Washington court rules that the right to use one’s property is not protected by the constitution

Earlier this week, the Washington State Court of Appeals issued its decision in Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office, in which PLF submitted an amicus brief.  The decision upholds a Jefferson County ordinance that requires all shoreline property owners to dedicate a 150-foot buffer as a mandatory condition on any new development. The opinion also upholds a requirement that certain property owners dedicate a public access easement across their property—a requirement identical to the one struck down as unconstitutional by the U.S. Supreme Court in Nollan v. California Coastal Commission.

To reach those results, the court ruled that, in adopting the Shoreline Management Act, Washington’s legislature rendered property rights “secondary” to the public’s interest in the environment—again, a position that stands in stark contrast to U.S. Supreme Court case law, including Palazzolo v. Rhode Island which recognized that states cannot extinguish property rights simply by enacting a law. Continue reading

Supreme Court victory for The Slants

We’ve been writing about Simon Tam‘s efforts to trademark his Portland, Oregon-based rock band, The Slants, for over a year now. As you’ll recall, Mr. Tam, an Asian-American, formed his band in 2006 and recruited other Asian-Americans to join in order to provide an interesting and entertaining platform to discuss discrimination against Asian-Americans. In 2011, Mr. Tam sought to register The Slants as a trademark with the United States Patent and Trademark Office. But the government refused to register the mark, on the ground that the band name disparages persons of Asian descent. After several rounds of appeals, Mr. Tam’s case (Matal v. Tam) wound up before the U.S. Supreme Court. The issue: whether the “disparagement clause” of the Lanham Act violates the First Amendment.

Yesterday, in an opinion authored by Justice Alito, the Supreme Court handed Mr. Tam a decisive victory, holding 8-0 that the disparagement clause is unconstitutional. All eight Justices who considered the case agreed that trademarks are private speech and that the disparagement clause impermissibly discriminates against speech based on its viewpoint.   Continue reading

Teaching the teachers about the First Amendment

J.P. Krause celebrates his victory.

Following a warning letter from Pacific Legal Foundation, today officials at Vero Beach High School and the Indian River County School Board have finally withdrawn all punishment of student J.P. Krause – a rising senior whom they unlawfully penalized for the “offense” of delivering a tongue-in-cheek speech in his successful candidacy for student body president. Last week, they withdrew their order disqualifying him from serving in the post that he won by a landslide. Today, they announced that they will also rescind their finding that his harmless, humorous speech somehow violated the school’s anti-harassment policy.

It’s about time.

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Oregon Cattlemen’s to Fish & Wildlife: “Get moooo-ving.”

Today, on behalf of the Oregon Cattlemen’s Association, PLF sent a 60-day notice of our intent to sue the Service for failing to reach a final determination on its February 2014 proposal to remove the gray wolf from the Endangered Species List. The Endangered Species Act requires the Service to issue a final rule on a proposed change in protection status within one year. The Service is now over two years late meeting that obligation.

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Supreme Court tacitly accepts class action lawyers’ ability to evade employment contracts (for now)

California’s Private Attorney General Act is a bounty hunter statute that deputizes employees as “representatives” to sue their employers for alleged Labor Code violations. These representative actions bear a close resemblance to a standard class action, with the exception that the plaintiffs have to split their recovery with the state. While employment contracts in California generally can require arbitral resolution of workplace disputes, the California Supreme Court and the Ninth Circuit Court of Appeals both invalidate otherwise legitimate employment contracts if they require arbitration of PAGA claims. Employers have been repeatedly asking the Supreme Court to take up this issue, but today marks yet another refusal as the Court denied cert in Bloomingdale’s v. Vitolo. As a result, Nancy Vitolo, who worked for Bloomingdale’s for all of six weeks in 2008, now has a green light to pursue her “representative” action against the store despite her written agreement to arbitrate any disputes that arose during the course of her employment. PLF’s amicus brief supporting the petition pointed out that only the Supreme Court can remedy this hostility to arbitration that leads lower courts to treat contracts with arbitration provisions as poor relations, unworthy of the general protection the judiciary and the Federal Arbitration Act provide to the freedom of contract. Alas, despite the extensive array of employment and consumer protection statutes that are affected by the courts’ disdain for alternative dispute resolution, that remedy will have to wait for another day.

Weekly litigation report — June 17, 2017

  • Interior Secretary Zinke Recommends Bears Ears Reduction
  • Indian River County School Board responds to public outcry, but continues to ignore First Amendment
  • California Supreme Court protects private property
  • Class Action action
  • Florida family loses property rights’ case in Florida appellate court
  • Telling truth to tort
  • Supreme Court asks town to respond
  • The plain language of sea urchins
  • Arbitration and class actions

Interior Secretary Zinke Recommends Bears Ears Reduction

Last weekend, Interior Secretary Ryan Zinke acted consistently with PLF recommendations when he issued an interim report on the Bears Ears National Monument. The report calls for President Trump to follow the command of the Antiquities Act, and reduce the Bears Ears National Monument to the “smallest area compatible” with the protection of historical objects.  Bears Ears was designated in late 2016 and, like many other national monuments, needlessly reserved large portions of public land for purposes unrelated to the protection of antiquities. As PLF stated in comments to the Secretary, such a large withdrawal is not consistent with the Antiquities Act and is not necessary to protect the natural and cultural resources in the area. PLF applauds Secretary Zinke’s recommendations, and hopes that he continues to roll back other abuses of the Antiquities Act.

