Oral argument in Texas premises liability case

Today, the Texas Supreme Court held oral argument in UDR Texas Properties, L.P. v. Petrie. Unfortunately, Justice Willett did not ask any questions. Nevertheless, at issue in the case is whether a Houston apartment complex can be held liable for failing to protect a man who was robbed and shot in the knee after parking in the complex’s visitor parking area in the middle of the night. The trial court rejected the lawsuit, holding that the apartment managers owed no duty to protect the man from criminal acts of third parties. The intermediate court of appeal reversed, holding that the attack was foreseeable. PLF filed an amicus brief in the case, and we previously discussed the issues here. Continue reading

EEOC loses its hairstyle discrimination case

Earlier today, the Eleventh Circuit affirmed the district court’s dismissal of the Equal Employment Opportunity Commission’s lawsuit against Catastrophe Management Solutions. This an important decision concerning the proper scope of Title VII. At issue was whether a business’s policy requiring professional-looking haircuts — and interpreted to prohibit dreadlocks —  facially violates Title VII’s prohibition on intentional racial discrimination in employment. Because the Court found that Title VII only prohibits discrimination based on immutable characteristics, it affirmed the dismissal of the lawsuit. Continue reading

U.S. Supreme Court set to conference on shoreline exaction scheme

Almost a century ago, Justice Holmes famously warned that “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” This warning could not be more timely or relevant.

At issue in Common Sense Alliance v. Growth Management Hearings Board is whether the government can force shoreline owners to dedicate their waterfront property as buffers designed to filter runoff originating on other properties, including county roads. The “essential nexus” and “rough proportionality” tests established by Nollan v. California Coastal Commission and Dolan v. City of Tigard say no. Together, those tests hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate for impacts caused by the proposed development. Continue reading

Courts should care about your right to earn a living

Though the rights to free speech and bear arms get all the press, the right to earn a living might be the most fundamental right of all.  The Fourteenth Amendment protects that right—allowing all of us the opportunity to provide for our families by pursuing a lawful vocation.  There was no better advocate for that right than Frederick Douglass, who passionately described the realization of economic liberty:

“To understand the emotion which swelled in my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin—one must have been in some sense himself a slave… . I was not only a freeman but a free-working man.”

When legislatures infringe that right, it is the responsibility of the court to determine whether the government has a rational reason for doing so.  Nevertheless, time and time again, we see courts defer to the government under what’s called the “rational basis test,” rather than engaging in their duty to scrutinize such laws.  Today, Pacific Legal Foundation filed an amicus brief arguing that courts must give meaning to the right to earn a living by giving teeth to rational basis scrutiny.

Continue reading

First Amendment lawsuit challenges ban on advertising

When Michael Cefali wanted to sell his Volkswagen, he did what all of us have done at one time or another: parked it on the street near his home with a for-sale sign in the window. Instead of drawing the attention of a buyer, however, he was fined by the sheriff in his home town of San Juan Capistrano, Calif., for “displaying a for sale sign” on his car. He was shocked to learn that a city ordinance censors those signs. Cefali, who graduated law school this year, thought that such ordinances were unconstitutional. And when he investigated by doing a public records act request, he learned that the city regularly enforces the ordinance and generates significant revenue every year by handing out tickets. He decided something should be done, and today joined with PLF to file a federal free speech lawsuit aimed at striking down the law.   Continue reading

Does congressional silence mean more freedom or more bureaucracy?


Judges often defer to the government’s interpretations of its own power. PLF fights this trend because it upsets the balance of separated powers and threatens liberty. But recently, in a case called Oregon Restaurant and Lodging Association v. Perez, judicial deference slumped to a new low. Continue reading

Arizona Supreme Court: Taxpayers must subsidize public employee union lobbyists

More than two years after oral argument, a majority of the Arizona Supreme Court today sided with Phoenix unions to require taxpayers to pay for union lobbyists ostensibly employed by the police department.  The court split 3-2 in the case, Cheatham v. DiCiccio. Justice Clint Bolick—former Goldwater Institute counsel for the plaintiffs, William R. Cheatham and Marcus Huey—was recused and replaced by appellate judge Joseph W. Howard.

