January 6, 2018

Weekly litigation report—January 6, 2017

By James S. Burling Vice President for Litigation

A win for property owners throughout California

What could be a better Christmas present than a property-rights win for every property owner in California? Over the holiday break, the California Court of Appeal issued an important decision protecting property owners from abuse by overzealous local governments. Oakland took more than $12,000 from our client, Tom Lippman, over alleged building code violations and refused to give him a fair chance to defend against the allegations. His sole appeal was to a hearing officer selected by the very enforcement agency whose decision was being appealed. The agency picked one of its former employees to review its work, who rubber stamped the penalties. Unwilling to back down, Lippman took Oakland to court. After a 5 year battle, the California Court of Appeal held that this sham appeals process violates “the basic rights of property owners” guaranteed by state law and Oakland must reform its code enforcement process to allow citations to be appealed to a fair and neutral arbiter. For more, see our blog post celebrating the victory

Illegal art fee challenge in Oakland

In late December, we finished briefing against the City of Oakland’s motion to dismiss PLF’s complaint on behalf of the Building Industry Association – Bay Area against Oakland’s law, requiring home builders to spend a portion of their project budget purchasing original artworks from City approved artists and publicly displaying them as part of the housing project. This violates the First Amendment by compelling home builders (and the ultimate homeowners) to engage in First Amendment protected artistic speech. This also violates the Fifth Amendment by compelling the home builders to spend money or pay fees for items that are not necessary to mitigate any impacts caused by the new homes, as well as by compelling them to give up, without compensation, an interest in the resulting artworks, specifically; the right to exclude others from private property. In the context of art, this means the right to enjoy that art privately rather than display it publicly. The City has asked the federal court to dismiss the suit on a variety of spurious grounds, but as our opposition brief explains, the BIA’s claims are solid; the judge will hear oral argument in San Francisco on January 11, 2018.

Another twist in another abusive wetlands prosecution

We previously reported that the Ninth Circuit upheld Joe Robertson’s criminal conviction in United States v. Robertson, for repairing a couple of ponds without a Clean Water Act permit, despite there being many miles between the ponds and the nearest actually navigable river. But after the Ninth Circuit’s decision, the Supreme Court accepted the case of Hughes v. United States, which will address how lower appellate courts should apply Supreme Court decisions in which there is no majority opinion. Since this is the case with Rapanos v. U.S., the key Supreme Court decision on the scope of the Clean Water Act, Robertson asked the Ninth Circuit to reconsider its decision in his case. The Ninth Circuit acted quickly to put a hold on further actions in Robertson’s case, and ordered new briefing once the Supreme Court decides Hughes. PLF was happy to file this amicus brief in support of rehearing by the full Ninth Circuit, and that the court of appeal will give further consideration to Robertson’s case.

PLF files opening brief in First Amendment case before the Supreme Court.

Today PLF filed its opening brief in Minnesota Voters Alliance v. Mansky, a First Amendment case that PLF will argue before the Supreme Court of the United States on February 28. PLF is representing Minnesota voters, who face criminal penalties and hefty civil fines if they vote in a shirt that expresses a viewpoint on any political issue. One client, Andy Cilek, was initially prevented from voting and had his name and address taken down for potential prosecution, just because he was wearing a Tea Party t-shirt. The Minnesota law extends far beyond just Tea Party apparel and also bans t-shirts with the logo of the AFL-CIO, Chamber of Commerce, NAACP, and countless other groups. PLF contends that such a broad ban on the passive expression of core political speech cannot be squared with the Free Speech Clause of the First Amendment. For more, read our blog post here.

Ganson v. City of Marathon

Last week, PLF filed its Reply Brief supporting our Petition for Writ of Certiorari in Ganson v. City of Marathon, a case now pending at the Supreme Court of the United States. In this case, government officials in the City of Marathon, Florida, decided that Gordon and Molly Beyer, a married couple who owned a 9-acre piece of property in the Florida Keys, lost all rights to develop those nine acres because the acres made for a fine bird rookery. The City refused to pay them for this obvious taking and instead claimed that the award of “points” to the Beyers, a speculative kind of transferable development right the Beyers could sell (if there were any buyers), mean no property taking took place at all.  We have asked the High Court to right this wrong, and the justices are scheduled to consider the case on January 19th. We are optimistic they will grant review. Read more about the case in our blog post at this link.

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