FWC amends proposed regulations after PLF files challenge

In August, PLF filed a petition against the Florida Fish and Wildlife Conservation Commission (FWC) on behalf of William Thomas, claiming that the FWC was stepping beyond its statutory authority with its proposal to severely limit boat speeds in two Pinellas County water basins. Thomas, a retiree and boating enthusiast, lives in Indian Rocks Beach near two manmade basins that are connected to the intracoastal waterway. The two basins are popular for recreational boating, waterskiing, and jetskiing. But the FWC approved a rule this summer that would have turned both basins into slow zones, ending Mr. Thomas’s recreational use of these waters.

IdleSpeedState law allows the FWC to impose slow zone regulations where manatees are “frequently sighted” and where the best available science shows that they inhabit the waters. But according to the FWC data, manatees were not frequently sighted there and there was no evidence that they inhabited the basins. In fact, in the FWC’s 28 aerial surveys of manatee use in Pinellas County, no manatee was ever seen in the Northern basin, and only one or two were seen in the Southern basin.

Yesterday, the FWC reconsidered its proposed rule and decided it would amend it to exclude Continue reading

Et tu, Ninth Circuit?

The California Supreme Court is widely known for its hostility to arbitration contracts, despite the supposedly controlling Federal Arbitration Act that requires such contracts to be enforced as any other contract would be.  Last year, in Iskanian v. CLS Transportation Los Angeles, the California Supreme Court held that employees who act as “representatives” to assert claims under the Private Attorney General Act (PAGA) are acting as “deputies” on behalf of the state and therefore cannot exercise their freedom to contract for arbitral resolution of employment disputes.  As we explained at the time, this was an invitation to mischief, because lots of statutes permit citizen enforcement of statutes.

In general, federal district courts declined to follow the California Supreme Court’s lead, holding that PAGA claims were every bit as arbitrable as other employment disputes based on alleged statutory violations.  In Sakkab v. Luxottica Retail North America, however, the Ninth Circuit Court of Appeals cast its lot with the California Supreme Court, holding that PAGA claims must be heard in court, despite an employee’s willing agreement to arbitrate them.  (In this case, Sakkab had 30 days to opt-out of the arbitration contract and declined to do so).  Luxottica–the parent company of Lenscrafters, the employer in this case–filed a petition for rehearing en banc.  PLF today filed an amicus brief, joined by the National Federation of Independent Business Small Business Legal Center, urging the court to grant the petition and reverse the panel decision, restoring the freedom of contract at least to the federal courts in California.

Family sues Palo Alto to stop mobilehome park shakedown

This morning, PLF joined with the Jisser family (Tim, Eva, and their son, Joe) in Palo Alto, Calif., to file a federal lawsuit challenging that city’s unconstitutional demand that the Jissers pay millions just for the right to close their mobilehome park business.

The Jissers are a hard-working immigrant family who moved to the Silicon Valley from Israel in the 1970s. They made their living running a small grocery store, scraping and saving their money to buy the Buena Vista mobilehome park in Palo Alto in 1986.  Since then, the Jisser family’s mobilehome park has provided some of the most affordable housing in Palo Alto for more than 30 years. Continue reading

School choice in Montana helps public schools too

As my colleague Ethan Blevins discussed yesterday, we filed written testimony urging the Montana Department of Revenue to reconsider proposed regulations that would severely limit school choice in Montana.

In May, the Montana legislature enacted the state’s first school choice program, which allowed students to use scholarships funded by private donations at private schools of their choice. The Department of Revenue, however, proposed regulations that would prevent students from using these scholarships at any religious school. I was in Montana earlier this month, and told the Department that if it did not withdraw its unconstitutional regulations, it would have to answer for them in court.

My appearance didn’t go unnoticed. One state senator recently authored a guest column claiming that Montana’s school choice program hurts public schools, and that no one knows who is behind the school choice movement (though she speculates that it could be me).

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Genuine school choice in Montana faces a new threat

A proposed rule in Montana is threatening to geld the state’s fledgling school choice law. Montana passed a scholarship tax credit law earlier this year. The program offers tax credits for donors who contribute to the program. The money goes to student scholarship organizations, which provide tuition assistance for students who want to attend a private school.

But the Montana Department of Revenue has proposed a rule that would exclude all religious schools from the program. If a school is owned or controlled in whole or in part by a religious institution, a student cannot use the program’s tuition boost to attend there.

PLF urged the Department of Revenue in recent oral testimony and today’s written testimony to eschew this discriminatory policy. The proposed rule oversteps the Department’s authority and imperils constitutional rights. Continue reading

A government by and for the people? Or by and for cronies?

Occupational licensing is supposed to protect consumers against people who would practice a trade without the proper qualifications. In the first Supreme Court case on the question, Dent v. West Virginia (1883), the Court held that government may require people to be trained and educated before taking up the medical profession, because “such regulations” help “secure” the public “against the consequences of ignorance and incapacity as well as of deception and fraud.” But, the Court warned, if states impose licensing requirements that are not aimed at protecting “the general welfare of [the] people,” those restrictions “can operate to deprive one of his right to pursue a lawful vocation.”

