September 13, 2013

President's weekly report — September 13, 2013

By President's weekly report — September 13, 2013

Individual Rights — Health Care

The court has established a briefing schedule in Sissel v. United States Department of Health & Human Services,  our Obamacare litigation where we are challenging the tax as a violation of the Origination Clause of the constitution.  The drafters of the constitution didn’t think it was a good idea for the Senate to draft revenue bills and neither do we.  Our opening brief is due October 24th.  And as noted elsewhere in our blog, this case is getting noticed in the mainstream press.

Property Rights — Low Income Housing Exactions and Inclusionary “zoning”

The California Supreme Court accepted review in California Building Industry Association v. City of San Jose.   In this case, PLF is challenging a city ordinance that requires home builders to surrender 15% of the new homes they build to the City, so that the City can then sell them at below market prices to qualified low-income buyers.  PLF will be arguing that the court should invalidate this ordinance under its precedent in San Remo Hotel v. City and County of San Francisco.  New homes do not create high housing prices, but rather they decrease housing costs on the margin.  Therefore, even if San Jose is trying to address a legitimate public concern (high cost of housing), it may not constitutionally impose these exactions on new home builders, because there is no reasonable relationship between the new homes and the problem of high housing costs.  For more details, see our prior blog post here.

Property Rights — Texas Beaches

We filed our opening brief in Brannan v. State of Texas in the Texas Court of Appeals.  At issue is whether the state unconstitutionally took private beach front property by redefining it as “public beach” after Tropical Storm Frances moved the vegetation line landward.  We already had a major victory on the principle before the Texas Supreme Court in the Severance case, and are now working to make sure the law in Texas is followed.   The Texas Supreme Court previously sent this case back down after Severance.

Environment — Endangered Species

The U.S. Fish and Wildlife Service determined this week that delisting or downlisting five southwestern plant and animal species from the endangered species list may be warranted, as a result of a petition from PLF.   Read our blog here for more details on gypsum wild-buckwheat, black-capped vireo, Kuenzler hedgehog cactus, lesser long-nosed bat, and Tobusch fishhook cactus.

Environment — Water Contracts

En banc argument is set for September 19, 2013, in Natural Resources Defense Council v. SalazarAs explained previously,  the environmental plaintiffs  challenge the failure of the Bureau of Reclamation to consult with the United States Fish and Wildlife Service and National Marine Fisheries Service when the Bureau renewed a number of water service contracts for districts in California’s San Joaquin Valley.  The original panel decision threw out some of the environmentalist claims on standing grounds, and the rest of the claims on the merits.

Tort Reform —  Arbitration

In an opinion issued today in Hill v. Garda, the Washington Supreme Court found an angle, at least for now, to get around federal law that favors individual arbitration agreements.  As our blog post explains in more detail,  employees signed individual contracts that called for arbitration in the event of a dispute.  A number of employees joined together as a class, seeking class arbitration of the dispute.  The state court today found the arbitration clause to be unconscionable, despite some pretty clear precedent from the United States Supreme Court that favors arbitration decisions.  We hope to see this case to go further.

 

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Brannan v. State of Texas

After a 1998 tropical storm moved the vegetation line landward of Texas beachfront homes, state officials informed the beachfront homeowners that, based on its policy of considering the public beach to extend inland to the vegetation line (wherever it goes), the homes were encroachments on a public beach and subject to removal for violating the State’s Open Beaches Act. That “rolling easement” policy was invalidated by PLF’s Texas Supreme Court victory in Severance v. Patterson (2012). PLF represented Angela Brannan and other beachfront homeowners in Surfside, Texas, who were subjected to the “rolling easement” and resulting loss of their property by government fiat. The Texas Court of Appeals ruled that the owners could pursue their takings claims as validated by the Severance case. Local counsel took over the case on remand.

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