The government can’t call speech “conduct,” then require a license for it

If the First Amendment means anything, it means the right to speak freely without asking for permission first.

Yet in Nebraska, you have to get a government license before advertising.  PLF client Leslie Young helps people to sell their homes without the help of a real estate broker.  She acts as an advertising agent, posting online advertisements for homes that are for sale by owner.  Nebraska calls Young’s advertising business the “conduct” of real estate brokerage, and has demanded that Young stop advertising until she gets a real estate broker license, or face fines and penalties.

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PLF sues to stop unconstitutional public art fee on new homes

Today’s money-no-object urban planning elite have a long list of things they think no modern city should be without, but many have no money to buy the stuff on their list. And, city residents tend not to support tax increases to pay for many of these priorities, even if they support someone else paying for it.

So city bureaucrats turn to other sources of cash, and their power to deny land use permits is a powerful lever for coercing property owners to fund unrelated city priorities. Today’s example is PLF’s suit, on behalf of the Building Industry Association of the Bay Area, against the City of Oakland, California, challenging the constitutionality of the city’s new development fee to fund public art projects. In an effort to create business for local artists, Oakland has decreed that you cannot build homes or commercial projects without giving a percentage of the project cost to a local artist to install a public art work on your project, and then provide public access to the installation.

The United States Constitution requires the government to pay just compensation when it takes property for public use. It also bars cities from using the leverage of their permit powers to evade this requirement by demanding unrelated property in trade for a permit. Put in a common sense way, while the government can protect your neighbors from traditional nuisance impacts your property use causes, it cannot take your property to address problems you don’t cause, unless it compensates you. Oakland freely admits that its public art fee doesn’t mitigate any aesthetic or other impact which new development causes, but instead is just trying to create business for its local artists. That is unconstitutional, and PLF is on the case.

A public art installation at the American Embassy in Canada

A public art installation at the American Embassy in Canada


Jurisdictional determinations under the Clean Water Act, revisited

Federal administrative agencies should comply with their own regulations.  Right?  It doesn’t always happen that way.

Yesterday, on behalf of our client, Gallagher & Henry, a second-generation, family – owned developer, we filed a lawsuit challenging a determination made by the United States Army Corps of Engineers that Gallagher & Henry’s property in Tinley Park, Illinois, is a jurisdictional wetland under the federal Clean Water Act. The complaint, filed in the United States District Court for the Northern District of Illinois, alleges that the property at issue is prior converted cropland, which is excluded from Clean Water Act jurisdiction by the Corps’ own regulations.  That regulatory exclusion is of keen interest to farmers and developers nationwide.

The federal government has consistently taken the position that jurisdictional determinations are not reviewable in court because they do not affect the legal relationship between property owners and the government.  The problem is that, once a jurisdictional determination is made, a property owner is forced to apply for a permit from the Corps, which could take years of effort at substantial cost, or forego developing the property, or simply proceed with the project without a permit, at the risk of substantial civil and criminal penalties.   PLF successfully litigated the reviewability issue in the Hawkes case, where the Eighth Circuit held that jurisdictional determinations are judicially reviewable.  But in another PLF case, the Fifth Circuit held in Kent that jurisdictional determinations are not reviewable.  In an effort to resolve the split between the circuits, PLF filed a petition for certiorari in the United States Supreme Court, seeking review of the Kent decision.  That petition is pending.

Undoubtedly, the government will argue here that the Corps’ jurisdictional determination is unreviewable.  But this case was filed in a federal district court in the Seventh Circuit, which is not bound by either Hawkes or Kent.  The reviewability of the Corps jurisdictional determination will be among the first battles in the case.


Courting Liberty podcast on Bonesteel v. Seattle

On behalf of a group of concerned local residents, PLF is challenging Seattle’s food-waste law for treating key freedoms as disposable. The new law violates privacy and due process rights by commissioning garbage collectors to engage in intrusive surveillance of people’s trash.

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Click here to listen to host Harold Johnson discuss the upcoming suit with PLF Principal Attorney Brian Hodges and plaintiff Sally Oljar in this weeks, “Courting Liberty” podcast.

