February 3, 2018

Weekly litigation update—February 3, 2018

By James S. Burling Vice President for Litigation

Three Complaints Filed in Vaping Lawsuit, so that Constitutional Protections Don’t Go Up In Vapor

On Tuesday, we filed three separate complaints in the cases Moose Jooce, et al. v. FDA; Hoban, et al. v. FDA; and Rave Salon v. FDA—in DC, Minnesota, and the Northern District of Texas respectively—challenging the FDA’s regulation of vaping products as unconstitutional. In the Minnesota and Texas cases we represent vape shops local to those states, and in DC we represent vape shops in Michigan, California, and North Dakota. In all three complaints, we explain that the FDA’s current process for promulgating rules is unconstitutional, because rulemaking power has been delegated from a constitutional officer to a career bureaucrat, who issued the rule regulating vaping products We also challenge the rule as a prior restraint on truthful speech in violation of the First Amendment, because it places the burden on manufacturers to prove that their speech will be beneficial before they are allowed to say it. For more, see our blog post and our new case page.

WOTUS victory!

Last week PLF won its ninth victory in the Supreme Court of the United States, on behalf of several clients in the case of National Association of Manufacturers v. Department of Defense. The decision is part of PLF’s ongoing court fight against EPA’s illegal 2015 redefinition of dry land as “water” under the Clean Water Act. The Supreme Court decision confirms our clients’ rights to challenge EPA’s land grab in any federal trial court in the nation, and ends a thirty month EPA delaying tactic against our suit. PLF will now be able to force EPA to face the judicial music for its illegal land grab. Read more at our blog.

Free speech and a starry night in Florida

This Thursday, the City of Mount Dora increased the fines against Nancy Nemhauser and Lubomir Jastrzebski for the Starry Night-inspired mural that adorns their house. The city had previously determined that the house constituted an “unpermitted sign,” adopting a definition of sign so broad that anything that “attracts the attention of the public” could be cited. The fines are now over $8000 and set to grow $100 every day. The family has appealed the underlying violation, arguing that there are no residential aesthetic restrictions in Mount Dora and the sign code can’t be constitutionally applied to them. Our opening brief in the Lake County Circuit Court will be filed next week, alleging violations of the First and Fourteenth Amendment. Read more on the blog.

Oral argument held in Oregon gray wolf case

Wednesday morning the Oregon Court of Appeals held oral argument in Cascadia Wildlands v. Oregon Dep’t of Fish and Wildlife. PLF represents the Oregon Cattlemen’s Association and Oregon Farm Bureau federation in intervening to defend the State’s 2015 delisting of the gray wolf from the Oregon endangered species list, arguing that the subspecies of wolves currently in Oregon are members of a non-native, introduced Canadian subspecies. The case was triggered because even though the State’s wolf management plan has successfully lead to wolf numbers in Oregon sustainably rising and reaching the benchmarks necessary for delisting, and thus allowing ranchers and farmers to now protect their property, cattle, and pets from wolf attacks, environmental organizations seek to compel the State to relist the wolf. The Court may wind up declining to decide whether the delisting was proper, though, as the vast majority of the Court’s attention during the argument was devoted to whether the Oregon legislature effectively mooted the case by enacting a bill approving of the delisting.

Courts keep missing the mark with Marks

For the law to be just, it must be predictable and applied in a uniform manner to all persons. Yet increasingly, the U.S. Supreme Court is deciding some of the most important (and divisive) legal questions with fractured decisions, leaving many to question whether those cases stand for any one legal rule. Worse still, many fractured decisions, including PLF’s 4-1-4 victory in Rapanos v. United States (2006), are being interpreted and applied inconsistently throughout the nation.  Because of this, PLF filed an amicus brief urging the U.S. Supreme Court to clarify its decision in Marks v. United States (1977), where it explained that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” Clarification by the Court is necessary to ensure the rule of law. For more, see our blog post here.

Florida Supreme Court refuses to hear takings case

Last week the Florida Supreme Court refused to hear our petition in Pacetta v. Town of Ponce Inlet. In this case, Florida’s Fifth District Court of Appeal reversed a $30 million dollar takings award in favor of our clients, Simone and Lyder Johnson. We asked the state’s highest court to right that wrong, but its decision to turn us away means we will now seek justice at the U.S. Supreme Court. For more on the case, read our blog post here.

Mismatch: State Bar of CA Refuses Disclosure of Data related to Minority Bar Exam Passage

We filed this amicus brief in the California First Appellate District opposing the State Bar of California’s continued refusal to release anonymous data that may shed light on the possible discrepancy between affirmative action policies in California law schools and minority passage of the bar exam. The basis for Sander v. State Bar of California, is the theory of “mismatch.” Championed by Professor Richard Sander of UCLA Law, mismatch theory posits that students who receive racial preferences to attend law schools perform less well (in law school and on the bar exam) than students who receive no racial preference. After over a decade of formal requests and subsequent favorable litigation, the State Bar is still refusing to release the anonymous data Professor Sander needs to test his theory. Having previously filed an amicus brief in support of Sander’s case, and knowing PLF’s previous work in the realm of equal protection, he requested we file another amicus in support of his cause.

Utahns should not have to rely on the federal government to defend their access to public lands

On Wednesday, PLF filed a reply brief in support of our clients’ motion to intervene in Patagonia, Inc.’s lawsuit challenging the reduction of the Bears Ears National Monument. Patagonia and the other Plaintiffs opposed the motion to intervene, and argued that the federal government would adequately represent the interests of our clients. But PLF, and our clients, are skeptical that the federal government will have the same interest in defending the monument reduction as Utahns who actually use the land. Our clients should not have to rely on the federal government to defend their interests in accessing the public lands, especially when they can do so themselves.

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