California threatens to shut down book signings and therefore small booksellers

PLF client Bill Petrocelli at his store, Book Passage—a Bay Area favorite.

Today we filed this First Amendment lawsuit on behalf of beloved Bay Area bookstore Book Passage, and its co-owner, Bill Petrocelli.

Book Passage is a hub of literary activity and free expression.  In addition to selling books, it hosts over 700 author events a year—in which authors give talks, read passages, interact with readers, and autograph their books.  Bill keeps copies of these signed books to sell later—which you can see scattered down the aisles of his store.  Book Passage also curates a monthly book club, wherein readers are sent a first edition book signed by an up-and-coming author.

Book Passage doesn’t charge a premium for the autograph; all of its books are sold for their cover price. But a newly enacted California law makes it extremely risky, if not impossible, for Book Passage to continue selling autographed books or hosting author events.

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Federalism depends on courts stopping states from regulating beyond their borders

Today, PLF filed an amicus brief in the Second Circuit supporting a television manufacturer’s challenge to a Connecticut law that shifts the cost of a local recycling program onto consumers in other states. The law is plainly unconstitutional under the Dormant Commerce Clause, which forbids states from regulating or taxing activity beyond their borders.

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Oregon court rejects claim for public access to private lake

Late last week, Oregon’s court of appeals issued its long-awaited decision in the case, Kramer v. City of Lake Oswego—a case in which two public access activists shockingly claimed that the “public trust doctrine” should be extended to create easements across dry, upland property so that the public can gain access “to . . . navigable waters throughout the State or Oregon . . . regardless of ownership.”

The activists asked the court to force owners of a private, man-made lake to open up their community park to the general public. They argued that the right to recreate in certain waters also gave the public the right to cross over someone else’s land to get there.

Property owners call that trespass. Thankfully, the Oregon court agreed. And nothing in the public trust doctrine will make such a trespass lawful. Continue reading

A judiciary full of Scalias

The Supreme Court of the United States.

Earlier this week, the White House announced a new slate of federal court nominees, a list which included PLF’s own Damien Schiff. In the Daily Caller, I explain that the President’s list of appointees reflects a President who intends to appoint justices to the lower courts who fit the Scalia mold. No legerdemain here; these appointments demonstrate the President intends to make big league appointments to our federal courts. Or as I write in the op-ed:

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PLF’s Damien Schiff announced as future nominee to the Court of Federal Claims

President Trump has announced his intent to nominate PLF Senior Attorney Damien Schiff to the Court of Federal Claims. There, he will join former PLF attorney, Judge Victor Wolski. We at PLF are very grateful for having had Damien for the past 13 years, but our loss is the Republic’s gain. We fully expect Damien’s confirmation to be swift and painless. He is eminently qualified, and will be an excellent judge.

Weekly litigation update — May 6, 2017

Intervention filed in Congressional Review Act case

As has been widely reported elsewhere, Congress and the Administration have dusted off the Congressional Review Act and have set about rescinding a series of Obama-era regulations. You can read more about that on our CRA-themed website, Much credit for this recent effort goes to PLF attorney Todd Gaziano, who helped draft the law when he was a congressional staffer.

Very recently, the Center for Biological Diversity sued in Center for Biological Diversity v. Zinke.  Among other things, CBD argues that regulations cannot be rescinded by Congress unless it also rewrites the underlying legislation. Thus a regulation pertaining to clean air could not be rescinded unless the Clean Air Act were amended. CBD also suggests that the CRA unconstitutionally changes Senate procedure by allowing for regulations to be rescinded by a majority vote. And, with respect to the particular regulations at issue here — a regulation pertaining to predator control in Alaskan wildlife refuges — CBD claims that the Act was improperly utilized. Continue reading

PLF challenges Coastal Commission’s restriction on the right to use property.

Dr. Mark Greene and Bella Greene

When Mark and Bella Greene bought a modest home on the beach in Los Angeles 11 years ago, they dreamed of moving from Pennsylvania to enjoy the sun in retirement near their grandchildren. But the California Coastal Commission turned that dream into a nightmare, forcing them to spend tens of thousands of dollars in a year-long bureaucratic battle over a permit to update and expand the house.

In the end, the Commission approved a permit but only on the condition that they forgo plans for the addition; as an added insult, the Commission demanded they waive their rights to ever protect the beach-front home from storms or erosion with a seawall. These conditions exceed the Commission’s power under the Coastal Act and U.S. and California Constitutions.

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Pacific Legal Foundation Intervenes in Lawsuit Challenging Use of the Congressional Review Act

As every school-child knows, the U.S. Government is divided into three branches: Legislative, Executive, and Judicial. Article I of the Constitution vests “[a]ll legislative Powers [t]herein granted” in Congress. And while Congress has delegated rule-making or quasi-lawmaking authority to executive agencies,* Congress ultimately retains all legislative power. Therefore, any power delegated to the executive by Congress can later be restricted or withdrawn.

Not so, according to a new lawsuit filed by the Center for Biological Diversity, which makes the extraordinary claim that a duly enacted law invalidating an executive-agency rule amounts to Congressional invasion of executive-branch authority. In other words, CBD claims that it is unconstitutional for Congress to pass laws. Under CBD’s tortuous theory, once Congress delegates rule-making authority to an executive agency, Congress relinquishes all oversight unless and until it expressly amends the statute that originally granted such authority. Otherwise, CBD contends, Congress unduly interferes with the role of the executive branch. This argument turns the Separation of Powers doctrine on its head.

To defend Congress’s proper role as the first branch of government and the vested repository of all legislative power, Pacific Legal Foundation today moved to intervene in CBD’s lawsuit on behalf of itself and its clients Kurt Whitehead, Joe Letarte, the Alaska Outdoor Council, and Big Game Forever. PLF has filed a motion to dismiss to throw out CBD’s baseless lawsuit.

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Oral Argument in Lynch v. California Coastal Commission

PLF Attorney John Groen with clients Jennifer Lynch and Marian Frick.

Today, PLF attorney John Groen argued our seawall condition case, Lynch v. California Coastal Commission, in front of the California Supreme Court.

The CA Supreme Court keeps an archive of oral argument webcasts, which will be available at this location.

Both sides were given tough questions by the justices, and it is always impossible to know exactly where the court stands, but the clear focus of the oral arguments was the threshold issue of whether or not the homeowners “waived” their right to judicial review of their seawall permit when they began construction.

Read more about the oral arguments

Legislating through friend of the court briefs

As many Pacific Legal Foundation employees have written about before, the power of administrative agencies has increased greatly over the last century. Many Americans are now subject to rules adopted not by elected officials, but by unelected bureaucrats in the “fourth branch of government.” Even worse, it is common practice for courts to defer to agencies’ interpretations of the law, even though it is the judiciary that has the constitutional power to interpret laws.

This acquiescence to agencies once again reared its ugly head in a recent case out of the Third Circuit, E.I. DuPont De Nemours and Company v. Bobbi-Jo Smiley. At issue is the interpretation of the Fair Labor Standards Act. DuPont pays its employees for the breaks they take during the shift. However, DuPont does not pay employees for the time they spend before and after their shifts donning and doffing their uniforms and briefing the new shift about the work they just completed.

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