August 11, 2018

Weekly litigation report — August 10, 2018

By James S. Burling Vice President for Litigation

Reply brief filed with Supreme Court in long-running property rights case out of Florida

Earlier this week we filed our Reply Brief in support of our request that the U.S. Supreme Court accept for review the takings case of Pacetta v. Town of Ponce Inlet. This case had its genesis 14 years ago, when Simone and Lyder Johnson bought six acres of vacant land in Ponce Inlet, Florida, through their business Pacetta, LLC. The Johnsons intended to build a home for themselves and a small residential development.   Town leaders loved the idea so much they invited the Johnsons to expand their idea to a larger sixteen-acre waterfront development. After the Johnsons invested years and millions of dollars in this larger plan, local political forces shifted; Town leaders reversed course and refused to approve what they had in fact encouraged the Johnsons to pursue. The case has been in litigation ever since, and we are optimistic that the Supreme Court will recognize the wrong done to the Johnsons. You can read more about the case here.

Can the people of California vote for pension reform without union involvement?

According to the California Supreme Court in this decision in Boling v. Public Employment Relations Board, the answer is apparently not. Here, in San Diego there was a citizen initiative that received the required number of signatures was not allowed to go into effect because the proponents were somehow supposed to “meet and confer” with union first. In 2010, the then Mayor of San Diego proposed public employee pension reforms, including the suggestion that benefit pensions be replaced with 401(k) plans for all newly hired city employees.  The Mayor decided to pursue pension reform initiative as a private citizen, as opposed to his position as the Mayor, so that the proposal would not be compromised by meeting with union representatives.    The San Diego Municipal Employees Association claimed that the city had an obligation to meet and confer over the Initiative because the Mayor as acting in his official capacity to promote the Initiative.  Numerous unions filed unfair practice charges, and the state’s Public Employment Board  (PERB) issued a complaint against the city.  Nevertheless, the voters approved the Initiative, and PERB filed a lawsuit, as did other parties.  PLF supported the legality of the Initiative in the Court of Appeal and the State Supreme Court.  On August 18th, the Supreme Court ruled that a Mayor “with responsibility over labor relations uses the powers and resources of his office to play a major role in the promotion of a ballot initiative affecting terms and conditions of employment, the duty to meet and confer arises.”

Opening brief filed in gray wolf listing challenge

On Monday, we submitted our opening brief in our challenge to the listing of the gray wolf under the California Endangered Species Act. Our lawsuit, filed on behalf of the California Cattlemen’s Association and the California Farm Bureau Federation, makes three basic arguments against the wolf’s state listing. First, the listing is based on the presence of a Canadian-transplanted wolf, in violation of the California Act’s limitation to “native” flora and fauna. Second, the listing is based on the Commission’s analysis of the wolf’s condition in California alone, rather than its status “throughout all, or a significant portion of, its range,” as the statute expressly requires. Third, the listing is based on the intermittent presence of a single wolf, which subsequently settled down in Oregon, not California. In addition to these legal arguments, our suit makes the larger policy point that the wolf’s listing precludes the development of a reasonable management plan that would appropriately balance wolf protection with the safety and property rights of California’s ranching families. For more, see our blog post here.

Washington Supreme Court says no to death by permitting case

The Washington Supreme Court issued this excellent unanimous decision in Maytown Sand and Gravel v. Thurston County.  This is one of those “kill ‘em through endless permitting” cases. The sand and gravel company won a jury verdict, concluding that the county’s actions violated its constitutional right of due process. Washington case law, however, has been trending toward the notion that until one gets a permit, one has no right to be treated fairly in the permitting process because the right to use property is not a “fundamental right.” We filed an amicus brief focused solely on the “non-fundamental” rights nonsense.

Although the Court did not reach the ultimate conclusion that such rights are fundamental, it did reject the government’s argument that since government can impose conditions on development, owners have no legitimate expectations in a permit. The Court also held the government to a stricter standard when reviewing actions like this, rejecting the government’s argument that the owner had the burden to prove the government acted with an improper motive.

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