Cert Was Petitioned with SCOTUS

[jamesh1467]

https://www.supremecourt.gov/search.asp ... 4-276.html

I figured you all would be talking about this more, but I don't see it on here at all. It's not like this is a petition for the highest court in the land to make a direct attack on our profession or anything. AG's response is forthcoming at the end of the month defending us. Are we leaving it all to them?

This case is basically a direct assault on 8726. It’s hard to see how the Court could side with Crownholm without either dismantling 8726 or gutting it. The drone case in North Carolina filed an Amicus Brief for this case and filed its own cert. They were field on the same day by the same firm. They both came from the Institute for Justice.

Is NSPS aware? We should be filing Amicus's briefs, and it would look better if there was one from NSPS in both cases. Or are people avoiding it intentionally to avoid lending the case legitimacy? This is a forum dedicated to surveyors; if this isn’t being discussed here, where should it be? We knew a cert petition was the next step. Why are we risking that they actually hear this? 5 justices could end our professional licensure by June. You don't risk that.

At the very least, tell me we’ve discussed this with attorneys and determined that filing an amicus wouldn’t be worth it. This whole case is pretty much the definition of impact litigation, and I have no idea how much this was strategized with Project 2025 and stuff to open the floodgates for deregulation. If this had any kind of planning to it at a higher level and isn't just a few guys in the Institute of Justice trying to make a name for themselves, this is a serious problem.

My advice would be to ensure that the justices understand that they cannot narrowly redefine the limits of "speech vs. conduct" without potentially massive ramifications for First Amendment law. The Court has the authority to define this distinction broadly, and if they choose to do so, they could indeed dismantle professional licensure. The key is to frame these cases as shortsighted attacks from attorneys who lack a broader understanding of the consequences, especially if they’re hoping to gain support from conservative justices.

The AG's response will matter too and I get it if you are waiting. But in the meantime, why the silence?

[DWoolley]

[Standby for the "sky is falling" chiding by others, sir.]

Remember the California history of land surveying.i.e. Benson tendencies. Read this forum to make clear the land surveyors do not want to be regulated. This case may be the culmination, proverbial chickens/roost, of the deregulation the land surveying community has indirectly advocated. The sophisticated GIS legions will surely advocate for Crownholm.

To quote Strother Martin as the Captain "Some men you just can't reach. So you get what we had here last week, which is the way he wants it... well, he gets it."

The upside is the laws were passed by the Legislature and the case has already survived an Appellate Court. The ruling at the appellate level gave Crownholm nothing. It will be interesting to see if the Chevron deference case comes into play.

Nothing will save those that do not want to be saved. In the end, all graves go unvisited.

Thanks for the information. Anyone have a friend at Walmart? There are not enough greeter jobs for all of us.

DWoolley

[DWoolley]

The professional land surveying community has been asked to remain silent as the defense counsels in North Carolina and California determine their strategies.

That sounds like good advice to me.

I have attached the appellate decision.

DWoolley

[jamesh1467]

With all due respect. You fight for your right to exist.

This is when it matters. All the other stuff I saw on here about the district court filing and everyone up and arms, the discussion of the appellate arguments. That was discussed way more than this. There was almost nothing in your power to do during those times all we could do was sit back and watch the board/AG fight for us. The circuit court precedent was in our favor for our circuit. This is the only realistic time we are at risk.

The AG attempted to pull the sheets over their head and waived their right to respond to Crownholm's petition to SCOTUS, trying to laugh this off. SCOTUS asked for a response. That means SCOTUS is actually considering taking this up and doesn't agree its a laughable petition. If they actually take this up, its highly likely to be already decided with the current bench we have. You'll just be doing your best to limit the damage from that point on during the actual case.

I told you all they strategically attacked our board to get a circuit split, so they had arguments for SCOTUS. They did multiple things, like pulling it out of the state system and pulling it federal when they had no reason to do it and would have gotten better or a more likely chance at relief and winning the actual case for Crownholm in state court. We are being attacked directly and our board was targeted. This is what impact litigation is. This is how we got civil rights movements. There are decades of planning for this stuff, and they strategically lose cases like ours in appellate when they need to to get arguments to make it more favorable for SCOTUS to take up the case. They teach this stuff at the top law schools and how to do it. This is the one chance you have to fight back. If you don't want to fight, that's on you.

Wait for the AG to respond and coordinate the messaging. Whatever, but you fight for your right to exist. The idea that you would stand idly by and watch this happen....you will never forgive yourself, and you will never forgive the AG for telling you to stay out of it. Do it right, get your messaging straight, fall in line under the AG to support their arguments, and make sure its a good firm that writes your arguments (and get on it because time is short), but you fight for your right to exist......at least if you truly believe that surveyors should exist......what the hell do you all think I was doing on this forum for the last year? Making myself feel better about my shit situation? I could have just gone drinking.

[jamesh1467]

Also, I’m fairly certain that part of their strategy is to keep the land surveying community silent. Their whole thing is that this these licensing restriction's are wasteful. When no one rises up against them, it proves their point that there is no one left beyond the governments that are using these licensing restrictions. I’m pretty sure they are counting on no one opposing them, because it’s pretty easy to fight someone when there are no voices in opposition except one government voice that proves their overall point about there being too much regulation in occupational licensing. The voice of the people matter.

[LS_8750]

Communist subversion in action or just some dingdongs throwing more money at a bad investment?
Interesting either way.
Arm yourself.
You think Clarence Thomas isn't going to notice when his next door neighbor tries to take the Justice's property with a mysiteplan.com map?

Have a little faith, but not too much faith.
Ya never know what bureaucrats are capable of when given license to rock and roll..... Like this below.....

https://www.youtube.com/watch?v=V6CLumsir34

[jamesh1467]

An unfortunate ominous sign today. The conference was set for the 10th after the reply was filed, and it was just rescheduled today to push the discussion and the vote beyond the 10th. This typically happens when there are items being debated or discussed, and one or a few justices are trying to convince the other justices to take the case.

My guess is as follows:

• Alito and Thomas are most likely an automatic yes to anything like this.

• If you look up the law firm that made the petition on the other side, you will see that it is a small firm with one of Kavanaugh's old clerks on staff. So, my guess is that he is in, and she, at the very least, wrote it to be enticing to him, if not in line with his views.

