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9th Circuit Ferry Fight Has Potential To Free Entrepreneurs Nationwide, Turn Back Economic Protectionism

9th Circuit Ferry Fight Has Potential To Free Entrepreneurs Nationwide, Turn Back Economic Protectionism

Pasadena, Calif.—On Monday, March 30, the 9th U.S. Circuit Court of Appeals will consider a case in which two entrepreneurs have spent 23 years trying to travel 55 miles by boat—and they have yet to reach their destination.

Jim and Cliff Courtney from Washington state have endured a 23-year ongoing legal battle for the right to use the nation’s waters in pursuit of a livelihood. But rather than allow Jim and Cliff to pursue a living on the 55-mile-long Lake Chelan in the remote northern Cascades, the government has instead used a century-old public ferry licensing law to prevent them from even shuttling customers of their own businesses at the far end of the lake. Since 1927, the government agency that oversees the granting of such licenses has used the law to block competition on the lake, granting only two ferry licenses in nearly a century.

Because of the outbreak of the COVID-19 virus, the court will consider the case based on the legal briefs filed by attorneys with no oral argument. The case had been scheduled to be argued in Seattle on March 30, but it will now be considered by a three-judge panel in Pasadena, California.

“This case is being closely watched by individuals who have carefully studied the Constitution,” said Institute for Justice (IJ) Senior Attorney Michael Bindas. IJ represents the Courtney brothers in their decades-long legal quest to provide boat service on Lake Chelan. “A favorable decision in this case can both protect the rights of the Courtneys and begin the process of restoring meaningful protection for fundamental rights—including economic rights—that the framers of the 14th Amendment sought to guarantee all Americans.”

Jim and Cliff’s case hinges on the court’s interpretation of a constitutional provision and a landmark precedent that are well-known to constitutional scholars:  the Privileges or Immunities Clause of the Constitution’s 14th Amendment and the Slaughter House Cases, in which the U.S. Supreme Court upheld the power of the government to create monopolies in certain industries. But, interestingly, in that case, the justices ruled that among the rights (known then as “privileges or immunities”) the government had to respect was the “right to use the navigable waters of the United States”—the very issue at heart in Jim and Cliff’s case with their private boat service.

When it first heard the brothers’ case in 2013, the 9th Circuit instructed them to secure a definitive ruling from the Washington state courts as to whether the so-called “public convenience and necessity requirement” applied to the limited service the brothers wished to provide. (The public convenience and necessity requirement is essentially a trial held by the state licensing board that allows existing service providers to veto potential competitors, saying no new service providers are “necessary”—the equivalent of allowing McDonald’s to veto the building of a Burger King in the same market.) After five years, the Washington courts held that it does, in fact, apply. The Courtneys accordingly returned to federal court in 2018 to litigate their Privileges or Immunities Clause claim, committed to beginning the process of restoring the clause to its proper role in protecting the right of all Americans to participate in the economic life of the nation.

Institute for Justice President and General Counsel Scott Bullock said, “Entrepreneurs across the country are fed up with fighting laws designed for no other purpose than to protect entrenched business from competition. That’s precisely what Jim and Cliff have been fighting against since day one in this case—and what they hope to end by a victory for their economic liberty rights here.”

ShopInPlaceChi.com Helps Chicagoans Track Local Small Businesses Offering Essential Products

CHICAGO—A brand new website, www.ShopInPlaceChi.com, is offering Windy City consumers a place to find neighborhood small businesses that are still selling products essential for residents sheltering at home. The website is currently live and welcomes new submissions from Chicago small businesses selling products in categories such as bath and cleaning products, books, educational supplies, games and toys, and food.

The website is free to the public courtesy of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago (IJ Clinic). The IJ Clinic provides free legal assistance, support and advocacy for low-income entrepreneurs in Chicago.

“Chicagoans are doing their part to stay safe by staying home, and Chicago small businesses want to help them by selling products they need,” said IJ Clinic Director Beth Kregor. “Chicago is rich with innovative small businesses that provide the things we need to keep our bodies healthy, our stomachs happy, our homes clean and our kids learning. Windy City residents who want to shop local and support their neighborhood businesses can visit ShopInPlaceChi.com today.”

Businesses interested in being listed on the website should visit shopinplacechi.com/submit-your-business/ and fill out a short form with information about the products they offer, their neighborhood locations, and how consumers can safely purchase their products through delivery or curbside pickup. Listings will be added after a review by IJ Clinic staff and volunteers.

The IJ Clinic also has a webpage with information on changes to Chicago’s local business laws and regulations during the COVID-19 outbreak, federal legislation, and links to other resources at: ij.org/COVID19resources. According to Kregor, “Big businesses get legal updates from big law firms on a daily basis, and we want to make sure that smaller, local businesses get the information they desperately need too.”

IJ Clinic Director Beth Kregor is available for interviews via phone or teleconference. Contact Andrew Wimer, IJ Assistant Communications Director, at awimer@ij.org or (703) 298-5938 to arrange.

Police Stole $225k in Cash and Coins, and the Courts Said “Okay”

Arlington, Va.—Seven years ago, police officers in Fresno, California, executed search warrants on the homes and business of Micah Jessop and Brittan Ashjian, who owned a business operating and servicing ATMs. Police were investigating a report of illegal gambling. Although neither was ever charged with a crime, police seized nearly $275,000 in rare coins the men owned and cash they used to restock their business’ ATMs. When the investigation was over, police said they’d seized only approximately $50,000 in cash; they kept the remaining cash and the coins for themselves.

Most Americans would say this was a clear-cut case of theft, but when Jessop and Ashjian sued the police, the federal courts threw out their case, citing a controversial legal doctrine called “qualified immunity.” Now, the U.S. Supreme Court will soon decide whether to hear their case, and the Institute for Justice (IJ), as part of its recently launched Project on Immunity and Accountability, has filed an amicus brief urging the Court to take up the case and put an end to this dangerous doctrine once and for all.

“No one should be above the law, least of all those who are supposed to be enforcing it,” said IJ attorney Patrick Jaicomo. “And yet, according to the federal courts, police officers who steal money from people cannot be held accountable because the courts have never ruled that it is unconstitutional for the police to steal from someone. No one really believes that theft is a reasonable seizure permitted by the Constitution. The Ninth Circuit’s decision shows how absurd qualified immunity has become.”

After the search, Jessop and Ashjian filed a lawsuit, claiming that government theft violates the Fourth Amendment right against unreasonable seizures. But both the trial court and the Ninth Circuit held that they did not need to address the issue because—even if the theft was a constitutional violation—the officers were immune under the qualified immunity doctrine.

Qualified immunity traces back to 1982, when the U.S. Supreme Court announced a rule that government officials would be liable only if their specific actions had already been held unconstitutional in an earlier court case. They called the new rule “qualified immunity.” The Court’s decision was a drastic departure from the historical standards of government accountability. At the founding and throughout the nineteenth and earlier twentieth centuries, courts simply decided whether a government official’s actions were unlawful and, if they were, ordered a remedy. It was up to the other branches of government to decide whether the official should be reimbursed (if he had acted justifiably) or not (if he had acted in bad faith).

Unfortunately, Jessop and Ashjian’s case is not an outlier. It is the result of forty years’ worth of Supreme Court decisions that make it effectively impossible to hold government officials accountable, even when they intentionally break the law. The courts are so concerned with protecting the government that they are willing to shield even those officers who act in bad faith.

“It’s time for the Supreme Court to end the failed experiment of qualified immunity,” said IJ Attorney Anya Bidwell. “The fundamental purpose of the Constitution and the Bill of Rights is to protect Americans from government abuses. But thanks to qualified immunity, police can literally come into your home and steal from you, and the courts will shield them from liability. In the brief we filed today, IJ is urging the Court to reconsider the entire doctrine of qualified immunity and revoke the license to lawless conduct it provides.”

The Institute for Justice’s Project on Immunity and Accountability is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, the government must follow the Constitution. In addition to filing amicus briefs, like this one, IJ has also filed three petitions with the Supreme Court on behalf of Americans whose rights were violated by police but were barred from seeking redress due to governmental immunity. Those cases are all pending with the Court.

Food Truck Freedom Legislation Passes Florida Legislature

Tallahassee, Fla.—Local governments across Florida will no longer be able to ban food trucks or require food truck operators to get an additional local license in order to vend under a bill passed by the Florida House and Senate today. The provision is part of a broader bill to reform occupational licensing in the state and is expected to be signed by Gov. Ron DeSantis soon.

The Institute for Justice (IJ), a public interest law firm with an office in Miami, represents food truck owners across the United States and in 2018 sued the city of Fort Pierce, Florida over its excessive food truck restrictions. Fort Pierce backed away from its restrictions after a Florida Circuit Court ordered the city to stop enforcement during the course of the lawsuit.

“It’s not the government’s job to pick winners and losers in the marketplace,” said IJ Florida Office Managing Attorney Justin Pearson. “That right belongs to consumers. We applaud the Legislature’s action to support entrepreneurship and consumer choice across the Sunshine State.”

Through its National Street Vending Initiative, IJ challenges anti-competitive laws that harm street vendors by unconstitutionally restricting their right to earn an honest living. The initiative helps vendors defeat such restrictions by bringing lawsuits in state and federal courts, equipping vendors to fight these restrictions through activism, and educating the public about the social and economic importance of street vending. IJ’s report on “Seven Myths and Realities About Food Trucks” tackles many of the common arguments against allowing food trucks. IJ also recommended policy proposals to encourage food trucks in the report “Food Truck Freedom.”

Florida Legislature Approves Occupational Licensing Reform Bill

Tallahassee, Fla.—With House and Senate passage of the Occupational Freedom and Opportunity Act, job-creating licensing reform is now on its way to Gov. DeSantis. The bill, HB 1193, is the product of a years-long effort to reduce occupational licensing burdens for a number of professions. The Institute for Justice (IJ), a non-profit law firm that represents entrepreneurs in licensed occupations, applauds the passage and looks forward to the Governor’s signature on one of his top legislative priorities this session.

“Today is a great day for Floridians looking for jobs and for people across the country thinking about moving to the Sunshine State,” said IJ Florida Office Managing Attorney Justin Pearson. “Our research indicates that this reform could create thousands of jobs. Better still, many of those jobs will be created in the disadvantaged communities where those jobs are needed most. Congratulations to the members of the House and Senate on passing legislation that unlocks opportunity for hard-working Floridians.”

Highlights of the bill include:

  • Waiving the requirements of the Commercial Driver License for military service members with similar training and experience.
  • Exempting all hair braiders (including African-style hair braiders), nail technicians, hair wrappers, body wrappers, makeup artists, boxing announcers and boxing timekeepers from being required to obtain a license.
  • Replacing the interior design license with a registration requirement.
  • Creating universal recognition for barbers licensed in other states.
  • Reducing required educational hours for cosmetology licenses and full barbers’ licenses.
  • Reforming, reducing or narrowing licensing requirements for landscape architects, diet coaches, certain types of construction subcontractors, alarm system installers and geologists.

IJ research on licensing in Florida demonstrated the necessity for reform. The 2018 IJ study “At What Cost?” found that more than one in five Floridians require a license to legally work and estimated that Florida loses nearly 130,000 jobs because of its high licensing burden. A conservative measure of the economic value lost to these regulations totaled nearly $460 million. All told, because of licensing, the Florida economy may lose $11.6 billion in “misallocated resources” annually.

IJ research demonstrates that Florida could create more economic opportunity through reduced licensing burdens. The 2017 edition of “License to Work” found that Florida has the fifth most burdensome licensing laws in the nation. Florida is one of only four states that license interior designers, currently requiring six years of education and $1,120 in fees. Florida also requires African-style hair braiders to acquire a full cosmetology license, even though most cosmetology schools do not teach braiding.

Governor Signs Bill Expanding Wyoming Food Freedom Act

Arlington, Va.—The nation’s best law for homemade food businesses is about to become even better. Today, Gov. Mark Gordon signed HB 84, a bill that will expand the Wyoming Food Freedom Act. Along with 48 other states, Wyoming lets residents sell shelf-stable food made at home, like baked goods, jams, and jellies. But Wyoming Food Freedom Act goes much farther and also allows perishable foods, meaning residents can make and sell almost any homemade food, drink or meal imaginable (except those that contain meat), so long as the seller informs the consumer that the food is homemade and not regulated.

However, Wyoming’s law on shelf-stable treats still lagged behind other states in two important ways. First, it only allowed sales directly to consumers, meaning that a homemade food producer couldn’t even sell fresh bread or cookies to a coffee shop or grocer. To fix this, HB 84 will finally legalize selling shelf-stable homemade foods to retail shops and grocery stores. With this reform, Wyoming will join the 17 states that already allow the sale of homemade foods to retailers.

Second, any purchased homemade food could only be eaten in the consumer’s home. Wyoming law not only made it illegal to eat a homemade piece of pie at a picnic or on the go, it also banned the sale of homemade wedding cakes. HB 84 will repeal this bizarre restriction, which is found on the books in only a handful of other states.

“HB 84 will create more income for farmers, stay-at-home parents, retirees, and anyone else who has talent in the kitchen,” said Rep. Shelly Duncan, the bill’s lead sponsor. “The bill will also allow consumers to buy more fresh, healthy and local food at affordable prices.”

First enacted in 2015 and then expanded in 2017, the Wyoming Food Freedom Act is the most permissive homemade food law in the country. Since the law took effect in 2015, there has not been a single outbreak of foodborne illness from food sold under the law. In addition, the number of farmer’s markets in the state—a proxy used to measure homemade food businesses—has soared by nearly 70% over the past 5 years. Given this success, it’s perhaps unsurprising that HB 84 passed the Wyoming State Legislature almost unanimously.

The food freedom movement is spreading across the country, creating new economic opportunities, especially for women and rural communities. Instead of having to pay tens of thousands of dollars a year to rent a commercial kitchen and comply with burdensome food licensing regulations, people can now turn their home kitchens into business incubators.

“Wyoming’s food freedom law has already created much needed income for hundreds of families across the state and made it easier for people to buy fresh and local food,” said Institute for Justice Senior Attorney Erica Smith, who worked with Rep. Duncan on the bill. “HB 84 is a commonsense change to catch Wyoming up to other states.”

Homeowners Appeal to U.S. Supreme Court in House-Destruction Case

Arlington, Va.— In 2015, an armed shoplifter fleeing the police broke into a Greenwood Village, Colorado, home and refused to come out. After taking gunfire from the shoplifter, the police laid siege to the home. During a 19-hour standoff, officers used explosives, high-caliber ammunition and a battering ram mounted on a tank-like vehicle called a BearCat against the house. The fugitive was apprehended, but the home was totaled. And the homeowners were never compensated.

Today, the Institute for Justice (IJ) asked the U.S. Supreme Court to hear the appeal of Leo, Alfonsina and John Lech, seeking compensation for the destruction of the family’s house. The 10th U.S. Circuit Court of Appeals held in October 2019 that as long as the government uses its “police power” to destroy property, it cannot be required to provide compensation for that property under the U.S. Constitution’s Takings Clause.

“For well over a century, the Supreme Court has enforced a simple rule: The government has to pay for private property it takes or destroys,” explained IJ Attorney Jeffrey Redfern. “Today, we asked the Court to apply that simple rule in the Lechs’ case. If the government requires a piece of property to be destroyed, then the government should pay for it—that’s just as true regardless of whether the people doing the destroying are the local school board or the local police.”

The Lechs’ case, originally brought by Colorado attorney Rachel Maxam, who continues to represent the family alongside IJ, argued that the complete destruction of the house was a “taking” that required compensation under the U.S. Constitution. But a three-judge panel disagreed, ruling that actions by law enforcement officials could never amount to a taking, no matter what, and so the appropriate amount of compensation was zero dollars.

“We have tried for years to get Greenwood to do the right thing and compensate us for the complete destruction of our home,” said Leo Lech. “My son’s family were very literally thrown out into the street with the clothes on their backs, offered $5,000 and told to ‘go deal with it.’ We’re now asking the U.S. Supreme Court to protect our constitutional right for just compensation.”

The petition filed by IJ today asks the Supreme Court to uphold its precedents requiring just compensation under the Fifth Amendment. The Supreme Court has never found that the use of police power exempts government from paying when property is taken or destroyed. The appeal does not second-guess the police department’s use of force or tactics used to apprehend the suspect, only whether the homeowners or the public should be made to bear the cost incurred by the police department’s actions.

“The police are allowed to destroy property if they need to in order to do their jobs safely,” said IJ Senior Attorney Robert McNamara. “But if the government destroys someone’s property in order to benefit the public, it is only fair that the public rather than an innocent property owner pay for that benefit.”

“The Supreme Court is meant to be the great bulwark of American liberty, ensuring that constitutional rights are enforced and holding government accountable when it strays from the Constitution,” said IJ President and General Counsel Scott Bullock. “That is exactly what it should do in the Lechs’ case. Property rights are the foundation of our rights. The lower court’s ruling that government officials can purposefully destroy someone’s home without owing a dime in compensation is dangerous and un-American. The Institute for Justice is committed to seeing it overturned, for the Lechs and for the protection of property owners across America.”

Tennessee Parents Defend ESA Program From ACLU Lawsuit

Arlington, Va.—Today, a group of parents partnered with the Institute for Justice filed to intervene to defend the Tennessee Education Savings Account Pilot Program, an educational choice initiative, against a lawsuit by the ACLU challenging its constitutionality. The filing follows today’s decision by the Davidson County Chancery Court to permit the same parents to intervene in a February 6 lawsuit brought by the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education, against the same program. By formally intervening in the lawsuit, the parents will ensure that the thousands of Tennessee families benefiting from the program are represented as the lawsuit progresses through the courts.

“Tennessee’s ESA program is constitutional, and IJ stands ready to defend it in court so that Tennessee families can send their children to the school that best fits their children’s needs,” said Arif Panju, an IJ managing attorney. “This lawsuit, like the lawsuit filed by the government last month, places the wants of a public school bureaucracy ahead of the needs of Tennessee parents and children.”

The program was signed into law in May 2019 by Tennessee Gov. Bill Lee, and qualifying families are able to receive funds for the 2020–2021 school year. The program offers a lifeline to families who would like to leave public schools that do not meet their children’s needs but who lack the financial resources to do so. Under the program, qualifying students will receive a scholarship of up to $7,300 for a wide array of educational expenses, including tuition, textbooks and tutoring services. The program is available to families whose annual income equates to less than $66,950 for a family of four.

Natu Bah is an IJ client who plans to send her children to Christian Brothers High School in Memphis using the ESA program. Another IJ client, Builguissa Diallo, plans to use the ESA funds to take her kindergartener out of public school because it does not meet her daughter’s needs and enroll her in Memphis’ Pleasant View School. If Natu and Builguissa are unable to obtain ESAs because of the lawsuit challenging Tennessee’s program, they would be forced to keep their children in failing public schools or endure tremendous financial hardship in order to try to enroll them in private schools.

“Parents like Natu and Builguissa are among the thousands who will send their kids to better schools because of this program. The lawsuit trying to block the ESA program is not about doing what’s best for Tennessee families,” IJ Attorney Keith Neely said.

In the ACLU’s lawsuit against the ESA program, the plaintiffs allege that the program violates the Tennessee Constitution by taking money from public schools. But the program doesn’t take any money from public schools; it simply gives families unhappy with their assigned school the opportunity to send their children elsewhere.

“There are few things more important to parents than getting the best education for their children. The effect of this lawsuit would be to take away educational opportunities from some of the most deserving families in Tennessee,” said IJ Attorney David Hodges.

Since its founding over a quarter-century ago, IJ has successfully defended educational choice programs across the country, including three times at the U.S. Supreme Court. This January, the U.S. Supreme Court heard Espinoza v. Montana Department of Revenue, an IJ case that asks the Court to strike down a government ban on using tax-credit-funded scholarships to attend religious schools.

Pittsburgh Retiree to Finally Get Life Savings Back from the Federal Government

PITTSBURGH—Terry Rolin’s life savings of $82,373 will finally be returned to him, nearly six months after it was wrongfully seized by the Drug Enforcement Administration (DEA) from his daughter Rebecca Brown as she traveled through Pittsburgh International Airport to her home in Boston. Without offering any apology for the harm caused by confiscating Terry’s life savings for six months, the DEA informed the Institute for Justice (IJ) via letter that: “After further review, a decision has been made to return the property.”

In January, Terry and Rebecca teamed up with IJ to file a lawsuit against the DEA and the Transportation Security Administration (TSA) seeking return of the money and an end to the agencies’ unconstitutional and unlawful practice of seizing cash from air travelers without probable cause.  Because Terry and Rebecca’s suit includes class action claims and an individual claim for damages against the DEA agent who wrongly seized the money, it will continue to be litigated in federal court.

“I’m grateful that my father’s life savings will soon be returned, but the money never should have been taken in the first place.  I can’t believe they’re not even offering an apology for the stress and pain they caused for my family,” said Rebecca. “Without this money, my father was forced to put off necessary dental work—causing him serious pain for several months—and could not make critical repairs to his truck. The government shouldn’t be able to take money for no reason, hang on to it for months and then give it back like nothing happened, which is why the lawsuit we filed will continue. No one should be forced to go through this nightmare.”

Terry and Rebecca’s story attracted international attention to the government’s civil forfeiture practices. Flying with any amount of cash is completely legal, yet TSA routinely seizes luggage that contains “large” amounts of cash. After being alerted by TSA, federal law enforcement agents then often seize the cash without probable cause and without charging anyone with a crime. Property owners then find themselves in the upside-down world of civil forfeiture where they are not entitled to legal representation and the standard of proof needed for the government to keep the property is lower than in a criminal case.

“We are glad that Terry will get his money back, but it is shameful that it takes a lawsuit and an international outcry for the federal government to do the right thing,” said IJ Senior Attorney Dan Alban. “We know that this routinely happens to other travelers at airports across the United States. Terry and Rebecca are going to fight on until TSA and DEA end their unconstitutional and unlawful practices of seizing cash from air travelers without probable cause or reasonable suspicion.”

Terry, 79, is a retired railroad engineer born and raised in Pittsburgh. For many years, he followed his parents’ habit of hiding money in the basement of their home. When Terry moved out of his family home and into a smaller apartment, he became uncomfortable with keeping a large amount of cash. Last summer, when his daughter Rebecca was home for a family event, Terry asked her to take the money and open a new joint bank account.

With an early flight on Monday, August 26, 2019, Rebecca did not have time to visit a bank in Pittsburgh and chose to carry the money with her on the way to Boston. Worried about flying with a large amount of cash, Rebecca checked online and found out that flying with any amount of money domestically is completely legal. However, during security screening, TSA agents took her carry-on bag aside and made her wait to be questioned by Pennsylvania State Troopers.

While she was eventually allowed to continue to her gate with the money, she was approached again by a trooper and a DEA agent before boarding her flight. After interrogating Rebecca and calling Terry, the DEA agent seized the money without charging either Terry or Rebecca with a crime. Months later, Terry and Rebecca received notice that the DEA intended to permanently keep the money. Rebecca reached out to IJ, a non-profit public interest law firm with experience litigating civil forfeiture cases nationwide, which agreed to take on her case pro bono.

New Law Would Take the Cake, Allowing for the Sale of Homemade Wedding Cakes

Arlington, Va.—The Wyoming Senate will decide this week whether to expand the state’s popular Food Freedom Law. The Food Freedom Law, which is the most permissive homemade food law in the country, allows the sale of homemade food, drinks and meals directly to consumers. Now, HB0084 would expand the law to allow the sale of shelf-stable homemade foods to retail shops and grocery stores. HB0084 would also remove a restriction in the law requiring purchased homemade foods to be eaten only inside the homes of consumers.

“HB0084 would create more income for farmers, stay-at-home parents, retirees, and anyone else who has talent in the kitchen,” said Wyoming Representative Shelly Duncan, the lead sponsor of the bill. “The bill would also allow consumers to buy more fresh, healthy and local food at affordable prices.”

The food freedom movement is spreading across the country, with 49 states allowing the sale of foods made in a home kitchen. This enables people to make food in their home kitchen instead of paying tens of thousands of dollars a year to work in a commercial kitchen and having to comply with burdensome food licensing regulations.

Wyoming’s Food Freedom Law is currently the best in the nation because it allows the sale of not just shelf-stable foods, but also meals and other foods requiring refrigeration, as long as the seller informs the consumer that the food is homemade and not regulated. There has not been a single reported illness from food sold under the law, which was first enacted in 2015.

Wyoming’s law, however, still lags behind other states in two important ways. First, it only allows sales directly to consumers, meaning a homemade food producer cannot even sell fresh bread or cookies to a coffee shop or grocer. In contrast, 15 other states allow sales of homemade foods to retailers. Second, the law also requires the consumer to eat any purchased foods in their home. This makes it illegal to eat a homemade piece of pie at a picnic or on the go. It also prohibits the sale of homemade wedding cakes. Few other states have this limitation. HB0084 would fix these restrictions.

“Wyoming’s food freedom law has already created much needed income for hundreds of families across the state and made it easier for people to buy fresh and local food,” said Erica Smith, Senior Attorney at the Institute for Justice, who has worked with Representative Duncan on the bill. “HB0084 is a commonsense change to catch Wyoming up to other states.”

HB0084 passed the House last week, and unanimously passed out of a Senate committee yesterday. The Senate will consider the bill for the first time today. The Senate will need to have three readings on the bill before it can pass. Cosponsoring the bill are Representatives Blake, Henderson, Hunt, Lindholm, Pelkey and Salazar, and Senators Boner, Driskill, Gierau and Steinmetz.

The Institute for Justice is a national nonprofit organization that fights to advance food freedom across the country.

Georgia Supreme Court Refuses to Consider Whether State Legislature Should Be Exempt from Public Records Law

Atlanta, Ga.—The Georgia Supreme Court denied an appeal in a case challenging whether the Georgia General Assembly should be exempt from the public records law. While the Georgia Open Records Act subjects “every state office” to its requirements, the Fifth Division of the Court of Appeals of Georgia ruled last year that “The General Assembly is not subject to a law unless named therein or the intent that it be included [is] clear and unmistakable.” The decision ends a lawsuit filed by the Institute for Justice (IJ) in response to Georgia officials’ refusal to turn over records related to the state’s music-therapy licensing law.

“It is troubling that the Georgia Supreme Court will not consider whether the state legislature is allowed to keep secrets about how it governs,” said IJ Senior Vice President and Litigation Director Dana Berliner. “Open access to public records is vital in any free society. When the Georgia General Assembly passed the Open Records Act, it did not exempt itself even though it could have made that explicit. The court’s decision to take a pass will mean lawmakers can hide their decision making from the people.”

The result in Georgia reflects a troubling trend at the local, state and federal levels, as governments and agencies are stonewalling requests from the very citizens, journalists and activists that keep an eye on them. In this case, the government’s argument—that the General Assembly is not explicitly mentioned in Georgia’s Open Records Act and thus the General Assembly effectively exempted itself from its own law—is particularly concerning. The outcome will limit Georgia citizens’ access to truthful information and insulate government from public scrutiny. This is precisely the scenario that public disclosure laws were designed to prevent.

“We are disappointed that the Supreme Court of Georgia has declined to review this issue of great public importance,” said Alex Harris of Gibson, Dunn & Crutcher LLP, which represented IJ in the suit. “As a result of this decision, Georgians cannot use the Open Records Act to learn basic information about how their elected representatives do their jobs.”

Oregon Engineer Makes History With New Traffic Light Timing Formula

Today, the Institute of Transportation Engineers (ITE) formally announced that it voted to adopt a new formula for determining the timing of traffic lights. The vote vindicates the theory of Mats Järlström, who was fined $500 by the Oregon State Board of Examiners for Engineering and Land Surveying for publicly criticizing traffic light timing without first obtaining a professional engineering license.

The ITE’s vote updates a 55-year-old equation with Mats’s formula, which takes into account the time drivers need to slow down when making a turn in an intersection.

The vote could have wide-ranging, international ramifications by giving drivers a little more time to get through intersections (and in some cases, avoid frustrating red light tickets).

“It didn’t take an engineering license to realize that the formula for traffic light timing was flawed,” said Järlström. “I’m just glad that the ITE and the professional engineering community were willing to listen to an outsider, consider my work, and finally update their formula.”

Järlström continued: “We will never know how many Americans have received red light tickets for making perfectly safe right-hand turns. Hopefully this change will give everyone a little more time to get through an intersection safely.”

Convincing the ITE to update its 55-year-old formula was an uphill battle. It started in 2013, when Mats’s wife received a red light camera ticket, which sparked Mats’s interest in how exactly yellow lights are timed. Mats, who is an electrical engineer by training, looked up the formula used to time traffic lights and realized it didn’t take into account that drivers making turns need to slow down to safely navigate the intersection. Mats then set to work reworking the formula to account for right-hand turns.

Mats’s work was generally met with interest, but when he e-mailed the Oregon State Board of Examiners for Engineering and Land Surveying, things took an abrupt illegal U-turn. The Board told Mats it had no interest in hearing about his ideas. Fair enough. But the Board didn’t stop there. After a two-year investigation, it fined him $500 for publicly criticizing the timing of traffic lights without having a Professional Engineer license. The Board also forbid him from continuing to discuss his research.

With the Institute for Justice beside him, Mats fought back. In a First Amendment lawsuit against the Board, he argued that, no matter how technical the topic, the government cannot give state-licensed experts a monopoly on exchanging ideas. He also challenged Oregon’s ban on people truthfully calling themselves “engineers.” In December 2018, the federal court ruled almost entirely in Mats’s favor.

With that injunction in place, Mats continued to research, write and talk about his theory that yellow lights are too short for drivers to safely make turns through an intersection (and avoid getting red light camera tickets). This year, Mats teamed up with a group of drivers advocates, engineers, and others to formally challenge the ITE’s guidance. This summer, the ITE agreed to convene an expert panel where Mats and others testified. The panel found that the current equation for yellow light timing should be reconsidered and as of today, the Institute has voted to recommend Mats’s formula as a recommended practice.

“The First Amendment protects Americans’ right to speak regardless of whether they are right or wrong,” said Sam Gedge, an attorney at the Institute for Justice, which represented Mats. “But in Mats’s case, the ITE committee’s decision suggests that he not only has a right to speak, but also, that he was right all along.”

Dairy Farmer Will Continue to Fight FDA for Right to Say Skim Milk is Skim Milk

Arlington, Va.—A federal judge dismissed a Maryland farmer’s suit against the FDA filed in order to protect his right to accurately label his all-natural skim milk. Current FDA regulations require that dairy products labelled as skim milk also contain synthetic vitamins. Randy Sowers, represented by the Institute for Justice (IJ), filed a federal lawsuit in 2018 asking a federal court to protect his First Amendment right to sell an all-natural, additive free product labeled as skim milk.

With the FDA issuing sworn statements that it has no plans to enforce the relevant regulations or require state agencies to enforce them either, Randy will be able to label his product as skim milk for the time being. Given the FDA’s current promise not to enforce against Randy, U.S. District Judge Yvette Kane dismissed the suit without prejudice. This would allow Randy and IJ to resume the suit should the FDA enforce the regulations in the future.

IJ Senior Attorney Justin Pearson released the following statement:

“We are happy that the FDA has decided not to enforce its unconstitutional ban on describing pure skim milk as skim milk. We are also happy that the FDA has instructed the states that they are free to ignore these regulations too. However, these regulations are still on the books, and the FDA could change its mind again in the future. Therefore, we will keep fighting until the regulations are repealed, even if that means appealing the district court’s decision to dismiss the claim against the FDA.”

Innocent Man Beaten Mercilessly by Police Petitions Supreme Court to Restore Constitutional Accountability

Arlington, Virginia—Will the law enforcement officers who mercilessly beat James King—an innocent college student—be held accountable for their actions? Or will they be allowed to continue to hide behind special legal protections afforded to members of state/federal police task forces to escape justice? Last Friday, the Institute for Justice (IJ), which represents King, filed a brief on his behalf asking the U.S. Supreme Court to review the case and end the shell game that protects task force members from accountability. The brief is the last document to be filed before the Court considers whether to take James’ case next month.

In 2014, James was beaten and choked unconscious by members of a joint state/federal police task force in Grand Rapids, Michigan, after they misidentified him as a suspect wanted for a non-violent petty crime. After their brutal mistake, the officers arrested and charged King with several felonies to cover their tracks. Since then, the government has done all it can to shield the officers from accountability. In its latest move, the government has asked the U.S. Supreme Court to create a new type of immunity for the officers.

But James is fighting back.

Teaming up with IJ, James has not only opposed the new protection requested by the government, but he has separately asked the U.S. Supreme Court to end the shell game that protects task force members from accountability.

Over the past several decades, the use of task forces has expanded nationwide. Today there are about 1,000 operating in all 50 states. When members of these task forces violate the law, they often avoid accountability by hiding behind shifting state and federal protections.  This allows them to claim immunity from prosecution under either state or federal law, with no predictable standard, thus making it nearly impossible for someone whose constitutional rights were violated—such as James King—to hold members of these tasks forces accountable.

“Because task force members exercise both state and federal power,” explained IJ Attorney Anya Bidwell, “courts have allowed them to pick and choose which laws apply to them and which laws don’t. But more power should come with more, not less, responsibility.”

“Government officials like the officers who beat James take an oath to uphold the Constitution. The Supreme Court should make sure they do,” added IJ Attorney Patrick Jaicomo.

James’ case is part of IJ’s new Project on Immunity and Accountability, which seeks to ensure that the Constitution is not a suggestion and that its promises of property rights, free speech, due process and other rights are actually upheld.

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.  More information on the case is available at:  https://ij.org/case/brownback-v-king/.]

Victory for Art in Mandan, ND: Lonesome Dove’s Lawsuit Against City Comes to an End

Mandan, N.D.—Today, the lawsuit brought by Lonesome Dove saloon owners Brian Berube and August “Augie” Kersten has formally come to an end. Along with the Institute for Justice (IJ), Brian and Augie sued Mandan for trying to ban their mural because it was “intended to advertise an establishment.” Not only did their lawsuit save Lonesome Dove’s mural, it led Mandan to enact a new ordinance that lets residents and businesses put up their own murals throughout town. Today’s victory should be a warning to other municipalities that use their sign codes to play art critic.

In fall 2018, 27 years after Augie and Brian started Lonesome Dove, they hired an artist to paint a sun setting over the mountains, with a ranch and cowboys scattered across the landscape. The artist painted the words “Lonesome Dove” across the top. Everybody seemed to like it, until city officials gave Augie and Brian a citation for not previously getting a mural permit. But when they applied, they were told that there was no permit for them.

That’s because Mandan’s sign code said that “no mural shall convey a commercial message.” Brian and Augie kept trying to get permission for their mural to stay up, but to no avail. Left with no other option, and determined to protect their rights as business owners, Brian and Augie joined forces with IJ to stop Mandan’s unconstitutional restriction on free speech.

Almost immediately, Brian and Augie started seeing results. Two days after launching their lawsuit in May 2019, a federal court ordered that Mandan not issue thousands of dollars in fines against Lonesome Dove for keeping up its mural. In that order, U.S. District Court Judge Daniel Hovland said, “Such a content-based restriction on speech as Mandan has enacted is unlikely to survive constitutional muster.” Seeing the writing on the wall, Mandan enacted a new ordinance in November 2019 that no longer restricts murals displaying commercial messages and makes it easier for others who want to express themselves to put up murals of their own.

“Today’s victory is a win for not just Lonesome Dove, but the First Amendment and the people of Mandan,” said IJ Senior Attorney Robert Frommer. “Everyone now can speak a bit more freely due to Brian and Augie fighting for their free speech rights. And cities in North Dakota and across the country should take heed: if you discriminate against commercial messages like Brian and Augie’s mural, you too might find yourself in court.”

“We hope everyone can enjoy putting murals without having to go through what we went through,” said Augie, with Brian celebrating that “everyone that wanted to have a mural can have one now.”

The Institute for Justice is a nonprofit law firm dedicated to protecting Americans’ constitutional rights. Recently, IJ successfully defended a Florida business owner’s right to display an inflatable Mario outside his video game store. IJ also won a free speech case in Norfolk, Virginia, where the city tried to use its sign code to force a small business to remove a protest banner condemning the government’s attempt to take its property through eminent domain.

Following Lawsuit, Detroit Police Return Car Illegally Seized Using Civil Forfeiture

Today, after illegally seizing and holding Robert Reeves’s 1991 Chevrolet Camaro for the last seven months, Detroit police agreed to return it along with $2,280 in cash they seized from him in July 2019. He picked up the car this morning.

The police’s sudden change of heart comes on the heels of a federal class action lawsuit filed earlier this month by the Institute for Justice (IJ) on behalf of Robert and others whose cars were illegally seized by Wayne County prosecutors using a controversial practice called civil forfeiture. The lawsuit challenges the county’s use of civil forfeiture to take vehicles—often from innocent owners like Robert—and hold them ransom until the owners pay exorbitant fines.

“It shouldn’t take a federal class action lawsuit for an innocent driver to get his car out of one of Detroit’s notorious impound lots,” said Wesley Hottot, a senior attorney at IJ. “The return of Robert’s property is too little, too late. Robert’s life was upended when he lost his car for seven months. Detroit’s car forfeiture program is fundamentally unconstitutional, and our lawsuit on behalf of Robert, Melisa Ingram and others victimized by the practice will proceed through the courts.”

Robert’s ordeal started this summer when he was pulled over after visiting a construction site to meet someone about a potential job. Unluckily for Robert, the man he met with was accused of stealing construction equipment—a crime unrelated to Robert or his car. In Wayne County, this brief contact with a suspected criminal was enough for law enforcement to take Robert’s car and cash, even though Robert was never charged with a crime and nobody alleged that he did anything wrong.

Robert’s outcome is far from typical. For vehicle owners who refuse, or are unable, to pay the sum set by Wayne County prosecutors, navigating Detroit’s byzantine vehicle forfeiture system is complicated and time-consuming. It can take months to get in front of a judge, and even then, innocence is not a defense if someone else used the vehicle in connection with a crime.

“The fact that it took seven months and a lawsuit to get Wayne County to return Robert’s car reinforces the importance of this litigation,” said IJ attorney Kirby Thomas West. “There are at least 1,300 people each year who get caught up in this system, and they won’t be as fortunate as Robert. We look forward to continuing the fight to end Wayne County’s unconstitutional vehicle forfeiture racket once and for all.”

Florida House and Senate Advance Occupational Licensing Reform Bills

Tallahassee, Fla.—House and Senate committees today approved their versions of the Occupational Freedom and Opportunity Act, bills that would overhaul occupational licensing laws in the state of Florida. The bills, HB 1193 and SB 474, are a top priority of Gov. Ron DeSantis, who has supported licensing reform through administrative action and public statements. All committees reviewing the bills have now recommended passage. The Institute for Justice (IJ), a non-profit law firm that represents entrepreneurs in licensed occupations, applauds the approvals and encourages legislators to continue pushing forward.

“Eliminating unnecessary licenses and reducing the burdens of licensing could unlock jobs for thousands of Floridians,” said IJ Florida Office Managing Attorney Justin Pearson. “Florida has the fifth most burdensome licensing laws in the nation, but passage of this reform could drastically improve that standing. While the bills must still pass House and Senate floor votes before it gets to the governor’s desk, the Florida Legislature is on the right track.”

Highlights of the bills include:

  • Waiving the requirements of the Commercial Driver License to military service members with similar training and experience.
  • Exempting all hair braiders (including African-style hair braiders), nail technicians, hair wrappers and body wrappers from having to acquire a license.
  • Recognizing barbers licensed in other states.
  • Reducing required educational hours for cosmetology licenses and full barbers licenses.
  • Changing the interior design license to a voluntary certification.

IJ research demonstrates that Florida could create more economic opportunity through reduced licensing burdens. The 2017 edition of “License to Work” found that Florida has the fifth most burdensome licensing laws in the nation. Florida is one of only four states that license interior designers, currently requiring six years of education and $1,120 in fees. Florida also requires African-style hair braiders to acquire a full cosmetology license, even though most cosmetology schools do not teach braiding.

The 2018 IJ study “At What Cost?” found that more than 1 in 5 Floridians require a license to legally work and estimated that Florida loses nearly 130,000 jobs because of its high licensing burden. A conservative measure of the economic value lost to these regulations totaled nearly $460 million.

After Police Brutally Beat & Hospitalized James King, The Government Closed Ranks and Is Using a Legal Shell Game To Avoid Accountability

Arlington, Virginia—In 2014, James King was a law-abiding college student who was brutally beaten and choked unconscious by members of a joint state/federal police task force after they misidentified him as a suspect sought in connection with a non-violent petty crime. Ever since that day, the government has used every tool at its disposal to ensure those officers are not held accountable to the Constitution.

The Institute for Justice (IJ) now represents James in the appeal of his case to the U.S. Supreme Court, where the government has asked for yet another special protection for the officers while James seeks justice not only for himself, but all victims of abuse committed by joint state/federal task forces.

As IJ Attorney Patrick Jaicomo explained, “The Fourth Amendment prevents the government from undertaking unreasonable searches and seizures. Here, at every step of the way, the officers were unreasonable in searching and seizing James, including when they beat him. We filed this lawsuit in 2016. It’s now 2020 and the government still hasn’t even filed an answer addressing all the claims that we’ve raised. Instead, they’ve spent the past four years filing different motions with courts, arguing under technicalities why they shouldn’t be held accountable rather than explaining why what they did actually wasn’t wrong.”

One of those technicalities is called “qualified immunity,” a special legal protection the Supreme Court created in the 1980s to protect government officials.  Under qualified immunity, officers can violate the Constitution unless previous court rulings have explicitly prohibited that exact action by the police—a standard that has become nearly impossible to meet.

“James is asking to have the appeals court ruling corrected so he and others whose rights have been violated by state/federal task force members can hold officers accountable under both state and federal law,” said IJ Senior Attorney Bob McNamara. “The government wants to maintain a system where it’s heads, they win, tails, you lose. That’s unfair and unlawful, and we are fighting to change it.”

Over the past several decades, the use of joint state/federal police task forces has exploded. Members of these task forces are state and federal police officers with power under both state and federal law. As a result, federal officers police state laws, and state officers police federal laws. Today about 1,000 task forces operate nationwide.

In 2014, King, then a 21-year-old college student, was walking between his two summer jobs in Grand Rapids, Michigan when he came upon two men in t-shirts and jeans, leaning against a black SUV. Although James had no idea who they were, these men were a local police detective and an FBI agent working as part of a task force and looking for a fugitive wanted for stealing a box of empty cans and several bottles of liquor from his former boss’ apartment. Without identifying themselves as police, the men began asking James questions and ultimately pinned him against their vehicle. When one of the men took James’ wallet, James believed he was being mugged. But when he tried to escape, the men tackled James, choked him unconscious, and severely beat him. While he was being beaten, James screamed for help, and passersby—who also did not recognize the men as police—called 911 pleading for help for James.

When uniformed officers arrived, things got worse for James. The criminal justice system immediately began shielding the men—now identified as police officers—from accountability. A uniformed police officer forced witnesses to delete video evidence. Police charged James—whom they knew was not the fugitive—with serious felonies. And the county prosecuted James for those crimes. If any of the system’s efforts had succeeded, James would not have been able to vindicate his constitutional rights. Thankfully, the efforts of police and prosecutors to close ranks and protect the officers failed: James refused to take a plea deal, and the jury acquitted James of all charges.

After the trial, James filed a lawsuit against the officers for violating his rights, but the system employed yet another means—what amounts to a shell game—to shield the officers from accountability. The government argued James’ case had to be dismissed because, although the officers were executing a Michigan warrant against a Michigan resident for a Michigan crime committed in Michigan (there was no federal crime), the officers had not abused state power because, as task force members, they were acting under federal power. And because Michigan provided the federal government with immunity for actions like those committed by the officers, the officers could not be held liable for abusing federal power either. The government also argued that the officers, even if liable for abusing state and federal power, were entitled to qualified immunity—a court-created doctrine that allows government officers to violate the Constitution as long as a court has not already held that the officers’ specific acts are unconstitutional.

The trial court agreed and dismissed James’ entire case.  The 6th U.S. Court of Appeals, however, reversed the trial court in every way but one: It said James could only argue that the officers violated federal—not state—power.

“If an officer has both state and federal powers, he should be more—not less—accountable to the Constitution,” said IJ President & General Counsel Scott Bullock. “As part of IJ’s new Project on Immunity and Accountability, IJ seeks to ensure that the Bill of Rights is not a suggestion and that constitutional promises of property rights, free speech, due process, and other rights are actually enforceable.”

IJ Attorney Anya Bidwell said, “If citizens must follow the law, the government must also. Following the Constitution means officials must be held accountable for violating it. IJ is representing James to ensure that law enforcement officers cannot operate above the law and free from the Constitution.”

James said, “I want to hold these officers to account for their actions in large part because of the system and how broken it is. These officers did something that was illegal and then charged me for crimes, and the system closed around them and help them get away with that. Reforming the system from the top down so we hold each and every official accountable for their actions would be a great start and a great way for this case to close.”

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.  More information on the case is available at:  https://ij.org/case/brownback-v-king/.]

First Amendment Lawsuit Challenging Censorship of Mississippi Tech Company Scores Major Win

Arlington, Va.—In a major win for free speech, the 5th U.S. Circuit Court of Appeals ruled today that occupational licensing is not a First Amendment-free zone. The court ruled that a Mississippi technology startup, Vizaline LLC, can go forward with its free speech challenge to a licensing law that a Mississippi regulatory board is attempting to use to put it out of business.

Vizaline is a digital geospatial visualization and technology startup. It uses publicly available legal descriptions of property to draw those descriptions on satellite photos. This “visualization” allows Vizaline’s customers—small community banks—to better understand their property portfolios.

Even though Vizaline does not do any surveying to create these images or create any legal descriptions itself, the Mississippi Board of Licensure for Professional Engineers and Surveyors sued the company for the unlicensed practice of surveying. The Board wanted to shut down Vizaline and force it to “disgorge,” or give up, every penny it had earned from its happy customers.

Vizaline teamed up with the Institute for Justice (IJ) to challenge this unconstitutional restriction on speech.

A lower court dismissed the case in December 2018 on the grounds that although the challenged licensing regulations prohibited Vizaline from using publicly available data to draw its maps, those “regulations do not trigger First Amendment scrutiny.”

Today’s 5th Circuit opinion on Vizaline’s appeal, however, unanimously rejects this conclusion, unequivocally declaring that “Mississippi’s surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime.”

The decision turned on a major 2018 ruling by the U.S. Supreme Court in NIFLA v. Becerra, which ruled that “professional speech”—speech subject to licensing requirements—is not exempt from the protection of the First Amendment. The 5th Circuit confirmed that the NIFLA decision overruled prior 5th Circuit case law instituting a problematic “professional speech doctrine,” which exempted professional speech from First Amendment protection.

“State regulatory boards and some lower courts have just assumed the First Amendment does not apply to speech regulated by an occupational licensing law,” explained IJ Senior Attorney Paul Avelar, who is the lead attorney on the case. “The Supreme Court rejected that argument, but the boards and some courts weren’t following the ruling. The 5th Circuit’s ruling today should put an end to those assumptions and help protect the speech of people throughout the country.”

Brent Melton, a co-founder of Vizaline, was elated by the opinion, stating, “We are happy the court saw the merits of our case.” He added, “We hope this is a precedent to help minimize state regulatory boards’ interference in entrepreneurial businesses. And we look forward to continuing to help the financial institutions in Mississippi understand their portfolios.”

Though the decision is a major step forward, Vizaline’s fight is not over yet. The 5th Circuit remanded the case to the district court to determine whether Vizaline’s creation of images is speech and whether restrictions on that speech are justified by the government’s interest advanced by the challenged regulations.

“The 5th Circuit made a clear statement today that speech is no less important constitutionally when it happens to be the speech of professionals,” said IJ Attorney Kirby Thomas West. “We are optimistic that the district court will take this guidance to heart and strike down the unconstitutional restrictions of Vizaline’s speech.”

IJ to SCOTUS: If the Government Abuses Your Rights, It Has to Pay You Back

Arlington, Va.—Next month, the U.S. Supreme Court will consider whether officials from the FBI and other government agencies can be held accountable for violating Americans’ constitutional rights. If the Supreme Court decides they cannot be, it will send a clear message to the FBI and other government agencies that they can trample on constitutional rights with impunity.

“In the 19th century, when federal agents violated plaintiffs’ constitutional rights, they could bring a damages claim,” said IJ Attorney Anya Bidwell. “Unfortunately, those rights eroded over the past century. To argue that damages are not ‘appropriate relief’ for the violation of individual rights ignores hundreds of years of American legal history and requires the courts to create policy-based exceptions to the law, invading the constitutional role of Congress.”

In the case of Tanzin v. Tanvir, the FBI approached Muhammad Tanvir in 2007 and asked him to spy on his religious community. When Tanvir declined, the FBI repeatedly questioned him, harassed him, confiscated his passport, and placed him on the No-Fly List. Despite there being no evidence that he was a threat to air safety, the government kept Tanvir on the list for years. His inability to fly during that time cost him his job as a long-haul trucker and prevented him from visiting his family, including his wife, son and parents, who live abroad.

In 2013, Tanvir and several other men who were also placed on the No-Fly List by retaliating government officials, filed a lawsuit. The men alleged that their placement on the No-Fly List in retaliation for their refusal to spy on their religious communities burdened their right to freely exercise their religion.

On the eve of an important court hearing, however, the government informed the plaintiffs that they had been removed from the No-Fly List and could once again fly. The government then argued that because the men had been removed from the list (albeit years after the fact) the lawsuit should be dismissed. Although the relevant statute provided the plaintiffs “appropriate relief” for what the government and its officials did, the government argued that money damages were not “appropriate relief;” because it had finally halted its bad behavior, the men were entitled to nothing for what had happened.

The trial court agreed and dismissed the case, but the U.S. Court of Appeals for the Second Circuit reversed, holding that “appropriate relief” includes damages against government officials who violate individual rights.

The U.S. Supreme Court has agreed to hear the case next month. The technical question in the case is whether an individual whose religious rights have been violated can recover damages from the government officials who violated those rights. But the broader issue is whether government officials can be held accountable at all.

Cases like this one are common. The government will often give up in response to a lawsuit or on the eve of trial. When it does, a court can no longer order the government to stop because it already has. In these circumstances, as the Supreme Court has famously said, it is “damages or nothing.” Of course, the government always argues for nothing and usually gets it.

To ensure that government officials are held accountable to the law and Constitution, the Institute for Justice has filed an amicus brief in this case, urging the U.S. Supreme Court to allow damages and explaining the historic role they play in our constitutional system. Both before and after the Constitution and Bill of Rights were ratified, courts ordered damages against government officials who violated individual rights. And for just as long, courts explained that damages are essential to government accountability. That is just as true today as it was at the framing.

“Since the founding of this country, the role of our courts has been to decide whether a person’s rights were violated and, if so, award appropriate relief, which historically includes money damages,” added IJ Attorney Patrick Jaicomo. “If the Supreme Court adopts the government’s position, government officials can violate the Constitution without consequence. They are effectively above the law.”

As part of IJ’s new Project on Immunity and Accountability, IJ seeks to ensure that individual rights are not a suggestion and that constitutional promises of property rights, free speech, due process and other rights are actually enforceable.

IJ Will Appeal Ruling Upholding SEC Gag Orders on Authors

Today, a federal judge in the District of Columbia dismissed a lawsuit challenging the U.S. Securities and Exchange Commission’s (SEC) policy of silencing anyone who settles an enforcement actions with the agency. The lawsuit was brought by the Institute for Justice (IJ) on behalf of the Cato Institute, a Washington, D.C. think tank that contends that the SEC’s longstanding policy is interfering with its ability to publish criticism of the government.

Since the 1970s, the SEC has refused to settle any enforcement action unless the defendant agrees to a gag order that forbids them from ever publicly questioning the truth of any of the agency’s allegations against them. If a defendant wants to settle a case—perhaps to avoid years of costly litigation, or perhaps even because some (but not all) of the SEC’s allegations are true—the price is a promise never to criticize the prosecution and to let the SEC’s press release on the matter be the last public word.

“The purpose of the SEC’s gag-order policy is to make sure that defendants are afraid to publicly criticize the agency’s enforcement actions,” explained Robert McNamara, a senior attorney at IJ. “And it works: The SEC settles almost every case it brings, and people subject to gag orders don’t violate them, even if they sincerely believe themselves to be innocent. The end result is that, as a practical matter, the SEC is in charge of who is allowed to criticize the SEC.”

The Cato Institute sought to change this state of affairs by publishing a book written by a former SEC defendant and hosting panel discussions featuring others. But every single one of these people is bound by a gag order and told Cato they could not speak publicly about their experiences. That is why Cato joined with IJ to file a federal lawsuit making a simple claim: The First Amendment protects Cato’s right to publish books and host public discussions, and the SEC’s policy was making it impossible for Cato to do so.

“The Cato Institute wants to publish a book that is critical of the government, which is about as close to the heart of the First Amendment as you can get,” said Cato Institute Vice President for Criminal Justice Clark Neily. “The idea that a federal agency can punish an author for publishing with us is offensive enough, but the idea that the federal courts cannot even hear a challenge to that policy is outrageous.”

The district court did not uphold the SEC policy, but found that Cato was not permitted to challenge it because it is not directly regulated by the policy: “The most plaintiff alleges,” wrote U.S. District Court Judge Amy Berman Jackson, “is that some individuals feel constrained not to come forward because of the risk of SEC action.”

“The Cato Institute has a First Amendment right to receive information and to disseminate that information nationwide, and the government cannot avoid the First Amendment by punishing people who participate in Cato’s discussions, rather than punishing Cato directly,” said Jaimie Cavanaugh, an IJ attorney. “Today’s ruling would prevent traditional First Amendment plaintiffs like newspapers, publishers, and others from challenging rules that make it impossible for them to inform the public about government misconduct.”

“This case is about whether the government can cloak its coercive settlement agreements in darkness,” concluded IJ Senior Attorney Robert McNamara. “But the First Amendment arms the public with a powerful light, and the Institute for Justice is committed to ensuring that government officials are not the ones in charge of the off switch.”

IJ plans to appeal.

Tennessee Parents Stand Up for School Choice and Join Lawsuit to Defend ESA Program

Arlington, Va.—Today, a group of parents partnered with the Institute for Justice (IJ) to defend the Tennessee Education Savings Account Pilot Program, an educational choice initiative, against a lawsuit challenging its constitutionality. By formally intervening in the lawsuit, the parents will ensure that the thousands of Tennessee families benefiting from the program are represented as the lawsuit progresses through the courts. On February 6, the governments of Nashville and Shelby County, along with the Metropolitan Nashville Board of Public Education, challenged the ESA program.

“Tennessee’s ESA program is constitutional, and IJ stands ready to defend it in court so that Tennessee families can send their children to the school that best fits their child’s needs,” said Arif Panju, an IJ managing attorney. “The mayor’s lawsuit to block ESA accounts for K-12 students reveals his disregard for the rights of parents and children.” IJ is representing parents who plan to use ESAs to send their children to a school that best fits their child’s needs.

The program was signed into law in May 2019 by Tennessee Gov. Bill Lee, and qualifying families are able to receive funds for the 2020-2021 school year. The program offers a lifeline to families that would like to leave public schools that do not meet their children’s needs but who lack the financial resources to do so. Under the program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks and tutoring services. The program is available to lower- and middle-income families whose annual income is less than $66,950 for a family of four.

“I am defending the ESA program because it will help me provide a better education for my sons,” said Natu Bah, an IJ client who plans to send her children to Christian Brothers High School in Memphis using the ESA program. Another IJ client, Builguissa Diallo, plans to use the ESA funds to take her kindergartner out of public school because it doesn’t meet her needs and enroll her in Memphis’ Pleasant View School. If they are unable to obtain ESAs because of the lawsuit challenging Tennessee’s ESA program, they would be forced to keep their children in failing public schools or endure tremendous financial hardship in order to try to enroll them in private schools.

“The Nashville and Shelby County governments should support families that want to send their kids to different schools when the only option forced upon them isn’t working. Their lawsuit is not about doing what’s best for Tennessee families,” IJ Attorney Keith Neely said.

In the lawsuit against the program, the plaintiffs allege that the ESA program violates three provisions of the Tennessee Constitution.

“No matter how you look at it, Tennessee’s ESA program is constitutional,” IJ Attorney David Hodges said. “ESA programs are popular throughout the country because they are an innovative way for parents to get the best education for their children. Instead of suing to stop these programs, Nashville and Memphis should be supporting parents.”

Since its founding over a quarter-century ago, IJ has successfully defended school choice programs across the country, including three times at the U.S. Supreme Court. This January, the U.S. Supreme Court heard Espinoza v. Montana Department of Revenue, an IJ case that asks the Court to strike down a government ban on using tax-credit-funded scholarships to attend religious schools.

National School Choice Advocate Announces It Will Defend Nation’s Newest School Choice Program

Arlington, Va.—Today, the Institute for Justice (IJ)  announced they will intervene to defend the nation’s newest educational choice program from a legal attack announced this morning by Nashville Mayor John Cooper.

The mayor announced a lawsuit brought by the Metro Government of Nashville and Davidson County, Shelby County and Metro Nashville Board of Public Education, that claims Tennessee’s Education Savings Accounts (“ESA program”) for parents of K-12 students violates the Tennessee Constitution.

“Tennessee’s ESA program is constitutional and IJ stands ready to defend it in court so that Tennessee families can send their children to the school that best fits their child’s needs,” said Arif Panju, an IJ managing attorney. “The mayor’s lawsuit to block ESA accounts for K-12 students reveals his disregard for the rights of parents and children.” IJ will represent parents who plan to use ESAs to send their children to a school that best fits their child’s needs.

The ESA Program was passed in 2019 by the Tennessee Legislature. The program offers a lifeline to families that would like to leave public schools that do not meet their children’s needs, but who lacked the financial resources to do so until now. Under the ESA program, qualifying students will receive a scholarship up to $7,300 for a wide array of educational expenses, including tuition, textbooks, and tutoring services. The program is available to qualifying lower- and middle-income families like a family of four whose annual income is less than $66,950.

Defending Tennessee’s ESA program will achieve something vitally important to parents and children across the state: It will allow parents to leave public schools that fail to meet their child’s needs. Rather than empowering families with kids trapped in schools that don’t work for them, the mayor’s announcement that he wants a court to invalidate the ESA program empowers teachers’ unions and their allies, not parents and kids.

“Educational choice programs that aid parents from communities in need are constitutional,” said IJ Attorney David Hodges. “Tennessee’s ESA program was designed to provide parents an educational option that empowers them to obtain the best education for their children.”

Since its founding over a quarter-century ago, IJ has successfully defended school choice programs across the country, including three times in the U.S. Supreme Court. This January, the U.S. Supreme Court heard Espinoza v. Montana Department of Revenue, an IJ case that asks the Court to strike down a government ban on using tax credit-funded scholarships to attend religious schools.

Class Action Lawsuit Seeks to Shutdown Detroit’s Unconstitutional Civil Forfeiture Program

For decades, Detroit police, sheriff’s deputies, and Wayne County prosecutors have systematically abused the constitutional rights of drivers by using a controversial tactic called civil forfeiture to seize and sell thousands of cars—oftentimes from completely innocent owners. Now, the Institute for Justice (IJ)—a nonprofit, public interest law firm—has partnered with a group of Detroit drivers to fight back and file a class action lawsuit in federal court seeking to end the controversial practice once and for all.

Melisa Ingram, a plaintiff in the lawsuit, knows the many abuses of Detroit’s system firsthand. Last summer her car was seized by Wayne County sheriff’s deputies after she lent it to her then-boyfriend so he could drive to a friend’s barbeque. Later that day, police pulled him over for slowing down in an area known for prostitution. Although he was never charged with a crime, police nevertheless seized Melisa’s 2017 Ford Fusion.

The following day, she went down to the courthouse to sort things out. There, she explained that the car wasn’t his and that she’d obviously would have never given him permission to pick up a prostitute, as the police alleged. But her pleas fell on deaf ears, because under Michigan’s forfeiture statute, an owner’s innocence is not a defense. The clerk explained that Melisa’s only option was to pay the city $1,800—$1,800 she did not have—plus the cost of towing and storage. Without the money to pay the city, she was forced to give up her car and declare personal bankruptcy. Now, seven months later, she’s broken up with her boyfriend and is forced to ride the bus to work for the first time in her life.

“In many ways, Melisa was victimized twice: First by her partner and a second time by Detroit’s outrageous vehicle forfeiture program, which turns a blind-eye to the innocence of owners,” said Wesley Hottot, a senior attorney at IJ. “Innocent until proven guilty is a bedrock American value, and yet, under Detroit’s civil forfeiture program innocence is irrelevant. It is clearly unconstitutional to force one person to pay for another person’s crime.”

Unlike criminal forfeiture, civil forfeiture does not require the property owner to have committed a crime. Anyone’s vehicle can be seized based on a police officer’s mere suspicion that it was, in some way, connected to a crime. Even being near an alleged crime is enough, which Detroit resident Robert Reeves, another plaintiff in the lawsuit, found out the hard way.

Robert works as a construction worker. Last summer, a contractor hired Robert to help clear out debris from an empty lot. On Robert’s way home, police arrested him and alleged that the tractor he’d driven at the job site was stolen. But he had no idea what was going on; the contractor had provided the equipment and Robert had no idea where it came from. Robert assured the officers that he knew nothing about the alleged theft, and had no reason to believe that the contractor was connected to criminal activity, but it didn’t matter. Police released him, but seized his car and money. No one was charged with a crime, and yet, five months later, Robert’s car remains in a city impound lot.

“Detroit’s forfeiture program is less like a justice system and more like having your car stolen and paying a ransom to get it back,” said Hottot. “Once police seize a car, there is no judge or jury. Instead, prosecutors give owners a choice. They can either pay the city’s ransom or hire an attorney and enter a byzantine process that is confusing, time-consuming, and expensive. The process is designed to ensure that owners fail nearly every time. I’ve watched this happen time and time again, and never once have I seen an owner successfully make it to court and get his or her car back.”

“My car was very important to me and now my life has been turned upside down,” said Ingram. “Everything suffers when you don’t have a car, especially in a city like Detroit. I’ve been late to work and missed doctor’s appointments because I don’t have a way to get there. No one should have to go through what I’ve gone through.”

Detroit’s forfeiture program has been controversial since its inception. More than 25 years ago, Wayne County sheriff’s deputies seized a car co-owned by a woman named Tina Bennis and her husband. Tina’s husband had been convicted of gross indecency for an encounter with a prostitute that took place in their family car. Like Melisa, Tina obviously had not consented to, and was not even aware of, her husband’s illicit activities, but unlike Melisa, the Bennis’ car was jointly-owned. Despite Tina’s obvious innocence, the county took the car anyway.

Tina contested the forfeiture, and her case eventually made it to the United States Supreme Court. There, she argued that punishment of innocent people violates the due process guarantee of the U.S. Constitution. Citing the complex history of civil forfeiture, a divided Court held that the Due Process Clause of the Fourteenth Amendment does not protect innocent property owners like Mrs. Bennis against forfeiture.

“To this day, the Bennis decision remains one of the worst property rights decisions that the Supreme Court has ever handed down,” said IJ Attorney Kirby West. “It has enabled cities, states and the federal government to deprive innocent property owners of their cars, cash, or other property without even a modicum of due process. Thankfully, courts across the country have begun to see the injustice of civil forfeiture and the Supreme Court will eventually have to correct this grievous decision.”

In response to lawsuits by IJ, federal judges in Albuquerque and Philadelphia have shutdown municipal forfeiture programs similar to Detroit’s. And last year IJ secured a unanimous U.S. Supreme Court decision that the Excessive Fines Clause of the Eighth Amendment limits how far the government can go in using civil forfeiture to take property from people for minor crimes.

“Detroit drivers have suffered for decades under the Bennis decision,” said IJ President Scott Bullock. “We’ve filed this lawsuit to right that wrong and restore justice to a system devoid of it for too long.”

Federal Appeals Court to Hear Border Civil Forfeiture Case Tomorrow

WHAT:            Appeals Court Hearing
WHEN:            Tuesday, February 4th, 2020 at 9:00 A.M.
WHERE:

U.S. Court of Appeals for The Fifth Circuit
600 Camp Street
New Orleans, LA 70130

Four years ago, while Gerardo Serrano was waiting to cross the U.S.-Mexico border at Eagle Pass, Texas, he snapped a few photos to share on Facebook. He did not know it at the time, but the events that followed would ultimately take him to the steps of the Fifth Circuit Federal Court of Appeals in New Orleans, where he’ll join attorneys from the Institute for Justice (IJ) tomorrow to hold the federal government accountable for violating Gerardo’s constitutional rights.

Gerardo’s case centers around the government’s unconstitutional use of civil forfeiture to seize his Ford F-250 and keep it for more than two years. After Gerardo took the photos, two CBP agents demanded that he give them the password to his phone. When Gerardo refused, telling the agents to get a warrant, they dragged him out of the truck and proceeded to search it. Finally, one officer gleefully said “we got him” and held up five low-caliber bullets Gerardo had forgotten were in the bottom of his center console. The agents told him he was free to go, but they were keeping his truck for attempting to transport “munitions of war” through the border.

For over two years, the agency held Gerardo’s truck without ever taking the case before a judge or filing a forfeiture complaint. Then, in 2017, Gerado partnered with the Institute for Justice to file a federal class action lawsuit against the CBP on behalf of everyone whose car was illegally detained after being seized at the border. A month later, the agency returned his truck and the bullets (the so-called munitions of war) and also asked the court to dismiss his lawsuit. The judge agreed to dismiss the case without requiring that the government pay damages to Gerardo or declare that CBP must provide prompt hearings when it seizes cars. Gerardo and IJ appealed the dismissal—and that appeal will be heard tomorrow.

“The government cannot seize someone’s property, hold it for years and then pretend like no harm was done once they return it,” said Darpana Sheth, a senior attorney at the Institute for Justice. “When the government breaks the law, as it did when it held Gerardo’s truck without any judicial process, then it must be held accountable.”

After Years of Regulatory Uncertainty, Mobile Boutique Owners Receive New Permanent Licenses

CHICAGO—Five years ago, Juana Ryan started a mobile art gallery selling her own work and works from other Chicago artists—StellaLily. Her innovative idea, however, did not fit neatly into the city’s regulatory scheme. After more than a year of confusion about how to operate legally, Juana and other mobile boutiques were eventually provided an emerging business permit in 2016. That temporary state of affairs finally ended with the city issuing the first permanent licenses that finally provide Juana and other entrepreneurs the certainty they need to keep working in the Windy City.

“It has been a very long road to becoming legal in Chicago, but now I can hit the streets with confidence,” said Juana. “I love Chicago and never wanted to go anywhere else, but the frustration of this process was almost too much. I hope that in the future Chicago government will be nimbler when entrepreneurs approach them with bold new ideas.”

Mother-and-daughter business partners Jera and Joslyn Slaughter and their mobile clothing outlet, Shop the Thrifty Fashionista, also received a license. The Slaughters started with a brick-and-mortar clothing store but were inspired to purchase a truck after seeing news reports about other entrepreneurs taking their business mobile.

“The city is our home, and we’re glad that a permanent license means we can keep working the streets of Chicago,” said Jera. “Our customers love that we can come to them and they’ll be glad to hear that we can continue serving them close to where they work and live.”

The Institute for Justice Clinic on Entrepreneurship at the University Chicago (IJ Clinic) worked closely with mobile boutique owners and other allies to build support first for the emerging business permit and then for the permanent license. The IJ Clinic offers free legal assistance to low income entrepreneurs, helping them to navigate the legal and regulatory processes to get their business off the ground.

“The Windy City is full of entrepreneurs with great ideas and we want to encourage city government to make sure entrepreneurs are free to launch their businesses in Chicago,” said IJ Clinic Director Beth Kregor. “The emerging business permit offers some flexibility and should be used temporarily, but we hope that the city can then move quickly to establish the regulatory stability that can help good ideas thrive.”

Following Federal Lawsuit, Richland, Wa. Drops Unconstitutional Street-Fees Law

Following a federal lawsuit brought by the Institute for Justice, the City of Richland has ended its practice of unconstitutionally forcing homeowners to upgrade city streets as a condition of obtaining a building permit. As a result of that change, Linda Cameron is free to renovate her Richland home without first paying upwards of $60,000 to upgrade an adjacent city street.

“It is a shame that it took a federal lawsuit for the city to recognize that it was violating its citizen’s constitutional rights,” said IJ Senior Attorney Paul Avelar. “But with this change, Linda and other homeowners are free to renovate their property without having to pay a ransom to the city.”

Linda’s fight started in October 2018, when she decided it was time to renovate the modest one-bedroom, one-bathroom home she had lived in for more than 40 years. She hired a contractor, drew up plans for an additional bedroom and bathroom and submitted a permit application to the city. The city’s building inspector approved her permit as being structurally sound, but the Richland Public Works Department rejected it because it didn’t also include plans to renovate a public street that ran along the back of her property—a street that she didn’t even use to access her driveway. To get her home renovation permit, Richland’s municipal code said Linda also had to improve the city’s street. Linda would have to widen 400 feet of street; build curbs, gutters and streetlights; and add sidewalks that didn’t connect to any other sidewalks. An engineer estimated the changes Linda would have to make at $60,000.

Linda attempted to negotiate with the city, but that was a dead end. The city manager said the law said what it said, so Linda would just have do as she was told. Instead, Linda partnered with the Institute for Justice and filed a federal lawsuit challenging Richland’s imposition of so-called “impact fees” as a condition of getting a building permit. Municipalities may legally charge fees to recoup the impact development has on public infrastructure, but, typically, these fees are imposed on developers to cover the real impacts of new property development. For example, if a developer wants to build a 100-home subdivision, a city could charge an impact fee to recoup the cost of installing new sewer lines or installing traffic signals for increases in traffic.

But when there is no impact, there can be no impact fee. The Supreme Court has explained that impact fees charged without impacts are unconstitutional; indeed, they are little more than extortion. Linda’s case demonstrates why. Linda just wanted to add a second bedroom to her one-bedroom home, but Richland said that before she could, she would have to spend tens of thousands of dollars widening a city street behind her house. It’s obvious that Linda’s second bedroom would not have an impact on the street. The city just wanted Linda to pay for a new street, so it wouldn’t have to.

“If cities want new streets or sidewalks, they can pay for those through normal channels. What they can’t do is force homeowners like Linda to pay for them by imposing unconstitutional conditions on building permits,” said IJ Attorney Patrick Jaicomo. “Thankfully, Richland has agreed to stop that practice. Under its new ordinance, homeowners will be able to once again use and enjoy their property without paying the city for the privilege.”

After the lawsuit was filed, Richland agreed to change its law to impose an impact fee only where there was an impact. After Richland changed its law, Linda’s application was granted without any conditions.  Now, she can get to work on renovating her home and other homeowners in Richland are free from similar treatment in the future. 

Proposed Red Tape and Inspections for Lincoln’s Home Bakers Are Unnecessary and Unconstitutional

Lincoln, Neb.—Less than a year after Nebraska Gov. Pete Ricketts signed legislation allowing Nebraskans to sell safe homemade foods, the Lancaster County Health Department introduced a bill that, if passed, would be a major step back for food entrepreneurs and the “buy local” movement. The Institute for Justice (IJ), a national advocate for home-based entrepreneurs, is warning the Lincoln City Council that the proposal would violate Nebraskans’ constitutional
rights while doing nothing to improve public health or safety.

With the passage of LB304 in May 2019, Nebraskans were soon allowed to sell homemade foods like baked goods, jams, popcorn, candy and dried pasta from their homes and online—similar to what is already allowed in 48 other states and the District of Columbia. The proposed ordinance would undermine these new freedoms by imposing an additional, unnecessary and unauthorized local permit requirement and by giving the Lancaster County Health Director “the authority to inspect at any reasonable time” the homes of cottage food producers “as frequently as necessary.”

“The proposed ordinance imposes requirements that run contrary to state law and cottage food producers’ constitutional rights,” IJ attorney Joshua Windham said. “Requiring an additional local permit to sell cottage foods flies in the face of LB304, and requiring food entrepreneurs to submit to random warrantless inspections of their homes may raise additional Fourth Amendment concerns.”

Nebraska law requires only that cottage foods indicate the food was prepared in a home kitchen, the name and address of the producer and that it may contain allergens.

“Homemade foods have been safely and legally sold for years. Putting useless new hurdles in front of homemade food producers would mean fewer economic opportunities for countless families and fewer local food options for consumers,” said Jennifer McDonald, IJ senior research analyst and author of Flour Power: How Cottage Food Entrepreneurs Are Using Their Home Kitchens to Become Their Own Bosses.

Lincoln resident and baker Cindy Harper criticized the ordinance proposal as well and warned that it could discourage other residents from selling their homemade goods.

“I think for a family trying to balance life and starting a business, these types of regulations are intimidating. For someone who doesn’t have a food service background, it’s possible they may see them as a barrier to entry that they cannot get past,” she said.

Mujer de Miami apela a la Corte Suprema para recuperar cada dólar confiscado injustificadamente por agentes federales

MIAMI—El 11 de mayo de 2015, Miladis Salgado regresó a su casa y descubrió que su vida tuvo un giro inesperado. Mientras ella estaba trabajando, la policía ingresó a su casa y confiscó sus ahorros de toda la vida—$15.000 en efectivo que ella estaba ahorrando para la quinceañera de su hija—a partir de información de que su expareja estaba traficando drogas. A pesar de que la acusación no tenía fundamento, la Agencia de Control de Drogas (DEA, por sus siglas en inglés) intentó retener el dinero de Miladis indefinidamente.

Con éxito, Miladis luchó contra la DEA en la corte federal para recuperar su dinero, pero le tomó dos años y fue mucho después de la quinceañera de su hija. El gobierno se rindió en el último minuto, evitando así pagar los honorarios de los abogados de Miladis. Debido a la forma como la corte federal cerró su caso, Miladis podría perder un tercio de su dinero pagando los honorarios de sus abogados. Ahora, ella se ha asociado con el Instituto para la Justicia (Institute for Justice, o IJ), un bufete de abogados pro bono, para presentar su petición de honorarios de abogados a la Corte Suprema del país.

“El gobierno no puede tomar tu propiedad, retenerla por años, devolverla de repente, y pretender que no pasó nada,” dijo Justin Pearson, abogado de IJ. “Apoderarse de la propiedad de una persona y obligándolos a contratar a un abogado durante dos años para recuperarla tiene costos reales. Lo que le sucedió a Miladis es injusto y ella merece que le devuelvan cada dólar.”

Por ley del Congreso, personas luchando contra el decomiso civil—el proceso legal utilizado por el gobierno para confiscar el dinero de Miladis—quienes “substancialmente prevalecen” en su caso legal, deben de tener sus honorarios de abogados pagados por el gobierno. La ley intentaba desincentivar a que el gobierno iniciara acciones legales arbitrarias, pero los fiscales federales han manipulado el sistema.

Cuando fiscales federales se dan cuenta que pueden perder su caso legal, a menudo prolongan el caso con la esperanza de forzar un acuerdo que les permita mantener parte del dinero del propietario inocente. Pero si los propietarios inocentes no ceden, los fiscales federales devuelven voluntariamente la propiedad antes de que el tribunal decida el caso. De esta manera, privan al propietario de una “victoria” y posteriormente argumentan que sin una “victoria” el requisito legal de pagar honorarios de abogados no se aplica.

Miladis eligió luchar por sus derechos, pero la mayoría de las víctimas del decomiso civil ilegítimo no pueden pasar años en la corte luchando para recuperar su propiedad. De hecho, según un reporte de IJ, Vigilancia con fines de lucro (Policing for Profit), 88% de casos de decomiso civil nunca llegan a un juez. En muchos casos, el costo de contratar a un abogado para impugnar la confiscación en la corte es más que el valor de la propiedad y por lo tanto la única opción es rendirse a las demandas del acuerdo del fiscal y retirarse de la lucha.

IJ no es ajeno a la estrategia del gobierno para negar a las víctimas su día en la corte y negarse a pagar los honorarios de abogados. Durante la última década, IJ ha desafiado las confiscaciones civiles ilegítimas en todo el país. En casi cada caso, cuando IJ se involucró, el gobierno federal rápidamente capituló y devolvió la propiedad a los clientes de IJ, mientras que al mismo tiempo intentaba evitar pagar los honorarios de abogados.

Tampoco es la primera vez que IJ discute sobre el decomiso civil en la Corte Suprema del país. En febrero, IJ aseguró una decisión unánime de que la prohibición de imponer multas excesivas bajo la Octava Enmienda en la Constitución limitó la capacidad del gobierno a usar el decomiso civil para confiscar el automóvil del cliente de IJ después de que se declaró culpable de un delito menor de drogas.

New Jersey Governor Signs New Conviction Requirement for Civil Forfeiture

Late yesterday, Governor Phil Murphy signed a bill (A4970) that will require a criminal conviction before civil forfeiture. Unlike criminal forfeiture, civil forfeiture typically allows the government to take and keep property without charging anyone with a crime.

Thanks to the governor’s signature, New Jersey is now the 16th state with a conviction prerequisite to forfeit property in civil court. A4970 also marks the latest in a rapid whirlwind of reform. Earlier this month, the governor signed a wide-ranging forfeiture transparency bill, which came shortly after the New Jersey Supreme Court unanimously vindicated the protection against self-incrimination in civil forfeiture cases.

“In the next session, we urge the New Jersey Legislature to end civil forfeiture and replace it with criminal forfeiture,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “Ending the arbitrary practice of litigating the same alleged crime in two different court systems is the only real means to address this abuse.”

A4970 will require a conviction in criminal court before property can be forfeited in civil court. Prosecutors will need a conviction to civilly forfeit $1,000 or less in cash. For all other forms of property, including vehicles, electronics, jewelry, and other valuables, the conviction threshold rises to $10,000. Property under those thresholds must be returned if the owner is acquitted, if prosecutors fail to file charges, or if the state decides to dismiss the criminal prosecution.

Compared with the other 15 states with criminal-conviction requirements, New Jersey’s thresholds are some of the lowest.

Yet in recent years, the conviction requirement would have applied to the overwhelming majority of cars confiscated in the state. Between 2014 and 2018, district attorneys forfeited more than 1,200 vehicles, according to open records the Institute for Justice obtained from nearly every county prosecutor’s office.

Among those cars forfeited on the county level, over 90% were valued at or below $10,000. Collectively, the cars were worth nearly $5.75 million. During that same period, county and state law enforcement forfeited over $57.1 million in cash.

“No one should mistake this bill for a comprehensive fix of New Jersey’s shameful forfeiture laws,” McGrath added. “Far too many underlying issues remain unaddressed, including the perverse financial incentives that warp law enforcement priorities to pursue cash instead of criminals.”

Local law enforcement agencies can still retain up to 100 percent of the proceeds from forfeited property. The new law does nothing to close the equitable-sharing loophole, which has doled out more than $10.8 million in federal forfeiture money to New Jersey agencies in fiscal 2018.

Rather than help police fight crime, asset forfeiture is a source of revenue for law enforcement, a recent study from the Institute for Justice found. When local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“New Jersey has some of the worst civil forfeiture laws in the nation, and we hope this legislation will build momentum for further reforms,” McGrath noted. “Along with our coalition partners at the ACLU of New Jersey and Americans for Prosperity, we will keep fighting until New Jersey’s rigged system is abolished, once and for all.”

Institute for Justice Asks U.S. Supreme Court to Hold Government Officials Accountable For Destroying Idaho Home with Grenades

If you tell police they can go into your home, does that mean they can also legally stand outside and pepper it with shotgun-fired tear gas grenades—destroying everything inside?

That is the question asked by a petition to the Supreme Court of the United States filed today by the Institute for Justice (IJ) on behalf of Idaho resident Shaniz West.

Shaniz’s nightmare started when she stopped home with her children in tow one afternoon in 2014 to find her house surrounded by five local police officers. They told her they were looking for her ex-boyfriend, who was wanted on firearms charges. Shaniz said she didn’t think he was in her home—he certainly wasn’t supposed to be—but she said that the officers could go in to see for themselves.

Read about IJ’s new Project on Immunity and Accountability

But the officers did not even try keys she gave them: Instead, they called in the local SWAT team and laid siege to the house, bombarding it from the outside with tear-gas grenades. When it was all over, Shaniz’s home and all her possessions were destroyed and (just as Shaniz had said) the ex-boyfriend was nowhere to be found. Instead, the police had spent half a day bombarding and besieging a house that was empty except for Shaniz’s dog, Blue.

With her life in shambles, her personal property either destroyed or coated in a toxic film leftover from the tear gas, Shaniz—who was left homeless for months following the siege—sued to challenge the warrantless destruction of her home and property. The officers defended their actions by claiming that they didn’t need a warrant because Shaniz had given them consent to go into the home. Amazingly, the judge bought the police’s defense.

Government officials are not above the law, and if citizens must follow the law, the government must follow the Constitution—that includes being held accountable for violating it.
—IJ Attorney Josh Windham

The reason is a controversial legal doctrine called “qualified immunity,” which the U.S. Supreme Court created in 1982. Under qualified immunity, a government official can only be held accountable for violating someone’s constitutional rights if the violation is “clearly established.” That means law enforcement officials can only be held accountable if a court has previously ruled that exactly what they did is unconstitutional—thus putting them on notice that they cannot do something, even if that something is clearly unreasonable, unethical, or unconstitutional. So, if a government official finds a new and unique way to violate someone’s constitutional rights, there is little that can be done to hold the official accountable.

“No judge has ever ruled that what these officials did to Shaniz was legal,” explained IJ Senior Attorney Robert McNamara. “After all, anybody who has ever thrown a dinner party understands that an invitation to go inside your home is not the same thing as an invitation to destroy it. But under qualified immunity, courts say it doesn’t matter whether a reasonable person would have thought they were acting legally. It only matters whether a court has already decided that an official who did exactly the same thing in exactly the same circumstances violated the law. If your exact case hasn’t come up before, you’re out of luck.”

In Shaniz’s case, the United States Court of Appeals for the Ninth Circuit did not find that it was either right or wrong for officers to destroy her house and everything in it. Rather, it simply said that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.” And that was the end of the case.

“Qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before,” said IJ Attorney Joshua Windham. “Government officials are not above the law, and if citizens must follow the law, the government must follow the Constitution—that includes being held accountable for violating it.”

That is why Shaniz has joined forces with IJ to ask the Supreme Court to hear her case and establish once and for all that qualified immunity cannot be used to allow government officials to violate constitutional rights with impunity. IJ, through its new Project on Immunity and Accountability, seeks to ensure that the Constitution provides a government that is limited in fact, not in theory, and that constitutional promises of property rights, free speech, due process and other rights are actually enforceable.

“Shaniz West is just one of countless Americans whose rights have been violated but who has been turned away at the courthouse door by baseless rules about government immunity,” concluded IJ President and General Counsel Scott Bullock. “The Constitution is a promise that is meant to be kept, and people who swear an oath to that Constitution should be required to keep it. We at IJ plan to see that they do.”

Pittsburgh Retiree Sues Federal Government to Get His Life Savings Back

PITTSBURGH—Terry Rolin’s life savings of $82,373 were seized by the federal government even though he has not been charged with any crime. In fact, his daughter was doing something completely legal—flying domestically with cash—when the Drug Enforcement Administration (DEA) seized the money in August 2019 at the Pittsburgh International Airport. Today, Terry and his daughter Rebecca Brown are teaming up with the Institute for Justice (IJ) to file a federal lawsuit to get his life savings returned and to end unconstitutional and unlawful practices by the DEA and the Transportation Security Administration (TSA).

  • WATCH an IJ video about this case.
  • DOWNLOAD a video news release of Rebecca telling her story.
  • READ the lawsuit.

Terry, 79, is a retired railroad engineer born and raised in Pittsburgh. For many years, he followed his parents’ habit of hiding money in the basement of their home. When Terry moved out of his family home and into a smaller apartment, he became uncomfortable with keeping a large amount of cash. Last summer, when his daughter Rebecca was home for a family event, Terry asked her to take the money and open a new joint bank account that he could use to pay for dental work and to fix his truck, among other needs.

