Pacific Legal Foundation (PLF) is one of the most active and effective public interest legal organizations in filings before the Supreme Court of the United States. PLF has had an unprecedented seven wins in its last seven direct appearances before the High Court for its clients, including two in the last two years.
The following cases illustrate PLF’s caseload, both direct and amicus cases before the High Court:
Murr v. State of Wisconsin and St. Croix County
Issue: In a regulatory taking case, does the “parcel as a whole” concept described in Penn Central Trans. Co. v. City of New York (1978) establish a rule that two legally distinct, but commonly owned, contiguous parcels must be combined for takings analysis purposes? Petitioners are four siblings who own two adjacent waterfront parcels in St. Croix, Wisconsin. Their parents bought Lot F in 1960 and built a recreational cabin on it; they bought Lot E in 1963 as an investment for separate development, which would have been allowed at that time. Under ordinances passed in the 1970s, however, Lot E can now neither be developed nor sold separately. Accordingly, petitioners argue that the government owes them compensation under Lucas v. South Carolina Coastal Council (1992). When determining whether there has been a taking of property, the Supreme Court has held that courts must consider the “parcel as a whole.” The “relevant parcel” question asks: What is the whole parcel? Petitioners contend that Lot E is the whole parcel at issue, since it was acquired separately, at a later time, and for a different purpose than Lot F. They also assert that governments cannot effectively extinguish a property right without compensation just because the regulated party owns adjacent lots of real property.
Status: The Wisconsin Court of Appeals ruled for the government, holding that “contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein.” The Wisconsin Supreme Court declined review. PLF filed the cert. petition for petitioners on August 14, 2015.
Kent Recycling Services, LLC v. U.S. Army Corps of Engineers
Issue: For almost two decades the Army Corps of Engineers has exempted from Clean Water Act jurisdiction all wetlands that had been converted to agricultural use prior to 1985, no matter how the “prior converted croplands” are used today. Under this rule, “prior converted croplands” can lose their exemption only if they are abandoned for a number of years and the land regains its wetland characteristics. But now, pursuant to a “policy pronouncement,” the Corps has adopted a new standard that withdraws the prior converted croplands exemption upon a change in use. This could have a drastic effect on land use, as our client Kent Recycling has discovered firsthand.
Status: The U.S. Supreme Court denied the petition for writ of certiorari on March 23, 2015. Petitioner filed its petition for rehearing on April 16, 2015. Awaiting decision on petition for rehearing.
Hawkes Co., et al. v. U.S. Army Corps of Engineers
Issue: Through a “Jurisdictional Determination,” the Army Corps of Engineers designated property owned by The Hawkes Co., Inc., Pierce Investment Company, and LPF Properties, in Minnesota, as “wetlands” over which the Corps has regulatory authority. On appeal, the threshold issue is whether property owners have the legal right to bring a court challenge to such a regulatory finding.
Status: The Eighth Circuit Court of Appeals issued a favorable decision on April 10, 2015. Appellee filed a Petition for Rehearing En Banc on June 9, 2015, and it was denied on July 7, 2015. Appellee filed a Petition for Writ of Certiorari on September 8, 2015.
California Building Industry Association v. City of San Jose
Issue: A San Jose, CA ordinance withholds housing development permits unless the developer agrees to either sell 15% of the new homes for less than market value to city-designated buyers or pay the city a fee. In two previous cases won by PLF, Nollan v. California Coastal Commission (1987) and Koontz v. St. Johns River Water Management District (2013), the Supreme Court held that governments may only demand exactions from a permit applicant that is necessary to mitigate a problem caused by the applicant. Petitioner California Building Industry Association (CBIA) argues that San Jose’s conditions are unconstitutional exactions because new housing does not increase the need for “affordable” housing. CBIA further asserts that such a permit condition is subject to scrutiny even though legislatively imposed and is invalid under the unconstitutional conditions doctrine as set out in Koontz, Dolan v. City of Tigard (1994) and Nollan.
Status: The California Supreme Court upheld the ordinance under rational basis review, concluding that the permit requirements: (1) do not need to be reasonably related to a negative impact of the building project; and (2) are not a transfer of property interest covered by the Takings Clause. It also held that the conditions and fees in lieu thereof were essentially price controls, which the legislature could impose on all home sales in California(!)—although they were only imposed so far on developers like petitioner. PLF filed its cert. petition for CBIA on Sept. 14, 2015; it expects broad amicus support.
