Electronically Filed

11/30/2023 4:04 PM
Steven D.Grierson
CLERK OF THE COURT
1 MDSM
ETHAN D. THOMAS, ESQ.
2 Nevada Bar No. 12874
ANDREW S. CLARK, ESQ.
3
Nevada Bar No. 14854
4 LITTLER MENDELSON, P.C.
3960 Howard Hughes Parkway
5 Suite 300
Las Vegas, Nevada 89169.5937
6 Telephone: 702.862.8800
Fax No.: 702.862.8811
7
Email: edthomas@littler.com
8 Email: asclark@littler.com

9 CRYSTAL J. HERRERA, ESQ.

Nevada Bar No. 12396
10 OFFICE OF THE GENERAL COUNSEL
11 CLARK COUNTY SCHOOL DISTRICT
5100 West Sahara Avenue
12 Las Vegas, Nevada 89146
Phone: (702) 799-5373
13 Email: herrec4@nv.ccsd.net
14 Attorneys for Plaintiff
15 Clark County School District

16 DISTRICT COURT
CLARK COUNTY, NEVADA
17
CLARK COUNTY EDUCATION Case No. A-23-879213-C
18 ASSOCIATION, Dept. No. 20
19
Plaintiff, CLARK COUNTY SCHOOL
20 DISTRICT’S MOTION TO DISMISS
v.
21 HEARING REQUESTED
THE STATE OF NEVADA; and the CLARK
22 COUNTY SCHOOL DISTRICT, a political
23 subdivision of the State of Nevada and a local
government employer,
24
Defendants.
25

