August 4, 2018

Weekly litigation update — August 4, 2018

By James S. Burling Vice President for Litigation

Seattle asks courts to clear the way for unlawful taxes

Late last year, a King County, Washington, trial court ruled in Kunath v. City of Seattle (formerly Shock v. City of Seattle), that Seattle’s attempt to levy an income tax on so called “high-earners” was plainly unlawful. In what the local press has called a “Hail Mary,” the city has asked the Washington Supreme Court to overrule 80 years of case law in order to pave the way to unfettered local tax authority. Last Friday, PLF attorneys filed a response brief defending the Court’s longstanding characterization of an individual’s earnings as property. PLF’s brief also argues that, if the tax is allowed to stand, it will violate the Equal Protection Clause because it taxes individuals differently based on how they earn their money, not how much they actually take home. For more, read our post here.

Court should be all ears as hearing aid hearing set

In Taylor v. Polhill, PLF represents Dan Taylor in a constitutional challenge to a Florida law that prohibits the sale of hearing aids by anyone without an occupational license issued by the state, and which requires every hearing aid to be sold with a “fitting” using outdated procedures and equipment. Dan has been a licensed hearing aid professional for more than 30 years, but recently gave up his license out of frustration that the regulations prohibit him from offering the best service to customers and conflict with less onerous federal laws governing the sale of hearing aids. He wants to continue his business without complying with unnecessary and time-consuming burdens. The government filed a motion to dismiss Taylor’s complaint and PLF filed its response late last week. The case is now set for a hearing on August 16, in Orlando, at which PLF has requested a preliminary injunction to stop the state from enforcing its regulations while the case proceeds.

Judge asks for further briefing in Coastal Commission Case

Last week a Los Angeles trial court judge held a hearing in Greene v. California Coastal Commission. PLF’s clients, the Greenes, are a recently retired couple who wish to remodel their home. After hiring an architect to design plans consistent with the local zoning ordinances, and getting approval from the City of Los Angeles, the Coastal Commission demanded they reduce their plans by nearly 500 square feet. Last week, the court ruled that some of the Commission’s reasons for demanding the reduction were justifiable, while others were not. In September, the court will decide whether to uphold the Commission’s decision, or send the case back to the Commission for reconsideration.

Opening brief filed in compelled art appeal

On July 27th, we filed our opening brief on appeal in Building Industry Association Bay Area v. City of Oakland, our lawsuit challenging an Oakland ordinance that forces builders to create and display government-approved art, or pay a penalty that funds art elsewhere in town. The lower court dismissed our lawsuit. On appeal, we argue that compelled artistic expression is a serious First Amendment injury that requires real judicial scrutiny, and that building permit fees need to have a genuine connection to the impacts caused by the project. New development does not create a lack of public art; therefore, Oakland cannot single-out builders to be mandatory art patrons. Our argument is simple: “The Ordinance forces BIABA members into an unconstitutional conundrum: speak through the installation of government-approved art, or pay an in-lieu penalty for staying silent, which ultimately funds the same art. The Constitution requires a third choice the Ordinance fails to provide—the choice to remain silent without penalty.”

 

 

 

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Taylor v. Polhill, et al

In Florida, you need a license to sell hearing aids. Dan Taylor of Melbourne, Florida, gave up his license after 30 years, because Florida’s outdated regulations were made for older models, not the updated, technologically sophisticated models he and his customers prefer. In a federal lawsuit on behalf of Dan, PLF argues that Florida’s licensing scheme increases cost and reduces access to modern hearing aids—and they’re even preempted by federal laws aimed at reducing unnecessary regulation.

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