President's weekly report — June 26, 2015

June 26, 2015 | By ROB RIVETT

The physical invasion of the raisin snatchers a property rights victory at the Supreme Court 

In a week marked by several major Supreme Court decisions that were quite disappointing to advocates of limited government and the rule of law, there was one very bright spot: this decision in Horne v. United States Department of Agriculture. That’s the case where the feds demanded that a raisin grower and handler literally turn over a large percentage of raisin crop to the feds, for which he might, or might not, get paid.  He was fined over $680,000 for not giving away his raisins.  The Court surmised because Horne’s raising were physically taken, he suffered a physical invasion style takings.  Justice Sotomayor constituted the sole dissent, strangely suggesting that there was no physical taking because Horne might be paid, in a good year, something for some of the raisins.  For more on the case, see our blog post here and our amicus brief here.

Coastal Commission gets acquisitive

In Kretowicz v. California Coastal Commission a couple is seeking a permit to build a pool and do some improvements on their home.  But the Commission is demanding the owner first give up an easement across their property down to the shoreline.  Now there is no way the Commission could justify that under cases like Nollan and Dolan.  But the Commission says, no matter, we had already imposed that condition on a prior owner thirty-five years ago — years before Nollan put a stop to the practice of extorting easements for permits.  However, the easement was never recorded and there is no practical way the Kretowiczs could have known about the easement unless they scoured the records at the Commission’s headquarters.  We filed this amicus brief pointing out that under California law, when an easement is not properly recorded, it isn’t enforceable.  Otherwise, homeowners would forever be subject to “gotcha” surprises left behind in the chain of title.

Rats and slumlords rejoice — Fair Housing Act supports disparate impact claims

Several years ago landlords in Chicago claimed that a strict enforcement of health and safety regulations had a disparate impact on minority housing and was, therefore, a violation of the federal Fair Housing Act.  Put another way, they were claiming that if they had to clean up their apartments they would have to raise rents or tear down buildings to the detriment of the poor. That case, Magner v. Gallagher, made it all the way to the Supreme Court where a settlement was quickly engineered in order to deprive the Court of an opportunity to rule whether “disparate impact” claims can be heard under the Act.  That concern proved unnecessary.  This week the Supreme Court issued this opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, which held that disparate impact claims could be brought under the Act.  Here, Texas was sued because it tended to finance low-income housing projects where low-income people actually lived, rather than out in the burbs away from jobs, public transportation, and community ties. We had filed this amicus brief for ourselves and the Center for Equal Opportunity pointing out that the language in the Fair Housing Act did not contain the sort of language found in other statutes where disparate impact claims had previously been divined.  As Justice Alito put it for the dissent, “Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.”  For more, see our blogs here and here.

Hockey Moms get physical — premises liability in New York

We filed this amicus brief in Pink v. Ricci, a case out of upstate New York where hockey Moms (and Dads) take the youth game very seriously.  So seriously that a fight broke out among the Moms.  Eventually, one of the Dads was injured when he got in the way of a flying fist.  So naturally he sued, not only the person throwing the fist but also the youth hockey league that sponsored the game.  Our amicus brief points out that premises liability should not extend to a deep pocket when there is no warning or other reason to believe that fighting will occur.  See our blog post here.

Government’s eyebrows get threaded —  facts do matter

The Texas Supreme Court today issued this decision in Patel v. Texas Department of Licensing and Regulation the Texas eyebrow-threading case brought by the Institute for Justice that we were amicus in. This involves a ridiculous requirement that “eyebrow threaders” (the folks who use threads to pluck out stray eyebrow hairs) get full-on cosmetology licenses.  We argued that the Texas Constitution’s Due Course of Law Clause should not be read as coextensive with the federal Due Process Clause and that the Texas state version of “rational basis” should be more protective of economic freedom than is the federal “government does whatever you want” test. The bottom line now is that the requirement will be subject to meaningful scrutiny by the lower courts where facts can now be put into evidence.  We had filed this amicus brief suggesting that a “rational basis” test, meaning a court would be forced to buy off without factual inquiry any cockamamie excuse for the regulation put forward by the state.  For more, see our blog post here.

Private eyes get respect — Nevada law repealed

Nevada Governor Brian Sandoval has signed a measure repealing a law that erected a protectionist barrier against out-of-state private investigators by requiring them to maintain a costly brick-and-mortar office in the state. The repealed law — which was the target of our lawsuit Castillo v. Ingram that we filed on behalf of a California-based PI — also violated the First Amendment, because its government licensing mandate was so broad as to apply to nearly everyone who performs research. Now that the Governor has signed the law, investigators will be free to work without an expensive in-state office.  For more, see our press release here.

Suckers get a break — critical habitat decision immune from review

Santa Ana Sucker gets respect

In Bear Valley Mutual Water Company v. Jewell, the Ninth Circuit held today that decisions not to exclude areas from critical habitat for the Santa Ana Sucker, under the Endangered Species Act are not reviewable in court. Even though the ESA and its implementing regulations set standards and procedures that the government must use in evaluating whether a given area should be left out of a critical habitat designation, the Ninth Circuit says the federal courts may not hold the government to those standards and procedures. Oddly, the court came to this conclusion despite the fact that when the government actually decides to exclude an area from a critical habitat designation, that action is reviewable in court. So, environmental groups can sue the government for excluding areas from critical habitat, but landowners and others cannot sue the government for declining to exclude an area from critical habitat. We had filed this amicus brief in 2012.

Racial preferences get an “okay”

The district court for the District of Columbia issued this decision in Rothe Development v. U.S. Department of Defense, upholding the use of preferences in contracting. We had filed this amicus brief pointing out that the law does not require and the Constitution does not permit race-based contracting requirements.

Greenhouse gas case gets a bit more gas — EPA regulations challenged

In Delta Construction v. EPA and California Construction Trucking Ass’n v. EPA, the D.C. Circuit responded to our petition for rehearing en banc in our twin challenges to the EPA Greenhouse Gas Truck Rule and Car Rule by issuing an order requiring EPA to respond to the petitions. The sole issue is whether our clients have standing.