This afternoon, we filed this brief in the Ninth Circuit Court of Appeals on behalf of entrepreneur Maurice Underwood. He’s the Reno businessman who wants to run a moving company, but isn’t allowed to because that state forbids new businesses from opening if they would compete economically against existing moving companies. We sued the state to challenge this law, which we consider the most anti-competitive licensing law in the country, but this June, a federal trial court in Nevada dismissed Maurice’s lawsuit on the theory that since he hadn’t applied for a license yet, he wasn’t allowed to challenge the constitutionality of the licensing law.
As we explain in our brief, that ruling is plainly incorrect. The Supreme Court has repeatedly made clear that a person isn’t required to subject himself to an unconstitutional law before challenging its constitutionality. On the contrary, if that were required, a person would never be able to challenge such laws in federal court, because the law says that when you do file an application, you are not allowed to go to federal court, but must instead go to state court. It was with that in mind that the Supreme Court decided in a famous 1982 case that plaintiffs in civil rights cases—like Maurice Underwood—are never required to submit to an administrative procedure before challenging its constitutionality. That is why federal courts have allowed similar PLF lawsuits to proceed in Kentucky and Missouri.