Weekly litigation update — July 1, 2017

July 01, 2017 | By JAMES BURLING
  • PLF sues Seattle over compelled political campaign contributions
  • What are the odds? Supreme Court to decide constitutionality of federal sports betting ban
  • SCOTUS denies review of a takings win in the state of Florida
  • Cap and Trade tax here to stay
  • Supreme Court goes to bat twice for religious liberty
  • Discrimination case turned back

PLF sues Seattle over compelled political campaign contributions

We sued Seattle in Elster v. Seattle, arguing that the First Amendment prohibits the city from forcing property owners to bankroll other residents’ campaign contributions. Under Seattle’s new-fangled “democracy voucher” program, each city resident receives four $25 democracy vouchers. They in turn use those vouchers to contribute to political campaigns of their choice. That money, though, comes from the pockets of Seattle’s property owners through a new property levy. This compelled subsidy of another person’s political speech violates the First Amendment, which promises that the government can’t make you an unwilling vessel for views you oppose. See our blog post for more.

What are the odds? Supreme Court to decide constitutionality of federal sports betting ban

On Tuesday, the Supreme Court granted cert in Christie v. N.C.A.A. to decide whether federal law can forbid New Jersey from legalizing sports betting as a matter of state law. One of the biggest federalism cases in years, the consequences of the case will extend far beyond gambling, including potential impacts on a wide variety of environmental laws. PLF, on behalf of CEI and the Cato Institute, filed an amicus brief asking the Court to review the case. For more, see our blog post.

SCOTUS denies review of a takings win in the state of Florida

On Tuesday, the Supreme Court of the United States refused to review the outcome of United States v. Lost Tree Village Corp. This case, arising in the state of Florida and litigated in the Federal Circuit for over a decade, represents a solid win for the property owners in the case, who stand to recover about 14 million dollars from the U.S. Army Corps of Engineers (that is, the U.S. taxpayer) because the Corps refused to issue a permit to Lost Tree to develop a lot it owned along the south central coast of Florida, a refusal that the courts correctly said amounted to an unconstitutional taking of Lost Tree’s property without just (or any) compensation. We filed several amicus briefs (including this one) supporting the land owners in the case as the case traveled up and down the court system for over a decade. The Supreme had been holding off on deciding what to do about this case pending its ruling in Murr. It is conceivable that the Court was satisfied that the lower court had engaged in the sort of multi-part balancing test envisioned by Justice Kennedy’s opinion in Murr. To read more about the case, read our blog post here.

Cap and Trade tax here to stay

In a swift move, the California Supreme Court denied review in Morning Star Packing Co. v. California Air Resources Board yesterday, June 28. We say “swift” because we only filed our reply in support of the petition for review on Monday. The justices must have been furiously reading all three replies filed in the case on Monday, so that they would be well prepared to vote on the case by Wednesday. This is a very unfortunate decision, because it leaves in place a multi-billion dollar energy charge that gets paid on all gasoline, diesel, natural gas, propane, and coal used to power California’s electrical grid, heat homes, and fuel transportation and industry. The lower courts held (wrongly, we think) that this energy charge is not a tax under Proposition 13, and now the state Supreme Court has let that ruling stand, and California taxpayers will be the worse off for it.

Supreme Court goes to bat twice for religious liberty

On Monday, the U.S. Supreme Court issued a groundbreaking decision in the case of Trinity Lutheran Church of Columbia v. Pauley.   Trinity Lutheran Church operates a daycare that includes a playground used by both students and members of the surrounding community. Trinity applied for a grant offered to nonprofit organizations by the State of Missouri, which would have allowed Trinity to replace the rock surface of the playground with a safer rubber surface made from recycled tires.  Although Trinity submitted the fifth best plan for the use of the rubber surfacing material, it was not among the fourteen organizations to receive a grant.  Why?  Because it is a church.  PLF filed an amicus brief arguing that churches should not be excluded from otherwise neutral and secular aid programs.   Chief Justice Roberts wrote the opinion of the Court, holding that generally available benefits cannot be denied solely on the basis of religious identity.  Such unequal treatment imposes a penalty on the free exercise of religion.  The opinion is contrary to the long-held belief that government cannot provide public funds directly to a church.  As discussed in this blog post, the opinion was far from unanimous—three justices drafted separate concurrences, and two justices dissented.

A Colorado case raising the issue of public funding for children to attend religious schools was on the U.S. Supreme Court’s docket for more than a year, apparently awaiting a decision in Trinity Lutheran Church.  On Tuesday, the Supreme Court remanded Doyle v. Taxpayers for Public Education to the Colorado Supreme Court, to review the case in light of the newly minted Trinity Lutheran decision.  The Colorado Court held that tax dollars could not be used to support a Choice Scholarship Program for children to attend religious institutions.  The question to be decided is as follows:  “Does a generally available and religiously neutral student aid program violate the Religion Clause or the Equal Protection Clause … simply because the program affords students the choice of attending religious schools?”  Doyle is a particularly important case, as it will be the first case to test the limits of Trinity Lutheran, and will probably end up in the high court again.  PLF filed an amicus brief in the U.S. Supreme Court, and will file an amicus brief in the Colorado Supreme Court.

Discrimination case turned back

Certiorari was denied in  Midwest Fence Corp. v. United Stated Dep’t. of Transportation.  The case challenged race-conscious contracting programs of the U.S. Department of Transportation and the Illinois State Toll Highway Authority.  Both the trial court and the Seventh Circuit Court of Appeals ruled against Midwest Fence.  PLF filed an amicus brief in the Seventh Circuit Court, but we did not file on the petition for certiorari.