In an appeal filed in February 2021, the Institute for Justice asked the U.S. Supreme Court to examine the question of whether federal judges have unfettered discretion to unilaterally inject their own arguments or legal theories into cases where state action is challenged and reaffirm that the federal courts cannot act as advocates for the state.

Marcus & Millichap Real Estate Investment Services, Inc. (“Marcus & Millichap”) is a commercial real estate investment services company with offices throughout the U.S. and Canada. In the U.S., Marcus & Millichap brokers commercial real estate investment transactions that are inherently complex and national in scope. Most states accommodate the sort of interstate brokerage work that Marcus & Millichap performs. Nevada, however, requires individual licensees to maintain a physical presence in the state and prohibits most out-of-state broker involvement, even if working in cooperation with a local broker. As one of Nevada’s enforcers admitted, the law serves to prevent outsiders from “taking business away from our Nevada licensees.”

Marcus & Millichap filed suit in 2016 in federal court to challenge Nevada’s system as protectionist and unconstitutional. The trial court ultimately upheld Nevada’s law and Marcus & Millichap appealed to the 9th U.S. Circuit Court of Appeals. Marcus & Millichap asked the court of appeals to rule that the trial court had erred. The state of Nevada then asked the court of appeals to rule that the trial court got things right.

Rather than deciding which side was right, the 9th Circuit resurrected a procedural argument that no one had made on appeal, called “Younger abstention.” The Younger doctrine says that federal courts shouldn’t interfere with state-court enforcement proceedings. The problem, though, was that Nevada hadn’t asked the court of appeals to apply the Younger doctrine. Nevada, when pressed at oral argument, suggested that the omission had been deliberate.

Even so, the 9th Circuit raised Younger abstention unprompted and dismissed the case. The court introduced a theory no party had presented. It gave no reason for taking that unusual step, and on the strength of that new theory, it withdrew the federal courts from a case they had the power to decide.

Marcus & Millichap and its brokers asked the U.S. Supreme Court to step in. The 9th Circuit’s decision spotlighted a broader phenomenon: courts of appeals’ exercising unconstrained and unexplained discretion to inject procedural hurdles into civil rights cases. The result is arbitrariness on a national scale. Across several courts of appeals, a subset of federal plaintiffs found themselves randomly ejected from federal court on Younger grounds. In all these cases, the federal courts have the power to address the merits. They can rightly exercise that power. Yet appellate courts raise Younger unilaterally, leaving parties unable to proceed in federal court. Represented by the Institute for Justice, Marcus & Millichap asked the Supreme Court to intervene.

The Court denied review in May 2021.