President's weekly report — November 9, 2012

November 09, 2012 | By ROB RIVETT

Another week with some excellent breaking news, including another opportunity at the United States Supreme Court.

Equality Under the Law — Breaking News

We just learned that the Supreme Court granted cert in a very important voting rights case:  Shelby County v. Holder.  For many years the federal government has used  Section 5 of the Voting Rights Act to insinuate itself in the minutiae of elections in a number of states, most but not all of which are in the south.  While this may once have made sense in the 1960s when state-sponsored disenfranchisement of minorities was endemic in the south, it makes no sense today, a half-century later.  In fact, federal interference in election processes today often seems to be motivated more by political reasons than by a desire to root out actual cases of minority disenfranchisement.  At issue in Shelby County is whether the Constitution permits the continued use of Section 5 to interfere with the regulation of elections by states.  Or, as the Court put the question:  “Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act … exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”  Stay tuned.

Equality Under the Law — San Francisco Affirmative Action Discrimination

A hearing on summary judgment motions in Coral Construction v. City and County of San Francisco has been rescheduled to November 16, 2012.  This is the case where we are arguing that San Francisco is violated California’s Proposition 209 when it adopted bid preferences for woman and favored minority contractors.  After failing to prove that Proposition209 violates the Equal Protection Clause of the United States Constitution, San Francisco now claims it is acting under the only exception allowed under Proposition 209 — an exception for those instances where the Equal Protection Clause mandates an affirmative action remedy for past intentional discrimination.  In other words, San Francisco must argue that it has engaged in deliberate intentional discrimination that was so egregious that a mandatory federal affirmative action remedy is required.  We do not believe the City has a shred of meaningful evidence to prove such a preposterous and counter-intuitive circumstance.  Stay tuned.

Environment — Clean Water Act and Wetlands

We filed our opening brief in the 4th Circuit this week in Smith Farms v. United States Environmental Protection Agency, a case that demonstrates there is no limit on the ability of the EPA to run amok when trying to save wetlands muck, even when it is not, in fact, saving any wetlands or muck.  To counter some flooding caused by the construction of a nearby highway the farms owners, the Boyd family, needed to build some ditches. Before the Boyds started any land clearing in order to build paths to get to the sites of the ditches, the Boyds met with the Corps and showed the Corps the designs for what they proposed to do.  They were advised that they did not need any permits for their project.  The Boyds went a step further and asked Corps officials to inspect the site, specifically to ensure that all of their work was in compliance with the law.

Pursuant to the Boyds’ request, the Corps inspected the site on five separate occasions throughout the ditch excavation project.  Despite the Boyds’ specific request that the Corps advise them if the inspector observed any problems with the project – and the Boyds offer to cease work if any problems arose – the Corps raised no objections to the work being done, at any time during the project.

However, when the project was completed, the EPA suddenly, without notice, informed the Boyds that it was assuming jurisdiction of the project as a federally controlled “wetland.”  EPA officials chose to inspect the site two days after Hurricane Dennis had inundated the area, in 2005.  Nine months later, EPA issued a notice alleging multiple violations of the Clean Water Act, including filling wetlands without a permit (i.e., distributing wood chips on the site) and discharging a pollutant when rain caused silt to collect in the bottom of the ditches.  The dispute has continued ever since, proving once again that EPA knows no limits to its arrogance.

Free Enterprise Project — Contracts and the Rule of Law

We filed a letter brief in support of a petition for review before the California Supreme Court in Bartoni v. American Medical Response WestThis case involves a labor dispute where employees had agreed to submit all claims to binding arbitration and not as a class action.  Despite the plain language of the contract, the court of appeal held that “all claims” did not mean “statutory claims.”  We are arguing this case is worthy for review by the Supreme Court  because the court of appeal should have applied the clear and unmistakable language in the collective bargaining agreement.