courtney v. danner brief in opposition
TRANSCRIPT
No. 13-1064
In The Supreme Court Of The United States
JAMES COURTNEY AND CLIFFORD COURTNEY,
PETITIONERS,
v.
DAVID DANNER, IN HIS OFFICIAL CAPACITY AS
CHAIRMAN AND COMMISSIONER OF THE WASHINGTON
UTILITIES AND TRANSPORTATION COMMISSION, ET AL.,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
ROBERT W. FERGUSON
Attorney General
NOAH G. PURCELL
Solicitor General
JAY D. GECK
Deputy Solicitor General
FRONDA C. WOODS
Assistant Attorney General
Counsel of Record
1125 Washington Street SE
Olympia, WA 98504-0100
360-586-2644
i
QUESTION PRESENTED
The State of Washington regulates ferry
services within the state and requires a certificate of
public convenience and necessity before a commercial
ferry service may operate. Does the Privileges or
Immunities Clause prohibit the states from requiring
such a certificate to regulate commercial ferry
services?
ii
PARTIES
Petitioners James and Clifford Courtney were
the appellants in the U.S. Court of Appeals for the
Ninth Circuit. The respondents in the Ninth Circuit
were Jeffrey Goltz, then-chairman and commissioner
of the Washington Utilities and Transportation
Commission (WUTC); Patrick Oshie, then-
commissioner of the WUTC; Philip Jones,
commissioner of the WUTC; and David Danner,
then-executive director of the WUTC, in their official
capacities. Since the appeal began, Oshie has
resigned from the WUTC, Danner has been
appointed its chairman, and Steven King has been
appointed its executive director. Accordingly,
pursuant to Rule 35.3, the respondents in this Court
are David Danner, chairman and commissioner;
Jeffrey Goltz, commissioner; Philip Jones,
commissioner; and Steven King, executive director,
in their official capacities.
iii
TABLE OF CONTENTS
INTRODUCTION ....................................................... 1
STATEMENT OF THE CASE .................................... 1
REASONS WHY THE COURT SHOULD
DENY THE PETITION .............................................. 6
A. There Is No Conflict Regarding
Whether There Is A Federally Secured
Privilege To Avoid State Ferry
Regulation ........................................................... 8
B. There Is No “Widespread Uncertainty”
Or “Judicial Paralysis” That Requires
Review Of Petitioners’ Claim ........................... 14
C. This Case Is Not A Good Vehicle To
Give Meaningful Guidance On The
Privileges Or Immunities Clause ..................... 15
CONCLUSION .......................................................... 19
iv
TABLE OF AUTHORITIES
Cases
Butchers’ Union Slaughter-House & Live-
Stock Landing Co. v. Crescent City Live--
Stock Landing & Slaughter-House Co.
111 U.S. 746 (1884) ..................................................... 10
Canadian Pac. Ry. Co. v. United States
73 F.2d 831 (9th Cir. 1934)........................................ 11
Chavez v. Arte Publico Press
204 F.3d 601 (5th Cir. 2000) ..................................... 15
Conway v. Taylor’s Ex’r
66 U.S. (1 Black) 603 (1861) ................................ 11, 18
Evans v. Romer
882 P.2d 1335 (Colo. 1994) ........................................ 14
Gloucester Ferry Co. v. Pennsylvania
114 U.S. 196 (1885) ..................................................... 10
Kitsap Cnty. Transp. Co. v. Manitou
Beach-Agate Pass Ferry Ass’n
30 P.2d 233 (Wash. 1934) .......................................... 12
Lutz v. City of York, Pa.
899 F.2d 255 (3d Cir. 1990) ....................................... 15
McDonald v. City of Chicago, Ill.
130 S. Ct. 3020 (2010) ....................................... 7, 13, 16
v
Merrifield v. Lockyer
547 F.3d 978 (9th Cir. 2008) ..................................... 15
Mills v. Cnty. of St. Clair
49 U.S. (8 How.) 569 (1850) ................................. 11, 18
New State Ice Co. v. Liebmann
285 U.S. 262 (1932) ..................................................... 11
Patterson v. Wollmann
67 N.W. 1040 (N.D. 1896) .......................................... 12
Pollack v. Duff
958 F. Supp. 2d 280 (D.D.C. 2013) .......................... 15
Port Richmond & Bergen Point Ferry Co. v.
