California Supreme Court upholds plain language of statute protecting property owners

Last July, PLF, the California Farm Bureau Federation, and the California Cattlemen’s Association filed an amicus brief in the California Supreme Court case Scher v. Burke.The dispute in this case was between two neighboring property owners. The plaintiff property owners had been driving their vehicles onto their neighbors’ property. After repeated trespasses, the neighbors erected gates to restrict the plaintiffs’ ability to access their property. The plaintiffs sued, asking the court to order the neighbors to grant access, arguing that there was an “implied-in-law public dedication.” Continue reading

Freedom of contract at stake in a Supreme Court trio

In January, the Supreme Court granted certiorari and consolidated three cases to decide whether the National Labor Relations Act, which protects workers’ rights to engage in “concerted activities” for their mutual benefit, trumps the Federal Arbitration Act’s protection of the freedom of contract that allows employers and employees to agree to resolve their workplace disputes in individual arbitration (meaning: no class actions). Today, in Epic Systems Corp. v. Lewis, PLF filed an amicus brief supporting the freedom of contract.

PLF argues that while federal law places some substantive limits on the ability of adults to freely contract to arrange their affairs, courts generally respect people’s rights to determine the procedures by which they will resolve their disputes. This policy controls here as well. The NLRA does not create a substantive, non-waivable right to pursue claims unrelated to the NLRA on a class basis. Aggregation of claims is a procedural choice, not a substantive right. Continue reading

An unjust loss for property rights in Florida’s Fifth DCA

Earlier today, we learned that Florida’s Fifth District Court of Appeal reversed a jury award for millions of dollars to a family that had its property rights basically ignored by a small town on Florida’s east coast. The family relied upon the town council of Ponce Inlet’s invitation to develop several pieces of property at great price, only to have that same town council turn against them and refuse to allow the development after the family made its investments. The jury saw this unfairness for what it was and did justice; but the appeals court saw it differently. That the family lost the ability to use their land after the Town pulled the rug out from under them did not seem to matter to the court, or at least the opinion is virtually devoid of any reference to the unfairness involved.

The fat lady has not yet sung in this case, known as Town of Ponce Inlet v. Pacetta, and we will continue to support the family as long as the case goes on. The appellate court recognized the family had a valid takings claim and remanded the case for a new trial; in light of the equities of the case, we expect the plaintiff to win again.

Truth defeats a tortious interference with contract claim

Telling the truth is not a tort. Today, as PLF urged in its amicus brief, the Texas Supreme Court ruled in Community Health Systems v. Hansen that truth is an absolute defense to an intentional interference with contract claim. The case arose when the College Station Medical Center terminated Dr. Henry Hansen’s employment contract. In making this decision, the hospital relied on advice by a professional services administration firm that evaluated physician performance and employment. The firm truthfully advised the hospital that Dr. Hansen had caused significant financial losses due to the combination of his very high salary, failure to see a sufficient number of patients, and a months-long refusal to accept referrals from two of the three primary referring doctors.

The unanimous decision notes that the firm’s statements were true, and that the firm had a duty to provide explanations for its recommendations. The court’s decision bodes well for employment relationships based on the valuable communication of truthful information. Without protections for truthful communication about workplace performance, employment decisions are made in ignorance. Good employees suffer when employers or administrators fear to convey positive information about exemplary work performance while incompetent employees are shielded from any disclosures that might result in otherwise natural consequences of underperformance. Ultimately, society as a whole suffers when employers make inefficient decisions because those who have information are stifled for fear of lawsuits. PLF applauds today’s decision that recognizes and applies these important policies.

Interior Secretary Zinke recommends Bears Ears reduction

Last Saturday, Ryan Zinke, the Secretary for the Department of the Interior, recommended a reduction in the size of the Bears Ears National Monument, consistent with comments PLF sent to the Secretary last month. President Trump has ordered a review of several National Monuments designated in the past couple of decades, and the Bears Ears National Monument was the first on the list.

In his report on the Bears Ears National Monument, Secretary Zinke recognized that the Antiquities Act was not intended to be used to lock up large portions of federal land and prevent multiple use. Rather, as PLF stated in its comments, the Act was intended to protect historical objects and any land reserved for a monument should be “the smallest area compatible” with the management of those objects.

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Despite reversal, Vero Beach High School still in violation of the First Amendment

Yesterday, Indian River County School District Superintendent Dr. Mark Rendell reversed Vero Beach High School’s decision to disqualify PLF client, J.P. Krause, from the race for senior class president. “After careful review of all the circumstances surrounding the Vero Beach high School Student Government Association Senior Class President election, I have decided to overturn the principal’s decisions regarding disqualifying candidates from the election, and will accept the original election results,” the Superintendent said Tuesday afternoon.

While this is a win for our client—and the voters of Vero Beach High School—it doesn’t go far enough. JP is entitled to a full vindication of his First Amendment rights. He still has a permanent mark on his disciplinary record—the allegation that he “harassed” his opponent. The school district has refused so far to remove it from his record, claiming that this is an issue that is separate from his speech. How the district has come to this result though, is puzzling.

