March 10, 2018

Weekly litigation report — March 10, 2018

By James S. Burling Vice President for Litigation

Supreme Court grants hugely important property rights case!

For over thirty years PLF attorneys have been trying to put an end to the infamous “Williamson County” rule that stops property owners from going to federal court to vindicate their constitutionally guaranteed property rights. Named after a 1985 case where the Court refused to hear a takings case, this rule has been the bane of property owners ever since. Takings claims involve the only right protected in our Bill of Rights that citizens cannot go into federal court to preserve. This is critically important because there have been many instances where state and local courts are unwilling or unable to grant meaningful relief to landowners who challenge the actions of local governments and zoning boards. Now that may change. In Knick v. Scott Township we are challenging a local ordinance that forces local homeowners to let the city and members of the public trespass on private property in search of purported ancient graveyard sites. In this case, a homeowner, Ms. Knick, was simply unwilling to open up her property to the general public because of unsubstantiated claims that some rocks on the property marked a revolutionary war era gravesite. When she tried to sue in state court, she was rebuffed. So she next tried for relief in federal court. But the court turned back her claim, saying that under the Williamson County doctrine, she should have carried through with a takings claim in state court. On Monday, the Supreme Court said it would hear the case and determine, hopefully once and for all time, that the Williamson County doctrine should itself be interred.

Coastal property owners allege futility of bureaucratic process

This week, PLF filed an amended Petition for Writ of Administrative Mandate in Greene v. California Coastal Commission. The Petition challenges the Coastal Commission’s imposition of two special conditions on the Greenes’ remodeling permit for their coastal home. Among the conditions the Commission required was the waiver of any right to ever build a shoreline protective device (such as a seawall) in the future, a right guaranteed by the California Coastal Act. The Commission previously attempted to dismiss the challenge to the shoreline protective device waiver, arguing that the Greenes failed to object at a Commission hearing. Today, the Greenes amended their Petition against the Commission, alleging that objecting to the condition at a hearing would have been futile.

Oral argument held regarding Montana’s Religious School Ban

This week, the Ninth Circuit heard argument in Armstrong v. Kadas, our constitutional challenge to Montana’s rule that students attending religious schools cannot access scholarship donations made through a state tax-credit program. The issue before the Court is whether the federal court should have dismissed our clients’ constitutional claims because other families had filed a similar challenge in state court.

PLF asks Supreme Court to make the Administrative State accountable.

Last week, in Lucia v. Securities and Exchange Commission, PLF filed a friend-of-the-court brief with the United States Supreme Court, and we ask the Court to reinvigorate the important principles protected by the Constitution’s Appointments Clause. In this case, the Securities and Exchange Commission charged Raymond Lucia with violating federal securities laws and regulations. Rather than allowing Mr. Lucia to defend himself in a court of law, the SEC brought an “administrative enforcement action” overseen by an Administrative Law Judge (ALJ)—an employee of the SEC. Not surprisingly, the ALJ agreed with his boss, found Mr. Lucia guilty, and permanently barred him from working as a securities adviser. Normally, employees like ALJs, who have “significant authority” under the law, must be appointed pursuant to the Appointments Clause, which requires cooperation between the branches. With that standard, the Court will likely rule for Mr. Lucia. But in our brief, we ask the Court to take this opportunity to protect individuals and small businesses from the growing threat of unaccountable bureaucrats. Specifically, we ask the Court to reconsider its relatively recent “significant authority” standard and return to its more traditional definition of “officer” as any employee who has ongoing responsibility for a governmental duty. This definition would require Congress to cautiously consider whether to create offices in the first place, and would require both Congress and the President to deliberate more carefully before deciding to appoint individuals to carry out government functions. Ultimately, this definition would increase government accountability and prevent against dispensing government power too freely.

For more about this case, you can read our earlier brief, which we filed at the cert-petition stage, our case page, and our blog-posts here and here.

The art of an artistic shakedown

This week PLF appealed the district court’s order dismissing our lawsuit, Building Industry Association — Bay Area v. City of Oakland. The case challenges Oakland’s law that extorts anyone who wants to build homes by refusing building permits if they don’t commission an artwork first, preferably from one of the local artists who lobbied the city council to impose the extortion in the first place. Learn more in our blog.

What to read next