With an early flight on a Monday morning, Rebecca did not have time to visit a bank in Pittsburgh and chose to carry the money with her on the way to Boston. Worried about flying with a large amount of cash, Rebecca checked online and found out that flying with any amount of money domestically is completely legal. However, during security screening, TSA agents took her bag aside and made her wait to be questioned by Pennsylvania State Troopers.

While she was eventually allowed to leave for her gate with the money, before boarding she was approached again by a trooper and a DEA agent. After interrogating Rebecca and calling Terry, the agent seized the money without charging either Terry or Rebecca with a crime. Months later, Terry and Rebecca received notice that the DEA intends to permanently keep the money using civil forfeiture, a process that allows law enforcement to take the money without convicting anyone of a crime.

“Flying with any amount of cash is completely legal, but once again we see government agents treating American citizens like criminals,” said IJ Senior Attorney Dan Alban. “You don’t forfeit your constitutional rights when you try to board an airplane. It is time for TSA and federal law enforcement to stop seizing cash from travelers simply because the government considers certain amounts of cash ‘suspicious.’”

This is the third time IJ has sued the federal government to return cash taken from innocent air travelers. In Houston, Customs and Border Protection (CBP) seized more than $41,000 from a nurse traveling to Nigeria to open a medical clinic for women and children. In Cleveland, CBP seized more than $58,000 from a man using his savings to purchase a home for retirement. In both cases, the federal government eventually returned the money.

Terry’s and Rebecca’s lawsuit seeks the return of their money, but also aims to stop the unconstitutional and unlawful practices of TSA and DEA with class action claims and a claim against the DEA agent. First, the suit sets forth that TSA exceeds its legal authority by seizing cash, which poses no threat to air travel. Second, the suit claims that TSA violates the constitutional rights of flyers when it seizes bags without probable cause, simply because they contain a “large” amount of cash. Third, the suit claims that the DEA violates the constitutional rights of flyers by seizing their money without probable cause. Finally, the lawsuit includes a claim for damages against the DEA agent who seized Terry’s and Rebecca’s money without probable cause.

“My father and his parents worked hard for this money, and the government shouldn’t be able to reach into his pocket and take it,” said Rebecca Brown. “We did nothing wrong and haven’t been charged with any crime, yet the DEA is trying to take my father’s life savings. His savings should be returned right away, and the government should stop taking money from Americans who are doing something completely legal.”

Terry and Rebecca find themselves trapped in the upside-down world of civil forfeiture, where the government brings charges against property instead of people. The federal government does not have to convict or even charge people with a crime in order to take their property. Property owners are not entitled to legal representation, and the standard of proof needed for the government to keep the property is lower than in a criminal case.

“It’s become routine for law enforcement to seize money first and ask questions later,” said IJ Attorney Jaba Tsitsuashvili. “The government shouldn’t be able to take someone’s life savings without a related criminal conviction. Unfortunately, people like Terry across the country are forced to fight to prove their innocence just to keep money or property they worked hard to earn. This abuse needs to end.”

Pottstown Renters Score Major Win In Challenge To Unconstitutional Rental Inspections

Pottstown, Penn.—This morning, the Commonwealth Court of Pennsylvania issued an opinion vacating and remanding a lower court’s ruling in favor of Pottstown in a lawsuit challenging the borough’s rental inspection ordinance. This law allows the borough to enter residents’ homes without cause and without the residents’ consent. The Court also reversed the trial court’s orders denying discovery to the Pottstown residents who challenged the law. This makes sure that as the lawsuit now proceeds on remand, the residents will have a full record of how these inspections are actually conducted—and what inspectors actually do once they are inside peoples’ homes.

The Court also rejected the borough’s argument that, in order for the tenants to challenge the law, residents would have to first submit to the borough’s invasive rental inspections. After Pottstown tenants Dottie and Omar Rivera and their longtime landlord, Steve Camburn, refused to allow inspectors inside their home, Pottstown obtained administrative warrants to search inside—but with no suspicion that anything was wrong. The Borough also attempted to search the non-rental family home of Pottstown residents Thomas, Kathleen, and Rosemarie O’Connor without their consent and with no search warrant whatsoever. These brave citizens sued Pottstown with the help of the Institute for Justice (IJ).

“To require Tenants to endure the inspections before challenging the inspection requirement would render Tenants’ Article I, Section 8 privacy rights illusory,” the Court declared.

“We are thrilled that the Commonwealth Court has recognized the Pennsylvania Constitution’s strong protections of property rights,” IJ Attorney Rob Peccola said. “Pottstown’s rental inspections regime is a way to get around constitutional protections for privacy rights, and we look forward to litigating this case based on the facts on the ground.”

After the Pottstown residents compile a full record, there will be a decision on the merits at the Montgomery County Court of Common Pleas. This ruling could ensure that every Pennsylvanian who resists a search of their home can only have the government enter with a warrant supported by probable cause that something is wrong inside.

New Jersey Assembly Passes Transparency Bill for Police Seizures

The New Jersey Assembly unanimously passed a bill late Monday that would shine a light on “civil forfeiture,” which lets law enforcement seize property without ever charging the owner with a crime. In New Jersey, once property is forfeited, the government can then keep up to 100% of the proceeds, creating a perverse incentive to confiscate cash, cars and other valuables.

Under the bill (S1963), county prosecutors would submit quarterly reports that detail an agency’s seizure and forfeiture activity, including if they filed any criminal charges when seizing property. S1963 would also require law enforcement to report the date, description and location of the seizure, the agency involved, if the property was claimed by anyone, and its final disposition.

Once submitted, a report summary would be made publicly available on an online, searchable database created by the Attorney General. Departments that fail to comply would be required to disgorge any property seized or forfeited during their period of noncompliance, while the property would be returned to their owner. Finally, the bill would codify longstanding state policy on tracking forfeiture spending. According to the Institute for Justice (IJ),county district attorneys collected more than $72.5 million in forfeiture revenue between 2009 and 2013.

“By itself, improved transparency cannot fix the fundamental problems with civil forfeiture—namely, the property rights abuses it permits and the temptation it creates to police for profit,” noted Jennifer McDonald, an IJ senior research analyst who testified in favor of the bill and co-authored a report on forfeiture transparency. “Through its comprehensive disclosure requirements, this reform would play a vital role in keeping both the public and legislators well-informed about civil forfeiture in the Garden State.”

Should Gov. Phil Murphy sign the bill, New Jersey would become the 34th state to enact forfeiture reform. It would also be the 24th state to specifically pass new transparency requirements for civil forfeiture and would have the most robust reporting law east of the Mississippi.

The importance of collecting data is further underscored by a recent study from the Institute for Justice, which indicates that forfeiture doesn’t help police fight crime, but rather is a source of revenue for law enforcement. The IJ report, “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture,” combines local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Department of Justice’s equitable sharing program, which has funneled billions of dollars in forfeiture funding to state and local law enforcement.

The study specifically found that when local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“This study shows New Jersey policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, senior legislative counsel at the Institute for Justice. “The state’s forfeiture laws have long encouraged the pursuit of profit over public safety. In the next session, we urge the New Jersey Legislature to end civil forfeiture and replace it with criminal forfeiture. The legislature should also end forfeiture’s perverse financial incentives and direct forfeiture proceeds to neutral accounts.”

Pennsylvania Women Denied the Right to Work Win First Round in Suit Against the Pennsylvania Cosmetology Board

PHILADELPHIA—Today, a three-judge panel of the Commonwealth Court of Pennsylvania denied the Cosmetology Board’s motion to dismiss a lawsuit filed by two Philadelphia-area women who want to end an unconstitutional requirement that stands in the way of their careers. The Board used Courtney Haveman’s and Amanda Spillane’s past legal problems to deny them the right to work even after each spent hundreds of hours in cosmetology school. Courtney and Amanda, represented by the Institute for Justice (IJ), will now be able to continue the legal challenge to the requirement that applicants prove their “good moral character” before receiving a license.

“Courtney and Amanda deserve a fresh start,” said IJ Attorney Andrew Ward. “The Cosmetology Board argued that instead of going to court, they should have re-applied into the same system that treated them so badly the first time. We are grateful that the court rejected that argument. And we’re looking forward to proving that this arbitrary requirement stands in the way of good careers for Courtney, Amanda and many other women in Pennsylvania.”

After spending thousands of dollars on cosmetology school, the Board, citing a “good moral character” requirement, used Courtney’s and Amanda’s past legal problems to deny them the right to work. But their past offenses have nothing to do with their ability to work as estheticians—cosmetologists who focus on the beauty and care of the face. And while cosmetologists are subject to a good moral character test, Pennsylvania barber licenses lack the same requirement.

“Right now, I work in a salon, but I’m not allowed to do the job I trained for,” said Courtney. “The Board can’t stop me from shampooing hair but can stop me from working as an esthetician. That doesn’t make sense. If I could get my license, I could make more money to provide for myself and my young son.”

Pennsylvania requires good moral character for a number of jobs, ranging from landscape architect to poultry technician. Such laws limiting people previously convicted of a crime from working are known as “collateral consequences.” Nationwide, there are approximately 30,000 such laws related to employment alone, and they are found at every level of government: local, state and federal. With approximately 1 in 5 Americans required to hold a license to legally work, there are many common occupations from which ex-offenders are excluded, making it that much harder for them to find a job and stay out of trouble.

Nevada Families Win First Round in Fight to Restore Tax Credits for Scholarships

Las Vegas, Nev.—Today, Clark County District Court Judge Rob Bare handed Nevada families a first-round win in their constitutional challenge to a 2019 law that eliminated the automatic annual increase in the amount of tax credits available for donors to the Nevada Educational Choice Scholarship Program. Attorneys for the state were seeking to dismiss the lawsuit. Today’s ruling clears the way for Judge Bare to fully consider the lawsuit and rule on whether AB 458, a revenue-raising measure, was passed with the necessary two-thirds majority in the Senate. Three mothers of scholarship students, a scholarship granting foundation and two donors to scholarship programs are represented by the Institute for Justice (IJ) in the suit filed in August 2019.

“As expected, the court found that our clients have standing to challenge the bill that took away their children’s scholarships,” said IJ Attorney Joshua House. “We now look forward to demonstrating that the bill is unconstitutional and ensuring that students will be able to continue at the schools their parents have chosen for them.”

To accommodate the state’s growing population and increasing educational costs, the 2015 law that established the Scholarship Program increased the number of tax credits available by 10% annually, commonly known as an “escalator provision.”

By removing this provision in AB 458, the Legislature both increases revenue to the state and limits the growth of the scholarships, leading at least one scholarship organization to reject qualified applicants out of concern that funds will dry up. The legislation repealing the escalator provision passed with only 13 of 21 votes in the Senate—one short of the two-thirds requirement.

Lawsuit Challenges Arizona Engineering Licensing Law

From satellites in space to circuits for flashlights, Greg Mills has spent his entire career working as an engineer designing and building electronics. But earlier this year, a group of industry insiders sitting on a government board abruptly put Greg’s career on ice. Now he’s fighting back.

Greg’s resume reads like a veritable who’s-who of Arizona tech experts. After years of climbing the ranks within Phoenix-area tech and aerospace companies, he decided to set out on his own and started Southwest Engineering Concepts (“SOENCO”), an engineering consulting firm building circuits for small businesses and startups. For more than a decade, SOENCO was a success. But in May, government regulators from the Arizona Board of Technical Registration (ABTR) threatened to shut Greg down and impose thousands of dollars in fines—and maybe even jail time—all because they said Greg didn’t have a professional engineering license.

The ABTR asserts that anyone in Arizona doing any kind of engineering work—or even calling themselves an engineer—must first obtain a costly and burdensome license from the state. No matter what their qualifications are, how much experience they have or how simple their work products are—ABTR claims that “engineers” must obtain a license.

To get a license, Greg’s only option is to shut down SOENCO and get a job as an apprentice to a state-licensed engineer for eight years—just so he could then get back to doing what he has been doing for decades. But that’s not an option.

Depriving someone of their right to earn an honest living violates the Arizona Constitution, which is why Greg has partnered with the Institute for Justice (IJ), a nonprofit public interest law firm, to file a lawsuit challenging the ABTR’s ability to regulate any and all engineering activity. The lawsuit, filed in state court, seeks to protect Greg’s right to call himself an engineer, as well as his right to continue to design, analyze, test and build circuit prototypes.

“The Board’s definition of engineering is so vague that nearly anyone designing or building anything in Arizona could conceivably require a burdensome and unnecessary license,” said Paul Avelar, managing attorney of the Institute for Justice’s Arizona office. “Practically no one in Arizona who has built something is outside the reach of the Board’s claim of broad regulatory powers.”

Neither Greg nor any of the other thousands of engineers in Arizona must have a license to be an engineer working in the manufacturing industry. Arizona’s engineering licensing law has an exception allowing unlicensed engineers to work full-time for any company that manufactures products. But since SOENCO only makes prototypes, not final products, and Greg only consults with his clients, rather than work for them full time, Greg does not qualify for the exception. At the same time, there is no requirement that a manufacturer have any licensed engineers on staff to provide oversight or mentorship of those exempted, unlicensed engineers. In effect, that means that it is illegal for Greg to do the very same work at SOENCO that he used to do legally as an employee at General Dynamics.

If Greg is qualified to work for a manufacturer, he is qualified to work for himself. In fact, the vast majority of engineers working in the United States—80% by one estimate—are not registered or licensed.“Greg could legally do all this work if his clients hired him full time, but not if he wants to be a part-time consultant,” said Institute for Justice Constitutional Law Fellow Adam Griffin. “The Board’s actions do nothing to protect the health or safety of Arizonans, but make it impossible for small businesses to work in innovative areas. The Board’s actions only serve to protect the financial interests of those who use the Board’s enforcement power to protect their monopoly on ‘engineering’ in Arizona.”

Traditionally, engineering licenses have only encompassed work done on civil engineering, construction or public works projects where an engineer is required to “sign and stamp” plans. In this capacity, a licensed engineer is ensuring that a bridge, dam or building is safe and complies with applicable building codes. But that rationale makes no sense for a company like SOENCO. Everything that Greg designs, from battery chargers to timing sensors, goes through rigorous third-party safety analysis to ensure compliance with standards from the Underwriters Laboratory or the Federal Communications Commission.

“I have 30 years of experience designing and building electronic circuits,” Mills said. “There are satellites in space using circuits that I’ve designed. And yet Arizona says I can’t design something as simple as a flashlight or a battery-powered misting system without getting a useless license. Arizona prides itself on having a business-friendly climate. I shouldn’t have to go back to being someone else’s employee for eight years just so I can keep doing the same thing I’ve been doing for my entire career.”

Greg’s lawsuit alleges that the Arizona Constitution protects his right to call himself an engineer and to do the work he has done for more than 30 years without getting a license from the state. The lawsuit declares that the Arizona Board of Technical Registration—a body controlled by licensees—makes, interprets, enforces and adjudicates its own rules all at the same time, contrary to the express separation of powers rules put into the Arizona Constitution by the framers, who were particularly concerned about concentrating government power in any single institution.

Greg’s suit is not the first challenge to an engineering licensing law. In 2017, an Oregon engineer came under fire for criticizing the timing of traffic lights. He partnered with the IJ to sue the state and won. From hair braiding to taxi driving to engineering, for nearly 30 years the Institute for Justice has stood up for American’s right to earn an honest living.

Nepali Immigrants Sue Kentucky Over Law That Stopped Them from Opening a Home Health Care Business

Louisville, Ky.—Dipendra Tiwari saw an urgent need for Nepali speakers to receive home health care from workers who understood their language and culture. With thousands of Nepali immigrants living in the Louisville area, he hoped to open a modest business that would employ nurses and health aides qualified to offer services to both the Nepali community and anyone else needing quality care in their home. But his dream was ended by a state law that says that there is no need for new home health agencies in most of Kentucky.

That law requires something called a certificate of need (CON), and it allows large health care companies to effectively monopolize home health services in the state. Dipendra’s application was formally opposed by the $2 billion Baptist Health conglomerate, which operates its own home health agency. Shocked and upset that the law would bar new home health entrants, Dipendra and his business partner, Kishor Sapkota, have teamed up with the Institute for Justice (IJ) to file a federal lawsuit against the state of Kentucky.

“Certificate of need laws unconstitutionally prevent new businesses from competing with established ones, while harming patients. Government shouldn’t be in the business of picking winners and losers,” said IJ attorney Jaimie Cavanaugh.

Dipendra Tiwari came to the United States in 2008, earned an MBA and became a certified public accountant. He owns and operates Grace CPA outside Louisville. Kishor Sapkota currently works in home health care and is married to a nurse. The two carefully followed the home health agency application procedures but were rejected in January of 2019 because Kentucky uses a crude formula to determine need for home health services county by county. In Jefferson County, which contains Louisville and its suburbs, the state has determined that there is no need, so no new home health agencies can serve patients.

Existing home health agencies, many of which are attached to large hospital companies, are more easily allowed to expand their services and ensure that the state’s calculations prevent new agencies from entering the market. Today, new agencies are allowed to open in just six of the state’s 120 counties.

“We simply want to start a home health agency that offers health care in the first language of thousands of Kentuckians,” said Dipendra. “Yet because of Kentucky’s certificate of need law, the big sharks can keep the small fish out of the market. When I opened my accounting firm, I didn’t need my competitor’s permission. Why should it be any different for home health care?”

Resources

  • Watch a video about the case
  • Read the lawsuit
  • Images of Dipendra and Kishor

The federal government encouraged states to pass certificate of need laws in the 1970s as a move to control costs. However, after a decade of experience, it became apparent that the laws were not working as policymakers intended. The federal government reversed course. But with the encouragement of existing health care providers, many states kept their CON laws on the books. Currently, 17 states require a CON to open a home health agency.

Numerous studies have shown that CONs do not reduce health costs and may serve as a barrier to patients getting the care they need. In 2013, a national consulting firm hired by the state of Kentucky recommended “[s]uspending / discontinuing the CON program for home health agencies.” However, that recommendation was never acted upon by Kentucky legislators.

“Health care costs are rising,” said IJ attorney Andrew Ward. “The last thing the government should be doing is imposing fewer choices and higher prices.”

IJ first challenged a CON law in 2012 in Virginia. Currently, IJ is working with doctors in Iowa to challenge a CON for outpatient eye surgery centers and a doctor in North Carolina to challenge a CON on MRI services.

North Dakota Health Department Guts Food Freedom Law

Bismarck, N.D.Today, the North Dakota Legislative Assembly’s Administrative Rules Committee approved rules to significantly weaken the state’s food freedom law. The Institute for Justice (IJ) has repeatedly urged the Legislature and the state Department of Health not to adopt rules that will significantly impair people’s ability to run their homemade food businesses. 

The law, which went into effect in 2017, allows virtually any homemade food item (except for raw dairy and certain meat products) to be sold directly to consumers. But citing a purported concern for public health and safety, the Department has repeatedly attempted to adopt administrative rules that not only limit the kinds of foods that may be sold to just baked goods, some canned goods, and fresh produce, but also prevent producers from selling any ready-to-eat items at public events.  

But those concerns are unfounded. Wyoming adopted its food freedom law in 2015, and so far there have been no reports of anyone getting sick from a homemade food they purchased in their community. “Given the unblemished track record of food freedom laws, there is no need to impose such severe regulations on homemade food businesses,” said North Dakota goat farmer and food freedom activist LeAnn Harner. 

Adopting these rules will have real-life impacts on countless people across the state. Research suggests cottage food businesses provide an important path to entrepreneurship and financial independence for their owners, who are often lower-income women living in rural areas. And when states restrict the foods that home-based entrepreneurs may sell, those individuals are less likely to expand their businesses. 

“Homemade food producers use their extra income to buy health insurance for their families and get out of debt,” said Jennifer McDonald, a senior research analyst at IJ. “These new rules will have a detrimental effect on the financial security of many North Dakota families.”

The Department of Health tried to adopt these rules when the law went into effect but withdrew them after intense opposition from IJ and other food freedom advocates. Earlier this year, the Department proposed the rules again but this time in the form of proposed legislation. Once again, the Legislature rejected the changes. 

“The Legislature made its intent clear when the Act was first adopted,” said Erica Smith, an IJ attorney. “It is not the role of the executive branch to undermine decisions made by the elected Legislature.”

The rules will go into effect on January 1.

IJ Applauds Texas’ Proposal to Stop Denying Security Licenses for Unrelated Criminal Convictions

Arlington, Va.—On Friday, the Institute for Justice (IJ) submitted comments to the Texas Department of Public Safety supporting rules proposed on October 25, 2019. The rules ease licensing burdens on people with unrelated criminal records who now want to work in the private security industry. Enforcing a new Texas law and directive by Governor Greg Abbott, the rules harmonize the Department’s standards with those in 20 other states and the District of Columbia—none of which will deny an occupational license for an unrelated criminal conviction. A public-records request by IJ had shown that, under its prior rules, the Department was routinely denying licenses for irrelevant, decades-old convictions, including single convictions for marijuana possession or driving while intoxicated.

“We can all agree that private security professionals are in a position of trust, and not everyone is suited for the job. For example, convicted murderers and thieves should probably not be trusted to protect others and their valuables,” IJ attorney Tatiana Pino said. “But other, irrelevant criminal convictions should not stand in peoples’ way when they’re trying to be productive members of society and pursue a lawful profession. They should be given the chance to show that, despite some blemishes in their past, they can be trusted.”

The proposed changes to Texas’ private-security licensing balance protecting the public with allowing those who are not a threat to be given a chance. Most significant is the Department’s proposed removal of a regulation that allowed the government to revoke, suspend, or deny a private-security license because the applicant had an unrelated conviction.

IJ also supports the Department’s proposal to consider fitness factors, such as the remoteness of offenses and evidence of rehabilitation. Finally, IJ supports the Department’s shortened disqualifying periods for felony and misdemeanor convictions. People reentering society after prison need jobs just as much as anyone else, and allowing formerly incarcerated people to secure productive roles in society sooner rather than later will reduce the risk of crime. A 2016 study shows that, between 1997 and 2007, recidivism rates grew by at least 9% in states with the heaviest licensing burdens and shrank by 2.5% in states with the lightest licensing burdens.

Given the different types of private security jobs—ranging from traditional security officer to alarm installer—IJ recommends that the Department consider more narrowly tailoring which specific offenses are disqualifying for which specific private security licenses. Overall, however, IJ lauded the Department’s proposal, which heads in that direction.

This action is part of IJ’s continuing efforts to lift unreasonable licensing barriers that burden the right to pursue a chosen livelihood. “There’s a growing consensus that once people have paid their debts to society, they need to be able to get back on their feet,” said IJ attorney Andrew Ward. “No one should be denied the right to work because of irrelevant criminal convictions.”

Homeowners Seek Rehearing in House-Destruction Case

Arlington, Va.—If the government needs to destroy your home to build a freeway or a school, the Constitution entitles you to just compensation. But what if the government needs to destroy your home for some other reason—say, to capture a fugitive who has randomly taken refuge in your house while fleeing the police? Does the government owe you anything?

Shockingly, the U.S. Court of Appeals for the Tenth Circuit held in a ruling this October that as long as the government uses its “police power” to destroy property, it cannot be required to provide compensation for that property under the U.S. Constitution’s Takings Clause. Today, the Institute for Justice, the nation’s premier defender of property rights, announced that it will file a petition for rehearing by the entire Tenth Circuit (known as rehearing en banc).

“The simple rule of the Constitution is that the government cannot arbitrarily single out private citizens to bear the costs of something that should rightly be the burden of society as a whole,” explained IJ Attorney Jeffrey Redfern. “If the government requires a piece of property to be destroyed, then the government should pay for it—and that’s just as true regardless of whether the people doing the destroying are the local school board or the local police.”

The case was brought by Leo, Alfonsina and John Lech, seeking compensation for the destruction of a home Leo and Alfonsina owned (and in which their son John lived with his own family) in Greenwood Village, Colo. In 2015, an armed shoplifter fleeing the police broke into the home (apparently at random) and refused to come out. After taking gunfire from the shoplifter, the police resorted to more strenuous means of attack, including explosives, high-caliber ammunition, and a battering ram mounted on a tank-like vehicle called a BearCat. The fugitive was apprehended, but the home was totaled.

The Lechs’ case, originally brought by Colorado attorney Rachel Maxam, who continues to represent the family alongside IJ, argued that the complete destruction of the house was a “taking” that required compensation under the U.S. Constitution. But a three-judge panel disagreed, ruling that actions by law enforcement officials could never amount to a “taking,” no matter what, and so the appropriate amount of compensation was zero dollars.

“The police are allowed to destroy property if they need to in order to do their jobs safely,” said IJ Senior Attorney Robert McNamara. “But if the government destroys someone’s property in order to benefit the public, it is only fair that the public rather than an innocent property owner pay for that benefit.”

“This whole affair has quite simply totally destroyed our lives,” said Leo Lech. “My son’s family was very literally thrown out into the street with the clothes on their back, offered $5,000, and told to ‘go deal with it.’”

“Property rights are the foundation of our rights,” said IJ President and General Counsel Scott Bullock. “The court’s ruling that government officials can purposefully destroy someone’s home without owing a dime in compensation is not just wrong. It is dangerous, and it is un-American. The Institute for Justice is committed to seeing it overturned, for the Lechs and for the protection of property owners across America.”

North Carolina Surgeon Wins First Round in Fight to Eliminate State-enforced Medical Monopoly

Raleigh, N.C.—Today, a state superior court judge denied the North Carolina Department of Health and Human Services’ motion to dismiss a constitutional challenge to a law that bans medical providers from purchasing an MRI scanner without first obtaining special permission—called a “certificate of need,” or CON—from the government. The court cleared the way for the case to proceed, in a first-round victory for Dr. Gajendra Singh who is represented by the Institute for Justice (IJ).

“The court correctly rejected the government’s argument that Dr. Singh needed to apply for a CON before bringing this case,” said IJ Attorney Renée Flaherty, who argued the motion. “No one should have to go through an unconstitutional process in order to challenge it. We look forward to showing that North Carolina’s CON law unconstitutionally favors existing businesses at the expense of Dr. Singh and other medical providers.”

In July 2018, IJ and Dr. Singh, a Winston-Salem surgeon, and his business, Forsyth Imaging Center, sued the Department of Health and Human Services, alleging that North Carolina’s CON law is unconstitutional because it bans medical providers from offering services patients need solely to protect existing providers from competition. In order to receive a CON, providers must persuade state officials that new services are “needed” through a cumbersome process that resembles full-blown litigation and allows existing businesses, like established hospitals, to oppose their applications. Even after a CON is granted, existing providers can appeal the decision. Dr. Singh should not have to go through such a burdensome process just to provide affordable services that patients need.

“This decision clears the way to litigate the question at the heart of this case: Can the state ban Dr. Singh from providing low-cost MRI services for patients who can least afford them just to protect established providers from competition? We’re ready to explain to the court why, under the North Carolina Constitution, the answer is no,” said IJ Attorney Josh Windham, who also represents Dr. Singh.

Dr. Singh opened Forsyth Imaging Center to provide high-quality, affordable imaging services to patients who need them. Through both his surgical practice and personal experience, Dr. Singh discovered that patients in Winston-Salem were struggling to afford expensive diagnostic scans from local providers—and more, that patients were finding it almost impossible to determine their out-of-pocket costs upfront.

So far, Dr. Singh has successfully acquired most of the diagnostic equipment needed to provide these much-needed scans, but he has been prevented by the CON law from purchasing what is often the most crucial and expensive tool patients need: an MRI scanner. There is no reason Dr. Singh cannot provide safe MRI scans, but because the hospital down the street already has an MRI scanner, he cannot buy one. The North Carolina Constitution specifically outlaws state-enforced monopolies and requires that laws be applied evenly to protect citizens’ right to pursue their chosen businesses.

“We are very excited that our lawsuit will continue. I believe in the free market and doctors’ rights to provide affordable care, and the CON law makes that impossible. Winning this case would allow us to expand our services and help more people who are currently trapped in a system plagued by high costs,” said Dr. Singh.

Video News Release: Forfeiture Victims Need to Act Now To Get Compensation for Taken Property

PHILADELPHIA—Philadelphians who lost their property to the city’s abusive civil forfeiture machine must apply by December 6, 2019 to receive a cash settlement. Last fall, the Institute for Justice (IJ) announced an agreement with the city to end a class action lawsuit on behalf of people who had homes, cash and cars wrongfully seized. After a federal court preliminarily approved this agreement, almost 35,000 individuals were mailed an official class notice informing them that they may be eligible for compensation.

In a new video news release available HERE, IJ Senior Attorney Dan Alban explains what steps Philadelphians need to take to apply.

“Right now, anyone who lost their property should go to PhillyForfeiture.com,” said Alban. “At that website, they can learn more about how to apply. The deadline is coming up, it’s only a few weeks away on December 6.”

People can apply for compensation by completing and mailing the Claim Form they received in the mail or by submitting a claim online at https://www.phillyforfeiture.com/claimform.aspx. Individuals will need their Unique ID number included in the official class notice to submit a claim. Individuals who had their property subject to civil forfeiture on or after August 11, 2012, but did not receive a letter should contact the Institute for Justice at (703) 682-9331 or the Claims Administrator at (888) 730-9958.

Class members must apply by December 6, 2019, to be eligible to receive their cash settlement.

The settlement establishes a $3 million fund to compensate forfeiture victims with the following details:

  • Each qualifying person who lost their property through forfeiture, but who was not convicted of a related criminal charge, will get up to 100 percent of the value of their forfeited property;
  • Each qualifying person who lost their property through forfeiture, but who participated in a diversionary program for low-level, first-time offenders, will receive up to 75 percent of the value of their forfeited property;
  • Each qualifying person who submits a timely claim will get up to $90 in recognition of the violation of their constitutional rights.
Civil Forfeiture Victim Takes Her Fight For Attorneys’ Fees to U.S. Supreme Court

Arlington, Va.—On May 11, 2015, Miladis Salgado returned home to find her life turned upside down. While she was at work, police had raided her home and seized her entire life savings—$15,000 in cash she was saving for her daughter—based on a tip that her estranged husband was dealing drugs. He wasn’t, but that didn’t stop the Drug Enforcement Agency (DEA) from filing a civil forfeiture complaint in an attempt to keep Miladis’ money forever.

Miladis was incensed. She’d done nothing wrong, so she decided to fight back against the government. Without any savings, the only way she could afford an attorney was to hire one on contingency. After two years of legal wrangling and countless sleeplessness nights, she won her case. The court was finally about to rule in Miladis’ favor, so the DEA admitted that there was no evidence of a crime and agreed to give back her money, but in doing so, it refused to pay her attorneys’ fees. That meant Miladis would receive $10,000 of her money back, but the remaining $5,000 would go to her attorney, who had represented her in court.

Although the case was dismissed, Miladis decided she wasn’t done fighting until the government returned every single penny it had taken from her, including the money the government had forced her to spend on an attorney. So she petitioned the judge to award her attorneys’ fees, but he refused. The judge said that because the government had returned the money before he ruled on her case, she could not be awarded her attorneys’ fees. It did not matter that the government had waited two years. The federal appeals court agreed.

Today, Miladis has partnered with the Institute for Justice, a nonprofit, public interest law firm, to bring her petition for attorneys’ fees to the U.S. Supreme Court.

“The threat of paying attorneys’ fees is a critical check on government abuse,” said Justin Pearson, a senior attorney at the Institute for Justice. “Otherwise, there is no disincentive to stop prosecutors from filing frivolous civil forfeitures against property belonging to innocent owners like Miladis.”

Pearson continued, “The government can’t take your property, keep it for years, and then suddenly give it back and pretend like nothing happened. Seizing someone’s property and forcing them to hire an attorney for two years to get it back has real costs.”

In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) which, among other things, requires the government to pay attorneys’ fees to anyone who challenges a forfeiture in court and wins. The provision was intended to provide a disincentive for the government to file baseless forfeiture lawsuits, but federal prosecutors have gamed the system. When prosecutors realize they may lose in court, they often prolong the case in hopes of forcing a settlement that will allow them to keep part of the innocent owner’s money. But if the innocent owner doesn’t give in, then the prosecutors will voluntarily return the property just before the court rules. In doing so, they deprive the owner of a “win,” and subsequently argue that without a “win,” CAFRA’s fees requirement doesn’t apply.

“By gaming the system and denying property owners a ‘win’ in court, federal prosecutors have found a way to short circuit judicial oversight of their activities, while at the same time preserving their ability to continue to abuse Americans’ property rights,” said IJ Senior Attorney Dan Alban. “This is the equivalent of the government claiming, ‘no harm, no foul,’ when in reality there is very real harm done to the thousands of Americans that challenge civil forfeitures in court.”

Malidis chose to fight for her rights, but most civil forfeiture victims cannot spend years in court fighting to get their property back. In fact, according the Institute for Justice’s report Policing for Profit, 88% of federal civil forfeitures never make it before a judge. In many cases, the cost of hiring an attorney to contest the forfeiture in court is more than the value of their property, so their only real option is to give in to the prosecutor’s settlement demands and then walk away.

The Institute for Justice is no stranger to the government’s strategy of denying victims their day in court and refusing to pay attorneys’ fees. Over the past decade, IJ has challenged illegitimate civil forfeitures across the country. In nearly every case, once IJ became involved, the federal government quickly capitulated and returned the property to IJ’s clients, while at the same time it fought any attempts to recover attorneys’ fees.

This is also not the Institute for Justice’s first time arguing about civil forfeiture at the U.S. Supreme Court. In February, IJ secured a unanimous ruling that the Constitution’s prohibition on excessive fines under the Eighth Amendment limited law enforcement’s ability to use civil forfeiture to seize its client’s automobile after he pleaded guilty to a minor drug offense.

“For more than a decade, IJ has fought to end civil forfeiture once and for all,” said IJ President Scott Bullock. “It is one of the greatest threats to property rights in America today and we are confident that the Supreme Court will continue to reign in this unconstitutional abuse of power.”

Should the Government Keep Tabs Of Your Support for Nonprofits?

“Charities should not have to show that their donors have been subject to the terroristic threats the NAACP suffered in the 1950s before they will be allowed to keep their donor lists private. By that time, the harm to private speech and association has already been done.”

Arlington, Virginia—Would you want the government to know that you donate to controversial organizations like Planned Parenthood or the National Rifle Association? Would you trust the government to keep that information private?

Whether you are worried about harassment from government officials who don’t agree with your world view, or you simply believe that your private charitable giving is none of the government’s business, you may have strong personal reasons to keep your private charitable giving private. But that privacy is under threat if the U.S. Supreme Court decides not to accept and reverse an important First Amendment case arising out of California called Americans for Prosperity Foundation v. Becerra.

The case will decide whether state governments can demand to know the names and addresses of donors to nonprofits that are not involved in an election, but merely in public policy issues. It is a case that could open a pandora’s box of harassment for nonprofit donors if the Court does not overturn a ruling by the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit held that nonprofit donors’ information may be collected by state governments, paving the way for them to be leaked or otherwise made public.

“Charities should not have to show that their donors have been subject to the terroristic threats the NAACP suffered in the 1950s before they will be allowed to keep their donor lists private,” said Paul Sherman, a senior attorney with the Institute for Justice, which filed a friend of the court brief on Americans for Prosperity’s (AFP) behalf. “By that time, the harm to private speech and association has already been done. But that is the standard the Ninth Circuit’s ruling forces charities to meet if they want to protect their donors’ privacy.”

This suit began when then-Attorney General for the State of California Kamala Harris (and now her successor Xavier Becerra) demanded the names and addresses of anyone who donated more than $5,000 to the free market public policy group AFP as a condition for the organization to fundraise in the state. AFP does not engage in electoral politics; rather, it merely engages in run-of-the-mill public policy discussions and advocacy common to nearly every nonprofit in the nation. AFP sued to protect the privacy of its donors and to shield them from threats and harassment.

“Multiple people associated with Americans for Prosperity have received death threats or otherwise been harassed,” said Sherman. “At the same time, California has done a terrible job of keeping the nonprofit records it receives confidential; Americans for Prosperity’s expert witness was easily able to access all 350,000 of the supposedly ‘confidential’ documents stored on the AG’s website.”

Sherman said, “Under the U.S. Supreme Court’s precedent about nonprofit disclosure, this should have been an easy case. For decades, the Supreme Court has held that the First Amendment provides substantial protection for the confidentiality of donor lists. Unfortunately, a growing number of lower courts are turning for guidance on these issues to the Supreme Court’s more recent decisions regarding campaign-finance disclosure, an area where the Court has shown far less protection for donor privacy. That’s exactly what the Ninth Circuit did by applying a watered-down version of ‘intermediate’ scrutiny under which the government will essentially always win.”

Since the 1970s, the Court’s campaign finance cases have twisted First Amendment precedent into knots in order to justify expansive regulation of political speech. Those developments are bad enough on their own without being allowed to infect other areas of First Amendment doctrine that have always received a high level of protection.

As the Institute for Justice makes clear in its amicus brief, “For generations, [the Supreme] Court has vigorously protected the right of private association. A central theme of this precedent is the understanding that when government compels private citizens to disclose their private associations, those citizens will be chilled from associating. And the existence of this chilling effect, which this Court has taken as intuitively obvious, is supported by scholarly research. The Ninth Circuit, however, ignored all of that, and instead held not only that AFP . . . must prove that their speech had been chilled, but that they must do so with evidence of previous harassment to obtain relief.”

“Disclosure is supposed to be about keeping tabs on government, not keeping tabs on private citizens,” said IJ’s President and General Counsel Scott Bullock. “Transparency is important for the government so the public can assess the actions of its lawmakers. But privacy for the individual—in their freedom of speech and freedom of association—is an essential American value, going as far back as the anonymous authorship of the Federalist Papers. Those anonymous documents laid the foundation for the very Constitution that will be debated before the U.S. Supreme Court in Americans for Prosperity v. Becerra.”

The Court is expected to decide as soon as mid-January whether it will hear AFP’s appeal.

U.S. Supreme Court Appeal: In Iowa, Convicted Criminals Can Have Their Records Expunged, But Those Too Poor to Pay Court Debts Are Not So Lucky

Arlington, Va.—An Iowa woman is trapped in a Catch-22. Years ago, she was arrested but then never convicted of a crime. The arrest is a public record, standing as a barrier to her getting a good job. By paying her debt to the court system, she could wipe her record clean, a process known as expungement. Yet without stable employment, she cannot afford to pay her debt. The Institute for Justice (IJ), a nonprofit, public interest law firm, and the Collateral Consequences Resource Center filed an amicus brief calling on the U.S. Supreme Court to hear her case, Jane Doe v. Iowa, and find that one’s inability to pay court fees should not be a barrier to the right to expungement.

“Americans caught up in the justice system, whether or not they were convicted, face significant barriers to employment,” said IJ Senior Attorney William Maurer. “Iowa granted individuals the right to wipe their record clean, but only if they can afford it. The right to start fresh and find a good job should not be restricted just to people of means.”

A criminal record, and even arrests that do not result in a conviction, can serve as a barrier to voting, employment, education, government licenses, housing and public benefits. These barriers are collectively known as collateral consequences, and they affect 70 to 100 million American adults who have encountered the criminal justice system. IJ defends Americans’ right to earn a living in the occupation of their choice without unnecessary government interference and is currently challenging a collateral consequence provision for cosmetology licenses in Pennsylvania.

Across the country, there are about 30,000 laws making it harder for people with criminal histories to work. There is a growing consensus that this harsh approach is not working. Allowing individuals to support themselves is critical to preventing repeat offenses. An Arizona State University report found that in states where the government makes it harder for people to get jobs through licensing requirements, recidivism rates grow.

In Jane Doe’s case, her criminal charges were dismissed, but her arrest remains a matter of public record that employers can discover with a routine background check. Finding a job that pays enough to meet her needs and save up to expunge her record is extraordinarily difficult. While some states have altered their expungement practices to consider an individual’s ability to pay court debts, Iowa continues to require full payment before wiping a record clean. This violates the U.S. Constitution’s Equal Protection Clause because it makes relief dependent on one’s socioeconomic status.

An Iowa district court rejected Doe’s argument and the Iowa Supreme Court narrowly affirmed. Now Doe is appealing to the U.S. Supreme Court, which will consider taking her case in an upcoming conference.

The amicus brief filed on behalf of the Institute for Justice and the Collateral Consequences Resource Center was written by Thomas M. Bondy and Ethan P. Fallon of Orrick, Herrington & Sutcliffe LLP in Washington, D.C.

Washington Supreme Court Reverses Decades of Precedent Protecting the Constitutional Rights of Washingtonians

In a unanimous opinion issued today in the case of Yim v. City of Seattle, No. 95813-1, the Supreme Court of Washington upheld the city of Seattle’s “First In Time” (FIT) law from a constitutional challenge brought by Seattle landlords. The FIT ordinance required Seattle landlords to offer vacant units to the first qualified applicant. The court upheld the FIT ordinance against claims that it took the landlords’ private property and transferred it to private individuals, deprived landlords of their due process rights, and violated their right to free speech.

In coming to this conclusion, the court reversed decades of its own decisions that held that the Washington Constitution provides greater and independent rights for Washingtonians than the federal Constitution. It specifically overturned seven decisions dating back over 30 years that held that the Washington Constitution provides greater protections for private property than the U.S. Constitution. It also overturned cases holding that the government violates the state constitution when it acts in a way that is unduly oppressive to individual rights. Finally, the court held that the Washington Constitution’s protection of free speech, which guarantees the right of all Washingtonians to speak freely “on all subjects,” provides fewer protections for speech regarding commercial transactions than speech on other topics.

William Maurer, the managing attorney of the Institute for Justice’s Washington state office in Seattle, issued the following statement in response to the decision:

Today’s decision is not about whether the city of Seattle can mandate that landlords rent to the first tenant who meets their rental criteria. The decision today is about whether Washingtonians can continue to rely on the protections of our state constitution that have been in effect since the state was founded in 1889. With this decision, the Washington Supreme Court has made it clear that, for large sections of that document, they cannot.

When the people who founded this state wrote our constitution, they specifically chose to make its Declaration of Rights far more explicit and protective than the federal Bill of Rights. They did this because they felt that the federal document did not protect the fundamental rights of Washingtonians sufficiently. Today the Washington Supreme Court has undone the founders’ decision and replaced our constitution with protections our founders specifically believed were inadequate.

The real harm of today’s decision is not to the Washington Constitution. The real harm is to the people of this state, who will now have no independent protections from the state government and municipalities who want to violate their rights. Today’s decision gives the green light to the government to unduly oppress the state’s residents, deprive them of their ability to freely use and enjoy their property, and speak freely about commercial matters. Perhaps the only way to revive the rights the court has taken from the people of this state is to amend our state Declaration of Rights by adding at the end, ‘And this time we mean it.’

IJ is a nationwide public interest law firm that fights for the constitutional rights of all Americans and its Washington office litigates cases to specifically vindicate the rights guaranteed by the Washington Constitution. IJ filed a friend of the court brief urging the court to preserve the rights guaranteed by that document.

IJ Attorney Joshua Windham, who co-authored IJ’s friend of the court brief, added:

It is difficult to overstate the harm this decision will cause to the constitutional rights of Washington residents. The court has basically made large portions of the Washington Constitution superfluous and leaves Washington residents to rely only on federal interpretations of their rights.

In Response to Federal Constitutional Lawsuit, Washington Ends Religious Discrimination in State Work Study Program

In a move to end discrimination and provide expanded employment and educational opportunities to Washington’s higher-ed students, yesterday the Washington Student Achievement Council adopted new regulations that will allow students in the state’s Work Study Program to take jobs with religiously affiliated employers. The new regulations were adopted in response to a 2018 lawsuit challenging the state’s former prohibition on religious options in the Work Study Program. That lawsuit was filed by the Institute for Justice (IJ) on behalf of Summit Christian Academy, a private elementary and secondary school in Spokane, as well as the Young Americans for Freedom Club at Whitworth University.

“The new regulations are a boon for college students throughout Washington,” said IJ senior attorney Michael Bindas. “They will greatly expand employment options for work study students, especially in fields such as education, healthcare, and social services—fields in which religious employers play a large and important role. The Student Achievement Council should be commended for adopting them.”

Like work study programs in other states, Washington’s is a financial aid program that provides funding for low- and middle-income students who want to earn money during college, often working in jobs that relate to their field of study. But unlike most other states, Washington excluded jobs with employers that the government deemed overtly religious. For instance, a student majoring in environmental science could work at the Washington State Department of Natural Resources and a business student could work at Amazon, but a student majoring in social work could not feed the homeless at a church’s soup kitchen. Nor could an education major work at a religious elementary or secondary school such as Summit Christian, which was rejected as a work study employer in 2015 simply because it is religious.

In fact, the “sectarian” exclusion in the Work Study Program even prevented students at religious colleges, such as Whitworth, from working for their own schools. While their counterparts at secular colleges, public and private, were perfectly free to pursue work study on campus, students at religious colleges were forced to travel off-site to take advantage of the program.

“The U.S. Constitution requires government to be neutral, not hostile, toward religion,” Bindas explained. “That means government must afford work study students the choice of whether to work for non-religious or religious employers. The government doesn’t get to make that choice for them.”

Under the new regulations, work study students will be free to pursue jobs with religious employers, so long as the work itself does not “directly involve religious worship, exercise or instruction.”

Summit Christian principal Wes Evans celebrated the new regulations. “Being able to employ Washington’s outstanding college students as tutors and aids will be a great boost to the educational experience and achievement of the pre-K through 12th-grade students who attend the state’s many religious schools. We are excited and blessed at Summit Christian Academy to now have this opportunity of partnering with these talented college students.”

Lauren Sagvold, chair of the Young Americans for Freedom Club at Whitworth, likewise praised the new regulations. “In the past, Whitworth students eligible for state work study were required to find work off campus,” Sagvold explained, “and a common challenge many students faced was with reliable transportation. By allowing the university to offer students opportunities to work on campus, these new regulations will better support students, which is what the state Work Study Program is all about.”

“Just as we stress when defending other educational choice programs throughout the country, government cannot dictate where a student chooses to learn or, in this case, work,” said IJ attorney Joshua House. “Whether it is a college student who wants to work for a religious employer or a grade school student who wants to attend a religious school, the Supreme Court has made clear that government cannot discriminate on the basis of religion.”

In light of the newly adopted work study regulations, Summit Christian and the Young Americans for Freedom Club plan to voluntarily dismiss their lawsuit.

Save the Pearl: New Group Formed to Oppose Tulsa Development Authority’s Eminent Domain Plans

Tulsa, Okla.—Today, residents and supporters of Tulsa’s Pearl District announced the formation of a new group, Save the Pearl Coalition. The new group is dedicated to stopping the city and Tulsa Development Authority (TDA) from taking residents’ homes against their will for the purpose of redevelopment. While the TDA has publicized the plans as a drainage project to improve public safety, the city’s plans show that the Pearl District project is actually meant to make the neighborhood look different by bulldozing existing homes and engaging in redevelopment. Save the Pearl Coalition seeks to protect Pearl District residents and won’t stop its campaign against Tulsa’s landgrab until the city abandons the use of eminent domain in pursuit of its redevelopment plans.

Tulsa’s attempts to force Pearl District residents to sell their homes or else lose their property by force via eminent domain are not just wrong: They’re unconstitutional. In May 2006, the Oklahoma Supreme Court held that the Oklahoma Constitution prohibits the use of eminent domain for economic development, giving Oklahomans greater protections from eminent domain abuse.

Rather than respect the limits the Oklahoma Constitution places on its power, the city chose to hand its so-called flood control project to the TDA years ago and it is now being used for one purpose: economic development. Tulsa has left a paper trail over the course of several years that shows that “flood prevention” is merely a pretext for the TDA’s redevelopment vision for the Pearl District.

Back in 2010, the Pearl District detention pond project was described in Tulsa’s Elm Creek Master Drainage Plan. That document stated that drainage ponds “have tremendous potential to become catalysts that will accelerate the revitalization of the Pearl District and surrounding neighborhoods.” In a document from the city from 2018 titled “Final Plans for Elm Creek West Pond,” Tulsa makes clear that the purpose of the pond is “to allow for redevelopment and revitalize the Pearl District.” And the 2019 Pearl District Small Area Plan concedes that the flood control facilities “were intended to serve as a catalyst for new, large-scale, urban infill development to be produced through public-private partnerships.”

In other words, according to Tulsa’s own descriptions spanning a decade, this pond is not tailored to address drainage for Tulsa. It is perfectly tailored to help Tulsa and the TDA take over a neighborhood where families are currently living because it wants to redevelop the area.

“We welcome progress to the Pearl District, but not giving up our homes and this neighborhood for others to develop on,” said Gabriela Tarvin, whose home is being targeted for the TDA’s redevelopment plans. “We as private citizens have put our effort and money into making the dream of having a home in the city come true. And here we are, fighting for our home.”

Gaby loves her home because it lets her live near the city. Growing up, she loved that her grandmother lived in Guatemala City, and she always wanted to live in a city herself. Despite the poor condition of the property when she and her husband bought it, they were willing to take a risk to renovate it into a beautiful home because of the tremendous view of the Tulsa skyline. That is now the view from her kitchen window, and she does not want to lose the home in a city that she’s always dreamed of.

“My greatest hope is that the city recognizes this plan is unnecessary and has no real energy of its own. If you take a closer look at the city’s explanation for why it’s doing this, it simply doesn’t make sense. We hope the city makes a better choice” said John Dawson, whose home the Tulsa government plans to take through eminent domain.

Save the Pearl Coalition has created a Facebook group, https://www.facebook.com/PearlDistrictTulsa/, to educate and gather support for residents like Gaby and John.

The group is working with the Institute for Justice (IJ), a national public interest, civil liberties law firm dedicated to stopping the abuse of eminent domain. IJ represented Susette Kelo and her neighbors before the U.S. Supreme Court in Kelo v. City of New London and has successfully litigated on behalf of property owners throughout the country. IJ has helped save over 20,000 homes and small businesses from eminent domain abuse through grassroots activism.

“This is an economic redevelopment issue hiding behind a flood mitigation pond in order to give it the veneer of public use,” said Chad Reese, an activism policy manager with the Institute for Justice. “The Tulsa city government is offending the Oklahoma Constitution and our intelligence with this plan. Tulsa must abandon it once and for all.”

Institute for Justice Asks U.S. Supreme Court to End Colorado Law Allowing Neighbors to Engage in Eminent Domain Abuse

Arlington, Va. — Imagine if two of your neighbors got together, claimed they established a new town, and then “voted” to take your property from you using eminent domain. Crazy, right? Not in Colorado, where the owners of Woodcrest Homes are battling a competing developer’s attempt to use eminent domain to take their property.

After battling in the courts for the last four years, today the Institute for Justice has partnered with Woodcrest to formally petition the U.S. Supreme Court to resolve whether the Constitution allows private developers to grant themselves the right to use eminent domain to seize someone else’s private property for their own gain.

READ THE CERT PETITION FILED TODAY

In upholding the land grab, the Colorado Supreme Court wrote: “Permitting some private benefit by public taking may strike some as unusual. But Colorado is no stranger to this method of encouraging development.”

“When it comes to property rights, Colorado’s law is more akin to the Wild West than a constitutional republic,” said Jeff Redfern, an attorney at the Institute for Justice, which represents the petitioner. “This is nothing other than an old-fashioned landgrab. Unlike most eminent domain laws, which require governments to engage in the taking, Colorado’s law cuts out the middleman and just lets private developers use eminent domain to hand land over to themselves.”

In 2006, Woodcrest Homes began planning to build a housing development outside the town of Parker, Colo., and purchased a small piece of land sandwiched between two larger parcels to begin the project. When the housing market went bust in 2008, the project stalled. But years later, Century Communities, a competing developer, picked up where Woodcrest left off. Using Woodcrest’s own plans, Century purchased the two pieces of land surrounding Woodcrest’s parcel and created a so-called “municipal district”—a pseudo-governmental body permitted in Colorado—comprising all three pieces of land and staffed by Century’s own employees. The district then “voted” on whether to use eminent domain to take away Woodcrest’s land and—unsurprisingly—Century “won.”

Woodcrest challenged the taking, arguing that it violated the Fifth Amendment of U.S. Constitution, which only allows property to be taken for “public use.” But the Colorado Supreme Court disagreed, holding that the only thing that mattered was what Woodcrest wanted to put on the land (roads and utilities) not whether the process had been captured by a private developer serving its own ends.

“Eminent domain is supposed to be used by the government for the benefit of the public, not by developers for themselves,” said IJ Attorney Patrick Jaicomo. “Colorado law gives public power to private businesses to use for private gain. That’s plainly unconstitutional and we’re confident that U.S. Supreme Court will end this corrupt abuse of power.”

“Colorado law gives developers a blank check to use eminent domain to benefit themselves or harm their enemies,” concluded IJ Senior Attorney Robert McNamara. “But courts have a duty to make sure that public powers like eminent domain are used only for public ends. IJ will not rest until that happens—in this case and in every case.”

Victory for Vegan Burgers: New Mississippi Labeling Regulations Will Not Punish Plant-Based Meat

Jackson, Miss.—Today, Mississippi’s revised labeling regulations took effect allowing plant-based food companies to continue using common meat product terms like burgers and hot dogs. As a result, Upton’s Naturals and the Plant Based Foods Association (PBFA) today dropped a federal lawsuit they filed in July. The company and association teamed up with the Institute for Justice (IJ) to defend food companies’ First Amendment right to label food in ways that consumers understand.

Like every state, Mississippi has for decades had laws prohibiting misleading labels. Nonetheless, at the request of the Mississippi Cattlemen’s Association, the Mississippi Legislature passed a law earlier this year that banned any use of meat product terms to describe plant-based foods, even when the label is not misleading. The ban took effect on July 1. Also on July 1, the Mississippi Department of Agriculture proposed regulations that would apply the ban not only to meat food terms (like burgers and hot dogs) but also to any “word or phrase that is customarily associated with a meat or a meat food product.”

That same day, Upton’s Naturals and PBFA filed the First Amendment lawsuit. In response to the lawsuit, the Mississippi Department of Agriculture withdrew its proposed regulation and replaced it with a new proposed regulation. Under the new regulation, which officially took effect today, plant-based foods will not be considered to be labeled as a “meat” or “meat food product” if their label also describes the food as: “meat-free,” “meatless,” “plant-based,” “vegetarian” “vegan” or uses any other comparable terms.

“This is a total victory,” said IJ Senior Attorney Justin Pearson, who served as the lead attorney for the challengers. “Our clients simply wanted to continue using clear labels with the terms consumers understand best. In response to our lawsuit, the Mississippi Department of Agriculture has done the right thing, so there is no need to move forward with the lawsuit.”

Upton’s Naturals, of Chicago, Illinois, is a small, independently owned producer of vegan foods founded by Daniel Staackmann in 2006. The company is focused on meat alternatives using innovative ingredients such as wheat-based seitan and jackfruit. Upton’s Naturals sells its foods across the United States and around the world. Its vegan bacon seitan, chorizo seitan and other foods can be found on shelves at Whole Foods in Jackson, Miss. Upton’s Naturals is also a founding board member of PBFA.

“We were proud to take up this fight not just for our own company but for the many plant-based food entrepreneurs providing meat alternatives nationwide,” said Dan Staackmann, founder and owner of Upton’s Naturals. “Our labels have always made it clear that our foods are 100% vegan. We have a First Amendment right to use common terms like ‘bacon’ and ‘burger’ and we’re prepared to fight for that right in any other state that passes anti-competitive laws being pushed by the meat industry.”

The Plant Based Foods Association represents over 160 member companies with a mission to build a solid foundation for the plant-based foods industry to succeed and thrive.

“We are thrilled with this common-sense outcome of our lawsuit,” said Michele Simon, PBFA’s executive director. “We hope that other states considering similar legislation will follow Mississippi’s lead in allowing clear qualifying terms that our members are already using to communicate to consumers.”

The challenge in Mississippi is part of IJ’s National Food Freedom Initiative. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. In 2017, IJ won a similar free speech challenge in Florida vindicating the right to describe pure, additive-free skim milk as skim milk instead of as imitation skim milk. IJ has also won a challenge to Oregon’s ban on raw milk advertising and won home bakers in Wisconsin the right to sell their goods.

“The First Amendment prevents governments from creating laws to silence entrepreneurs and protect entrenched businesses from competition,” said IJ President and General Counsel Scott Bullock. “Free markets depend on the free flow of information.”

Court Rules That Lawsuit Challenging Town’s Food Truck Ban Will Proceed

Sturgeon Bay, Wis. – Today, a judge in Sturgeon Bay denied the Town of Gibraltar’s motion to dismiss a family business’s lawsuit challenging the town’s vending restrictions. The town bans food trucks from operating unless they acquire a town license, which is conditioned on staying out of areas that restaurants operate in, being closed during hours when restaurants are open, and not offering outdoor seating. Prospective vendors Chris Hadraba, Jessica Hadraba, Lisa Howard and Kevin Howard partnered with the Institute for Justice (IJ) to challenge the town’s requirements maintaining that the rules violate their constitutional right to earn an honest living and conflict with state law.

“Politicians shouldn’t be in the business of protecting restaurants from competition,” IJ Attorney Milad Emam said. “That’s not just wrong, it’s unconstitutional. We look forward to vindicating vendors’ right to economic liberty.”

The Hadrabas and Howards filed suit in 2018 after the Town of Gibraltar completely banned mobile vending to stop their food truck. A few days before depositions exposing the ban’s protectionist origins were scheduled to begin, the Town Board replaced its total ban with a de facto ban. The new ordinance made into law a restaurateur’s suggestion to protect brick-and-mortar restaurants from competition by restricting mobile vendors to undesirable areas.

“I hope that the courts find that there’s no good reason to have these requirements,” said Chris Hadraba. “I just want to be able to vend again.”

This case continues IJ’s National Street Vending Initiative, which protects vendors’ rights coast to coast. IJ lawsuits in San AntonioEl Paso and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ continues to litigate against unconstitutional vending barriers in Baltimore and South Padre Island.

IJ Defends Small Business Owners Against Government-Compelled Speech

Arlington, Va.—The Institute for Justice asked the U.S. Supreme Court to protect small business owners from being forced to mislead their customers. This request was made in an amicus brief filed by the Institute in support of the second petition for writ of certiorari in the case of CTIA–The Wireless Association v. City of Berkeley, California. The Institute’s brief was joined by the National Federation of Independent Business.

“The U.S. Supreme Court has repeatedly held that the First Amendment protects commercial speech,” said Institute for Justice Senior Attorney Justin Pearson, the primary author of the Institute’s brief. “Importantly, the Court has recognized that a key part of that protection includes the speaker’s ‘choice of what not to say.’”

“Regulators consistently understate consumers’ need for clear, plain language,” Pearson said. “When the government forces small business owners to include jargon on their labels or signs, it confuses customers and often destroys the businesses.”

IJ’s brief explains that compelled disclaimers are even more harmful to small business owners than to their larger counterparts. Without the substantial advertising budgets possessed by giant companies, small business owners, as stated in the brief, “overwhelmingly rely on the most cost-efficient forms of marketing, such as storefront signage and product labels. When government mandates undermine these limited forms of speech, the small business owners are often left with no other option but to go out of business. And many of them do.”

The Institute has seen firsthand the harm that can be done to a business by this kind of government-forced speech. A recent example was a lawsuit it litigated on behalf of a small Florida creamery in federal appellate court. Ocheesee Creamery was ordered by the state of Florida to label its pure pasteurized skim milk as “imitation milk product,” simply because the creamery refused, under government pressure, to inject the skim milk with vitamin additives. What the creamery was doing was perfectly legal, but they could not tell consumers they were selling skim milk; the government, instead, wanted them to lie and call what they were selling “imitation milk product.” The creamery had no advertising budget, and the mandated label confused customers, so the creamery was forced to stop selling its lawful product while the litigation progressed. Rather than bow to inaccurate government-forced speech, they had no choice but to take a product they could have sold to help fund their business and literally pour it down a drain.

“Government-mandated gibberish almost killed this wonderful, honest, lawful business,” said Pearson. “Thankfully, after our court victory, Ocheesee Creamery has resumed selling its skim milk, and the business is starting to rebound. If the court had ruled the other way, these amazing people would almost certainly have had to close down. The U.S. Supreme Court now needs to send that message nationwide in the CTIA case.”

IJ Scores Win In Lawsuit Against IRS Over Forfeiture Records

WASHINGTON—This morning, the U.S. Court of Appeals for the D.C. Circuit unanimously sided with the Institute for Justice (IJ) in a fight with the IRS over the agency’s forfeiture records. In its decision, the court ruled that the IRS cannot deliberately frustrate FOIA requests by quibbling over immaterial technicalities. The court also ruled that the IRS must put the effort into determining which records are public, rather than applying blanket exemptions to whole swaths of data that may or may not be exempt from disclosure.

“The lack of transparency surrounding forfeiture is deeply troubling, especially considering the vast power federal agencies have to take property from people without so much as charging them with a crime,” said IJ Senior Research Analyst Jennifer McDonald. “The public ought to know how the IRS is using forfeiture.”

The effort started in March 2015 when IJ filed a Freedom of Information Act (FOIA) request for all records contained in the IRS Asset Forfeiture Tracking and Retrieval System (AFTRAK). The IRS originally refused to release the information unless IJ paid more than $750,000 in fees. Once IJ brought suit under FOIA in December 2016, the agency reversed course and argued that AFTRAK is not actually a database and therefore cannot possibly contain records. Rather than search for all of the requested records, the IRS eventually produced one standard forfeiture report that was 99% redacted. Later, the court ordered the IRS to remove some of the redactions, but it otherwise agreed that the IRS had fulfilled its obligations, prompting IJ to appeal the decision.

Senior Circuit Judge Williams rebuked the IRS’s strategy of contesting the definition of a database, writing, “A request certainly should not fail where the agency knew or should have known what the requestor was seeking all along.” Judge Williams made it clear that the IRS will have to turn over all the data the IRS has that falls within the request. And the Court also rejected the IRS’s blanket redactions of much of the information on the printed report.

The case has been remanded to the district court, which will be asked to determine whether AFTRAK is actually a database, and if so, whether the IRS truly provided all of the records IJ requested.

“We are pleased with the D.C. Circuit’s thorough decision and appreciate the Court’s careful consideration of this case. We continue to believe that the IRS is impermissibly withholding records in the AFTRAK system that are subject to FOIA and look forward to further establishing IJ’s entitlement to those records in the district court on remand,” said Andrew Prins of Latham & Watkins LLP, who represents IJ pro bono and argued the case.

Previously, the IRS provided IJ limited information about its forfeiture practices regarding civil and criminal “structuring.” The data revealed that the IRS had been aggressively applying structuring laws to seize lawfully obtained currency from innocent individuals and businesses. A front-page article in the New York Times that relied on these data spurred the IRS to change its policy to limit structuring seizures to instances in which the seized funds were derived from illegal activity. Revealing the full contents of AFTRAK will shed important light on the rest of the IRS’s forfeiture activities.

Richmond Horror Publisher Fights Undead Federal Law

Richmond, Va.—Richmond is home to Valancourt Books, a small publisher that specializes in reviving horror novels that have gone out of print. They bring back from the dead 18th-century Gothic novels, Victorian horror novels and even genre paperbacks from the 1970s and ‘80s. Yet their novel business is under threat from the U.S. Copyright Office, which insists that Valancourt provide it with hundreds of free copies of the books it publishes or pay thousands of dollars in fines.

Valancourt is able to offer new printings of old books because it uses a print-on-demand model. If a customer orders a print edition, a single copy is printed and mailed. The Copyright Office, however, demands that all publishers of printed books provide a copy to the government. In return, the government offers . . . nothing. Two hundred years ago, federal law required publishers who wanted copyright protection to deposit copies of their books with the government in exchange for copyright. But that law changed in the 20th century: Now, U.S. law grants copyright protection as soon as a work is created, not when it is registered with the government. But the requirement to send physical books to the Copyright Office—despite being divorced from its original purpose—lives on, and now bureaucrats look for unwary publishers like Valancourt to fine.

The Copyright Office is demanding most of Valancourt’s books, which could seriously impact the publisher’s ability to continue its work of resurrecting and preserving literature. To protect their property and their right to free expression, Valancourt has teamed up with the Institute for Justice (IJ) to file a lawsuit in federal court. That suit is currently waiting judgment in Washington, DC.

“Halloween is typically a good time of year for a horror publisher, but we have a specter hanging over our small business,” said James Jenkins, co-owner of Valancourt Books. “We are fighting for our constitutional rights against an undead and unjust law. We hope to win so we can continue our mission to preserve the kind of books you want to curl up with on a dark and stormy night.”

The idea for the business was hatched when James was applying for a program in English literature. He had to drive halfway across the country to find a copy of a novel he wanted to write about; even then, it was only available on microfiche. James thought that other literature fans would appreciate the novel (and a second out-of-print book he had on microfiche). So he and his husband painstakingly typed out the books and then offered them for sale on their website, where they were made available in print-on-demand versions.

Over the years, James built the business up to the point where he could make it his full-time job. Valancourt has received praise from prominent publications for its preservation work, which focuses horror but also includes books by early LGBT authors.

James welcomes interviews about his business and the federal suit. Members of the media can contact Andrew Wimer, IJ Assistant Director of Communications, at (703) 682-9320 x229 or awimer@ij.org to arrange.

Louisiana Hair Braiders Win First Round In Fight Against State’s Useless Braiding License

Baton Rouge, La.—A judge in Baton Rouge this morning denied the Louisiana Board of Cosmetology’s motion to dismiss a lawsuit from three Louisiana hair braiders contesting the state’s hair braiding license. Current Louisiana licensing requirements force hair braiders to undergo 500 hours of training to legally braid hair as a career in the state, the most onerous specialty braiding license in the country. Hair braiders Ashley N’Dakpri, Lynn Schofield and Michelle Robertson partnered with the Institute for Justice (IJ) to challenge the requirement in June for unconstitutionally violating their rights to earn a living.

“The government should not force people to spend thousands of dollars to learn a skill they already know,” IJ Attorney Jaimie Cavanaugh said. “That’s not just wrong; it’s unconstitutional. We look forward to vindicating the economic liberty rights of all Louisianan hair braiders.”

When economic liberty is under attack, would-be entrepreneurs vote with their feet. Take plaintiff Michelle Robertson, who dreamed of opening a braiding salon in Shreveport, Louisiana. She did not have the means to stop working for three months to attend the one school that taught the course, nor could she find other braiders who could legally braid hair in Louisiana. So she moved to Texas, where braiding is legal without an unnecessary license from the state. 

I hope that the courts soon find that there’s no good reason to have these requirements. I just don’t want it to be impossible to grow my business,” said plaintiff Ashley N’Dakpri.

This case continues IJ’s national Braiding Freedom Initiative, which seeks to protect braiders’ rights to pursue their livelihoods free from unnecessary licensing laws, and it is IJ’s first lawsuit challenging a specialty braiding license. IJ’s first lawsuit was filed on behalf of hair braiders in Washington, D.C. Since D.C. repealed its license, IJ has won a dozen hair braiding lawsuits, either when courts struck down or lawmakers repealed the challenged licenses. This lawsuit is also part of IJ’s continuing efforts to expand economic protections under state constitutions.

With Indiana Supreme Court Ruling, Tyson Timbs Is One Step Closer to Getting His Car Back

Arlington, Va.—In a path-marking ruling, today the Indiana Supreme Court announced that the Eighth Amendment’s Excessive Fines Clause secures meaningful protections against exorbitant fines and forfeitures. The case of State of Indiana v. Tyson Timbs was back before the court after the U.S. Supreme Court ruled in Tyson Timbs’s favor in February on the question whether the Excessive Fines Clause applies at all to the states.

As part of its ruling in February, the United States Supreme Court sent the case back to the Indiana Supreme Court and tasked it with determining when a fine or forfeiture is unconstitutionally “excessive” under the Eighth Amendment. Today, the court rejected the state prosecutors’ view that any property used in a crime is subject to being taken by the government. Instead, the court held, the property owner’s culpability, the extent of their misconduct, and their financial circumstances must all factor into the Eighth Amendment inquiry.

“[T]he owner’s economic means,” the court reasoned, “is an appropriate consideration” for determining whether a fine or forfeiture is constitutionally excessive. “To hold the opposite would generate a new fiction: that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.”

The four-justice majority also emphasized that “the way Indiana carries out civil forfeitures is both concerning and symptomatic of a shift in in rem forfeiture law and practice,” before sending the case back to the trial court to apply the new standard to the facts of Tyson Timbs’s case. In 2015, the trial court in Grant County had ruled that forfeiting Tyson’s vehicle was excessive and that the property should be returned.

READ THE INDIANA SUPREME COURT’S DECISION

“The Indiana Supreme Court correctly recognized that the Excessive Fines Clause is a vital protection against unjust economic sanctions,” said Sam Gedge, an Institute for Justice (IJ) attorney who represents Tyson. “Civil forfeiture is one of the greatest threats to property rights today, and the Indiana Supreme Court’s ruling marks an important step in curbing the worst abuses in this area. We look forward to enforcing the Indiana Supreme Court’s decision in the trial court and getting Tyson’s property back.”

Tyson said, “Today’s ruling is important not just for me, but for thousands of people who are caught up in Indiana’s forfeiture machine. To me it doesn’t make sense; if they’re trying to rehabilitate me and help me help myself, why do you want to make things harder by taking away the vehicle I need to meet with my parole officer or go to a drug recovery program or go to work? You need a car to do all these things. Forfeiture only makes it more challenging for people in my position to clean up and remain a contributing member of society.”

Tyson Timbs’s road to the U.S. and Indiana supreme courts began shortly after his father died, leaving him more than $70,000 in life-insurance proceeds. Tyson used some of the money to buy a new Land Rover LR2. Four months later, however, his car was seized when he sold four grams of heroin to undercover officers. Tyson pleaded guilty to drug dealing, served one year of house arrest and paid $1,200 in court fees. Most importantly, his arrest led him to get his life back on track.

But the State of Indiana was more interested in Tyson’s $40,000 car. Within months of Tyson’s arrest, private contingency-fee lawyers filed a “civil forfeiture” lawsuit on behalf of the state to take title to his Land Rover.

In 2015, the trial court that ruled the police should return Tyson’s vehicle because forfeiting it would be “grossly disproportional” to his offense and therefore unconstitutional under the Excessive Fines Clause. The Indiana Court of Appeals agreed with that conclusion, noting that Tyson had sold only four grams of heroin, all to undercover officers. Initially, however, the Indiana Supreme Court ruled in favor of the government, holding that state and local authorities did not need to comply with the Eighth Amendment at all when they impose fines and forfeitures. That decision was vacated by the U.S. Supreme Court earlier this year.

“Tyson paid his debts to society,” said Wesley Hottot, an IJ senior attorney who argued on Tyson’s behalf at the U.S. Supreme Court. “He took responsibility for what he did. He paid fees. He is in drug treatment. He is holding down a job. He is staying clean. Our hope and goal now is to finally get back his vehicle from the police so Tyson will have an easier time getting to all the different commitments he has to stay on the straight and narrow.”

U.S. Supreme Court Will Decide: May Parents of a Mexican Teen Killed by a Federal Officer Sue in Federal Court to Vindicate Their Son’s Rights

Arlington, Va.—On November 12, the U.S. Supreme Court will decide whether federal officials can be brought before a federal court to answer for violating another person’s constitutional rights. There is no question state and local government officials can; the question is whether the same rule should apply to federal officers.

The case, Hernandez v. Mesa, arose in 2010 on the border between El Paso, Texas, and Juarez, Mexico, where a U.S. Customs and Border Protection Agency officer, Jesus Mesa Jr., shot and killed a 15-year-old boy, Sergio Hernandez, on the Mexican side of the border. Sergio and his friends were playing in a dried-out culvert of the Rio Grande river. The officer broke up the gathering by detaining one of the boys. Sergio ran, made it to the Mexican side of the border and stood there, unarmed and unthreatening. The officer shot at Sergio twice, killing him.

In 2012, federal prosecutors in the Obama Administration’s Department of Justice declined to bring a case against the officer. In addition, a federal statute prevents Sergio’s parents from bringing claims against federal agents in a state court. Thus, the only way for Sergio’s parents to vindicate their son’s constitutional rights is by filing a case in a federal court. Yet a federal court of appeals held that there is no remedy available for the violation of Sergio’s constitutional rights, breaking with America’s proud judicial tradition—embraced at the founding—that where there is a right, there is a remedy.

The Institute for Justice filed an amicus brief urging the U.S. Supreme Court to allow parents of the dead teenager to sue in federal court the federal officer who killed him.

“Had Sergio Hernandez been killed by a federal agent in the nineteenth century, his parents could have brought a damages claim for the deprivation of their son’s constitutional rights,” said Anya Bidwell, an IJ attorney who co-authored the amicus brief. “The Supreme Court’s current jurisprudence that essentially eliminates the ability of individuals to sue federal agents for constitutional rights is simply inconsistent with this proud history.”

The 5th U.S. Circuit Court of Appeals held that Sergio’s parents could not sue the officer because there is not a statute that specifically authorizes them to do so. But IJ’s Bidwell counters, “During the first 200 years of the Republic, you could vindicate your constitutional rights by suing for damages in state and federal courts.”

“Waiting for Congress to create an analogue to the statute that authorizes state officers to be sued in federal court is an abdication of judicial duties,” said Darpana Sheth, an Institute for Justice senior attorney and co-author of the amicus brief. “It is simply a convenient excuse for the judiciary to avoid saying what the constitutional law is, including the means by which this law must be enforced,” Sheth added.

“The federal courts have ignored centuries of common law by claiming there is no remedy in federal court to vindicate Sergio’s constitutional rights,” said Scott Bullock, IJ’s President and General Counsel. “But a right without a remedy is simply not a right. Because the Constitution is not an empty promise, it is time for the Hernandez family to have its day in court.”

New Report: Cities Pay a Price for Excessive Ticketing

Arlington, Va.—Across the nation, cities and their court systems impose major fines and fees for minor traffic and municipal code violations—often using the revenue to fund municipal and court operations. A new Institute for Justice (IJ) study examines such “taxation by citation,” finding that when cities use their enforcement powers more to raise revenue than to protect the public, they risk violating people’s rights and undermining trust in police, courts and other local government institutions.

The IJ study, “The Price of Taxation by Citation: Case Studies of Three Georgia Cities That Rely Heavily on Fines and Fees,” investigates Morrow, Riverdale and Clarkston—three metro Atlanta cities that derive large proportions of their revenues from fines and fees. IJ drew on data from public records, a survey of residents, photo and video records, resident interviews and direct observation of the three communities and their courts.

On average over five years, Morrow, Riverdale and Clarkston generated between 14% and 25% of revenues from fines and fees, far outpacing similarly sized Georgia cities. And many citations that generated this revenue were for violations that presented little threat to the public, suggesting revenue concerns outstripped concerns for public safety.

During difficult economic times, the three cities leaned especially hard on fines and fees, which peaked as a share of total revenue in 2012 before falling as the economy improved. But even after the recession, fines and fees remained the cities’ second largest source of revenue.

The study indicates that several factors combine to result in taxation by citation. Morrow, Riverdale and Clarkston all have their own courts, which they fund. Those courts churn through more citations than courts in similarly sized cities, returning guilty verdicts in 97% of the cases observed and producing a steady stream of revenue for municipal coffers. The cities also have few legal provisions preventing them from using code enforcement to raise revenue—or from violating people’s rights.

“Taken together, these results suggest that taxation by citation may occur where cities perceive a need for revenue and face few obstacles to using code enforcement to pursue it,” said Dr. Dick Carpenter, a director of strategic research at IJ and the study’s lead author. “The results also suggest that once in effect, the mechanisms necessary for taxation by citation—such as supremely efficient court procedures—may become business as usual, ensuring fines and fees remain a reliable source of municipal revenue.”

The study also finds city residents with recent citations reported lower levels of trust in city government than those without, suggesting taxation by citation is likely short sighted. What cities may gain in revenue, they may lose in community trust and cooperation.

“Taxation by citation puts government revenue above individual rights, with the predictable result that cited communities trust government less,” said IJ Senior Attorney Bill Maurer, who is lead attorney on several IJ challenges to municipal taxation by citation schemes. “Cities should find other ways of shoring up their finances and use their code enforcement powers only to protect the public—and then only with meaningful safeguards for citizens’ rights in place.”

The Institute for Justice, which litigates property rights cases nationwide, has challenged unconstitutional fines and fees across the country. In February, IJ won a victory before the U.S. Supreme Court, in which the Court held that the Eighth Amendment’s prohibition of excessive fines applies to state governments, not just the federal government. And last year, IJ secured a consent decree in Pagedale, Missouri, in which the city agreed to widespread reforms of its unconstitutional ticketing scheme. IJ is currently suing the city of Chicago over its abusive car impound system.

A high-resolution video news release with IJ Senior Research Analyst Jennifer McDonald and IJ Attorney Joshua House is available at: https://www.dropbox.com/s/30g2izi09yybxo7/taxation-by-citation-vnr-institute-for-justice.mp4?dl=0.

New Report: Georgia Cities Pay a Price for Excessive Ticketing

Arlington, Va.—Across the nation, cities and their court systems impose major fines and fees for minor traffic and municipal code violations—often using the revenue to fund municipal and court operations. A new Institute for Justice (IJ) study examines such “taxation by citation” in three Georgia cities, finding that when cities use their enforcement powers more to raise revenue than to protect the public, they risk violating people’s rights and undermining trust in police, courts and other local government institutions.

The IJ study, “The Price of Taxation by Citation: Case Studies of Three Georgia Cities That Rely Heavily on Fines and Fees,” investigates three metro Atlanta cities—Morrow, Riverdale and Clarkston—that derive large proportions of their revenues from fines and fees. IJ drew on data from public records, a survey of residents, photo and video records, resident interviews and direct observation of the three communities and their courts.

Video News Release with Study Co-Author and IJ Attorney

On average over five years, Morrow, Riverdale and Clarkston generated between 14% and 25% of revenues from fines and fees, far outpacing similarly sized cities in the state. And many citations that generated this revenue were for violations that presented little threat to the public, suggesting revenue concerns outstripped concerns for public safety.

During difficult economic times, the three cities leaned especially hard on fines and fees, which peaked as a share of total revenue in 2012 before falling as the economy improved. But even after the recession, fines and fees remained the cities’ second largest source of revenue.

The study indicates that several factors combine to result in taxation by citation. Like many cities in Georgia, Morrow, Riverdale and Clarkston all have their own courts, which they fund. Those courts churn through more citations than courts in similarly sized cities, returning guilty verdicts in 97% of the cases observed and producing a steady stream of revenue for municipal coffers. The cities also have few legal provisions preventing them from using code enforcement to raise revenue—or from violating people’s rights.

Morrow, Riverdale and Clarkston are not alone. Nationwide, 94 municipalities with populations of more than 5,000 join Morrow, Riverdale and Clarkston in reaping double-digit percentages of their revenues from fines and fees, and 12 of them are in Georgia.

“Taken together, these results suggest that taxation by citation may occur where cities perceive a need for revenue and face few obstacles to using code enforcement to pursue it,” said Dr. Dick Carpenter, a director of strategic research at IJ and the study’s lead author. “The results also suggest that once in effect, the mechanisms necessary for taxation by citation—such as supremely efficient court procedures—may become business as usual, ensuring fines and fees remain a reliable source of municipal revenue.”

The study also finds city residents with recent citations reported lower levels of trust in city government than those without, suggesting taxation by citation is likely short sighted. What cities may gain in revenue, they may lose in community trust and cooperation.

“Taxation by citation puts government revenue above individual rights, with the predictable result that cited communities trust government less,” said IJ Senior Attorney Bill Maurer, who is lead attorney on several IJ challenges to municipal taxation by citation schemes. “Cities should find other ways of shoring up their finances and use their code enforcement powers only to protect the public—and then only with meaningful safeguards for citizens’ rights in place.”

The Institute for Justice, which litigates property rights cases nationwide, has challenged unconstitutional fines and fees across the country. In February, IJ won a victory before the U.S. Supreme Court, in which the Court held that the Eighth Amendment’s prohibition of excessive fines applies to state governments, not just the federal government. And last year, IJ secured a consent decree in Pagedale, Missouri, in which the city agreed to widespread reforms of its unconstitutional ticketing scheme. IJ is currently suing the city of Chicago over its abusive car impound system.

A high-resolution video news release with IJ Senior Research Analyst Jennifer McDonald and IJ Attorney Joshua House is available at: https://www.dropbox.com/s/30g2izi09yybxo7/taxation-by-citation-vnr-institute-for-justice.mp4?dl=0.

Does the First Amendment Protect Teaching for a Living?

Tomorrow, the U.S. Court of Appeals for the Ninth Circuit will hear a case asking whether the First Amendment protects teachers’ right to teach and students’ right to learn.

Bob Smith runs Pacific Coast Horseshoeing School (PCHS) just outside of Sacramento, Ca. He teaches aspiring farriers how to shoe horses. For students with limited formal education, trade schools like PCHS are traditionally the most accessible path to the middle class. But because of a California law requiring vocational schools like Bob’s to require students have a high school diploma, or pass an equivalency test, he has to turn away many prospective students, including Esteban Narez.

In April 2017, Esteban applied to PCHS after learning about it through a farrier. But California law required Bob to deny Esteban’s application because he never finished high school. Years earlier, Esteban had been forced to leave high school early in his senior year to recover from a tear in the medial collateral ligament (MCL) of his knee. That makes Esteban an “ability-to-benefit” student under state law, meaning he would have to pass a government-approved test that has nothing to do with horseshoeing before PCHS could teach him to shoe horses. Like many working-class Californians who fell on hard times, Esteban has neither the time nor resources to waste on a useless test.

Bob and Esteban partnered with the Institute for Justice to file a lawsuit challenging the California law as a violation of their First Amendment rights to teach and to learn.

“Just because a teacher gets paid for teaching, it doesn’t mean they lose their First Amendment rights,” said IJ Senior Attorney Paul Avelar. “By limiting who Bob is allowed to teach and what Esteban is allowed to learn, California has not only harmed the students most in need of an education, but also violated their First Amendment rights.”

Details

DATE/TIME:    Thursday, October 24, 2019 at 9:00 a.m.

LOCATION:

James  Browning Courthouse
Courtroom 1
3rd Floor Rm. 338
U.S. Court of Appeals for the Ninth Circuit
95 7th Street,
San Francisco, CA 94103

PARTICIPANTS: 

  • Bob Smith, Owner of Pacific Coast Horseshoeing School
  • Paul Avelar, Senior Attorney, Institute for Justice
  • Keith Diggs, Attorney, Institute for Justice
Time Is Running Out for Philadelphia Forfeiture Victims To Submit Claim To Get Compensation for Taken Property

PHILADELPHIA— Philadelphians who lost their property to the city’s abusive civil forfeiture machine must apply by December 6, 2019 to receive a cash settlement. Last fall, the Institute for Justice (IJ) announced an agreement with the city to end a class action lawsuit on behalf of people who had homes, cash and cars wrongfully seized. After a federal court preliminarily approved this agreement, almost 35,000 individuals were mailed an official class notice informing them that they may be eligible for compensation.

People can apply for compensation by completing and mailing the Claim Form they received in the mail or by submitting a claim online at https://www.phillyforfeiture.com/claimform.aspx. Individuals will need their Unique ID number included in the official class notice to submit a claim. Individuals who had their property subject to civil forfeiture on or after August 11, 2012 but did not receive a letter should contact the Institute for Justice at (703) 682-9331 or the Claims Administrator at (888) 730-9958.

Class members must apply by December 6, 2019 to be eligible to receive their cash settlement.

“Innocent Philadelphians who unjustly lost homes, money and cars to the city’s forfeiture machine are able to get back every penny back but they need to apply before the deadline,” said Darpana Sheth, lead counsel for plaintiffs and director of the Institute for Justice’s National Initiative to End Forfeiture Abuse. “We want to make sure that everyone who is entitled to compensation knows that they can receive some measure of justice for their mistreatment. The period to apply for compensation is limited and we encourage Philadelphians to act now if they have received a letter letting them know they are eligible.”