PLF challenge to Corps and EPA water rule heats up

When we filed our complaint challenging the Corps and EPA’s extreme redefinition of “waters of the United States” subject to federal control under the Clean Water Act, we noted that more suits would be filed.  So far, at least 10 suits have been filed, including 68 plaintiffs across the Nation.  We represent 9 of those plaintiffs in Washington Cattlemen’s Association, et al. v. U.S. Environmental Protection Agency, et al., in the Minnesota Federal District Court.  Also, among those plaintiffs are 30 states which shows how much local opposition there is to this feckless federal power grab.

Today, 11 states filed a motion for preliminary injunction in the Southern District of Georgia.  The court has scheduled a hearing on that motion for August 12.  If successful, the Court could enjoin the Corps and EPA from enforcing the new rule until the litigation is completed.

Also, today, the government filed a motion to stay these lawsuits so that they can be consolidated in a single court for resolution.  This motion will no doubt be granted and we can expect our case to be joined with the others in a district court selected by a federal panel.

Check back for further developments.

Seattle privacy lawsuit: Irony, delicious as pie

The City of Seattle is lost in the deep dark forest of its progressive ideals—and yet it just can’t seem to see the forest for the tress.

As you may recall, PLF attorneys filed a lawsuit last week arguing that a city law authorizing trash collectors to inspect the contents of residential garbage cans for evidence of unlawful activities (compostable contraband) violated privacy rights.

Yesterday, the city responded with a (laughably evasive) press release, in which it defiantly insisted that the inspections somehow don’t violate Washington’s constitutionally enhanced privacy rights. Of course, the city fails to acknowledge a 1990 Washington Supreme Court opinion, holding that each person has a legitimate expectation that, absent a warrant, the contents of his or her garbage cans will remain private and free from government inspection when placed curbside for collection.

Here’s where things get a bit odd. At the same time the city was insisting that its warrantless mass-snooping of residential garbage cans doesn’t violate privacy rights, it adopted a resolution declaring privacy a basic human right. Continue reading

Pennsylvanians deserve clear laws and a good education

It’s no secret that many traditional public schools across the country are failing. Yet school districts have insisted repeatedly that they would rather chain children to substandard schools than give those kids a choice to transfer to a better charter school. The Bethlehem Area School District in Pennsylvania is no different. It is trying to stop a successful charter school from opening a second location with an argument that, if accepted, would essentially force Pennsylvanians to choose between clear laws and good schools. Today PLF filed an amicus brief in support of the charter school in Lehigh Valley Dual Language Charter School v. Bethlehem Area School District because Pennsylvanians deserve both.

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Sacramento Bee runs PLF Op-Ed on diversity

Last week, on Friday, the Sacramento Bee ran an op-ed written by PLF attorney Ralph Kasarda.  The article describes how hiring decisions based on racial diversity, rather than merit, can lead to race discrimination.  The article can be found here.

President’s weekly report — July 17, 2015

WOTUS WOTUS every where, nor a drop to drink

We filed this challenge in Minnesota District Court on behalf of a variety of landowners and organizations to EPA’s new Waters of the United States (WOTUS) rule,  This rule, like the stuff of the alchemists of old, creates water from dry ditches and federal jurisdiction from whole cloth.  For more detail, see our blog here.

Privacy in Progressiveland

We filed this complaint this week in Bonesteel v. City of Seattle, our challenge to the City’s law requiring garbage collectors to go through the contents of residents’ trash looking for compostable food.  If there’s too much food waste, the collectors can issue a citation and, next year, a small fine.  Trouble is, the Washington Supreme Court has made it clear that residents have a privacy right in their trash, and this sort of warrantless snooping into trash isn’t permitted.  Our blog goes into more detail, including our video entry into the next Trash Cannes festival: Senseless in Seattle.

Arbitration Evasion in California

The notorious practice by courts in California of writing arbitration clauses out of contracts is front and center in Zaborowski v. MHN Government Services, Inc., where the Ninth Circuit Continue reading

Daily Journal runs PLF Op-Ed on the Supreme Court’s FHA Decision

Last week, the Daily Journal ran an op-ed written by PLF attorney Ralph Kasarda on the Supreme Court’s disparate impact/Fair Housing Act decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc.  The article can be read here.