4 months ago

Weekly litigation report — June 17, 2017

By James S. Burling Vice President for Litigation
  • Interior Secretary Zinke Recommends Bears Ears Reduction
  • Indian River County School Board responds to public outcry, but continues to ignore First Amendment
  • California Supreme Court protects private property
  • Class Action action
  • Florida family loses property rights’ case in Florida appellate court
  • Telling truth to tort
  • Supreme Court asks town to respond
  • The plain language of sea urchins
  • Arbitration and class actions

Interior Secretary Zinke Recommends Bears Ears Reduction

Last weekend, Interior Secretary Ryan Zinke acted consistently with PLF recommendations when he issued an interim report on the Bears Ears National Monument. The report calls for President Trump to follow the command of the Antiquities Act, and reduce the Bears Ears National Monument to the “smallest area compatible” with the protection of historical objects.  Bears Ears was designated in late 2016 and, like many other national monuments, needlessly reserved large portions of public land for purposes unrelated to the protection of antiquities. As PLF stated in comments to the Secretary, such a large withdrawal is not consistent with the Antiquities Act and is not necessary to protect the natural and cultural resources in the area. PLF applauds Secretary Zinke’s recommendations, and hopes that he continues to roll back other abuses of the Antiquities Act.

Indian River County School Board responds to public outcry, but continues to ignore First Amendment

Last week, PLF sent a letter to the Indian River County School Board and its Superintendent informing them they violated Vero Beach High School senior J.P. Krause’s constitutional rights by punishing J.P. for a short, humorous campaign speech he offered in class the day before he won the senior class election. Remarkably, the Vero Beach High School principal disqualified J.P. from the presidency – despite the fact that J.P. won the election in a landslide — because he (the principal) absurdly contended the speech “humiliated” J.P.’s fellow candidate for office. Nothing could be further from the truth. After Fox & Friends, the New York Daily News, the London Daily Mail, National Review, Whoopi Goldberg of The View, and even Univision called out the school for its outlandish decision, the Superintendent wisely reversed the principal and decided the school must respect the will of the voters and allow J.P. to serve as Senior Class President in the next school year. Unfortunately, the Superintendent failed to remove the charge of harassment from J.P.’s record, which means the school continues to violate J.P.’s First Amendment freedom of speech. PLF will continue to pursue this case until the school removes any disciplinary record that suggests his First-Amendment-protected speech allows them to punish him. The Constitution forbids it. For more, see our summer law clerk David Jadon’s blog post here.

California Supreme Court protects private property

This week, the California Supreme Court issued an opinion in Scher v. Burke, a case in which PLF filed an amicus brief in the California Supreme Court last July.  In 1970, in a case called Gion v. City of Santa Cruz, the California Supreme Court held that the public can gain a permanent right to cross private property to reach the beach if the owner had allowed the public access in the past. In other words, landowners could be punished for being nice to the public. Concerned over the impact on private property — and on the obvious disincentive created for providing access —  the legislature adopted Civil Code Section 1009, a law that said the public no longer could gain a permanent right to trespass on private property just because the owner had been kind enough to allow it. The question in Scher was whether the law applied when the purpose of the access wasn’t for recreational purposes as in Gion. The Court held that the plain language of the law meant that no such permanent access could be created — whether the use was recreational or otherwise.  Our blog post is here.

Class Action action

On Monday, the Supreme Court put the kibosh on a tactic by counsel for purported class actions to evade the final judgment rule. In Microsoft v. Baker, involving an alleged design defect in Xbox game consoles, class certification was denied, and the plaintiff voluntarily dismissed his case with prejudice, for the sole purpose of jumping straight to the Ninth Circuit to challenge the certification denial. The Ninth Circuit allowed this appeal of the interlocutory order and today the Supreme Court reversed that decision, rejecting the end-run around the statute that sets the rules for when a plaintiff can appeal. Justice Ginsburg’s majority opinion unequivocably holds that the plaintiffs’ attempts to appeal as from class certification denial orders “subverts the final-judgment rule and the process Congress has established for refining that rule and for determining when nonfinal orders may be immediately appealed.” PLF filed an amicus brief that focused on the policy reasons for rejecting plaintiffs’ gamesmanship that undermines the final judgment rule and puts a thumb on the scale in favor of plaintiffs’ ability to extract hefty class settlements on weak claims, thus increasing the cost of goods and services for everyone.