Darpana Sheth is available on Thursday, October 24 in Philadelphia for interviews on the details of settlement and the application procedures. Contact Andrew Wimer, IJ Assistant Communications Director, to schedule at (703) 682-9320 or awimer@ij.org.

The settlement establishes a $3 million fund to compensate forfeiture victims with the following details:

  • Each qualifying person who lost their property through forfeiture, but who was not convicted of a related criminal charge, will get up to 100 percent of the value of their forfeited property;
  • Each qualifying person who lost their property through forfeiture, but who participated in a diversionary program for low-level, first-time offenders, will receive up to 75 percent of the value of their forfeited property;
  • Each qualifying person who submits a timely claim will get up to $90 in recognition of the violation of their constitutional rights.
Oregon Engineer’s Yellow Light Theory Get the Green Light

After winning his First Amendment right to challenge the timing of yellow lights in court, now Mats Jarlstrom—along with a team of others—has also convinced the Institute of Transportation Engineers (ITE) to reevaluate its guidelines for the timing of traffic signals.

In 2017, the Institute for Justice (IJ) partnered with Mats to file a lawsuit after he was fined $500 by the Oregon State Board of Examiners for Engineering and Land Surveying for publicly suggesting that yellow lights should last for slightly longer to accommodate cars making right turns. Two years later, citing the engineering board’s “history of overzealous enforcement actions,” a federal judge entered a permanent injunction securing Mats’s rights to speak freely about his traffic-light theories. The court also invalidated Oregon’s restriction on the title “engineer” as “substantially overbroad in violation of the First Amendment.”

With that injunction in place, Mats continued to research, write, and talk about his theory that yellow lights are too short for drivers to safely make turns through an intersection (and avoid getting red light camera tickets). This year, Mats teamed up with a group of drivers advocates, engineers, and others to formally challenge the 54-year-old guidance governing the timing of traffic lights. This summer, the ITE agreed to convene an expert panel where Mats and others testified. And late last month the panel returned its findings to the ITE: It found that the current equation for yellow light timing should be reconsidered.

“The First Amendment protects Americans right to speak regardless of whether they are right or wrong,” said Sam Gedge, an attorney at IJ, which represented Mats. “But in Mats’ case, the ITE committee’s decision suggests that he not only has a right to speak, but also, that he was right all along.”

Pleasant Ridge Homeowners Will Have Their Day In Court

Charlestown, Ind.—The homeowners in Charlestown’s Pleasant Ridge neighborhood will see Charlestown Mayor Robert Hall and his staff in court on November 12, 2019 for the start of a five-day trial on the homeowners’ claims that the city violated their constitutional rights. Yesterday, Judge Jason M. Mount of Scott County, sitting by special designation in Clark County, ordered the parties to trial next month.

The homeowners, represented by the public interest law firm Institute for Justice (IJ), will prove that the city violated—and continues to violate—their due process and equal protection rights by favoring developer John Neace over ordinary property owners. Since autumn 2016, Neace has been buying homes in the historic Pleasant Ridge neighborhood as part of a plan with the city to replace all existing homes and residents with fancier homes and wealthier residents. Neace now owns approximately 200 of the 350 properties in the neighborhood. The evidence will establish that the city has used its property maintenance code to fine property owners, including plaintiff Pleasant Ridge Neighborhood Association, to compel sales to Neace.

Judge Mount indicated in a 2017 proceeding that such a scheme would likely be unconstitutional. The upcoming trial will be the homeowners’ opportunity to put forward their evidence once again and seek a final judgment.

“The city’s brazen effort to replace Pleasant Ridge’s modest homes and lower-income homeowners will come to an end in Judge Mount’s courtroom,” said IJ Senior Attorney Anthony Sanders. IJ has represented the homeowners since filing suit in January 2017.

“This trial comes on the heels of findings by Judge Mount and the Indiana Court of Appeals that Charlestown violated city and state law in trying to force home sales to Neace,” added IJ Senior Attorney Jeff Rowes. “The U.S. and Indiana Constitutions don’t allow the city to use code enforcement to cleanse a neighborhood of ordinary Americans doing their best to raise their families.”

The city first partnered with Neace in 2014, then seeking millions from the state of Indiana to subsidize the bulldozing of Pleasant Ridge and its replacement with a subdivision like Norton Commons outside Louisville. When the city council torpedoed that effort following public outcry, Mayor Hall doubled down in 2016, launching a wave of code enforcement designed to force homeowners to sell to Neace for his asking price of $10,000.

“This trial will show the truth of what the city has done to us, of what it has been like to have to fight every day just to keep the city from destroying your home, and that truth will set us free,” said plaintiff and City Councilwoman Tina Barnes. Tina owns a home in Pleasant Ridge where she cares for her disabled adult daughter and raises her two granddaughters.

The trial is scheduled to begin at 9:00 a.m. on Tuesday, November 12, 2019 at the Clark County Courthouse, 501 East Court Avenue, Jeffersonville, IN 47130.

South Side Pitch Crowns Winner in Annual Business Competition

CHICAGO—Six South Side entrepreneurs took the stage last night with three crowned winners and all the contestants gaining valuable experience in promoting their unique business ideas. For six years running, the Institute for Justice Clinic on Entrepreneurship (IJ Clinic) has hosted South Side Pitch. Dinobi Detergent, which makes an all natural detergent, took first place among the six finalists and 120 total businesses who entered this year.

Dinobi Detergent was created by husband and wife team Augustine and Sylvia Emuwa. The Emuwas created their detergent to cater to people with sensitive skin and families who use cloth diapers. The plant-based product contains only four ingredients selected for their cleaning power and sustainability. The Emuwas developed the product after struggling to find a detergent on the market that did not irritate the skin of their children. Dinobi means “precious” in the Igbo language of Augustine’s ancestral Nigeria.

In addition to Dinobi Detergent, South Side Pitch awarded prizes to Wash on Wheels and Strength Together. Wash on Wheels provides a full-service, mobile, waterless car wash. Strength Together is a mental health app created by and for high school students that utilizes machine learning and AI.

Before the pitches, the finalists and 175 South Siders in the audience heard from keynote speaker Tiffany Mikell, founding managing director at Neighbor Tech Lab, a business incubator. She spoke about how business ideas can develop and grow over time saying, “What you are on day one is just the beginning.”

“We started South Side Pitch to shine a light on the entrepreneurs in Chicago who are taking action to fill needs in their community,” said Kregor. “Once again, all the competitors shined brightly and we hope all of them will go on to great success. Every year, we are overwhelmed by the quantity and quality of business ideas that come out of the South Side.”

The IJ Clinic, which created South Side Pitch in 2014, is based at the University of Chicago. The clinic provides free legal assistance, access to resources and advocacy for low-income Chicago entrepreneurs.  This year’s contest was also sponsored by the Polsky Center for Entrepreneurship and Innovation and the University of Chicago Office of Civic Engagement.

Additional high-resolution photos and audio of the event are available on request.

First Round Victory in Challenge to Compulsory-Eviction Law

Yesterday, Judge Staci M. Yandle of the U.S. District Court for the Southern District of Illinois issued temporary restraining orders protecting two Granite City families from eviction under the city’s compulsory-eviction law. Represented by the Institute for Justice (IJ), the two families had filed civil-rights lawsuits against the city, the first in August and the second earlier this week.

READ THE ORDERS—(1) JESSICA BARRON (2) DEBI BRUMIT

In recent months, both families found themselves ensnared in Granite City’s compulsory-eviction law. Jessica Barron and Kenny Wylie live with their three children in a modest house in Granite City. They’re buying the home on an installment basis. But since June, the city has taken escalating steps to try to make them homeless. Police officers have pounded on their door. Three officers personally served their landlord with a formal demand “that an eviction notice be served and the eviction process initiated.” And last week, the city served yet another notice, again ordering that their landlord “must begin eviction proceedings.”

The basis for Granite City’s campaign is not that Jessica and Kenny have done anything wrong; it is that a friend of their sixteen-year-old son broke into a restaurant elsewhere in town. Because the friend often spent time at Jessica and Kenny’s home, the city invoked its compulsory-eviction law and demanded that their landlord—co-plaintiff Bill Campbell—evict Jessica, Kenny, and their children. Under the law, the city coerces private landlords to evict entire families if any member of the household—or even a guest—commits a crime anywhere within city limits. It is no defense that the tenants had nothing to do with the crime. Here, in fact, police caught the restaurant burglar only after Jessica discovered him in her home and alerted the authorities. No matter; in the words of Granite City’s Crime Free Housing Officer, “these people need to go.”

Across town, Debi Brumit and Andy Simpson were facing a similar threat of eviction. Like Jessica and Kenny, Debi and Andy had done nothing wrong. Their landlord wanted to keep them in their home. Yet the city was trying to coerce their eviction. The reason? Debi’s adult daughter and the daughter’s new boyfriend had allegedly stolen a van elsewhere in town. Debi and Andy didn’t have anything to do with the crime. In fact, Debi’s daughter didn’t even live with them. She was in town only because Debi had driven her—from Missouri—to a hospital in Granite City to try to get her treatment for substance abuse. For the city, though, it was enough that Debi’s daughter used to live in the home and that she might someday visit her mother for Christmas. So the city demanded that Debi and Andy be evicted, along with two of Debi’s grandchildren (three-years-old and 18-months-old).

Partnering with the Institute for Justice, the two families filed parallel civil-rights lawsuits against the city. The main claims are simple. Under the Fourteenth Amendment’s Due Process Clause, Granite City cannot punish entire families because of a houseguest’s misdeeds. And under the Equal Protection Clause, the city certainly cannot single out renters alone for that sort of collective punishment.

“No one should be punished for a crime someone else committed,” said Robert McNamara, a senior attorney at the Institute for Justice. “That simple notion is at the heart of our criminal justice system—that we are all innocent until proven guilty. And yet Granite City is punishing an innocent family for a crime committed by someone they barely knew.”

On October 9, the federal court issued temporary restraining orders protecting both families. The court agreed that any interest the city has in enforcing its compulsory-eviction law “pales in comparison to the loss of one’s home” and ordered the city not to take any steps against either family until a hearing can be held in the case.

“The court’s ruling is such a relief,” said Debi Brumit. “Andy and I have been living under the cloud of the city’s eviction demands for months now. We’ve lived in Granite City for over three years. We’re taking care of two of my grandkids, and I have no idea what we would do if we lost our home.”

“What Granite City is doing is not just wrong; it’s deeply unconstitutional,” said Institute for Justice attorney Sam Gedge. “The Constitution does not allow the government to punish people for crimes other people have committed. The government cannot take away your home—whether you own it or rent it—because of someone else’s misdeeds. We look forward to securing permanent protection for our clients’ homes and their constitutional rights.”

Judge Yandle’s temporary restraining orders will remain in force for the next 13 days. The court has scheduled a hearing in both cases for 10:00 a.m. Central on October 23.

Food Fight Turns into Major Privacy Battle In U.S. Supreme Court Appeal

Arlington, Va.—“If the government forces you to install a GPS device and can track your whereabouts, that is a search. But the Illinois Supreme Court ruled otherwise. That is why we are appealing this case to the U.S. Supreme Court,” said Robert Frommer, a senior attorney with the Institute for Justice (IJ).

IJ recently filed an appeal of the Illinois Supreme Court’s ruling to the U.S. Supreme Court in one of the most important Fourth Amendment cases in the nation. The Fourth Amendment protects Americans from unreasonable searches by the government.

The case arises out of Chicago, which—unlike the rest of America’s ten largest cities—bans food trucks from operating within 200 feet of a restaurant. To enforce its 200-foot ban, Chicago requires food trucks to install GPS devices that transmit a truck’s location to the city every five minutes. Food trucks cannot refuse this mandate, nor may they ask a court if the requirement is permissible. Under this scheme, Chicago officials can pore over at least six months of a truck’s location data to root out any “illegal competition.”

In May 2019, the Illinois Supreme Court ruled that the 200-foot ban and GPS requirement were constitutional. The court concluded that Chicago could discriminate against food trucks to “level the playing field” for the benefit of politically powerful brick-and-mortar restaurants. The court then held that Chicago’s GPS scheme was entirely exempt from constitutional scrutiny because food truck owners must agree to it in order to get a license. The court also held that even if GPS tracking requires scrutiny, Chicago’s scheme was reasonable because the city could use it to locate trucks for inspections, even though the city admitted to never using GPS tracking for that purpose.

“The Illinois Supreme Court’s ruling creates a new, grave threat to the Fourth Amendment protections not to be searched against your will. This ruling threatens the privacy of all Americans, not just those who operate food trucks,” Frommer said. “Under that court’s ruling, the government could force anyone who needs a government-issued license to submit to invasive GPS tracking or other surveillance. This runs headlong into the basic constitutional principle that the government cannot force you to choose between your right to earn an honest living and your right to be free from unreasonable searches.”

Chicago’s 200-foot ban is designed to make it nearly impossible for food trucks to operate in any prime locations that they seek to serve, such as the North Loop. Chicago’s restrictions mean that food trucks may legally park and operate at just 3% of the curbs within the Loop.

“Food trucks that park any closer to a restaurant can be fined up to $2,000—ten times the fine for parking in front of a fire hydrant, which only underscores the economic protectionism at play here,” said IJ Attorney Joshua Windham.

Represented by the Institute for Justice, Laura Pekarik, the owner of the Chicago-based Cupcakes for Courage, filed suit in 2012 to challenge Chicago’s food truck laws. Pekarik said, “The Chicago rule and the Illinois Supreme Court’s ruling treat innocent business owners worse than criminals. All I want to do is earn an honest living, but the government says I must be tracked in order to do that. That’s beyond creepy. It is unconstitutional. I thought the government wasn’t supposed to be allowed to do those kinds of things in this country. I thought that’s why we have the Constitution—to protect us from government snooping.”

Chicago officials admitted they enacted the 200-foot ban to protect brick-and-mortar restaurants from competition—an improper use of government power, which sparked the Institute for Justice’s lawsuit on Pekarik’s behalf and its appeal to the U.S. Supreme Court.

Scott Bullock, the president and general counsel of the Institute for Justice said, “The U.S. Supreme Court must repudiate the Illinois Supreme Court’s decision and better protect the rights of Americans where modern surveillance technology threatens basic Fourth Amendment protections against such unconstitutional searches.”

For more information on this case, visit: https://ij.org/case/chicagofoodtrucks.

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Washington Homeowner Sues for Right to Renovate Her Home

After living in her one-bedroom, one-bathroom house for nearly 40 years, Richland, Wash. resident Linda Cameron decided it was time for a renovation. Between visits from her friends and family, her modest home was proving to be too cramped, so she worked with a local builder to draw up plans to add a second bedroom and bathroom. The dream she’d had for many years was finally coming true—that is, until the city had its say.

After examining Linda’s plans, Richland’s Public Works Department said she needed to renovate the public street behind her property—at an estimated cost of $60,000—before it would issue a building permit. That meant widening 400 feet of street, building curbs and gutters, and adding sidewalks that don’t connect to any other sidewalks.

She’d be effectively building sidewalks to nowhere.

Linda cannot afford to renovate her home and the city’s streets—and she should not have to do both. Property owners have a constitutional right to use and enjoy their property. And that right includes renovating without facing exorbitant fees for adding something so simple as a second bedroom and bathroom. That’s why Linda has partnered with the Institute for Justice (IJ), a public interest law firm with offices nationwide, including Seattle, to challenge Richland’s unconstitutional condition on Linda’s right to renovate.

“No one should have to pay $60,000 in fees just to add a second bedroom and bathroom,” said Paul Avelar, an attorney at the Institute for Justice, which represents Linda. “The city is holding Linda’s property hostage until she can pay the ransom to improve the city street.”

Linda is the victim of so-called “impact fees”—fees municipalities charge to recoup the impact development has on public infrastructure. For instance, if a developer wanted to build a 100-home subdivision, a city or county could recoup the cost of installing sewer lines or widening adjoining streets to accommodate an increase in traffic. But by law, impact fees can only be charged when there is an actual impact on public infrastructure. Adding a second bedroom to a small home will have absolutely no impact on Richland’s streets or sidewalks.

Impact fee abuse is a nationwide problem. The U.S. Government Accountability Office estimates that 40 percent of counties and 60 percent of communities with populations over 25,000 impose such fees. Some municipalities have even forced property owners to improve land far from their own property to supposedly offset the impact. And cases like Linda’s show that cities are not targeting just big developers.

“Richland’s arbitrary impact fee policy treats ordinary homeowners like Linda and others as if they were major developers, but of course that’s not the case,” said IJ Attorney Patrick Jaicomo. “Rather than encouraging improvements, by imposing outrageously high impact fees on homeowners, Richland’s policy strongly discourages property owners from improving homes in the city.”

By forcing Linda to pay to improve a nearby road as a precondition of obtaining a building permit, Richland is imposing what courts call an “unconstitutional condition” on Linda’s right to use and enjoy her property. Linda, like all Americans, has a right to renovate her home without having to first renovate government property. The Supreme Court has found that while impact fees are generally legal, they must directly relate to the impact of development. And they must be proportional to the cost of the impact. This is, the Court wrote, to “forbid[] the government from engaging in ‘out-and-out … extortion.’”

Having a second bathroom or bedroom will have no impact on the street behind Linda’s property, which is why she’s taken this case to court.

The government’s ability to impose arbitrary fines, fees, and forfeitures represents one of the greatest threats to property rights in America today. The Institute for Justice is at the forefront of standing up for property owners in court. Most recently IJ won a unanimous decision at the Supreme Court determining that the Eighth Amendment’s prohibition on excessive fines applies to state laws. And across the country, IJ is litigating cases aimed at curtailing governments’ abilities to use fines and fees to raise revenue or otherwise infringe on property owners’ rights to use and enjoy their property.

Friends of the Court Submit U.S. Supreme Court Briefs To Support Religious Options in School Choice Programs

Arlington, Virginia—More than 30 amicus (or “friend-of-the-court”) briefs have been filed in Espinoza v. Montana Department of Revenue calling for greater educational choice for parents and their children.  Espinoza, which is being litigated by the Institute for Justice (IJ), is expected to set a landmark precedent when it comes to education reform and will decide whether states may exclude religious schools from generally available scholarship programs, or if such exclusions violate the U.S. Constitution. IJ spelled out its constitutional case for including religious options in a brief it recently filed with the Court.

Espinoza is expected to be argued in early 2020, with a decision to come by the end of June when the Court concludes its term.

Among the amici are:

The United States: In a brief authored by U.S. Solicitor General Noel J. Francisco, the United States argues that the First Amendment’s Free Exercise Clause “forbids imposing special disabilities on religious adherents on the basis of their religious status” and that Montana’s Constitution, by requiring the exclusion of religious options in student-aid programs, “violates that elementary rule.”

Senator Steve Daines (R-MT) and four other Montana legislators: This brief demonstrates that Montana’s Blaine Amendment flowed directly from the failed federal Blaine Amendment and argues that it blatantly violates the First Amendment’s Free Exercise Clause in excluding religious schools from a generally available public benefit program. This brief also explains why Montana’s re-ratification of its Blaine Amendment in 1972 did not neutralize its discriminatory meaning. Indeed, the delegates to the 1972 convention recognized the anti-Catholic motivation for including a Blaine Amendment in the Montana Constitution and voted to retain the provision anyway. The Independence Institute’s brief makes a similarly compelling argument that Montana’s Blaine Amendment was intended to disfavor the Catholic religion and thus violates the U.S. Constitution.

Coalition of States: Eighteen states, through their Attorneys General and Governors, argue that the U.S. Supreme Court’s existing precedent requires that the Montana Supreme Court’s decision be reversed because the First and Fourteenth Amendments forbid the imposition of special disabilities on religious persons and organizations. The states’ brief also argues that if the ruling below is affirmed, it will jeopardize numerous school choice programs across the country and pave the way for state discrimination against religion.

Cato Institute: In addition to explaining why it is unconstitutional to disfavor religion in the context of a school choice program, the Cato Institute’s brief explains why giving parents a genuine choice of educational options, including religious options, alleviates religious conflicts in the public square. Cato has kept an online database of values-based and identity-based conflicts that have erupted in public schools, including religious conflicts. As Cato’s brief explains, “Allowing families . . . to choose schools that share their values would abrogate the need to impose one’s values on everyone else, improving the prospects for social and political peace.”

EdChoice, Reason Foundation, and the Individual Rights Foundation: Summarizes the existing social research (1) concerning the reasons why parents want school choice programs and (2) demonstrating that school choice improves academic outcomes for both participating and non-participating students, has a positive impact on civic values and on racial and ethnic integration, and saves states and school systems money.

Christian Legal Society, et al.: In a brief on behalf of numerous religious entities, led by the Christian Legal Society, law professors Douglas Laycock and Thomas C. Berg bring their considerable knowledge of religious liberty to bear on the important issues in this case and conclude that denying parents a generally available benefit (i.e., private school scholarships) on the basis of religion violates the fundamental principles of neutrality and private choice that the Supreme Court has repeatedly identified as the touchstones of the First Amendment’s Religion Clauses.

The American Center for Law and Justice (ACLJ): The ACLJ explains why the U.S. Supreme Court’s 2004 decision in Locke v. Davey, which upheld a narrow religious exclusion that prohibited students from using a state-funded college scholarship program to pursue degrees in ministerial training but permitted students to attend religious colleges and even pay for devotional and theological courses as part of non-ministerial degree programs, cannot justify the religious exclusion at issue in Montana. As the ACLJ notes, “Locke expressly distinguished a situation like the one here, where someone or something had to choose between their religious beliefs and receiving a government benefit.” Additionally, both the ACLJ’s brief and a brief filed on behalf of The Honorable Scott Walker argue that Locke was wrongly decided and should be overruled.

Liberty Justice Center and American Federation for Children: The LJC and AFC demonstrate that the Montana Supreme Court’s ruling “flips the Establishment Clause on its head” by harming—rather than protecting—adherents of minority religions, such as Orthodox Jews and Muslims, who may find themselves socially isolated, or even bullied, because of their adherence to religious principles. The brief argues that the best way to protect the civil liberties of minority religious adherents is to recognize not only the value of giving parents robust educational options, but the fact that the “Establishment Clause exists to protect these minorities, not to punish them for choosing a faith-filled learning environment for their children.”

Jewish Coalition for Religious Liberty: This brief explains the critical importance of Jewish day schools in preparing the children of Orthodox parents to take roles in their Jewish community and argues that a declaration that Montana’s Blaine Amendment violates the U.S. Constitution would “benefit the lives of Jewish families and strengthen their communities.”

Montana Family Foundation: The Montana Family Foundation shows how the U.S. Constitution’s Religion Clauses require the government to remain neutral between religion and nonreligion in the operation of a student-aid program, and that the Montana Constitution’s Blaine Amendment violates the neutrality protections required by the First Amendment’s Free Exercise and Establishment Clauses.

Pioneer Institute: The Pioneer Institute details the sordid, anti-Catholic prejudice that fueled the failed federal Blaine Amendment, its precursors, and its progeny, such as the Montana Blaine Amendment at issue in this case. The Pioneer Institute argues that state action motivated by religious animus violates the First Amendment. Similar arguments were presented in a brief on behalf of The Becket Fund for Religious Liberty, the Rutherford Institute, the Arizona Christian School Tuition Organization and Immaculate Heart of Mary Catholic School, as well as two amicus briefs filed on behalf of state legislators.

Forge Youth Mentoring: In an amicus brief authored by now-attorney Joshua Davey, the student denied a scholarship to study devotional theology in Locke v. Davey, Forge Youth Mentoring argues that if religious discrimination in the context of a student-aid program is upheld, the implications of such a ruling would extend beyond school choice to such things as mentoring and after-school programs, like those provided by Forge Youth Mentoring under contracts with local governments.

Georgia GOAL Scholarship Program: The Georgia GOAL Scholarship Program argues that Blaine Amendments were not merely fueled by anti-Catholicism, but also by “equally opprobrious, racial discrimination.” The GOAL brief argues that the enforcement of the Montana Blaine Amendment to exclude religious options from Montana’s school choice program violates parents’ freedom of speech and their equal protection rights.

Center for Education Reform: The Center for Education Reform’s brief focuses on the fundamental liberty of parents to direct the education and upbringing of their own children and demonstrates why denying parents their choice of schools based on religion violates bedrock constitutional principles of both parental and religious liberty. Similar arguments are also made in the brief on behalf of Montana Catholic School Parents, the Catholic Association Foundation, the Invest in Education Foundation, Americans for Prosperity and Yes, Every Kid, as well as in a brief filed on behalf of parents in Montana, Connecticut, and New York by the Pacific Legal Foundation.

Mackinac Center for Public Policy: The Michigan-based Mackinac Center for Public Policy details the history of school choice programs in Michigan and the poor performance of Detroit public schools and asks for a ruling broad enough to open educational opportunity in The Great Lakes State.

Alliance for Choice in Education: The Alliance for Choice in Education’s brief ties together many of the themes present in the numerous amicus briefs filed in support of Kendra Espinoza. The brief first points out that barring religious options from Montana’s school choice program perpetuates the historical discrimination and persecution that undergirds Montana’s Blaine Amendment. It then shows how excluding religious options for parents hampers the secular purposes of raising student achievement and improving life-outcomes for program participants. Finally, the brief makes a compelling argument for why discriminating against religion in scholarship programs constitutes a “clear infringement on” the free exercise of religion.

Institute for Justice Senior Attorney Richard Komer, who will defend the school choice parents in court, said, “Excluding religious options from generally available student-aid programs violates the religious liberty of families and it is flatly unconstitutional under the federal Constitution. The Institute for Justice will make that point when we argue this case before the U.S. Supreme Court.”

# # #

A hi-res video news release in which the Montana school choice moms and their Institute for Justice attorneys discuss this case is available at:  https://youtu.be/8GOelyqG5VY.

A detailed litigation backgrounder is available at:  https://ij.org/utility/case-print/?case-name=38015.

U.S. Supreme Court Will Soon Hear Landmark Education Case

Arlington, Virginia—Next week, the U.S. Supreme Court returns for another term and among the cases it will hear is Espinoza v. Montana Department of Revenue, a case expected to set a landmark precedent when it comes to education reform. Espinoza, which is being litigated by the Institute for Justice (IJ), will decide whether states may exclude religious schools from generally available scholarship programs, or if such exclusions violate the U.S. Constitution. The Institute argued its constitutional case for including religious options in a brief it recently filed with the Court.

In 2015, the Montana Legislature decided that every family—regardless of their income—should be able to choose the school that is best for their child. The Legislature enacted a tax-credit scholarship program that would enable low-income families to send their children to private schools, including religious schools. But the Montana Supreme Court struck down the program solely because it allowed families to select religious options.

Institute for Justice Senior Attorney Richard Komer, who will defend the school choice parents in court, said, “Excluding religious options from generally available student-aid programs violates the religious liberty of families and is flatly unconstitutional under the federal Constitution. The Institute for Justice will make that point when we argue this case before the U.S. Supreme Court.”

IJ Attorney Erica Smith, lead co-counsel in the case, said that the case involves three federal constitutional provisions: the Free Exercise Clause, the Equal Protection Clause, and the Establishment Clause. “All three clauses require that the government be neutral—not hostile—toward religion,” said Smith. “But the Montana Supreme Court’s decision discriminates against religion by barring religious options from student-aid programs.”

Much of IJ’s advocacy in its brief focuses on the history and impact of the so-called “Blaine Amendments” under which the Montana Supreme Court invalidated Montana’s scholarship program. Beginning in the 19th century, Blaine Amendments were enacted in state constitutions to discriminate against Catholics. Today, they are used by school choice opponents to attack existing school choice programs and block new ones. Thirty-seven states have Blaine Amendments and many of them have been interpreted to prevent families that receive aid from choosing to attend religious schools.

IJ’s President & General Counsel Scott Bullock said, “If we’re successful in Espinoza, we’ll remove the largest legal obstacle standing between thousands of children and their chance to receive a better education.”

Kendra Espinoza, the lead plaintiff in the case, said, “I believe that school choice is important for all families and all parents everywhere, not just for myself and my children. It is my right as a parent to choose how my children are educated, and not the government’s right to do that.”

The Espinoza case is expected to be argued in early 2020, with a decision to come by the end of June when the Court concludes its term.

The Institute for Justice has successfully defended educational choice programs nationwide, including twice before the U.S. Supreme Court. IJ is currently litigating other educational choice cases in Maine and Washington, and it recently won a victory before the Supreme Court of Puerto Rico.

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FOR REPORTERS:

A hi-res video news release in which the Montana school choice moms and their Institute for Justice attorneys discuss this case is available at:  https://youtu.be/8GOelyqG5VY.

A detailed litigation backgrounder is available here.

Nashville Court Dismisses Music Producer’s Lawsuit Challenging Ban On Home-Based Businesses

Today, Nashville’s Chancery Court of Davidson County upheld Nashville’s client prohibition for home-based businesses, preventing music producer Lij Shaw from recording musicians at his in-home studio and hair stylist Pat Raynor from cutting the hair of her long-time clients in a state-approved single-chair salon she built in her house. The lawsuit against Nashville’s home business ban was filed in December 2017 by Lij and Pat, who teamed up with the Institute for Justice (IJ) and the Beacon Center of Tennessee. The plaintiffs will be appealing the ruling.

The client prohibition makes it illegal to serve clients at a home-based business, even when there is no harm to anyone. The law was added to the zoning code in 1998 without any public debate or record behind its reasoning. Meanwhile, Nashville’s zoning code allows thousands of short-term rentals, day cares, and “historic homes” that are allowed to host special events.

“Lij and Pat have a constitutional right to use their homes to earn an honest living,” IJ Attorney Keith Diggs said. “Today’s ruling ignores Nashville’s admission that Lij and Pat never threatened public health or safety. We will keep fighting for Lij and Pat until this unconstitutional law is overturned.”

Lij and Pat first became home-based entrepreneurs because it made common sense: Lij needed to work from home while he raised his daughter, and Pat needed to save money after her husband’s death left her solely responsible for paying the mortgage on her home. Nashville admits there was never any evidence that Lij or Pat affected their neighborhoods, but that didn’t stop Nashville from sending them cease and desist letters and ordering them never to record musicians or cut hair in their home studios again.

While most Nashville residents are unaware of the client prohibition, the city solicits anonymous complaints on its website, which anyone can use to “hammer another neighbor” without evidence of harm, as one Nashville enforcement official testified. Nashville is the only major city in the country with such a blanket restriction on home-based businesses.

“Without home studios, there would be no music in Music City. We really need the home studios to survive,” Lij Shaw said. “I look forward to fighting this decision on appeal.”

More Chicagoans Join Class Action Lawsuit Challenging Unconstitutional Impound Racket

CHICAGO—Two more Chicago area residents joined a lawsuit filed by the Institute for Justice (IJ) seeking to end Chicago’s unconstitutional impound scheme. Each year, Chicago impounds tens of thousands of cars, imposing harsh penalties and rapidly accruing towing and storage fees on their owners. The system traps even innocent owners in its bureaucratic maze.

Since filing the suit in April 2019, IJ attorneys have heard from hundreds of Chicagoans struggling to get their cars out of impound. These included Allie Nelson and Lewrance Gant, both of whom had their cars impounded through no fault of their own and now owe the city thousands of dollars in fines, and towing and storage fees.

“Our class action lawsuit is on behalf of everyone trapped in Chicago’s unjust impound system,” said IJ Attorney Diana Simpson. “By adding more named plaintiffs, we strengthen the case against that system. Allie and Lewrance did nothing wrong, yet the city of Chicago took their cars and is demanding that they pay thousands of dollars. Chicago’s impound scheme treats innocent car owners like criminals. That’s not just wrong, it’s unconstitutional and it needs to stop.”

Allie Nelson, a retired law enforcement officer, was born and raised in Chicago and has lived in the city most of her life. In October 2017, Nelson was in Houston, Tex., recuperating from cancer treatments. She left her car with her granddaughter, along with strict instructions that her granddaughter’s then-boyfriend was not allowed to drive the vehicle. Unfortunately, that direction was ignored.

Police pulled over the car while the boyfriend was driving, claiming the car had a cracked windshield. They discovered marijuana in the car, seized the vehicle and had it towed to an impound lot. Nelson’s granddaughter was a passenger, and police left her on the side of the road without her purse or cell phone, forcing her to walk to get help after dark.

In February 2018, an administrative law officer determined that Nelson was liable for a $2,000 fine for unlawful drugs in a motor vehicle and $3,925 in towing and storage fees. Nelson cannot afford to pay that and was informed that the city had disposed of her car. This, despite the fact that Nelson was not even in the city when the car was impounded, and all charges were dropped against the driver.

“I didn’t do anything wrong, but Chicago destroyed my car and I still owe the city for it. I’ll do whatever it takes to right this wrong,” said Nelson.

Lewrance Gant is a retired limousine driver who has lived in the Chicago area for 60 years. Gant regularly lent his car to a long-time friend. In March 2019, police pulled that friend over, saying he had failed to come to a complete stop at an intersection. Police discovered that the friend’s license was suspended for unpaid tickets and also alleged that there was a bag of marijuana in the car. The vehicle was seized and impounded.

Gant was unaware that his friend had a suspended license and has never known him to use drugs. While the city dropped the drug charges and moving violations against the friend, an administrative law officer still held Gant liable, assessing a $1,000 fine for driving with a suspended license and $3,750 in towing and storage fees. Gant cannot afford to pay the $4,750 in fines and fees, and his car remains at the impound lot.

The lawsuit is currently in the U.S. District Court for the District of Northern Illinois. Recent ticketing reforms signed by Chicago Mayor Lori Lightfoot did not address the city’s impound program.

UPDATE: Landlord and Tenants Temporarily Halt Illinois City’s Unconstitutional Home Inspections

CHICAGO—This morning, after a hearing in U.S. District Court in Chicago, the city of Zion, Ill. agreed to cease all inspections, fines and notices against landlord Josefina Lozano or any of her tenants. Facing ruinous fines for refusing warrantless inspections, Josefina and three of her tenants—Della Sims, Dorice Pierce and Robert Pierce—teamed up with the Institute for Justice (IJ) to file a federal lawsuit fighting Zion’s unconstitutional ordinance.

Zion’s rental inspection ordinance gives it license to fine landlords up to $750 a day, or even revoke landlords’ right to rent property altogether, unless landlords force tenants to allow the city’s unconstitutional searches. Judge Mary M. Rowland asked the city to enter into a voluntary agreement in which it agreed not to punish Josefina or her tenants for refusing Zion’s unconstitutional demands. The city had previously sent Josefina a threatening letter giving her until September 29, 2019 to comply—or face fines that could reach five or even six figures.

“We are overjoyed that, for the time being, Josefina and her tenants will not be punished for standing up for their constitutional rights,” said IJ Attorney Rob Peccola. “Courts again and again have affirmed that renters do not have to open up their homes to government inspectors without a warrant. Today’s order is temporary but we expect it will be extended as we challenge the city’s unconstitutional ordinance.”

“I’m grateful that, for now, Zion will not be able to punish me for standing up for my tenants’ rights,” said Josefina Lozano. “The people who rent from me deserve the same protection of their constitutional rights as homeowners.”

Landlord and Tenants Sue Illinois City Challenging Unconstitutional Home Inspections

Zion, Ill.Under the Fourth Amendment of the U.S. Constitution, there is only one option for the government when it wants to search a home without the occupant’s consent: get a warrant. In Zion, Illinois, however, the government operates by a different set of rules. Zion’s rental inspection ordinance gives it license to fine landlords up to $750 a day, or even revoke the right to rent property altogether, unless landlords force tenants to allow the city’s unconstitutional searches. 

Zion landlord Josefina Lozano wants to protect her tenants’ rights. After some of her tenants refused to allow warrantless inspections, the city sent Josefina a threatening letter giving her until September 29, 2019, to comply—or face fines that could reach five or even six figures. Rather than wait for the city to issue ruinous fines, Josefina and three of her tenants—Della Sims, Dorice Pierce and Robert Pierce—are teaming up with the Institute for Justice (IJ) to file a federal lawsuit fighting Zion’s unconstitutional ordinance.

“Just because someone chooses to rent, rather than own their home, it doesn’t mean they give up their constitutional rights,” IJ Attorney Rob Peccola said. “It is plainly unconstitutional for Zion to force renters to open up their homes to government inspectors without a warrant and under threat of extreme penalties.”

Dorice and Robert have called their Zion apartment home since 2000. Because they value their personal privacy, the couple sent a letter to the city objecting to an inspection and demanding a warrant before allowing government inspectors to search their most private spaces. Zion ignored that request, choosing to threaten Josefina, their landlord, with fines.

“This is our home. It’s our right to decide who comes in it, and the government can’t do so without a reason,” Robert said.

In 2015, when the city passed its rental inspection ordinance, the mayor at that time blamed the city’s poor financial health on an “overabundance of non-owner-occupied rental property.” Renters, he asserted, “often do not take care of their property like homeowners do, so this ordinance targets rentals only.” But individuals’ constitutional right to privacy in their home does not depend on government preferences for homeowners over renters. All persons enjoy that right equally.

Now, Zion is threatening Josefina with ruinous liability and her tenants with eviction from their homes simply because they refuse to “voluntarily” waive their Fourth Amendment rights. Fifty years ago, the U.S. Supreme Court held that, even if the tenant objects to the inspection, such mandatory inspections are allowed, but only if the inspector first obtains an administrative warrant. The administrative warrant requirement for housing inspections has been reaffirmed countless times by courts throughout the country. Despite this mountain of precedent, Zion has decided that obtaining a warrant is inconvenient, so it has adopted a different tactic: coercive penalties for anyone who asserts their Fourth Amendment rights. That is unconstitutional.

“For the government to go inside your home, it needs a warrant. But Zion and cities across the country routinely ignore this fact, assuming that citizens won’t be able to fight back. We look forward to vindicating our clients’ Fourth Amendment rights with this lawsuit,” said IJ Constitutional Law Fellow Adam Griffin. 

The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. IJ has successfully challenged a rental inspection program in Yuma, Arizona, and is currently challenging the rental inspection regimes of Pottstown, Pennsylvania, and Seattle, Washington. IJ has spent more than 25 years fighting for the rights of all Americans to be secure in their homes and businesses and safe from abusive government policies. IJ’s victories have saved homes and businesses, including: the home of an Atlantic City widow; 17 homes and businesses in Lakewood, Ohio; and a boxing gym for inner-city youth in National City, California.

Six South Side Entrepreneurs Move on to Finals in Pitch Showcase

DATE/TIME: Thursday, October 10, 6:00 p.m to 8:30 p.m.

LOCATION:
Polsky Center for Entrepreneurship and Innovation
1452 East 53rd Street, 2nd Floor
Chicago

CONTACT: Erik Castelan, Operations and Community Relations Manager, 773-834-3129

***Free and open to the public***

CHICAGO— The Institute for Justice Clinic on Entrepreneurship (IJ Clinic) is proud to announce the finalists who will pitch their innovative businesses to a crowd of 250 at South Side Pitch 2019 on Thursday, October 10. The IJ Clinic started hosting South Side Pitch in 2014 to shine a light on the entrepreneurial energy of Chicago’s South Side. This year, the competition received more than 100 applications. The six finalists below will compete for a shot at $11,000 in cash prizes and a year of membership to the Polsky Exchange in Hyde Park.

  • Wash on Wheels
    Full-service, mobile, waterless car wash.
  • Dinobi Detergent LLC
    100% plant-based laundry detergent for both sensitive and non-sensitive skin.
  • Truckies
    Software management and navigation tool for truckers looking for safe, reliable parking rest areas.
  • Chicago Birthworks Collective
    Group of black birthworkers (doula) who provide comprehensive non-medical reproductive care from preconception to postpartum focused on people of color throughout Chicago.
  • Coffee Pops
    On-the-go coffee made up of concentrated coffee formed in a dough ball with honey.
  • Strength Together
    Mental health app for high school students that utilizes machine learning and AI.

“Every year we are amazed at the innovative business ideas that are presented at South Side Pitch,” said Beth Kregor, the director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “The applications from energetic and entrepreneurial South Siders were so strong this year that we will mark six years of South Side Pitch with six finalists. The competition is open to the public and the press and is a great opportunity to witness a different side of the South Side.”

Kristina Covarrubias, founder of Truckies, said, “I have lived in the South Side of Chicago for many years. The South Side has more than just violence, we have entrepreneurs, bright leaders and fantastic youth and businesses. We thrive when we stand together.”

South Side Pitch is hosted by the Institute for Justice Clinic on Entrepreneurship. The contest is sponsored by the Polsky Center for Entrepreneurship and Innovation, and the University of Chicago Office of Civic Engagement.

The Institute for Justice Clinic on Entrepreneurship provides free legal assistance, access to resources and advocacy for low income Chicago entrepreneurs. To learn more about the IJ Clinic, visit www.ij.org/clinic.

South Side Pitch is free and open to the public. To learn more, visit www.southsidepitch.com.

Judge Declares Lancaster District Attorney Forfeiture Records Subject to Right to Know Law Request

Lancaster, Pa.—In a newly released decision, Lancaster County Judge Leonard Brown determined that forfeiture records being sought by reporter Carter Walker and the media group LNP are subject to a Pennsylvania Right to Know Law request. However, the judge also ruled that the newspaper’s current request was not detailed enough to order the Lancaster District Attorney’s Office to hand over the requested records immediately. Walker and LNP will file a new request for detailed receipts covering expenses paid for out of the district attorney’s forfeiture fund. The ruling should make it clear that district attorneys across Pennsylvania need to provide this information to the public.

“We are pleased that Judge Brown’s ruling makes it clear that the Lancaster district attorney must make public how it spends funds it takes in through forfeiture,” said LNP reporter Carter Walker. “When this request was initially submitted, the district attorney was unwilling to release any information. Since then, through this case, hundreds of financial documents have been shared with the public. While we are disappointed that we will have to go through the process to request these records once more, we expect to be able to report to our readers in detail about how the district attorney has spent government funds. Today’s ruling should also pave the way for members of the media and the public to get similar information from DAs across the Commonwealth.”

Walker filed a request for civil forfeiture records with the district attorney in September 2018 and was denied. Upon appeal, the Pennsylvania Office of Open Records concluded that the records were subject to the Commonwealth’s Right to Know Law and ordered the district attorney to make them available. Rather than respect the office’s decision, District Attorney Craig Stedman appealed in court.

Walker and LNP were represented in their request by the Institute for Justice (IJ), a public interest law firm that has challenged forfeiture abuse in Pennsylvania and nationwide. IJ will continue to represent Walker and LNP in a similar case in Berks County.

“The decision establishes good precedent for members of the public to get the information they deserve about how local governments are spending the millions of dollars taken in every year through forfeiture,” said IJ Attorney Kirby West. “It’s disappointing that it will take more time for LNP to receive this information, but we are confident that a more detailed request will reveal the records that they have been seeking for months. We look forward to continuing our work with LNP to advance government transparency in Pennsylvania.”

Maryland Court of Appeals Will Hear Challenge to Baltimore’s Food Truck Rules

Arlington, Va.—The Maryland Court of Appeals, the state’s highest court, announced that it will hear arguments in a challenge to Baltimore’s restrictive and confusing food truck rules. In 2016, food truck owners Joey Vanoni and Nikki McGowan teamed up with the Institute for Justice (IJ) to strike down the city’s ban on mobile vendors operating within 300 feet of any brick-and-mortar business that primarily sells the same product or service. The rules were declared unconstitutional and unenforceable by the Baltimore Circuit Court in December 2017. That decision was overturned earlier this year by a panel of the Maryland Court of Special Appeals, which reinstated the rules.

“Baltimore’s confusing 300-foot ban makes it almost impossible for food truck owners to know whether they are breaking the law,” said IJ Senior Attorney Rob Frommer. “Violating the 300-foot ban is a crime, but city officials don’t agree with how to interpret and enforce it. Food truck owners risk their livelihoods every time they serve customers because of this vague, anticompetitive law. We are optimistic that the Court of Appeals will vindicate the rights of our clients and Charm City’s other vendors.”

With the ban now reinstated, vendors caught violating the law—which was passed at the request of the retail business lobby—could be found guilty of a misdemeanor, face $500 in fines and potentially lose their license to vend. Because of the possibly devastating consequences of violations, Joey Vanoni has largely avoided operating his Pizza di Joey food truck in Baltimore, away from prime locations where most potential customers work and live.

Joey said, “I’m relieved that the Court of Appeals will hear our case. Without my food truck, I would not have been afforded the opportunity to get into the food service industry and open my own brick-and-mortar location. I hope the court strikes down this confusing and protectionist rule and gives other food truck owners the same opportunities that led me to where I am today.”

Joey, a Navy veteran, opened the Pizza di Joey food truck in 2014 after returning from Afghanistan. Joey opened the food truck with two missions: to serve the diverse neighborhoods of Baltimore delicious New York-style slices made in a 4,000-pound brick oven and to provide job opportunities for fellow veterans. With his truck allowing him to gain a foothold in the food service industry, Joey is set to open a food stall at Baltimore’s newly reopened Cross Street Market.

Diverse Groups to Supreme Court: Drivers’ License Suspension is not an Excuse to Pull Someone Over

A case pending before the U.S. Supreme Court could have wide-ranging ramifications for the millions of Americans whose drivers’ licenses have been suspended because of unpaid fines or fees. That is the warning a group of five national organizations gave to the Supreme Court in a brief urging it to prohibit police officers from stopping a vehicle based on nothing more than the officer’s knowledge that the registered owner of the vehicle has a suspended driver’s license. The amicus brief, which was signed by the Cato Institute, Fines and Fees Justice Center, the Institute for Justice, R Street Institute, and the Southern Poverty Law Center, specifically asked the Court to uphold a Kansas Supreme Court ruling that found that such stops violated drivers’ Fourth Amendment rights against unreasonable searches and seizures. 

“Millions of Americans have had their drivers’ licenses suspended for reasons that have nothing to do with public safety,” said Lisa Foster, codirector of the Fines and Fees Justice Center. “Forty-two states have suspended millions of drivers’ licenses because people cannot afford to pay exorbitant traffic, toll, parking or criminal fines or fees. But just because your license is suspended doesn’t mean someone else can’t use your car to drive you to work, drive your children to school or drive an elderly parent to a medical appointment. If your spouse, a friend or a relative drives your car, they risk getting stopped.”

Kansas, like many states, allows police officers to look up license plates to determine if the registered owner’s license is suspended. If they do, Kansas contends that the officer can pull the car over without making any attempt to determine if the driver is in fact the registered owner of the vehicle and without any observation of suspicious or illegal activity. 

The brief—which was written by pro bono counsel, Seanna Brown and Daniel Lemon of the law firm of BakerHostetler—provides context to the Court about the millions of people in the United States today whose driver’s licenses are suspended for reasons that have nothing to do with public safety. Particularly impacted are low-income Americans and Americans of color who have fewer vehicles per household and are more likely to borrow vehicles from friends and family. The brief focuses on the state’s argument that its policies are justified in part because people with suspended licenses are dangerous drivers, and that if the registered owner of the vehicle is not driving at the time the vehicle is stopped, the resulting imposition on a lawful driver is insignificant.

The brief argues: 

“Kansas’s proposed rule threatens significant harm to individual liberty, particularly for people of color. License suspensions disproportionately affect black Americans. Moreover, black Americans are much more likely to be stopped by law enforcement.  Once stopped, blacks are more than twice as likely to be searched following a routine traffic stop than white Americans despite the fact those searches result in proportionately less contraband being found . . . For a young black man borrowing a vehicle from a family member with a suspended license, Kansas’s proposed rule presents a real threat to liberty and safety.”

Samuel Brooke, deputy legal director for the Economic Justice Project at SPLC, said the public is ill served by allowing law enforcement to conduct searches like the one Glover was subjected to. “The actions of states like Kansas make it harder for people to climb out of poverty since it’s hard to keep and hold a job without a valid driver’s license in many parts of the county. That’s especially true for people of color,” Brooke said.

The brief also emphasizes that modern technology, such as Automated License Plate Readers which can capture 2,000 license plates per minute and automatically convey that information to an officer on the street, dramatically increase the likelihood of these unconstitutional stops. 

Arthur Rizer, Director of Criminal Justice & Civil Liberties at the R Street Institute explained that for his organization, “Allowing for suspicionless seizures of vehicles because the registered owner has a suspended license will only further weaken that founding principle of our Republic: a limited government is a better government.”

Institute for Justice Senior Attorney William Maurer stated, “The view urged by Kansas will result in stops and searches of thousands of individuals who pose no threat to public safety—their only ‘crime’ is owing the government money. The Fourth Amendment ensures that Americans do not lose their right to privacy just because they owe a debt to the government.” 

Under New Proposed Regulation, “Veggie” Burgers Will Be Legal in Mississippi

Jackson, Miss.—Under a new regulation proposed late yesterday by the Mississippi Department of Agriculture in response to a First Amendment lawsuit, vegan and vegetarian food companies would be allowed to continue using meat and meat product terms on their food labels. The new proposed regulation reverses course from the law banning plant-based foods from using meat product terms like “burger,” “bacon” and “hot dog” on their labels, as well as the Department’s July 1 proposed regulation giving force to the ban. The Department’s July 1 proposed regulation has now been withdrawn. In early July, vegan food company Upton’s Naturals and the Plant Based Foods Association (PBFA) teamed up with the Institute for Justice (IJ) to sue the state for violating the First Amendment right of companies to label food in ways that consumers understand, and this new regulation is a direct result of the lawsuit.

“The new proposed regulation is a victory for the First Amendment and for common sense,” said IJ Senior Attorney Justin Pearson. “Our lawsuit made it clear that subjecting plant-based food companies to possible criminal prosecution for using common terms on their labels would be a violation of their free speech rights. Mississippi has made the wise decision to change those regulations so that companies will be free to continue selling vegan and vegetarian burgers and other meat alternatives in the Magnolia State.”

Upton’s Naturals, of Chicago, Ill., is a small, independently owned producer of vegan foods founded by Daniel Staackmann in 2006. The company is focused on meat alternatives using innovative ingredients such as wheat-based seitan and jackfruit. Upton’s Naturals sells its foods across the United States and around the world. Its vegan bacon seitan, chorizo seitan and other foods can be found on shelves at Whole Foods in Jackson, Miss. Upton’s Naturals is also a founding board member of PBFA.

“At Upton’s Naturals we are proud that our foods are 100% vegan, which is why we took up this First Amendment fight,” said Dan Staackmann, founder and owner of Upton’s Naturals. “Our clearly labeled products will remain on shelves in Mississippi. The state is making the right choice for consumers who are seeking out meat alternatives and want to understand what they are purchasing.”

“Mississippi is doing the right thing and it’s time for other states to follow its example,” said Michele Simon, PBFA’s executive director. “We look forward to working with other states to find similarly constructive solutions.”

The regulation states that plant-based foods will not be considered to be labeled as a “meat” or “meat food product” if their label also describes the food as: “meat-free,” “meatless,” “plant-based,” “vegetarian,” “vegan” or uses other comparable terms. The proposal will be open for public comment for 25 days. Should the proposed regulations be adopted, Upton’s Naturals and PBFA will consider dropping their federal lawsuit.

Television and radio stations seeking to conduct interviews with IJ attorneys can find out more information about our studio capabilities here: https://ij.org/ij-skype-studio-and-tape-sync-capabilities/. Contact Andrew Wimer, IJ Assistant Communications Director, to arrange.

Texas Supreme Court Punts on Property Rights; Denies Hearing Hinga Automotive’s Appeal

Hinga Mbogo’s long road to justice came to an abrupt and frustrating end today when the Texas Supreme Court refused to hear his challenge against Dallas’ efforts to force out his beloved auto mechanic shop so that the city can make way for the city’s preferred businesses, such as chain restaurants or coffee shops.

“Although this may be the end of the road for Hinga’s lawsuit against Dallas, we’ll never stop in our fight to stand up for property rights in Texas,” said Institute for Justice (IJ) Senior Attorney William Maurer. “What Dallas has done to Hinga is an affront to anyone who believes in private property. If Hinga’s property isn’t safe, then no one’s property is safe. If the courts are unwilling to protect Texans’ property rights, then we will turn our efforts to the state legislature to end this abuse once and for all.”

The lawsuit challenged a practice known as “amortization”—which is a type of retroactive zoning—whereby the city unilaterally changed the zoning for Mr. Mbogo’s property, forcing him to shut down and move his mechanic shop from where it stood for more than 30 years. The practice has been compared to eminent domain abuse, which is illegal in Texas, except unlike eminent domain, in this case Dallas hasn’t compensated Mr. Mbogo a single cent for the harm it has caused him and his business.

Tens of thousands of people rallied in support of Hinga. An online petition on Change.org was signed by more than 92,000 people. The petition states that using “zoning laws to destroy small businesses is wrong.”

Hinga said, “I’m disappointed that the Texas Supreme Court refused to hear my case. I will keep fighting at the Texas Legislature to stop this abuse and make sure no one else in Texas goes through what I have gone through.”

“Hinga is an American hero,” said IJ Attorney Ari Bargil. “He immigrated here more than 30 years ago, started a successful business, and when he faced adversity, he stood up for his rights and sued the city. We need more people like Hinga who, when they see an injustice, stand up for what is right.”

IJ has a successful history of fixing abuses through the legislative process after the courts have refused to protect property rights. After the U.S. Supreme Court refused to protect IJ client Suzette Kelo’s home from eminent domain abuse in the infamous Kelo v. New London case, IJ spearheaded an effort to change eminent domain laws in statehouses across the country, resulting in legal reform in 44 states.

Emails Reveal Coordination Between Downtown Restaurant Owner and Council Member to Cripple Food Trucks

Louisville, Ky.—Emails brought to light by a public records request from the Institute for Justice (IJ) reveal how Louisville Metro Council member Barbara Sexton-Smith leaned on Metro officials on behalf of a restaurant owner to cripple food trucks. IJ submitted its request back in November 2018, but only received these emails after suing Sexton-Smith and three other council members in Kentucky state court following nearly eight months of stonewalling.

VIEW EMAILS REFERENCED IN THIS RELEASE
VIEW ALL EMAILS PROVIDED TO IJ BY COUNCIL MEMBERS

The emails provided to IJ show how Sexton-Smith and others used Metro resources to hamstring vendors, even when doing so flouted the law. In a March 2018 email to restaurant owner Matthew Saltzman, for instance, Sexton-Smith reminded him that, “as soon as we were asked to post ‘No Food Truck’ signs in various locations we did just that.” But the “No Food Truck” signs posted by Louisville Parking Authority, which forbade all food trucks from parking at certain locations, were illegal since Metro’s 150-foot ban applied only to vendors who sold “similar food” as a nearby restaurant—not all vendors.

As part of a June 2018 federal consent decree, Louisvillle agreed to end its unconstitutional 150-foot ban and take down the illegal “No Food Truck” signs. But even while that agreed decree was waiting for the judge’s approval, Sexton-Smith emailed Saltzman to undermine it, telling him that she would: “love to level the playing field immediately.” What had Saltzman recommended in a March 2018 email? Raising the cost of reserving a parking space to $150 a day, limiting the number of food trucks that could park in the central business district to only seven, and prohibiting food trucks from reserving spots more than twice per month. In other words, pushing food trucks out of the downtown so they wouldn’t compete with his restaurant. Rather than rebuff the request, Sexton-Smith followed up with Metro officials to see if they could make Saltzman’s recommendations a reality.

“It took months of legal action to get council members to respond to our simple public records request and now we understand why,” said IJ Managing Attorney Arif Panju. “These emails show the cozy relationship between a downtown restaurant owner and Council member Barbara Sexton-Smith. Before the ink was even dry on the city’s agreement to end the federal lawsuit involving the 150-foot ban, Sexton-Smith was searching for new ways to cripple food trucks. That search led to the proposed vending ordinance the Metro Council will consider this evening.”

Despite being the leading cheerleader for restaurant protectionism, Sexton-Smith projected a far different image to the public. When she first introduced the vending ordinance in October 2018, members of the general public were outraged and reached out to Sexton-Smith and others to voice their opposition. But despite her support for Saltzman’s desire to “level the playing field,” Sexton-Smith’s emails cast her as a true friend to the food trucks. In various emails to constituents, Sexton-Smith professed that “I definitely do not want to limit competition” and “we need to industry to grow even more.”

“We are disappointed, but not surprised, to learn that a council member would publicly support food trucks while working behind the scenes to undermine these budding business owners,” said IJ Senior Attorney Robert Frommer. “Louisville residents appreciate having more food options, and politicians shouldn’t try to take those options away so that well-connected restaurateurs don’t have to compete. Anti-competitive vending rules, like the ones advocated for by Saltzman and introduced by Council members Sexton-Smith and Brandon Coan, both stifle consumer choice and close off an important way for food entrepreneurs to achieve their piece of the American Dream.”

At its public meeting Thursday, August 22 at 6:00 p.m., the Metro Council will consider the ordinance introduced by Sexton-Smith, Brandon Coan and Pat Mulvihill: O-374-18. The ordinance was recommended for disapproval by the Public Works Committee on August 13.

***Leah Stewart, president of the Louisville Food Truck Association, will be attending the meeting along with several other food truck owners and will be available for interviews.***

Contact Andrew Wimer, IJ Assistant Communications Director, to set up interviews.

Familias de Nevada Piden a la Corte que Restaure los Créditos Fiscales para las Becas

Las Vegas, Nev.- Mientras los estudiantes de Nevada regresan a clases esta semana, algunos no irán a las escuelas que sus familias deseaban para ellos. A principios de este año, la Legislatura de Nevada eliminó el aumento anual automático en la cantidad de créditos fiscales disponibles para los donantes de la Beca de la Oportunidad de Nevada. Sin embargo, esta medida de recaudación de ingresos no fue aprobada con la mayoría necesaria de dos tercios del Senado. En Julio, cientos de familias comenzaron a recibir avisos de que sus becas no serían renovadas debido a la eliminación de los créditos fiscales. Hoy, las familias perjudicadas por la acción inconstitucional de la Legislatura de Nevada, junto con una organización de becas y donantes privados, se unieron con el Instituto para la Justicia (IJ) para pedir a los cortes de Nevada que deroguen la ley.

Para acomodar el crecimiento de la población del estado y el aumento de los costos educativos, la ley de 2015 que estableció el Programa de Becas elevó el número de créditos fiscales disponibles en un 10% anual, lo que comúnmente se conoce como una “provisión de escaleras mecánicas”. Al eliminar esta provisión de la ley AB 458, la legislatura aumenta los ingresos del estado y limita el crecimiento de las becas, lo que lleva a que al menos una organización de becas rechace a los solicitantes calificados por temor a que se acaben los fondos. La legislación que derogó la provisión de escaleras mecánicas sólo se aprobó con 13 de 21 votos en el Senado, uno menos de los dos tercios requeridos.

“La Legislatura de Nevada ignoró la constitución del estado cuando eliminó los créditos fiscales que estimulan el financiamiento de becas para familias de bajos ingresos”, dijo el abogado de IJ, Joshua House. “La Constitución de Nevada claramente requiere el apoyo de dos tercios en la Cámara y el Senado para cualquier medida de recaudación de ingresos. Las familias perjudicadas por esta ley inconstitucional están pidiendo hoy a los cortes que restauren los créditos fiscales para que las organizaciones de becas puedan renovar con confianza las becas a los estudiantes que califiquen”.

Los demandantes que presentaron hoy una demanda ante el Tribunal de Distrito del Condado de Clark incluyen a tres madres de bajos ingresos que dependen de las becas para mantener a sus hijos en las escuelas que eligieron. También se unen a la demanda la Fundación de Becas AAA y los donantes de negocios locales Sklar Williams y el Grupo de Diseño Ambiental.

“Mi hijo estaba sufriendo en la escuela pública debido de acoso escolar y teniendo un salón de clases lleno de gente”, dijo Flor Morency. “La beca nos permitió costear una nueva escuela donde él comenzó a prosperar. Pero ahora, debido al límite de los créditos fiscales, la organización de becas ya no puede apoyarnos. Simplemente no podemos quedarnos en su escuela sin ayuda”.

IJ representó anteriormente a familias para defender Cuentas de Ahorro para la Educación en Nevada contra desafíos legales. En una decisión en 2016, la Corte Suprema de Nevada declaró que el programa era constitucional. Sin embargo, ese programa nunca fue financiado por el estado, haciendo que las becas de crédito fiscal sean el único programa de opción escolar en Nevada.

“La calidad de la escuela disponible para un niño no debe basarse en su código postal o en los ingresos de sus padres”, dijo el abogado principal de IJ, Tim Keller. “Nevada, al igual que 29 estados y el Distrito de Columbia, ofrece a los padres de bajos ingresos una verdadera opción escolar. Esa elección debería ampliarse, no quitarse”.

IJ defiende los programas de opción escolar en todo el país. Desde su fundación hace 25 años, IJ ha defendido con éxito tales programas en las cortes supremas estatales y dos veces en la Corte Suprema de los Estados Unidos. IJ estará de nuevo ante la Corte Suprema de los Estados Unidos para defender la decisión de los padres en la elección de escuelas en el caso Espinoza v. Montana Departamento de Ingresos, que será escuchado en el próximo término.

Nevada Families Ask Court to Restore Tax Credits for Scholarships

Las Vegas, Nev.—As Nevada students return to classrooms this week, some will not be attending the schools their families wanted for them. Earlier this year, the Nevada Legislature eliminated the automatic annual increase in the amount of tax credits available for donors to the Nevada Educational Choice Scholarship Program. However, this revenue-raising measure was not passed with the necessary two-thirds majority in the Senate. In July, hundreds of families began receiving notices that their scholarships would not be renewed because the tax credits were eliminated. Today, families harmed by the unconstitutional action of the Nevada Legislature, along with a scholarship organization and private donors, teamed up with the Institute for Justice (IJ) to ask Nevada courts to strike down the law.

To accommodate the state’s growing population and increasing educational costs, the 2015 law that established the Scholarship Program increased the number of tax credits available by 10% annually, commonly known as an “escalator provision.” By removing this provision in AB 458, the legislature both increases revenue to the state and limits the growth of the scholarships, leading at least one scholarship organization to reject qualified applicants out of concern that funds will dry up. The legislation repealing the escalator provision only passed with 13 of 21 votes in the Senate, one short of the two-thirds requirement.

“Nevada’s legislature ignored the state’s constitution when it eliminated the tax credits that spur funding for scholarships for low-income families,” said IJ Attorney Joshua House. “The Nevada Constitution clearly requires two-thirds support in the House and Senate for any revenue-raising measure. The families harmed by this unconstitutional law are today asking the courts to restore the tax credits so that scholarship organizations can confidently renew scholarships to qualified students.”

The plaintiffs who filed suit today at the Clark County District Court include three low-income mothers who depend on the scholarships to keep their children in their chosen schools. Also joining the suit are AAA Scholarship Foundation and local business donors Sklar Williams and the Environmental Design Group.

“My son was struggling in public school because of bullying and a crowded classroom,” said Flor Morency. “The scholarship allowed us to afford a new school where he began to thrive. But now, because of the limit on tax credits, the scholarship organization can longer support us. We simply can’t afford to stay in his current school without assistance.”

IJ previously represented families to defend Nevada’s Education Savings Account against legal challenges. In a 2016 decision, the Nevada Supreme Court declared the program to be constitutional. However, that program was never funded by the state, making the tax credit scholarships Nevada’s only educational choice program.

“The quality of school available to a child shouldn’t be based on their zip code or their parents’ income,” said IJ Senior Attorney Tim Keller. “Nevada, like 29 states and the District of Columbia, gives low-income parents genuine school choice. That choice should be expanded, not taken away.”

IJ defends educational choice programs nationwide. Since its founding 25 years ago, IJ has successfully defended such programs in state supreme courts and twice at the U.S. Supreme Court. IJ will once again be in front of the U.S. Supreme Court to defend parental choice in education in the case of Espinoza v. Montana Department of Revenue, which will be heard in the coming term.

Attorneys Petition for Reduced Lawyering Licensing Burdens

Every day, lawyers at the Institute for Justice advocate for the end of the protectionism inherent in occupational licensing laws.  They don’t overlook their own profession.

Continuing education requirements impose an expensive and often useless cost on licensed practitioners.  That’s true for lawyers, real estate brokers, doctors and other licensed workers.  IJ and attorneys from four other firms are bringing this problem directly to the justices of the Minnesota Supreme Court.  The justices regulate lawyers and set requirements to earn and maintain a license to practice law in the Land of 10,000 Lakes.

On-demand CLEs are more convenient, relevant, affordable and numerous than in-person CLEs and live-webcast CLEs.  The Minnesota Supreme Court should repeal the cap of 15 hours in the triannual reporting cycle.  Lawyers should be free to earn all 45 hours of required CLEs from the vast libraries of on-demand classes relevant to their practice.

Visibly Hits Pause on State Challenges

Arlington, Va.—Today, Institute for Justice client Visibly hit the pause button on challenges to South Carolina and Indiana laws banning its online vision testing software. This move comes in response to a shift in Food and Drug Administration policy on how such technology is classified—a shift that requires the company to re-apply for FDA approval to continue marketing its products. As a result, Visibly has dismissed its Indiana lawsuit (without prejudice) and is seeking a stay of its pending appeal in South Carolina.

“Litigation is a marathon, not a sprint,” said IJ Attorney Josh Windham, who is representing Visibly in the lawsuits. “These delays in no way affect our commitment to ultimately winning the race.”

“Both of these laws are just as unconstitutional today as they were when Visibly first challenged them,” said IJ Senior Attorney Bob McNamara, who also represents Visibly. “IJ will not rest until states learn that banning new technologies just to protect established businesses from competition is not a legitimate use of government power.”

Illinois Family Sues to End Law Threatening Them With Compulsory Eviction for a Crime They Did Not Commit

On a sunny afternoon last month, Jessica Barron and Kenny Wylie were startled to hear a knock on the door of their home on a quiet street in Granite City, Illinois, a suburb of St. Louis. The knock quickly turned into pounding and a call: “Police, open up!” Adrenaline rushing, they told their kids to go to their rooms, and then went to the door to find a group of police officers standing on their porch. The officers were there to serve an eviction notice—not an eviction notice from their landlord (who knew nothing about it), but an eviction notice from the city. Under a city ordinance, the notice said, Jessica and Kenny’s family had to be evicted immediately because a member of their “household”—actually a teenage friend of their son who stayed with them sometimes—had committed a crime.

Faced with the imminent threat of eviction for a crime they did not commit, Jessica and Kenny, along with their landlord Bill Campbell, decided to fight back. Partnering with the Institute for Justice (IJ), they today filed a federal lawsuit challenging Granite City’s compulsory-eviction ordinance, which allows police to force landlords to evict an entire household after anyone who has stayed in the house—even a house guest—commits a crime.

Case Resources

“No one should be punished for a crime someone else committed,” said Robert McNamara, a senior attorney at the Institute for Justice. “That simple notion is at the heart of our criminal justice system—that we are all innocent until proven guilty. And yet Granite City is punishing an innocent family for a crime committed by someone they barely knew.”

Jessica and Kenny’s problems started this winter when a friend of their teenage son asked if he could crash on their couch. Jessica and Kenny have always prided themselves on their ability to provide a safe haven for young people who are facing troubles or have nowhere else to turn, so with temperatures plunging below zero, they told him he could stay.

But the arrangement didn’t work out: Jessica caught the young man trying to steal from her, and it eventually came out that many of the stories he told them simply weren’t true. Among other things, he said that his mother was dead when she was very much alive and well. So, they told him he had to go. Unfortunately, they were not the only people the young man tried to steal from; he tried to steal from others, including committing a burglary at a nearby restaurant.

He was quickly arrested for the burglary. In fact, Jessica was the one who turned him in to the police, after she found him hiding in her crawlspace. He pled guilty, was sentenced to probation, and his case was closed. But for Jessica and Kenny, that was just the beginning of their troubles.

Under Granite City’s so-called “crime-free housing” ordinance, private landlords are required (on pain of fines or revocation of their rental license) to evict an entire household of tenants if police believe any member—even a house guest—committed a crime. There is no requirement that the tenants participated in or even knew about the crime: If one member of the household is a criminal, the whole household can automatically be punished for their crime. That is true even if the tenants’ landlord wants them to stay, which is the case here. Jessica and Kenny’s landlord, Bill, sees no reason for them to leave: They are good tenants, and they have long since removed the teenager who committed the burglary from the house.

“I don’t know what we’ll do,” said Jessica. “Buying a home isn’t an option for us, and with an eviction on our record, it’ll be nearly impossible to find another place to rent. I cannot believe we could end up homeless because we choose to open our home to someone in need—someone we trusted, but who was not the person he claimed to be.”

Granite City’s compulsory-eviction law traces its roots to “one-strike” policies adopted by public-housing authorities in the 1980s and 1990s. Those laws were controversial but ultimately upheld by the Supreme Court in 2002. But in permitting those laws in public housing, the Court made very clear that its ruling was limited to a setting where the government was acting as landlord and that the analysis would be very different if the government tried to use its regulatory powers to force private landlords or tenants to follow a similar rule.

Despite the Supreme Court’s warning, municipalities across the country have adopted these so-called “crime-free” ordinances. The Sargent Shriver National Center on Poverty Law identified more than 50 municipalities in Illinois alone with such ordinances. Ultimately, these ordinances have little to do with punishing criminals and everything to do with punishing renters who happen to be friends, family or even just roommates with a person who commits a crime.

“Your home is your castle, whether you own it or rent it, and a lease is no different than a deed in terms of the property rights it confers,” said IJ attorney Sam Gedge. “The government cannot extinguish those rights just because it chooses not to respect them. No one thinks Granite City could get away with evicting a homeowner, or forcing their bank to foreclose on them just because a teenage roommate broke the law.”

Gedge continued: “What Granite City is doing is not just wrong, it is plainly unconstitutional. The Constitution does not allow the government to punish people for who their roommates are or for crimes other people have committed. The government cannot take away your home—whether you own it or rent it—because of something someone else did somewhere else.”

This is not the first time the Institute for Justice has litigated in the St. Louis area. In 2015, IJ filed a class action lawsuit challenging the City of Pagedale’s use of municipal fines for trivial housing code violations to raise government revenue. That lawsuit resulted in a court order ending Pagedale’s abusive system and put in place a monitoring plan to ensure it never returns.

“Government officials cannot treat people as second-class citizens simply because they are poor or renters,” said IJ President and General Counsel Scott Bullock. “Property rights are property rights for renters and owners alike, and IJ is committed to ensuring that those rights are protected for all Americans.”

Lawsuit Challenging Minnesota’s Protectionist Ban on Using Out-of-State Grapes to Make Wine Scores Major Win

Minneapolis—Minnesotans became one step closer to having more wine options today when the 8th U.S. Circuit Court of Appeals ruled that two Minnesota wineries can move forward with their challenge to a little-known but onerous state law that severely restricts the kinds of grapes they can use to make wine. Under the law, a winery in Minnesota cannot legally make wine unless a majority of the winery’s grapes are grown in Minnesota. This out-of-state grape cap makes it more expensive for consumers to buy their favorite wines in Minnesota, and reduces their choices, in order to protect the state’s grape industry from healthy economic competition.

The 8th Circuit sent the case back down to the federal trial court to rule on whether the law violates the Constitution’s Interstate Commerce Clause. In 2017, Alexis Bailly Vineyard and Next Chapter Winery teamed up with the Institute for Justice (IJ) to challenge this barrier to free trade. The trial court had thrown the case out, however, because it ruled the wineries did not have “standing” to challenge the law. The 8th Circuit disagreed, stating that “Minnesota is free to offer or not offer the farm winery license or to establish other license options for the production and sale of alcohol. What it cannot do—and what the Farm Wineries allege it has done—is condition a license on compliance with unconstitutional discrimination against out-of-state grape growers.” The court further said the wineries could challenge that discrimination.

Under the Commerce Clause, open discrimination against out-of-state commerce is unconstitutional unless the state can prove that the out-of-state commerce at issue is more dangerous than the in-state commerce, a burden the state cannot satisfy in this case, as the wineries will demonstrate when the case goes back to the trial court.

Nan Bailly, the owner of Alexis Bailly Vineyard, was overjoyed by the opinion, stating “the court recognizes the real burden this law places on us and recognizes the hard work we do at our vineyards.” She added, “We don’t need Minnesota to get in our way, we need it to help allow us to make our wine as we and our customers see best.”

Anthony Sanders, a senior attorney in IJ’s Minnesota office, stated, “The U.S. Constitution was crafted to guarantee free trade among the states. Minnesota is violating this founding ideal by restricting the grapes that wineries can purchase from other states. We look forward to vindicating the constitutional rights of Minnesota’s wine community in the trial court.” Jaimie Cavanaugh, another attorney in IJ’s Minnesota office added, “We are very pleased that the court of appeals saw what is going on in this case: Our clients cannot get a license if they trade more with Wisconsin instead of within Minnesota. But our Constitution says that we are one nation. Fighting for that principle in Minnesota just got a lot easier.”

Most wines Americans are accustomed to drinking are made with grapes that struggle in Minnesota’s cold climate. Northern grape varieties, which can grow with some difficulty in Minnesota, often produce wine too acidic for most consumers. To make a Minnesota wine palatable, most wineries blend Minnesota grapes with grapes grown elsewhere to create a wine that is essentially Minnesotan but more appealing to a traditional palate. The state’s law mandating Minnesota grapes constitute the majority of a farm winery’s wine therefore handicaps vintners. As a result, the government’s in-state grape requirement restricts farm wineries from producing the broad variety of wines that consumers want—even though these wines would be legal to sell at a wine or liquor store if made out of state.

By contrast, Minnesota’s biggest craft breweries, like Summit and Surly Brewing, are among the most successful in the country, thanks in part to a variety of hops grown in the Pacific Northwest that flavor their signature beers. If Minnesota breweries were instead forced to use mostly hops grown in Minnesota, many of their popular products would become difficult, if not impossible, to offer. This is the separate and unequal problem facing Minnesota’s farm wineries.

The 8th Circuit relied upon a recent Supreme Court ruling, Tennessee Wine and Spirits Retailers Association v. Tennessee, which struck down a limit on new residents getting liquor store licenses in Tennessee. That was also a case litigated by IJ, which represented a small liquor store owned by Doug and Mary Ketchum. These cases were not the first time IJ fought illegal liquor regulations in court. IJ argued a 2005 case, Granholm v. Heald, that saw the U.S. Supreme Court rule it unconstitutional for states to discriminate against out-of-state wineries in the business of selling wine directly by mail to consumers. An IJ victory in this Minnesota lawsuit could similarly roll back harmful regulations on wineries across the United States.

Mandan Residents Are Allowed To Display Murals Without The Government’s Permission

Mandan, N.D.—Following a federal court order in Lonesome Dove’s lawsuit against Mandan over the city’s mural guidelines, all Mandan businesses are free to display murals without the government’s permission as the lawsuit continues.

On July 11, Magistrate Judge Clare R. Hochhalter of the U.S. District Court for the District of North Dakota ordered that “The City of Mandan shall not enforce its mural ordinance against plaintiff Lonesome Dove, Inc. or others subject to it, during the pendency of this litigation.”

“This order means the people of Mandan don’t have to ask government officials for permission to express themselves by painting a mural,” said Institute for Justice (IJ) Senior Attorney Robert Frommer, who represents Lonesome Dove. “We won’t stop until Mandan residents have their First Amendment rights vindicated once and for all.”

Lonesome Dove owners Brian Berube and August “Augie” Kersten and IJ sued Mandan in May for ordering that they take a mural down that improved the appearance of their business. They had tried to get a permit for their mural, but the city denied it for being on the front of their building and for displaying the name “Lonesome Dove,” which the city decided was a “commercial message.” These restrictions are unconstitutional: Murals are protected by the First Amendment, and the government does not get to play art critic by deciding what speech is okay and what isn’t.

Recognizing that Mandan’s mural code “is unlikely to survive constitutional muster,” U.S. District Court Judge Daniel Hovland approved a temporary restraining order protecting Lonesome Dove’s mural from destruction just two days after Lonesome Dove filed its lawsuit. At a settlement conference in July, the city agreed to extend and expand that temporary restraining order by refraining from enforcing its mural ordinance against anyone in the city.

“I’m happy that we and other businesses here can have murals now, but we’ll keep fighting until the ordinance is gone for good,” Brian Berube said.

After Years of Struggle with the City, Tamale Food Cart Passes Inspection and Paves the Way for Fellow Vendors

Chicago, Ill.—Carmen Nava-Najera, known to her customers as Mrs. Nava, has been selling her handmade tamales on Chicago streets for 22 years. Now, after a long struggle, Mrs. Nava’s tamale cart has been licensed by the city. She is the first member of the Street Vendors Association of Chicago to have her equipment approved, paving the way for her colleagues to also get their licenses and operate legally in the Windy City.

The road to approval for Mrs. Nava and her fellow street vendors was an extraordinarily long and difficult process. The members pushed for years for the city to legalize their businesses, resulting in a 2015 law. In 2017, the members pooled their limited resources to open up a commercial kitchen to prepare their food in compliance with the law. While they have paid rent on the kitchen for two years, none of them had received a license that would allow them to use it. Though many started the application process back in 2017, they could not satisfy the city’s unclear and inconsistent requirements, even with help from lawyers. Mrs. Nava’s paperwork about her equipment and procedures was approved last summer, but the inspectors applied different rules and failed the cart twice before it was approved.

“I am so happy and relieved to have my license after fighting for so long,” said Mrs. Nava. “I was ready to give up my business if I did not pass the inspection this time. I don’t know how I would have made a living. But now I can sell my tamales without fear, and I can help other vendors get their licenses.”

The Institute for Justice Clinic on Entrepreneurship (IJ Clinic) has worked closely with the street vendors, first to legalize carts that had been operating in Chicago neighborhoods for decades and then next to navigate the developing regulations.

“Selling handmade tamales to hungry, happy customers in Chicago is a hard job that vendors like Mrs. Nava do with care and love. The city should not make it harder with unclear and unnecessary requirements,” said Beth Kregor, IJ Clinic Director. “We hope that today is the start of a new chapter for pushcart vendors, where they are free to earn an honest living and experience a straightforward, simple licensing process.”

Después de Años Luchando con la Ciudad, Vendedor Ambulante Pasa la Inspección y Allana el Camino para sus Compañeros Vendedores

Chicago, Ill.-Carmen Nava-Najera, conocida por sus clientes como Mrs. Nava, ha estado vendiendo sus tamales hechos a mano en las calles de Chicago durante 22 años. Ahora, después de una larga lucha, el carro para tamales de la Sra. Nava ha sido autorizado por la ciudad. Ella es el primer miembro de la Asociación de Vendedores Ambulantes de Chicago en tener su equipo aprobado, allanando el camino para que sus colegas también obtengan sus licencias y operen legalmente en la Ciudad de los Vientos.

El camino hacia la aprobación de la Sra. Nava y sus compañeros vendedores ambulantes fue un proceso extraordinariamente largo y difícil. Los miembros presionaron durante años para que la ciudad legalizara sus negocios, lo que resultó en una ley en 2015. En 2017, los miembros unieron

sus limitados recursos para abrir una cocina comercial para preparar sus alimentos de acuerdo con la ley. Aunque han pagado el alquiler de la cocina durante dos años, ninguno de ellos había recibido una licencia que les permitiera utilizarla. Aunque muchos comenzaron el proceso de solicitud en 2017, no pudieron satisfacer los requisitos poco claros e inconsistentes de la ciudad, incluso con la ayuda de abogados. El papeleo de la Sra. Nava sobre su equipo y procedimientos fue aprobado el verano pasado, pero los inspectores aplicaron reglas diferentes y fallaron el carro dos veces antes de que fuera aprobado.

“Estoy muy contenta y aliviada de tener mi licencia después de haber luchado tanto tiempo”, dijo la Sra. Nava. “Estaba dispuesto a renunciar a mi negocio si no pasaba la inspección esta vez. No sé cómo me habría mantenido. Pero ahora puedo vender mis tamales sin miedo, y puedo ayudar a otros vendedores a obtener sus licencias”.

El Institute for Justice Clinic on Entrepreneurship (IJ Clinic) ha trabajado estrechamente con los vendedores ambulantes, primero para legalizar los carros que habían estado operando en los vecindarios de Chicago durante décadas y luego para navegar por los reglamentos en desarrollo.

“Vender tamales hechos a mano a clientes hambrientos y felices en Chicago es un trabajo difícil que vendedores como la Sra. Nava hacen con cariño y amor. La ciudad no debería hacerlo más difícil con requisitos poco claros e innecesarios”, dijo Beth Kregor, Directora de la Clínica de IJ. “Esperamos que hoy sea el comienzo de un nuevo capítulo para los vendedores ambulantes, donde son libres de ganar su dinero honestamente y de tener un proceso de concesión de licencias sencillo y directo”.

Freelance Novelists Sue Charlottesville to Protect Their First Amendment Rights

Charlottesville, Va.— Last summer, Charlottesville tax collectors sent Corban Addison a letter ordering him to pay thousands of dollars in business license taxes he had unknowingly been accruing since 2015. There’s just one problem with the city’s demand: Corban does not run a business or a storefront of any kind. He is simply a novelist who lives in Charlottesville. 

The city and surrounding Albemarle County are both targeting freelancers like Corban to raise revenue, but they’re not doing so evenhandedly. While the city and county punish freelance novelists, newspapers and magazines are exempt from the tax. That unequal treatment violates the First Amendment, which is why Corban and novelist John Hart are joining forces with the Institute for Justice (IJ) to stop this unconstitutional tax and keep their hard-earned income.

“Charlottesville taxes freelance writers while the traditional press is exempt. That’s unfair and unconstitutional,” IJ Attorney Renée Flaherty said. “Many writers pen novels and newspaper articles in the course of their career. In Charlottesville, one of these activities is charged a business license tax and the other is not.”

Business license taxes are typically meant to defray the cost of infrastructure that businesses and their customers use. But for freelance authors like Corban and John, there is no infrastructure to pay for. They write books.

“I’m not a business,” said John Hart, who specializes in literary thrillers. “I make a living off pure imagination. That’s it. It’s me at this table with an old laptop. I could do this same job sitting in a tree. I love living here, but I don’t understand why the county feels they should make money off me this way.”

Charlottesville’s business license tax is so broad, it allows the city to collect money for any “other repair, personal or business service, not specifically included” in the ordinance. In fact, the ordinance itself does not single out freelance writers at all. The law is simply so vague that local government officials are currently allowed to taxor not taxwhomever they wish. Albemarle County’s tax is similarly broad.

“There’s no mention whatsoever of freelancers of any kind in this law. It struck me that it wasn’t intended to cover me, but now the city has decided to come after me,” Corban said.

In addition to challenging Charlottesville and Albemarle County’s business license taxes on First Amendment grounds, IJ is challenging the taxes for being unconstitutionally vague under the Fourteenth Amendment. Ordinary freelance writers, like Corban or John, can’t look at the ordinances and figure out that they are subject to the tax. This gives Charlottesville and Albemarle County tax collectors too much power and discretion in seeking new sources of revenue.

“The First Amendment covers all speech equally, and doesn’t discriminate against any kind of speaker on any basis,” Corban added. “The First Amendment protects my writing as much as it protects newspapers and magazines.”

“Charlottesville prides itself on welcoming creative entrepreneurs, but the city’s business-license tax treats them like ATMs,” IJ Senior Attorney Paul Sherman said. “We are going to fight for the right of any writer to work without being unfairly targeted by tax collectors.”

Another Lawsuit Challenges Meat Labeling Laws

Arlington, Va.—Laws banning vegan and vegetarian foods from using common meat terms such as “burger” and “bacon” passed in several states earlier this year. Today, a new First Amendment lawsuit was launched against one of these laws in Arkansas. Upton’s Naturals and the Plant Based Foods Association (PBFA), represented by the Institute for Justice (IJ), are currently suing Mississippi over its similar law and announce their support for the plaintiffs in Arkansas.

