August 18, 2018

Weekly litigation report — August 18, 2018

By James S. Burling Vice President for Litigation

Opening day for SCOTUS nears as PLF readies to throw first pitch

This week Pacific Legal Foundation filed its Reply Brief in Weyerhaeuser v. U.S. Fish & Wildlife Service, a case that arises from the Fifth Circuit and involves our client Edward Poitevent’s property in the deep woods of Louisiana. The Supreme Court of the United States will hear oral argument in this important Endangered Species Act case on the first day of the new High Court term: October 1st, 2018. Edward and his family have held the vast majority of the land the government designated as “critical habitat” for the dusky gopher frog back in 2011; the only problem: the frog doesn’t live there, it hasn’t been seen there in over 50 years, and if you put the frog on the property it would go from endangered to “no more.” Since “no more” is exactly what the Endangered Species Act is supposed to prevent, PLF argues Edward’s property cannot be critical habitat for the frog and that the federal government violated the Endangered Species Act and the U.S. Constitution when it decided otherwise. To learn more about the dispute please check out our case page.

Amicus brief filed in Alaska case back at Supreme Court

This week Pacific Legal Foundation filed an amicus brief in support of Alaska hunter John Sturgeon in the Supreme Court of the United States. Mr. Sturgeon is challenging a National Park Service regulation that says he cannot operate his hovercraft on rivers that flow through national parks. Since the beds of navigable rivers are owned by the states rather than the federal government, the rivers themselves are not part of the National Parks through which they flow. PLF’s brief argues that the Park Service does not own water rights in these state rivers (and cannot thereby regulate them) merely because it manages the parks. The case is Sturgeon v. Frost.

Hearing Care Entrepreneur gets Heard

On Thursday, PLF was in court in Orlando, Florida, asking a federal judge to enjoin the state from enforcing its regulations that flatly ban the mail order sale of hearing aids and prohibit anyone but licensed dealers from selling them in the state. We represent hearing aid store owner Dan Taylor in the lawsuit, Taylor v. Polhill. We filed a motion for preliminary injunction to allow Mr. Taylor to continue operating his business during the pendency of the litigation. Courts in several other states have struck down portions of similar laws as unconstitutional. A main point of contention is whether the trial court is bound to favor the state due to a 1982 case in which one element of the law we are challenging was upheld. The U.S. Supreme Court has subsequently undermined that ruling in its own more recent decisions. The challenge is important because Florida is the country’s largest hearing aid market, where outdated and onerous regulation raises the cost of hearing care by stifling competition. The judge took arguments under advisement and we anticipate a ruling soon.

Brief filed in free speech lawsuit against Seattle’s website ban

We filed our motion for summary judgment in Rentberry v. City of Seattle, asking a federal court to toss out Seattle’s ban on rental bidding websites. A few start-ups have created websites that allow house-hunters to bid on monthly rent to compete for housing. Without any evidence, Seattle banned these sites for a year while a swarm of bureaucrats investigate whether rental bidding sites are in harmony with Seattle’s commitment to “equitable” housing. This knee-jerk approach to regulation doesn’t jive with the First Amendment, which only allows government to restrict speech as the last resort, not the first. Check out our blog post for more.

Retroactive tort liability for lawful speech.

Seventy years ago, lead paint was lawfully sold and used inside residences. Last year, a California appellate court in People v. ConAgra Grocery Products held that modern paint companies are liable for hundreds of millions of dollars that will be used to investigate residential lead paint in the state’s ten most populous counties, and remediate any dangerous conditions found there. As explained on the blog, and in Debbie La Fetra’s op-ed in the Daily Journal, the companies are not liable because they manufactured the paint, or sold it; or because any Californian has established an injury caused by the paint. No, the court found them liable because, in the first half of the Twentieth Century, they promoted the use of then-lawful lead paint. Conagra recently filed a petition in the U.S. Supreme Court, asking it to review and reverse this ruling, which violates principles of due process and retroactively punishes protected First Amendment speech. This week, PLF filed an amicus brief supporting the petition.

