward after that there are modifications of the same ordinance or new ordinances i think it's actually been structured so it's there was one for years before there was dealing with the same issues between the same parties it's a fight between the the big casinos a little casinos and the big casinos one is the legislators in clark county to put the small ones out of business or put certain ones out of business and they're successful they shouldn't be in business and they want to try to is from them and put them in there using the clark county legislature for that purpose that's among the other improprieties here if your son has an argument there was a constitutional violation that entitles your mind to damages due process is that is that your strongest understand this ordinance isn't being enforced you're not worried about that you think that you are put a lot of trouble in your clients but a lot of expense because this process was unfairly but but but but use that the strongest argument there was a constitutional violation that's been an argument us back to the district court reversed and we'll start over in the the appropriate forum but in the meantime there are incredible injustices that had been done that are continuing that need the right form to address the issues to minimize the damage is that the large casinos can do to these small businessmen and women who have invested their life savings in some of these businesses and others who is mr jones indicated pioneered a model that was approved not only by the state gaming regulators but by this very body clark county who took and received their applications granted their licenses after and took their money approved nominally their licenses but one through the building department the fire department the health department every one of them are quire them to jump through hoops approve them every step of the way including their floor plans including every camera and security and now come back years later and say you know are just kidding you're really not approved at all we're going to change the rules and cause you to move your bar move your cameras move your chairs put more chairs put more tables in and if you can't do too bad you're out of business and by the way that what we're really targeting here is to try to put some of you out of business they made that clear and if it were not in the right court in terms of getting know how many hopefully you know i would probably put that in the competition argument i mean can competition is so critical do you know that i mean we've read the state level of trying to maintain a balance form if you think about every casino and every gaming property they  jurists i think to a very comprehensive opinions in this case first on a constitutional level addressing sheetal due process substantive process equal protection the second very extensive opinion on the state law issue however both of those opinions have jointly concurred that which was done a reasonable and proper exercise of legislative authority by the clark county commission which was rationally related to legitimate governmental objectives are they being to you or your looks like like these folks got strong arm doesnt it you know i think the record shows commission i think ultimately decided five to two was a loophole with respect to what mr o'reilly in fact needed to today that although they were supposed to have a license for restricted gaming this incidental to a business these were really little casinos you agree that only about five businesses with this model or really adversely affected or is it a much larger class your honor i don't mean to be a base of i just don't know the answer to that question the respect  can certainly tell you it was a county wide ordinance had amended the code across the board gave all of the license holders two years to comply with the new restrictions it was a matter of a procedural asked back that notice was given to all the stakeholders they were all brought involved in not only offering comments in respect to the business end pact but also presenting argument with counsel at the hearing these were the i think the most vocal of the they're very broad questions i'd like you to address both them if you would and i may have some other questions as well but let's start the first one the first one is has the ordinance been amended since since the suit was filed that is the ordinance that we have before us your innocence still is on the books and clarke and it's questionable one second question like to like you to address is is the ordinance being enforced know i would say from the outset those are matters that aren't in the record ok and that's ok so tell me what the answer is anyway i'll do my level best but my representation for the county's been in this suit and i don't i'm not aware of all the particulars in terms of that which has occurred after the briefing i'm unaware that it has been that this particular statute has been taken off the books i i can't tell you as a been amended in any way not that i'm aware of i can tell you that there has been discussion statewide in terms of reaching some consensus in this that that's what i have heard but i have been involved in that the ten and twenty degree i know this is an appellate court and the answers that i can't provide as far as as far as you know as far as the county is concerned the ordinance that we have before us is still the ordinance that's on the books yes your honor ok there's been discussions about understanding i know there was some talk about bringing the parties together to do what to my knowledge it has not happened yet whether it's imminent not i do not know is the ordnance being enforced your  no evidence in the in this record of of enforcement correct all those matters were after the briefing in fact after clark county prepared its answering brief with a business impact statement  case he went through it lock stock and barrel on all those levels judge gordon did find one i think he can considered a technical infirmity with respect to that at the business impact statement did not express why that point the county amendment was more restrictive than the state level threshold and that was a mandatory requirement under the statute writing as one of the things that you're supposed to do with a b i e s well the business impact statement indicated in the and part of the effects that this