November 22, 2013

President's weekly report — November 22, 2013

By President's weekly report — November 22, 2013

Free Enterprise Project — the Yogurt – Yoga – Work connection

We filed this amicus brief in Moradi v. Marsh, where we are asking the California Supreme Court to take up the enigmatic work-to-yogurt-to-yoga connection.  In this case an employee used her automobile for work related activities.  At the end of her work day, she changed into her yoga clothes, left work, and drove to a yogurt store intending to have a snack before her yoga class.  Alas, she had an accident while turning into the yogurt store.  Naturally, the other person in the accident sued, not only the employee but her employer, figuring that her employer was liable for everything that happens until the employee actually reaches home.  This being California, the Court of Appeal agreed, because it was “forseeable” that the employee might make a stop or two on her way home.  We’re asking that the California Supreme Court take up this case.  We’re suggesting that just because yogurt and yoga might be foreseeable, that is no reason to dramatically expand employer liability.

Property Rights — Rails to Trails

PLF filed its amicus brief in the U.S. Supreme Court case, Marvin M. Brandt Revocable Trust v. United States.  As explained in our blog, the United States is trying to create a novel legal theory that will give it legal title to thousands of abandoned railroad right-of-ways without paying the owners of the fee land a dime.  The government is arguing that upon abandonment there is an “implied right of reverter” to the United States.  This is a theory unhinged from common law precedent and unhinged from any sense of fairness to the affected landowners.

Environment — Endangered Species Act — Prairie Dogs

We filed our motion for summary judgment in People for Ethical Treatment of People v. United States Fish & Wildlife Service, our challenge to the listing of the Utah Prairie Dog.  As explained in our brief and our blog, because the critter, at 40,000 strong, is found only in Utah and is not used in interstate commerce, the federal government lacks jurisdiction to regulate it under the Commerce Clause.  But because the feds are exercising jurisdiction the critter is wreaking havoc on a number of small communities, digging up everything from airport runways to graveyards — much to the chagrin of those above the ground, on the ground, and below the ground.

Equality Under the Law Project — Racial profiling for Class Action counsel

Earlier this week the Supreme Court declined taking up Martin v. Blessing, a case in which there was a rather appalling use of race by a federal court.  As explained in our blog, this case arose out of a class action lawsuit where a trial court judge determined that the lawyers appointed to represent the class had to mirror the same race as the class members.  In the denial of certiorari, Justice Alito issued a separate statement.  While he agreed that as a matter of the procedure the case wasn’t ready for the Supreme Court, he called out the very skewed sense of justice exhibited by the lower court, noting, “I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.”  Quite true.  We had filed this amicus brief supporting review.

Property Rights and Inclusionary Housing mandates

Don’t forget to listen to this week’s podcast on San Jose’s inclusionary housing law and our case before the California Supreme Court, California Building Industry Association v. City of San Jose.  In that case we are arguing that the requirement that developers of market-rate housing pay a subsidy for low-income housing is unconstitutional.

 

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