S.F. to appeal in Levin case– calls out PLF

Today, the City of San Francisco issued a press statement announcing it plans to appeal its recent loss in the case of Levin et. al. v. City and County of San Francisco. In that case, a federal court held that the City unconstitutionally took private property in enacting a law requiring landlords to pay tenants massive sums of money (118K for the Levins) before they can leave the rental business.  See here for a summary of the decision.

In its statement today, the City recognized its loss and the important limits it sets on the ability of government to extort property in the permit process:

“This decision places a new and significant obstacle in front of cities defending development fees and other development approval conditions: they must show not only that a property owner’s actions cause social harm [to justify a condition addressing that harm], but also that the owner’s actions are the only cause of that harm.”

In part to evade such limits, the City vowed to appeal to the Ninth Circuit.  In so doing, it recognized Pacific Legal Foundation’s historic role in holding the city accountable to the Constitution:

“The Pacific Legal Foundation is a familiar legal foe to the San Francisco City Attorney’s Office, having brought many federal constitutional challenges to the city’s affordable housing policies.”

The release then ends with a bizzare potshot at the Foundation: the City harps that it defeated PLF in a prior property rights case, San Remo Hotel v. City and County of San Francisco.  But PLF attorneys were not the lawyers for the property owners in the San Remo case.  In any event, the City’s reference to San Remo is ironic because, when the City relied on that decision in the Levin case, Judge Breyer soundly rejected its applicability.

Ultimately, this dispute is not between PLF and the City. It is between ordinary property owners like the Levins and City officials who want to force rental owners to solve an affordable housing crisis the City itself caused.  Nevertheless, PLF has issued this response to the City’s appeal statement:

“It is disappointing that city officials are determined to continue flouting the United States Constitution and to defend the indefensible, said PLF Principal Attorney J. David Breemer. “The Levins and Pacific Legal Foundation would prefer that the city spend its energy on coming up with solutions to the affordable housing crisis that are constitutional and just. However, if city officials are determined to press on with litigation, so is Pacific Legal Foundation. As Judge Breyer recognized, the law is nothing less than an unconstitutional ransom demand on San Francisco’s rental property owners.  If necessary, PLF is prepared to go all the way to the U.S. Supreme Court to put a final tombstone on this oppressive law.”








What can Moneyball teach us about the debate over racial preferences?

Some things are accepted as so obvious that people rarely ask whether they are true. Take baseball for example. There used to be a time when fans and managers alike hyped up a pitcher as a “winner,” a batter as “clutch,” or a player known for making diving stops as a “great fielder.” Then, as the story goes, an enterprising front office in Oakland questioned these assumptions. Perhaps a pitcher’s win-loss record is largely a byproduct of his team, a batter’s clutch hitting is heavily influenced by where he hits in the lineup, and the fielder had to dive because of a slow first step. The Oakland Athletics made the major league playoffs on a minor league budget. The lesson: Just because an assertion is commonly accepted does not mean it is right.

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PLF and the Levins win: S.F. tenant-payment mandate is struck down

Today U.S. District Court Judge Charles Breyer sided with Pacific Legal Foundation’s (PLF) lawsuit and struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional.

Under the ordinance, rental property owners who want to reclaim use of their own property must pay a massive sum to their tenants – a sum that the tenant doesn’t even have to use for relocation purposes.

PLF’s lead clients are Dan and Maria Levin, who live in the upstairs unit of their two-story home.   They would like to use the lower unit for friends and family, but they would have to pay their tenant $118,000 to withdraw it from the rental market.  As a national property-rights defender, PLF represents the Levins, as with all our clients, free of charge.

