During His Confirmation Hearings, Judge Gorsuch Discusses the Role of the Judiciary

I had the honor of learning from Judge Neil Gorsuch while I attended the University of Colorado Law School, both as his student in the classroom and as his intern for a semester at the Tenth Circuit Court of Appeals. Because Judge Gorsuch has had a big influence on my legal education and career, I have watched his confirmation hearings with great interest.

During day two of the hearings, Judge Gorsuch faced many questions about his approach to interpreting law and deciding cases. Although he would not answer questions about what outcome he would reach in specific cases, he did offer some insight into how he approaches the job of being a federal court judge.

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Op-ed on Nevada’s second bite at the free market apple

The Las Vegas Review-Journal has published my op-ed on AB 240, Nevada’s renewed attempt to get rid of its Competitor’s Veto law.

PLF Attorney Anastasia Boden testifying to the NV Assembly about the Competitor’s Veto

As I write in the article:

Nevada also passed a repeal bill last term, but Gov. Sandoval vetoed it on the basis of purported safety concerns.

Of course, competitor’s veto laws have nothing to do with safety. Even the safest, most hard-working and honest entrepreneurs must be denied a license under competitor’s veto laws — simply because they will compete. If anything, getting rid of the competitor’s veto frees resources for government authorities to enforce laws that actually protect public safety.

You can read the rest of my op-ed here.


PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine

On Friday, PLF attorneys filed a petition for a writ of certiorari with the U.S. Supreme Court in the case, 616 Croft Ave, LLC v. City of West Hollywood. The petition asks the Court to review a California Court of Appeal decision holding that a city or county can force landowners to dedicate private property to public use, without providing just compensation, so long as the government can show that its use of the land will enhance the public welfare. That decision marks a stunning departure from decades of U.S. Supreme Court case law, which has repeatedly warned that, standing alone, a strong public desire to improve public conditions has never been sufficient to justify the government’s appropriation of private property.

At issue is the City of West Hollywood’s “Inclusionary Housing Ordinance,” which requires developers to dedicate a percentage of their newly built homes as low-income housing for sale at below market prices, or pay for each home that would have been dedicated into a city housing fund.

Petitioners, husband and wife entrepreneurs Shelah and Jonathan Lehrer-Graiwer purchased two adjacent homes in West Hollywood in the early 2000s with a dream of building an 11-unit condominium complex on the lots. The City praised the “superior architectural design” of the project, and noted that it would provide “11 families with a high quality living environment” while “helping the City achieve its share of the regional housing need.”

Then the couple got a shock: the City demanded a roughly $540,000 fee—to be used for “affordable housing”—as a condition of their building permits. Under its “Inclusionary Housing Ordinance,” West Hollywood will deny a building permit unless would-be home developers make a choice: set aside some of your units for sale at a below-market price, or pay a massive fee that the City purports to use for “affordable housing.” To avoid losing their permits, the Lehrer-Graiwers paid the fee under protest and sued the City, claiming that the fees were a violation of their property rights. Continue reading

Gorsuch confirmation hearing day two: preview

Today, each of the Senate Judiciary Committee’s 20 members will have 30 minutes to ask questions of Judge Gorsuch. Interested readers may view the hearing live or recorded at the Committee’s website. Copies of Judge Gorsuch’s responses to written questions and other written submissions are available here for those who want to read them.

Rather than try to provide play by play coverage today, we will attempt below to preview the types of questions Judge Gorsuch will face, and then through the day give updates on how he is answering them. Depending on how late the hearing goes today (Chairman Grassley expects 10 hours of questioning in just the first round, which he would like to complete today), we will try to post a round up at the end of the day.

Preview: three categories of questions

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Is tolerated freedom really freedom at all?

Seattleite begs a local bureaucrat for permission to use his own stuff.

More and more, we have to receive government permission to exercise basic rights. This subverts a fundamental notion of liberty: first comes freedom, then comes government to secure that freedom. We’ve begun instead to slip into a world in which any freedom we enjoy exists as an indulgence granted by government–a government that can withhold or grant permission according to its own whim.

