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2020 Survivor’s Guide: The Constitutionality of Quarantine Business Closures

A lifetime ago (120 days to be exact), I witnessed Disneyland go dark the day after we arrived to celebrate my daughter’s fifth birthday.  Within a week, businesses were shuttered, schools were closed, millions were out of work, and the entire world was united in a fight against an invisible enemy:  COVID-19. 

When governors across the country shuttered businesses overnight, people immediately questioned: Is that constitutional? The answer: Probably-ish.


120 years ago, quarantines were a fact of life in America. Without modern medicine at our disposal, the only option localities had when faced with outbreaks of measles, rubella, cholera and typhoid (etc.) was to shutter businesses, close schools and order Americans to stay home. While these were primarily occurring only on small, local levels by town, province or city, the Spanish Flu pandemic saw a nation-wide quarantine similar to what we are experiencing today.

These quarantine laws, which directly affected businesses, were upheld as constitutional. In Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiania, the 1899 U.S. Supreme Court upheld Louisiana’s ban on the entry of a vessel into New Orleans while the city was declared under quarantine despite the fact that ban directly affected interstate commerce.  186 U.S. 380, 387 (1899).  The Court held:

That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.  That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purposes of preventing, eradicating, or controlling the spread of contagious or infectious diseases are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.


Thus, states could (and did) regularly enact quarantine laws.


Under the Compagnie Francaise line of authority, the question as to whether a state government can constitutionally impose quarantine depends on how the governor went about doing it. Compagnie Francaise makes it clear that states can enact and enforce reasonable quarantine laws under their police power.

The police power of a state is reserved to its Legislature, not its executive branch.  However, the Legislature has the power to delegate its authority to the executive branch. In Nevada, the Legislature did that in NRS 414.070.   Governor Sisolak relied upon NRS 414.070 to issue his COVID-19 directives in Nevada. As long as the governor acts within the bounds of the authority delegated to them by the legislature, their acts are presumably constitutional.

So, if your argument is that the governor, in general, cannot impose these laws, you lose. Under Compagnie Francaise and its progeny, these laws are generally constitutional (or, as we lawyers say, “facially valid”).

But if your argument is that the quarantine laws, as they apply specifically to you, are unconstitutional, you might have a valid argument. Referred to by lawyers as an “as applied” challenge, these type of claims look at otherwise constitutional laws and find that the manner in which they are applied is nevertheless discriminatory or unconstitutional. For example, when Nevada initially entered Phase 2, you could get your nails or hair done, but you could not get a facial. Yet, hair salons, nail salons and aesthetic salons operate in virtually identical manners with the same or similar amounts of exposure or contact with others. There was no reason why a facial salon should remain shuttered when a hair salon could open. This is an example of a case that may have had a valid “as applied” challenge. These types of claims arise on a case-by-case basis, and are heavily fact specific. If you think your grievance falls within this category, you should consult an attorney.


Stop arguing that quarantine laws closing businesses are, in general, unconstitutional. That is a dumb argument. However, if you believe that these laws, as applied to your business, might unfairly impact or discriminate against you, consult an attorney.

Bikinis, Coffee and Strippers: Just Another Day in the Ninth Circuit

What do bikinis, coffee and strippers have in common?  Nothing except for the fact that they all play a role in the Ninth Circuit’s opinion in Edge v. City of Everett, 929 P.3d 657(2019).  Edge takes us to Washington, the land of bikini barista coffee stands, where women wear next to nothing (and sometimes nothing) while serving coffee at road side stands.   After the City of Everett enacted ordinances requiring the baristas to wear a few more inches of fabric, several of the baristas complained that the City of Everett had unconstitutionally infringed on their freedom of expression under the First Amendment.  The Ninth Circuit disagreed.


That actually is not just in, but it is new information to me.  Since the 1970’s, SCOTUS has protected stripping as a freedom of expression under the First Amendment. 

