November 19, 2016

Weekly litigation report — November 19, 2016

By James S. Burling Vice President for Litigation
  • Special taxes
  • Endangered species — otters and urchins
  • Guilty until proven innocent
  • Separation of powers 

Special taxes

We filed our petition for review in Building Industry Association of the Bay Area v. City of San Ramon. This is the case where San Ramon has put all undeveloped properties into a “special district” so it can impose a special tax when those properties are developed. This tax will supposedly provide these lots the same sort of police and fire protection that everyone else already gets. In the end, this is just a scheme to avoid California law forbidding new taxes without the people’s consent. Moreover, this tax end-run threatens to exacerbate the state’s housing crisis. Allowing local governments to levy significant taxes without obtaining residents’ voter approval inevitably adds to the cost of housing For more, see our blog post here. And speaking of programs that increase the cost of housing, see our additional blogs from Friday here and here.

Endangered species — otters and urchins

We filed our Motion for Summary Judgment in California Sea Urchin Commission v. Jacobsen. While the sea otters are now thriving, the local California sea urchin fisherman are themselves threatened by the otters — which have  a voracious appetite for sea urchins. To make peace between the fisherman and those wishing to expand the otters, Congress made a deal to allow the otters to be relocated to San Nicholas’s Island, off California’s southern coast, while keeping them out of sea urchin fishing grounds. But the Obama administration has decided to renege on the deal and we sued on behalf of the fisherman. For more, here’s our blog post.

Guilty until proven innocent

PLF has filed an amicus brief to support Ms. Nelson in Nelson v. Colorado. In this case Ms. Nelson had been convicted of a serious crime and went to jail where the state collected over $700 in various fees. She appealed and the verdict was reversed. In other words, she’s innocent in the eyes of the law. But despite her exoneration, she cannot get her money back unless she proves that she was innocent. But she was already found not guilty and exonerated of the initial conviction. Our concern is that people shouldn’t be punished and shouldn’t lose their property based on criminal charges unless the state proves guilt in both circumstances.

Our brief focuses on two elements of the requirement that a state can’t deprive exonerees of property without “due process of law”: the “law” part and the “process” part. “Due process” demands that only a “law” can deprive you of property. A law must be more than arbitrary whim. Yet here, once the conviction is gone, the state has no good reason to keep her money. Just arbitrary whim. It’s no better than the “because-I-say-so” battle cry of an exasperated parent. Nor does the procedure for obtaining a refund make this less arbitrary. Plunder is not absolved of its unlawful character by offering back the stolen property if the owner can prove they deserve it. For more on this case watch our blog on Monday.

Separation of powers 

We filed this amicus brief in Christie v. N.C.A.A., supporting New Jersey’s bid to get the Supreme Court to take the case so the state can get out of the business of enforcing the federal ban on sports betting. The drafters of our constitution were representatives of their respective state governments and were well aware that the federal government they were creating was not meant to replace the states. And for that reason, the federal government is one, theoretically, of limited powers. That theory is put to the test whenever the federal government commandeers state governments to do its bidding. That is the case in New Jersey, which the federal government has forced, along with every other state except Nevada, to carry out the federal ban on betting. But when New Jersey decided to rescind its ban on sports betting, the N.C.A.A. sued, relying on the federal law. The Third Circuit agreed with the N.C.A.A. and now New Jersey cannot even get to repeal its own laws. We filed our amicus brief to support the idea that states are not mere enforcement agencies of the federal government. For more, see our blog post here.

 

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California Sea Urchin Commission v. Combs

When the U.S. Fish and Wildlife Service asked Congress for permission in the 1980s to introduce sea otters into Southern California waters, Congress agreed but required protections for lawful fishing activity. In 2012, the Service declared that they would no longer honor the fishing industry protections. On behalf of sea urchin and abalone divers, lobster trappers, and other fishermen, PLF has asked the U.S. Supreme Court to review the case to enforce the separation of powers in the Constitution, and reconsider its practice of deferring to agency decision making.

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