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You Do Not Have A Constitutional Right to Hire a Prostitute (Duh)

The Ninth Circuit recently ruled that there is no constitutional right for a private citizen to have sexual relations with prostitute.  Erotic Serv. Provider Legal Educ. & Research Proj. v. Gascon, 880 F.3d 450 (9th Cir. 2018).   

I hope you were sitting down for that bombshell.

Erotic Service Providers Legal Education and Research Project (“ESP”) consists of “three former ‘erotic service providers’ who wish to perform sex for hire, and a potential client who” wants to hire them.  880 F.3d at 454.  ESP claimed that California Penal Code § 647(b), which criminalizes prostitution, violates (1) the Fourteenth Amendment substantive due process right to sexual privacy, (2) freedom of association under the First or Fourteenth Amendment, (3) the Fourteenth Amendment substantive due process right to earn a living, and (4) the First Amendment freedom of speech.   Almost all of ESP’s claims were based upon the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003).  The Ninth Circuit completely disagreed with ESP and its interpretation of Lawrence.

Here’s what you need to know:

Once Upon a Time, People Kept Suing and Losing For the Right to Hire Prostitutes

It should come as no surprise that the question of whether we have a constitutional right to hire prostitutes has been heavily litigated in our nation’s history.  Prostitution is, after all, colloquially referred to as the world’s oldest profession.

In 1988, the Ninth Circuit addressed and rejected the argument that the freedoms of association guaranteed by the First and Fourteenth Amendments protected anyone’s right to hire an escort.  IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988).  IDK, Inc. was an escort service based out of Las Vegas that argued Clark County’s regulations governing the licensing and operations of escort companies violated it and its clients’ First and Fourteenth Amendment rights to association.  Id. at 1187.

The Fourteenth Amendment of the United States Constitution protects the right to form “intimate associations.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).  The traditionally protected forms of “intimate associations” have been defined as “highly personal relationships,” and “those that attend the creation and sustenance of a family.”  Id. at 618-19.

In IDK, the Ninth Circuit rejected the argument that the relationship between an escort and a client was the type of “highly personal relationship” traditionally protected by the Fourteenth Amendment.  836 F.2d at 1193.  It reasoned:

The relationship between escort and client possesses few, if any, of the aspects of intimate association.  It lasts for a short period and only as long as the client willing to pay the fee.  Although a client may have some choice as to the person he or she wishes as a  companion, the escort must accompany whomever the employer selects.  Escorts and their clients do not claim to be involved in       procreation, raising and educating children, cohabitation with relatives, or the other activities of family life.  An escort may be involved with a large number of clients.  While we may assume that the relationship between them is cordial and that they share conversation, companionship, and the other activities of leisure, we do not believe that a day, an evening or even a weekend is sufficient time to develop deep attachments or commitments.


The Ninth Circuit also rejected the argument that the relationship between an escort and a client is protected by the First Amendment’s freedom of “expressive association.”  “Expressive association” generally protects activities like protests, assemblies, and any other gathering aimed at promoting religious, social or political speech.  Roberts, 468 U.S. at 622.

The Ninth Circuit found that there was no evidence that escort services include “expression [as] a significant or necessary component of their activities.”  Id. at 1195.  It reasoned that escort companies don’t advertise their employees’ skills in conversation or community service; therefore, it assumed “that clients select their companions on the basis of other criteria.” Id.  Plus, “[i]f a client does not care to engage in expressive activities while dating, we must assume that neither the escort services nor the escort compel the client to do so.  The escort services simply do not care what the couples talk about or whether they talk at all.”  Id. at 1196.  Accordingly, the Ninth Circuit rejected IDK’s argument that it had a constitutional right to offer escort services under the First and Fourteenth Amendment’s freedom of association.

Two years after IDK, the Movie “Pretty Woman” Was Released.

It didn’t change anything.

It just made Julia Roberts even more famous.

But Then Along Came Lawrence v. Texas

In 2003, the landscape of intimate association law changed when the United States Supreme Court issued its opinion in Lawrence v. Texas.  If you are unfamiliar with Lawrence, it is one of the landmark cases in gay rights.

Lawrence challenged the validity of Texas statute that criminalized certain types of sexual activity between members of the same sex.  539 U.S. at 563.  Speaking for the majority of the Court, Justice Kennedy struck down the Texas statute as unconstitutional under the freedom of association guaranteed by the Due Process Clause of the Fourteenth Amendment.  He reasoned that anti-homosexual statutes “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals,” and “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”  Id. at 567.  In reaching his holding, Justice Kennedy held:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a           homosexual lifestyle.  The petitioners are entitled to respect for their private lives.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Id. at 578.