was done to you know in favor of those that were seeking to eliminate slot parlors or slot arcades but it doesn't address why the county had to go beyond existing state and federal law and i think that's a requirement isn't it well your honor i don't know that it said why there are certainly a matter of what's in the record that the the county commission had made the determination that the proliferation of these businesses were operating restricted licenses as their primary basis of business and income that there was a loophole with respect to these  gaming is supposed to be incidental that is to operating a restaurant that providing bar a convenience store that these were just simply mini casinos now what did it say that we have to do the business impact state statement indicates specifically that there needs to be a bark a bar up there in these games and bettered in the bar in space in a restaurant to eliminate those slot part of slot arcades it didn't connect those dots specifically in the business impact statement but that was a part of the notice from the get go as to why they were there that's why there was the comments were all provided so the wise to be inferred from the rest of the business impact statement correct your honor and i'm not sure i understand that it's probably the acoustic because i was having a had this gap well your honor i guess the way judge gordon put it it's a matter of specificity and i would say you from a general standpoint there was information in the business impact statement that this was done to eliminate the i understood that why was it necessary explicitly to go above what the state is doing to eliminate those slot parlors and i said no that information is and then there are other than to say that there was four different proposals on the books with varying levels of compliance or varying levels of objective and disha of operating a casino as a ancillary or incidental basis ca respects first from the primary jurisdiction for a constitutional standpoint that the case law is clear in your honour's and indicated suggested that a state law violation absent something extraordinarily jurisdiction if we were state court is there a remedy in state court or if the county the clark county commission failed to prepare well the remedy would be the mandamus  law on the books in terms of what's the level of specificity need to be compliant with that statute that's why judge gordon went to oregon california and federal law to to assess a standard review i wish i wrote a brief worthy of his  his order i think it very good in terms of that analysis and i'm unaware of any other law outside of the state of nevada that suggest if you do not follow the business impact statement or environmental impact statement to the nth degree it will invalidate the legislation absent really prejudice and ultimately judge gore determined there was none here because of the extensive involvement that's been briefed in terms of the due process that was notwithstanding the lack of due process property interest of having a meaningful opportunity to be heard they knew exactly what was at stake they knew exactly what the competing issues were going to be  inform the decision makers the policy makers of the consequences of their action and if you don't have a b i f that's been adequately prepared then the clark county commission maybe maybe shooting the blind may think it's a terrific idea in theory until they find out what the actual economic impact of it is going to be what mind you are the only infirmity that the district court found was just in the in the connecting the dots why more extreme ok but there was the board was well aware in fact there  was many of them had differing proposals in terms of what level of compliance they wanted their four different ones so that the competing interest could be meted out in that respect and what ultimately happened was an amalgamation compromise of all those four particular ordinances that they called some from column a and some from column b to fashion it together in order to reach an equitable decision so the suggestion that  immediately is evident here is they did consider that's what was obligated by the b and b i guess they ought to consider it there was no obligation they must reach a particular outcome in the case and that's what all this is about they don't like the outcome substantive due process in economics for one that has them in the law for seventy five years in a constitutional side and there is no right to an outcome of of what they want on the on the state law side or considering making a decision on those b i asses and that's what judge gordon decided in a but a thirty page opinion on every single level of what was required to the immediate yes except for one and regardless the board was adequately advised to make an informed decision and the public was adequately apprised to meaningfully participate what about the public other then the the appellant's here i mean is that one of the purposes of a b i e s is to inform not only the decision makers in those directly affected but the general public so that they might opine if you have a critical or an and mandatory element that's missing does not compromise the public information and public presentation where i think your question goes back to what process was given and the record indicates that that all the stakeholders all the license holders were sent to the question aaron in order to fill out their objections that it was published and published published in nine different publications in terms of this is on the table you have a deadline of march twenty eight to provide us what information you want that was extended out this process was pretty protracted and exacting with respect to getting the word out and having people have notice of the warden and in a meaningful opportunity to be heard in th regard let me go back to the constitutional question for a moment if one were to find that the ordinance was really targeted at two businesses even though it may have affected more does that create any kind of a substantive due process protection problem no your honor if it did then all the case law the supreme court has has has issued on what is subsumed due process that it's very narrow outside the personal autonomy and in marital provisions that all you need allege is a subjective intent of malice to create an issue of fact in the