April 2, 2015

Montana tries to get our Competitor's Veto lawsuit kicked out of court

By Anastasia P. Boden Attorney

Today we asked a Federal court not to throw out our case challenging Montana’s Competitor’s Veto law.  Our client, Tracie Pabst, has owned shuttle companies in Montana, North Dakota, New Mexico, and Texas, and has provided service to over 170,000 passengers without a single accident or moving violation.  Now she wants to open a taxi company in her hometown of Big Sky.  The roads are dangerous there, and she perceives a lack of available taxi service (no Uber in Montana!).  But before she can start her business in her hometown, she essentially has to ask her competitors for permission first.

As part of our nationwide campaign against Competitor’s Veto laws, we challenged that law in Federal court, but the state is trying to get our case thrown out on the grounds that Tracie has not yet applied for and been denied a license.  As we argue in this brief filed today, plaintiffs don’t have to subject themselves to an unconstitutional licensing scheme before challenging that scheme in court.  Individuals like Tracie are injured because they are forced to choose between forgoing their constitutional right to earn a living, or operating in violation of the law.  They can sue to redress that injury without first applying for a license.

We’ve succeeded in challenging a nearly identical law in the district court of Kentucky, as well as in challenging an irrational licensing law in the pest removal industry the Ninth Circuit Court of Appeals (which governs Montana).  Both of those courts agreed that plaintiffs need not undergo a burdensome and arbitrary licensing procedure before challenging its constitutionality in court.

The Montana legislature is currently considering a bill that would get rid of the Competitor’s Veto.  I testified at a hearing for that bill in January, and you can read my testimony here.  That legislation (which would also provide a licensing mechanism for companies like Uber) passed the Senate earlier this week.  If it passes both houses, it will be a huge victory for entrepreneurs like Tracie—who are only asking for the right to start a business without asking their competitors for permission first.

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