Petition for Writ of Certiorari — Minnesota Deer Farmers Association, et al., Petitioners v. Sarah Strommen, Commissioner of the Minnesota Department of Natural Resources, or her successor, et al.
Supreme Court briefOct 27, 2025
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No.
In the
Supreme Court
of the United States
______________
Minnesota Deer Farmers Association; Aaron Seitz;
Allen Huju; Brian Evans; Sarah Evans; Deb Holthaus;
John Holthaus; Devon Lien; Emily Lien; Gary Olson;
Jim Simonson; Chase Simonson; Lisa Clark;
Ray Matejcek; Michael Robokoff; Scott Fier; Steven
Uchytil; Melissa Uchytil; Andrew C. Whitcomb; Scott
Salonek; Jamey Blome; Renae Blome; Joseph Collins;
Ken Williams; Luke Hanson; Kendra Hanson; Mark
Volk; Mary Volk; Nolan Buchner; Stephanie Buchner;
Paul Agre; Samantha Uchytil; Stanley Tvedt;
Francella Tvedt; Jennifer Lynn Boon; Mark Henricus
Boon; Trudy Graves; Steve Porter; Peggy Porter;
Nolan Porter; Dennis Udovich,
Petitioners,
v.
Sarah Strommen, in her official capacity as
Commissioner of the Minnesota Department of
Natural Resources, or her successor; Erica Sawatzke,
in her official capacity as Board President of
Minnesota Board of Animal Health, or her successor;
Peggy Anne Hawkins, in her official capacity as Board
Vice President of Minnesota Board of Animal Health,
or her successor; Jessica Koppien-Fox, in her official
capacity as Member of Minnesota Board of Animal
Health, or her successor; Alex Stade, in his official
capacity as Member of Minnesota Board of Animal
Health, or his successor; Steve Neil, in his official
capacity as Member of Minnesota Board of Animal
Health, or his successor; Brandon Schafer, in his
official capacity as Member of Minnesota Board of
Animal Health, or his successor.
2025– BACHMAN LEGAL PRINTING – PHONE (612) 339-9518
______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
______________
PETITION FOR WRIT OF CERTIORARI
______________
Erick G. Kaardal
Counsel of Record
Gregory M. Erickson
MOHRMAN, KAARDAL
& ERICKSON, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Tel: (612) 341-1074
kaardal@mklaw.com
erickson@mklaw.com
Counsel for Petitioners
i
QUESTION PRESENTED
1. Whether pursuing a legal vocation that is
completely prohibited by state law for a
demographic group is a fundamental right
under the Fourteenth Amendment.
2. When a state recognizes a legal vocation, but
later enacts a law that completely prohibits
an identified non-suspect demographic class
from pursuing that prescribed occupation
while allowing others to continue engaging
in the occupation, whether strict scrutiny
review applies when the non-suspect class
challenges the constitutionality of the
prohibitive law under the Fourteenth
Amendment rather than the rational basis
test, as the Eighth Circuit proclaimed.
ii
PARTIES TO THE PROCEEDINGS
The Petitioners are Minnesota Deer Farmers
Association; Dennis Udovich; Aaron Seitz; Allen Huju;
Brian Evans; Sarah Evans; Deb Houlthaus; John
Holthaus; Devon Lien; Emily Lien; Gary Olson; Jim
Simonson; Chase Simonson; Lisa Clark; Ray Matejcek;
Michael Robokoff; Scott Fier; Steven Uchytil; Melissa
Uchytil; Andrew C. Whitcomb; Scott Salonek; Jamey
Blome; Renae Blome; Joseph Collins; Ken Williams;
Luke Hanson; Kendra Hanson; Mark Volk; Mary Volk;
Nolan Buchner; Stephanie Buchner; Paul Agre;
Samantha Uchytil; Stanley Tvedt; Francella Tvedt;
Jennifer Lynn Boon; Mark Henricus Boon; Trudy
Graves; Steve Porter; Peggy Porter; and Nolan Porter.
They were the plaintiff-appellants below.
The Respondents are: Sarah Strommen, in her
official capacity as Commissioner of the Minnesota
Department of Natural Resources, or her successor;
Erica Sawatzke, in her official capacity as Board
President of Minnesota Board of Animal Health, or her
successor; Peggy Anne Hawkins, in her official
capacity as Board Vice President of Minnesota Board
of Animal Health, or her successor; Jessica KoppienFox, in her official capacity as Member of Minnesota
Board of Animal Health, or her successor; Alex Stade,
in his official capacity as Member of Minnesota Board
of Animal Health, or his successor; Steve Neil, in his
official capacity as Member of Minnesota Board of
Animal Health, or his successor; Brandon Schafer, in
his official capacity as Member of Minnesota Board of
Animal Health, or his successor. They were the
defendant-appellees below.
iii
CORPORATE DISCLOSURE STATEMENT
All the petitioners are individuals. So, there is
no petitioner-entity with a parent public or private
corporation owning any interest in them.
RELATED PROCEEDINGS
United States District Court for the District of
Minnesota:
Minnesota Deer Farmers Assn. v. Strommen, 745
F. Supp. 3d 770 (D. Minn. 2024). 14a–36a.
United States Court of Appeals for the Eighth Circuit:
Minnesota Deer Farmers Assn. v. Strommen, 146
F.4th 664 (8th Cir. 2025). 1a–13a.
iv
TABLE OF CONTENTS
QUESTION PRESENTED.......................................... i
PARTIES TO THE PROCEEDINGS......................... ii
CORPORATE DISCLOSURE STATEMENT .......... iii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ..................................... vii
PETITION FOR A WRIT OF CERTORARI ...............2
OPINIONS BELOW ....................................................2
JURISDICTION ..........................................................2
CONSTITUTIONAL AND STATE
STATUTORY PROVISIONS INVOLVED .................3
STATEMENT OF THE CASE ....................................3
REASONS FOR GRANTING THE
PETITION .................................................................10
I.
The Eighth Circuit decision focused
solely on whether “deer farming” itself
is deeply rooted in history and tradition,
not the pursuit of a legal vocation when
completely prohibited for a demographic
group. .................................................................12
II.
When a government recognizes a legal
vocation, it creates the expectation that
all demographic groups will be able to
pursue the vocation. ..........................................21
v
III. U.S. history, legal traditions, and
practice run against statutory
demographic bans on pursuing a legal
vocation. .............................................................23
IV. Providing clarity in the law is necessary
regarding the pursuit of a legal vocation
as a fundamental right against
demographic bans as the Court has
done for suspect classifications.........................33
V.
Heightened judicial scrutiny is
necessary regarding complete
demographic exclusions from legal
vocations. ...........................................................39
VI. The complete prohibition of a
demographic group from an occupation
is the appropriate scope of
constitutional protection. ..................................40
CONCLUSION ..........................................................41
APPENDIX
Opinion, Minnesota Deer Farmers Assn. v.
Strommen, 146 F.4th 664 (8th Cir. 2025). ...............1a
Memorandum Opinion and Order Granting
Defendants’ Motion to Dismiss and Denying
Plaintiffs’ Motion for Preliminary Injunction,
Minnesota Deer Farmers Assn. v. Strommen,
745 F. Supp. 3d 770 (D. Minn. 2024). .....................14a
vi
Judgment, Minnesota Deer Farmers Assn. v.
Strommen, 745 F. Supp. 3d 770 (D. Minn.
2024) .........................................................................35a
Order and Memorandum, Denying Plaintiffs’
Motion for Injunction Pending Appeal,
Minnesota Deer Farmers Assn. v. Strommen,
745 F. Supp. 3d 770 (D. Minn. 2024) ......................37a
Declaration of Dennis Udovich, Minnesota
Deer Farmers Assn. v. Strommen, 745 F.