Telling truth to tort

Telling the truth is not a tort. Today, as PLF urged in its amicus brief, the Texas Supreme Court ruled in Community Health Systems v. Hansen that truth is an absolute defense to an intentional interference with contract claim. The case arose when the College Station Medical Center terminated Dr. Henry Hansen’s employment contract. In making this decision, the hospital relied on advice by a professional services administration firm that evaluated physician performance and employment. The firm truthfully advised the hospital that Dr. Hansen had caused significant financial losses due to the combination of his very high salary, failure to see a sufficient number of patients, and a months-long refusal to accept referrals from two of the three primary referring doctors. The unanimous decision notes that the firm’s statements were true, and that the firm had a duty to provide explanations for its recommendations. The court’s decision bodes well for employment relationships based on the valuable communication of truthful information.

Florida family loses property rights’ case in Florida appellate court

Earlier today, in a case known as Town of Ponce Inlet v. Pacetta, we learned that Florida’s Fifth District Court of Appeal reversed a jury award for millions of dollars to a family that had its property rights basically ignored by a small town on Florida’s east coast. The family relied upon the town council of Ponce Inlet’s invitation to develop several pieces of property at great price, only to have that same town council turn against them and refuse to allow the development after the family made its investments. We filed an amicus brief supporting the family, and we intend to support the family as the case continues. For more see our blog post here.

Supreme Court asks town to respond

The Supreme Court has asked the town to respond to our petition for cert in Nies v. Town of Emerald Isle, North Carolina. This means that some of the justices are interested enough in taking up the case that they want to see the town’s arguments first. This is the case, you may recall where the town has turned the Nies’s private beach front property into a roadway for private and county vehicles — all without paying compensation. We expect that the Court will decide whether to take the case by early October.

The plain language of sea urchins

When Congress clearly expresses its intent in the plain language of a statute, federal agencies like the Fish and Wildlife Service must give it full effect. That is the fundamental principle that PLF is asking the Ninth Circuit Court of Appeals to affirm in our opening brief in California Sea Urchin Commission v. Johnson. In 1987, Congress enacted a statutory compromise that would give the Service authority to establish a new population of sea otters off the coast of Southern California, but only on the condition that it maintain protections for the fisheries and the fishermen who work in them. Most importantly, the statute exempted lawful fishing activities from liability under the Endangered Species and Marine Mammal Protection Acts. Without that protection, fishermen and sea urchin divers could be subject to oppressive civil and criminal fines for simply getting to close to a sea otter. Ignoring the mandates of the statute, the Service eliminated the protections by regulation in 2012, leaving a thriving and growing population of otters at San Nicolas Island. In other words, the Service got the benefit of the compromise and now wants to shirk its reciprocal obligations. This is not only patently unfair—it is a clear violation of the statute.

Arbitration and class actions

In January, the Supreme Court granted certiorari and consolidated three cases to decide whether the National Labor Relations Act, which protects workers’ rights to engage in “concerted activities” for their mutual benefit, trumps the Federal Arbitration Act’s protection of the freedom of contract that allows employers and employees to agree to resolve their workplace disputes in individual arbitration (meaning: no class actions). Today, in Epic Systems Corp. v. Lewis, PLF filed an amicus brief supporting the freedom of contract, demonstrating the fairness of arbitral resolution of workplace disputes, and placing this case in the context of the larger problem of National Labor Relations Board’s “policy of nonacquiescence,” a troubling anti-constitutional doctrine in which executive agencies refuse to comply with federal court decisions.

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Center for Biological Diversity v. Zinke

The Center for Biological Diversity, a group that favors expansive government control over the environment, sued Secretary of the Interior Ryan Zinke when Congress voted, pursuant to the Congressional Review Act, to rescind an Alaska wildlife refuge rule related to predator control. CBD argues that the CRA is an unconstitutional abridgment of executive power, and that regulations cannot be rescinded by Congress unless it also rewrites the underlying legislation. Representing itself as well as a coalition of individual Alaskans and related organizations, PLF seeks to intervene in support of the rule’s rescission and the constitutionality of the Congressional Review Act.

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