Court throws out Maurice Underwood’s case—PLF will fight on for the right to earn a living

June 27, 2013 | By TIMOTHY SANDEFUR

I’m saddened to report that a federal judge in Reno yesterday dismissed Maurice Underwood’s lawsuit challenging the constitutionality of Nevada’s licensing law for moving companies. That law—the most anti-competitive licensing law in the country—requires any person who wants to run a moving company to first prove that he or she wouldn’t compete against existing moving businesses. And it applies a slew of vague and incomprehensible standards which allow the government to basically pick and choose who it wants to run a moving company in the state. We filed a case last summer arguing that these laws are unconstitutional violations of Maurice Underwood’s right to earn a living.

Unfortunately, the court issued an order yesterday afternoon dismissing Underwood’s case on the grounds that it is not “ripe”—meaning that there aren’t yet enough facts to know just how the law might be applied against Underwood in the future. Of course, since our lawsuit seeks a court order to bar the application of that law to him in the first place, our position is that people shouldn’t have to submit an application under these licensing laws to challenge them in court. In fact, that’s just what the trial judge said in our other mover lawsuit in Kentucky, on behalf of Raleigh Bruner. When that state’s lawyers made the same argument, the judge ruled that

The plaintiffs’ claims are fit for review and further ripening is not necessary before judicial decision…. Withholding judicial consideration of the claims until the plaintiffs either have a pending application or until they undergo the allegedly unconstitutional hearing procedure would not ripen the claim. And, as the plaintiffs note, there is no requirement that a plaintiff in a § 1983 action subject [himself] to the statutes they allege are unconstitutional. If [Bruner]’s valid application had actually been protested by its competitors and ultimately denied, this certainly would have strengthened the merits of the plaintiffs’ claim that the protest procedure is unconstitutional as applied to them. However, this action is not required before the Court could make a determination of the constitutionality of the relevant statutes.

Unfortunately, the Nevada judge saw things differently. She found that Maurice Underwood was required to submit an application in order to find out whether state officials would follow the Constitution or not, and only then sue:

[Underwood’s future] application [for a license] may well be denied on constitutional grounds. Indeed, [that future] application may be granted on either constitutional or unconstitutional grounds, precluding a showing of injury-in-fact. Accordingly, it is far from certain that the “law in question will certainly apply” to injure Plaintiffs. At oral argument, Plaintiffs’ counsel analogized this statute to an administrative scheme that denies Certificates to every third applicant who applies for one. The plaintiff may be the first or the second, in which case she would not be injured. But she may also be third, and thereby suffering certain constitutional injury. In that situation, the plaintiff could bring a pre-enforcement challenge before applying….

The Courts of Appeals, however, have made it pretty clear that you don’t have to prove with absolute certainty that something bad is going to happen to you in order to ask a court to stop it from happening. And the fact that a person’s application for a mover license “may be granted on either constitutional or unconstitutional grounds” is the injury—nobody should have to face the possibility that his application for a license could be denied for unconstitutional reasons. That very risk is enough reason to sue—as the Kentucky federal court said.

This afternoon, we filed an appeal to the Ninth Circuit, and we will keep fighting to defend Maurice Underwood’s right to earn a living.