PLF Principal Attorney J. David Breemer issued this statement in response to today’s ruling:

This is a great victory for every San Franciscan who owns any kind of home or property, small or large, and for everyone who values property rights as a fundamental freedom,” said PLF Principal Attorney J. David Breemer, the lead attorney in PLF’s challenge to the relocation-payment mandate.  “By striking down this confiscatory law, Judge Breyer’s ruling makes it clear that government can’t force people to stay in the rental-property business against their will.   And government can’t force owners to pay a massive ransom in order to make use their own property.   The Constitution protects property rights for everyone, including rental property owners.  Today’s ruling should remind city leaders that the Constitution protects property owners in San Francisco, like everywhere else.

PLF Clients Dan and Maria Levin issued this statement:

We are gratified that Judge Breyer found this oppressive law to be unconstitutional,” said Dan Levin.   “We thank the lawyers at Pacific Legal Foundation for all their hard work. We now look forward to being able to use our own property for family and friends without having to pay a massive fine.

The case is Levin v. City and County of San Francisco. More information, including the complaint, a video, blog post, and a podcast, may be found here.

Contact: J. David Breemer, Principal Attorney, Pacific Legal Foundation (PLF), (916) 419-7111.    jdb@pacificlegal.org

Jennifer Thompson, PLF Attorney, PLF (916) 419-7111 jft@pacificlegal.org

The Leadership Conference tries hard to convince itself that Americans support the Voting Rights Act

Everyone knows that pollsters can design questions that elicit the results they want. Indeed, even very subtle changes in poll questions can show that Americans either support or disapprove of any particular person or policy. That’s why reputable polling organizations take great pains to develop questions that are nonpartisan and objective. If the goal is to accurately reflect and report on public opinion, then success can only be achieved by strict adherence to fairness and objectivity.

To be sure, even reputable polling organizations are accused of skewing questions from time to time.  But many of these claims are from organizations or individuals that don’t like the results, or reflect genuine, honest mistakes by the pollsters. Rarely, are these organizations attempting to trick or mislead the public.

There are, however, any number of polling outlets that cater to organizations that want to intentionally skew polling results.  One of those organizations is Lake Research Partners. It touts itself as “experts on union and labor issues.” It is a “leading voice in the progressive movement” that has “helped unions effectively advocate” for any number of issues. So, whenever the results of a Lake Research Partners poll are being touted as demonstrative of the American people, it behooves us to take a closer look. Continue reading

Drakes Bay Oyster Company reaches settlement

Earlier this year the U.S. Supreme Court declined to hear Drakes Bay Oyster Company’s appeal of whether it could challenge the Interior Department’s refusal to renew its permit in federal court.  Since that decision, the oyster farm has ceased retail sales on site, and recently completed a settlement agreement that allows it to continue harvesting shellfish from Drakes Estero until the end of 2014.  One of the benefits of the settlement for the oyster farm is that the federal government has taken responsibility for removal of structures and improvements at the site, including removal of the oyster racks in Drakes Estero.  The federal government also committed efforts to assist farm workers who will be displaced by termination of the permit, including allowing those who live on site with their families to remain in place at least 90 days after the farm shuts down at the end of this year.

The owners have announced that they will be opening a restaurant in the town of Inverness, near Point Reyes.  The Lunny family has earned the appreciation of all from the prosecution of their case: they stood up to a nasty campaign of disinformation against them; stood up to arbitrary and unjust treatment by the Park Service and Interior Department; and pursued their cause all the way to the Supreme Court.  They are now taking the path of all great Americans: recovering from the set back and moving on.  We are disappointed for their loss, but our hats are off to them.

PLF petitions Cal Supremes in seawall case

Today, we asked the California Supreme Court to review Lynch v. California Coastal Commission.

The case involves a challenge to conditions imposed by the Commission on two families’ seawall permit.  The families reside in adjacent bluff-top homes in the City of Encinitas (San Diego County).  A series of storms and years of erosion destabilized their bluffs and existing protective devices, and destroyed the lower portion of their shared stairway to the beach.  The City approved a permit to install a new state-of-the-art seawall that would have a projected life of 75 years.  But given the location of the property, the families also had to obtain a separate permit from the Commission.  That’s where the families’ nightmare began.