Supp. 3d 770 (D. Minn. 2024), dated
February 23, 2024. ..................................................45a
Constitutional and State Statutory
Provisions .................................................................51a
vii
TABLE OF AUTHORITIES
Page(s)
Cases
Adusumelli v. Steiner,
740 F.Supp.2d 582 (2010)............................... passim
Allgeyer v. State of La.,
165 U.S. 578 (1897) .................................... 15, 28, 29
Barletta v. Rilling,
973 F.Supp.2d 132 (2013)................................. 34, 38
City of South Miami v. DeSantis,
508 F.Supp.3d 1209 (2020)..................................... 41
Clayton v. Steinagel,
885 F.Supp.2d 1212 (2012)..................................... 33
Conn v. Gabbert,
526 U.S. 286 (1999) ........................................ passim
County of Butler v. Wolf,
486 F.Supp.3d 883 (2020)....................................... 34
Dandamudi v. Tisch, 686 F.3d 66 (2012) ............ 37, 39
Dent v. West Virginia,
129 U.S. 114, 9 S.Ct. 231,
32 L.Ed. 623 (1889)............................... 13, 15, 16, 28
Dittman v. California,
191 F.3d 1020 (9th Cir. 1999) ................................ 15
DOE v. Rogers,
139 F.Supp.3d 120 (2015)................................. 39, 40
viii
Engquist v. Oregon Dept. of Agriculture,
478 F.3d 985 (2007) ................................................ 33
Erotic Service Provider Legal Education and
Research Project v. Gascon,
880 F.3d 450 (2018) ................................................ 40
Hu v. City of New York,
927 F.3d 81 (2d Cir. 2019) ...................................... 15
Hund v. Cuomo,
501 F.Supp.3d 185 (W.D. N.Y. 2020) ......... 37, 38, 40
Lowry v. Barnhart,
329 F.3d 1019 (9th Cir. 2003) ................................ 11
Lupert v. California State Bar,
761 F.2d 1325 (1985) ........................................ 39, 40
Marino v. City Univ. of N.Y.,
18 F. Supp. 3d 320 (E.D.N.Y. 2014) ....................... 38
Meyer v. Nebraska,
262 U.S. 390 (1923) .............................. 17, 29, 30, 31
Minnesota Deer Farmers Assn. v. Strommen,
146 F.4th 664 (8th Cir. 2025) ............................. iii, 2
Minnesota Deer Farmers Assn. v. Strommen,
745 F. Supp. 3d 770 (D. Minn. 2024) ................. iii, 2
Personnel Adm'r of Massachusetts v. Feeney,
442 U.S. 256 (1979) ................................................ 41
Schware v. Board of Bar Exam. of
State of N.M.,
353 U.S. 232 (1957) ................................................ 31
ix
Singleton v. Cecil,
176 F.3d 419 (8th Cir. 1999) .................................. 11
Six v. Newsom,
462 F.Supp.3d 1060 (2020)............................... 37, 40
Slaughter-H. Cases,
83 U.S. 36 (1872) .............................................. 17, 29
Truax v. Raich,
239 U.S. 33 (1915) .......................................... passim
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011) .................................... 11
U.S. v. White Plume,
447 F.3d 1067 (8th Cir. 2006) .......................... 11, 18
Village of Arlington Heights v. Metropolitan
Housing Development Corp.,
429 U.S. 252 (1977) ................................................ 41
Washington v. Davis,
426 U.S. 229 (1976) ................................................ 41
Washington v. Glucksberg,
521 U.S. 702 (1997) .............................. 11, 13, 14, 18
Wedges/Ledges of California, Inc. v. City
of Phoenix, Ariz.,
24 F.3d 56 (9th Cir. 1994) ...................................... 16
West Coast Hotel Co. v. Parrish,
300 U.S. 379 (1937) ................................................ 31
Yick Wo v. Hopkins,
118 U.S. 356 (1886) .......................................... 16, 27
x
Statutes
28 U.S. Code § 1254 ...................................................... 2
Minn. Stat. § 17.452 ................................................... 19
Minn. Stat. § 17.452, subd. 4 ..................................... 19
Minn. Stat. § 17.452, subd. 5 ................................. 3, 19
Minn. Stat. § 35.153, subd. 2 ..................................... 19
Minn. Stat. § 35.155, subd. 10(a) ................................. 6
Minn. Stat. § 35.155, subd. 10(c) ....................... passim
Minn. Stat. § 35.155, subd. 11–12 ............................... 7
Minn. Stat. § 35.156 ..................................................... 7
Minn. Stat. § 17.452, subd. 4 ..................................... 25
Minn. Stat. § 17.452, subd. 5 ............................... 20, 25
xi
Other Authorities
Benjamin Franklin: Writings 613
(Lemay ed., 1987) ................................................... 16
“CWD questions and answers.”
https://www.dnr.state.mn.us/cwd/qa.html (last
visited Nov. 1, 2023) ................................................. 5
James W. Ely, Jr. “To Pursue Any Lawful Trade or
Avocation”: The Evolution of Unenumerated
Economic Rights in the Nineteenth Century,
8 U.PA. J. Const. L. 917 (2006) .............................. 16
Tex. A&M Study; Economic Impact of U.S. Deer
Breeding and Hunting Operations, May 2017 ...... 22
1
In The
Supreme Court of the United States
___________
Minnesota Deer Farmers Association; Aaron Seitz;
Allen Huju; Brian Evans; Sarah Evans; Deb
Houlthaus; John Holthaus; Devon Lien; Emily Lien;
Gary Olson; Jim Simonson; Chase Simonson; Lisa
Clark; Ray Matejcek; Michael Robokoff; Scott Fier;
Steven Uchytil; Melissa Uchytil; Andrew C.
Whitcomb; Scott Salonek; Jamey Blome; Renae
Blome; Joseph Collins; Ken Williams; Luke Hanson;
Kendra Hanson; Mark Volk; Mary Volk; Nolan
Buchner; Stephanie Buchner; Paul Agre; Samantha
Uchytil; Stanley Tvedt; Francella Tvedt; Jennifer
Lynn Boon; Mark Henricus Boon; Trudy Graves;
Steve Porter; Peggy Porter; Nolan Porter; Dennis
Udovich,
Petitioners,
v.
Sarah Strommen, in her official capacity as
Commissioner of the Minnesota Department of
Natural Resources, or her successor; Erica Sawatzke,
in her official capacity as Board President of
Minnesota Board of Animal Health, or her successor;
Peggy Anne Hawkins, in her official capacity as
Board Vice President of Minnesota Board of Animal
Health, or her successor; Jessica Koppien-Fox, in her
official capacity as Member of Minnesota Board of
Animal Health, or her successor; Alex Stade, in his
official capacity as Member of Minnesota Board of
Animal Health, or his successor; Steve Neil, in his
official capacity as Member of Minnesota Board of
2
Animal Health, or his successor; Brandon Schafer, in
his official capacity as Member of Minnesota Board of
Animal Health, or his successor.
____________
PETITION FOR A WRIT OF CERTORARI
Petitioners respectfully petition for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Eighth Circuit in this case
dated on the same date as the issuance of the opinion,
July 28, 2025, in Minnesota Deer Farmers Assn. v.
Strommen, 146 F.4th 664 (8th Cir. 2025). 1a–13a.
OPINIONS BELOW
The United States Court of Appeals for the
Eighth Circuit opinion is reported at Minnesota Deer
Farmers Assn. v. Strommen, 146 F.4th 664 (8th Cir.
2025). 1a–13a. The district court’s opinion and order is
reported at Minnesota Deer Farmers Assn. v.
Strommen, 745 F. Supp. 3d 770 (D. Minn. 2024). 14a–
36a.
JURISDICTION
The judgment of the court of appeals was
entered on July 28, 2025, issued on the same date as
the United States Court of Appeals for the Eighth
Circuit, July 28, 2025. The jurisdiction of this Court is
invoked under 28 U.S. Code § 1254.
3
CONSTITUTIONAL AND STATE STATUTORY
PROVISIONS INVOLVED
Pertinent constitutional and state statutory
provisions are reproduced in the appendix of this
petition. 51a–52a.
STATEMENT OF THE CASE
Minnesota law recognizes and regulates deer
farming as an “agricultural pursuit.” Minn. Stat. §
17.452, subd. 5. 51a. Farmed deer are also recognized
as “livestock.” Id., subd. 4. 51a. No occupational entry
requirement is necessary to farm deer but a mere
registration to engage in the legal vocation to earn a
living. However, Minnesota has now completely
prohibited a demographic group of newcomers from
pursuing the legal occupation of deer farming while
grandfathering existing deer farmers and their
immediate family members. Minn. Stat. § 17.452,
subd. 4, 5; § 35.155, subd. 10(c). 52a.