“Vegan food companies have a First Amendment right to use commonly understood terms on our labels,” said Dan Staackmann, founder and owner of Upton’s Naturals. “We are very glad to see another protectionist state law challenged in court today. Upton’s Naturals proudly labels the foods we sell in Arkansas and across the country as ‘vegan’ and would never seek to confuse consumers about what they are purchasing.”

“The plant-based meat category is growing in popularity, as much as 37 percent since last year,” said Michele Simon, PBFA’s executive director. “In response, meat industry lobbyists keep pushing protectionist laws state by state. We’re proud to fight on behalf of our members in Mississippi and fully support the lawsuit against Arkansas over its similar, anti-competitive law.”

“Businesses have a First Amendment right to use words that consumers understand,” said IJ Managing Attorney Justin Pearson, the lead attorney in the Mississippi lawsuit. “No one thinks a food labeled ‘vegan hotdog’ contains meat. That’s why it is labeled ‘vegan.’”

Federal Court Upholds Censorship of Dietary Advice

Pensacola, Fl.—In a blow to entrepreneurs across the Sunshine State, a federal judge yesterday upheld a Florida law that gives state licensed dietitians and nutritionists a monopoly on giving individualized dietary advice. The ruling means that privately certified health coaches like plaintiff Heather Del Castillo can face up to a year in jail or $1,000 in fines, per violation, merely for giving adults advice on diet and nutrition.

Read the Decision

Like a growing number of Americans, Heather Del Castillo speaks for a living. As a privately certified health coach, she is passionate about diet and nutrition, and loves sharing her knowledge with customers from across the country. But when Heather’s airman husband was transferred from California to Florida in 2015, she learned that her business was illegal. That’s because Florida, unlike California, had granted a monopoly on individualized dietary advice to state-licensed dietitians and nutritionists. To offer her services in Florida, Heather would have to obtain a bachelor’s degree or graduate degree in a relevant field of study, complete 900 hours of supervised practice, pass a licensure exam, and pay a fee of $165.

“What I do is no different from what an author or an advice columnist does,” said Heather. “The government couldn’t require me to get a license to write a book about nutrition, so I don’t see why they should require me to get a license to give people that same advice in person or over the Internet.”

Joining with the Institute for Justice, Heather filed a federal First Amendment lawsuit in 2017 challenging this restriction on her speech. But yesterday, Judge Casey Rogers of the U.S. District Court for the Northern District of Florida rejected that lawsuit and upheld Florida’s monopoly on dietary advice. In rejecting Heather’s claim, the Court reasoned that the licensing requirement did not violate the First Amendment because “its impact on speech is merely incidental to the state’s lawful regulation of the occupation of dietetics.”

“The court held that talking with a person about their diet isn’t speech, it’s the ‘conduct’ of practicing dietetics,” said IJ Attorney Ari Bargil. “The Supreme Court has squarely rejected that sort of labeling game. Giving advice on what an adult should buy at the grocery store is speech, and the First Amendment protects it.”

The district court held that it was bound by an earlier decision of the 11th U.S. Circuit Court of Appeals that held that speech by “professionals” was entitled to reduced First Amendment protection. But as the Institute for Justice argued, the U.S. Supreme Court expressly rejected that argument just last year, holding that “speech is not unprotected merely because it is uttered by professionals.”

IJ Senior Attorney Paul Sherman said, “For decades, occupational licensing boards have acted as if the First Amendment doesn’t apply to them. Last year, the Supreme Court clearly and emphatically rejected that argument. Yesterday’s ruling is wrong on the law, and we will be appealing.”

Food Truck Advocates Ask Court to Force Council Members to Provide Public Records

Louisville, Ky.—It is time to shed light on why some Metro Council members keep pushing new food truck regulations. This morning, the Institute for Justice (IJ) sued four Metro Council members who are refusing to turn over public records. This is the latest action in a legal battle that began in 2017 when two Louisville food truck owners filed a federal lawsuit challenging the city’s rule barring them from operating within 150 feet of any restaurant selling “similar food.”

As a result of that lawsuit, the Louisville Metro Council repealed the law in March 2018 and entered into a court-ordered consent decree. That decree prohibits Louisville Metro from reinstituting its 150-foot ban on food trucks or singling out food trucks for treatment different from other commercial vehicles.

With this agreement, Louisville food truck owners thought they would be free to focus on serving hungry customers. But just a few months later, council members Brandon Coan, Barbara Sexton-Smith, Pat Mulvihill and Scott Reed introduced a new ordinance that would cripple food trucks’ business. Concerned that the proposed ordinance would violate the decree and curious as to the council members’ motivations, in November 2018, IJ filed an open records request seeking each council member’s emails and other documents related to food trucks and restaurants.

The council members indicated that they had over 8,300 responsive documents but refused to make any records public. IJ appealed and in May 2019 the Office of the Attorney General of Kentucky ruled that “the Council members violated the Open Records Act,” and mandated that they turn over the documents. But even as the bill sponsors continue to ignore this request, the Metro Council Public Works, Facilities, Transportation and Accessibility Committee, chaired by Brandon Coan, is set to consider a revised version of their ordinance in its public meeting this afternoon.

“It’s time for the stonewalling to stop,” said Arif Panju, IJ managing attorney. “Since the four Metro Council members who have been pushing crippling new regulations on food trucks don’t seem to be listening to us or the Attorney General’s Office, today we’ve asked a court to order them to follow Kentucky’s Open Records Act. Transparency ensures the public can better understand why the council members keep pushing for a new ordinance that would cripple food trucks and reduce lunch options.”

The Institute for Justice is being represented in this legal action by attorneys April A. Wimberg and Brent R. Baughman at Bingham Greenebaum Doll, LLP.

“Kentucky’s Open Records Act is critical to ensuring good government in our commonwealth,” said Wimberg. “We’re pleased to work with the Institute for Justice to fight for transparency in Louisville’s government.”

New Podcast Asks Chicago Entrepreneurs, “How’s Business?”

Chicago, Ill.—”How’s business?” is the simple question that kicks off each episode of a new podcast series from the Institute for Justice Clinic on Entrepreneurship at the University of Chicago (IJ Clinic). The answers from business owners are different each time, yet similar challenges of operating in the Windy City come up time and time again. Chicagoans looking to improve the city’s climate for entrepreneurs, or simply interested in discovering the many unique businesses that call the city home, can access new episodes each Tuesday morning at major podcast subscription services and online at HowsBusinessCHI.com.

Each 10 to 15 minute episode of “How’s Business?” interviews a founder of a Chicago business to find out what’s going well–and what could be going better–for small businesses in the city. Recently released episodes feature an immigrant-owned moving company, innovative vegan food producers, a growing Logan Square brewery and a yoga salon bringing healing to the South Side.

“The more entrepreneurs I meet, the more floored I am by the lengths they’ll go to bring us the goods and services we love and need,” said podcast host Stacy Massey. “They navigate so much red tape and often forgo profit for a very long time just to turn their business dreams into reality. I hope that through this podcast, Chicagoans can gain a new appreciation for small business owners.”

The IJ Clinic, which recently celebrated 20 years in Chicago, provides free legal assistance and advocacy for low income entrepreneurs. The podcast is a result of a listening tour to both learn more about the troublesome laws that the IJ Clinic can work to research and reform and also simply to hear what motivates individuals to become their own boss.

Members of the media interested in speaking with the business owners interviewed in the podcast or interested in speaking with IJ Clinic about its work with businesses can reach out to Andrew Wimer, Institute for Justice Assistant Communications Director, at (703) 682-9320 x229 or awimer@ij.iorg.

Rhode Island Ends Licenses for Natural Hair Braiders

Rhode Island became the latest state to deregulate hair braiding thanks to a bill signed Monday by Gov. Gina Raimondo. Previously, braiders could only work if they first obtained a hairdresser license, which takes at least 1,200 hours, far more than what’s required to become a licensed emergency medical technician. Tuition to attend a cosmetology school in Rhode Island can cost over $17,000.

But under HB 5677, braiders are now completely exempt from licensing and can work without a government permission slip. Rhode Island is now the 28th state to end licensing for hair braiders, with 17 states enacting their reforms in just the past five years. Earlier this year, Minnesota and North Dakota also deregulated the practice.

“After years of fighting for this reform, I’m thrilled braiders in my state can finally work out of the shadows and build businesses without wasting thousands of hours and dollars learning practices they don’t do, like coloring, blow drying and cutting,” said Rep. Anastasia Williams (D- District 9, Providence), who sponsored the bill. “African-style, natural hair braiding is about our culture—it’s about celebrating our history, strength and diversity. We can now fully continue to celebrate, cherish and protect our right of our culture, and the opportunity for economic empowerment through hair braiding work.”

With a rich heritage spanning millennia, natural hair braiding is a beauty practice common in many African American and African immigrant communities. Unlike cosmetologists, braiders do not cut hair or use any harsh chemicals or dyes in their work.

“We never stopped trying, even when it seemed like the odds were against us; this victory shows progress heading in the right direction both economically as well as culturally,” said Jocelyn DoCouto of Pawtucket, a hair braider and leader of the Rhode Island Freedom Braiders.  “This day marks a new beginning for me as well as the many braiders in Rhode Island.”

Since its founding, the Institute for Justice has filed over a dozen lawsuits on behalf of natural hair braiders and is currently challenging a specialty braiding licensing in Louisiana. The Institute for Justice has also published a study, Barriers to Braiding: How Job-Killing Licensing Laws Tangle Natural Hair Care in Needless Red Tape, which found that braiders received very few complaints and that strict licensing laws stifle economic opportunity.

“This is a great win for entrepreneurship, economic liberty and just plain common sense,” said Christina Walsh, director of activism and coalitions at the Institute for Justice. “The government has no business licensing something as safe and common as braiding hair. HB 5677 will expand economic opportunity, especially for female entrepreneurs and people of color.”

Doraville Homeowners Score Another Win in Lawsuit Challenging City’s Excessive Ticketing

Arlington, Va.—Today, a federal judge in Georgia ruled that a lawsuit challenging the city of Doraville’s use of traffic tickets and other fines to generate revenue may go forward. The lawsuit was brought by two Doraville homeowners and two others who commute through Doraville. These plaintiffs partnered with the Institute for Justice (IJ), a non-profit, public interest law firm, and alleged that Doraville’s revenue-reliant justice system creates a perverse incentive to police for profit, rather than neutrally apply the law.

“Police are supposed to serve and protect, not ticket to collect,” said Josh House, an attorney at the Institute for Justice. “Yet, that’s exactly what they are doing in Doraville. Today’s decision means that Doraville will have to answer our clients’ complaint against its illegal ticketing scheme.”

The judge ruled that the plaintiffs sufficiently alleged that the city—by budgeting for and relying on fines and fees to fund itself—violated the U.S. Constitution and that their case may proceed. Among the lawsuit’s plaintiffs is Hilda Brucker. Two years ago, Hilda received a call from a city clerk demanding that she come down to the court house immediately. Hilda had no idea what was going on. When she got there, Hilda was confronted by a city judge and prosecutor armed with photos of her driveway, arguing that its cracks violated Doraville’s city code. Hilda protested that this was the first she’d heard about it, and that she’d never even received so much as a “fix-it ticket.” The prosecutor wasn’t having it, and the judge proceeded to impose a fine and sentence Hilda to six months of probation. Hilda walked out of court a convicted criminal for having a cracked driveway.

In his decision, U.S. District Judge Richard W. Story wrote, “Millions of dollars each year are generated from the enforcement of Doraville’s criminal ordinances. . . . [M]any of the ordinances at issue were not enacted in furtherance of public health and safety (at least not at face value); they deal, instead, with aesthetics—for instance, a home having chipped paint, overgrown vegetation, or logs stacked in the yard. Doraville therefore has as much to gain (if not more) from citizens violating these ordinances, as it does from everyone adhering to them.” Judge Story thus concluded, “All things considered, then, the Court [] finds that (based on the allegations in the Complaint) the City and its municipal court depend heavily on fines and fees revenue, and Doraville’s municipal court judges have a strong enough motive to maximize those revenue to warrant a reasonable fear of partisan influence in decisions related to ordinance violations and the assessing of criminal penalties.”

Each year, Doraville’s budget anticipates that between 17 and 30 percent of the city’s overall expected revenue will come from fines and fees issued by its police officers and code inspectors. A 2015 Doraville newsletter bragged that by “averaging nearly 15,000 cases and bringing in over $3 million annually,” Doraville’s court system “contributes heavily to the city’s bottom line.”

By putting fine revenue into its annual budget, Doraville creates a perverse incentive for police, prosecutors, and even its municipal court to police for profit, rather than seek justice and protect the health and safety of the city.

The next step in the lawsuit is that Doraville must file an answer to the plaintiffs’ complaint. Then the case will likely proceed to discovery.

Georgia Court of Appeals Rules That State Legislature is Exempt from Public Records Laws

Atlanta, Ga.—Does the term “every state office” include the offices of the Georgia General Assembly? According to an opinion released yesterday by the Fifth Division of the Court of Appeals of Georgia, the answer is “no.”

The decision comes in the case of Institute for Justice v. Reilly, a lawsuit filed by the Institute for Justice (IJ) in response to Georgia officials’ refusal to turn over records related to the state’s music-therapy licensing law. With yesterday’s decision, a 2-1 majority of the appeals court sided with the state, holding that documents in possession of the General Assembly—and all of its related offices—were exempt from the state’s Open Records Act. “The General Assembly,” the Court reasoned, “is not subject to a law unless named therein or the intent that it be included [is] clear and unmistakable.”

The dissent, authored by Chief Judge McFadden, questioned the accuracy of the majority’s ruling, ultimately concluding that, “I would hold that the words ‘every state office’ are ‘clear and unmistakable’ on their face.”

“We are obviously disappointed by the decision of the Court of Appeals,” said IJ Senior Vice President and Litigation Director Dana Berliner. “Open access to public records is vital in any free society. The purpose of the Open Records Act is to allow people to fully understand how their government operates and how lawmakers and agencies make decisions. Government should not keep secrets about how it governs.”

The ruling in Georgia reflects a troubling trend at the local, state and federal levels, as governments and agencies are stonewalling requests from the very citizens, journalists and activist groups that keep an eye on them. In this case, the government’s argument—that the General Assembly is not explicitly mentioned in Georgia’s Open Records Act and thus the General Assembly effectively exempted itself from its own law—is particularly concerning. If courts refuse to enforce a law that applies to the entire government and instead write in a blanket exception for the whole legislative branch, the outcome will be to limit citizens’ access to truthful information and insulate government from public scrutiny. This is precisely the scenario that our laws were designed to prevent.

Yesterday’s ruling is not the end of the road. IJ, which is represented in the action by Alex Harris, Mark Perry, Matt Reagan and Matt Gregory with the law firm Gibson Dunn and Darrell Sutton of the Sutton Law Group, plans to appeal the decision to the Georgia Supreme Court. “The people of Georgia deserve access to public records, just as the plain language of their Open Records Act demands,” said Berliner. “By appealing this decision to the Georgia Supreme Court, we hope to secure a ruling that the General Assembly and its officers are subject to the law just like every other governing body in Georgia.”

New Lawsuit Challenges Mississippi Labeling Law That Makes Selling “Veggie Burgers” a Crime

Jackson, Miss.—All of the food Upton’s Naturals sells in Mississippi is proudly labeled as vegan. Even though no reasonable consumer would think Upton’s Naturals foods contain meat, a new labeling law would require the company to either stop selling in the state or change its labels to be less clear. On July 1, Mississippi’s new law banning plant-based foods from using meat or meat-product terms such as “veggie burger” on their labels went into effect, with potential fines and even criminal penalties for violations.

To protect its First Amendment right to label its foods in a way that consumers understand, Upton’s Naturals and the Plant Based Foods Association (PBFA) are teaming up with the Institute for Justice (IJ) to sue the state of Mississippi in order to stop the law from being enforced.

Mississippi already had laws in place to prevent companies from mislabeling products, so there was no consumer-protection basis for this law, which is about protecting meat products from competition from plant-based alternatives. Indeed, the Mississippi Cattlemen’s Association lobbied legislators to pass the new law specific to meat terms earlier this year. It is now illegal for Upton’s and other companies to let customers know on the label what products their foods substitute for, such as bacon. That may be a win for the meat industry’s lobbyists, but it is a loss for consumers who are seeking out plant-based meat alternatives to put on the grill this Independence Day.

“People are not confused by terms like ‘veggie burger’ or ‘vegan hot dog,’” said IJ Managing Attorney Justin Pearson. “No one thinks plant-based burgers or vegan hot dogs contain meat. To the contrary, those terms tell consumers that they are buying exactly what they want: a plant-based alternative to animal meat. By banning the terms customers understand best, Mississippi is not only creating confusion, but also violating the First Amendment rights of both sellers and consumers.”

Upton’s Naturals, of Chicago, Ill., is a small, independently owned producer of vegan foods founded by Daniel Staackmann in 2006. The company is focused on meat alternatives using innovative ingredients such as wheat-based seitan and jackfruit. Upton’s Naturals sells its foods across the United States and around the world. Its vegan bacon seitan, chorizo seitan and other foods can be found on shelves at Whole Foods in Jackson, Miss. Upton’s Naturals is also a founding board member of PBFA.

“Our labels are not trying to trick consumers into buying our vegan foods,” said Staackmann. “We aim to clearly communicate what our foods are made from for those actively seeking vegan foods and others considering incorporating them into their diet. We describe our foods as alternatives to meat so consumers can easily understand what meat-based product they can potentially replace. Mississippi’s law is not about clearing up consumer confusion, it’s about stifling competition and putting plant-based companies at a disadvantage in the marketplace.”

The Plant Based Foods Association is the nation’s only membership association for plant-based food companies. PBFA’s 147 member companies make a variety of plant-based alternatives, including meat alternatives, a category that is fast growing in retail stores and restaurants.

“The plant-based meat alternative category is on fire right now, with consumers demanding healthier and more sustainable options,” said Michele Simon, PBFA’s executive director. “This law, along with similar laws in several other states, is the meat lobby’s response to the media attention PBFA members are receiving. Whatever happened to free market competition? We are proud to stand with Upton’s Naturals and the Institute for Justice to protect PBFA members’ First Amendment rights to clearly communicate to consumers.”

IJ previously successfully fought a state labeling law in Florida, which required producers of all-natural skim milk to label their product “imitation skim milk” because it did not contain artificial vitamin additives. In 2017, the 11th U.S. Circuit Court of Appeals ruled that Ocheesee Creamery’s “use of the words ‘skim milk’ to describe its skim milk is not inherently misleading.” That was the first successful First Amendment challenge to enforcement of a food standard of identity in U.S. history. Likewise, using meat terms in the context of products described as meatless, vegan or plant-based is not misleading to consumers. IJ is currently suing the U.S. Food and Drug Administration over its similar skim milk labeling requirement for milk producers who want to ship across state lines.

Today’s case is part of IJ’s National Food Freedom Initiative. This nationwide campaign brings property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure and consume the foods of their choice. In addition to winning the free speech challenge in Florida, IJ won a challenge to Oregon’s ban on raw milk advertising and won home bakers in Wisconsin the right to sell their goods.

Trump Signs Bill to Protect Small-Business Owners from IRS Seizures

On Monday, President Donald Trump signed a bill into law that stops the Internal Revenue Service from raiding the bank accounts of small-business owners. The Clyde-Hirsch-Sowers RESPECT Act, part of the Taxpayer First Act (H.R. 3151) that  Congress passed unanimously, is named after Institute for Justice clients Jeff Hirsch and Randy Sowers, two victims of the IRS’s aggressive seizures for so-called “structuring.” 

Through structuring laws, the IRS routinely confiscated cash from ordinary Americans simply because they frequently deposited or withdrew cash in amounts under $10,000. And by using civil forfeiture, the IRS can keep that money without ever filing criminal charges.

“With the Clyde-Hirsch-Sowers RESPECT Act now law, innocent entrepreneurs will no longer have to fear forfeiting their cash to the IRS, simply over how they handled their money,” said Institute for Justice Senior Attorney Darpana Sheth, who heads IJ’s National Initiative to End Forfeiture Abuse. “Seizing for structuring was one of the most abusive forms of civil forfeiture and we’re glad to see it go.” 

The RESPECT Act was originally introduced by Reps. John Lewis (D-GA) and Doug Collins (R-GA) after Jeff and Randy testified before the House Ways and Means Oversight Subcommittee about their experiences: Jeff had over $400,000 seized from his convenience store distribution business on Long Island while Randy, a Maryland dairy farmer, lost $29,500 to the IRS. Neither man was ever charged with a crime.

Both Jeff and Randy ultimately recovered their wrongfully taken money, but only after years of legal proceedings and high-profile media coverage—including a front-page article in The New York Times and an editorial in The Wall Street Journal.

To rein in the IRS’ civil-forfeiture power, the Clyde-Hirsch-Sowers RESPECT Act will:

  • Limit forfeiture for currency “structuring” only when the funds in question are derived from an illegal source or used to conceal illegal activity. This would codify an IRS policy change from October 2014 prompted by lawsuits from the Institute for Justice and would prevent the agency from backtracking;
  • Allow property owners to challenge a seizure at a prompt, post-seizure hearing. Previously, property owners targeted for structuring had to wait months or even years to present their case to a judge.

Following a pathfinding petition effort by IJ, the IRS received 464 petitions from owners seeking to recover their money that had been seized for structuring. Out of 208 petitions that were within its jurisdiction, the IRS granted roughly 84 percent and returned over $9.9 million to property owners.

For the remaining 256 petitions under the Department of Justice’s jurisdiction, the IRS recommended that DOJ grant 194 of those petitions. Yet the Department only accepted 41 petitions—less than 1 in 6—and refused to return more than $22.2 million as of last summer.

“The Clyde-Hirsch-Sowers RESPECT Act marks the first time in nearly two decades that Congress has reined in federal forfeiture laws, and is an important first step to address one type of forfeiture abuse by one federal agency,” Sheth noted. “But civil forfeiture by other agencies continues unabated. Congress should seize the opportunity to pass comprehensive reform of federal forfeiture laws and protect the constitutional rights of all Americans.”

Two forfeiture reform bills with broad, bipartisan support are currently active in Congress. Rep. Jim Sensenbrenner (R-WI) has reintroduced the DUE PROCESS Act(H.R. 2835), which would strengthen safeguards for innocent owners, including applying the reforms of the RESPECT Act to the DOJ. Similarly, Rep. Tim Walberg (R-MI) has sponsored the FAIR Act (H.R. 1895) which would also ban federal agencies from retaining forfeiture proceeds. And last month, the House approved an amendment that would cut off funding for a notorious federal forfeiture program known as “adoption.”

Forfeiture reform is the rare political issue that transcends party lines. The national platforms for both the Democratic and Republican Parties have endorsed forfeiture reform, as have the editorial boards for over 135 different newspapers. In February, the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.” And in the past five years, 33 states and the District of Columbia have enacted forfeiture reforms.

 

Indiana Supreme Court Finds Law Enforcement Can Keep Forfeiture Funds

Late yesterday, the Indiana Supreme Court ruled that police and prosecutors can keep and use the money they seize, rather than transferring the money to the state’s Common School Fund. The decision contradicts a state constitutional requirement that “all forfeitures which may accrue” must be paid into a fund for the benefit of public education.

The court’s decision, which came in response to a lawsuit brought by the Institute for Justice on behalf of two Indiana taxpayers, allows the state’s law enforcement agencies to keep nearly everything they seize under the guise of it being reimbursement for their expenses.

The ruling came just hours before the same court held a rehearing in Timbs v. Indiana—a second forfeiture case that challenged the constitutionality of the state’s ability to seize and keep an automobile. The case came back to Indiana after the United States Supreme Court ruled in February that the Indiana Supreme Court had erred when it held that the Excessive Fines Clause of the U.S. Constitution did not apply to state law enforcement.

“The Indiana Constitution makes it clear that all money seized by law enforcement must go to benefit the state’s schools, not the police and prosecutors who seized it,” said Sam Gedge, an attorney at the Institute for Justice. “But the court disagreed, and in doing so, preserved the perverse profit incentive baked into the state’s civil forfeiture law.”

The case started in 2016, when the Institute for Justice partnered with Jack and Jeana Horner to sue to end the Indianapolis Metropolitan Police Department’s practice of keeping 100 percent of civil forfeiture proceeds for itself.

The Horners have seen firsthand the human cost of Indianapolis’ profit-fueled forfeiture program. In 2013, they lent two of their vehicles to their adult son to help him get back on his feet after a run-in with the law. While driving one of the vehicles within Marion County, their son was pulled over and arrested. Police seized the vehicle and then drove to another location to seize the Horners’ other vehicle.

Even though Jeana and Jack had nothing to do with their son’s misbehavior, it took them more than nine months to get their cars back. Nearly a year after the vehicles were seized—and after Jack, who was critically ill, had already bought a replacement car—a court ordered the government to return the Horners’ property.

“We’re disappointed in today’s decision,” said IJ Senior Attorney Wesley Hottot, who argued the Timbs case before the U.S. Supreme Court. “Civil forfeiture is one of the greatest threats to property rights in America today, and the courts must ensure that it does not go unchecked. By allowing police to directly benefit from the money they seize, the court has allowed an unconstitutional practice to remain in place. But we remain hopeful. Across the country, Americans are becoming increasingly frustrated with civil forfeiture. Since 2014, 33 states have reformed their civil forfeiture laws. So now we’ll turn our attention to the Indiana General Assembly and ask them to pass meaningful reforms that not only protect Indianans’ property rights, but also remove the financial incentive to police for profit, rather than protect the public.”

U.S. Supreme Court Will Hear Montana School Choice Case

Arlington, Virginia—The U.S. Supreme Court announced today it will hear an appeal of the most important school choice case in the nation—a case in which the Montana Supreme Court ruled the government must exclude religious options for parents who want to participate in a generally available tax-credit scholarship program. The case, Espinoza v. Montana Department of Revenue, which is being litigated by the Virginia-based Institute for Justice, has the potential to impact tens of thousands of low- and moderate-income families nationwide.

Nearly 30 states and the District of Columbia currently give parents a full range of educational choice—including religious options—through various school choice programs. In 2015, the Montana Legislature, likewise, enacted a scholarship program that provides a modest tax credit (up to $150 annually) to individuals and businesses who donate to private scholarship organizations. Those scholarship organizations could then use the donations to give scholarships to needy families who want to send their children to private schools, including religious schools.

Soon after the program’s passage, however, the Montana Department of Revenue enacted an administrative rule that prohibited participants from using their scholarships at religious schools. The Department claimed that the “Blaine Amendment” of the Montana Constitution required the exclusion of religious options. In 2018, the Montana Supreme Court agreed with the Department’s view but took it one step further: In a 5-2 ruling, the court invalidated the entire scholarship program simply because it afforded parents and students the choice of religious schools. Families who wish to use the scholarships at religious schools challenged the decision as a violation of their free exercise rights under the First Amendment.

“Although the U.S. Supreme Court held that including religious options in educational choice programs is perfectly permissible under the federal Constitution, the lower courts have disagreed for decades about whether states may nevertheless exclude religious options in these programs,” said Erica Smith, an attorney with the Institute for Justice (IJ).  IJ represents the families in the case. “We hope the Court will clarify that just as the government cannot force families participating in these programs to choose a religious school, the government also cannot ban these families from choosing a religious school. The First Amendment requires government neutrality, not hostility, toward religion.”

“Montana’s Blaine Amendment dates back to 1889 and was designed to discriminate against Catholic schools and students at a time of widespread hostility toward Catholics, both in Montana and throughout the country,” explained IJ Senior Attorney Michael Bindas. “By applying it to bar religious options from modern school choice programs, the Montana Supreme Court has transformed this relic of nineteenth-century, anti-Catholic bigotry into an engine of animus against anyone who might choose to attend a religious school.”

Among those impacted by the decision is Kendra Espinoza. Kendra, a single mother, pulled her children out of public school after realizing it was not a healthy environment for her daughters, socially or academically. Kendra enrolled them in a private Christian school and took on a second job cleaning houses to pay the tuition. Her daughters thrived at school, but Kendra struggled to make the tuition payments. Kendra was counting on the scholarships to help her continue to keep her daughters at their school.

“The Montana Supreme Court’s ruling hurts every Montana child who is counting on these scholarships,” said Kendra. “For the benefit of families across the state, and the nation, we hope the U.S. Supreme Court restores this program to families that need it to ensure their children have access to a good, safe and meaningful education.”

During the past two-and-a-half decades, a conflict over whether religious options may be barred from school choice and other student-aid programs has split the federal circuits and state courts of last resort. On one side, the 6th, 7th, 8th, and 10th U.S. Circuit Courts of Appeal, along with the New Mexico Supreme Court, hold that government may not—consistent with the federal Constitution—prohibit religious options in student-aid programs. On the other side, the 1st and 9th U.S. Circuits, as well as the Maine and Vermont Supreme Courts, hold that it may. With the decision in this case, the Montana Supreme Court joined the second group and further deepened the schism.

“Resolving this issue will allow these children to legally participate in educational choice programs and also bring much-needed clarity to state and local governments who wish to enact such programs,” said Institute for Justice Senior Attorney Tim Keller.

Scott Bullock, the Institute for Justice’s president and general counsel, said, “Under the current legal landscape, whether a child attending a religious school is permitted to participate in an educational choice program is based solely on the state or federal circuit within which that child happens to reside. No child should be denied educational opportunity simply because of the state they live in. We’re grateful the Supreme Court has taken up this case. Now we hope the justices issue a clear and decisive ruling that will guide the lower courts to maximum freedom and educational choice for parents for decades to come.”

The Institute for Justice has successfully defended educational choice programs nationwide, including twice before the U.S. Supreme Court. IJ is currently litigating other educational choice cases in Maine and Washington, and recently won a victory before the Supreme Court of Puerto Rico.

Texas Doctors File Lawsuit Challenging State’s Ban on Doctors Dispensing Medication to Their Patients

Austin, Texas—In virtually every state, when you get sick and visit your doctor, you can obtain prescribed medication right there in the doctor’s office—a practice known as “doctor dispensing.” Not in Texas. The Lone Star State bans most doctors from dispensing medication. Dr. Michael Garrett and Dr. Kristin Held want to use doctor dispensing to improve care and save patients money. Today, they partnered with the Institute for Justice (IJ) to file a lawsuit in Travis County District Court challenging Texas’s ban on doctor dispensing.

This ban isn’t about patient safety; it is about protecting the profits of pharmacies. Texas doctors are banned from dispensing prescription medication unless they work in certain “rural” areas more than 15 miles from a pharmacy. And the law works as intended: Only eight of Texas’s almost 65,000 doctors are eligible to dispense medication, guaranteeing that pharmacies see a healthy stream of people needing medications.


“As a family physician, I’m the first person you call when someone gets sick or hurt,” said Dr. Garrett. “It’s my job to figure out what’s wrong with a patient and prescribe the right medication and treatment. Texas’s dispensing ban just makes it harder for me to do my job.”

Texas’s ban on doctor dispensing is the exception nationally, not the rule. In 45 states and the District of Columbia, doctor dispensing is legal and most doctors report doing it. Because they work in Texas, however, Dr. Garrett and Dr. Held could be fined and even lose their medical licenses for attempting to dispense medications to their patients, solely because there are pharmacies near their offices.

Research shows that doctors and pharmacies are equally safe when dispensing medication, and that making routine medications more accessible can increase patients’ adherence to their prescribed treatment. That is why the Texas Medical Association seeks to repeal the state’s dispensing ban.

“Our clients are doctors who just want to dispense safe medication to their patients,” said IJ Attorney Joshua Windham. “But Texas’s protectionist law stands in their way. We’re going to court to strike down this unconstitutional law.”

As other states have repealed similar bans over the past few decades, Texas pharmacy groups have lobbied to keep the state’s ban in place. However, there is no reason to think that doctors in Texas are any less qualified than their peers in 45 other states to dispense medication and doctors who work near pharmacies are just as qualified as their rural peers in Texas to provide medication to patients.

“The state trusts me to perform complex eye surgery, but doesn’t trust me to give routine eye drops to my patients as they walk out the door,” said Dr. Held. “The ban on doctor dispensing raises drugs costs, endangers my patients and hinders my ability to practice medicine. The only ones who benefit are the pharmacies.”

Texas’s ban is not the only example of one group capturing the power of government to keep another group from competing against it. In 2015, IJ won a landmark victory in Patel v. Texas Department of Licensing and Regulation when the Texas Supreme Court struck down the state’s licensing requirements for eyebrow threading. In that case, the state high court held that laws must accomplish something for the general public—not just industry insiders—and that laws cannot be unduly burdensome compared to their public objectives. Texas’s ban on doctor dispensing fails both of those standards—all it accomplishes is the enrichment of private pharmacies at the expense of the broader public and it imposes burdens on patients and doctors that hardly justify helping pharmacies compete.

IJ is currently challenging similar protectionist laws in the healthcare industry in Indiana and South Carolina, where at-home vision tests are banned. And it is challenging Texas’s ban on veterinarians using telemedicine to provide advice online to pet owners around the world.

“The only reason our clients can’t dispense medication to their patients is that pharmacist groups have lobbied lawmakers to protect their bottom line,” said IJ Senior Attorney Wesley Hottot. “The Texas Constitution forbids laws that do nothing more than protect the financial interests of established businesses.”

The case was filed in Travis County Civil District Court against the Texas State Board of Pharmacy and the Texas Medical Board, and their members and executive directors.

Federal Judge Turns Down Challenge to Maine Law Excluding Religious Schools from State’s Tuition Program

Portland, Maine—United States District Court Judge D. Brock Hornby today issued a ruling upholding a Maine law that excludes religious schools as an option for parents and students from the state’s high school tuitioning program. In his written ruling, Judge Hornby cited a prior appellate court decision upholding the exclusion of religious options as binding on him at the present time, but recognized that a recent U.S. Supreme Court ruling may provide a basis for the appellate court to reconsider its prior opinion. The parents challenging the law and their attorneys at the Institute for Justice (IJ) and the First Liberty Institute (FLI) will appeal today’s decision to the United States Court of Appeals for the First Circuit.

“Today’s decision is disappointing but not unexpected,” said IJ senior attorney Tim Keller. “District judges are generally required to uphold previous rulings from higher courts and we expected that, no matter the decision, this important case was going to be appealed. We are grateful that Judge Hornby moved quickly to issue a ruling just two days after the hearing. This fight against religious discrimination is headed to the First Circuit and then possibly to the Supreme Court.”

“We’re disappointed that today’s ruling did not end Maine’s discrimination against religious schools,” said Judy Gillis, one of the parent plaintiffs in the case. “However, we are waging this fight not only for our own daughter, but for every family that wants to send their son or daughter to the school that works best for them. We look forward to the appeals court hearing our case.”

“We’re very pleased that the court recognized our clients have legal standing in the case and look forward to taking their cause to the U.S. Court of Appeals for the First Circuit,” said Lea Patterson, FLI counsel. “This ruling was an important first step in the process, which we’re confident will ultimately bring more clarity to religious liberty in education.”

In today’s decision, the judge determined that plaintiff parents are entitled to challenge the law in court. This finding will allow the appeal of the decision to center on whether recent U.S. Supreme Court decisions require overturning previous rulings by the First Circuit that upheld Maine’s limitations against parents using their tuitioning funds at religious schools. One of those recent decisions, a 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, found that excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.”

The U.S. Supreme Court is presently considering IJ’s cert petition to overturn a Montana Supreme Court decision that allows the government to bar families from participating in an otherwise generally available student-aid program merely because the parents have selected a religious school for their children. Should the Supreme Court hear the Montana case and rule on behalf of parents, it could affect the outcome of the challenge in Maine.

Supreme Court Blasts Economic Protectionism as it Strikes Down Durational Residency Requirements for Business Licenses

Arlington, Va.—By a 7-2 margin, the U.S. Supreme Court today issued a broadside against state-based economic protectionism as it struck down a Tennessee law that had required anyone seeking a retail liquor license to first reside in the state for two years—and 10 years before they could renew it.

“To put it mildly, today’s opinion by Associate Justice Samuel Alito and the six justices of the Court who joined with him was an indictment against in-state economic protectionism,” said Anya Bidwell, an attorney with the Institute for Justice (IJ), which litigated the case on behalf of Doug and Mary Ketchum.

The Ketchums own Kimbrough Wines & Spirits, a mom-and-pop liquor shop in Memphis, Tennessee, which they purchased in 2016 after moving from Utah. Because they had moved from out of state, the Tennessee Wine & Spirits Retailers Association—a special interest group that exists to protect its members from competition—threatened to sue the Tennessee Alcoholic Beverage Commission if it granted the Ketchums’ application or a separate application submitted by Total Wine around the same time. At that point, the Commissioner himself went to court and asked it to resolve, once and for all, whether Tennessee’s durational residency requirements were constitutional.

The Ketchums and Total Wine won in the federal trial court and before the 6th U.S. Circuit Court of Appeals, and then the liquor cartel appealed the case to the U.S. Supreme Court seeking to preserve its state-based economic protectionist scheme.

The Retailers’ Association tried to defend Tennessee’s durational residency requirements as legitimate exercises of Tennessee’s power under the Twenty-First Amendment, which allows states to regulate alcohol distribution. But today the U.S. Supreme Court rejected that contention, writing:

  • Tennessee’s two-year durational residency requirement “violates the Commerce Clause and is not shielded by Section 2 of the Twenty-first Amendment.”
  • Section 2 of the Twenty-First Amendment “is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages.” Tennessee’s law “blatantly favors the State’s residents and has little relationship to public health and safety.”
  • The “Commerce Clause by its own force restricts state protectionism.”
  • “Removing state trade barriers was a principal reason for the adoption of the Constitution.”
  • “Tennessee’s 2-year durational-residency requirement plainly favors Tennesseans over nonresidents.”
  • There is no evidence that the Twenty-First Amendment “was understood to give States the power to enact protectionist laws.”
  • The aim of the Twenty-First Amendment “was not to give States a free hand to restrict the importation of alcohol for purely protectionist purposes.”
  • The Twenty-First Amendment “does not license the States to adopt protectionist measures with no demonstrable connection to [health and safety] interests.”
  • Tennessee’s residency requirements’ “overall purpose and effect is protectionist.” Some of them are “plainly based on unalloyed protectionism.”
  • “The Association has fallen far short of showing that the 2-year durational-residency requirement for license applicants is valid.”
  • “[T]he predominant effect of the 2-year residency requirement is simply to protect the Association’s members from out-of-state competition.”

In essence, the Court ruled, protectionism is not a legitimate state interest, writing, “Although some Justices have argued that [Section 2 of the Twenty-First Amendment] shields all state alcohol regulation—including discriminatory laws—from any application of dormant Commerce Clause doctrine, the Court’s modern . . . precedents have repeatedly rejected that view. We have examined whether state alcohol laws that burden interstate commerce serve a State’s legitimate [Twenty-First Amendment] interests. And protectionism, we have stressed, is not such an interest.”

Michael Bindas, a senior attorney with the Institute for Justice, said, “Today’s ruling makes plain that all Americans have a right to earn an honest living and that government cannot deny someone that right simply because of where they live or used to live. No state may discriminate against out-of-staters or newcomers to protect established, in-state interests from competition.”

Bindas said, “As the Court recognized, the Twenty-First Amendment is not a blank check, and the states’ power to regulate alcohol is not unlimited. Although states can impose reasonable regulations on alcohol to protect public health and safety, they cannot discriminate in order to protect favored economic interests.”

The Ketchums had moved to Tennessee from Utah in 2016 to save the life of their 34-year-old daughter, Stacie, who suffers from cerebral palsy and quadriplegia. When one of Stacie’s lungs collapsed during a temperature inversion that severely worsened the air quality in the Salt Lake valley, her doctor urged the Ketchums to move to a healthier climate or risk losing Stacie within a year, prompting their move to Tennessee. Tennessee held the promise of cleaner air and a better quality of life for Stacie, but it also offered bright economic prospects for Doug and Mary, who learned of a rare opportunity to purchase a historic liquor store in Memphis called Kimbrough Wines & Spirits. The store is a Memphis institution and was frequented by legends like Johnny Cash. Becoming business owners would offer the Ketchums the flexibility necessary to spend time caring for Stacie, as well as supply them with a stable income to provide for themselves and their family.

Laying bare the protectionist nature of the durational residency requirements, it was the Retailers Association—not the State of Tennessee—that asked the Supreme Court to hear the case, and it was the Retailers Association’s private counsel—not the Tennessee Attorney General—who defended the residency requirements before the High Court.

Upon hearing about the Supreme Court’s decision, Doug Ketchum said, “This has been three years of nail-biting, waiting for this final opinion. This decision now means no more looking over our shoulder and worrying if they’re going to take away our license. Now we can get on with growing our business and earning the resources we need to care for our daughter over the long haul and provide for our retirement someday.”

Bidwell added, “The Court today did right by the Ketchums and other business owners all across this nation. It found that provincial economic protectionism is not only unconstitutional but also un-American. As Justice Alito pointed out in his opinion, removing state trade barriers was one of the most important drivers behind the adoption of the federal Constitution. The Twenty-first Amendment does nothing to change this. And it is certainly not an excuse for blatant discrimination against out-of-staters.”

Jeffrey Redfern, another IJ attorney on the case, noted that by protecting the right of Americans to engage in commerce throughout the country, the Court’s opinion will help guarantee our nation’s economy remains robust. “Being able to move freely from state to state is not only constitutionally enshrined in the Commerce Clause and the Privileges or Immunities Clause of the Fourteenth Amendment, it has also had the practical benefit of making America one of the most dynamic societies and marketplaces in the world thanks to our freedom of movement and commerce,” Redfern explained.

IJ President and General Counsel Scott Bullock concluded, “This opinion makes it clear the Court believes that the major purpose of the Commerce Clause is to prevent states from passing laws simply to favor its own residents. We plan on building on this precedent today to strike down other blatantly protectionist laws, whether across state lines or favoring one group of in-state businesses over another.”

House Votes To Defund Federal Forfeiture Abuse

Today, the U.S. House of Representatives voted to defund a notorious federal forfeiture program when it passed a “minibus” appropriations bill (H.R. 3055) to finance the Justice Department and other federal agencies. Organized by the Institute for Justice, a bipartisan coalition of two dozen organizations, including the American Conservative Union, the ACLU, Heritage Action for America, the Leadership Conference, and the NAACP, had praised the House for unanimously approving an amendment to the minibus that would cut off funding to the so-called “adoption” program. 

Under adoption, state and local law enforcement can seize property without filing criminal charges, and then transfer the seized property to federal prosecutors for forfeiture under federal law. Adoptive seizures can occur even if they would circumvent safeguards that were enacted by state legislatures to protect property owners from civil forfeiture.

Worse, local and state agencies can collect up to 80 percent of the forfeiture proceeds, giving them a perverse financial incentive to police for profit. Between 2000 and 2016, the Justice Department distributed nearly $1 billion in federal-adoption funds to police and prosecutors nationwide.

“Civil forfeiture is one of the greatest threats to private property rights,” said Institute for Justice Senior Attorney Darpana Sheth, who heads IJ’s National Initiative to End Forfeiture Abuse. “It’s encouraging to see hundreds of representatives and numerous groups that span the ideological spectrum come together to oppose this abuse of power. The House vote is a welcome first step to rolling back federal forfeiture laws and we urge the Senate to pass the amendment.”

In January 2015, then-U.S. Attorney General Eric Holder sharply curtailed adoptive forfeitures. Unfortunately, those limits were later repealed by former U.S. Attorney General Jeff Sessions, as part of a new policy directive to “increase forfeitures” in July 2017.

To defund the adoption program, Reps. Tim Walberg (R-MI), Bobby Rush (D-IL), Jamie Raskin  (D-MD), Tony Cardenas (D-CA), Tom McClintock (R-CA), Justin Amash (R-MI), and Tulsi Gabbard (D-HI) sponsored an amendment to H.R. 3055 that was unanimously adopted last week. If enacted, their amendment effectively end adoptive seizures and forfeitures through the next fiscal year.

The House vote against adoptive forfeitures comes less than two weeks after the Senate unanimously approved a bill to stop the Internal Revenue Service from raiding the bank accounts of small-business owners with civil forfeiture. In addition, Rep. Jim Sensenbrenner (R-WI) has reintroduced the DUE PROCESS Act, which would strengthen safeguards for innocent owners, while Rep. Walberg has sponsored the FAIR Act, which would abolish equitable sharing (which includes adoption) and bar federal agencies from retaining forfeiture proceeds.

A recent study by the Institute for Justice further calls into question whether distributing hundreds of millions of dollars in forfeiture proceeds improves police effectiveness. The study—the most extensive and sophisticated of its kind—combines local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Justice Department’s equitable sharing program.

The study finds that more forfeiture proceeds do not help police fight crime. Instead, the results indicate police use forfeiture to boost revenue: A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“This study is a timely reminder for why Congress must take the profit incentive out of policing,” Sheth added. “Policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness.”

Since 2014, 33 states and Washington, D.C. have enacted forfeiture reforms, with seven states and the District sharply limiting law enforcement’s ability to receive funding through equitable sharing. In February, the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Hawaii Governor Intends to Veto Forfeiture Reform, Preserve Policing for Profit

Hawaii Gov. David Ige announced on Monday that he intends to veto HB 748, a bill that would substantially reform the state’s civil forfeiture laws and end law enforcement’s perverse incentive to police for profit. Under current law, agencies can confiscate valuable property without ever filing criminal charges. Once property has been forfeited and auctioned off, police and prosecuting attorneys each take a quarter of the proceeds, while the attorney general takes the remaining half.

“Civil forfeiture is one of the greatest threats to civil liberties in Hawaii today. Vetoing reform would maintain an abusive status quo that the bill rightly calls ‘government-sponsored theft,’” said Lee McGrath, senior legislative counsel at the Institute for Justice, which gave Hawaii a D- for its civil forfeiture laws, calling them “among the nation’s worst.” “Should the governor follow through with his veto, we strongly urge the Hawaii Legislature to override and vote to protect the constitutional rights of all Hawaiians.”

HB 748 would enact two key reforms. First and foremost, it would direct all state forfeiture proceeds to the general fund, minus administration and storage costs. A wide-ranging audit of the Attorney General’s Asset Forfeiture Program found that between 2006 and 2015, law enforcement forfeited more than $11.5 million worth of property, including cash, nearly 600 vehicles and 12 real estate properties.

But by letting agencies keep what they confiscate, current law encourages police and prosecutors to aggressively pursue forfeiture cases. In fact, the County of Kauai Office of the Prosecuting Attorney even admitted as much in a March letter opposing HB 748:  “With this financial incentive eliminated, it’s not hard to anticipate these agencies de-prioritizing forfeiture cases, choosing to spend precious human resources on other matters.” Should HB 748 become law, Hawaii would join only a handful of states and Washington, D.C. that have abolished this form of policing for profit.

Second, the bill would require a felony conviction (or its equivalent, like plea deals) before property could be taken with civil forfeiture. Today, 15 states require a conviction to forfeit property in civil court, while three states have gone further and have completely abolished civil forfeiture.

In his rationale behind his intent to veto, Gov. Ige claimed that “safeguards presently exist in Hawaii’s asset forfeiture statutes that prevent the abuses cited in the bill” and called civil forfeiture “an effective and critical law enforcement tool.”

Neither claim holds up to scrutiny.

First, Hawaii lacks many basic safeguards for property owners. Unlike criminal defendants, there is no presumption of innocence for owners looking to regain their seized property. According to state auditors, “property was forfeited without a corresponding criminal charge” in over a quarter of all cases closed in 2015.

Hawaii is also one of just three states that requires property owners to post a cash bond before they can even challenge a forfeiture in court. If owners fail to post a bond of $2,500 or 10 percent of the property’s value, whichever is greater, within 30 days of notice, the property is forfeited.

Worse, all forfeiture cases involving vehicles and property valued at under $100,000 (excluding real estate) begin as “administrative” forfeitures, which are proceedings overseen by the Department of the Attorney General. Unlike criminal court cases, where defendants must be proven guilty beyond a reasonable doubt before an impartial judge, administrative forfeitures occur without a court hearing with the property forfeited if prosecutors merely show that there was “probable cause” to link the property with alleged criminal activity. Between 2006 and 2015, 85% of all administrative forfeitures went uncontested.

Second, a recent Institute for Justice study of the nation’s largest forfeiture program found that more forfeiture proceeds do not help police fight crime or lower drug use. Instead, the study indicated that police use forfeiture to boost revenue.

“This study shows policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” McGrath noted. “Enacting HB 748 would eliminate the financial incentives that encourage the pursuit of revenue over the pursuit of justice.”

Since the Institute for Justice began its End Forfeiture initiative in 2014, 33 states and the District of Columbia have enacted forfeiture reforms. In February, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Bill Protecting the Right to Grow Your Own Food Signed by Governor

Tallahassee, Fla.—Yesterday, Gov. Ron DeSantis signed SB 82, legislation protecting the right of all Floridians to grow vegetables and fruit on their own property. For one Miami-area couple, this represents the end of a years-long struggle that started when their town ordered them to dig up the garden they had been growing for 17 years. Starting July 1, any local ordinance that expressly limits or prohibits growing vegetables on one’s own property will be “void and unenforceable.”

In 2013, the Institute for Justice (IJ) filed a lawsuit on behalf of Hermine Ricketts and Tom Carroll seeking to strike down the Village of Miami Shores’ prohibition on front yard gardens as an unconstitutional violation of property rights. Florida’s Third District Court of Appeals ruled in favor of the Village. The Florida Supreme Court ultimately declined to hear the case, though the battle over the right to use your property peacefully and productively continued in the Florida legislature.

“When the Institute for Justice heard that a local government was waging a senseless fight against Hermine and Tom’s vegetable garden, we were glad to come to their aid,” said IJ Attorney Ari Bargil. “When the courts refused to stand up for their rights, we didn’t give up, and this new law is the result of persistent advocacy. Hermine and Tom are free to replant their garden, a right they now share with every other Floridian. I’m looking forward to seeing new life planted in the front yard next week.”

“After nearly six years of fighting, next week I will once again be able to legally plant vegetables in my front yard,” said IJ client Hermine Ricketts. “I’m grateful to the legislature and the governor for standing up to protect my freedom to grow healthy food on my own property. What is sad is that this fight even needed to be waged in the courts and the capital. We had a beautiful, nutritious garden for many years before the Village went out of its way to ban it and then threatened us with ruinous fines. Finally, the state has ended a senseless assault on our property rights.”

IJ Senior Attorney Michael Bindas, the head of IJ’s Food Freedom Initiative, commented on the signing: “For years, Hermine and Tom’s garden was ground zero in a larger battle being fought all over the country. While their battle is now finally over, many Americans like Hermine and Tom are still struggling against the local, state or federal government to secure greater control over the foods they grow, sell or consume. IJ will continue to fight on behalf of folks like Hermine and Tom to secure greater food freedom for all Americans.”

Hermine and Tom are planning to hold a ceremonial replanting of their vegetable garden on Monday, July 1 at 10:00 a.m. at their home: 53 NE 106th St. Miami Shores, FL 33138. Members of the media are invited to view the replanting and speak with the couple and attorney Ari Bargil about the long fight to restore their garden. Please RSVP to Andrew Wimer, IJ Assistant Communications Director, at (703) 682-9320 x229 or awimer@ij.org.

New Proposal Would Slash Hours of Training Needed to Get Barber License

Tallahassee, Fla.—The hours of training necessary to earn a living as a barber would be decreased under a proposed regulation issued today by the Florida Department of Business and Professional Regulation. The proposal eliminates 700 hours of unnecessary training to obtain a restricted barber license (the license used by many barbers) by reducing the pre-test requirement from 1,200 to 500 hours. It would also allow some applicants to ask the Florida Barbers’ Board for permission to take the test after 300 hours.

The Institute for Justice (IJ), which advocates for reduced barriers to low-income occupations, found that Florida had the 5th most burdensome licensing laws in the nation. According to IJ’s 2017 report License to Work, licenses in Florida require on average 693 days of education and experience.

Those burdens add up. A separate IJ study found that occupational licensing costs the state nearly 130,000 jobs and almost $11.6 billion in “misallocated resources.”

“Although incremental, we applaud this positive step,” said IJ Florida Office Managing Attorney Justin Pearson, who testified in support of licensing reform during the past legislative session. “Bipartisan studies show that these licenses do nothing to protect safety or quality. Instead, they harm consumers, kill jobs and increase recidivism. These licenses should not exist at all, and any reduction to these barriers should be celebrated. We also call on the Florida Legislature next session to finally pass the broader reform that made it out of committee last session.”

In addition to reducing the barriers themselves, Florida is also in the process of making it easier for inmates to obtain occupational licenses (including barber licenses) while incarcerated, thereby allowing them to be gainfully employed upon release. This reform was included in Florida House Bill 7125, which passed the Florida Legislature this past session and is expected to be signed by Governor DeSantis this summer. Pearson also testified in support of this reform last session, explaining that “when you take away someone’s ability to earn a lawful living, the chance that they will be forced to turn to other ways to support themselves increases.”

In recent years, there has been broad bipartisan support for occupational licensing reform with the Obama administration releasing a major report calling for reform in 2015 and President Trump signing legislation encouraging reform in 2018.

Louisiana Hair Braiders File Lawsuit to Untangle State’s Unnecessary Braiding License

New Orleans, La.—Why does the Louisiana State Board of Cosmetology require 500 hours of training to do something as safe as hair braiding? That is the question three Louisiana hair braiders raised in a new lawsuit Thursday with the Institute for Justice (IJ), a national public interest law firm that fights for economic liberty.

Lynn Schofield, a plaintiff in the lawsuit, experienced firsthand the harms of Louisiana’s unnecessary red tape. She moved to Louisiana in 2000 and opened Afro Touch, the state’s first salon dedicated solely to hair braiding: Afro Touch. It was so successful, she expanded her business to four locations with more than 20 employees. But that all changed in 2003 when the Board created the braiding license. Braiding without a license is punishable by fines of up to $5,000 per incident. Unable to fully staff her salons, Lynn could no longer expand her business, and instead was forced to shut down salons.

“I want to grow my business, but it’s impossible with Louisiana’s rules,” Lynn said. Today, only one salon remains.

“It is unconstitutional to license something as safe and common as hair braiding,” said IJ Attorney Jaimie Cavanaugh. “Economic liberty—or the right to earn a living in the profession of one’s choosing—is a right protected by the Louisiana Constitution.”

When economic liberty is under attack, would-be entrepreneurs vote with their feet. Take plaintiff Michelle Robertson, a former resident of Shreveport, Louisiana, who dreamed of opening her own braiding salon there before relocating to Texas. She did not have the means to stop working for three months to enroll in the 500-hour braiding course, nor could she find other braiders who could legally braid hair for a living in Louisiana. Decades of braiding experience meant nothing to Louisiana’s Board of Cosmetology, so she moved to Texas, where braiding is legal and she can pursue other opportunities.

“Braiding does not become dangerous when you cross the border from Texas to Louisiana,” said IJ Senior Attorney Wesley Hottot. “Twenty-seven states require no license of any kind for hair braiding.  A majority of states recognize that licensing braiders offers no public benefits, but causes real economic harms.”

Who does benefit from the license requirement are the self-interested members of the Cosmetology Board. Louisiana’s specialty braiding license is the most onerous in the country, but the Board keeps it that way because the license requirement is not meant to benefit the public. Instead, the license benefits cosmetology schools that want to profit from braiders and existing cosmetologists who do not want to compete with braiders. And the Board is composed of both licensed cosmetologists and cosmetology school owners. It is no surprise then that the Board wants to keep the braiding license exactly as it is.

The Louisiana Constitution also prohibits the Cosmetology Board from lawmaking, even laws related to cosmetology. The 500-hour requirement was created by the Board, not the legislature, and is nowhere in the law. The Louisiana State Legislature has the sole authority to make lawsthe Cosmetology Board can only enforce them.

Plaintiff Ashley N’Dakpri, Lynn’s niece and the manager of the sole remaining Afro Touch location, said that she looks forward to the fight to take down Louisiana’s braiding license.

“It would be easier for me just to move to Mississippi or Texas, but this is my home.  And I won’t stop until every Louisianan can go into the hair braiding business without this useless license,” Ashley said.

This case continues IJ’s national Braiding Freedom Initiative, which seeks to protect braiders’ right to pursue their livelihoods free from unnecessary licensing laws, and it is IJ’s first lawsuit challenging a specialty braiding license. Its first lawsuit was filed on behalf of hair braiders in Washington, D.C.  Since D.C. repealed its license, IJ has won a dozen hair braiding lawsuits, either when courts struck down or lawmakers repealed the challenged licenses. This lawsuit is also part of IJ’s continuing efforts to expand economic protections under state constitutions.

Congress Passes Bill to Protect Small-Business Owners from IRS Seizures

Yesterday, the U.S. Senate unanimously approved legislation that stops the Internal Revenue Service from raiding the bank accounts of small-business owners. The Clyde-Hirsch-Sowers RESPECT Act, passed as part of the Taxpayer First Act (H.R. 3151), is named after Institute for Justice clients Jeff Hirsch and Randy Sowers, two victims of the IRS’s aggressive seizures for so-called “structuring.” Through structuring laws, the IRS has routinely confiscated cash from ordinary Americans simply because they frequently deposited or withdrew cash in amounts under $10,000. And by using civil forfeiture, the IRS can keep that money without ever filing criminal charges.

The RESPECT Act was originally introduced by Reps. John Lewis (D-GA) and Doug Collins (R-GA) after Jeff and Randy testified before the House Ways and Means Oversight Subcommittee about their experiences: Jeff had over $400,000 seized from his convenience store distribution business on Long Island while Randy, a Maryland dairy farmer, lost $29,500 to the IRS. Neither man was ever charged with a crime.

Both Jeff and Randy ultimately recovered their wrongfully taken money, but only after years of legal proceedings and high-profile media coverage—including a front-page article in The New York Times and an editorial in The Wall Street Journal.

“The IRS used civil forfeiture to take hard-earned money from innocent small-business owners,” said Institute for Justice Senior Attorney Darpana Sheth, who heads IJ’s National Initiative to End Forfeiture Abuse. “With Congress so bitterly polarized, it’s encouraging to see hundreds of representatives stand together against this inherently abusive practice.”

The Taxpayer First Act previously passed the House by voice vote on June 10. It now heads to President Donald Trump for signature.

To rein in the IRS’ civil-forfeiture power, the Clyde-Hirsch-Sowers RESPECT Act would:

  • Limit forfeiture for currency “structuring” only when the funds in question are derived from an illegal source or used to conceal illegal activity. This would codify an IRS policy change from October 2014 prompted by lawsuits from the Institute for Justice and would prevent the agency from backtracking;
  • Allow property owners to challenge a seizure at a prompt, post-seizure hearing. Previously, property owners targeted for structuring had to wait months or even years to present their case to a judge.

Following a pathfinding petition effort by IJ, the IRS received 464 petitions from owners seeking to recover their money that had been seized for structuring. Out of 208 petitions that were within its jurisdiction, the IRS granted roughly 84 percent and returned over $9.9 million to property owners.

For the remaining 256 petitions under the Department of Justice’s jurisdiction, the IRS recommended that DOJ grant 194 of those petitions. Yet the Department only accepted 41 petitions—less than 1 in 6—and refused to return more than $22.2 million as of last summer.

“The Clyde-Hirsch-Sowers RESPECT Act is an important first step to address one type of forfeiture abuse by one federal agency,” Sheth noted. “But civil forfeitures by other agencies continue unabated. With today’s vote revealing a broad consensus, Congress should seize the opportunity to pass comprehensive reform of federal forfeiture laws and protect the constitutional rights of all Americans.”

Two forfeiture reform bills with broad, bipartisan support are currently active in Congress. Rep. Jim Sensenbrenner (R-WI) has reintroduced the DUE PROCESS Act (H.R. 2835), which would strengthen safeguards for innocent owners, including applying the reforms of the RESPECT Act to the DOJ. Similarly, Rep. Tim Walberg (R-MI) has sponsored the FAIR Act (H.R. 1895) which would also ban federal agencies from retaining forfeiture proceeds and abolish the notorious “equitable sharing” program.

Forfeiture reform is the rare political issue that transcends party lines. The national platforms for both the Democratic and Republican Parties have endorsed forfeiture reform, as have the editorial boards for over 135 different newspapers. In February, the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.” And in the past five years, 33 states and the District of Columbia have enacted forfeiture reforms.

Alabama Enacts New Transparency Requirements for Civil Forfeiture

Gov. Kay Ivey signed the Alabama Forfeiture Information Reporting Act (SB 191) late Monday, which will shine a light on law enforcement’s often secretive use of civil forfeiture. Without ever charging the owner with a crime, police and prosecutors can seize cash, cars, and other valuables, and if the property is forfeited, keep up to 100 percent of the proceeds. Prior to reform, Alabama received failing grades across the board on six separate metrics for forfeiture transparency and accountability, according to a report by the Institute for Justice.

But under SB 191, agencies must report the date, description, and location of the seizure, the agency involved, any arrests connected with the seizure, any claimants, and the disposition of property, as well as the proceeds agencies collected from the forfeiture property. Agencies’ seizure and forfeiture activity, along with the amount of proceeds received, will be aggregated into an annual report by the Alabama Criminal Justice Information Center Commission and made available online. In addition, law enforcement’s civil forfeiture funds will now be audited.

“By itself, improved transparency cannot fix the fundamental problems with civil forfeiture—namely, the property rights abuses it permits and the temptation it creates to police for profit,” noted Jennifer McDonald, an IJ research analyst who co-authored the transparency report.  “Though limited, the Alabama Forfeiture Information Reporting Act is a welcome first step for keeping both the public and legislators well-informed about civil forfeiture in Alabama.”

Sponsored by Sen. Arthur Orr, SB 191 largely tracks what has been collected by the Alabama Forfeiture Accountability System, a voluntary reporting database that was announced earlier this year by the Alabama District Attorneys Association. But both systems largely do not cover how Alabama agencies spend their forfeiture money, which is generated and spent outside the normal appropriations process and evades public scrutiny.

The importance of collecting data is further underscored by a new study from the Institute for Justice, which indicates that forfeiture doesn’t help police fight crime, but rather is a source of revenue for law enforcement. The IJ report, “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture,” combines local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Department of Justice’s equitable sharing program. Equitable sharing lets state and local law enforcement cooperate with the Drug Enforcement Administration and other DOJ agencies on forfeiture cases and receive up to 80% of the proceeds. Between 2000 and 2013, Alabama agencies collected more than $75 million in equitable sharing funding from the DOJ.

Specifically, the study finds:

  • More forfeiture proceeds do not translate into more crimes solved, despite claims forfeiture gives law enforcement more resources to fight crime.
  • More forfeiture proceeds also do not mean less drug use, even though forfeiture supposedly rids the streets of drugs by crippling drug dealers and cartels financially.
  • When local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“This study shows Alabama policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, IJ’s senior legislative counsel. “This study also confirms what experienced legislators in Alabama have long known: The state’s forfeiture laws encourage the pursuit of revenue over the pursuit of public safety and justice. In the next session, we urge the Alabama Legislature to end civil forfeiture and replace it with criminal forfeiture. The legislature should also end forfeiture’s perverse financial incentives and direct forfeiture proceeds to neutral accounts.”

With the governor’s signature, Alabama is now the 23rd state that has enacted new reporting requirements to track seizures and forfeitures since 2014. Alabama also joins 32 other states that have reform their civil forfeiture laws more broadly. In February, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

Free Speech Fight: Texas Veterinarian Heads to Appeals Court for Right to Give Advice Online

AUSTIN, Texas—Today, Texas veterinarian Dr. Ron Hines announced that he will ask the 5th U.S. Circuit Court of Appeals to recognize that a landmark U.S. Supreme Court decision last summer, NIFLA v. Becerra, established that the First Amendment protects the right of licensed professionals to give advice over the internet.

Ron joined forces with the Institute for Justice (IJ) to sue Texas in 2013 after the Texas State Board of Veterinary Medical Examiners shut him down for giving advice to pet owners online, fining him and suspending his license because Texas law requires that veterinarians physically examine animals before giving advice about them. In 2015, the 5th U.S. Circuit Court of Appeals declared that law constitutional: Dr. Hines had no free speech right to give advice online. But a 2018 U.S. Supreme Court decision changed the landscape, giving Dr. Hines the opportunity to argue again that licensed professionals have the same free speech rights as everybody else. Today, the U.S. District Court in Brownsville disagreed, ruling that NIFLA does not apply, and that Texas can constitutionally allow telemedicine for physicians but not veterinarians.

“This case is about the online revolution, free speech and over-regulation,” said IJ Senior Attorney Jeff Rowes, who represents Dr. Hines. “With more and more advice coming online, the viability of many kinds of telepractice depends on robust protection of speech.”

After a disability made physical practice too difficult, Dr. Hines spent a decade of his retirement giving online advice to pet owners around the world. For most pet owners he advised, traditional veterinary clinics were not a realistic option. Dr. Hines charged little to nothing, and there was no evidence that animals were anything other than benefitted. Nonetheless, the Texas veterinary board suspended Dr. Hines’ license, fined him and forced him to stop giving life-saving advice. The 5th Circuit then ruled against him in his initial lawsuit. Since then, however, major developments in First Amendment law such as NIFLA prompted Dr. Hines to renew his lawsuit.

Rowes explained, “The trial court decided today that Dr. Hines gave up his right to free speech when he received a professional license. That’s just wrong. Last year, the Supreme Court made clear that there’s no First Amendment exception for professional speech. Texas will let Dr. Hines say anything he wants over Skype—except the best way to care for a specific animal. There’s no justification for this censorship.”

IJ Attorney Andrew Ward, who also represents Dr. Hines, explained that Texas would have no problem if Dr. Hines were a medical doctor treating human beings. “In 2017, Texas recognized the safety of human telemedicine. And if telepractice makes sense for babies and grandmothers, it makes sense for veterinarians treating pets.”

“This is just a temporary setback,” said Dr. Hines. “We’ll keep fighting until veterinarians are free to share their knowledge with pet owners across the country and around the world.”

New Report: Nation’s Largest Forfeiture Program Fails to Fight Crime

Arlington, Va.—A new Institute for Justice study (PDF) finds the nation’s largest forfeiture program does not help police fight crime. Instead, the study indicates police use forfeiture to boost revenue—in other words, to police for profit. The IJ study, “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture,” combines local crime, drug use and economic data from a variety of federal sources with more than a decade’s worth of data from the Department of Justice’s equitable sharing program. Equitable sharing lets state and local law enforcement cooperate with the Drug Enforcement Administration and other DOJ agencies on forfeiture cases and receive up to 80% of the proceeds.

The study—the most extensive and sophisticated of its kind—calls into question whether distributing billions of dollars in forfeiture proceeds improves police effectiveness. The new evidence undercuts claims by prominent forfeiture supporters, such as former Deputy Attorney General Rod Rosenstein, who called forfeiture an “important tool that can be used to combat crime, particularly drug abuse,” and Attorney General William Barr, who, while acknowledging “problems and potential abuses,” called forfeiture “a valuable tool in law enforcement.”

Specifically, the study finds:

  • More forfeiture proceeds do not translate into more crimes solved, despite claims forfeiture gives law enforcement more resources to fight crime.
  • More forfeiture proceeds also do not mean less drug use, even though forfeiture supposedly rids the streets of drugs by crippling drug dealers and cartels financially.
  • When local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment—a standard proxy for fiscal stress—is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.

“These results add to a growing body of evidence suggesting that forfeiture’s value in crime fighting is exaggerated and that police do use forfeiture to raise revenue,” said Dr. Brian Kelly, associate professor of economics at Seattle University and the study’s author. “Given this evidence and the serious civil liberties concerns raised by forfeiture, forfeiture proponents should bear the burden of proof when opposing reforms that would keep police focused on fighting crime, not raising revenue.”

The scale of federal forfeiture is vast. Between 2001 and 2017, the federal government’s two main forfeiture funds took in close to $40 billion, and the funds’ net assets have surpassed $4 billion in every year since 2013. From 2000 to 2016, the DOJ’s equitable sharing program made more than 660,000 distributions totaling over $6.8 billion to state and local law enforcement. Distributions fell following modest reforms introduced by former Attorney General Eric Holder in 2015. However, former Attorney General Sessions reversed the Holder reforms in 2017. Detailed data following this reversal are not yet available.

“This study shows policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, IJ’s senior legislative counsel. “Congress should abolish equitable sharing, and in the meantime, states should opt out of the program. And lawmakers should eliminate the financial incentives in both state and federal forfeiture laws that encourage the pursuit of revenue over the pursuit of justice.”

Since the Institute for Justice began its End Forfeiture initiative in 2010, 32 states and the District of Columbia have enacted forfeiture reforms. Seven states and the district have largely opted out of equitable sharing, limiting law enforcement’s ability to receive funding through the program and making it harder for law enforcement to circumvent state civil forfeiture laws. And in 2015, New Mexico abolished civil forfeiture, replacing it with criminal forfeiture and requiring that all forfeiture proceeds be deposited in the state’s general fund. In February, IJ secured a landmark victory in Timbs v. Indiana, where the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

This study was made possible through the support of the John Templeton Foundation.

Minnesota (Finally) Untangles Hair Braiders From Licensing Laws

Minnesota will no longer license natural hair braiders thanks to an omnibus budget bill Gov. Tim Walz signed on Thursday. Previously, Minnesota required braiders to complete a 30-hour course and pay a $20 fee before they could practice their craft. But under SF 10, braiders are now completely exempt from all occupational and facility licensing requirements. With the governor’s signature, Minnesota joins 26 other states that have ended licensing for hair braiders, including Iowa, South Dakota, and, as of April, North Dakota.

“This is a great win for entrepreneurship, economic liberty and just plain common sense,” said Institute for Justice Legislative Counsel Meagan Forbes, who testified in favor of the bill. “The government has no business licensing something as safe and common as braiding hair.”

Thursday’s repeal caps a 14 year-long battle to end licensing for braiders in Minnesota. Back in 2005, the Institute for Justice successfully sued the Minnesota Board of Barber and Cosmetologist Examiners, which at the time forced hair braiders to complete 1,550 hours of cosmetology training before they could work. But unlike cosmetologists, braiders do not cut hair or use any harsh chemicals or dyes in their work.

In 2007, the state legislature created the 30-hour specialty license that was repealed on Thursday. Prior to reform, over 200 braiders had registered with the state. But the new regulations created confusion in the braiding community. And complying with the course requirement amounted to losing a full week of work, which for braiders who live paycheck to paycheck, was an opportunity cost they could not afford.

“This is great news for all entrepreneurs in Minnesota,” said Lillian Anderson, a Minneapolis-based braider who was the lead plaintiff in IJ’s lawsuit. “SF 10 will expand economic opportunity, especially for female entrepreneurs and people of color.”

Texas Supreme Court Declines to Hear Challenge to Alcohol Distribution Law

Today, in a blow to the economic liberty of all Texans, the Texas Supreme Court refused to grant review in a constitutional challenge that asked whether the government can use its power to pick winners and losers in the marketplace. The legal challenge concerned a law passed in 2013 at the behest of beer distributors that makes it illegal for craft brewers to get paid when they assign exclusive distribution rights for the beer they produce. Live Oak Brewing, Peticolas Brewing and Revolver Brewing teamed up with the Institute for Justice (IJ) to challenge the sale prohibition under the Texas Constitution. By refusing to hear the case, the Texas Supreme Court leaves in place a law that prohibits craft breweries throughout the state from negotiating for the value of the distribution rights for their beer, while continuing to allow distributors to do so.

Prior to reaching the Texas Supreme Court, a Texas district court judge struck down the sale prohibition in 2016, but the Third Court of Appeals in Austin reversed and upheld the law by reasoning that the government still allowed the craft brewers to brew beer.

“By refusing to hear this case, the Texas Supreme Court leaves a simple but profound constitutional question unresolved, and that should concern every business and entrepreneur in Texas,” said Arif Panju, managing attorney for IJ’s Texas office. “Picking winners and losers in the marketplace is not a legitimate use of government power—the Texas Constitution bars the government from engaging in economic protectionism.”

Under Texas’s three-tier system of beer distribution, most of the beer that brewers produce cannot be sold directly to consumers or retailers. Instead, it must first be sold to beer distributors, who in turn sell to retailers. Before the passage of the 2013 sale prohibition, beer distributors would compete for distribution rights and pay brewers for the right to sell their beer in cities across Texas. By preventing craft brewers from realizing the value that their beer has in markets, the law will continue to stifle the growth of craft beer in Texas.

The 2013 law was lobbied for, and written by, beer distributor lobbyists. While forcing craft brewers to give up their distribution rights for free when entering into a distribution contract, the law leaves distributors free to continue cashing in by selling the rights they obtained from brewers at no cost.

“I’m proud of the work I’ve put into my brewery and find it disappointing the government forces me to give some of it away for no legitimate public purpose,” said Chip McElroy, owner of Live Oak Brewing. “This law keeps our craft beer off of shelves in cities that we’d like to be in.”

“Texans have shown a serious passion for craft beer over the last decade, and it’s been a privilege to be a part of it,” Peticolas Brewing owner Michael Peticolas said. “It’s just unfortunate that the government makes it hard for us to succeed and expand.”

IJ Senior Attorney Paul Sherman said, “This case illustrates the vital need for judicial engagement—a willingness on the part of judges to look beyond the government’s pretextual justifications and examine what’s really going on. Texas’s prohibition on brewers selling their distribution rights was written by distributors for the sole benefit of distributors. It is difficult to imagine a more blatant example of special-interest legislation. By leaving that law in place, the Texas Supreme Court has undermined the constitutional rights of all Texans.”

“The right to earn an honest living free from unreasonable government interference—economic liberty—receives meaningful protection under the Texas Constitution,” said IJ Senior Attorney Jeff Rowes. “This right belongs to all Texans, and courts should never put it in the back seat when lawmakers decide to use government power to pick winners and losers.”

Maryland Court of Special Appeals Reinstates Baltimore Food Truck Restrictions

Arlington, Va.—The Maryland Court of Special Appeals yesterday reinstated Baltimore’s ban on mobile vendors operating within 300 feet of any brick and mortar establishment selling similar food. This overturns a 2017 Baltimore Circuit Court ruling that declared the city’s 300-foot ban too vague to enforce. The Institute for Justice (IJ) and two food trucks, Pizza di Joey and Mindgrub Café, first challenged the rule in 2016 and will ask the Maryland Court of Appeals, the state’s highest court, to reconsider the ruling.

“This decision embracing protectionism does not square with the Maryland constitution,” said IJ Senior Attorney Rob Frommer. “For decades, Maryland courts have turned away efforts to stifle one private business in order to benefit another. Economic liberty is the cornerstone of the American Dream and we will continue the fight for that dream at the Maryland Court of Appeals.”

Joey Vanoni, owner and operator of Pizza di Joey, said, “This decision is disappointing, not just for me and other food truck entrepreneurs, but also for my fellow Baltimore City residents. They love food trucks and what we have to offer them. We have not come this far to give up now. I’m ready for the next round!”

Joey, a Navy veteran, opened the Pizza di Joey food truck in 2014 after returning from Afghanistan. Joey opened the food truck with two missions: serve the diverse neighborhoods of Baltimore delicious New York-style slices made in a 4,000 pound brick oven and provide job opportunities for fellow veterans. Unfortunately, because of the 300-foot rule, the Pizza di Joey food truck was spending less time on the road. With the ban now reinstated, vendors caught violating the law—which was passed at the request of the retail-business lobby—would be guilty of a misdemeanor, could face $500 in fines for each violation and the loss of their license to vend.

U.S. Supreme Court Denies Cert In Case Dealing with Pipeline Company’s Abuses of Eminent Domain

Arlington, Va.—The U.S. Supreme Court today declined to review a case that documented how pipeline companies flout the law by taking property before compensating property owners.

The case arose out of southeast Pennsylvania where Gary and Michelle Erb purchased a 72-acre tract of land in Conestoga, where they built their dream home. Their hope was to have their three sons build homes on the land as well, so they could all enjoy the hiking and hunting that is readily available in the beautiful rural setting.

But the Erbs’ dream was destroyed when the Transcontinental Gas Pipe Line Company (Transco) applied to the Federal Energy Regulatory Commission (FERC) for authorization to build its Atlantic Sunrise Project—a natural gas pipeline running through Pennsylvania, Maryland, Virginia and the Carolinas. The lower courts granted Transco the power to install its pipeline before ever paying the Erbs for the taking, even though that is what Congress demands of these private companies. Now, two years after the pipeline was forced through their property, the Erbs have still not received any compensation from the Transcontinental Gas Pipe Line Company.

IJ documented hundreds of other examples nationwide where private pipeline companies took property before paying the landowner compensation—all with the blessing of the courts.

“Defending property rights is a marathon, not a sprint,” said Robert McNamara, a senior attorney with the Institute for Justice, which represented the Erbs and their neighbors in their U.S. Supreme Court appeal. “Today’s denial is disappointing, but it is only one step in the process. And the Institute for Justice will keep up this fight until we find justice for property owners nationwide who are finding their rights violated by these powerful private companies.”

“In every other context, the transfer of property and the payment of compensation go hand in hand,” said IJ Attorney Sam Gedge. “Today’s decision leaves in place a process that systematically disadvantages property owners whose land is taken for pipeline construction, and we are committed to seeing that process dismantled.”

“Eminent domain is one of the most significant powers the government has at its disposal,” said IJ President and General Counsel Scott Bullock. “When Congress delegates that power to private companies to use for their own ends, courts must read those delegations narrowly, not broadly. The decision in this case does precisely the opposite. IJ will continue to represent courageous property owners who are ready and willing to stand up to defend their rights, and IJ will make them able to do so.”

The Erbs tell their story in this short video:  https://www.youtube.com/watch?v=kiUPH8-4_s8.

The Institute for Justice has spent decades fighting eminent domain abuse nationwide. IJ’s victories have saved homes and businesses, including: the home of an elderly widow from Atlantic City who successfully fought then-developer Donald Trump’s abuse of eminent domain; an Atlantic City piano tuner’s home; a small auto repair shop in Arizona; 17 homes and businesses in Lakewood, Ohio; and a boxing gym for inner city youth in National City, California, among other examples.

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:  https://ij.org/case/pennsylvania-pipeline-eminent-domain/.]

Judge Issues Bar Owners Temporary Restraining Order Against Mandan’s “Mural Police”

Wednesday afternoon, a federal judge issued a temporary restraining order to protect the mural of a North Dakota saloon, Lonesome Dove, from immediate removal. Lonesome Dove filed a lawsuit against the city on Monday after the city ordered the bar to either remove the mural by May 23 or suffer thousands in fines. In issuing the order, the judge found that the city’s enforcement against the mural had likely violated Lonesome Dove’s free speech rights. Lonesome Dove is represented by the national nonprofit law firm, the Institute for Justice.

Lonesome Dove is owned by Brian Berube and August “Augie” Kersten. Both men said they were happy about the order but understand that their lawsuit is far from over.

“I think it’s a step in the right direction. It gives us time to not have to worry about covering up our mural,” Brian said. “I’m more fired up than I was before,” he added.

Brian and Augie hired an artist to paint the mural to improve the appearance of their building last summer. The mural shows a sun setting over the mountains, with a ranch and cowboys scattered across the landscape. Artistically rendered across the top of the mural are the words, “Lonesome Dove.” The mural brought in new customers and many compliments. Everyone seemed to like it.

Everyone but city officials, that is. Over the years, Mandan has developed a litany of arbitrary regulations that allow the city to carefully control the content of murals. The city bans any mural with a “commercial message,” including any mural that contains the name of a business. Mandan also bans murals on the front of buildings, because—as the city admitted—it wants to hide murals that may be “political,” “controversial,” or “provoke thought.” Finally, the city requires all murals to apply for a permit, a process the city uses to play art critic, ordering changes to planned murals to suit the city’s liking. The city has enforced these regulations against multiple local businesses, with Lonesome Dove as the latest victim.

“We are pleased that for now, our clients will be able to exercise their First Amendment rights and keep up their mural,” said Institute for Justice attorney Erica Smith. “Murals are a form of free speech and the First Amendment doesn’t let the government say what speech is OK and what isn’t.”

In ordering the injunction, U.S. District Court Judge Daniel Hovland seemed to agree. The Court said that Mandan’s ban on commercial murals is “clearly not content neutral,” noting that the Supreme Court has struck down multiple restrictions that discriminated against commercial speech. “Commercial speech is valuable and serves an important public function,” the order continued. “Such a content-based restriction on speech as Mandan has enacted is unlikely to survive constitutional muster.”

The Court also scheduled a hearing in the case on June 4 to consider the next steps in the litigation.

The Institute for Justice is a nonprofit law firm dedicated to protecting Americans’ constitutional rights. Recently, IJ successfully defended a Florida business owner’s right to display an inflatable Mario outside his video game store. IJ also won a free speech case in Colorado where town officials sued a mom for buying a political ad in a newspaper.

Illinois Supreme Court Upholds Chicago’s Anti-Competitive Food Truck Rules

Arlington, Va.—Today, the Illinois Supreme Court upheld two provisions of Chicago’s law that block food trucks from parking within 200 feet of restaurants and require they install GPS devices so city officials may track their every move. The Institute for Justice challenged these two provisions in 2012 on behalf of Laura Pekarik, owner of the Cupcakes for Courage food truck. With the Court’s ruling, the Second City’s food-truck industry, which has shrunk by over 40 percent in the past six years, will continue to sputter out.  Not only does Chicago’s rule shut a low-cost, common path into the restaurant industry for the city’s entrepreneurs, it forces everyday Chicagoans to continue to suffer from fewer choices and higher prices.

“Today’s ruling doesn’t protect public safety; instead, it protects brick-and-mortar restaurants from honest competition,” explained IJ Senior Attorney Robert Frommer, who was lead counsel on the case. “A hallmark of America is robust competition, not hardball politics and backroom deals. Holding that Chicago may use public power for private gain breaks with over a century of precedent and weakens the constitutional rights of not just food truckers, but all Illinoisans.”

In 2012, Chicago revised its food truck laws to allow cooking on board, bringing it up to speed with the vast majority of cities across the nation. But unlike America’s other ten largest cities, Chicago continued its anti-competitive “200-foot rule,” which research shows makes it nearly impossible for food trucks to operate in the North Loop—the prime location for food trucks serving lunch. That same analysis revealed that food trucks can legally park and operate on just 3 percent of the district’s curbs. And if a food truck gets too close, it can be fined up to $2,000—over 10 times higher than for parking in front of a fire hydrant.

“Today’s decision is heartbreaking, not so much for me, but for those entrepreneurs who are just getting started,” said Pekarik. “Chicago admitted its 200-foot rule enriched restauranteurs by chasing off their mobile competitors. I hoped the Illinois Supreme Court would reject this kind of government picks the winners and losers approach, where success turns not on how good your product is, but on who you know at City Hall. Justice did not prevail today.”

Worse yet, to enforce the 200-foot rule, Chicago became one of only a handful of cities nationwide to force food trucks to install GPS tracking devices that transmit a truck’s location every five minutes. The law’s plain language lets anyone ask for and receive access to this sensitive data.

“The Illinois Supreme Court’s decision says that food trucks have to submit to a government search as a condition of operating,” said Frommer. “This is a grave threat to all Illinoisans, not just those who run food trucks. People are being forced to choose between their right to privacy and their right to work.”

Frommer concluded, “Today’s ruling is a sharp break from decades of Illinois precedent that protects the right to earn an honest living subject only to reasonable government regulation. There is nothing reasonable about the government prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers. The Illinois Supreme Court’s failure to stand up to the powerful on behalf of ordinary folks, like Laura and other food truckers in the state, does a profound disservice to the constitutional rights of everyone in the state.”

Savannah Judge Holds Tour-Guide License Unconstitutional

Savannah, Ga.—Does the First Amendment allow cities to make it illegal to give tours to paying groups without first passing a special test and obtaining a license from the city? A federal court in Savannah today joined other federal judges in holding that it does not.