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Running down the controlling opinion in Rapanos v. United States

In February of this year, the President signed  an Executive Order calling for the Army Corps of Engineers and EPA to review and revise the government’s ill-fated definition of “waters of the United States” published in June, 2015. That definition sets the limits of federal authority under the Clean Water Act and literally affects millions of landowners nationwide. The 2015 WOTUS Rue (as it is commonly called), was unprecedented in scope asserting federal power to regulate virtually all waters in the Country and much of the land in direct conflict with the Clean Water Act and the Constitution of the United States.  The rule was assailed by more than 30 states and scores of industry groups and landowners, including those represented by PLF. The rule was immediately stayed when two courts ruled it was likely invalid. But before the Sixth Circuit Court of Appeals could issue a final decision on the rule’s validity, the President issued his Executive Order. This had the effect of putting the pending litigation on hold, until the Corps and EPA can issue a new rule. According to the Executive Order, the new rule must satisfy two criteria: (1) the rule must accord with national policy to protect national waters without undermining the economy or statutory and constitutional law; and (2), the rule must be revised with due consideration for the opinion authored by Justice Scalia in PLF’s 2006 U.S. Supreme Court Rapanos decision which set the outer limits of federal authority under the Clean Water Act. Continue reading

Supreme Court calls foul on class action gamesmanship

The Supreme Court this morning put the kibosh on a tactic by counsel for purported class actions to evade the final judgment rule. In Microsoft v. Baker, involving an alleged design defect in Xbox game consoles, class certification was denied, and the plaintiff voluntarily dismissed his case with prejudice, for the sole purpose of jumping straight to the Ninth Circuit to challenge the certification denial. The Ninth Circuit allowed this appeal of the interlocutory order and today the Supreme Court reversed that decision, rejecting the end-run around the statute that sets the rules for when a plaintiff can appeal. Justice Ginsburg’s majority opinion unequivocably holds that the plaintiffs’ attempts to appeal as of right from class certification denial orders “subverts the final-judgment rule and the process Congress has established for refining that rule and for determining when nonfinal orders may be immediately appealed.”

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ICYMI: Fox & Friends welcomed PLF client J.P. Krause

On Sunday morning, the Fox and Friends Weekend morning show on the Fox News Channel welcomed PLF client J.P. Krause, a rising senior at Vero Beach High School, as their guest. J.P., the young man who should serve as Vero Beach’s senior class president in the coming school year, will be on the show to discuss his high school’s controversial and unconstitutional decision to disqualify him from the class presidency after he won the election.

J.P.’s high school administration disqualified him after he won the race because he gave a First-Amendment protected, humorous campaign speech in his A.P. U.S. History classroom the day before the school held the election. You can see his 90-second speech here. J.P. said nothing worthy of a punishment; to the contrary, he engaged in pure political speech that the First Amendment protects. This public school could not lawfully punish him for the speech and the administrators’ decision to do so violates J.P.’s constitutional rights. You can read all about the situation here on our blog, or here and here in two excellent columns written by local TCPalm news columnist Larry Reisman, and you can watch a local television report about the case here.

Weekly litigation report — June 10, 2107

  • Letter sent to school board in Florida on First Amendment violation
  • Brief filed over EPA’s road ban
  • Butter ban ruling sought
  • California union-inspired anti-free speech rule appealed
  • Free enterprise loses in Oregon
  • Golden parakeet feathers to fly!
  • Caribou decision years behind schedule
  • Victory for Wildlife Sanctuary’s Due Process Rights

Letter sent to school board in Florida on First Amendment violation

On behalf of our clients J.P. Krause and his mother, Angela Krause, we submitted this letter to the Superintendent and School Board of Indian River County regarding the Vero Beach High School principal’s decision to disqualify J.P. from the senior class presidency election. After J.P. won the vote, the school principal disqualified him because he contends a humorous campaign speech J.P. gave – watchable here – “humiliated” his fellow candidate for office. First, the video did not humiliate the other candidate even remotely. Second, the First Amendment protects J.P.’s right to engage in pure political speech and PLF believes the school needs to reconsider its rash and poorly considered decision and reinstate J.P. to the presidency. We agree with the Supreme Court, which has recognized that students do not lose their rights at the schoolhouse door. For more see our blog post here.

Brief filed over EPA’s road ban

We filed our principal brief asking the Sixth Circuit Court of Appeals to hold that federal courts can review EPA vetoes of state-approved Clean Water Act Section 404(j) permits in a case known as Marquette County Road Commission v. EPA, et al.  In our brief, we argue that the Administrative Procedure Act (APA) gives the courts jurisdiction to review EPA decisions to block state-approved projects impacting federal waters of the United States in circumstances where the state is authorized to approve § 404 permits. If this APA argument sounds familiar, it’s because we relied on this same argument to win the Sackett and Hawkes cases. We anticipate making it three in a row. For more see our blog post here.

Butter ban ruling sought Continue reading