1. Farming deer has been a lucrative vocation in
Minnesota.1 The petitioners farm white-tailed deer as
a state-recognized legal vocation as an agricultural
pursuit. To possess and thus farm deer, a person is
required to obtain a registration from the Minnesota
1 For example, a study in 2017, that included the entire Cervidae
industry in Minnesota, supported an estimated 1,287 jobs (240
full-time and 1,047 part-time) and an estimated economic impact
in the state of $17.6 million. See e.g., Tex. A&M Study; Economic
Impact of U.S. Deer Breeding and Hunting Operations, May
2017. Alarmingly, Minnesota has witnessed the loss of whitetailed deer farming operations. Recently, the Minnesota
Department of Natural Resources estimated a loss of 39 whitetailed deer farms from 140 in January of 2023 to 101.
4
Board of Animal Health.2 There are no occupational
entry requirements to farm deer as there is, for
example, to obtain a license to practice law. Each
petitioner has a registration but one petitioner in
particular, Dennis Udovich,3 sought to once again
purse the vocation of farming white-tailed deer as he
did years prior, essentially as a newcomer to the
vocation.4 While the operation of a deer farm is heavily
regulated due to concerns regarding Chronic Wasting
Disease (CWD), nothing more is required to register to
possess deer.
When Udovich requested a registration the
state Board refused, citing to current Minnesota law
that completely prohibits newcomers—new registrants
like Udovich— from obtaining a registration. Without
a registration, Udovich and others like him, cannot
pursue the vocation of farming white-tailed deer while
the law allows current registered deer farmers and
immediate family members to continue engaging in
the vocation for generations to come:
The board
registrations
must not allow new
under this section for
2 Enforcement of deer farming are now under the control of the
DNR.
3 Petitioner Minnesota Deer Farming Association, as an
organization, does not have a registration, but its membership
reflects those who have registrations, family members, and those
who wish to deer farm but have no registration. 4a–5a.
4 Decl. of Udovich. 45a–50a. The Petitioners’ amended complaint
and arguments before the lower courts also noted that if current
white-tailed deer farmers were to sell their respective deer
operations (through the transfer or sale of their current
registrations), they would want to start another deer farm.
However, the complete prohibition of registering to possess whitetailed deer to farm prevents that pursuit of that vocation.
5
possessing white-tailed deer. This
paragraph does not prohibit a person
holding a valid registration under this
subdivision from selling or transferring
the person's registration to an immediate
family member. A valid registration may
be sold or transferred only once under
this paragraph.
Minn. Stat. § 35.155, subd. 10 (c). 51a. Emphasis
added. Notably, the complete prohibition to pursue the
vocation targets white-tailed deer farming and not
other Cervidae farmers.
The Petitioners argued that Minn. Stat. §
35.155, subd. 10(c) was not narrowly tailored to serve
a compelling government interest. In response, the
Board and DNR argued that prohibiting the profession
or occupation of white-tailed deer farming will
“control” CWD, but the same prohibition does not
include all deer farmers. Under the state law, current
registrants are able to continue farming deer for
decades to come. As argued, CWD is not limited to
white-tailed deer.5 And, again as argued, whether
farmed or in the wild as deer farm operations are
heavily regulated, CWD it is not a disease that will be
eliminated by trampling on and prohibiting the right
of some to pursue the vocation.
of
The Petitioners challenged the constitutionality
the prohibitive law under the Fourteenth
5 “CWD is a disease that is specific to deer, moose, elk, caribou
and reindeer as well as their subspecies.” DNR, “CWD questions
and answers.” https://www.dnr.state.mn.us/cwd/qa.html (last
visited Nov. 1, 2023). Pet.-Plts. Mot. Pending App. See generally,
37a–44a.
6
Amendment’s Due Process and Equal Protection
Clauses in federal district court. The white-tailed deer
farmers were identified as falling into essentially four
categories as derived from Minn. Stat. § 35.155, subd.
10(c) (who are also members of the petitioner
Minnesota Deer Farmers Association).
The first category involves an unregistered
white-tailed deer farmer pursuing a registration to
farm white-tailed deer, like Udovich. 5a. As noted, no
state government law, rule, or regulation requires a
pre-requisite skill-set, educational degree, or license
before registering to farm deer (such as licensing
before practicing law). Minn. Stat. § 35.155, subd.
10(a).6
Hence, the state has targeted demographic
group—newcomers, like Udovich—from pursuing a
government-recognized legal vocation. Petitioners
argued that while the state heavily regulates the
operations of deer farming,7 the underlying Fourteenth
Amendment issues presents a much stronger
constitutional claim than general occupational liberty
interests. And, if pursuing a legal occupation is a
protected liberty interest under the Fourteenth
6 “A person may not possess live Cervidae in Minnesota unless
the person is registered with the [DNR] and meets all the
requirements for farmed Cervidae [operations] under this
section….” 52a.
7 Operations of deer farming is heavily regulated to address the
issue of CWD. The legislature has enacted strict testing
procedures to identify CWD and reporting requirements and laws
governing white-tailed deer operations. See e.g., Minn. Stats.
35.155, subd. 11–12; 35.156. Nothing shows any statutory
enforcement to prohibit the pursuit of the legal vocation, and the
heavily-regulated white-tailed deer farm operations will
eradicate CWD from wild deer.
7
Amendment’s due process clause, challenging the
offending prohibitive statute affecting a non-suspect
demographic group, the statute must be reviewed
under strict scrutiny, not rational basis. See, 8a. The
precise test for this situation has not recently been
declared by this Court.
The second and third categories include those
that are (a) “registered white-tailed deer farmers with
an immediate family member to whom they could sell
or transfer their registration if interested;” (b)
registered white-tailed deer farmers without an
immediate family member. 4a. The Petitioners argued
that, as among white-tailed deer farmers, the
legislature created classes among white-tailed deer
farmers and other Ceridae farmers as violative of the
Equal Protection Clause. The arguments were framed
under the recognized class of one principle. Pet.Appellant Princ. Br. 15-31; Pet- Resp. to Mot. to
Dismiss.
The appellate court’s recognition of a fourth
category, children of registered white-tailed deer
farmers who expect to receive a registration from their
parents, is not relevant to the equal protection
arguments made. 4a. However, the category does
support the fact that Minnesota expects the
continuation of the regulated operations involving the
legal vocation for at least another generation and for
decades to come.
In short, the Petitioners argued that the
amended statute created equal protection issues
among not only current deer farmers and their
families—between those with immediate families and
those without—but between deer registration holders
8
and newcomers. Also argued, was the statutes violated
the Fifth Amendment’s Takings Clause.
2. The district court granted the Defendants
motion to dismiss and denied the Petitioner-Plaintiffs
motion for a preliminary injunction. 14a–34a. The
court would also deny the Petitioner-Plaintiffs’ motion
for an injunction pending appeal. 37a–44a. The
district court dismissed the complaint in its entirety.
The court found that the right to pursue the vocation
or occupation of white-tailed deer farming is a general
liberty interest, it is not a fundamental right to subject
a claim regarding the pursuit of a vocation under a
strict scrutiny analysis. 21a–22a.
Hence, the court, citing to other court decisions,
declined to “extend due process protections to one’s
ability to engage in their occupation or profession.” 22a
(Emphasis added). The court noted that there is “no
fundamental right to “farm”, a claim not made by any
party. 21a. (“[N]either the Supreme Court nor the
Eighth Circuit have recognized that there is a
fundamental right to work or operate a business free
from disfavored regulations.” 22a.) On this rationale,
the district court concluded that “[b]ecause the right to
pursue a chosen profession is not fundamental,
rational basis applies.” 24a.
With this conclusion, the district court would
also dismiss the Equal Protection claims. The created
legislative classes among white-tailed deer farmers
and other Cervidae farmers, does not implicate or
burden a fundamental right, because there exists
“‘plausible reasons’ for the legislature’s action,” the
equal protection arguments are inapplicable.
9
3. On appeal to the United States Court of
Appeals for the Eighth Circuit, the Petitioners
reasserted their claims for heightened strict scrutiny.
2a–13a. The Eighth Circuit affirmed the district
court’s judgment. 13a. Relying upon Conn v. Gabbert,
526 U.S. 286, 291-291 (1999), the Eighth Circuit,
specifically, as to substantive due process, ruled that
the right to pursue an occupation is merely a
"generalized due process right" subject to reasonable
regulation, not a fundamental right subject to strict
scrutiny. 8a. Ultimately, the court would conclude that
by applying rational basis review, the law's eventual
elimination of the industry was rationally related to
the State's interest in controlling CWD. 12a.
As to equal protection, the court likewise
applied rational basis review to the claims of
discrimination (between family and non-family, and
between deer farmers and other livestock farmers).
