Why John Oliver’s “pizza shop” attack on charter schools falls flat

John Oliver made news this week with his blistering attack on charter schools. In the segment, Oliver blasts a former presidential candidate who used pizza shops to make the point that “[w]e will improve the public schools if there’s a sense of competition.” If there’s just one pizza shop in town, good luck getting better service. More pizza shops, more competition, more likely for consumers to get what they want.

Oliver responds: “The problem with letting the free market decide when it comes to kids is that kids change faster than the market. And by the time it’s obvious the school is failing, futures may have been ruined.” Oliver is misguided.

Continue reading

Back to School Choice Week 2016

What’s better than one School Choice Week?  Two school choice weeks. At PLF we weren’t satisfied with simply celebrating school choice week in January, so four years ago we started Back to School Choice Week. As kids are going back to school, it’s important to remember that most families in this country have few educational options. So tune in all week to the Liberty Blog, where we’ll be touting the benefits of school choice and highlighting all PLF’s school choice cases

Setting the town straight on North Carolina beach dispute

The dry beach takings case of Nies v.Town of Emerald Isle, described more fully here, continues to generate debate in North Carolina. Recently, the Manager of Defendant Town of Emerald Isle published an article criticizing the Nies’ s view of the case. The following PLF rebuttal to the Town Manager’s column was published Sunday, August 21, 2016 in the Cateret County News-Times. Continue reading

CA Supreme Court invites state to frustrate federal policy

The California Supreme Court has issued its long-awaited decision in People v. Rinehart, concerning the legality of the state’s ban on suction dredge mining. The case concerns an apparent conflict between federal law, which encourages mining on federal lands, and the state’s ban against the only practicable method of mining stream bed claims. Despite the conflict, the Court denied the federal Mining Act any preemptive effect, essentially holding that state’s are free to frustrate or prohibit mining willy-nilly, no matter how obviously that may frustrate federal policy.

Continue reading

When may a Napa wine be labeled as a Napa wine?

The federal Alcohol and Tobacco Tax and Trade Bureau (TTB) regulates the labeling of wines sold in interstate commerce. If a winemaker wants to label their wine using an “appellation of origin” from a recognized viticultural area like Napa, then the wine must meet certain requirements. These requirements include: 85 percent of the grapes used to make the wine must be grown in the named area, and the wine must be “finished” (i.e. fully produced and bottled) in the state where the grapes are grown. However, winemakers are exempt from the labeling regulations if they only sell their wine intrastate. So, if a winemaker in New York purchases grapes from a Napa winery, ships the grapes to its New York facility where it crushes the Napa grapes and bottles the wine, then it can only label its wine as a Napa wine if it restricts sales of the wine to within New York. This is true even if the wine includes a disclaimer that the wine was “produced and bottled in New York with grapes grown in Napa, California.”

TTB recently proposed a rule to remove the exception for intrastate sales. This week, PLF submitted written comments outlining the serious First Amendment concerns with the proposed rule. Continue reading

Weekly litigation report — August 14, 2016

  • Property rights — California Supreme Court rules on compensation issues
  • Complaint filed in extortionate low-income housing demand
  • Ancient custom of beach driving?
  • Sign ban repealed
  • Endangered species and the green sturgeon
  • Shoreline buffer exactions challenge at the Supreme Court
  • WOTUS rule pass

Road alignment being taken on the cheap

Property rights — California Supreme Court rules on compensation issues

We received this California Supreme Court opinion this week in City of Perris v. Stamper, a case where we filed this amicus brief. The opinion is somewhat inscrutable, so we’ll try to net it out.

When a local government condemns property in California, it must pay fair market value for the property — with that value unaffected by the project for which the property is being taken. Thus if it condemns a parcel for a new dam and lake, you don’t get paid for the added value that the lake would have added to the parcel. By the same token, you don’t get paid less if your land is taken for a dump. So far, so good. But California has also adopted a rule that says if the government would have required you to dedicate land in exchange for a permit, then it won’t pay you the full fair market value for the property. So, if it takes a strip of land from you for a road, and it would have required you to give up the same strip in exchange for a permit to build a house, then you get paid much less for the strip of land — only the raw agricultural value, not the value for residential land. But what if the “dedication” is really a pretext and cannot be justified under Nollan? (Nollan held that government cannot demand an exaction for a permit if the exaction that is unrelated to a harm caused by the development project.) Continue reading

