Judges have a duty to say what the law is. That’s a big part of what judicial engagement is all about. A judge who avoids telling you the law is not really “judging.”
Now, there are good reasons why sometimes judges do not judge—such as when a court simply lacks jurisdiction or a party legitimately doesn’t have standing. But if a person suffers an injury, especially an injury at the hands of the government, it is emphatically the duty of the court to say whether that injury was wrong.
This is especially true if a court says “I won’t tell you the law now, but if you do something else and come back, I’ll tell you then.”
Not so, says the Ninth Circuit. In a bait-and-switch worthy of both Dickensian courtroom sagas and Charles Schultz (picture Lucy pulling the football away from poor Charlie Brown), that court just admitted to wasting six years of the lives of a number of plaintiffs and lawyers. It’s only the latest example, but a very stark example, of judges not just failing to judge but failing to treat litigants, lawyers, and the people behind them as worthy of respect. In short, the story is one of near-Kafkaesque judicial abdication more in the manner of a bureaucrat than a judge.
Let me explain what I mean by that before turning to our story. The word “bureaucrat” is loaded with negativity. Generically it can just mean a government worker, but it’s almost always used to describe someone who goes about their duties without regard to whether the rules they administer make sense or whether their actions address the plight of citizens. On the other hand, when we think government workers are doing their jobs well and in a way that helps the public (think a competent clerk at city hall or a responsible and cost-efficient court administrator), we often call them “civil servants.”
Judges are government workers too. When they do their jobs well they can be the best of civil servants. But when they rule in ways that don’t make sense, that unnecessarily waste people’s time, and that construct walls to justice out of circular reasoning, they are “bureaucratic” in every sense of the term.
That’s how the Ninth Circuit acted when it came to James and Clifford Courtney.
The two brothers live in the tiny mountain village of Stehekin in Washington State. The only way to access the village is by boat across the sparkling waters of Lake Chelan, a 55-mile ride from the larger town of Chelan itself. For decades the only way for the public to make the water journey has been to take a boat run by an incumbent ferry company with limited service. Jim and Cliff thought they could improve the lives of their follow Stehekin residents by running a competing ferry. However, their years of work were continually stymied by the existing, and politically connected, company. Under state law the brothers were told they needed a “public convenience and necessity certificate” to offer ferry service. But every attempt they made to get a certificate resulted in the ferry company successfully objecting to the state issuing one (which the company has a right to do under state law).
Undaunted, the Courtney brothers teamed up with the Institute for Justice and filed a federal lawsuit, arguing that the certificate requirement and veto power it gave the existing ferry violated the Fourteenth Amendment’s Privileges or Immunities Clause, a long-neglected provision in the Constitution that was originally crafted in the wake of the Civil War to protect the liberties, including economic liberties, of U.S. citizens. (The story of the clause is a fascinating one that I won’t go into here, but if you don’t know about it here’s where you can start to read up.) The case was premised on language in the infamous Slaughterhouse Cases of 1873 that said that even though the clause did not protect many rights, it did protect “the right to use the navigable waters of the United States, however they may penetrate the territory of the several States.”
The case was thrown out on a motion to dismiss, and the brothers appealed to the United States Court of Appeals for the Ninth Circuit. There the court took a different approach to the Courtneys’ two slightly different claims. The first claim was that the state had wrongfully prevented them from running a normal ferry service, which would directly compete against the existing ferry monopoly. But they also had a second narrower claim to run a ferry service only for patrons of a specific business, such as the ranch that Clifford Courtney runs, which offers cabins and a lodge house. Under this plan, they would only ferry people up from Chelan who were going to be customers of specific businesses in Stehekin, just like a van service that a hotel might provide from an airport.
The Ninth Circuit said that the Privileges or Immunities Clause does not protect the right to operate a public ferry open to the general public and that, under the Slaughterhouse Cases more generally, the right to earn a living is not covered by the clause (implying that “the right to use navigable waters” doesn’t cover using the waters to earn a living). However, rather than just applying the same reasoning to the second claim, the court wasn’t sure that the brothers actually needed the public convenience and necessity certificate to run that more limited service. Although the brothers had received an answer from state officials that they would, they hadn’t gone through the full administrative procedure (which can take—and did take—years) and received a final, absolutely official answer.