10a–11a. It held that the legislative choice to allow
existing family farms to continue for one generation
protected "familial, occupational, investment, and
reliance interests" and was therefore rationally
related to a legitimate state purpose. 11a.
The Petitioners submit that this Court should
grant certiorari to clarify the scope of constitutional
protection from demographic bans on governmentrecognized-and-regulated occupations and consider
preventing the State of Minnesota from eliminating
the occupational opportunity of a group of citizens
from
pursuing
a
government-recognized-andregulated occupation.
10
REASONS FOR GRANTING THE PETITION
Minnesota’s ban on new deer farmers violates
the Due Process Clause and Equal Protection Clause
of the Fourteenth Amendment by infringing upon the
fundamental right to pursue one's chosen occupation
or calling, requiring a level of judicial scrutiny higher
than the rational basis test applied by the court below.
Specifically, a group classification which is
completely excluded from a government-recognized-and—regulated occupation, is automatically a suspect
classification worthy of heightened judicial scrutiny. It
should be apparent that if Minnesota had a
demographic exclusion on the legal governmentrecognized-and-regulated deer farming occupation
based on race, religion, national origin, or alienage, it
would be unconstitutional. The same should be true of
an exclusion based on any group classification—race,
religion, national origin, alienage, or otherwise.
The argument is not that farming is a
constitutional right. U.S. v. White Plume, 447 F.3d
1067, 1075 (8th Cir. 2006) (rejecting fundamental
constitutional right to farm under Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) analysis). But,
the pursuit of a legal vocation, once completely
prohibited for some, is a protected substantive
constitutional right under the Fourteenth Amendment
requiring something more than a rational basis
analysis, as it also includes a particular non-suspect
class. See also generally, United States v. Farhane, 634
F.3d 127, 137 (2d Cir. 2011) (reading Conn to imply
that “due process is violated only by complete
prohibition of the right to engage in a calling” (internal
quotation marks omitted)); Lowry v. Barnhart, 329
11
F.3d 1019, 1023 (9th Cir. 2003) (“This indirect and
incidental burden on professional practice is far too
removed from a complete prohibition to support a due
process claim.”).
Even the Eighth Circuit in a previous decision
had acknowledged that a complete prohibition of the
pursuit of a vocation implicates substantive due
process. Singleton v. Cecil, 176 F.3d 419, 426 n.8 (8th
Cir. 1999) (“The [Conn] Court then made clear that
this right has been afforded substantive due process
protection only when the government completely
prohibits, rather than briefly interrupts, a person from
engaging in his desired occupational field.” (internal
quotation marks and alterations omitted)). But, the
Eighth Circuit applied a rational basis analysis to
affirm the legislature’s complete prohibition of the
right of some to pursue the legal vocation while
allowing others to maintain the same occupation for
generations or decades to come. Pursuing a legal
vocation is deeply rooted in our Nation’s history and
tradition and here, there is no pre-occupational
requirement to pursue white-tailed deer farming.
The constitutional questions presented are
important across the nation regarding the pursuit of
employment as a means to make a living. This Court
in Conn, opened the door to the complete prohibition
to pursue a vocation as violative of substantive due
process, however, the type of applicable scrutiny
remains an open question. The pursuit of employment
as a means to make a living is a core element to acquire
or have access to the fundamental means to sustain a
person’s own “life” (“life” as specifically and expressly
written within the Fourteenth Amendment): food,
clothing, and shelter. This does not mean entitlement
12
to engage in the vocation once achieved, but certainly
allows for the pursuit of the vocation if others are
allowed to pursue the vocation.
I.
The Eighth Circuit decision focused
solely on whether “deer farming” itself
is deeply rooted in history and
tradition, not the pursuit of a legal
vocation when completely prohibited
for a demographic group.
The Eighth Circuit too narrowly analyzed the
fundamental rights claim to pursue a legal vocation by
focusing solely on whether deer farming itself is deeply
rooted in history and tradition. 8a–10a. The court
failed to adequately consider the petitioner Udovich’s
narrow claim of a substantive due process right to
pursue a calling and against a complete demographic
ban on all newcomers to farm white-tailed deer.
Minnesota’s 2023 amended laws enforce a complete
prohibition on new registrations so that no new deer
farmers enter the government-recognized-andregulated occupation. 51a. Minn. Stat. § 35.155, subd.
10(c).
This Court in Conn v. Gabbert, 526 U.S. 286,
292 (1999) acknowledged that the Due Process Clause
includes a generalized right to pursue a calling and
that the lasting constitutional concern has been the
complete prohibition of some to engage in any
livelihood or vocation: [T]his Court has indicated that
the liberty component of the Fourteenth Amendment's
Due Process Clause includes some generalized due
process right to choose one's field of private
employment, but a right which is nevertheless subject
to reasonable government regulation. See, e.g., Dent v.
13
West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623
(1889) (upholding a requirement of licensing before a
person can practice medicine); Truax v. Raich, 239
U.S. 33, 41 (1915) (invalidating on equal protection
grounds a state law requiring companies to employ
80% United States citizens). “These cases all deal with
a complete prohibition of the right to engage in a
calling, and not the sort of brief interruption which
occurred here.” 526 U.S. at 291–92. Emphasis added.
The Conn decision occurred two years after
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
that set the legal standards for substantive due
process rights.8 Glucksberg reveals this Court’s
persistent recognition of the substantive due process
right of pursing in a calling against complete
demographic bans from a legal and recognized
government vocation. However, Glucksberg is not
applicable because this Court in Conn acknowledged a
substantive due process right to pursue a vocation
when completely prohibited. 526 U.S. at 291-292. And,
as the concurring opinion in Glucksberg noted, “this
enforceable concept of liberty would bar statutory
impositions even at relatively trivial levels when
governmental restraints are undeniably irrational as
8 Glucksberg recognized the established method of substantivedue-process analysis, identifying the method’s two primary
features: First, observing that “the Due Process Clause specially
protects those fundamental rights and liberties which are,
objectively, ‘deeply rooted in this Nation's history and tradition’
and ‘implicit in the concept of ordered liberty,’ such that ‘neither
liberty nor justice would exist if they were sacrificed.’” 521 U.S.
720-721 (citations omitted). Second, requiring “in substantivedue-process cases a ‘careful description’ of the asserted
fundamental liberty interest.” Id., at 721.
14
unsupported by any imaginable rationale.” Id. 521
U.S. at 766.
Also, this Court’s previous cases explicitly held
that the Due Process Clause and the “liberty” within
the Fourteenth Amendment embraces a constitutional
right to pursue any livelihood or a vocation:
As so construed, we think the statute is a
violation of the fourteenth amendment of
the federal constitution, in that it
deprives the defendants of their liberty
without due process of law. The statute
which forbids such act does not become
due process of law, because it is
inconsistent with the provisions of the
constitution of the Union. The ‘liberty’
mentioned in that amendment means,
not only the right of the citizen to be free
from the mere physical restraint of his
person, as by incarceration, but the term
is deemed to embrace the right of the
citizen to be free in the enjoyment of all
his faculties; to be free to use them in all
lawful ways; to live and work where he
will; to earn his livelihood by any lawful
calling; to pursue any livelihood or
avocation;….
Allgeyer v. State of La., 165 U.S. 578, 589 (1897)
(Emphasis added). See Dent v. West Virginia, 129 U.S.
114 (1889) (upholding a requirement of licensing
before a person can practice medicine); Truax v. Raich,
239 U.S. 33, 41(1915) (invalidating on equal protection
grounds a state law requiring companies to employ
80% United States citizens); Hu v. City of New York,
15
927 F.3d 81, 102(2d Cir. 2019)(holding that a
regulation must cause more than a “brief interruption”
in an individual's occupation to amount to violation of
individual's substantive due process rights); Dittman
v. California, 191 F.3d 1020, 1029(9th Cir. 1999)
(Observing that “it is well-recognized that the pursuit
of an occupation or profession is a protected liberty
interest that extends across a broad range of lawful
occupations” quoting Wedges/Ledges of California,
Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 65 n.4 (9th
Cir. 1994).
Indeed, the right to pursue a vocation is deeply
rooted in our country’s history as expressly connected
and necessary to life. Members of the Founding
generation agreed on the fundamental importance of
the right to pursue one's occupation. Benjamin
Franklin wrote that “[t]here cannot be a stronger
natural right than that of a man's making the best
profit he can of the natural produce of his lands.”