The case arose when the City of Phoenix and the Phoenix Law Enforcement Association (PLEA), the police officers’ union, negotiated a contract whereby the city pays full salary and overtime for six full-time and 35 part-time employees who report to the union, and do the union’s work, including lobbying. This is called “release time.” Taxpayers Cheatham and Huey sued on the grounds the release time violated the state constitution’s Gift Clause requirement that all government expenditures must serve a “public purpose.”  The Arizona Court of Appeals permanently enjoined the contract because it found that the union benefitted to the tune of $1.7 million while the city did not benefit at all.

PLEA asked the Arizona Supreme Court to review the decision and PLF filed an amicus brief in support of the taxpayers, arguing that the “public purpose” requirement of the Gift Clause reflects the state constitution’s overall goals of fairness and accountability.  Three justices of the court did not see it that way, holding that the release time was merely a component of the overall compensation package negotiated by the city and the union, and that such provisions are common in public employee collective bargaining agreements.  By reviewing the release time as a minor component of the larger contract that as a whole serves a public purpose, the court held that the city received a corresponding benefit and there was, as a result, no violation of the Gift Clause.

Justices Timmer and Brutinel dissented.  Like the courts below, they viewed the release time provisions individually, arguing that the collective bargaining agreement as a whole should not immunize unconstitutional individual provisions.  In short, they would have found that “[n]o public purpose is served by diverting officers from safeguarding the public to work almost unchecked for PLEA” and “[t]o subsidize a labor organization under the guise of employee compensation violates the Gift Clause.”

As a result of this case, Arizona unions are emboldened to include ever-more-expansive provisions in their collective bargaining agreements, which are negotiated behind closed doors, without public awareness or opportunity to comment.  The court gives cities willing to cater to public employee unions carte blanche to do so, without accountability.  Given the growing financial crisis caused by public employee benefit plans and pensions, the court-sanctioned gift of release time is a slap in the face of Arizona taxpayers.

Weekly litigation report — September 10, 2016

  • Union access shenanigans from the Department of Labor
  • PLF supports charter schools from death by limbo
  • Environment and the right to intervene in lawsuits
  • Property rights: Loss in Knick v. Scott Township
  • Beer drinkers must register to drink?
  • Adverse anti-discrimination ruling

Union access shenanigans from the Department of Labor

We filed a new case challenging a controversial rule from the Occupational Safety and Health Administration. The lawsuit, brought in the Northern District of Texas and styled National Federation of Independent Business v. Dougherty, attacks a 2013 OSHA “standard interpretation letter.” In reality, this letter constituted a major rule change. Prior to the letter ,the rule was quite clear: Federal inspectors could visit workplaces and inspect for safety issues, and be accompanied by an employee or someone with particular expertise in safety issues. This was called the “walk-around” rule. The new letter, however, allows the federal inspector to be accompanied by a union member who is not an employee and who lacks any expertise. The sole purpose is to allow unions to “walk-around”  non-unionized workplaces for the apparent purpose of unionizing. After receiving complaints from its members about union walk-around harassment of members’ employees, NFIB asked us to investigate. We found that the letter has no basis in law and wasn’t issued in accordance with the law governing how rules are to be adopted, That is, it was adopted without public notice and opportunity for comment. For more, see our blog post here. Continue reading

Hawkes article in Federalist Society Revew

The Federalist Society Review published my short article on the Hawkes decision, Final Agency Actions and Judicial Review: United States Army Corps of Engineers v. Hawkes Co. You can find it here.

Strong intervention rules help mitigate harms of “sue and settle” litigation

In 2014, a lightning strike ignited a wildfire injohnsonbarsign the Johnson Bar Campground in Idaho’s Nez Perce National Forest. As a result of the fire, a substantial amount of dead and dying timber–a dangerous source of fuel for future wildfires–remains in the forest. To remove the danger and recover the value of the timber, the United States Forest Service proposed a project to auction off timber sales contracts. Before the contracts were auctioned off, however, two groups of environmentalists sued the Forest Service in an attempt to halt the project.

Shortly after the lawsuit was filed, two companies–Idaho Forest Group, LLC, and R & R Conner Aviation, LLC–won the contracts. When the two timber companies moved to intervene in the lawsuit to defend their contracts, the federal district court in Idaho denied their motion. The court held that even though contracts are protectable interests for the purposes of intervention, since the companies were aware of the ongoing lawsuit, their knowledge of the suit precluded their right to intervene. Further, the court held that the Forest Service would adequately represent their interests. The timber companies subsequently appealed, and today, PLF filed a brief in the Ninth Circuit Court of Appeals in support of the timber companies’ right to intervene. Continue reading