Bd. of Chosen Freeholders
234 U.S. 317 (1914) ..................................................... 10
R.R. Comm'n of Texas v. Pullman Co.
312 U.S. 496 (1941) ................................................... 4, 6
Romer v. Evans
517 U.S. 620 (1996) ..................................................... 14
Saenz v. Roe
526 U.S. 489 (1999) ...................................... 7, 12, 15-16
Slaughter–House Cases
83 U.S. 36 (1873).......................................... 5-7, 9-10, 14
Starin v. Mayor of New York
115 U.S. 248 (1885) ..................................................... 10
vi
State Highway Bd. v. Willcox
149 S.E. 182 (Ga. 1929) .............................................. 11
Tri-State Ferry Co. v. Birney
31 S.W.2d 932 (Ky. 1930) ........................................... 12
Vallejo Ferry Co. v. Solano Aquatic Club
131 P. 864 (Cal. 1913) ................................................. 11
Washington State Grange v. Washington
State Republican Party
552 U.S. 442 (2008) ................................................ 18-19
Williamson v. Lee Optical of Oklahoma, Inc.
348 U.S. 483 (1955) ..................................................... 13
Statutes
16 U.S.C. § 90c-1(e) ........................................................... 2
28 U.S.C. § 2201 ................................................................. 4
42 U.S.C. § 1983 ................................................................. 4
Wash. Rev. Code § 81.84.010(1) ..................................... 2
Wash. Rev. Code § 81.84.020(1) ..................................... 2
Wash. Rev. Code § 81.84.020(2) ..................................... 2
Rules
Rule 10 ................................................................................. 1
Fed. R. Civ. P. 12(b)(6) ..................................................... 4
vii
Other Authorities
James W. Ely, Jr.,
“To Pursue any lawful Trade or Avocation”:
The Evolution of Unenumerated Economic
Rights in the Nineteenth Century,
8 U. Pa. J. Const. L. 917 (Sept. 2006) ..................... 17
Jeffrey D. Jackson,
Be Careful What You Wish For: Why
Mcdonald v. City of Chicago’s Rejection of
the Privileges or Immunities Clause May
Not Be Such A Bad Thing for Rights,
115 Penn St. L. Rev. 561, 578 (Winter 2011) ........ 17
Josh Blackman & Ilya Shapiro,
Keeping Pandora’s Box Sealed: Privileges or
Immunities, The Constitution In 2020, and
Properly Extending the Right to Keep and
Bear Arms to the States,
8 Geo. J.L. & Pub. Pol’y 1 (Winter 2010)................ 17
Randy E. Barnett,
Does the Constitution Protect Economic
Liberty,
35 Harv. J.L. & Pub. Pol’y 5 (Winter 2012) ........... 17
WUTC, Appropriateness of Rate and Service
Regulation of Commercial Ferries Operating
on Lake Chelan (Jan. 11, 2010),
available at http://www.wutc.wa.gov/
rms2.nsf/177d98baa5918c7388256a550064a6
1e/aa3eabfb83b1571d8825792e0065383a!Ope
nDocument ...................................................................... 4
1
INTRODUCTION
“A petition for a writ of certiorari will be
granted only for compelling reasons.” Rule 10. None
is present here.
Petitioners seek to operate a ferry service on a
lake in central Washington. Washington regulates
ferry services, a state prerogative recognized for
centuries. Petitioners cite no case, ever, that has
held such state regulation violates the Fourteenth
Amendment. On the contrary, this Court has long
recognized that states possess this authority.
Petitioners also fail to explain what pressing
issue of national importance is presented by the
court of appeals’ narrow, well-reasoned opinion.
Petitioners claim “judicial paralysis” as to the
Privileges or Immunities Clause. Pet. 2. The reality,
however, is consistent, emphatic judicial rejection of
petitioners’ arguments.
Moreover, even if the Court wishes to revisit
the scope of privileges or immunities, this case is a
terrible vehicle to do so. Petitioners seek review of
their facial challenge to Washington’s regulations, so
those regulations must be upheld if susceptible to
any constitutional application. Under that standard,
the regulations plainly survive, offering no room for
the Court to clarify or revisit anything about the
Fourteenth Amendment.
