Unfortunately, on January 17th, the Ninth Circuit of Appeals ruled against our court case. During the Oral Arguments before the Ninth Circuit on October 17th 2017, our lawyer, Louis Sirkin, did a great job of responding to the judges’ grilling. He strongly made the case that the California law  criminalizing prostitution, 647(b), was unconstitutional and should be struck down.  In contrast, the State Deputy Attorney General visibly struggled under questioning, and often appeared to be uncomfortable arguing the State’s case. So, after the hearing, our lawyers felt that we had a good chance of a ruling to remand the case back to the District Court for a more detailed hearing.  

But sadly, the Ninth Circuit panel chose to dismiss, arguing that a 1998 Ninth Circuit case (IDK, Inc. v. Clark Cnty.) established that the relationship between a prostitute and client was not protected by the due process clause of the Fourteenth Amendment. IDK relied on the 1986 Bowers v Hardwick case (which upheld a Georgia sodomy law). However, in 2003, the Supreme Court explicitly overturned Bowers in Lawrence v Texas, and struck down sodomy laws nationwide - and clearly established a constitutional protection of sexual privacy. So for the Ninth Circuit panel to ignore Lawrence, and reach back 20 years to IDK, is a quite remarkable piece of legal jiggery-pokery (Webster definition: underhanded manipulation or dealings: trickery).

But we still have options. We have 14 days to file for a full Ninth Circuit rehearing - not just before a three judge panel, but “en banc” (usually 11 judges in the Ninth Circuit). The decision to allow an en banc hearing is entirely down to the Ninth Circuit. If our request is rebuffed, then we have 90 days to appeal to the US Supreme court.  

We would have to be prepared financially for either option - but right now we are not. In fact, we are still paying off legal costs associated with Ninth Circuit Oral Arguments in October. So the key question is whether we have a realistic chance of raising sufficient funds to move forward - or whether we will just have to let the clock run down on our chance. Your donations now will influence these decisions.  

In the future, there might still be further approaches. For example, most people who are arrested for 647(b) either take a plea deal, or take diversion options like LEAD, both or which involve waving the right to make further challenges to the law. But it would be entirely possible for someone who is arrested for 647(b) to take their case to trial and use some or all elements of our ESPLERP v Gascon briefs to make an ‘as applied’ challenge. That would start a challenge to 647(b) rolling in the State criminal courts, rather than the Federal courts where we have been so far, but would still require considerable financial backing.

Fundraising
Thanks so much to the  anonymous donors who put up $2000 of matching funds, as part of our attempt to raise $30,000 to meet the financial obligations of our Appeal.  https://www.crowdrise.com/o/en/campaign/litigate-to-emancipate1

Thanks to all the new folks who stepped up over the past year. And thanks to all who are part of the monthly giving.  

●      Contribute online at litigatetoemancipate.com
●      Hit the PayPal button at http://esplerp.org  
●      Mail checks to ESPLERP, 2261 Market Street # 548, San Francisco, CA

Happy New Year!
Maxine

Wait you are telling me that an army of providers charging $500 an hour can't scrape together enough for the en banc or petition for certiorari?  They need to take it all the way since they have basically wasted all their efforts if they don't.  

Sirkin might be able to be forced to continue the case if the 9th Circuit doesn't permit him to withdrawal so they should file a motion to force Sirkin to keep litigating without prepayment of attorneys fees, which is a recognized exception to the 13th Amendment - once an appearance is made by an attorney he is subject to remain on the case if the court refuses to let him withdrawal even if he is not being paid.  That would be a case of attorney trafficking modern day slavery I think it would be great strategy.