Weekly litigation report — June 24, 2015

  • Equality under the law project — loss at the Supreme Court
  • San Francisco still trying to use landlords as ATMs
  • California Department of Forestry malfeasance
  • California Supreme Court allows questionable tort claim to move forward

Equality under the law project — loss at the Supreme Court

Our side lost in Fisher v. University of Texas at Austin. The Constitution guarantees “equal protection” under the laws, and the law requires any deviation from equal protection to be subjected to “strict scrutiny” by the courts. Nevertheless, writing for a four-member majority of the Court, Justice Kennedy in this opinion upheld the university’s race-based discrimination against non-minorities and Asians. While we are disappointed by the Court’s apparent strong deference to the University’s penchant for race-based discrimination, we will continue to push for a change in the law — a change that will recognize that discrimination is an anathema to a society that values equality. For more on the decision see our blog here and for more on the peculiar impact on Americans of Asian descent see this blog post. A link to our various amicus briefs filed over the years can be found here.

San Francisco still trying to use landlords as ATMs Continue reading

Court strikes down federal fracking regulations

Over on the Federalist Society’s FEDSOC BLOG, I have a post discussing a recent decision from a federal court that federal bureaucrats overstepped their authority when they adopted fracking regulations. In 2005, Congress exempted fracking from regulation under the Safe Drinking Water Act (the primary federal statute intended to protect drinking water). Undeterred, the Bureau of Land Management adopted regulations several years ago to regulate fracking, citing concerns that it could affect drinking water sources. It asserted that the statutory exemption did not matter because it wasn’t regulating pursuant to the Safe Drinking Water Act. It claimed authority under general federal land use statutes.

The District Court of Wyoming wasn’t buying it. The court ruled that:

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Justice Alito’s dissent in Fisher v. University of Texas highlights discrimination against Asian-Americans

Fisher v. University of Texas was a blow to those battling against racial preferences. However, for those looking for any silver lining, Justice Alito’s dissent provides some relief. For the first time in a major affirmative action case, a Supreme Court Justice gave a meaningful discussion about Asian-Americans’ place in the racial preference debate.

In dissent, Justice Alito questions why the majority fails to address the University of Texas’s treatment of Asian-Americans. He notes that the majority ignored that Hispanic students are better represented at the University than Asian-Americans, yet Hispanic applicants continue to receive preferential treatment. He observes that the majority “act almost as if Asian-American students do not exist.”

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California Supreme Court’s narrow ruling on the component parts doctrine

Flavio Ramos worked as a mold maker, machine operator, and laborer for Supreme Casting & Pattern, Inc., which manufactured metal parts through “a foundry and fabrication process,” from 1972 to 2009. During this time, the industrial processing of raw materials created fumes from molten metal and dust from the plaster, sand, limestone, and marble. In 2010, he sued ten suppliers of all the raw materials to which he was exposed, alleging that his exposure caused his lung disease. The trial court rejected his claim on a demurrer, but the court of appeal reversed, holding that suppliers of raw materials or component parts owe a duty to workers in plaintiff’s position where it is foreseeable that the raw material will be used in processes that may pose health hazards, even where the raw material posed no health hazard when transferred from the supplier to the manufacturer. Today, the California Supreme Court unanimously decided Ramos v. Brenntag Specialties, Inc., affirming the appellate court’s holding that the component parts doctrine does not apply and remanding to the trial court. Continue reading

Disappointing decision in Fisher v. University of Texas at Austin

In a 4-3 decision, the Supreme Court ruled that the University of Texas’s use of race in its admissions process does not violate the Constitution. Justice Kennedy wrote the Court’s opinion. The decision is what you’d expect from an opinion upholding the university’s race-based admissions plan — deferential and uncritical.

The Court grants the university wide latitude in how its undergraduate class is shaped. It writes, that “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”  Contrast that statement with the opinion in Fisher I, that “[t]he University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.” Continue reading

Supreme Court should affirm federal efforts to stop class action abuse

Readers of this blog are likely no stranger to class action lawsuit abuse.  Egregious examples abound.

Congress responded to that abuse in 2005 by enacting the Class Action Fairness Act, or CAFA.  That law allows parties to remove class action lawsuits to federal courts—which Congress thought would better police the class action process.  Since CAFA was enacted, plaintiffs have tried to evade removal to federal court, because they prefer friendlier state courts.  A case in which PLF filed an amicus brief today, ABM Industries v. Castro, involves one such example.

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San Francisco still trying to force landlords to pay for tenants’ high rent

In 2014 PLF successfully asked a federal court to strike down a San Francisco ordinance that required landlords to pay their tenants the difference between the rent they charged (often low due to rent control policies) and the current market rent for two years if the landlord removed their property from the rental market under California’s Ellis Act. Under the ordinance, some property owners were required to pay out hundreds of thousands of dollars, and in some cases, millions, just to stop being landlords. After PLF’s victory on behalf of the Levins, San Francisco amended its ordinance to cap the amount landlords could be forced to pay at $50,000 per rental unit.

But the amended ordinance is also problematic, and as a result, a group of property owners sued in state court. The property owners won at the trial court, and San Francisco appealed. This week, PLF filed a brief in support of the property owners in the case of Coyne v. City & County of San Francisco, pointing out that the same issues that doomed the ordinance in 2014 are still present in the amended ordinance, so it too, should be struck down. Continue reading

Are courts starting to scrutinize administrative decisions?

Today, the Federalist Society Blog shared a post that Larry Salzman and I co-authored regarding how some judges are keeping administrative agencies accountable to average Americans. In the post, we explain that judges are scrutinizing agencies’ decisions more closely, and are requiring them to support their determinations with actual facts and evidence. We explain that this higher level of scrutiny is representative of a growing reluctance of judges to give deference when it is not warranted.

Here is a sample of the post:

Requiring agencies to provide evidence to justify their decisions, insisting that they act within the bounds of their statutory authority, and ensuring that suffering plaintiffs have access to meaningful judicial review are hallmarks of good judging. Those of us concerned to hold administrative agencies accountable to the law can only hope the trend continues.

You can read the rest of the post here.

Worst argument against school choice ever?

The anti-choice faction has hit bottom.

Docs v. Glocks on en banc review at the Eleventh Circuit

Yesterday, Florida’s Treasure Coast Newspapers published my opinion column on the heavily debated “Docs vs. Glocks” case. Pacific Legal Foundation‘s Caleb Trotter and Deborah J. La Fetra recently filed an amicus brief in support of physicians’ First Amendment right to free speech in Wollschlaeger v. Governor of Florida, a/k/a “Docs vs. Glocks,” where the United States Eleventh Circuit Court of Appeals upheld, three times in a row, the Florida law which restricts doctors’ ability to question their patients about gun ownership.

In my op-ed, I explain why supporting doctors’ free speech rights here amounts to support of free speech for all professionals:

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