But Dent was decided before the advent of “rational-basis scrutiny,” the rule under which courts today typically ignore violations of the right to earn a living. Under today’s law, state governments are given extremely broad power to limit economic freedom in whatever way lawmakers or unelected bureaucrats think best. That raises a crucial question—one on which the federal Courts of Appeals are now divided: may government restrict economic freedom, not to protect the public, but solely to protect the private benefits of a preferred group of people? Does such “mere protectionism” qualify as a “legitimate state interest” under the lenient “rational basis” rule?

Today, PLF and the Cato Institute have asked the Supreme Court to answer that question in a case involving teeth-whiteners: people who help clean teeth by shining a special kind of light on them. Officials in Connecticut ordered a group of teeth-whiteners to cease operations because they were not licensed dentists. Represented by our allies at IJ, a teeth-whitening company called Sensational Smiles sued, arguing that forcing them to spend the money and time needed to get a dentist’s license was irrational—they don’t offer dental services, after all. In this case, the licensing requirement was not being used to protect the public. Instead, it was a form of “mere protectionism” that barred competition against established dentists.

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DC Center represents PLF at Federalist Society’s National Lawyers Convention

DC Center staff recently represented PLF at the Federalist Society’s National Lawyers Convention. This convention is the largest annual gathering of conservative and libertarian
lawyers, judges, professors, and law students. Todd Gaziano and I attended lectures
and panel discussions on issues central to PLF’s mission, including “The Role of Congress in Environmental Law,” “How Fed-SocCongress Can Reclaim its Legislative Authority,” and “Overreach in the States.” We also used the convention as an opportunity to develop relationships with allies in the liberty movement, including fellow public interest attorneys and Congressional counsel. Readers interested in viewing audio/video from this event can do so here.

Like a good neighbor…: the Supreme Court must enforce limits on state regulation of interstate commerce

We’ve filed a brief in the Supreme Court, on behalf of PLF, the Cato Institute, National Federation of Independent Business Small Business Legal Center, and Reason Foundation, asking it to take up a case challenging state regulations of commerce occurring wholly beyond their borders. In this case, Colorado has adopted a law that regulates how electricity sold within it is generated, regardless of where it’s generated or whether it has any impact on the quality of the electricity imported into the state.

Our Constitution enshrines a system of competitive federalism that ensures government accountability and experimentation by pitting states against each other for voters, taxpayers, and industry. As the Supreme Court has explained, this competition:

assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.

For this competition to endure, courts must enforce the Constitution’s structural protections for it.

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DC doubling down on dispossessed catches attention of the Washington Post

Late last week the Washington Post published an article by Todd Gaziano of our DC office and me, called D.C. doubles down on the dispossessed. We wrote about Benjamin Coleman and other dispossessed homeowners’ class-action lawsuit against the District of Columbia. Coleman, an elderly veteran who suffers from dementia, lost his home, which the tax appraiser valued at almost $200,000, when he failed to pay a $133.88 tax on time. The District took his title and sold it to a private company who then foreclosed and sold it for a profit. The District and company reaped a windfall, but Coleman never saw a penny of his equity. When the Washington Post exposed the District’s unjust tax scheme a couple of years ago, the District changed its law. But the District still refuses to set things right and is fighting the lawsuit brought by Coleman and the other homeowners who are suing under the Fifth Amendment, which provides that government may only take property when it is for a public use and if it pays just compensation. The District claims that homeowners forfeited their Fifth Amendment rights when they failed to pay their bills on time. But as we say in the op-ed,

If government officials have the final say on what constitutes a forfeiture of constitutional rights, they could not only take property without paying compensation but also “redefine” when other constitutional rights are forfeited. If so, the failure to shovel snow from your sidewalk could justify the seizure of your home and the denial of your voting rights. Neither is true.

Although the hearing was set for this week, the federal district court just rescheduled the hearing for January 22, 2016. That gives the District more time to do the right thing.

Read the whole Washington Post article here.

President’s weekly report — November 13, 2015

Obamacare case dismissed and the administration continues to evade the law

A district court dismissed West Virginia v. Department of Health and Human Services, that state’s challenge to the provisions in Obamacare that forced states to choose between enforcing Obamacare’s requirements for insurance policies or letting the Feds do the enforcement.  But because that was so unpopular, and an election was looming, the administration said it wouldn’t enforce those provisions, for now, but will leave that task up to the states. But if the state’s don’t enforce the law that the administration refuses to, then the states will suffer under other provisions of Obamacare.  In other words, the states get to take the blame for any decisions to enforce, or not enforce, the statute.  The district court turned back the case because it said so long as the states had some choice, even this Hobson’s choice, they were not being unfairly coerced.  For a more detailed explanation of the administration’s shenanigans see our blog post here or read or amicus brief here.

Argument held in challenge to California air rules Continue reading