June 11, 2018

Weekly litigation update — June 9, 2018

By James S. Burling Vice President for Litigation

Coastal Commission challenged on “yurt” condition

This week we filed an amicus brief in the California court of appeal to support the San Diego Port District’s challenge to a Coastal Commission demand for more “lower cost visitor accommodations” in the San Diego Bay area. The Port wants to amend its land-use plan to facilitate the production of more hotel rooms, but the Commission doesn’t like the idea without a promise from the Port (and its private-party lessees) to provide hundreds of “lower cost” rooms­—such as those found in hostels and “yurts”. Our amicus brief argues that the Commission’s demand amounts to an unconstitutional exaction under Nollan v. California Coastal Commission. For more on the case and our brief, please see our blog post here.

How do you spell “release time” – we spell it “u-n-c-o-n-s-t-i-t-u-t-i-o-n-a-l”

One of the more devious ways that public employee unions perpetuate their power is by convincing state legislatures to authorize “release time,” that is, using taxpayer dollars intended for public employee salaries to pay union leaders to work for their union. In New Jersey, the state constitution prohibits such gifts of public funds to benefit private interests. On Wednesday, PLF filed an amicus brief in the New Jersey Appellate Division in Rozenblit v. Lyles pointing out that the only entity that benefits from release time is the union—not the school district, not the public, and certainly not the students. This is an unconstitutional gift and the court should invalidate the release time provisions in the collective bargaining agreement.

States must refund illegal taxes

If a state illegally taxes you, and you successfully sue to recover the money, does the state have to refund the taxes? Oddly enough, the answer to this question may depend on whether the state’s illegal taxes violated federal law or state law. In Nextel Communications v. Pennsylvania, the Pennsylvania Supreme Court held that the state collected about $4 million in taxes from Nextel in violation of that state’s constitution. But when the state complained that repaying the illegally collected taxes would hurt the public treasury, the court refused to grant Nextel a refund. Nextel is now asking the Supreme Court to review the case and, on June 4, PLF filed an amicus brief supporting the effort. A taxpayer who remits millions of dollars under an illegal collection scheme doesn’t care whether the illegality derives from federal or state law. Justice—and due process—require a remedy.

Are landowners barred from putting on evidence of constitutional harm?

Yes, you read that right. In the case, Preserve Reasonable Shoreline Management v. City of Bainbridge Island, a Washington state trial court barred property owners from putting on evidence necessary to advance their constitutional claims against a ridiculously overreaching shoreline ordinance (requiring, for example, government approval before planting a pansy in your garden or renting a bouncy-house on your kid’s birthday party). The trial court’s decision arose from a Washington state law requiring that property owners first try all statutory claims to the Growth Management Hearings Board—an administrative agency that lacks the authority to decide constitutional issues—before proceeding to the courts. According to the trial court, this transformed PRSM’s constitutional claims into an “appeal” and subject to the general prohibition against admitting new evidence on appeal. PLF attorneys sought immediate appellate review of the trial court’s decision because trying its constitutional case without the ability to offer the evidence required by case law would be futile. PLF argued that every citizen has a right to put on evidence necessary to prove the elements of a constitutional claim when that claim is properly raised for the first time before the court that has exclusive and original jurisdiction. Earlier this week, the Court of Appeals granted direct review of this important question. We expect the issue to be briefed and argued by the end of the year.

 

What to read next