Causes of the American Discontents before 1768, in
Benjamin Franklin: Writings 613 (Lemay ed., 1987).
George Mason authored the Virginia Declaration of
Rights and included an express provision securing “the
enjoyment of life and liberty, with the means of
acquiring and possessing property, and pursuing and
obtaining happiness and safety.” Va. Decl. of Rights §
1 (1776). See, e.g., Truax v. Raich, 239 U.S. 33, 41
(1915). (“It requires no argument to show that the
right to work for a living in the common occupations of
the community is of the very essence of the personal
freedom and opportunity that it was the purpose of the
[Fourteenth] Amendment to secure.”); Yick Wo v.
Hopkins, 129 U.S. 114(1886); James W. Ely, Jr. “To
Pursue Any Lawful Trade or Avocation”: The
16
Evolution of Unenumerated Economic Rights in the
Nineteenth Century, 8 U.PA. J. Const. L. 917 (2006).
As this Court recognized in 1872, applicable
today, regulations of a profession or occupation is
acceptable, but the government cannot interfere with
some people pursuing that profession once prescribed
because every citizen may pursue the calling:
The State may prescribe such
regulations for every pursuit and
calling of life as will promote the
public health, secure the good
order and advance the general
prosperity of society, but when
once prescribed, the pursuit or
calling must be free to be followed
by every citizen who is within the
conditions designated, and will
conform to the regulations.
Slaughter-H. Cases, 83 U.S. 36, 110 (1872). Emphasis
added.
As this Court would later recognize and as
previously referenced, that while “liberty” as a
guarantee is not exactly defined in the Fourteenth
Amendment it “has received much consideration and
some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to
worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long
17
recognized at common law as essential to the orderly
pursuit of happiness by free men.” Meyer v. Nebraska,
262 U.S. 390, 399 (1923). But to engage in an
occupation, one must have the right to pursue the
vocation that other people are pursuing.
Certainly, this Court has never declared
“farming” per se or any other occupation of itself as a
fundamental right. That is not the issue before this
Court. See U.S. v. White Plume, 447 F.3d 1067, 1075
(8th Cir. 2006) (under (rejecting fundamental
constitutional right to farm under Glucksberg
analysis). While an occupation is of itself not a
fundamental right, the pursuit of a lawful occupation,
once proscribed for a specific demographic group,
presents a different proposition under the
Constitution. A different constitutional analysis is
required when the state completely prohibits a
demographic group from the pursuit of the vocation. In
this regard, once the state recognizes a lawful
occupation, demographic bans are constitutionally
suspect because this Court has interpreted “liberty” as
embracing the pursuit and engagement in a legal
vocation as a protectable constitutional right.
When a state seeks to completely prohibit a
demographic group from a legal vocation for all others,
it may be a violation of the Fourteenth Amendment.
This
constitutional
prohibition
of
excluding
demographic groups from occupations requires the
application of the strict scrutiny test when challenging
legislative enactments that completely prohibit some
from the pursuit of a legally recognized vocation. It is
of exceptional importance even if the prohibition
pertains to a non-suspect demographic group.
18
Minnesota recognizes the lawful occupation of
deer farming and statutorily identified farmed deer as
livestock (i.e., all types of Cervidae9), Minn. Stat. §
17.452, subd.4,10 as an agricultural pursuit. Minn.
Stat. § 17.452, subd. 5.11 However, in contradiction of
the apparent protected constitutional right to pursue
a calling, a legislative edict in 2023 completely
prohibits a demographic group—newcomers— from
pursuing the calling of farming white-tailed deer. The
prohibition excludes newcomers from registering to
raise white-tailed deer as livestock, while current
white-tailed deer farmers and immediate family
members may continue to engage in the vocation.12
Indeed, while the operation of deer farming is heavily
regulated, the state has precluded white-tailed deer
newcomer farmers—the identified non-suspect
demographic group—from pursuing white-tailed deer
farming, but at the same time, allow for the pursuit of
other Cervidae farming, as the controlling statutory
edict states:
The board
registrations
must not allow new
under this section for
9
“[A]nimals that are members of the family Cervidae and
includes, but is not limited to, white-tailed deer, mule deer, red
deer, elk, moose, caribou, reindeer, and muntjac.” Minn.
Stat. § 35.153, subd. 2.
10 “Farmed Cervidae are livestock and are not wild animals for
purposes of game farm, hunting, or wildlife laws. Farmed
Cervidae and their products are farm products and livestock for
purposes of financial transactions and collateral.” Minn. Stat. §
17.452, subd. 4.
11 “Raising farmed Cervidae is agricultural production and an
agricultural pursuit.” Minn. Stat. § 17.452, subd. 5.
12 Indeed, operating a deer farm is heavily regulated but, as
previously noted, there is no occupational entry requirement.
19
possessing white-tailed deer. This
paragraph does not prohibit a person
holding a valid registration under this
subdivision from selling or transferring
the person's registration to an immediate
family member. A valid registration may
be sold or transferred only once under
this paragraph.
Minn. Stat. § 35.155, subd. 10(c). Emphasis added.
For decades prior to 2023, the petitioners,
including Petitioner Udovich, and other producers of
farm-raised Cervidae, earned their living through an
occupation that was legally recognized by the state as
an agricultural pursuit under Minnesota Statutes §
17.452, subdivision 5. This statutory classification
affirmed their status as deer farmers, engaging in a
recognized and regulated occupation. But now,
potential future farmers and those seeking to re-enter
the vocation are completely banned.
Consequently, the state law has caused direct
harm and constitutional injury to Petitioner Udovich
and the Minnesota Deer Farmers Association. For
example, Petitioner Udovich, an association member,
is a former deer farmer who, having previously
operated a registered deer farm, is now permanently
prohibited from re-entering the market or seeking a
new registration. He and other aspiring deer farmers
are prevented from engaging in this lawful
agricultural calling. In turn, the existing deer farmers
are damaged because they can’t sell their deer to
anyone but existing deer farmers. The state’s
prohibition essentially destroys the market for whitetailed deer.
20
Further, Minnesota’s 2023 amended law
created an arbitrary and irrational system of
legislative privilege. Existing deer farmers and their
immediate family members may continue their
operation, albeit under new farm operations
regulations. Nevertheless, the law provides that
immediate family members of existing farmers may
inherit or purchase the registration once, allowing a
single, narrow transfer of the business. Udovich (and
all other potential new entrants), despite no pre-entry
occupational requirements, and legal compliance with
all health and safety regulations related to the
operation of deer farming,13 is completely barred from
pursuing and thus, engaging in the occupation. See,
45a–46a.
The state’s asserted justification for these state
laws is to manage the risk of CWD. However, the state
laws are not a permissible regulation of dangerous
conduct. Instead, the state laws are a confiscation of
future occupational opportunity from Udovich and
others. A regulation designed to eliminate an entire
class of citizens from pursuing a recognized and
regulated occupation, based on a mere classification of
their status as "new,” cannot withstand any
meaningful constitutional scrutiny.
The Eighth Circuit erred by applying only the
most lenient rational basis review, dismissing the
constitutional rights against a demographic ban from
a government-recognized-and-regulated occupation as
a non-fundamental, purely economic interest. The
court decision ignores the Court’s long-recognized
historical right to pursue a common calling that is
13 See 45a-46a.
21
deeply rooted in the Nation's history, legal traditions,
and practice, particularly where the state's action is
designed to destroy, rather than merely regulate, a
lawful occupation. See Conn, 526 U.S. at 291-292.
For Petitioner Udovich and other association
members who are not currently deer farming, the 2023
law is a complete demographic ban on their
occupational pursuit of white-tailed deer farming.
Minnesota has identified deer farming as an
occupation, but unconstitutionally limited that
occupation to current deer farmers and only their
immediate family members.
Minnesota’s demographic exclusion of new
entrants from a legal vocation violates the Due Process
and Equal Protection Clauses. If Minnesota had a
demographic exclusion on the governmentalrecognized legal vocation based on race, religion,
national origin, or alienage, it would be similarly
unconstitutional too. In this way, any demographic
prohibition on pursuing a legal vocation open to all
others is constitutionally suspect.
II.
When a government recognizes a legal
vocation, it creates the expectation that
all demographic groups will be able to
pursue the vocation.
