June 3, 2017

Weekly litigation report — June 3, 2017

By James S. Burling Vice President for Litigation
  • PLF asks Supreme Court to protect free speech
  • San Francisco loses again in case over extortionate demands on property owners
  • Sixth Circuit holds that victims of federal takings do not enjoy the right to a jury
  • California Supreme Court hears case that could eviscerate Proposition 13
  • Farming “mini-mountains” case proceeds

PLF asks Supreme Court to protect free speech

On Tuesday, PLF filed its cert petition in Minnesota Voters Alliance v. Mansky. Minnesota’s sweeping political-apparel ban forbids voters from wearing shirts, buttons, and badges featuring the logo of any organization associated with any political viewpoint. Voters who wear NRA t-shirts, NAACP buttons, or even badges that say “liberty” to the polling place are subject to criminal prosecution and civil penalties of up to $5,000. PLF client Andy Cilek filed a First Amendment challenge to the political-apparel ban after an election official told him he was violating Minnesota law by wearing a Tea Party t-shirt that stated “Don’t tread on me” and a button that said “Please I.D. Me.” A divided Eighth Circuit upheld the political-apparel ban, because it believed that the government may ban virtually all political expression at polling places. PLF asks the Supreme Court to review the Eighth Circuit’s decision, and hold that speech-free zones at polling places are inconsistent with the Free Speech Clause.

San Francisco loses again in case over extortionate demands on property owners

We received a positive order from the federal district court on remand from the Ninth Circuit in Levin v. City of San Francisco, the case where the City was demanding over $100,000 from a landowner who simply wanted to move into an apartment in his own building. The case is described in more detail here. In March of this year, the Ninth Circuit rejected as moot the City of San Francisco’s appeal of the favorable 2014 district court decision and sent the case back to the district court.  This week, the district court denied the City’s motion to vacate the original decision in this 8 page decision. The court’s denial order notes  that the 2014 Levin opinion is valuable to the legal community, the City has no equitable basis to vacate the decision when it mooted its appeal, and the court is loath to do anything that might undercut the Levin plaintiffs’ claim to attorney fees.

Sixth Circuit holds that victims of federal takings do not enjoy the right to a jury

In Brott v. United States, Kevin Brott filed an inverse condemnation claim against the federal government, demanding compensation when the feds built a recreational trail on his land. Brott challenged a long-standing practice that forces inverse condemnation plaintiffs to litigate their cases in the court of claims, where they lose the benefit of a jury and a traditional Article III court. We filed an amicus brief urging the Sixth Circuit to uphold Brott’s constitutional right to a jury. That right is especially important in takings claims, since judges often lowball the compensation due to property owners. Unfortunately, the Sixth Circuit held that Kevin Brott doesn’t get a jury or a regular federal court because sovereign immunity allows the federal government to decide where and how it gets sued. We’ll be watching for a petition for certiorari to the Supreme Court of the United States.

California Supreme Court hears case that could eviscerate Proposition 13

The California Supreme Court hear arguments in California Cannabis Coalition v. City of Upland  on Tuesday, May 30th.  Proposition 218 requires that new taxes intended to go into the general fund must be put on the ballot for voter approval in a general election.  The California Cannabis Association claims that those voting requirements do not apply when a tax is imposed by initiative.   PLF filed an amicus brief in support of the Howard Jarvis Taxpayers Association.  We argued that taxpayers must have the right to vote on new taxes imposed by initiative.  Otherwise, local governments can circumvent the clear intent of the voters to have vote on new or increased taxes. Blog post here.

Farming “mini-mountains” case proceeds

There have been a number of developments in the past week in Duarte Nursery, Inc., v. Army Corps of Engineers. Last Thursday the chairmen of the House Agriculture Committee and the House Judiciary Committee wrote to Attorney General Jeff Sessions, stating their view that Duarte Nursery’s plowing of its property was an exempt practice under the Clean Water Act, and asking for Sessions’ response. And on Friday, PLF filed a motion with the court asking that the judge exclude any expert testimony on the subject of whether the vernal pools and swales on Duarte’s property are federally protected “navigable waters” if that testimony is based on a 2008 agency wetlands guidance document that was never submitted to Congress as required by the Congressional Review Act. Because it was not submitted, the guidance is not legally in effect, and may not be used as the basis for government enforcement. This past week, there has also been significant news coverage of the case, starting with a USA Today story that was picked up on the Drudge Report, and also covered by outlets like McClatchy and Breitbart. PLF senior attorney Tony Francois discussed the case this Thursday with radio host Andy Caldwell, and client John Duarte made a national appearance with Fox Business’ Stuart Varney, in which he recognized PLF’s assistance in the case. The Duarte Nursery case is scheduled for a trial in federal court starting on August 14, 2017, in which the government is demanding a $2.8 million penalty against Duarte Nursery, and its president John Duarte personally, for plowing the company’s farmland.

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Brott v. United States

Kevin Brott owns land in Muskegon, Michigan. In 1886, a railroad obtained a right-of-way easement across his land. When the railroad ceased operation, the easement terminated and full ownership of the land returned to the owner. The federal government, however, invoking the National Trails System Act and related regulations, nullified Brott’s right to his land and encumbered it with a new easement for a public recreational trail under the perpetual jurisdiction of a federal agency. Brott sued for compensation in the district court in Michigan and requested a jury to determine the amount. The court refused to hear his case and sent him to the Court of Federal Claims, an executive-branch court that does not allow jury trials. PLF supports Brott as amicus curiae.

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