Weekly litigation update — February 25, 2017

Commonsense  result in New York

In Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent ProgramNew York’s highest appellate court ruled here that a half-way house for drug addicts is not liable when a former resident, who was forcibly removed by the police at the house’s request, assaulted someone at his grandmother’s home. Because the half-way house had no control over its expelled resident, it was not responsible for injuries he caused. This is entirely consistent with PLF’s amicus brief, which argued that “the potential for unlimited liability looms large if an organization owes a duty to the general public for crimes committed by former residents.” For more, see our blog post here.

PLF weighs in against Obama labor regulation

PLF filed this amicus brief asking the Supreme Court to take up National Restaurant Association v. Department of Labor, arguing that the Department is not free to come up on  a rule regarding the treatment of tip income unless a statute actually gives it authority to do so. Here the Ninth Circuit ruled that because a statute did not affirmatively forbid the agency from regulating tip income, nothing could stop the Department from doing so. But that has it backwards — the executive branch can act only when it is authorized by Congress to act, not when the executive would like to fill in for legislation it would have liked but Congress never adopted. Put simply, the Department of Labor cannot legislate when Congress doesn’t, only Congress can pass new laws. For more on the separation of powers issue, see our blog post here.

Notice of Appeal filed in free speech case

We filed our notice of appeal in Associated Builders and Contractors–California Cooperation Committee v. Becerra. In California, contractors on state construction projects must pay “prevailing wage.” Under the prior state law, contractors can satisfy that requirement, in part, by contributing to an organization that will lobby for the advancement of the industry. But a new law now effectively limits those contributions to unions — leaving out non-union advocates — effectively discriminating against non-union speech. After a trial court upheld this, we were asked to take this case up on appeal. For more detail, see our blog post here.

California can’t stifle open-shop speech just because it doesn’t like the content

Today we filed our notice of appeal to the Ninth Circuit on behalf of Associated Builders & Contractors of California Cooperation Committee (ABC-CCC).  ABC-CCC is an organization that advocates on behalf of the “open-shop” industry—that is, on behalf of entities who do not require their employees to join a union.  Last year, California passed S.B. 954, which threatens the speech of open-shop organizations like ABC-CCC.

Under California labor law, all contractors for public projects must pay their workers the so-called “prevailing wage”—a pre-determined rate set by the Department of Industrial Relations.  Contractors can meet the prevailing wage requirement by paying a combination of wages, vacation time, and other benefits.  Formerly, contractors could satisfy the requirement, in part, by donating to an organization that advocates for the industry—including by donating to ABC-CCC.  S.B. 954 limits the types of contributions that qualify towards the prevailing wage requirement.  Now, only those donations made pursuant to a collective bargaining agreement, ie. donations made to advocacy groups that are pro-union, can be deducted from the prevailing wage credit.  The effect is to discriminate against open-shop speech and advocacy organizations like ABC-CCC.  In a highly competitive industry like public works contracting, employers will no longer donate to ABC-CCC if they can no longer receive a prevailing wage credit.  Several organizations have already told ABC-CCC that they can no longer support the organization if the prevailing wage credit is taken away.

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PLF’s Wen Fa speaks to West Valley Republican Women

Last week, I spoke to the West Valley Republican Women in San Jose about the work PLF is doing to advance liberty across the United States. In particular, I told the story of Bob Bennie, who was unjustly targeted for retaliation because he dared to share his political views. Although the Supreme Court denied review in Bennie’s case, PLF will continue to stand up for your First Amendment rights.

Perhaps the biggest threat to the First Amendment today comes in the form of compelled speech. From country-of-origin labeling laws that cost Americans over two-and-a-half billion dollars in compliance fees to regulations that force Twitter users to include government-approved hashtags in their tweets, we are ceding more and more of our First Amendment freedoms to the government every day. Fortunately, PLF is here to restore the First Amendment to its rightful owner: you. If you are affected by a compelled speech law, please let us know. We just might turn it into our next big case before the Supreme Court.