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., amd. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

In California v. LaRue, 409 U.S. 109 (1972), SCOTUS applied this logic to uphold California’s legislation barring liquor in strip clubs.  Noting that the First Amendment freedom of expression had been extended to motion pictures and theatre performances, and that stripping was, in some cases, basically a really erotic theatre performance, SCOTUS found that strippers do have some limited First Amendment rights.  Id. But, because California sought to regulate liquor sales rather than the actual um, performance, the California law was upheld.  Id.

In Schad v. Borough of Mount Ephraim,452 U.S. 61 (1981), SCOTUS again noted that nudity does not exclude conduct from the protection of the First Amendment.  Id. In Schad, SCOTUS found that a local ordinance attempting to ban an adult bookstore from allowing a live nude dancer was unconstitutional.  Id.

This does not mean that strippers have a carte blanche right to roam about dancing in the nude.  As SCOTUS explained in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the states still have the right to enact laws limiting when and where public nudity may occur and/or requiring strippers to wear “scant clothing” while dancing.  Id. at 571.  Barnes concerned an Indiana law banning all nudity in strip clubs, but allowing dancers to wear pasties and a g-string.  Id.  Reasoning that states can regulate morality provided that the state’s interpretation of “moral” conduct does not completely prohibit protected expressive conduct, SCOTUS upheld the state law. Id.  Since the dancers could still dance, and since the clothing required gave the audience the basic gist of nudity, the Indiana law was fine. 

These were family establishments after all.  We must have some standards. 

(Kidding. These were actually just strip clubs with no minors allowed). 


According to the Bikini Baristas, they are not strippers.  Strippers wear little to no clothing in exchange for tips.  Bikini Baristas, in contrast, wear little to no clothing in exchange for tips. 

Wait a minute. 

I think we need to start from the beginning with this one. 


If you are like me, you may not have ever heard of a bikini barista.  Seriously, I’ve learned so much today.  A bikini barista wears a “bikini” while serving coffee at a road side coffee stand. 

In Washington.  Which is not exactly known for balmy weather. 

If that sounds like a recipe for prostitution and trafficking . . . well, it is.  After receiving complaints that the baristas had a pretty fast and loose term for the phrase “bikini” and that patrons observed physical contact with customers occurring, the City of Everett mounted an undercover police investigation.  Edge, 929 F.3d at 660-61.  The police discovered that many of these road side coffee stands were fronts for prostitution and trafficking, that many of the baristas were paid solely in tips and encouraged to wear little or no clothing for larger tips, and that assaults frequently occurred.  Id. at 661. This undercover operation lasted for five years, and after five years, the Everett police were unable to solve the problems the coffee stands presented with the means available to them.  Id. Partially because they discovered that a sheriff deputy was involved in covering up one of the coffee prostitution rings (he’s been convicted, it’s all fine now). 

Anyway, after five years, the Everett police told the City that the bikini baristas were the City’s problem to solve.  And the City responded by, among other things, creating a dress code ordinance for the stands that required the baristas to wear more.  Id. at 662. 


After the City’s enactment of the new dress code ordinance, several bikini baristas (and an owner of a stand) sued the City and argued, among other things, that the City’s dress code ordinance unconstitutionally infringed on their freedom of expression.  According to the baristas, the bikini (or whatever they were or were not wearing) was a symbol of “female empowerment” because it celebrated the female body and made women seem “approachable.”  Id. at 662-64.  The trial court agreed with the bikini baristas that the dress code ordinance might infringe their freedom of expression, and entered an order temporarily enjoining the City from enforcing the dress code while the lawsuit was pending. Id. at 664. The Ninth Circuit disagreed.

The  Ninth Circuit explained that protected freedom of expression requires that the “expressive conduct” convey a specific message for which there is a great likelihood that it will be understood by those to whom it is being conveyed.  Id. at 668. For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

In contrast to the situations in which SCOTUS has protected freedom of expression, the bikini barista’s claim arose in a commercial setting.  The Ninth Circuit found that “the commercial setting and close proximity to the baristas’ customers makes the difference” because the “baristas’ act of wearing pasties and g-strings in close proximity to paying customers” where the “baristas indisputably solicit tips . .. creates a high likelihood  that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from” the messages of “female empowerment” the baristas claimed to be sending.  Edge, 929 F.3d a 669.  In other words, the message conveyed may have been one of empowerment, but the message received was most likely “give me more money.”  And, given the high rates of prostitution, trafficking and assault found by the City’s police department, the “empowerment” part of the message was clearly lost in translation. Id.