12 years after Lawrence, Justice Kennedy again drew upon this reasoning and ruled that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”  Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015).

One thing that Lawrence did not address is the right to hire a prostitute.  To the contrary, Justice Kennedy specifically remarked that Lawrence did “not involve public conduct or prostitution.”  539 U.S. at 578.

Enter ESP and A Shocking Number of Other Lawsuits

Following Lawrence, people began suing all over the country for their right to “associate” with prostitutes by paying them to engage in private sexual activity.  And the courts, all over the country, declined to interpret Lawrence as protecting prostitution since Lawrence expressly stated that its holding did not involve claims related to prostitution.  See, e.g., State v. Thomas, 891 So. 2d 1233 (La. 2005);  United States v. Thompson, 458 F. Supp.2d 730 (N.D. Ind. 2006); State v. Romano, 155 P.3d 1102 (Haw. 2007); United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007); Lowe v. Swanson, 639 F. Supp. 2d 857 (N.D. Ohio 2009); Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012).

In 2015, ESP joined in the fun and filed its lawsuit claiming that California’s anti-prostitution law violated the Due Process Clause of the Fourteenth Amendment, the Freedom of Association guaranteed by the Fourteenth Amendment, the constitutional right to earn a living, and First Amendment freedom of speech.  880 F.3d 450.  The Ninth Circuit disagreed.

ESP relied heavily on Lawrence to assert its Fourteenth Amendment claims.  It argued that Lawrence should be interpreted as guaranteeing “consenting adults a fundamental liberty interest to engage in private sexual activity,” which would prohibit a state from outlawing commercial exchanges of such private sexual activity. Id. at 455-56.  It also argued that Lawrence overruled IDK.  Id. at 456.

The Ninth Circuit rejected ESP’s argument that consenting adults have a fundamental liberty interest to have sex with a prostitute.  The evidence made it clear that California has a strong, legitimate reason for criminalizing prostitution because: (1) prostitution is linked to sex trafficking; (2) “prostitution creates a climate conducive to violence against women;” (3) there is “a substantial link between prostitution and illegal drug use;” and (4) “prostitution is linked to the transmission of AIDS and other sexual transmitted diseases.”  Id. at 458.

The Ninth Circuit also rejected ESP’s argument that the freedom of intimate association guaranteed by the Due Process Clause extends to commercial relationships with prostitutes.  Finding that Lawrence did not overrule IDK, the Ninth Circuit applied IDK to reject this claim.  Id. at 458-59.

Next, the Ninth Circuit rejected ESP’s argument that California’s anti-prostitution laws violate the Fourteenth Amendment’s right to earn a living.  Because Lawrence specifically stated it did not encompass prostitution, ESP failed to provide any law which supported a protected employment right in prostitution.  Since California’s laws applied to equally anyone and everyone, the law withstood constitutional scrutiny.  Id. at 459.

Finally, the Ninth Circuit rejected ESP’s claim that the solicitation of commercial sex is protected commercial speech under the First Amendment.  The First Amendment has never protected “commercially motivated speech that involved unlawful activity.”  Id. at 460.

Why ESP Matters to the 98% of the Population That Doesn’t Solicit Prostitutes

The evolution of our constitutional right of intimate association is a fascinating one in our nation’s history.  It is the basis upon which women have been guaranteed the right to use birth control and to obtain abortions.  Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).  As you read above, it is the basis upon which same sex relationships and marriage have been protected.  And, as ESP demonstrates, it is probably going to continue being the basis on which people advocate for legalization of commercial sex.  Whether that will happen, I do not know.  But, as Justice Kennedy observed: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Lawrence, 539 U.S. at 579.

City of Berkeley: “Your Cell Phone Might Kill You.”

The City of Berkeley wants us all to know that our cell phones might kill us.  It is very concerned about it.  In fact, it is so concerned that it enacted an ordinance requiring cell phone retailers to provide customers with a notice informing them of the health risks posed by cell phone use.

CTIA, a cell phone trade association, sued Berkeley and argued the required disclosure violates cell phone retailer’s First Amendment rights.   The Ninth Circuit disagreed, and, for the first time, decided that the government can require a private company to make specific statements to consumers if the required statements are related to a substantial government interest and are purely factual.

Will your cell phone kill you?  Can the government really tell you what you have to say?  Here’s what you need to know.

