136 Nev., Advance Opinion 50
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES TAYLOR; NEVADA GAMING No. 78517
CONTROL BOARD; AND AMERICAN
GAMING ASSOCIATION,
Appellants, FILE
vs.
DR. NICHOLAS G. COLON, DEC 3 1 2020
Respondent. ELIZ
CLERK
BY
tfic DEPUTY CLERK
Appeal from a district court order denying an anti-SLAPP
motion to dismiss. Eighth Judicial District Court, Clark County; Linda
Marie Bell, Judge.
Reversed and remanded.
Aaron D. Ford, Attorney General, and Theresa M. Haar, Special Assistant
Attorney General, Carson City,
for Appellants James Taylor and Nevada Gaming Control Board.
McDonald Carano LLP and Jeffrey A. Silvestri and Jason B. Sifers, Las
Vegas,
for Appellant American Gaming Association.
Nersesian & Sankiewicz and Robert A. Nersesian and Thea M. Sankiewicz,
Las Vegas,
for Respondent.
BEFORE GIBBONS, STIGLICH and SILVER, JJ.
AMENDED OPINION
By the Court, STIGLICH, J.:
We are asked to consider for the first time whether Nevada's
anti-SLAPP statutes, which include a procedural mechanism to summarily
dismiss meritless lawsuits aimed at chilling speech, violate the
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constitutional right to a jury trial. We hold that they do not, and therefore
determine that the district court did not err in concluding that Nevada's
anti-SLAPP statutes are constitutional and proceeding to consider an anti-SLAPP motion to dismiss. However, we determine that the district court
erred in denying appellants anti-SLAPP motion to dismiss, because
appellants demonstrated that appellant James Taylor's presentation at the
Global Gaming Expo was a good-faith communication. Accordingly, we
reverse the district court's order and remand for further proceedings on the
motion.
BACKGROUND
On October 2, 2017, appellant James Taylor, as Deputy Chief
of the Enforcement Division of appellant Nevada Gaming Control Board
(GCB), gave a presentation entitled Scams, Cheats, and Blacklists to
approximately 300 attendees at the Global Gaming Expo, an event
organized by appellant American Gaming Association (AGA). The purpose
of Taylor's presentation was to identify the types of scams, cheating, and
cheating devices that GCB investigated.
During a section of the presentation on the use of cheating
devices, Taylor presented a nine-second video clip depicting an individual
playing blackjack while holding a standard tally counter device under the
table. The individual was only visible from the neck down, and Taylor did
not mention the individual by name. Nonetheless, respondent Nicholas
Colon, a well-known gambler who attended the presentation, claims that
many attendees were able to identify the depicted individual as himself.
Appellants do not dispute that Colon was depicted in the video clip.
Taylor proceeded to identify the counting device and explain
that it was the only device GCB recovered that year. Colon alleges that
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Taylor also stated that the person depicted in the video clip was arrested
for his behavior and was a cheater and criminal, although appellants
dispute Taylor saying such statements.
Colon sued Taylor, GCB, and AGA for defamation. He claimed
that the video clip was presented untruthfully as an alleged exemplar of
cheating. Although Colon admitted that he possessed the counting device,
he maintained that such device could not be used to cheat at blackjack. He
therefore asserted that the video clip and Taylor's accompanying comments
were defamatory.
Appellants filed an anti-strategic lawsuit against public
participation (anti-SLAPP) motion to dismiss, arguing that Taylor's
presentation was a good-faith statement made in direct connection with a
matter of public concern in a public forum, and that Colon could not
demonstrate with prima facie evidence a probability of prevailing on his
defamation claim. In support of their motion, appellants attached Taylor's
declaration. Taylor first attested that he acquired all of the information,
videos, and photographs contained in his presentation through GCB
investigations. Second, he stated that the information contained in his
presentation was true and accurate. Third, he declared that he did not state
that Colon was a cheater, but rather focused his presentation on the
counting device recovered by GCB. Colon opposed the motion, arguing that
Nevada's anti-SLAPP statutes violated his constitutional right to a jury
trial and that appellants failed to show that Taylor's presentation was made
in good faith.
