September 15, 2018

Weekly litigation update — September 15, 2018

By James S. Burling Vice President for Litigation

Preliminary injunction briefing completed in Minnesota dance case

This week we finished briefing our motion for a preliminary injunction in D.M. v. Minnesota State High School League. In this case, we represent two Minnesota high school boys who love to dance. Unfortunately, Minnesota state rules prohibit boys from joining high school competitive dance teams. Because that prohibition is express sex-based discrimination, the rule violates the 14th Amendment’s Equal Protection Clause and Title IX. We’ve asked the court for a preliminary injunction to allow the boys to try out for their dance team this school year. A hearing will be held in two weeks. For more info, read our blog post.

An adverse decision in the Ninth Circuit for donor privacy and the First Amendment

In Americans for Prosperity Foundation v. Becerra, nonprofits sued to stop the California’s Attorney General’s demand that nonprofits hand over their Schedule B donor disclosure form to the state. On Tuesday morning the Ninth Circuit issued this unfortunate opinion, vacating the favorable opinion of the district court. The court ignored the evidence that AFPF donors had faced harassment in the past, and held that the risk of future disclosure was slight, despite the fact that the evidence at trial showed that California had routinely made thousands of the confidential documents available over the internet through a combination of human error and website security flaws. We had filed this amicus brief in support of the plaintiffs, arguing that disclosure to government itself was a significant First Amendment injury, and detailing the potential chilling effects on nonprofit organizations and donors. It seems likely the case will next be headed for either en banc review in the Ninth Circuit or petition to the U.S. Supreme Court. Read more on the blog.

California court of appeal okays Commission’s rejection of San Diego Bay hotel plan

On Friday, the California Fourth District Court of Appeal issued an unpublished decision in San Diego Unified Port District v. California Coastal Commission. The ruling reverses the trial court and holds that the Commission correctly denied the San Diego Port District’s master plan amendment. The amendment would have changed the current allowance for hotels on eastern Harbor Island in San Diego Bay from one 500-room hotel to one already proposed 175-room hotel and two hotels containing the remaining 325 rooms. The Commission denied the amendment because the port refused to set aside a portion of the area for “inherently” low-cost visitor accommodation facilities, such as “yurts.”

The court of appeal’s decision contains a lot of background, but its essential holdings are: (i) port districts do not have nearly as much land-use policy-setting authority vis a vis the Commission as do cities and counties; (ii) the Commission’s finding, in denying the amendment, that the port would have to allow for specific types of low-cost facilities in order to obtain Commission approval did not constitute a forbidden setting of room rates; and (iii) the Commission permissibly interpreted the Coastal Act to require the port to provide low-cost visitor accommodations rather than in-lieu fees.

In a footnote, the decision briefly addresses and rejects the constitutional argument set forth in our amicus brief. We had argued that the Commission’s denial violated Nollan and Dolan, because the production of market-rate hotel rooms has no nexus to an increased need for low-cost accommodations. The court of appeal rejected the argument because (i) Nollan and Dolan only apply to conditioned approvals, not denials; (ii) low-cost housing conditions are not subject to Nollan and Dolan; and (iii) any takings claim is unripe because no permitting decision has been made. For more analysis, see our blog post here.

PLF asks Supreme Court to give homeowners meaningful protection from excessive fines

Our friends at Institute for Justice have convinced the Supreme Court to soon decide in the case Timbs v. Indiana whether the Constitution restrains states (and not just the federal government) from imposing excessive fines. The case started when the State of Indiana attempted to take Tyson Timbs’s Land Rover for his violation of a drug law.  But as we explain in our friend-of-the-court brief, it is not just common criminals who need protection from excessive fines.  State and local governments often impose excessive fines against responsible individuals who violate codes that regulate innocuous activities like residential landscaping choices or minor home improvements.  These fines for residential landscaping choices, for example, at times exceed the value of the home itself. Without meaningful protection from the Supreme Court, local and state governments will continue to abuse their power to fine. Read more here.

Ninth Circuit: states can ban mining on federal land

This week, the Ninth Circuit ruled against Oregon miners in Bohmker v. Oregontheir challenge that the state’s suction-dredge mining ban is preempted by federal law encouraging mining on federal land. As amicus, PLF argued that Oregon had gone too far: Congress has given states wide latitude to regulate environmental impacts of activity on federal land but it does permit the state to simply ban outright activity that Congress has chosen to encourage. The miners received some encouragement, however. Judge Smith dissented in the case, forcefully arguing that the decision upsets the balance in our federal system. That powerful dissent is sure to increase interest in the case if it is petitioned to the Supreme Court.

 

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D.M. & Z.G. v. Minnesota State High School League

When 16-year-old Dmitri Moua discovered dancing, he also found a new way to be a part of a team, and build his self-confidence. But when he wanted to join his high school’s competitive dance team, he was denied because he is a boy. Dmitri’s school is in the Minnesota High School League—whose bylaws declare competitive dance a “girls only” sport. On behalf of Dmitri, Pacific Legal Foundation has filed a federal lawsuit challenging the rule’s constitutionality.

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