Apparently, Cell Phones are Radioactive

Apparently, cell phone use exposes us all to radio-frequency radiation (“RF”). In 1996, the FCC issued regulations limiting the amounts of RF that a cell phone can expose a consumer to.   61 Fed. Reg. 41006.  These regulations imposed limits based upon recommendations from the Environmental Protection Agency, the FDA, and various other federal agencies.

RF sounds scary as AF, but there has been no study conclusively proving that our exposure to RF from cellular devices is harmful.  Despite this fact, the FCC still adopted the above regulation in 1996, and refused to modify it to exclude cell phones in 2013.   The FCC’s approach has been “better safe than sorry” when it comes to cell phones and RF exposure.

Berkeley Thinks RF is Scary AF

In May 2015, Berkeley enacted an ordinance which requires cell phone retailers to issue a notice to all cell phone consumers that includes this language:

To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.  Refer to the instructions in your phone or user manual for information on how to use your phone safely.

Berkeley Mun. Code. 9.96.030(A) (2015).

CTIA was not happy and sued Berkeley for violating the First Amendment rights of cell phone retailers.   CTIA v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017).  You probably know about freedom of speech under the First Amendment.  What you may not know is that commercial speech is treated differently than personal speech.

Commercial Speech is Treated Differently Than Personal Speech Under the First Amendment

Although the First Amendment guarantees us all the right to free speech, that right has limits.  One area in which speech is frequently regulated (i.e., not truly “free”) is “commercial speech.”  Commercial speech is speech that is solely related to “economic interests.”   Central Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Commercial speech can be regulated in two ways.  One, the government can try to tell retailers what they cannot say.  When that happens, the government does not violate the First Amendment if the restriction is (1) related to a substantial government interest, (2) directly promotes that interest, and (3) is only as restrictive as necessary.  Central Hudson, 447 U.S. at 566.

Alternatively, the government can try to tell retailers what they have to say. When the government tries to tell a retailer what they have to say, the government might not violate the First Amendment if (1) the compelled speech is related to a substantial government interest, and (2) requires disclosure of purely factual information.   Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 650-51, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985).

There is a Bit of a Debate About When the Government Can Tell You WHAT You HAVE to Say

Zauderer was a lawsuit in which the U.S. Supreme Court addressed the issue of what attorneys should be required to say to their clients where the attorney’s prior statements deceived clients.  471 U.S. at 650-51.  The Court held that the government could require attorneys to make disclaimers because the disclaimers were (1) related to a substantial government interest (i.e., protecting clients), and (2) were purely factual (i.e., this is what the lawyer is going to do, charge, etc.).  Id.

Since Zauderer, the federal courts have debated whether the test in Zauderer applies to all compelled commercial speech.  Some courts think that the Zauderer test only applies when the compelled commercial speech is intended to prevent deception, and not when a government entity is merely requiring a retailer to disclose facts.

In the Ninth Circuit, Zauderer Applies Even If the Speech is Not Intended to Prevent Deception. 

Faced with CTIA’s challenge to Berkeley’s ordinance, the Ninth Circuit decided that Zauderer applies even when the compelled speech is not intended to prevent consumer deception.  CTIA, 854 F.3d at 1117.  The Ninth Circuit believes that there are many other government interests that can be furthered by compelled commercial speech.  Id.    If the interest is substantial, and the compelled disclosure is purely factual, the government does not violate the First Amendment by compelling commercial speech.  Id.

Applying its version of the Zauderer test to Berkeley’s ordinance, the Ninth Circuit found that CTIA will have a very difficult time proving that the ordinance violates the First Amendment.  Id. at 1118-19.

First, protecting the health and safety of consumers is clearly a substantial government interest.  Although no study has conclusively proven that RF poses a true threat to our health, the FCC apparently believes that it is in the government’s best interest to adopt a better-safe-than-sorry approach.  Berkeley’s ordinance furthers that interest.

Second, the compelled disclosure is purely factual.  Every sentence of it is literally true.  And even if it weren’t, Berkeley specifically allows cell phone retailers to add their own language to the end of the disclosure if they are concerned that it is inflammatory or misleading.

Finally, CTIA was not able to point to any evidence of a Berkeley citizen believing that their cell phone was actually going to kill them because of the notice.

BUT WAIT, There’s More

By trying to tell us that our phones are probably, maybe, possibly going to kill us, Berkeley opened a Pandora’s box of First Amendment law.  The debate in the Ninth Circuit over when and how the government can compel commercial speech will not end with the CTIA lawsuit.

CTIA has now twice sought rehearing of the Ninth Circuit’s decision.  First, it filed a “petition for rehearing,” which is a request for an appellate court to reconsider its ruling because it overlooked facts or misapplied the law.  The Ninth Circuit denied CTIA’s request to reconsider its application of Zauderer. 