The Court should therefore deny certiorari.
STATEMENT OF THE CASE
1. Respondents are the executive director
and members of the Washington Utilities and
Transportation Commission (WUTC). Under long-
2
established state law, a “commercial ferry may not
operate any vessel or ferry for the public use for hire
between fixed termini or over a regular route upon
the waters within [Washington] . . . without first
applying for and obtaining from the [WUTC] a
certificate declaring that public convenience and
necessity require such operation.” Wash. Rev. Code
§ 81.84.010(1). To obtain the required certificate, a
potential operator must show that its proposed
operation is required by “public convenience and
necessity” and that it “has the financial resources to
operate the proposed service for at least twelve
months.” Wash. Rev. Code § 81.84.020(1), (2). If the
location is already served by a commercial ferry, no
certificate may be granted unless the applicant
shows that the existing certificate holder: “[(a)] has
failed or refused to furnish reasonable and adequate
service[; (b)] has failed to provide the service
described in its certificate or tariffs after the time
allowed to initiate service has elapsed[;] or [(c)] has
not objected to the issuance of the certificate as
prayed for.” Wash. Rev. Code § 81.84.020(1).
2. Petitioners live in a small community
named Stehekin on the northwest end of Lake
Chelan in central Washington. Petitioners operate
businesses in Stehekin, which is a popular recreation
area. Stehekin is accessible only by boat, plane, or
foot. See 16 U.S.C. § 90c-1(e). In 1997, petitioner
James Courtney applied for a certificate to operate a
ferry. The WUTC denied the commercial ferry
certificate after finding that the existing operator
provided reasonable and adequate service, that the
proposed service would affect the existing operator,
and that petitioner did not satisfy the financial
3
responsibility requirement. Petitioner did not appeal
the findings that led to denial of a certificate in 1998,
and petitioners have never again applied for a ferry
certificate.
In 2006, petitioners began to explore whether
a “charter” or “shuttle” vessel service would be
exempt from the certificate requirement. In 2008, a
WUTC official told petitioners that, in the opinion of
WUTC staff, a boat for hire to serve petitioners’
businesses would require a certificate. The WUTC
official, however, also told petitioners that they could
seek a declaratory ruling on the requirement of a
certificate. Or, petitioners could proceed with
operations and potentially be subject to the WUTC
initiating a “classification proceeding” to determine if
a certificate is required for a “charter” or “shuttle”
boat transportation service.
Dissatisfied with these options, petitioners
made requests to state legislators and the governor,
after which the legislature directed the WUTC to
conduct a study on the regulation of commercial ferry
services on Lake Chelan. The WUTC issued the
report in January 2010 and concluded that Lake
Chelan Boat Company was providing satisfactory
service and recommended that there be no change to
the existing laws and regulations. The WUTC report
noted that there could be flexibility under the
existing law to permit some competition by
exempting certain services from the certificate
requirement, provided that any such service would
4
not “significantly threaten” the existing certificate
holder’s business.1
3. In October 2011, petitioners sued for
declaratory and injunctive relief pursuant to
42 U.S.C. § 1983 and 28 U.S.C. § 2201. They claimed
the ferry certificate law abridged a right to use
navigable waters of the United States that was
protected by the Privileges or Immunities Clause of
the Fourteenth Amendment. The district court
dismissed their complaint under Federal Rule of
Civil Procedure 12(b)(6). The court concluded that
even if a right to use navigable waters was a
Fourteenth Amendment right, there was no right “to
operate a commercial ferry service open to the
public[.]” App. 46. The court also ruled that
petitioners did not have a ripe claim to examine
“charter” or “shuttle” boat transportation services on
Lake Chelan for patrons of their businesses, as they
had never sought a formal ruling from the WUTC as
to whether such services would require a certificate.
For the same reason, the court also abstained from
addressing this second claim pursuant to Railroad
Commission of Texas v. Pullman Co., 312 U.S. 496
(1941).
