Weekly litigation report — January 19, 2019

January 19, 2019 | By JAMES BURLING
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Oral argument held again in Knick at the Supreme Court

On January 16, the Supreme Court heard reargument in Knick v. Scott Township, the case where Rose Knick sued her town after it declared the public could trespass on her property in order to search for some old stones, claimed to be colonial-era graves. Knick is seeking the right to sue in federal court.

The argument went well and the justices understand our arguments. We are cautiously optimistic that at least five justices will agree that landowners should be able to sue local government in federal court when the government takes private property.

For more, see our blog post here. You can listen to the argument here. You can read the transcript here.

Affordable housing” fees appealed to California Supreme Court

This week, PLF petitioned the California Supreme Court, challenging the constitutionality of local ordinances that require property owners to pay money or dedicate land in perpetuity for below-market housing as a condition of getting a permit to split lots or build houses.

We represent Dart and Esther Cherk, an elderly couple who spent years in the permitting process with Marin County to split their vacant, residentially-zoned parcel into two lots. The county ultimately issued a permit, but only on the condition that they pay roughly $40,000 into the county’s affordable housing fund.

PLF argued in the lower courts that this violated U.S. Supreme Court precedent prohibiting local governments from collecting fees in exchange for permits, unless those fees have a logical connection to some negative public impact arising from the proposed land use project.

It was undisputed that the Cherks’ lot split would increase the supply of land available for new housing, not add to the housing shortage problem. Yet the California Court of Appeals ruled that the county did no wrong because the Cherks might have gotten around the fees by agreeing instead to permanently dedicate their land for use as affordable housing. We await a response from the California Supreme Court as to whether this sleight-of-hand will stand.

Is unions’ exclusive representation privilege on verge of collapse?

This week, PLF filed a friend of the court brief in Bierman v. Dayton, urging the Supreme Court to re-examine exclusive representation for public employee labor unions in light of its recent decisions protecting the First Amendment rights of workers.

Exclusive representation unconstitutionally silences workers by forcing them to let a union speak for them. The practice was called into question in Janus v. AFSCME, and Bierman provides the court with an excellent opportunity to reconsider this unconstitutional infringement on worker freedom. Read our blog post here.

Answering brief filed in defense of political accountability

We filed this answering brief asking the Ninth Circuit to affirm the District of Alaska’s dismissal in Center for Biological Diversity v. Zinke. The Congressional Review Act (CRA) allows Congress and the president to disapprove rules adopted by administrative agencies. This brings some much-needed political accountability to the bloated regulatory state.

But the Center for Biological Diversity (CBD) has challenged Congress’s ability to limit agencies’ authority in this manner. CBD argues that the CRA violates the separation of powers by allowing Congress to limit the power of the executive branch. Nonsense. The District of Alaska dismissed this baseless lawsuit, but CBD appealed to the Ninth Circuit.

Our brief reiterates and expands our arguments that Congress may constitutionally prohibit particular exercises of an agency’s delegated authority. For more, see our blog post here.

Supreme Court denies review in property rights cases

The court denied our petition for cert in Kelleher v. New York State Department of Environmental Conservation along with Leone v. Maui, where we filed an amicus brief, and Colony Cove v. City of Carson, cases where we were hoping the court would explain the Penn Central tests for regulatory takings.