26 Defendant Clark County School District (“CCSD”) moves to dismiss Plaintiff Clark County

27 Education Association’s complaint under Rules 12(b)(1) and 12(b)(5) of the Nevada Rules of Civil

28 Procedure.
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Case Number: A-23-879213-C

 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Clark County Education Association’s (“CCEA”) declaratory-relief action is
4 nothing more than a thinly veiled collateral attack on a valid and lawful injunction issued by another
5 department of this very Court. On September 13, 2023, Judge Crystal Eller granted Defendant
6 CCSD’s Emergency Motion for Temporary Restraining Order and Preliminary Injunction and
7 issued an injunction to stop a widespread, rolling sickout by Clark County educators and members
8 of CCEA’s bargaining group. CCEA has since appealed the issuance of that injunction and also
9 sought an emergency stay of the injunction pending appeal. However, the Nevada Supreme Court
10 denied the request for stay, electing to leave the injunction in place until the case could be heard in
11 the normal course. Out of options, CCEA now turns to this Court for yet another bite at the apple.
12 CCEA’s claims suffer from fatal procedural flaws, each of which require dismissal of this
13 case. First, in addition to being an impermissible collateral attack on Judge Eller’s lawful
14 injunction, this action is compulsory counterclaim masquerading as a separate declaratory-relief
15 action. CCEA had the opportunity to raise each of the arguments in the underlying injunction
16 action that it now asserts in this action, but it chose not to do so. Instead, CCEA tried to escape the
17 injunction via the Nevada Supreme Court, and only petitioned for relief here after the high court
18 denied its request for stay. Both the collateral-attack doctrine and NRCP 13(a) prevent CCEA from
19 repackaging arguments it should have raised in the underlying injunction action, presenting those
20 arguments to another judge, and hoping for a better result. This Court should prevent CCEA’s
21 blatant judicial gamesmanship.
22 The merits of CCEA’s constitutional challenge also leave much to be desired. Had CCEA
23 actually reviewed the merits of this challenge, it would have seen that state and federal courts across
24 the nation universally hold that public employees do not have an inherent constitutional or
25 fundamental right to strike. Moreover, state and federal courts have overwhelmingly upheld state
26 anti-strike provisions for public employees, rejecting nearly identical arguments that CCEA now
27 raises in its Complaint. The simple fact is that the State may place restrictions on public employees’
28 ability to strike because those employees lack any fundamental or core political right to do so. That
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Attorneys At Law
3960 Howard Hughes Parkway
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702.862.8800
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 1 is what Nevada has done through NRS Chapter 288, and nothing in CCEA’s Complaint, or common
2 sense, directs otherwise. The Court should see this case for what it is: a procedurally improper and
3 fatally flawed Hail Mary by a plaintiff desperate to escape the consequences of its actions. CCSD
4 asks the Court to dismiss this case with prejudice.
5 II. BACKGROUND1
6 CCEA is the exclusive bargaining agent for 16,000 licensed public-school educators in
7 Clark County, Nevada. Compl. ¶ 10. Clark County School District is a local government employer
8 and an administrator of public education in Clark County, Nevada. Id. ¶ 12. CCEA brought this
9 case on the heels of another action before this Court, styled Clark County School District v. Clark
10 County Education Association, et al., Case No. A-23-874996-C (Eight Jud. Dist. Court, Dept. 8)
11 (“Underlying Injunction Action”). CCEA refers to the underlying injunction case as the basis for
12 its injury here (Compl. ¶ 20), and the facts and circumstances of that case inform the basis for this
13 action. The Court may, therefore, take judicial notice of that proceeding and the filings therein.
14 See In re Amerco Deriv. Litig., 127 Nev. 196, 221, 252 P.3d 681, 699 n.9 (2011).
15 CCSD initiated the underlying action to prevent a then-threatened strike by CCEA and its
16 members. See Compl., CCSD v. CCEA, et al., Case No. A-23-874996-C (Eighth Jud. Dist. Court
17 July 31, 2023). CCSD twice moved for emergency injunctive relief, first to prevent the
18 commencement of a threatened strike, and then to stop a strike that had already commenced. See
19 Emergency Mot. for Temp. Restraining Order, Case No. A-23-874996-C (Aug. 1, 2023); Renewed
20 Emergency Mot. for Temp. Restraining Order, Case No. A-23-874996-C (Sept. 11, 2023).2 The
21 Court denied CCSD’s initial request for injunctive relief, finding that there was insufficient
22 evidence that a strike would occur “at [that] point in time,” but the Court invited CCSD to renew
23 its motion should further evidence of a strike become available. See Order Denying TRO, Case
24 No. A-23-874996-C (Aug. 25, 2023). CCSD renewed its motion for injunctive relief on September
25
1
CCSD vehemently disagrees with Plaintiff’s allegations. However, for the purposes of this motion
26 only, CCSD accepts Plaintiff’s allegations of fact as true. Buzz Stew, LLC v. City of N. Las Vegas,
124 Nev. 224, 227–28, 181 P.3d 670, 672 (2008).
27 2
Although the underlying injunction action is assigned to Department 8 (Judge Peterson), Judge
Eller of Department 14 heard the motion and issued the preliminary injunction due to a scheduling
28 conflict.
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 1 11, 2023. On September 13, 2023, the Court heard argument on CCSD’s renewed motion and
2 issued an injunction against CCEA and its co-defendants in the underlying injunction action,
3 finding that a strike had occurred and enjoining its continuance. See Order Granting Injunction,
4 Case No. A-23-874996-C (Sept. 13, 2023); see also Findings of Fact and Conclusions of Law and
5 Order, Case No. A-23-874996-C (Nov. 28, 2023).3 CCEA immediately appealed the injunction
6 and sought an emergency stay. See Notice of Appeal, Case No. A-23-874996-C (Sep. 13, 2023);
7 CCEA’s Emergency Mot. for Stay, Case No. 87290 (Nev. Sept. 14, 2023). CCEA’s emergency
8 motion to stay vaguely forecasted apparent constitutional arguments that CCEA intended to raise
9 on appeal to the Nevada Supreme Court. See CCEA’s Emergency Mot. for Stay 2–3, Case No.
10 87290 (Nev. Sept. 14, 2023).4 However, on September 14, 2023, the Nevada Supreme Court denied
11 emergency relief from the injunction and set the appeal in the normal course. See Order Denying
12 Stay, Case No. 87290 (Nev. Sept. 15, 2023). That appeal is currently pending.
13 On October 9, 2023, CCEA filed this new action, seeking declaratory relief that five
14 provisions of NRS Chapter 288 violate its speech and due process rights facially and as applied.
15 See Compl. ¶ 1. CCEA has not sought to enjoin the enforcement of NRS Chapter 288 or otherwise
16 sought relief from this Court to date. CCSD now moves to dismiss each of CCEA’s claims with
17 prejudice.
18 III. LEGAL ARGUMENT
19 A. CCEA’s Complaint is an impermissible collateral attack on a lawful
injunction in a separate case, which should have been raised in that original
20 action.
21 Several procedural deficiencies plague CCEA’s declaratory-relief claims. First, the
22 Complaint is a transparent attempt to overturn the decision of another department of this court, and
23 thereby, circumvent a lawful and valid injunction. This type of indirect—and horizontal—
24 collateral attack on an existing injunction is plainly improper in light of CCEA’s opportunity to
25 raise such claims in the underlying injunction action and in the appeal currently pending before the
26 3
On November 28, 2023, the Court issued its formal findings of fact and conclusions of law in the
underlying injunction action, which more fully explain the Court’s reasoning and the
27 “overwhelming” evidence supporting issuance of the injunction.
4
CCEA also alluded to these constitutional arguments in its opening brief on appeal. See
28 Appellants’ Opening Brief, Case No. 87290 (Nev. Nov. 27, 2023).
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3960 Howard Hughes Parkway
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702.862.8800
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 1 Nevada Supreme Court. In fact, CCEA has made similar arguments in its opening brief on appeal,
2 creating yet another opportunity for it to raise constitutional challenges that it neglected to raise in
3 the underlying injunction action. Second, CCEA’s declaratory-relief claims are compulsory
4 counterclaims under Rule 13(a), and CCEA was required to raise them in the underlying injunction
5 case. CCEA’s failure to comply with Rule 13(a)’s express requirements divests this Court of
6 subject-matter jurisdiction and mandates dismissal of this complaint. In short, the applicable rules
7 of procedure require dismissal.
8 1. CCEA’s Complaint is an improper collateral attack on this Court’s
lawful injunction.
9
Although styled as a complaint for declaratory relief, CCEA’s Complaint flows directly
10
from CCSD’s underlying injunction case. In fact, CCEA’s only allegation of harm under NRS
11
Chapter 288 relates to the injunction. Thus, the very basis for CCEA’s current claims is that
12
“CCEA, its officers, and its many teacher-members are currently subject to injunction issued by
13
the courts of Nevada pursuant to NRS 288.705 and, in the event of violation, face the draconian
14
penalties found in NRS 288.710 and 288.715 . . . .” Compl. ¶ 20 (emphasis added). Furthermore,
15
CCEA’s constitutional challenge to these NRS 288 provisions only exists because they have been
16
applied to CCEA. Id. ¶ 1. CCEA fails to allege any purported harm before the injunction issued—
17
or in the fifty-plus years that NRS Chapter 288 has barred its ability to lawfully strike—and it
18
alleges no facts that any activity post-injunction subjects them to any other form of harm under the
19
statute. Thus, the only reasonable interpretation of CCEA’s Complaint is that this Court’s
20
interpretation of NRS 288 and its subsequent injunction has harmed them.
21
The collateral-attack doctrine actively prohibits CCEA from asking this department to
22
indirectly overrule another department. The Nevada Supreme Court has long held that “one district
23
court generally cannot set aside another district court’s order.” State v. Sustacha, 108 Nev. 223,
24
226, 826 P.2d 959, 961 (1992); accord Flangas v. Perfeckt Mktg., LLC, 138 Nev. Adv. Op. 26, 507
25
P.3d 574, 582 (2022). Article 6 § 4 of the Nevada Constitution is clear that appellate jurisdiction
26
is vested in the Nevada Supreme Court and Court of Appeals, where appropriate. Cf. Nev. Const.
27
art. 6 § 6 (outlining the district court’s limited appellate jurisdiction over justice court proceedings
28
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 1 and other enumerated inferior proceedings not relevant here). Rule 7.10(b) of the Eighth Judicial
2 District Court’s Rules also reflects this non-controversial principle, advising that “[w]hen any
3 district judge has . . . made any ruling, order, or decision . . . no other judge may do any act or thing