4. A unanimous court of appeals affirmed,
but modified the ruling regarding Pullman Co.
abstention. The court of appeals agreed that even if
the Privileges or Immunities Clause encompasses a
1 WUTC, Appropriateness of Rate and Service
Regulation of Commercial Ferries Operating on Lake Chelan
(Jan. 11, 2010), available at http://www.wutc.wa.gov/
rms2.nsf/177d98baa5918c7388256a550064a61e/aa3eabfb83b15
71d8825792e0065383a!OpenDocument.
5
federal right “to use the navigable waters of the
United States,” any such right does not protect
petitioners’ use of Lake Chelan to operate a
commercial public ferry free from the certificate
requirement. App. 14-15.
The court of appeals examined the Slaughter–
House Cases, 83 U.S. 36 (1873), at some length. The
court of appeals recognized that Slaughter-House did
not attempt to define the privileges or immunities of
citizens of the United States. Rather, the Slaughter-
House majority suggested only that such privileges
might include a “right to use the navigable waters of
the United States, however they may penetrate the
territory of the several States[.]” Id. at 79 (emphasis
added).
The court of appeals explained why this dicta
in Slaughter-House did not aid petitioners’ claim.
Petitioners’ claim was about far more than
navigation on waters of the United States. “While
navigation of Lake Chelan is a necessary component
. . . it is neither sufficient to achieve their purpose
nor the cause of their dissatisfaction.” App. 17. The
“actual” privilege that petitioners sought was to
operate a commercial ferry for passengers without
application of Washington’s ferry certificate
requirements. The court of appeals concluded that it
was “exceedingly unlikely” that the reference to
navigation in Slaughter–House indicated that states,
in the Fourteenth Amendment, lost their historic
authority to regulate public ferries. App. 17. The
court noted that even the dissenting justices in
Slaughter-House affirmed state power to grant an
“exclusive” privilege to private parties to operate a
public ferry. App. 18 (citing Slaughter-House, 83
6
U.S. at 88 (Field, J., dissenting)); see also Slaughter-
House, 83 U.S. at 120-21 (Bradley, J., dissenting).
Next, the court of appeals rejected petitioners’
view of the scope of the Privileges or Immunities
Clause described in Slaughter-House. Slaughter-
House clearly held that the Privileges or Immunities
Clause protects only those rights that are of a federal
character. Operating a ferry is not inherently
federal in character. Rather, the states retained a
“vital interest” in regulating passenger ferries well-
established in case law. And, nothing in federal law
contemplated any need to preempt state ferry
regulations.
Last, the court of appeals modified the
abstention ruling for the alternative claim of a right
to offer boat services to patrons of specific
businesses. Petitioners had standing to make that
claim, but the claim would be rendered moot if the
WUTC or Washington Supreme Court concluded that
no certificate is required for the proposed “charter” or
“shuttle” boat service. Therefore, the federal courts
could not address that claim under the abstention
doctrine in Pullman Co. The court of appeals
instructed the district court to retain jurisdiction if
petitioners were going to pursue their claim that the
certificate requirement does not apply to a “charter”
or “shuttle” boat service.
REASONS WHY THE COURT SHOULD
DENY THE PETITION
Petitioners ask this Court to examine whether
the Fourteenth Amendment creates a never-before-
recognized right to ignore state licensing
requirements for intrastate commercial ferry
7
services. The question presented falls short of the
Court’s standards for granting certiorari.
First, the courts are not in conflict over the
question. No court has ever recognized the unusual
privilege alleged by petitioners. Indeed, this Court
and others have uniformly recognized state authority
to regulate ferries throughout American history.
Second, the opinion of the court of appeals
creates no tension with this Court’s statements on
the Privileges or Immunities Clause. Nothing in
Saenz (infra p. 12), McDonald (infra p. 13), or
Slaughter-House supports petitioners’ claim that the
Fourteenth Amendment contains a privilege to
operate commercial ferries without state regulation.
Third, petitioners’ theory that certiorari is
needed to unlock paralysis in lower courts with
regard to privileges or immunities is meritless.
Petitioners’ selective review of cases does not show a
paralyzed judiciary unable to resolve arguments
about constitutional rights. The reality,
unfortunately for petitioners, is an unbroken line of
cases—including from this Court—rejecting
arguments like theirs that seek to render state
regulation of economic activity unconstitutional.
Decisive rejection is not paralysis.