Since Minnesota law recognizes and regulates
deer farming, Minnesota creates an expectation of a
constitutional right to pursue that occupation against
demographic bans excluding specific demographic
groups from the occupation. Minnesota’s state law is a
contradiction of this constitutional expectation of the
right to pursue a state-recognized legal vocation, the
22
text of Minnesota Statutes § 35.155, subd. 10(c),
because it authorizes the continued registration of
existing white-tailed deer farmers, while prohibiting
registration of new white-tailed deer farmers like
Udovich—a demographic ban of some (newcomers)
from the occupation. 52a.
This state law prohibits the demographic group
of current-non-deer-farmers from obtaining a
registration. All people in that demographic group are
banned from deer farming while all the current deer
farmers and their immediate family members can
continue to deer farm.
Minnesota’s state law is the quintessential ban
on a demographic group from a state-recognized-andregulated
occupation.
Although
Minnesota’s
demographic ban does not involve a suspect
classification, Minnesota’s demographic ban is
constitutionally suspect. Minnesota has strategically
manipulated classifications in its statutes regulating
deer farmers to avoid constitutional scrutiny.
The petitioners’ claim is based on this state law
banning a demographic group of new entrants—like
petitioner
Udovich—from
the
deer
farming
occupation. Existing deer farmers and immediate
family can continue to be registrants. New entrants
are banned. The constitutional expectation is violated
by the state, on the one hand, choosing to recognize
and regulate white-tailed deer farming occupation;
and, on the other hand, the state law denies a
demographic group of new entrants from pursuing
deer farming. The petitioners claim that the state has
no constitutional power to exclude demographic
23
groups from pursuing a state-recognized legal vocation
while others continue in the same vocation.
III.
U.S. history, legal traditions, and
practice run against statutory
demographic bans on pursuing a
legal vocation.
Minnesota’s state law is the quintessential ban
on a demographic group from a state-recognized-andregulated
occupation.
Although
Minnesota’s
demographic ban does not involve a suspect
classification, Minnesota’s demographic ban is
constitutionally suspect. Minnesota has strategically
manipulated classifications in its statutes regulating
deer farmers to avoid constitutional scrutiny.
The petitioners’ claim is based on this state law
banning a demographic group of new entrants—like
petitioner Udovich—from farming white-tailed deer as
an occupation. Existing deer farmers and immediate
family can continue to be registrants. New entrants
are banned. The constitutional expectation is violated
by the state, on the one hand, choosing to recognize
and regulate the deer farming occupation, while, on
the other hand, denying a demographic group of new
entrants from pursuing deer farming.
To be sure, the state may regulate the deer
farming operations to promote the state’s welfare,
including public safety, health and other concerns—
including regulations based on CWD concerns.
However, the Petitioners claim that the state has no
constitutional power to exclude demographic groups
from the state-recognized-and-regulated occupation as
24
it has by completely prohibiting registrations for new
white-tailed deer farmers.
When a state recognizes and regulates an
occupation by state law, total demographic group
exclusion requires stronger legal justification than
mere occupational regulation. Arbitrary demographic
group
exclusion
from
government-recognized
occupations creates constitutional deprivations
requiring heightened judicial scrutiny under
substantive due process.14
The state’s choice to recognize and regulate an
occupation raises a constitutional expectation that all
demographic groups have a constitutional right to
pursue that occupation. The state can regulate the
occupation to promote the state’s welfare, including
public safety, health and other concerns.
But, excluding demographic groups from the
state-recognized-and-regulated occupation is subject
to higher judicial scrutiny because the demographic
group exclusion is not about public safety, health and
other concerns. It must be about something else: race,
religion, national origin, alienage, oppression, spite,
and similar categories. After all, the state is regulating
the occupation for public safety, health and other
concerns. Banning specific demographic groups from
occupations cannot be about public safety, health and
other concerns. Therefore, any governmental
demographic ban—racial, religious, national origin,
14 The expectation is within the state statutory scheme. Besides
the registration process itself. See, Minn. Stats. §§ 17.452, subds.
4, 5. 51a; 35.153, subds. 2,3. 51a-52a.
25
alienage or otherwise—is constitutionally suspect and
worthy of heightened judicial scrutiny.
Federal courts recognize a meaningful
constitutional
distinction
between
economic
regulations that are subject to rational basis review
and complete prohibitions from governmentrecognized and government-regulated occupations
that receive substantive due process protection. See
Conn, 526 U.S. at 291-292 (citing cases involving
complete prohibition of the right to engage in a calling
from situations involving only brief interruption).
The legal distinction matters constitutionally
because it determines whether any heightened judicial
review applies and specifies the level of protection
afforded Americans from complete bans on
demographic groups entering a governmentrecognized-and-regulated occupation.
Federal case law establishes a robust
constitutional tradition protecting the right of
individuals to pursue lawful occupations without
arbitrary group-based exclusions by government. The
Court has consistently held that the right to work in
common occupations is fundamental to personal
liberty under the Fourteenth Amendment, and that
government licensing schemes cannot categorically
exclude groups based on race, nationality, or other
protected
characteristics
without
compelling
justification. This tradition spans from the
foundational
1886
decision
in Yick
Wo
v.
Hopkins through modern federal court decisions
applying heightened scrutiny to discriminatory
occupational licensing.
26
The
Supreme
Court
established
the
foundational principle in Yick Wo v. Hopkins, 118 U.S.
356 (1886) that government licensing schemes cannot
operate as vehicles for arbitrary discrimination
against specific groups:
Though the law itself be fair on its face, and
impartial in appearance, yet, if it is applied and
administered by public authority with an evil
eye and an unequal hand, so as practically to
make unjust and illegal discriminations
between persons in similar circumstances,
material to their rights, the denial of equal
justice is still within the prohibition of the
constitution.
118 U.S. at 373–74. This precedent established that
licensing
authorities
cannot
vest
arbitrary
discretionary power in officials without legal
standards, particularly when administered in a
discriminatory manner against demographic groups.
Id.
In 1887, the Supreme Court explicitly
recognized a constitutional right to pursue lawful
occupations in Dent, stating that “It is undoubtedly
the right of every citizen of the United States to follow
any lawful calling, business, or profession he may
choose, subject only to such restrictions as are imposed
upon all persons of like age, sex, and condition.” Id. 129
U.S. at 121. This Court characterized this as a
distinguishing feature of our republican institutions
and noted that all vocations are open to ever one on
like conditions. Id. This Court further recognized that
professional rights have constitutional protection,
explaining that “The interest, or, as it is sometimes
27
termed, the 'estate,' acquired in them—that is, the
right to continue their prosecution—is often of great
value to the possessors, and cannot be arbitrarily
taken from them, any more than their real or personal
property can be thus taken.” Id. at 121-122.
The Court’s decision in Allgeyer v. State of La.,
165 U.S. 578(1897) establishes occupational liberty as
a constitutional right. The decision provides one of the
most expansive and foundational definitions of
constitutional
liberty
under
the
Fourteenth
Amendment, explicitly grounding occupational
freedom in constitutional principles. Id. at 589-590.
Allgeyer defined liberty to embrace the right of the
citizen to be free in the enjoyment of all his faculties;
to be free to use them in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful
calling; to pursue any livelihood or avocation; and for
that purpose to enter into all contracts which may be
proper, necessary, and essential to his carrying out to
a successful conclusion the purposes above mentioned.
Id. at 589. This sweeping definition directly
encompasses occupational choice as a core component
of constitutional liberty, going well beyond the
physical restraint conception that preceded it. Id.
This Court specifically endorsed Justice
Bradley's view from the Slaughterhouse Cases that
the right to follow any of the common occupations of
life is an inalienable right and that the liberty of
pursuit—the right to follow any of the ordinary
callings of life—is one of the privileges of a citizen of
the United States. Id. at 589-590. Crucially, the Court
held that prohibiting someone from pursuing his
chosen calling certainly does deprive him of his liberty;
for it takes from him the freedom of adopting and
28
following the pursuit which he prefers. Id. This
decision establishes occupational liberty not merely as
a policy preference but as a constitutional imperative
protected by the Due Process Clause. Id. Allgeyer
provides even stronger support than Dent or Meyer
because it explicitly frames occupational liberty in
constitutional terms and applies strict constitutional
analysis to strike down state interference with
occupational choice. Id.
