Illinois politicians impose a “corruption tax”

It has been said that Illinois is plagued by unbridled corruption.  Almost 90 percent of Illinois voters agree.  After all, four of the past seven Illinois governors have been convicted and sentenced to prison.  So who pays for the numerous criminal dealings of crooked politicians?  Taxpayers.  One recent study estimates that the cost of unnecessary government projects and programs translates into a “corruption tax” of $1,308 per person in Illinois.

Most corruption occurs where big money is at stake, such as on large construction projects with multi-million dollar price tags.  One state agency that oversees large construction projects is the Illinois Department of Transportation, or IDOT.  Last month the head of IDOT resigned.  Why?  Recently, a report by the state’s Executive Inspector General concluded that IDOT has been hiring employees based on their political affiliations.  While it may be acceptable for an administration to make cabinet and other key staff appointments on the basis of political affiliation in the interest of loyalty, all other public employees must be selected fairly on the basis of merit.  In fact, the Supreme Court holds that filling non-political positions based on party affiliation violates an individual’s First Amendment rights.

IDOT’s problems go beyond alleged hiring misconduct.  It is also accused of enforcing a race-based contracting program in a discriminatory manner to gain popularity for the governor, rather than as a narrowly tailored remedy for discrimination.

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PLF to forest service: stop coveting private water rights

Last Friday Pacific Legal Foundation filed this comment letter with the United States Forest Service, in opposition to a proposed policy that would prevent the owners of private water rights from transferring them under state law from existing uses to other more economical uses.

The American West has an interesting history of privately held rights to use water on federal lands. The United States adopted an active policy for settling its new territories through the Homestead Act, which led to private ownership of most land between the Mississippi and the Rocky Mountains, as well as on the West Coast.  But in the Great Basin and other Western high desert regions (generally the area between the Cascade and Sierra Mountains on the West and the Rockies on the East), there were relatively few takers for homesteads.  This region is generally arid; only those limited areas with adequate surface water supplies were ultimately homesteaded.

That doesn’t mean that the rest of the land lay unproductive.  By federal policy, most of the remaining public land in the West remained open for cattle grazing, timber production, and mining.  Section 9 of the Mining Act of 1866 explicitly deferred to state law on the question of whether and how these miners, ranchers, and others established water rights on the public lands they were using.  By the end of the Nineteenth Century, the result was a patchwork, in which the federal government owned most of the land, while private parties owned extensive water rights for stockwatering and mining and milling, as well as for farming in those areas with enough water for irrigation.

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Can constitutional rights be destroyed by desuetude?

Earlier this month, the Second Circuit rejected a Takings Clause challenge to a New York statute that, by increasing the state’s homestead exemption, destroyed a lien holder’s property interest. Rather than resolving what sort of property interest the lien was or what test applied to the taking, the Second Circuit concluded that, regardless of the interest or its level of protection, the claim has to fail because the homestead exemption is a “background principle” that inheres in all titles.

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President’s weekly report — August 22, 2014

Property Rights — Extortion-by-the-Bay

We had a hearing today in Levin v. San Francisco on our challenge to San Francisco’s new scheme to extract huge chunks of cash from rent-controlled landlords who wish to go out of the landlord business.  For example, two of our clients wish to move downstairs to the lower half of their small two-story home.  But because they have a renter on the first floor, the law now requires them to pay the tenant to difference between what the free market charges for similar spaces over a two-year period and what the tenant actually pays under rent control – here a whopping $117,000!  When the Levins first sought to move down to their first floor, the ordinance required that they pay “only” around $9000 for the right, but now, with the retroactive application of the new law, they have no choice; they must pay the tenant the extra windfall, period.

As our blog post notes here, today’s hearing was to determine whether an immediate injunction should issue to stop the law.  While the judge noted that the case was very important, he declined to issue an injunction, instead calling for a quick trial on the Merits in October.

Environment — Federal Retaliation for Daring to Sue Continue reading

Judge expedites trial in PLF’s challenge to San Francisco’s tenant payment ordinance

