March 8, 2018

Pacific Legal’s Formula for Winning Cert: “Evil villains, outrageous facts, and sympathetic clients”

By Tony Mauro and Marcia Coyle, National Law Journal Guest Author

The Pacific Legal Foundation has had quite a week.

Its 45th anniversary celebration at Ronald Reagan Presidential Library and Museum in California last weekend was bracketed by an oral argument before the U.S. Supreme Court February 28, and a cert grant on March 5—its third this term.

The argument in Minnesota Voters Alliance v. Mansky was a challenge to a Minnesota law banning political badges and clothing at polling places. The newly granted case Knick v. Township of Scott, Pennsylvania asks the court to reconsider Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 precedent that requires property owners to pursue takings cases in state court before going to federal court.

Neither case hails from the left coast, but that’s not a problem for Pacific Legal’s president and CEO Steven Anderson. Even though it is based in Sacramento, PLF is a national liberty-oriented public interest group, he says. We caught up with Anderson, who came to the organization in 2016 after a 12-year stint at the like-minded Institute for Justice. Snippets from the conversation:

→ Why the Knick case is important: “The whole property rights bar has been clamoring for the court to do something about Williamson County for decades now. In fact, when I left IJ, I sat down with a couple of attorneys to talk about PLF and the first thing they said was, ‘make sure you get Williamson County overturned.’ Because it’s something that inexplicably prevents property owners from pursuing their federal takings cases without first exhausting the remedies of state courts. It just makes no sense.”

→ The key to success in getting cert granted: “You need doggedness and determination, and real subject matter expertise. You’ve got to be able to write great cert petitions because that’s the way you get in the door, but you also need to find clients that judges can rule in favor of. Across the board if you look at any of PLF’s cases, while it’s pretty sophisticated constitutional law, at the end of the day it’s a simple formula, and that’s evil villains, outrageous facts, and sympathetic clients.”

→ Why a national organization is still called Pacific Legal Foundation: “Well, we were founded in 1973 by members of then Governor Reagan’s gubernatorial staff. I’ll be quite candid with you, when I came to PLF I thought we needed to change the name because of its connotation that it’s just a West Coast organization. But we know that the court takes very seriously briefs that are written by Pacific Legal Foundation and we just couldn’t give up more than four decades of brand equity where we’ve earned that reputation, so we decided to stick with the name. Southwest doesn’t just fly in the southwest anymore. If we can become the Southwest of public interest law firms, we’ll know we’ve made it.”

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Minnesota Voters Alliance v. Mansky

On February 28, 2018, the U.S. Supreme Court heard oral argument in our case challenging a Minnesota election law that literally strips free speech rights from the backs of voters. A Minnesota state law prohibits voters from wearing “political” apparel at a polling place. This includes any t-shirt, button, or other item that identifies any political issue and even any organization that is known to take positions on political issues. Voters who wear AFL-CIO or NRA caps are told they must remove them before they can enter the polling place and vote. If they refuse, election officials take their names for possible prosecution and penalties up to $5,000. Lower courts upheld this law on the theory that government can ban all expression, besides voting, at a polling place.

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