Plan Bay Area argument set for May 31

Next Tuesday, May 31, the California Court of Appeal will hear argument over the legality of Plan Bay Area — the plan to restrict future development in all but a tiny fraction of the already incredibly expensive Bay Area. The Court will consider whether regional agencies were free to ignore the plan’s significant environmental consequences and the wishes of the citizens subject to it. Continue reading

California adopts sophisticated intermediary doctrine

Special Electric Co. brokered the sale of raw asbestos from a mine in South Africa to Johns-Manville, which incorporated it into Transite pipe sold to Familian, a pipe supply company, that sold it to Pyramid Pipe & Supply, William Webb’s employer. As a broker, Special Electric never had possession of the raw asbestos. Webb worked with the pipe at Pyramid and later developed mesothelioma. He sued Special Electric for strict liability and failure to warn. A jury awarded Webb $900,000 against Special Electric but the trial court granted a judgment notwithstanding the verdict (JNOV) in favor of the company. Today, in Webb v. Special Electric Co., the California Supreme Court reinstated the jury verdict, but it also formally adopted the “sophisticated intermediary doctrine.”

Writing for the court, Justice Corrigan’s opinion explained that a supplier discharges its duty to warn end users about risks of a product if it “provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product.” Suppliers bear the burden of proving each element of this affirmative defense, which applies in cases involving both strict liability and negligence. PLF supported the adoption of this doctrine because there is no practical way for bulk suppliers to warn end-users.  Continue reading

President’s weekly report — May 20, 2016

Complaint filed to stop “competitors’ veto” in West Virginia

PLF attorneys challenged West Virginia’s Competitor’s Veto law on behalf of Arty Vogt, who owns a moving company based in Virginia.  Arty would like to provide moving services within neighboring West Virginia, which is just miles from his office.  But that state’s Competitor’s Veto law denies him the opportunity to compete there unless he gets permission from established West Virginia moving companies first. For more see our blog here and our press release and video here.

Brief filed to support Church’s property rights

We filed this amicus brief in Wayside Church v. Van Buren County supporting a church’s right to receive some money for its church building. The sad tale begins when the church fell behind on its property taxes and owed $16,750 to the County. The County foreclosed and sold the property at auction for $206,000. So who took the difference of $189,250? The county of course. We think that’s not only unfair, but unconstitutional.

Victory in New York! Continue reading

Highest court of New York strikes a blow for property rights

empire-state-buildingEarlier this month, the New York Court of Appeals handed a victory to New York landowners. PLF proudly supported the landowners who brought the case, and we want to highlight this victory for property rights in a state that often does not recognize them as it should.

In a short opinion, the highest court of New York vacated a lower court appellate decision that held that a private waterway, recognized by the State of New York and the people of the state as private for more than 160 years, magically became public because a renegade kayaker decided to prove he could traipse across private land and make his way down some (not all!) of the private waterway in his one-person kayak. That decision turned longstanding understanding of the private ownership of land on its head, and we applaud the New York High Court for vacating the lower court’s preposterous decision. Instead of belaboring the facts in this post, I will point you to our earlier blog posts on the case here and here.

The Court remanded the case, known as Friends of Thayer Lake v. Phil Brown, for further factual development. PLF will track the case closely and stands ready to support the landowners again when that time comes.

PLF comments on caribou critical habitat

This week, PLF filed comments, joined by Bonner County, Idaho and the Idaho State Snowmobile Association (ISSA), on the Service’s proposed critical habitat designation for the woodland caribou. The comment argues that the Service must address changes in the species’ status, which were brought about by a PLF petition challenging the earlier, illegal listing. Continue reading

PLF challenges law that allows businesses to veto new competition

Most people see the United States as the Land of Opportunity, where the right to pursue the occupation of one’s choice and to earn a living for oneself and one’s family is simply a “given.”  Yet over half the states have “Competitor’s Veto” laws, which effectively allow established businesses to shut out new enterprises simply because they don’t want to compete. 

Today, PLF attorneys challenged West Virginia’s Competitor’s Veto law on behalf of Arty Vogt, who owns a moving company based in Virginia.  Arty would like to provide moving services within neighboring West Virginia, which is just miles from his office.  But that state’s Competitor’s Veto law denies him the opportunity to compete there unless he gets permission from established West Virginia moving companies first. 

Continue reading

Congressional testimony on the Clean Water Act

I’ve been invited by the Senate Committee on Environment and Public Works to testify next week before the Subcommittee on Fisheries, Water, and Wildlife.  The hearing, on “Erosion of Exemptions and Expansion of Federal Control — Implementation of the Definition of Waters of the United States,” will be held on Tuesday, May 24, at 2:30 pm in Room 406 of the Dirksen Senate Office Building.  The “Waters of the United States” rule has justly garnered much attention and created much controversy.  But agency abuse of property owners under the Clean Water Act doesn’t end with the jurisdictional disputes surrounding the WOTUS rule.  For that reason, my testimony will focus on how EPA and Corps misuse their authority in ways unaffected by the WOTUS controversies, using real stories from PLF’s cases to highlight that agency misuse.  I hope to see some Liberty Blog readers there!

Hearing in San Jose next week for mobile home case

PLF will be in federal court in San Jose next week defending its case on behalf of the Jisser family from the city’s motion to dismiss the case. The Jissers filed their federal lawsuit last November, challenging the City of Palo Alto’s unconstitutional demand that they pay millions of dollars to their tenants before being allowed to close their mobilehome park business. They have a right to close the park under California law.

However, in exchange for the permit to close, the city demanded that the Jissers choose between two evils. Either they accept an uncompensated taking of their money by paying more than $8 million to their tenants to get new housing, or they would be denied a permit to close their park and be forced to run it forever (i.e., submit to an uncompensated taking of the right to exclude unwanted tenants from their land). Continue reading

Lemonade stand freedom coming to Louisiana

By now I’m sure you’ve heard a story about an overzealous 150713_CA_LEMONADEhealth inspector or police officer ticketing a harmless child for having the nerve to operate a lemonade stand without a license or permit. Not even Jerry Seinfeld’s kids are immune from strict enforcement. Fortunately, a refreshing ounce of common sense came out of Louisiana yesterday. Continue reading

Spokeo v. Robins: What lies ahead?

Yesterday’s Daily Journal published my take on Monday’s Supreme Court decision in Spokeo, Inc. v. Robins, which held that the constitutional requirement that federal courts hear only real “cases or controversies” demands that plaintiffs show some sort of “concrete” injury.  Beyond explaining the context and extent of the Court’s holding, I explain the importance of the holding in future class actions brought to enforce statutory commands.