Fisher v. University of Texas at Austin
Issue: As Court-watchers are aware, the University of Texas at Austin uses racial preferences in its undergraduate admissions decisions, despite not doing so for many previous years and achieving substantial minority enrollment under Texas’s Top Ten Percent Law. Petitioner Abigail Fisher argues that UT’s renewed and enhanced use of race to achieve greater and more fine-tuned levels of classroom “diversity” violates the Equal Protection Clause of the Fourteenth Amendment. When the Court considered her case in 2013 (Fisher I), it held that the Fifth Circuit erred by not properly applying strict scrutiny in upholding the university policy. On remand, the Fifth Circuit upheld the policy again. The issue presented in this round is whether the Fifth Circuit’s re-endorsement of the UT’s racial preference plan can be sustained under the Court’s decisions interpreting the Equal Protection Clause, including Fisher I. PLF’s amicus briefs at the cert. stage and on the merits argue that there is no compelling interest in the use of racially discriminatory admission policies.
Status: The Supreme Court granted cert. on June 29, 2015. Petitioner Fisher filed her opening brief on Sept. 3, 2015. PLF filed its amicus brief on the merits on Sept. 10, 2015. Oral argument has not been scheduled yet.
Sissel v. United States Department of Health & Human Services
Issue: After the Supreme Court upheld the Affordable Care Act’s (ACA) individual mandate penalties as a “tax,” PLF amended its complaint, on behalf of Iraq War veteran and small business owner, Matt Sissel, to argue that such tax violated the Origination Clause, because the ACA and all its taxes originated in the Senate. Sissel argues the ACA violates the Origination Clause for two independent reasons: (a) the original House bill was not one “for raising Revenue” within the meaning of the Clause so the Senate could not amend it with new taxes, and even if it was, (b) the Senate’s complete gut of an unrelated House bill and substituting the ACA, retaining only the House bill number, was not a constitutional “Amendment” of a revenue bill within the meaning of the Clause.
Status: On July 29, 2014, a D.C. Circuit panel ruled that the ACA mandate penalty tax’s “primary purpose” was not to raise revenue, and therefore, such tax does not implicate the Origination Clause. PLF filed a petition for rehearing en banc and waited ten months for an answer. On August 7, 2015, the D.C. Circuit denied the petition over the strong dissent of four judges and with an expanded response from the original panel members. In a 32-page dissent, Judge Kavanaugh argued that the ACA “easily qualifies as a ‘bill for raising Revenue,’” and that the panel’s analysis was dangerous and “would degrade the House of Representative’s prerogative to originate revenue-raising bills.” The dissent argued that en banc review was necessary to correct the panel’s serious assault on the Constitution’s taxpayer protections, even though it would have upheld the constitutionality of the ACA. It believes the Senate’s complete gut-and-substitute maneuver with unrelated text constituted a valid amendment of a House revenue bill. The original panel members responded to the dissent with an expanded opinion of their own, rejecting the alternative holding and warning that it would “treat the Origination Clause as empty formalism.” Sissel argues that the dissent and original panel members are both correct in pointing out the flaws of the opposing opinions. PLF will file a cert. petition near the end of October.
Friedrichs v. California Teachers Association
Issue: California law requires all public school teachers to pay dues to the labor union that represents them, regardless of whether they are union members. Unless they expressly opt-out during a limited time-period, California teachers are charged an additional amount that’s used to support political and ideological activities. In Abood v. Detroit Board of Education (1977), the Court upheld the constitutionality of requiring public-sector non-union members to pay a monthly “agency fee” purportedly used for bargaining issues. The two questions presented in this case are: (1) Whether Abood should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. In its cert.- and merits-stage amicus briefs supporting Petitioner Friedrichs and other California teachers, PLF argues that Abood was based on an unrealistic view of public-employee unionism, which has resulted in the infringement of individual rights under the First Amendment.
Status: The Supreme Court granted cert. on June 30, 2015. Petitioner Friedrichs filed her opening brief on Sept. 4, 2015. PLF filed its amicus brief supporting Friedrichs on Sept. 11, 2015. Respondent California Teacher Association’s brief is due Oct. 26, 2015. Oral argument has not been set yet.
