PLF Liberty Blog

Mark your calendars--May 4: Cal. Supreme Court argument on S.F. flouting Prop. 209

WHAT:  On May 4, 2010, oral argument will be held at the California Supreme Court, in Coral Construction v. San Francisco.  Pacific Legal Foundation attorneys represent contractors who are challenging San Francisco's 2003 public contracting ordinance, as a violation of Proposition 209 (Article I, Section 31, of the California Constitution) because it provides for race- and sex-based quotas in awarding public-works contracts.

What are transferable development rights?

Author: Luke A. Wake

We all know that the Fifth Amendment protects our right to use and enjoy our property. But, that doesn't stop government regulators from trying to find innovative ways to get around the Fifth Amendment. In recent years land use planners have begun experimenting with "transferable development rights" as a way to avoid liability under the Fifth Amendment when they have restricted the permissible uses of a property.

Regulators open themselves up to lawsuits when they restrict the permissible uses of a property, but the case law makes it an uphill battle for the landowner who believes his property rights have been taken away. Under the Lucas test, a government regulation is a per se taking if it completely deprives a property of all economically viable use. This means that the government can't completely prohibit all uses of a property without paying you for its value. Where the land still retains some economically viable use, the restriction might not be a taking. Under the Penn Central test, a court will determine whether a restriction amounts to a taking in consideration of a number of factors, including: (1) the economic impact of the regulation; (2) the extent to which the regulation has interfered with reasonable investment backed expectations; and (3) the character of the governmental action.

It is clearly much more difficult to prevail under the Penn Central test than under the Lucas test because Lucas is cut and dry: if the regulation completely deprives a property of all economically viable use, a taking has occurred and compensation is owed. But if the property still retains some value it may be said it has an economically viable use; in such a case the Penn Central's complex balancing test applies, and government regulators will usually prevail. So its always in the government's best interest to argue that the regulated property still retains some value (even if it is only a fraction of what it would otherwise be worth).

Can felons force states to let them vote? Ninth Circuit to rehear Farrakhan v. Gregoire

Author: Ralph W. Kasarda

In an earlier post on the Liberty Blog, I described how the Ninth Circuit had ordered the parties in Farrakhan v. Gregoire to submit briefs setting forth their respective positions on whether the case should be reheard.  After considering those briefs, the Ninth Circuit has in fact ordered the case to be reheard en banc.  The court's order can be found here.

Did we say commerce? We meant tax. Oh, wait! No, we mean...

Author: Timothy Sandefur

Randy Barnett has an excellent article in the Wall Street Journal about Congress' effort to change its story on where it gets the power to force us to buy health insurance. Excerpt:

Since this Commerce Clause language was first proposed in the Senate last December, Democratic legislators and law professors alike breezily dismissed any constitutional objections as preposterous. After the bill was enacted, critics branded lawsuits by state attorneys general challenging the insurance mandate as frivolous. Yet, unable to produce a single example of Congress using its commerce power this way, the defenders of the personal mandate began to shift grounds.

On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page "technical explanation" of the bill. The word "commerce" appeared nowhere. Instead, the personal mandate is dubbed an "Excise Tax on Individuals Without Essential Health Benefits Coverage." But while the enacted bill does impose excise taxes on "high cost," employer-sponsored insurance plans and "indoor tanning services," the statute never describes the regulatory "penalty" it imposes for violating the mandate as an "excise tax." It is expressly called a "penalty."

This shift won't work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.

(Read the rest...)

Wisconsin says, "The wolf is recovered"

Author:  Damien M. Schiff

Earlier this week, the Wisconsin Department of Natural Resources announced that it was filing a petition to delist the Wisconsin subpopulation of the Western Great Lakes distinct population segment (DPS) of gray wolf from the protections of the Endangered Species Act (ESA).  The petition argues that the wolf has recovered to sustainable populations, and that Wisconsin has adequate management measures in place.  (Interestingly, the wolf was originally protected only in Minnesota, but over the years the Minnesota wolves have wandered over to Wisconsin and Michigan, and apparently like it enough to stay).