Building on this foundation, the Supreme Court
in Truax v. Raich, 239 U.S. 33 (1915) declared that the
right to work for a living in the common occupations of
the community is of the very essence of the personal
freedom and opportunity that it was the purpose of the
Amendment to secure. Id. at 41. The Court specifically
held that state authority does not go so far as to make
it possible for the state to deny to lawful inhabitants,
because of their race or nationality, the ordinary
means of earning a livelihood. Id. at 41-42. This Court
rejected arguments that excluding aliens from an
occupation was a constitutional classification:
It is sought to justify this act as an
exercise of the power of the state to make
reasonable classifications in legislating
to promote the health, safety, morals, and
welfare of those within its jurisdiction.
But this admitted authority, with the
broad range of legislative discretion that
it implies, does not go so far as to make it
possible for the state to deny to lawful
inhabitants, because of their race or
nationality, the ordinary means of
earning a livelihood. It requires no
argument to show that the right to work
29
for a living in the common occupations of
the community is of the very essence of
the personal freedom and opportunity
that it was the purpose of the
[Fourteenth] Amendment to secure.
Id. at 41. This decision established that categorical
exclusions from occupations based on group
characteristics violate constitutional principles. Id.
The Court decided the case to ensure the guarantee of
equal protection of the laws. Id.
This recognition was reinforced in Meyer v.
Nebraska, 262 U.S. 390 (1923), where this Court
established a broad definition of constitutional liberty
under the Fourteenth Amendment's Due Process
Clause. Id. at 399-400. The Court held that liberty
denotes not merely freedom from bodily restraint but
also the right of the individual to contract, to engage
in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and
bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy
those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free
men. Id. at 399. Crucially, the Meyer decision explicitly
included “the right of the individual...to engage in any
of the common occupations of life within its definition
of protected liberty.” Id.
While later cases like West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 398 (1937), a post-Lochner era
case, rejected broad economic substantive due process,
the pre-1937 decisions remain valuable precedent for
a narrow fundamental right targeting demographic
bans from legal occupations, as it demonstrates the
30
Court's historical recognition that occupational liberty
deserves constitutional protection when government
restrictions lack adequate justification.
In Schware v. Board of Bar Exam. of State of
N.M., 353 U.S. 232 (1957), this Court clarified that a
State cannot exclude a person from the practice of law
or from any other occupation in a manner or for
reasons that contravene the Due Process or Equal
Protection Clause. Id. at 239-240. The Court
established that while states can require high
standards of qualification, any qualification must have
a rational connection with the applicant's fitness or
capacity to practice law:
Obviously an applicant could not be
excluded merely because he was a
Republican or a Negro or a member of a
particular church. Even in applying
permissible standards, officers of a State
cannot exclude an applicant when there
is no basis for their finding that he fails
to meet these standards, or when their
action is invidiously discriminatory.
Id. at 239. Furthermore, the Court held that officers of
a State cannot exclude an applicant when there is no
basis for their finding that he fails to meet these
standards, or when their action is invidiously
discriminatory. Id.
Contemporary federal courts continue to apply
these constitutional principles to occupational
licensing restrictions. In Adusumelli v. Steiner, 740
F.Supp.2d 582(2010), the Southern District of New
York struck down a New York licensing statute that
31
excluded non-legal permanent resident aliens from the
pharmacy profession, holding that the statute violated
equal protection rights whether reviewed under strict
or intermediate scrutiny. The district court relied on
the Court’s prior decisions:
[C]lassifications based on alienage, like
those based on nationality or race, are
inherently suspect and subject to close
judicial scrutiny. Aliens as a class are a
prime example of a ‘discrete and insular’
minority…for whom such heightened
judicial
solicitude
is
appropriate.
Accordingly, it was said in Takahashi
that “the power of a state to apply its laws
exclusively to its alien inhabitants as a
class is confined within narrow limits.”
Adusumelli, 740 F.Supp.2d at 588 (citations omitted).
The district court found that licensing schemes
excluding specific groups trigger heightened
constitutional review when they target protected
classes. Id.
Federal courts have also applied constitutional
scrutiny to licensing schemes that irrationally burden
specific occupational practices. In Clayton v. Steinagel,
885 F.Supp.2d 1212 (2012), the district court for Utah
found that cosmetology licensing requirements
violated substantive due process and equal protection
as applied to African hair braiding, reasoning that
licensing requirements were not rationally related to
state's legitimate interest in public health and safety
when most of the cosmetology training required was
completely irrelevant to hairbraiding:
32
“[T]he right to work for a living in the
common occupations of the community is
of the very essence of the personal
freedom and opportunity” that the
Constitution was designed to protect.
885 F.Supp.2d at 1215–16 (footnotes omitted).
So, modern federal precedent confirms that
while the right to pursue an occupation is not yet
considered a fundamental right requiring strict
scrutiny in all contexts, substantial constitutional
protections still apply. As established in Engquist v.
Oregon Dept. of Agriculture, 478 F.3d 985 (2007),
federal courts recognize that a plaintiff can make out
a substantive due process claim if she is unable to
pursue an occupation and this inability is caused by
government actions that were arbitrary and lacking a
rational basis. The Ninth Circuit clarified that this
protection protects the right to pursue an entire
profession, and not the right to pursue a particular job.
Courts consistently require that occupational
licensing restrictions bear a rational relationship to
legitimate government interests. In County of Butler
v. Wolf, 486 F.Supp.3d 883 (2020), the Western
District of Pennsylvania noted the growing recognition
that governmental action impacting the right to earn
a living should be subjected to greater scrutiny,
particularly when regulations create immediate and
severe interference with citizens' right to earn a living.
Federal courts have consistently applied equal
protection analysis to prevent arbitrary group-based
exclusions from occupational licensing. Even when
reviewing under rational basis scrutiny, courts have
33
struck down licensing schemes that operate as
categorical bars against entire groups without
sufficient justification. In Barletta v. Rilling, 973
F.Supp.2d 132 (2013), the District Court for
Connecticut found that a categorical felony conviction
bar from precious metals occupational licensing
violated equal protection because the statute was both
grossly over-inclusive and grossly under-inclusive as a
proxy for serving the State's stated goals.
IV.
Providing clarity in the law is
necessary regarding the pursuit of a
legal vocation as a fundamental right
against demographic bans as the Court
has done for suspect classifications.
There is an unsettled federal question. This
petition presents a fundamental question of federal
law that this Court has not clearly settled: What is the
proper level of scrutiny for a state law that recognizes
a legal vocation occupation, but then bans a specific
demographic group from pursuing the occupation?
Notably, the federal courts already apply strict
scrutiny to demographic bans from governmentrecognized-and-regulated occupations involving a
suspect classification involving racial, religious, nation
origin or alienate demographic criteria. The legal
issue presented here is different because it involves
non-suspect classifications like Minnesota’s ban on
new deer farmers.
The Eighth Circuit erred in its legal analysis.
The court applied only the rational basis review
because it concluded that the right to pursue whitetailed deer farming is not "deeply rooted in this
34
Nation's history and tradition." 9a. The court
misapplied the test by defining the right too narrowly.
The issue is not the right to farm deer, but the right
for all demographic groups, without exclusions, to
pursue the legal vocation.
The lower courts have a need for doctrinal
guidance. The Court needs to address whether a state
while using its police power to recognize and regulate
an occupation, can ban a specific demographic group
from participating in the occupation. The State of
Minnesota has conceded, as they must, that the
demographic group ban is not a necessary strategy to
combat CWD. There are regulatory alternatives to
banning new entrants as a governmental preemptive
disease-management strategy regarding farming
operations.
The Eighth Circuit decision means that the
government in the future when banning demographic
groups from government-recognized-and-regulated
occupations will not be facing any meaningful judicial
scrutiny beyond the most deferential rational basis
test. This issue is highly salient for a wide range of
government-recognized-and-regulated
occupations
nationwide. This issue is also highly salient for
protected classes as they would be most vulnerable to
demographic bans from occupations—whether based
on suspect classifications or otherwise.
The Petitioners contend that the Court should
hold that a group classification completely excluded
from
a
government-regulated
occupation
is
automatically a special category or suspect
classification worthy of strict scrutiny review. Federal
35
court case precedents support such a move by the
Court.
Federal courts have applied strict scrutiny to
occupational licensing schemes that categorically
exclude groups meeting the criteria for suspect
classifications. In Adusumelli v. Steiner, a federal
district court applied strict or intermediate scrutiny to
a New York licensing statute that excluded non-legal
permanent resident aliens from the pharmacy
profession. Adusumelli v. Steiner, 740 F.Supp.2d 582,
588 (2010). The court held that the licensing statute
violated equal protection whether reviewed under
strict or intermediate scrutiny, finding that the
exclusion was not narrowly tailored to serve the state's
asserted interests. Id. at 598-599.
