President's weekly report — December 4, 2015

December 04, 2015 | By ROB RIVETT

Freedom of contract in California at the Supreme Court

Competent adults should have the right to enter into contracts with the terms they choose.  And once they enter into such contracts, they should be bound to those terms — even if those terms include an arbitration clause.  We filed this amicus brief in support of that principal this week in MHN Government Services v. Zaborowski.  In this case, the 9th Circuit applied a California rule that finds that if an arbitration provision in a contract has more than one objectionable clause, the entire arbitration provision will be tossed out.  In any other type of contract where there is more than one problematic clause, California courts simply toss out the offending clauses a keep the remainder of the contract (unless the permeate the heart of the contract.)  This special adverse treatment for arbitration clauses reflects the hostility of California judges to arbitration clauses in general — a hostility that is inconsistent with the Federal Arbitration Act.  For more, see our blog here.

Federal overreach in Alaska

We filed this amicus brief in support of an Alaskan moose hunter in Sturgeon v. Frost. John Sturgeon was travelling via a hovercraft on a state-controlled navigable waterway surrounded by upland controlled by the National Park Service.  After the Service stopped him and threatened him with criminal prosecution for using a hovercraft (not permitted under Park Service regulations) he cried “foul.”  After all, he said, the state owns the bed of the navigable waterway, the state has jurisdiction over the waterway, and hovercraft are perfectly legal under state law.  Fearing the usurpation of its authority, the State of Alaska joined the lawsuit on Sturgeon’s side.  Notably, Sturgeon and the state have argued that the Alaska National Interest Lands Conservation Act, signed by President Carter, was written in a way to ensure that the state, not Park Service, would control the destiny of such waterways.  We filed this amicus brief this week arguing that the language of the statute is plain in allowing Alaska to control its destiny over state-owned lands and waterways.  Moreover, even if the statute weren’t clear, the courts should not defer to the Park Service’s attempt to define its own jurisdiction.  For more, see our blog here.

Petition denied

The Supreme Court denied the petition for writ of certiorari in Center for Competitive Politics v. Harris.  This is the case that challenged California Attorney General Kamala Harris’s demand that a nonprofit organization divulge its donor list.  We had argued in our amicus brief on behalf of ourselves and six other organizations that this was a violation of the First Amendment because of the potential chill it puts on donors.  You can read more about this concern in our blog post here.