As reported, PLF Principal Attorney David Breemer went to court this morning in San Francisco for a hearing in Levin v. City and County of San FranciscoThis is the case challenging San Francisco’s new Tenant Relocation Assistance Ordinance.  Under this law, property owners who wish to stop being landlords must pay their tenants the difference between the tenant’s annual rent-controlled rate, and the amount it would cost to rent a comparable apartment at open market rates, and then multiply that amount by two.  For Daniel and Maria Levin, one of the parties in the case, they must pay their single tenant over $117,000 in order to withdraw the lower half of their duplex from the rental market so they can use that space for their own family.  Because of the massive amount of financial liability at stake for the Levins, and the several other property owners whom PLF attorneys represent, Mr. Breemer asked the court for a temporary restraining order (TRO) and preliminary injunction to halt the City’s enforcement of the law during the duration of the lawsuit.  While Judge Charles Breyer denied the TRO, he postponed making a decision on the preliminary injunction until the trial, for which he set an expedited date because of the case’s importance, and the law’s immediate and troubling impacts.  “By setting an early date for a trial on our lawsuit,” said Mr. Breemer, “the judge recognized that important legal questions are at stake.  We agree, because San Francisco is shaking down rental-property owners for outrageous sums of money, in flagrant violation of the Constitution’s protection for property rights.”  The trial will begin on October 6.

The Endangered Species Act — a law without limits

The Endangered Species Act (ESA) empowers the federal government to set aside public and private land for the protection of endangered species. Congress inserted a provision in the Act that limits this set aside to “essential” habitat, known as “critical habitat,” and mandates that the government rely only on the best available data and take into consideration the economic impact of designating “critical habitat.” Under the Act, any area may be excluded from “critical habitat” if the impact on the landowner outweighs the benefit to the species. In theory, this provision was expected to protect landowners from overzealous regulation. But it hasn’t worked out that way.

Since the ESA was passed in 1973, federal regulators have expanded their power so much that the U.S. Fish and Wildlife Service has become a defacto zoning board dictating local land and water use across the Nation. The most blatant example of this overreach is the designation of “critical habitat” for the dusky gopher frog that includes more than 1500 acres of private land in St. Tammany Parish, Louisiana, that the Agency admits is currently unoccupied, unsuitable, and inaccessible to the species. In other words, the Agency designated nonhabitat as “critical habitat” subject to pervasive federal regulation. By the Agency’s own estimation, restrictions on the use of the property could cost the landowners as much as $34,000,000. Although this nonhabitat currently provides no benefit to the gopher frog, and may never do so, the Agency perversely determined that the benefits to the species outweighed the impact on the landowners. It is hard to imagine a more irrational decision.

When PLF challenged the designation of this nonhabitat area as “critical habitat” in federal court, the Fish and Wildlife Service argued that it had complete discretion to determine which areas are included as “critical habitat” and that the court had no power to question the agency decision whatever the impact! In effect, the agency claims it has unlimited regulatory authority under the Endangered Species Act which the courts have no power to review.

Today, a federal judge “reluctantly” agreed with this argument and upheld the designation of this unsuitable area as “crictical habitat.” The judge acknowledged the ESA appears to go too far but suggested that is a matter for Congress to address and not the courts. We disagree.  The Courts have the duty to hold the line on runaway government.  PLF will appeal this case to the Fifth Circuit.

A Back to School Choice Week 2014 roundup

A big thank you to all who helped get the message out about school choice this week.  A number of you shared our blog posts, listened to the podcast, and kept up with us on Facebook.  As I said at the beginning of this week, PLF is committed to giving all parents and students a meaningful choice in education.  In case you missed anything, here’s a quick round-up of everything we did to celebrate Back to School Choice Week 2014. Continue reading

School vouchers: a valuable tool for desegregation

court’s ruling this week that North Carolina’s school voucher program is unconstitutional is unfortunate, given that the most likely beneficiaries of the program are disadvantaged minority students.  The program aims to provide as much as $4,200 annually for low-income families trying to get their children out of failing public schools and into private schools.

Many who are opposed to school voucher programs don’t seem to realize that vouchers can contribute to desegregation and free low-income students trapped in poor performing schools.  In her book Place Not Race, law professor and civil rights activist Sheryll Cashin writes that 80% of black students and 74% of Latino students nationwide attend majority non-white schools.  Meanwhile, most white students attend a school that is 77% white.  Additionally, 43% of black and Latino students attend schools where more than 80% of students were poor.  Only 4% of white students went to a school defined by poverty.

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Understanding the difference between disparate treatment and disparate impact

There are two types of discrimination recognized by our various civil rights laws: disparate treatment and disparate impact. The former is conscious, intentional discrimination.  The latter is unintentional, and is demonstrated through statistical disparities.  Here on the Liberty Blog we have often posted on various absurd applications of disparate impact theory.  We have also noted how the Obama Administration is trying to inject disparate impact into nearly every facet of American life.  Disparate impact is a pernicious doctrine that forces racial balancing, hurts business, and violates the Equal Protection Clause. Continue reading