June 14, 2013

President's weekly report — June 14, 2013

By President's weekly report — June 14, 2013

Economic Liberty – Right to Earn a Living

We had a very sweet victory this week in Bruner v. Zawacki, our Kentucky movers case. We filed this case in August of last year in federal district court in order to toss out as unconstitutional Kentucky’s outrageous restrictions on starting up a new moving company. Essentially new moving businesses are required to get “permission” from their competitors before they can open their doors. While we were in the middle of discovery in the federal case, however, Kentucky suddenly tried to bring the Bruner’s Wildcat Moving Company to its knees in state court – without the courtesy of letting us know. As soon as we learned about the action, we filed for a restraining order in federal court – asking the court to stop all other proceedings against our client. As noted on our blog, the court was not at all amused by the state’s tactics and it issued an injunction against the state, and strongly suggested that the state’s anticompetitive behavior was “highly suspect” and would not survive a full hearing.

Property Rights — Hawaiian Title Subterfuge

We has a very nice victory today in Hawaii. Essentially, in In re the Trustees of the Estate of James Campbell, the State of Hawaii was attempting to create an end-run around the State’s land title system in order to grab minerals owned by a private landowner. Robert Thomas’s excellent blog post explains in more detail. Robert Thomas had filed this amicus brief for PLF just a bit over three years ago.

Environment – Cap and Trade of Greenhouse Gasses

We filed our opening substantive superior court brief in Morningstar Packing Co. v. California Air Resources Board. This is a major step in the path to stopping this thinly disguised tax on productive businesses in California – a tax adopted in violation of the California Constitution. As our blog explains, no matter the air board tries to pass this off as something other than a tax or fee, it is and cannot be adopted without a two-thirds vote of the legislature.

Environment – Endangered Species Act and the Santa Ana Sucker

We filed our friend of the court brief this week in Bear Valley Mutual Water Company v. Jewell. In that case the Fish & Wildlife Service issued a biological opinion establishing critical habitat for the Santa Ana Sucker without consulting with the affected county government. Our amicus brief before the Ninth Circuit argues that that Section 2(c)(2) of the Endangered Species Act imposes a mandatory duty on the Service to cooperate with state and local agencies to resolve water resource conflicts before designating critical habitat. We note that a similar failure led to the disastrous Delta Smelt crisis a few years ago in California’s Central Valley as well as the problems that flowed from the erroneous listing of the Valley Elderberry Longhorn Beetle.

Environment – Endangered Species Act and the Grey Wolf

As reported here in our blog, the Fish & Wildlife Service has exited the ESA management of the gray wolf in most of the West, leaving that task to the states. It’s about time. The comeback of the wolf has been nothing short of remarkable, and it should be patently obvious that the wolf is in no danger of extinction. While our friends from the environmental community who have raised fortunes on emotional campaigns surrounding wolves may claim to disagree, this was the correct decision on scientific, legal, and moral grounds.

Equality Under the Law Project

We filed our friend of the court brief this week before the Ninth Circuit in Davis v. Guam. In that case, Guam has set up a plebiscite system that asks for the vote on the future of Guam’s relationship with the United States. So far, so good. But Guam is restricting the vote to only those citizens of Guam who can claim certain ethnic ties to the island. In other words, for many new citizens of the island, there is no right to vote. However, as our blog post notes, so long as the United States Constitution applies to Guam, our Equal Protection Clause does not countenance such overt discrimination.

Free Enterprise Project – Tort Reform and Criminal Acts

We filed our amicus brief this week in Collins v. Navistar. In that case, a juvenile delinquent killed a truck driver after the miscreant tossed a 2 ½ pound chunk of concrete from an overpass into the windshield of an oncoming truck. The victim’s family sued the truck manufacturer, claiming its windshields should be designed to withstand such blows because such tragedies have happened before. Relying on the infamous “defective” telephone booth case (defective because it was hit by a drunk driver), the Court of Appeal held for the truck driver’s family. Our brief to the California Supreme Court explains, however, that truck manufacturers should not be liable for not turning their vehicles into Sherman tanks strong enough to withstand criminal acts of this nature. Otherwise, all manufacturers would be at the mercy of tort lawyers whenever their customers fall victim to criminal acts involving their products. Neither the public nor consumers would benefit. Read more in our blog here.

Free Enterprise Project – Tort Reform and Class Actions

Contrary to what we had argued in our amicus brief, the Massachusetts high court this week issued a decision that created a loophole around contractual provisions spelling out arbitration requirements and avoiding class action abuses. As our blog notes, this is an evasion of Supreme Court precedent.

Free Enterprise Project – Class Arbitration

The Supreme Court issued a decision this week in Oxford Health Plans v. Sutter, finding that an arbitration contract that was silent as to class arbitration could nonetheless be interpreted to allow class arbitration when the arbitrator interpreted the contract using state law. As our blog explains, this was a fairly narrow decision, meaning we must wait for another day for more progress on this issue.

Free Enterprise Project — Causation

In Bostic v. Georgia Pacific, PLF filed an amicus brief in the United States Supreme Court arguing that the court should reaffirm its 2007 case that restored more traditional causation standards in place of the formerly lax causation standards that had been created specifically for asbestos cases. As our blog notes, even asbestos plaintiffs must prove causation.

 

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