October 8, 2016

Weekly litigation report — October 7, 2016

By James S. Burling Vice President for Litigation

Government shouldn’t abridge the freedom of speech with regulatory harassment

We filed this petition for writ of certiorari asking the Supreme Court to take up the case of Bennie v. Munn. Bob Bennie, a well-regarded financial consultant and leader of a local tea party in Nebraska, made some uncomplimentary remarks about President Obama. Because of his remarks, the state’s Department of Banking and Finance put pressure on Bennie’s firm to make Bennie cease his political commentary. Bennie sued. While the district court agreed with Bennie that he had been targeted because of his speech, it found that a person of “ordinary firmness” would not be deterred by the intimidation and dismissed the suit. The Eighth Circuit Court of Appeals, without seriously reviewing the trial court’s legal reasoning, upheld the dismissal. We don’t believe that the First Amendment can be so easily flouted and we’re hoping the Supreme Court will agree to take a look. For more, see our blog post here and our case page here.

WOTUS rule developments

We filed this response to the government’s petition for writ of certiorari in National Association of Manufacturers v. Department of Defense, our challenge to the new Waters of the United Sates (or WOTUS) rule that vastly expands federal control over private property now considered to be a wetland. The issue here is technical but important, asking whether the courts of appeals have exclusive power to review the rule. For more, see our case page here.

Supreme Court declines to take Common Sense Alliance v. San Juan County

The Supreme Court denied our cert petition in Common Sense Alliance v. San Juan County. We had urged that the Court take up this case so it could decide whether legislatively imposed exactions (that is, permit conditions that are imposed by ordinance) are subject to scrutiny under the tests developed in NollanDolan, and Koontz. Those cases hold that the government has the burden of proving that if landowners are forced to give up property in exchange for a permit, then the property being given up must be “roughly proportional” to an impact caused by the permitted development. At issue here was whether mandatory buffer zones are subject to that test.

 

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