Finally, this case is a poor vehicle to explore
privileges or immunities. Petitioners seek review of
their facial challenge to state regulation of
commercial ferries. On such a challenge,
Washington’s law would have to be upheld if
susceptible to any constitutional application, a
standard obviously satisfied here. Thus, even if the
Court wishes to revisit the scope of privileges or
8
immunities, this case is inappropriate to consider
that issue.
A. There Is No Conflict Regarding Whether
There Is A Federally Secured Privilege
To Avoid State Ferry Regulation
1. In analyzing potential conflict, it is
important to be clear about the true nature of the
privilege petitioners claim. Petitioners say they are
asserting a “right to use the navigable waters of the
United States.” Amici describe it as a “right to use
federal navigable waterways.” Neither is accurate.
As the court of appeals explained, the actual
privilege at stake is “a ferry operation privilege, not
a broad navigation privilege.” App. 17. Petitioners
are free to “travers[e] Lake Chelan in a private boat
for private purposes.” App. 21. “At the end of the
day, the state legislation the Courtneys challenge is
narrow in scope, merely restricting the operation of
commercial public ferries to those who obtain a [pub-
lic convenience and necessity] certificate.” App. 21.
Petitioners and amici also mischaracterize the
court of appeals dicta regarding economic issues.
The court did not issue a ruling that eliminates
economic interests from the protection of the
Privileges or Immunities Clause, as petitioners and
amici argue. The phrase “economic concerns”
appears in the court’s opinion only once, as part of an
explanation of the nature of petitioners’ claim and
the absence of case law supporting it. App. 18-19.
What the court of appeals actually held was “that the
Privileges or Immunities Clause of the Fourteenth
Amendment does not protect a right to operate a
public ferry on Lake Chelan[.]” App. 22.
9
2. No court has ever held or even hinted
that operating a public ferry on a lake in the middle
of a state is a right of national citizenship. That is
because this Court and others have always
understood intrastate ferries to be the prerogative of
state and local authorities, as the court of appeals
recognized. App. 19-20. The majority and both of
the dissents in Slaughter-House confirm that
understanding. The Slaughter-House majority
recognized that laws “which respect turnpike roads,
ferries, etc., are component parts” of the state police
power. Slaughter-House, 83 U.S. at 63 (quoting
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824)).
Dissenting Justice Field agreed:
“It is the duty of the government to provide
suitable roads, bridges, and ferries for the
convenience of the public; and if it chooses to
devolve this duty to any extent, or in any
locality, upon particular individuals or
corporations, it may of course stipulate for
such exclusive privileges connected with the
franchise as it may deem proper, without
encroaching upon the freedom or the just
rights of others.” Id. at 88 (Field, J.,
dissenting); App. 18.
Dissenting Justice Bradley also agreed:
“It has been suggested that [the 1624
Statute of Monopolies] was a mere legislative
Act, and that the British Parliament, as well
as our own Legislatures, have frequently
disregarded it by granting exclusive privileges
for erecting ferries, railroads, markets and
other establishments of a public kind. It
10
requires but a slight acquaintance with legal
history to know that grants of this kind of
franchises are totally different from the
monopolies of commodities or of ordinary
callings or pursuits. These public franchises
can only be exercised under authority from the
government, and the government may grant
them on such conditions as it sees fit.”
Slaughter-House, 83 U.S. at 120-21 (Bradley,
J., dissenting).
Rejection of the privilege claimed by petitioners,
therefore, presents no conflict with Slaughter-House.
Other decisions of this Court, both before and
after Slaughter-House, confirm that ferries on
internal waters are the prerogative of state and local
governments. Port Richmond & Bergen Point Ferry
Co. v. Bd. of Chosen Freeholders, 234 U.S. 317, 321
(1914) (tracing to English common law states’
practice of granting franchises for “ferries wholly
intrastate”); Starin v. Mayor of New York, 115 U.S.