Today’s ruling comes in Freenor v. Mayor and Aldermen of the City of Savannah, a case filed in 2014 by the Institute for Justice (IJ) on behalf of a group of Savannah tour guides who argued that the city’s licensing law violated their basic right to talk for a living. For years, Savannah had made it illegal to tell stories to tour groups without first obtaining a special license from the government. Tour guides who wanted this storytelling license had to pass a hundred-question multiple choice exam on Savannah history—even if they had no interest in discussing history on their tours. For instance, some tour guides focus on art and architecture or tell ghost stories. In 2015, in an effort to end the guides’ lawsuit, the city repealed the licensing requirement, but the plaintiffs pressed forward in search of a constitutional ruling. Today, they got it.

“Today’s ruling vindicates a simple principle,” explained IJ Senior Attorney Robert McNamara. “In this country, we rely on people to decide who they want to listen to. We do not rely on government to decide who will get to speak.”

Savannah officials attempted to defend the licensing law as necessary for consumer protection, but the court found that there was no evidence that the law actually achieved its ends: “Ultimately, a handful of anecdotes is not sufficient to sustain the city’s burden to demonstrate that the tour guide licensing scheme actually serves its interests,” wrote United States District Court Judge William T. Moore.

The ruling in Savannah is just the latest in a national wave sweeping away tour-guide licensing requirements. Federal courts in Washington, D.C., and Charleston, South Carolina, have also struck down guide licenses in those cities in response to IJ litigation, and late last year Williamsburg, Virginia, repealed a similar licensing requirement to avoid a lawsuit. Only one similar licensing law—in New Orleans, Louisiana—has ever been upheld by a federal court.

“For decades, IJ has defended the basic principle that the First Amendment protects your right to speak for a living,” concluded IJ President and General Counsel Scott Bullock. “That is just as true for journalists as it is for tour guides or doctors or health coaches. Today’s victory is an important step in securing these rights for all Americans, and we look forward to many more victories to come.”

Business Owners Bring Free Speech Lawsuit Against “Mural Police”

Last fall, August “Augie” Kersten, co-owner of the Lonesome Dove saloon in Mandan, North Dakota, decided to brighten up his building with a mural. Other businesses in town have murals, and Augie thought it would be just the thing to bring color and character to the otherwise drab and industrial area where his business faced the highway. He had no idea that, by doing so, he would be entering into a five-month bureaucratic nightmare where his own city would threaten him with court proceedings up to a thousand dollars in fines. Now, Augie, his business partner Brian Berube, and the Lonesome Dove have joined with the nonprofit law firm Institute for Justice (IJ) to sue in federal court to protect both their mural and their right to free speech.

“It is just the principle of the thing,” said Augie. “I can’t believe the city can have that much control over a building we own. It just ain’t right.”

Augie and Brian started Lonesome Dove 28 years ago. Over the years, the saloon has become a second home for cowboys and other locals searching for good music and good company. But Lonesome Dove was showing its age, and Augie and Brian wanted to give the place a facelift. So they paid one of their waitresses, also an artist, to paint over a Coors Light logo that had adorned the front of the building for over a decade. In its place, she painted a sun setting over the mountains, with a ranch and cowboys scattered across the landscape. Artistically rendered across the top of the mural are the words, “Lonesome Dove.” The mural brought in new customers and many compliments. Everyone seemed to like it.

Everyone but city officials, that is. Soon after the employee finished painting the mural, Augie and Brian received a notice of violation. According to the city, the mural lacked a “mural permit” and Lonesome Dove would have to pay to apply for one. Over the next five months, Lonesome Dove had to submit two separate permit applications for the mural and undergo three hearings. Ultimately, the city commission decided the mural was illegal under its mural regulations and ordered it removed by May 23. The city denied the permit because its guidelines state “no mural may be placed on the front of a building” and “no mural shall convey a commercial message.” There’s just one problem with Mandan’s guidelines: they are blatantly unconstitutional.

“The First Amendment prohibits Mandan from acting like the ‘mural police,’” said IJ attorney Erica Smith. “Murals are a form of free speech and the First Amendment doesn’t let the government say what speech is OK and what isn’t.”

For those who were familiar with Mandan’s mural regulations, the Lonesome Dove’s bureaucratic saga is no surprise. Over the years, Mandan has developed a litany of arbitrary regulations that allow the city to carefully control the content of murals. The city’s ban on “commercial messages” includes anytime a mural contains the name of a business. In addition, Mandan bans murals on the front of buildings, because—as the city admitted—it wants to hide murals that may be “political,” “controversial,” or “provoke thought.” Finally, the city uses the mural-permit process to play art critic, ordering changes to planned murals to suit the city’s liking.

Lonesome Dove and the Institute for Justice filed suit in federal court on May 20, three days ahead of Mandan’s deadline for the mural’s removal. The lawsuit seeks to not only protect Lonesome Dove’s mural, but also to free all residents of Mandan from the city’s unconstitutional mural restrictions.

“We are not going to take the mural down until we have to,” Augie said. “We won’t go down without a fight.” Augie added that he was touched by all the support Lonesome Dove has received from the community for the mural, including many phone calls and visitors. “It just makes you feel real good.”

Although the city commission is considering changes to its mural regulations, the draft changes would neither allow Lonesome Dove’s mural to stay nor fix the regulation’s current constitutional problems. The current draft of the regulations still restricts “commercial” murals and bans murals in the front of buildings.

The Institute for Justice is a nonprofit law firm dedicated to protecting Americans’ constitutional rights. Recently, IJ successfully defended a Florida business owner’s right to display an inflatable Mario outside his video game store. IJ also won a free speech case in Colorado where town officials sued a mom for buying a political ad in a newspaper.

Plaintiff in Successful Lawsuit Against Fort Pierce’s Food Truck Law Open for Business This Friday

For the first time this Friday, Fort Pierce residents will be able to enjoy food truck food in downtown Fort Pierce.

Just a few months ago, it was illegal for food trucks to operate within 500 feet of any establishment that sells food. That essentially blocked food trucks from doing business in Fort Pierce, since, no matter where the people are, there is almost always a restaurant or convenience store within 500 feet. But after a lawsuit brought by the Institute for Justice (IJ) on behalf of Taco Trap’s owner Benny Diaz and Creative Chef on Wheels’ owner Brian Peffer, a Florida Circuit Court ordered the city to stop enforcing its unconstitutional ban. Finally, Benny, Brian and other food truck owners are free to do business in Fort Pierce.

“I’m excited about the new opportunities for me and other food truck owners,” Benny said. “This change is good for Florida food truck owners and the people of Fort Pierce, who now have so many more food options.”

Benny will get the chance to sell his delicious tacos in Fort Pierce for the first time this Friday night, beginning at 6:00 p.m. at Bottom’s Up Public House. He already has heard from fans of his Taco Trap food truck who plan on being there.

While the new legal status of food trucks is good for vendors and consumers, their benefits extend to the entire city. According to Upwardly Mobile, an IJ report, food trucks and other vendors help boost the overall economy of cities. “They become an attraction and increase the number of people in your downtown,” said Tom Richards, the city manager of Harbor Springs, Michigan, after his city started allowing food trucks.

But it does not take a city official to recognize the innate benefits of food trucks. Al Beltran, the general manager of Public House, expressed excitement about the benefits Taco Trap and other food trucks will be able to provide his business.

“Having food trucks being able to operate in Fort Pierce is huge. You want to have the customer leave happier than when they arrive. The more they can enjoy, the better off they are,” he said.

Al says he plans on hosting food trucks on other Fridays in the future to offer a late-night option to Fort Pierce residents. “Once the restaurants close, we have a great addition,” he said.

“The right for food truck owners to do business in Fort Pierce is quite new, but the benefits are already obvious,” IJ Florida Office Managing Attorney Justin Pearson said. “Expanding economic freedom helps businesses thrive and gives consumers more options.”

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San Antonio, El Paso, Texas, Carolina Beach, North Carolina, and Louisville, Kentucky, have successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ is also litigating food truck cases in Baltimore, Chicago and Fish Creek, Wisconsin.

Florida Man Could Lose His Home For Having Long Grass

St. Petersburg, Fla.—Yesterday, the city of Dunedin, Florida did something unthinkable: it authorized the foreclosure of someone’s home in order to collect fines the city assessed for having grass that was too long.

And now, today, Jim Ficken, a 69-year old resident of Dunedin, is fighting back. He’s partnered with the Institute for Justice (IJ), a national public interest law firm, to sue the city to end its abusive practice of saddling homeowners with outrageously large fines—or even foreclosures—for minor code enforcement matters. The lawsuit, which was filed in Pinellas County Court, argues that the fines are excessive under the excessive fines clauses of the U.S. and Florida Constitutions. Earlier this year, IJ won a unanimous decision affirming the importance of Eighth Amendment at the U.S. Supreme Court.

So how did Jim come to have owe nearly $30,000 in fines over his lawn? Last summer, while Jim was out of town to take care of his late mother’s estate, a friend he’d paid to mow his lawn died unexpectedly. Grass grows quickly in Florida, and Jim’s lawn soon grew taller than ten inches. Without so much as a phone call, the city then began assessing fines of $500 per day, every day. By the time he got back and became aware that he was being fined, the fines were already sky high and unpayable for someone like Jim, who lives on a fixed income. A full timeline of events is available here.

“Losing your home because you inadvertently let your grass get too long is the very definition of an excessive fine,” said Ari Bargil, an attorney at the Institute for Justice. “No one should face crippling fines, let alone foreclosure, for trivial code violations. Dunedin’s Code Enforcement Board operates like a nightmarish homeowners association, but as a public board, it cannot rule with an iron fist. Rather, it must abide by state laws, as well as the state and federal constitution.”

Bargil continued: “Jim asked the city if they would reconsider and give him a fair fine or a new hearing, but they rejected him. Now they are trying to take his home. But the amount of Jim’s fine is wildly out of proportion to the offense of having long grass. The Institute for Justice will defend Jim’s constitutional right to be free from this excessive fine so that he can keep his home.”

This case is bigger than just Jim. In 2007, the entire amount of fines that Dunedin imposed for code violations was $34,000—only a little more than the amount the city is now demanding for Jim’s lawn alone. A decade later, in 2017, the city was raking in 20 times as much, about $700,000. In fiscal year 2018, it collected almost $1.3 million in total fines. The city’s code‑enforcement attorney—the one who refused to negotiate with Jim—calls the system a “well‑oiled machine.” In 2018 alone, the city authorized foreclosure on 18 homes. In another case, the city authorized foreclosure to collect $250.

In the recent unanimous decision secured by IJ in Timbs v. Indiana, the U.S. Supreme Court confirmed once and for all that the Constitution prohibits governments from imposing excessive fines. While the High Court confirmed that the right to be free from overly burdensome fines applies to the states, the justices did not set a clear standard for when a fine becomes excessive. Legal tradition maintains that a person’s ability to pay a fine should be considered, yet today few government bodies consider the fairness of imposing large fines on Americans of limited means. With local governments increasingly looking to pad their budgets by assessing fines and fees, Jim’s problem is emblematic of one facing many citizens.

“All over the country, citizens are being fined hundreds or thousands of dollars for minor violations and then threatened with the loss of their property or other serious consequences if they can’t pay up,” said IJ Attorney Andrew Ward. “The Founders knew that the government would always be tempted to levy outrageous penalties. It is past time for courts to give meaning to the Eighth Amendment’s prohibition on excessive fines.”

The Institute for Justice has been at the forefront of fighting efforts by the government to use fines, fees and civil forfeiture as a means to raise revenue and as a means to pursue illegitimate goals. Last week IJ filed a class action lawsuit challenging Chicago’s Impound Lot racket. Last year, it secured a federal consent decree putting in place reforms to ticketing practices in Pagedale, Mo., announced a settlement in a class action lawsuit against Philadelphia’s abusive forfeiture system and launched a lawsuit against abusive code enforcement practices in Doraville, Ga. Earlier this year, IJ successfully represented Tyson Timbs at the U.S. Supreme Court, securing a 9-0 decision establishing that the Eighth Amendment’s Excessive Fines Clause applies to state and local governments.

Florida Legislature Passes Fresh Start Amendment to Clear the Path to Jobs for Individuals with Criminal Records

Tallahassee, Fla.—Under a criminal-justice omnibus bill (HB 7125) passed by the Florida Legislature today, Florida may soon make it easier for people with criminal records to find work. Thanks to an amendment added by Sen. Jeff Brandes that is similar to his Fresh Start bill (SB 334), the omnibus bill addresses how occupational licensing blocks upward mobility and re-entry for people with criminal records. The bill now heads to the governor.

The Institute for Justice (IJ), which has successfully challenged occupational licensing laws across the country and advocates for legislative reform, supported Sen. Brandes’ bill and its House companion bill sponsored by Rep. Scott Plakon.

“When you take away someone’s ability to earn a lawful living, the risk of recidivism increases. Clearing the way for people to earn an honest living is one of the best ways to prevent recently released individuals from re-offending,” said Justin Pearson, managing attorney of the IJ Florida Office, who testified during the committee process. “But strict occupational licensing requirements make it harder for ex-offenders to find work. Today, Florida took an important step toward increasing opportunity and reducing crime.”

The changes expressly apply to licenses for barbers, cosmetologists, cosmetologist specialists and construction contractors, which, according to a legislative analysis, account for nearly 350,000 active licenses combined in Florida. The changes also apply to any other occupational licenses for occupations in which training is offered to inmates as vocational training or through an industry certification program. Should the bill become law, Florida will join the 21 states that have eased or eliminated licensing barriers for ex-offenders since 2015.

If enacted, the bill would:

  • Prevent licensing boards from disqualifying applicants based on crimes older than five years unless they are violent or sexual offenses;
  • Allow people to apply for a license while still in prison or under supervision, making it easier for them to re-enter society;
  • Allow applicants who are still in prison or under supervision to appear at licensing hearings by teleconference or videoconference;
  • Allow people to obtain a determination as to whether their criminal record would prevent them from obtaining a license prior to going through the expensive and lengthy license application process; and
  • Require boards to publish a list of all crimes that were the basis for denial of a license application during the past two years.

In 2016, over 31,000 prisoners were released in Florida. But according to the National Employment Law Project, the state has 800 disqualifications for a criminal record in state occupational licensing laws, many of which do little to protect public safety. A recent study by the James Madison Institute estimated that re-arrest rates in Florida could fall by 16 percent if the state reduced the occupations it licenses by 25 percent.

In Pennsylvania, IJ is currently suing the Cosmetology Board on behalf of two women denied licenses based on an arbitrary provision that allows the board to reject applicants for years-old criminal convictions. Both women completed beauty school at a cost of thousands of dollars but were barred from taking the exam to earn their license.

Texas Supreme Court Rules that the Government Cannot Lie to You and then Hold It Against You in Court

Austin,Texas—The government lied to Patricia Mosley about how to properly appeal a decision barring her from working as a home health aide, and this morning the Texas Supreme Court ruled that the government’s actions violated her due process rights. Mosley is a nurse who was placed on an “Employee Misconduct Registry” maintained by the Texas Department of Aging and Disability Services. In an official letter sent to Mosley, the department misstated the procedure to appeal this decision. After Mosley followed the letter’s instructions, she was informed that her appeal had not been filed properly and that she had no further recourse in the law. This effectively barred Mosley from her job.

The court, in an opinion penned by Justice Jeff Brown, ruled that the department violated Mosley’s right to due process with Justice Jimmy Blacklock writing in the concurrence, “This is not primarily a case about Mosley’s ignorance of the law. It is a case about the government’s ignorance of the law.” In upholding Mosley’s right to due process, the court relied on a friend of the court brief filed by the Institute for Justice:

“The Texas Supreme Court got it exactly right,” said IJ Attorney Anya Bidwell, the lead author on the brief. “The government cannot mislead individuals and then turn around and say: ‘The joke is on you. You shouldn’t have trusted us.’ People have a right to due process and government has a constitutional obligation to provide it. No excuses.”

Bill Protecting the Right to Grow Your Own Food Heads to the Governor

Tallahassee, Fla.—Today, the Florida House passed a bill to protect the right of all Floridians to grow vegetables and fruit on their own property. With the House’s passage of the bill, SB 82, the bill moves on to the governor’s desk for signature. Once the bill takes effect, any local ordinance that expressly limits or prohibits growing vegetables on one’s own property will be “void and unenforceable.”

In 2013, the Institute for Justice (IJ) filed a lawsuit against the Village of Miami Shores, Florida, to challenge their prohibition on front-yard vegetable gardens. The lawsuit, brought by IJ on behalf of Miami Shores couple Hermine Ricketts and Tom Carroll, sought for the village’s ordinance to be struck down as an unconstitutional violation of property rights. Florida’s Third District Court of Appeals ruled in favor of the Village. The Florida Supreme Court ultimately declined to hear the case, though the battle over the right to use your property peacefully and productively continued.

“This bill eliminates the ability of local governments to enact senseless laws targeting basic acts of self-sufficiency under the pretense of ‘aesthetics,’” said IJ attorney Ari Bargil, who represented Hermine and Tom in their battle against the Village. “By signing this bill, the governor will reaffirm that Florida is a state that respects both basic property rights and constitutionally protected civil liberties. I applaud the Florida Legislature, particularly sponsors Rob Bradley and Elizabeth Fetterhoff, for their work in the passage of this bill, and I look forward to its signing by Governor DeSantis.”

“After almost six years of fighting, I am relieved that my right to grow my own garden, on my own property, is finally going to be protected,” said IJ client Hermine Ricketts. “Before all of this started, I depended heavily on my garden to provide both a restorative hobby and a source of nourishment. Once it was taken from me, my health suffered severely. I am looking forward to the time that I can once again grow my own food, for my own consumption, without having to worry that an overzealous code enforcement officer will try to fine me into destitution.”

“The passage of Florida’s Vegetable Gardens bill marks an important moment for food freedom in America,” said IJ Senior Attorney Michael Bindas, the head of IJ’s Food Freedom Initiative. “By protecting the right to grow your own food, the state of Florida has established a valuable protection for not just Hermine and Tom, but for all Floridians who want greater control over the foods they grow and consume. Nobody should face daily fines for trying to use their property to eat a healthier diet.”

 

Nebraska Soon To Allow the Sale of More Homemade Food

Nebraska is taking a major step forward for food entrepreneurs and the “buy local” movement as Gov. Ricketts prepares to sign LB 304 into law. LB 304 would allow Nebraskans to sell low-risk homemade foods like baked goods, jams, popcorn, candy and dried pasta from their homes and online. Before this change, these “cottage food” producers were limited to selling only at farmers markets, making Nebraska the only state with that limitation.

Cottage food producers from across the state testified in support of LB 304, including Lincoln resident Cindy Harper. Currently, Ms. Harper can only sell her decorated sugar cookies and handcrafted marshmallows at farmers markets, which only operate during the warmer months, and even then, for only a few days a week. She was thrilled when she learned of LB 304’s passage in the Legislature. “I now have the opportunity to take my small business from a farmers market only business to one that can operate year round. This opens up a world of possibilities for me,” she said.

The bill was introduced by Senator Sue Crawford and passed the Legislature on April 29. Two non-profit organizations, the Institute for Justice (IJ) and the Platte Institute, worked with cottage food producers to help pass the bill.

“Forty-nine states allow the sale of cottage foods, but Nebraska was the only state to prohibit sales everywhere except for farmers markets,” said IJ Attorney Erica Smith, who testified in support of the bill. “These foods are incredibly safe and are a great way for farmers, stay-at-home parents, and anyone else who has talent in the kitchen to make money from home.”

In 2017, IJ released a research report, Flour Power, that showed that expanding cottage food laws have allowed the creation of many new home businesses, especially among rural women.

One unnamed Nebraskan woman submitted written testimony that the bill could help people with disabilities, including her son who has autism. “My son, Simon, is a very bright young man,” wrote the woman, but “I worry about his future.”  She continued, “LB 304 has the potential to be life changing for people like Simon, as well as other people with disabilities and their families. With the ability to start small cottage food businesses out of their home, families would have the opportunity to teach valuable skills to their children in a familiar, accepting environment providing the dignity and self-worth that may not otherwise be attainable.”

Nicole Fox at the Platte Institute also testified in support of the bill. “LB 304 is a win for food entrepreneurs, and it will help grow Nebraska’s economy,” Ms. Fox testified.  Ms. Fox also thanked Senator Crawford for sponsoring the bill and Senator Ben Hansen for prioritizing the bill.

LB 304 would require that cottage food producers comply with four basic requirements.  They must (1) register with the Department of Agriculture, (2) take a nationally accredited food safety and handling class, like ServSafe, (3) label their foods as homemade and that they may contain allergens, and (4) comply with any local food safety and handling guidelines.

Judge Gives Preliminary Approval to Philadelphia Forfeiture Class Action Settlement

PHILADELPHIA— Philadelphians who lost their property to the city’s abusive civil forfeiture machine will be able to apply for compensation starting May 24, 2019. Last fall, the Institute for Justice (IJ) announced an agreement with the city to end a multi-year class action lawsuit on behalf of people who had homes, cash and cars wrongfully confiscated. Now, Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania has preliminarily approved a settlement that includes a $3 million fund to compensate forfeiture victims. On May 23, 2019, notices will be mailed to more than 25,000 Philadelphians informing them that they could be eligible to apply for compensation using the unique identification number contained in the mailing.

“Philadelphians are one step closer to getting justice after years of being treated like ATMs by police and prosecutors,” said Darpana Sheth, lead counsel for plaintiffs and director of the Institute for Justice’s National Initiative to End Forfeiture Abuse. “Innocent victims caught up in Philadelphia’s forfeiture machine will be able to get back every penny taken from them. We strongly encourage anyone who was wronged to find out more at PhillyForfeiture.com.”

The preliminary approval of the settlement is the first step to putting in place two legally binding consent decrees, one governing Philadelphia’s forfeiture practices and the other providing compensation to victims.

In the first, the city of Philadelphia, the District Attorney and the First Judicial District of Pennsylvania will dismantle the city’s forfeiture machine. Among other things, the consent decree will, if given final court approval:

  • Greatly restrict when Philadelphia police can seize money and other property for forfeiture;
  • Improve the notice which owners receive about the forfeiture process and their rights under it;
  • Ensure that judges—not prosecutors—control forfeiture proceedings and monitor forfeiture settlements for fairness;
  • Prohibit prosecutors from making owners return to court again and again or risk of losing their property forever; and
  • Create a prompt, meaningful hearing where property owners can demand the immediate return of their property.

The second consent decree ends Philadelphia law enforcement’s unconstitutional financial incentive. It blocks the District Attorney’s Office and the Philadelphia Police Department from using forfeiture proceeds on salaries or other law-enforcement purposes, instead directing those funds to community-based drug prevention and treatment programs. If given final court approval, it also establishes a $3 million fund to compensate forfeiture victims, with the following details:

  • Each qualifying person who lost their property through forfeiture, but who was not convicted of a related criminal charge, will get up to 100 percent of the value of their forfeited property;
  • Each qualifying person who lost their property through forfeiture, but who was only sent to a diversionary program for low-level, first-time offenders, will receive up to 75 percent of the value of their forfeited property;
  • Each qualifying person who submits a timely claim will get up to $90 in recognition of the violation of their constitutional rights;
  • Each of the named representative plaintiffs, who fought for years to right this wrong, will get a $2,500 award for their efforts on behalf of the entire class; and
  • A portion of undisbursed funds will be distributed to non-profit organizations that provide services to communities hardest hit by Philadelphia’s former forfeiture practices.

More information and instructions on applying for compensation are available at PhillyForfeiture.com or by calling (888) 730-9958. The deadline for applications is August 26, 2019.

The court will then hold a final hearing on whether to approve the settlement on Friday, November 1, 2019.

Class Action Lawsuit Challenges Chicago’s Impound Racket

CHICAGO—Each year Chicago impounds tens of thousands of cars, imposing harsh penalties and rapidly accruing towing and storage fees on their owners. It is nearly impossible for many Chicagoans to come up with enough money to get their cars back. The system traps even innocent owners in its bureaucratic maze. But a class action lawsuit announced today by the Institute for Justice (IJ), a national civil liberties law firm, and three car owners, seeks to bring an end to Chicago’s unconstitutional impound scheme.

Has your car been impounded? We want to hear from you. Please use the form below to get in touch with our attorneys.

The lawsuit challenges two aspects of the city’s impound scheme: that it subjects innocent owners to fines for crimes they did not commit and that the city holds cars as ransom until their owners pay all fines and fees. Imposing any fine on someone who did nothing wrong is an excessive fine and violates due process, in violation of the Illinois and United States constitutions. And holding a car for no other reason than to force payment is an unconstitutional seizure.

“No person should be forced to pay for someone else’s offense,” said IJ attorney Diana Simpson. “Chicago imposes harsh penalties on owners of impounded vehicles, even if they did not know that someone used their car to break the law. Moreover, Chicago holds all impounded cars as ransom, sometimes for long periods of time, until an owner pays all fines and fees. This unjust process violates both the Illinois Constitution and the United States Constitution.”

The city impounds cars for myriad reasons, including being driven by a person with a suspended license, playing audio that can be heard more than 75 feet away, or littering. As too many Chicagoans know first-hand, getting a car back from the impound is a lengthy and expensive process. In 2017 alone, more than 22,000 cars were impounded under the program being challenged in the new suit. Fines and fees associated with such impounds added to more than $28 million in 2017. What some may not realize, however, is that the city subjects the innocent, as well as the guilty, to this burdensome process.

Jerome Davis and Veronica Walker-Davis took their car to an auto shop for repairs, where an employee decided to take it for a joyride. When Chicago police stopped the employee and found out he was driving on a revoked license, they impounded the car. The Davises tried to show the city that they had nothing to do with his crime, but it did not matter. The city told the Davises that they still had to pay the fine and the rapidly accruing towing and storage fees. After saving up to pay, they went to pick up the car but discovered the city had already gotten rid of it.

“The city took our car and then made us feel like criminals, all because of the actions of someone we don’t even know,” said Veronica. “I’m happy the Institute for Justice is helping us in this case so nobody else has to go through what the city has done to us.”

Regrettably, the Davises’ story is not unique. Spencer Byrd, a part-time auto mechanic, was giving a client a ride when the Chicago police stopped him for having a broken turn signal. After searching Spencer and his client, the officers found drugs in the client’s pocket. They promptly seized and impounded Spencer’s car. When Spencer tried to get it back, he also learned that a car owner’s innocence makes no difference to the city. Not only did the city tell him he had to pay the fine and fees, they will not even allow him to retrieve his tools—which he needs for his work—from his car. Spencer cannot afford to get the car out of the pound, and so it remains there, with storage fees continuing to accumulate. Today, it would cost Spencer over $17,000 to retrieve his car.

“A car is more than just a convenience for many Chicagoans; it is their livelihood,” said IJ attorney Kirby Thomas West. “People whose cars get trapped in the city’s impound system often also lose their ability to get to their job or work site, making it even harder for them to save money to pay their fines and fees. The city’s impound scheme is unconstitutional in many ways and unjust in many more.”

The Institute for Justice, which litigates property rights cases across the country, has challenged unconstitutional fines and fees before. In February, IJ won a victory before the United States Supreme Court, in which the Court held that the Eighth Amendment’s prohibition of excessive fines applies to state governments, not just the federal government. And last year, IJ secured a consent decree in Pagedale, Missouri, in which the city agreed to widespread reforms of its unconstitutional ticketing scheme.

Jeff Leon of the Pavich Law Group is serving as local counsel.

Legislation to Clear the Way for New Hospitals Headed to Governor’s Desk

Tallahassee, Fla.—Today, the Florida House and Senate each passed HB 21, legislation that would eliminate the requirement that a general hospital obtain a certificate of need (CON) before being allowed to open. The bill now heads to the governor for signature. CON laws limit medical establishments by requiring the government to first determine whether services are needed before a new provider can enter the market. Large, existing facilities use CON laws to stifle competition and maintain monopolies in their communities. Under the new legislation, the CON requirements to open a new hospital in Florida would be eliminated by 2021.

The Institute for Justice (IJ) has filed suits challenging CON laws on behalf of doctors in Virginia, Iowa and North Carolina. IJ Florida Office Managing Attorney Justin Pearson testified in favor of the bill and applauds its passage:

“If you could do just one thing to simultaneously improve the quality of health care, improve access, and reduce cost, it would be to repeal all certificate of need laws. In every category, the states without CON laws are doing better than the states with them. Whether it is better services for disadvantaged communities, lower mortality rates, lower infant mortality rates—you name it, and the states without CON laws are better, while also being less expensive.

“Studies have been conducted, and the results are clear. There is no legitimate argument for keeping CON laws. The only thing CON laws do is give powerful hospitals veto power over their competition. When political insiders are able to veto competition, it’s the public that loses. Quite simply, CON laws should not exist.”

Pearson also emphasized that this bill is merely a good first step, as it unfortunately leaves some other CONs in place for now. “Although this is a good bill and should be celebrated, we will not stop fighting until all of the Sunshine State’s CONs have been repealed.”

Safe at Home: Atlantic City’s Piano Man Wins Eminent Domain Fight Once and for All

ARLINGTON, VA—The Institute for Justice is pleased to announce that Atlantic City property owner and longtime piano tuner Charlie Birnbaum can declare victory once and for all after his years-long battle to save his beloved longtime family home from eminent domain abuse. The home had been targeted by New Jersey’s Casino Reinvestment and Development Authority (CRDA), which sought to take and bulldoze it even though the Authority literally had no plan for what would do with the land.

CRDA’s 30-day deadline to appeal its loss before the New Jersey Appellate Division expired in March, thus ending Birnbaum’s five-year-long legal battle with a victory for homeowner David against the government Goliath.

“It is an amazing accomplishment that our home still stands even after this assault by the very government entrusted to defend our rights—including our property rights,” Birnbaum said. “This home represents a beacon of hope for people throughout New Jersey and across the country that the impossible can happen, that we can win despite the odds being against us. It should inspire us all to keep the faith no matter how dark the prospects for success might seem.”

Birnbaum inherited the home from his parents, Abe and Dora Birnbaum, both of whom were Holocaust survivors who met in the forest of Poland as members of the resistance. Each lost their spouses and the rest of their families to the Nazis. Charlie explained that his parents moved to America to find a better life where, among other dreams, they hoped to live safe and secure in a home that the government could not arbitrarily take from them, as had happened during the war. Charlie maintains the property as a tribute to his mother and father.

The New Jersey appeals court pointed out in its ruling that CRDA was acting as little more than a land speculator, taking other people’s property by force and then holding onto that land in hopes of someday putting it to some unspecified use.

“This condemnation was an unjustified and unjustifiable land grab from the outset,” said Robert McNamara, a senior attorney at the Institute for Justice (IJ), which is defending the Birnbaums in the case alongside New Jersey eminent domain firm Potter & Dickson. “Fortunately for Charlie, the law, the courts, and the Institute for Justice stood between CRDA and the home his parents left him.”

“New Jersey courts rejected CRDA’s land grab because the agency refused to explain why it wanted Charlie’s longtime family home,” said IJ Senior Attorney Dan Alban, who also defended Birnbaum in court. “The government cannot just say it wants to take a home, knock it down, and then think really hard about what it might put there instead.”

“We are thrilled that Charlie will keep the home that means so much to him and his family,” said IJ President and General Counsel Scott Bullock. “The Institute for Justice will not rest until every home in America is safe from eminent domain abuse.”

Charlie, who tuned pianos for all the legends who performed in Atlantic City—and who Frank Sinatra insisted be the only piano tuner for his pianist—tells his story in the following video, in which he also plays the piano:  https://www.youtube.com/watch?v=RCQM2_nagsM

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information is available at https://ij.org/case/atlantic-city-eminent-domain/.]

Amicus Briefs Urge U.S. Supreme Court to Accept Case In Which State Discriminated Against Parents Who Select Religious Schools for Their Children

Arlington, VirginiaMore than a dozen individuals and institutions have called on the U.S. Supreme Court to hear a case filed by the Institute for Justice in which the Montana Supreme Court ruled the state must discriminate against parents who select religious schools for their children.

The justices are expected to decide this summer whether to hear Espinoza v. Montana Department of Revenue, a case in which the Montana Supreme Court ruled that the Montana Constitution’s “Blaine Amendment” requires the wholesale exclusion of religious options from school choice programs. The case could impact tens of thousands of low- and moderate-income families who wish to participate in similar school choice or scholarship programs across the nation.

“It is a bedrock principle of federal constitutional law that the government cannot show hostility toward religion,” said Erica Smith, an attorney with the Institute for Justice, which represents the families in this case. “Yet for the past 24 years, since the modern school choice movement began, some states have blocked scholarship recipients from choosing religious schools. It is time for the U.S. Supreme Court to settle this issue once and for all.”

Among the friend-of-the-court (or amicus) briefs that called on the Court to take up Espinoza and reverse the Montana ruling were those by:

IJ Senior Attorney Michael Bindas said, “Montana’s Blaine Amendment dates back to 1889 and was designed to discriminate against Catholic schools and students at a time of widespread hostility toward Catholics, both in Montana and throughout the country. By applying it to bar religious options from modern school choice programs, the Montana Supreme Court has transformed this relic of nineteenth-century, anti-Catholic bigotry into an engine of animus against anyone who might choose to attend a religious school.”

Among those impacted by the decision is Kendra Espinoza. Kendra, a single mother, pulled her children out of her public school after realizing it was not a healthy environment for her daughters, socially or academically. Kendra enrolled them in a private Christian school, and took on a second job cleaning houses to pay the tuition. Her daughters thrived at school, but Kendra struggled to make the tuition payments. Kendra was counting on the scholarships to help her continue to keep her daughters at their school.

“The Montana Supreme Court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships,” said Kendra. “For the benefit of families across the state, and the nation, we hope the U.S. Supreme Court accepts this case and restores this program to families that need them to ensure their children have access to a good, safe and meaningful education.”

During the past 24 years, a conflict over whether religious options may be barred from educational choice and other student-aid programs has split the federal circuits and state courts of last resort. On one side, the 6th, 7th, 8th, and 10th U.S. Circuit Courts of Appeal, along with the New Mexico Supreme Court, hold that government may not—consistent with the federal Constitution—prohibit religious options in student-aid programs. On the other side, the 1st and 9th U.S. Circuits, as well as the Maine and Vermont Supreme Courts, hold that it may. With the decision in this case, the Montana Supreme Court joined the second group and further deepened the schism.

“The only way to resolve the split is for the Supreme Court to grant certiorari in another school choice case,” said Institute for Justice Senior Attorney Tim Keller. “The lower courts cannot resolve this issue on their own. And every year the split continues, it deprives thousands of children of educational opportunities.”

“Resolving this issue will allow children whose parents enroll them in religious school to legally participate in educational choice programs, and also bring much-needed clarity to state and local governments who wish to enact such programs,” Smith said.

Scott Bullock, the Institute for Justice’s president and general counsel, said, “Under the current legal landscape, whether a child attending a religious school is permitted to participate in a school choice program is based solely on the state or federal circuit within which that child happens to reside. No child should be denied educational opportunity simply because of geography. Now is the time for the Supreme Court to decide this issue.”

The Institute for Justice has successfully defended school choice programs nationwide, including twice before the U.S. Supreme Court. IJ is currently litigating another school choice case in Maine, a student aid case in Washington, and recently won a school choice victory before the Supreme Court of Puerto Rico.

North Dakota Eliminates Licenses for Braiding Hair and Threading Eyebrows

North Dakota became the latest state to untangle natural hair braiders and eyebrow threaders from a thicket of licensing red tape thanks to a bill signed late yesterday by Gov. Doug Burgum. Before the law was signed, threaders could only work in North Dakota if they became licensed estheticians, a credential that requires a minimum 600 hours of coursework. The requirements for braiders were even more burdensome: They needed a license in cosmetology, which takes at least 1,800 hours of classes, or around 420 days.

In contrast, pharmacy technicians need just three months of experience to become licensed, while emergency medical technicians—who literally hold the lives of others in their hands—have to finish at least 150 hours of coursework.

But under HB 1345, braiders and threaders are completely exempt from licensing and are now free to work without a government permission slip. Sponsored by Rep. Mike Nathe and backed by the Institute for Justice and Americans for Prosperity, HB 1345 passed both the state House and Senate unanimously.

“This is a great win for entrepreneurship, economic liberty and just plain common sense,” said Institute for Justice Legislative Counsel Meagan Forbes, who testified in favor of the bill in Bismarck. “The government has no business licensing something as safe and common as braiding or threading hair. By deregulating these practices, HB 1345 will expand economic opportunity, especially for female entrepreneurs and people of color, which in turn will help North Dakota diversify its economy.”

With a rich heritage spanning millennia, natural hair braiding is a beauty practice common in many African-American and African immigrant communities. Eyebrow threading is an ancient grooming technique that originated in South Asia and the Middle East, and uses a simple, single piece of cotton thread to remove unwanted facial hair. The two beauty practices have become increasingly popular, offering braiders and threader a shot at the American dream. And unlike cosmetologists, both braiders and threaders do not cut hair or use any harsh chemicals or dyes in their work.

“This bill means that I and many others like me can reopen our businesses in North Dakota and the public can get the services they deserve,” said Peace Suglo, who runs a braiding business in Moorhead, Minnesota, right across the Red River from Fargo. Because of North Dakota’s licensing law, Suglo had to close down her braiding shop in Fargo. She moved across state lines to Minnesota, which has a 30-hour braiding license on the books. “HB 1345 also shows that North Dakota welcomes diverse groups of people moving to the state and wants to increase business diversity and economic growth.”

With the governor’s signature, North Dakota is now the 26th state to end licensing for hair braiders. Among those states, 15 (including South Dakota) enacted their reforms in just the past five years. Bills to repeal licenses for braiders are currently pending in Florida, Minnesota, Pennsylvania, and Rhode Island.

Lancaster Newspaper Teams Up With National Law Firm to Make Forfeiture Records Public

Lancaster, Pa.—The Lancaster County District Attorney uses civil forfeiture to take hundreds of thousands of dollars in cash and other property each year. Under Pennsylvania law, he is able to spend the proceeds with few restrictions. Yet detailed information about what property is taken and how the proceeds are spent is secret. Now, reporter Carter Walker and the LNP Media Group are teaming up with the Institute for Justice (IJ), a non-profit public interest law firm, to fight the district attorney in court and bring this information into the light of day. The case could determine whether district attorneys across the commonwealth have to make information about their forfeiture proceeds available to the public.

“Pennsylvanians deserve an opportunity to shed some light on civil forfeiture,” said IJ attorney Kirby West. “Law enforcement in Pennsylvania is allowed to take property, even when there are no criminal charges, and spend the proceeds on virtually anything they want. The Right to Know Law exists to hold government officials accountable. Carter Walker and the LNP have been fighting tooth and nail for these records for months, but it shouldn’t be so hard.”

LNP reporter Carter Walker filed a request for civil forfeiture records with the district attorney in September 2018 and was denied. Upon appeal, the Pennsylvania Office of Open Records concluded that the records were subject to the Commonwealth’s Right to Know Law (RTKL) and ordered the district attorney to make them available. Rather than respect the office’s decision, the district attorney appealed in court, opening what could be a lengthy and expensive battle over the limits of the RTKL.

The Institute for Justice, which has challenged forfeiture abuse in Pennsylvania and nationwide, heard about the district attorney’s stonewalling and agreed to represent Carter and LNP in this case to affirm reporters’ access to government records. IJ will also represent Carter and LNP in regard to an identical request in Berks County.

“Public records are a critical tool in providing our readers with information about how government works,” Walker said. “I’m happy the Institute for Justice has decided to take this case, which involves hundreds of thousands of dollars in government assets spent yearly with minimal information being released to the public.”

According to IJ’s analysis of forfeiture transparency laws across the country, detailed information about civil forfeiture is hard to come by in Pennsylvania. The only forfeiture information made available to the public comes in the form of annual reports from the Commonwealth Attorney General’s office–and even those cannot be viewed without a RTKL request. These reports provide only basic, topline accounts about what property county district attorneys are forfeiting and total amounts of proceeds spent. In other states, law enforcement has spent forfeiture proceeds on everything from margarita machines, to a zamboni, and sometimes even high-end travel to luxury destinations.

“In Lancaster and across Pennsylvania, forfeiture is happening largely in the dark,” said IJ senior research analyst Jennifer McDonald. “At a minimum, agencies should have to publicly report how they spend forfeiture proceeds.”

Pennsylvania received a D- in IJ’s nationwide survey of forfeiture laws, Policing for Profit, for its poor protections for property owners.This isn’t the first time IJ has tangled in court with civil forfeiture in Pennsylvania. IJ recently announced the pending settlement of a landmark class action lawsuit against the city of Philadelphia over its forfeiture practices. There, the city was taking cash, cars and even homes from residents without charging them with crimes. Public records requests from reporters and IJ helped uncover this abuse and prompt reforms.

IJ litigators and researchers frequently file Freedom of Information Act (FOIA) requests and appeal improper denials in court. In 2011, an IJ suit in Georgia forced agencies to provide civil forfeiture reports. In 2018, IJ won a FOIA challenge at the Illinois Supreme Court requiring the state to provide information about the regulation of cosmetologists. IJ is also currently suing the Internal Revenue Service and Customs and Border Protection for access to forfeiture information.

Shawn Rodgers at Goldstein Law Partners, LLC of Hatfield, Pa. is serving as local counsel.

Lawsuit Challenges Indiana’s Ban on Using Online Eye Tests to Obtain Prescriptions

Arlington, Va.—Can the government restrict access to innovative health care technology in order to prop up an outdated business model? A new lawsuit filed yesterday in Marion Superior Court seeks to answer that question. The lawsuit, filed by health care technology company Visibly and the Institute for Justice (IJ), challenges Indiana’s ban on doctors using online vision tests to issue new corrective lens prescriptions. Visibly previously partnered with IJ to challenge a similar ban in South Carolina in October 2016.

Visibly (previously known as Opternative) is a Chicago-based company that offers customers a way to obtain a new prescription for glasses or contacts from the comfort of their own homes. A patient takes Visibly’s eye test using a smartphone and computer screen, and answers a medical history questionnaire. An ophthalmologist then reviews the patient’s responses to determine whether a prescription is needed and if so, writes one.

Operating in 39 states, Visibly’s technology enables doctors to provide faster, better services to more people—but not in Indiana. In 2016, the state passed a telemedicine law allowing doctors in virtually all contexts to use technology to examine patients and then write appropriate prescriptions. There are just three exceptions: opioids, abortion-inducing drugs and glasses. But glasses are nothing like opioids or abortion-inducing drugs, nor do they present anything close to the same concerns.

“We’re suing the state of Indiana to protect patients’ right to accessible and affordable eye care services,” says CEO of Visibly, Brent Rasmussen. “Doctors should be able to use Visibly’s innovative technology to help patients in Indiana see clearly.”

States across the country are embracing telemedicine as a safe and effective means of empowering doctors to use technology to expand access to care beyond a physical office setting. Indiana’s telemedicine law was originally intended to do just that. However, established optometrists in Indiana—who make most of their money selling expensive eyeglass frames in their brick-and-mortar offices—saw the law as a threat to their profit margins.

Throughout the legislative process, local and national optometric groups vigorously opposed the law until a special corrective lens exception was added. Under the exception, doctors are banned from using online technologies like Visibly’s to prescribe corrective lenses—even though they could easily meet the standard of care required by the law and despite the fact that, for virtually all other Indiana doctors, telemedicine is legal and encouraged.

“This case is about a simple choice between new technologies that expand access to care and protectionist legislation designed to boost the profits of established businesses,” said IJ Attorney Joshua Windham. “Patients and doctors—not the government—should be in charge of managing their own health care decisions.”

This sort of special exception, which amounts to using government power to protect private businesses from competition, is unconstitutional. As Indiana courts have long recognized, the Indiana Constitution forbids lawmakers from imposing arbitrary and irrational restrictions on medical innovation and from handing out special privileges to favored market players. That is why Visibly is teaming up with IJ once again to ask Indiana courts to affirm those principles and strike down the state’s protectionist ban on its technology.

“State courts across the country have struck down laws that exist solely to protect established businesses from competition,” said IJ Senior Attorney Robert McNamara. “We expect Indiana’s courts to follow suit.”

Arizona Becomes First State to Broadly Recognize Out-of-State Licenses

Thanks to a major reform signed earlier today by Gov. Doug Ducey, Arizona became the first state in the nation to universally recognize out-of-state licenses. Under the new law (HB 2569), Arizona will generally issue a license to new residents who were licensed for at least one year in another state, so long as their credentials haven’t been revoked, they’re not the subject of any pending investigation, and they don’t have a disqualifying criminal record.

Occupational licensing laws—which differ from state to state—create substantial barriers to worker mobility. Licenses often are not recognized across state lines, and even when they are, there are significant costs—in time and money—to get them recognized.

To try to address the problem, several states have enacted reciprocity agreements and interstate compacts. But their impact is limited. Not all states participate, meaning workers from some states are locked out of Arizona and vice-versa. Moreover, states can insist on overly burdensome requirements for reciprocity or compacts, making it harder for states like Arizona to reform their own laws.

License recognition, without the need for reciprocity or compact agreements, is a better solution. Many states, including Arizona for nearly the last decade, already recognize out-of-state licenses for military spouses. Now all licensed workers who move to Arizona will be free to work when they arrive and will no longer have to waste their time and money trying to obtain another permission slip from the government. HB 2569 is particularly welcome in Arizona, which ranked as the fourth-fastest growing state last year, and has over 470,000 licensed workers, or almost one-fifth of the state’s entire workforce.

“Workers don’t lose their job skills just by moving across state lines, but licensing laws often treat them as if they do,” said Paul Avelar, managing attorney of the Institute for Justice Arizona Office. “HB 2569 is a common-sense reform that will help expand economic opportunity by making it easier for people to move to Arizona to further their careers.”

But the new law is by no means a silver bullet for the many problems with occupational licensing. First, HB 2569 does not apply to workers who moved from states where their job didn’t require a license, but Arizona does.

That means it wouldn’t have helped entrepreneurs like Essence Farmer, who worked as a natural hair braider in Maryland before moving back home to her native Arizona in 2003. Maryland did not require a license to braid hair, but at the time, only licensed cosmetologists could braid hair in Arizona, a credential that takes 1,600 hours of training. Essence, represented by the Institute for Justice, had to sue to protect her right to earn an honest living in Arizona, which prompted the Legislature to change the law.

Second, the new law does nothing to address Arizona’s existing thicket of licensing red tape, which ranks as the fourth most broadly and onerously licensed state in the nation. According to a 2017 report by the Institute for Justice, the average license for lower- and middle-income occupations in Arizona requires paying $612 in fees, finishing 765 days of training and experience, and passing two exams. A separate IJ study found that the restrictions imposed by occupational licensing cost Arizona’s economy over 29,000 jobs and more than $2.8 billion in “misallocated resources.”

Horse massage therapist Celeste Kelly encountered a particularly absurd restriction: Arizona’s ban on massaging animals without a veterinarian license. Massaging humans doesn’t require a medical degree, yet Celeste could only massage horses legally if she completed almost four years in veterinarian school. Celeste too was able to secure her right to earn an honest living after partnering with the Institute for Justice and suing the state and forcing a change.

“License recognition is a reform that other states should also adopt,” said Avelar. “But it is only a first step. Arizona continues to unnecessarily license too many occupations. IJ will continue to work with the Governor and Legislature on reforms and will continue to litigate to protect economic liberty when the government fails to do so.”

New Findings: Pipeline Companies Flout Law Nationwide, Take Land Without First Paying Property Owners

Case Appealed to U.S. Supreme Court Seeks to End this Abuse of Eminent Domain

Arlington, Va.—In hundreds of documented examples from across the nation, powerful pipeline companies have convinced the courts to ignore the law and give these private companies other people’s land without first paying the owners any compensation, as required under federal law.

“We documented more than 200 eminent domain decisions where federal courts granted pipeline companies immediate possession of land, allowing these companies to take property now, put in their pipelines and pay later, even though Congress never granted these companies that authority,” said Institute for Justice Senior Attorney Robert McNamara. The Institute for Justice recently filed an appeal in such a case with the U.S. Supreme Court seeking to end this practice and require the pipeline companies and the lower courts to follow the laws established by Congress. “These 200-plus examples represent just the tip of the iceberg. In the past five years alone, property owners in at least 18 states have had their land taken away by preliminary injunctions, which short-circuits the eminent domain process and results in owners losing their land today but receiving compensation only months or years in the future.”

McNamara documented examples in Alabama, Florida, Georgia, Illinois, Maryland, Montana, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia.

“And we know for certain that these states are not alone,” he said. “There have been preliminary injunctions in similar cases in Kansas and Nevada, and probably other places, outside the five-year window we examined. The fact that so many abuses are so easily documentable should disturb anyone who cares about the rule of law. If Congress never gave these private pipeline companies the power to take people’s property first and pay later, the courts have no authority to do this, yet that is exactly what is going on nationwide. The U.S. Supreme Court needs to set this right.”

“In Pennsylvania alone, where our U.S. Supreme Court appeal arose, we documented 38 quick-take injunctions granted for pipelines in the past five years,” McNamara said. “A frequent abuser of this practice was the Transcontinental Gas Pipe Line Company (Transco), which took our clients’ property almost two years ago and has never paid them a red cent for their land.”

Gary and Michelle Erb, the Institute for Justice’s clients, purchased 72 acres in Conestoga, Pennsylvania, and built their dream home there. Their hope was to have their three sons build homes on the land, too. But the Erbs’ dream was destroyed when Transco built a natural gas pipeline running through Pennsylvania, Maryland, Virginia and the Carolinas. The Erbs tell their story in this brief video:  https://www.youtube.com/watch?v=kiUPH8-4_s8.

The Institute for Justice has spent decades fighting eminent domain abuse nationwide. IJ’s victories have saved homes and businesses, including: the home of an elderly widow from Atlantic City who successfully fought then-developer Donald Trump’s abuse of eminent domain; an Atlantic City piano tuner’s home; a small auto repair shop in Mesa, Arizona; 17 homes and business in Lakewood, Ohio; and a boxing gym for inner city youth in National City, California, among other examples.

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:  https://ij.org/case/pennsylvania-pipeline-eminent-domain/.]

Dairy Farmer Wins First Round in Fight to Say Skim Milk is Skim Milk

Harrisburg, Pa.—A federal judge in Pennsylvania denied the Food and Drug Administration’s motion to dismiss a lawsuit about whether additive-free skim milk can be labeled and sold as “skim milk.” Current FDA regulations require farmers to add synthetic vitamins into skim milk before sale. Maryland dairy farmer Randy Sowers wants to sell all-natural skim milk without additives. However, the FDA forces him to label his product as “imitation skim milk.” Randy has partnered with the Institute for Justice (IJ) to protect his First Amendment right to accurately label his milk.

“Businesses have the right to tell the truth,” said IJ senior attorney Justin Pearson, “and the government does not have the power to change the dictionary.”

In her decision, U.S. District Judge Yvette Kane agreed with Randy that his suit had merit and would prevent potential harm to his business: “A ruling in Plaintiff’s favor would permit Plaintiff to proceed with its plan to sell additive-free skim milk in the Commonwealth of Pennsylvania without having to use the ‘imitation’ label to which it objects. Thus, the Court finds that the utility of a judgment on Plaintiff’s claims would be substantial.”

The Sowers family operates South Mountain Creamery on their dairy farm near Frederick, Md. The creamery produces delicious milk, yogurt and cheese. In 2017 Randy contacted the Pennsylvania Department of Agriculture to find out whether he could sell all-natural skim milk without added chemicals as “skim milk” in Pennsylvania. State officials have no objection to the commonsense use of the term, “skim milk,” but because Randy wants to sell in multiple states, they are forced to follow federal regulations. To protect his right to accurately label his product, Randy and IJ filed suit in April 2018.

“The FDA has defined the product ‘skim milk’ as having three ingredients,” explained IJ attorney Anya Bidwell. “The first ingredient is skim milk, and the other two are additives. Skim milk without the additives is safe to drink and legal to sell, but you are not allowed to call it what it is.”

Norco Homeowner Fights Back With Lawsuit After City Attempts To Take His Home

Two years ago, Norco homeowner Ron Mugar received a notice indicating he had violated the city’s housing code. Ron had admittedly allowed his home and backyard to become cluttered with hobby machinery. But this time, instead of fining him or asking him to bring his property up to code, the city’s private, for-profit prosecutors—lawyers with the firm of Dapeer, Rosenblit & Litvak LLP—declared they were going to take over ownership of his house using a legal process known as “receivership.”

Ron cleaned up his yard, hired a lawyer, and fought back in court—spending his hard-earned savings to defend himself—and won. Ron’s attorney got the receivership halted without a receiver ever doing any work or taking the property. Ron then brought the property into full compliance. Ron also fought the private prosecutor’s demands that he fix things for which he was never actually cited.

The court eventually ruled that Ron had brought his property into compliance and it then vacated the receivership order. But that didn’t stop the city’s hired lawyers from seeking more than $60,000 from Ron in attorneys’ fees. Attempting to collect attorneys’ fees for a prosecution that the city lost is patently illegal, which is why Ron has partnered with the Institute for Justice to put an end to the city’s use of private lawyers to enforce municipal code violations once and for all.

“Ron has always followed orders to comply—there was no need to threaten to take his home. Moreover, it’s unconscionable that he is facing crippling fees after successfully fighting back,” said Joshua House, an attorney at the Institute for Justice, which represents Ron. “By penalizing people for defending their property rights, Norco is violating Ron’s constitutional right to defend himself in court.”

House continued: “There is an old saying that ‘to the victor go the spoils.’ But in Norco, the lawyers working for the city seem to think that’s reversed. They lost in court, but they are nevertheless attempting to recover outrageously large attorneys’ fees. That’s because Norco’s scheme of using a private law firm creates perverse incentives to maximize profits, rather than efficiently and justly enforce the city’s municipal code.”

Receiverships were once intended to be a tool of last resort—meant to fix homes that posed a danger to the health and safety of the community. Receivership laws allow a city to take possession of a home, fix it up and then charge the original owner for the cost of repairs. If the homeowner cannot pay those costs, the receiver sells the home.

But now, an increasing number of California cities are empowering private, for-profit law firms to use receivership laws address minor code violations by threatening to take away residents’ homes. In the process of doing so, these firms charge enormous, sometimes bankruptcy-inducing amounts of money for their “services.” And the more they fine and charge homeowners, the more money they make.

Moreover, California courts don’t allow private, for-profit law firms to prosecute nuisance violations and then seek fees from those they prosecute. The Due Process Clauses of the United States and California Constitutions require city attorneys to be neutral, without a financial stake in the cases they bring. But in Norco, they have a strong financial incentive to seek unnecessary receiverships.

“Norco’s receivership scheme is unconstitutional,” said IJ attorney Jeffrey Redfern. “Both the U.S. and California Constitutions give citizens the right to face a neutral prosecutor and judicial system. By introducing a profit incentive to the system, Norco and the private lawyers it has hired have created an illegal incentive to rack up fines and legal fees, rather than neutrally enforce the city’s laws.”

This is not the first time IJ has sued to stop private prosecutors from abusing citizens’ constitutional rights. In nearby Indio, California, the city had hired a law firm called Silver and Wright LLP to enforce its municipal code. There, the lawyers charged an elderly woman nearly $6,000 in attorneys’ fees because her tenants were keeping chickens in their backyard. Indio no longer uses the firm for prosecution, and it has agreed to settle the lawsuit.

The Institute for Justice has been at the forefront of fighting efforts by the government to use fines, fees and civil forfeiture to raise revenue. Most recently, it secured a unanimous victory at the U.S. Supreme Court ruling that states cannot impose excessive fines.

Thomas V. Loran III and William Palmer of Pillsbury Winthrop Shaw Pittman LLP are serving as local counsel for the case, which they are taking pro bono.

Doraville Homeowners Win Round One in Lawsuit Challenging City’s Overzealous Ticketing Scheme

Today, a federal judge in Georgia denied the city of Doraville’s motion to dismiss a lawsuit challenging its use of traffic tickets and other fines to generate revenue. The lawsuit was brought by two Doraville homeowners and two others who commute through Doraville. These plaintiffs partnered with the Institute for Justice (IJ), a non-profit, public interest law firm, and alleged that Doraville’s revenue-reliant justice system creates a perverse incentive to police for profit, rather than neutrally apply the law.

“Police are supposed to serve and protect, not ticket to collect,” said Josh House, an attorney at the Institute for Justice. “Yet, that’s exactly what they are doing in Doraville. Today’s decision means that our clients will get their day in court to challenge the city’s illegal ticketing scheme.”

The judge ruled that the plaintiffs alleged injuries, allowing them to have their cases heard. Among the lawsuit’s plaintiffs is Hilda Brucker. Two years ago, Hilda received a call from a city clerk demanding that she come down to the court house immediately. Hilda had no idea what was going on. When she got there, Hilda was confronted by a city judge and prosecutor armed with photos of her driveway, arguing that its cracks violated Doraville’s city code. Hilda protested that this was the first she’d heard about it, and that she’d never even received so much as a “fix-it ticket.” The prosecutor wasn’t having it, and the judge proceeded to impose a fine and sentenced her to six months of probation. Hilda walked out of court a convicted criminal for having a cracked driveway.

In his decision, U.S. District Judge Richard W. Story wrote, “Here, the City is engaged in a broad pattern of allegedly unconstitutional behavior that is ongoing. As a result of that practice, the City’s officers write dozens of tickets for ordinance and statutory violations, on a daily basis. Ms. Brucker has already been ticketed multiple times, but is yet to take action that would inhibit future citations for the exact same infractions. And should Ms. Brucker be ticketed again, she will be subjected to—as she already has been—a court said to systematically deprive people of their due process rights. The Court therefore finds that Ms. Brucker continues to face a sufficiently imminent threat of injury.”

Each year, Doraville budgets that between 17 and 30 percent of its overall expected revenue will come from fines and fees issued by its police officers and code inspectors. A 2015 Doraville newsletter bragged that “averaging nearly 15,000 cases and bringing in over $3 million annually,” Doraville’s court system “contributes heavily to the city’s bottom line.”

By putting fine revenue into its annual budget, Doraville creates a perverse incentive for police, prosecutors, and even its municipal court to police for profit, rather than seek justice and protect the health and safety of the city.

The next step in the lawsuit is a hearing examining how courts have interpreted profit-driven justice systems in the past. The date for that hearing has not been scheduled.

Bipartisan Bill in Congress Would Dramatically Reform Civil Forfeiture

On Wednesday, Reps. Tim Walberg (R-MI), Jamie Raskin (D-MD), Thomas Massie (R-KY), Tony Cardenas (D-CA), Tom McClintock (R-CA), and Bobby Rush (D-IL) reintroduced the Fifth Amendment Integrity Restoration Act (FAIR Act), which would enact a sweeping overhaul of federal civil forfeiture laws. Under civil forfeiture, the government can permanently confiscate property without charging anyone with—let alone convicting them of—a crime. Worse, federal law even encourages law enforcement to forfeit property by letting the seizing agencies keep up to 100 percent of forfeiture proceeds.

“For too long, tens of thousands of Americans have lost their hard-earned savings, cars, businesses and even their homes to an unjust civil forfeiture system,” said Darpana Sheth, a senior attorney at the Institute for Justice and who heads IJ’s End Forfeiture Initiative. “The FAIR Act is a bold effort that would enact urgently needed reforms and end many of the appalling practices endemic to current law. Critically, the FAIR Act would end the perverse financial incentives that fuel forfeiture abuse,” Sheth added.

The FAIR Act would enact the following changes to federal civil forfeiture:

  • Ban the U.S. Department of Justice from retaining forfeiture proceeds and instead re-directs all forfeiture proceeds to the General Fund of the Treasury. In 1986, the DOJ’s Assets Forfeiture Fund took in $93.7 million in forfeiture revenue, but by 2018, annual deposits had topped $1.3 billion;
  • Abolish the “equitable sharing” program, which violates federalism principles and allows local and state law enforcement to collaborate with federal agencies and collect up to 80 percent of the proceeds, even if that would circumvent state restrictions. From 2001 to 2013, the DOJ distributed more than $4.7 billion in equitable-sharing money, according to a report by the Institute for Justice;
  • Shift the burden of proof from the property owner onto the government, restoring the presumption of innocence;
  • Raise the standard of proof in civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing”;
  • Provide legal representation for those who cannot afford it in civil forfeiture proceedings;
  • Limit forfeiture for currency “structuring” only when funds in question are derived from an illegal source or used to conceal illegal activity, codifying a 2014 IRS policy change in response to documented abuses; and
  • Allow individuals and small business owners to request a prompt hearing to contest the seizure of their funds for alleged structuring violations.

Reforming civil forfeiture is the rare political issue that transcends party lines. The national platforms for both the Democratic and Republican Party have endorsed forfeiture reform, as have the editorial boards for over 130 different newspapers. And last month, the U.S. Supreme Court issued a unanimous landmark decision, which ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on “excessive fines.”

On the state level, forfeiture reforms are currently under consideration in 12 states. Missouri and Rhode Island have advanced legislation that would close the equitable-sharing loophole. Most sweeping of all, Minnesota, Nevada, and South Carolina, could completely abolish civil forfeiture, a move that would generally require a criminal conviction to forfeit property and would ban police from self-financing with forfeiture revenue.

Since the Institute for Justice began its End Forfeiture Initiative in 2014, 30 states and the District of Columbia have enacted forfeiture reforms.

West Virginia Passes One of the Most Expansive Cottage Food Laws in the Nation

Charleston, W.Va.—Yesterday, West Virginia becomes one of the most welcoming—if not the most welcoming—state in the nation for homemade or “cottage food” producers. Governor Jim Justice, with support of cottage food producers from around the Mountain State, signed into law a bill that will allow the sale of these safe, shelf-stable goods out of homes, online or in retail shops.

Before, West Virginians were limited to selling their cookies, jellies and breads at farmers markets and community events. With most farmers markets closed half of the year and events popping up sporadically, it was difficult for many producers to make a profit. “Since we couldn’t take custom orders from our home, my wife and I had to guess how much of what kind of goods we should make, package everything up, and drive to the market or event that was often miles away,” said Eric Blend, owner of The Blended Homestead. “Depending on turnout, we had to turn customers away or throw out product.”

Now, bakers, herb driers, honey makers and other cottage food producers can sell goods from their homes, take online orders and even have a spot in a retail shop—all throughout the year. “Not only can I customize my goods for special occasions, I no longer have to miss out on the most profitable time of the year—the holiday season,” said home baker Michelle Carpenter. “Birthday cake with a dancing pony? No problem! Christmas cookies that taste like eggnog? How many?”

“This is a great change for West Virginia small businesses and for American small business generally,” said Institute for Justice (IJ) activism associate Melanie Benit. “Another state is realizing that over-regulation is harming everyday Americans and, by government loosening its grip, people are given the opportunity to try their hand at entrepreneurship.”

As shown in IJ report Flour Power, allowing the sale of cottage foods results in new jobs with flexible hours and few start-up costs. “This is especially helpful for women in rural areas,” said IJ attorney Erica Smith. “Farmers and stay-at-home moms can bring in much-needed supplemental income for their families while providing local food options in areas that don’t have many choices.”

From its introduction, the bill was a legislative priority for the Department of Agriculture and a bipartisan effort with 28 sponsors since the bill focuses on simply expanding the point of sale. The law does not change what kinds of foods can be sold, and producers are still required to follow basic safety requirements like labeling the goods as homemade and listing the ingredients.

“As more people start selling and purchasing these safe, local products, I see a bright and delicious future of food freedom for West Virginians,” said IJ activism associate Melanie Benit.

Florida Legislature Advances Bill to Protect the Right to Grow Your Own Food

Tallahassee, Fla.— Today, the Florida legislature moved one step closer to protecting the right of all Floridians to grow vegetables on their own property. The Florida Senate passed SB 82 by an overwhelming vote of 35-5. The Florida House is expected to consider an identical measure soon. If the bill becomes law, any local ordinance that expressly limits or prohibits growing vegetables on one’s own property would become “void and unenforceable.”

In 2013, the Institute for Justice (IJ) filed a lawsuit against the Village of Miami Shores, Fla. to challenge their prohibition on front-yard vegetable gardens. The lawsuit, brought by IJ on behalf of Miami Shores couple Hermine Ricketts and Tom Carroll, sought to have the Village’s ordinance struck down as an unconstitutional violation of property rights. Florida’s Third District Court of Appeals ruled in favor of the Village and the Florida Supreme Court declined to hear their appeal. Last year, the Florida Senate introduced an identical bill to the one it passed today.

“This year’s bill provides another opportunity for the state of Florida to recognize that the peaceful, productive use of property is a right that this state takes seriously,” said IJ Attorney Ari Bargil, who represented Hermine and Tom in their battle against the Village. “It is now up to the House to ensure that these important rights are preserved not just for Hermine and Tom, but for all Floridians. I applaud the Senate for its work to quickly pass this meaningful reform, and I look forward to the day where no Floridian would worry about crippling fines for the offense of growing cabbage.”

Economic Opportunity Goes to Texas Supreme Court

Texas entrepreneurs are suffering a slow death by a thousand regulatory cuts. Thankfully the Texas Supreme Court is considering a set of cases poised to help clear the way for businesses big and small to flourish.

Texas has a reputation for welcoming businesses big and small. On the macro level, that reputation is generally well-earned. But a closer look reveals that that story is more complicated. Across the state, lawmakers, regulatory agencies, boards, commissions, city councils and county commissioners use government power to hamper competition, pick winners and losers in the marketplace, violate property rights and erode economic liberty.

For instance, IJ’s challenge on behalf ofthree Texas craft breweries now awaits the Texas Supreme Court’s decision on whether it will grant review and hear the case. The constitutional challenge centers on the economic liberty protections under the Texas Constitution and involves a law prohibiting craft brewers from selling to a distributor the exclusive right to distribute their beer.

And just last month the Institute for Justicefiled a new lawsuit against the city of South Padre Island challenging the city’s anti-competitive laws that force food truck operators to get a restaurant owner’s permission before the city will issue one if its 12 vending permits. In total, IJ has four lawsuits pending in Texas. The others include:

Dallas AmortizationIJ sued Dallas after the city used a little-known law to shut down a beloved local business with paying him a cent.

Virtual Veterinary MedicineIJ filed a First Amendment lawsuitchallenging a state law requiring all veterinarians to examine an animal in person before providing advice over the phone or online. There is no similar requirement for doctors practicing telemedicine.

“Texas has gone to great lengths to create a positive business climate that respects Americans’ constitutional rights,” said Arif Panju, Managing Attorney of the Institute for Justice’s Texas Office. “Despite this, the state has given bureaucrats, regulators, city council members and others in power the ability put in place laws that favor one business over another, or otherwise hamper competition in the state. Thankfully, in 2015, the Texas Supreme Court issued a landmark ruling that requires Texas courts to provide meaningful protection for economic liberty. And now, four years later, the Institute for Justice has two new lawsuits pending before the high court seeking to extend that decision to stamp out the use of government power for private economic protectionism.”

Minnesota Supreme Court Rules that Innocent Property Owners Have Right to Swift Hearing Following Law Enforcement Seizures

Minneapolis—This morning, the Minnesota Supreme Court took a step toward protecting innocent people whose property has been taken by law enforcement. The court ruled that innocent owners are entitled to prompt post-seizure hearings and ordered the return of a car that has been held by the Shakopee Police Department for 18 months. While the car was seized in a valid traffic stop, the car’s innocent co-owner had no opportunity to request her property’s return in court.

The Institute for Justice (IJ) filed a friend-of-the-court brief in this case, urging the Minnesota Supreme Court to follow the lead of courts in Illinois, Indiana, New York, Oregon and the District of Columbia in deciding that innocent owners must be afforded a prompt post-seizure hearing. In the opinion released today, the court wrote that: “due process urgently requires a prompt hearing on innocent-owner defenses.” It further noted that courts carefully scrutinize proceedings where, “the agency making the decision has a pecuniary interest in the outcome.”

“Today’s decision is a victory for the rights of Minnesotans who have done nothing wrong but still see law enforcement seize and hold their cars, cash or other property for months or years,” said IJ attorney Jaimie Cavanaugh. “It only makes sense that innocent owners should be granted a hearing within days of law enforcement seizing their property. Because of today’s result, there will now be additional scrutiny on law enforcement practices that amount to policing for profit.”

Montana School Choice Case Appealed to U.S. Supreme Court

Arlington, Virginia—In a case appealed yesterday (Tuesday, March 12, 2019) to the U.S. Supreme Court, Montana parents are asking the nation’s High Court to overturn a Montana Supreme Court decision that allows the government to bar families from participating in an otherwise generally available student-aid program merely because the parents have selected a religious school for their children. The case could impact tens of thousands of low- and moderate-income families across the nation.

“It is a bedrock constitutional principle that the government cannot discriminate against religion,” said Institute for Justice Attorney Erica Smith, which is representing the families in this case. “Yet for the past 24 years, some states have blocked religious schools and the families who choose them from participating in student-aid programs. It is time for the U.S. Supreme Court to step in and settle this issue once and for all.”

In May 2015, Montana enacted a scholarship program after the Legislature decided all parents—regardless of their income—should be able to select their children’s schools. The program provides a modest tax credit (up to $150 annually) to individuals and businesses who donate to private scholarship organizations. Those scholarship organizations can then use the donations to give scholarships to needy families who want to send their children to private schools.

But the Montana Department of Revenue enacted an administrative rule that prohibited scholarship recipients from using their scholarships at religious schools. Nearly 70 percent of Montana’s private schools are religiously affiliated and excluding them severely limited the choice of families.

In December 2018, the Montana Supreme Court went even further, and ruled 5-2 that the entire scholarship program was unconstitutional under the Montana Constitution because of the inclusion of religious options. The court held that because families may choose to use the scholarships at religious schools, the program provided indirect payments to aid religious institutions, making the entire program unconstitutional under Article X, section 6 of the Montana Constitution. The Court refused to permit the private scholarship organizations to award scholarships to families choosing secular options, although the ruling leaves the Legislature free to re-enact a new program only for families choosing secular private schools. As a result, dozens of children—at both religious and nonreligious schools—are in jeopardy of losing their scholarships.

“The part of the Montana Constitution in question is known as Montana’s ‘Blaine Amendment,’” explained IJ Senior Attorney Michael Bindas. “This sordid provision dates back to 1889 and was designed to discriminate against Catholic schools and students at a time of widespread hostility toward Catholics, both in Montana and throughout the country. By applying it to bar religious options from modern school choice programs, the Montana Supreme Court has transformed this relic of nineteenth-century, anti-Catholic bigotry into an engine of animus against anyone who might choose to attend a religious school.”

Among those impacted by the decision is Kendra Espinoza. Kendra, a single mother, pulled her children out of public school after realizing it was not a healthy environment for her daughters, socially or academically. Kendra enrolled them in a private Christian school and took on a second job cleaning houses to pay the tuition. Her daughters thrived at school, but Kendra struggled to make the tuition payments. Kendra was counting on the scholarships to help her continue to keep her daughters at their school.

“The Montana Supreme Court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships,” said Kendra. “For the benefit of families across the state, and the nation, we hope the U.S. Supreme Court accepts this case and restores this program to families that need them to ensure their children have access to a good, safe and meaningful education.”

During the past 24 years, a conflict over whether religious options may be barred from school choice and other student-aid programs has split the federal circuits and state courts of last resort. On one side, the 6th, 7th, 8th, and 10th U.S. Circuit Courts of Appeal, along with the New Mexico Supreme Court, hold that government may not—consistent with the federal Constitution—prohibit religious options in student-aid programs. On the other side, the 1st and 9th U.S. Circuits, as well as the Maine and Vermont Supreme Courts, hold that it may. With the decision in this case, the Montana Supreme Court joined the second group and further deepened the schism.

“The only way to resolve the split is for the Supreme Court to grant certiorari in another student-aid case,” said Institute for Justice Senior Attorney Tim Keller. “The lower courts cannot resolve this issue on their own. And every year the split continues, it deprives thousands of children of educational opportunities.”

“Resolving this issue will allow these children to legally participate in educational choice programs and also bring much-needed clarity to state and local governments who wish to enact such programs,” Smith said.

Scott Bullock, the Institute for Justice’s president and general counsel, said, “Under the current legal landscape, whether a child attending a religious school is permitted to participate in an educational choice program is based solely on the state or federal circuit within which that child happens to reside. No child should be denied educational opportunity simply because of geography. Now is the time for the Supreme Court to decide this issue.”

The Institute for Justice has successfully defended educational choice programs nationwide, including twice before the U.S. Supreme Court. IJ is currently litigating other educational choice cases in Maine and Washington, and recently won a victory before the Supreme Court of Puerto Rico.

U.S. Supreme Court Appeal Takes on Powerful Pipeline Company That Abuses Eminent Domain

Arlington, Va.—Should private pipeline companies be able to use the government’s power of eminent domain to take land immediately while denying the landowners any compensation for months or even years?

That is the question raised by a cert petition filed today (March 13, 2019) by the Institute for Justice with the U.S. Supreme Court on behalf of property owners in rural Lancaster County, Pennsylvania. The case challenges the widespread practice of private pipeline companies (which by law have been delegated a limited version of the eminent domain power) persuading federal courts to give them immediate possession of other people’s land and pay for it later . . . often much later.

In the process, not only are people’s properties being destroyed, but so are the dreams they worked so hard to turn into a reality.

All of this is playing out in Conestoga, Pennsylvania, in a case with national implications as more natural gas pipelines are constructed and crisscross our country.

Gary and Michelle Erb purchased a 72-acre tract of land in Conestoga in 2008, and built their dream home there. Their hope was to have their three sons build homes on the land as well, so they could all enjoy the hiking and hunting that is readily available in the beautiful rural setting.

But the Erbs’ dream was destroyed when the Transcontinental Gas Pipe Line Company (Transco) applied to the Federal Energy Regulatory Commission (FERC) for authorization to build its Atlantic Sunrise Project—a natural gas pipeline running through Pennsylvania, Maryland, Virginia and the Carolinas—a pipeline with a 900-foot blast radius that now sits 400 feet from the Erbs’ dream home. Not satisfied by assurances that such a blast is unlikely, the Erbs have already purchased a new home and are in the process of leaving behind their hard-won dream.

The Erbs tell their story in this short video:  https://www.youtube.com/watch?v=kiUPH8-4_s8.

When FERC gives a company a permit to build a pipeline, that permit comes with the ordinary power of eminent domain: The government (or in this case, the pipeline company) goes to court to take someone’s land for a specific project, the court sets “just compensation” for the land, and the government then chooses whether to pay that court-fixed price or dismiss the case. The government does not have to pay the price. But it has no right to the property unless it does so; the right vests with the government only after it buys the land. In delegating power to private companies like Transco, Congress gave them the authority to bring precisely this kind of straight-condemnation proceeding.

Yet pipeline companies like Transco consistently use a far more drastic power of eminent domain—a power that Congress never granted them—to take immediate possession of a piece of property and then put in their pipeline. These companies consistently and predictably abuse this power because the courts are simply rubber-stamping their actions, refusing to force the pipeline companies to operate within the limited powers Congress granted them when it created FERC in the first place.

“If Congress never gave the pipeline companies the power to take immediate possession of a piece of property, no one else may grant them that power,” said Robert McNamara, a senior attorney with the Institute for Justice, which is representing the Erbs and their neighbors in their U.S. Supreme Court appeal.

Now, two years later, Transco’s pipeline is in place and is pumping natural gas, but the Erbs and their neighbors have yet to receive a dime of compensation.

“The pipeline companies accelerate the parts of eminent domain they like—installing pipelines on other people’s land—while slowing down the part they are less enthusiastic about, specifically, paying the property owners,” McNamara explained.

“There are important laws in place here that are designed to protect ordinary Americans from the inevitable abuses we are seeing in Pennsylvania,” said IJ Attorney Sam Gedge. “Private companies exercising this power can’t be trusted to police themselves, and so it is up to the courts to ensure they don’t abuse this power by taking and using property that does not belong to them without first compensating the rightful owner.”

Transco continues to abuse its privilege by coming onto the Erbs’ property unannounced and without the Erbs’ permission. Michelle said, “They act like they own the easement area, but they don’t own it. They don’t pay taxes on that land; we do. They have taken away our sense of privacy and a sense of security. It is scary when people walk on your property out here in the country and you have no idea who they are.”

Gary added, “Transco is taking advantage of a broken system with the lower courts rubber-stamping what the pipeline companies are doing. The only ones who can stop this are the justices of the U.S. Supreme Court. This kind of abuse is happening to a lot of people, and it is going to happen to more and more people with these pipelines that are now being created all across the country. What Transco is doing isn’t right. It’s not the law. And they must be stopped. We’re trying to follow the law. I feel Transco should be made to follow the law, too. The system as it stands right now is unfair and unethical; it is un-American.”

“The U.S. Supreme Court has repeatedly called for judicial engagement when courts are scrutinizing the use of eminent domain by private entities, like Transco,” said Institute for Justice President and General Counsel Scott Bullock. “But instead, the opposite is happening in the lower courts; they are not reining in the abusive actions of these pipeline companies. In fact, the courts are letting these companies get away with whatever the companies say is necessary to get their project completed. That is the opposite of what judges are supposed to do. Unlawful takings like this by pipelines are happening all across the United States and it is past time for the U.S. Supreme Court to step in and put a stop to them.”

The Institute for Justice has spent decades fighting eminent domain abuse nationwide. IJ’s victories have saved homes and businesses, including: the home of an elderly widow from Atlantic City who successfully fought then-developer Donald Trump’s abuse of eminent domain; an Atlantic City piano tuner’s home; a small auto repair shop in Arizona; 17 homes and business in Lakewood, Ohio; and a boxing gym for inner city youth in National City, California, among other examples.

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:  https://ij.org/case/pennsylvania-pipeline-eminent-domain/.]

U.S. Coast Guard Sued for Delegating Government Power to Private Association

Arlington, Va.—Captain Matthew Hight was on the verge of getting his license to pilot commercial vessels on the St. Lawrence Seaway and Lake Ontario, but the U.S. Coast Guard refused to let him proceed after a for-profit association concocted reasons to deny him the right to work. What was one of those reasons? That he once used strong language while asking for quiet on the bridge. Now, Captain Hight is teaming up with the Institute for Justice (IJ) to sue the Coast Guard, asking the service to stop delegating its power to the self-interested association, follow its written regulations and allow him to continue to apply for his license.

Watch a video about Captain Hight’s case against the Coast Guard here.

Captain Hight has been a merchant mariner for more than 20 years, with eight of those years spent commanding ships all over the world. But life at sea takes its toll, and he decided to return to the United States and seek employment closer to his family. Piloting on the Great Lakes is highly regulated, and Captain Hight was required by the Coast Guard to train with the St. Lawrence Seaway Pilots’ Association, a for-profit business. After disagreements with the financial practices of the association’s leadership, Captain Hight was given a negative recommendation by the association. With no meaningful way to contest the recommendation with the Coast Guard, Hight has seen his training go to waste.

“The U.S. Constitution says that the government cannot delegate its power to private, self-interested groups,” said IJ Senior Attorney Anthony Sanders. “The Coast Guard needs to end the constitutional abuses, follow the regulations and give Captain Hight the opportunity to get his license and work in the profession of his calling.”

Initially, Captain Hight’s training with the association went smoothly. In May 2016, the association recommended to the Coast Guard that he receive a temporary registration, allowing him to man ships on Lake Ontario and earn a full pilot’s salary. However, as he became more acquainted with the association, he began to question its practices to some of his fellow mariners. This included concern that the president did not provide the association’s members, including the treasurer, access to the association’s financial records. To become a pilot, Captain Hight would be required to “buy into” the association at a cost of nearly $200,000.

Captain Hight justifiably believes that the negative recommendation by the association was retaliation for voicing his concerns. The two reasons given by the association were flimsy. The first being that he used swear words in an interaction with a ship commander. This incident began when Captain Hight called for silence on the bridge so that he could give clear commands to the helmsman. The second referenced an incident that Hight was neither responsible for nor aware of. A tugboat was damaged by a channel buoy after it had assisted a vessel piloted by Captain Hight.

After the association issued its report, the Coast Guard ended Captain Hight’s effort to get his license. While Captain Hight appealed to the Coast Guard, the service refused to reconsider the association’s recommendation or investigate the validity of the allegations.

“It’s absurd that the association says that using strong language is a reason to keep me from piloting ships,” said Captain Matthew Hight. “There are some stereotypes about sailors that are true and no one on a ship is actually offended by swear words. The association just made up reasons to stop me from getting a license and it is a shame that the Coast Guard accepts their word without any questions. I’m fighting against this unconstitutional system, both for myself and for others who want the opportunity to pilot on the Great Lakes.”

The federal lawsuit, filed this morning in the United States District Court for the Southern District of Florida, where Captain Hight currently lives, maintains that the Coast Guard has unconstitutionally delegated government power to the association. It also claims that the Coast Guard’s requirement that Captain Hight join the association and get its approval is a violation of his First Amendment rights and his due process rights. The suit calls on the Coast Guard to follow its written regulations and allow Captain Hight to continue the process of getting his pilot’s license.

“Government agencies cannot interpret their regulations so broadly that it makes the written rules basically meaningless,” said IJ Constitutional Law Fellow Ben Rump. “The law doesn’t empower the Coast Guard to delegate its responsibility to a private association. We hope that the federal courts will rule that Captain Hight has a constitutional right to continue down the path to getting his license and affirm that government agencies have to follow their own rules.”

Texas Food Trucks Sue for Right to Compete on South Padre Island

South Padre Island, Tex.—Today, a group of South Texas food trucks filed a lawsuit aiming to shut down South Padre Island’s anti-competitive food truck restrictions. The lawsuit, which was filed in Cameron County District Court, challenges the constitutionality of the city’s requirement that all food trucks obtain permission from a brick-and-mortar restaurant before opening for business, as well as its arbitrary cap on food truck permits that prohibits more than twelve food trucks from operating on the island. But restaurants shouldn’t get to decide who can open for business or how much competition is enough. 

South Padre Island’s food truck laws serve only one purpose: to preserve brick-and-mortar restaurants’ near-monopoly over the island’s more than 4 million annual visitors. Among the vendors caught in the city’s crosshairs are local nonprofit SurfVive and its food truck, along with brothers Anubis and Ramses Avalos and their Chile de Árbol food truck. The city’s unconstitutional laws prohibit both from opening for business on South Padre Island, which is why they’ve partnered with the Institute for Justice (IJ) to sue to put an end to the city’s illegal economic protectionism. 

“No one should need their competitor’s permission to open a business,” said Arif Panju, managing attorney of IJ’s Texas office and lead counsel for the food truck operators. “South Padre Island’s food truck laws do nothing to protect consumers; their purpose is only to protect existing restaurants from competition. Thankfully, Texas courts don’t look kindly on such bald-faced economic protectionism. The Texas Supreme Court recently made it clear that economic liberty—the right to earn an honest living free from unreasonable government interference—receives meaningful protection under the Texas Constitution.”

In a landmark ruling by the Texas Supreme Court, Patel v. Texas Department of Licensing and Regulation, which the Institute for Justice also brought, the Texas Supreme Court made clear that the Texas Constitution vigorously protects economic liberty. The ruling sets forth the meaningful, robust standard by which South Padre Island’s anti-competitive vending restrictions will be judged.

Panju continued: “In any marketplace, customers—not the city council or competitors—get to pick winners and losers. If a food truck’s food tastes better than a nearby restaurant’s, that is not a crime worthy of government-imposed punishment.  Certainly not the food truck’s. These anti-competitive laws only eliminate a menu of options for the island’s residents and visitors, while shutting out entrepreneurs.”

It is no coincidence that South Padre Island’s permitting laws serve only the interests of restaurant owners. In 2016, when the city’s vending laws hit the books, the city convened a committee called the Food Truck Planning Committee, which was composed of South Padre Island restaurant owners.

The roots of today’s lawsuit reach back more than a year, when a local nonprofit called SurfVive decided to purchase a food truck to serve the South Padre Island community. SurfVive runs a free surf school on the island and teaches the importance of healthy food choices through its learning gardens. The SurfVive food truck planned to sell smoothies, coffee, and vegetable bowls to help support their programs. But in April 2018, when it first attempted to open its food truck on the island, it learned that there were no permits available. Then, a few months later, after SurfVive learned that a permit had became available, the city denied its vending permit—this time, because no restaurant owner had signed off on the application. 