Then, CTIA filed a “petition for en banc reconsideration,” which is a request to have 11 Ninth Circuit judges reconsider the decision.  Did I confuse you?  Here’s a quick crash course in how the Ninth Circuit works.  There are 29 Ninth Circuit judges.  Most appeals are heard by 3 judges, who issue the decision.  “En banc” means that 11 judges hear the appeal.

The Ninth Circuit judges declined to grant the petition for en banc consideration.  Judge Wardlaw, who is not one of the judges that rendered the decision applying Zauderer, wanted to grant en banc consideration because she believes that (1) Zauderer should only apply to speech intended to prevent consumer deception, (2) interpreting Zauderer to protect compelled disclosures beyond that narrow category infringes on First Amendment rights, and (3) an en banc Ninth Circuit should consider the issue instead of a 3-judge panel.  CTIA v. City of Berkeley, 873 F.3d 774 (9th Cir. Oct. 11, 2017) (Wardlaw, J., dissenting).   Judge Wardlaw ended her dissent with the affirmation that she is “looking forward to our next compelled disclosure case.”  Id.

Does this mean that the Ninth Circuit’s approach with Zauderer will change?  Only if enough judges agree with Judge Wardlaw.  Otherwise, for now, Berkeley is free to warn us that our cell phones might kill us.

I, for one, appreciate the City of Berkeley’s concern.  I’m still going to ignore the warning and use my phone too much, though.  #priorities

Hovercraft Moose Hunting: Apparently, It’s Not Okay.

This is the saga of John Sturgeon, the empty-handed moose hunter from Alaska.  He wanted to use his hovercraft on the Nation River to reach “moose meadows.” The State of Alaska was totally cool with it, but the National Park Service rangers told John to literally pound sand and get his hovercraft off the river.   Can the rangers do that?  According to the Ninth Circuit, absolutely.

Sometimes You Own the River, Sometimes You Just Own the Riverbed

The Saga of John Sturgeon is a fight about who owns and can regulate the Nation River in Alaska.  In 1953, Congress passed the Submerged Lands Act, which gave title to the “lands” beneath “navigable waters” to the state in which the waterway was located.  43 U.S. 1301 et seq.  “Navigable waters” are waterways that can be used for interstate or foreign commerce, or national defense (i.e., rivers, big lakes, oceans, etc.).   The “lands” underneath the navigable waters are, obviously, the river and lakebeds. Alaska took title to the Nation River’s riverbed when it was admitted as a state.  Alaska v. United States, 201 F.3d 1154, 1160 (9th Cir. 2000).

Owning a riverbed is not the same as owning a river.  Although the Submerged Lands Act gave the riverbed to Alaska, the federal government kept its “navigational servitude” rights in the river water itself.  43 U.S.C. 1314(a).  “Navigational servitude” is a fancy way of saying that the federal government kept the right to regulate navigable waters for commerce, national defense, etc.

President Carter Made a Bunch of Alaskans Really Mad

The debate over ownership of the Nation River exists because of the Alaska National Interest Lands Conservation Act (“ANILCA”).  In the 1970’s, President Carter got mad at Congress for refusing to approve conservation areas in Alaska.  I do not know why Congress refused to approve the conservation areas.  It probably had something to do with money or taxes.  Anyway, since Congress would not approve conservation areas, President Carter issued a presidential proclamation (i.e., an executive order similar to the ones Trump has issued on travel, discussed here) that set aside 56 million acres of Alaska land as federal monuments.  One of Carter’s reasons for creating the federal monuments was to protect the natural habitats of wild Alaskan animals like, you guessed it, the moose.

One of the monuments he created was what is now known as the Yukon-Charley Preserve, in which the Nation River is located.  Carter’s proclamation specifically reserved the water necessary to protect the Yukon-Charley basin in its natural, undeveloped condition to benefit the moose and other wildlife on the basin.

He may have meant to help the moose, but what Carter actually did was make a bunch of Alaskans really mad.  His proclamation resulted in the Great Denali-McKinley Trespass protest.  Over 2,500 Alaskans showed up at national parks to shoot guns, light stuff on fire, set their dogs amok and break as many other National Park Service regulations as possible within 48 hours.

To ease tensions, Congress passed ANILCA which ended Carter’s proclamations but still set aside about 104 million acres of land in Alaska for preservation.  16 U.S.C. 3101, et seq. Congress allowed Alaskans to use the land set aside for activities which have been historically important to Alaska – i.e., activities like snowmobiling, hunting and fishing.  Everybody won.  Carter got his conservation areas, Alaskans got to keep doing what Alaskans do, and Congress did not have to worry about the PR nightmare created by angry Alaskans with guns showing up at national parks and lighting stuff on fire.

