President's weekly report — July 24, 2015
A complaint that a four-year old could file?
We filed this complaint in Oakland’s mandatory art fee case, Building Industry Association of the Bay Area v. City of Oakland. The premise is simple — the City wants to be more like a big important city, a city with some “there” to it, and get from here to there it must have more public art. Taxpayers range from being supportive of to harboring hostility towards public art, depending on the art and whether a four-year old could draw it, but are in agreement that if they are going to have to have it, then someone else should pay for it. And who better to pay for something that isn’t really needed than developers? Thus Oakland is requiring developers of new homes and businesses to put up art from a list of city-government-approved artists or pay an in-lieu fee. Since we don’t think there is any connection between new construction and a need for new art, we’re suing under the precedents we’ve set in Nollan and Koontz (that’s our client Coy Koontz, Jr., not public “artist” Jeff Koons). And since we’re not keen on any art having to be approved by a government politburo, we’re alleging a First Amendment violation as well. Now, for today’s quiz: Identify the big city where these works of modern public art are, or were, located:
Yes, you’re looking at “Tilted Arc,” the rusty wall of derision from New York, “Okeanos,” a 13 foot tall bronze coprolite dropped on La Jolla, and a very large red rabbit symbolizing something no one understands about Sacramento’s aviation history. Could Oakland possibly top any of these? Even with this?
Wetlands jurisdiction over prior converted cropland
This week we filed this complaint in Orchard Hill Building Company, dba Gallagher & Henry, v. United States Corps of Engineers. Here, the Corps is asserting jurisdiction over property despite the fact that it falls under a clear statutory exception for “prior converted cropland.” As our blog post explains, the exception should apply so long as the property is not abandoned, and a unified plan to develop a larger parcel is not an abandonment of parts not immediately developed. We expect at the outset to confront the question of whether a jurisdictional determination is reviewable in a court: that is the issue we lost in the 9th Circuit (Fairbanks) and 5th Circuit (Kent Recycling) but won in the 8th (Hawkes) — setting up for our pending petition for writ of certiorari in Kent Recycling.
A Public Trust Doctrine for Groundwater?
This week we filed this amicus brief in Environmental Law Foundation v. State Water Resources Control Board, the case where a trial court has approved an unprecedented expansion of the public trust doctrine to groundwater. Under the common law, the public trust doctrine ensured that people would have the right to access navigable waters for economic purposes (fishing and navigation). In California, at the behest of environmental advocates, that doctrine has spread to cover recreational uses of shore land and tributaries that affect navigable waters. Now the Environmental Law Foundation is seeking to extend that doctrine to ground water — creating yet another threat to water supplies for cities and agriculture. Our brief suggests that such an expansion is without any foundation in the law.
At-will employment doctrine gets our support
We filed this amicus brief in Landin v. HealthSource Saginaw. Roberto Landin was fired after multiple warnings and discipline for insubordination, multiple unscheduled absences, an inappropriate interaction with a patient’s family member, and violation of Healthsource’s sexual harassment policy. Naturally, he sued for wrongful termination, claiming he was in fact fired because he reported alleged negligence by a coworker. Our brief explains the virtues of the doctrine of at-will employment — for the both the employer and employee. The bottom line is that employers will be more likely to hire people in the first place if they know they won’t be sued if things don’t work out.
Victory for school choice
In 2013, the North Carolina legislature enacted the Opportunity Scholarship Program, which provided students from low-income families with publicly funded scholarships to attend private elementary and secondary schools. Two lawsuits, Richardson v. State of North Carolina and Hart v. State of North Carolina, were filed by the usual suspects to stop the programs. PLF filed this amicus brief in support of the scholarship programs. Now, the North Carolina Supreme Court upheld the program in this opinion. The Court held that plaintiffs failed to show that the program “plainly and clearly violates our constitution,” noting that neither the constitution nor legal precedent forecloses the legislature’s enactment of the Program. For more, see our blog post here.
Briefs filed in free speech case
PLF filed these briefs in the Eighth Circuit in Young v. Ricketts arguing that states can’t circumvent the First Amendment by characterizing speech as “conduct,” and requiring a business license for such “conduct. PLF client Leslie Young helps people to sell their homes without the help of a real estate broker. She acts as an advertising agent, posting online advertisements for homes that are for sale by owner. Nebraska calls Young’s advertising business the “conduct” of real estate brokerage, and has demanded that Young stop advertising until she gets a real estate broker license, or face fines and penalties. For more, see our blog.
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Building Industry Association Bay Area v. City of Oakland
An Oakland city ordinance requires anyone building a new residential or commercial project to either create a government-approved display of art or subsidize artists to create a display elsewhere in town. PLF represents the Building Industry Association of the Bay Area in a lawsuit challenging this law as violating the constitutional prohibition on taking money as a permit condition to fund government projects that are not directly related to the construction for which the permit is sought. Moreover, the law violates the First Amendment by forcing property owners and developers to engage in expressive activity.Read more
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