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

Ask Donna

What actually matters in this document.

Text

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.