4 in or about such cause, proceeding or motion, unless upon the request of the judge who has begun
5 the trial or hearing of such cause, proceeding or motion.” EDCR 7.10(b). Indeed, “[t]he district
6 courts of this state have equal and coextensive jurisdiction; therefore, the various district courts
7 lack jurisdiction to review the acts of other district courts.” Rohfing v. Second Jud. Dist. Ct., 106
8 Nev. 902, 906, 803 P.2d 659, 662 (1990) (emphasis added).
9 This unsurprising principle is better known as the collateral-attack doctrine, which
10 “precludes litigants from collaterally [or indirectly] attacking the judgments of other courts.” Rein
11 v. Providian Fin. Corp., 270 F.3d 895, 902 (9th Cir. 2001) (citing Celotex Corp. v. Edwards, 514
12 U.S. 300, 313 (1995)); Sustacha, 108 Nev. at 226 n.3. At its core, a collateral attack is “an attempt
13 to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling,
14 correcting or modifying such judgment or decree.” In re Estate of Kam, 129 P.3d 511, 525–26
15 (Haw. 2006). The doctrine recognizes that, except in limited circumstances, “[i]t is for the court of
16 first instance to determine the question of the validity of the law, and until its decision is reversed
17 for error by orderly review, either by itself or by a higher court, its orders based on its decision are
18 to be respected.” Walker v. Birmingham, 388 U.S. 307, 314 (1967) (citation omitted).
19 District courts lack subject matter jurisdiction over a collateral attack unless it falls into
20 specific and narrow boundaries. Rohfing, 106 Nev. at 906. Chief among these restrictions is that
21 the collaterally challenged order be void. Sustacha, 108 Nev. at 226 n.3. A judgment is only void,
22 and therefore subject to collateral attack, if the issuing court “lacked personal jurisdiction or subject
23 matter jurisdiction” over the underlying case. Id. (citing 49 C.J.S. Judgments, § 401, at 792 (1947
24 & supp. 1991)). If, however, the underlying decision was supported by personal and subject-matter
25 jurisdiction, there is no basis for collateral attack, and the reviewing court itself lacks subject-matter
26 jurisdiction to hear the challenge. Rohlfing, 106 Nev. at 906. This jurisdictional limitation does
27 not bend for challenges arising from newly discovered evidence (Ferlingere v. Burkholder, No.
28 69125, 132 Nev. 967, 2016 WL 1394341, at *1 (Nev. Ct. App. Mar. 29, 2016)) or where, as here,
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 1 the challenging party neglected to raise their constitutional arguments in an earlier case. See Sander
2 v. Weyerhaeuser Co., 966 F.2d 501 (9th Cir. 1992) (rejecting collateral attack based on “a
3 completely separate concept” from that raised in the earlier action).
4 Further, CCEA cannot disguise its collateral attack as a request for declaratory relief. “The
5 Ninth Circuit has held that a collateral attack disguised as a suit for declaratory judgment of due
6 process rights is improper.” Church of Scientology Intern. v. Kolts, 846 F. Supp. 873, 885 (C.D.
7 Cal. 1994) (citing Mullis v. United States Bankr. Court, D. of Nev., 828 F.2d 1385, 1392–93 (9th
8 Cir. 1987)). Mullis v. United State Bankruptcy Court is instructive. 828 F.2d 1385. There, a
9 plaintiff raised a declaratory and injunctive relief claim under Bivens v. Six Unknown Named Agents
10 of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), arising from a Nevada Bankruptcy Court’s
11 denial of the plaintiff’s motion to withdraw his bankruptcy petition. Id. at 1387. In affirming the
12 district court’s dismissal of Mullis’s declaratory-relief action, the Ninth Circuit held that Mullis had
13 adequate remedies available to him in the underlying bankruptcy proceeding and through the
14 traditional appellate process for that case. Id. at 1392. However, by styling his new claims as a
15 Bivens action, Mullis effectively brought an improper “‘horizontal appeal’ from one district court
16 to another.” Id. at 1392–93. “Such collateral attacks on the judgments, orders, decrees or decisions
17 of federal courts,” the court found, are patently improper. Id. at 1393 (collecting cases).
18 Here also CCEA brings an impermissible “horizontal appeal” from one judge on this Court
19 to another, based on purported due process and First Amendment challenges to NRS Chapter 288.
20 Like Mullis, however, “[r]egardless of how plaintiff seeks to characterize [this] challenge,” it is
21 effectively asking this court “to do nothing other than second-guess an order issued by another
22 judge on this Court, which this Court cannot do.” Sibley v. Roberts, 224 F. Supp. 3d 29, 38 (D.D.C.
23 2016). CCEA’s recourse, if any, lies in the initial injunction action and the currently pending appeal
24 of that decision. Id.; Mullis, 828 F.2d at 1392–93.
25 2. CCEA failed to raise a compulsory declaratory-relief claim in the
underlying injunction action and is therefore barred from raising it
26 now.
27 CCEA’s declaratory-relief action also fails because it is a compulsory counterclaim to
28 CCSD’s original injunction action, which CCEA forfeited by failing to timely raise in the
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 1 underlying proceeding. Rule 13(a) of the Nevada Rules of Civil Procedure requires a party to raise
2 any compulsory counterclaim in their responsive pleading or forfeit that claim. A counterclaim is
3 compulsory if it (a) arises from the same transaction or occurrence that is the subject matter of the
4 opposing party’s claim and (b) does not require adding another party over whom the court cannot
5 acquire jurisdiction. NRCP 13(a).5 In effect, NRCP 13(a) asks whether CCEA’s new claims arise
6 from the same transaction or occurrence as CCSD’s underlying injunction action, and if so, whether
7 the originally presiding court could have acquired jurisdiction over all necessary parties. Here, the
8 answer to both questions is yes.
9 The Nevada Supreme Court has explained, “[t]he purpose of NRCP 13(a) is to make an
10 ‘actor’ of the defendant so that circuity of action is discouraged and the speedy settlement of all
11 controversies between parties can be accomplished in one action.” Exec. Mgmt., Ltd. v. Ticor Title
12 Ins. Co., 114 Nev. 823, 842, 963 P.2d 465, 478 (1998); see also United Factory Furnishings Corp.
13 v. Alterwitz, No. 2:12-CV-00059, 2012 WL 2138115, at *2 (D. Nev. June 13, 2012) (“The purpose
14 of Nev. R. Civ. P. 13(a) is to encourage swift adjudication of claims against the same parties in one
15 action.”). The relevant consideration is whether “the pertinent facts of [CCEA’s declaratory-relief
16 action] are so logically related to [CCSD’s underlying injunction action] that issues of judicial
17 economy and fairness mandate that all issues be tried in one suit.” Mendenhall v. Tassinari, 133
18 Nev. 614, 621, 403 P.3d 364, 371 (2017) (citing United States v. Aquavella, 615 F.2d 12, 22 (2d
19 Cir. 1979)). The evaluation of “judicial economy” and “fairness” is intertwined with the Court’s
20 broad discretion to administer its own docket. See, e.g., Okanogan Highlands Alliance v. Crown
21 Resources Corp., 526 F. Supp. 3d 872, 877 (E.D. Wash. 2021) (citing United Mine Workers v.
22 Gibbs, 383 U.S. 715, 726 (1966); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th
23 Cir. 1992). To that end, the Court interprets NRCP 13(a) broadly.
24 A claim arises from the same transaction or occurrence as an earlier-filed claim if the two
25 claims’ subject matter is “logically related.” See Mendenhall, 133 Nev. at 621; MacDonald v.
26
5
Certain actions that are not relevant here are excepted from NRCP 13(a)(1)(B)’s jurisdictional
27 requirement. These exceptions apply (1) to claims that were the subject of another pending action
when the original action began and (2) to parties sued by attachment, and therefore lacking personal
28 jurisdiction. NRCP 13(a)(1)(B)(2).
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 1 Krause, 77 Nev. 312, 320, 362 P.2d 724, 729 (1961). This is an inclusive analysis. See MacDonald
2 v. Krause, 77 Nev. 312, 362 P.2d 724, 729 (1961); accord Cutts v. Richland Holdings, Inc., 953
3 F.3d 554, 559 n.4 (9th Cir. 2019). “[A]ny claim that is logically related to another claim . . . is
4 properly the basis for a compulsory counterclaim” and “only claims that are unrelated or are
5 related, but within the exceptions, need not be pleaded.” MacDonald, 77 Nev. at 320 (emphasis
6 added). It follows that the two claims need not share identical fact patterns to fall within Rule
7 13(a)’s scope. See Mendenhall, 133 Nev. at 371 (citing Moore v. N.Y. Cotton Exch., 270 U.S. 593,
8 610 (1926)). The “relevant consideration” is whether fairness and judicial economy supports
9 consolidating the claims into one suit. Id. If so, the claim must be pleaded in the underlying action
10 unless it is completely unrelated to the underlying suit.
11 CCEA’s new declaratory-relief claim arises from the exact same transaction or occurrence
12 as CCSD’s underlying injunction action—the application of NRS 288.700 et seq. to CCEA. CCSD
13 originally brought that case to prevent an unlawful strike as threatened by CCEA and its
14 representatives. See Compl., Case No. A-23-874996-C (July 31, 2023). The Court denied CCSD’s
15 first request for injunctive relief, finding that there was insufficient evidence “at [that] point in
16 time” that a strike would occur absent issuance of an injunction. See Order Denying Mot. for TRO,
17 Case No. A-23-874996-C (Aug. 25, 2023). Ironically, CCEA did not lament the statute’s
18 unconstitutionality after avoiding CCSD’s initial request for injunctive relief, despite now claiming
19 that the statute was facially unconstitutional all along. Nevertheless, CCSD renewed its motion for
20 injunctive relief following a wave of coordinated sickouts that plainly constituted a strike under
21 NRS 288.074. See Renewed Mot. for TRO, Case No. A-23-874996-C (Sept. 11, 2023). The
22 constitutionality of NRS 288.705 and the other provisions of NRS 288 that CCEA now challenges
23 were inextricably intertwined with CCSD’s request for injunctive relief. Indeed, neither Judge Eller
24 nor Judge Peterson could have issued an injunction had they found NRS 288.705 to be
25 unconstitutional on its face or as CCSD requested it be applied.6 Accordingly, this action shares a
26 common transaction and occurrence as the underlying injunction action.
27
6
Indeed, it is “proper for a district court to sua sponte raise issues concerning the facial validity of
28 a particular provision.” United States v. Nye County, 951 F. Supp. 1502, 1509 (D. Nev. 1996); see
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 1 The only remaining question, then, is whether the Court could have asserted jurisdiction
2 over each of the parties to CCEA’s current declaratory-relief action in the underlying injunction
3 action. It could have. CCSD and the State of Nevada are the only defendants in this case. There
4 is no reason to believe that the Court could not have asserted jurisdiction over them both in the
5 underlying injunction case. Indeed, the Court has had no trouble asserting such jurisdiction here.
6 And nothing about the underlying injunction case would have impeded such jurisdiction there.
7 Thus, both of Rule 13(a)’s prongs are satisfied here, and CCEA’s claim was compulsory in the
