The San Francisco Daily Journal published my op-ed today on last week’s California Court of Appeal decision in the Friends of Martin’s Beach case. As I have written before, in this case an advocacy group sued property owner Vinod Khosla claiming that the public is entitled to cross his property to reach the beach. The group relied mostly on Article X, Section 4 of the California Constitution, which codifies the state’s public trust doctrine. But the Court of Appeal held that constitutional provision doesn’t extend far enough to grant access to private property. The decision is a win for California property owners because it recognizes the importance of the right to exclude and rejects an invitation to place an easement across many coastal properties.
In Cedar Point Nursery v. Gould, PLF attorneys challenge the California Agricultural Labor Relations Board’s Union Access Rule. Pursuant to this rule, unions can gain access to employers’ property, without their consent, to proselytize employees about the “benefits” of union membership. The regulation is a hold-over from the days when farm laborers had little access to media or other means of communications. Of course, nowadays most farm workers have access to hundreds of Spanish-speaking radio stations, internet sites, and other media outlets. They also have cellular and smartphones, and use social media sites like any other group of workers. Nevertheless, the Board insists that its regulation is still necessary to “access” these employees.
In response to our motion for a preliminary injunction, the court asked for additional briefing on our claim that the Access Rule results in an unconstitutional seizure of our clients’ property, in violation of the Fourth Amendment. Earlier this week, we filed a supplemental brief along with more than a half-dozen declarations and other evidence showing how our clients’ interests in their property vastly outweigh any interest the Board may have in the warrantless seizure of their property for union proselytizing. For example, we explain how the Access Rule threatens our clients’ ability to maintain safe and clean working environments. Our clients’ agricultural operations require that employees adhere to strict sanitation protocols in the fields, and strict safety procedures in the packing sheds. Yet union representatives obviously have no reason to be aware of these rules, or incentive to follow them. We expect a ruling on the preliminary injunction motion presently.
Check out all of PLF’s multimedia coverage of our latest case, White v. Voluntary Inderdistrict Choice Corporation. Represented by PLF, La’Shieka White is challenging St. Louis-area race-based transfer and enrollment restrictions that will block her son from attending the school of his choice next year — simply because he is black.
Created with flickr slideshow.
We learned for the first time yesterday that Pacific Legal Foundation is one of the subjects of the Virgin Islands Attorney General’s “global warming” subpoena to Exxon/Mobil. This exposes the subpoena to be a politically motivated fishing expedition of the first order. We are lawyers defending the individual liberties and economic rights of ordinary Americans across the nation. We are not scientists and have never taken a position on the global warming debate. In fact, we have never taken a position on whether there is even a debate here. The only possible reasons why the V.I.A.G. could have targeted us is because he and his cronies want to 1) punish us for defending the liberties of Americans who are unreasonably faced with government overreach or 2) because he wants to stifle any inclination that we may have to say something about global warming or any other controversial or politically incorrect subject in the future.
The genesis of a lot of this fiasco comes to us from Sheldon Whitehouse. I wrote this blog about Senator Whitehouse’s initial call for a RICO investigation of climate skeptics last September. It is appalling that a United States Senator and various attorneys general tasked with upholding the Constitution are so actively working to destroy one of its core principles of free speech.
As a side note, Senator Whitehouse and I share the fact that we both argued once before the Supreme Court in Palazzolo v. Rhode Island. That case dealt with Rhode Island’s attempt to destroy the property rights of Anthony Palazzolo. Anthony and I won. He lost. If Whitehouse and his allies attempt to chill our speech, they will lose again.
Late last week, the D.C. Circuit Court of Appeals struck down the federal Passenger Rail Investment and Improvement Act of 2008 (PRIIA). Among other things, PRIIA authorizes Amtrak to regulate its competitors. Now, you may be wondering how Amtrak can regulate its competitors when it essentially has a monopoly on all passenger rail traffic in the country. The issue is that there is a limited amount of train tracks, or rail, and PRIIA allows Amtrak to regulate who receives priority of use–passenger trains or freight trains. Priority of use is important because schedules for deliveries, maintenance, and even choice of routes are directly impacted by those decisions. The Association of American Railroads, a group of freight train operators, challenged PRIIA, asking whether it violates “due process for an entity to make law when, economically speaking, it has skin in the game.” On remand from the Supreme Court, which last year held that Amtrak can be considered a governmental entity, the D.C. Circuit held that PRIIA violates the Due Process Clause of the Fifth Amendment because it allows an “economically self-interested actor to regulate its competitors.” Continue reading
The St. Louis transfer program allows students living in St. Louis County to attend magnet schools within city limits — unless the student is black. The program made headlines recently when it threatened to banish third-grader Edmund Lee Jr. from Gateway Science Academy, the school he has attended his entire life. Today PLF is proud to stand with Edmund. We are asking a federal court to terminate the program’s race-based restrictions, and to allow Edmund to attend Gateway for fourth grade.
