June 23, 2018

Weekly litigation report

By James S. Burling Vice President for Litigation
  • Victory in New Orleans home demolition case!
  • Supreme Court goes part of the way on limiting administrative power
  • PLF files reply brief to compel California agency to follow state law.
  • PLF asks Supreme Court to review Florida property rights case

Victory in New Orleans home demolition case!

Today, we secured a total victory in Garret v. New Orleans in a published opinion by Judge Edith Jones.  This is the case where the Garrets bought a home from the City. The City then notified a prior owner – who had not owned the property for nearly two decades – of a code violation (that had existed when the City sold the house.) The City never notified the Garrets. Since the Garrets did not cure the code violation that they didn’t know about, the City tore down the home. When the Garrets objected and asked for compensation the City sent a bill to the Garrets for over $11,000 — the cost of demolition! The Garrets sued in federal court, arguing that their rights of due process had been violated, their property had been taken, and the seizure was in violation of the Fourth Amendment. The City objected, saying the claim was not “ripe” for a court to review and the trial court agreed.

We then took over the case and appealed to the Fifth Circuit Court of Appeals. There, the court adopted every one of our arguments as briefed. It held that the Garrets’ procedural due process claim is ripe, notwithstanding adverse Fifth Circuit precedent, and a contrary district court opinion, because the claim seeks some remedies that are distinct from what may be secured through a state inverse condemnation lawsuit. The court then agreed with our position that the Garrets’ federal takings claim is prudentially ripe (even under  the current Williamson County regime that we are appealing to the Supreme Court in Knick) because it is unfair uneconomical and improper to separate the Garretts’ due process and takings federal claims between federal and state court.  Finally, agreeing with our reading of Severance (a prior PLF case), the court held that our unreasonable seizure claim is ripe too. For more information, see our blog post here.

Supreme Court goes part of the way on limiting administrative power

On Thursday, the Supreme Court issued its opinion in Lucia v. SEC, ruling that administrative-law judges (ALJs) in the SEC are “officers of the United States” under the Appointments Clause. The SEC had charged Raymond Lucia with violating the Investment Advisor Act and proceeded against him in an “administrative hearing” before an ALJ. The Court ruled that because the ALJ exercised “significant authority”—“nearly all the tools of federal trial judges”—he was an officer of the United States. And because he was not properly appointed, the Court held that the hearing against Mr. Lucia was invalid. We filed a friend-of-the-court brief and had hoped that the Court would have used this opportunity to adopt a broad definition of “officer” consistent with the original meaning of the Appointments Clause. We asked the Court to define “officer” as any employee who has “ongoing responsibility for a governmental duty.” Justice Thomas, in a concurring opinion joined by Justice Gorsuch, approved of this definition, which would require Congress to consider cautiously whether to create offices in the first place, and would further require both Congress and the President to deliberate more carefully before deciding to appoint individuals to carry out government functions. These developments would faithfully enforce the Constitution’s demand for accountability and its structural concern against dispensing government power too freely. For more information, please see our case-page here; our earlier blog-posts here, here, and here; and some additional thoughts from Jeff McCoy and Oliver Dunford at SCOTUSblog.

PLF files reply brief to compel California agency to follow state law.

The California Endangered Species Act requires the California Department of Fish and Wildlife to conduct five-year status reviews of species listed under the Act. The Department admits that it has failed to follow this law for 231 species, and has indicated no desire to conduct even one additional status review in the future. As a result, California lacks the information necessary to determine whether some of the listed species have recovered to the point at which they no longer need the Act’s protections. This harms nature-lovers as the state squanders its resources on species that no longer need to be protected. It also hurts property owners as they must abide by restrictions that no longer serve the purpose of restoring endangered species. Today PLF, representing California Cattlemen’s Association, filed its reply brief to compel the Department to conduct the overdue status reviews. A hearing is scheduled in San Diego Superior Court on July 6. For more, read these blog posts.

PLF asks Supreme Court to review Florida property rights case

Yesterday, PLF filed a petition in Pacetta, LLC v. Town of Ponce Inlet, asking the Supreme Court to review a decision that throws unnecessary obstacles to raising Fifth Amendment claims. The story behind this case began many years ago, when Simone and Lyder Johnson set out to build their dream home in Ponce Inlet, Florida.  Government officials for the town recommended the couple expand their project into a large, multi-use development that would benefit the community. But after years of work planning and beginning the development, the Town reversed course, prohibited the plan, and set out to devalue Pacetta’s waterfront property, because it hoped to later purchase the same property at a discount. Left with no other options, Pacetta filed a takings claim against the Town. The trial court found a taking of four parcels of Pacetta’s ten parcels of land, and awarded them compensation for those parcels. But Florida’s Fifth District Court of Appeal reversed and remanded for a new trial, instructing the trial court to reconsider whether the claim was “ripe” — i.e., ready for a court to hear—or whether Pacetta should have applied for more permits before filing the takings claim. The court also held that there might not have been a taking at all, and instructed the trial court to reconsider whether entirely devaluing four out of ten parcels is really a taking.  The court’s bad instructions doomed the case on remand in the trial court. We asked the Supreme Court to grant review of the case and clarify the law to help property owners everywhere. Read more here.

 

 

 

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