Weekly litigation report — May 20, 2017

May 20, 2017 | By JAMES BURLING
  • Amicus brief filed for contractor long frozen out of contracts
  • Settlement reached in mobile home park case
  • Cap and trade appealed
  • Prairie dog ruling petition to the 10th Circuit
  • Reply filed in Kinderace petition to Supreme Court
  • Affirmative action case goes back to district court

Amicus brief filed for contractor long frozen out of contracts

We and the Center for Equal Opportunity filed this amicus brief asking the Supreme Court to take up Rothe Development v. Department of Defense, filed by our friends at Mountain States Legal Foundation. This is a challenge to racial quota preferences given to minority contractors who bid on certain government projects. In our brief, we’re highlighting the story of Thomas Stewart, a small business owner near Spokane who installs guard rails on highway projects. Stewart writes that “my competitors … have enjoyed taking work from my firm at higher prices for many years. When does it end?” Stewart continues that “I want no more than the chance to succeed — or even fail — on my individual merit…It’s just not fair to punish my firm because neither minorities nor women own it.” We agree with Chief Justice Roberts who put it a few years ago: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” For more see our blog post here.

Settlement reached in mobile home park case

You may recall that in our lawsuit Jisser v. City of Palo Alto, we were objecting to the City’s imposition of $8 million in relocation fees in exchange for a permit to exit the mobile home park business. This week, the City agreed in principle to pay the Jissers $40 million for the park. This stops the city’s attempt to condemn the park and frees the Jissers from having to pay the $8 million to their tenants. If the deal moves to completion, the City will own and manage the park. We suspect that the City will face an entirely new set of challenges when it attempts to run the park itself. But now at least the Jissers can exit the business and receive fair market value for their land.

Cap and trade appealed

In Morning Star Packing Company v. California Air Resources Board, we filed our Petition for Review in the California Supreme Court, asking the state high court to review and reverse the court of appeal’s decision. We argue that the billions of dollars that companies like Morning Star Packing Co must pay for permits required to remain in business are illegal taxes under Proposition 13. Our blog post is here.

Prairie dog ruling petition to the 10th Circuit

We filed a petition for rehearing en banc in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service—our challenge to the federal government’s constitutional authority to regulate take of the Utah prairie dog. Three years ago, the District Court for the District of Utah ruled the regulation unconstitutional. But in March, a three-judge panel of judges from the Tenth Circuit overturned that decision.Now we’re asking that all of the judges from the Tenth Circuit to review. Our concern is that the rodent is exists only in Utah and has no impact of any sort on interstate commerce. Without affecting Commerce, the government of the United States has no authority under the constitution to regulate it.Our blog post is here.

Reply filed in Kinderace petition to Supreme Court

Briefing is now complete in our petition for writ of certiorari in Kinderace v. City of Sammamish, In this case, much like the situation in , Murr v. Wisconsin, the City refuses to pay compensation for a parcel of property it has taken because the owner here has already developed an adjacent lot. As our blog post explains, we’re asking the Supreme Court to take this case and hold onto it until it decides Murr 

Affirmative action case goes back to district court

The Ninth Circuit sent Mountain West Holding Co. v. State of Montana back to the district court. This case involves a challenge to the Montana Department of Transportation’s implementation of race-based contracting goals. Mountain West argued that the goals violate the Equal Protection Clause of the Fourteenth Amendment, because they are not narrowly tailored to achieve a legitimate government purpose (here, the presence of discrimination in the contracting program). On May 16, the Ninth Circuit Court of Appeals issued a decision, remanding the case to the district court.The Ninth Circuit Court determined that the State’s evidence was not sufficient to establish the presence of discrimination within its transportation contracting industry. PLF’s amicus brief focused on the problems with the evidence relied upon by the State. The blog post on the Ninth Circuit case and our brief is here