Wisconsin's petition is just the latest in a long line of legal and regulatory actions concerning this species, some of which we've covered on The Liberty Blog (see, e.g., here and here).  The Service attempted to delist the DPS several years ago, was stopped by an environmentalist lawsuit that resulted in a remand, attempted again to delist, was stopped again by an environmentalist lawsuit that resulted in the wolf's relisting.  In March, Minnesota petitioned to delist the wolf in that state, where it is listed as threatened (it's listed as endangered in Wisconsin).  The Wisconsin petition joins in the Minnesota petition.

If at first you don’t succeed, change the rules!

Author: Brian T. Hodges

Earlier today, Washington’s Supreme Court granted review of a petition asking whether the Legislature can enact a bill that would operate retroactively to wipe out several years of final judicial decisions.

Last year, Pacific Legal Foundation successfully argued that Kitsap County, Wash. failed to comply with the law when its imposed critical area restrictions on all shoreline properties simply because they were close to the shoreline in the case Kitsap Alliance of Property Owners v. Central Washington Growth Management Hearings Board (KAPO), 152 Wn. App. 190, 197-98 (2009). This case is the latest of several appeals challenging Washington’s Growth Management Act’s (GMA) requirement that local government periodically update their critical area regulations regardless of whether an update is needed.

Summer reading list: Equal protection and discrimination

Author: Joshua Thompson

In the coming weeks some of the PLF attorneys are going to blog on some books that we recommend for the summer.  While some of the books may be more appropriate for the those interested in legal issues, I hope that a lot of the books will also be appropriate for the layman interested in ideas of liberty, property, natural rights, environmental policy, equal protection, free enterprise, and other PLF areas of expertise.  Without further ado, here are three books I recommend for those interested in discrimination and equal protection issues.

1.  Diversity: The Invention of a Concept by Peter Wood.  I recently finished reading this book, and I found it so wonderfully insightful that I cited it throughout a recently filed brief in the Fifth Circuit Court of Appeals.  Professor Wood, as the title suggests, tackles the concept of diversity -- from a historical and anthropological starting point through to a modern and "progressive" one.  He explains how the current strive for diversity is a very modern invention that began with a singular opinion by Supreme Court Justice Powell in Regents of the University of California v. Bakke.  But the book is much more than a historical recitation of events.  Professor Wood argues in favor of a colorblind government by laying bare the philosophical foundations of progressive "diversity."

My review of The Dirty Dozen

Author: Timothy Sandefur

The journal Reason Papers has published my review of Robert Levy and William Mellor's book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

"How to" resist eminent domain conference in So. Cal. Saturday

Author: Timothy Sandefur

On Saturday, I'll be speaking at the meeting of Municipal Officials for Redevelopment Reform, California's number one resource for opposing the abuse of eminent domain. If you want to learn more about the abuse of eminent domain in California and what you can do to protect yourself and your neighbors, you simply must attend one of MORR's conferences. And there's still space available for Saturday's event, at the Ontario Airport Marriott, starting at 8:30 a.m.

U.S. Supreme Court upholds freedom of economic choice in arbitration case

Author: Timothy Sandefur

The Supreme Court today decided a case called Stolt-Nielsen S.A. v. Animal Feeds International Corp., and holding that when people don’t agree to be bound by certain kinds of arbitration agreements, they can’t be forced into arbitration against their will. We at PLF have often filed briefs in cases involving arbitration agreements because they represent an important element of the freedom of choice.

Clean Water Act - another federal power grab

Author: Reed Hopper

Last week Representative James Oberstar (D) introduced "America's Commitment to Clean Water Act," (ACCWA) H.R. 5088.  The authors claim this bill clarifies and corrects misconceptions created by the "Clean Water Restoration Act," H.R. 2421, which had been previously proposed to "restore" federal authority to regulate "all" waters in the United States.  ACCWA was accompanied by a comparison of the old bill and new bill which can be found here.  But, that comparison is misleading.  Therefore, Pacific Legal Foundation has reproduced the comparison here, with our own comments added in the last column.  These comments demonstrate that the new bill, like the old bill, is a sheep in wolves' clothing and is designed to stretch federal authority beyond any historic limits.   