Indian River County School Board responds to public outcry, but continues to ignore First Amendment

Last week, PLF sent a letter to the Indian River County School Board and its Superintendent informing them they violated Vero Beach High School senior J.P. Krause’s constitutional rights by punishing J.P. for a short, humorous campaign speech he offered in class the day before he won the senior class election. Remarkably, the Vero Beach High School principal disqualified J.P. from the presidency – despite the fact that J.P. won the election in a landslide — because he (the principal) absurdly contended the speech “humiliated” J.P.’s fellow candidate for office. Nothing could be further from the truth. After Fox & Friends, the New York Daily News, the London Daily Mail, National Review, Whoopi Goldberg of The View, and even Univision called out the school for its outlandish decision, the Superintendent wisely reversed the principal and decided the school must respect the will of the voters and allow J.P. to serve as Senior Class President in the next school year. Unfortunately, the Superintendent failed to remove the charge of harassment from J.P.’s record, which means the school continues to violate J.P.’s First Amendment freedom of speech. PLF will continue to pursue this case until the school removes any disciplinary record that suggests his First-Amendment-protected speech allows them to punish him. The Constitution forbids it. For more, see our summer law clerk David Jadon’s blog post here. Continue reading

California Supreme Court upholds plain language of statute protecting property owners

Last July, PLF, the California Farm Bureau Federation, and the California Cattlemen’s Association filed an amicus brief in the California Supreme Court case Scher v. Burke.The dispute in this case was between two neighboring property owners. The plaintiff property owners had been driving their vehicles onto their neighbors’ property. After repeated trespasses, the neighbors erected gates to restrict the plaintiffs’ ability to access their property. The plaintiffs sued, asking the court to order the neighbors to grant access, arguing that there was an “implied-in-law public dedication.” Continue reading

Freedom of contract at stake in a Supreme Court trio

In January, the Supreme Court granted certiorari and consolidated three cases to decide whether the National Labor Relations Act, which protects workers’ rights to engage in “concerted activities” for their mutual benefit, trumps the Federal Arbitration Act’s protection of the freedom of contract that allows employers and employees to agree to resolve their workplace disputes in individual arbitration (meaning: no class actions). Today, in Epic Systems Corp. v. Lewis, PLF filed an amicus brief supporting the freedom of contract.

PLF argues that while federal law places some substantive limits on the ability of adults to freely contract to arrange their affairs, courts generally respect people’s rights to determine the procedures by which they will resolve their disputes. This policy controls here as well. The NLRA does not create a substantive, non-waivable right to pursue claims unrelated to the NLRA on a class basis. Aggregation of claims is a procedural choice, not a substantive right. Continue reading

An unjust loss for property rights in Florida’s Fifth DCA

Earlier today, we learned that Florida’s Fifth District Court of Appeal reversed a jury award for millions of dollars to a family that had its property rights basically ignored by a small town on Florida’s east coast. The family relied upon the town council of Ponce Inlet’s invitation to develop several pieces of property at great price, only to have that same town council turn against them and refuse to allow the development after the family made its investments. The jury saw this unfairness for what it was and did justice; but the appeals court saw it differently. That the family lost the ability to use their land after the Town pulled the rug out from under them did not seem to matter to the court, or at least the opinion is virtually devoid of any reference to the unfairness involved.

The fat lady has not yet sung in this case, known as Town of Ponce Inlet v. Pacetta, and we will continue to support the family as long as the case goes on. The appellate court recognized the family had a valid takings claim and remanded the case for a new trial; in light of the equities of the case, we expect the plaintiff to win again.

Truth defeats a tortious interference with contract claim

Telling the truth is not a tort. Today, as PLF urged in its amicus brief, the Texas Supreme Court ruled in Community Health Systems v. Hansen that truth is an absolute defense to an intentional interference with contract claim. The case arose when the College Station Medical Center terminated Dr. Henry Hansen’s employment contract. In making this decision, the hospital relied on advice by a professional services administration firm that evaluated physician performance and employment. The firm truthfully advised the hospital that Dr. Hansen had caused significant financial losses due to the combination of his very high salary, failure to see a sufficient number of patients, and a months-long refusal to accept referrals from two of the three primary referring doctors.

The unanimous decision notes that the firm’s statements were true, and that the firm had a duty to provide explanations for its recommendations. The court’s decision bodes well for employment relationships based on the valuable communication of truthful information. Without protections for truthful communication about workplace performance, employment decisions are made in ignorance. Good employees suffer when employers or administrators fear to convey positive information about exemplary work performance while incompetent employees are shielded from any disclosures that might result in otherwise natural consequences of underperformance. Ultimately, society as a whole suffers when employers make inefficient decisions because those who have information are stifled for fear of lawsuits. PLF applauds today’s decision that recognizes and applies these important policies.