8 underlying injunction action absent an exception.
9 No exception saves CCEA from Rule 13(a)’s clear dictates. CCEA cannot plausibly argue
10 that it lacked a mature claim against CCSD or the State at the time it filed a responsive pleading in
11 the underlying injunction action because Rule 13(a) does not require that all necessary parties to a
12 compulsory counterclaim be parties to the underlying action. To the contrary, the rule only requires
13 that CCEA had a claim against “an opposing party” at the time of its responsive pleading. Because
14 CCSD is a proper party to this declaratory-relief claim and was a party to the initial proceeding,
15 CCEA was required to bring all claims arising from that transaction and occurrence in the
16 underlying injunction action.
17 Nor does the fact that CCEA’s declaratory-relief action was a possible defense to CCSD’s
18 underlying action affect the existence of its compulsory counterclaim. On that point, Tiltware LLC
19 v. Gowan is instructive. No. 2:10-cv-25 JCM (LRL), 2010 WL 11579775 (D. Nev. Apr. 23, 2010).
20 There, the U.S. District Court for the District of Nevada held that a declaratory-relief action was
21 “not properly brought before the court because it should have been asserted in the related case as a
22 counterclaim.” Id. at *1. In Gowan, the underlying case involved the alleged breach of an oral
23 contract between the parties. Id. The underlying breach of contract case was dismissed, and like
24 here, was immediately appealed. Id. While the appeal was pending, the defendant from the
25 underlying case bought a separate declaratory-relief action, seeking a declaration that his
26 interpretation of the contract was correct. If issued, the subsequent declaratory relief would
27
also Gordon v. Geiger, 133 Nev. 542, 545, 402 P.3d 671, 674 n.3 (2017) (“[T]his court may address
28 constitutional issues sua sponte.”).
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 1 effectively moot the pending appeal. Id. The court declined to hear the declaratory-relief action,
2 finding that it arose “from the same aggregate set of operative facts as the initial claim, in that the
3 same operative facts serve as the basis of both claims.” Id. So too here, CCEA’s duty to raise all
4 counterclaims was “activated” by the underlying injunction action because it arose from the same
5 operative set of facts as CCEA’s current declaratory-relief action. Accordingly, CCEA, had a
6 proactive duty to raise its declaratory-relief claim as a compulsory counterclaim, which it failed to
7 do. As a result, this Court lacks jurisdiction over the declaratory-relief action, and it must be
8 dismissed.
9 B. CCEA’s claims also fail on the merits because Nevada’s prohibition on public-
employee strikes is constitutional.
10
1. There is no constitutionally protected right to strike.
11
Apart from the fatal procedural deficiencies outlined above, CCEA’s claims also fail on the
12
merits. The bulk of CCEA’s challenge relies on the faulty premise that public employees enjoy
13
some right to strike, whether under the First, Fifth, or Fourteenth Amendments or under Nevada’s
14
own speech and due process guarantees. See Compl. ¶¶ 3, 6, 9, 17, 18. CCEA uses this purported
15
right to imply an elevated standard to NRS 288.700. But CCEA is wrong. There is no fundamental
16
right to strike, nor does a strike constitute a “core right[] of political speech” as CCEA baselessly
17
alleges without any authority for the proposition. Id. ¶ 17. Thus, the Nevada Legislature may
18
restrict the right to strike without facing elevated scrutiny.
19
CCEA’s claims are not novel or persuasive. They have been raised—and rejected—by
20
courts across the nation. Historically, neither private employees nor public employees enjoyed a
21
common law right to strike. And, where such a right has been recognized, it has been through
22
statute. See United Fed’n of Postal Clerks v. Blount, 325 F. Supp. 879, 882 (D.D.C. 1971). In fact,
23
prior to the National Labor Relations Act, concerted strike activity was viewed as a conspiracy
24
among employees. Id. Although the NLRA removed the threat of conspiracy to prohibit concerted
25
strikes, the Act plainly does not apply to public employees. Id.; 29 U.S.C. § 153(2); State v. United
26
States Dept. of Labor, 306 F. Supp. 3d 1180, 1182 (E.D. Cal. 2018). Thus, “[i]t seems clear that
27
public employees stand on no stronger footing . . . than private employees and that, in the absence
28
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 1 of a statute, they too do not possess the right to strike.” United Fed’n of Postal Clerks, 325 F. Supp.
2 at 882; accord Amell v. United States, 384 U.S. 158, 161 (1965) (emphasis added) (“By virtue of
3 their government employment . . . [petitioners] are forbidden, under pain of discharge, fine and
4 imprisonment, from exercising or asserting the right to strike.”).
5 The United States Supreme Court, Nevada Supreme Court, and other state and federal
6 courts overwhelmingly agree that public employees lack the right to strike. See Dorchy v. State of
7 Kansas, 272 U.S. 306, 311 (1926) (“Neither the common law, nor the Fourteenth Amendment,
8 confers the absolute right to strike.”); Clark County Sch. Dist. v. Local Govt. Emp. Mgmt. Relations
9 Bd., 90 Nev. 441, 444, 530 P.2d 114, 116 (1974) (“[P]ublic employees . . . do not, however, have
10 the right to strike.”); see also, e.g., B’hood of R.R. Trainmen v. New York Cent. R. Co., 246 F.2d
11 114, 117 (1957) (quoting Dorchy, 272 U.S. at 311) (“Neither the common law, nor the Fourteenth
12 Amendment confers the absolute right to strike.”); Orick v. Banziger, 945 F. Supp. 1084, 1091
13 (S.D. Ohio 1996) (“Plaintiffs’ participation in the strike is not constitutionally protected because
14 there is no fundamental constitutional right to strike.”); United Fed’n of Postal Clerks, 325 F. Supp.
15 at 882; Fed. Firefighters Ass’n, Local 1 v. United States, 723 F. Supp. 821, 823 (D.D.C. 1989) (“[I]t
16 is settled law that public employees have no constitutional right to strike.”); Olshock v. Village of
17 Skokie, 401 F. Supp. 1219, 1220 (N.D. Ill. 1975) (“There is a constitutional right to vote, to have
18 due process, to have equal protection of the laws, to have freedom of speech and the right to worship
19 God or not God. But there is no constitutional right to strike.”); Louisville & N. R. Co. v. Bass, 328
20 F. Supp. 732, 746 (W.D. Ky. 1971) (“While there is certainly no prohibition against an employee
21 from resigning from his or her employment, the Supreme Court has held that there is no
22 constitutional right to strike.”); Jefferson County Bd. of Educ. v. Jefferson County Educ. Ass’n, 183
23 W. Va. 15, 17, 393 S.E. 2d 653, 655 (1990) (“In the absence of legislation, the common law rule
24 recognized in both federal and state courts is that public employees do not have the right to strike.”);
25 Commonwealth Emp. Relations Bd. v. Boston Teachers Union, 74 Mass. App. Ct. 500, 506, 908
26 N.E. 2d 772, 777 (2009) (“The union concedes, as it must, that there is no constitutional right of
27 public employees to strike.”); Sch. Dist. 351 Oneida County v. Oneida Educ. Ass’n, 98 Idaho 486,
28 489, 567 P.2d 830, 833 (1977) (“[W]e find no constitutionally guaranteed right to strike in public
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 1 employees and no such right existed at common law.”); Abney v. City of Winchester, 558 S.W. 2d
2 622, 623 (Ky. Ct. App. 1977) (“It is well settled that a public employee has no inherent right to
3 strike.”); McTigue v. New London Educ. Ass’n, 164 Conn. 348, 358, 321 A. 2d 462, 467 (1973)
4 (“[T]he fourteenth amendment to the United States Constitution does not grant any individual the
5 absolute right to strike.”); City of New York v. De Lury, 23 N.Y. 2d 175, 184, 243 N.E. 2d 128
6 (1968) (“[The Court of Appeal of New York] has expressly rejected constitutional objections to
7 legislation prohibiting and punishing strikes by public employees.”); Minneapolis Fed’n of
8 Teachers Local 59, AFL-CIO v. Obermeyer, 275 Minn. 347, 358, 147 N.W. 2d 358, 366 (1966)
9 (“Even in the absence of a statute, we know of no authority which gives a public employee the right
10 to strike.”); Del. River & Bay Auth. v. Int’l Org. of Masters, Mates & Pilots, 45 N.J. 138, 143, 211
11 A. 2d 789, 792 (1965) (“Public employees have no right to strike.”). Thus, CCEA’s assertion that
12 a ban on strikes by public employees somehow infringes on their constitutional rights is absurd.
13 The District of Columbia rejected a nearly identical challenge to the federal government’s
14 anti-strike statute, 5 U.S.C. § 7311(3), in 1971, and its reasoning is still applicable today. See
15 United Fed’n of Postal Clerks, 325 F. Supp. 879. There, members of the Postal Clerks Union
16 challenged 5 U.S.C. § 7311(3), which prohibited strikes by public employees, under the First
17 Amendment and due process clause of the Fifth Amendment. Id. at 881. Like here, the plaintiffs
18 argued that a complete prohibition on strikes interfered with their fundamental speech and assembly
19 rights and that the statute’s language was vague and overbroad under the Due Process Clause. Id.
20 The court disagreed, flatly holding that plaintiffs had no constitutional right to strike at common
21 law or under any applicable statute. Id. at 882. The plaintiff’s lack of constitutional or statutory
22 right to strike was pivotal to the court’s analysis because it reduced the government’s burden from
23 elevated or strict scrutiny to justify the strike ban to rational-basis review. The court held, “[g]iven
24 the fact that there is no constitutional right to strike, it is not irrational or arbitrary for the
25 Government to . . . prohibit strikes by those in public employment.” Id. at 883. Thus, the
26 government’s prerogatives in prohibiting strikes need only be reasonable to withstand scrutiny, and
27 objectives such as to ensure “some sense of higher obligation associated with public service, to
28 assure the continuing function of Government without interruption, to protect public health and
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 1 safety or . . . other reasons” will justify a ban on public-employee strikes. Id. The court also
2 recognized that the prohibition on strikes did not interfere with other rights that do find
3 constitutional protection, such as the right to organize collectively or the right to select
4 representatives for the purposes of collective bargaining. Id. Accordingly, a prohibition on public-
5 employee strikes does not in any way curtail the employee’s constitutionally protected rights, nor
6 does it interfere with public-employees’ recognized labor rights.
7 Several state courts have also upheld similar anti-strike provisions against challenges nearly
8 identical to CCEA’s challenge here. In just one example, the Kentucky Court of Appeals upheld
9 an injunction against a nearly identical challenge from a teacher’s union, affirming the
10 constitutionality of state anti-strike provisions.7 Like here, the Kentucky teacher’s union
11 challenged the state’s anti-strike provision under the First and Fourteenth Amendments after being
12 enjoined from “participating in a concerted work stoppage or strike in the public schools.”
13 Jefferson County Teachers Ass’n v. Bd. of Educ. of Jefferson County, 463 S.W. 2d 627, 628 (Ky.
