Weekly litigation report — December 2, 2016

Right to say you are who you are

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Peggy Fontenot with her art

We filed this complaint on behalf of Peggy Fontenot against the State of Oklahoma. The rub of Fontenot v. Pruitt is that Peggy Fontenot, who is a member of the Patawomeck Indian Tribe, is not allowed to say in Oklahoma that her photographs and artwork are made by an American Indian. Why not? Because the Patawomeck tribe is recognized by Virginia but not by the federal government. That matters because Oklahoma will not allow someone from a non-federally recognized tribe to sell “Indian” art in that state. Naturally, all tribes in Oklahoma are recognized by the federal government. Not only does this rule limit competition, but it also infringes upon Peggy Fontenot’s free speech right to say who she is when selling her art. For more, see our blog post here.

Reply brief filed in St. Louis discrimination lawsuit

We filed this reply in E.L. v. VICC, where we are suing on behalf of a student whose wish to be able to transfer to other city schools is being blocked solely because he is African-American. For more, see our blog post here.

Liability of wealth

In a tort suit, whether you caused an injury should be more important than how deep your pockets are. In that vein, we filed this amicus brief asking the California Supreme Court to overturn the flawed decision in T.H. v. Novartis. That opinion would essentially impose never-ending tort liability on brand-name drug manufacturers for injuries caused by their generic counterparts.  By adopting an expansive theory of liability, the law threatens to drive up the cost of doing business—possibly deterring useful medications from coming to market. For more see our blog post here.

The law applies to thee, but not to me, if the “me” is government

The California Endangered Species Act requires the Department of Fish and Wildlife to conduct status reviews of species listed as threatened or endangered every five years. PLF sued to enforce the Act, after the Department failed to conduct mandatory reviews for 233 species.The Department now wants to dismiss the lawsuit, arguing that no one is harmed by its failure to follow California law. Today PLF filed its opposition in California Cattlemen’s Association v. California Department of Fish and Wildlife. For more, see our blog.

A plan of extortion from West Hollywood

PLF attorneys filed this reply brief in 616 Croft Ave, LLC v. City of West Hollywood. As you may recall, this case arose from the City’s demand that husband and wife entrepreneurs Shelah and Jonathan Lehrer-Graiwer pay a $540,000 “affordable housing” fee in order to get the necessary permits to build new homes. The Leher-Graiwers challenged the fee, which had absolutely no relation to any impacts caused by the proposed development. That’s because adding to the housing supply causes housing prices to decrease, not increase. Rather than encouraging more home-building in unaffordable cities, cities are making homes less affordable by slapping all sorts of fees and conditions on new home buyers.

 

Two PLF attorneys to speak at upcoming eminent domain conference

PLF attorney Dave Breemer and I will be speaking at the u2016-12-02-2pcoming ALI-CLE course, Eminent Domain and Land Valuation in San Diego this upcoming January 26 to 28. In addition to Dave and me, Robert Thomas who helps PLF on cases out of Hawaii is a co-chair of the conference. This course has always been highly rated and is essential to those wising to become experts on the practice of eminent domain law. In addition to an advanced course, there will a “Condemnation 101” course for those new to the field. We hope to see some of our readers at the conference. To learn more, or to register, you can find the course brochure here.

Have federal wildlife regulators made Sophie’s Choice?

Federal wildlife regulators have a legal responsibility to consider the impact of federal actions on endangered wildlife. That is their legal argument for their program to de-water the farms and communities of California’s San Joaquin Valley, by holding that water for endangered fish in the Sacramento Delta instead.

But life comes at you fast.

The Delta smelt, which were to benefit from the Valley’s engineered drought, continue to decline. And other endangered species, like the kit fox and the iconic California condor, which rely on irrigated Valley farms for habitat and other resources, are likely harmed by the Smelt protections. You can read more about it in my op ed in the Fresno Bee, and check out our short video below.

PLF petition seeks review of West Hollywood’s extortionate “affordable-housing” scheme

Earlier today, PLF attorneys filed the reply brief in 616 Croft Ave, LLC v. City of West Hollywood. As you may recall, this case arose from the City’s demand that husband and wife entrepreneurs Shelah and Jonathan Lehrer-Graiwer pay a $540,000 “affordable housing” fee in order to get the necessary permits to build new homes. The Leher-Graiwers challenged the fee, which had absolutely no relation to any impacts caused by the proposed development, which the city determined would help the affordable housing crisis add more housing.

On its face, the condition would appear to violate the doctrine of unconstitutional conditions, which prohibits the government from exacting private property from developers as a mandatory condition of permit approval unless it can show that the condition mitigates for some negative impact caused by the proposed development.

The lower courts, however, dismissed the Leher-Graiwers’ challenge under the mistaken conclusion that extortionate demands made by the legislative branch of a city are subject to the same constitutional rules as demands made by other government bodies. PLF attorneys filed a petition for review asking the California Supreme Court to overrule the lower courts’ decisions and hold legislative exactions subject to heightened scrutiny under the doctrine of unconstitutional conditions.

Government’s crazy game of whack a mole

Good intentions. Horrible execution. Disastrous results. That pretty much sums up the federal government’s mismanagement of water supplies in the Sacramento-San Joaquin Delta to help Delta smelt and salmon species. Water diverted to help declining populations of fish listed under the Endangered Species Act has created severe collateral damage to the environment in the San Joaquin Valley.

