President's Weekly Roundup

June 22, 2012 | By ROB RIVETT

Happy Friday! Here are this week’s legal highlights:

Individual Rights – Free Speech

We had a major Supreme Court amicus victory this week in Knox v. S.E.I.U.  In a 7-2 knockout, the Court ruled that S.E.I.U.’s mid-year supplemental assessment of fees to be used exclusively for political purposes was unconstitutional.  Each year, nonmembers are given the ability to “opt-out” of having money taken out of their paychecks so the union can spend it on politics.  In other words, each year they must affirmatively take steps to keep their own money from being used for politics.  (That is in contrast to an “opt-in” system where nonmembers would have to take steps to have a deduction taken from their paychecks for politics.)


In this case, non-union members had money deducted from their paychecks mid-year, without their permission (neither opt-in nor opt-out) so the S.E.I.U. could launch a major campaign against two California ballot measures (including one, ironically, that would have limited the ability of unions to deduct money from the pay of nonmembers.)  The Court held that this practice violated the First Amendment rights of the employees who did not wish to support the union politicking.  The Court held that employees must affirmatively “opt-in” to have such a special assessment deducted.

Of great significance was the fact that five members of the Court joined an opinion that questioned whether any amount of money could be deducted from paychecks for political purposes unless a worker affirmatively opts into such a scheme.  This questioning of all “opt-out” procedures follows directly from our amicus brief.  Because the parties challenging S.E.I.U. quite properly focused only on the mid-year assessment scheme at issue in the case, they could not brief the broader constitutional problems posed by opt-out schemes.   However,  as amicus we had more leeway to discuss policy and it seems five members of the Court noticed.  While the Court could not rule beyond the scheme directly before it, we are very hopeful that a case will soon be brought to the Court that will challenge all “opt-out” schemes.

Environment – Endangered Species Act

On Monday we filed our amicus brief in support of local water district in its challenge to the Service’s 2010 Santa Ana sucker critical habitat determination.  Our brief in San Bernardino Valley Municipal Water District v. Salazar focuses on the water districts’ novel claims under Section 2 and Section 7 of the ESA that the Service was required but failed to cooperate and consult with state and local agencies prior to issuing its determination.  If left standing, the determination will severely restrict the ability of local agencies to provide water and flood control for Southern Californians, and our brief emphasizes that judicial review is necessary so as to ensure that the people ultimately affected by this type of ESA decision have a meaningful voice in the regulatory process.

Environment –  Clean Water Act

We are all eagerly awaiting the Supreme Court’s decision, possibly on Monday, on whether it will hear Decker v. Northwest Environmental Defense Center.  In this case, we filed an amicus brief supporting a petition for certiorari from the 9th Circuit’s opinion that denuded a well-established exemption from permit requirements for forest road construction and maintenance.  If this decision stands, tens of thousands of permits will be required for forest roads, culverts, and minor maintenance work.  The result will not only harm an already struggling timber industry, but may impact public schools in Washington State.   Even the EPA realizes this decision went too far, and proposed amending its rules, as described on our blog.

Health Care – Obamacare

In other news next week from the Supreme Court, the Court will rule on Obamacare.  We are all eagerly waiting to learn whether the limitations on federal power written into the Constitution are meant to be taken seriously, or just written for our amusement.  Be sure to check here for analysis of the opinions shortly after they come down.

Individual Rights – Equality Under the Law Project

The Supreme Court denied a petition for cert in Doe v. Lower Merion School District.  We had supported the efforts of a group of African-American parents who objected to the racial gerrymandering of their school district boundaries.  Read our amicus brief.

Property Rights – Washington State

We filed our petition for review to the Washington Supreme Court this week in Birnbaum v. Pierce County.  In this case, Pierce County delayed granted Ms. Birnbaum a permit to develop her property into a campground for five years beyond the statutory deadline.  Soon after she received her permit, she sued for the delay damages – waiting until her case was ripened by the granting of the permit.  Contrary to well-established state court precedent, the court of appeals ruled that she should have filed earlier – before there had been a final decision.  We are asking the Court to take this case so that Ms. Birnbaum is not punished for following well-established procedural rules.

Property Rights – Oregon

We filed an amicus brief this week in Bruner v. Whitman, a case where we are supporting property owners who were given relief under Oregon’s property rights initiative, Measure 37, before that measure was rescinded with Measure 49.  We are asking the Supreme Court to take cert in this case because it is unconstitutional for the property rights established with Measure 37 be retroactively taken away.