(Chuck Muth) – On April 3, 2019, the State of Nevada submitted its response to a frivolous lawsuit to overturn the state’s brothel law, filed earlier this year by Reno attorney and anti-brothel televangelist Jason Guinasso, asking the court to dismiss it outright.
And after reading the state’s smackdown of the lawsuit’s merits, you have to wonder how Guinasso ever received a license to practice law in the first place.
Some highlights and observations…
1.) The state starts right off the bat noting that the debate over the “merits of legalized prostitution” should be a policy debate, not a federal court action.
“If Congress desired to criminalize prostitution,” Gregory Zunino wrote on behalf of the Nevada Attorney General’s office, “it could easily do so. But it has not.”
2.) Mr. Zunino notes that the federal Mann Act, cited by Guinasso in his lawsuit, prohibits individuals from engaging in prostitution or any other sexual activity “for which any person can be charged with a criminal offense.”
But since no one working in one of Nevada’s legal brothels can be “charged with a criminal offense” for working there – providing they passed their FBI background check and obtained a sheriff’s work card – there can be no violation of the Mann Act.
3.) Mr. Zunino notes that the illegal conduct alleged by Guinasso’s clients is already illegal “under both Nevada and federal laws that criminalize sex trafficking,” and that Nevada’s law allowing legal brothels does not preempt those existing laws in this regard.
“In sum,” Mr. Zunino wrote, “Nevada outlaws the very activity that is the subject of Plaintiff’s amended complaint: sex trafficking.”
4.) The motion to dismiss notes that Guinasso claims “Nevada advertises as a sex tourism state.” However, as Mr. Zunino points out, the examples Guinasso himself submitted “consist of advertisements by private entities, which have no nexus to the State.”
5.) Guinasso also submitted “a number of articles exploring whether there is a connection between legalized prostitution wherever it is practiced and increases in sex trafficking.”
But as Mr. Zunino points out…
“Plaintiffs never allege factual allegations demonstrating a nexus between these articles and their allegations against the State. The only relevance these articles could have is to an outright federal ban on legalized prostitution, which Plaintiffs concede is not federal law.”
6.) Mr. Zunino notes that a “motion to dismiss must be granted when a plaintiff fails to plead a cognizable legal theory, or fails to plead sufficient facts to support such a legal theory.”
He added that the Court “must ignore unsupported conclusions, unwarranted inferences, and sweeping legal conclusions couched as factual allegations.”
As such, Guinasso’s lawsuit should be kicked to the curb.
7.) The State continued…
“To seek injunctive relief, a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant (State of Nevada); and it must be likely that a favorable judicial decision will prevent or redress the injury.”
As such, Mr. Zunino argues…
“Here, none of the Plaintiffs individual allegations meet the requirement that they are realistically threatened with a repetition of the conduct that they allege is the violation of federal law. Ms. Charleston, Ms. Delgado-Williams, and Ms. Albright-Byrd all reside in Texas. Each of the Plaintiffs allege they were victims in the past of sex trafficking, but no Plaintiff alleges that she is realistically threatened with an imminent harm as a result of Nevada law.”
He concludes that the Plaintiffs “were not injured by Nevada’s approach to prostitution, nor are their injuries from sex trafficking fairly traceable to Nevada’s laws.”
Further, “Nevada law did not injure Plaintiffs because the traffickers conduct that injured Plaintiffs was illegal in Nevada as well as federal law.”
8.) The state notes that the 11th Amendment “generally bars the federal courts from entertaining suits brought by a private party against a state” unless the state waives its sovereign immunity.
In this case, the motion notes, “the State of Nevada has not waived that immunity.”
“Accordingly,” the Mr. Zunino states, “there is no legal basis upon which Plaintiffs may sue the Governor, much less the state of Nevada, for damages in this Court.”
9.) As for Guinasso’s demand that the Court force Nevada to “set aside not less than $2 million in a fund to assist victims of sex trafficking,” Mr. Zunino argues that the Tenth Amendment bars the federal government from compelling a state government “to expend funds from its treasury for a specific purpose.”
10.) Continuing with the argument that Guinasso’s lawsuit against the state is wrong-directed…
“Plaintiffs failed to allege any affirmative conduct by the State that placed them in danger. Plaintiffs allegations pertain to conduct by private individuals, sex traffickers, who violated federal law, and Nevada law, by using force or threats of force to coerce Plaintiffs into prostitution. Plaintiffs do not allege any affirmative conduct by a state officer with a nexus to any particular instance of sex trafficking alleged by Plaintiffs.”
11.) In his conclusion, Mr. Zunino wrote…
“People of good intentions can disagree as a policy matter whether prostitution should be criminalized; however, such policy debates are reserved for the legislative chamber rather than the courts. There is no conflict between federal law and Nevada law here because federal law does not criminalize prostitution and both Nevada law and federal law criminalize sex trafficking wherever it occurs in Nevada. To the extent that there may be tension between Nevada law and federal law, Plaintiffs improperly seek an advisory opinion from this Court and a judicial remedy for a policy dispute properly committed to the legislative branches of government.”
Of course, the reason Mr. Guinasso has run to the Court with this feeble lawsuit is that he’s thus far been thwarted at every turn in efforts to outlaw prostitution through ballot initiatives and legislation.
Hoping for a little judicial activism is nothing but a desperate Hail Mary.
Let’s hope the Court takes the Attorney General’s arguments to heart and tosses this lawsuit rather than waste any more of the Court’s time or the taxpayers’ money.
To read the full motion to dismiss, click here