The way land use control ought to work

Author: Timothy Sandefur

The view of southern California's landmark Hollywood sign will be preserved thanks to a large donation from Playboy founder Hugh Hefner. Note the difference between this kind of land use control and the kind imposed by government planners: the owners of the nearby land, who had proposed development that would interrupt the view, were compensated by a voluntary agreement--and that agreement represents what people actually want done with the land. By contrast, when government imposes land use controls--such as "viewshed" ordinances--property owners are frequently deprived of their rights without compensation--and all to serve what bureaucrats think is a good idea, not what the people actually consider worth paying for.

Here are some related thoughts from Randal O'Toole.

Ninth Circuit joins the War on Wal-Mart

Author: Timothy Sandefur

It's no secret that anti-free market groups, particularly intellectuals and labor unions, have declared war on Wal-Mart. The company's tremendous success in providing consumers with products they need at prices they can afford--and rendering unions superfluous by treating their workers well--is a major threat to those who would use a pretended compassion for the working man as a cover for their efforts at expanding government control over our economic choices.

One major battle in the left's assault on Wal-Mart is a lawsuit called Dukes, which has the distinction of being the largest class action lawsuit ever filed. The attorneys claim to represent the interests of 1.5 million past and present female Wal-Mart employees, claiming that the company discriminated against them (in hiring and promotion decisions) because they're women. The evidence of this alleged discrimination: 120 affidavits from Wal-Mart employees, expert witness testimony from statisticians, and a statistical test that shows that women are less represented in management positions.

Among the many problems with the allegations, though, is that Wal-Mart has no central policy regarding hiring and promotions--such decisions are made by local managers. The trial lawyers who filed the case aren't letting that deter them, though. They claim that that is the discriminatory policy for which Wal-Mart can be sued. This means that the women who are suing allege a wide variety of different claims, based on very different facts and circumstances--all of which makes this case inappropriate for class action procedures. 

Fighting the Florida interior designer cartel

Author: Timothy Sandefur

If you want to be an interior designer in Florida, you have to have six years of higher education--just to take the licensing examination. On top of the expense of that schooling, it can cost as much as $2,000 to take the exam, if you count study materials, exam fees, and travel and lodging costs. And what public good is accomplished by imposing all these costs on would-be entrepreneurs? None. Nothing. Nada. Some ten states have issued reports agreeing that there is no evidence that the public is in any danger from people practicing interior design without a license.

No, the real purpose of such laws is to create a cartel, protected against fair competition by government. If you're in Florida, and you have an eye for making people's homes or offices look nice, watch out! Advising people how to decorate an office building can be a crime.

Farrakhan v. Gregoire: Is the Ninth Circuit having second thoughts about felon voting rights?

Author: Ralph W. Kasarda

On January 5, 2010, the Ninth Circuit reversed a district court decision and held, in Farrakhan v. Gregoire, that the State of Washington's felon disenfranchisement law violates the federal Voting Rights Act.  In a 2-1 decision, the court concluded that the felons' showing of statistical disparities among races in Washington's criminal justice system was proof of discrimination.  According to two judges, this showing of disparate impact was sufficient to prove that felons were being denied the right to vote based upon their race.  By its decision, the court placed in jeopardy similar laws throughout the Western United States - all of the remaining eight states within the court's jurisdiction.

However, the court may be having second thoughts.  On January 28, 2010, the court granted Washington's motion to stay the issuance of the court's mandate to allow Washington to appeal the decision to the Supreme Court.  Then, on February 12, 2010, the court issued an order directing the parties to the Farrakhan case to file briefs setting forth their respective positions on whether the case should be reheard en banc.