October 29, 2016

Weekly litigation update — October 29, 2016

By James S. Burling Vice President for Litigation

Bills of Attainder and the” Cromwell effect.”

Image result for cromwell beheading
Bill of Attainder for a very dead Oliver Cromwell

We filed our amicus brief in Fowler v. Lanier in the Ninth Circuit emphasizing to the court the importance of the Constitution’s prohibition on “bills of attainder.” While this is a fairly obscure constitutional provision, it is an important protector of our liberty. Indeed, the framers of the Constitution included it because they were well aware of instances in English history where the crown exercised tyrannical authority by targeting individuals for “special” treatment, said treatment often involving the separation of the target from the of the target’s head (and posthumously in Oliver Cromwell’s case.) In more recent times, the prohibition has come to prevent any sort of special or punitive legislation targeting political enemies or disfavored groups. In this case, the California legislature passed legislation to protect farmers from the retroactive application of a new labor law interpretation — an interpretation that would have devastating consequences to farmers who had paid their workers in accordance with state labor guidelines that were later overturned by a court. Except that the legislature made an exception for a handful of employers who were being targeted by the United Farm Workers. Singling out particular individuals or employers for special adverse and unfair treatment isn’t just wrong, it’s also a violation of the Constitution. For more, see our blog post here.

Victory in Nashville

Our friends at the Beacon Center in Nashville won an important victory in their challenge to that City’s restrictions on short-term rentals such as Airbnb and VBRO in Anderson v. Metro Government of Nashville & Davidson County. PLF had filed an amicus brief supporting the First Amendment rights property owners who desired to advertise and rent out their homes on a short-term basis. The City capitulated on those claims this past summer; this decision dealt with additional restrictions. For more, see our blog post here.

When is ice wet?

We filed our opening summary judgment brief in Tin Cup, LLC, v. U.S. Army Corps of Engineers. The Corps and EPA are supposed to follow a particular manual when deciding what lands are wetlands subject to federal jurisdiction. Because that manual doesn’t give the federal government jurisdiction over frozen permafrost in Alaska, the Corps decided to “supplement” that manual in order to expand its jurisdiction. But Congress has forbidden the bureaucrats going beyond the manual unless certain procedures were followed — which were ignored in this case. For more, see our blog here.

When is dry land wet?

To help explain the ongoing battle over the new “Waters of the United States” or  WOTUS rule, this Q & A was published by Reuters this week, featuring PLF attorney Anthony Francois. Here is a link to a blog post on the Q & A.

Which one is Pink?

The New York Court of Appeals (that state’s highest court) decided this week in Pink v. Ricci  that a youth hockey league is not liable when, after the game, families of players on opposing teams get into a major brawl, with one player’s uncle clocking a bystander who was trying to break up the fight, causing head injuries.  The uncle was criminally prosecuted (as were a couple belligerent moms). We had filed this amicus brief arguing that the youth league should not be held responsible for irresponsible parents. Read all about it here.

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Anderson v. Metropolitan Government of Nashville and Davidson County

Two Nashville ordinances banned any form of advertising short-term rentals with signage on the property, and capped the number of non-owner-occupied short-term rentals to three percent of the properties in each census tract. Rachel and P.J. Anderson periodically rent out their home via Airbnb and sued to strike down the law as violating their First Amendment right to advertise their home and their Fourteenth Amendment right to equal protection. Nashville repealed the advertising ban and a trial court ruled that the remaining provisions were unconstitutionally vague. Nashville appealed and PLF filed an amicus brief supporting the Andersons and all Nashville property owners.

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