Confusing and disappointing decision in lawsuit against charter school

10-18-16-shasta-secondary-home-schoolThis morning we received a disappointing decision in Anderson Union High School District v. Shasta Secondary Home School. The court of appeal held that non-classroom based charter schools may not operate a “resource center” in the county where the charter school is authorized, unless it is within the geographic boundaries of its authorizing school district. In so ruling, the court of appeal reversed the lower court’s opinion. The court purported to apply a strict reading of the statutory text, but, as explained below, the decision makes little sense and leads to absurd results.  Continue reading

Concentrated power imperils liberty

Last week’s decision in PHH Corp. v. Consumer Financial Protection Bureau brought into fine focus the fact that one of the greatest threats to individual liberty is the unchecked growth of the administrative state. Because the enactment and enforcement of laws will often intrude upon an individual’s exercise of his or her rights, our founding fathers wisely envisioned a system of government that held each of the three co-equal branches in check to one another and ultimately in check to the public. Thus, if Congress enacts an unlawful law, it can be restrained by the judicial or executive branches. If the law is unpopular, then congressmen can find themselves voted out of office.

That system works, however, only when government bodies are subject to checks and balances. The growth of administrative agencies—particularly those that are made unaccountable to the President or Congress—is a direct affront to that system of and must be stopped; otherwise, we risk allowing the very type of tyranny that our founding fathers fought against.

Last week, the San Francisco Daily Journal published an op-ed from PLF attorneys Brian T. Hodges and Tony Francois commenting on the PHH Corp. decision and its implications.

Weekly litigation report — October 14, 2016

Victory in free speech case

The City of San Juan Capistrano agreed this week to stop enforcing it’s ban on putting “for sale” signs in car windows in Cefali v. San Juan Capistrano. Because any other sort of sign is allowed, we argued that this sort of content-based restriction on speech violates the First Amendment. Fortunately, the City agrees with us and by agreeing to correct itself, it has saved us the time and trouble of extended litigation that the City would surely lose. You can read more about the conclusion of this case on our blog here.

Brief in support of judicial review

In this brief filed in the North Carolina Supreme Court in Town of Beech Mountain v. Genesis Wildlife Sanctuary, we explain how this judicial restraint veers from our constitutional commitment to liberty over democracy. This case is about a town singling out a small business for unfair treatment because the town wanted the property for other uses. But the real issue in our mind is whether the court should simply have assumed that the town was acting in good faith and defer to its decision. For more, see our blog post here.

Supreme Court denies review in Green Sturgeon case

The Supreme Court of the United States denied our petition for writ of certiorari in Building Industry Association of the Bay Area v. United States Department of Commerce.  This was our challenge to critical habitat designations for the green sturgeon. When the government did not properly take into account the economic impacts of the designations, we sued. For more on this case, see our blog post here.

Loss on appeal in tax case

We received the disappointing news that the California court of appeal has upheld the City of San Ramon’s “special” tax on new development within its territory. Our lawsuit, Building Industry Association — Bay Area v. City of San Ramon, argued that this “special” tax violated the law because, among other things, the services to be provided to the new development was exactly the same as that provided to existing homes. For more, see our blog here.


Loss in San Ramon tax case

This afternoon we received the disappointing news that the California court of appeal has upheld the City of San Ramon’s “special” tax on new development within its territory. Our lawsuit, Building Industry Association — Bay Area v. City of San Ramon, challenged the tax on several grounds. First, the tax violates the statutory requirement that such levies may be used to pay only for services “in addition to” those already available before the tax was levied. San Ramon’s tax will not be used for any new or enhanced service, but instead will be used to pay for the cost of meeting an expected increased demand for pre-existing services. Second, the tax violates the California Constitution’s prohibition on “general” taxation, because the tax’s proceeds will be used to pay for a disparate menu of municipal services otherwise paid for out of general fund revenues. And third, the ordinance levying the tax unconstitutionally retaliates against tax-paying property owners, by threatening to cut off municipal services if the taxpayers are successful in obtaining the tax’s repeal.

In response to these arguments, the court of appeal held: (i) the tax will be used to pay for additional services because meeting an increased demand provides an additional service; (ii) the tax is special, not general, because it cannot be used for any and all legitimate municipal expenses, and because its revenue will be placed in a dedicated separate fund; and (iii) the levying ordinance does not retaliate, because the loss of any service is simply the result of there being no money to pay for the service, not municipal animus.

A petition for review to the California Supreme Court would be due by the end of next month.

Review denied in green sturgeon case

Yesterday, we received the disappointing news that the Supreme Court denied our petition for certiorari to review the Ninth Circuit’s decision in Building Industry Association of the Bay Area v. United States Department of Commerce. Our petition asked the High Court to accept the case in order to decide the question of whether an agency decision not to exclude areas from critical habitat, on account of excessive economic impacts, is subject to any judicial review. We had hoped that the Supreme Court, which has shown much solicitude recently to property owners denied access to court to challenge agency action, would be interested in reviewing the Ninth Circuit’s judicial-review-denying decision. But now evidently is not the right time.