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President’s weekly report — October 17, 2014

Equality Under the Law Project — Alabama redistricting

We filed this amicus brief at the United States Supreme Court in Alabama Legislative Black Caucus v. Alabama, a consolidated case where plaintiffs are challenging that state’s most recent redistricting as “racial gerrymandering.”  It gets complicated, but part of the reason why race was a factor was because the state had to comply with the since-overturned section V of the Voting Rights Act, which required preclearance of restricting plans and forbade “retrogression” of minority representation.  As our brief puts it:

These cases concern the interplay between this Court’s racial gerrymandering cases, Section 5 of the Voting Rights Act, and the Equal Protection Clause. The first permits consideration of race in redistricting, the second requires it, and the third forbids it.

Our amicus brief explains that the Equal Protect Clause requires that courts should strictly construe the use of race, whenever it is a factor.  For more on this, see our blog.

California’s Cap and Trade tax at the Court of Appeal

We filed our opening brief in Morning Star Packing Company v. California Air Resources Board, our challenge to the billions upon billions of dollars in cap and trade taxes being imposed on Californians.  The bottom line is that while the legislature may have called for the use of market-based mechanisms to reduce greenhouse gasses, it did not intend for its law to become a defacto tax, taking many billions of dollars out of the pockets of Californians.  But that’s exactly what the Board did — it has adopted an auction system that is raising billions for general revenues.  The trouble is, this tax was adopted after Proposition 13 was enacted.  And since “A.B. 32″ passed with only a simple majority, and since it is for all practical purposes a massive tax measure, it violates Prop. 13.  For a bit more see our video and blog post.

Obamacare:  Government opposes request for rehearing

In Sissel v. United States Department of Health & Human Services, our Origination Clause challenge to Obamacare, the Federal Government filed its opposition brief to our petition for rehearing en banc today—one week early.  You can read more about it on our blog post here.  We’re also happy to report that Texas and twelve other states filed an  amicus brief in support of our petition for rehearing.  As that brief put it:

Given that federal courts are obligated [by Supreme Court precedent] to adjudicate claims under the Origination Clause, federal courts must give meaningful effect to the constitutional provision—rather than reading it, as defendants would, to be a “meaningless and formalistic rule.” If the Origination Clause means anything, it must mean that the [Affordable Care Act] is unconstitutional.

California Supreme Court:  Full Steam Ahead on the California Choo-Choondoggle. Continue reading

California’s cap and trade tax at the Court of Appeal

We filed our opening brief in Morning Star Packing Company v. California Air Resources Board, our challenge to the billions upon billions of dollars in cap and trade taxes being imposed on Californians. The bottom line is that while the legislature may have called for the use of market-based mechanisms to reduce greenhouse gasses, it did not intend for its law to become a defacto tax, taking many billions of dollars out of the pockets of Californians. But that’s exactly what the Board did — it has adopted an auction system that is raising billions for general revenues. The trouble is, this tax was adopted after Proposition 13 was enacted. And since “A.B. 32″ passed with only a simple majority, and since it is for all practical purposes a massive tax measure, it violates Prop. 13.

In response to the State’s arguments that the auction proceeds are just “fees” and not taxes, our brief points out that the California Supreme Court set out specific criteria for determining whether a levy is a fee or a tax: and that these criteria are simply not met here.  The moneys raised are proportionate to neither to the benefits received by the taxed entitles nor the burdens imposed.  Moreover, these moneys are being used for all manner of things well beyond the costs to run the program — everything from general fund borrowing to low-income neighborhood assistance.

Lastly, more recent statutory amendments to A.B. 32 don’t help either.  Even if these enactments converted some of the moneys from taxes into fees, they were adopted well after the voters amended Prop 13 with Prop 26 — the initiative that requires fees to be voted on by two-thirds of the legislature.

For a bit more see our video.