• That leaves one more.

The liberals are most likely out of it, and I doubt Roberts would upset stare decisis by granting a case like this that goes out on a limb from the current law. My guess is that it comes down to Gorsuch and Barrett. I don't know them well enough to predict it.

I debated posting this stuff because I know no one will do anything, and the original intent of all these posts was to inspire action. But I don't know. I'm bored. We also can't do anything anymore but watch. The time to file amicus has passed. So, IDK, more forum content. Enjoy.

[No_Target]

Keep posting please James. We need all the information we can get. I, like you, have my doubts that anything said will force change in our industry. That being said, I would prefer to be informed and these posts help greatly.

[Ric7308]

It is only natural for special interest groups to believe that the rest of the world is as actively engaged in whatever the "special interest" is as the group themselves, when in fact it is usually far different.

It is my understanding that the topic of this case is one which takes considerable backseat to many other social economic events which are occurring in the nation these days and that it is simply a result of priorities on SCOTUS's docket which can, and rightfully so, take much more a precedent than this topic.

[Warren Smith]

Ric,

You're right - SCOTUS (and the state supreme courts) have limited dockets, and will select those topics which are most relevant and impactful - especially where Appellate decisions are in conflict.

[jamesh1467]

It is only natural for special interest groups to believe that the rest of the world is as actively engaged in whatever the "special interest" is as the group themselves, when in fact it is usually far different.

It is my understanding that the topic of this case is one which takes considerable backseat to many other social economic events which are occurring in the nation these days and that it is simply a result of priorities on SCOTUS's docket which can, and rightfully so, take much more a precedent than this topic.

Again. I just have to laugh because it comes from the idea that you think I don't know that and that you think I am not tracking pretty much every granted case at SCOTUS right now as a hobby.

One of my biggest concerns is how our case ties into those political issues. So much so that I deleted a post over thanksgiving that explained how it tied into those issues because I was concerned about voicing a potential political strategy that could follow me long-term once I realized the time for filing amicus's had passed, and it wouldn't do anything anyway.

I mean, for crying out loud, the whole line of precedent that started these litigation attacks on surveying comes from an abortion case. This isn't about surveying. Its about what they can use surveying for to accomplish other political goals. Thats why this level is the only one that matters. The other levels of the courts do not. This is the political court and this is a political case.

Did you see me complaining when it seemed like you had everything under control at the other court levels and in the initial stages of their cert petition? No. Because you had it under control, and in fact, you and the AG did a great job. You don't have it under control anymore. This case is seriously at risk here for the first time. This isn't about the law anymore; its about politics, and you have no idea what will happen. Because I don't either.

[jamesh1467]

Ric,

You're right - SCOTUS (and the state supreme courts) have limited dockets, and will select those topics which are most relevant and impactful - especially where Appellate decisions are in conflict.

I wanted to clarify a couple of things. A lot of people think I just make comments willy-nilly when they are pretty well-researched and informed.

So 1) The Institute of Justice is claiming appellate decisions are in conflict. The Supreme Court will only hear 3 different types of cases per SCOTUS's rules of the court, rule 10 (a):

a United States court of appeals has entered a decision in confict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conficts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

This is the most common type of case they hear and is often called a circuit split. There are 2 other reasons they hear cases within rule 10, plus original jurisdiction cases, but generally speaking, circuit splits are the most common way to get a case in front of SCOTUS. If you want to get in front of SCOTUS, either have something that is really really politically interesting or make a circuit split. When you do both, you have a pretty good shot of the court finally settling it for you.

Since the 2018 decision (National Institute of Family & Life Advocates v. Becerra) when the Supreme Court opened the door to "speech vs conduct," in an abortion case about the regulation of clinics regarding abortion rights stating what state governments could and could not force doctors to do things under their licensing requirements for abortion, its pretty clear this advocacy group saw an opportunity to take advantage of that on a much wider scale. Then, they went on a bender to try and apply the new standards that were created in that case to allow for the deregulation of occupational licenses in general. To try and create new laws outside of the legislative process. They picked the most likely profession to be seen as misunderstood and over-regulated(us), then he went around the United States for 5 years to try and get circuit splits to bring the issue back to the Supreme Court to try and get the Supreme Court to create a new precedent/legal test that allows for the courts to have the authority to deregulate occupational licenses without having to go to the legislature. To blatantly overrule state legislature. The Supreme Court loves that type of crap, and these types of cases that allow them to waive their power stick around because its something completely within their ability to show how powerful they are. They have pretty much completely free reign to define what the First Amendment means and how it gets applied, so anytime they get to use their power in low-impact ways, they love it. It goes back to that federalist paper, its them exercising their ambition on the legislative branches and the states.

In 2020, this group got a big win in the 5th circuit with a case called Vizaline, L.L.C. v. Tracy, with the Mississippi licensing board for surveying. The district court dismissed the case because they thought it was ridiculous. But on appeal, the 5th Circuit claimed that the 2018 SCOTUS decision did open the door on "speech vs conduct" across multiple professions and that the district court should have heard the case. That was all that the attorney and that advocacy group needed. They just needed one circuit to open the door and say SCOTUS was right in that they created a new legal standard in 2018. Then they went around to 2 other circuits and purposely lost to create a circuit split with that 2020 case. That is what has been going on.

In 2021, they went to a relatively centrist state in North Carolina. They chose the most likely thing that needs to be deregulated in our profession because technology is taking over, and we need a better system for drone-created photogrammetry. Then, they challenged it to try and show that surveying licenses were necessarily burdensome with emerging technology. They knew they would probably lose, but it didn't matter whether they won or lost. Either way, they won. They either got 4th circuit to confirm the new law, or they got a circuit split to take it to SCOTUS.

In 2022, it was kind of clear they were going to lose/not get a favorable result in the 4th. So, they initiated an even more ridiculous action in the most liberal state (California) to enhance the perceived circuit split. But instead of choosing something relatively in the center of our profession that should debatably be deregulated, they chose the most obvious end of our profession that they knew they would lose and that they knew would make a circuit split.

So now they have the following going into SCOTUS:

• They claim to apply the SCOTUS-created laws about a conservative-leaning political issue that was made in 2018 when the court was seen as more centrist in these cases. Basically, they are claiming that they are following the intent of SCOTUS from 2018 when everyone else isn't on a political subject that the current justices get political cover in agreeing with because a centrist court made it.