Similarly, in Dandamudi v. Tisch, the Second
Circuit applied strict scrutiny to state policies
distinguishing between permanent resident aliens and
nonimmigrants in occupational licensing, holding that
such discrimination was subject to strict scrutiny
review. 686 F.3d 66, 72 (2012). The court held the
New York statute unconstitutional. Id. at 79.
In Six v. Newsom, applying this Court’s
precedent from Conn, the court noted that the
constitutional right to earn a living protects against 'a
complete prohibition of the right to engage in a calling'
and not against brief interruptions to that pursuit. Six
v. Newsom, 462 F.Supp.3d 1060, 1072 (2020). The
court noted that the Supreme Court has indicated that
the liberty component of the Due Process Clause
includes some generalized due process right to choose
one's field of private employment, but a right which is
nevertheless subject to reasonable government
36
regulation. Id. This distinction suggests that complete
bans on groups of people from government-recognized
occupations may receive more judicial scrutiny than
mere
licensing
requirements
or
temporary
restrictions. Id.
In Hund v. Cuomo, a federal district court in
New York recognized that the right to pursue a
profession is a liberty interest for which one enjoys
substantive due process protection and noted that
some courts have held that one must have no ability to
practice one's profession at all to state a substantive
due process claim. Hund v. Cuomo, 501 F.Supp.3d 185,
203 (W.D. N.Y. 2020), citing Marino v. City Univ. of
N.Y., 18 F. Supp. 3d 320, 339 (E.D.N.Y. 2014) (noting
that “a person's right to pursue the profession of his
choice is recognized as a constitutionally protected
liberty interest”).
In Barletta v. Rilling, a federal district court
found that a Connecticut statute prohibiting all
convicted felons—not a protected class—from
obtaining precious metals licenses violated equal
protection under rational basis review because it was
both grossly over-inclusive and grossly underinclusive as a proxy for serving the State's stated
goals. Barletta v. Rilling, 973 F.Supp.2d 132, 135-149
(2013). The court emphasized that by substituting a
felony conviction bar for an individualized
determination of suitability for licensure, the
legislature
rendered
section
21-100(a)
standardless. Id. at 140. This case illustrates that
even under rational basis review, categorical
exclusions based on group membership may violate
constitutional principles when they lack sufficient
connection to legitimate governmental interests and
37
fail to provide for individualized assessment of
qualifications. Id.
These
cases
demonstrate
that
when
demographic bans on legal vocations target
established suspect classifications such as alienage,
the federal courts will apply heightened scrutiny
rather than deferential rational basis review. They
also demonstrate when suspect classifications are not
involved in the demographic bans, the federal courts
still apply heightened judicial scrutiny. So, even
though a demographic ban on an occupation without a
suspect classification currently may not meet the
standard for fundamental rights and strict scrutiny,
the federal courts seem to agree that complete
demographic bans on occupations, regardless of
whether the classification is suspect or not, implicate
constitutional rights protected under the Due Process
Clause and Equal Protection Clause and are worthy of
extra judicial scrutiny.
The government may argue that not all groupbased exclusions involve suspect classifications and
that most occupational licensing receives only rational
basis review. See Lupert v. California State Bar, 761
F.2d 1325 (1985); DOE v. Rogers, 139 F.Supp.3d 120
(2015). However, complete bans targeting groups with
established suspect classification status trigger strict
scrutiny under Equal Protection doctrine—and so
should demographic bans targeting non-suspect
classifications. Courts have already applied strict
scrutiny to occupational licensing schemes targeting
alienage. Decisions in Adusumelli v. Steiner, 740
F.Supp.2d 582 (2010); Dandamudi v. Tisch, 686 F.3d
66 (2012), demonstrate precedent for heightened
review. All groups excluded from a legal vocation
38
should be entitled to the same constitutional
protection under the Fourteenth Amendment.
The government may contend that licensing
schemes with categorical exclusions still constitute
regulation rather than complete prohibition if
alternative occupations remain available. This
argument misses the federal courts’ distinction
between complete prohibition versus regulation.
Federal courts recognize that complete prohibitions
receive different constitutional treatment than mere
regulation. Six v. Newsom, 462 F.Supp.3d 1060 (2020);
Hund v. Cuomo, 501 F.Supp.3d 185 (2020). Hence, a
total exclusion from a legal vocation constitutes a more
severe deprivation than licensing requirements or
temporary restrictions.
Finally, the government may argue that courts
have consistently held that the right to pursue a
chosen profession is not a fundamental right for strict
scrutiny purposes. Lupert v. California State Bar, 761
F.2d 1325 (1985); DOE v. Rogers, 139 F.Supp.3d 120
(2015). However, to the contrary, it can be argued that
complete occupational bans implicate substantive due
process protections even if the right to a specific
occupation is not fundamental. There are cases on
petitioners’ side. Federal courts recognize broader
constitutional protection for the liberty to earn a
living, Erotic Service Provider Legal Education and
Research Project v. Gascon, 880 F.3d 450(2018) and to
pursue chosen occupations, Hund v. Cuomo, 501
F.Supp.3d 185 (2020).
39
V.
Heightened judicial scrutiny is
necessary regarding complete
demographic exclusions from legal
vocations.
A legal anomaly exists that members of
protected classes are excluded from governmentrecognized legal vocations if the demographic ban is
not a suspect classification. The case law confirms that
facially neutral occupational bans like Minnesota's
deer farming prohibition create this legal anomaly
when completely excluding new entrants from an
occupation—including members of protected classes.
This fact reveals that a government can escape
heightened scrutiny because it doesn’t explicitly use
suspect classifications.
The Eighth Circuit’s decision illustrates this
problem. The court applied rational basis review to a
complete ban on new deer farming registrations, even
though this facially neutral law excludes all new
applicants regardless of race. Under current doctrine,
a new African-American deer farmer cannot bring a
successful equal protection claim because the law
doesn't
facially
discriminate,
and
proving
discriminatory intent for facially neutral laws requires
showing the ban was enacted because of, not merely in
spite of, its adverse effects on protected
groups. Personnel Adm'r of Massachusetts v. Feeney,
442 U.S. 256 (1979). Courts consistently hold that
disparate impact alone is insufficient without proof of
discriminatory purpose. City of South Miami v.
DeSantis, 508 F.Supp.3d 1209 (2020); Village of
Arlington
Heights
v.
Metropolitan
Housing
Development Corp., 429 U.S. 252 (1977).
40
This creates the constitutional anomaly:
complete occupational exclusions receive only rational
basis review when facially neutral, while partial
restrictions using explicit racial classifications would
trigger strict scrutiny. The Supreme Court's
framework in cases like Washington v. Davis, 426 U.S.
229 (1976) and Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S.
252 (1977) requires both disparate impact on a
protected class and discriminatory intent for
heightened review of facially neutral laws. This leaves
members of protected classes without meaningful
constitutional protection against occupational bans
that, while facially neutral, completely foreclose
economic opportunities based on timing rather than
merit.
Moreover, there is a constitutional concern that
the government will strategically manipulate
classifications to avoid constitutional scrutiny. Such
strategic behavior harms protected classes. Applying
the same strict scrutiny standard to the demographic
bans from occupations, suspect classifications or not,
will prevent this type of strategic behavior.
VI.
The complete prohibition of a
demographic group from an occupation
is the appropriate scope of
constitutional protection.
Specifically, this petition presents an
opportunity to revisit and answer legal question raised
by, but not answered in Conn. The Conn Court left the
questions of appropriate scope of constitutional
prohibition and of the appropriate legal standard for
review unanswered. The petitioners contend that the
41
complete prohibition of a demographic group standard
is the right scope of constitutional protection and that
this legal standard should be pronounced by the Court
in this case. The Court’s Conn decision leaves an
opportunity for the Court to pronounce the legal
standard of fundamental constitutional protection
against demographic bans on government-recognizedand-regulated occupations as constitutionally suspect
and worthy of heightened judicial scrutiny.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Dated: October 27, 2025 /s/Erick G. Kaardal
Erick G. Kaardal
Counsel of Record
Gregory M. Erickson
MOHRMAN, KAARDAL
& ERICKSON, P.A.
150 South Fifth Street
Suite 3100
Minneapolis, Minnesota 55402
Telephone: (612) 341-1074
Email: kaardal@mklaw.com
Email: erickson@mklaw.com
Counsel for Petitioners
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.