The district court denied appellants anti-SLAPP motion to
dismiss. Although it concluded that Nevada's anti-SLAPP statutes do not
violate Colon's constitutional right to a jury trial, it found that Taylor's
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presentation was not made in good faith. In doing so, the district court
relied on declarations attached to Colon's opposition to appellants anti-SLAPP motion to dismiss, which stated that the counting device could not
be used to cheat at blackjack. The court also relied on the fact that Taylor
did not dispute this contention in his own declaration. The district court
therefore concluded that Taylor's presentation was neither truthful nor
made without knowledge of its falsehood, and denied appellants' anti-SLAPP motion to dismiss under the first prong of the anti-SLAPP analysis.
This appeal followed.
DISCUSSION
In this appeal, we first evaluate whether Nevada's anti-SLAPP
statutes violate Colon's constitutional right to a jury trial. We then consider
whether the district court erred in denying appellants' anti-SLAPP motion
to dismiss.
Nevada's anti-SLAPP statutes do not violate Colon's constitutional right to
a jury trial
Nevada's constitution provides that "Mlle right of trial by Jury
shall be secured to all and remain inviolate forever." Nev. Const. art. 1,
§ 3. The constitution "guarantees the right to have factual issues
determined by a jury." Tam v. Eighth Judicial Dist. Court, 131 Nev. 792,
796, 358 P.3d 234, 238 (2015) (internal quotation marks omitted). Colon
argues that Nevada's anti-SLAPP statutes violate his constitutional right
to a jury trial.
We review the constitutionality of statutes de novo. Silvar v.
Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d 682, 684 (2006).
"Statutes are presumed to be valid, and the challenger bears the burden of
showing that a statute is unconstitutional." Tam, 131 Nev. at 796, 358 P.3d
at 237-38 (internal quotation marks omitted). "In order to meet that
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that he acquired all of the information, videos, and photographs used in his
presentation through GCB investigations, and that the information
contained in his presentation was true and accurate. Taylor also stated that
he was aware Colon had been arrested for cheating on that day and had
later pleaded to a lesser offense as the result of negotiations. This
declaration shows that the gist of Taylor's presentation—that the player in
the video had been caught with a cheating device—was either truthful or
made without knowledge of its falsehood. See Delucchi v. Songer, 133 Nev.
290, 300, 396 P.3d 826, 833 (2017) (holding that a defendant demonstrated
that his communication was true or made without knowledge of its
falsehood when, in a declaration, he stated that the information contained
in his communication was truthful to the best of his knowledge and he made
no statements he knew to be false).
Although "contradictory evidence in the record!' may undermine
a defendant's sworn declaration establishing good faith, Stark, 136 Nev. at
43, 458 P.3d at 347, Colon failed to contradict Taylor's claim of good faith.
Colon points to declarations that, if believed, would establish that the
specific counting device he was caught with cannot be used to cheat at
blackjack.3 But these declarations did not address the correct issue at prong
one, which is whether Taylor believed Colon had been caught with a
cheating device, and not whether he was correct. Accordingly, because
appellants demonstrated that Taylor's presentation was truthful or made
3These declarations claim that, in order to be useful for card counting,
a device must have the ability to both add low cards and subtract high cards.
They further claim that a simple crowd counter such as the one depicted in
Taylor's presentation can only add, not subtract. While the presentation
used a stock photo, Colon stated in a declaration that the specific device he
possessed was indeed a crowd counter.
12
without knowledge of its falsehood, the district court erred in denying
appellants anti-SLAPP motion to dismiss.
CONCLUSION
We hold that Nevada's anti-SLAPP statutes do not violate
Colon's right to a jury trial, and therefore, the district court properly
considered appellants' anti-SLAPP motion to dismiss. Because appellants
sufficiently demonstrated that Taylor's presentation was made in good
faith, however, we hold that the district court erred in denying that motion
under prong one of the two-part inquiry. We therefore reverse the district
court's order and remand for the district court to proceed to prong two of the
anti-SLAPP analysis and for any further proceedings thereafter.
"444auh) , J
Stiglich
We concur:
7 J.
7 J.
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