One of the areas of land set aside under ANILCA was the Yukon-Charley river basin. The Nation River is a tributary that feeds into the basin.

A Very Simple and Probably Incomplete Explanation of How ANILCA Works 

The Great Denali-McKinley Trespass sent a clear message to Congress:  Alaska was not like other states and could not be regulated the same.   Rather than draw strict boundary lines for what would be federal land under ANILCA, Congress created “conservation units.”  16 U.S.C.  3102(4). The conservation unit boundaries are not determined by land ownership, but by geographical areas containing complete ecosystems, habitats or waterways.  This resulted in privately owned land being placed into ANILCA’s conservation units.

Under ANILCA, National Park Service regulations only apply to “public lands” within the conservation units.  16 U.S.C. 3103(c). “Public lands” are defined as “land” the United States owns.  “Land” is defined to include waters and interests in waters.  16 U.S.C. 3102(1).  So, under ANILCA, National Park Service Regulations do not apply to privately owned land.

The Saga of John Sturgeon is, therefore, a fight about whether the Nation River is a public land subject to ANILCA.

Along Comes Katie John

The question of whether the Nation River is subject to ANILCA was first addressed by the Ninth Circuit in a series of three related appeals – the Katie John cases.

In Katie John I, (Alaska v. Babbitt), the Ninth Circuit held that the “navigational servitude” I talked about above did not render river water a public land under ANILCA because the United States did not own the water.  72 F.3d 698 (1995).  However, river water could still be a public land under ANILCA if the United States reserved an interest in the water on the land it pulled into the conservation units.  Applying the reserved water rights doctrine, the Ninth Circuit found that the United States did retain an interest in these waters.

Whenever the federal government preserves land that has water on it, the reserved water rights doctrine kicks in.  Under the doctrine, all water necessary to accomplish the purpose for which the land is being preserved is impliedly reserved for the federal government (except for the water which already belongs to a private party).  Thus, the Ninth Circuit held that the definition of public lands under ANILCA includes the navigable waters that the United States has an interest in under the reserved water rights doctrine.  Katie John II upheld this decision.  247 F.3d 1032 (9th Cir. 2001).

In Katie John III, the Ninth Circuit addressed the question of whether waterways located on private land in the conservation units are subject to ANILCA.  720 F.3d 1214 (9th Cir. 2013).    The Ninth Circuit held that they were.  Water does not tend to stay in one location, and the Ninth Circuit reasoned that the purposes underlying ANILCA could only be served if the phrase “public lands” was interpreted to include waters which flowed into private property adjacent to federal land.  Furthermore, under the reserved water rights doctrine, the United States’ interest in the water was not tied to any one physical location.  Although the riverbeds may have been granted to a private party, the United States still retained an interest in the waters themselves and could properly regulate them under ANILCA.

The Saga of John Sturgeon

The Saga of John Sturgeon is the latest debate over whether federal regulations apply to the Nation River under ANILCA.

John Sturgeon is a guy who really likes to hunt moose in the Yukon-Charley Preserve area of Alaska.  Since 1990, he had been using a hovercraft to get up the Nation River, a tributary to the Yukon River, to hunt moose in “Moose Meadows.”

One fateful day in 2007, John’s hovercraft ran aground on a sand bar.  Adding insult to injury, John was then approached by three National Park Service Rangers who informed him that he could not use a hovercraft on the Nation River.  Hovercrafts are banned on all waterways regulated by the National Park Service, nationwide.  36 C.F.R. 1.2(b).  I do not know how John got back down the Nation River, but I’m pretty sure it was not by hovercraft.

John sued the National Park Service and argued that the federal regulations prohibiting hovercrafts did not apply to the Nation River because the river was on land owned by Alaska.  Thus, the Nation River was not public land subject to ANILCA’s and the National Park Service’s regulations.  Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014).

The Ninth Circuit disagreed.  Without reaching the issue of whether the Nation River was a public land subject to ANILCA, the Ninth Circuit found that Nation River is a navigable waterway subject to federal law generally.  Because the National Park Service can regulate all navigable waterways in the United States, the Ninth Circuit held that the nationwide hovercraft ban applied to the Nation River regardless of who owned the riverbed.

