Country-of-origin-labeling bill fails in South Dakota Senate

On Friday, the South Dakota Senate rejected SB 135, a country-of-origin-labeling bill that raised significant First Amendment concerns. The bill would have compelled South Dakota grocers to disclose the country-of-origin of beef sold in stores across the state.

Labeling requirements of this sort come with significant costs. According to one report, a similar (now-repealed) federal law imposed 2.6 billion dollars in compliance fees on businesses and their customers.

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Recent economic liberty op-eds

In case you missed them on PLF’s various social media sites, we had three op-eds published on a number of economic liberty topics this month in newspapers in North Dakota, Oklahoma, and Idaho.

The Grand Forks Herald in North Dakota published my piece explaining why it’s time for North Dakota’s occupational license for music therapists to go. As I explain in the article, North Dakota was the first state to license music therapists back in 2011, and the license imposes severely burdensome requirements on prospective therapists without any actual evidence that the burdens are necessary to protect the public. Furthermore, there is no longer any approved in-state educational program, so prospective therapists must now leave the state to obtain their required training. Continue reading

Supreme Court won’t consider exclusive representation laws . . . for now

Is she a public employee?

The Supreme Court often prefers that issues “percolate” in the lower courts for some time so that Circuit court and state supreme court judges have an opportunity to address all facets and implications of the arguments prior to high court review. It ensures that the arguments and theories in cases granted by the Supreme Court are fully developed. Today, the Court denied certiorari in Jarvis v. Cuomo, presumably to allow more “percolation.” Continue reading

Weekly litigation update — February 25, 2017

Commonsense  result in New York

In Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent ProgramNew York’s highest appellate court ruled here that a half-way house for drug addicts is not liable when a former resident, who was forcibly removed by the police at the house’s request, assaulted someone at his grandmother’s home. Because the half-way house had no control over its expelled resident, it was not responsible for injuries he caused. This is entirely consistent with PLF’s amicus brief, which argued that “the potential for unlimited liability looms large if an organization owes a duty to the general public for crimes committed by former residents.” For more, see our blog post here.

PLF weighs in against Obama labor regulation

PLF filed this amicus brief asking the Supreme Court to take up National Restaurant Association v. Department of Labor, arguing that the Department is not free to come up on  a rule regarding the treatment of tip income unless a statute actually gives it authority to do so. Here the Ninth Circuit ruled that because a statute did not affirmatively forbid the agency from regulating tip income, nothing could stop the Department from doing so. But that has it backwards — the executive branch can act only when it is authorized by Congress to act, not when the executive would like to fill in for legislation it would have liked but Congress never adopted. Put simply, the Department of Labor cannot legislate when Congress doesn’t, only Congress can pass new laws. For more on the separation of powers issue, see our blog post here.

Notice of Appeal filed in free speech case

We filed our notice of appeal in Associated Builders and Contractors–California Cooperation Committee v. Becerra. In California, contractors on state construction projects must pay “prevailing wage.” Under the prior state law, contractors can satisfy that requirement, in part, by contributing to an organization that will lobby for the advancement of the industry. But a new law now effectively limits those contributions to unions — leaving out non-union advocates — effectively discriminating against non-union speech. After a trial court upheld this, we were asked to take this case up on appeal. For more detail, see our blog post here.

California can’t stifle open-shop speech just because it doesn’t like the content

Today we filed our notice of appeal to the Ninth Circuit on behalf of Associated Builders & Contractors of California Cooperation Committee (ABC-CCC).  ABC-CCC is an organization that advocates on behalf of the “open-shop” industry—that is, on behalf of entities who do not require their employees to join a union.  Last year, California passed S.B. 954, which threatens the speech of open-shop organizations like ABC-CCC.

Under California labor law, all contractors for public projects must pay their workers the so-called “prevailing wage”—a pre-determined rate set by the Department of Industrial Relations.  Contractors can meet the prevailing wage requirement by paying a combination of wages, vacation time, and other benefits.  Formerly, contractors could satisfy the requirement, in part, by donating to an organization that advocates for the industry—including by donating to ABC-CCC.  S.B. 954 limits the types of contributions that qualify towards the prevailing wage requirement.  Now, only those donations made pursuant to a collective bargaining agreement, ie. donations made to advocacy groups that are pro-union, can be deducted from the prevailing wage credit.  The effect is to discriminate against open-shop speech and advocacy organizations like ABC-CCC.  In a highly competitive industry like public works contracting, employers will no longer donate to ABC-CCC if they can no longer receive a prevailing wage credit.  Several organizations have already told ABC-CCC that they can no longer support the organization if the prevailing wage credit is taken away.

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PLF’s Wen Fa speaks to West Valley Republican Women

Last week, I spoke to the West Valley Republican Women in San Jose about the work PLF is doing to advance liberty across the United States. In particular, I told the story of Bob Bennie, who was unjustly targeted for retaliation because he dared to share his political views. Although the Supreme Court denied review in Bennie’s case, PLF will continue to stand up for your First Amendment rights.

