February 24, 2018

Weekly litigation update — February 24, 2018

By James S. Burling Vice President for Litigation
  • Federal judge grants temporary restraining order against Mount Dora over Starry Night mural 
  • Does the California ESA extend to your neighborhood squirrel population?
  • PLF opposes Seattle’s attempt to levy an unconstitutional “wealth tax”
  • Supreme Court declines to review important timber sale case
  • Opening brief challenging Seattle’s newfangled campaign-finance program
  • Oral argument over whether Seattle can ban landlords from selecting their own tenants

Federal judge grants temporary restraining order against Mount Dora over Starry Night mural 

Image result for starry night mt. dora

This week, we filed a challenge to Mount Dora, Florida’s sign code in the District Court for the Middle District of Florida, along with motions for a temporary restraining order and preliminary injunction. We are challenging both the sign code and its enforcement by the city against two homeowners, Nancy Nemhauser and Lubomir Jastrzebski. The couple had a local artist paint a Starry Night-inspired mural on a protective wall and house on their private property, but city officials cited and fined the mural as an “unpermitted sign” using a vague and arbitrary interpretation of their sign code. Our complaint alleges that the sign code is an unconstitutional restriction on the homeowners’ constitutional rights to free speech, due process, and equal protection. Wednesday morning the judge granted our motion for a TRO, preventing the City from continuing to fine the homeowners $100 per day or taking any other enforcement actions. Importantly, the judge noted our that we are likely to succeed on our claims. The hearing on the preliminary injunction motion is now scheduled for March 6. Read more about the case on our blog here and here.

Does the California ESA extend to your neighborhood squirrel population?

Potentially, under the California court of appeal’s recent decision in Central Coast Forest Association v. Fish & Game Commission, in which the court upheld the Commission’s decision to protect small, ecological marginal, and artificially maintained Coho salmon populations in streams and creeks south of San Francisco.  The Association last week petitioned the California Supreme Court for review, and we filed an amicus letter this week to support the petition.  Our letter brief argues that the court of appeal’s decision gives the state high court an excellent opportunity to revisit the court of appeal’s controversial 2007 decision in California Forestry Association v. Fish & Game Commission, which ruled that the Commission may protect groups—like the Coho population at issue in Central Coast Forest Association—smaller than an entire species or subspecies.  For more about the issue, check out our blog post here.

PLF opposes Seattle’s attempt to levy an unconstitutional “wealth tax”

Earlier this week, PLF filed a brief in Shock v. City of Seattle defending the State constitution’s Uniformity Clause, which protects individuals from discriminatory taxation by requiring that any taxes be imposed in a uniform manner. On at least seven occasions, the State Supreme Court has upheld this provision’s application of income taxes, concluding that uniformity is “highest and most important of all requirements applicable to taxation under our system.” Belas v. Kiga (1998). That, however, didn’t deter the City of Seattle from defying this settled law to levy an income tax on so-called “high earners” (based on a loose definition that reaches far into the middle class). A Seattle trial court struck down the obviously unlawful tax. The city is now seeking direct review before the Washington Supreme Court, asking the Court (for an eighth time) to overrule the Constitution. Ironically, the city’s motion comes on the heels of a fiscal report indicating that the city is set to collect a record $48 billion in taxes over the next biennium—an increase in over $20 billion in less than a decade. PLF’s brief argues that Seattle’s desire to impose a targeted income tax (and to amend the constitution) needs to be brought to the Legislature and the people of Washington, who have a long history of rejecting discriminatory taxes like the tax imposed by Seattle.

Supreme Court declines to review important timber sale case

In Scott Timber Co. v. Oregon Wild, the Ninth Circuit dismissed an appeal of a district court remand to the Bureau of Land Management for an environmental impact statement to further analyze a timber sale. The Ninth Circuit dismissed the appeal because it was brought by intervenor-defendants (the timber company who bought the timber contract and the union whose members would perform much of the work) rather than the agency that would be required to conduct the study. According to the Ninth Circuit, it has a “general rule” that intervenor-defendants cannot appeal remand orders because their interests will be represented during the remand. But in this case the defendant agency informed the parties that it would not conduct the study on remand, thus the only route to revive the timber contract was through a successful appeal. Our amicus brief discussed the problems with the Ninth Circuit’s rule and urged the Supreme Court to take up the case. Unfortunately, with the Supreme Court’s denial of cert, the impractical and burdensome rule lives on.

Opening brief challenging Seattle’s newfangled campaign-finance program

We filed our opening brief on appeal in Elster v. City of Seattle, which challenges Seattle’s law forcing property owners to pay for other people’s campaign contributions. This blog post has more.

Oral argument over whether Seattle can ban landlords from selecting their own tenants

The trial court heard oral argument in Yim v. City of Seattle, a legal challenge to Seattle’s “first in time” rule. The rule forces landlords to rent their property to the first qualified applicant even if the landlord has good reasons to pick someone else.

 

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