• They then got the most conservative circuit to agree that their interpretation of the law that SCOTUS created in 2018 was correctly applied in 2020.

• They got a state and a circuit that is perceived to be in the center to state that they disagreed with SCOTUS's centrist-made (even though its conservative-leaning) law on something that is plausibly up for deregulation

• They got a state and a circuit that is perceived to be on the left to state that they disagreed with SCOTUS's centrist-made (even though its conservative-leaning) law on something that should almost certainly not be up for deregulation

So basically, they have framed this whole thing as though conservatives are following a centrist-made law on a conservative-leaning issue. While in comparison, the rest of the country disagrees with the court's decisions in 2018 and is not following the precedent SCOTUS made in 2018. As a conservative court, what would you do? Would you like to hear that your precedent and your decisions were not being followed? Especially when they could be considered centrist decisions?

So 2) Now will SCOTUS take this? Its up in the air. They are going to know its impact litigation. They see that stuff all the time on all different types of subjects. They are going to know that its a made up. However, impact litigation works because advocacy groups give SCOTUS coverage with years of precedents like this to allow them to change the law without it seeming super political. (its kind of part of whole facade of the court, they do things that are political and claim they only do it after years of others doing political actions have already occurred, claiming they are just following the intent of the people, that's basically what precedent is) This advocacy group did the necessary work to create the precedent for SCOTUS to take this up. They went out and spent the money to put the precedents on the books for SCOTUS to consider it. If SCOTUS did not seriously consider these cases, they would set a precedent that advocacy groups cannot change the laws like this. SCOTUS wants these types of impact litigation subjects to come up through the courts. (again, this is where some of their power in our system of government comes from) They want people to embolden their power structure compared to the other branches and the states. They will show they are considering this case, and you won't know what will happen until the final decision to make sure people keep feeding these types of impact litigation cases. We can only peer into it and decipher what they think. Anyone who says otherwise is either uninformed or refuses to accept reality. SCOTUS wants these types of cases brought to them. They will always consider them and show they are considering them.

3) In trying to decifer what they are thinking, the most concerning part of this was 2 items;

the first was that outsiders fielded amici in the petition stage. This does happen, but when you combine that with the setup the Institute of Justice was doing over the past 5 years, it is a little concerning because it gives SCOTUS the impression that its not just a single actor that cares about this case. It indicates that there are other advocacy groups that would care enough about the subject that SCOTUS should get involved. Hence, I suggested that someone on the other side file an amicus to confirm that this case is still just a ridiculous notion. You can debate with me about whether or not that would just pop the subject as more intriguing in the eyes of the justices. I think it won't, and I think a good amicus stating how ridiculous and how much this would unsettle current law would have been a good addition as they discussed granting cert. But either way, it was a concerning sign.

The second concerning part was what just happened. They pushed the case discussion on our case for Tictok. They pushed the actual discussion around our case because they knew they had to take up the Tictok case over the next month due to its national importance. And you might say "oh well they did that for everyone" and I checked before I made that last post and they didn't. Ironically one case number away, 24-275 (Donte Parrish, Petitioner v. United States) was on the same path as we were for conference on the 10th. There was also one other that I checked in the 24-300's range, and I cannot remember the exact number. These all followed the same procedures as our case, roughly the same timelines for petitions and replies and they are still on the docket for the 10th even with the tictok case on the books for oral arguments on the 10th. Why? Those cases are almost certainly getting denied. Why did they push ours compared to those other ones? I infer, as I stated, that its because they actually want to consider our case. They want to discuss it. Again, I really think we wanted an amicus in there to have our voice heard as part of that discussion.

Now, there are a couple of other things going on here. 1) This goes in our favor. Unlike some other impact litigation items, there is really nothing here that forces the court to take the case. If SCOTUS doesn't take the case, its not like not acting on this particular case will potentially create all kinds of problems within the circuits. This is a 100% made-up problem of law by the Institute of Justice to allow the conservative justices on the court to implement new laws that are in line with their beliefs. Its not some huge legal issue that only SCOTUS can solve and if they don't solve it, our system of government might start to get all messed up. The 5th didn't make some binding precedent that will filter down to screw up all kinds of other areas of law and cause all kinds of issues of circuit splits. That said, even if they don't take up the case, these precedents are still just sitting out there waiting to be used in the future. That's why the 9th decided on our Crownholm case the way it did. They knew that these guys would use it if they made it some kind of major precedent. The 9th circuit judge who decided the case for us was floated for a SCOTUS seat under past Democratic administrations. She knew what they were doing, and she and the AG did their job right to keep them from using this BS as a major circuit split. That said, this stuff is still floating out there. It will stay floating out there. SCOTUS can take this or not take this to make new laws right now, but unless the Insitute of Justice sets its sights on something else and lets this die, it will be just a matter of time until they do enough of these cases to make enough of a precedent issue between the circuits that SCOTUS will be forced to act. SCOTUS made the problem in 2018. They will eventually need to solve the problem they created in 2018 if the Insitute of Justice makes enough noise about it. Its not just going away.

So 2) Why would they care about surveying like this? Well they don't. They care about abortion. They care about being able to regulate doctors and other professions to bring the reigns in on monopolistic competition. But you can't just directly attack doctors or those larger professions. They have tons and tons of money to fight. If you go after them directly, they will come out right back at you, and they will come out with force. So you attack them from the side. You go to a failing profession like surveying and get the changes you want to be made. You get the precedent on the books. Then when you come after doctors or engineers or whatever, you point to all this stuff you are doing with surveying and say "but you let us do it with surveyors".

So just again, there is more going on here than I think you all know. This is meant to play into a bigger game than most land surveyors understand. Possibly even more than has been briefed within the board. If cert is granted, make sure to make some noise about the true intentions here. Because they do go well beyond surveying. Every profession will end up being affected. Thats the point of this. When I was discussing it with someone, we were kind of debating why they chose to make the broad statements they made in their petition cert. They could have more narrowly defined their petition question and probably had a better shot at getting the case heard by SCOTUS to win the cases that were specifically about surveying. The Institute of Justice chose to keep their question broad; it was a choice. They are going for a big splash that would jump beyond surveying. They want a wide-ranging precedent that goes beyond surveying. That's the point of this. Surveying is just in the crosshairs because it was probably the easiest profession for the Institute of Justice to put in the crosshairs. (again, I kind of have a problem with that and how some people put us in that position, but its a different conversation) But that doesn't mean surveying won't be left holding the bag at the end of the day if this goes the wrong way.

