Edmund Lee, Jr., a fourth-grade student in St. Louis, is smart, likable, hardworking, optimistic, and a big fan of the Carolina Panthers. None of these qualities mattered when Edmund sought to continue his education at Gateway Science Academy, an excellent charter school in the City of St. Louis, after he moved to a safer neighborhood in St. Louis County. Rather, the only reason Edmund could not attend the school was because he is African-American.
Defendant Voluntary Interdistrict Choice Corporation (VICC) uses state funds to administer a discriminatory transfer program. VICC’s program prohibits white students in the City of St. Louis from transferring to schools in St. Louis County, and bans African-American students in the County from transferring to magnet schools in the City. Missouri law expressly applies this discriminatory policy to charter schools, such as Gateway. This strange story has gotten even stranger. The district court held that VICC’s unequal treatment on the basis of race actually complied with the constitutional mandate of equal protection. Today PLF attorneys filed Edmund’s appeal of this unjust ruling.
PLF argues “no,” in an amicus brief supporting four states, industry groups, and an Indian tribe in their challenge to the Bureau of Land Management’s (BLM) unlawful fracking regulation. It purports to regulate all fracking on federal lands based on the potential impacts of fracking to underground drinking water sources, despite the fact that Congress has chosen to let states, not federal agencies, decide how best to regulate fracking’s potential groundwater impacts.
The case is about much more than fracking, however. It raises deep questions about the appropriate relationship between Congress, federal agencies, and federal courts. For several decades, courts have generally deferred to agency decision under a case called Chevron v. NRDC. This so-called “Chevron deference” has been sharply criticized as unconstitutional and dangerous. Continue reading
Property rights case petitioned to Washington Supreme Court
This week PLF filed a petition for review to Washington state’s Supreme Court in Kinderace v. City of Sammamish. In that case, the commercially-zoned property of our client was rendered useless because the city made its land-use regulations increasingly restrictive over time. In an adverse decision, the Washington Court of Appeals held that because he was able to still develop neighboring parcels, the regulations did not really “take” his property. Interestingly, another PLF case pending before the U.S. Supreme Court, Murr v. Wisconsin, addresses a similar question. We hope the Washington Supreme Court will grant review of the adverse Kinderace decision, either to right the appellate court’s wrong now or to hold the case to see how the U.S. Supreme Court rules on the similar issue in Murr. For more information about the case, see PLF Principal Attorney Brian Hodges’ blog post.
Setback for right to criticize the government
PLF represents Duarte Nursery in a case alleging that the Army Corps of Engineers violated due process when it issued a cease and desist order to stop the farm from plowing its fields. When company president John Duarte spoke to the press about the government’s bad behavior, the government retaliated by suing the company for allegedly violating the Clean Water Act. In response, PLF brought a First Amendment retaliation claim against the government, which the trial court dismissed. This week the Ninth Circuit Court of Appeals rejected PLF’s appeal of the dismissal. However, the fight for Duarte’s other constitutional rights continues.
Earlier this week, Michigan Capitol Confidential published a very nice summary of the Marquette County Road Commission v. EPA lawsuit now pending in the District Court for the Western District of Michigan. PLF recently filed a friend of the court brief in that court, and we expect to take on representation of the commission at the next level in the court proceedings. Derek Draplin of the Confidential writes:
Courtesy of NOAA
This week, the U.S. Geological Survey released its population estimate for California’s sea otter, finding that the population has exceeded its recovery goal for the first time. This is good news for both the sea otter, which is listed as threatened under the Endangered Species Act, and users of California’s coast. According to the species’ recovery plan, it will be considered recovered and delisted when the population exceeds its recovery goal for three consecutive years.
The press release accompanying the survey highlights one area in particular where the population has grown substantially—San Nicolas Island.
“The sea otters at San Nicolas Island continue to thrive, and some may eventually emigrate to and colonize other Channel Islands in southern California,” says Brian Hatfield, the USGS biologist who coordinates the annual census.
It’s deeply ironic that the U.S. Fish and Wildlife Service declared this population a “failure” in 2012, in a decision that threatens the liberties and livelihoods of all those who work and play in Southern California’s waters. As you may recall, PLF has challenged that decision, arguing that it violates the statute that allowed the Service to create the San Nicolas Island population.