“I grew up on South Padre Island, and I just want to serve a community that I care about,” said SurfVive Director Erica Lerma. “It is shocking to me that Texas—of all places—still tolerates such anti-competitive laws. I don’t know what the restaurants are afraid of. Competition is what should encourage restaurants to do better. I think our food truck offers something unique- a healthy, organic menu with food sourced locally when possible. I wish more restaurants served food like ours. I filed my lawsuit not only because I want the SurfVive food truck to open for business, but also because I don’t want our government passing laws to help some businesses by hurting others.”

Like SurfVive, Ramses and Anubis Avalos—the owners of Chile de Árbol—want to offer healthy, affordable alternatives to South Padre Island residents and beachgoers. The brothers want to bring their creative, vegan fare to the island, but cannot do so until a permit becomes available, and even then only if they can get permission from their brick-and-mortar competition.

“South Padre Island’s restrictions on food truck permits were designed by and for the owners of brick-and-mortar restaurants,” said IJ attorney Kirby Thomas West. “They serve no purpose beyond that. Laws that exist only to protect certain businesses from competition are unconstitutional, and we aim to put a stop to them—in Texas and across the country.”

IJ is no stranger to fighting anticompetitive food truck laws in the Lone Star State. IJ previously won victories for food truck freedom in El Paso and San Antonio. IJ has also litigated other food truck cases around the country, including a recent case before the Illinois Supreme Court and a second in Fort Pierce, Florida, where the court granted a preliminary injunction prohibiting the city from enforcing a law that prohibits food trucks from operating within 500 feet of a restaurant.

Judge Orders Fort Pierce to Stop Enforcing Unconstitutional Food Truck Ban

Today, a Florida circuit court ruled that Fort Pierce cannot enforce its unconstitutional ban on food trucks operating within 500 feet of another establishment that sells food. Food truck owners Benny Diaz and Brian Peffer filed a lawsuit against the city for its food truck law with the Institute for Justice (IJ) for violating their right to earn an honest living free from unreasonable government interference, a right protected by the Florida Constitution. The preliminary injunction issued today means that they and other food truck owners can sell food truck food as their lawsuit against the city continues.

“Today, the court ordered Fort Pierce to stop enforcing its unconstitutional food truck ban,” IJ Florida Office Managing Attorney Justin Pearson said. “We’re thrilled for our clients, and for the people of Fort Pierce who will now have more exciting food choices.”

Fort Pierce’s law was created in 2014 for the sole purpose of protecting restaurant owners, a fact then-Commissioner Edward Becht admitted. Allowing food trucks to compete directly with restaurants for business, he said, would “hurt the brick-and-mortar businesses.” Thus began one of the most stringent food truck proximity bans in the country, making it almost impossible for food truck owners to do business. Today, they are celebrating.

“I’ve been waiting a long time to sell my tacos in Fort Pierce. I can’t wait to bring Taco Trap to the city,” Taco Trap food truck owner Benny Diaz said.

Creative Chef on Wheels owner Brian Peffer echoed Diaz’s sentiments, saying, “People have been inviting me to Fort Pierce for a while. Now, I can finally do business in the city.”

In today’s order by Circuit Judge Lawrence Mirman, the court said: “The court agrees with Plaintiffs that Fort Pierce already had ordinances addressing legitimate concerns, and the 500-foot Ban was specifically drafted for only one purpose: to favor one type of commerce over another; to prevent competition.”

“As a matter of law, protectionism, by itself, is not a valid exercise of a police power,” the order continued.

This led, Dane Stuhlsatz, a constitutional law fellow at IJ who is also an attorney on the case, to call today, “A good day for Fort Pierce and the Florida Constitution.” Stuhlsatz continued, “Government does not have the power to pick winners and losers in the marketplace. That choice belongs to customers.”

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San AntonioEl Paso, Texas, Carolina Beach, North Carolina, and Louisville, Kentucky, have successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wisconsin.

Leonia Homeowners and Businesses Form Group to Stop Borough’s “Condemnation Redevelopment Study”

Leonia, N.J.—Today, residents, small-business owners and supporters in Leonia, New Jersey, announced the formation of Leonia United Against Eminent Domain Abuse (“Leonia United”). The new group is dedicated to stopping the abuse of eminent domain—the government’s power to take private property—which would be authorized as part of the borough’s current “condemnation redevelopment study” of their neighborhood. Leonia United seeks to preserve their diverse, long-standing community of residents and small businesses, whose homes and livelihoods are threatened by the borough’s redevelopment plans.

Leonia Mayor Judah Zeigler is spearheading mixed-use “redevelopment” along Fort Lee Road, Grand Avenue and Schor Avenue, where dozens of residents and small businesses currently reside. To facilitate this plan, the borough has commissioned a study to determine whether the area qualifies as a “condemnation redevelopment area”—within which the borough could condemn properties for private development if the owners do not want to sell.

Their properties are not for sale.

Eminent domain is for public use, like building roads and schools—not private development, like replacing a longtime resident’s home with a commercial building or parking lot. For years, residents of this community have cultivated a safe, beautiful and thriving neighborhood, and they do not wish to leave. Authorizing the condemnation of these properties for private development is both immoral and illegal under state law. A New Jersey appeals court reiterated this truth just last week when it ruled against an attempt to use eminent domain to bulldoze a family’s home for redevelopment in Atlantic City.

“In the notice we received, the borough refers to our homes as lots and parcel numbers, but they’re not just lots. They are homes—they are people, they are lives,” said Karen Hannon, a Leonia resident whose home is located in the proposed condemnation area. “I came from Ireland with $200 in my pocket and a dream. It’s more than a house; it’s a home where I’ve made many memories.”

Ms. Hannon is one of the nearly 30 property owners who received a notice from the borough in January, telling them about the plans to begin the condemnation redevelopment study.

“We’ve established our family, faith and cultural roots within our home,” said Godfrey De Silva, who has lived with his wife, Ayomi, and two daughters in their Grand Avenue home since 1997. “We’ve raised our daughters here, who attended the local school system, and created life-lasting memories. The time, money and emotional investment put into our home can never be seized for the personal needs of anyone.”

Leonia United has created a Facebook group, https://www.facebook.com/LeoniaUnitedAEDA/, to educate the public and gather support for residents like Karen and Godfrey.

The group is working with the Institute for Justice (IJ), a national public interest, civil liberties law firm dedicated to stopping the abuse of eminent domain. IJ represented Susette Kelo and her neighbors before the U.S. Supreme Court in Kelo v. New London and has successfully litigated on behalf of property owners in Long Branch and twice in Atlantic City.

Today, the Institute for Justice submitted a statement to the borough council, asking it to abandon the condemnation redevelopment study plans.

“Home and business owners in Leonia are right to be concerned,” said Andrew Meleta, activism coordinator at the Institute for Justice. “Designating these well-kept properties as ‘blighted’ and subject to eminent domain is an abuse of state law. If the borough can get away with it, then nobody’s home or business in Leonia is safe—because anyone’s property could be designated as ‘blighted’ and taken, simply to generate more tax dollars for the borough.”

“The borough has no lawful basis to declare this a ‘condemnation redevelopment area,’” said Bill Potter, a partner at Potter and Dickson, a leading law firm in New Jersey that defends property owners from eminent domain abuse. “The council should revoke its resolution initiating the study now—saving everyone, including residents and taxpayers, the cost and stress of potentially prolonged litigation that the borough will ultimately lose, especially in light of recent court decisions in our state.”

U.S. Supreme Court Rules Unanimously That States Cannot Impose Excessive Fines

In an historic ruling, the U.S. Supreme Court this morning held that the Excessive Fines Clause of the Eighth Amendment protects Americans not just against the federal government, but against states and local authorities too. No matter which state you live in, every level of government must now abide by the federal Constitution’s guarantee that property owners will be safe from excessive fines and forfeitures. “[T]he historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause,” wrote Justice Ruth Bader Ginsburg for the Court, “is overwhelming.”

Indiana resident Tyson Timbs is at the center of this legal fight. His road to the U.S. Supreme Court began shortly after his father died, when he received more than $70,000 in life-insurance proceeds and bought a new car. For years, Tyson had struggled with drug addiction; a painkiller prescription had escalated to heroin abuse. Soon after buying his new car, Tyson sold four grams of heroin to fund his addiction. The purchasers were undercover officers, and police arrested Tyson. They seized his car too.

Tyson pleaded guilty to one count of drug dealing, which led to house arrest, then probation, and $1,200 in related fees. Most importantly, the arrest was a wake-up call for Tyson. He got his life back on track, holding down a job and taking steps to battle his addiction.

Read the decision

Watch a Video News Release

The State of Indiana was more interested in Tyson’s car, a Land Rover worth $40,000.

Within months of Tyson’s arrest, the state filed a “civil forfeiture” lawsuit to take title to the Land Rover. But the trial court ruled against the government. Because taking Tyson’s car would be “grossly disproportional” to his offense—for which Tyson had already been punished—the trial court held that the forfeiture would violate the Excessive Fines Clause of the Eighth Amendment. The Indiana Court of Appeals agreed.

Then the Indiana Supreme Court stepped in. Breaking with at least 14 other state high courts, the Indiana Supreme Court ruled that the Eighth Amendment provides no protection at all against fines and forfeitures imposed by the states. Until the U.S. Supreme Court intervenes, the Indiana Supreme Court said, “we will not impose federal obligations on the State that the federal government itself has not mandated.”

Today, the U.S. Supreme Court removed any doubt that the Excessive Fines Clause applies fully to Indiana and every other state. Writing for eight of the Court’s nine Justices, Justice Ginsburg emphasized that, “For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. Even absent a political motive, fines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue,’ while other forms of punishment ‘cost a State money.’ This concern is scarcely hypothetical” (legal citations omitted).

While reaching the same result as the eight other Justices, Justice Clarence Thomas wrote separately to explain his view that the right to be free from excessive fines applies to the states by way of the Fourteenth Amendment’s Privileges or Immunities Clause (rather than the Due Process Clause). Justice Gorsuch also wrote separately to note that the Privileges or Immunities Clause may be “the appropriate vehicle for incorporation.” But “regardless of the precise vehicle,” Justice Gorsuch wrote, “there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”

Wesley Hottot, a senior attorney with the Institute for Justice, who argued the case on behalf of Timbs, said, “Today’s ruling should go a long way to curtailing what is often called ‘policing for profit’—where police and prosecutors employ forfeiture to take someone’s property then sell it, and keep the profits to fund their departments. This gives them a direct financial incentive to abuse this power and impose excessive fines.”

“Two levels of courts in Indiana ruled that it would violate the Excessive Fines Clause of the U.S. Constitution for local police to take Tyson’s $40,000 vehicle for a crime involving a few hundred dollars,” said Sam Gedge, an Institute for Justice attorney who also represents Tyson. “But the Indiana Supreme Court held that the Excessive Fines Clause doesn’t apply at all to state and local authorities. The U.S. Supreme Court has now reversed that ruling. This is great news for anyone who values the protection of property rights and important constitutional limits on the power of government.”

“Tyson paid his debts to society,” said Hottot. “He took responsibility for what he did. He paid fees. He is in drug treatment. He is holding down a job. He is staying clean. Our hope and goal now is to get back his vehicle from the police so Tyson will have an easier time getting to all the different commitments he has to stay on the straight and narrow.”

Tyson said, “Taking my vehicle makes things unnecessarily difficult for a person like me, who already struggles. To me it doesn’t make sense; if they’re trying to rehabilitate and help me help myself, why do you want to make things harder by taking away the vehicle I need to meet with my parole officer or go to a drug recovery program or go to work? You need a car to do all these things. Forfeiture only makes it more challenging for people in my position to clean up and remain a contributing member of society.”

“Over the years, the U.S. Supreme Court has explicitly ruled that almost all of the Bill of Rights applies not just to the federal government, but also to state and local authorities,” said Hottot. “One of the few outlier provisions, however, was the Excessive Fines Clause, which was at issue in this case. Before now, the U.S. Supreme Court had held that two of the three clauses of the Eighth Amendment apply to the states. The Cruel and Unusual Punishment Clause protects your body, the Excessive Bail Clause protects your freedom, and the Excessive Fines Clause protects your property from unreasonable fines and forfeitures. The Supreme Court has now made it clear that the entire Eighth Amendment applies to governments at every level, so every American’s rights are protected.”

“Increasingly, our justice system has come to rely on fines, fees and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets,” said Scott Bullock, the president and general counsel of the Institute for Justice. “This is not just an ominous trend; it is a dangerous one. We are grateful that the U.S. Supreme Court established that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.”

“Today’s decision was the Court’s first opportunity to reexamine this doctrine in over 20 years,” said IJ Senior Attorney Darpana Sheth, who also leads the Institute’s Initiative to End Forfeiture Abuse. “We hope it will be the first in a series of cases that the Court takes on to fundamentally reconsider the constitutionality of civil forfeiture.”

Piano Man Wins Round Two In Atlantic City Eminent Domain Fight

ARLINGTON, VA—Atlantic City property owner Charlie Birnbaum, whose longtime family home was targeted for eminent domain abuse, gets to stay put. So ruled the New Jersey Appellate Division in a 29-page published ruling it issued today.

The Atlantic City fixture and longtime piano tuner won a landmark victory for property rights today when the court rejected the New Jersey government’s attempt to use eminent domain to take the family home he inherited from his parents. The long-running court battle, which has drawn national media attention, pits Birnbaum’s family history against the state Casino Reinvestment and Development Authority (CRDA), which seeks to take the home in service of a “development” project that it can neither explain nor identify.

When he learned of the ruling today, Charlie said, “This home has been so special to our family, and the fact that it’s standing and still here is enormously important. I’m grateful for the outcome, and I’m grateful for having been able to fight for so long.”

The court pointed out that CRDA was acting as little more than a land speculator, taking other people’s property by force and then holding onto that land in hopes of someday putting it to some unspecified use. In the ruling, which upheld a lower-court decision by Atlantic County Assignment Judge Julio Mendez, the court stated, “Under these highly unusual circumstances, it was reasonable for the judge to question whether the Project would proceed in the foreseeable future. . . . CRDA was attempting to ‘bank land in hopes that it will be used in a future undefined project.’ Approval of the condemnation could well leave the Birnbaum property vacant for an indefinite period of time, as the CRDA ‘wait[s] for the right project to present itself.’ . . . We affirm, because the CRDA could not provide evidence-based assurances that the Project would proceed in the reasonably foreseeable future.”

“Today’s opinion is a victory for property owners in New Jersey and nationwide,” said Robert McNamara, a senior attorney at the Institute for Justice (IJ), which is defending the Birnbaums in the case alongside New Jersey eminent domain firm Potter & Dickson. “The power to seize private property through eminent domain is one of the government’s most frightening powers, and today’s opinion reaffirms that it can only be used for good reason—and that courts will stand in the way if government officials try to do otherwise.”

CRDA first announced its intention to condemn the home in 2012, when it adopted a resolution calling for the use of eminent domain to “complement the new Revel Casino.” In the intervening seven years, the Revel has endured two different bankruptcies and an extended closure, only recently re-opening as the “Ocean Resort Casino.” Through all that turmoil, though, two things never changed: CRDA never wavered from its desire to condemn the property, and CRDA never once articulated what (if anything) it would do with the land after it knocked down the Birnbaums’ longtime family home.

In 2016, a New Jersey trial court called CRDA’s insistence on condemning the property despite changed circumstances and in the absence of any real plan “a manifest abuse of the eminent domain power.”

As the court pointed out in today’s ruling, courts nationwide have continued a backlash against the U.S. Supreme Court ruling in the infamous case of Kelo v. City of New London, which allowed the government to take people’s homes for private development, something polls show 90 percent of the public consistently rejects. The court wrote today, “Since Kelo was decided, greater judicial and legislative scrutiny of redevelopment-based takings has occurred.”

“CRDA officials attempted to replay what happened in New London after the Kelo decision, where nearly 20 years after the approval of the redevelopment plan nothing has been built in the former neighborhood,” said IJ President Scott Bullock. “The New Jersey appellate court’s answer to CRDA was crystal clear: Think again. Property rights matter, and you can’t just take land in the hope that something else will be built in the future.”

“CRDA never had a plan for this home other than knocking it down and then thinking really hard about what they might want to put there instead,” explained IJ Senior Attorney Dan Alban. “If that reasoning was enough to let them take this home, it would be enough to let them take literally any home they wanted, for any reason or for none.”

Charlie tells his story in the following video, in which he also plays the piano: https://www.youtube.com/watch?v=RCQM2_nagsM

# # #

[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information is available at https://ij.org/case/atlantic-city-eminent-domain/.]

New Bill Would End Civil Forfeiture in South Carolina

At a press conference Wednesday, South Carolina lawmakers announced a bill that would abolish civil forfeiture. Should the bill pass, South Carolina would join just three other states—Nebraska, New Mexico, and North Carolina—that have ended this abusive police practice.

Under civil forfeiture laws, the government can permanently confiscate cash, cars, even homes, without ever filing criminal charges, much less securing a criminal conviction. Innocent owners are essentially guilty until proven innocent, and must bear the burden of proof if they want to reclaim their taken property. Worst of all, state law creates a perverse financial incentive to pursue civil forfeiture cases. In South Carolina, once property is forfeited and auctioned off, police can keep 75 percent of the proceeds, while prosecutors can take 20 percent.

“Civil forfeiture is one of the greatest threats to private property and civil liberties in the nation today,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “If enacted, South Carolina’s forfeiture laws would be second only to New Mexico in safeguarding the constitutional rights of its residents. It’s encouraging to see so many lawmakers, Democrat and Republican alike, come together to defend due process.”

Sponsored by Reps. Alan Clemmons, Gilda Cobb-Hunter, and more than 70 cosponsors, the bill (H. 3968) would:

  • End civil forfeiture and replace it with criminal forfeiture;
  • Redirect forfeiture proceeds to the state general fund, ending the incentive to police for profit;
  • Require a criminal conviction to forfeit property;
  • Restore the presumption of innocence by shifting the burden of proof from innocent, third-party owners onto the state;
  • Guarantee the right to challenge a seizure’s validity in a pretrial hearing; and
  • Create a new proportionality hearing to challenge forfeitures as “unconstitutionally excessive.” The U.S. Supreme Court is currently considering a civil forfeiture case, Timbs v. Indiana, that could apply the Eighth Amendment’s Excessive Fines Clause to the states.

Critically, H. 3968 would also close a forfeiture loophole that has long circumvented state reform efforts. Through a federal program called “equitable sharing,” state and local police and prosecutors collaborate with a federal agency or joint task force, forfeit property under federal law, and receive up to 80 percent of the proceeds, even if this would do an end-run around state law. For instance, in North Carolina, between 2000 and 2013, law enforcement agencies collected over $200 million in federal forfeiture funds from equitable sharing, even though the Tarheel State doesn’t permit civil forfeiture. During that same period, South Carolina received nearly $75 million in equitable-sharing proceeds, according to the Institute for Justice.

“Closing the equitable-sharing loophole would preserve South Carolina’s sovereignty from federal overreach and ensure that state forfeiture cases are litigated under state law,” McGrath added. “South Carolina agencies could still cooperate with the federal government, but the reform would wisely limit that collaboration to major cases.”

The sweeping reform bill was spurred in part by The Greenville News and Anderson Independent Mail, which thoroughly reported on South Carolina’s civil forfeiture practices in a multi-part investigation. According to their reporting, South Carolina law enforcement seized more than $17 million between 2014 to 2016. In nearly 40 percent of cases, the owner was never convicted of a crime. And more than half of all cases involved property valued at under $1,000.

South Carolina is poised to join a growing reform movement. Since 2014, 29 states have tightened their forfeiture laws, while 15 other states are currently considering reforms.

Driver’s License Revocation Law Drives Tennesseans Into an Irrational Cycle of Debt and Punishment

The state of Tennessee revokes the driver’s license of any person who fails to pay fines, costs, and litigation taxes associated with a criminal conviction for a year or more. It does this even when the defendant is too poor to pay. The U.S. District Court for the Middle District of Tennessee struck down the law as violating the U.S. Constitution’s guarantee of due process and equal protection. The Institute for Justice (IJ) and the Fines and Fees Justice Center (FFJC) filed a joint friend-of-the-court brief last week urging the 6th Circuit U.S. Court of Appeals to affirm that decision and find this irrational and harmful law unconstitutional.

The law at issue, Tennessee Code Annotated § 40-24-105(b), is one of dozens across the country that revokes or suspends a driver’s license to create an incentive to pay court fines. However, the law is irrational—the state is trying to get people to pay a debt they cannot pay by taking away their means of getting to work to earn the money to pay the debt. As IJ and FFJC point out in their brief, 86% of Americans drive to work and 93.4% of Tennesseans drive to work. Losing a driver’s license often means losing one’s job or losing the ability to get a new job. Quite simply, a driver’s license is a key factor in financial security.

“Laws like Tennessee’s are often a one-way ticket to deeper poverty for people who were already too poor to pay their court debt,” said Bill Maurer, a senior attorney with IJ. “Moreover, these policies harm other parts of drivers’ lives, like their ability to access medical and child care, get their education, or participate in religious and social activities. And Tennessee does all this even though there is no evidence that this policy achieves its goal of forcing payment.”

“Suspending driver’s licenses for unpaid court debt sanction people simply because they are poor, condemning them to a cycle of poverty and punishment few can escape,” said FFJC’s co-director, Lisa Foster. “It’s not fair, it’s not just, and it’s unconstitutional.”

“Tennessee’s law also harms other aspects of society,” said Andrew Ward, an attorney with IJ. “Driving is so important that people continue to do it even after they lose their licenses, which means that Tennessee is effectively encouraging them to break the law. Then the police devote their time and energy to arresting these drivers, consuming the limited resources of law enforcement, prosecutors, judges, and jails.”

“The courts should recognize that laws like Tennessee’s are so irrational, harmful, and counter-productive that they cannot be said to further any legitimate governmental interest,” said Maurer. “At best, they are arbitrary. At worst, they are the criminalization of poverty. It is high time the courts strike them down and legislatures repeal them.”

The case is Thomas v. Haslam, No. 18-5766. The 6th Circuit U.S. Court of Appeals will hear argument in the case sometime in the coming months.

IJ to FDA: Milk Doesn’t Have to Come From Cows to Be Called Milk

Late last week, the Institute for Justice (IJ) filed an official comment with the Food and Drug Administration (FDA) opposing the agency’s suggestion that non-dairy milks should be banned from using the word “milk” on their labels.

“If a consumer is confused about the source of a product labeled ‘almond milk,’ then he has bigger problems than being confused about which milk to buy,” said Justin Pearson, a senior attorney at IJ, which recently filed a lawsuit challenging the agency’s definition of skim milk. “The government does not have the power to change the dictionary. For centuries, consumers and producers have used the term ‘milk’ to mean much more than just milk from cows. Consumers are fully aware that almond, soy and cashew milk were not made by cows. The FDA’s proposed rule not only flies in the face of common sense, but it also violates the First Amendment, which protects food producers’ right to call something what it is.”

Facing pressure from the dairy industry, which has seen a 25% decline in dairy milk consumption, in 2018 the FDA announced that it was considering whether to issue new guidance prohibiting non-dairy milk producers from labeling their product “milk.” The announcement, which quickly came under intense fire, suggested that the FDA could require that any food labeled as “milk” must originate from a mammal’s mammary gland.

IJ’s comment points out that, under current Supreme Court precedent applying the First Amendment, “The government is not allowed to ban businesses from making truthful statements on their beverage labels, and the determination of whether something is truthful is whether it comports with the common understanding, even when it directly conflicts with the government’s regulatory definition.”

The comment further argues that the FDA’s suggested approach would, “confuse consumers, harm small businesses across the country and raise serious First Amendment concerns.”

The comment was written by IJ Senior Attorney Justin Pearson, who was the lead attorney in a lawsuit challenging Florida’s attempt to prevent a dairy farmer from labeling skim milk as “skim milk,” because she did not want to add artificial Vitamin D. The case resulted in a federal appellate court decision that enforcement of the milk standard of identity against additive-free skim milk violated the First Amendment. In that case, the standard had been used by the government to only allow skim milk to be called “skim milk” if vitamin additives had been injected into it.

The lack of consumer confusion over this issue has also been shown by federal courts’ repeated rejection of class-action lawsuits claiming consumers were confused by these terms. As one federal judge explained in dismissing a challenge to the term “soymilk,” “it is implausible that the use of the word ‘soymilk’ misleads any consumer into believing the product comes from a cow.”

“This is a solution in search of a problem,” Pearson continued. “The lobbyists for giant dairy companies have been requesting this for decades, and the FDA should go back to doing what it has always done before—rejecting it.”

Virginia Couple Scores First-Round Victory in First Amendment Fight

Arlington, Va. — Yesterday, federal magistrate judge Roderick C. Young recommended denying the State Council of Higher Education for Virginia’s (SCHEV’s) motion to dismiss Jon and Tracy McGlothian’s First Amendment challenge to Virginia’s prohibition on their teaching job skills without the agency’s permission, allowing their lawsuit to proceed.

“Jon and Tracy should not have to pay thousands of dollars and wade through endless red tape just so they can exercise their First Amendment right to teach,” said IJ Attorney Milad Emam. “We are pleased that their case will continue to move forward and hope that the court will free them to pass on what they’ve learned to individuals in their community.”

Jon and Tracy worked for a lifetime to build skills to become a certified project management professional (PMP) and experienced sewer, respectively. In 2015, their established business, the Mt. Olivet Group, LLC (TMOG), set out to teach people the skills they would need to advance in these fields. Though they could freely teach anyone these skills as a hobby, SCHEV prohibits them from teaching the general public if students want to use their classes to earn an honest living.

As a result, in July 2018, Jon and Tracy McGlothian teamed up with the Institute for Justice (IJ) to challenge this prohibition. As the lawsuit alleges, SCHEV would have no right to stop Jon and Tracy from publishing a book or posting an online video on project management or sewing and there is no constitutional basis for treating in-person instruction any differently.

The judge wrote that the McGlothians’ lawsuit could not be dismissed because the allegations in their complaint demonstrated that Virginia’s law applies only to classes on certain topics: “if a postsecondary school or a program at a postsecondary school is subject to SCHEVs certification requirements, it is because of the content of its speech.”

“What SCHEV is doing to us is not right,” said Jon McGlothian. “I wrote a book about project management and I don’t see why they should regulate me simply because I want to give the same information in a classroom.”

Judge Young’s decision recommends that the McGlothians’ lawsuit be allowed to proceed but that SCHEV be allowed to continue enforcing the law during the lawsuit. Both sides in the lawsuit will have the opportunity to file objections to Judge Young’s conclusions with the presiding district-court judge before the case continues.

Charleston Appeals Federal Decision Striking Down Tour Guide Licensing Law

Charleston, S.C.—Yesterday, attorneys for the City of Charleston appealed an August 2018 federal court ruling that struck down the city’s tour guide license. The licensing law was challenged by three would-be tour guides—Kimberly Billups, Michael Warfield and Michael Nolan—who joined with the Institute for Justice (IJ) in January of 2016 to file a lawsuit alleging that the law amounted to an unconstitutional license to speak. Due to the decision, Charleston has since stopped requiring guides to register with the city and take a test before providing tours.

“The First Amendment protects your right to speak for a living, whether you are a journalist, a comedian, or a tour guide,” said IJ Managing Attorney Arif Panju, who represents the plaintiffs. “The judge in this case correctly found that Charleston was infringing on that right despite having no real evidence in support of its decision to do so. We are delighted to have the chance to make these important arguments on appeal.”

Charleston’s appeal comes at the same time as the historic city of Williamsburg, Va. is moving to eliminate its own tour guide license, moving instead to a system of voluntary certification for guides. Williamsburg’s proposed ordinance references the Charleston decision noting that the requirement was found to be a violation of the First Amendment.

“Williamsburg is joining cities across the country, from Philadelphia to Savannah, in realizing that requiring people to get a special license before they talk about history raises enormous problems under the First Amendment,” said IJ Senior Attorney Robert McNamara. “We look forward to Charleston reaching the same conclusion, even if it takes another court ruling or two for it to get there.”

The Institute has challenged tour guide licenses as violations of the First Amendment all across the country, defeating licensing requirements in Philadelphia, Washington, D.C., and Savannah, Ga. In 2014, New Orleans’ similar license was upheld by the United States Court of Appeals for the Fifth Circuit, the only federal appeals court to uphold licensing requirements for tour guides.

Amicus Briefs Make Case For Newcomers & Against Cartels In U.S. Supreme Court Case

Among the Themes:

  • States may not discriminate against newcomers.
  • The U.S. Constitution has many provisions designed to prevent anticompetitive efforts like Tennessee’s.
  • Bottleneckers—like the Retailers Association—are self-serving institutions that use the government’s power to keep their prices high, thereby hurting consumers and would-be entrepreneurs alike.

Arlington, Va.—On Wednesday, January 16, 2019, the U.S. Supreme Court will hear Tennessee Wine and Spirits Retailers Association v. Blair, a case that will decide whether states may use their power on behalf of a private cartel to discriminate against newcomers and prevent those who are new to a state from earning an honest living. The case centers on Doug and Mary Ketchum, who moved from Utah to Tennessee so they could own and operate a mom-and-pop liquor store there. Doing so would enable them to meet their two main goals: earning a living and doing so in a way that gives them the flexible schedule they need to take care of their severely disabled daughter, Stacie.

According to Tennessee’s law, to qualify for a retail liquor license, one must be a resident of Tennessee for at least two years; and to renew the license, applicants are required to have 10 years of in-state residency. The law blatantly discriminates in favor of in-state residents and against newcomers who move to Tennessee. This is such a clear and egregious violation of the Ketchums’ constitutional rights that even the Tennessee Attorney General said the laws were unconstitutional. Twice. And two federal courts—a trial court and a court of appeals—agreed.

“All our clients want is to earn an honest living and to have the same right as any other resident of Tennessee to do so,” said Michael Bindas, a senior attorney with the Institute for Justice, which is representing the Ketchums. “As we explained in our respondent’s brief, a state may not discriminate against someone because they come from another state; once an American gains residency in any state, he or she may exercise all of the rights of any other resident of that state; the state cannot arbitrarily restrict those rights merely to protect in-state special interests, yet that is exactly what the Tennessee Wine and Spirits Retailers Association is demanding.”

In addition to the Institute for Justice’s brief filed on behalf of the Ketchums, whose two-person company, Affluere Investments, Inc., is a party in this case, a number of amicus (or “friend of the court”) briefs have also been filed by leading legal minds across the nation and across various disciplines. These include:

  • A group of distinguished law professors, among them Richard Epstein (New York University School of Law), Jim Ely (Vanderbilt University Law School) and Chris Green (University of Mississippi School of Law), who filed an amicus brief discussing the original public meaning of the Privileges or Immunities Clause. According to the brief, the Clause is fatal to Tennessee’s protectionist laws because it prohibits states from restricting constitutional rights of Americans based on duration of state residency. The brief is an extraordinary feat of historical research. It effectively marshals evidence to show that when the Privileges or Immunities Clause was enacted, there was a widespread understanding that it prohibited states from encroaching on any fundamental right of citizenship, including “the basic rights of mobility and free labor that the Reconstruction generation fought so nobly to secure.”
  • A group of highly acclaimed law and economics scholars, including Todd Zywicki (Scalia Law School at George Mason University) and Jerry Ellig (Mercatus Center), who filed an amicus brief explaining that Tennessee’s law is a protectionist measure that is a natural product of lobbying by special interests within a state. The problem with such a measure, these experts explain, is that it restricts competition in the state, with the ultimate harm falling on consumers, who end up paying higher prices.
  • Pacific Legal Foundation, a public interest law firm, filed an amicus brief that provides the Court with a holistic overview of every constitutional provision designed to ensure that states do not discriminate in favor of their own in-state residents and economic interests. These include the Commerce Clause, the Privileges and Immunities Clause of Article IV, and the Privileges or Immunities Clause of the Fourteenth Amendment.
  • The National Association of Wine Retailers—whose brief was penned by Paul Clement, one of this country’s leading S. Supreme Court advocates—also filed an amicus brief. It discusses the purpose and history of the Commerce Clause and how limiting the Clause’s protections to producers and not retailers, as the Association urges, would flip the Commerce Clause on its head.
  • And, finally, the Cato Institute filed its own amicus brief discussing how the power provided to the states by the Twenty-first Amendment is not unlimited and can run afoul of other Constitutional provisions, such as the Commerce Clause, which prohibits discrimination against out-of-state economic interests.

To underscore the self-serving nature of the Tennessee Wine and Spirits Retailers Association’s efforts, the Tennessee Attorney General’s office is not litigating this case. Instead, the Retailers Association has hired its own private counsel who will argue the case before the U.S. Supreme Court.

“The Tennessee Wine and Spirits Retailers Association is doing what all such bottleneckers do:  It is trying to use government power to create an artificial bottleneck that protects its members from competition, so they can rake in monopoly profits and not have to work as hard to compete,” said Institute for Justice Attorney Anya Bidwell. “But that is not what government power is supposed to be used for. The power of government should be used to protect the rights of the Ketchums, not to further the economic interests of private parties.”

IJ President Scott Bullock concluded, “A state’s ability to regulate alcohol sales under the Twenty-first Amendment is not unlimited; a state cannot, for example, discriminate against newly arrived residents and out-of-staters who want to lawfully sell alcohol in a state merely to protect in-state interests.”

Lawsuit Challenges SEC Gag Order and Book Ban

This press release and the lawsuit it announces are subject to a gag order imposed by the Securities and Exchange Commission (SEC) prohibiting us from telling you the story of ████████, an American entrepreneur who, as he tells it, was the victim of an overzealous government investigation. Although the SEC agreed to settle his case with no admission of wrongdoing, we cannot tell you his story—or even disclose his name—because, as part of the settlement, the SEC demanded that he agree to a gag order prohibiting him from ever discussing his case or even criticizing the agency’s handling of it.

Case Resources

After all was said and done, Mr. ██████ decided to write a book about his experience being at the center of an SEC investigation. It tells the story of how he believes he was the victim of egregious government overreach at the hands of overzealous officials: how he’d personally done nothing wrong, yet the government leveraged the threat of crippling fines and the prospect of years of costly litigation to extract a settlement from him where he ultimately admitted no wrongdoing. In particular, the book details how ████  ████████ █████ ███ ████ ██████ ████ ███████.████  ████████ █████ ███ ████ ██████ ████ ███████.

In 2018, the Cato Institute, a Washington, D.C.-based think tank with a long history of questioning the government’s use of its prosecutorial power to coerce factually innocent defendants into plea bargains, signed an agreement to publish his book. But publishing the book is actually illegal.

So, today, the Institute for Justice (IJ) has filed a lawsuit on behalf of the Cato Institute challenging the SEC’s use of unconstitutional gag orders to prevent parties to settlements from questioning or criticizing the agency. The lawsuit argues that doing so presents an unconstitutional condition in violation of the First Amendment.

“The government cannot strip Americans of their First Amendment rights and impose a gag order, just because it wants to evade public oversight or criticism,” said IJ Senior Attorney Robert McNamara. “The best way to determine if government agencies are overstepping their bounds is to have a public debate about it, which is exactly what the SEC is suppressing by unconstitutionally imposing gag orders.”

“I wrote the book because the SEC ████  ████████ █████ ███ ████ ██████ ████ ███████,” said ████████. “████  ████████ █████ ███ ████ ██████ ████ ███████████  ████████ █████ ███ ████ ██████ ████ ███████████  ████████ █████ ███ ████ ██████ ████ ███████████  ████████ █████ ███ ████ ██████ ████ ███████████  ████████ █████ ███ ████ ██████ ████ ███████.”

Mr. ████████ is not alone in his frustrations with the SEC’s gag order. In fact, since 1972 when the commission first adopted the gag order policy, it has been a non-negotiable term of settlement in hundreds of past cases, including, most recently, Elon Musk’s settlement with the commission.

To justify the policy, the commission explained that “it is important to avoid creating, or permitting to be created, an impression that a decree is being entered or a sanction imposed, when the conduct alleged did not, in fact, occur.” In other words, the SEC demands gag orders in order to prevent bad publicity about its enforcement activities. The SEC is now not alone in its use of non-negotiable gag orders. Following the SEC’s lead, both the Consumer Financial Protection Bureau and the Commodity Futures Trading Commission, as a well as a number of state agencies have also adopted similar policies.

Unlike criminal proceedings, the SEC’s settlement process is shrouded in secrecy. As Cato and others have argued, the commission’s use of so-called “neither admit nor deny” settlements allows the government to impose punishment without actually establishing that any law was broken. That’s led one federal judge to warn that there is an obvious opportunity for abuse. The result is a system where the press and the public hear only one side of the story: The SEC issues press releases detailing its allegations at the beginning of an enforcement action, and then it enters into settlements in which the accused is forced to promise never to dispute any of those allegations in public.

“It is vital for citizens of a democracy to know how their government operates, particularly when it accuses fellow citizens of wrongdoing,” said Cato Institute Vice President for Criminal Justice Clark Neily. “The SEC’s policy of demanding lifetime gag orders as a condition of settlement flouts the First Amendment and prevents publishers like the Cato Institute from educating the public about the true nature and behavior of government.”

“Nothing is more fundamental to the First Amendment than an American’s right to publish a book critical of the government,” said IJ Attorney Jaimie Cavanaugh. “The SEC shouldn’t be in charge of deciding who is allowed to criticize the SEC. The government cannot use the threat of ruinous prosecution to ward off criticism of its actions.”

New Jersey Appellate Court Curtails Eminent Domain Power

Arlington, Va.—In a decision with nationwide implications, the New Jersey Appellate Division yesterday (January 7, 2019) rejected the Borough of Glassboro’s attempt to condemn private property in service of an unspecified and undescribed “redevelopment plan,” holding that government officials cannot use their power to take property simply to engage in what the court called “land banking.” New Jersey’s redevelopment law allows condemnations for redevelopment only when the property is “necessary” to a redevelopment project, and yesterday’s ruling affirms that this means the government must meet real burdens before it forcibly acquires property.

This decision is a tremendous victory for property rights in New Jersey and nationwide,” explained Institute for Justice Senior Attorney Robert McNamara. “Increasingly, government officials are using the power of eminent domain to turn themselves into real estate speculators, seizing land in the hopes that some worthwhile investment will come along in the future. Yesterday’s ruling sends an unambiguous message that we should leave the speculating to speculators—not to government officials armed with tax dollars and the power of eminent domain.”

The Institute for Justice (IJ), the national law firm for liberty, filed an amicus brief and presented oral argument in the case, urging the court to clamp down on these sorts of unexplained and unexplainable takings. IJ represents property owners in eminent domain disputes nationwide, including fighting on behalf of Charlie Birnbaum, the New Jersey piano tuner whose high-profile fight to stop a state agency from condemning his longtime family home is now entering its fifth year.

IJ and Charlie won their fight in the trial court, which called the state’s efforts to condemn the home in service of an unspecified plan to support a casino that had closed years earlier a “manifest abuse of the eminent domain power.” But the state has appealed, and the case awaits a decision in the coming months.

“Yesterday’s decision bodes well for Charlie,” explained IJ Senior Attorney Dan Alban. “In both cases, the government’s position was essentially that there are no limits on their power to use eminent domain. Yesterday, the Appellate Division reaffirmed that those limits are both real and enforceable by the courts.”

“[A] condemning authority must do more than recite that a parcel it seeks to condemn has some unexplained necessity to [an] overall redevelopment area or [a] redevelopment plan,” wrote Judge Jack Sabatino, the presiding judge of the Appellate Division, in the court’s opinion. “The claim of necessity, if challenged, must be justified by a reasonable presentation of supporting proof. It will not suffice for the condemning authority to just ‘say so.’”

The victorious property owners in the case, which is Borough of Glassboro v. Grossman, are represented by the New Jersey eminent domain law firm Potter & Dickson, who are also local counsel in Charlie Birnbaum’s case.

“This ruling is an important step towards reining in the resurgent tide of eminent domain abuse in New Jersey and other states nationwide,” concluded McNamara. “IJ is committed to protecting property owners across the country, and we look forward to many similar victories to come.”

Ohio Governor Signs Landmark Reform of Occupational Licenses

Ohio Gov. John Kasich signed a sweeping overhaul of Ohio’s occupational licensing laws on Friday, which govern nearly one-fifth of the state’s workforce. By limiting the ability of otherwise qualified people to work in a given field, licensing laws limit competition and drive up prices for consumers. One study published by the Institute for Justice found that licensing costs the Buckeye State nearly 68,000 fewer jobs and over $6 billion.

“Far too many workers are spending their time earning a license when they should be earning a living,” said Lee McGrath, senior legislative counsel at the Institute for Justice. “Thanks to Gov. Kasich’s signature, this licensing reform has the potential to create more economic opportunity and save Ohioans billions of dollars.”

Sponsored by Sen. Rob McColley and Rep. Ron Hood, the new law (SB 255) mandates that all licensing boards expire every six years unless the legislature explicitly reauthorizes them. Before its expiration date, a board will have to demonstrate “a public need for its continued existence” before legislative standing committees. In turn, those standing committees may consider over two dozen criteria in its decision, including if the board is “necessary to protect the health, safety, or welfare of the public” and if its regulations are the “least restrictive” form possible. These “sunset” reviews will evaluate one-third of Ohio’s boards every two years.

Meanwhile, the Legislative Service Commission will issue a report on each bill introduced in the House or Senate that either proposes a new occupational regulation or would “substantially change” an existing one. As with the sunset reviews, the Commission’s “sunrise” reviews will also consider a regulation’s cost-effectiveness, how other states regulate the occupation at hand, and rely on a “least restrictive” framework for analyzing regulations.

“Regulation does not have to be a binary choice between licensing and no licensing,” McGrath explained. “A least restrictive framework grants policymakers a wider array of regulatory options including private certification, inspections, bonding, and registration. Occupational licensing should only be a policy of last resort.”

In addition, SB 255 exempts makeup artists from the state’s cosmetology license, which takes at least 1,500 hours of coursework. The law also lets applicants petition a licensing board to see if their criminal history would be disqualifying, before they complete any required training.

Ohio’s reform follows Nebraska, Oklahoma, and Louisiana, which all enacted sunset reviews last year, and Colorado and Vermont, widely regarded as national leaders for their sunrise reviews.

Florida Supreme Court Ends Challenge to Scholarship Programs

Tallahassee, Fla.—In a decision issued today, the Florida Supreme Court ended a years-long lawsuit that included a challenge to the constitutionality of the Florida Tax Credit (FTC) Scholarship and the McKay Scholarship Program for Students with Disabilities. The Institute for Justice (IJ) defended the programs on behalf of parents of scholarships students.

“Today, after years of uncertainty, parents of scholarship students in Florida can breathe a sigh of relief,” said IJ Attorney Ari Bargil, who argued in front of the Florida Supreme Court in the case. “The Court held that both programs were safe from constitutional attack because the challengers had not adequately preserved the arguments throughout the litigation.”

As a result of this decision, over 130,000 students in Florida are able to remain in the schools of their choice. “For years, this litigation was a cloud hanging over the educational futures of Florida students. With today’s decision, those children are free to continue attending the schools that their parents—and not the state—deem best-suited to their needs,” said IJ Senior Attorney Tim Keller, who was lead counsel on the case.

The parents represented by IJ were relieved to hear the news that their children would not have to change schools. “I am overjoyed that the Florida Supreme Court left these programs intact,” said Kenia Palacios, whose daughter is an FTC Scholarship recipient. “If the outcome had gone the other way, I don’t know what I would have done.”

The decision was equally important to Deaudrice Kitchen, whose children also use the FTC Program. “Decisions about how to educate our children should be left to parents, not the state,” said Deaundrice. “I am happy that I remain able to make basic decisions about how my children are educated.”

Judge Denies Fort Pierce’s Motion to Dismiss Food Trucks’ Lawsuit

Today, Florida food truck owners are one step closer to vindicating their right to economic liberty after a judge denied the city of Fort Pierce’s motion to dismiss a challenge to its law requiring that food trucks be over 500 feet from any restaurant to legally operate.

This ruling by Judge Lawrence Mirman of the 19th Judicial Circuit in and for St. Lucie County, Florida, is part of a legal challenge launched by food truck owners Benny Diaz and Brian Peffer alongside the Institute for Justice (IJ) in early December. Diaz and Peffer allege that Fort Pierce’s law banning food trucks from competing with restaurants violates their right to earn an honest living and makes it nearly impossible to do business in the city.

“The Florida Constitution prohibits the government from picking winners and losers in the marketplace. That choice belongs to customers,” IJ Florida Office Managing  Attorney Justin Pearson said. “Fort Pierce has taken that choice away from its citizens, and we look forward to vindicating the constitutional rights of our clients and all other food truck owners to offer those choices.”

When the city passed the ban in 2014, it admitted that the reason for the ban was to protect restaurants from competition. Then-Commissioner Edward Becht said the ban existed because allowing food trucks to compete for business would “hurt the brick-and-mortar businesses.”

Benny Diaz, owner of the Taco Trap food truck, welcomed the denial of the city’s motion to dismiss his lawsuit.

“I hope that the court soon realizes that there’s no good reason to stop me from selling food subject to the same regulations as any restaurant in the area,” Diaz said.

Brian Peffer, the owner of the Creative Chef on Wheels food truck, said that he has received even more requests from future customers to try his food since the lawsuit launched, adding, “I can’t wait until I can serve the people of Fort Pierce.”

In communities around Florida and across the country, consumers have had access to food trucks for years. In all of those places, restaurants continue to thrive alongside food trucks, with many finding that food trucks actually help their businesses by bringing more customers into the area.

Banning food trucks from operating where the people are does nothing to protect consumers. All it does is protect politically connected restaurant owners from competition,” said Dane Stuhlsatz, a constitutional law fellow at IJ who is also an attorney on the case.

IJ fights for food truck and other vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San Antonio, El Paso, Carolina Beach, North Carolina, and Louisville, Kentucky, have successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ will be arguing against unconstitutional food truck regulations before the Illinois Supreme Court this month. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wisconsin.

Oregon Engineer Wins Traffic-Light Timing Lawsuit

Arlington, Va.—On December 28, 2018, Magistrate Judge Stacie F. Beckerman of the U.S. District Court for the District of Oregon entered a judgment largely ruling for Mats Järlström in his First Amendment lawsuit against Oregon’s engineering board. Mats sued the board in 2017, asserting that Oregon’s engineering-licensing law violated his First Amendment rights by banning him from speaking publicly about the math behind traffic lights and from describing himself, truthfully, as an “engineer.” The federal court entered a permanent injunction securing Mats’s rights both to speak freely about his traffic-light theories and to call himself an “engineer.” Citing the engineering board’s “history of overzealous enforcement actions,” the court also invalidated Oregon’s restriction on the title “engineer” as “substantially overbroad in violation of the First Amendment.”

Read the Opinion and Order

Mats’s interest in traffic-light timing was sparked in 2013, when his wife received a red-light-camera ticket in their hometown of Beaverton, Oregon. He began studying, writing and speaking publicly about how the standard mathematical formula for timing yellow lights should be tweaked. In his view, the standard formula is incomplete because it fails to capture the behavior of drivers making right turns. And after developing a modified formula—and even corresponding with one of the formula’s original creators—Mats started discussing his theory publicly.

People wanted to hear Mats’s ideas—traffic engineers expressed interest, local news covered his story and he presented his research at a national conference of the Institute of Transportation Engineers.

But things came to a screeching halt when Oregon’s engineering board got wind of Mats’s actions.

After a two-year investigation, the board fined Mats $500 and said that he could not talk about traffic lights in public until he obtained a state-issued professional-engineer license. If Mats continued to “critique” traffic lights, he would face thousands of dollars in fines and up to one year in jail for the unlicensed practice of engineering. The board also said that Mats could not call himself an “engineer,” even though he has a degree in electrical engineering and decades of engineering experience. Like most engineers in Oregon, Mats is not a state-licensed “professional engineer,” and state law provided that only licensed professional engineers could legally use the title “engineer.”

“Last week’s ruling announces important protections, not just for Mats’s First Amendment rights, but for the First Amendment rights of thousands of engineers in Oregon,” said Sam Gedge, an attorney at the Institute for Justice (IJ), which represents Mats in the lawsuit. “Not only is Mats free to continue to share his theories, but thousands of Oregon engineers are now free to describe themselves—truthfully—as ‘engineers,’ without fear of government punishment. For years, Oregon’s engineering board has operated as if the First Amendment didn’t apply to it. As the court’s ruling confirms, that could not be more wrong.”

Under the law invalidated last week, Oregon-licensed professional engineers alone could legally describe themselves using the word “engineer.” And in recent years, the state’s engineering board enforced that law relentlessly. As last week’s ruling noted, the board “repeatedly targeted individuals for using the title ‘engineer’” in many different contexts, “including core political speech such as campaigning for public office and advocacy against a local ballot initiative.” In candid moments, the board even asserted that they could punish the hundreds of Intel employees who call themselves “engineers” without having a board-issued license.

Last week’s ruling held that the state cannot regulate speech in this way. “Courts have long recognized that the term ‘engineer’ has a generic meaning separate from ‘professional engineer,’” the court reasoned, and the word engineer “cannot become inherently misleading simply because a state deems it so.”

“The court’s ruling confirms what should already be obvious,” said IJ Senior Attorney Wesley Hottot, who also represents Mats. “In a free society, government agencies do not have the authority to rewrite the dictionary.Oregon cannot declare the word ‘engineer’ off-limits to the thousands of Oregonians who, like Mats, are engineers.”

“This case has always been about more than just me,” Mats said, “and I’m thrilled that the court has put a stop to some of the engineering board’s worst abuses. Oregonians need to be free to share ideas and free to say who they are. Being an engineer is a big part of my identity, as it is for many people. Thousands of Oregonians are ‘engineers’—even though we have no reason to be licensed as ‘professional engineers’—and we are now free to use the word ‘engineer’ to describe ourselves.”

Mississippi Technology Startup Takes First Amendment Case to Fifth Circuit

Arlington, Va.— Thursday afternoon, Judge Louis Guirola, Jr., of the District Court for the Southern District of Mississippi, dismissed a lawsuit brought by Vizaline, LLP, a digital geospatial and visualization technology startup, that sought to strike down a Mississippi surveyor licensing law that the state board of surveyors is unconstitutionally trying to use to shut down Vizaline. The Institute for Justice (IJ) announced today that it will be taking the cutting-edge First Amendment lawsuit up to the 5th U.S. Circuit Court of Appeals, following the lower court ruling which allowed the government, contrary to recent U.S. Supreme Court precedent, “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”

“Our technology uses legal property descriptions to draw lines on satellite photos to provide a cost-effective way for small community banks to ‘see’ their property portfolios,” explained Vizaline’s co-founder Brent Melton, a 42-year veteran of community banking. “This allows banks to reduce their risks in real-estate loans and better serve their customers. Our customers are very happy with our services and I just want to protect our right to provide our customers with valuable information to help their businesses.”

In June 2018, the U.S. Supreme Court issued a major ruling in NIFLA v. Becerra, which ruled that “professional speech”—speech that was subject to licensing requirements—is not exempt from the protection of the First Amendment.

In the decision yesterday, the federal district court ruled that, though the Mississippi survey license regulations prohibit Vizaline from using publicly available data to draw its maps, these licensing restrictions “do not trigger First Amendment scrutiny.”

“Using public data to draw lines on satellite photos is not surveying it’s free speech,” said IJ Senior Attorney Paul Avelar. “But the board and now the court seem to think that the First Amendment does not apply to speech regulated by an occupational licensing law. The Supreme Court just rejected that argument, but the lower courts aren’t following the ruling. That is why we are appealing this decision.”

Before and since the NIFLA decision, IJ has been litigating to defend the free speech rights of professionals across the country. IJ’s experience with occupational speech cases was the basis for its amicus brief in NIFLA that predicted the majority decision in the case. Currently, IJ is litigating cases in Texas, Virginia, California, Florida, and Oregon where government is trying to use licensing laws to stop ordinary Americans from speaking.

“Occupational licensing laws—especially in the hands of self-interested regulatory boards—threaten technological innovation and the rights to free speech and to earn an honest living,” said IJ Attorney Kirby Thomas West. “The government should step out of the way and allow an innovative business like Vizaline to continue serving its customers.”

Indio Agrees to Settle Prosecution-Fees Lawsuit; Will Return All Fees to Residents

Today the city of Indio, California, has agreed to settle a class action lawsuit brought by the Institute for Justice (IJ) on behalf of Ramona Morales and other Riverside County residents forced to pay outrageously high attorney’s fees to a law firm called Silver & Wright. The city had hired the firm to enforce its municipal codes. As part of the settlement, Indio has agreed to return all prosecution fees that Silver & Wright collected and not oppose IJ in its efforts to have residents’ underlying municipal code convictions vacated in court.

Unlike Indio, Coachella, Calif., which also contracted with Silver & Wright, remains a party to the lawsuit, as does the firm in its capacity as Coachella’s official city prosecutor.

“It should not have taken a class action lawsuit to expose the injustice of the cities’ and Silver & Wright’s scheme to charge homeowners outrageously high fees for minor housing code violations,” said Jeffrey Redfern, an attorney at the Institute for Justice, which represents the plaintiffs. “But it did. Thankfully, immediately after we filed suit, Indio recognized that these prosecution fees were the wrong way to enforce the law and obtain compliance. They swiftly put an end to the ‘cost recovery’ practices promoted by Silver & Wright. And now, with this settlement, they have also agreed to reimburse anyone caught up in this scheme.  We appreciate Indio re-examining its policy early in the litigation to resolve this issue.”

Three months after IJ filed its lawsuit in February 2018, the California legislature almost unanimously passed A.B. 2495, which prohibits cities from charging residents for prosecution fees in criminal code enforcement cases. Yet even though the practice is now outlawed going forward, IJ’s lawsuit against Coachella will proceed until the city agrees, or a judge orders, that the city reimburse those fees it already imposed against the plaintiffs and other residents.

The issues started in 2014, when Silver & Wright began to approach cities with an offer that seemed almost too good to be true: “cost neutral or even revenue producing” housing code prosecution services, as its promotional material stated. But Silver & Wright’s scheme was too good to be true, as it required that the cities amend their code to allow Silver & Wright to collect attorney’s fees for anyone who pleaded, or was found, guilty. That led to Silver & Wright billing residents thousands if not tens of thousands of dollars for mundane code enforcement matters that could have otherwise been resolved with a simple phone call, or, at worst, a simple ticket without drawing up criminal charges. It also led to their city clients, such as Indio, becoming entangled in unexpected litigation because of their actions toward city residents.

One of those residents was Ramona Morales, an Indio homeowner who was billed nearly $6,000 by Silver & Wright after she agreed to pay a $225 fine for her tenant’s illegal backyard chickens. Ramona, who works as a housekeeper, was flabbergasted and agreed to join IJ’s lawsuit as the class representative.
The lawsuit has already survived multiple motions to dismiss, and we anticipate it moving forward in the courts in the new year.

U.S. Supreme Court Case Takes On Anticompetitive Liquor Laws That Keep Out Newcomers

Arlington, Va.—Doug and Mary Ketchum moved to Memphis in 2016 with the dream of buying a business that would give them more time with their 32-year-old daughter, Stacie, who has been severely handicapped since an early age, and who doesn’t have many years left to live, according to their doctor.

But, thanks to the actions of a politically powerful private cartel, the Ketchums’ dream has turned into a nightmare, and they now struggle to find time to spend with each other, let alone with their daughter.

A legal fight centered on whether the Ketchums may own and operate their Memphis business—a liquor store—is now the subject of a U.S. Supreme Court case that will be argued on January 16, 2019. The case, Tennessee Wine and Spirits Retailers Association v. Blair, examines Tennessee’s law that requires someone to reside in the state for two years before they can receive a liquor license and 10 years before that license can be renewed. The case is expected to have major implications for laws that discriminate in favor of in-state special interests and against newcomers to a state, like the Ketchums.

Yesterday, the Institute for Justice (IJ), which represents the Ketchums, filed its merits brief with the U.S. Supreme Court documenting how enforcing the law defended by the Tennessee liquor cartel would violate the constitutional rights of Doug and Mary Ketchum.

The Ketchums had no choice but to move out of Utah. Their daughter, Stacie, suffers from cerebral palsy and one of her lungs collapsed when a temperature inversion in the Salt Lake valley severely worsened the air quality there. To save Stacie’s life, they had to find another place to live.

The Ketchums moved to Tennessee because the region offered cleaner air and a better quality of life for Stacie, and they learned of a rare opportunity to purchase an historic liquor store called Kimbrough Wines & Spirits. The store was frequented by legends like Johnny Cash, who used to record in Sun Studio, just a mile-and-a-half down the road. Becoming business owners would offer the Ketchums the flexibility necessary to spend as much time as they need to care for their daughter during the precious remaining years they have left together. In addition, it would supply them with a stable income to provide for themselves and their family.

Two months after they applied for the retail liquor license with the Tennessee Alcoholic Beverage Commission, the Ketchums left Utah behind and moved to Tennessee.  The Tennessee Alcoholic Beverage Commission routinely granted retail liquor licenses to applicants, even if they were from out of state. True, the laws on the books prohibited anyone who has not resided in Tennessee for the period of two years from getting a license, and anyone who hasn’t resided there for the period of 10 years from renewing it. But the laws were so patently unconstitutional that even the Office of the Tennessee Attorney General admitted as much in two opinions it issued on the subject. Relying on those opinions, the Commission’s staff recommended that the Ketchums’ application be granted.

But then the Tennessee Wine & Spirits Retailers Association got involved.

The Tennessee Wine & Spirits Retailers Association is a special interest group that exists to protect cartel members from competition, including keeping newcomers to the state from selling alcohol. It threatened to sue the Commission if the Ketchums’ application—and an application of one other candidate, Total Wine—were granted. To prevent this from happening, the Commissioner himself went to court, asking it to resolve the issue of whether the durational residency requirements were constitutional. In an ironic twist, it is the Tennessee Wine & Spirits Retailers Association—and not the State of Tennessee—that is now defending this law before the U.S. Supreme Court. Clearly demonstrating how in-state liquor interests are seeking to preserve their cartel, the Retailers Association has hired its own private outside counsel —rather than the Tennessee Attorney General—to defend its position before the U.S. Supreme Court. The Attorney General never so much as filed a brief with the High Court to defend this law, which his office has twice recognized is unconstitutional.

Doug Ketchum said, “If you want to understand how powerful the liquor retailers lobby is here in Tennessee, consider this:  I can run for Governor in Tennessee after residing here for only seven years, but I can’t legally renew my liquor license until I’ve lived here for ten years. That’s ridiculous. It is a purely anticompetitive power play by a cartel designed to keep out newcomers.”

Mary Ketchum said, “We moved to Tennessee to own the liquor store, which would give us more time with Stacie, and so Doug and I could be there for her 24/7. But because of this legal fight brought on by the retail liquor cartel, Doug has had to take on a second job. The only time I get to see him is when we work together at the store on Sundays. We moved to Tennessee so we could have more time with Stacie, but now we have even less time together. It is exhausting.”

Institute for Justice Senior Attorney Michael Bindas summarized the legal arguments at the heart of IJ’s defense of the Ketchums: “A state may not discriminate against someone because they come from another state; once an American gains residency in any state, he or she may exercise all of the rights of any other resident of that state. The state cannot arbitrarily restrict those rights merely to protect in-state special interests, yet that is exactly what the Tennessee Wine & Spirits Retailers Association is demanding. Americans have a fundamental right as citizens of this nation to earn an honest living in any state regardless of their state of origin. Being able to move freely from state to state is not only constitutionally enshrined in the Fourteenth Amendment, it has had the practical benefit of making America one of the most dynamic societies and marketplaces in the world thanks to our freedom of movement and commerce.”

There is a new name for private special interest organizations like the Tennessee Wine & Spirits Retailers Association that rent out government power and then use that power to keep out competition, thus maximizing their own profits. These private interests are called bottleneckers.

“The Tennessee Wine & Spirits Retailers Association is doing what all such bottleneckers do:  it is trying to use government power to create an artificial bottleneck that protects its members from competition, so they can rake in monopoly profits and not have to work as hard to compete,” said Institute for Justice Attorney Anya Bidwell. “But that is not what government power is supposed to be used for. The power of government should be used to protect the rights of the Ketchums, not the special private interests of bottleneckers.”

IJ President Scott Bullock concluded, “A state’s ability to regulate alcohol sales under the Twenty-First Amendment is not unlimited; a state cannot, for example, discriminate against newly arrived residents and out-of-staters who want to lawfully sell alcohol in a state merely to protect in-state interests.”

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information on the case is available at:  https://ij.org/case/tennessee-wine-and-spirits-retailers-association-v-blair/.]

Montana Supreme Court Strikes Down Scholarship Tax Credit Program

Helena, Mont.—Today, by a 5 to 2 vote, the Montana State Supreme Court reversed a lower court to declare that the state’s scholarship tax credit program is unconstitutional. This marks the first time that a state supreme court has struck down such a program.

The program provides scholarships to needy families to attend the private school of their choice. The Montana Supreme Court reasoned that because families may choose religious schools, the program violates the state Constitution. The Institute for Justice (IJ) and three Montana families are fighting to protect the program and will appeal the decision to the U.S. Supreme Court.

One of the Montana families in the lawsuit is the Espinozas. Kendra Espinoza is a single mom who struggles to pay tuition for her two daughters to attend a Christian school. Now because of the Supreme Court ruling, Kendra’s daughters will be unable to receive scholarships.

“This is not the result we expected from the state Supreme Court. The Court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships,” said Kendra. “For the benefit of families across the state, and the nation, we will appeal to the U.S. Supreme Court to right this wrong.”

The educational choice program was enacted in May 2015 after the Montana Legislature decided that all parents should have the opportunity to choose their children’s schools, regardless of the size of their bank account. The program provides a modest tax credit (up to $150 annually) to individuals and businesses that donate to private scholarship organizations. Those scholarship organizations can then use the donations to give scholarships to families who want to send their children to private schools—regardless of whether they are religious or nonreligious.

Shortly after the program was enacted, however, the Department of Revenue enacted a rule preventing families attending religious schools from receiving scholarships. The Department claimed it had the authority to enact its rule under the Montana Constitution Article X, Section 6(1), which prevents the state from appropriating public funds to aid religious schools. But, as the families argued, the scholarships aid children, not schools. In addition, courts across the country have been clear that tax-credit-eligible donations are not public funds. Instead, tax credits merely allow taxpayers to keep more of their own money.

The Montana Supreme Court disagreed. It decided that the tax-credited donations were public funds, and that these funds could not be used to help children attend religious schools. The Court also found that since the Legislature had intended both religious and nonreligious students to benefit from the program, the entire program was invalid. As a result, no Montana child will be able to receive scholarships under the ruling.

“This decision takes scholarships away from needy families across the state,” said Erica Smith, an IJ attorney. “Not only is the Court misinterpreting the Montana Constitution, but it is ignoring important provisions in the federal Constitution. The U.S. Supreme Court has been clear that the First Amendment of the U.S. Constitution prevents the government from discriminating against religious individuals in awarding public benefits. We plan to immediately appeal.”

The U.S. Supreme Court has jurisdiction to hear appeals from state supreme courts when the case involves a question of federal constitutional law.

Currently, 28 states and the District of Columbia have school choice programs. All of these programs allow parents to freely choose the school of their choice, regardless of whether it is religious or secular. IJ has successfully defended numerous school choice programs, including twice at the U.S. Supreme Court. It currently has school choice cases pending in Washington, Maine and Florida.

Denied the Right to Work, Pennsylvania Women Sue to End Unconstitutional Licensing Law

PHILADELPHIA—Two Pennsylvania women denied licenses by the Pennsylvania Cosmetology Board are suing in the Commonwealth Court to end an unconstitutional requirement that stands in the way of careers in cosmetology. Courtney Haveman and Amanda Spillane, who live near Philadelphia, struggled with substance abuse, but have been sober and stayed out of trouble for years. The Board, citing a “good moral character” requirement, used their past legal problems to deny them the right to work even after each spent hundreds of hours in cosmetology school.

Courtney and Amanda are teaming up with the Institute for Justice (IJ) to end this unreasonable and arbitrary provision. Their past offenses have nothing to do with their ability to work as estheticians—cosmetologists who focus on the beauty and care of the face. While cosmetologists are subject to a good character test, Pennsylvania barber licenses lack the same requirement. If you don’t need good character to cut hair, why would you need it to tweeze one?

“No one should be denied the right to work because of irrelevant criminal convictions,” said IJ attorney Andrew Ward. “Courtney and Amanda made mistakes, but they’ve turned their lives around. This law doesn’t protect the public, it just makes it harder for individuals to pull themselves up and provide for their families. That’s unconstitutional.”

While the Pennsylvania Cosmetology Board does grant licenses to some applicants with criminal records, Courtney and Amanda are just two among dozens of women denied the right to work by the good character requirement in recent years. License applicants must undergo the required training before they are judged on their character and it is likely that, just like Courtney and Amanda, many applicants are not aware of the character requirement until they are denied a license.

“Working in a salon looked like a good way to help support myself and leave my past problems behind,” said Courtney Haveman. “I had a job offer waiting for me, completed six months of training and was ready to work. I’m fighting against this requirement not only for myself, but also for people like me who had a tough past and deserve a second chance.”

Pennsylvania requires good moral character for a number of jobs, ranging from landscape architect to poultry technician. Such laws limiting people previously convicted of a crime are known as “collateral consequences.” Nationwide, there are approximately 30,000 such laws related to employment alone, and they are found at every level of government: local, state and federal. With approximately 1 in 5 Americans required to hold a license to legally work, there are many common occupations from which ex-offenders are excluded, making it that much harder for them to find a job and stay out of trouble.

“There is a growing consensus that these laws are bad for ex-offenders and bad for society,” said IJ attorney Erica Smith. “People deserve a second chance, and when you deny it to them, they are more likely to wind up committing more crimes. It is no surprise that states with harsher licensing laws have higher rates of recidivism. We need to make it easier for people to get their lives back on track, not harder.”

Class Action Lawsuit Against NYC’s No-Fault Evictions Machine Can Proceed

Today, the 2nd Circuit Court of Appeals ruled that the U.S. District Court for the Southern District of New York improperly dismissed a class-action lawsuit challenging New York City’s extraction of unconstitutional settlement agreements. Through its no-fault eviction program, the NYPD threatened to evict businesses and residents when somebody—even a total stranger—committed a crime at or near one’s property. Once eviction proceedings were underway, New York City’s prosecutors bullied these businesses and residents into signing away their constitutional rights in order to avoid eviction.

Laundromat owner Sung Cho learned about these practices the hard way. After undercover police officers came to Sung’s laundromat and offered to sell stolen electronics to his customers, the NYPD threatened to evict him from his business. The city said it would let him stay if he agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow the NYPD to impose sanctions for alleged criminal offenses even without any opportunity for a hearing before a judge. Faced with eviction, he reluctantly settled on the city’s terms.

After Cho, along with David Diaz and Jameelah El-Shabazz, teamed up with the Institute for Justice (IJ) to challenge settlements like these, the city overhauled its no-fault eviction practices going forward. But New Yorkers like Cho are still bound by unconstitutional settlements that the city extracted in the past.

The District Court ruled in January that, under the so-called Rooker-Feldman doctrine, the court did not have jurisdiction over IJ’s lawsuit. The Court of Appeals overruled the District Court, holding that the case did not “entail the evil Rooker-Feldman was designed to prevent.”

“We are glad that the Court of Appeals ruled that this lawsuit can proceed,” IJ Senior Attorney Darpana Sheth said. “The city needs to deliver justice to the hundreds of New Yorkers stripped of their constitutional rights.”

While Sung bemoaned the fact that he is still subject to an unconstitutional settlement, he is also happy to see his lawsuit proceed.

“New York City is still treating me like a criminal when I did nothing wrong. I’m hoping that the courts can still make this right,” Sung said.

The Institute for Justice is a non-profit, public interest law firm that fights for property rights nationwide. In addition to this case, it fights other property rights abuses including civil forfeiture and eminent domain abuse. In a class action against the City of Philadelphia and its law-enforcement agencies, IJ ended a similar practice by the Philadelphia District Attorney’s Office in coercing property owners to waive constitutional rights.

Federal Judge Affirms Decision Protecting First Amendment Rights of Tour Guides

Charleston, S.C.—Judge David Norton of the U.S. District Court for the District of South Carolina today affirmed his August 2018 decision protecting the First Amendment rights of Charleston tour guides. The city’s tour guide licensing law was challenged by three would-be tour guides—Kimberly Billups, Michael Warfield and Michael Nolan—who joined with the Institute for Justice (IJ) in January of 2016 to file a lawsuit alleging that the law amounted to an unconstitutional license to speak in violation of the First Amendment.

In an unusual legal request filed in September, attorneys for the City of Charleston asked the court to reconsider its ruling. Judge Norton, in his order denying the request, noted that the City’s motion “is nothing more than a request that this court change its mind, which this court declines to do,” further stating that “the City has presented no newly discovered evidence nor has it uncovered any manifest errors of law.”

“The First Amendment protects your right to speak for a living, whether you’re a journalist, a stand-up comedian or a tour guide,” said IJ attorney Arif Panju, who represents the plaintiffs. “That principle was vindicated following a weeklong trial, it was vindicated once again today, and we look forward to yet more victories for occupational speech in the months and years to come.”

Food Truck Owners Fight For Right To Do Business In Fort Pierce, Fla.

As the owner of the Taco Trap food truck, Benny Diaz has reaped the rewards of hard work and an entrepreneurial spirit. He started out making his unique taco creations from his grandmother’s recipes at a restaurant in Port St. Lucie, Florida. From there, patrons encouraged him to start a business of his own. Benny’s tacos garner rave reviews across the board, and nearby Fort Pierce’s residents keep inviting him to come to their town. But accepting those invitations would require Diaz to break the law.

Why? Because Benny sells his tacos from a food truck instead of a restaurant, and in 2014 Fort Pierce enacted a ban on food trucks operating within 500 feet of any restaurant. That restriction is one of the most stringent proximity bans in the country and makes it almost impossible for Benny and other food truck owners to do business.

Fortunately, the Florida Constitution protects the right to earn an honest living free from unreasonable government interference, which is why Diaz and Brian Peffer, the owner of the Creative Chef on Wheels food truck, are teaming up with the Institute for Justice (IJ) to challenge Fort Pierce’s unconstitutional law.

The law’s sole purpose is to protect existing restaurants from competition, a fact the city repeatedly mentioned while enacting the ban; in 2014 then-Commissioner Edward Becht said that the 500-foot ban exists because allowing food trucks to compete for business would “hurt the brick-and-mortar businesses.”

That does not pass constitutional muster in the state of Florida, IJ Florida Office Managing  Attorney Justin Pearson said.

“Fort Pierce’s 500-foot ban is one of the most restrictive in the nation, and it exists for only one reason—to prevent food trucks from competing with restaurants,” Pearson said. “Fort Pierce is not allowed to stifle food trucks just to enrich restaurants. The government does not get to pick winners and losers in the marketplace. That choice belongs to customers.”

“We’re not looking for special treatment. I just want to be able to sell tacos legally like any restaurant can,” Benny said.

Enforcement of the 500-foot ban is severe. To serve customers, food truck owners must pick one specific location and pay a fee that is only valid for that one location. Before the permit is issued, the location is visited by code enforcement officers who personally measure to ensure the location is 500 feet from the property line of the nearest “similar type business.”

“It is crazy to me that the city treats you like a criminal just for wanting to do business there as a food truck owner,” said Brian, who has worked in the culinary industry all over the world. “The city doesn’t stop restaurant owners from being near each other.”

“Political connections should not determine where people are allowed to eat. Fort Pierce’s residents want more food options, and the food truck owners want to provide them. Fort Pierce’s government should get out of the way,” said Dane Stuhlsatz, a constitutional law fellow at IJ who is also an attorney on the case. “We will continue to fight for food truck owners and their constitutional right to earn an honest living.”

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San Antonio, El Paso, Texas, Carolina Beach, North Carolina, and Louisville, Kentucky, have successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ will be arguing against unconstitutional food truck regulations before the Illinois Supreme Court. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wisconsin.

Class Action Lawsuit Challenges Seattle’s Mandatory Rental Inspection Law

SEATTLE, Wa.—Today, a group of Seattle tenants and landlords partnered with the Institute for Justice (IJ)  to file a class action lawsuit challenging the city’s use of invasive, warrantless searches to inspect rental units. The lawsuit, which was filed in King County Superior Court, argues that the city’s program is a clear violation of the Washington state constitution’s mandate that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Yet, in Seattle, that is exactly what happens when the city forces landlords and tenants to submit to a warrantless search.

“By subjecting tenants to random, government-mandated inspections that would not occur if that same person owned their home, Seattle is treating renters like second-class citizens,” said William Maurer, the managing attorney of the Institute for Justice’s Washington state office. “Your home is your castle, regardless of whether you rent or own it. It is plainly unconstitutional for Seattle to force renters to open up their homes to government inspectors when nothing is wrong inside.”

Maurer continued: “The lawsuit seeks to do one simple, but important, thing—allow tenants to exercise their constitutional rights and say ‘no’ when an inspector shows up without a warrant.”

Resources

Under Seattle’s program, each year the city randomly chooses roughly 10% of the rental units in Seattle for a mandatory inspection. Owners of buildings with more than one rental unit may choose to have a sample of at least 20 percent of the units in a building inspected (up to 50 total units), with the city choosing which units to inspect. Anyone renting an apartment or home chosen by the city must allow inspectors into their home to inspect it for housing code violations, even if they do not consent and the city does not have a warrant. The law offers no options for tenants or their landlords to object to the search.

But many tenants understandably object to a stranger wandering through their home. For some, the law means spending an unnecessary hour or two picking-up around their house. But for many others, a home contains deeply private information about that person, like their medical, political, religious, and personal activities. A search of someone’s home reveals what they read, eat, and own, what their hobbies and interests are, what medications they take, how and with whom they sleep, where their children sleep, and who is important in their lives.

That’s true for renters Matthew Bentley, Wesley Williams, and Joseph Briere, who are plaintiffs in the lawsuit. Earlier this year, the city informed their landlord that their home needed to be inspected. Bentley, Williams, and Briere, along with their three other roommates, have nothing to hide. But because their home is in great shape and they all value their privacy, they informed the city that they did not want their home inspected. The city responded by threatening fines upwards of $500 per day if their landlords did not somehow coerce the housemates to allow the unconstitutional inspection.

“For me, it’s not only a matter of privacy but also of security,” said Keena Bean. “I’m a young woman living alone in the city, and I take my personal safety very seriously. Deciding whether or not to let a stranger into my home is something that should be left 100 percent up to me. Just because I rent doesn’t mean the government can force its way into my bedroom and through all of my personal belongings.”

For many years, Seattle addressed housing code violations in rental housing using a complaint-based system. But in 2013, Seattle, like an increasing number of municipalities, switched to a proactive rental inspection system, the Rental Registration and Inspection Ordinance, or RRIO, which took effect in 2015.

“It should be up to tenants to decide whether they want a stranger entering their home” said IJ attorney Rob Peccola. “The fact that someone rents, rather than owns their home should not give the government the right to disrupt their life, invade their privacy and search their homes even when there is no evidence that anything is wrong.”

Peccola continued: “The law makes landlords do the city’s dirty work when a tenant says no to an inspection. The city has never attempted to get a warrant—that would mean forcibly entering over the objections of people the law was meant to help—so instead it fines landlords upwards of $500 per day until they can coerce their tenants to allow the inspection. The city is essentially fining landlords for refusing to violate their tenants’ privacy.”

This lawsuit does not seek to stop the city from inspecting rental units where the tenants agree to the inspection or keep the city from addressing problem properties. Rather, the suit seeks to stop the city from entering the private homes of Seattle’s renters unless the city gets the tenant’s consent or obtains a warrant based on evidence of a specific problem.

The Institute for Justice, which has an office in Seattle, is a nationwide, public interest law firm that stands up for citizens’ constitutional rights and liberties. It has filed three previous lawsuit challenging rental inspection laws in Redwing, Minn., Golden Valley, Minn., and Pottstown, Penn.

Report: End of Wisconsin’s Home-Baking Ban Provided Immediate Economic Benefits for Entrepreneurs

This Thanksgiving, Wisconsin’s home bakers can legally sell homemade apple pies, sugar cookies and other delicious treats to hungry Wisconsinites. They have not had this opportunity for long: In October 2017, following a lawsuit by the Institute for Justice (IJ), a Wisconsin court ruled a law prohibiting entrepreneurs from selling home-baked goods—even a single cookie—was unconstitutional. That change opened up opportunities for budding entrepreneurs almost immediately, as detailed in a new report from IJ, “Ready to Roll: Nine Lessons from Ending Wisconsin’s Home-Baking Ban.”

Vicki Gentz sold her first batch of homemade cookies around Halloween last year. Now, business is booming and Gentz has been nominated in Madison Magazine’s best artisan food product category.

“Decorating sugar cookies takes so long that prior to being able to work at home, I’d have to rent a commercial kitchen for eight hours at a time and there would be no way to turn a profit. This new industry has given me the opportunity to test the market and see if there’s a demand for my product. I’d love to do this full time as a career,” said Gentz, who has a day job working for a health care startup.

Ready to Roll shows Gentz isn’t alone in that regard. Though only 10 percent of the  Wisconsin home bakers surveyed for the study said their home-baking business is their full-time job, 62 percent said they put their earnings back into the business, with many wanting it to become a full-time career.

Stacy Beduhn, founder of Sweet Creations by Stacy, is another example of a thriving new businesswoman. Stacy says she is thrilled by consumer demand for her cookies. “I work at a day care part time instead of full time now that I can bake out of my home. I am so very thankful to be able to work out of my home and help provide for my family,” said Beduhn.

“Bakers tell us their newfound home-baking income helps them pay their bills, buy lessons for their kids and even afford health insurance,” said Jennifer McDonald, senior research analyst at IJ and author of this and another report about the homemade food industry. “These results demonstrate the near-immediate impacts of positive legal and policy reforms.”

Lisa Kivirist, one of the home bakers who successfully sued the state in 2016, said that before the judge’s ruling, “I could legally serve muffins to guests of our bed-and-breakfast but could not sell them. It’s nice to have an extra income source.”

But while the change is welcome to Wisconsin home bakers, there is still some room for improvement in the state’s homemade food, or “cottage food,” laws. It remains illegal for Wisconsin homemade food producers to sell foods requiring refrigeration. That leaves classic Thanksgiving desserts like pumpkin pie off the menu. Entrepreneurs in Wyoming, North Dakota and Utah, on the other hand, are permitted to sell nearly any homemade food item they wish, thanks to their states’ groundbreaking food freedom laws.

“By expanding what foods home bakers can sell, Wisconsin would broaden opportunities for home-based food entrepreneurs, particularly women, and give consumers access to more delicious homemade foods,” McDonald said.

In November 2013, the Institute for Justice launched its National Food Freedom Initiative. As part of that Initiative, IJ is currently suing New Jersey over its ban on selling home-baked goods. In addition to helping overturn Wisconsin’s home-baked good ban, IJ sued Minnesota over its restrictions on selling home-baked and home-canned goods, prompting the state to change its laws in 2015. And in 2017, IJ successfully persuaded legislators in Maryland and Kentucky to expand their cottage food laws.

At what cost licensing? Occupational licensing kills jobs, costs consumers and the economy billions

Arlington, Va.­­­­—State occupational licensing laws force people to spend time and money earning a license instead of earning a living. But these laws also impose real costs on the wider economy—nearly 2 million lost jobs and billions of dollars in losses for consumers and the wider economy, according to a new Institute for Justice study.

CLICK HERE TO WATCH A VIDEO ON THE HIGH COST OF LICENSING

The study, “At What Cost? State and National Estimates of the Economic Costs of Occupational Licensing,” uses a uniquely large dataset to offer the first state-level estimates of licensing’s economic costs for 36 states. It also provides new national estimates and confirms earlier research demonstrating considerable growth in licensing since the 1950s. According to the report:

  • Nearly 20 percent of American workers now need a license to legally work, up from just 5 percent in the 1950s. States vary widely in the share of workers licensed, from 14 percent in Georgia to 27 percent in Nevada.
  • Nationally, licensing costs the American economy nearly 2 million jobs annually. In the states, licensing’s toll on jobs ranges from around 7,000 (Rhode Island) to nearly 196,000 (California).
  • Licensing also costs consumers and the wider economy billions of dollars each year. Using a conservative measure of lost economic value, this study estimates losses of $6 billion annually. But a broader and likely more accurate measure suggests the true cost may reach $184 billion.
  • In the states, a conservative measure finds losses in economic value ranging from about $30 million (Rhode Island) to more than $840 million (California). A broader measure finds losses ranging from $675 million (Rhode Island) to over $22 billion (California).

“Occupational licensing creates these costs because it restricts competition, effectively giving licensed workers a monopoly,” said Dr. Morris Kleiner, an economist at the Humphrey School of Public Affairs at the University of Minnesota Twin Cities and co-author, with economist Dr. Evgeny Vorotnikov, of the report. “With fewer competitors, licensees can charge more for their services. Consumers and the wider economy pay the price.”

When lawmakers create occupational licenses, they often believe they are protecting public health and safety. Yet there is little empirical evidence demonstrating a link between licensing and quality of service or health and safety. In other words, in exchange for nearly 2 million lost jobs and billions in lost economic activity, consumers derive little benefit from licensing.

Fortunately, there are alternatives to licensing that offer consumer protection without restricting competition and imposing costs on consumers and the wider economy. Some, like private certification, are voluntary and harness the power of reputation to compel companies to keep service quality high. Others, such as bonding, insurance, inspections, registration and government certification, are less restrictive alternatives that lawmakers can implement.

“Occupational licensing is the most burdensome way to regulate work,” said Lee McGrath, IJ’s senior legislative counsel. “And as this study shows, licensing also imposes heavy costs on the economy. Policymakers should carefully weigh the human and economic costs of occupational licenses and impose them only when necessary to address present, significant and substantiated harms that cannot be mitigated by less burdensome alternatives.”

For more than 25 years, the Institute for Justice has been fighting for the right of entrepreneurs such as hair braiders, interior designers and tour guides to earn a living without first getting a government-mandated license. Last year, IJ released the second edition of “License to Work: A National Study of Burdens from Occupational Licensing.” The report detailed licensing requirements for 102 lower-income occupations across all 50 states and the District of Columbia.

Institute for Justice Will Oppose Attempt to Intervene in Challenge to Maine’s Tuition Program

Arlington, Va.—The Institute for Justice (IJ) released the following statement from senior attorney Tim Keller in response to today’s motion to intervene in the case:

“The Institute for Justice and First Liberty Institute will oppose the motion to intervene in our suit against Maine over the unconstitutional restrictions in the high school tuitioning program. The ACLU and Americans United for Separation of Church and State and their clients do not have a legal right to intervene in the case.

“In 2002, the U.S. Supreme Court made it clear that there is no constitutional violation if states empower families to choose religious options as part of an educational choice program. The obvious corollary to that ruling, which has been confirmed by more recent Supreme Court precedent, is that states cannot discriminate against families who desire a religious education when families are permitted to choose from private options. The proposed intervenors cannot claim any constitutional harm should the parents in this case prevail in striking down Maine’s exclusion of sectarian schools from its town tuitioning program.”

Can the Government Bulldoze Your Home for No Reason?

MEDIA ADVISORY

EVENT:
Can the Government Bulldoze Your Home for No Reason?

N.J. Appeals Court to Hear Argument
In Atlantic City Eminent Domain Abuse Case

DATE/TIME:
Wednesday, October 24, 2018, at 10 a.m.

