December 9, 2017

Weekly litigation report—December 9, 2017

By James S. Burling Vice President for Litigation
  • PLF Asks Michigan Supreme Court to Review Taking of Home for an $8 debt
  • Oral Argument at the U.S. Sixth Circuit in Marquette County case
  • Seattle’s “involuntary speech – forced democracy” scheme appealed
  • First Round Loss in Extortionate Permit Fee Case
  • PLF, Ranchers tell federal agencies they cannot ignore economic costs of their decisions.

PLF Asks Michigan Supreme Court to Review Taking of Home for an $8 debt

This week, PLF filed an application asking the Michigan Supreme Court to grant review in Rafaeli, LLC v. Oakland County and bring justice to Uri Rafaeli—who lost an entire home to Oakland County over an $8 debt, and to Andrew Ohanessian—who lost 2.7 acres over a $6,000 debt.  When Rafaeli mistakenly underpaid his taxes by $8, Oakland County seized a rental home he owned in Southfield, Michigan, and sold it for $24,500.  Similarly, it took 2.7 acres of land owned by Andre Ohanessian to pay a $6,000 debt, and sold it for $82,000. The County pocketed every penny from both sales.  This game of “gotcha” is unconstitutional and it is unfair.  It violates the federal and state constitutional protections that require government to pay just compensation when it takes property for a public use. Here, the County took their property for the public purpose of a collecting a tax debt, including taxes, interest, penalties, and fees. Thus, the federal and Michigan constitutions require the County to refund whatever it takes that exceeds the total tax debt and associated costs.  Unfortunately, the Michigan Court of Appeals disagreed and dangerously expanded civil asset forfeiture to include non-criminal activities. Our petition asks the Michigan Supreme Court to review and vindicate the property rights of our clients and people across Michigan.

Oral Argument at the U.S. Sixth Circuit in Marquette County case

This week, Mark Miller presented oral argument before the U.S. Sixth Circuit Court of Appeals in our environmental/administrative law case known as Marquette County (MI) Road Commission v. U.S. Environmental Protection Agency.  In this case, the state of Michigan and a local government in the state have complied with the federal Clean Water Act and planned to permit the building of a road that would be good for both the environment and for road safety. But the EPA refused to approve the plan. We argue that Marquette County is entitled to ask a federal court to review the EPA’s objections to the state plan to determine whether the EPA objections are arbitrary and capricious; if so, then the EPA would have to get out of the way and let the county build the road. The EPA wants to keep us out of court altogether, a position contrary to our wins in Sackett and Hawkes. To read more about the case, check out our blog post here.

Seattle’s “involuntary speech – forced democracy” scheme appealed

This week in Elster v. City of Seattle, PLF appealed the lower court’s ruling that Seattle can force people to sponsor (i.e. pay) other people’s political donations in the name of “campaign finance reform.” The First Amendment says otherwise, as our blog post describes.

First Round Loss in Extortionate Permit Fee Case

On Tuesday, the Marin County (Calif.) Superior Court issued an adverse decision in Cherk v. County of Marin, where the Cherk family sued for a refund of $39,960 in “affordable housing” fees they were compelled to pay as a condition of receiving a permit to divide their 2.79 vacant residential parcel into two lots. We argued that the fee violated California’s Mitigation Fee Act and the unconstitutional conditions doctrine because the Cherks’ lot-split neither creates nor contributes to Marin’s affordable housing problem. According to U.S. Supreme Court precedent, government must justify a permit fee by finding that it is logically related and roughly proportionate to a negative public impact of the proposed project. But the Cherk’s lot split has only a minor positive impact on Marin County’s housing shortage by  adding a buildable lot to the community. The Court rejected the claims on the grounds that the County’s affordable housing fee isn’t the kind of fee subject to scrutiny under the Mitigation Fee Act or unconstitutional conditions doctrine. It accepted the perverse theory that a fee that is excessive relative to a property development’s negative public impacts can be challenged, but a fee that is truly arbitrary (i.e., totally unrelated to any impact of the development) is OK. An appeal will follow. See our blog post for more information.

PLF, Ranchers tell federal agencies they cannot ignore economic costs of their decisions.

This week, PLF, on behalf of the Northern New Mexico Stockman’s Association and the Otero County Cattleman’s Association, sent a 60 day notice of intent to sue letter to the Department of Interior and the U.S. Fish & Wildlife Service, informing the agencies that they cannot ignore the significant economic impacts of their decisions. At issue is the critical habitat designation for New Mexico Meadow Jumping Mouse, a small rodent found mostly in New Mexico. The designation threatens the ranchers’ access to water sources, even in areas where the mouse is not found. The Service estimated that the designation will lead to about $20 million in added regulatory costs, and is likely an underestimate of the true costs of the action. Despite these large costs, the Service failed to exclude any areas from critical habitat. That decision was arbitrary and unlawful, and PLF has now asked the Service to rescind the designation. If they do not, the ranchers plan on filing a lawsuit.

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