President's weekly roundup
Property Rights – Right to Attorneys’ Fees
In the “unexpected bedfellows” department, we received an amicus brief in Building Industry Association of the Bay Area v. City of Santa Rosa from the ACLU. As you may recall, (and if you don’t see our post here,) the City of Santa Rosa began to force builders of new homes into a special tax district – without the vote required by California’s Proposition 13. In other words, if you wanted a building permit in Santa Rosa, the City required you to give up your right to vote on new taxes. Represented by PLF, the builders sued and won a decisive victory. Because it cost us valuable resources to vindicate constitutional rights, California law requires Santa Rosa to pay attorneys’ fees. But Santa Rosa is objecting, saying it should be relieved of paying our costs because its resources are stretched thin and the taxpayers shouldn’t foot the bill for the City’s mistake. Here’s where the ACLU comes in. Its brief helpfully points out that when a local government violates the constitution it really doesn’t matter if it did so while rich or poor. As to taxpayers paying for the mistakes of their elected officials, that is, the ACLU notes, precisely what the legislature contemplated when it made local governments responsible for paying attorneys’ fees. While we don’t often agree with the ACLU, we appreciate their joining us in vindicating the principle that even local governments must obey the constitution – or pay when they do not.
Property Rights – Coastal Land Rights
We filed a notice of appeal in SDS Family Trust v. California Coastal Commission. This is the case where we are arguing that the Coastal Commission cannot demand an easement across the sisters’ property in exchange for a permit to repair buildings on their property.
Environment – Greenhouse Gas Endangerment Finding
We filed a motion for rehearing in our lawsuit against the EPA’s endangerment finding, arguing that it should have vetted it’s endangerment finding with the Science Advisory Board. The court had found that the failure of EPA to consult with the advisory board, even if illegal, was “harmless error.” Our brief asking for rehearing points out that the error may have been more serious than that. We were joined by Roger McClellan, a former 28 year member of the Science Advisory Board, and a 15 year member of its executive committee. McClellan declared that the finding should have gone to the Board and, moreover, if it had there was a “substantial likelihood that the Endangerment Finding would have been substantially changed.”
Environment – Endangered Species
Briefing in now completed in the Polar Bear listing case. We are arguing to the District of Columbia Court of Appeals that there is no justification for listing the polar bears as endangered. Oral argument is set for October 19.
Free Enterprise Project – Expansion of Tort Liability
We had a negative decision in Marcias v. Saberhagen Holdings from the Washington Supreme Court this week. As explained here on our blog, the Washington court allowed a suit to go forward against a respirator manufacturer because the respirator had been used to capture asbestos dust and the employee’s job was to clean the dusty respirators. The dissent agreed with our arguments, described in more detail here and here, that the manufacturer of a safety device, that did not itself contain any hazardous material, should not be held liable for the way it was used by individuals outside its control. Alas, however, this represents a marked expansion of tort liability in Washington State.
Free Enterprise Project – Upholding the Law of Contracts
PLF filed an amicus brief in Hoover v. American Life Insurance Company this week asking the California Supreme Court to depublish an unfortunate Court of Appeal decision. In this case an employee of the insurance company signed a contract agreeing to submit any disputes to arbitration. Despite controlling precedent from the United States Supreme Court and federal statutory law, the court of appeal saw fit to rule that the employee’s alleged employment rights are not subject to arbitration, and allowed the employee to bring a class action lawsuit. Our brief asking for the decision to be tossed emphasizes the importance of the right of parties to bargain when entering into contracts, and the importance of those contractual terms to be honored.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›