Although the Ninth Circuit found that the bikini baristas will have a hard time prevailing on their freedom of expression claim, it did throw them a bone.  To paraphrase the gist of what Judge Christen was hinting at in the opinion:

Hey, bikini baristas, you keep claiming that you are not strippers, and therefore, we cannot find a constitutional basis to protect your claimed freedom of expression.  But if you were to say that you are strippers – you know, those other women who take their clothes off for tips just like you – maybe we could talk. 

Clearly the moral of this story is to claim you are a stripper, even if it subjects your employer to all kinds of zoning violations. 

Hovercraft Moose Hunting: Never Mind, It’s Fine.

I previously wrote about the saga of John Sturgeon, the hunter from Alaska who was told to literally pound sand after he attempted to access moose hunting grounds on his hovercraft. You can read that post HERE.

To recap, the saga of John Sturgeon is a fight about who owns and can regulate the Nation River in Alaska under the Alaska National Interest Lands Conservation Act (“ANILCA”). ANILCA is also discussed in depth in my previous post and I cannot promise my summary of it is entirely accurate. Even SCOTUS has difficulty understanding that law.

After the National Park Service ejected John from the Nation River for purportedly violating the National Park Service’s ban on hovercrafts, John began his twelve (12) year legal battle to vindicate the rights of hovercrafting Moose hunters in Alaska. And he won. Sturgeon v. Frost, 587. U.S. ___, 139 S. Ct. 1066 (March 26, 2019).


When we last left John, the Ninth Circuit had determined that the Nation River qualified as a “public land” under ANILCA because the federal government had an “interest” in the running water under the “reserved water rights” doctrine. Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017). SCOTUS disagreed.

SCOTUS found that reserved water rights do not give “title” to water rights. Sturgeon, 139 S. Ct. at 1079. Because the reserved water doctrine does not grant the federal government “title,” the federal government does not own an interest in the waters of the Nation River. Id.

Even if it did, SCOTUS pointed out that a reserved water right is a limited right that only allows the federal government to “take or maintain a specific amount of water” necessary to fulfill the purpose for which the government is regulating the adjacent land. Id. It does not give the federal government the right to enact laws regulating the use of that water in general. Id. This means that the federal government can take water from the Nation River to support the adjacent wildlife preserve, but it cannot enforce its general hovercraft ban on the Nation River.

Which means John is now, finally, free to hovercraft to moose-land.


The moral of the saga of John Sturgeon is that if at first you don’t succeed, sue everybody for twelve years.

Just kidding. That is a terrible moral. The actual moral is to never stop fighting for what you believe in, even if it really, really annoys the Ninth Circuit.

Remittitur, Lawyers, and Malpractice, Oh My!: Branch Banking v. Gerrard

Unsurprisingly, lawyers really hate it when they get sued.  But, fortunately for one lawyer, the NVSC recently ruled that his former client’s legal malpractice claim against him was time-barred In Branch Banking & Trust Company v. Gerard, 134 Nev., Adv. Op. 106, 432 P.3d 736 (Nev. 2018).  In Nevada, when your case involves an appeal, the two year statute of limitations to sue your lawyer for legal malpractice in handling the case does not run until your “damages are no longer contingent on the outcome of the appeal.”  Branch Banking, 432 P.3d at 738.  The question answered by the NVSC in Branch Banking is when that moment occurs.


 In Branch Banking, Branch Banking & Trust hired attorney Gerrard to represent it in litigation.  432 P.3d at 738.  The lawsuit wound up on appeal with the NVSC, and Branch Banking ultimately lost.  Id.  Branch Banking filed a writ of certiorari to the United States Supreme Court, and the United States Supreme Court denied certiorari on October 6, 2014. Id

While the writ of certiorari was pending, the Nevada Supreme Court issued remittitur in March 2014.  Id. Remittitur means that “the appeal [has] conclude[d] and appellate jurisdiction [has] end[ed].”  Id. at 739.

