November 18, 2017

Weekly litigation update — November 18, 2017

By James S. Burling Vice President for Litigation
  • Supreme Court to hear PLF’s First Amendment challenge to political apparel ban
  • PLF presents oral argument on challenge to access regulation in the Ninth Circuit
  • Since the Feds get to regulate “species” and “subspecies,” shouldn’t we have an understandable definition of “species” and “subspecies”?
  • If seaweed is private property, that’s good for the environment
  • Good decision from Ninth Circuit in marbled murrelet case
  • Seattle’s unconstitutional income tax goes to court.
  • Marin County challenge to “affordable housing” shakedown continues
  • Can California citizens stop pension-fund abuse?
  • Arizona Supreme Court upholds illegal tax as a not-tax
  • Brief filed in support of an Indian artist’s right to call herself an Indian artist
  • Florida family seeks review at Florida Supreme Court
  • PLF asks court to reconsider order upholding Seattle’s perverse campaign-finance program.

Supreme Court to hear PLF’s First Amendment challenge to political apparel banImage result for supreme court

On Monday, the Supreme Court granted PLF’s petition for certiorari in Minnesota Voters Alliance v. Mansky. The Supreme Court will decide if a Minnesota law that bans political badges, buttons, and t-shirts at the polling place is consistent with the First Amendment. The Minnesota law defines “political” extremely broadly to include messages that do not endorse a candidate or a ballot initiative. That means voters who go to the polling places wearing a shirt with a logo of the Chamber of Commerce, AFL-CIO, or even PLF, will be subject to criminal penalties or hefty civil fines. Pacific Legal Foundation, representing Minnesota voters, argues that the law is overbroad, and thus violates the First Amendment right to free speech.

PLF presents oral argument on challenge to access regulation in the Ninth Circuit

On Friday, PLF argued an important property rights case, Cedar Point Nursery v. Gould, in the Ninth Circuit. The case involves a challenge to the Agricultural Labor Relations Board’s access regulation, which allows union organizers to go on the private property of agricultural growers, so that the organizers can solicit employees to join the Union. Because the regulation commandeers the growers’ property for union use, the regulation violates the Takings Clause of the Fifth Amendment and the Seizure Clause of the Fourth Amendment.

Since the Feds get to regulate “species” and “subspecies,” shouldn’t we have an understandable definition of “species” and “subspecies”?

PLF, representing scientific, agricultural, and property owner groups, has filed a petition calling for the U.S. Fish and Wildlife Service to finally define key terms in the Endangered Species Act. After more than 45 years, bureaucrats still don’t have a definition of “species” and “subspecies” to guide implementation of the statute. Consequently, many regulatory decisions having immeasurable impacts of people nationwide have been made arbitrarily or inconsistently. For more, see our blog post here.

If seaweed is private property, that’s good for the environment

On Tuesday, the Maine Supreme Court heard oral argument in Ross v. Acadian Seaplants, which asks whether rockweed growing on private property belongs to the property owner or can be harvested by anyone under the public trust doctrine. As friend of the court, PLF and the Property and Environment Research Center argue that clear and secure property rights are essential to creating the necessary incentives to conserve environmental resources like rockweed, a view we share with environmental groups participating in the case. In this oped in the Portland (Maine) Press Herald, PLF’s Jonathan Wood and PERC’s Tate Watkins explain that another benefit of property rights is that they encourage cooperation rather than conflict in response to environmental problems. Our blog post is here.

Good decision from Ninth Circuit in marbled murrelet case

We received this week a  favorable decision   from the Ninth Circuit in Cascadia Wildlands v. Scott Timber overturning a preliminary injunction that stopped planned timber harvesting in Oregon to protect the marbled murrelet, a bird protected under the Endangered Species Act. The appellate court held that the district court had applied a too lenient standard to determine whether the proposed timber harvesting would be likely to harm the murrelet.  Rather than determine whether the tree cutting would be likely to harm the murrelet, the trial court instead asked if “serious questions” existed as to whether the murrelet would be harmed. The Ninth Circuit held that this lax burden conflicted with recent Supreme Court precedent holding that injunctions should not be made more readily available simply because the plaintiffs seek to vindicate “environmental values.” Our friend of the court brief addressed the related question of whether the private and public balance of equities should always tip in favor of environmental interests in deciding preliminary injunction requests.

Seattle’s unconstitutional income tax goes to court.

Earlier this year, the City of Seattle shocked the people of Washington when it decided to impose an income tax on so-called “high-earners” in direct defiance of the Washington State Supreme Court, which has repeatedly held that the state constitution’s uniformity clause prohibits targeted income taxes. Today, the city attempted to defend its actions against four lawsuits—including the constitutional claims brought by PLF in Shock v. City of Seattle. When PLF filed its lawsuit, it warned that, even though the city sold the tax as targeting wealth, the city’s actions also threaten the poor and middle class. That warning has borne out. Because the city cannot challenge the constitution itself in this lawsuit, it has opted to target the courts’ longstanding characterization of one’s income as personal property. The city’s strategy is simple: if income is stripped of its constitutional protections, then there will be nothing standing in the way of new taxes. PLF’s reply brief argues that the constitution must be made of sturdier stuff than that. Once the law recognizes something as property, the constitution does not allow courts to strip it of its constitutional protection. The court took the parties’ arguments under advisement and stated that we might expect a ruling before Thanksgiving.