248 (1885) (whether city had exclusive right to
establish ferries over public waters entirely within
one state was a matter of state, not federal, law);
Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196,
215 (1885) (“The power of the States to regulate
matters of internal police includes the establishment
of ferries[.]”); Butchers’ Union Slaughter-House &
Live-Stock Landing Co. v. Crescent City Live-Stock
Landing & Slaughter-House Co., 111 U.S. 746, 763
(1884) (Bradley, J., concurring) (“[A]n exclusive right
to use franchises, which could not be exercised
without legislative grant, may be given; such as that
of constructing and operating public works,
railroads, ferries, etc.”); Conway v. Taylor’s Ex’r, 66
11
U.S. (1 Black) 603, 635 (1861) (since “before the
Constitution had its birth, the States have exercised
the power to establish and regulate ferries”); Mills v.
Cnty. of St. Clair, 49 U.S. (8 How.) 569, 581 (1850)
(“The parties respectively assume, and so the court
below held, that the establishment and regulation of
ferries across navigable streams is a subject within
the control of the government, and not matter of
private right; and that the government may exercise
its powers by contracting with individuals. We deem
this general principle not open to controversy[.]”); see
New State Ice Co. v. Liebmann, 285 U.S. 262, 303
(1932) (Brandeis, J., dissenting) (“Every citizen has
the right to navigate a river or lake, and may even
carry others thereon for hire. But the ferry privilege
may be made exclusive in order that the patronage
may be sufficient to justify maintaining the ferry
service[.]”). Petitioners’ claim challenges this
unbroken line of authority from this Court.
4. There is no uncertainty or conflict
among lower courts with regard to a privilege to
avoid state regulation of commercial ferries.
Decades of state and federal court decisions confirm
that establishing and regulating ferries is the
prerogative of state and local governments. E.g.,
Canadian Pac. Ry. Co. v. United States, 73 F.2d 831,
833 (9th Cir. 1934) (explaining that, in the United
States, ferries are established by the legislative
authority of states); Vallejo Ferry Co. v. Solano
Aquatic Club, 131 P. 864 (Cal. 1913) (affirming
injunction against operation of competing ferry);
State Highway Bd. v. Willcox, 149 S.E. 182, 185 (Ga.
1929) (“The right to establish and maintain a public
ferry is a franchise, which, in this State, can only be
12
granted by the proper county authorities.” (Internal
quotation marks omitted.)); Tri-State Ferry Co. v.
Birney, 31 S.W.2d 932 (Ky. 1930) (affirming
injunction against operation of competing ferry);
Patterson v. Wollmann, 67 N.W. 1040, 1044 (N.D.
1896) (citing Justice Field’s Slaughter-House dissent
in holding that citizens have no natural right to
maintain a public ferry); Kitsap Cnty. Transp. Co. v.
Manitou Beach-Agate Pass Ferry Ass’n, 30 P.2d 233,
234 (Wash. 1934) (state commercial ferry law “is but
an exercise of the power of the state, recognized and
exercised from time immemorial, to control travel
over and on its navigable streams and waters”). The
petitioners do not and cannot identify a single
judicial holding that supports the extraordinary
privilege they claim to avoid state ferry regulation.
5. Saenz v. Roe, 526 U.S. 489 (1999),
presents no conflict or tension with the court of
appeals’ ruling that the Fourteenth Amendment does
not protect a commercial ferry operation from
application of state law. The Saenz Court reaffirmed
that the Privileges or Immunities Clause ensures
each citizen a right to become a citizen of any state of
the Union. Id. at 502-03 (finding that the Clause
protects “the right of the newly arrived citizen to the
same privileges and immunities enjoyed by other
citizens of the same State”). Saenz found that this
right “has always been common ground” in disputes
over the scope of the clause, id. at 503, and that it
could not be limited by a state’s discriminatory
classification of newly arrived citizens to deny public
benefits, id. at 505.
13
Petitioners claim no real conflict with Saenz,
but cite a law review article criticizing the decision
for failing to fully “define privileges or immunities”
and instead simply holding “that the right to travel
is encompassed by that definition.” Pet. 22. But
refusing to go beyond the question presented is not
typically viewed as a judicial failure. And even if the
Court had provided a full description of every
privilege and immunity, it plainly would not have
included the right petitioners seek: to operate a
commercial ferry on intrastate waters without state
regulation.