Sometime while all of this was happening, Branch Banking and Gerrard fell out of love.  I don’t know why.  It’s not in the opinion.  All I know is that Branch Banking ultimately wound up suing Gerrard. 

Branch Banking filed its legal malpractice lawsuit against Gerrard on October 5, 2016, just under two years from the date SCOTUS denied the writ of certiorari, and two years and seven months after the NVSC issued remittitur.  Id. at 738.  Gerrard argued that the bank’s lawsuit was time-barred because it was filed seven months after the two year anniversary of the NVSC’s issuance of remittitur.  Id. The NVSC agreed. 


According to the NVSC, the purpose of statutes of limitation are to give people some certainty as to when they can no longer be sued.  Id. at 740.  This certainty would not arise if statute of limitations were tolled pending writs of certiorari to SCOTUS.  Id. These writs do not have to be filed until 90 days (3 months) after the opinion or order, and can take months to resolve.  Id. Considering that the majority of these are largely denied, the uncertainty associated with tolling the period during this time is great. 

In contrast, remittitur is a set date.  Id. at 740.  It issues 25 days after the final decision by the NVSC.  NRAP 41(a)(1). 

The NVSC further noted that remittitur can be stayed pending a writ of certiorari to SCOTUS under NRAP 41(b)(3).  Branch Banking, 432 P.3d at 740-41.  To stay remittitur, you simply have to file a motion to stay while the writ of certiorari is pending.  NRAP 41(b).  Remittitur will be stayed for 120 days (4 months).  You can extend the period of time for good cause (i.e., “SCOTUS hasn’t rejected or accepted our writ yet”).  See id. The 120 day period will be indefinitely extended if your writ is accepted, and remittitur will remain stayed until SCOTUS files its disposition of your appeal.  See id.

Branch Banking and Trust never sought to stay remittitur.  432 P.3d at 741.  Once remittitur issued, the limitations period began running for its lawsuit against its former attorney.  Because Branch Banking and Trust filed its legal malpractice action outside of the two-year limitation period, the district court properly dismissed its action.  Id


Don’t sue your lawyer.   

Just kidding. Sort of. 

But if you are going to sue your lawyer, pay attention to when that clock starts ticking on the limitations period.  

Hall v. Hall Revisited: In re Estate of Sarge

The Nevada Supreme Court has joined SCOTUS in holding that an order resolving one consolidated matter is independently appealable.  Hall v. Hall, 128 S. Ct. 54, 198 L.Ed.2d 780 (Sept. 28, 2017); In re Estate of Sarge, 134 Nev., Adv. Op. 105, 432 P.3d 718 (2018).  I discussed the Hall opinion HERE.

Prior to Hall, the rule in Nevada was that a consolidated case could not be independently appealed.  Mallin v. Farmers Ins. Exchange, 106 Nev. 606, 608-09, 797 P.2d 978, 980 (1990).  Following Hall, however, the NVSC overruled MallinSarge, 432 P.3d at 722. It found that Mallin did not address Rule 42 and relied upon Ninth Circuit precedent that was overruled in Hall.  Id.  The NVSC further noted that Mallin overlooked an earlier NV court case which stated that consolidated cases were independently appealable.  Id. at  721.  Reasoning that it should never allow its prior decisions to operate as a “straight jacket,” the NVSC overruled Sarge and held that consolidated cases are now independently appealable.   

When Two Do Not Become One: Appealability of Judgments in Consolidated Cases

In Hall v. Hall, the United States Supreme Court (SCOTUS) answered the burning question that … okay, that probably no one has been dying to have answered.  But nevertheless, it is good to know for appellate practice.  When you consolidate cases under Rule 42, can you separately appeal a judgment obtained in one case even if a final judgment has not been entered in the other consolidated case?  According to SCOTUS, yes.  Hall v. Hall,  584 U.S. ___, 138 S. Ct. 1118, 200 L.Ed.2d 399 (Mar. 27, 2018).