If anything, hopefully, calling out the real strategy here will help others understand the need to fight it. You really do need to fight this case. The more noise that gets made if the cert is granted, the better because the Institute of Justice does not get this done if other professions catch onto what is happening. I think this only really happens if the whole thing flies under the radar, as it is just another minor SCOTUS case about surveying. Its more than that. It has the potential to fundamentally change the trajectory of our society with the advent of AI and occupational licenses. That is what makes it intriguing to everyone outside of surveying. There are speculative avenues this could go down that would get tech involved and limit politicians' ability to regulate AI. It could be big, and it could become the basis for much more wide-ranging implications 10 years from now that are the center of political debates about AI, how AI is taking jobs, and how occupational licenses tie into all that. Just like everything that happens with SCOTUS. Its a much more valid case for SCOTUS to take up than I think a lot of common surveyors realize.

As a reminder, the Institute of Justice filed an amicus in the Tictok case this month, also in the petition stage. (technically, it was a preliminary injunction) They are much more active in other issues than just this one and do this for a living. They brought surveying into their playing field and spent large amounts of time and money to do it. This has been 5 to 7 years in the making. Don't underestimate your adversary. Its their playing field, not yours.

Pretty much everything at the SCOTUS level is about advocacy. You have to advocate on the other side just like the Institute of Justice is doing. The idea that we didn't even try to advocate when it mattered whether or not we advocated? Come on, guys. Get it together. At least claim you chose the strategy you chose for how you were advocating and choosing not to file an amicus. Not just blindly following the government, which has absolutely no place in advocacy. Is it not the job of organizations like the CLSA to advocate? Who is it, then? Who do I need to go get to advocate for me? Do you really expect me to trust the government to advocate on my behalf? As if they don't have their own motives for what they say in their briefs.

Also, I know that the National Institute of Family and Life Advocates v. Becerra was 5 to 4. But it was basically with the same court that decided Obergefell v. Hodges minus the swap of Scalia for Gorsuch. (a swap of a justice who was probably one of the most far-right for someone who is somewhat right/center) I realistically think it was a court that could have gone either direction on multiple issues until Kennedy retired. You can claim it was not centrist for that 2018 decision, but again, everything at that level is political. Spin what I say here however you want with your own views, this is how I see it trying to be as impartial as I can and only discussing it through a context about surveying. But no one can ever be completely impartial.

[DWoolley]

...

What do you see as the worst case land surveying scenario?

Land surveyors are licensed by state law, not federal law. Why couldn't the states continue to license land surveyors?

DWoolley

[Jim Frame]

If SCOTUS were to find that regulation of professional activities is unconstitutional, then land surveying would suddenly become wide open to anyone. But the court would have to paint with a mighty broad brush to reach that conclusion. If, on the other hand, SCOTUS were to find that the regulation of site plan preparation is a violation of the 1st Amendment, that would be a narrowing of our protected purview (and would give a green light to Crownholm), but not one with a lot of economic impact upon us. (At least not in my business model.)

[jamesh1467]

...

What do you see as the worst case land surveying scenario?

Land surveyors are licensed by state law, not federal law. Why couldn't the states continue to license land surveyors?

DWoolley

The First Amendment supersedes states rights to license surveyors. It supersedes every law. Its an amendment to the Constitution. The highest law in the land.

They are asking the court to say that the First Amendment puts limits on states' rights to provide occupational licenses. That 130 years of history was potentially invalid because we need to change the way we see the First Amendment and that "speech" protected under the First Amendment can be extended to what was previously considered "conduct" of licensed professionals that is the basis for all of our occupational licenses. Standard of Care, etc. All of our "conduct" as professionals that previously fell under state rights to regulate is "speech" that no one can regulate. Or at least the First Amendment limits the ability of the state to regulate.

To try and simplify it a little more:
In 2018, SCOTUS said that the First Amendment limits Californians' ability to force doctors to support abortion through certain requirements they make in professional licensure laws. Essentially, they said that at some point, the state's ability to regulate our conduct through our professional licenses comes into conflict with our basic rights as citizens under the First Amendment.

These guys flipped the argument. They said, "Well, if doctors still get their speech protected even though they were regulated through methods that were previously considered 'conduct', why do the states still get to regulate the 'conduct' and prevent common people from doing a certain type of work that could be considered the 'speech' of a common lay person?" They are asking for the court to draw the line where we know the difference between "speech" that every citizen gets protections from the government and "conduct" that the states have the right to regulate through occupational licenses. The answer previously at the lower courts except for the 5th circuit was basically “this is what we have always done for 130 years, why should we change it”. Which is a pretty valid response for lower courts, but SCOTUS will change it if they want to do it.

Its a little more complicated than that, but that's the gist of it. Hopefully, my simplification is understandable.

As a worst-case scenario, I think things are coming with AI that have certain people wanting occupational licenses abolished in general. Ten to twenty years from now, I think there will be many professions will be replaced by AI by 50% to 80%. Most of our jobs will be to control AI's and make sure humans are still in charge. But there are those who will want to control all of those AIs that don't have licenses, and occupational licenses will get in their way. Some people will want them abolished so they can control all the AI's themselves. Occupational licenses will prevent that. Its just basic power struggles. Also, there's some stuff here about the administrative state getting too big with AI that I don't want to speculate too much about in a written forum that the court might want to strip the power of states to regulate occupational licenses long term. Or again, at least severely limit the states rights to do it.

The reality is that we need something somewhere in the middle. The state should not be able to force professionals to do something against their beliefs or that every other citizen would get protection from as "speech" when they are regulated under "conduct" for their professional licensure laws, and there is no way choosing which monument to hold to make a correct boundary determination should somehow be construed as "speech" that needs to be protected under the First Amendment. But we need to debate all that, and we need to debate where that line should be, don't we?