6. The court of appeals decision also
presents no tension with McDonald v. City of
Chicago, Ill., 130 S. Ct. 3020 (2010). There, the
petitioners asked the Court to hold that Second
Amendment rights were among the “privileges or
immunities of citizens of the United States.” Id. at
3028. The Court declined the invitation to approach
incorporation of Bill of Rights guarantees in this way
and relied on established case law allowing
incorporation under the Due Process Clause of the
Fourteenth Amendment. Id. at 3031. The Court’s
decision relied on the conclusion that an individual
right to bear arms was deeply rooted in this Nation’s
history and tradition. Id. at 3036. That holding
presents no conflict with this case, because there is
no deeply rooted history or tradition of operating
commercial ferries free of state licenses. See supra
at *__ (citing decisions of this Court recognizing state
authority over intrastate ferries); see also, e.g.,
Williamson v. Lee Optical of Oklahoma, Inc., 348
U.S. 483, 488 (1955) (“The day is gone when this
14
Court uses the Due Process Clause of the Fourteenth
Amendment to strike down state laws, regulatory of
business and industrial conditions, because they may
be unwise, improvident, or out of harmony with a
particular school of thought.”).
7. In short, petitioners can show no
conflict and inaccurately describe the issues they ask
the Court to address. Their claim would require the
Court to completely rewrite Slaughter-House, to
reexamine a century of case law concerning state
regulation of commercial ferries, and to find a
preemptive federal right to operate commercial
ferries.
B. There Is No “Widespread Uncertainty” Or
“Judicial Paralysis” That Requires
Review Of Petitioners’ Claim
Petitioners and their amici implicitly concede
that there is no conflict in the courts as to the
question presented. But they claim that the absence
of conflict should be interpreted as “widespread
uncertainty” or “judicial paralysis.” Pet. 14. The
petition’s selective quotations do not demonstrate
any type of judicial paralysis or uncertainty that
would be cured by review of this case.
For example, petitioners cite the dissent in
Evans v. Romer, 882 P.2d 1335 (Colo. 1994). Pet. 28.
But discrimination against petitioning the
government was addressed by this Court in Romer v.
Evans, 517 U.S. 620 (1996), and the issue raised by
that dissent cannot be addressed in this case about
15
ferry certificates. Petitioners cite a district court
decision in Pollack v. Duff, 958 F. Supp. 2d 280, 288
(D.D.C. 2013), where the court distinguished Saenz
because government did not impose a penalty for
relocating in a new state. That opinion expressed no
difficulty in applying Saenz. Nor is there evidence of
judicial confusion in Merrifield v. Lockyer, 547 F.3d
978, 983 (9th Cir. 2008), where the court rejected a
claim that a right to pursue one’s occupation
preempts state regulation. Chavez v. Arte Publico
Press, 204 F.3d 601, 608 (5th Cir. 2000), also does not
support petitioners’ point. The opinion merely
criticizes a litigant for making an untimely argument
about whether a federal law was an exercise of power
to enforce the Privileges or Immunities Clause.
Finally, a twenty-five-year-old case about a right to
travel is immaterial here; it was written long before
Saenz addressed that subject. Lutz v. City of York,
Pa., 899 F.2d 255, 264 (3d Cir. 1990).
If the type of uncertainty cited by petitioners
and their amici justifies certiorari, it would support
certiorari for any legal theory consistently rejected
by lower courts because of the absence of authority.
C. This Case Is Not A Good Vehicle To Give
Meaningful Guidance On The Privileges
Or Immunities Clause
1. Petitioners claim this case would be a
good vehicle to “provid[e] ‘guidance for . . .
interpretation’ ” of Fourteenth Amendment Privileges
or Immunities. Pet. 34 (second alteration in
16
original). Petitioners are mistaken. Their facial
challenge would inevitably fail without the need for
detailed exploration of the scope of the clause, and
their constitutional theories cannot be addressed
without confronting the same problems that arose
when the Privileges or Immunities Clause was raised
in McDonald.
First, as petitioners admit (Pet. 36), stare
decisis weighed heavily against announcing a new
constitutional theory in McDonald. But stare decisis
is equally weighty here because of the numerous
cases upholding this and similar exercises of state
authority, and because of public reliance on this
state power. Second, petitioners recognize there was
no legal or scholarly consensus to support the step
the Court rejected in McDonald. Pet. 37. That is no
different here. There is no legal or scholarly
consensus or even debate on a privilege to operate a
commercial ferry as claimed by petitioners.