Washington state exaction scheme before the U.S. Supreme Court

San Juan County’s scheme to force shoreline property owners into dedicating water treatment buffers is now pending on a certiorari petition with the U.S. Supreme Court in the case, Common Sense Alliance v. San Juan County. As you may recall, in order to address a Washington state statute requiring that cities and counties adopt measures to protect the shorelines from new harm, San Juan County adopted an ordinance that requires all shoreline property owners to dedicate a “water quality buffer” designed to filter stormwater runoff before it reaches the shoreline—regardless of the fact that much of the runoff comes from neighboring properties and streets. Setting the wisdom of such a scheme aside, the county’s approach to the water quality assurance violates one of the most basic protections provided by the Takings Clause, the purpose of which is “to bar Government from forcing some people alone to bear the public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960). Thus, the importance or wisdom of a public policy goal is irrelevant to a takings analysis. Continue reading

Briefing complete in the green sturgeon case

This week, we filed our reply brief to our request to the United States Supreme Court to review the Ninth Circuit Court of Appeals’ decision in Building Industry Association of the Bay Area v. United States Department of Commerce. We have asked the High Court to review the Ninth Circuit’s ruling that landowners and other affected parties have no right to challenge the federal government’s decision not to exclude areas from critical habitat designation under the Endangered Species Act (friends of PLF will know that questions of judicial review have been an important part of PLF’s recent Supreme Court docket). One of the feds’ arguments against our petition is that critical habitat designation is no big deal. Thanks to the great amicus testimony to the contrary from Alabama and 22 other states, as well as property rights organizations such as The Cato Institute, National Association of Home Builders, and Mountain States Legal Foundation, we were able to argue strongly against that erroneous contention in our reply brief. Next step will be the Court’s consideration of our petition during the so-called Long Conference, scheduled for September 26.  Generally speaking, having a petition considered during the Long Conference is not great news (lots of petitions build up over the summer while the Court is in recess, the law clerks for the new Term tend not to like to recommend granting a lot of cases early on in the Term, etc.). But given that September 26 is the Feast of Sts. Cosmas and Damian, perhaps the luck will run the other way!

How long is too long for a court to ‘rehear’ a case?

Earlier this year, careful readers of the blog know I called your attention to a regulatory land grab taking place in the beautiful Florida Keys. That case, known as Beyer v. City of Marathon, has remained pending on a motion for rehearing before the Third District Court of Appeal for the State of Florida for three years. Pacific Legal Foundation had monitored this case for years but finally decided enough was enough – it was time for us to get involved.

To that end, PLF filed its Notice of Appearance and Notice of Supplemental Authority in the case on behalf of the property owner earlier this week. We support the property owner and the quest to have the appellate courts in Florida, and the Supreme Court of the United States if necessary, recognize that the Fifth Amendment demands real financial compensation when the government takes your property by way of regulation. We will fight to make sure the Beyers either find themselves able to use their property as they had the right to do, or justly compensated for the taking.

A legislative victory in Nashville Airbnb case

Last month, PLF filed an amicus brief supporting the Anderson confettifamily and their right to advertise and rent out their Nashville home via Airbnb. One of the issues addressed in the brief is Nashville’s ban on signs that advertise a home’s availability as a short-term rental. The Andersons wanted to place a small, temporary sign in their yard during a popular Nashville weekend festival in the neighborhood, and put a small sticker in the window next to their front door to alert their guests that they found the correct home. Unfortunately, they were informed by the Nashville Metro government that the signs were not allowed. Believing that the sign ban was an unconstitutional violation of their First Amendment rights, the Andersons sued.

In a nice development, this week, the Metro Council unanimously voted to repeal the unconstitutional sign ban. The Andersons, and everyone else in Nashville, are now free to place signs and advertise their home’s short-term rental availablity just like other property owners can advertise that their home is for sale or for rent long-term. While there are other unconstitutional aspects of Nashville’s short-term rental ordinances that remain, those issues will be addressed in the pending lawsuit. Congratulations to the Andersons, other Nashville property owners, and the Beacon Center for this victory.