Culinary Workers Union v. Del Papa

dissenting:

I respectfully dissent and disagree with the analysis of the majority. The trial court correctly dismissed Local 226’s case for failure to present a case or controversy under Article III because the attorney general lacks the actual authority to prosecute a criminal violation of NRS 668.105. Given this lack of prosecutorial power, the attorney general’s threat to take “appropriate action on behalf of the Nevada Department of Business and Industry, Financial Institutions Divisions” and to “refer” information about Local 226’s alleged illegal conduct to local prosecutors for “appropriate action” does not rise to the level of a justiciable controversy. Because the attorney general has no power to initiate prosecutions for violations of NRS 668.105 *620 and therefore has no “connection with enforcement” of the challenged statute as required under Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), the Eleventh Amendment also bars Local 226’s action against the attorney general.

In Nevada, the attorney general’s prosecutorial powers are limited to cases where a specific statute provides her with authority to initiate criminal prosecutions independent of a…

Per Curiam Opinion; Dissent by Judge BRUNETTI.

This is an action brought under 42 U.S.C. § 1983 seeking declaratory and injunctive relief on the ground that a state attorney general’s threat to enforce a statute that criminalizes the -willful and malicious making of derogatory statements about banks violates the First Amendment of the United States Constitution. The district court dismissed the action after the attorney general claimed that she did not have authority to enforce the statute. We conclude that the district court erred; there is a case and controversy sufficient to permit the district court to exercise jurisdiction over the constitutional claim. Accordingly, we reverse and remand to the district court for further proceedings.

I.

Members of the Culinary Workers Union Local 226 (“union”), embroiled in a labor dispute, began distributing handbills criticizing the management and financial performance of the Commercial Bank of Nevada. The Office of the Attorney General of Nevada (“attorney general”) responded to the union’s activity by sending a letter notifying the union that one of its handbills, “Commercial Bank Loses Money Again,” violated Nevada Revised Statute…