This was silly because all of the evidence—the years of collusion between the regulators and the ferry company, the company’s and the regulator’s statements about the proposed limited service, and state law itself—made clear that the Courtneys could not run even this extremely limited service without a certificate (which, of course, they would not get). But, in an effort by the panel of judges to not judge, the court invoked what’s called Pullman abstention, staying the case while the brothers pursued this alternative which, the court seemed to hope, would mean they wouldn’t need the help of the federal courts after all. (The Ninth Circuit was in fact affirming the trial court which had ruled in the same non-judging way.)
Now, the Ninth Circuit wasn’t exactly reassuring on whether the Courtneys would succeed on their second claim, with its dismissive language on the first claim. But still, the court said it wouldn’t even rule on it unless the Courtneys’ first made sure that under state law they wouldn’t be able to run that limited service without a certificate.
And so the Courtneys did what they were told. After first asking the U.S. Supreme Court to take their case on the general ferry service claim (which it declined), the Courtneys plunged into the administrative process to secure an official answer on whether the certificate requirement applied to the more limited service. This meant going to an administrative hearing—where the same incumbent ferry company came and opposed them—receiving an order that the certificate requirement did, in fact, apply, and appealing the order through the state court system. That meant a stint in a state trial court (which affirmed the order), an appeal to the state court of appeals (which also affirmed), and even an request for the state supreme court to take their case (which was denied). All of which, as they had patiently predicted to the Ninth Circuit, was a foregone conclusion. But, because the court said they had to do that first, the brothers dutifully did it.
The entire state regulatory detour took an additional four years. The federal case was first filed in 2011, itself after years of regulatory and legislative efforts that had gone nowhere. The Supreme Court declined to take the case in 2014 and the limited ferry state-law process then lasted to 2018. Luckily for the Courtneys they were represented for free by IJ; with a normal law firm the state-detour alone would have cost tens if not hundreds of thousands of dollars. But it still took years out of everyone’s lives, and hundreds of hours of attorney time. All because judges went over-the-top in their efforts to not do what judges are supposed to do.
After the state-law side-show was over, the brothers went back to court, saying “Remember us? So, how about that second claim?” Perhaps a bit surprised (although apparently not very impressed) by these intrepid entrepreneurs, the federal trial court then simply extended the Ninth Circuit’s reasoning from the first appeal—that the right was economic and therefore not covered—to the second claim, and ruled for the government. Thus, the trial court answered the question, although very much not in the way the Courtneys wanted. Why had that four-year-delay been necessary? That was unexplained.
Then the brothers appealed back to the Ninth Circuit which did something very strange. In a two-and-a-half page unpublished opinion it stated the limited ferry service claim was denied because running a ferry (of any kind) on Lake Chelan is not interstate commerce, and the Privileges or Immunities Clause’s protection of the “navigable waters” only applies to interstate commerce. It also said that the state administrative decision that a public convenience and necessity certificate was necessary under state law was not relevant to their decision.
What?! Putting the bizarreness of the reasoning aside (it’s bizarre in several ways, including that it is completely wrong under modern Supreme Court precedent—where just about everything is interstate commerce, except running a ferry on Lake Chelan, apparently), what’s so bureaucratic about the opinion is that it disposes on the Courtneys’ claim with reasoning that could have disposed of it last time seven years ago. However wrong the court’s “interstate commerce” analysis, it would apply equally to a general ferry service or a limited ferry service. This is different from its prior reasoning about how the right to use navigable waters does not extend to running a public ferry, which might extend to a limited-ferry service (as the trial court thought it did), but at least left the Courtneys a smidgen of hope. Essentially what happened is instead of extending its earlier opinion to this claim and seeing if it fits, the court made something else up that swept the case away.
All of that could have been avoided if the earlier Ninth Circuit panel had just addressed the second claim. It could have used the bizarre interstate commerce analysis, or simply extended the reasoning from the first claim to the second. The Courtneys could have also appealed that to the Supreme Court, and maybe it still wouldn’t have taken the case, but at least they would have had some certainty and moved on with their lives. But instead they took six years of additional toil and waiting for what was a predictably pointless diversion.
Those six wasted years are the wages of judicial abdication. And that brings us back to bureaucrats and civil servants. A true civil servant, even if they cannot give a citizen what they’re looking for, at least is respectful of their time and what the citizen is trying to do. A bureaucrat typically is not. Too often judges follow the bureaucratic path. Judicial engagement isn’t just about judges judging. It’s about constitutional rights being meaningful today and in our nation’s future.
Anthony Sanders is the director of IJ’s Center for Judicial Engagement.