Marin County challenge to “affordable housing” shakedown continues

On Thursday we filed the reply brief in Cherk v. County of Marin in the Marin County Superior Court. We represent the Cherk family in seeking a refund of so-called “affordable housing” fees they were compelled to pay as a condition of receiving a permit to divide their 2.79 vacant parcel into two lots. The fee violates California’s Mitigation Fee Act and the unconstitutional conditions doctrine because the government has not and cannot show that the lot-split contributes to Marin’s housing shortage. Under prevailing law, a fee must be justified by a finding that the proposed project has an adverse public impact. If it has any effect, the Cherk’s lot split improves the  housing shortage by  adding a buildable lot to the community. A hearing on our motion for judgment is set for December 6, 2017.

Can California citizens stop pension-fund abuse?

We filed this friend of the court brief  with the state Supreme Court in Boling v. Public Employment Relations Board in support of San Diego voters’ right to use the citizens’ initiative process to curb massive taxpayer liabilities by reforming government pensions.  Specifically, we outlined why an unelected state bureaucracy – the Public Employment Relations Board (PERB) – violated the state Constitution when it butted in and ordered the city to nullify the voter-enacted reforms.

Even though Proposition B qualified for the ballot through citizen signature-gathering (more than 90,000 strong), PERB contended it should have been run through the “meet and confer” process that government conducts with labor leaders when officials propose changes in terms of employment.  In other words, PERB insisted on treating this citizens’ initiative as if it was government legislation.  Compounding its audacity, PERB claimed its ruling deserved judicial deference, because PERB was interpreting a labor law entrusted to its special administrative “expertise.”  In line with PLF’s mission to curb overreach by the administrative state, we detailed how PERB’s statutory interpretation infringed on the constitutionally established initiative process; for the courts to defer would mean forsaking their role as interpreter and defender of the Constitution, and their duty – as a famous precedent puts it – to “jealously guard” the people’s initiative rights.

Arizona Supreme Court upholds illegal tax as a not-tax

Following in the footsteps of California, the voters of Arizona adopted a constitutional amendment requiring that all new taxes be adopted by a 2/3 majority. And now, following in the footsteps of California’s Supreme Court, the Arizona Supreme Court has opened up a loophole in this Opinion in order to allow new taxes to be adopted by a simple majority vote. In Biggs v. Betlach, the Arizona court held that fees imposed on hospitals to raise money to pay for that state’s Obamacare program were actually not taxes. We had filed this amicus brief in the case (brought by our friends at the Goldwater Institute) explaining that for every loophole opened up by the California courts, the voters had to go back with a new initiative to plug the loophole. It’s a cat and mouse game that continues to this day. Our brief, filed on our behalf and the Howard Jarvis Taxpayers Association, suggested Arizona could avoid this endless cycle of loophole and plug by just reading the Arizona constitution the way the voters meant it: taxes require a 2/3 vote and a tax is a tax is a tax.

Brief filed in support of an Indian artist’s right to call herself an Indian artist

This week we filed our opposition to the State’s Motion for Summary Judgment in Fontenot v. Mike Hunter, Attorney General of Oklahoma.  As a result, we’re nearing the end of briefing in the federal district court in Oklahoma City in our challenge to Oklahoma’s law that prevents many American Indian artists from representing their art as American Indian-made, and the case will soon be in the hands of the judge. Also this week, ReasonTV released an excellent video chronicling the case and our client Peggy Fontenot. Give it a watch.

Florida family seeks review at Florida Supreme Court

In Pacetta v. Town of Ponce Inlet, we filed a petition at the Florida Supreme Court asking it to review another bad appellate decision on property rights in the state courts. In the case, Florida’s Fifth District Court of Appeal reversed a jury award for millions of dollars in favor of our clients Lyder and Simone Johnson. The Johnsons relied upon the town council of Ponce Inlet’s invitation to develop several pieces of property at great price, only to have that same town council turn against them and refuse to allow the development after the family made its investments. The trial court and jury recognized that the Johnsons must be compensated for this violation of their constitutional rights, but the appellate court thought it knew better. We expect the Florida Supreme Court to right this wrong. For more see our blog post here.

PLF asks court to reconsider order upholding Seattle’s perverse campaign-finance program.

Recenly, a judge upheld Seattle’s democracy-voucher program against our First Amendment challenge in Elster v. City of Seattle. The Court held that Seattle can continue to force property owners to pay for other people’s campaign contributions. Last week, we asked the Court reconsider this unfortunate blow to the First Amendment rights of Seattle property owners to refrain from supporting speech they oppose.

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