14 1970). In rejecting the union’s challenge, the court acknowledged that the union’s entire argument
15 “seem[ed] to be based on the assumption that public employees have the constitutional right to
16 strike, which is an unfounded assumption and begs the question.” Id. at 629 (emphasis added).
17 The court continued that Kentucky’s anti-strike provision did not violate the plaintiff’s speech and
18 association rights because the statute merely “prohibits the commission of illegal acts, and the rights
19 of free speech and public assembly do not license violation of Law.” Id. at 630 (citing City of Los
20 Angeles v. Los Angeles Building and Const. Trades Council, 94 Cal App. 2d 26, 210 P.2d 305, 309
21 (1949)).
22 This case is no different than several others. A prohibition on public-employee strikes
23 simply does not infringe on any constitutional right, and CCEA lacks any plausible basis to allege
24 otherwise. This Court, like several before it, should find that there is no right to strike and that
25 7
Kentucky is one of several states to have upheld anti-strike provisions against constitutional
challenge. See also, e.g., Rogoff v. Anderson, 34 A.D. 2d 154, 310 N.Y.S. 2d 174 (1971); State v.
26 Health, 177 N.W. 2d 751 (N.D. 1970); Abbot v. Myers, 20 Ohio App. 2d 65, 251 N.E. 2d 869 (Ohio
Ct. App. 1969); Sch. Dist. for City of Holland, Ottawa and Allegan Counties v. Holland Educ.
27 Ass’n, 380 Mich. 314, 157 N.W. 2d 206 (Mich. 1968); In re Block, 50 N.J. 494, 236 A.2d 589
(N.J.1967); City of Pawtucket v. Pawtucket Teachers’ Alliance Local 430, 87 R.I. 364, 141 A.2d
28 624 (R.I. 1958).
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 1 NRS Chapter 288 merely prohibits illegal conduct that is void of constitutional protection.
2 2. None of the challenged provisions of NRS Chapter 288 violate CCEA’s
speech or due process rights.
3
Should the Court reach the merits of CCEA’s claims, it should still dismiss this case because
4
none of CCEA’s allegations come close to stating a claim for relief under Rule 8. CCEA’s
5
challenge arises from its alleged speech and assembly rights (see U.S. Const. amend. I; Nev. Const.
6
art. I, §§ 9, 10) and due process rights (see U.S. Const. amends. V, XIV; Nev. Const. art. I § 8).
7
For ease of reference, the relevant portions of the First Amendment and article I §§ 9 and
8
10 of the Nevada Constitution state:
9
Congress shall make no law . . . abridging the freedom of speech . . . or the right of
10 the people peaceably to assemble . . . .
11 U.S. Const. amend. I. And:
12 Every citizen may freely speak, write and publish his sentiments on all subjects
being responsible for the abuse of that right; and no law shall be passed to restrain
13 or abridge the liberty of speech or of the press.
14 The people shall have the right freely to assemble together to consult for the
common good, to instruct their representatives and to petition the Legislature for the
15 redress of Grievances.
16 Nev. Const. art. I §§ 9, 10.
17 The applicable due process provisions of the United States and Nevada Constitutions are:
18 No person shall be . . . deprived of life, liberty, or property, without due process of
law.
19
U.S. Const. amend. V.
20
Part and parcel is the Fourteenth Amendment, which applies the same Fifth Amendment
21
due process rights applicable to the federal government to each state government.
22
Nor shall any State deprive any person of life, liberty, or property, without due
23 process of law.
24 U.S. Const. amend. XIV § 1. Nevada’s Constitution echoes the Fifth and Fourteenth Amendments,
25 stating:
26 No person shall be deprived of life, liberty, or property, without due process of law.
27 Nev. Const. art. I § 8.2.
28 The Nevada Supreme Court looks to the federal courts to determine the scope of its own
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 1 constitutional guarantees. See, e.g., State v. Eighth Jud. Dist. Court, 129 Nev. 492, 504, 306 P.3d
2 369, 377 (2013) (“This court has consistently relied upon the Supreme Court’s holdings interpreting
3 the federal Due Process Clause to define the fundamental liberties protected under Nevada’s due
4 process clause.”); S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403, 415, 23 P.3d 243, 251 (2001)
5 (recognizing that the Nevada’s free-speech provisions at art. I § 9 are “coextensive to, but no greater
6 than, that of the First Amendment to the United States Constitution.”); Univ. & Comm’ty College
7 Sys. of S. Nev. v. Nevadans for Sound Gov’t, 120 Nev. 712, 722, 100 P.3d 179, 187 (2004) (“[U]nder
8 the Nevada Constitution, the appropriate analysis of [restrictions on speech] is identical to that
9 under the First Amendment.”).
10 a. Legal Standard
11 i. Facial vs. As-Applied Challenges
12 The starting point for any statutory challenge is the presumption that the statute is
13 constitutional. Busefink v. State, 128 Nev. 525, 528–29, 286 P.3d 599, 602 (2012) (citation
14 omitted); United States v. Harris, 185 F.3d 999, 1003 (9th Cir. 1999). Given that presumption,
15 CCEA “bear[s] the considerable burden of making a plain showing” that the legislature has
16 “exceeded its constitutional bounds in creating” NRS Chapter 288. United States v. Xiaoying Tang
17 Dowai, 839 F.3d 877, 879 (9th Cir. 2016); Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev.
18 502, 509, 217 P.3d 546, 551 (2009). The Court must interpret the statute in a reasonable manner
19 and, whenever possible, must interpret the statute in a way that renders it constitutional. Commc’ns
20 Workers of Am. v. Beck, 487 U.S. 735, 762 (1988); Shue v. State, 133 Nev. 798, 804, 407 P.3d 332,
21 338 (2017) (“[T]his court construes statutes, if reasonably possible, so as to be in harmony with the
22 constitution.”). The Court does not lightly strike down otherwise valid pronouncements by the
23 Legislature. And the Court’s presumption of validity, coupled with its duty to interpret a challenged
24 statute to be constitution, where possible, creates a “considerable burden” to demonstrate
25 unconstitutionality, which CCEA must demonstrate by a “clear showing.” Sheriff, Washoe County
26 v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002); Xiaoying Tang Dowai, 839 F.3d at 879.
27 CCEA’s facial challenges to NRS Chapter 288 present an even more difficult challenge.
28 “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount
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 1 successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987). To prevail, CCEA must
2 overcome the presumption that the statute is constitutional and demonstrate that there is “no set of
3 circumstances under which the statute itself would be valid.” Déjà Vu Showgirls v. State, Dept. of
4 Tax, 130 Nev. 719, 727, 334 P.3d 392, 398 (2014) (citing Busefink, 128 Nev. at 528–29); Salerno,
5 481 U.S. at 745. A facial challenge is effectively directed at the legislature to show that the statute
6 is unconstitutional in every conceivable application. Young v. Hawaii, 992 F.3d 765, 779 (9th Cir.
7 2021) (en banc), vacated on other grounds, 142 S. Ct. 2895 (2022). Conversely, an as-applied
8 challenge, as the name suggests, focuses on how a particular statute was administered against a
9 particular plaintiff. Where, as here, a plaintiff raises simultaneous facial and as-applied challenges,
10 the Court should assess the as-applied challenge first in an effort to avoid reaching an overbreadth
11 argument unnecessarily. Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484–85 (1989).
12 ii. Due Process and First Amendment Claims
13 CCEA appears to allege a violation of its First Amendment rights to speech and assembly
14 via the due process clause of the Fourteenth Amendment. The Complaint fails to allege even the
15 most basic elements of a due process claim, however, and it is unclear whether they challenge NRS
16 Chapter 288 on a procedural or substantive basis. No matter, CCEA’s claims fail under either
17 standard because there is no inherent liberty or property interest in striking.
18 A procedural due process claim challenges whether a plaintiff received adequate process
19 prior to the deprivation of liberty or property. See Foss v. Nat’l Marine Fisheries Serv., 161 F.3d
20 584, 588 (9th Cir. 1998). In all, the plaintiff must demonstrate (1) a protectible liberty or property
21 interest; and (2) denial of adequate procedural protections. Id. (citing Bd. of Regents v. Roth, 408
22 U.S. 564, 569–71 (1972)). The sufficiency of procedural process is a flexible analysis, which
23 considers the challenged property or liberty interest itself, the risk of erroneous deprivation of such
24 interest, and the government’s own interest in maintaining its procedures. Mathews v. Eldridge,
25 424 U.S. 319, 334–35 (1976). If the plaintiff receives adequate process, the deprivation of liberty
26 does not violate the Fifth or Fourteenth Amendments.
27 Substantive due process, on the other hand, evaluates whether the plaintiff enjoyed a valid
28 liberty or property interest that the government infringed in an arbitrary or irrational manner. See
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 1 Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997); Vill. of Euclid, Ohio v. Ambler Realty
2 Co., 272 U.S. 365, 395 (1926); Washoe County Human Servs. Agency v. Second Jud. Dist. Court,
3 138 Nev. Adv. Op. 87, 521 P.3d 1199, 1205 (2022). Certain “fundamental rights and liberty
4 interests,” receive heightened protection against government interference. Glucksberg, 521 U.S. at
5 720. However, the Court should be “reluctant to expand the concept of substantive due process”
6 past what the Supreme Court has already recognized. Id. (citing Collins v. City of Harker Heights,
7 Tex., 503 U.S. 115, 125 (1992)). If the alleged right is not “fundamental,” however, the government
8 need only demonstrate a rational basis for the challenged action. Meyer v. Portfolio Recovery
9 Assocs., LLC, 707 F.3d 1036, 1045 (9th Cir. 2012); Washoe County Human Servs. Agency, 521
10 P.3d at 1205. Absent a fundamental right, the government need only demonstrate a rational means
11 of achieving a “legitimate end” to satisfy due process. FCC v. Beach Commc’ns, Inc., 508 U.S.
12 307, 313 (1993); Merrifield v. Lockyer, 547 F.3d 978, 989 (9th Cir. 2008); State v. Eighth Jud. Dist.
13 Court, 129 Nev. 492, 503, 306 P.3d 369, 377 (2013).
14 CCEA cannot state a claim for relief under either due process standard because there is no
15 fundamental right for public employees to strike and because Nevada’s intent to prohibit such
16 strikes meets rational basis review.
17 b. NRS 288.074’s definition of “Strike” is constitutional on its face and as
applied to CCEA.
18
Although CCEA does not lead with its flawed interpretation of NRS 288.074’s definition
19
of “Strike” (it is CCEA’s third cause of action), its claims all derive from this purportedly overbroad
20
definition. See Compl. ¶¶ 26, 30, 48, 51, 54 (each alleging an “overbroad definition[] of ‘strike’
21
contained in NRS 288.074”). Thus, to the extent that NRS 288.074 is consistent with the federal
22
and state constitution, CCEA’s derivative claims based on its definition necessarily fail. See Turner
23
v. Mandalay Sports Ent., LLC, 124 Nev. 213, 222 n.31, 180 P.3d 1172, 1178 (2008).
24
NRS 288.074 defines “strike” to include any concerted:
25