case law is replete that that's not sufficient that it all to merely is an object of inquiry as to whether there's any rational basis a tall even a hypothetical one to find a legitimate governmental objective and both lower courts made that decision in favor of the count dillard first of all there is no business impact statement on the ordinance that was enacted there were four different provisions there were four things that they claimed were business in back statements but we claim none of them complied with the generally what's going to happen if we adopt restrictions like this and then they can then they can fiddle with whether they want you know twenty five hundred feet or whether they want three thousand feet between these businesses so when you argue there's no b s is your argument really that they were legislatively described to describe the economic impact they need to do just that they've done none of that in the four that they sort of cookie cutter put out there and absolutely none for the one they ult alleged i think we've addressed that with you and just bobbie i think that we may also have a state law claim if we don't have a federal claim and i think that is i've said earlier and i my hope is that whatever this court does it will fashioned a remedy that will at least allow that to happen as opposed to this to go passing in the night and i see i'm on an almost  next interpretation of the ardennes after that so i think there are substantial differences and the big get business little business these properties that they've chosen to classify are describ kids are parlors i would remind the court that these were all floor plans and businesses that applied for and were licensed by clark county that is now calling them something different than what they permitted  very much your honor and i'm going to make one real quick comment about the business impact statement i think that's important for you all understand as well is that what was not addressed in any of the business impact statements amalgamation or not was the retroactivity of twenty years because it could've been a dress sense that wasn't even brought up until after the public hearing was closed that probably had the greatest economic impact of just about anything they were considering that day and it could not have been addressed in the business impact statement getting back to the procedural due process  to address a question you asked me judged by me that i was struggling to find an answer for us about ok wait a minute what's the why is federal law implicated here if if the state wants to do something to change its own ordinances or this county does and and allison to think about that is  versus what was it rough versus board of regents versus rot which was the united states supreme court case and so they've had a supreme court at least felt there was a for the fourteenth amendment implicated in that case and then if you look at the procedure that followed here it is flawed it was flawed in so many ways and especially at this stage of the proceeding to say no this case is gone it we think is completely inappropriate in improper so but now i want to switch to quickly to substantive due process and i know justice question you said what's your best argument i'm just trying to choose among puppies so i have a hard time with that one but having said that the we believe that there was a violation due process because there was no manifest public interest here and or it was rational related to any legitimate government interest and here's the point look at the record it's stated in there so yeah there are in fact judge just well there's lots of public interest here the health one so welfare but that's just talk there is nothing in the record that backs that up and the county could not point to anything that supported the fact that there was a legitimate public interest here that's the point that there was you would concede that the original ordinance which limited to an incidental purpose was there was a public interest supporting that you're not challenging the original licensing scheme well i have to ask your question this way judge chen is this whole question of incidental has been debated and debated and debated and it goes back in the record in this record because it was talked about when it was first license way back in the ninety's who how do you define incidental and incidental has never been defined and clark county has continued to the state does not have a definition of incidental and has licensed dieties as unrestricted gaming license with fifteen machines so incidental is is a is a red herring it is not the issue here what it was uses of i mean are you suggesting that the original ordinance was unconstitutional as well no no actually not not at all what i'm constitutional well i'm not challenging it and so we've never even if it was constitutional and in the county finds that there is a p loophole however you define incidental why doesn't it have the constitutional power in the interest to further that by saying we're going to close this loophole just chain us to i think a very insightful question but here's the reality that's not an ordinance that's a state statute and the state gaming control board controls that issue in the state gaming control board has never found that my our clients and to this day continues to license my client and jackpot joni's as has compliant with that state statute defining their their business and that gaming is incidental to their business that county was try and to take that language in the state statute and do something else with it and they couldn't get it on the state would not and to this day has never agreed with that interpretation so that's why i tell you our clients are still absolutely compliant with state law is a relates to the incidental definition so if that's the problem having here is in addressing i know i'm i'm way past but judged by me your point is wait a minute can't laws be changed they get changed all the time they can but you've got to follow if it impacts a protected property right you still have to follow the proper procedure that's what a violation of procedural due process is and that was not done here plain and simple thank you very much for your patience and until we thank all counsel for the argument the case is submitted and with that we've concluded the calendar for the week the court is a