Many people need permission to purchase a weapon, have a job, or build a home. As Thomas Paine said, freedom “granted” by government is a tenuous freedom indeed: “Toleration is not the opposite of intolerance, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, the other of granting it. The one is the Pope, armed with fire and stake, and the other is the Pope selling or granting indulgences.” In other words, if the government says: “You have my permission,” we shouldn’t respond with fawning gratitude. Instead, we should disavow freedom footnoted by government sufferance.

Among its many problems, a “tolerated” freedom lets the government use its permission as leverage. Seattle has offered an example of this issue with something it calls the “Grand Bargain.” Under the Grand Bargain, housing developers must shell out cash or set aside some of their units for affordable housing. Many cities have attempted such “mandatory inclusionary zoning” programs to address inflated housing costs. A noble cause, yes. But a shakedown for the poor is still a shakedown. The “Grand Bargain” isn’t so grand, given that the city is just throwing around unequal bargaining power granted by Seattle’s ability to withhold permission. Yesterday, PLF issued a letter to Seattle, reminding them that our Supreme Court has said that governments can’t use their permitting authority to demand ransom. Continue reading

Gorsuch hearing day one round up: the judge’s opening statement

His own words are better and more important than any analysis and comment from us. Anyone with the least interest in Judge Gorsuch’s nomination should listen to his statement from beginning to end.

For what its worth, my favorite part is the tribute he offers to his wife.

Gorsuch hearing day one round up: introduction statements

Following almost four hours of occasionally interesting statements by the 21 members of the Senate Judiciary Committee, Judge Gorsuch was introduced by a panel of three: Colorado’s two United Senators, and former Acting Solicitor General of the United States Neal Katyal.

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Gorsuch hearing day one round up: committee member statements

Today was day one of the Senate Judiciary Committee hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Most of the day was taken up with statements made by the 21 Senators on the Committee, which took up almost four hours of the four and a half hour day. While much of it was unremarkable in substance, a few highlights are worth noting. In a separate post, I will come back to the statements by those who introduced Judge Gorsuch following the Committee statements, and then finally a post on Judge Gorsuch’s opening statement that concluded the day.

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Murr argument today at Supreme Court

Here’s a recap of what the Murr case is about and what happened today at the Court. For more detail, you can find the Court’s transcript here.

Adjacent Lots and Forced Mergers – Murr v. Wisconsin Image result for supreme court

Many property owners own adjacent lots. A farmer might acquire a neighboring farm with the hope that his children can live next door. Or a person might fall in love with a vacation home and buy an empty lot next door. But what happens when new zoning laws declare those lots to be too small and substandard? If the government denies use of one parcel, can it avoid any takings liability simply because the owner happens to own the next door property? That is the question in Murr v. State of Wisconsin, reported on in some detail in last year’s report, and argued before the Supreme Court on March 20, 2017.

As you may recall, the Murrs own two adjacent lots on the St. Croix River that their parents purchased in the early 1960s. Each lot is over an acre in size. The Murr parents built a tiny cabin on one lot and kept the other as an investment. New regulations were passed in the 1970s, making the lots “nonconforming” because after setbacks for waterfront and slopes were added in, each lot had less than one-acre of buildable area. Now, if different individuals owned the lots separately, each person could sell or develop their single lot under a “grandfather clause.” But there was an exception to that clause when an owner, such as the Murrs, owns an adjacent lot. As the lower court said, these lots were “effectively merged” by the land use regulation. Continue reading

Media coverage of Supreme Court oral argument in Murr v. State of Wisconsin

This morning, the historic property rights case of Murr v. State of Wisconsin and St. Croix County was argued at the Supreme Court by John M. Groen, PLF’s Executive Vice President and General Counsel. Listen to our Courting Liberty podcast on the events of the day, watch our post argument press conference video from the steps of the U.S. Supreme Court, and view photos from the post argument press conference as well!