9 months ago

Weekly litigation report — January 28, 2017

By Joshua P. Thompson Senior Attorney
  • School Choice Week 2017
  • Hawkes Company secures important victory on remand from Supreme Court
  • WOTUS Rule update
  • Favorable tort decision from the Texas Supreme Court
  • PLF files brief in New York union lawsuit
  • PLF files brief to support donor anonymity 
  • PLF files brief in support of truthful communication
  • Cap and trade argument
  • Drakes Bay petition denied

National School Choice Week 2017

All week PLF has been celebrating National School Choice Week. PLF has long fought for the rights of parents and students to choose the best school for their particular needs. In celebration of school choice, Wencong Fa and I recorded a podcast detailing all of PLF’s school choice work. In addition, our blog has featured posts from Wencong Fa, Johanna Talcott, Ethan Blevins, and Caleb Trotter.

Hawkes Company secures important victory on remand from Supreme Court

This past summer PLF secured an important victory for property owners in Army Corps of Engineers v. Hawkes. The Court held that landowners could challenge Clean Water Act jurisdictional determination issued by the Corps. Prior to PLF’s victory in Supreme Court, landowners had no recourse after the Corps determined that their land was jurisdictional. Now, they can challenge that decision in Court. This week we learned why PLF’s victory is so important. On remand from the Supreme Court, the district court ruled that the Hawkes Company’s property was not jurisdictional, and that the Corps had no authority to assert jurisdiction over it. Moreover, the court ruled that the Corps couldn’t just go back and supplement the record, and try to reassert jurisdiction over the property.  It had enough bites at the apple, and couldn’t prove jurisdiction. It’s time for the landowner to get his property back.

WOTUS Rule update

Two weeks ago, the Supreme Court agreed to hear a petition, joined by PLF, concerning the proper venue for challenges to the Waters of the United States (WOTUS) Rule. In response, this week the Sixth Circuit stayed all merits briefing on the WOTUS challenge.

Favorable tort decision from the Texas Supreme Court

The Texas Supreme Court issued a favorable opinion in UDR Texas Properties v. Petrie, a case in which PLF participated as amicus curiae. At issue in Petrie is whether a property owner owes a duty to protect against criminal acts by third parties committed on its property. In a decision that followed the argument PLF made in its brief, the court ruled that the property owner only owes such a duty when “the risk of the crime is foreseeable and the risk to the plaintiff of that crime occurring is unreasonable and outweighs the magnitude of placing the burden to guard against that risk on the property owner.”  As explained in this post, this decision is important for businesses and affording housing in Texas.

PLF files brief in New York union lawsuit

PLF filed an amicus brief in New York supporting the New York Farm Bureau’s defense against several union groups that are asking the court to declare the limitations of the New York State Labor Relations Act unconstitutional. For nearly a century, New York law has exempted certain employees from the state’s labor law encouraging unionization. But now union groups are suing on the grounds that the state’s constitution forbids this exemption. PLF explains in its brief why this lawsuit is just a naked attempt to avoid the political process. If the union activists want the law changed, they should go the the legislature, not the courts.

PLF files brief to support donor anonymity 

PLF also filed an amicus brief this week in Americans for Prosperity Foundation v. Becerra. This case challenges a California law that requires nonprofits to disclose the identity of all donors who donate over $5000. The district court ruled that this law is unconstitutional as applied to the plaintiff in the case, but PLF urges the Ninth Circuit to go further. Because this law infringes on donors’ and nonprofits’ First Amendment rights it should be held unconstitutional on its face.

PLF files brief in support of truthful communication

PLF’s third amicus brief filed this week was in Community Health Systems Professional Services Corp. v. Hansen. This case is before the Texas Supreme Court. At issue is whether truthful statement concerning the reasons behind an employee’s termination can form the basis of a lawsuit for intentional interference with an employment contract. PLF argues that truthful communication can never be unlawful.  Tort law should encourage openness and truth telling.

Cap and trade argument

The Court of Appeal heard PLF’s challenge to California’s cap and trade law this week.  Morning Star Packing Company v. State Air Resources Board asks the court to declare the program unconstitutional, because the state is raising billions of dollars in revenue without abiding by the state constitution’s requirements concerning taxes. The court has 90 days to issue its opinion.

Drakes Bay petition denied

The California Supreme Court denied the Drakes Bay Oyster Company’s alleging that the Coastal Commission’s enforcement proceedings were unconstitutionally biased. PLF asked the court to take up the petition to protect the Due Process rights of Californians.

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Americans for Prosperity Foundation v. Becerra

The California Attorney General – first Kamala Harris, now Xavier Becerra – demanded that Americans for Prosperity, a nonprofit 501(c)(3) organization of a politically conservative bent, submit an unredacted IRS Form 990 Schedule B that contains the names and addresses of all donors who give $5,000 or more in a year. The group refused because such disclosure threatens the donors’ First Amendment right of association. After a trial, the court agreed with the group and enjoined the Attorney General from collecting the unredacted form. The Attorney General appealed and PLF filed an amicus brief supporting the rights of donors to remain free to associate without risk of intimidation based on their philanthropy.

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