Two years later, the United States Supreme Court overturned the Ninth Circuit decision.  Sturgeon v. Frost, 138 S. Ct. 1061, 194 L.Ed.2d 108 (2016).  The Supreme Court not-so-gently reminded the Ninth Circuit that “Alaska is different.”   The Alaskans who protested for the right to hunt, fish and snowmobile on federal preserve land are the reason why ANILCA exists.  When the land at issue falls in an ANILCA conservation unit, a determination of what federal regulations apply to the land must be decided under ANILCA and not under general federal law.  Because ANILCA regulations only apply to navigable waters that are also “public lands,” the Supreme Court sent the case back to the Ninth Circuit to determine whether the Nation River is a “public land” under ANILCA.

Unfortunately for John Sturgeon, the Ninth Circuit found that that Nation River is a public land under ANILCA.  Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017).  Relying on the Katie John cases, the Ninth Circuit found that the United States had reserved water rights in the Nation River.  Because ANILCA applies to both land and interests in land, and “land” includes “water,” the Ninth Circuit found that the Nation River was a “public land” subject to ANILCA.  Therefore, the hovercraft ban applies to the Nation River.

The Saga of John Sturgeon is not over yet.   On January 5, 2018, John filed a writ with the United States Supreme Court challenging the Ninth Circuit’s decision.  Only time and nine Supreme Court Justices will be able to answer the question of whether hovercraft moose hunting really is okay.





The Trump Travel Bans: So Many Appeals, In Such Little Time

One year ago, the country was embroiled in a debate over whether President Trump could legally issue the executive order that has been referred to in the media as the “Muslim Ban.” According to the Ninth and Fourth Circuit Courts of Appeals in Spring 2017, he couldn’t.   President Trump’s controversial executive orders have since kept the Justice Department busy defending a spate of litigation which seeks to prevent enforcement of these orders.

To fully understand the legal issues surrounding these executive orders, you need to know the following:

Trump is Not The First President To Bar Entry to Nationals Under the Immigration and Nationality Act

The Constitution gives Congress the exclusive power to regulate immigration.  Congress delegated some authority to the President in the Immigration and Nationality Act (the “INA”).   Under the INA, the president can issue an executive order that suspends the entry of aliens if the president finds that entry of these aliens would be detrimental to the U.S.’s interests.

President Trump is not the first to bar certain nationals from entering the U.S. under the INA.  Carter banned entry of all Iran nationals in response to the Iranian Hostage Crisis as a way to pressure Iran to return the American hostages.  Reagan banned entry of Cuban government officials, employees, and communist party members in an attempt to combat Cuba’s extremist communist regime.  Clinton, George W. Bush, and Obama banned entry to participants in terrorism, trafficking, and conflicts which threatened war in other countries.

However, the INA does not grant the president unfettered power.  It has limits.  One of those limits is the INA’s prohibition of exclusion of aliens based on nationality alone.  Another limit is the Establishment Clause of the U.S. Constitution, which prohibits the government from targeting particular religions.

The Travel Ban is Actually Four Separate Executive Orders, All of Which Have Been Legally Challenged

The executive order ruled upon by the Ninth and Fourth Circuits in Spring 2017 was President Trump’s second executive order on this topic, which he issued in March 2017 (“EO-2”).  EO-2 was largely identical to the first executive order issued in January 2017 (“EO-1”).  Although EO-1 was challenged and preliminary injunctions were granted prohibiting its enforcement, those lawsuits were mooted (i.e., nullified) by the issuance of EO-2 in March.  Trump has since issued two more executive orders (EO-3 and EO-4), which are discussed below.

In May 2017, the Fourth Circuit Court of Appeals upheld an injunction prohibiting nationwide enforcement of EO-2 on the ground that the order violates the Establishment Clause.  International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017).  Two weeks later, the Ninth Circuit Court of Appeals upheld an injunction also prohibiting enforcement of EO-2 nationwide because it found that the executive order violated the INA.  Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).

The Fourth Circuit: “The Travel Ban is a Muslim Ban”  

In International Refugee Assistance Project, the Fourth Circuit found that President Trump’s EO-2  ran afoul of the Establishment Clause because it was clearly intended to discriminate against members of the Muslim religion.  Constitutional challenges based on religious discrimination claims under immigration policies are generally granted more deference by the judiciary than other Establishment Clause challenges.  See Kleindienst v. Mandel, 408 U.S. 753 (1972).  When an immigration policy is involved, the government need only show a (1) facially legitimate and (2) bona fide reason for the exclusion.

