May 26, 2018

Weekly litigation report — May 26, 2018

By James S. Burling Vice President for Litigation
  • The Constitution protects property rights from unelected government agencies
  • Holding state administrative agencies accountable to the law
  • Does “land owned or controlled by the Federal Government” include the ocean?
  • PLF sues Seattle for banning new housing websites
  • Democracy vouchers violate free speech
  • PLF responds to Seattle’s appeal in first-in-time case
  • Supreme Court upholds law supporting arbitration
  •  South Dakota dancing case paused for now

The Constitution protects property rights from unelected government agencies

 Today, PLF filed an opening brief in Mark & Bella Greene v. California Coastal Commission, arguing that the trial court should direct the Coastal Commission to remove two conditions and issue our clients a permit to remodel their home. Dr. Mark and Bella Greene, a couple from Pennsylvania, bought an older beach house in Playa Del Rey, Los Angeles. Their plan is to remodel this home and spend their retirement in southern California close to their son and their grandchildren. The Greenes house sits over 550 feet from the ocean, is not adjacent to any public path to the beach, and the proposed remodel would be set back from the property line. Despite that, the Commission required the Greenes to scrap their plans, at significant expense and for an inferior home, because the agency speculated that sometime in the future the Greenes’ home might interfere with public access to the beach because the remodeled house would be somewhat close to the property line. The Commission’s demand is unconstitutional, and the judge will hear the case in July.

Holding state administrative agencies accountable to the law

This week we filed a new lawsuit against the California Coastal Commission on behalf the Coastal Rights Coalition, a nonprofit representing thousands of coastal homeowners across the state. At issue is a Coastal Commission policy that forces oceanfront homeowners to give up the right to protect their property with seawalls as a condition of getting building permits to construct or remodel their homes. The Commission has been imposing the policy for nearly a decade. Under California law, a policy like this must go through a formal process before it is imposed—including notice to the public, holding hearings, and allowing people affected by the policy to comment. The Commission did none of this—it simply began enforcing its anti-seawall rule on its own whim (and at the behest of some environmentalist constituencies). We previously challenged the policy by petitioning a review by the Office of Administrative Law (a state agency tasked with reviewing the legality of other state agencies’ policies). They declined to review the rule, leaving our lawsuit as the next step and only means of holding the Coastal Commission accountable to the law. See the complaint and more details available on our website.

Does “land owned or controlled by the Federal Government” include the ocean?

 Starting in 2006, a full century after the Antiquities Act was enacted, presidents started claiming that the statute’s authorization of national monuments applies to the ocean even though the statute is expressly limited to land. The result has been a sea-change in monument designation, with 10 times the area designated in the last 11 years than designated in the prior 100 years combined. In Massachusetts Lobstermen’s Association, et al. v. Ross, we’re representing fishermen, we’re challenging the designation of 5,000 square miles of the Atlantic Ocean—an area the size of Connecticut. This week, we filed a brief showing why that’s illegal: The ocean isn’t land and it isn’t controlled by the federal government. If the president wants this power, he’ll have to get Congress to change the law; he can’t simply arrogate unlimited power to himself. For more see our blog post.

PLF sues Seattle for banning new housing websites

 This week, PLF filed a lawsuit in federal district court to challenge Seattle’s moratorium on rent-bidding platforms. A few budding startup companies have created innovative websites where renters can place bids on advertised rental housing. The city doesn’t know whether these websites are good or bad, so it slapped a ban on them while the city tries to understand them. The moratorium bans any use of these sites by landlords or renters, not just the bidding feature. PLF’s lawsuit, Rentberry v. City of Seattle, argues that this knee-jerk censorship violates the First Amendment. Under the First Amendment, the government can only restrict speech as a last resort. But here, the city has banned speech as a first resort. We represent the website Rentberry and Delaney Wysingle, a small-time Seattle landlord who’d like to experiment with these new platforms. Our blog post explains more.