PLACE:
New Jersey Superior Court, Appellate Division
Brennan Courthouse
583 Newark Avenue
Jersey City, NJ 07306

PARTICIPANTS:
Robert McNamara and Dan Alban, Attorneys, Institute for Justice
Charlie Birnbaum, Homeowner

CONTACT:
John Kramer, IJ VP for Communications, (703) 682-9320 ext. 205

SUMMARY:
In one of the most egregious examples of eminent domain abuse in the nation, the New Jersey appeals court will hear argument in the case of Atlantic City homeowner Charlie Birnbaum, whose property is being threatened by New Jersey’s Casino Reinvestment Development Authority (CRDA). CRDA seeks to take and bulldoze Charlie’s home even though it has no specific plans for his land.

In 2016, the trial court ruled that CRDA’s attempt to take Charlie’s longtime family home was a “manifest abuse of the eminent domain power” because there was no plan in place to actually develop the property.

CRDA sought to condemn the home for the benefit of the Revel Casino and Resort—an entity that has since gone out of business. Judge Julio L. Mendez of the Superior Court of New Jersey ordered CRDA to reconsider the project and determine whether it was still feasible in light of the changed circumstances, but CRDA refused to do so. CRDA is now appealing the trial court’s decision, asking the New Jersey appellate courts to grant it the power to condemn any property it wants, at any time, for any reason or for no reason at all.

Representing Charlie Birnbaum, the Institute for Justice opposes CRDA’s efforts to abuse the power of eminent domain.

Charlie tells his story in the following video, in which he also plays the piano:  https://www.youtube.com/watch?v=RCQM2_nagsM

Akron Charity Sues for Right to Shelter the Homeless

Akron, Ohio—Since ancient times, good samaritans have used their land to shelter the neediest. That tradition continues today in Akron, Ohio, where Sage Lewis—a local entrepreneur—welcomed a group of homeless people to set up tents in the back lot of his business after the city forced them off public land.

That was more than a year ago. Since then, Sage’s shelter has evolved into a tight-knit community of 44 people helping each other reintegrate into society. Thanks to donations from his neighbors and others in Akron, Sage was able to convert the first floor of his building into an informal private shelter. His newly-established nonprofit, The Homeless Charity, now provides food, a community day center, showers, bathrooms, laundry, clothing, computers, and critical social-service resources. His goal is to support those most in need as they transition from the streets to permanent housing.

But if Akron has its way, the tents will be gone by Thanksgiving.

Last month the Akron city council voted 8-4 to deny a permit allowing Sage to operate the tent community in a commercial-zoned area. As a result, many residents will have nowhere else to go, except back to the streets. Sage is unwilling to let that happen. So to protect their right to shelter the homeless on private property, Sage and The Homeless Charity have teamed up with the Institute for Justice (IJ) to file a constitutional lawsuit.

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“America has a long tradition of private charities using private property to help those in need,” said Jeff Rowes, a senior attorney at the Institute for Justice. “Sage has brought new thinking to the table, and is helping dozens of vulnerable people get off the streets and get their lives back on track.”

Rowes continued: “Sage has a constitutional right to shelter the homeless on his private commercial property. Sheltering the neediest is a legitimate use of private property that the government cannot stop without good reason—and there’s no such reason here.”

The controversy erupted in January 2017, when government officials evicted a group of homeless men and women who had set up tents in a forested area of a public park. Sage, who had befriended some homeless individuals during a previous run for mayor, allowed them to set up tents in the backyard of his business. Sage’s property, which also houses his auctioneering business and other tenants on the upper floor, is located on a commercially zoned area of Akron known as Middlebury. Nearby is a tire store, mattress store, fire station, church and low-income apartments.

The city told Sage he could not allow homeless to sleep on his property without first obtaining a conditional-use permit to use his commercially zoned property to shelter the homeless. In the spring of 2018, Sage applied for a conditional-use permit, but the city denied it on September 17, 2018, concluding that tents are never adequate shelter and that the tent community is incompatible with its surroundings. This vote forced Sage and the charity to file an appeal in court within 30 days or lose their rights forever, so they appealed today. Meanwhile, Sage and the city are continuing to work together on alternatives for housing the residents; one possibility is the charity obtaining other buildings in Akron, and the city’s social service workers are trying to find acceptable housing for current residents.

“What we’ve created is a new way of providing homeless services, and it allows the residents to help their peers and integrate back into society,” said Sage Lewis. “We are providing a private sector alternative to homelessness. We are private citizens on private land spending private money through a private charity to take care of those most in need of help. This work needs to be done today but the city is trying to stop it, which is why we are joining with IJ to challenge this injustice.”

Sage and The Homeless Charity are suing the city of Akron in the Summit County Court of Common Pleas. The lawsuit seeks to protect three distinct rights under the Ohio Constitution: property rights, due-process rights and the right to seek and obtain safety. Sheltering the neediest members of society is a legitimate and ancient use of private property that the government cannot impede without a very good reason—and no such reason is present in this case. It is irrational for the city to cast the homeless back into the streets—doing them real harm—in order to advance the miniscule public benefits of prohibiting people from sleeping at a commercial property. Akron’s homeless have the right to seek and obtain refuge on private property with the express permission of the owner.

“The Ohio Constitution has among the strongest protections for property rights in the country,” said IJ attorney Diana Simpson. “Sage and The Homeless Charity are providing a low-cost, private-sector alternative to address homelessness that the city ought to encourage. Instead, the city is violating the Ohio Constitution and putting those in desperate need back onto the streets.”

New Poll: 76% of Americans More Likely to Vote for Candidates Who Back Forfeiture Reform

With the midterms just three weeks away, a new poll found widespread opposition to civil forfeiture, a controversial practice that lets law enforcement agencies seize and keep property, without a criminal conviction or even filing charges.

Conducted by the Institute for Justice and YouGov, the poll found that 76 percent of Americans would be more likely to vote for a congressional candidate who wants to require a criminal conviction or raise the standard of proof to forfeit property. A majority of Americans across all gender, age, marital status, income level, and geographical location brackets would be more likely to back a member of Congress who supports forfeiture reform.

“With politics deeply divided, it’s encouraging to see so many Americans unite against civil forfeiture, one of the greatest threats to private property rights today,” said Institute for Justice Senior Attorney Darpana Sheth, who spearheads IJ’s National Initiative to End Forfeiture Abuse.

The IJ/YouGov poll also found that 59 percent of Americans opposed civil forfeiture, with only 25 percent in favor. Opposition was even stronger against the financial incentives that drive civil forfeiture: 63 percent opposed letting law enforcement keep the proceeds from forfeited property, a practice currently allowed by the federal government and more than 40 states.

Likewise, 69 percent of Americans oppose equitable sharing, a program that lets local and state agencies work with federal officials to confiscate property and bypass tougher state laws. Last year, Attorney General Jeff Sessions expanded equitable sharing, which triggered unanimous votes in the House of Representatives to defund the expansion. Unfortunately, those efforts were ultimately killed this past spring.

Two bipartisan bills have been introduced in Congress to reform civil forfeiture, the DUE PROCESS Act (H.R. 1795) and the FAIR Act (H.R. 1555/S. 642).  Each bill would add new protections for citizens whose property is seized, while the FAIR Act would also abolish equitable sharing. The chairmen of both the House and Senate Judiciary Committees have each publicly committed to meaningful forfeiture reform as well, but neither has advanced legislation during this Congress.

“This poll shows what we have long known: Voters do not like current civil forfeiture practices,” Sheth added. “Regardless of who controls Congress after November, it’s time to get serious about reform.”

Key Facts about Civil Forfeiture

  • In their 2016 party platforms, both the Republican and Democratic Parties condemned civil forfeiture and called for reform.
  • Since 2000, local and state law enforcement agencies have collected over $6 billion through equitable sharing, an audit by the Office of the Inspector General for the Department of Justice revealed last year.
  • Since 2014, 29 states have reformed their forfeiture laws, while seven states have enacted safeguards against equitable sharing.
  • The IJ/YouGov poll surveyed over 1,200 American adults online between October 2 and 3. The figures have been weighted and are representative of all Americans over 18.
South Side Pitch Crowns Winner in Fifth Annual Business Competition

CHICAGO—Five South Side entrepreneurs took the stage last week with three crowned winners and all the contestants gaining valuable experience in promoting their unique business idea. For five years running, the Institute for Justice Clinic on Entrepreneurship (IJ Clinic) has hosted South Side Pitch. Liv Labs, an innovative solution to help women exercise with confidence, took first place among the five finalists and 130 total businesses who entered this year.

Liv Labs’ goal is to help women and new moms “laugh more and worry less” by helping eliminate incontinence issues during exercise. Pitch contestant Melody Roberts and her industrial designer co-founder, Carly Price, felt indignant that there are only limited options available for a problem that 23 million American women face. Roberts’ medical device, which is entering the Food and Drug Administration clearance process, would be a convenient and reusable alternative to products currently in the market.

In addition to Liv Labs, South Side Pitch awarded prizes to Kozy and The Bougie Melon. Kozy is a retention and savings platform for landlords and rentals. The Bougie Melon makes 100 percent fresh, fun sips and sweets for fruit-loving foodies.

Before the pitches, the finalists and 200 South Siders in the audience heard from keynote speaker Charisse Conanan Johnson, a partner at Next Street. Next Street provides strategic and capital expertise to small businesses. Conanan Johnson talked about her experience in running a small business and building the startup mindset. She encouraged the contestants by saying, “Entrepreneurship means having faith in what you haven’t built yet.”

“Once again, South Side Pitch reminds Chicagoans that the South Side is home to a host of innovative entrepreneurs who are making their neighborhood and the city at large a better place to live and work,” said Beth Kregor, director of the IJ Clinic. “We started South Side Pitch knowing that there was a rich entrepreneurial spirit here that needed to be showcased. It’s a privilege to give a boost to innovators who are creating new opportunities for South Siders to build better lives for themselves and for others. This competition has proven year after year that there is no end to the creative business ideas that spring from the South Side.”

The IJ Clinic, which created South Side Pitch in 2014, is based at the University of Chicago. The clinic provides free legal assistance, access to resources and advocacy for low-income Chicago entrepreneurs.  This year’s contest was also sponsored by the Lenovo Foundation, the Polsky Center for Entrepreneurship and Innovation, and the University of Chicago Office of Civic Engagement.

Victory for Carolina Beach Food Trucks

Carolina Beach, N.C.—At a public town council meeting last night, the Carolina Beach council announced that it intends to make Carolina Beach a leader for food truck freedom and remove, rather than enact, barriers to competition. This comes six weeks after it repealed an unconstitutional ordinance requiring food truck owners own a brick-and-mortar restaurant in town. The town repealed that ordinance only a week after a lawsuit from the Institute for Justice, but left the door open to the possibility of creating other barriers to competition. After last night’s meeting, that door is now closed.

Instead of finding ways to limit food trucks, the town improved food truck regulations, making it easier for businesses to invite food trucks onto their properties. The city council also discussed other ideas to encourage food trucks, like rescinding their annual permit fee and allowing them to park in public parking lots.

“We are thrilled that Carolina Beach has finally decided it wants to welcome food trucks,” said Justin Pearson, a senior attorney at IJ. “Although there is still room for improvement, the brick-and-mortar requirement is gone for good, and we are hopeful that Carolina Beach will follow through with its plans to become a leader for food trucks and consumer choice.”

“It’s not the government’s job to pick winners and losers in the marketplace,” Pearson continued. “That choice belongs to customers.”

When Carolina Beach first enacted its ordinance, it did so to prevent “outsiders” from competing with local restaurants. But protectionism is not a legitimate government interest under the North Carolina Constitution. That’s why on August 21, food truck owners Michelle Rock, Aaron & Monica Cannon, and Harley Bruce teamed up with IJ to challenge the constitutionality of the anti-competitive ordinance.

“More freedom for food trucks means more choices for customers, which is good for the whole island community,” said Michelle Rock, owner of T’Geaux Boys and Momma Rock’s Desserts.

“I’m very, very pleased and look forward to working in Carolina Beach and serving the people there,” A & M’s Red Food Truck owner Aaron Cannon said.

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San AntonioEl Paso and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ will be arguing against unconstitutional food truck regulations before the Illinois Supreme Court. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wis.

Fish Creek Small Business Fights for the Right to Run a Food Truck

Sturgeon Bay, Wis.—The owners of White Cottage Red Door, a Door County shop known for “everything cherry,” filed a constitutional challenge to the town of Gibraltar’s food-truck ban. When the small business opened a food truck in its parking lot in the summer of 2017, the Town of Gibraltar’s board, chaired by a local brick-and-mortar restaurant owner, promptly banned all businesses on wheels. After formally warning the town board earlier this year that its ban is unconstitutional and illegal, White Cottage Red Door filed suit in Door County Circuit Court.

“White Cottage Red Door just wants to sell burgers and barbecue on its own property,” said Milad Emam, an attorney with the Institute for Justice (IJ), which represents White Cottage Red Door. “But the Gibraltar town board is stopping them to protect special interests from competition. That’s not just wrong, it is unconstitutional. The Wisconsin Constitution prohibits governments from picking winners and losers.”

Chris Hadraba, one of White Cottage Red Door’s owners, spent years making delicious burgers at a restaurant in Florida. He and his co-owners, all of whom have deep Wisconsin roots, thought they should use Chris’s talents to supplement their business’s income. They purchased a truck, earned a state mobile-restaurant license and county zoning permit and then opened in the summer of 2017. Sadly, their first customer was Gibraltar’s town constable, who told Chris that the truck was illegal. But the constable was wrong—the truck had all the authorization it needed to operate on its owners’ property.

When the town board found that out, it tried to convince Door County’s zoning department to revoke the truck’s permit. The county refused, so the town board passed a new ordinance banning all sales on wheels. Fines for violating the ordinance can reach $500 per day. Since they could not risk these fines, White Cottage Red Door’s owners had no choice but to sell their food truck over the summer.

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The ordinance has one purpose: economic protectionism. The board’s chairman—who voted for the ordinance—owns a brick-and-mortar restaurant just two miles down the road. Also, a former board member who pushed the county to revoke White Cottage Red Door’s zoning permit works at another restaurant in town. And a third board member has publicly sympathized with restaurateurs’ protectionist impulses. After eating an Italian beef sandwich at a food truck in a neighboring town, he exclaimed that “it was out of this world” and that he understood how a “restaurant should be up in arms over” food trucks.

“All we wanted to do was offer residents and visitors another option for good food in Fish Creek,” said Chris. “And we carefully followed all of the state’s and county’s rules. When we do win our lawsuit, we will purchase another truck so that I can once again use my cooking talents to support my family.”

Gibraltar’s food-truck ban is unconstitutional. Wisconsin’s Constitution protects the rights of entrepreneurs to earn an honest living free from arbitrary restrictions, especially on their own property.

Gibraltar’s food-truck ban also violates state law. Wisconsin’s courts have held that municipalities cannot drown state-approved businesses in red tape. The town board cannot ban what the state has expressly allowed, particularly to protect the interests of its own members.

“Sadly, the Gibraltar town board is just one of many local governing bodies that see food truck entrepreneurs as a threat instead of an opportunity,” said IJ Senior Attorney Robert Frommer. “If this small town board in Door County can use its power for naked protectionism, then entrepreneurs across the state are at risk. White Cottage Red Door is not just fighting for its own rights, but for those of other Wisconsinites who see opening a food truck as a viable path to prosperity.”

Through its National Street Vending Initiative, IJ protects vendors’ rights coast to coast. For example, IJ lawsuits in San Antonio, El Paso and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ continues to litigate against unconstitutional vending barriers in Baltimore and Chicago.

U.S. Supreme Court Rules in Missouri Hair Braiding Case

Washington, D.C.—The U.S. Supreme Court today effectively brought to an end a four-year challenge to Missouri’s licensing of African-style hair braiders. The braiders, working with the Institute for Justice (IJ), challenged the state’s requirement that they spend thousands of dollars on 1,500 hours of cosmetology training even though the training did not cover braiding. Earlier this year, the Missouri General Assembly exempted braiders from the cosmetology license and established a new specialty braiding license requiring that braiders pay a fee of $20, watch a four- to six-hour instructional video and submit to board inspections.

“Today’s action by the U.S. Supreme Court vacates an appeals court ruling that upheld the state’s old, burdensome licensing regulations,” said IJ attorney Dan Alban. “The 8th Circuit’s opinion conflicted with braiding decisions from lower federal courts, with decisions from other federal circuit courts, and decisions from the U.S. Supreme Court itself. By vacating that unfavorable opinion, the Court clears the way for these issues to be litigated in a future challenge to oppressive occupational licensing regimes.”

Because IJ’s lawsuit challenged the previous requirement that braiders obtain a cosmetology or barber license in order to braid hair for a living, the new law made the dispute hypothetical, or, in legal terms, moot. After the law took effect in August, both IJ and the state attorney general filed a joint suggestion of mootness and motion for vacatur with the U.S. Supreme Court.

This morning, the U.S. Supreme Court accepted the case and granted the motion (see order in Niang v. Tomblinson here). This invalidates the 8th Circuit’s January 2018 opinion and instructs that court to remand the case to the district court where it will be dismissed.

Although the Missouri Board of Cosmetology and Barber Examiners has not yet implemented the braider registration mandated by Missouri law, an August 16, 2018 FAQ on the Board’s website states that production of the video for braiders is “underway” and that it is also developing a brochure that summarizes the information in the video. Currently, 25 states do not require a license for braiding. Missouri’s new law places it among the 16 states that require a specialty license for braiders, rather than a full cosmetology license.

“We’re glad that our four-year fight for braiding freedom is finally drawing to a close,” said braider Tameka Stigers, who owns and operates the Locs of Glory braiding salon in St. Louis. “We would like to see the Cosmetology Board finish creating the new registration process for braiders. We have a right to braid hair for a living without any further uncertainty about the legality of our businesses under Missouri law.”

New Jersey Creates New License for Natural Hair Braiders

On Thursday, a new specialty license for African-style natural hair braiders was signed into law in New Jersey. Under the law (A-3754), a braider can now become licensed after completing a maximum of 40 to 50 hours of coursework, depending on their experience level. Previously, braiders could only legally work if they had a cosmetology license, a credential that takes at least 1,200 hours of training and can cost upwards of $17,000 in tuition. Many New Jersey braiders had been threatened with heavy fines and even criminal charges for “unlicensed braiding.”

“The new braiding license is a dramatic improvement over New Jersey’s incredibly burdensome requirement that forced braiders to waste their time and money to attend cosmetology schools, which most often don’t even teach African-style braiding,” said Brooke Fallon, assistant director of activism at the Institute for Justice. “We’re proud to have worked with dozens of braiders, who have been tireless in fighting for their right to earn an honest living without being harassed by the government. We hope that this bill will mean an end to the raids and heavy fines that have been inflicted on too many braiders in communities of color. ”

Originally, the bill would have eliminated licensing requirements entirely for hair braiders and passed both the Assembly and the Senate unanimously. But in late August, Gov. Phil Murphy made extensive revisions to the bill through a conditional veto. Last month, legislators decided to concur with the governor’s version, which was approved.

“Although the new law is certainly an improvement over the previous regime, it is not necessary to force people to waste 40 to 50 hours on a practice as safe and simple as braiding hair naturally,” Fallon added. “Already 25 states, including Connecticut, Delaware, and Maryland, don’t require braiders to have a license. We will continue to work with braiders in New Jersey to ensure future regulations by the state cosmetology board protect the public while imposing the fewest burdens on braiders and their clients.”

New Mexico Governor Orders Major Overhaul of State’s Licensing Laws

New Mexico Gov. Susana Martinez issued an executive order on Wednesday to reform the state’s “overly-restrictive licensure schemes.” Today, occupational licensing  is one of the biggest labor market barriers in the nation, with one-third of New Mexico’s workforce needing either a license or certification to legally work. That red tape also raises prices for consumers with little proven improvements to public health and safety, according to a 2015 report from the Obama administration.

“Burdensome licensing restrictions prevent people from escaping poverty and disproportionately impact the working class and minorities,” the order noted. “These schemes impose an undue burden on the fundamental right of New Mexicans to pursue a career in any chosen occupation without permission from the government and cause all New Mexico families to suffer economically.”

The Land of Enchantment actually has the country’s ninth most burdensome licensing laws, according to a recent report from the Institute for Justice. For instance, a contractor’s license to install or repair air conditioners in New Mexican homes or businesses takes at least four years of experience. But in neighboring Colorado, no license is required. Statewide, the average license for lower-income occupations in New Mexico requires $266 in fees, 520 days of courses or training, and passing two exams.

Under the executive order, all of New Mexico’s nearly 40 agencies, boards, commissions, and departments are directed to:

  • Create a “consumer choice” alternative to licensing. Professionals will be able to work without a license so long as they inform consumers that they are unlicensed and if consumers acknowledge that disclosure in writing. The consumer choice alternative will not be implemented for medical services or if it would conflict with an existing state statute but can replace, where applicable, existing administrative rules;
  • Develop new reciprocity agreements to recognize occupational licenses from other states. Additionally, for workers coming from states where their occupation wasn’t licensed, New Mexico will recognize one year of their professional experience as a substitute for 1,000 hours of the state’s required training;
  • Reduce licensing fees to no more than 75 percent of the national average;
  • Streamline online applications and expand the number of online continuing education courses;
  • Waive all licensing and exam fees for low-income workers, National Guardsmen and members of the military; and
  • Specifically list the crimes that can block an applicant with a criminal record from receiving a license to work. Disqualifying crimes must “pertain directly” to the occupation or the applicant’s ability. Applicants will be able to appeal initial denials.

“New Mexico is one of the worst states for imposing licenses, so it’s deeply encouraging to see the governor call for sweeping reforms,” said Paul Avelar, managing attorney of the Institute for Justice Arizona Office. “As the governor rightly noted, earning an honest living should be treated as a ‘fundamental right.’ We look forward to working with the Rio Grande Foundation, the next governor, state agencies, and the New Mexico Legislature to eliminate wasteful and damaging licensing schemes that stifle economic liberty.”

The governor’s executive order follows licensing reforms in other states. In April, Nebraska Gov. Pete Ricketts signed a landmark “sunset review” bill that will closely examine existing regulations to see if they are truly needed to protect the public and if a “least restrictive” alternative could work instead. This year also saw Arizona, California, and 10 other states ease licensing barriers to expand job opportunities for ex-offenders.

Texas Veterinarian Fights for Right to Give Professional Advice

For a decade, licensed veterinarian Dr. Ron Hines gave advice online from his Texas home to pet owners across the world. Then, the Texas State Board of Veterinary Medical Examiners said that his advice was illegal—not because it harmed an animal or was inaccurate, but because Texas prohibits veterinarians from sharing their expertise with pet owners without first examining their pets in person.

This is Dr. Hines’s second challenge. In 2013, he teamed up with the Institute for Justice (IJ) to file a lawsuit against this obsolete regulatory barrier, arguing that it violated the First Amendment. But the Fifth U.S. Circuit Court of Appeals disagreed, ruling that individualized professional advice is not speech but is instead the equivalent of occupational conduct like welding or surgery. In short, the court of appeals said that the First Amendment did not apply.

But earlier this year, the United States Supreme Court made clear that the First Amendment does protect the professional advice of experts like Dr. Hines. Armed with that decision, Dr. Hines and IJ are returning to federal court to vindicate his free-speech right to provide advice to pet owners in need.

“Ron has a First Amendment right to give veterinary advice,” said IJ Senior Attorney Jeff Rowes. “In June of this year, the Supreme Court ruled that ‘speech is not unprotected merely because it is uttered by professionals.’ That means Ron should have prevailed in 2015. We’re going back to court to correct this injustice.”

Since the earlier decision, telemedicine laws in Texas have also expanded the freedom of health care practitioners such as doctors and nurses to offer expert advice without first having to perform an in-person medical exam. But Texas has not extended that reform to veterinarians. That means Texas has stricter requirements for the veterinary care of pets than for the medical care of humans.

“It makes no sense to say that animals require greater regulation than humans, yet Texas has more lenient telemedicine rules for doctors than for veterinarians,” said IJ Attorney Andrew Ward. “The First Amendment does not allow Texas to let one group of professionals speak while denying that same right to others.”

For Dr. Hines, a retired and physically disabled Texas-licensed veterinarian, his right to give pet owners advice is not about money. For most pet owners he advises, traditional veterinary clinics are not a realistic option. Many who contact him online are either homebound, live in areas with few veterinary options, or live overseas. Their choice is either advice from an online expert like Dr. Hines or no advice at all.

“This case is much bigger than me,” said Dr. Hines. “I’m fighting not only for pet owners to have access to life-saving knowledge for the animals they love, but also for many more Americans to be able to freely share their knowledge online.”

The outcome of Dr. Hines’s case could affect the telepractice revolution for countless practitioners, including nutritionists, psychologists and many others who depend on the First Amendment for the protection of their speech.

Institute for Justice Dismantles Philadelphia Forfeiture Machine

PHILADELPHIA—The Institute for Justice (IJ) today announced a major settlement with the city of Philadelphia, ending the city’s draconian civil forfeiture machine. In documents filed with the U.S. District Court for the Eastern District of Pennsylvania today, city officials agreed to a set of reforms that will end the perverse financial incentives under which law enforcement keeps and uses forfeiture revenue, fundamentally reform procedures for seizing and forfeiting property, and establish a $3 million fund to compensate innocent people whose property was wrongly confiscated. These sweeping reforms, if approved by the Court, are the result of the Institute for Justice’s class-action lawsuit that it has litigated over the past four years.

Civil forfeiture—where the government can seize and sell your property without convicting or even charging you with a crime—is one of the greatest threats to property rights today. With civil forfeiture, the government sues the property itself under the fiction that cash, cars or even homes can be guilty, resulting in bizarre case names like Commonwealth v. 2000 Buick. And because these cases are civil, innocent property owners are denied rights guaranteed to criminal defendants, like the right to an attorney.

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For decades, Philadelphia’s system was rigged against property owners. Until IJ brought suit, Philadelphia routinely threw property owners out of their homes without notice. It forced owners to navigate the notorious “Courtroom 478,” where so-called “hearings” were run entirely by prosecutors, without any judges or court-appointed lawyers to defend property owners. Again and again, prosecutors demanded that property owners appear in court, sometimes ten times or more. Missing even a single “hearing” meant that prosecutors could permanently take an owner’s property, sell it and use the proceeds for any law-enforcement purpose they wished. More than 35 percent of proceeds went to salaries, including the salaries of the very officials seizing and forfeiting property, thus creating a perverse incentive to abuse this system. Today’s landmark settlement brings all of that to an end.

“For too long, Philadelphia treated its citizens like ATMs, ensnaring thousands of people in a system designed to strip people of their property and their rights,” said Darpana Sheth, a senior attorney at the Institute for Justice and director of its Initiative to End Forfeiture Abuse. “No more. Today’s groundbreaking agreement will end years of abuse and create a fund to compensate innocent owners.”

For the clients named in the lawsuit, the settlement ends a struggle that lasted more than four years. In 2014, Chris Sourovelis nearly lost his house after his son was arrested for selling $40 worth of drugs. Although Chris did nothing wrong, the police showed up unannounced one day and threw his entire family out of his home.

“I’m glad that there is finally a measure of justice for people like me who did nothing wrong but still found themselves fighting to keep what was rightly theirs,” said Chris. “No one in Philadelphia should ever have to go through the nightmare my family faced.”

The agreement comes in the form of two legally-binding consent decrees, one governing Philadelphia’s forfeiture practices and the other providing compensation to victims.

In the first, Philadelphia, the District Attorney and the First Judicial District of Pennsylvania agree to dismantle the city’s forfeiture machine. Among other things, the consent decree would:

  • Greatly restrict when Philadelphia police can seize money and other property for forfeiture;
  • Improve the notice which owners receive about the forfeiture process and their rights under it;
  • Ensure that judges—not prosecutors—control forfeiture proceedings and monitor forfeiture settlements for fairness;
  • Prohibit prosecutors from making owners return to court again and again at the risk of losing their property forever; and
  • Create a prompt, meaningful hearing where property owners can demand the immediate return of their property.

The second consent decree ends Philadelphia law enforcement’s unconstitutional financial incentive. It blocks the District Attorney’s Office and the Philadelphia Police Department from using forfeiture proceeds on salaries or other law-enforcement purposes, instead directing those funds to community-based drug prevention and treatment programs. It also establishes a $3 million fund to compensate forfeiture victims, with the following details:

  • Each qualifying person who submits a timely claim will get up to $90 in recognition of the violation of their constitutional rights.
  • Each qualifying person who lost their property through forfeiture, but who was not convicted of a related criminal charge, will get up to 100 percent of the value of their forfeited property.
  • Each qualifying person who lost their property through forfeiture, but who was only sent to a diversionary program for low-level, first-time offenders, will receive up to 75 percent of the value of their forfeited property.
  • Each of the named representative plaintiffs, who fought for years to right this wrong, will get a $2,500 award for their efforts on behalf of the entire class.
  • A portion of undisbursed funds will be distributed to non-profit organizations that provide services to communities hardest hit by Philadelphia’s former forfeiture practices.

The parties will ask the Court to preliminarily approve the settlement. Once that happens, Philadelphians who were caught up in the city’s forfeiture machine can apply for compensation. IJ will work with a third-party administrator to review all claims and ensure they are carefully processed.

This agreement comprehensively reforms the largest municipal forfeiture program in the country. However, across the United States, law enforcement continues to use civil forfeiture to take property, often when no criminal charges are filed. In addition to defending property owners across the country, IJ will be bringing civil forfeiture to the U.S. Supreme Court this fall in a case called Timbs v. Indiana.

“Today’s settlement is an unprecedented blow against civil forfeiture,” said IJ President Scott Bullock. “IJ is continuing the fight to stop the government from using the justice system to raise revenue. Philadelphia is just one place where officials created a rigged system that deprived individuals of their property without due process.”

Friend-of-the-Court Briefs Stack up Against the State In U.S. Supreme Court’s Timbs Excessive Fines Clause Case

18 Amicus Briefs Support Institute for Justice’s Client,
1 Brief, which Examines the History of the Eighth Amendment, Remains Neutral

Indiana Supreme Court Ruled Governments within the State May Impose Excessive Fines
Until the U.S. Supreme Court Says They Can’t

Arlington, Va.—In late November or early December, the U.S. Supreme Court will hear Timbs v. State of Indiana, a case that will decide whether the U.S. Constitution’s protection against excessive fines applies to state and local governments, just as it has applied to the federal government since 1791. The case involves the forfeiture of a $42,000 vehicle for a crime involving a few hundred dollars. The Indiana Supreme Court held that the Eighth Amendment’s Excessive Fines Clause applies to only the federal government and does not apply at all to state and local authorities.

“Our client, Tyson Timbs, has already paid his debt to society,” said Wesley Hottot, an attorney with the Institute for Justice, which is representing Timbs. “He’s taken responsibility for what he’s done. He’s paid fees. He’s in drug treatment. He’s holding down a job. He’s staying clean. But the State of Indiana wants to take his property, too, and give the proceeds to the agency that seized it. As we explained in our merits brief, there are limits, and this forfeiture crosses the line. We are asking the U.S. Supreme Court to reverse the Indiana Supreme Court’s ruling. This case is about more than just a vehicle; it’s about whether 330 million Americans get to enjoy their rights under the U.S. Constitution.”

Nineteen amicus (or “friend-of-the-court”) briefs have been filed thus far in Timbs. Among the more notable amici are:

  • The ACLU, R-Street Institute, Fines and Fees Justice Center and Southern Poverty Law Center, which submitted a brief that examines the effect of excessive fines and fees on the poor, as well as the use of fees to raise revenue for the government.
  • The American Bar Association’s brief examines how the Excessive Fines Clause protects equality of justice under the law.
  • The Constitutional Accountability Center’s brief spotlights the history of the passage of the 14th Amendment, and abuse of fines and forfeitures in post-Civil War southern states.
  • The DKT Liberty Project, Cato Institute, Goldwater Institute, Due Process Institute, Federal Bar Association Civil Rights Section and Texas Public Policy Foundation’s brief examines the abuses of forfeiture, fines and plea bargaining.
  • The Drug Policy Alliance, NAACP, Americans for Prosperity, Brennan Center for Justice, FreedomWorks Foundation, Law Enforcement Action Partnership and others’ brief examines the history of civil forfeiture and how it came to be.
  • Three prominent scholars of the Eighth Amendment submitted a neutral brief that provides a deep dive into the history behind the Excessive Fines Clause, going back to Magna Carta.
  • The Institute for Free Speech’s brief documents the danger of excessive fines for technical violations of campaign finance laws.
  • The Juvenile Law Center and 40 other organizations filed a brief that chronicles the harsh effects of excessive fines on juveniles in the criminal justice system.
  • The NAACP Legal Defense and Education Fund’s brief provide a history of the 14th Amendment and asks the Court to revisit cases where it declined to incorporate portions of the Bill of Rights against the states.
  • The Pacific Legal Foundation’s brief documents abusive fines by state and local governments.
  • A collection of scholars, represented by UCLA School of Law Professor Eugene Volokh, filed a brief that discusses how excessive fines impact the poor.
  • The U.S. Chamber of Commerce filed a brief that examines how state attorneys general and other state and local government agencies impose excessive fines on businesses to raise revenue and even for political reasons.

Opposition amici in the case are due October 11.

The Institute for Justice released a high-resolution video news release that recounts Tyson Timbs’ battle to get his vehicle back and to extend constitutional protections against excessive fines across the entire United States.

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information is available at https://ij.org/case/timbs-v-indiana/.]

Statement Responding to Charlestown City Council Decision to Rescind the State’s Unsafe Building Law

Today, the Charlestown City Council started the process of rescinding the Indiana state Unsafe Building Law. The vote comes just two days after an Indiana Appeals Court ruled that the city had violated the state Unsafe Building Law when it levied outrageous fines against homeowners in the Pleasant Ridge neighborhood. In response to today’s vote, Anthony Sanders, a senior attorney at the Institute for Justice, which represents Pleasant Ridge homeowners, issued the following statement:

Charlestown’s fines in Pleasant Ridge were all illegal because they violated the Unsafe Building Law’s protections for property owners. In response, the city has started the process to repeal the law to ensure that the protections the city illegally ignored in the past won’t apply in the future. It is a bad sign for the people of Charlestown that the city council keeps passing ordinances removing protections for their property.

In 2017, an Indiana judge ruled that the city had violated its residents’ constitutional rights when it imposed outrageous fines against property owners in Pleasant Ridge, but waived the fines for anyone who sold to the city’s favored developer, John Neace. Making technical changes to a city ordinance does nothing to address the underlying unconstitutionality of the city’s actions. If the city seeks to obey the law, then its only option is to end its all-out assault on the residents of Pleasant Ridge.

IJ Responds to Charlestown’s Spin

The city’s attempt to spin today’s decision as a win is just that: spin. The city has lost on everything. Mayor Hall cannot point to a single legal argument that the city has won. Only by the city’s backwards logic does an unbroken string of losses amount to a victory. The Homeowners have won again and they will continue to win because they have the law and justice in their side.

The appeals court did not even rule on the city’s appeal, let alone rule in its favor. The court only ruled on the residents’ appeal and it ruled in their favor.

Unfortunately, from time to time, lawsuits get complicated. In this case, the mayor has used the complicated nature of the decision to claim a victory where one is not present.

Here is what happened:

The resident’s lawsuit makes four arguments against the city’s use of its property maintenance code to drive people out of Pleasant Ridge. Two alleged that the city is violating its residents constitutional rights to equal protection. Another argued that the city violated it’s own ordinances. The fourth argues that the city is in violation of a state law call the Unsafe Building Law (UBL), which lays out how cities are supposed to apply their building codes. To win their suit, the residents only needed to win one of the four arguments.

In 2017, a circuit court judge ruled that the city was violating the Constitutional rights of its residents and the protections for them contained within city law—the first three claims. But he also ruled that the UBL did not constrain how city could enforce its own property maintenance code. So, by winning three of the four arguments, the residents of Pleasant Ridge won.

The city of Charlestown appealed the decision regarding the resident’s Constitutional rights and their rights under the ordinance. At the same time, the residents argued that they should also be protected by UBL, which would mean that they would win all four arguments against the city.

Today, the appeals court ruled that the UBL does prohibit Charlestown from using egregious fines that accumulate daily. The resident’s won their fourth argument. Importantly, the court did not grant the city’s appeal, and the remaining three arguments—that the city was violating the residents constitutional rights—still stand.

For technical reasons, the appeals court has now instructed the circuit court to incorporate today’s decision into its previous ruling in favor of the residents. To do that, it needed to lift the original preliminary injunction that was only based on constitutional principles so that the lower court can rewrite it to incorporate this additional win.

The effect of all of this is that the appeals court has handed the residents a 4-0 victory over the city.

Property Owner Sheltering Akron’s Homeless Fights for Right to Help

Akron, Ohio—Tonight at 7:00 p.m., the Akron City Council will hold a hearing on the application of Sage Lewis and The Homeless Charity for a permit to continue sheltering the homeless on private commercial property at 15 Broad Street. This permit application raises not just questions about zoning policy, but the constitutional rights of property owners to care for the neediest members of society. The Institute for Justice (IJ), a legal nonprofit that defends property rights nationwide, is assisting The Homeless Charity in the application process.

Sage Lewis hosts an innovative tent community in the backlot of a commercial property in the Middlebury neighborhood, located at 15 Broad Street. Sage started the tent community in January 2017 as a temporary refuge for those seeking a place to sleep and escape the dangers and hardships of life on the streets. This initial act of compassion has evolved into a community that shelters 40 people at a time (with a waiting list) and grants them access to food, a day center, showers, laundry, clothing, computers, social-services resources and the support they need to transition to permanent housing. The Homeless Charity, a nonprofit operating on a shoestring budget, supports the community, which is run by the homeless for the homeless.

But the city required Sage to a seek a conditional-use permit to comply with the Akron zoning ordinance. Sage, his volunteers, his legal counsel Rebecca Sremack and IJ have spent the past five months working through the application process, creating a record demonstrating that the permit should be granted. Tonight, the city council will hold a hearing at 7:00 p.m. to consider the recommendation of the Planning Commission that the permit be denied.

As IJ said in a submission to the city council:

15 Broad Street is a springboard to reintegration into society because it provides the breathing space people need to work on issues like substance abuse, employment and housing. No one can make the leap back to mainstream life without somewhere safe, secure and stable. The community and personal responsibility of 15 Broad Street advance the goal of reintegration. Every resident must comply with a code of conduct, work one hour per day within the community, participate in community self-governance and take concrete steps to transition back into housing. It is the responsibility of every resident to minimize inconveniences for neighbors.

Everyone, including the residents at 15 Broad Street, understands that tents are not a long-term solution to homelessness. But they are a practical and inexpensive option for those unable to secure conventional housing. The fact that the residents of 15 Broad Street overwhelmingly prefer their tents to traditional homeless shelters is strong evidence that Sage Lewis and The Homeless Charity are effective (even though on a shoestring budget of private funds).

The conditional-use application is not just a matter of zoning policy. The constitutional rights of the residents, Sage and The Homeless Charity are also at stake. People have long used private property to shelter the neediest among them. Whatever zoning concerns the City has (and The Homeless Charity is eager to work with the City and neighbors to minimize these), those concerns do not trump the rights of those on the front lines of the fight against homelessness.

IJ fights for the rights of property owners across the country, including fighting eminent domain in Charlestown, Ind., for-profit code enforcement in Indio, Calif. and forfeiture abuse in Indiana, a case the U.S. Supreme Court will be hearing this fall.

Pleasant Ridge Wins Again at Appeals Court

Charlestown, Ind.—Today, the Indiana Court of Appeals ruled that the City of Charlestown must follow the state of Indiana’s Unsafe Building Law, a state statute that gives property owners procedural protections from overzealous city code enforcement.

The decision on the neighborhood’s preliminary injunction now goes back to Judge Jason Mount to rule on how the Unsafe Building Law applies in this case and how it prevents the city from issuing fines. For procedural reasons the appellate court did not address the question of whether the city violated the state and federal constitutions.

“Today’s opinion is another rebuke to the city of Charlestown’s reckless disregard for state law,” said Anthony Sanders, a senior attorney at the Institute for Justice, which represents Pleasant Ridge homeowners. “This includes a cap on the amount of fines, and a mandate that fines can only be issued against recalcitrant property owners. The city has wantonly ignored those protections through issuing immediate fines against property owners in its illegal quest to force them to sell their properties to developer John Neace.”

The case arises out of the city’s horrific practice of fining property owners in the Pleasant Ridge neighborhood in an effort to force them out of their homes in order to have the entire area redeveloped by local businessman John Neace. Because of the city’s illegal code enforcement practices, Neace was able to purchase almost two hundred properties for only $10,000 per lot, far less than their tax-assessed values. Many of these sales were made from landlords who had been fined thousands of dollars in violation of the Unsafe Building Law.

“The residents of Pleasant Ridge have been under assault from the city for years, and this is just the latest rebuke to its unconstitutional and immoral effort to wipe them off the map,” said IJ Senior Attorney Jeff Rowes. “We now look forward to having the trial court issue a new injunction against the city that includes a requirement that it follow state law.”

The issue now goes to the trial court with argument before the court on the state law question likely coming in the next couple of months. Meanwhile, the residents of Pleasant Ridge remain in their homes and look forward to a final judgment that will permanently protect them from city abuse.

IJ Files Merits Brief & Posts Video News Release In Anticipation of Timbs Excessive Fines Clause Case To Be Argued Before the U.S. Supreme Court

Arlington, Va.—The case of Tyson Timbs v. State of Indiana, which will be argued this fall before the U.S. Supreme Court, tells an all-too-familiar tale of opioid addiction and recovery in America. But this story has an important constitutional twist that may help protect millions of Americans from the abuse of government-imposed fines and fees, as well as forfeiture, which is often called “policing for profit.” The case will decide whether the U.S. Constitution’s protection against excessive fines applies to state and local governments as well as to the federal government.

As recounted in a video news release, Tyson Timbs was prescribed opioids for foot pain, which quickly led to addiction, an addiction that turned into heroin use. Although Tyson was a drug user and not a dealer, a police informant convinced him to sell drugs to the police in an undercover sting; the police sought to take Tyson’s $40,000 vehicle—which he purchased with proceeds from a life insurance policy after his father’s death—and then sell the vehicle and keep almost all the proceeds.

“The trial court in Tyson’s hometown said that it would violate the Excessive Fines Clause of the U.S. Constitution for local police to take Tyson’s $40,000 vehicle for a crime involving a few hundred dollars,” said Sam Gedge, an attorney with the Institute for Justice, which will argue Tyson’s case before the U.S. Supreme Court. “The Indiana court of appeals agreed and said it would violate the Excessive Fines Clause. But the Indiana Supreme Court held that the Excessive Fines Clause doesn’t apply at all to state and local authorities. As we advocated in our merits brief, that’s wrong, and the U.S. Supreme Court should reverse.”

“Tyson has paid his debts to society,” said Wesley Hottot, an attorney with the Institute for Justice. “He’s taking responsibility for what he’s done. He’s paid fees. He’s in drug treatment. He’s holding down a job. He’s staying clean. But the State of Indiana wants to take his property, too, and give the proceeds to the officers who seized it. This forfeiture crosses the line.”

Tyson said, “Taking my vehicle makes things unnecessarily difficult for a person like me, who already struggles. To me it doesn’t make sense; if they’re trying to rehabilitate and help me help myself, why do you want to make things harder by taking away the vehicle I need to meet with my parole officer or go to a drug recovery program or go to work? You need a car to do all these things. Forfeiture only makes it more challenging for people in my position to clean up and remain a contributing member of society.”

“Over the years, the U.S. Supreme Court has explicitly ruled that almost all of the Bill of Rights applies not just to the federal government, but also to state and local authorities,” said Hottot. “One of the few outlier provisions, however, is the Excessive Fines Clause, which is at issue in this case. So far, the U.S. Supreme Court held that two of the three clauses of the Eighth Amendment apply to the states. The Cruel and Unusual Punishment Clause protects your body, the Excessive Bail Clause protects your freedom, and the Excessive Fines Clause is supposed to protect your property from unreasonable fines and forfeitures. The Supreme Court should apply the entire Eighth Amendment so that every American’s rights are protected.”

Hottot said, “That’s why this case is about more than just a vehicle; it’s about whether 330 million Americans get to enjoy their rights under the U.S. Constitution.”

“Increasingly, our justice system has come to rely on fines, fees and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets,” said Scott Bullock, the president and general counsel of the Institute for Justice. “This is not just an ominous trend; it is a dangerous one. We hope the U.S. Supreme Court establishes that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.”

The government’s impulse to levy excessive penalties is not unique to forfeiture. In Ferguson, Missouri, for example, the U.S. Department of Justice determined that “(c)ity officials have consistently set maximizing revenue as the priority for . . . law enforcement activity.” In nearby Pagedale—five miles south of Ferguson, in another case litigated by the Institute for Justice—low-income residents have been fined thousands of dollars for trivial offenses like missing curtains, aging paint, walking on the left side of crosswalks, and enjoying a beer within 150 feet of a grill. And in Charlestown, Indiana, in yet another IJ case, local officials imposed crippling fines on low-income homeowners to force them to sell their land to a private developer.

IJ Senior Attorney Darpana Sheth, who heads the Institute for Justice’s initiative to end forfeiture abuse, said, “Justice Clarence Thomas recently declared that it was time for the Supreme Court to once again look at the constitutionality of civil forfeiture laws, and the Timbs case provides the Court with its first opportunity in more than 20 years to look at forfeiture. We hope this is one in a series of cases that the Court takes on to fundamentally reassess the constitutionality of these pernicious practices.”

When asked for his thoughts on getting his vehicle returned to him, Tyson said, “If I get it back, that means we won, and the next Tyson won’t have to deal with this like I have.”

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205. More information is available at https://ij.org/case/timbs-v-indiana/.]

After Being Sued, Carolina Beach Votes To End Unconstitutional Food Truck Law

Carolina Beach, N.C.—Last night, after an extended meeting behind closed doors, the Carolina Beach town council repealed a law that makes it illegal to operate a food truck in the town unless the owner also owns a brick-and-mortar restaurant in town. The unanimous vote came a week after the Institute for Justice (IJ) partnered with four Wilmington-area food trucks to file a lawsuit to strike down the unconstitutional law.

“It is a shame that it took a lawsuit to convince the town to repeal such an obviously unconstitutional law,” said Justin Pearson, a senior attorney at IJ. “I’m hopeful that last night’s vote will signal the end to the town’s attempt to use the power of government to favor a handful of established businesses over the region’s entrepreneurs. We hope that Carolina Beach realizes that when a town tries to restrict entrepreneurs for the benefit of existing businesses, everyone—customers and business owners, alike—loses.”

In addition to repealing the brick-and-mortar restaurant requirement, the council also voted to reopen public debate about how the city should regulate food trucks.

“Our lawsuit is far from over,” said IJ attorney Johanna Talcott. “The vote indicates that the town wants to abide by the state constitution, but the town also indicated that it still intends to pursue regulations regarding food trucks. We will continue to monitor those conversations and press for laws that foster open competition, entrepreneurship and, most importantly, more food options for Carolina Beach’s residents and visitors.”

On August 21, food truck owners Michelle Rock, Aaron & Monica Cannon and Harley Bruce teamed up with IJ to challenge the anti-competitive ordinance as a violation of the North Carolina Constitution’s guaranteed right to an honest living, which states that any restrictions on a citizen’s right to earn a living must be based on a reasonable concern for public health and safety. This ordinance was unrelated to either one, as town officials said that they did not object to food trucks in general, just competition from “outsiders.”

“I’m very excited, very happy for all food truck owners in the area,” said Michelle Rock, owner of T’Geaux Boys and Momma Rock’s Desserts. “We’re just very happy Carolina Beach has decided to lift restrictions and allow us to serve the public and allow us to serve food truck food.”

Harley Bruce, owner of Poor Piggy’s BBQ & Catering, said that just about everybody he talked to was in favor of allowing food trucks in the town and “the town seems to be listening to what the people are saying and making positive change.”

“We’re very happy and we’re just happy that they did the right thing,” Aaron Cannon, owner of A & M’s Red Food Truck, said. “We’re looking forward to serving the people of Carolina Beach and building relationships there.”

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San Antonio, El Paso and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ will be arguing against unconstitutional food truck regulations before the Illinois Supreme Court. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wis.

New Jersey Governor Vetoes Hair Braiding Reform Legislature Had Passed Unanimously

Gov. Phil Murphy conditionally vetoed a bill (A-3754) on Monday that would have let African-style natural hair braiders practice their craft without a license. In New Jersey, braiders can only work legally if they are licensed cosmetologists, which requires at least 1,200 hours of training and can cost upwards of $17,000 in tuition. Several braiders in the Garden State have been fined and arrested, while others have been forced to shutter their shops, simply because they earned an honest living without that license.

Reflecting a broad, bipartisan consensus, A-3754 passed both the Assembly and Senate unanimously and without any public opposition. But on Monday, the very last day for the governor to act (and almost two months after the Senate approved the bill during the heated budget vote), Gov. Murphy rejected the reform.

“By vetoing this bill, the governor is stifling upward mobility for hundreds of immigrants and women of color,” said Brooke Fallon, assistant director of activism at the Institute for Justice. “Over 100 braiders have spoken out against New Jersey’s licensing law at community events, town halls, and rallies, even if making their voices heard could open themselves up to prosecution. We are determined to keep fighting for their right to economic liberty and are calling on the Legislature to override the governor’s veto. Braiders deserve much better.”

In his 25-page conditional veto letter, Gov. Murphy offered what amounted to an entirely new piece of legislation. In the governor’s proposal, he advocated a separate license for braiders with a maximum of 40-50 hours of coursework, depending on a braider’s experience level. In addition, the governor wants to add two new members, who own braiding salons, to the state’s cosmetology board.

Even worse, the governor’s plan would only allow braiders who have been licensed for at least three years to run their own shops. With no grandfathering provision, braiders would either have to shut down for three years or find a licensed cosmetologist or beautician to “run” their own business, even though many cosmetology schools don’t teach anything about African-style braiding techniques.

Simply put, the governor’s proposal is completely unnecessary. Today, 25 states, including Connecticut, Delaware, and Maryland, don’t license braiders. And specialty braiding licenses, like the governor has proposed, do nothing to protect the public’s health and safety and only throw braiders out of work.

In its 2016 report, Barriers to Braiding, the Institute for Justice looked at nine states and the District of Columbia, which had a separate license or registration system for hair braiders between 2006 and 2012. After examining records for more than 9,700 braiders, only 95 had a complaint file against them, with very few of those complaints relating to any alleged health or safety violations.

“The government has no business licensing something as safe and natural as braiding hair,” said Lee McGrath, senior legislative counsel for the Institute for Justice. “Instead of creating a license, New Jersey legislators who insist on regulating braiders—despite not having evidence of harm from states where braiders are free to work—could use less restrictive alternatives, like registration, health and safety brochures, or narrowly tailored online course modules. These methods would be far less burdensome on braiders.”

Food Truck Owners Fight For Right To Compete in Carolina Beach

Carolina Beach, N.C.—Variety is the spice of life, unless you live in the small beach community of Carolina Beach, North Carolina, where the town council has made it nearly impossible for food truck owners from neighboring towns to operate. Thankfully, the North Carolina state constitution makes that kind of economic protectionism illegal. So, today, a group of food truck owners have filed a lawsuit to strike down Carolina Beach’s unconstitutional ban on out-of-town trucks.

Carolina Beach’s illegal ordinance is remarkably straightforward in its favoritism. People who have owned restaurants in Carolina Beach for over a year can also own food trucks, but no one else can.  That means the dozens of food trucks operating in the greater Wilmington, N.C.-area are effectively locked out of town. To justify the law, the town planner explained that, “direction from council as far as food trucks in the past has been they did not want it to be seen as competition for . . . brick and mortar businesses[.] We would not let an outsider come over the bridge and set up shop when they’re not an existing business.”

“Carolina Beach has turned their island’s bridge into a drawbridge to be pulled up on competition,” said Justin Pearson, a senior attorney at the Institute for Justice, which represents the plaintiffs. “The North Carolina state constitution makes it illegal for towns like Carolina Beach to pick winners and losers by locking out businesses from neighboring communities. It is not the government’s job to decide what people eat, or where they eat it. That choice belongs to customers.”

Wilmington-based food truck owner Michelle Rock has spent thousands of hours perfecting pastries and meals inspired by her upbringing in New Orleans. Rock started with Momma Rocks Deserts, which features New Orleans-inspired cupcakes, cakes, and pastries. Her initial success paved the way for her to start a second truck, T’Geaux Boys—pronounced “to go boys”—which offers muffaletta sandwiches and other Louisiana delicacies. Her success over the past decade is a testament to her passion for Cajun cuisine and has enhanced the options in Wilmington’s dining scene.

“Carolina Beach is the only town in the area that doesn’t want us doing business,” said Rock.“It doesn’t make sense that restaurants that are already there are allowed to have food trucks when we aren’t.”

Rock is among many North Carolina-based food truck owners looking to do business, including Aaron and Monica Cannon, who own A&M’s Red Food Truck, and Harley Bruce, who owns Poor Piggy’s BBQ & Catering Truck. The Cannons’ Red Food Truck offers the same tacos with which the Cannons fell in love while serving in the military in San Diego, and Harley Bruce offers delicious pork sandwiches and fresh brisket. All these entrepreneurs want is to be able to serve Carolina Beach’s residents and visitors, which is why they’ve teamed up to file the lawsuit.

“Operating a food truck is hard but rewarding work,” Pearson added. “For many, a successful food truck can provide the know-how and capital to eventually open a traditional restaurant. This crucial step allows them to support themselves and their families, provide jobs to others, and invent creative dishes to the delight of the public.

“The North Carolina Constitution makes it illegal for government to protect businesses from competition,” said IJ attorney Johanna Talcott. “The government cannot block out-of-town businesses just to favor businesses already in the town.  We will continue to fight for food truck owners and their constitutional right to earn an honest living.”

IJ fights for vendors’ rights across the country through its National Street Vending Initiative. IJ lawsuits in San AntonioEl Paso, Louisville, successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ will be arguing against unconstitutional food truck regulations before the Illinois Supreme Court. IJ is also litigating food truck cases in Baltimore and Fish Creek, Wisc.

Maine Parents Challenge Law Excluding Religious Schools from the State’s Tuition Program

Portland, Maine—Today, three families represented by the Institute for Justice (IJ) and the First Liberty Institute (FLI) filed a federal lawsuit alleging that a Maine law that excludes parents from participating in the state’s school tuition program because they chose religious schools for their children, violates the U.S. Constitution’s guarantees of free exercise of religion and equal protection of the law.

“In Maine, parents who live in towns without public high schools have the right to select the public or private school that best suits their children’s educational needs. The town then pays tuition to the school that the parents choose—unless the school is religious,” explained IJ’s lead counsel in the case, Senior Attorney Tim Keller. “By singling out religious schools, and only religious schools, for discrimination, Maine violates the U.S. Constitution.”

Maine is home to the nation’s second-oldest school choice program. Since 1873, Maine’s “tuitioning” system has paid for parents in towns too small to maintain public schools to send their children to the school of their choice—public or private, in-state or out-of-state. Until a flawed 1980 legal opinion, parents were free to exercise their independent choice to select religious schools.

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.

“Maine offers school choice to everyone except those who choose religious schools,” said Lea Patterson, associate counsel with FLI. “Under the U.S. Constitution, that’s religious discrimination, and we intend to restore our clients’ religious liberty.”

The three plaintiff families reside in small towns—Orrington, Glenburn and Palermo—where the local school districts pay tuition for resident high school students to attend the public or private schools of their choice in lieu of maintaining their own public high schools.

“We feel discriminated against because of our religious convictions,” said Alan and Judy Gillis of Orrington, who send their daughter to Bangor Christian Schools at their own expense. “If our neighbors have the freedom to choose a private school and receive tuition from our town, why are we denied this same benefit just because we desire a religious education for our daughter?”

IJ and FLI represent three Maine families who ask the U.S. District Court for the District of Maine to strike down the state’s law prohibiting towns from paying tuition on behalf of families that choose religious schools.

IJ previously brought two similar lawsuits in state court, Bagley v. Town of Raymond in 1997, and Anderson v. Town of Durham in 2002. In both cases, the Maine Supreme Court upheld the law.

“The U.S. Supreme Court has said that IJ’s clients were right in the first two state cases, and our clients are unquestionably right in this new federal case: The Constitution does not allow discrimination against parents who choose religious schools for their children,” Keller concluded.

IJ, the nation’s leading legal advocate for school choice, is currently defending school choice programs in Florida and is challenging the exclusion of religious schools from Montana’s private school scholarship program and the exclusion of sectarian employers from Washington state’s post-secondary work study program. IJ also recently secured a victory for school choice in the Puerto Rico Supreme Court and helped win two victories at the U.S. Supreme Court for school choice on behalf of parents in defense of Cleveland, Ohio’s and Arizona’s school choice programs.

FLI is the nation’s largest legal organization dedicated exclusively to protecting religious liberty for all Americans.

Outdated Federal Law Threatens Unique Richmond Publisher

Richmond, Va.—The U.S. Copyright Office is demanding copies of hundreds of books published by a small Richmond publisher, Valancourt Books. If Valancourt doesn’t send the books, they could be subject to six figures in fines. But there’s a problem: Valancourt doesn’t have the books. They are a print-on-demand publisher, and giving the federal government free books would damage their business. To protect their property and their right to free expression, Valancourt has teamed up with the Institute for Justice (IJ) to file a lawsuit in federal court.

Valancourt uses modern methods to preserve old, forgotten books. The idea for the business was hatched when owner James Jenkins was applying for a program in English Literature. He had to drive halfway across the country to find a copy of a novel he wanted to write about; even then, it was available on microfiche only. James thought that other literature fans would appreciate the novel (and a second out-of-print book he had on microfiche). So he and his husband painstakingly typed out the books and then offered them for sale on their website, where they were made available in print-on-demand versions.

Over the years, James built the business up to the point where he could make it his full-time job. Valancourt has received praise from prominent publications for its preservation work, which focuses on 18th-century Gothic novels, Victorian horror novels and works by early LGBT authors, all of which they have permission to reprint.

The Copyright Office is correct that the law entitles the government to copies of Valancourt’s books. The law, however, is a relic of the United States’ old copyright system, which used to require sending books to the government to register copyright. Now, copyright is conferred the moment pen is put to paperbut the legal requirement to send copies to the government remains in force anyway.

“You don’t owe the government anything just because you published a book,” said Robert McNamara, a senior attorney at IJ. “Valancourt Books is trying to bring long-forgotten books to a wider audience that wants to read them. They shouldn’t be punished for that.”

Earlier this summer, Valancourt was sent notice by a federal “acquisition specialist” informing James that his business had failed to comply with federal “mandatory deposit” rules for its books. Failing to provide the books by September could subject Valancourt to fines of $250 per book (plus the retail price of the books), along with additional fines of $2,500 for “willful” failure to deposit the books.

“Sending hundreds of our books to the government will cost us thousands of dollars and many hours of time, which cuts into our already limited resources for our mission to rescue rare and important literature,” said James Jenkins, co-owner of Valancourt Books. “But if we don’t send the books, the Copyright Office says they will fine us out of existence. We had no choice but to stand up for our constitutional rights and fight back, which is why we are joining the Institute for Justice in challenging this unjust law.”

Valancourt and IJ are suing the Copyright Office in the United States District Court for the District of Columbia. The lawsuit raises two claims. First, the mandate violates the Takings Clause of the Fifth Amendment: The federal government can’t simply force someone to turn over their personal property for the government’s own use without paying them for it. And second, the mandate violates the First Amendment: The deposit requirement operates as a penalty on people who publish physical books without turning over a copy.

The book-deposit requirement is a symptom of a broader problem throughout the federal government. Like many federal laws, the book-deposit requirement is obscure; most peopleperhaps even most people in the publishing industryhave no idea it exists. And, like many federal laws, the requirement is mostly unenforced. Publishers have to comply only when (as happened to Valancourt) one of the Copyright Office’s handful of “acquisitions specialists” happens to spot them and threatens them with astronomical fines. Given the sheer amount of self-published material, there is no question that thousands of books a year go undeposited without anyone noticing.

“The federal code is full of requirements that most people don’t know about and that are generally ignoredright up until the moment a government official happens to notice you and threatens you with six-figure fines,” said Jeffrey Redfern, an attorney with IJ. “The mandatory-deposit requirement is clearly antiquated and unconstitutional. It should never be enforced again.”

Lawsuit Challenges Religious Discrimination in Washington Work-Study Program

Like other schools in Washington state, Summit Christian Academy, a K-12 private school in Spokane, would like to hire college students as tutors under the state’s Work-Study Program. But because Summit is a religious school, it is barred by the government from doing so, even if those students would be tutoring in subjects such as math and English. That’s an obvious form of religious discrimination, which is why, today, Summit and a group of students from Whitworth University have partnered with the Institute for Justice (IJ), a national public interest law firm, to file a federal lawsuit challenging Washington’s prohibition on so-called “sectarian” options in the Work-Study Program.

“Washington’s exclusion of sectarian options from the Work-Study Program is a clear-cut case of religious discrimination,” said Michael Bindas, a senior attorney at IJ. “The U. S. Constitution requires government to be neutral toward religion, not hostile. By denying work-study opportunities to students simply because they desire to work for a religious employer, Washington is running afoul of the First Amendment.”

Bindas continued: “For too long, state constitutional provisions like Washington’s have been used to hamper educational choice programs. This lawsuit seeks to put an end to religious discrimination at all levels of education, from kindergarten to college and beyond.”

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Like work-study programs in other states, Washington’s is a financial aid program that provides funding for low- and middle-income students who want to earn money during college, often working in jobs that relate to their field of study. But unlike most other states, Washington prohibits jobs with employers that the government deems overtly religious. That means that a student majoring in environmental science can work at the Washington State Department of Natural Resources and a business student can work at Amazon, but a student majoring in social work cannot feed the homeless at a church’s soup kitchen.  Nor can an education major work at a religious school, like Summit.

In 2015, a student at Spokane Community College wanted to use his work-study funds to work as a tutor at Summit. But before he could start, Summit needed to apply to participate in the program. They submitted the necessary paperwork, as well as a follow-up Religious Affiliation Questionnaire. Eventually the Washington Student Achievement Council, which oversees the program, denied Summit’s application, and the student was unable to work for the school.

Just two years later, however, in 2017, the U.S. Supreme Court ruled that Missouri violated the Constitution when it excluded a church-run preschool, because it was religious, from a state grant program for playground resurfacing. In deciding the case, the Court ruled that the First Amendment’s Free Exercise Clause requires that laws be “neutral and generally applicable without regard to religion.” They may not “single out the religious for disfavored treatment.”

“Just as we stress in defending educational choice programs throughout the country, government cannot dictate where a student chooses to learn or, in this case, work,” said IJ attorney Josh House. “Whether it is a college student who wants to work for a religious employer or a grade school student who wants to attend a religious school, the Supreme Court has made clear that government cannot discriminate on the basis of religion.”

Washington’s exclusion of “sectarian” options is based on the Washington Student Achievement Council’s reading of provisions in the state constitution commonly referred to as “Blaine Amendments.” These provisions were the product of an anti-Catholic movement in the 19th century led by Protestant congressman James G. Blaine. Blaine sought to amend the U.S. Constitution to preserve the Protestant nature of the era’s public schools, while barring public funding of Catholic schools. Although Blaine’s proposed amendment failed, some 37 states have included similar provisions in their own constitutions. These “Blaine Amendments” are not, as some argue, a high-minded statement about the separation of church and state, but rather vestiges of 19th-century animus that were, as a four-justice plurality of the Supreme Court has observed, “born of bigotry.”

With this case, IJ hopes to remove that Blaine-based discrimination in the work study program in Washington and beyond.

Victory for Puerto Rico Families as Supreme Court Upholds Scholarship Program

San Juan, Puerto Rico—Today, the Puerto Rico Supreme Court rejected a teachers’ union’s challenge to the Free School Selection Program, and declared the program constitutional. As a result, up to 10,000 Puerto Rican families will be able to apply for government scholarships to send their children to the private or public schools of their choice. Scholarships will be available for the 2019–2020 school year.

The three Puerto Rico families who defended the program are grateful for the result and look forward to applying. “Justice has been done for my daughter and for the children of Puerto Rico, who will benefit from this great opportunity,” said Jessica Ñeco, one of the mothers who defended the program in court. “We are very happy to have been vindicated by the Supreme Court.” The three families were represented by the nonprofit organization the Institute for Justice (IJ).

The Free School Selection Program was signed into law in March 2018. The program prioritizes students who are low income, disabled, adopted or in foster homes, victims of bullying or sexual harassment, gifted or falling behind in their education. Any student who has been enrolled in a public school for more than two years is eligible.

Immediately after the program was passed, however, it was challenged in court by a teachers’ union, the Asociación de Maestros de Puerto Rico. The union argued that the program “supported” private schools in violation of the Puerto Rico Constitution’s “Support Clause.” This clause was the reason the Puerto Rican Supreme Court had invalidated a similar program in 1994.

Today, the Court overturned that prior case. In doing so, the Court agreed with the families that the Free School Selection Program is constitutional because it “supports” needy families, not schools, and any benefit to private schools under the program is merely incidental.

“Puerto Rican families can finally have a say in their children’s education,” said Erica Smith, an attorney at IJ. “Puerto Rico now joins 29 other states and the District of Columbia, all of which allow families educational choice.”

The case marks the latest educational choice victory for IJ, which also represented Puerto Rico parents in the previous challenge to scholarships in 1994. IJ has litigated over 20 educational choice cases, including two at the U.S. Supreme Court. IJ is currently representing parents in similar cases in Montana and Florida.

Victoria para Familias Puertorriqueñas en la Confirmación por el Tribunal Supremo del Programa de Becas

San Juan, Puerto Rico—Hoy el Tribunal Supremo rechazó el desafió de un sindicato de maestros contra el Programa de Libre Selección de Escuelas y declaró que el programa es constitucional. Como resultado de ello, hasta 10.000 familias puertorriqueñas podrán solicitar becas del gobierno para enviar a sus hijos la escuela pública o privada de su preferencia. Las becas serán disponibles para el año escolar 2019-2020.

Las tres familias que defendieron el Programa están agradecidas por el resultado y esperan solicitar becas. “Se hizo justicia para mi hija y para los niños de Puerto Rico que se beneficiarán de esta gran oportunidad,” dijo Jessica Ñeco, una de las madres que defendió el Programa en los tribunales. “Estamos muy felices y sentimos que fuimos revindicados.” Las tres familias fueron representadas por la organización sin fines de lucro, el Institute for Justice (IJ).

El Programa de Libre Selección de Escuelas fue firmado en marzo de 2018.  El programa da preferencia a los estudiantes que son de bajos ingresos, discapacitados, adoptados o en hogares de crianza, víctimas de la intimidación o de acoso sexual, talentosos, o rezagados en su educación. Cualquier estudiante que haya estado matriculado en una escuela pública por más de dos años es elegible para una beca.

Sin embargo, inmediatamente después de que se promulgó el Programa, uno de los sindicatos de maestros, la Asociación de Maestros de Puerto Rico, lo impugnó. El sindicato alegó que el programa brindó “sostenimiento” a las escuelas privadas en contra de lo dispuesto en la “Cláusula de Sostenimiento” de la Constitución de Puerto Rico. A causa de esta cláusula, el Tribunal Supremo declaró que un programa parecido era inconstitucional en 1994.

Hoy, el Tribunal Supremo invalidó su decisión anterior. Al hacerlo, el Tribunal se mostró de acuerdo con las familias en decir que el Programa es constitucional porque brinda “sostenimiento” a familias necesitadas, no a escuelas, y cualquier beneficio que reciben las escuelas privadas bajo el Programa es meramente incidental.

“Por fin, familias puertorriqueñas tienen una voz en la educación de sus hijos,” dijó Erica Smith, abogada del IJ. “Hoy, Puerto Rico se une con los 29 otros estados y el Distrito de Columbia, todos los cuales permiten que las familias tengan la elección educativa.”

Este caso señala la victoria más reciente para IJ, la organización que también representó a los padres puertorriqueños en 1994 ante el desafió anterior contra las becas. IJ ha litigado en más de 20 casos de selección de escuelas, incluidas dos veces ante el Tribunal Supremo Federal. Actualmente, IJ representa a padres en casos en Montana y Florida.

Puerto Rico saca “F” en sus leyes de expropiación

Arlington, Va.– Las leyes de expropiación forzosa de Puerto Rico recibieron una calificación de F en un reporte publicado hoy por el Institute for Justice, una organización sin fines de lucro y firma legal de libertades civiles dedicada a erradicar la expropiación (o el “dominio eminente” como se conoce en los Estados Unidos) de manera abusiva. El reporte examina las prácticas de expropiación de Puerto Rico, particularmente casos donde el gobierno confisca la propiedad privada no para usos públicos tradicionales sino para desarrollo privado. El documento detalla las deficiencias en las leyes que otorgan a los municipios una gran autoridad para apoderarse de la propiedad privada por prácticamente cualquier razón que consideren apropiada. El reporte hace recomendaciones a la Asamblea Legislativa para la reforma y para garantizar que los propietarios y las comunidades de la isla estén a salvo de apropiaciones ilegítimas de tierras, en el contexto de las tendencias generalizadas en Estados Unidos para reducir el abuso de expropiación forzosa.

[ Descargue el reporte aquí.]

Históricamente, la expropiación forzosa era utilizado para fines públicos, tales como carreteras y escuelas. A través del tiempo la definición de público se expandió para incluir propósitos que sirviesen para beneficio público; mayormente ingresos fiscales y empleos. Esto condujo a potenciar el abuso de la expropiación forzosa a nivel estatal, donde los municipios utilizaron propiedades en perfectas condiciones y comercios con dueños propios para simplemente transferirlos a desarrolladores millonarios. Esto se agravó en el 2005 cuando el Tribunal Supremo de los Estados Unidos tomó la decisión en el caso Kelo v. City of New London, lo cual fue litigado por el Institute for Justice. El tribunal decidió que el gobierno puede adquirir propiedad privada basada en la promesa de incrementar los ingresos fiscales y empleos como condición. Sin embargo, y luego de esa decisión, 44 estados reformaron sus leyes de expropiación forzosa, lo que hace que al presente el abuso de expropiación forzosa sea casi inexistente en Estados Unidos. Mientras tanto, Puerto Rico ha seguido utilizando habitualmente la expropiación forzosa para el desarrollo privado.

“Las leyes de expropiación forzosa en Puerto Rico son unas de las peores en los Estados Unidos” indicó Robert McNamara, el abogado principal del IJ y experto legal en casos de la expropiación forzosa. “La expropiación pudiera ser y ha sido utilizada por cualquier interés por parte del gobierno y los municipios, tales como centros comerciales, viviendas lujosas y restaurantes. Esa no es la intención de la Constitución. Nadie en la isla debe perder su residencia o negocio, o ver destruir su comunidad simplemente para que el gobierno pase la propiedad a manos de otra entidad privada.”

“Estamos particularmente interesados en los municipios de Puerto Rico, ya que están predispuestos al abuso de poder de la expropiación forzosa en el desarrollo privado, y también porque ven la entrada de miles de millones en desarrollo comunitario a nivel federal a través de subsidios. Estas propuestas dan luz verde a proyectos que no eran políticamente viables y que amenazan las comunidades,” indicó Brooke Fallon, Directora Auxiliar de Activismo en el Institute for Justice. “Especialmente en este momento de intensa recuperación, el gobierno de Puerto Rico debe respetar los derechos de sus constituyentes en proteger lo que tienen y por lo que han trabajado tan duro para adquirir. Esos derechos representan la columna vertebral de la prosperidad de la isla”.

Una delegación del Institute for Justice visitó a Puerto Rico y conoció de primera mano víctimas de expropiación forzosa en comunidades que han luchado en los últimos años por la reforma de las leyes. Copia del reporte fue enviado a cada legislador a principios de la semana.

El Institute for Justice representa a dueños de propiedades en el tribunal en sus reclamos legales contra la expropiación por el desarrollo privado. El activismo del IJ ha ayudado salvar alrededor de 20,000 viviendas y pequeños negocios del abuso de la expropiación forzosa a través de organizaciones comunitarias, siendo instrumental en los esfuerzos de reforma después de Kelo. A raíz de la decisión de Kelo, IJ publicó un “Informe de 50 estados” que calificó los esfuerzos de reforma de los estados. Puede acceder a la información en esta dirección; http://castlecoalition.org/50-state-report-card.

Puerto Rico Receives “F” on Eminent Domain Laws

Arlington, Va.– Puerto Rico’s eminent domain laws received a grade of “F” in a report released today by the Institute for Justice (IJ), a nonprofit, civil liberties law firm dedicated to ending eminent domain abuse: when the government seizes private property not for traditional public uses, but for private development. The report examines Puerto Rico’s eminent domain practices—or “expropriation” as it is called on the island—and details the law’s serious shortcomings, which give municipalities vast authority to seize private property for virtually any reason they deem appropriate. The report makes reform recommendations to the Legislative Assembly to ensure the island’s property owners and communities are safe from illegitimate land grabs, in the context of widespread stateside trends to curtail eminent domain abuse.

Download the report card here.

Historically, eminent domain was used for public uses, things like roads and schools. Over time, the definition of public use was expanded to include purposes that serve a public benefit: namely, increased tax revenue and jobs. This led to widespread eminent domain abuse stateside, where cities took perfectly fine homes and businesses from property owners simply to transfer them to wealthy developers. This culminated in the 2005 U.S. Supreme Court decision in Kelo v. City of New London, litigated by IJ. The Court infamously ruled that cities could take private property based on the mere promise of increased tax revenue and jobs, but following that decision, 44 states reformed their eminent domain laws—making eminent domain abuse nearly non-existent stateside. Meanwhile, Puerto Rico has continued to habitually use eminent domain for private development.

“Puerto Rico’s eminent domain laws are some of the worst in the United States,” said Robert McNamara, a senior attorney at IJ and legal expert on eminent domain. “Expropriation can be – and has been – used for basically anything municipalities want—shopping malls, restaurants, luxury housing—but that’s not the intention of the law. Nobody on the island should ever lose their home, business or their community, simply for the government to hand it over to another private entity.”

“We are particularly concerned that Puerto Rico’s city governments—which are already pre-disposed to abuse the power of eminent domain for private development—will see the influx of billions in federal Community Development Block Grants as a green light to condemn communities for projects that were previously not politically viable,” said Brooke Fallon, assistant director of activism at IJ. “Especially at this time of intense recovery efforts, the Puerto Rican government should respect constituents’ rights to keep what they’ve worked so hard to own, and the communities that are the backbone of the island.”

A delegation of IJ officials recently visited Puerto Rico and met with victims of eminent domain and communities who have in recent years fought to reform the island’s laws.

IJ represents property owners in court in their legal challenges to condemnations for private development. IJ’s activism team has helped save nearly 20,000 homes and small businesses from eminent domain abuse through grassroots organizing, and was instrumental in reform efforts following Kelo. In the wake of the Kelo decision, IJ released a “50 State Report Card” that graded states’ reform efforts. It is also available at http://castlecoalition.org/50-state-report-card.

Federal Judge Strikes Down Charleston’s Licensing Requirement for Tour Guides

Charleston, S.C.—In a sweeping victory for free-speech rights, Judge David Norton of the U.S. District Court for the District of South Carolina today issued an opinion holding that the City of Charleston’s licensing requirement for tour guides violates the First Amendment. The licensing law was challenged by three would-be tour guides—Kimberly Billups, Michael Warfield and Michael Nolan—who joined with the Institute for Justice (IJ) in January of 2016 to file a lawsuit alleging that the law amounted to an unconstitutional license to speak. Today’s opinion is the result of a four-day trial held in April of this year.

“The First Amendment means we rely on people to decide who they want to listen to rather than relying on the government to decide who gets to speak,” explained Arif Panju, Managing Attorney of IJ’s Texas Office. “Charleston’s tour-guide license turned that principle backwards, but today’s ruling puts citizens, rather than city officials, back in charge of what they say and what they listen to.”

“History speaks volumes,” said Kimberly Billups, one of the victorious plaintiffs. “Charleston is not above the law of the land.”

The court’s ruling centered on the fact that the tour-guide licensing law imposed serious burdens on would-be guides’ ability to speak, yet the city had never tried any less-restrictive regulations before imposing the licensing law. For instance, voluntary-certification programs exist in Philadelphia and Savannah.

“The [tour-guide] licensing law imposes real burdens on those hoping to be tour guides in Charleston,” the court’s opinion reads, “[b]ut the record demonstrates that the City never investigated or tried to use any less speech-restrictive alternatives … [And so the court] has no choice but to strike the licensing law down as unconstitutional under the First Amendment.”

Today’s court ruling is the latest in a nationwide string of victories by IJ against licensing laws that restrict peoples’ ability to speak for a living. The Institute has defeated tour-guide licensing laws in Philadelphia, Washington, D.C. and Savannah, Ga., and won other victories on behalf of other people ranging from diet-advice bloggers to newspaper advice columnists.

“The First Amendment protects your right to speak for a living, whether you’re a journalist, a stand-up comedian or a tour guide,” concluded IJ Senior Attorney Robert McNamara. “Today’s opinion vindicates that principle, and we look forward to yet more victories for occupational speech in the months and years to come.”

South Side Pitch Business Competition to Showcase Community Entrepreneurs

CHICAGO—Creative entrepreneurs on Chicago’s South Side are busy preparing to demonstrate that they have the most promising idea in order to win the fifth annual South Side Pitch business competition. Since its inception, the Institute for Justice Clinic on Entrepreneurship-hosted competition has been a powerful demonstration that the South Side is home to innovative individuals determined to improve their lives and their community.

South Side Pitch allows promising entrepreneurs to showcase their innovative business ideas in a “Shark Tank” style contest, with the final five contestants presenting their pitches at the Polsky Center for Entrepreneurship and Innovation at the University of Chicago on October 11. Applicants compete to win several great prizes, including a total of $11,000 in cash prizes.

South Side Pitch welcomes entrepreneurs at all stages—from those at the idea stage to those whose businesses are already up and running—to apply. In the semifinals, a group of applicants will be invited to submit a one-minute video. Five finalists from that pool will have the opportunity to present to a crowd of 250 South Side community members on October 11. The application period for South Side Pitch is now open and will close on August 17. Aspiring entrepreneurs can visit www.southsidepitch.com/apply for contest details and to apply.

Prior winners have used their prizes to expand their businesses and create new jobs. Last year’s first-place winner, KaZoom Kids Books, used prize money to market its digital library of multicultural children’s books, available now on the App Store and Google Play. Second-place winner Back of the Yards Coffeehouse and Roastery used prize money to invest in the job-creating part of its business: its budding roastery. Lastly, third-place winner re:work training used prize money to recruit a new executive director. The business selects talented applicants with limited education, trains them on how to sell software and then places them in well-paying software sales roles—free of charge. In 2017, re:work training graduates saw an average salary increase of 239 percent after completing the program.

“Chicagoans don’t often get to hear about the strong entrepreneurial spirit of the South Side, but we’ve seen it energetically demonstrated year after year at South Side Pitch,” said Beth Kregor, the director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago. “South Side Pitch is all about giving budding business owners a way to make their dreams reality and also about showing a side of the community that is too often buried under bad headlines.”

South Side Pitch is hosted by the Institute for Justice Clinic on Entrepreneurship. The contest is sponsored by the Polsky Center for Entrepreneurship and Innovation and the University of Chicago Office of Civic Engagement.

South Side Pitch is free and open to the public. To learn more, visit www.southsidepitch.com.

The Institute for Justice Clinic on Entrepreneurship provides free legal assistance, access to resources and advocacy for low-income Chicago entrepreneurs. To learn more about the IJ Clinic, visit www.ij.org/clinic.

N.C. Doctor Sues to Break Up State-enforced Medical Monopoly

Imagine living in a neighborhood dominated by expensive restaurants with poor service and lackluster food. You see an opportunity and decide to open your own restaurant, but when you apply for your basic business license, a regulator says “there are already enough restaurants in your neighborhood and your competition might put them out of business,” and denies your application.

That’s precisely the predicament that Dr. Gajendra Singh finds himself in, except that instead of opening a restaurant, he’s opened a low-cost, transparently priced medical imaging center in Winston-Salem, North Carolina.

In 2017, Dr. Singh opened Forsyth Imaging Center to provide medical imaging services at a fraction of the prices charged by traditional providers, like hospitals. But Dr. Singh is prohibited from purchasing an MRI scanner—a key component of an imaging center—because the state’s outdated “certificate of need” law (CON)  requires medical entrepreneurs to get the state’s permission to compete against existing providers. In Dr. Singh’s case, a board dominated by regulators and health care industry insiders has decided there is no “need” for a scanner that would compete with the nearby hospital, so he cannot even apply for the permit, let alone purchase one.

Dr. Singh thinks that competition is critical to maintaining quality, affordable health care, especially in an age of ever-increasing out-of-pocket deductibles. So he’s fighting back. Today he teamed up with the Institute for Justice (IJ) to file a lawsuit challenging the constitutionality of the state’s CON law. Thankfully, the North Carolina Constitution specifically outlaws state-enforced monopolies and demands that laws be applied even-handedly to protect citizens’ rights to earn an honest living.

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“As a medical doctor, Dr. Singh took an oath to help people in need, yet the state is standing in his way to protect established medical providers from competition,” said Renée Flaherty, an attorney at IJ, which represents Dr. Singh. “That’s plainly unconstitutional. Dr. Singh knows first hand how hard it is for many of his patients to afford expensive medical services like MRIs and other scans. He’s made it his mission to provide affordable treatment with up-front prices. But North Carolina’s outdated CON law has made it an uphill battle for him to deliver on that promise.”

Dr. Singh, who is a practicing surgeon by trade, started Forsyth after listening to his patients complain about the hidden costs associated with medical scans. Medical costs, especially those that are paid out of pocket, are becoming increasingly opaque, which is particularly problematic for individuals on Affordable Care Act health insurance plans with high deductibles. In opening Forsyth, Dr. Singh wanted to simplify the process and offer affordable imaging services with no hidden costs. He advertises his prices online, which are as low as one-half or even a one-third the costs of the nearby hospital.

Since opening, Dr. Singh has purchased or leased a number of scanning devices such as X-ray and ultrasound machines, but because of the CON law, he cannot purchase an MRI scanner. Instead, he has to pay another provider to bring a costly mobile MRI to his office on a trailer for two days per week (the law requires that it be moved at least once per week). The mobile MRI is a costly loophole that allows Dr. Singh to provide a small number of patients the MRIs they need, but it only serves to drive up costs and drive down availability.

“Competition is the lifeblood of American entrepreneurship,” said Dr. Singh. “There is nothing special about the medical imaging field that should exempt it from basic economic principles like competition, and instead put in place a monopoly dominated by established medical providers.”

Dr. Singh is not alone in his frustration with the state’s certificate of need law. Across the country, medical innovators are forced to grapple with CON laws that were put in place in the mid-1970s. Since then, 14 states, including California and Texas, have eliminated their CON laws all together. North Carolina’s law is one of the worst in the country, regulating 25 different services.

“Health care costs are spiraling upwards, and CON laws are a big part of the problem,” said IJ Attorney Josh Windham. “By stifling competition and medical innovation, CON laws only serve to preserve existing providers’ monopolies and prevent startups from competing.”

This is not IJ’s first time challenging CON laws in court. In 2012 it filed a lawsuit in Virginia on behalf of a group of radiologists. And in Iowa, IJ is currently litigating a case on behalf of an ophthalmologist seeking to open an outpatient surgery center.

Federal Court Finds Albuquerque’s Civil Forfeiture Program Unconstitutional

In a ruling likely to have national implications, today a federal judge in Albuquerque has found that the city’s civil forfeiture program is unconstitutional. The ruling sets a precedent that calls into question countless other civil forfeiture programs across the country.

“Today’s ruling is a total victory for fairness, due process and property owners everywhere,” said IJ Attorney Robert Everett Johnson. “The court ruled the government must prove that an owner did something wrong before it can take away their property. Beyond that, the judge ruled that law enforcement cannot benefit financially from revenue generated by a forfeiture program. Together, these rulings strike at the heart of the problem with civil forfeiture. We will undoubtedly use this decision to attack civil forfeiture programs nationwide.”