26 1. Stoppage of work, slowdown or interruption of operations by employees

of the State of Nevada or local government employees;
27

28
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 1 2. Absence from work by employees of the State of Nevada or local
government employees upon any pretext or excuse, such as illness, which is
2 not founded in fact; or
3 3. Interruption of the operations of the State of Nevada or any local
government employer by any employee organization or labor organization.
4

5 CCEA identifies three clauses within NRS 288.074, that, it alleges, lack “specific standards,

6 and thereby encourage[], authorize[], and fail[] to prevent arbitrary and discriminatory

7 enforcement.” Compl. ¶ 37. Those clauses are: (1) “stoppage of work, slowdown, or interruption

8 of operations by employees” (id. ¶ 38); (2) “Absence of work by employees . . . upon any pretext

9 or excuse, such as illness, which is not founded in fact” (id. ¶ 39); and (3) “interruption of

10 operations” (id. ¶ 40). Missing from CCEA’s sparse allegations is which of these particular clauses

11 was applied against them. To clarify CCEA’s strategic omission, only the second prong (“Absence

12 of work by employees . . . upon any pretext . . .”) was actually applied to enjoin their strike.

13 Nevertheless, none of these three clauses is vague or overbroad. When interpreting a

14 statute, the Court gives each term its ordinary or natural meaning. See Leocal v. Ashcroft, 543 U.S.

15 1, 8–9 (2004); S. Nev. Homebuilders Ass’n v. Clark County, 121 Nev. 446, 117 P.3d 171, 173

16 (2005). Further, where an ambiguous provision gives rise to both a constitutional and

17 unconstitutional interpretation, the Court should choose the constitutional interpretation. SFR Invs.

18 Pool 1, LLC v. Bank of New York Mellon, 134 Nev. 483, 486, 422 P.3d 1248, 1251 (2018); Sheriff

19 Washoe County v. Wu, 101 Nev. 687, 689–90, 708 P.2d 305, 306 (1985). The Court does not

20 “strain to create an ambiguity where none exists.” Robert W. Fountain, Inc. v. Citizens Ins. Co. of

21 Am., 506 F. Supp. 3d 847, 851 (N.D. Cal. 2020). Indeed, an overbreadth challenge is “strong

22 medicine that is used sparingly and only as a last resort.” New York State Club Ass’n, Inc. v. City

23 of New York, 487 U.S. 1, 14 (1988) (quoting Broadrick v. Oklahoma, 413 U.S 601, 613 (1973)).