When you have two similar cases, you can move the court to consolidate them under Rule 42.  When cases are “consolidated,” they are heard by the same judge.  They may also be tried at the same trial.

Consolidation has been around since before Abraham Lincoln was a twinkle in his mother’s eye.  In 1813, Congress passed a statute allowing courts to consolidate related actions. § 3, 3 Stat. 21.  Under this statute, SCOTUS consistently refused to recognize “consolidated” cases as being “unified” for all purposes.

For example, in Rich v. Lambert, SCOTUS declined to exercise jurisdiction over several consolidated maritime appeals because each case did not individually involve at least $2,000 in damages, and (at that time) SCOTUS only had jurisdiction over maritime cases where the amount in issue was in excess of $2,000.  12 How. 347, 352-53, 13 L.Ed. 1017 (1852).

In Mutual Life Insurance Co. v. Hillmon, SCOTUS reversed a court order treating three separate lawsuits against three separate defendants as one merely because the three separate lawsuits against each defendant were consolidated.  145 U.S. 285, 293, 12 S. Ct. 909, 36 L.Ed. 706 (1892).  Poor Mrs. Hillmon had to file three separate lawsuits against three separate life insurance companies for release of three separate life insurance policies on her husband who she claimed had died while traveling through southern Kansas.  Id. at 285-87.  The insurance companies claimed it was insurance fraud, that Mr. Hillmon was still alive, that he had conspired with his traveling companion to murder their other traveling companion, and that they were trying to pass off that poor schmuck’s corpse as Mr. Hillmon.  Id.  The cases were consolidated.  At trial, when the individual insurance companies each tried to challenge potential jurors for jury duty disqualification, the court limited their challenges to the amount normally allowed in one case rather than allow them to have the amount allowed in three cases.  Id.  According to SCOTUS, the fact that the cases were consolidated did not negate the individual defendants’ rights to have the full amount of peremptory (i.e., juror) challenges available to them in their separate lawsuits.  Id.  at 293.

(I don’t know if Mr. Hillmon was actually alive at the time of trial, but he is definitely dead now.)

In Stone v. United States, SCOTUS did not allow the appealing party to raise issues on appeal that were related to a consolidated case whose judgment he had not also appealed.  167 U.S. 178, 189, 17 S. Ct. 778, 42 L.Ed. 127 (1897).

In Johnson v. Manhattan R. Co., SCOTUS affirmed Judge Learned Hand’s decision that consolidation does not automatically make the parties to one lawsuit also parties to the consolidated lawsuit.  289 U.S. 479, 496-497, 53 S. Ct. 721, 77 L.Ed. 1331 (1933).

In 1935, Rule 42(a) was adopted, and expressly allowed for consolidation of cases raising similar facts, issues and/or containing similar parties.

Following the adoption of Rule 42(a), SCOTUS continued to reject the theory that “consolidation” means “unification.”  In Butler v. Dexter, SCOTUS dismissed an appeal because the constitutional question that gave SCOTUS jurisdiction was not raised in the appealed case, but in the other consolidated cases which were not appealed.  425 U.S. 262, 266-67, 96 S. Ct. 1527, 47 L.Ed.2d 774 (1976).


One very important thing you should know about the above opinions is that SCOTUS never stated outright “Yes, you can separately appeal cases even if they have been consolidated under Rule 42.”  Apparently, you really have to spell these things out for lawyers.

Which brings us to the case of poor Samuel Hall (coincidentally, a lawyer).  Samuel does not like his sister Elsa, and the feeling is mutual.  Samuel used to take care of his mother, until she got mad at something Samuel did with her real estate.  Hall, 138 S. Ct. at 1122.  His mother then created a trust, transferred all of her property into it, made herself trustee, and made Elsa the beneficiary of the property upon her death.  Id. The mother also moved to live with Elsa and the move, according to SCOTUS was “under circumstances disputed by the parties.”  Id.