Species like the California condor, the San Joaquin kit fox and the California tiger salamander, which benefit from irrigated farmland, and the thousands of miles of valuable habitat lining canals and irrigation ditches, have joined farmers, farm workers and other valley residents as victims of the Bureau of Reclamation’s war on the environment.

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Causation, and not deep pockets, should dictate liability

Today we filed this amicus brief asking the California Supreme Court to overturn the flawed decision in T.H. v. Novartis, which would essentially impose never-ending tort liability on brand-name drug manufacturers for injuries caused by their generic counterparts.  By adopting an expansive theory of liability, the law threatens to drive up the cost of doing business—possibly deterring useful medications from coming to market.

In this case, the Court of Appeal held that a brand pharmaceutical manufacturer was liable to a plaintiff that consumed a generic version of the drug—years after the generic manufacturer left the market and sold the production rights to someone else.  Under the theory of “innovator liability,” the court held that it was foreseeable a user of a generic drug might rely on the original brand manufacturer’s label when taking the generic product.

As we argue in our brief, that decision has no connection to any conceivable rationale normally employed in tort.  Generally, tort law exists to deter unreasonably dangerous behavior, and to compensate wrongful injuries.  But there can be no deterrence where an injury occurs after the generic manufacturer sells the production rights to someone else, and relinquishes control over how the drug is produced and labeled.  Only those entities that can monitor, label, test, or otherwise control a product have an incentive to make that product safer.  The decision is also unfair, because it imposes never-ending liability for statements that generic manufacturers make.  Not even leaving the market and selling the production rights to someone else will relieve a brand drug company from liability.

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California’s high court will review pension “spiking” case

Californians are accustomed to controversy when it comes to public employee pensions.  Although state and local governments across the country were left without adequate funding of pension obligations following the Great Recession of 2008-2009, California’s shortfall–estimated to be around $475 billion–was the biggest.

The California Legislature responded to the crisis by adopting the Pension Reform Act of  2013.  The Act excludes compensation paid for the purpose of enhancing a member’s retirement benefit, commonly referred to as “pension spiking.”   Public employees, unlike those in the private sector, can increase their pay at the end of their careers in order to “spike” their pensions.  They do so by padding the actual base salary with other pay for clothing, equipment or vehicle use, or adding service credit for unused sick time, vacation time, or other leave time.   Continue reading

PLF Supreme Court cases have changed administrative law forever

Readers of this blog are familiar with our unanimous victory in Sackett v. EPA in which the U.S. Supreme Court ruled landowners had a right to immediate challenge of EPA compliance orders in federal court. Subsequent to Sackett, we won Army Corps of Engineers v Hawkes; another unanimous Supreme Court victory in which the court ruled that landowners had a right to immediate challenge of Corps and EPA Jurisdictional Determinations in federal court. Together these cases overturned decades of judicial rulings blocking the court house doors to aggrieved land owners who wished to challenge wrongful application of the Clean Water Act to their property. These cases have now become the benchmark cited by courts considering whether federal agency actions are subject to judicial review under the Administrative Procedure Act.

We cited some cases here that have relied on Sackett and Hawkes to expand the rights of citizens to hold overzealous agency officials accountable in court for their illegal conduct, beyond the Clean Water Act.  Recently, our colleagues at Marten Law wrote an article entitled: The Legacy of Sackett v. EPA: Supreme Court Allows Challenges To Wetland Jurisdictional Determinations Under The Clean Water Act In U.S. Army Corps of Engineers v. Hawkes Co., Inc. The article provides a brief summary of Sackett, Hawkes, the Clean Water Act, and the Administrative Procedure Act and follows up with a citation to three recent cases that have considered Hawkes in determining the reviewability of agency actions in various contexts.

Although Hawkes is less than six months old, it has already opened the court house doors to citizens across the nation who are willing to push back against overreaching government.  This is a victory for all.

PLF’s Mark Miller to speak in Fort Pierce on Thursday

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The Supreme Court of the United States at night.

This Thursday at noon, Mark Miller (that’s me) of PLF’s Atlantic Center will present a Continuing Legal Education (CLE) seminar on Successful Oral Arguments in the Appellate Courts: Lessons Learned in the Supreme Court of the United States and the Courts of Appeal. The presentation, hosted by the Friends of the Rupert J. Smith Law Library Association, is open to the public. If you are near the Fort Pierce/St. Lucie County Courthouse that day, then please join us. If seeing me speak doesn’t entice you, then come for the free lunch and CLE credits (two of them!).

If you are not in the area Thursday, then check out my recent radio interviews with Paul Molloy in Tampa here and Andy Caldwell here. In both interviews, we discussed President-Elect Trump’s potential Supreme Court nominees and how they could impact our constitutional rights, particularly our right to own property.

Bill to license music therapists in New Jersey refuses to die

Almost a year ago I wrote about a bill pending in the New Jersey legislature that would’ve created an occupational license for music therapists in the state. Fortunately, that bill didn’t make it through the legislature, and the legislative session ended before the bill could get a full vote. Rather than die with dignity, however, it appears the music therapy licensure bill was merely undead.  Continue reading