24 The plain meaning of NRS 288.074 sufficiently places public employees on notice of what

25 conduct may be prohibited under NRS Chapter 288. Starting with NRS 288.074(2)’s prohibition

26 on pretextual absences, the plain meaning of each term in that clause refers to coordinated “sick

27 outs” where several employees fail to report to work “upon any pretext or excuse, such as an

28 illness.” This is the only portion of NRS 288.074 that was applied against CCEA in the underlying
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 1 injunction action.
2 To understand the plain meaning of a “concerted” “pretext[ual]” absence, one must first
3 define “concerted” as that term modifies each subsection of NRS 288.074 and plays an integral role
4 in distinguishing strike activity from non-strike activity. In the labor context, and for purposes of
5 NRS Chapter 288, an activity is “concerted” if it involves “employees who have joined together in
6 order to achieve common goals.” Moreno v. Utiliquest, LLC, 29 F. 4th 567, 576 (9th Cir. 2022)
7 (citation omitted); see also Nev. Comm’n on Ethics v. Ballard, 120 Nev. 862, 866, 102 P.3d 544,
8 546 (2004) (“We interpret statutes . . . in the context of the entire statutory scheme, consistent with
9 the spirit of the law.”). There is no requirement that a particular organization direct such activity
10 for it to be considered concerted under NRS 288.074. See id.; Koch Supplies, Inc. v. NLRB, 646
11 F.2d 1257, 1259 (8th Cir. 1981). It merely requires that employees act together “for mutual aid.”
12 See NLRB v. Chelsea Labs., Inc., 825 F.2d 680, 683 (2d Cir. 1987). Thus, the modifier “concerted”
13 imposes an additional level of protection to public employees because their individual actions—
14 taking a sick day, for example—do not trigger NRS 288.074. However, where, as here, employees
15 coordinate their sick days based upon their displeasure with CCEA’s lack of success in bargaining,
16 that concerted activity triggers NRS 288.074’s prohibitions.
17 Having defined “concerted,” the Court need only look to the plain meaning of “pretext” to
18 ascertain the extent of concerted conduct captured by NRS 288.074(2). Generally, “pretext” is any
19 “dishonest explanation” that hides the real reason for one’s actions. Tarochione v. Roberts
20 Pipeline, Inc., 62 F. Supp. 3d 821, 827 (N.D. Ill. 2014). This definition echoes Black’s Law
21 Dictionary, which defines “pretext” as “A false or weak reason or motive advanced to hide the
22 actual or strong reason or motive.” Pretext, Black’s Law Dictionary (11th ed. 2019). And both
23 definitions align with Merriam Webster’s definition: “a purpose or motive alleged or an appearance
24 assumed in order to cloak the real intention or state of affairs.”8 Putting the definitions together
25 yields the common sense understanding of NRS 288.074(2), which encompasses a coordinated
26 absence from work by more than one employee upon a false or deceptive reason to hide the actual
27 8
Pretext, Merriam Webster Dictionary, https://www.merriam-
webster.com/dictionary/pretext?utm_campaign=sd&utm_medium=serp&utm_source=jsonld (last
28 visited Nov. 20, 2023).
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 1 motivation for such absence. That is exactly what CCEA and its bargaining unit did here, and there
2 is no allegation—or common-sense reason—to believe that NRS 288.074(2) would mean anything
3 other than that simple definition. There is, therefore, no ambiguity to NRS 288.074(2).
4 CCEA’s claims arising from subsections (1) and (3) of NRS 288.074 also fail because they
5 have not been applied against CCEA as the basis for entering the injunction. But even if they had
6 been, neither subsection is vague or ambiguous in light of the requirement that “concerted” activity
7 form the basis for either provision. Put simply, if a concerted action by more than one employee
8 results in a “stoppage of work, slowdown, or interruption of operations by employees” or an
9 “interruption of operations,” that concerted activity would qualify as a strike under the statute.
10 Finally, NRS 288.074’s terms are not novel or confusing in the context of public anti-strike
11 provisions. Several courts have upheld similar language against overbreadth and vagueness
12 challenges. For example, New York upheld a definition of strike that prohibited “the failure to
13 report for duty, the willful absence from one’s position, the stoppage of work . . . for the purpose
14 of inducing, influencing or coercing a change in the conditions of compensation, or the rights,
15 privileges or obligation of employment.” See Pruzan v. Bd. of Educ. of City of New York, 25 Misc.
16 2d 945, 948, 209 N.Y.S. 2d 966, 970 (Sup. Ct. 1960). The New York court found that the definition
17 was “as clear and definite as any definition can reasonably be” and that “[n]o definition can be so
18 detailed as to cover every situation which may conceivably arise in the future.” Id. at 974; see also
19 Holland Educ. Ass’n, 380 Mich. at 319–20, 325–26 (finding “no constitutional infirmity” in
20 Michigan’s similar definition of strike).
21 The Nevada Legislature more than adequately defined what constitutes a strike under NRS
22 288.074, and CCEA has failed to state a constitutional claim on First Amendment or Due Process
23 grounds. CCEA’s apparent contention that Nevada’s public-school teachers are incapable of
24 reasonably understanding the terms “concerted”, “stoppage”, “slowdown”, or “interruption”, is
25 disingenuous and belittling to the thousands of teachers it represents. These terms do not carry
26 difficult meanings, and CCEA cannot be allowed to feign ignorance over the statute’s otherwise
27 plain requirements in an effort to manufacture a constitutional claim.
28
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 1 c. NRS 288.700 is constitutional on its face and as applied to CCEA.
2 CCEA next challenges NRS 288.700 on its face and as applied. This claim, however, is not
3 justiciable as it is flatly barred by the political-question doctrine. The claim is also insufficiently
4 pleaded. The scope and purpose of NRS 288.700 is simple. It is a legislative pronouncement of
5 the nature and character of the services provided by public employees. In the legislature’s view,
6 these services are essential, and their interruption is so detrimental to the citizens of the State that
7 Nevada’s public policy is that strikes against any State or local government employer are illegal.
8 In full, the statute reads:
9 Legislative findings and declaration; illegality of strikes.
10 1. The Legislature finds as facts:
11 (a) That the services provided by the State and local government employers
are of such nature that they are not and cannot be duplicated from other
12 sources and are essential to the health, safety and welfare of the people of
the State of Nevada;
13
(b) That the continuity of such services is likewise essential, and their
14 disruption incompatible with the responsibility of the State to its people; and
15 (c) That every person who enters or remains in the employment of the State
or a local government employer accepts the facts stated in paragraphs (a) and
16 (b) as an essential condition of the person’s employment.
17 2. The Legislature therefore declares it to be the public policy of the State of
Nevada that strikes against the State or any local government employer are illegal.
18

19 NRS 288.700.
20 To the extent CCEA challenges the Legislature’s findings concerning the nature of public
21 services and the declaration that the “public policy of the State of Nevada that strikes against [public
22 employers] are illegal,” such policy declarations fall within the exclusive purview of the legislative
23 branch. Both the separation-of-powers and political-question doctrines prohibit the Court from
24 adjudicating “policy choices and value determinations constitutionally committed for resolution to
25 the legislative and executive branches.” N. Lake Tahoe Fire v. Washoe County Comm’rs, 129 Nev.
26 682, 687, 310 P.3d 583, 587 (2013) (citations omitted); see also United States v. Munoz-Flores,
27 495 U.S. 385, 389–90 (1990). At minimum, NRS 288.700’s title: “Legislative findings and
28 declaration; illegality of strikes” makes clear that the statute is the very “policy choice[] and value
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 1 determination[] constitutionally committed” to the Nevada Legislature. CCEA’s relief—if any—
2 lies with the Nevada Legislature, not with this Court.
3 Regardless, CCEA’s flimsy complaint lacks any allegation that NRS 288.700 is
4 unconstitutional under any standard. CCEA’s challenge is three-fold: NRS 288.700
5 (1) impermissibly burdens free speech conduct protected by the Nevada United States
6 Constitutions, (2) is not narrowly tailored; and (3) “incorporates and enforces the overbroad
7 definition of ‘strike’ contained in NRS 288.074.” Compl. ¶¶ 24, 26, 30. None of these challenges
8 have merit. As discussed, CCEA has no constitutional right to strike. See Section B.1–B.2 supra.
9 Nor is NRS 288.074 vague or overbroad. See Section B.2.b supra. Thus, the only remaining
10 allegation is that NRS 288.700 is not “narrowly tailored” because it does not distinguish among
11 public employees. That contention also fails.
12 CCEA does not plead that the legislature was under a duty to distinguish between public
13 employees, and there is no reason to believe the legislature had such a duty. And even if the
14 legislature was under some obligation to classify between types of public employees, there is no
15 reasonable basis to allege that it would exempt teachers from its anti-strike statutory scheme. The
16 services that teachers provide are the very services outlined by the statute. Those services cannot
17 be duplicated (NRS 288.700(1)(a)), are essential to the State and its people (NRS 288.700(1)(b)),
18 and their disruption is “incompatible with the responsibility of the State to its people (id.). Indeed,
19 the limited rolling sickouts that CCEA facilitated had a wide-ranging impact on students, families,
20 and the community in general that cannot be remedied by any conceivable means. Moreover, NRS
21 Chapter 288 was implemented in response to a teacher strike. Thus, the legislature has directed
22 that public-education services are so vital that their interruption through strikes must be prevented
23 for more than fifty years. CCEA’s bare and conclusory allegations do nothing to contradict both
24 the plain text and the history of NRS 288.700.
25 d. NRS 288.705 is constitutional on its face and as applied to
CCEA.
26
CCEA next alleges that NRS 288.705 violates speech and due process rights. Like all of
27
CCEA’s allegations, however, its challenge to NRS 288.705 rests on the flawed premises that NRS
28
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 1 288.074’s definition of strike is ‘impermissibly vague and overbroad” and that NRS 288.705,
2 therefore, leads to “arbitrary and discriminatory enforcement.” Compl. ¶¶ 7, 48; see Section B.2.b
3 supra. This alone dooms CCEA’s claim. CCEA also fails to allege how NRS 288.705 harmed
4 them outside of their being subject to a lawful injunction in the underlying injunction action. See
5 Compl. ¶ 20. CCEA’s claims, therefore, must be dismissed and litigated in the underlying
6 injunction action.
7 CCEA fails to state a claim for relief from NRS 288.705 on the merits also. CCEA’s
8 complaint is short on actual facts, but CCSD interprets CCEA’s challenge to NRS 288.705 to hinge
9 on its inclusion of “threatened” strikes against the State. NRS 288.705(1); Compl. ¶ 7. The statute
10 provides: “[I]f a strike is threatened against the State or local government employer, the State or
11 local government employer may, apply to a court of competent jurisdiction to enjoin such a strike.”
12 Id. (emphasis added). Hinging this challenge on the perceived prohibition on threats to strike,
13 however, is inconsistent with the text of the statute and its application to CCEA in the underlying
14 injunctive action. NRS 288.705 does not actually prohibit threats to strike. Instead, it allows public
15 employers, including CCSD, to seek an injunction to prevent a strike from occurring. In essence,
16 the threats only form a basis to trigger an injunction if the Court finds that a strike will occur unless
17 enjoined. NRS 288.705(2). It is the strike—not the speech—that is enjoined.
18 Judge Peterson explained as much in her order denying CCEA’s Special Anti-SLAPP
19 Motion to Dismiss in the underlying injunction action, holding:
20 [W]hile it may appear at first blush that [CCSD’s] lawsuit is
attempting to stop teachers from engaging in protected speech, it is
21 not. [CCSD] is not attempting to keep the teachers or the union from
petitioning or from speaking out about issues that are affecting the
22 teachers. Rather, [CCSD’s] lawsuit was brought to stop the teachers
from engaging in a strike, which is illegal and thus is not protected.
23

