Newsletter - June 2016

Most of you know the story about the frog in water and turning the heat up very slowly.  Eventually, the frog is cooked but the increase in heat was so slow that the frog never realized what was happening.

That is what is happening in the United States given the every increasing flood of regulations that are pervasive in every part of our daily lives.  Here are some examples.

In the case of U.S. Army Corps of Engineers v. Hawkes the issue was the claim that Clean Water Act regulators cannot operate as a law unto themselves.

Kevin Pierce owns businesses named Hawkes Co. which provides peat for golf courses and other sports turf applications and Pierce Investment and LPF Properties which own some peat land in Minnesota.  Their land was classified by the Corps of Engineers as “wetlands” and therefore as “waters of the United States.”

The Pierces wanted to challenge this “jurisdictional determination” (JD) because the nearest traditional navigable water is the Red River of the North, more than 120 river miles away.  In fact, the Corps’ own hearing officer held that the test for a jurisdictional wetland was not met under the Clean Water Act. 

However, the Corps refused to relent and would not agree that the Pierces could ask the courts for a second opinion.  The Obama Administration and the Corps claimed that there was no right to judicial review of a JD until the landowner negotiated a lengthy and costly permit process and had been turned down. 

Pacific Legal Foundation took this case and eventually the case was heard in the Supreme Court. The Justices voted 8 to 0 that the Pierces can take their case to court.  Chalk up a victory for a rational government.

Another classic case is Levin v. City and County of San Francisco.  Again, people had to go to court to strike down Orwellian laws and regulations.

The 2014 amendments to the San Francisco rent control ordinance required that certain payments be made to tenants who were being evicted.  In order to withdraw the unit from the rental market, property owners were required to pay the greater of the lump sum required under the original ordinance or an amount equal to 24 times the difference between the unit’s current monthly rate and the fair market value of a comparable unit in San Francisco.  The Levins wanted to use one part of their property which was rented out and that meant the tenants would have to leave.  For the Levins the amount they would have had to pay to the tenants was $118,000 to simply enforce the landlord’s right under the 1985 state law known as the Ellis Act to exit the rental business.

The United States District Court of California struck down the 2014 ordinance stating that it constituted an exaction that violated the Takings Clause.  The U.S. District Court noted that the San Francisco ordinance violated private property rights guaranteed by the Constitution and unfairly punished landlords for market conditions over which they had no control.

Center for Competitive Politics versus Harris is a case that directly affects people who donate money to various groups.  Under California law, nonprofits that receive donations from California residents are required to

submit a copy of their IRS Form 990 to the state’s Attorney General.  Historically, the Center for Competitive Politics (CCP) has provided the public version of the form that redacts the names and addresses of its donors. 

Last year, Attorney General Kamela Harris demanded that CCP turn over names and addresses of every donor who contributed more than $5000.  The argument that CCP made against this demand was that such a demand violates the First Amendment’s protection of private association and speech.   The Ninth Circuit Court of Appeal concluded that the disclosure requirement imposes no First Amendment injury and upheld it under purported “exacting scrutiny.”

CCP had two questions in their petition.

1)Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury:

2)Whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.

This case is very important because in other highly controversial issues, people have lost their jobs when it has been disclosed that they donated to certain causes or supported certain legislation. 

Pacific Legal Foundation filed an amicus brief with the Supreme Court asking for a review of the Ninth Court’s decision.  The Supreme Court declined to review the decision.  It is possible that this case will be brought before other circuit courts in the country.

The three cases cited in this newsletter are just the tip of the iceberg when it comes to government intrusion into our lives.  If more Americans don’t start paying attention and becoming aware of what is going on more and more of our rights will be gone.  It appears that it is necessary for Americans to constantly fight these government intrusions into our lives by taking these cases to court.