PLF files brief in North Carolina voter ID case

In 2013, on the heels of the Supreme Court’s Shelby County decision that ended federal preclearance of voting laws, North Carolina enacted an omnibus election reform bill that set off a partisan firestorm in the state and on editorial pages nationwide. On top of the much-discussed voter identification requirement, the law repealed same-day registration during the early-voting period and prohibited the counting of ballots cast in a voter’s incorrect precinct, while reducing early voting from seventeen to ten days. While the legislation included a bipartisan amendment that kept aggregate early-voting hours the same (forcing counties to open up more sites or keep existing sites open longer), opponents still claimed it would hurt minority voting strength because black and Hispanic voters were more likely to lack a qualifying ID and used the repealed voting accommodations more often than white voters.

As North Carolina is no longer required to submit its election laws to federal authorities, the Department of Justice’s only remedy was to sue under Section 2 of the Voting Rights Act. That section prohibits any voting change that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” To prevail, plaintiffs must show that “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [a protected class] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” By contrast, Section 5 – made ineffective by Shelby County – required states going through preclearance to prove that the law would not “lead to a retrogression” in the position of minority voters.

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Weekly litigation report — June 17, 2016

Property rights — limits on the public trust doctrine

The Washington state court of appeals issued this opinion on the “public trust doctrine” in Chelan Basin Conservancy v. GBI Holdings.  The facts here involved a lake that had been raised 21 feet by a dam in the 1920s. GBI owned several acres of land that periodically flooded under the raised lake level. In 1961 and 1962 the owners put fill on three fingers of their land with the goal of keeping these fingers permanently above the raised lake level. In 2010, the owners sought to develop the fingers.

A local environmental group objected not only to the development, but to keeping any of the 50-year old fill on the not-so-natural lake.  They sued and claimed that the public trust doctrine had been violated. Now that doctrine comes from the common law and stood for the unremarkable idea that riparian landowners cannot block public access to navigable waterways. Back in 1892, the Supreme Court weighed in, saying in Illinois Central Railroad v. Illinois that when the legislature gives riparian property to a private entity (say for a wharf or dock) it must consider and accommodate the public interest or trust. But in more recent years, some have suggested–with some success–that the doctrine is an all-encompassing conservation easement, and have attempted to unmoor the doctrine from its commercial origins.

But here the plaintiffs tried to go even further: arguing that the doctrine prohibits all manner Continue reading

Interview on Duarte Nursery ruling

Earlier this week I spoke with AgNet West on the implications of the recent ruling in Duarte Nursery v. Army Corps of Engineers, in which the judge decided that plowing farmland requires a permit from the Army Corps to the extent of any federally protected waterways on the property, despite clear text in the statute and regulations to the contrary. You can here the whole interview below:


New Jersey’s Supreme Court: we weren’t born to follow

New Jersey‘s own Bon Jovi once had a hit song called We Weren’t Born to Follow; that title reminds me of the New Jersey Supreme Court’s decision this week in an arbitration case called Morgan v. Sanford Brown Institute.

Let me explain.

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Challenge to Washington, D.C.’s tax scheme moves forward

This week, in Coleman v. District of Columbia, a federal district court held that the plaintiffs have grounds to bring their Fifth Amendment challenge to the District of Columbia’s taking of their property under its former tax-foreclosure scheme. Liberty Blog readers may recall that PLF filed a friend-of-the-court brief in support of Benjamin Coleman, an elderly veteran who suffered from dementia. Mr. Coleman owned his $200,000 home lien-free when the District of Columbia took the home to pay an overdue $134 tax debt, plus penalties, interest, and fees. Despite the fact that Mr. Coleman’s property was very valuable, and his tax debt was small, District law did not allow Mr. Coleman to collect any of the surplus profits from the tax sale. Continue reading

Eminent domain threatened in Palo Alto mobile home case

The Jisser family has been trying to close the mobilehome park they’ve run in Palo Alto for the past 30 years. In 2015, the city granted the Jissers a permit to close the park, but only on the condition that they make more than $8 million dollars in payments to subsidize alternative housing for their tenants. PLF represents the Jissers in a federal constitutional lawsuit fighting that extortionate demand (read more about the case here). A hearing on the City of Palo Alto’s motion to dismiss the case was heard on May 26 and we await a decision by the court.