24 See Order Denying Anti-SLAPP Special Motion to Dismiss 3, Case No. A-23-874996-C (Eighth
25 Jud. Dist. Court Nov. 7, 2023). The Court further found that CCSD “is not complaining about the
26 speech or petitioning activity itself but rather is simply using the speech and petitioning activity as
27 evidence that the teachers were going to engage in a strike.” Id. And because CCEA lacks any
28 right to strike, the injunction does not implicate CCEA’s speech or due process rights.
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 1 e. Neither NRS 288.710 nor NRS 288.715 violate CCEA’s speech or
due process rights.
2
CCEA last challenges NRS 288.710 and NRS 288.715, which outline the penalties that may
3
be assessed should a public employee violate a court order enjoining an illegal strike. CCEA
4
challenges these provisions on their face and as applied. Missing from the complaint, however, is
5
any allegation that NRS 288.710 or NRS 288.715 was applied to CCEA at all. This is because
6
CCEA cannot allege such facts; neither statute has actually been applied to CCEA. Ironically, once
7
CCEA and its bargaining unit was enjoined from striking, the strikes stopped as the statute intended.
8
Thus, there has been no need for their application to CCEA as of this filing, and this as-applied
9
challenge fails. See Harris v. Iorio, 922 S. Supp. 588, 590 (M.D. Fla. 1996), aff’d, 136 F.3d 139
10
(11th Cir. 1998) (finding that plaintiff’s as-applied challenge to statute failed because the statute
11
had not been applied to him).
12
CCEA is left with a facial challenge to NRS 288.710 and NRS 288.715 and, therefore, must
13
allege that no set of circumstances could justify enforcement under the statutes. Déjà Vu Showgirls,
14
130 Nev. at 727. CCEA does not come close to alleging sufficient facts. The closest CCEA gets
15
to mounting a facial challenge is that the two statutes impose “draconian penalties” for violating an
16
injunction prohibiting a strike. See Compl. ¶¶ 7, 20. Repeatedly calling penalties “draconian,”
17
however, provides nothing to the constitutional analysis required here. To the contrary, CCEA
18
must allege facts to support the implicit contention that there is “no set of circumstances under
19
which the statute itself would be valid.” Id.; Salerno, 481 U.S. at 745.
20
Not only has CCEA failed to allege that either statute is facially invalid, but it is not difficult
21
to envision how both statutes may be applied in a constitutionally consistent manner. To start, both
22
statutes leave the court and public employers ample discretion to fashion appropriate consequences
23
for the violation of a court order. See NRS 288.710(1) (“If a strike is commenced or continued in
24
violation of an order . . . the court may . . . .”); NRS 288.715(1) (“If a strike or violation is
25
commenced or continued in violation of an order . . . the State or local government employer may
26
. . . .”). In other words, neither statute requires the imposition of such penalties, and the existence
27
of discretion permits the Court and public employers the flexibility to apply the law “to avoid
28
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 1 constitutional questions.” See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
2 450 (2008). This discretion renders a facial challenge particularly difficult as the Court may
3 “exercise[e] judicial restraint in a facial challenge” to prevent the “premature interpretation[] of
4 statutes in areas where their constitutional application might be cloudy.” Id.; United States v.
5 Raines, 362 U.S. 17, 22 (1960); Libertarian Party of New Hampshire v. Gardner, 843 F.3d 20, 24
6 (2016). In short, both the court and the affected government employer enjoys discretion to enforce
7 some, all, or none of the penalties outlined in NRS 288.710 and NRS 288.715 if the injunction is
8 violated. Thus, CCEA cannot allege sufficient facts to demonstrate that either statute is
9 unconstitutional on its face.
10 IV. CONCLUSION
11 For the foregoing reasons, Defendant respectfully requests that the Court grant Defendant’s
12 Motion to Dismiss.
13
Dated: November 30, 2023
14 LITTLER MENDELSON, P.C.
15

16 /s/ Andrew S. Clark

ETHAN D. THOMAS, ESQ.
17 ANDREW S. CLARK, ESQ.
18 CRYSTAL J. HERRERA, ESQ.
OFFICE OF THE GENERAL COUNSEL
19 CLARK COUNTY SCHOOL DISTRICT
20
Attorneys for Defendant
21 Clark County School District

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 1 PROOF OF SERVICE
2
I am a resident of the State of Nevada, over the age of eighteen years, and not a party to the
3
within action. My business address is 3960 Howard Hughes Parkway, Suite 300, Las Vegas,
4
Nevada, 89169-5937. On November 30, 2023, I served the within document(s):
5
CLARK COUNTY SCHOOL DISTRICT’S MOTION TO DISMISS
6
Via Electronic Service - pursuant to N.E.F.C.R Administrative Order: 14-2.
7 
Bradley Schrager, Esq. Attorney General Aaron Ford
8
Daniel Bravo, Esq. Kiel Ireland, Esq.
9 BRAVO SCHRAGER, LLP Office of the Attorney General
6675 South Tenaya Way, Suite 200 Grant Sawyer Building
10 Las Vegas, Nevada 89113 555 E. Washington Avenue, Suite
E-mail: bradley@bravoschrager.com 3900
11 daniel@bravoschrager.com Las Vegas, NV 89101
12 E-mail: KIreland@ag.nv.gov
Attorneys for Plaintiff
13 CLARK COUNTY EDUCATION Attorneys for Defendant
ASSOCIATION STATE OF NEVADA
14

15 I declare under penalty of perjury that the foregoing is true and correct. Executed on

16 November 30, 2023 at Las Vegas, Nevada.

17

18 /s/ Joanne Conti

Joanne Conti
19

20 4891-6713-1281.2 / 026133-1028

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