Democracy vouchers violate free speech

This week, we filed an appellate brief in Elster v. City of Seattle, our First Amendment challenge to Seattle’s newfangled “democracy voucher” program. Through the program, Seattle residents get four $25 vouchers every election cycle, which they can then offer as a campaign contribution to local candidates they support. The voucher is funded through a dedicated property levy. In other words, property owners are forced to pay for other peoples’ political campaign contributions. The First Amendment, however, forbids government from forcing you to sponsor speech that you oppose. We look forward to vindicating that principle on appeal.

PLF responds to Seattle’s appeal in first-in-time case

A few months ago, in Yim v. City of Seattle, PLF secured a court victory that tossed Seattle’s notorious first-in-time rule. That rule required landlords to rent to the rental applicant who walks in the door with an adequate application. This week we filed our response to the city’s request for direct review from the state supreme court.

Supreme Court upholds law supporting arbitration

 In the federal statute heavyweight championship bout between the 1925 Federal Arbitration Act (FAA) and the New Deal’s 1935 National Labor Relations Act (NLRA), the Supreme Court declared a winner in Monday’s decision in Epic Systems Corp. v. Lewis: The Federal Arbitration Act by a knockout! Epic Systems, consolidated with two other cases, pitted the NLRA’s protection of workers’ rights to engage in “concerted activities” for their mutual benefit against the FAA’s protection of the freedom of contract enabling employers’ and employees’ to agree to resolve their workplace disputes outside the court system, in individual arbitration (meaning: no class actions). PLF submitted an amicus brief supporting the freedom of employers and employees to contract to resolve workplace disputes with individual arbitration. The decision not only upheld that freedom, but also held that Chevron deference could not apply in a case like this – where an agency interprets a statute it does not administer. This is a victory both for freedom of contract and separation of powers.

South Dakota dancing case paused for now

This week we reached an agreement with the South Dakota High School Activities Association to stay F.L. v. SDHSAA while the association considers permanently modifying its discriminatory rule that bans boys from participating in high school Competitive Dance. Recently, in response to our lawsuit, the Association temporarily suspended its no-boys rule for the upcoming school year, allowing our client, Freddie Linden, to try out for (and make) his high school dance team. The stay will allow both parties to conserve resources while the Association undergoes its standard rulemaking process over the next year. We hope and expect that the Association will ultimately do the right thing and permanently change its rule to give all boys in South Dakota the opportunity to dance. More information is available on our blog.

 PLF to 9th Circuit Judicial Council: “End protectionist policy for lawyers.”

Last February, PLF signed onto a petition with almost a dozen other ideologically diverse legal organizations and attorneys (opposition to protectionism, at least in the legal profession, appears to traverse ideological lines), asking the U.S. District Court for the Northern District of California to amend its local rule to eliminate its protectionist California Bar admission requirement as a matter of policy, not law. The Northern District, along with many other district courts across the country, require local state bar membership for admission to practice. The situation in California is even more egregious, as the state does not grant reciprocity to allow attorneys from other jurisdictions to be admitted to the California Bar on motion. Hence any attorney wishing to be admitted to the California Bar, for the purposes of practice within the state or just to conduct business in one of the state’s federal district courts, is forced to sit for the notoriously onerous California Bar Examination. Unfortunately, our petition was denied without explanation (or the usual notice and comment process) in early April. This week, PLF and its fellow petitioners asked Chief Judge Sidney R. Thomas of the U.S. Court of Appeals for the Ninth Circuit, and Chair of the Judicial Council of the Ninth Circuit, for the Council to review the unsupported decision of the Northern District’s Rules Committee.

 

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Rentberry v. City of Seattle

Rentberry is a small San Francisco-based startup that connects landlords and renters through a rent-bidding website. The company hopes to expand its service to Seattle, however city council adopted a one-year moratorium on the service over concerns it might violate existing rental law and might inflate housing costs—despite no evidence that either is true. Pacific Legal Foundation has filed a federal lawsuit on behalf of Rentberry, arguing the moratorium prohibits free speech rights of Rentberry, as well as the landlords and renters who would like to use such sites to communicate.

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