August 5, 2016

Weekly litigation report

By Deborah J. La Fetra Senior Attorney

Environmental Law: ESA abuse

Yesterday, we filed an administrative petition demanding that the U.S. Department of Fish and Wildlife repeal a regulation that imposes harsh Endangered Species Act restrictions on as many as 150 threatened species that Congress did not intend to be automatically covered. The regulation subjects ranchers and farmers in the Pacific Northwest, along with citizens across the Country, to the possibility of massive fines and even jail time for land use activities that Congress has deemed legal. PLF represents itself and the Washington Cattlemen’s Association.  Jonathan Wood explains it all, and our video features the ranchers and farmers who are the stewards of the land and host hundreds of acres of habitat.

Individual Rights: Race and Gender Preferences

On Tuesday, California’s First District Court of Appeal issued an unpublished decision in Coral Construction and Schram Construction v. City and County of San Francisco. This case, challenging the constitutionality of an ordinance requiring race and gender preferences in public contracting, began more than fifteen years ago. PLF won in the trial, appellate, and California Supreme courts. However, the supreme court remanded the case to allow the City to prove that it was compelled by the Equal Protection Clause of the federal Constitution to impose preferences in order to remedy its own pervasive and intentional discrimination against minorities and women. Instead of attempting to prove that claim, the City took steps to remove all remnants of the challenged ordinance.  The trial court and the appellate court agreed with the City that this mooted the case. This decision ends the substantive portion of the litigation.

First Amendment: Compelled Speech

San Francisco enacted an ordinance that requires advertisers of soda, vitamin water, and other sugar-sweetened beverages to dedicate 20% of each print advertisement to a statement of the City’s viewpoint that such beverages “contribute” to health problems. On Wednesday, PLF filed an amicus brief in the Ninth Circuit of Appeals, in American Beverage Association v. City and County of San Francisco, arguing that the ordinance poses significant First Amendment problems, because it compels advertisers to broadcast the government’s message.

First Amendment: Web-based Political Speech

Last year, the Federal Election Commission banned Super PACS from using the name of the candidate it supports in a website domain name or the title of a social media page. PLF filed an amicus brief in the case—Pursuing America’s Greatness v. Federal Election Commissionarguing that the ban hurts political committees that rely on naming candidates to  attract traffic to their websites and social media pages. On Tuesday, the D.C. Circuit Court of Appeals granted a preliminary injunction prohibiting the FEC from enforcing the regulation. The court cited PLF’s amicus brief to demonstrate that Pursuing America’s Greatness would likely succeed on its First Amendment challenge, because a total ban is not necessary to prevent fraud. There are less restrictive means to prevent fraud.

Property Rights:  Confiscation of Money

Imagine owing $8.00 (yes, eight dollars) in delinquent property taxes, and having the government confiscate the property, sell it at auction, and pocket the $24,500 proceeds.  We call that an unconstitutional taking to the extent the government kept the proceeds beyond the amount of the tax bill and related fees and interest.  PLF filed an amicus brief in the Michigan Court of Appeals, in Rafaeli, LLC v. Oakland County, explaining the constitutional prohibitions on this type of taking.  We also explained that if the confiscation is deemed a forfeiture rather than a taking, it is still unconstitutional under the Eighth Amendment’s prohibition of excessive fines.

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American Beverage Association v. City and County of San Francisco

A San Francisco ordinance requires advertisements related to sugar-sweetened beverages to devote 20% of the space to city-specified speech: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” A coalition of beverage trade associations sued the city for violating their First Amendment right not to be forced to express messages with which they disagree. The district court upheld the ordinance and the coalition appealed. PLF filed an amicus brief in the Ninth Circuit arguing that the ordinance must be subjected to heightened scrutiny and fails to pass constitutional muster.

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