President’s weekly report — October 24, 2014

Property Rights – Victory in San Francisco!

In Levin v. City and County of San Francisco, the federal district court struck down the Tenant Relocation Ordinance as an unconstitutional taking.  The ordinance required property owners who wished to remove units from the rental market to pay massive sums to their tenants, ostensibly to cover the costs of relocation though nothing requires the tenants to use the money for that purpose.  As Judge Charles Breyer’s ruling recognized, the government cannot force property owners to remain landlords against their will.  The city immediate issued a statement bemoaning its defeat and the “dire” consequences of respecting property rights, and vowing to appeal.  PLF looks forward to defending this victory in the Ninth Circuit.

Property Rights – Victory Against the Coastal Commission!

When the California Court of Appeal original ruled against Walter Emmick’s daughters, who inherited his property in San Luis Obispo County, PLF saw that the ruling misunderstood the facts of the case and requested a rehearing.  The court agreed, saw the error of its original ruling, and yesterday issued a published decision in SDS Family Trust v. California Coastal Commission holding that the Coastal Commission’s attempt to exact a mile-long public-access easement from the family as a condition to their plans to make repairs on their home and rebuild their barn is an unconstitutional taking.  Importantly, the court relies on and reaffirms the continued vitality of the principles established by PLF’s Supreme Court win in Nollan v. California Coastal Commission.

Property Rights – Challenging “Secret” Land-Use Restrictions Continue reading

California versus the Supremacy Clause

In Iskanian v. CLS Transportation Los Angeles, LLC, the California Supreme Court once again displayed its ongoing hostility to arbitration contracts.  As we noted when the decision came down in June, the court bowed to the inevitable in acknowledging the Supreme Court’s abrogation of an earlier ruling that invalidated class action waivers in employment contracts requiring arbitration.  But the court found a new reason to invalidate arbitration contracts:  it held that employees who act as “representatives” to assert claims under the Private Attorney General Act are acting as “deputies” on behalf of the state and therefore cannot waive their right to sue in court.

This new theory runs afoul of the Federal Arbitration Act just as much as the previous theory did.  And because the Constitution’s Supremacy Clause requires federal law to take precedence over state law, CLS Transportation is asking the Supreme Court to step in, once again, to set the California courts straight.  PLF filed an amicus brief supporting the petition for writ of certiorari, noting that California’s intransigence is infecting not only contracts in this state, but nationwide, due to California’s central role in the nation’s economic activity.  The Iskanian decision creates a blueprint for mischief in other states that disdain arbitral resolution of claims, because many other states also have statutes that, like PAGA, allow employees or consumers to sue companies for alleged statutory violations.

Finally, the Legislature quickly figured out that if one statute “deputizing” citizens can invalidate arbitration contracts, other statutes could do so as well.  Last month, California Governor Jerry Brown signed into law Assembly Bill 2617, which prohibits mandatory, pre-dispute arbitration agreements in contracts for the provision of goods or services, to the extent an individual is required to waive the right to sue for violations of  two civil rights statutes.  Under federal law, employees and employers can agree to arbitrate disputes of this type.

The United States Supreme Court no doubt grows weary of playing whack-a-mole with the California courts over arbitration contracts.  But California has not yet accepted that its citizens have a federal right to freely contract for resolution of disputes outside of the costly, inefficient court system.  The Supreme Court will decide whether to hear this case in the next few months.

PLF challenges Alexandria’s “For Sale” sign ban

Scott McLean, a resident of Alexandria, Virginia, would like to sell his truck, but is afraid of getting a parking ticket, like he did two years ago, when he placed a “For Sale” sign on his car. Why would he get a ticket? Because the City of Alexandria bans “For Sale” signs on cars parked on city streets. McLean can advertise nearly anything else in his truck window without facing a fine, but he cannot advertise his truck. Today, PLF filed a lawsuit in federal court on behalf of McLean, challenging Alexandria’s ban on “For Sale” signs.

This may seem like a relatively small problem, but it highlights a much bigger one: government often treats “commercial speech” (speech that proposes a commercial transaction) as though the First Amendment does not protect it. Continue reading

PLF scores victory for property owners in suit against Coastal Commission

Today, the California Court of Appeal issued a published decision ruling in favor of PLF client, SDS Family Trust, in its years-long battle against the California Coastal Commission.

The case involves the constitutionality of a public-access easement that the Commission demanded as a condition of the family’s modest restoration of its home along the Harmony Coast in San Luis Obispo County.  The Commission was trying to bind the family to an earlier county-issued permit that purported to impose a similar easement condition.  But the family had rejected that county-issued permit, accepted none of its benefits, and re-applied for a new one, which the county approved without the offending easement exaction. That’s when the Commission got involved and imposed an easement exaction of its own.

The Court of Appeal rejected the Commission’s argument that the family should be bound by the earlier county-issued permit and held that the Commission’s easement exaction was unconstitutional under Nollan v. California Coastal Commission (PLF’s 1987 U.S. Supreme Court win against the same culprit) and Dolan v. City of Tigard.  The Court’s opinion explains:

Under the Nollan/Dolan test, a public entity may require an uncompensated exaction, such as an easement, as a condition of a development permit only where there is “rough proportionality” between the condition and the burden the development places on a public interest.  Here the Commission does not argue that test is met.  How could it when it is not?  There is no rational nexus, no less rough proportionality, between the work on a private residence a mile from the coast and a lateral public access easement.

The Court of Appeal’s published decision is a great victory for private property rights everywhere in California.  It upholds the principle that property owners should not be unfairly bound to old permits they never acted upon or accepted. And it reaffirms the continued vitality of the constitutional protections afforded by Nollan and Dolan. 


No more hovercrafting in Alaskan national parks

So ruled the Ninth Circuit earlier this month in Sturgeon v. Massica.  Although the case concerned just one National Park Service regulation, its holding applies to a substantial body of land-use regulation.

Sturgeon was cited for using a hovercraft within a conservation unit, in violation of National Park Service regulations.  Sturgeon argued, however, that under the Alaska National Interest Lands Conservation Act, the Service has no authority to regulate activities occuring on state or privately owned enclaves within conservation units.  Because Sturgeon’s hovercrafting occurred on navigable waters, and because (contended Sturgeon) Alaska owns the beds of navigable waters within conservation units, Sturgeon argued that he was exempt from the Service’s regulation.

The Ninth Circuit disagreed.  Setting aside the question of whether activities occuring on navigable waters within conservation units can be said to occur on non-federal lands, the court concluded that Sturgeon should still lose:  ANILCA precludes application of only that subset of National Park Service regulation exclusively pertaining to Alaskan conservation units.  Hence, Service regulation that applies generally throughout the national park system still applies.  And, because the Service’s hovercraft regulation is such a generally applicable regulation, the court concluded that Sturgeon’s hovercrafting was subject to the Service’s authority.

S.F. to appeal Levin defeat–calls out PLF

Today, the City of San Francisco issued a press statement announcing its 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 ($118,000 for the Levins) before they can leave the rental business. See here for a summary of the decision.

In its statement today, the City bemoaned yesterday’s defeat 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.

Continue reading

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.

Jennifer Thompson, PLF Attorney, PLF (916) 419-7111

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