But again, SCOTUS made the problem in 2018. They extended First Amendment protections into professional licensure laws that had never been done before. These guys saw the opportunity to take advantage of that, and they took it. SCOTUS created the problem, and only SCOTUS can fix it. Until SCOTUS takes up the question, it will just remain unanswered for future debate. If they do take this, they will probably make some kind of legal test for courts to draw the line and do a judicial review of individual state statutes on a case-by-case basis. The question is what that test will be. I realistically have no idea. My guess is that it claws back some of our ability to protect things like photogrammetry and maintains the state's ability to regulate things like boundaries. It would be a legal test that allows courts to make that judgment during judicial review. That would be the practical thing. But again, I have no idea. No one does. That's why these things end up at SCOTUS, and you have to advocate for your position and get SCOTUS to decide in your favor. The goal is to get SCOTUS to define this legal test in your favor, and typically, the people who bring the case have some pretty decent leverage if the petition is granted to make that happen—that's why they bring impact litigation. Then, they have a better shot at controlling the law.

Whatever the test SCOTUS comes up with to define "speech vs conduct" will be remanded back down, and then the lower courts will apply it to state statutes. Since we have the active case, that test should be directly applied to 8726, which was previously challenged with Crownholm. Again, I might be speculating too much about that part. But I know our case will likely be remanded and returned to be reheard. Its not like SCOTUS will decide our case for us. They will just tell the lower courts how they want it decided in line with how they determine the First Amendment should be applied and send it back down for the lower courts to decide it. The Institute of Justice will have to either drop the case or we have to work it back through the court system again for our individual situation under this new legal standard that SCOTUS makes. 8726 will get challenged again, just as it was challenged in Crownholm previously with new rules that potentially don't go in our favor. That said, there's at least a decent chance that the Institute of Justice will walk away once it gets remanded and 8726 gets out Scot-free because the Institute of Justice realistically could care less about surveying. They are after bigger fish than us, and they want the SCOTUS precedent. But there is nothing saying that Crownholm and the Institute of Justice have to do that. They can put their boots on our necks all the way until 8726 is stripped clean if they win with SCOTUS. We have the active case, and it will be forcibly remanded.

I mean, there's a rare option once cert is granted that SCOTUS affirms the Crownholm decision, which would be a big win for us because then nothing like Crownhom could ever happen again, but its doubtful. They wouldn't grant cert if they didn't want to create the legal test between "speech vs conduct" for themselves. Again, affirming is a precedent within itself. Its much easier to deny cert if you just intend to affirm and keep your options open for future cases unless you want to make a statement about why you are affirming. SCOTUS doesn't ever have to grant cert and they wouldn't want to limit their future options on this subject for no reason. They get to speak when they want to speak.

Also, all the precedents were made in land surveying. I don't think they just choose another profession and waste all that time and money. Even if they get denied here, I don't think they will go away. They will just change tactics and try something else. Maybe it's directly related to surveying, or maybe not, but I am pretty sure we are going to have to keep fighting. I doubt its over, even if we get cert denied here. Until we get a SCOTUS decision that ties up the problem they made in 2018, it will always be an open-ended question, and we will probably always be a part of it now. Its not necessarily a bad thing if SCOTUS takes this up to finally give us an answer. I would just really like a centrist court to be the one that does it so we get a little bit more of a predictable outcome. I really could see this court saying that "speech" protections do apply well into what we consider "conduct" right now, which causes some pretty drastic changes in the next decade. A conservative advocacy group brought this to a conservative court for a reason. Plus, they are out of all the big-ticket stuff they have been wanting to do since they got control of the court. I'm pretty sure they are a little bit on the hunt for new big-ticket topics. But again, that's my personal opinion.

I am just going to say it: Most surveyors I know are pretty conservative. Voicing your opinion will matter. That is why I am trying to get you all to voice it. I think the timing of all this with the emergence of AI is not coincidental. I think certain people are looking for avenues forward, and this was one of the ones that was chosen. I think there are multiple paths in consideration for how influential organizations will control AI, and this is not the only path they are pursuing. But the timing lines up with the emergence of AI and when this all started. It lines up really well.

Anyway, that's what's going on with this subject, and personally, I feel that the 2018 decision more than protected my individual rights for "speech" that keeps the board from telling me what I can say as a PLS, and I don't believe that everyday common people need some brand new "speech" privileges that I currently enjoy by giving up some of my liberties and allowing the board to regulate some of my "conduct" via the PLS. The law is just fine right now the way it is if you ask me, and I would really appreciate it if you started advocating on my behalf to keep it that way. I pay my dues and everything.

[DWoolley]

Interesting discussion.

I believe there are limitations to free speech that prohibit actively encouraging illegal actions. The premise behind licensure is to determine minimum competence to protect the public from bad practitioners. All 50 states license land surveyors. Is it your contention that a free speech ruling would allow site plans by anyone and negate occupational licensure? If so, wouldn't that eliminate all licensure in a single ruling? If not, which licenses would get eliminated and how would that be determined? I do not think the Supreme Court has not acted either way concerning AI. California recently passed SB942 concerning AI "discrimination".

There has been pressure to eliminate occupational licenses. Those that favor eliminating licensure believe licenses serve to create a class of folks that act to create exclusiveness within the class. One theory is in creating the class they violate anti-trust laws. One example I have seen is the cost to get a license to cut hair was estimated at $15,000. This cost prevents the trailer park folks from moving up in society. The same dynamic could be extended to the Harvard crowd being prevented from owning a second house in the Hamptons because their application was rejected.

I do not know enough to doubt you or to challenge the ideas. I am sincere in asking the questions. This conversation is a little over my head, but I am quite curious.

DWoolley

[jamesh1467]

It would negate occupational licensing, yes. That is the point of this. But SCOTUS is not crazy enough to do it one fell swoop. (I hope) They will put a legal test in that the lower courts will use to chip away at it slowly. Again, the way they get eliminated will be whatever SCOTUS decides is the legal test for determining how First Amendment protections apply to occupational licenses. I don’t know what that is. It has to be debated, and smarter people than I am on these subjects will weigh in.

There are many, many limitations to free speech that most people are not aware of. I can use the Obscenity test within the First Amendment as an example:
In 1973, Marvin Miller, a California mail-order business owner, was arrested and charged with violating a state law that prohibited the distribution of obscene material. Miller mass-mailed a brochure with graphic images of sexual activity to many people without their consent.