(I don’t know what that means, but it screams “kidnapped and transported in a container ship.”  The mom lived in the Virgin Islands with Samuel, and relocated to Miami with Elsa).

The mom eventually sued Samuel and his law firm on behalf of her trust for whatever it is that Samuel allegedly did to her real estate. Id.  The mom died, and Elsa became the trustee tasked with prosecuting the lawsuit against Samuel.  Id.  Samuel then filed a separate lawsuit against Elsa for whatever it is that she allegedly did to their mom.  Id. at 1123.  The cases were consolidated, and tried in one trial.  Id.

Elsa lost.  She lost the trust case, and Samuel won on his claims against her in the individual case.  Id.  Elsa was able to overturn the jury verdict in the trust case, reopening the litigation.   Id.  However, the jury verdict against Elsa in the individual case stood, and Elsa appealed that verdict.  Id.  Samuel argued that the verdict in the individual case was not a final appealable judgment because the claims in the trust case remained pending. Id.  The Third Circuit Court of Appeals agreed.  Id.  SCOTUS did not.

According to SCOTUS, “[h]ad the District Court never consolidated the trust and individual cases, there would be no question that Elsa could immediately appeal from the judgment in the trust case.”  Id.  Relying on its  history of viewing consolidated cases as retaining their separate identity, SCOTUS rejected Samuel’s argument and reversed the Third Circuit.  It finally stated, clear enough for lawyers to understand, “that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.”  Id. at 1131.

And everybody lived happily ever after.  Except for the Halls, who are probably still suing each other, and also Mr. Hillmon, who is definitely now dead.

The Costs of an Appeal: What You Have To Pay to Play

You probably know you have a right to an appeal, but do you know what that right costs?  Here’s a breakdown of the filing fees associated with appeals:


To file an appeal, you have to pay a fee in the district court.  For appeals and cross-appeals to Nevada appellate courts, that fee is $250.  NRS 2.250.  For Ninth Circuit Appeals, the fee is $505.

If you wish to file an appeal with the United States Supreme Court, the fee to appeal is paid directly to the United States Supreme Court.  The cost to file a petition for a writ of certiorari, jurisdictional statement, or original action is $300. Sup. Ct. R. 38.


Remember, an appeal is not the only way that you can seek appellate review.  To file a petition for an extraordinary writ to the Nevada Supreme Court and/or Nevada Court of Appeals, you must pay a fee of $250 to the district court.  NRS 2.250.  However, there is no fee for criminal proceedings and habeas corpus petitions.

To file a petition for review or a petition for a writ of mandamus in the Ninth Circuit, you must pay a fee of $500.

To file an original action in the United States Supreme Court, you must pay a fee of $300.


In Nevada, following a decision by the appellate court, you can  seek  rehearing or en banc reconsideration.  The cost to file a petition for rehearing is $150.  NRS 2.250.

You can also file a petition for rehearing or a motion for leave to seek rehearing in the United States Supreme Court.  The costs for these rehearing petitions and/or motions is $200. Sup. Ct. R. 38.


There are miscellaneous costs which the appellate court may charge you of which you should be aware.  These include (1) copies, (2) certified copies, (3) duplication of audio files (i.e., oral argument), and (4) transcript examination fees.  These costs are generally minimal.  (For example, copies in both Nevada and the Ninth Circuit are 50 cents per page).

Both the Ninth Circuit and the United States Supreme Court will also charge you fees for returned checks, so make sure your bank account is current.


In certain types of appeals, costs are waived.  For example, the United States Supreme Court does not charge the above costs for appeals in: (1) Veteran’s re-employment cases; (2) seamen’s cases; and (3) cases initiated by persons who have been accused by the Court of Appeals for the Armed Forces.  Sup. Ct. R. 40.1; Sup. Ct. R. 40.2; and Sup. Ct. R. 40.3.