Chicago’s GPS tracking rule violates Fourth Amendment property rights

Municipal Code of Chicago § 7-38-115(1) (GPS-tracking rule) requires the owners of food trucks operating within Chicago’s (City) boundaries to attach GPS tracking devices to their vehicles as a condition of retaining their food truck licenses, to collect information about their movement, and to make information available to the government and public. Represented by our friends at Institute for Justice, LMP Services, Inc., a local food truck proprietor, challenged Chicago’s GPS tracking rule (and a related 200 foot proximity ban) in 2012. After several years of litigation, the case has finally made its way all the way up to the Illinois Supreme Court. Today, Pacific Legal Foundation filed an amicus brief in LMP Services, Inc. v. Chicago arguing that LMP and other Chicago area food truck proprietors have a property interest in their vehicles that is separate and distinct from any privacy concerns they may have. If a food truck is protected property, then a required physical trespass, direct or indirect, constitutes a search, and a warrant is required under the Fourth Amendment. Finally, in the alternative, we argue that the searches effected by the GPS tracking rule do not qualify for lax review as so-called “administrative searches.” For these reasons, we encourage the Illinois Supreme Court to reverse the ruling below and find the Chicago’s GPS tracking requirement unconstitutional.

Free Speech and Medicaid: Putting an End to Unconstitutional Union Dues Skimming

On August 10, PLF filed comments in support of a proposed rule to end union “dues skimming” for home healthcare workers who are paid by Medicaid. First authorized by the federal government in 2012, dues skimming allows unions to take around $200 million each year from the paychecks of home healthcare workers—without the workers’ consent. Dues skimming turns a safety net for the most vulnerable into a funding tool for partisan political activities. PLF argued in its comments that the practice violates both the Medicaid statute and the First Amendment. As PLF argued in its amicus brief in Janus v. AFSCME, the First Amendment protects workers’ right to consent before public sector unions are allowed to dip into their paychecks to fund the unions’ collective bargaining and other political speech. Ending Medicaid dues skimming is a necessary step toward protecting the constitutional right to consent. For more see our blog post here.

There is no statute of limitations on the Fourth Amendment

Implicit in the right to own property is the right to dispose of your property when and how you wish. Unless you live in Santa Barbara. In Santa Barbara, the City claims the right to enter and search your private home without a warrant. Worse, it also conditions your ability to sell that home on your agreement to allow government workers to inspect it and any outlying property for compliance with local zoning ordinances, whether you like it or not. If you sell your home without a “Zoning Information Report” (ZIR), you can be charged with a misdemeanor, which carries with it both a fine and potentially jail time, as well as civil penalties. In addition, this “ZIR Ordinance” is too vague for the average homeowner to understand. Represented by Pacific Legal Foundation, in SBAOR v. Santa Barbara, Robert D. Hart and the Santa Barbara Association of Realtors (SBAOR) challenged the unconstitutional ZIR Ordinance. The City first argued that the suit was filed to chill the City’s First Amendment rights in a meritless anti-SLAPP (Strategic Lawsuit Against Public Participation) motion by the City. The City lost that and PLF filed a second amended complaint to which Santa Barbara has filed a motion to dismiss based in part upon a statute of limitations argument. But as we explain in our response filed with the Court last Tuesday, there is no statute of limitations on alleged violations of the Fourth Amendment.

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Rentberry v. City of Seattle

Rentberry is a small San Francisco-based startup that connects landlords and renters through a rent-bidding website. The company hopes to expand its service to Seattle, however city council adopted a one-year moratorium on the service over concerns it might violate existing rental law and might inflate housing costs—despite no evidence that either is true. Pacific Legal Foundation has filed a federal lawsuit on behalf of Rentberry, arguing the moratorium prohibits free speech rights of Rentberry, as well as the landlords and renters who would like to use such sites to communicate.

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