MHN Government Services, Inc. v. Zaborowski
Issue: Pursuant to an arbitration agreement, the parties in this case agreed to arbitrate their disputes. They further agreed that if any specific terms of the agreement were invalid, a court should simply sever the offending terms and still honor the parties’ agreement. California courts apply an anti-severance rule to arbitration agreements, but not ordinary contracts. Applying this rule, the Ninth Circuit declined to sever separate provision in the agreement it determined were unconscionable and invalidated the entire arbitration agreement. The question presented in this case is whether California’s arbitration-only severability rule is preempted by the Federal Arbitration act (FAA), which states that agreements to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” PLF’s amicus brief argues that California’s rule disproportionately—and adversely—affects arbitration contracts, in violation of the FAA, which protects the freedom of contract.
Status: MHN Government Services filed its cert. petition on June 10, 2015. PLF filed its amicus brief supporting Petitioner on July 13, 2015. On July 23, 2015, the Supreme Court called for Zaborowski to respond. Zaborowski filed his brief on August 24, 2015. The Supreme Court is scheduled to consider the case at its September 28, 2015 conference.
Center for Competitive Politics v. Harris
Issue: 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, however, the Attorney General demanded that CCP turn over the names and addresses of every donor who contributed more than $5,000. CCP argues that this demand violates the First Amendment’s protection of private association and speech. The Ninth Circuit concluded that the disclosure requirement imposes no First Amendment injury and upheld it under purported “exacting scrutiny.” The questions presented in CCP’s cert petition are: (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; and (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. PLF’s amicus brief argues that requiring organizations to prove that disclosure will lead to retaliation will chill speech in violation of the First Amendment.
Status: CCP filed its cert. petition on July 30, 2015. PLF filed its amicus brief supporting CCP on September 2, 2015. The response to the petition is due October 2, 2015.
DIRECTV, Inc. v. Imburgia
Issue: When Amy Imburgia sued DirecTV to dispute early termination fees, her service contract explicitly said that any disputes would be resolved in individual arbitration pursuant to the Federal Arbitration Act (FAA) unless “the law of your state would find this agreement to dispense with class arbitration procedures unenforceable.” In 2005, the California Supreme Court announced a rule that consumer class-action waivers in consumer arbitration agreements were unenforceable. However, in 2011the Supreme Court held that this rule was preempted by the FAA. Nevertheless, the California Court of Appeal permitted Imburgia to bring her suit as a class action, reasoning that “law of your state” must be interpreted without regard to any preemptive effect of the FAA. A Ninth Circuit decision interpreting the same contract found this argument “nonsensical” because a preempted law—whether a statute or a common law rule—is a nullity; it cannot be “the law of your state” because once it is held preempted, it is not “the law.” The issue is this case is whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the FAA requires the application of state law preempted by the FAA. PLF’s amicus brief argues that, under the Supremacy Clause, preempted state law must yield completely.
Status: The Court granted cert. on March 23, 2015. Petitioner DIRECTV filed its opening brief on May 29, 2015. PLF filed its amicus brief supporting DIRECTV on June 1, 2015. Respondent Imburgia filed her brief on July 20, 2015. Oral argument will be held on October 6, 2015.
Spokeo v. Robins
Issue: Spokeo, Inc. runs a website that collects and publishes consumer “credit estimates.” Thomas Robins sued Spokeo in federal court for willful violations of the Fair Credit Reporting Act because it published false information—specifically, that Robins was older, married with children, had a graduate degree, and was wealthy. The issue raised in this case is whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm by allowing individuals to sue based on a bare violation of a federal statute. The trial court held that Spokeo’s statutory violations only caused speculative harm to Robins, and that he, therefore, lacked Article III standing. The Ninth Circuit reversed, holding that any plaintiff who alleged a willful statutory violation could be assumed to suffer an injury caused by that violation. PLF’s amicus briefs at the cert. stage and on the merits argue that Congress cannot unilaterally expand Article III standing beyond its constitutional limits. They also argue that lawsuits that don’t involve actual personal harm are a drain on economic and judicial resources.
Status: The Court granted cert. on April 27, 2015. Petitioner Spokeo filed its opening brief on July 2, 2015. PLF filed its merits amicus brief supporting Spokeo on July 7, 2015. Respondent Robins filed his brief on Aug. 31, 2015. Oral argument is set for Nov. 2, 2015.