Bureaucratic overreach and the separation of powers

Can federal agencies make up whatever policies they like unless Congress tells them not to? PLF answered an emphatic “no” in an amicus brief filed today to support a petition to the Supreme Court. In National Restaurant Assocation v. Department of Labor, courts allowed the Department to expand its power beyond limits set by Congress. This concentration of power into one branch of government threatens the basic liberty sheltered by the Constitution’s checks and balances. Continue reading

Alaska legislators lodge support for permafrost case

Earlier this week, a coalition of Alaska state legislators urged the state’s federal representatives, and relevant members of the new administration, to revoke the so-called Alaska Supplement to the Army Corps of Engineers’ 1987 Wetlands Delineation Manual. Citing PLF’s ongoing legal challenge, the legislators’ letter explains that the supplement is illegal because, contrary to clear Congressional direction and the 1987 Manual itself, the supplement purports to assert Clean Water Act jurisdiction over millions of acres of permafrost, i.e., frozen ground. Although most states do not have permafrost, the issue underlying the letter, and PLF’s lawsuit, applies throughout the nation. The Corps has promulgated nine other regional supplements, and each purports to supersede contrary provisions in the otherwise nationally applicable 1987 Manual. Thus, the issue of whether the Corps can put in place a special rule for Alaska will determine whether the agency can get away with similar jurisdiction-expanding efforts in other parts of the country.

NY Court of Appeals: No control = no tort liability

Last Thursday, the New York Court of Appeals unanimously relieved a drug-treatment halfway house of liability for a former resident’s subsequent assault on his mother’s boyfriend. The case, Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program (JCAP), arose when Sean Velentzas violated JCAP’s rules by drinking alcohol and assaulting another resident and JCAP told him that, as a consequence, he was being discharged from the alternative-to-incarceration program. When Velentzas became enraged by his expulsion, JCAP staff called 911, and the responding police escorted Velentzas off the premises and released him. Velentzas then went to his grandmother’s house and violently assaulted Anthony Oddo. Oddo sued JCAP for negligence in releasing Velentzas. The intermediate appellate court issued a split decision holding that JCAP had a duty to protect Oddo from Velentzas, and the New York Court of Appeals (the state’s highest court) has now reversed.

The court’s decision focuses on control: Because JCAP lacked control over Velentzas after he was properly removed from the premises by the police, JCAP owed no duty to protect Oddo or any other member of the general public from Velentzas’ subsequent predations. This is entirely consistent with PLF’s amicus brief, which argued that “the potential for unlimited liability looms large if an organization owes a duty to the general public for crimes committed by former residents who were not on the organization’s premises, that is, for the criminal actions of people over whom the organization has no custody or control.” Justice Abdus-Salaam, writing for the court, echoed this principle: “[I]t is difficult, if not impossible, to determine when JCAP’s duty to protect the public from Velentzas would end if any duty existed beyond his discharge. It is unreasonable to impose upon facilities like JCAP a duty to protect the public from individuals they have dismissed from their charge because the duty would essentially be limitless.” The court also agreed with PLF that if alternative treatment facilities can be liable to the general public for criminal actions of properly discharged former residents, this will discourage organizations from participating in alternative programs, contrary to New York’s public policy “aimed at helping certain defendants overcome substance abuse issues and obtain treatment for mental health issues.” This decision is welcome news for alternative-to-incarceration programs and the troubled individuals who take advantage of the opportunities they offer.

Manatee count shows population continues to grow

The Florida Fish and Wildlife Commission (FWC) gave cause to celebrate: the manatee population continues to grow in Florida, according to agency’s newest survey results. The FWC today announced it counted 6,620 manatees in its annual survey. Last year the FWC counted 6,250 and in 2015 it counted 6,063 manatees. The FWC conducts the manatee aerial survey each winter, when weather conditions permit. A team of observers fly around the state’s warmer waters where manatees typically congregate, and count the number of manatees that they can see.

The latest survey results are a reminder that the U.S. Fish and Wildlife Service should have already followed its own experts’ advice and reclassified the manatee from “endangered” to “threatened.”  As our readers will recall, last month, PLF sent the U.S. Fish and Wildlife Service a 60-day notice that we would file a lawsuit on behalf of our client, Save Crystal River unless it follows the law and adopts the rule it proposed more than one year ago.  Continue reading

Happy Presidents’ Day from a little town in Florida celebrating liberty in a big way

Not a real photo.

Today we celebrate Presidents’ Day in the United States, a holiday originally known as George Washington’s Birthday. (The Heritage Foundation suggests we should still use that moniker today; technically the name never changed, although I suppose that’s an epistemological debate well beyond your humble blogger’s ken.)