So ask PLF attorneys on behalf of trade and property rights groups in a cert petition filed this week. The case, Building Industry Association of the Bay Area v. United States Department of Commerce, concerns the critical habitat designation for a population of the North American green sturgeon. The sturgeon is a species of fish listed as threatened under the Endangered Species. In 2010, the National Marine Fisheries Service designated thousands of square miles of aquatic habitat—including San Francisco Bay and the Sacramento-San Joaquin Delta—as critical habitat for the sturgeon. Continue reading
This morning, PLF will be announcing a major civil rights lawsuit from the steps of the federal courthouse in St. Louis. You can watch the press conference live here. Follow the conversation on Twitter with the hashtag #StandWithEdmund.
Alan Petrie got off work as a waiter at a Houston nightclub in the wee hours of the morning, and then went to a co-worker’s birthday party at an apartment complex near the club. Houston is well known for its lack of zoning, and residential and commercial establishments are intermingled. Unfortunately, Mr. Petrie never made it to the party: He was robbed and shot in the knee outside the security gate to the complex. He sued the apartment management companies, arguing that they failed to protect him from the criminal assault. The trial court rejected his lawsuit on the grounds that the management companies owed no duty to protect him from the criminal acts of third parties. The court of appeals in Petrie v. UDR Texas Properties, L.P. reversed, however, holding that the attack on Petrie was foreseeable because of the high crime rate within a half-mile radius of the surrounding area, which includes the nightclub strip where Petrie worked. The court believe the relatively constant high level of violent crime at the nightclub strip would “travel” to the apartment complex. The Texas Supreme Court agreed to review the case.
Under that court’s decision in Timberwalk Apartments, Partners, Inc. v. Cain, (1998), a property owner owes a duty to protect people from crimes committed by third parties only when the risk of the crime is foreseeable and the risk to the plaintiff of that crime occurring is unreasonable and outweighs the magnitude of placing the burden to guard against that risk on the property owner. In an amicus brief filed today, PLF argues that the lower court conflated these two distinct elements by holding that any time a crime is “foreseeable,” it is “reasonable” to impose legal duty to protect. Reasonableness is usually determined by reference to the cost of burdensome security measures and the economic consequences of expansive tort liability.
When it comes to economic consequences in low-income areas, which frequently suffer from higher crime rates, those consequences can be severe. If apartment complexes must pay very high insurance premiums to cover third-party criminal assaults, they will raise rents, creating hardship, potentially even homelessness, for low-income tenants. If the rule applies to commercial enterprises—shops instead of apartments—the result is higher-priced goods and services, again to the detriment of low-income customers. Some businesses will have no option but to close; others that might have existed will never open. This has a further economically depressing effect on residents of low-income areas who themselves wish to become entrepreneurs, but find the entry costs too high. Because these entrepreneurs would hire other residents, the total effect of a business precluded from opening is increased joblessness; fewer available, affordable services; and a neighborhood that remains mired in economically depressed circumstances. PLF’s brief urges the Texas Supreme Court to consider these important public policies to hold that it would be unreasonable in this case to impose a tort duty to protect.
Over the last two years since it was proposed, the “waters of the United States” or “WOTUS rule” has ruffled more than a few feathers. As soon as the rule was published for comment, industry groups, local governments, and others affected by the rule all prepared to voice their concerns and defend their interests against the WOTUS rule’s call for a drastic expansion of federal regulatory jurisdiction.
Since then, debate over the controversial rule has persisted—in the public, in Washington D.C., and in the courts. Accordingly, more people have heard about the rule and begun to wonder what it might mean to them, their employees, customers, and families. Recently, in response to these worries, the National Association of Regulatory Utility Commissioners asked PLF to weigh in and let them know if the WOTUS rule really is as bad as it seems. Our answer, which won’t surprise readers of the Liberty Blog, was that it is indeed as bad as it seems—in fact, it’s probably worse. Continue reading