The most common appeals in which costs are not charged are those in which the appellant is granted leave to proceed in forma pauperis.  An appellant will granted leave to proceed in forma pauperis upon a finding that they cannot afford to pay the appellate fees.  NRAP 24; FRAP 24; Sup. Ct. R. 39.  In both Nevada and the Ninth Circuit, the appellant must first file a motion in the district court that sets forth their inability to pay the costs on appeal.  NRAP 24(1); FRAP 24(1).  The motion must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal.  Id.  If, and only if, the motion is denied by the district court, may the appellant  file a motion with either the Nevada appellate courts or the Ninth Circuit again seeking leave to proceed in forma pauperis. NRAP 24(5); FRAP 24(5).

In the United States Supreme Court, the party seeking leave to proceed in forma pauperis must file a motion with the Supreme Court which complies with the Ninth Circuit’s requirements (i.e., it must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal).  Sup. Ct. R. 38(1).

Although these fees may seem steep, they are a necessary evil for the orderly operation and administration of appellate courts.  If you are contemplating an appeal, or have a client contemplating an appeal, always be aware of what you have to pay to play.

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.

Cursing Congressmen: Student Activism and the First Amendment

A local high school student has captured the media’s attention by claiming his First Amendment rights were violated after the school suspended him for cursing at a congressman.  The student participated in the March 14, 2017 walkout to protest gun laws.  During the protest, he admits that he called his congressman’s office and demanded that politicians get off their “f-ing lazy a – -” and do something about gun law reform.

The student contends that the school violated the student’s First Amendment rights to engage in “political speech.”  The school district argues that the suspension was not in retaliation for participation on the protest, but because the student used profanity.   Who is right?

The First Amendment protects “political speech,” i.e., speech that expresses opinions or views on current political issues or candidates.  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1448 (2014).  In fact, political speech has been regarded as the “essence” of the First Amendment.  McIntyre, 514 U.S. at 347.  Courts are required “to err on the side of protecting political speech rather than suppressing it.”  McCutcheon, 134 S. Ct. at 1451.

In contrast, profanity is not always protected under the First Amendment.  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).  The United States Supreme Court has consistently held that a school district may prohibit “inappropriate” speech.  Id. at 683.  This includes profanity used during protests that is aimed at “making a political point.” Id. at 682.

According to the United States Supreme Court:

“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized order.  Consciously or otherwise, teachers – and indeed the older students – demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class.  Inescapably, like parents, they are role models.  The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct . . .”

Id. at 683.


In sum, a school may prohibit the use of profanity, even during a political protest.  Id. at 685.

In this particular case, it is unclear whether the speech will be protected.  The speech occurred during the walk out, which was not a school-sanctioned activity.  It occurred during a political protest, it was aimed at a politician, and it requested political action.  On the other hand, the speech occurred on a school campus.  The other participants were students, and these students likely overheard this speech.  The school has a policy prohibiting inappropriate speech and conduct on school grounds.

To mount a First Amendment challenge, the student will also need to show that the suspension was in direct retaliation for his “political speech.”  The school has been very clear that its punishment was not due to the student’s political views or participation in the walkout, but because he violated a school code of conduct. To win, the student will need to prove that the school’s explanation is false or pretextual, and/or that the administrators in charge of the suspension had expressed opposition to the student’s allegedly protected speech.  Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).   Keep in mind, however, that schools can prohibit political protests on campus if those protests “undermine the school routine.”  Tate v. Bd. of Ed. Of Jonesboro, Ark., Special Sch. Dist., 453 F.2d 975, 978-79 (8th Cir. 1972).

So, who is right?  I don’t know.  The First Amendment is a gray area of the law, particularly when it comes to schools.

I do know that I am proud of our next generation.  While I do not condone this particular student’s choice of words, I commend him for trying to make a difference on an issue he feels strongly about.  If these students continue to be passionate about the shape of this country’s future, 2020 is going to be a very interesting election year.

Timely Appeals: Hamer v. Neighborhood Housing Services of Chicago

The notorious RBG laid down the hammer on the Seventh Circuit in Hamer v. Neighborhood Housing Services of Chicago, after the Seventh Circuit held that FRAP 4(a)(5)(C)’s time limitations on filing appeals are jurisdictional.  According to RBG (Justice Ruth Bader Ginsburg), time limitations in FRAP 4(a)(5)(C) are “mandatory” (i.e., follow them) but not jurisdictional.

