July 30, 2013

Economic liberty hanging by a thread

By Christina M. Martin Attorney

The Texas Supreme Court on Friday refused to hear the case of Patterson v. City of Bellmead. The Pattersons were asking for the chance to prove their allegations that a city kennel-licensing law is unconstitutional. That may seem like a little thing at first, but as I wrote a few weeks ago, the Pattersons’ case was not really about animal codes; it was about whether courts can throw out constitutional arguments without even hearing them.

In the Pattersons’ case, the court allowed them to submit their own evidence, but refused their requests for discovery. Worse, the court ignored the evidence that the Pattersons were allowed to present. Instead, it declared that facts did not matter in their case because such laws are reviewed under the “rational basis” test. That’s the test that applies to most constitutional arguments, and it’s heavily biased toward the government already. Unfortunately, in recent years we’ve seen courts expanding that bias even further, throwing out meritorious lawsuits without allowing plaintiffs to even introduce evidence on the theory that they can’t possibly prove a challenged law is unconstitutional.  This kind of treatment has proven lethal to lawsuits defending private property or the fundamental right to earn a living, as Jonathan Wood explained just yesterday.

However, although the Texas Supreme Court won’t be giving the Pattersons their day in court, there’s still a chance it will hear a similar case brought by a group of entrepreneurs who practice a business called “eyebrow threading.” In that case, Patel v. Texas Dept.of Licensing & Regulation, a group of eyebrow threaders are challenging a ridiculous regulatory scheme that requires them to get full-blown cosmetology licenses even though the licensing requirements don’t train people in eyebrow threading and do impose myriad teaching requirements that have nothing to do with that business. The lower court considered the evidence and found in the government’s favor.  But the government is not satisfied with that. It is asking the Texas Supreme Court to hold that the courthouse door should have been closed to the eyebrow threaders unless they could prove from the beginning of the suit – prior to discovery even – that they were likely to win.

What to read next