July 14, 2018

Weekly litigation report — July 14, 2018

By James S. Burling Vice President for Litigation

PLF gets into a Santa suit to fight for free speech

This week, PLF filed a lawsuit against the Washington Department of Ecology for kicking Santa out of their public lobby because they didn’t like him spreading Christmas cheer. We’re representing Freedom Foundation, a right-to-work think tank that sends canvassers out to state agencies every holiday season clad in Santa outfits and armed with candy canes. The canvassers hand out leaflets about how the union spends employee money and educates employees regarding their rights. The public-sector union doesn’t like that information to be aired, so Santa got the boot. Our lawsuit is in federal district court, where it’s beginning to look like Christmas for free speech. See our blog post for more.ty

Briefing Complete in Retirees’ Challenge to Coastal Commission’s Arbitrary Decisionmaking

This week Pacific Legal Foundation filed the final trial court brief in Mark and Bella Greene vs. California Coastal Commission. This case challenges the Commission’s decision to place onerous restrictions on the Greenes’ remodeling of their dream home, despite the fact that the Greenes’ complied with all local ordinances and regulations. Even worse, the Commission imposed these restrictions without any evidence that the Greenes’ plans would impact public use of the neighboring beach. It is unreasonable for the Commission to conclude that the Greenes’ could impact use of the beach, because their house sits in the middle of a block 600 feet away from the ocean. The Los Angeles County Superior Court will hold a hearing on the Greenes’ lawsuit on July 24.

Legislative exactions, or a rose by any other name

Writing in concurrence to the denial of certiorari in California Bldg. Indus. Ass’n v. City of San Jose (2016), Justice Thomas expressed his continued doubt that “the existence of a taking should turn on the type of governmental entity responsible for the taking.” And yet, the state courts continue to adopt rules exempting permit conditions mandated by acts of legislation from the heightened scrutiny required by Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St. Johns River Water Management District (2013). The Maryland Court of Appeals recently added to this deeply entrenched split of authority in Dabbs v. Anne Arundel County, by holding that “Impact fees imposed by legislation applicable on an area-wide basis are not subject to Nollan and Dolan scrutiny.” Last Friday, PLF filed a petition for a writ of certiorari asking the Supreme Court to finally resolve this longstanding split of authority and recognize that an exaction “by any other name” is still an exaction. The petition argues that there is simply no basis in the Constitution for treating a legislative demand for private property differently from demands made by other government body—indeed, both Dolan, and Koontz involved conditions mandated by generally applicable legislation. For more, read our blog post here.

Kelo strikes again

The Takings Clause of the Fifth Amendment promises that the government will not take private property unless it is for a valid public use. And yet, we all know that Kelo v. City of New London, Conn. (2005) allowed a Connecticut city to condemn a middle class neighborhood for private redevelopment in the name of “economic growth.” Although the Kelo Court attempted to assure us that the government would not be allowed to use that rationale as a pretext to effect a private taking, that appears to be what happened in Violet Dock Port, Inc., LLC v. St. Bernard Port, Harbor, and Terminal District. There, the Louisiana Supreme Court cited Kelo to uphold the port district’s decision to condemn Violet Dock Port’s port facility and transfer it to a private competitor in the name of “economic development.” Earlier this week, PLF filed an amicus brief urging the Supreme Court of the United States to accept the case and adopt a test for identifying and invalidating pretextual private takings.  For more, read our blog post here.

 Supreme Court schedules oral arguments

The oral argument in our Knick case is set for October 3rd and the Weyerhaeuser case is set for October 1st.

 

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