President Trump banned entry of nationals from five countries on the basis of “national security concerns,” which the Fourth Circuit agreed was a facially legitimate basis.  However, the Fourth Circuit did not agree that these “national security concerns” were the actual bona fide reason for the exclusion.  Relying on President Trump’s many comments during his campaign about his desire to implement a “Muslim Ban,” the Fourth Circuit found that President Trump’s “national security concerns” were simply pretext for the religious purpose behind the order.  The Fourth Circuit’s finding was supported by President Trump’s failure to consult national security agencies before issuing the order, by reports from the Department of Homeland Security in which the department stated that there was no evidence that individuals become radicalized based on their nationality alone, and by statements of senior intelligence officials who confirmed that there were no known pending national security risks from individuals of these countries as of January 2017.

The Ninth Circuit:  “The Travel Ban Violates the INA” 

In Hawaii v. Trump, the Ninth Circuit declined to address the Establishment Clause challenges.  Instead, it found that President Trump’s executive order violated the INA because President Trump was unable to persuade the Court that he had found that entry of these nationals was detrimental to U.S. interests, as required by the INA.  The order’s stated purposes for excluding the nationals and suspending the refugee admissions programs were to enable the U.S. government to review its admission policies and procedures.  However, there was no evidence that these procedures are currently inadequate.  In fact, there is already a law in place prohibiting nationals from Syria and Iraq (and any other terrorism sponsoring-country) from entering the U.S. without a visa.  To get a visa, these individuals must undergo an individualized screening process.  As for refugees, it currently takes about two years for a refugee to complete their “resettlement” process (i.e., get the okay to stay) because they are reviewed by seven different agencies, including the Departments of Homeland Security, State, and Defense.  The Ninth Circuit also pointed to same reports and statements relied upon by the Fourth Circuit, in which the Department of Homeland Security and senior intelligence officials stated that there was no evidence that nationals from these countries, based solely on their nationality, posed any security risk to U.S. citizens.

The Ninth Circuit also did not buy President Trump’s explanation that allowing more than 50,000 refugees into the U.S. in 2017 would be detrimental to our interests.   Under the INA, the president has to determine how many refugees we are going to accept each fiscal year.  Obama already determined that 110,000 refugees should be accepted by the U.S. in 2017, and he made this determination after extensive consultation with various agency heads and Congress.  Trump did not offer any explanation as to why Obama’s 110,000 figure was incorrect, or why the 50,0001st refugee would place our nation at risk.

Finally, the Ninth Circuit found that President Trump’s executive order ran afoul of the INA’s prohibition on discrimination against the issuance of visas based on nationality.  In their briefing, the government argued that the executive order did not bar issuance of visas, just entry.  But, at argument, the government admitted that the way they planned to bar entry was by not issuing visas.  (Insert puzzled head scratch here).

The First Supreme Court Appeal

The United States Supreme Court granted certiorari on both of these decisions, and stayed enforcement of the Ninth and Fourth Circuit injunctions in June 2017.  Oral argument was initially set in October 2017.  However, during the pendency of the appeal, EO-2 expired by its own internal deadlines.  Accordingly, oral argument was vacated and the Supreme Court issued an order on October 24, 2017 summarily disposing of the appeals as moot.  Trump v. Hawaii, 138 S. Ct. 377 (October 24, 2017).

EO-3 Is Issued in September 2017, Spawning Another Round of Litigation and Appeals

In September 2017, while the appeals concerning EO-2 were pending before the Supreme Court, President Trump issued a “Presidential Proclamation” (EO-3) in which he replaced the portions of EO-2 relating to immigrants, but not refugees.  EO-3 was again challenged in Maryland (Fourth Circuit) and Hawaii (Ninth Circuit), and preliminary injunctions were issued in October 2017 which blocked implementation of portions of EO-3.  In Hawaii v. Trump (“Hawaii III”), the Ninth Circuit narrowed the scope of the injunction to give relief only to those immigrants with a “bona fide relationship” with the United States.  Hawaii III, 2017 WL 6547095, at *26. The Maryland ruling is currently still on appeal before the Fourth Circuit.  Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17, 2017).  In December, the United States Supreme Court stayed both of these appeals.

EO-4 Will Be the Next Appeal To Watch

In October 2017, on the same day that EO-2 expired, President Trump issued a fourth executive order (EO-4) in which he stated that the suspension on refugee admission was no longer necessary, but that certain categories of refugees would continue to require enhanced risk assessment.  On December 23, 2017, the federal district court for the western district of Washington issued a nationwide preliminary injunction enjoining implementation of EO-4 except for those refugees who lack a bona fide relationship with a person or entity in the United States.  See John Doe, et al. v. Trump, 2017 WL 6551491 (W.D. Wash. Dec. 23, 2017).