Takings law is famous for its thorny inquiries. One of the prickliest is the so-called “relevant parcel” determination. In every regulatory takings case, the court must begin by identifying the nature of the property at issue—i.e., the “relevant parcel.” It sounds easy, and it should be, but it isn’t. In the decades since the Supreme Court, in Penn Central Transportation Co. v. New York City (1978), declared that a takings analysis focuses on the “parcel as a whole,” the lower courts have pondered the meaning of that phrase, resulting in conflicting rules and inconsistent judgments.
Luckily, the U.S. Supreme Court is set to address this issue later this year in Murr v. Wisconsin.
Sadly, while we were waiting on Murr, Washington courts ventured into the “relevant parcel” thicket to poor results.
To illustrate, I’m going to tell a silly story. Very silly. But sometimes the strategies taken by the government to avoid the Takings Clause demand nothing more than rank silliness. Continue reading
This morning, the Senate Committee on Environment and Public Works issued From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act. The report is a follow-up to the hearing this past May before the Senate Subcommittee on Fisheries, Water, and Wildlife, addressing the EPA’s and the Corps’ property-rights-infringing administration of the Clean Water Act. Relying in part on PLF’s written testimony for the record, the Senate report explains that, even with agencies’ controversial WOTUS rule having been stayed, EPA and the Corps are still abusing the property rights of farmers and other landowners through an essentially unbounded interpretation of their own regulatory authority. The report therefore provides important evidence to lawmakers as they consider legislative responses to the agencies’ excesses.
PLF Atlantic Center Managing Attorney Mark Miller with (L to R): Lady Liberty, Jaslyn, Giselle, and Jahein.
As I have done each September for the last several years to celebrate Constitution Day, today I visited Indiantown Middle School in south Florida and shared a little bit about the U.S. Constitution with Ms. DeLeon’s eighth grade history students. This year, we added Ms. Guzman’s seventh grade students to the mix, as well.
My favorite part of the presentation revolves around an activity called “The Invaders.” The teachers and I inform the students that invaders have entered the United States and have demanded we give up five of the ten constitutional rights that I have spoken with the students about during the day’s discussion. We ask the students to choose the rights they will give up, and the rights they will keep.
The Washington Times and New Hampshire Union Leader have published my Constitution Day op-ed, which details why the Constitution is vital—not just today, but every day. The Constitution is what makes PLF’s job possible, and allows us to fight back on behalf of entrepreneurs or property owners when overreaching bureaucrats deprive them of economic opportunity, or take their property without compensating them.
As I write:
To [PLF clients], and to their attorneys, the Constitution isn’t just an old document. It’s a bulwark against infringements on their rights. As we mark Constitution Day, for many across America, every day the Constitution promises them important individual liberties. Americans would be wise to bear that in mind even after Sept. 17.
You can read the full article here
- First Amendment challenge to ban on automobile “For Sale” signs
- EEOC gets a haircut
- Petition for rehearing denied in Florida takings case
- Amicus brief filed in support of right to earn a living
First Amendment challenge to ban on automobile “For Sale” signs
We filed this complaint in Cefali v. San Juan Capistrano, challenging that town’s ban on automobile “For Sale” signs. When law student Michael Cefali tried to sell his Volkswagen by parking it front of his home with a “For Sale” sign, he didn’t receive an offer; instead he received a $50 ticket. Michael had the good fortune, however, of being a student in PLF’s Liberty Clinic at Chapman University’s Fowler School of Law where he learned about PLF’s success in challenging an identical ordinance in Alexandria, Virginia. The bottom line here is that the First Amendment protects speech, including truthful commercial speech. For more, see our blog post here.
EEOC gets a haircut
Dreadlocks okay in the music biz, not so much in customer relations
In accord with our amicus brief, the Equal Employment Opportunity Commission just lost its latest appellate case, this time with this opinion from the 11th Circuit in EEOC v. Catastrophe Management Solutions. This case came about when the EEOC sued an employer after the employer required its sales staff to adhere to a dress and grooming code that prohibited dreadlocks. Now dreadlocks may have a place in the music industry, Continue reading