Let's ask the following question: Should you be allowed to blindly mail and distribute graphic materials to anyone on a mailing list? Is that your right to do that as protected speech? Or does the state have the right to punish you when you push your speech out that could be seen as offensive to others? Where does the line exist between when state governments can protect others from your speech even though it “abridges” your speech? When can the state implement laws to protect others from your individual rights because your actions exercising your free speech rights start to infringe on the individual free speech rights of other citizens? When can the state step in and limit your speech for the good of other citizens?

SCOTUS answered by saying the state has the right to limit speech publicly for obscene material as long as it follows the following guidelines:
(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . .
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

SCOTUS creates this test, and then individual circuit and district courts (as well as state courts) have the power to apply that “test” or “rule” to every statute a legislature creates. They then strike down state or federal statutes in line with whatever SCOTUS comes up with. Legislatures hands get tied for what laws they can make by whatever SCOTUS determines the First Amendment was supposed to say about these subjects. In this case, the point would be for SCOTUS to say that occupational licensing laws need to be paired back.

So, in our case, let's say SCOTUS thinks that First Amendment protections only apply to occupational licensure laws when they would reasonably apply to other citizens. Everything else is left to the states as it has already been left to the states for the last 130 years. They would then say that in their opinion. Or, honestly, they wouldn’t even take the case because that’s basically what the current 2018 case says now.

But lets say the SCOTUS wants to put restrictions on what kinds of laws the states could do for occupational licenses. Let's say they want to limit occupational licenses because this is a novel issue that could play a larger role in the coming years. They would then make a test for those kinds of standards in line with what they did with the Miller test. We also get Strict Scrutiny vs Rational Basis and all that coming into play. There is a lot of stuff that happens with the First Amendment. I don’t want to speculate too much about what exactly the legal test is that they could come up with. But essentially, they would make a standard just like the Miller test about what is within the states’ rights to do for occupational licensing vs. what is protected under free speech rights. Again, conservative courts are typically all about implementing more individual protections and pushing the constitutional rights of individuals so that the courts can say “f-u” to legislatures when they limit our freedoms. Liberal courts typically side with legislatures when gray areas of constitutional law come up. That’s how people got conservatives to side with liberal cases like Obergefell v. Hodges and Roe v. Wade. While those cases ended with political outcomes some did not like, the reason that they did was that they also protected you from the legislatures implementing crazy laws like forcing implants on your internal organs to monitor every citizen’s health. They enhanced individual freedoms just like this one. The only thing that is really changing with the conservative court is that the political outcomes are different and the impact litigation for the subjects that come up in front of the court is much less liberal and a lot more conservative for subjects like this one. Hence how we got targeted.

Again, everything is opinion and everything is potentially speech, right? Everything that comes out of our mouths should have the potential to be protected under the First Amendment unless governments, on behalf of other citizens, have another compelling interest to limit those protections. Our opinions are just “professional,” and we have proved that we have a certain level of knowledge, training, and ethics to make better decisions or have better opinions on certain subjects than others. So we limit the ability of others to have those professional opinions that we do. Or at least to use those opinions in ways that only professionals should do because there is a greater common good for all other citizens when people voice those opinions. Like the structure of a building for example. Sure I can have my own opinion of whether or not a beam is the right size to hold up a skyscraper, but what happens if my opinion is wrong? Why does my opinion of that beam’s size need to be more important than the lives of the thousand or so people in that skyscraper? I think most people would say that it doesn’t right? We need qualified people choosing the size of that beam so that people don’t die in skyscrapers right? But what happens when AI can pick that beam correctly 99% of the time? What happens when even some of the dumbest everyday people on certain subjects can still come to the right answer because AI can do it for us? Should we still have these occupational licenses?

They are using surveying as an example for all of this because a lot of everyday people can come to the answers we come to and get close, right? GIS and modern technology? People get close, right? Sure, we can debate “close enough” for what things are used for, but a lot of people see GIS and all that and go, “Why do I need a surveyor?” That’s about to compound in a lot of other professions with AI. So, we are being used as an example.

What you have to remember with occupational licensing is that typically, the push for licensing comes from some really bad tragedies with up-and-coming technology. Benson in surveying, Mulholland in engineering, etc. Those disasters all happened when surveying and engineering were coming into their prime.

What is about to come into its prime over the next few years? And how likely is it that we will get a tragedy as we learn how to use this brand-new technology? When that happens, it will be a cyber type of thing that will go to Congress and cross state lines. It will probably need to be regulated at the federal level, not the states. These guys want to lock in the ability to keep Congress from doing those things or at least controlling Congress. Not to mention that, again, many professions will be able to be automated by AI to a place where an everyday person could make a lot of the specialized judgments that we make today, and occupational licensing will keep people out.

Anti-trust is low level. This would supersede any anti-trust stuff. Antitrust does not have a clear constitutional handle. It was derived from the commerce clause. It’s a derivative right or a derivative law that any legislature can do with what they please. Legislatures can do whatever they want within Anti-trust. Whereas the first amendment clearly has a constitutional handle, and no one would debate it. If you get First Amendment protections into law via the Supreme Court, it becomes pretty hard for Congress or legislators to implement occupational rights without going back to the Supreme Court or, of course, another constitutional amendment that would overrule the Supreme Court.

The problem with occupational licensing is that most of the enabling statutes come from legislatures with the same derivative level of law. It’s pretty hard for courts to overrule them with anti-trust laws that are seen as relatively the same weight as the enabling statutes for occupational licensing. The goal here is to supersede all the legislatures. Both Congress and state legislatures to make it harder for occupational licensing to exist. Or at least severely limit what they can do. Again, that’s why they are spending so much time and money doing this. It would be a big deal and a big power struggle. Right now, the court’s hands are tied by legislation when determining whether or not an occupational license should exist. They have no power or voice compared to the legislatures on this subject. This legal test would give the courts power over the legislatures on occupational licensing. To put a check on legislatures or state and federal regulators for occupational licensing without going back to the Supreme Court.

You guys get to keep asking me these questions until the first of the year. After that, I am getting off. But I do want you all to get your heads out of your behinds and start fighting this instead of leaving it to the government. This is not something you leave to the government. This is a power struggle between governments where nongovernmental opinions on how the government should be run matter.

