President’s weekly report — February 27, 2015

February 27, 2015 | By ROB RIVETT

Overcriminalization and the fishy abuse of Sarbanes-Oxley

The United States Supreme Court issued a good decision in Yates v. United States, in favor of fisherman John Yates.  As described in our blog,  because Yates threw some undersized fish overboard after an inspection, Yates was charged with violating the Sarbanes-Oxley Act, a post-Enron statute that prohibits the destruction of items like computer files and financial data.  Yates was subject to 20 years in prison for throwing the fish overboard.  PLF filed an amicus brief on behalf of Mr. Yates suggesting that Sarbanes-Oxley does not encompass fishing violations and that overcharging defendants with extraordinary crimes and sentences, is manifestly unfair to defendants — including innocent ones. There was a dissent, notable if for nothing else its citation to that eminent legal authority Dr. Seuss.  We guess sometimes you have to go with the best you have.

Equality Under the Law Project — Victory in Buffalo

In Margerum v. City of Buffalo, the New York Court of Appeals issued this favorable decision.  As described previously in our blog, the City of Buffalo prevented top-scoring firefighters from receiving promotions because of their race.  The City commissioner testified that he did not want to increase the racial disparity within the fire department, and he wanted to end two existing disparate impact suits.  The white firefighters sued, arguing that the City’s race-based decision to deny their promotions violates the right to equal protection of the laws.   The firefighters won the case.

The good news is that the majority opinion accepted Ricci (the Supreme Court case involving firefighters in New Haven) as controlling and did not include any language to dilute the standard itself. That was the point of our amicus brief, so it is a victory in that sense.  However, the court ruled that liability cannot be decided on summary judgment motions, and remanded the case for trial to determine why the City let the promotion eligibility lists expire.

School Choice — North Carolina

Oral argument at the North Carolina Supreme Court was held this week in Richardson v. State of North Carolina, and Hart v. State of North Carolina, cases challenging North Carolina’s scholarship program.   The Program provides scholarships to low-income families so that they can send their children to private schools. But entrenched interests are trying to scuttle the competition by raising various constitutional claims.  For more see our amicus brief here and our blog post here.

Education Labor Reform

We filed this amicus brief in Friedrichs v. California Teachers Association supporting the right of teachers not to be forced to subsidize union coffers without their express affirmative consent. We’re asking the United States Supreme Court to hear the case. As our amicus brief and blog post explain, the Supreme Court has expressed some serious concerns over whether forcing public employees to pay union dues without their affirmative consent violates the First Amendment rights of the employees.

Arbitration Reform

We filed this amicus brief asking the United States Supreme Court to take up U.S. Legal Services Group v. Atalese.  This is another case where a lower court has attempted an end-run around federal law favoring arbitration clauses. As our blog post explains, the New Jersey Supreme Court threw out an arbitration clause because the express terms in the contract calling for arbitration didn’t explain fully enough that arbitration means arbitration, i.e. not being able to sue in court.  We think New Jersey citizens are smarter than that.

Tort Reform — Lead Paint & Public nuisances

We filed this amicus brief in State of California v. ConAgra, asking the California Court of Appeal to reverse a trial court ruling that presumed all homes with lead paint (pretty much any home built before the mid-1970s) to constitute a public nuisance.  As our blog post notes, every other state where this theory has been raised has rejected it for good reason.  The open-ended liability and lack of a limiting principle would create much havoc if the decision is not reversed.

Endangered Species Act – Wolverines

Be sure to listen to our podcast on whether wolverines should be protected by the Endangered Species Act.