Third, petitioners protest that their case is not
a Pandora’s Box, suggesting it is akin to the right to
travel analyzed in Saenz. Pet. 38. But the right to
travel and establish residency was well-established;
as the Saenz Court said, “it has always been common
ground.” Saenz, 526 U.S. at 503. No such right is at
issue here. To the contrary, an individual right to
avoid state ferry certificate laws would open a
Pandora’s Box regarding state powers to regulate.
Moreover, that Pandora’s Box is the avowed intent of
numerous articles cited by petitioners and authored
17
by their amici. E.g., Randy E. Barnett, Does the
Constitution Protect Economic Liberty, 35 Harv. J.L.
& Pub. Pol’y 5 (Winter 2012); Josh Blackman & Ilya
Shapiro, Keeping Pandora’s Box Sealed: Privileges or
Immunities, The Constitution In 2020, and Properly
Extending the Right to Keep and Bear Arms to the
States, 8 Geo. J.L. & Pub. Pol’y 1 (Winter 2010);
James W. Ely, Jr., “To Pursue any Lawful Trade or
Avocation”: The Evolution of Unenumerated
Economic Rights in the Nineteenth Century, 8 U. Pa.
J. Const. L. 917 (Sept. 2006); see also Jeffrey D.
Jackson, Be Careful What You Wish For: Why
McDonald v. City of Chicago’s Rejection of the
Privileges or Immunities Clause May Not Be Such A
Bad Thing for Rights, 115 Penn St. L. Rev. 561, 578
(Winter 2011) (“[T]he real driving force in the
argument over privileges or immunities and due
process has to do with unenumerated rights, their
protection, and possible expansion.”).
2. This case is also a poor vehicle because
petitioners pursue a facial challenge to the certificate
requirement. Petitioners did not apply for a
certificate during the decade preceding this lawsuit.
Petitioners, therefore, claimed there was no possible
application of the certificate law that would not
violate the alleged constitutional privilege. See
Compl. ¶¶ 113, 119. The Court’s review would be
curtailed by the facial nature of the challenge.
The Court disfavors facial challenges that
“rest on speculation” and require “premature
18
interpretation of statutes on the basis of factually
barebones records.” Washington State Grange v.
Washington State Republican Party, 552 U.S. 442,
450 (2008) (internal quotation marks omitted).
These twin concerns exist in this case. The
certificate law has not been applied. Therefore, this
Court would be called on to interpret and speculate
about how state law would be applied to fact-bound
issues like whether there is reasonable and adequate
current ferry service. As a facial challenge, the
Court would need to reject the petitioners’ rhetoric
that assumes the state is inappropriately granting a
monopoly. Instead, petitioners would need to show
that “no set of circumstances exists under which the
[certificate requirement] would be valid.” Id. at 449.
Petitioners cannot possibly make such a showing
given that states have issued ferry certificates since
“before the Constitution had its birth,” Conway,
66 U.S. (1 Black) at 635, and “this general principle
[is] not open to controversy,” Mills, 49 U.S. (8 How.)
at 581.
Moreover, a facial challenge is contrary to the
“principle of judicial restraint that courts should
neither anticipate a question of constitutional law in
advance of the necessity of deciding it nor formulate
a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.”
Washington State Grange, 552 U.S. at 450 (internal
quotation marks omitted). This concern applies
here, because the petition asks the Court to evaluate
19
rules for preemption of ferry certificate laws in the
abstract.
Finally, a facial challenge “prevent[s] laws
embodying the will of the people from being
implemented in a manner consistent with the
Constitution.” Washington State Grange, 552 U.S. at
451. If there is a need to address ferry certificate
laws, the laws should be examined after application
to a particular set of facts by an expert state agency.
CONCLUSION
The petition should be denied.
RESPECTFULLY SUBMITTED.
ROBERT W. FERGUSON
Attorney General
NOAH G. PURCELL
Solicitor General
JAY D. GECK
Deputy Solicitor General
FRONDA C. WOODS
Assistant Attorney General
Counsel of Record
1125 Washington Street SE
Olympia, WA 98504-0100
April 25, 2014 360-586-2644