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Weekly litigation report — October 21, 2017

By James S. Burling Vice President for Litigation
  • Squash the wrong bug, go to jail
  • The price of selling your home in Santa Barbara? An illegal warrantless search.
  • Free speech wins one in California legislature!
  • Brief filed in Oklahoma First Amendment right to say who you are case
  • Oral argument in Florida takings case
  • Allies file amicus briefs in support of our bird island in the Keys takings case
  • Is going out of business a coastal development? 
  • Georgia Supreme Court Upholds Anti- Competitive Law

Squash the wrong bug, go to jail

This week, we filed our opening brief in WildEarth Guardians v. DOJ,  a rare case in which we’re aligned with the federal government. An extremist group has sued federal prosecutors for not throwing enough people in prison to accomplish the group’s radical agenda. If it succeeds, you could do time in federal prison if you accidently strike an endangered bug while innocently driving down the highway. Our brief explains that theory is contrary to the Endangered Species Act, Supreme Court precedent, and common sense. You can’t be thrown in prison for a year, fined $100,000+, and suffer other harsh punishments for innocent mistakes.

The price of selling your home in Santa Barbara? An illegal warrantless search.

We filed a petition and complaint in the Santa Barbara Superior Court on behalf of the Santa Barbara Association of Realtors.   Santa Barbara requires that homeowners allow City inspectors to conduct administrative searches of the inside and outside of their homes at the time of sale.  The inspection is performed by City inspectors who are neither building inspectors nor licensed surveyors, yet the homeowner must pay several hundred dollars for the inspection.  If a homeowner refuses an inspection, he or she is subject to civil and/or criminal penalties.  While the City has the right to correct “health and safety” issues by obtaining a search warrant and requiring that dangerous conditions be remedied. there is no justification to defer potential health and safety problems until the time a home is put up for sale.   The City’s program, on its face and as applied, imposes unconstitutional conditions on the Fourth Amendment right of homeowners to be free from unreasonable searches.

Free speech wins one in California legislature!

This week we scored a victory in Book Passage v. Becerra when the California legislature passed a bill exempting books from California’s autograph mandate.  That law formerly applied to sports memorabilia, but in response to concerns expressed by Mark Hamill, the legislature expanded it to cover any autographed item worth over $5—inadvertently sweeping in signed books.  Stores like Book Passage were thus required to create and store a certificate of authenticity for every signed book sold that not only guaranteed the genuineness of the signature, but also included a host of information—including personal details about purchasers and prior owners.  Failure to comply or to keep the records for a full seven years could result in ruinous penalties.  We sued on behalf of beloved bay-area bookstore Book Passage and its co-owner Bill Petrocelli, arguing that by burdening the sale of signed books and making it impossible to host author signing events, the law burdened free expression.  Following our lawsuit, the legislature passed AB 228, which exempts books from the law’s onerous mandates and frees our clients to resume selling signed books free from fear of ruin.  See our blog post here.  To hear about the victory straight from our client Bill Petrocelli, listen to our podcast here

Brief filed in Oklahoma First Amendment right to say who you are case

This week we filed our summary judgment brief in Peggy Fontenot v. Mike Hunter, Attorney General of Oklahoma, asking the federal court in Oklahoma City to declare Oklahoma’s American Indian Arts and Crafts Sales Act unconstitutional. Oklahoma’s law violates the Constitution because it prohibits American Indians from marketing and describing their art as American Indian-made. Peggy Fontenot is an award-winning photographer and artist who specializes in handmade beaded jewelry. Peggy is a member of the Patawomeck Indian Tribe of Virginia—a state-recognized tribe—and she is certified as an Indian artisan by the federally recognized Citizen Potawatomi Nation. But solely because she is not a member of a federally recognized tribe (i.e. politically powerful tribes), Oklahoma now prohibits her from marketing her art in Oklahoma. In fact, members of federally recognized tribes even authored the bill that became law. This law seeks to silence Peggy and take away her ability to earn a living in Oklahoma. Our blog discusses the law’s constitutional problems in more detail.

Oral argument in Florida takings case

On Tuesday, Florida’s Second District Court of Appeal held oral argument in Pacific Legal Foundation‘s P.I.E., LLC v. DeSoto County. The dispute arises from a family business and an effort to make that business a little more successful.

Tom Finney, who with his family owned Finney & Sons septic and excavating business in southwest Florida, decided to buy property to mine for sand and fill to increase his business profits on contracting work—otherwise, he would have to buy the fill on the market at a higher price. DeSoto County told him what property to look for and then told him the property he was looking at was appropriate for mining. After investing close to two million dollars in buying and then lining up his permit for the mining, the County pulled the rug out from under him and denied him his permit. To add insult to injury, the County then re-wrote the rules to make sure he could never mine the property the way he planned when the County told him to go ahead and purchase the property. Finney lost the property, lost his business, and then sued the entity that set these losses in motion: DeSoto County, Florida. Read more in our blog post here.

Allies file amicus briefs in support of our bird island in the Keys takings case

This week, Cato Institute, Southeastern Legal Foundation, and the NFIB Small Business Legal Center filed amicus briefs supporting our Petition for Writ of Certiorari in Ganson v. City of Marathon, a case now pending at the Supreme Court of the United States. In this case, government officials in the City of Marathon, Florida, decided that Gordon and Molly Beyer, a married couple who owned a 9-acre piece of property in the Florida Keys, lost all rights to develop those nine acres because the acres made for a fine bird rookery. Did the city officials pay the Beyers for this total taking? Well, if they had, do you think we’d be talking about our petition for writ of certiorari on behalf of the Beyers’ children twenty years later?  Read more about the case in our blog post at this link.

Is going out of business a coastal development? 

We filed this amicus letter in the California Supreme Court, urging them to grant Martins Beach petition for review and reverse the decision of the court of appeal. The court of appeal held that a private landowner was required to seek a coastal development permit from the California Coastal Commission before he could discontinue allowing public access over his property. The opinion removes almost all remaining limits on Commission jurisdiction under the Coastal Act, and could open thousands of landowners and businesses within the coastal zone up to potential liability for engaging in behaviors that have long been considered lawful and beyond the scope of the Coastal Act. We also pointed out that these types of fundamental policy decisions should be left to the Legislature. For more, see our blog post.

Georgia Supreme Court Upholds Anti- Competitive Law

On Monday, the Georgia Supreme Court issued it opinion in Women’s Surgical Center, LLC v. Berry, a case that challenged Georgia’s anti-competitive Certificate of Need (“CON”) laws. Women’s Surgical wished to expand its medical practice, but the CON laws allowed competing medical practices to object to the expansion, which triggered a hearing by the state health department about whether there was a “need” for more medical services. Women’s Surgical, represented by our friends at the Goldwater Institute, argued that the CON laws violated various state and federal constitutional provisions, and PLF filed an amicus brief in support of the Center. Unfortunately, the Court deferred to the state’s justifications for the CON laws, and held they were constitutional. The Court offered a small bit of hope for challenging anti-competitive laws in Georgia: in a footnote, the Court said that the medical field is unique, and that the opinion should not be read to endorse sweeping economic regulations in other markets.

 

 

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