Wanted: Courts that stand up to government bullies

Buckeye Lake

Should courts defer to democracy? Many do. In fact, most constitutional challenges face an uphill battle because courts hesitate to question the judgment of legislatures. In a brief filed today in the North Carolina Supreme Court, we explain how this judicial restraint veers from our constitutional commitment to liberty over democracy. Continue reading

A forgotten property rights protection in Florida

The Environmental and Land Use Law Section of the Florida Bar (ELULS) recently published my article about a forgotten protection provided by Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act. Twenty-one years ago, the Florida Legislature passed the Act to provide additional property rights protections to those already recognized under the state and federal Constitutions. Much has been written about the law and many lawsuits brought under the Act. But one protection under the Act has been overlooked: its unique protections for property when the government acts in bad faith. In the article, I encourage practitioners to claim the protection for their clients and explain in more detail how courts should interpret the Act.

The article is called The Bert Harris Act’s Forgotten Clause: Vested Rights Arising from Substantive Due Process and you can read it on the ELULS website.

San Juan Capistrano stops enforcing advertising ban

In response to the federal First Amendment lawsuit filed last month by PLF client Michael Cefali, the City of San Juan Capistrano is moving to abolish its law forbidding the display of for-sale signs in cars parked on public streets. The city has ended enforcement of the ordinance and, on October 4, San Juan Capistrano’s city council voted to unanimously repeal the advertising ban. If the council affirms the repeal at a second reading of the ordinance on October 18, the law will be permanently off the books.

PLF brought the lawsuit to make the point that government the First Amendment protects every individuals’ right to truthfully communicate with the public–even if that communication is advertising the commercial message that one’s car is for sale. Indeed, the U.S. Supreme Court has said that consumers have “an interest in the free flow of information” that “may be as keen, if not keener by far, than [their] interest in the day’s most urgent political debate.” (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (1976) 425 U.S. 748, 763.) More recently, the Supreme Court has said that government may not discriminate between signs based on their content (e.g., political signs vs. commercial signs) without a compelling reason. Yet that is exactly what San Juan Capistrano’s ordinance did: communicating the truthful message that one’s car is for sale by displaying a sign is illegal, but nearly any other message displaying an identical sign on one’s car escaped punishment.

If the city completes the full repeal of the unconstitutional ordinance and refunds Mr. Cefali the fine he paid for violating it, PLF will withdraw the lawsuit. The case will have achieved all that was intended: ending the city’s unconstitutional censorship of for-sale signs and reestablishing the free speech rights of San Juan Capistrano residents. By doing the right thing and acting to repeal the law quickly, the City has also avoided a more substantial attorney fee award that would likely have been due to PLF had the case been litigated all the way to final judgment.

The repeal is a win not only for Cefali, his neighbors in San Juan Capistrano, and free speech, but for the students who worked on the case at the PLF-sponsored Liberty Clinic program at the Dale E. Fowler School of Law. As we publicize the victory we anticipate the lawsuit will send a message to the many other cities across the county that continue enforce unconstitutional sign bans: repeal them now or risk being served with a similar expensive lawsuit.

Cats vs. rats in Key Largo

Key Largo, a movie in which bureaucrat Edward G. Robinson thinks Lauren Bacall is protecting criminal cats trying to catch innocent rats; Bogie sues the feds in court, saves the day, and looks dapper doing it.

When Pacific Legal Foundation‘s Atlantic Center last visited Key Largo, we learned that a busybody bureaucrat thought he could stop Mother Nature and thousands of years of evolution in the process; that is, a U.S. Fish & Wildlife Service (FWS) employee named Jeremy Dixon believed he could use the awesome power of the federal government to stop cats from chasing rats. We first wrote about this unconstitutional and ridiculous waste of taxpayer money a little over a year ago.

In lieu of clicking that last link for background, suffice it to say that there’s a rat in Key Largo that the feds have deemed “endangered.” What makes this rat different from any other disease-infested, garbage-diving vermin?

Good question.

Continue reading

Weekly litigation report — October 7, 2016

Government shouldn’t abridge the freedom of speech with regulatory harassment

We filed this petition for writ of certiorari asking the Supreme Court to take up the case of Bennie v. Munn. Bob Bennie, a well-regarded financial consultant and leader of a local tea party in Nebraska, made some uncomplimentary remarks about President Obama. Because of his remarks, the state’s Department of Banking and Finance put pressure on Bennie’s firm to make Bennie cease his political commentary. Bennie sued. While the district court agreed with Bennie that he had been targeted because of his speech, it found that a person of “ordinary firmness” would not be deterred by the intimidation and dismissed the suit. The Eighth Circuit Court of Appeals, without seriously reviewing the trial court’s legal reasoning, upheld the dismissal. We don’t believe that the First Amendment can be so easily flouted and we’re hoping the Supreme Court will agree to take a look. For more, see our blog post here and our case page here.

WOTUS rule developments

We filed this response to the government’s petition for writ of certiorari in National Association of Manufacturers v. Department of Defense, our challenge to the new Waters of the United Sates (or WOTUS) rule that vastly expands federal control over private property now considered to be a wetland. The issue here is technical but important, asking whether the courts of appeals have exclusive power to review the rule. For more, see our case page here.

Supreme Court declines to take Common Sense Alliance v. San Juan County

The Supreme Court denied our cert petition in Common Sense Alliance v. San Juan County. We had urged that the Court take up this case so it could decide whether legislatively imposed exactions (that is, permit conditions that are imposed by ordinance) are subject to scrutiny under the tests developed in NollanDolan, and Koontz. Those cases hold that the government has the burden of proving that if landowners are forced to give up property in exchange for a permit, then the property being given up must be “roughly proportional” to an impact caused by the permitted development. At issue here was whether mandatory buffer zones are subject to that test.