November 17, 2018

Weekly litigation report: Private property rights and illegal taxation

By James S. Burling Vice President for Litigation

PLF joins Montanans’ private property fight against federal government

This week, in Wilkins v. United States of America, PLF took over as lead attorneys for two Montana property owners who are suing the federal government.

Wil Wilkins and Jane Stanton live next to the Bitterroot National Forest and have a road across their land, the result of a limited-use easement granted to the US Forest service by the property’s previous owners in 1962. In the past few years, excessive use of the road has caused serious traffic hazards, road damage, fire threats, noise, trespassing, illegal hunting, speeding, and other disrespectful activities. The general public, however, is not supposed to be using this road.

The Forest Service is essentially attempting to gain a better easement than it paid for in the original 1962 deal. Read Jeffrey McCoy’s summary of the case to see how Wilkins and Stanton are fighting to protect their property rights.

PLF opposes illegal taxes in Colorado

The Colorado Secretary of State has been illegally charging businesses millions of dollars in unnecessary filing fees every year. Rather than refund those excess fees, the secretary funneled the money into his general budget, converting the fees into general tax revenue in violation of the state’s Taxpayer’s Bill of Rights. The National Federation of Independent Business sued to stop the unconstitutional fees, and the case is now before the Colorado Supreme Court.

PLF partnered with three other liberty organizations in this friend of the court brief, making two important arguments:

  • First, PLF urged the Colorado Supreme Court to do away with the “beyond a reasonable doubt” standard for unconstitutional laws, because it neuters the court’s ability to strike down unconstitutional laws and allows many unconstitutional laws to remain on the books.
  • Second, PLF argued that the amount of a fee cannot exceed the cost of providing the service or regulation funded by the charge. Here, 90% of the business “fees” fund services and regulations totally unrelated to businesses.



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Ballinger v. City of Oakland

When the Air Force reassigned Lyndsey and Sharon Ballinger to Washington DC, in 2015, they kept their house in Oakland, California, renting it on a month-to-month lease so they could return to it. When the couple and their two small children came home this spring, a new city law forced them to pay their tech-sector tenants $6,500—for the right to move back into their own home. The law aims to help residents affected by soaring housing costs. But because the law’s good intent comes at the expense of their constitutional protections, the Ballingers filed a federal lawsuit.

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