[jamesh1467]

Hines v. Pardue

Google the name, read. It might make your blood boil.

Texas is set to petition by Feb 23. That's what the delays were about. They will probably combine all 3. To quote a supplemental brief to the 360 drone case:

we are informed that Dr. Hines does not anticipate waiving his response to Texas’s petition for certiorari. (Like petitioners here, Dr. Hines is represented by the Institute for Justice.) Nor does he anticipate seeking an extension of time to file his brief responding to that petition. Texas’s petition thus will almost certainly be eligible for conference well before the end of this Term

They kind of have to hear the Texas petition. I mean it depends on what is in the petition, but I think they kind of have to hear it. An appellate court actually struck down state statutes. That means states' rights in one state are potentially not being fairly treated compared to other states. They kind of have to hear that kind of case. I mean, they don't have to, but part of their job is to keep the republic intact. So you cant have some states be subject to some rules and have other states not be subject to to the same rules.

Of course, there is still a chance they won't hear this, especially with the administration, lets just say.....likely posing a lot of constitutional questions lately that need the court's guidance or input. There's still a chance they won't care enough to hear this. Its still not a mainstream issue and they might have a lot on their plate. But yeah.To summarize the 5th circuits recent opinion on occupational licensing and its role in the First Amendment:

All this stuff you regulate under conduct doesn't matter. We agree that all these actions Dr. Hines did prior to sending the email were "conduct" but the email where he informed the patient of his "conduct" determinations was speech! So its speech! Screw all that stuff before his speech about conduct that informed his speech that has been determined for decades, if not a century, to be in the public's best interest to regulate! Everything is speech!!

Its like saying a map is speech because its written down. The professional integrity of the content on the map does not matter, and everyone should have the right to freely file maps under the First Amendment because the map constitutes "speech," no matter what its content. Going back to my building example. Its like saying that the construction plan the structural engineer created is protected speech because the plan is a form of speech written down on paper even though all the work the structural engineer did to determine what needed to go on that plan to keep the skyscraper safe was hours and hours of "conduct". Its ridiculous. How the hell is the structural engineer supposed to communicate the "conduct"? They are supposed to build the skyscraper themselves? Is math opinion? Is math "speech"? God, where do we even go from there? Are the correct answers from math for doing structural calculations protected speech simply because they are written down? Can you never deny a building permit even if the entire basis of the structural design, all the beams, girders, columns, footings, everything, is simply a piece of paper submitted to the building department that says 2+2=5 because it came in on a piece of paper that could be construed as potential speech? That's the implication here. A building department couldn't deny an application like that with those structural calculations for a freaking skyscraper just because the math was communicated on paper!!!! Its nuts. Is the construction plan "art" now? Is a survey map?

Let's not even get into how they used intermediate scrutiny. AS AN APPELLATE COURT, THEY TORE APART AN EXPERT WITNESS TO MAKE THEIR ARGUMENTS!!!! Its not done. Not typically. Its a fact-based vs law-based thing. Witness testimony is typically about facts. Appellate courts decide decisions of law. The two rarely line up that an appellate court should be actually disputing the facts that were presented from the lower courts. What were they supposed to go out and purposely harm animals to prove their point that intermediate scrutiny was met??? Sorry, 5th circuit, you are right, our mistake. We need to see more animals die or get injured before we trust our expert professionals. Our mistake. We will just blatantly ignore when THE LEGISLATURE PUT IT INTO LAW THAT THEY TRUSTED THE PROFESSIONALS ON THIS SUBJECT AND PASSED REGULATIONS SAYING SO!!!! and do more work to purposely harm animals so we can prove our point to you, the almighty and powerful 5th circuit, who passes all judgments.

Someone get me a taste of the 5th circuit's loony juice. I could use a good time. I get its a negotiating tool and you come in with the most extreme and negotiate down. But jezz, I thought the circuits had more integrity than this. Should have known, right? But again....if you want to blatantly force SCOTUS to act.....yeah this will probably do it. Freaking nuts. Anyways. I was just kind of pissed after finding out about this one. I get I am being dramatic about the structural stuff, and I know there would be additional court cases that would hopefully stop that kind of thing....but I don't think I'm being that dramatic. Thats whats implied with the decision. Occupational licensing through "conduct" is essentially negated if that "conduct" in any way is communicated with "speech". Its that extreme. I'm not being dramatic with the intermediate scrutiny stuff. That's pretty much exactly what they said. Its nuts. Kangaroo courts. Texas didn't have a chance in hell.


Hopefully, this is so crazy that it actually offends SCOTUS that a circuit would twist its First Amendment Laws like this. It's just bonkers what they did and the rational the used. It really is.

[Ric7308]

The Hines litigation has been around for quite some time now and is on many people's radar. It is my understanding that the Feb 23 date is the deadline afforded for the extension to file a brief and not necessarily the "cause of the delays" but no one really knows but the justices. I do know that many other petitions were rescheduled when SCOTUS essentially erased their slate a couple weeks ago, and many of those were not associated with the same topics of contention.

The Hines case is an interesting one and from my standpoint, I can see both sides. Texas has language which allows medical doctors to interact with humans entirely from the virtual standpoint while requiring vets to initially perform a physical examination of any animal patients. Appears to be inconsistent but it is reasonable to understand that humans have a greater capacity to communicate their pain, suffering, symptoms, etc. in a virtual world while animals may not or the vet may not be fully able to examine the animal without being in its physical presence. However, Texas could simply be arguing that and the fact that the Board was simply following its state legislative authority. The fact that the litigation has gone on for many years and the rulings have swapped back and forth has not done it any favors. Time will tell if this has any impact on other licensing regulatory cases.

[PLS7393]

Do I see a new section in the works of the PLS Act?
Sect. 8762.99 will read: " All surveys will note: This map was prepared by Artificial Intelligence (AI) "

[jamesh1467]

The Hines litigation has been around for quite some time now and is on many people's radar. It is my understanding that the Feb 23 date is the deadline afforded for the extension to file a brief and not necessarily the "cause of the delays" but no one really knows but the justices. I do know that many other petitions were rescheduled when SCOTUS essentially erased their slate a couple weeks ago, and many of those were not associated with the same topics of contention.