Whether you call it Presidents’ Day, or Washington’s Birthday, or Monday, here at Pacific Legal Foundation we also call it a well-deserved day off to remember the Americans who stood at the helm of our great nation and guided it on its mission to be “a city on the hill” for the world.

At PLF, we don’t just remember those leaders; rather, we seek to honor them by working all over the country to defend the liberty and freedom that our Presidents defended during their terms in office. Last week, that fight for liberty took PLF to a Columbia County Board of County Commissioners‘ meeting in the north Florida town known as Lake City. The Commission had before it a proposal to require farmers to apply for a special permit when they wished to change the way they used their property. Those who recommended this idea may have had good intentions, but ultimately the proposal as written would have arguably required farmers to either pay $1250 for a special permit when they chose to rotate their crops, or challenge the law as illegal if not unconstitutional – an expensive choice if ever there was one.

Local community leaders like Steve Dicks of the Columbia County Farm Bureau swung into action to gather the team to fight off this terrible idea.

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Weekly litigation report — February 18, 2017

Absent Gopher Frog headed to Supreme Court

Image result for dusky gopher frog

Have you seen this frog? Fish & Wildlife Services thinks it can appear magically in Louisiana by decreeing “critical habitat” on land where the frog isn’t and can’t be.

The Fifth Circuit in an 8 to 6 decision declined to rehear the case of the frog that isn’t there, Markle Investments v. United States Fish & Wildlife Service. The problem in this case is that the Fish & Wildlife Service insists in designating large swaths of property in Louisiana as “critical habitat” for the gopher frog, which is costing the affected landowners millions of dollars in costs. There are a few problems, however, with calling these lands critical habitat: the frog doesn’t live on the land in question, it hasn’t been seen in the area for over a half-century, even if the frogs hopped back over to Louisiana they wouldn’t survive because the land isn’t suitable for the frogs, and no one has any intention of taking bulldozers to the land to create new frog habitat. Six members of the court issued a stinging dissent, beginning with these words:

The protagonist in this Endangered Species Act …  case—the dusky gopher frog—is rumored to “play dead,” “cover its eyes,” “peak [sic] at you[,] and then pretend to be dead again.” …. The panel majority regrettably followed the same strategy in judicial review—play dead, cover their eyes, peek, and play dead again.

Our next stop will be the Supreme Court. We’ll be asking the Court to be a bit more lively than the appellate court and take the case so it can put some limits on the Fish &Wildlife Service’s fantasy exercises in creative critical habitat. For more, see our blog post here.

Argument before the 9th Circuit in San Francisco shake-down case

PLF attorneys previously won their challenge to a San Francisco ordinance that required landlords to pay exorbitant fees to tenants when the landlords decided to get out of the rental housing business. See our write-up of Levin v. San Francisco here. San Francisco then rescinded the ordinance and adopted a new, somewhat less onerous ordinance (that is subject to another challenge). San Francisco then appealed. Oral argument was heard on February 14th. The arguments revolved around the question of whether San Francisco could in fact bring an appeal of an injunction against an ordinance that no longer exists.

Victory in the 11th Circuit “Docs for Glocks” case

The 11th Circuit issued this 90 page opinion in Wollschlaeger v. Governor of the State of Florida, better known as the “Docs for Glocks” case. (Actually, there were two opinions on this full “en banc” decision from the entire court.) This is the case where Florida passed a law prohibiting doctors from asking their patients about firearms in their homes. Supposedly this law was to support gun rights, but what it really did was restrict the First Amendment rights of doctors. We had filed this amicus brief in 2016. A doctor, like anyone else, should be able to talk with a patient about whatever the doctor and patient wish to talk about. Both opinions from the 11th Circuit agreed that this restriction on free speech went too far. You can check out our post-argument blog post here, but you can also check out our blog on Friday for an update.

Major First Amendment victory in Docs v. Glocks case

Yesterday, the 11th Circuit issued its en banc opinions in Wollschlaeger v. Gov. of the State of Florida, AKA the “Docs v. Glocks” case. As previously discussed here, here, and here, the case concerns whether Florida can prohibit doctors from asking their patients about their gun ownership or possession unless the question is directly relevant to a patient’s care. The issue is controversial because many doctors, especially pediatricians, often routinely ask patients (or their parents) questions about potential hazards in the home, be it swimming pools, poisons, or guns.   Continue reading