One limits the intimacy permitted between strippers and their patrons; one banishes solicitors from the streets of Downtown; and the last would prevent people from feeding the homeless in city parks. City Attorney Brad Jerbic has taken the heat for the current vincibility of their respective wordings, as well as the responsibility to see them through to the end. And that's because legal drafting—the way in which laws are written—is a tightrope for lawyers to walk.
"We have hundreds if not thousands of ordinances [in the Las Vegas Municipal Code]," says city spokesman Jace Radke. "They're drafted by the city attorney's office. Brad Jerbic does not draft all of them, but he is often the one to speak for them."
Legal drafting is a craft in its own right, says Jean Whitney, associate director of the lawyering process at UNLV's Boyd School of Law, one of the only institutions nationwide that teaches legal drafting as its own discipline. And it's a pivotal one, too, she says, because attacking the specificity of a law is a standard tactic in all forms of legal battle. On one hand, the language of the law must be specific enough that an ordinary person knows exactly what it means; and on the other hand, it can't be so specific that it eliminates targeted situations or persons.
A lack of balance between these two is all that the ordinances suffer from, or have suffered from, Jerbic has said. He agrees with the mayor and city council that the principles behind the laws are solid.
And that's why his office did not quit the city's anti-soliciting ordinance after the 9th U.S. Circuit Court of Appeals shot it down in October, declaring that its language was too vague, and, in turn, unconstitutional. Instead, Jerbic says, the city learned its lesson and drafted more diligent, precise ordinances regarding the issue.
Which is this: Mayor Oscar Goodman and the city council want to clean the streets of people who obstruct pedestrian traffic with obscene material—the prurient cards, leaflets and magazines of which we are all aware.
As UNLV professor of law Thomas McAffee says, the high courts "have made it clear that obscenities by themselves do not require restrictions on free speech," and "the courts are less willing to validate overly broad language." And so when Jerbic and his office rewrote the ordinances last month, they included words that not only made the laws more specific, but yet more inclusive as well. Now, according to the Las Vegas Municipal Code, it is illegal to "ask, beg, solicit or plead ... for the purpose of immediately obtaining money, charity, business or personage," at pedestrian malls such as the Fremont Street Experience. In effect, targeting panhandlers and aggressive hawkers alongside smut peddlers.
The ACLU of Nevada has said the principle—banning free speech—is still unconstitutional, and so it will be challenged yet again.
The ordinance pertaining to strippers—LVMC 6.35.100(1)—restricts the exotic dancers and their patrons from "caressing" and "fondling" each other, because, according to the ordinance, "soliciting prostitution in the City concerning these establishments and most of the conversations concerning illegal conduct ... occur during those situations."
Lawyers representing the 14 exotic dancers who've taken it upon themselves to fight this ordinance have protested that the words "caressing" and "fondling" are overly broad, encapsulating too many activities that are unjust to prohibit.
According to Timothy Killian, who led a political campaign against a similar ordinance in Seattle, Washington (which is led by a mayor with the same type of janitorial agenda as Oscar Goodman's), enforcing distances in strip clubs is, if not bad policy, a very unpopular idea. This past election season, Seattle voters struck down their city's attempt to enforce a 4-foot separation between dancers and patrons by a resonant margin: 63-37 percent.
In Nevada, the Supreme Court didn't indicate whether LVMC 6.35.100(1) was good or bad policy in its decision on the ordinance last month; instead, those justices who constituted the slim majority said the language of the law was clear enough for an ordinary person to understand its meaning, and thus the ordinance was valid. This, in effect, overruled the prior District Court ruling on the ordinance, which stated that the terms "caress" and "grope" were too vague to be enforced.
And so, as of now, "caressing" and "groping" are illegal in strip clubs within Las Vegas' jurisdiction, but the attorneys for the exotic dancers have said they will take their fight against the ordinance's language to the federal level.
LVMC 13.36.055—the infamous ordinance prohibiting people from "providing food or meals to the indigent for free or for a nominal fee"—made big news this month when it was shot down by a U.S. District Court judge due to being too specific. The ordinance discriminated against one specific segment of the population, Judge Robert Jones said: the poor.
Jerbic responded that the principle behind the ordinance was still a good one, and that all that was wrong with the law was the language, and thus a little "tweaking" is all that's in order. Goodman confirmed this on record, stating: "I know I'm right on this one; we just have to get the law in shape."
Yet, the ACLU of Nevada, the chief opponent to the ordinance, claims that no matter how the city drafts its next version of the ordinance, it will still fail, for the principle they stand on is unconstitutional.
The city might fear this. Two weeks ago, a political analyst for the Review-Journal concluded that the city's recent decision to close down Circle Park (where the homeless often gather and are often fed for free) is an attempt to sidestep the entire problem of legal drafting. The city has stated otherwise.
In the end, the fate of all three ordinances will come down to the principles on which they stand. Whitney says that judges, for the most part, can see through rhetoric. If it's a bad law, no degree of masterful or even sly drafting will enable it to slip through, for the law can and will be attacked on many fronts, not just the impreciseness of the language. However, Whitney says, if the ordinances are good public policy, they still run the risk of succumbing to defeat on account of bad drafting. In which case, the Mayor—a former lawyer—and his council might want to reconsider the attorneys who write their laws.