The Hines case is an interesting one and from my standpoint, I can see both sides. Texas has language which allows medical doctors to interact with humans entirely from the virtual standpoint while requiring vets to initially perform a physical examination of any animal patients. Appears to be inconsistent but it is reasonable to understand that humans have a greater capacity to communicate their pain, suffering, symptoms, etc. in a virtual world while animals may not or the vet may not be fully able to examine the animal without being in its physical presence. However, Texas could simply be arguing that and the fact that the Board was simply following its state legislative authority. The fact that the litigation has gone on for many years and the rulings have swapped back and forth has not done it any favors. Time will tell if this has any impact on other licensing regulatory cases.

I'll stop commenting on the "cause of delays." I know the court does whatever it wants, and no one really knows. I was just pretty concerned that no one seemed to be concerned about what SCOTUS was doing after they didn't just laugh off the initial petition? Like WTF. Be concerned.

I don't see it being the court's place to do any of this. I understand a reasonable level of scrutiny from the courts, but this was not reasonable. Not in my opinion. This was the 5th being the 5th. I know they are nuts. Everyone basically does. I just didn't know they did exactly what I was warning they could do with Crownholm in another case. No wonder these guys were so happy.

This whole thing is an incredibly complex issue that, for years, seems like the courts simply stayed out of it and deferred to legislatures because it is too complicated for them to realistically get involved. Its an incredibly slippery slope to open up these laws to constitutional scrutiny at anything beyond a very high level that I do not think it can be contained or controlled without large impacts or undermining of societal norms. Well, beyond issues of surveying or professional licenses and into issues of undermining basic public welfare. I have described a few extreme ones, but there are also less extreme ones that could potentially do just as much damage. The concern is the velocity or speed of the changes and how fast they seem to be happening. In my opinion, SCOTUS will not be able to keep a handle on it once they open the can of worms. Ask me that again in 10 or 20 years. But right now. Yeah.

Do I see a new section in the works of the PLS Act?
Sect. 8762.99 will read: " All surveys will note: This map was prepared by Artificial Intelligence (AI) "

Not sure if this was a joke or not about the robots taking over. But the note discussion is happening, and it is a lot more complicated than you think about forcing a note to be added when using AI. Let me ask you the question: How much of it was prepared by AI to trigger that note? What's the threshold for that note? 5% 10%? 50%? 80%? If you use AI to write an email and a decision from that email conversation somehow makes it onto the map, but you didn't put a note on there, are you in violation of the act?

Why is your stamp even needed at 90%? Isn't it because you are liable? Whats the point of the note if you arent liable for your own work? Isn't the work AI does the same as a subordinate? Isn't it still your responsibility? So doesn't diminishing your responsibility by putting a disclaimer on the professional work of a license diminish the authority of that professional license? Then aren't these people bringing these cases right to bring these cases? Isn't that basically their underlying argument, that our licenses are monopolies and nothing more? We will never realistically use our professional judgment anymore and its worthwhile to remove occupational licenses?

Then, what is the definition of AI? Because your Data Collector might have some minor level statistical or machine learning algorithms in it soon.

The world is what it is. The note is only useful as a protectionist idea to keep people from adopting AI. To discourage people with professional licenses from advancing the profession into AI. That would be its main outcome. It would never be realistically enforced. Its basically a symbolism-only piece of legislation. I'm not pro "AI note" legislation, but I am also not in a position to actually influence its adoption, and I know there will be some that like that idea. Protectionism is popular right now and maybe that's for a reason, I'm not saying that I am right to be against it. Just that from my outlook I don't see how I could be for it.

If you are wondering, yes, I have had this conversation about the note before.

I kind of laughed when that legislation came out that forced everyone to identify all the AI models used for government work in California. I thought it might just be a tactic to get us all to identify what AIs are really out there. Because, lets be real: How are you going to know if I use AI? How am I even going to know if my staff is using AI? Am I going to put meters on their computers or something? You going to pay me for that? Becuase you better believe you are paying me for that if you make me do that. Does that sound like a good use of money? Then where is the line, do I have to submit my evidence of all that employee monitoring? You going to review all that data from every single consultant in every industry without AI help? We are going to explode budgets for everything in government to make sure we keep AI out unless we are absolutely sure we know about it use? Then wouldn't that be intrusive into the constitutional rights of everyone at work when its government-mandated with all that monitoring to keep AI out?

Again, this stuff is hard to control. It really is, you have to lean on our previous structures that have been proven to work as much as possible to slow the changes and control them. Just like any new technology. Then adapt the law behind the technological adaption to accommodate it unless the law is blatantly preventing the technological adaptation. I get that occupational licenses potentially slow the adoption of technology, maybe even prevent it in some cases. But they do so in a way that ensures the safety and the protection of public welfare in critical societal areas. Areas that I would add, every legislature has deemed an acceptable risk to entertain as a sort of quasi-monopolistic competition as long that opportunity for monopolistic competition is shared and open to many people equally with the prerequisite knowledge and experience.

But when those structures we have in place are potentially about to be completely dismantled with Supreme Court decisions or Circuit Court decisions right as we enter the prime of AI adoption? How on earth are we going to control these AIs we are creating? We are allowing our governments to take the experts out of the equation right during the timeframe in history when this new technology is likely to be the most dangerous? It seems pretty short-sided to me. Just to be blunt, it seems incredibly stupid. This is the time in history when you lean on the experts to use the technology more and adopt it and train it so it becomes more useful to us in the future.

[DWoolley]

James:

I recommend reading "The Legal Analyst: A Toolkit for Thinking about the Law" by Ward Farnsworth.

After reading the book, I would be interested in your perspective on this discussion. The first 200 pages may be sufficient.

For those that shy away from words and such, there is an example as to how the courts handle encroachments that should be interesting to most any land surveyor. I believe the example is in the first 50 to 75 pages i.e. ex-ante and ex-post chapter.

DWoolley

[jamesh1467]

Can you be specific about which topic I should read or what I should be looking for?

[Warren Smith]

James - based on your comments on contract requirements, I would suggest the chapter on Thinking at the Margin.

[DWoolley]

Can you be specific about which topic I should read or what I should be looking for?

Once you read the book, you'll understand the recommendation. Trust me, it will positively shape how you read and think about the law.

DWoolley