The executive orders may have changed, but the arguments remain the same:  Can President Trump issue these executive orders under either the INA or the Establishment Clause? This issue will most likely be addressed by the United States Supreme Court before the current term is over.

Congratulations, You Lost: a Basic Explanation of How the Appellate Process Works

There are three outcomes to litigation:  you win, you lose or you settle.  If you’ve settled, this is not the site for you.  If you’ve lost, congratulations on being a big, fat loser!  You get to appeal.  If you’ve won, please accept my condolences because the other side will most likely challenge that win on appeal.

Now that I have either ruined or made your day, let me give you a brief explanation of how the appellate system works.


When a case ends before the district court (the lower court), either party has the right to an appeal.  The appeal process is started by filing a notice of appeal to the next highest court.  Generally, court systems are structured like a staircase.  First, you must litigate in the lower court (step 1).  Then, you may appeal that decision to an intermediate appellate court (step 2).  After the intermediate appellate court decides your case, you can proceed to the highest, or the “supreme” court (step 3).  Seems pretty simple, right?  Unfortunately, the appellate process is a little more complicated than that.  Here’s a breakdown.


In Nevada, the appellate system looks more like an elevator and less like a traditional staircase.  Once you have lost in the district court, you file your appeal directly with the Nevada Supreme Court.  The Nevada Supreme Court is the highest court in the state.  The Nevada Supreme Court then decides whether your case will be sent back down to be heard by the Nevada Court of Appeals, the intermediate appellate court, or whether it will bypass the Court of Appeals and go straight to the Nevada Supreme Court.

If your case is assigned to the Nevada Court of Appeals, and you lose again, you can petition for review of that decision by the Nevada Supreme Court.  For cases assigned to the Court of Appeals, you are not automatically granted the right to have the Nevada Supreme Court hear your appeal.  If The Nevada Supreme Court declines to hear your appeal, your case is over.

If your appeal bypasses the Nevada Court of Appeals, and is heard by the Nevada Supreme Court, and you lose, you can petition the United States Supreme Court to hear your case.  Again, you are not automatically granted the right to have the United States Supreme Court hear your appeal.  If the United States Supreme Court declines to hear your appeal, your case is over.  If it grants your petition, your case is over once the United States Supreme Court hears the appeal.  The United States Supreme Court is the highest court in the country.  Except for maybe God, there is no one else who is going to hear your case after their decision.   


The federal system resembles a traditional staircase.  Once you have lost in federal district court, you file an appeal with the intermediate federal appellate court for that “circuit,” i.e., area of the country.  In Nevada, your federal appeal would go to the Ninth Circuit Court of Appeals.

If you lose in the Ninth Circuit, you may petition the United States Supreme Court for review.  Again, the United States Supreme Court gets to decide what cases it wants to hear.  If it declines to hear your appeal, your case is over.

If the United States Supreme Court accepts your appeal, your case is over once the Court issues a decision resolving your case.

This is a very simple overview of an uncomplicated appeal.  There are many legal nuances that may apply to your appeal which will affect where, when and how it is heard.


Unfortunately, suffering through litigation long enough to make it to the appellate process will not prepare you for what is in store.  The appellate process is nothing like the litigation process.  The case that you take up on appeal is the case that you lost (or won), below.  You cannot add new evidence, argument, claims or facts.  The appellate courts are limited to reviewing the decisions of the lower courts to determine whether those decisions are correct given the evidence, facts, argument and law before the court at the time that the lower court decided your case.

The appellate process is largely a written process.  Generally, the party who appealed (the “appellant”), will file an opening brief stating why they think the lower court screwed up.   The opposing party (in state court, the “respondent” and in federal court, the “appellee”), then gets the opportunity to file a responding brief in which they argue why the lower court was right.  The appellant can then file a brief which replies to the responding brief.   

The appellate court has discretion whether to grant oral argument on the appeal.  Oral argument is exactly what it sounds like.  Your attorney goes, stands before the Judges or Justices, and orally argues your case.  The Judges or Justices get to ask your attorney questions.  There are no witnesses.  There is no evidence.  You do not get to stand up and testify before the appellate court.  The argument is purely legal argument and the questioning by the Judges or Justices can be pretty brutal.   Adding insult to injury, your case may be determined without oral argument, if the court does not believe that argument is necessary.

The appellate court will then issue a decision on your case.

That’s the appellate process in a nutshell.  Again, most appeals are much more complicated than this.  You may have to participate in mandatory settlement conferences.  Your attorney likely will have to file procedural motions and briefs in addition to your opening, responding or reply brief.  But as a litigant preparing themselves for an appeal, you should at least expect the above process.