Perhaps the biggest threat to the First Amendment today comes in the form of compelled speech. From country-of-origin labeling laws that cost Americans over two-and-a-half billion dollars in compliance fees to regulations that force Twitter users to include government-approved hashtags in their tweets, we are ceding more and more of our First Amendment freedoms to the government every day. Fortunately, PLF is here to restore the First Amendment to its rightful owner: you. If you are affected by a compelled speech law, please let us know. We just might turn it into our next big case before the Supreme Court.

Bureaucratic overreach and the separation of powers

Can federal agencies make up whatever policies they like unless Congress tells them not to? PLF answered an emphatic “no” in an amicus brief filed today to support a petition to the Supreme Court. In National Restaurant Assocation v. Department of Labor, courts allowed the Department to expand its power beyond limits set by Congress. This concentration of power into one branch of government threatens the basic liberty sheltered by the Constitution’s checks and balances. Continue reading

Alaska legislators lodge support for permafrost case

Earlier this week, a coalition of Alaska state legislators urged the state’s federal representatives, and relevant members of the new administration, to revoke the so-called Alaska Supplement to the Army Corps of Engineers’ 1987 Wetlands Delineation Manual. Citing PLF’s ongoing legal challenge, the legislators’ letter explains that the supplement is illegal because, contrary to clear Congressional direction and the 1987 Manual itself, the supplement purports to assert Clean Water Act jurisdiction over millions of acres of permafrost, i.e., frozen ground. Although most states do not have permafrost, the issue underlying the letter, and PLF’s lawsuit, applies throughout the nation. The Corps has promulgated nine other regional supplements, and each purports to supersede contrary provisions in the otherwise nationally applicable 1987 Manual. Thus, the issue of whether the Corps can put in place a special rule for Alaska will determine whether the agency can get away with similar jurisdiction-expanding efforts in other parts of the country.

NY Court of Appeals: No control = no tort liability

Last Thursday, the New York Court of Appeals unanimously relieved a drug-treatment halfway house of liability for a former resident’s subsequent assault on his mother’s boyfriend. The case, Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program (JCAP), arose when Sean Velentzas violated JCAP’s rules by drinking alcohol and assaulting another resident and JCAP told him that, as a consequence, he was being discharged from the alternative-to-incarceration program. When Velentzas became enraged by his expulsion, JCAP staff called 911, and the responding police escorted Velentzas off the premises and released him. Velentzas then went to his grandmother’s house and violently assaulted Anthony Oddo. Oddo sued JCAP for negligence in releasing Velentzas. The intermediate appellate court issued a split decision holding that JCAP had a duty to protect Oddo from Velentzas, and the New York Court of Appeals (the state’s highest court) has now reversed.

The court’s decision focuses on control: Because JCAP lacked control over Velentzas after he was properly removed from the premises by the police, JCAP owed no duty to protect Oddo or any other member of the general public from Velentzas’ subsequent predations. This is entirely consistent with PLF’s amicus brief, which argued that “the potential for unlimited liability looms large if an organization owes a duty to the general public for crimes committed by former residents who were not on the organization’s premises, that is, for the criminal actions of people over whom the organization has no custody or control.” Justice Abdus-Salaam, writing for the court, echoed this principle: “[I]t is difficult, if not impossible, to determine when JCAP’s duty to protect the public from Velentzas would end if any duty existed beyond his discharge. It is unreasonable to impose upon facilities like JCAP a duty to protect the public from individuals they have dismissed from their charge because the duty would essentially be limitless.” The court also agreed with PLF that if alternative treatment facilities can be liable to the general public for criminal actions of properly discharged former residents, this will discourage organizations from participating in alternative programs, contrary to New York’s public policy “aimed at helping certain defendants overcome substance abuse issues and obtain treatment for mental health issues.” This decision is welcome news for alternative-to-incarceration programs and the troubled individuals who take advantage of the opportunities they offer.

Manatee count shows population continues to grow

The Florida Fish and Wildlife Commission (FWC) gave cause to celebrate: the manatee population continues to grow in Florida, according to agency’s newest survey results. The FWC today announced it counted 6,620 manatees in its annual survey. Last year the FWC counted 6,250 and in 2015 it counted 6,063 manatees. The FWC conducts the manatee aerial survey each winter, when weather conditions permit. A team of observers fly around the state’s warmer waters where manatees typically congregate, and count the number of manatees that they can see.

The latest survey results are a reminder that the U.S. Fish and Wildlife Service should have already followed its own experts’ advice and reclassified the manatee from “endangered” to “threatened.”  As our readers will recall, last month, PLF sent the U.S. Fish and Wildlife Service a 60-day notice that we would file a lawsuit on behalf of our client, Save Crystal River unless it follows the law and adopts the rule it proposed more than one year ago.  Continue reading