Weekly litigation report — March 31, 2018

March 31, 2018 | By JAMES BURLING
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  • Trial court strikes down Seattle’s rule banning landlords from selecting their own tenants
  • PLF asks Supreme Court to clarify “temporary” takings law
  • Florida ends Walton County’s unconstitutional land grab
  • PLF asks California to review “endangered” species
  • Oral argument at the Supreme Court in criminal case that could affect wetlands
  • PUC Rejects Quad Knopf’s Proposition 209 Challenge


Trial court strikes down Seattle’s rule banning landlords from selecting their own tenants

On Wednesday, a King County Superior Court judge held that Seattle violated four constitutional guarantees by forcing landlords to rent to the first person who walks in the door with an adequate application. In Yim v. City of Seattle, PLF represented a handful of mom-and-pop landlords who want to have some choice in deciding who will live on their property. Judge Suzanne Parisien, who heard the case, agreed with them: “Choosing a tenant is a fundamental attribute of property ownership.” By stripping landlords of that property right, she said, the City violated the constitutional requirement that the government cannot take property without paying you for it. She also held that the rule violated due process—a rare holding in a world where judges shy away from claims that the government acted in an unreasonable manner. We look forward to defending this victory for liberty and common sense if the City decides to appeal. Our blog post has more.

PLF asks Supreme Court to clarify “temporary” takings law

Earlier this week, PLF attorneys filed an amicus brief with the U.S. Supreme Court in support of the petition filed in Martins Beach v. Surfrider Foundation. At issue is whether the government can force a landowner to open up his property for public use without paying just compensation. A plain reading of the Fifth Amendment conclusively answers this question:  “nor shall private property be taken for public use, without just compensation.” But the ever-inventive California courts carved out an exception to this command, holding that the government is not obligated to pay for such a taking unless the public use is permanent. Because the order requiring tech mogul Vinod Khosla to allow the public to cross his private property and use his private beach could be modified by a future decision, the California court ruled that he was not entitled to a penny. PLF’s amicus brief argues that the California rule conflicts with a long line of U.S. Supreme Court case law holding the government liable for so-called “temporary” takings. We expect the Court to conference on the case later this year.

Florida ends Walton County’s unconstitutional land grab

One week ago,  Florida Governor Rick Scott signed House Bill 631, ending Walton County’s attempt to steal free access to the private property of PLF’s clients Edward and Delanie Goodwin and landowners across Walton County. Even though Walton County is home to many large public beaches, and the public has a right to use the wet-sand beaches across the state, the Walton County Commission decided it wanted to take a wide stretch of privately owned, dry-sand beaches across the entire County. Instead of paying for the property, like the Constitution requires, the County tried to steal it.  First the County tried to stop property owners from protecting their private property.  The County banned all fences and signs on private beaches that indicate the property is private.  Then the County passed an ordinance declaring that the public has a right to use the entire coastline, including private beaches.   PLF has been fighting for Edward and Delanie Goodwins’ property rights for almost two years. Late last week, the state of Florida put an end to Walton County’s unconstitutional land grab by making clear the County’s ordinance is invalid. It also prevents local governments across the state from following the County’s unconstitutional example. Read more here.

PLF asks California to review “endangered” species

On Monday, PLF asked a San Diego trial court to order California to review the status of the State’s endangered species. California law requires the California Department of Fish and Wildlife to conduct these reviews every five years — to ensure that old listings are up-to-date. Yet California has neglected this responsibility for 231 species. The State admits that it has failed to conduct these reviews; yet it claims that it can get away with not following the law because the reviews are not important. As we point out in this blog post, however, the reviews are very important to California citizens. They are important to landowners because outdated listings can prevent property owners from using their land. They are important to environmentalists because the State’s limited resources should be focused on helping species that are currently endangered. They are important to taxpayers because the reviews ensure that your tax money isn’t squandered on programs for species that are actually thriving. The hearing is set for July 6.

Oral argument at the Supreme Court in criminal case that could affect wetlands

The Supreme Court of the United States heard oral argument this week in Hughes v. United States. While this case at first blush seems to involve an issue of sentencing in criminal cases, it actually could impact how the federal government regulates wetlands. As you may recall, in our Rapanos case, the Court issued three decisions: four Justices led by Justice Scalia ruled that federal jurisdiction over wetlands should be quite limited. Justice Kennedy issued a concurring decision calling for a somewhat more expansive reading of federal authority. And four justices dissented; they would have given the federal government vast powers to regulate. So the question ever since 2006 is which decision controls: Scalia’s, Kennedy’s or some combination. (Few would argue the dissenters views should count.)  Since none of the decisions had an outright majority of five, there has been great confusion.  Hughes involves a similar problem of interpretation because there was a previous 4-1-4 split on a criminal sentencing issue. When the Supreme Court took up Hughes, it indicated it might address the problem of 4:1:4 splits.

PLF filed a friend of the court brief in Hughes, asking the Court to clarify how the lower courts should interpret the Rapanos decision, which affects how much private property the EPA and Army Corps of Engineers can regulate under the Clean Water Act. Of note, the Solicitor General conceded during oral argument that if our view if Rapanos is correct, then lower courts will have to revisit their overly broad interpretation of the Clean Water Act. Read more at our blog.

PUC Rejects Quad Knopf’s Proposition 209 Challenge

Quad Knopf provides engineering, environmental planning, surveying, mapping, and biological resource consulting to regulated public utilities.  Quad’s business has suffered due to preferential treatment provided to minority- and woman-owned businesses.   Because Quad does not reach the required 51% threshold of minority and woman shareholders, Quad must subcontract a percentage of its work.  PLF filed a rulemaking petition with the California Public Utilities Commission (CPUC), challenging a statutory scheme and a CPUC General Order, each of which provide numerous preferences to minority- and women-owned businesses.  Both the statutes and the Order were adopted prior to Proposition 209, which prohibits such preferences.  PLF filed a rulemaking petition with the CPUC, which was required even though the CPUC cannot find statutes unconstitutional.  The petition was denied, as we knew it would be.   PLF will file a writ of mandate seeking relief in an appellate court.