March 3, 2018

Weekly litigation update — March 3, 2018

By James S. Burling Vice President for Litigation
  • Supreme Court oral argument in Minnesota Voters Alliance v. Mansky
  • Ninth Circuit: Unelected bureaucrats can do whatever they want, no matter what the law or facts say. See Chevron.
  • Santa Barbara Fights to Keep its Home Inspection Program.
  • Balancing the Rights of Washington’s Citizens

Supreme Court oral argument in Minnesota Voters Alliance v. Mansky

Image result for gadsden flag
Revolutionary War Gadsen Flag

PLF attorney Dave Breemer, with the able assistance of Wen Fa, Deborah LaFetra and Oliver Dunford argued Minnesota Voters Alliance v. Mansky at the Supreme Court of the United States on Friday. This is the case where a citizen was thwarted from voting because he was wearing a Revolutionary War era “Gadsen Flag” tee-shirt with a tea party logo on it. As the case proceeded, the state admitted that its policies would ban everything from an AFL-CIO shirt to one supporting the Chamber of Commerce so long as there was some “political” connection. At the argument, the Justices asked numerous questions of both sides, but we think that a majority of the Justices understand the troubling implications of an outright ban of political apparel on the First Amendment rights of voters. You can read the transcript of the argument here. You can listen to the oral argument here.

Ninth Circuit: Unelected bureaucrats can do whatever they want, no matter what the law or facts say. See Chevron.

This week, we learned that the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s decision to terminate key protections for southern California’s fishery in California Sea Urchin Commission v. Jacobsen, based on the agency deeming a sea otter population a “failure” when the federal government admits it is thriving and has pushed the species over its recovery goal. Although nothing in the statute even arguably permits the Service to do so—on the contrary, Congress repeatedly said that these protections are mandatory—the Court nonetheless decided Congress hadn’t been clear enough in requiring the agency to follow the law. Applying an extreme interpretation of the oft-criticized Chevron doctrine (that’s the case first holding that courts must defer to certain agency interpretations of the law), the Court decided that agencies can do anything they want, unless Congress anticipates and expressly forbids the action—a huge threat to the Constitution’s separation of powers. For more, see our blog post.

Santa Barbara Fights to Keep its Home Inspection Program.  

Several weeks ago, we reported that the City of Santa Barbara had filed a demurrer (a motion to dismiss) and a motion to strike our complaint challenging the City’s inspection program of single-family, owner-occupied homes at the time of sale.  In this case, Santa Barbara Association of Realtors v. City of Santa Barbara,  the motions were scheduled to be argued on February 26th, but the hearing continued to March 19th.    Apparently, the trial court needs more time to research the many issues raised by the City, and rebutted by the Realtors.  The Realtors want the entire inspection program to be discontinued, and allege that the ordinance requiring the inspections creates unconstitutional conditions on the right to refuse a search.  For example, consent to search a home is not true consent when the City’s ordinance includes potential fines and/or jail time for refusing to allow a search.  PLF argues that there is no precedent for warrantless inspections of owner-occupied, single-family homes.

Balancing the Rights of Washington’s Citizens

This week PLF filed an amicus brief in Washington v. United States, arguing that the United States Supreme Court should overturn the Ninth Circuit’s incorrect reading of the Stevens Treaties. The Ninth Circuit’s reading not only massively expands the Treaties’ traditional interpretation, but it also improperly imposes an environmental servitude on the State of Washington. Instead, we asked the Court to consider a more balanced approach to reading the Treaties, one that protects both Indian and non-Indian citizens alike. To read more about this case, see our blog post here.

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