Charmaine Hamer lost her employment discrimination lawsuit against Neighborhood Housing Services of Chicago.  Six days before the deadline for her to appeal, her attorneys moved to withdraw and requested an extension of the appeal filing deadline.  The district court granted both motions and gave Hamer a 60-day extension on her appeal filing deadline.  The Seventh Circuit dismissed the appeal as untimely, because FRAP 4(a)(5)(C) only allows the district court to grant a 30-day extension.  RBG disagreed.

Statutes vs. Rules

The crux of Hamer is the distinction between statutes and rules.  A statute is enacted by Congress (or a state legislature).  A rule is created by courts.  Both must be followed by litigants, but a litigant’s failure to follow a rule is not necessarily fatal.

In Bowles v. Russell, the United States Supreme Court held that time limitations for filing an appeal which are found in statutes are jurisdictional.  551 U.S. 205, 210-12 (2007).  “Jurisdiction” of federal courts is determined by Congress.  Because Congress can decide what type of cases the federal courts can hear, Congress can naturally also decide when the federal courts can hear these cases.  Id.   Therefore, when Congress enacts a time limit on when an appeal must be filed, an appellant’s failure to follow the statutory time limit requires dismissal because these time limitations are jurisdictional.

Hamer dealt with a rule, not a statute.  According to RBG, the rules are different when it comes to dealing with . . . rules.

RBG Lays Down a Rule About a Rule

Unlike statutes, the federal rules of appellate procedure were created by the courts to promote order in litigation.  Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ____, 183 S. Ct. 13, 17 (Nov. 8, 2017).  While time limits in statutes cannot be waived by the parties, defects in timeliness arising under rules can. Id.

Normally, an appeal from a federal district court to a court of appeals must be filed within thirty (30) days from the entry of the judgment or order.  FRAP 4(a)(1)(A).   A party can move the district court for an extension of the time to appeal.  FRAP 4(a)(5)(A).  The district court can only grant an extension of “30 days after the prescribed time or 14 days after the date when the order granting the extension is entered, whichever is later.”  FRAP 4(a)(5)(C).

The respondents tried to argue that FRAP 4(a)(5)(C) had a “statutory basis” because it is similar to an actual statute, 28 U.S.C. 2107(c).  However, 28 U.S.C. 2107(c) only applies if the appellant did not have notice of the judgment against them.   Hamer was well aware of the order ending her lawsuit.

Because Hamer’s time period to appeal arose from a rule, the Seventh Circuit should not have dismissed her appeal for lack of jurisdiction.  According to RBG, time limitations are only jurisdictional if they are prescribed by Congress.  Time periods for appeals found in the rules may be waived or forfeited.  On remand, the Seventh Circuit will need to decide whether Neighborhood Housing Services’ failure to object to the 60-day (as opposed to 30-day) extension waived any right to contest the timeliness of Hamer’s appeal, and/or whether it should hear the appeal because Hamer relied on the district court’s error in allowing her to file her appeal 60 days after the order dismissing her case.

Moving Forward under Hamer

Hamer is the final say in long debate among the federal appellate courts as to whether an appeal must be dismissed when it is untimely under the Federal Rules of Appellate Procedure or whether the courts may excuse the untimeliness.

Moving forward under Hamer, federal litigants need to be aware of the following:

(1) If your timeline to appeal arises under a statute, you need to file within that timeline;

(2) If your timeline to appeal arises under a rule, you should still file within that timeline, but your failure to do so may not always result in dismissal;

(3) If you are responding to an untimely appeal that was filed pursuant to a rule, object to its untimeliness or the federal court can treat your untimeliness objection as “forfeited” and hear the appeal anyway.

Whatever you do, follow the rules.  Although untimeliness may be forgiven in some cases, I highly doubt an appellate court is going to forgive an untimely appellant who simply disregarded the rules.