In an outrageous new development, the City today announced an effort by a coalition of government agencies to take the Jissers’ property by eminent domain for “affordable housing.” The City is apparently assessing the value of the property and has expressed its intent to compel the sale if an offer is not accepted by the Jissers.

This is a shockingly immoral and unconstitutional threat.

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Extraterritorial state laws are unconstitutional

This morning, a divided panel of the Eighth Circuit held that a Minnesota law regulating greenhouse gas emissions beyond the state’s borders is invalid. This is a welcome result. PLF, joined by NFIB, filed an amicus brief in the case, supporting the challenge, arguing that the Constitution’s Dormant Commerce Clause forbids extraterritorial state laws.

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What does Hawkes mean for landowners?

When we win a big case, like the recent unanimous decisions at the U.S. Supreme Court in Hawkes and Kent Recycling, which held that landowners have the right to challenge Army Corps and EPA Jurisdictional Determinations in court, it’s natural to ask what effect the decision will have in the “real world.”  When we won the 2006 Rapanos case, wherein the High Court limited the scope of the Clean Water Act, the Corps and EPA immediately backed-off hundreds of enforcement actions and completely revised their procedures for determining Jurisdictional Determinations.  Hawkes and Kent Recycling will also have “real world” impacts for landowners. Here are just a few: Continue reading

Weekly litigation report — June 10, 2016

Another Supreme Court Victory!

About two years ago, we filed a petition for certiorari in Kent Recycling v. U.S. Army Corps of Engineers, a case out of the Fifth Circuit where we were challenging a district court ruling that held that our clients could not challenge a wetlands jurisdictional determination in court. Unfortunately, the Supreme Court denied that petition. Then, about a week later, we had the opposite and favorable ruling from the 8th Circuit in U.S. Army Corps of Engineers v. Hawkes. We then petitioned the Court for reconsideration of our cert petition in light of the fact that there was now a conflict in the circuits – with the Fifth (Kent Recycling) and the Ninth (Fairbanks North Star Borough – a case brought by PLF several years ago) on one side and the Eighth Circuit on the other.

Normally, we think petitions for reconsideration of a cert denial are worthless endeavors, but we thought this one had a chance. The Court asked for further briefing, and then did nothing for over a year. In the meantime, the government petitioned in Hawkes, which the Court granted and gave us last month’s unanimous decision. In light of that decision, the court has now granted our petition for rehearing in Kent Recycling, granted the petition for cert, vacated the Fifth Circuit opinion in light of Hawkes, and sent the case back down to the lower court for further review.

This is a very big deal. The Court virtually never grants a petition for a rehearing like this. In fact, we’ve polled court watchers if they’ve ever seen a similar scenario and so far no one has remembered one. In sum, this is another Supreme Court victory by PLF, making it our ninth in a row!  Reed Hopper and our entire team pulled a decisive victory straight out of the jaws of defeat. Here’s the blog post.

A win for property rights in North Carolina Continue reading

Oral argument in Bill of Attainder case

The U.S. District Court for the Eastern District Court of California heard oral argument last week in Fowler v. Lanier. The case involves AB 1513, a state law that created an affirmative defense for agricultural businesses in the wake of surprising California court decisions. This affirmative defense was available to every employer except for Fowler Packing and Gerawan Farming — both of which had been sued by the Union’s general counsel in the past. The carve-outs to AB 1513 allowed those lawsuits to go forward.

Fowler and Gerawan challenged the carve-outs in federal court. PLF represented seven organizations — including California Farm Bureau Federation, California Fresh Fruit Association, and Western Grower — in an amicus brief in support of Fowler and Gerawan. We argued that the carve-outs violate the Bill of Attainder Clause, which forbids the legislature from singling out individuals for punishment without a trial. The Court granted us time for argument.

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