Federal Judge James O. Browning found Albuquerque’s civil forfeiture program unconstitutional because the city’s ordinance violates the basic rule that citizens are presumed innocent until proven guilty. Albuquerque places the burden on property owners to prove their own innocence. Independent of that, he also struck down the law because funds raised by the program are used to fund the program’s budget, which gives law enforcement officials an incentive to police for profit, rather than justice. He wrote, “the City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years.”

“I’m glad this is going to help people in the same situation,” said IJ client Arlene Harjo, on whose behalf the case was filed. “It’s totally wrong what the government is doing. Hopefully now more people will fight back, and courts will say this has to stop.”

The fight over civil forfeiture in Albuquerque began in 2015, when a series of videos uncovered by the Institute for Justice revealed that city attorneys across the state were engaging in widespread policing for profit. Following the release of the videos, the New Mexico state legislature unanimously passed landmark legislation outlawing civil forfeiture. Despite that groundbreaking legislation, Albuquerque law enforcement officials continued to seize and sell hundreds of cars each year—including Arlene Harjo’s Nissan Versa.

The city claimed it could take Arlene’s car because her son, Tino, asked to borrow her car to drive to the gym in the middle of the day, but then took the car for a day-long trip and was found that evening allegedly driving under the influence of alcohol. Arlene does not approve of drunk driving; if Tino broke the law, she agrees he should be punished. But the city seized her car, and she did not see why she should be punished for something she did not do and never condoned.

So Arlene joined with the Institute for Justice in August 2016 to file a legal challenge to Albuquerque’s program, claiming that the program violates both the 2015 state law and the Constitution. The city returned Arlene’s car in December 2016, after it became clear that the car was actually outside city limits at the time that it was seized and therefore not even subject to the city’s jurisdiction. Arlene pressed forward with her broader legal challenge, however, and in March 2018 the court issued an opinion agreeing that Albuquerque’s program violates the 2015 reform law. Today’s opinion holds that Albuquerque’s program violates the Constitution as well.

“Civil forfeiture is one of the most serious assaults on private property rights in the nation today,” said IJ Senior Attorney Robert Frommer. “For decades, civil forfeiture has lured officials away from impartial enforcement of the law and toward policing for profit. Today’s ruling striking down Albuquerque’s forfeiture program is a major step towards ending forfeiture not only across New Mexico, but throughout the United States.”

The Institute for Justice is aided by local counsel Brad Cates. IJ is leading the fight against civil forfeiture nationwide. To learn more about this case and IJ’s national efforts, visit www.ij.org or www.endforfeiture.com.

Virginia Couple Sues to Protect Their First Amendment Right to Teach

Richmond, Va.—In Virginia, you can teach anyone anything—except how to earn an honest living. That’s the lesson Jon and Tracy McGlothian learned when they tried to open a school to teach job skills to adults in their Virginia Beach community. Yet the State Council of Higher Education for Virginia (SCHEV) has made it virtually impossible for them to do so legally.

SCHEV says that Jon and Tracy can’t teach skills like project management or sewing without its permission; permission the council has refused to grant for more than two years. That’s why Jon and Tracy have teamed up with the Institute for Justice (IJ) to file a federal lawsuit against SCHEV to vindicate their right to teach for a living.

Jon and Tracy worked for a lifetime to build skills to become, respectively, a certified project management professional (PMP) and experienced sewer. In 2015, their established business, the Mt. Olivet Group, LLC (TMOG), set out to teach people the skills they would need to advance in these fields. Under Virginia law, they could freely teach anyone these skills as a hobby, but cannot teach the general public if students want to use their classes to earn an honest living.

“What SCHEV is doing violates the First Amendment,” said Paul Sherman, a senior attorney with IJ. “Teaching is speech, and the government has no business telling Jon and Tracy they’re not allowed to teach willing adults. Under the First Amendment, people get to decide for themselves which speakers are worth learning from; the government doesn’t get to decide that for them.”

Jon, a former Army Ranger, used his military and corporate experience as a foundation to become a project manager. Project managers are responsible for planning and executing projects in an organized and strategic way to make sure projects are finished on time and on budget. TMOG is a Registered Education Provider with the Project Management Institute (PMI) and teaches project management for private companies and federal government clients. But even though Jon is permitted to teach for corporate and government clients, he has to prove to SCHEV that TMOG is a qualified vocational school in order to teach the general public, even though SCHEV knows nothing about project management.

“There’s incredible demand right now for certified project managers, particularly here in Virginia and Washington, D.C.,” said Jon. “Service members, in particular, develop skills and experience that make the field of project management a great option for a post-military career. I would love to help train people to fill those jobs. The only thing standing in my way is SCHEV.”

Tracy has an MBA, a successful sewing business, and has been asked by members of her community to teach them sewing skills so that they can support themselves. Under SCHEV’s rules, she can teach people sewing as a hobby, but the moment she tries to teach someone who wants to use these skills to earn a living, she becomes subject to SCHEV’s full regulatory regime.

“I don’t think what SCHEV is doing to us is right,” said Tracy. “The government couldn’t regulate me if I wrote a book about sewing, so I don’t see why they should regulate me simply because I give people that same information in a classroom.”

Getting permission from SCHEV to open a vocational school is no easy task. Jon and Tracy must satisfy dozens of bureaucratic requirements, complete mountains of paperwork, pay thousands of dollars in fees and even rent teaching space and assemble a library before they know whether they will be approved. Jon and Tracy assembled a 15-part binder filled with mandatory paperwork and revised their application after receiving a 7-page letter back from SCHEV, but they were still rejected after more than two years of trying.

“What’s happening to Jon and Tracy is part of a nationwide problem,” said Milad Emam, an attorney with IJ. “Across the country, government bureaucrats are acting as if people who speak for a living aren’t protected by the First Amendment. But that’s not right, and the U.S. Supreme Court has said it’s not right. That’s why we’ve filed a lawsuit on Jon and Tracy’s behalf to vindicate their First Amendment rights.”

The lawsuit argues that just as SCHEV would have no right to stop Jon and Tracy from publishing a book or posting an online video on project management or sewing, there is no constitutional basis for treating in-person instruction any differently. The suit also challenges SCHEV’s regulation of Jon’s PMP prep course since many other similar courses intended to teach individuals to pass a test are exempt.

This marks the second time IJ has paired with Virginia small-business owners to challenge SCHEV’s regulations. In 2009, IJ represented yoga instructors who were stopped from teaching other individuals how to become yoga instructors. The case ended when the Virginia legislature exempted yoga teachers and other hobby instructors from SCHEV’s regulation, but left in place the regulations that Jon and Tracy have found insurmountable.

IJ is the national leader in defending the right to speak for a living, having represented speakers ranging from tour guides in Washington, D.C., to veterinarians in Texas. IJ is currently challenging government restrictions on occupational and commercial speech in South Carolina, Georgia, Florida, and California.

Victory for Eyebrow Threaders In Louisiana

Baton Rouge, LA—Today, after waging a two-year legal battle with the Louisiana State Board of Cosmetology, a group of eyebrow threaders who challenged the state licensing requirement have received some of the first permits to thread eyebrows. Today also marks a moment when eyebrow threaders across the state are finally going back to work. That’s because the Board, facing the prospect of a long and losing legal battle, passed a regulation exempting eyebrow threaders from having to obtain a costly and burdensome esthetician’s license.

“Today’s a great day for hundreds of hard working Louisianians who want to earn an honest living in a time-honored profession many learned as children,” said Renée Flaherty, an attorney at the Institute for Justice, which represents the threaders. “The new rule will remove pointless and burdensome barriers to working as an eyebrow threader in Louisiana. The state’s cosmetology board has done the right thing by ending its unconstitutional licensing scheme.”

The threaders’ fight began in 2016, when the Institute for Justice (IJ) sued the Board on behalf of the Threading Studio & Spa—a Metairie business, owned by Lata Jagtiani—and two of the threaders who work there, Ushaben Chudasama and Panna Shah. The lawsuit challenged the constitutionality of a Louisiana law that required eyebrow threaders to spend 750 hours and thousands of dollars to obtain a pointless esthetician’s license.

The Board initially moved to dismiss the lawsuit, but Judge R. Michael Caldwell of the 19th Judicial District Court denied the motion in February 2017, allowing the case to proceed. Rather than defend the law in court, the Board then began the long process of carving out an exemption for eyebrow threaders from the conventional cosmetology rules.

In May, the Board adopted a new permit for threaders under which they can legally work after passing an exam testing their knowledge of proper sanitation techniques for threading.

Eyebrow threading is an ancient grooming technique that originated in South Asia and the Middle East. The technique is simple. Threading, as it is commonly known, uses a single piece of cotton thread to lift unwanted facial hair from the follicle. Since its arrival in the United States, the popularity of threading has soared, offering threaders opportunities for entrepreneurship and a shot at the American dream.

“I am just so happy,” said Lata Jagtiani.  “I came to this country because it offered better opportunities to start a business and make my dreams come true. But for years, Louisiana worked to keep me and my employees from making a living. Now we can all get back to doing what we love.”

Threaders statewide may now obtain a permit by filling out a simple application on the Louisiana State Board of Cosmetology website. The application includes study materials for a 15-question exam on sanitation practices. After threaders submit their application by mail, the Board will assign them a date to take the exam at the Board’s offices in Baton Rouge. Upon passing the exam, threaders are free to work.

“Eyebrow threaders don’t need licenses,” said IJ Attorney Wesley Hottot. “They just need to observe common sense sanitation practices. That is why, across the border, the Texas Supreme Court struck down an identical licensing requirement for threaders in 2015. It should come as no surprise that the Louisiana State Board of Cosmetology backed down in the face of IJ’s lawsuit and changed its rules.”

Puerto Rico Families Will Fight for Scholarship Program at Commonwealth’s Supreme Court

San Juan, Puerto Rico—On Friday, the Puerto Rico Supreme Court agreed to immediately hear a case concerning the constitutionality of Puerto Rico’s new Free School Selection Program. The Program, passed into law in March, grants eligible families scholarships to send their child to the private or public school of their choice. The Court of the First Instance of San Juan ruled that the Program was unconstitutional on July 6.

The Program was challenged in court by a teachers’ union, the Asociación de Maestros de Puerto Rico, in April. Helping the Commonwealth defend the program are three families who would be eligible for program scholarships.

“This program would be a very important tool for parents to be able to choose a school that meets the needs of our children,” said Jessica Ñeco, one of the mothers who is defending the Program in court. Ms. Ñeco wants to apply for a scholarship for her daughter. “By creating the Program, the government is telling our children ‘I believe in you, I trust you, you can dream … we are with you.’”

Briefing in the case is due on Friday, an expedited schedule. Should the courts allow the Program to move forward, families will begin applying for Program scholarships for the 2019-2020 school year. Students who have been enrolled in a public school for at least two years are eligible, and the Program is capped at approximately 9,600 students in its first year. The Program prioritizes students who are low-income, disabled, gifted, adopted or in foster homes, victims of bullying or sexual harassment or falling behind in their education.

According to the teachers’ union, the Program violates Article II, Section 5, of the Puerto Rico Constitution, which prohibits public funds from being used “for the support of schools or educational institutions other than those of the state.” In its ruling, the Court of First Instance agreed with the Union. However, the Court also ruled that the families could be a party to the lawsuit in order to help the government defend the Program’s constitutionality.

The families argue the Program is constitutional because it “supports” needy families, not schools, and any benefit to private schools under the Program is merely incidental. The U.S. Supreme Court and several state courts have already upheld similar school choice programs.

Currently, 32 similar school choice programs exist across the country. All of them allow parents to send their child to a private school with a government funded scholarship. “Programs like this exist throughout America, why do we have to be left out?” asked Ms. Ñeco.

The three families are represented by the nonprofit organization the Institute for Justice (IJ) and attorney Salvador Antonetti, former Solicitor General of Puerto Rico.

“These families are fighting to send their children to a school that best fits their individual needs,” said Erica Smith, attorney at IJ. “A good education should not depend on where you live or how much money your parents make.”

IJ is a national nonprofit firm with expertise in the constitutionality of school choice programs. IJ has represented parents and children in over 20 school choice cases across the United States, including twice at the U.S. Supreme Court.

Familias de Puerto Rico Lucharán por Programa de Becas en el Tribunal Supremo

San Juan, Puerto Rico—El viernes pasado, el Tribunal Supremo de Puerto Rico expidió un auto urgente y anunció que el Tribunal determinará la constitucionalidad del Programa de Libre Selección de Escuelas en Puerto Rico. El programa, aprobado en marzo, otorga becas a familias necesitadas para enviar a sus hijos a la escuela privada o pública de su preferencia. El 6 de julio de 2018, la jueza del Tribunal Superior en San Juan había dictaminado que el Programa era inconstitucional.

En abril, el Programa fue impugnado en el Tribunal de Primera Instancia por la Asociación de Maestros de Puerto Rico. Tres familias, cuyos hijos serían elegibles para recibir becas bajo el Programa, están ayudando al Estado Libre Asociado de Puerto Rico para defender el Programa.

“Este programa proveería una herramienta muy importante para nosotros los padres: el poder de elegir una escuela que satisfaga las necesidades de nuestros hijos,” dijo Jessica Ñeco, madre de una de las familias que defiende el Programa en los tribunales. Jessica Ñeco quiere solicitar una beca para su hija. “En crear este programa, el gobierno estaría diciendo a nuestros niños, ‘Yo creo en ti, yo confío en ti, puedes soñar … estamos contigo.’”

Las partes tienen hasta el viernes para presentar sus escritos, según términos acortados. Si los tribunales permiten que el Programa se adelante, las familias solicitarán becas para el año educativo 2019-2020. Los estudiantes que han sido matriculados en una escuela pública durante al menos dos años serán elegibles, y el programa tiene un límite de aproximadamente 9,600 estudiantes en el primer año. El programa da preferencia a los estudiantes que son de bajos ingresos, discapacitados, dotados, adoptados o en hogares de crianza, víctimas de la intimidación o de acoso sexual, o rezagados en su educación.

Según el sindicato de la Asociación de Maestros, el Programa violenta el Artículo II, sección 5, de la Constitución de Puerto Rico, el cual prohíbe que los fondos públicos se utilicen “para el sostenimiento de escuelas o instituciones educativas que no sean las del Estado.” La sentencia expedida por el Tribunal de Primera Instancia estuvo de acuerdo con el sindicato. Sin embargo, el Tribunal dictaminó también que las tres familias podrían ser partes en el caso para ayudar al Estado en la defensa de la constitucionalidad del Programa.

Las familias alegan que el Programa es constitucional porque existe para el “sostenimiento” de las familias necesitadas, no para sostener las escuelas, y que cualquier beneficio que reciben las escuelas privadas bajo el Programa es meramente incidental. El Tribunal Supremo Federal y varios tribunales estatales ya han confirmado programas parecidos de libre selección de escuelas.

Actualmente, existen 32 programas parecidos en todas partes de los Estados Unidos. Cada programa permite a los padres enviar a sus hijos a una escuela privada con una beca otorgada por el gobierno. “Programas parecidos existen a través de toda la nación americana, y ¿por qué nosotros tenemos que quedarnos afuera?” preguntó Jessica Ñeco.

Las tres familias están representadas por la organización sin fines de lucro, el Institute for Justice (IJ), y también por el abogado Salvador Antonetti, Ex Procurador General de Puerto Rico.

“Estas familias están luchando para enviar a sus hijos a la escuela que mejor sirva a sus necesidades individuales,” dijo Sra. Erica Smith, abogada de IJ. “Una buena educación no debería depender de dónde vive un niño o cuánto dinero ganan sus padres.”

IJ es una organización nacional sin fines de lucro que tiene pericia para defender la constitucionalidad de los programas de libre selección de escuelas. IJ ha representado a padres e hijos en más de 20 casos parecidos a través de los Estados Unidos, incluso dos veces en el Tribunal Supremo Federal.

Mississippi Startup Files First Amendment Countersuit Against State Licensing Board

Arlington, Va. — Should you need a license to use public information to draw lines on satellite photos? That is what the Mississippi Board of Licensure for Professional Engineers and Surveyors argued when they sued Vizaline, LLC, and co-founder Brent Melton for “unlicensed surveying” and sought to stop the company from operating and to have all its earnings returned to its customers. Yesterday, however, the company filed a countersuit in partnership with the Institute for Justice (IJ) arguing that the Board violated its First Amendment right to convey information to willing customers.

Vizaline provides a cost-effective way for banks to assess small, less expensive properties within their portfolios. It puts the public legal description of a property into a computer program in order to generate an outline of the property, which is then placed over a satellite photo of the property. This helps banks “see” their different properties and assess whether a surveyor and lawyer are needed to further verify the property or resolve any discrepancies in the legal description.

“Using public data to draw lines on satellite photos is not surveying, it’s free speech,” said IJ Senior Attorney Paul Avelar. “You don’t need the government’s permission to use existing information to create new information and sell it to willing customers.”

The board does not allege that Vizaline is engaged in traditional surveying. Instead, it argues that using public information to develop survey maps, plans, or reports requires a survey license. As part of its suit, the Board wants Brent and Vizaline to “immediately disgorge themselves” of all fees and compensation earned in the state, which could bankrupt the company.

“The government shouldn’t force me to return all the money my clients paid when they are perfectly satisfied with our services,” said Vizaline’s co-founder Brent Melton, a 42-year veteran in community banking. “I just want to protect my right to provide my customers with valuable information to help their businesses.”

Brent and Vizaline’s case is part of a growing, nationwide trend of occupational licensing boards restricting speech. In 2011, the North Carolina Board of Dietetics/Nutrition ordered paleo-diet blogger Steve Cooksey to stop providing online dietary advice. In 2013, the Kentucky Board of Examiners of Psychology accused family psychologist John Rosemond of the unlicensed practice of psychology because of advice published in his nationally-syndicated newspaper column.

“This is just the latest example of a licensing board needlessly expanding its authority to hinder new competition,” said IJ Attorney Johanna Talcott. “The government should step out of the way and allow an innovative business like Vizaline to continue serving its customers.”

New Jersey Senate Unanimously Passes Bill to Untangle Braiders from Licensing

By a vote of 34-0, the New Jersey Senate approved a bill yesterday that would eliminate the state’s expensive and time-consuming license requirement for African-style natural hair braiders. In New Jersey, braiders can only work legally if they are licensed cosmetologists. That license takes at least 1,200 hours of training, while tuition at cosmetology schools can cost upwards of $15,000. Adding insult to injury, many cosmetology schools do not teach African hair braiding techniques, which are all-natural and shun the use of potentially hazardous chemicals.

Sponsored by Assemblywomen Angela McKnight and Shanique Speight in the Assembly and Sen. Fred Madden in the Senate, the bill (A-3754) would explicitly exempt hair braiding from New Jersey’s cosmetology licensing requirement. To further protect the honest enterprise of hair braiders, the bill would preempt any county or municipal ordinances that regulate braiding and would waive any outstanding fines, fees and penalties imposed against braiders. Several braiders in the Garden State have been fined and even arrested just for practicing their craft without a license.

A-3754 has already passed the Assembly unanimously and now heads to Gov. Phil Murphy for signature. If he signs, New Jersey would become the 26th state where braiders are free to practice without a license.

“The government has no business licensing something as safe and natural as braiding hair,” said Brooke Fallon, assistant director of activism at the Institute for Justice. “This legislation will have a huge impact on entrepreneurs of color and immigrant communities across the state. We applaud Assemblywomen McKnight and Speight, and Senator Madden for understanding the urgency of this issue and shepherding reform through the legislature.”

Under the new law, braiders would have to register their businesses every two years with a newly created “Hair Braiding Establishment Advisory Committee.” Braiding shops and salons would also be inspected “without prior notice.”

“New Jersey braiders will need to watch the new advisory committee to make sure it does not become captured by industry insiders and start imposing new, unnecessary regulations to prevent honest competition, like a specialty license for hair braiders” said Institute for Justice Senior Attorney Paul Avelar, who heads IJ’s Braiding Freedom Initiative. “Our research has shown that these licensing laws do nothing to protect the public’s health and safety and only throw braiders out of work.”

“The new law would be a dramatic improvement over the status quo of strict laws and heavy fines that harm entrepreneurs, and would be a major step forward in protecting braiding freedom,” added Fallon. “We urge the governor to sign it.”

State Agrees Not to Enforce Lactation Consultant Licensing Law, Pending Outcome of Lawsuit

Today, after a group of lactation counselors filed a lawsuit on Monday, Georgia has agreed to halt enforcement of the state’s lactation consultant licensing law, pending the outcome of the suit. The law, which was set to go into effect on Sunday, July 1, threatened fines of upwards of $500 per day for practicing lactation consultation without a state-issued license. Now, the agreement means Georgia’s 800 Certified Lactation Counselors who are not eligible to obtain a state-mandated license will be able to continue providing services while the lawsuit proceeds.

“Today’s agreement is good for moms, good for newborns and good for the hundreds of lactation consultants facing the prospect of losing their jobs on Sunday,” said Institute for Justice Attorney Wesley Hottot. “We’re not out of the woods yet, but this is an early sign that the state acknowledges the law will harm mothers and babies without providing any public benefit. We’re confident that the courts will recognize this law illegally deprives hundreds of consultants of their right to earn an honest living.”

On Monday, Mary Jackson, an Atlanta-based lactation counselor, and Reaching Our Sisters Everywhere (ROSE), the nonprofit Mary helped found in 2012, teamed up with the Institute for Justice (IJ) to file a lawsuit challenging Georgia’s unconstitutional licensing law, and preserve the right of the state’s lactation consultants to earn an honest living doing what they love.

Lactation consultants provide hands-on practical breastfeeding advice and support to new mothers. They have been working safely in Georgia for decades without any state license, although many lactation consultants have chosen to become privately certified in their field. There are two predominant certifications: Certified Lactation Counselor (CLC) and International Board Certified Lactation Consultant (IBCLC). If not for the agreed-upon injunction, on July 1 only IBCLCs would have been eligible to get the state’s new license, and so only IBCLCs would have been allowed to continue working. Mary and the more than 800 other lactation consultants in the state who are CLCs would have been shut out.

“Today’s a good day,” said Mary Jackson. “There is a lot of work ahead of us, but we are thankful that we can go to work on Monday knowing we’re standing up for what is right.”

Ga. Lactation Consultants Sue to Save Their Jobs and End Unconstitutional Licensing Law

For nearly three decades, Mary Jackson has provided hands-on advice to help new mothers learn how to breastfeed. Despite her years of training and experience, on July 1st, she will be out of a job—but not because she has done anything wrong. Rather, on July 1st, a new Georgia law goes into effect requiring that anyone who makes a living helping new mothers breastfeed must obtain an expensive, burdensome and unnecessary certification from a private group, in order to get a license from the state.

But Mary is not willing to give up her career without a fight. Today, she has teamed up with the Institute for Justice (IJ) to file a lawsuit asking the court to immediately halt implementation of Georgia’s unconstitutional licensing law and preserve her right (and that of hundreds of other lactation consultants) to earn an honest living doing what she loves.

Lactation consultants provide hands-on practical breastfeeding advice and support to new mothers.  They have been working safely in Georgia for decades, without any state license, although many lactation consultants have chosen to become privately certified in their field.  There are two predominant certifications: a Certified Lactation Counselor (CLC) and an International Board Certified Lactation Consultant (IBCLC).

Mary and more than 800 other lactation consultants in Georgia are CLCs, but, on July 1st, only IBCLCs will be allowed to get the state’s new license, and so only IBCLCs will be allowed to continue working. To obtain an IBCLC, an individual must take roughly two years of college courses and complete more than 300 hours of supervised clinical work. The time and expense involved in obtaining certification will make it impossible for many people to obtain state licensure, especially people of modest means.

“Licensing lactation consultants does nothing to protect public health and safety,” said Wesley Hottot, an attorney at IJ, which represents the plaintiffs. “This license will harm the public by making it harder—if not impossible—for new moms to find someone to help them with breastfeeding. In Georgia, the courts have a responsibility to strike down unnecessary and burdensome regulations that have no clear public benefit. We expect the Court will strike down this law.”

No other state in the nation licenses lactation consultants like Georgia does. This is because there is no evidence that unlicensed lactation care has ever harmed anyone, anywhere. In fact, in 2013 the Georgia Occupational Regulation Review Council (a state agency) issued a report concluding that licensing lactation consultants would not provide any benefit to the public, reasoning that licensing “would not improve access to care for the majority of breastfeeding mothers.”

In fact, next week there will be a severe shortage of lactation consultants if this law is not stopped.  There are only some 1,100 lactation consultants in Georgia, and only around 300 of them are IBCLCs.  To date, fewer than 100 IBCLCs have become licensed, yet the licensing law threatens to put more than 800 CLCs out of business overnight.

Licensure does not serve the interest of babies or their mothers; it only serves to enrich IBCLCs at the expense of all other lactation consultants. The drive toward licensure is not motivated by health or safety concerns, but rather by IBCLCs’ interest in billing health insurance companies for their services. In 2010, the Affordable Care Act mandated that insurance companies provide coverage for lactation services. Since then, insurance companies have used licensure as a means of limiting the expense of that coverage. To ensure they could bill insurance companies, the IBCLCs’ lobbyists have begun pushing state-mandated licenses across the country to artificially differentiate IBCLCs from CLCs. Georgia is the only state so far to have caved to the IBCLCs’ demands.

Mary is not taking on the State of Georgia alone. She is joined in her lawsuit by Reaching Our Sisters Everywhere (ROSE), the Atlanta-based non-profit she helped found in 2012. ROSE works to increase access to breastfeeding support and improve healthcare equity among African-American communities in Georgia and around the country.

“Every day I go to work with a smile on my face because I’m doing something I love—helping moms help their newborns,” said Jackson. “I don’t want to give that up, and I shouldn’t have to. I’m passionate about breastfeeding and I do everything I can to make sure moms in minority, rural and at-risk communities, regardless of their socioeconomic status, have access to quality lactation support from qualified lactation supporters. But now, if the courts don’t intervene, hundreds of my colleagues across the state will be out of a job, unable to continue to help their community, and thousands of moms will be left without the help they need.”

“As the state itself concluded in 2013, licensing lactation consultants will only decrease access to breastfeeding support,” said IJ Attorney Jaimie Cavanaugh. “This law serves no purpose other than to enrich one group of privately certified lactation consultants to the detriment of all others.”

The lawsuit, which requests a temporary restraining order halting the law’s effective date of July 1st, argues that licensing lactation consultants violates the Georgia Constitution. Under the state constitution’s guarantees of equal protection and substantive due process, the government cannot license an occupation without there being a “real and substantial” connection between the license and the public good.

Hinga’s Automotive Will Take Its Case to the Texas Supreme Court

Dallas—Today, Hinga Mbogo and the Institute for Justice announced that they will seek review from the Texas Supreme Court of the Texas Court of Appeals’ decision that dismissed Hinga’s property rights lawsuit against the city of Dallas. The case, which has played out for the last two years, challenges Dallas’ illegal attempt to shutdown a beloved auto mechanic shop so that the city can make way for the city’s preferred businesses, such as chain restaurants or coffee shops.

The lawsuit challenges a practice known as “amortization”—which is a type of retroactive zoning—whereby the city unilaterally changed the zoning for Mr. Mbogo’s property, forcing him to shut down and move his long-standing, previously legal business from property he owns. The practice has been compared to eminent domain abuse, which is illegal in Texas, except unlike eminent domain, in this case Dallas hasn’t compensated Mr. Mbogo a single cent for the harm it has caused him and his business.

“Although we’re understandably frustrated with the lower courts, we remain confident that the Texas Supreme Court will recognize the clear injustice at play in Dallas and rule that retroactive zoning is a violation of the state constitution,” said Institute for Justice Senior Attorney Bill Maurer. “Texas prides itself on a long tradition of respecting property rights, but this case shows that municipal governments here can be as hostile to business owners as cities anywhere else in this country. What Dallas has done to Hinga is an affront to anyone that believes in private property.”

Hinga’s problems with the city began in 2005, when Dallas changed the zoning along Ross Avenue to make operating an auto mechanic shop illegal. The city gave Hinga a certain amount of time to close up shop to make way for the city-approved businesses. But Hinga fought the city’s attempt to push him out for businesses favored by city planners for the past 13 years. In April 2016, his time ran out when the city denied his request to stay for an additional two years where he built his business.

In denying the specific use permit, Dallas City Councilman Rickey Callahan, a real estate developer, explained his vote, saying:

“[S]ometimes when you have a proliferation of these auto-related businesses, you’re not going to get national-accredited tenants come in like Starbucks, Macaroni Grill or nice sit-down restaurants and so forth. They’re not going to spend a million dollars or two million dollars to be next door.”

Watch the exchange here: https://www.youtube.com/watch?v=iY2sfH3S_m4

Tens of thousands of people have rallied in support of Hinga. An online petition on Change.org has been signed by more than 92,000 people. The petition states that using “zoning laws to destroy small businesses is wrong.”

Hinga has vowed to continue this battle, not just so that he can continue to operate his business on land he has owned for decades,  but also to make sure that nobody else must suffer an ordeal like the one he has. “I came to Texas because I thought it was a place where I could build my business and earn my share of the American Dream. I will keep on fighting until the Texas Supreme Court vindicates the right to operate a business on land you own.”

IJ Attorney Ari Bargil concluded by saying, “For decades, this harmful practice has been permitted by the Texas courts. We are taking this issue to the Texas Supreme Court so that court can put an end to this abuse and give real meaning to the protections of the Texas Constitution.”

Judge Finalizes Victory for Louisville Food Trucks

Louisville, Ky.—Today, Judge David J. Hale of the U.S. District Court for the Western District of Kentucky entered a consent decree that ends a months-long legal battle between Louisville’s innovative food truck businesses and Louisville Metro. The consent decree is enforceable through the federal court’s contempt powers and will ensure that Louisville’s food trucks are treated fairly.

The fight began last summer, when the Institute for Justice (IJ) filed a federal lawsuit on behalf of Troy King and Robert Martin, two Louisville food truck owners who were forced out of vending locations under a law that prohibited food trucks from operating within 150 feet of restaurants or other eating establishments that served similar food. Louisville Metro Council repealed the 150-foot ban on March 21 in response to IJ’s lawsuit.

This newly entered consent decree prohibits Louisville Metro from reinstituting the 150-foot ban on food trucks or implementing any similar “proximity restrictions” in the future. It also blocks the government from singling out food trucks for treatment different from other commercial vehicles and requires the removal of all variations of the infamous “No Food Trucks” signs across the city.

Louisville Metro must also post the consent decree on its website to ensure full transparency for Louisville’s hardworking taxpayers and business owners.

“This consent decree is the final chapter in the months-long fight to vindicate the economic liberty rights of Louisville’s food truck entrepreneurs,” said IJ attorney and lead counsel, Arif Panju. “With the consent decree entered, Louisville Metro can focus on encouraging the entrepreneurship of street vendors, not try to hurt them by playing favorites.”

The consent decree is a major victory not just for Troy and Robert, but for all of Louisville’s mobile vending community, which is now free to grow or fail because of customer choice, instead of government interference.

WATCH A SHORT VIDEO ABOUT THE CASE

IJ attorneys based their lawsuit on the landmark 6th U.S. Circuit Court of Appeals ruling, Craigmiles v. Giles.  In Craigmiles, the 6th Circuit—which includes Kentucky—ruled that it is illegitimate for the government to restrict fair economic competition in order to give special favors to a politically connected business. Louisville’s 150-foot ban only existed to give special protection to brick-and-mortar restaurants.

“Louisville did the right thing by agreeing to eliminate its unconstitutional ordinance and promising never to pass something similar.  But that agreement occurred only after they were haled into federal court,” said IJ senior attorney Rob Frommer, who directs IJ’s National Street Vending Initiative. “Other cities and states don’t have to wait to do the right thing. The National Street Vending Initiative is ready to help government leaders write sensible rules that allow innovative businesses to flourish and add to their communities.”

Supreme Court Will Hear Case on Whether The 50 States Must Comply with U.S. Constitution’s Excessive Fines Clause

This morning (June 18, 2018), the U.S. Supreme Court granted review of a case that has nationwide implications for both property rights and criminal justice. The question presented is whether the Eighth Amendment’s Excessive Fines Clause protects against sanctions imposed by state and local authorities.

The appeal is brought by Indiana resident Tyson Timbs, represented by the Institute for Justice (IJ).

The case at the heart of this important constitutional debate deals with Tyson, a young man who is overcoming opioid addiction, a recovery made all the more difficult by the government’s seizure of his only vehicle—a $40,000 vehicle he bought with the proceeds from his father’s life insurance policy. The vehicle was seized from him after he was convicted of selling $225 worth of drugs to undercover officers.

“Without my car, it is incredibly difficult to do all the things the government wants me to do to stay clean, like visit my probation officer, go to AA, and keep my job,” explained Tyson. “Right now, I’m borrowing my aunt’s car to go to work so we can pay the bills, and she has to take a bus back and forth to her kidney dialysis appointments. You need a car to do all of these things.”

Tyson continued, “Fighting to stay clean is hard enough. I pleaded guilty to my crime. I served one year of house arrest and paid $1,200 in court fees. I’ve served out my punishment, but now the government is going beyond seeking justice. It wants to punish me out of proportion to the crime I committed. I just want to get my vehicle back and keep my life on track.”

Within months of Tyson’s arrest, the state filed a “civil forfeiture” lawsuit to take title to his vehicle. But the trial court ruled against the government. Because taking Tyson’s car would be “grossly disproportionate” to his offense—for which Tyson had already been punished—the trial court held that the forfeiture would violate the Excessive Fines Clause of the Eighth Amendment. The Indiana Court of Appeals agreed. Tyson suffered from drug addiction, the court noted, but his only record of dealing was selling a small amount of drugs to undercover police. The court also noted the “financial burdens” that Tyson had already faced when he pleaded guilty. Taking his car on top of all that would violate the Eighth Amendment.

Then the Indiana Supreme Court stepped in. Breaking with at least 14 other state high courts, the Indiana Supreme Court ruled that the Eighth Amendment provides no protection at all against fines and forfeitures imposed by the states. Until the U.S. Supreme Court intervenes, the Indiana Supreme Court said, “We will not impose federal obligations on the State that the federal government itself has not mandated.”

Today, the U.S. Supreme Court agreed to review that decision.

“This case is about more than just a truck,” said Wesley Hottot, an attorney with the Institute for Justice. “The Excessive Fines Clause is a critical check on the government’s power to punish people and take their property. Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

“I’m thrilled the Supreme Court will be addressing this important issue,” said Tyson Timbs. “I committed a crime, then I did my time and cleaned up my life. But with forfeiture, they are trying to take away one of the few things I own—that I bought with money from my dad. Forfeiture only makes it more challenging for people in my position to clean up and become contributing members of society.”

Constitutional protections against excessive fines have never been more important than they are today. In the words of one Indiana Supreme Court justice, law enforcement is increasingly using “Weapons of Mass Destruction” against low-level criminal offenders, financially vulnerable property owners and even innocent people.

“Forfeiture is a controversial law enforcement tool. In states like Indiana, police and prosecutors can keep up to 100 percent of proceeds taken through forfeiture, proceeds they can then use for nicer offices and vehicles, and even for their own pay,” said IJ Attorney Sam Gedge. “This direct financial incentive gives the government a perverse incentive to abuse this power, which is exactly what is happening in Tyson’s case with this excessive fine. Police and prosecutors have every incentive to maximize their own profit, and, unless we have federal protections against excessive fines, no one’s property is safe.”

The government’s impulse to levy excessive penalties is not unique to forfeiture. In Ferguson, Missouri, for example, the U.S. Department of Justice determined that “1ity officials have consistently set maximizing revenue as the priority for . . . law enforcement activity.” The roughly 3,000 residents of nearby Pagedale—five miles south of Ferguson—have been heavily fined for trivial offenses like missing curtains, aging paint, walking on the left side of crosswalks, and enjoying a beer within 150 feet of a grill. And in Charlestown, Indiana, local officials imposed crippling fines on low-income homeowners to force them to sell their land to a private developer.

“Justice Clarence Thomas recently declared that it was time for the Court to once again look at the constitutionality of civil forfeiture statutes,” said IJ Senior Attorney Darpana Sheth, who heads the Institute for Justice’s initiative to end forfeiture abuse. “Timbsprovides the Court its first opportunity to reexamine this doctrine in over 20 years. This case will hopefully be one in a series of cases that the Court takes on to fundamentally reconsider the constitutionality of civil forfeiture.”

“This case will make constitutional history,” said Scott Bullock, president and general counsel of the Institute for Justice. “Governments increasingly use excessive fines and fees, including through the pernicious practice of civil forfeiture, to fund law enforcement agencies and to pad city budgets. This is not just an ominous trend; it is a dangerous one.This case has the potential to give meaningful protection to individuals in every state in the land from these abuses and to limit government’s ability to turn law enforcement into revenue generators.”

Oral argument in Tyson’s case is expected to be scheduled for this winter, with a decision to be issued next year.

Rhode Island House Passes Bill to Repeal Hair Braiding License

The Rhode Island House of Representatives voted unanimously on Thursday to eliminate cosmetology licensing requirements for African-style, natural hair braiders. Under Rhode Island law, braiders can only work if they first obtain a cosmetology license, which takes at least 1,200 hours, far more than what’s required to become a licensed emergency medical technician. Tuition to attend a cosmetology school in Rhode Island can cost over $17,000.

Natural hair braiding has a proud cultural lineage that goes back for centuries. It is distinct from modern cosmetology.  Unlike cosmetologists, braiders do not use any harsh chemicals, dyes or heat. Adding to the absurdity, cosmetology schools do not teach natural braiding styles or techniques. Sponsored by Rep. Anastasia Williams, HB 7565 would fully exempt braiding from the state’s licensing laws.

The Senate companion bill, SB 2323, is still awaiting a vote by the Senate Commerce Committee.

“Rhode Island has no business licensing something as safe and common as braiding hair,” said Christina Walsh, director of activism and coalitions at the Institute for Justice. “This legislation has overwhelming support, and we urge the Senate to vote on it.  Not doing so means denying economic opportunity for hundreds of aspiring entrepreneurs, who are predominantly women of color. A dream deferred is a dream denied.”

Today, half the country—25 states—no longer force hair braiders to get a license to work. Those states include Connecticut, Maine, New Hampshire and Vermont.

Federal Court Rules That Colorado’s Abuse-Prone Campaign-Finance Enforcement Violates First Amendment

Arlington, Va.— Yesterday afternoon, Judge Raymond P. Moore, of the U.S. District Court for the District of Colorado ruled that Colorado’s unusual system of campaign-finance enforcement violates the First Amendment. The system permitted any person to file a private lawsuit to enforce the state’s campaign-finance laws. That is unconstitutional, the court held, because there is “nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated.”

Strasburg resident Tammy Holland, represented by the Institute for Justice (IJ), challenged the system after she was twice sued by members of her local school board for running newspaper ads urging voters to educate themselves about school-board candidates. Even though Holland was ultimately cleared of any wrongdoing, the lawsuits dragged on for months and cost thousands of dollars in legal fees.

“I’m thrilled the court recognized what this system was doing to people like me,” Tammy Holland said in response to yesterday’s ruling. “All I did was ask my neighbors to get engaged in a local school election, and I got sued two times by people who didn’t like what I had to say. It was incredibly intimidating. Nobody should be able to sue their neighbor for talking about politics.”

READ THE DECISION

Holland’s experience is all too common. Although most states allow private individuals to file complaints alleging that someone has violated the campaign-finance laws, Colorado is unique in that it outsourced virtually all of its campaign-finance enforcement to private parties. Predictably, the system led to widespread abuse, with complaints routinely being prosecuted not to enforce the laws evenhandedly, but to harass and silence political opponents. Colorado’s most prolific filer of complaints—a company called Campaign Integrity Watchdog—has even touted the process as a weapon for “political guerilla legal warfare.”

“Yesterday’s ruling recognizes that Colorado cannot authorize ‘any person’ to police their neighbors’ political speech,” IJ Senior Attorney Paul Sherman said. “Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them.”

In recent years, Colorado’s campaign-finance laws have been exploited in increasingly disturbing ways. In 2016, for example, Campaign Integrity Watchdog dropped a case in exchange for a $4,500 “settlement”—paid not to the State of Colorado, but to Campaign Integrity Watchdog directly. Also in 2016, the company sought to extract $10,000 from a state political party, warning that otherwise, “the beatings will continue until morale improves.”

This type of behavior, the court said yesterday, “is of notable concern.” “Presumably, when the voters of Colorado approved Article XXVIII [the campaign-finance law] they did not want enforcement of campaign finance violations to become a feeding ground for political warfare and what could be described as extortion.”

“By outsourcing enforcement to the world at large, Colorado’s campaign-finance system became a tool for corruption and speech suppression,” said IJ Attorney Sam Gedge. “By invalidating this broken enforcement system, yesterday’s decision clears the way for Colorado to enact a system that enforces the laws impartially and consistent with the First Amendment.”

New Hampshire Will Shine a Light on Government Agencies Seizing, Forfeiting Property

Gov. Chris Sununu signed a bill on Friday that will require New Hampshire’s law enforcement agencies to disclose their forfeiture activity. Sponsored by Sen. Harold French, SB 498 will, at a bare minimum, require the attorney general to post an annual, online report that details the type, value and disposition of all property seized on the state and local level, as well as the amount of forfeiture proceeds “received or expended.” In addition, the attorney general’s report must “provide a categorized accounting of all proceeds expended.”

That should shed light on the state’s secretive forfeiture spending. According to the Institute for Justice, the Granite State forfeited $1.15 million from drug-related seizures between 1999 and 2013, or more than $82,000 per year. And under state law, law enforcement can collect up to 90 percent of the proceeds from forfeited property: local law enforcement receive 45 percent, while another 45 percent is sent to the state drug forfeiture fund.

SB 498 will also allow the attorney general to implement additional reporting requirements as it sees fit. New Hampshire is certainly in dire need of reform. When the Institute for Justice graded states on six key metrics for forfeiture transparency and accountability, New Hampshire received failing grades for five of those elements.

“We at the Institute for Justice look forward to working with the Attorney General’s Office to ensure New Hampshire’s forfeiture reporting is meaningful and comprehensive,” said Institute for Justice Senior Legislative Counsel Lee McGrath. “Wide-ranging transparency requirements are vital for keeping both the public and the state legislature well-informed about civil forfeiture in New Hampshire.”

SB 498 builds on previous reform efforts. Back in 2016, New Hampshire enacted a law that requires a conviction in criminal court before the government can forfeit property in civil court. The 2016 reform also required the attorney general to provide a “detailed accounting” of grants paid for by the state drug forfeiture fund, a disclosure requirement that will be expanded upon in 2018.

Nationwide, 29 states and Washington, D.C. have tightened their forfeiture laws since 2014. Most sweeping of all, both Nebraska and New Mexico outright abolished the practice of civil forfeiture and replaced it with criminal forfeiture.

Federal Judge Orders Trial in Ohio Family’s Civil Forfeiture Lawsuit Against Customs

CLEVELAND—One week after an Ohio family’s lawsuit against U.S. Customs and Border Protection (CBP) sparked national outrage against the agency’s civil forfeiture practices, a federal judge has ordered the case to trial.

It all began last October, when CBP agents at Cleveland Hopkins International Airport seized $58,100 from Rustem Kazazi, a U.S. citizen, while he was headed to a layover in Newark during a trip back to his native Albania. Rustem, a former Albanian police officer, had worked hard to save up the money with help from his wife, Lejla, and son, Erald, over a dozen years after the family immigrated to Ohio in 2005. Before Rustem could board the plane, CBP agents strip-searched him, interrogated him without a translator and then took his family’s entire life savings, even though they never found anything illegal. They have held the family’s savings for more than seven months, despite never charging anybody with a crime.

Compounding insult and injury, the receipt CBP agents gave Rustem at the time did not note the amount of the seized “U.S. Currency.” CBP later claimed to have taken only $57,330—$770 less than he was actually carrying. Now, amid a lawsuit from the Institute for Justice (IJ) and overwhelming media scrutiny, the government has agreed to return the $57,330 that CBP acknowledges its agents took from the Kazazis. The government is refusing to return of all the money, and the Kazazi family refuses to accept anything less than everything they are owed. Because of the disagreement,a federal district judge in the Northern District of Ohio has ordered the case to trial.

“We’re thrilled the government finally admits that Rustem and his family did nothing wrong, but this is far from over,” said Wesley Hottot, an attorney with IJ, which represents the Kazazis. “CBP is trying to get rid of our lawsuit to get rid of bad publicity without changing their bad behavior. But the agency’s attempt to effectively steal $770 from our clients after making up fake charges that had no relationship to reality shows how civil forfeiture is inherently abusive.”

CBP never bothered to file a formal forfeiture complaint against the Kazazis’ life savings, and federal law required the agency to return the Kazazis’ money or initiate legal proceedings no later than April 17, 2018. But rather than honor its legal obligations, CBP held the Kazazis’ money more than seven months after the seizure without any explanation. With the government now insisting on a trial to avoid returning the full amount of money they seized from Rustem, it could be well over a year before the Kazazis get all of their life savings back.

Sadly, what happened to the Kazazis is a growing problem. In fiscal year 2014, the Cleveland branch of CBP alone seized at least $82,990 worth of property. Just two years later, in FY 2016, that number had increased to at least $967,503. This problem extends to the national level as well. The Treasury Forfeiture Fund—where CBP and a few other agencies deposit forfeiture proceeds—brought in nearly $500 million in revenues in FY 2017 and had over $2.2 billion in assets at the end of FY 2017.

Beyond the issue of law enforcement agencies effectively trying to steal from innocent people, the government often tries to moot high-profile civil forfeiture lawsuits by returning some or all of the property. One of the most egregious examples of this common government tactic came in a civil forfeiture case in Connecticut in 2016. The government held money seized from a Norwich baker for three years, but agreed to return the property just hours after IJ filed a case demanding its return. IJ attorneys also encountered this tactic when representing innocent civil forfeiture victims against local law enforcement in Muskogee County, Oklahoma, and most recently in Wyoming.

Last fall, IJ filed a different federal class action in Texas against CBP’s use of civil forfeiture after the agency seized a truck from Kentucky farmer Gerardo Serrano and held it for two years without charging him with a crime. The agency returned Gerardo’s truck after IJ filed the lawsuit, but that case also remains ongoing. Last month, the government returned over $40,000 to Texas nurse Anthonia Nwaorie, an immigrant from Nigeria, after CBP agents at Houston’s George Bush Intercontinental Airport seized her entire savings from her luggage last Halloween in a harrowing ordeal eerily similar to Rustem’s. Anthonia was also never charged with any crime.

“This trial presents an extraordinary opportunity to shine a spotlight of accountability on CBP and the federal government’s extensive use of civil forfeiture,” added IJ attorney Johanna Talcott. “Law enforcement routinely and systematically takes billions of dollars from American citizens every year without charging, let alone convicting, anybody with a crime. CBP owes the Kazazis all of the money it took, and the federal government owes the American people a serious reckoning for the abuses inherent in civil forfeiture.”

Pennsylvania Court Dismisses Airbnb Lawsuit

Harrisburg, Pa.—Today, the Pennsylvania Commonwealth Court dismissed a lawsuit challenging Pennsylvania’s real estate licensing regime. The ruling leaves in place laws that make it a crime for anyone but a fully licensed real estate broker to help property owners manage rental properties on sites like Airbnb.

The lawsuit was filed by entrepreneur Sally Ladd, who had a thriving business managing vacation homes online before a state investigator called to warn her that she was engaged in the unlicensed practice of real estate. To get a license, Sally would have had to spend three years apprenticing with a broker, pass two exams and open up her own physical office. Unable to afford those burdens, Sally was forced to shut down. Represented by the nonprofit law firm Institute for Justice (IJ), she sued, arguing that Pennsylvania’s heavy-handed real estate license violated her right to earn an honest living under the Pennsylvania Constitution.

In the opinion, the Commonwealth Court acknowledged that, “were Ladd to elect to comply with [these] requirements, she would face greater burdens in proportion to her real estate practice than those faced by a typical real estate broker.” Even so, the court held that the law was constitutional because it may hypothetically protect buyers and sellers of real estate by ensuring competence from professionals in the field.

IJ attorney Josh Windham, lead counsel on the case, said, “Sally doesn’t buy or sell houses, and it is absurd to make her jump through all of the regulatory hoops surrounding the sale of houses simply to coordinate vacation rentals on Airbnb. Pennsylvania’s law doesn’t protect the public—it protects licensed real-estate brokers from honest competition.”

In response to the ruling, Ladd has vowed to continue fighting. “Treating me like an old-fashioned real-estate broker just doesn’t make sense,” said Ladd. “The court didn’t seem to understand that, but that’s why we’re going to appeal. We aren’t going to rest until vacation-property managers and entrepreneurs throughout Pennsylvania see their constitutional rights properly protected.”

“This decision highlights the critical need for judicial engagement,” said IJ Senior Attorney Paul Sherman. “The Pennsylvania Constitution protects the right to earn an honest living, but that right is meaningless if judges are unwilling to enforce it. Thankfully, the Pennsylvania Supreme Court has a long history of engagement when economic liberty is at stake, and we expect the court to continue that tradition on appeal.”

For a brief video on the case, visit: https://ij.org/case/pennsylvania-property-management/

New Specialty Braiding License Signed Into Law

Jefferson City, Mo.On Friday, legislation to create a new stand-alone braiding license was signed into law, finally allowing natural, African-style hair braiders in Missouri to practice their art without the tremendous burden of acquiring an irrelevant cosmetology license. A state cosmetology license requires 1,500 hours of training that teaches nothing about African-style hair braiding, and the average cost of tuition at a cosmetology school in Missouri is nearly $12,000. In contrast, the new license will require that braiders pay a fee of $20, watch a four to six-hour instructional video and submit to board inspections. The requirement that braiders obtain a cosmetology license before they can practice their craft is the subject of a current lawsuit brought by the Institute for Justice (IJ).

“The new braiding license is a dramatic improvement from Missouri’s incredibly burdensome requirement that African-style braiders waste a thousand or more hours and spend tens of thousands of dollars to obtain a full cosmetology license, just to braid hair,” said IJ’s Dan Alban, the lead attorney for the braiders. “Rep. Shamed Dogan has been tireless in his commitment to pushing forward on braiding freedom bills over several years. Missouri’s natural hair braiders are extremely grateful that Rep. Dogan kept fighting for their right to earn a living and provide for their families, particularly after more than a decade of failed legislative reforms.”

While the new law is welcome relief for braiders, it is not necessary to require people to watch a four to six-hour video to do something as safe and simple as hair braiding. In addition, the new inspection regime could raise concerns under the Fourth Amendment’s prohibition on unreasonable searches depending on how it is implemented.

“While it is good that the state of Missouri finally realized that the cosmetology license has nothing to do with braiding, we should remember that 25 states don’t require braiders to acquire a license at all,” said Paul Avelar, IJ senior attorney and head of IJ’s Braiding Freedom Initiative. “Missouri, like all states, should still consider whether government should license something as safe and common as braiding hair.”

Since June 2014, IJ has represented Missouri entrepreneurs Joba Niang and Tameka Stigers in a federal lawsuit brought to vindicate their constitutional right to economic liberty. Both the U.S. District Court and 8th U.S. Circuit Court of Appeals ruled against the braiders, despite acknowledging that the required license had little, if anything, to do with braiding. The 8th Circuit ruled that Missouri was free to impose a “needless, wasteful requirement” on braiders if any small part of the licensing scheme is potentially relevant to braiding. The braiders have asked the U.S. Supreme Court to review that decision and their petition for certiorari is currently pending. Friday’s signing will likely moot that case.

Puerto Rico Families Stand Up for School Choice and Ask to Join Defense of Scholarship Program

San Juan, Puerto Rico—Today, three families asked a Puerto Rican trial court to allow them to join in the legal defense of Puerto Rico’s Free School Selection Program. The Program allows families with children currently in public school to apply for scholarships to send their children to the school of their choice. The Program is in jeopardy after a teachers’ union, the Asociación de Maestros de Puerto Rico, brought a constitutional challenge against the Program in April.

The Puerto Rican government enacted the Program as part of its Education Reform Act, passed last March in response to a crisis in the Island’s public schools.  In the last few years, the schools have suffered from a depressed economy, decreasing population, dismal test scores, and, most recently, Hurricanes Irma and Maria. Parents have become increasingly frustrated and hopeless, feeling there are no real options to provide a good education for their children. The Program is designed to change that.

The families are represented by local attorney Salvador Antonetti, former solicitor general of Puerto Rico.  His co-counsel is the Institute for Justice (IJ), a national nonprofit firm with expertise in the constitutionality of school choice programs.  IJ has represented parents and children in over 20 cases across the United States, including twice at the U.S. Supreme Court.

“Right now, this is a fight between the government and the teachers’ unions, but it is students who will suffer if the Free School Selection Program is eliminated,” said Erica Smith, an attorney with IJ. “We are proud to support families who need these scholarships, and we will fight to ensure that they have a voice.”

Families can begin applying for program scholarships this year, which can be used to attend private school or a public school in a different neighborhood. Students who have been enrolled in a public school for at least two years are eligible, and the program is capped at approximately 9,600 students in its first year. The program prioritizes students who are low-income, disabled, adopted or in foster homes, victims of bullying or sexual harassment, gifted, or falling behind in their education.

According to the teachers’ union, the Program violates Article II, Section 5, of the Puerto Rico Constitution, which prohibits public funds from being used “for the support of schools or educational institutions other than those of the state.” As the parents intend to argue, however, any benefit to private schools under the program is merely incidental; the Program is designed to “support” families, not schools, and is entirely constitutional.

U.S. Government Seizes Life Savings from Ohio Family, Triggers Lawsuit Challenging Civil Forfeiture

CLEVELAND—An immigrant family working hard and sacrificing for thirteen years to help relatives and to buy a dream vacation home in their native country is something that should be celebrated. But for Rustem Kazazi, it led to a terrifying run-in with hostile agents of the U.S. government. And once again, an American family finds itself in a civil forfeiture battle with law enforcement over whether people have the right to travel with cash.

This version of an increasingly familiar nightmare began when Rustem, a 64-year-old former police officer from Albania who now lives in suburban Cleveland, was traveling back to Albania to fix up a family home and potentially buy a home on the coast.  He and his wife, Lejla, have long dreamed of a vacation home for all their family to visit and enjoy once they retire. Rustem also has extended family in Albania who are struggling financially, and he wanted to help them.

At the airport in Cleveland, U.S. Customs and Border Protection (CBP) promptly whisked him into a small interrogation room, stripped him naked for a full-body search, interrogated him without a translator, and then seized his family’s life savings without charging anyone with a crime. So now Rustem and his family are teaming up with the Institute for Justice (IJ) to fight back.

Rustem, Lejla, and the couple’s son, Erald, and daughter immigrated to the United States in 2005 and became American citizens in 2010. They worked hard to save up $58,100 for Rustem’s trip. He packed the family’s savings in three envelopes in his carry-on luggage and passed through security at Cleveland Hopkins International Airport, heading to a layover at Newark Liberty International Airport in New Jersey, before ultimately flying to Albania. But CBP agents stopped him in Cleveland and took the family’s entire life savings.

“You have the right to travel with cash in America, even when you’re flying internationally,” said Wesley Hottot, an attorney with IJ, which represents the Kazazis in the lawsuit. “But again, we’re encountering a situation where law enforcement sees somebody with legal cash, assumes they must have done something criminal, and they just take the money. It is disturbing how little respect federal agents show for the civil rights of American citizens.”

Because the Kazazis did nothing wrong, the government had to make something up. That is why, more than a month after the seizure, CBP tried to justify its actions by sending the Kazazis an outrageous letter claiming their money was “involved in a smuggling/drug trafficking/money laundering operation.” None of this is true—the Kazazis saved up their money from jobs they held lawfully in America, and they have 13 years of tax documents and bank statements to prove it. Moreover, the government has never pointed to any evidence of wrongdoing. Rustem decided to carry the money in cash because American dollars are highly valued in Albania and offer more purchasing power than the local currency.

Also troublingly, CBP’s letter claimed that agents seized $57,330 from Rustem—$770 less than he was actually carrying. So not only did federal agents take a family’s life savings without due process, but they did not even bother to count or report it properly, as required by law.

CBP never bothered to file a formal forfeiture complaint against the Kazazis’ life savings, and federal law required the agency to return the Kazazis’ money or initiate legal proceedings no later than April 17, 2018. But rather than honor its legal obligations, CBP continues to hold the Kazazis’ money more than seven months after the seizure without any explanation.

“The government harassed my father, stole my family’s money and is now apparently hoping we’ll just forget about it,” said Erald Kazazi. “We’re American citizens, and we came to this country because we believe America is the land of freedom and opportunity. We never imagined the government would treat its own citizens this way.”

The Kazazis’ case marks the third active IJ legal challenge against CBP. Earlier this month, IJ attorneys filed a class action lawsuit in Texas against the agency on behalf of a Houston-area nurse, Anthonia Nwaorie, who was traveling to Nigeria to build a medical clinic for vulnerable women and children. After CBP missed its filing deadline in that case, the agency initially demanded Anthonia sign away her civil rights in order to get her money back. CBP suddenly reversed course and returned Anthonia’s money without requiring her to sign away her rights after IJ’s lawsuit garnered an avalanche of negative publicity, but the lawsuit remains ongoing.

Last fall, IJ filed a different federal class action lawsuit in Texas against CBP’s use of civil forfeiture after the agency seized a truck from Kentucky farmer Gerardo Serrano and held it for two years without charging him with a crime. The agency returned Gerardo’s truck after IJ filed the lawsuit, but that case also remains ongoing. The plaintiffs in all three cases are trying to ensure nobody else falls victim to the nightmares they have experienced with civil forfeiture.

“This family’s case, like so many others, shows why civil forfeiture must end,” explained IJ attorney Johanna Talcott. “The Kazazis did nothing wrong and were never charged with a crime, but the government still won’t return their money all these months later. This kind of abuse is far too common because civil forfeiture is an inherently abusive process that will always have disastrous effects on innocent people. Enough is enough.”

Illinois Supreme Court Will Hear Chicago Food Truck’s Challenge to Restrictive Rules

Springfield, Ill.—The Illinois Supreme Court announced today that it would hear a food truck owner’s challenge to Chicago rules that make it difficult to operate in the city. The city currently bans trucks from operating within 200 feet of a brick-and-mortar restaurant and requires that food trucks install GPS tracking devices that broadcast their every move. The Institute for Justice and Cupcakes for Courage first challenged the law in 2012.

“Chicago’s restrictions on food trucks devastated entrepreneurs looking to climb into the food industry,” said Robert Frommer, an Institute for Justice senior attorney, who is the head of IJ’s National Street Vending Initiative. “Politically-connected businesses should not be able to use the government to shut out their competition and restrict consumers’ choices. The Illinois Supreme Court has an opportunity to strike down protectionism and stand up for the freedom of food truck owners to earn a living.”

The fines for violating Chicago’s 200-foot rule can total $2,000—over 10 times higher than for parking in front of a fire hydrant. And to enforce the rule, the city forces food trucks to install GPS tracking devices that transmit each truck’s location every five minutes. Anyone who wishes can ask for and receive access to this sensitive data.

IJ’s lawsuit argues that Chicago cannot protect restaurants from competition and that the GPS requirement constitutes an illegal search under the Illinois Constitution.

“The Windy City should be just like other places in our nation where food trucks and brick-and-mortar restaurants thrive side-by-side,” said Laura Pekarik, owner of Cupcakes for Courage, which has brick-and-mortar shops in Elmhurst and Oak Park. “I’ve kept up this fight for years because I love Chicago and I know that a vibrant food truck industry would make it an even better place to work and live.”

Through its National Street Vending Initiative, IJ protects vendors’ rights coast to coast. IJ’s vending lawsuits in San Antonio, El Paso, and Louisville successfully eliminated protectionist laws that banned food trucks from operating near their brick-and-mortar competitors. IJ has also filed a lawsuit to tear down unconstitutional barriers around food trucks in Baltimore.

Customs Finally Returns Money to Texas Nurse, Class Action Over Civil Forfeiture Practices Continues

HOUSTON—After weeks of international outcry, U.S. Customs and Border Protection (CBP) finally returned $41,377 to Texas nurse Anthonia Nwaorie without interest and without an apology. CBP’s furtive move came seven months after the agency seized the money at Houston’s George Bush Intercontinental Airport (IAH), and one month after Anthonia filed a federal lawsuit demanding its return. CBP, which never charged her with any crime, had initially demanded the Houston-area nurse sign a “Hold Harmless” agreement waiving her civil rights before returning the money. Anthonia refused this unlawful and unconstitutional demand and instead teamed up with the Institute for Justice (IJ) to file a class action lawsuit on behalf of other victims of the practice.

CBP’s move marks the latest in a long trend of government agencies attempting damage control in response to bad publicity over a high-profile civil forfeiture lawsuit. However, the unannounced return of Anthonia’s money does not moot the class action lawsuit because Anthonia is the lead plaintiff and class representative for an entire class of victims harmed by CBP’s unconstitutional practices.  Anthonia is also suing for interest the government owes her for holding her money for more than half a year, and to be removed from CBP’s list of passengers subjected to additional, intrusive screenings at customs.

IJ attorneys have already been in contact with some of the hundreds or thousands of victims of CBP’s illegal requirement that people sign away their civil rights to get back property the agency is legally obligated to return, and IJ attorneys are still working to identify others. IJ encourages other potential class members—whether they signed the hold harmless agreement or not—to contact IJ attorneys Dan Alban and Anya Bidwell.

“We’re thrilled that Anthonia finally has her money back, but justice delayed is justice denied.  If a nurse on a humanitarian mission isn’t safe from civil forfeiture, no one is safe from civil forfeiture.” said Dan Alban, an attorney with IJ, which represents Anthonia and the other class members in the lawsuit. “IJ has been fighting the abuses of civil forfeiture for decades, and this is a classic government attempt to moot a high-profile lawsuit to mitigate bad publicity. But this lawsuit will continue because CBP has not fixed the underlying problem and continues systematically abusing people’s civil rights through civil forfeiture.”

One of the most egregious examples of this common government tactic came in a civil forfeiture case in Connecticut in 2016. The government held money seized from a Norwich baker for three years, but agreed to return the property just hours after IJ filed a case demanding its return. The IRS continued a retaliatory fishing expedition into the bakery’s financial records, but ended that effort as well just two weeks after IJ filed suit. IJ attorneys also encountered this tactic when representing innocent civil forfeiture victims against local law enforcement in Muskogee County, Oklahoma, and most recently in Wyoming.

Last fall, IJ filed a different federal class action in Texas against CBP’s use of civil forfeiture after the agency seized a truck from Kentucky farmer Gerardo Serrano and held it for two years without charging him with a crime. The agency returned Gerardo’s truck after IJ filed the lawsuit, but that case also remains ongoing.

Anthonia’s ordeal began last Halloween when she was traveling from her home in the Houston suburb of Katy, Texas to her native Nigeria to open a medical clinic for women and children in need of help. Anthonia, an American citizen and grandmother who immigrated to the U.S. in 1982, had saved up over $30,000 for years from her work as a registered nurse, and was taking her savings to Nigeria to open her clinic. She was also taking funds from her brother and other American family members to support relatives in Nigeria. But, when she was boarding her international flight at George Bush Intercontinental Airport, CBP interrogated her, cut open her luggage and seized all of the money she was carrying.

Anthonia was never charged with any crime. The U.S. attorney’s office for the Southern District of Texas also declined to pursue civil forfeiture of her money and let the 90-day deadline to file a forfeiture complaint pass without action. Under federal statute, CBP was required to “promptly release the property.” But instead of following the law, CBP threatened to claim Anthonia “abandoned” her money and keep it without even giving her a hearing, unless she signed a “Hold Harmless Release Agreement” waiving her rights—including her right to interest and her First Amendment right to sue CBP over anything related to the seizure—in order to get her money back. But amid an avalanche of critical media attention, CBP reversed course and unceremoniously mailed Anthonia a check for the amount of the seized cash.

“I’m glad to have my money back, but this isn’t over,” said Anthonia, who has already committed to work at a hospital in Massachusetts this summer, but plans to return to Nigeria in the fall to finally build a medical clinic to provide healthcare to vulnerable women and children. “So many people in Nigeria have suffered needlessly because of this year-long delay in opening my clinic. I’m going to keep fighting because so many people lack the resources to fight back against injustice, and I want to make sure nobody else has to go through what I’ve been through. ”

Anthonia and IJ are suing to stop CBP from bullying people like her into signing away their constitutional rights. The ongoing class action will represent Anthonia and other innocent victims of CBP’s unlawful and unconstitutional requirement that people sign away their rights to get back property the agency is legally required to return. IJ is asking the federal court to put an end to CBP’s behavior and declare it unlawful and unconstitutional, to void any “Hold Harmless” agreements signed by class members, and to order CBP to return seized property to any class members whose property was not returned because they did not sign an agreement surrendering their constitutional rights.

“CBP returning Anthonia’s money highlights how civil forfeiture is inherently abusive and has disastrous effects on innocent people, even when the process supposedly ‘works’ as designed,” explained IJ attorney Anya Bidwell. “Anthonia was never charged with a crime, but the government kept her money for months anyway. Now, when slapped with a lawsuit and rigorous media scrutiny, the government yet again wants to make an embarrassing case go away without addressing how civil forfeiture is inherently abusive. We’re not going to fall for it or let them get away with it, and neither should the American people.”

Supreme Court Will Soon Consider Whether to Accept Excessive Fines Case

Indiana Supreme Court Ruled the State May Impose Excessive Fines Until the U.S. Supreme Court Says It Can’t

Arlington, Va.—The U.S. Constitution sets a floor of rights that each American is supposed to enjoy as a citizen of this nation. But the Indiana Supreme Court recently ruled that the federal Constitution’s ban on excessive fines does not and will not apply to the Hoosier State unless the U.S. Supreme Court rules that Indiana must adhere to this national standard of civil rights.

The case at the heart of this important constitutional debate deals with Tyson Timbs, a young man who is overcoming opioid addiction, a recovery made all the more difficult by the government’s seizure of his only vehicle—a $40,000 vehicle he bought with the proceeds from his father’s life insurance policy—a vehicle that was seized from him after he was convicted of selling less than $200 worth of drugs to undercover officers.

Watch a brief interview with Tyson about his petition

“Without my car, it is incredibly difficult to do all the things the government wants me to do to stay clean, like visit my probation officer, go to AA, and keep my job,” explained Tyson. “Right now, I’m borrowing my aunt’s car to go to work so we can pay the bills, and she has to take a bus back and forth to her kidney dialysis appointments. You need a car to do all of these things.”

Tyson continued, “Fighting to stay clean is hard enough. I pleaded guilty to my crime. I served one year of house arrest and paid $1,200 in court fees. I’ve served out my punishment, but now the government is going beyond seeking justice. It wants to punish me out of proportion to the crime I committed. I just want to get my vehicle back and keep my life on track.”

The justices of the U.S. Supreme Court are scheduled to hold a conference on June 7, during which they will consider whether to accept and review the Timbs case.

“This case is about more than just a truck,” said Wesley Hottot, an attorney with the Institute for Justice (“IJ”). “The Eighth Amendment’s Excessive Fines Clause is a critical check on the government’s power to punish people and take their property. Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

The trial court ruled the police should return Tyson’s vehicle because forfeiture of his $40,000 car would be “grossly disproportional” to his offense, and therefore unconstitutional under the Excessive Fines Clause of the U.S. Constitution. The Indiana Court of Appeals agreed with that conclusion, noting that Tyson had sold only four grams of heroin valued at less than $200 to undercover officers. But this past November, the Indiana Supreme Court ruled in favor of the government, holding that state and local authorities do not need to comply with the Excessive Fines Clause in imposing fines or forfeitures because, in the court’s view, the Clause has never been “incorporated” against the states, as has virtually every other protection in the Bill of Rights.

“Forfeiture is a controversial law enforcement tool.  In states like Indiana, police and prosecutors can keep up to 100 percent of proceeds taken through forfeiture, proceeds they can then use for nicer offices and vehicles, and even for their own pay,” said IJ Attorney Sam Gedge. “This direct financial incentive gives the government a perverse incentive to abuse this power, which is exactly what is happening in Tyson’s case with this excessive fine. Police and prosecutors have every incentive to maximize their own profit, and, unless we have federal protections against excessive fines, no one’s property is safe.”

Constitutional protections against excessive fines have never been more important than they are today. In the words of one Indiana Supreme Court justice, law enforcement is increasingly using forfeiture like “Weapons of Mass Destruction” against low-level criminal offenders, financially vulnerable property owners and even innocent people.

The government’s impulse to levy excessive penalties is not unique to forfeiture. In Ferguson, Missouri, for example, the U.S. Department of Justice determined that “2ity officials have consistently set maximizing revenue as the priority for . . . law enforcement activity.”

In Charlestown, Indiana, in another IJ case, local officials imposed crippling fines on low-income homeowners to force them to sell their land to a private developer.

In Pagedale, Missouri—five miles south of Ferguson, in yet another case litigated by the Institute for Justice—low-income residents have been fined thousands of dollars for trivial offenses like missing curtains, aging paint, walking on the left side of crosswalks, and enjoying a beer within 150 feet of a grill. Earlier this week, the city entered into a consent decree which finally ended this practice of policing for profit.

“Increasingly, our justice system has come to rely on fines, fees and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets,” said IJ Senior Attorney Darpana Sheth, who heads the Institute for Justice’s initiative to end forfeiture abuse. “This is not just an ominous trend; it is a dangerous one. We hope the Supreme Court takes this issue on, so we can establish that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.”

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[NOTE: To arrange interviews on this subject, journalists may call Justin Wilson, IJ’s senior director of communications, at (703) 682-9320 ext. 206. More information is available at https://ij.org/case/indiana-forfeiture-petition/.]

Illinois Supreme Court Ruling Protects the Integrity of the State’s Freedom of Information Act

Springfield, Ill.—This morning, the Illinois Supreme Court issued a ruling strengthening the protections of the State’s Freedom of Information Act (FOIA). The ruling makes it more difficult for government officials to enact laws allowing them to deny public record requests that they do not like. The ruling will also help the Institute for Justice’s (IJ) mission to make it easier for African hair braiders to find and keep employment.

“The Court’s opinion is a victory for everyone in Illinois who supports government transparency,” said Dana Berliner, IJ’s senior vice president and litigation director. “It will also help our organization continue to fight for the rights of African braiders to earn an honest living, free from unreasonable government regulation.”

The lawsuit resulted from a state agency’s five-year quest to prevent the disclosure of  documents about the agency’s regulation of African braiders. IJ requested the documents from the Illinois Department of Financial & Professional Regulation in 2013 as part of its work to eliminate unfair and burdensome regulations on hair braiders and a number of other low and middle-income occupations. The Institute specifically requested any complaints the agency had about hair braiders as part of its research study to determine whether there is a public safety justification for requiring hair braiders to undergo thousands of hour of classes before they can receive a license to work.

Although 9 other states and the District of Columbia disclosed the same documents to the Institute, the Illinois agency refused. The agency’s continued refusals forced the Institute to bring an administrative appeal of the agency’s denial, and then retain a law firm to bring a lawsuit against the agency.

In response to the lawsuit, the agency lobbied legislatures to pass a law that would allow it to keep the requested documents confidential.  After the law passed, the agency then argued that the law applied retroactively to bar the Institute’s request.

The Illinois Supreme Court disagreed. The Court ruled that the legislature cannot pass laws changing the rules for disclosure of documents retroactively, unless the new laws meet several strict requirements, which this law did not.  This ruling advances the public policy of FOIA to allow “access by all persons to public records” in order to promotes the “transparency and accountability of public bodies at all levels of governments.”

Jeffery Lula of Kirkland & Ellis, who represented IJ in the lawsuit, added “We are very pleased that the Illinois Supreme Court took this opportunity to clarify the law on this issue.  This ruling strengthens transparency and accountability in Illinois.”

Despite Illinois’ refusal to provide information, in July 2016 IJ released Barriers to Braiding, a report on how job-killing licensing laws tangle natural hair care in needless red tape. Now, with the State Supreme Court’s ruling, IJ will be finally be able to supplement the report with information from Illinois.

Police Must Serve and Protect, Not Ticket to Collect

Two years ago, Doraville homeowner Hilda Brucker got a call from a flustered clerk at the city court demanding that she drop everything she was doing and come in. When she got there, Hilda was confronted by a city judge and prosecutor armed with photos of her driveway, arguing that its cracks violated Doraville’s city code. Hilda protested that this was the first she’d heard about it, and that she’d never even received so much as a “fix-it ticket.” The prosecutor wasn’t having it, and the judge proceeded to impose a fine and sentenced her to six months of probation. Hilda walked out of court a convicted criminal for having a cracked driveway.

Hilda was the victim of Doraville’s revenue-reliant municipal justice system. And, unfortunately, her experience is troublingly commonplace. Today, Hilda, along with three other Georgians who fell victim to Doraville’s fine-dependent officials, are fighting back. They partnered with the Institute for Justice, a national public interest law firm, to sue the city of Doraville and end its reliance on ticket revenue to balance its city budget.

“In American courtrooms, the judge and prosecutor you face should be neutral public servants,” said IJ attorney Josh House, who represents the Plaintiffs in the case. “But in Doraville, the city’s municipal court and law enforcement are tasked with finding residents and passers-through guilty of crimes in order to generate revenue. That violates fundamental principles of due process.”

Resources

Each year, Doraville budgets between 17 and 30 percent of its overall anticipated revenue to come from fines and fees issued by its police officers and code inspectors. A 2015 Doraville newsletter even bragged that “averaging nearly 15,000 cases and bringing in over $3 million annually,” Doraville’s court system “contributes heavily to the city’s bottom line.” Instead of raising taxes or cutting spending, Doraville balances the budget through turning more and more people into convicted criminals.

According to the U.S. Commission on Civil Rights, Doraville ranks 6th in the country for the amount of fines, fees, and forfeitures revenues it brought in as a proportion of its total revenues.

Anthony Sanders, senior attorney at IJ and another attorney in the case explained: “The more a city depends on fines to balance its budget, the more it needs to fine people to balance its budget. Doraville’s entire justice system is unconstitutionally biased because it is policing for profit.”

Joining Hilda in the suit are Jeff Thornton, Janice Craig, and Byron Billingsley. Unfortunately, their stories all demonstrate Doraville’s willingness to ticket residents for trivial matters that do little to protect the health or safety of Doraville residents.

Jeff Thornton was threatened with a warrant for his arrest and fined $1,000 because he had a disorganized pile of firewood in his backyard. After he fought back, the charges were eventually dropped. Janice Craig did something every driver has done. She was driving through Doraville when she realized she was in a left-turn only lane. She braked, signaled, and waited for an opening to merge into the right lane. A police officer pulled her over and gave her a $215 ticket for holding up traffic. Byron Billingsley had a similar tale of overzealous traffic enforcement.

All of the plaintiffs had to defend themselves against a city that depends on convicting people like them in order to balance its books. The Supreme Court has long held that any “possible temptation” like this violates due process.

Doraville is unfortunately not unique, as cities across the country often depend on fines and fees, frequently targeting the poor and marginalized in their quest for revenue. The Department of Justice’s report on Ferguson, Missouri, for example, found it particularly troublesome that 23% of that city’s budget came from fines and fees.

The Institute for Justice has been at the forefront of fighting efforts by the government to use fines, fees, and civil forfeiture as a means to raise revenue and as a means to pursue illegitimate goals. Most recently, it secured a consent decree putting in place broad structural reforms to Pagedale, Missouri’s ticketing, housing code, and municipal court system.

Tennessee Will Require Law Enforcement to Report Their Forfeiture Spending

Under a bill signed into law by Gov. Bill Haslam on Monday, Tennessee’s law enforcement agencies and drug task forces will finally have to reveal how they spend millions of dollars’ worth of confiscated property. Thanks to the state’s civil forfeiture laws, police and prosecutors can seize and keep cash, cars, and other valuables without ever charging the owner with a crime.

Once property is forfeited to the government, law enforcement can collect up to 100 percent of the proceeds, which provides them with a strong incentive to pursue civil forfeiture. Research by the Institute for Justice found that between 2009 and 2014, Tennessee agencies forfeited almost $86 million in cash. (That figure does not include proceeds from cars, electronics, and other physical property, so the true value of forfeiture funding is even higher.) But where that money went remained a mystery.

With the governor’s signature, SB 1877 will require law enforcement to disclose their forfeiture expenditures, which may include spending on overtime, travel, equipment, court costs, community programs and other expenses. In addition, the state’s 225 municipal local law enforcement agencies will have to undergo annual audits by the Tennessee Treasury Comptroller. Those reports will be posted online.

According to an Institute for Justice report on forfeiture transparency and accountability, SB 1877 has earned Tennessee top marks for record accessibility, forfeiture account audits, and accounting for forfeiture fund spending.

“By itself, improved transparency cannot fix the fundamental problems with civil forfeiture—namely, the property rights abuses it permits and the temptation it creates to police for profit,” noted Jennifer McDonald, an IJ research analyst who co-authored the transparency report.  “Transparency is no substitute for comprehensive forfeiture reform, but it is still vitally important to bring forfeiture activity and spending into the light of day.”

Nationwide, 29 states and Washington, D.C. have tightened their forfeiture laws since 2014. Most sweeping of all, both Nebraska and New Mexico outright abolished the practice of civil forfeiture and replaced it with criminal forfeiture.

City Council Committee Extends Permit for Mobile Boutiques but Keeps in Place Burdensome Restrictions on Operating Hours

Chicago—This morning, the Chicago City Council’s License and Consumer Protection Committee voted to extend the emerging business permit for mobile boutiques by one year. The Institute for Justice Clinic on Entrepreneurship at the University of Chicago Law School is working with mobile boutique owners to push for a renewable license that allows new businesses to operate under sensible rules. Today’s extension allows mobile boutiques to continue to operate, but under rules that make it difficult to compete and succeed.

“We are disappointed that the committee failed to reach a permanent solution that would allow for innovative small businesses to thrive in Chicago,” said Beth Kregor, the director of IJ’s Clinic. “Mobile retail provides a pathway for entrepreneurs to contribute to Chicago’s retail scene. Restrictive rules on these businesses will lead creative and hard-working individuals to look for opportunities outside of Chicago. If the city tries to regulate them so strictly that they cannot compete, they will be run out of business—or at least run out of town.”

Rebecca Mueller started working with Beth Kregor and law students at the IJ Clinic three years ago, when she learned she could not legally sell her designer fashions from a truck she had transformed into a tiny boutique. With the IJ Clinic’s help, Rebecca’s business, North & Hudson, received Chicago’s first emerging business permit for mobile boutiques in June 2016. The opportunity allowed Rebecca to build a customer base. Soon, she was able to expand her business to a storefront in Block 37.

Rebecca testified before the committee, saying, “Starting a mobile business gives people like me, with big dreams and small budgets, a way to start without a lot of cash and follow customer demand into bigger, better, often brick-and-mortar opportunities.”

However, Rebecca noted that the current restrictions make it difficult to succeed: “Two-hour parking limits are an income killer. We, and our customers, simply need more time.” The IJ Clinic will continue to advocate for entrepreneurs like Rebecca, who seek the freedom to serve customers, grow a business, and create jobs in Chicago.

The IJ Clinic on Entrepreneurship at the University of Chicago Law School provides free legal assistance, support and advocacy for low-income entrepreneurs. Its mission is to ensure that the law does not stand in the way of entrepreneurs who are trying to earn an honest living and build innovative new business models.

Federal Court Approves Historic Consent Decree Ending “Policing for Profit” in Pagedale, Mo.

On Friday afternoon, Federal Judge Rodney W. Sippel granted final approval to a groundbreaking consent decree that will significantly reform the city of Pagedale, Missouri, and its ticketing policies, housing code, and municipal court. The consent decree is the end result of a class-action lawsuit brought in 2015 by people ticketed and threatened with tickets by the city. The suit alleged that the city identified, ticketed, prosecuted, and convicted its residents and others not for legitimate health and safety reasons but rather to raise revenue for the city.

“Judge Sippel’s approval finally brings the city of Pagedale’s criminal and civil justice system into compliance with the requirements of the Constitution,” said Bill Maurer, a senior attorney at the Institute for Justice, which represented the class. “The consent decree provides defendants with meaningful protections as they move through the city’s justice system. We appreciate the city’s willingness to come to the table and agree to implement these critical and sweeping reforms.”

Located in north St. Louis County, Missouri, Pagedale is a town of about 3,000 residents, many of whom live under the poverty line. Despite the limited resources of its residents, the city relied on fines and fees derived from tickets as an essential revenue source for the chronically deficit-ridden city. A review of the city’s budget and ticketing information during litigation revealed just how ubiquitous ticketing has become in the city.

  • From January 1, 2010, to October 2016, the city issued 32,229 tickets.
  • During this time, the city ticketed 18,678 different people.
  • The city’s municipal court, which met twice a month on Thursday evenings, heard a staggering number of cases—in 2013 alone, it heard 5,781 cases, or an average of 241 cases per night.
  • Tickets were the city’s second-largest source of revenue—from 2010 to 2014, revenue from fines and fees comprised between 16% to 23% of its general revenue funds.

These were not just traffic tickets, either. After the state of Missouri restricted the percentage of revenue from traffic tickets that a municipality could keep, the number of tickets Pagedale issued for housing violations exploded, with the end result being that 39% of the entire adult population of the city were cited for housing violations.

These violations were often for trivial matters, not for any legitimate or harmful conditions. Pagedale residents could be—and were—ticketed for such things as not having curtains on their basement windows, having mismatched blinds, having more than three people at a barbecue, and having a basketball hoop in the front of their house. The city even prosecuted residents for conditions that were not forbidden by the municipal code, like having a crack in one’s driveway or an untreated fence. While residents were sometimes cited for questionable violations, other times they had no way to know the basis of the citation at all; many violations lacked any information about the nature of the alleged offense  By not knowing what they’d done wrong, residents found it almost impossible to defend themselves.

The end result for many Pagedale residents was a constant stream of tickets and a never-ending cycle of debt that often led to poverty, loss of one’s job, arrest, and alienation from society.

In 2015, three Pagedale residents—Valarie Whitner, Vincent Blount, and Mildred Bryant—sued the city on behalf of themselves and all others similarly situated. Represented for free by the national public interest law firm the Institute for Justice and a St. Louis team from the global law firm Bryan Cave Leighton Paisner LLC, the residents brought a class action suit alleging that the city’s reliance on revenue from fines and fees violated the Fourteenth Amendment’s due process guarantee by interjecting an impermissible institutional financial interest into the city’s civil and criminal justice system. The suit also alleged that the city’s policy of making harmless conditions around residents’ homes subject to fines and fees violated the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution.

After over two years of litigation, the parties negotiated the consent decree approved by Judge Sippel on Friday. Under the consent decree, the city has agreed to implement the following reforms, some of which have already been put in place:

  • It will eliminate all pending charges, fines, and fees associated with a defendant’s failure to appear;
  • It will decline to prosecute all pending cases in the city unless the city prosecutor finds good cause to continue prosecution;
  • It will dismiss any remaining fines and fees in cases where the defendant has paid more money than the initial amount of the fine;
  • It will repeal the city’s “Nuisances” and “Minimum Housing Standards” sections of its municipal code, where the city made many harmless conditions illegal, and replace these sections with the St. Louis County Property Maintenance Code;
  • It will repeal numerous other sections of the Pagedale Municipal Code that gave the city the power to ticket harmless conditions;
  • The city will stop ticketing people for conditions that are not in its municipal code;
  • The tickets issued by the city will inform the defendant of the charges brought against him or her, the potential penalty, the options for resolving the charge, pending deadlines, the date and time of any court sessions, and the procedure for seeking a continuance;
  • The city will distribute to defendants in its municipal court a handout that provides them with basic information about the court process and information about how to pay any fine in installments;
  • The city will give defendants the option of attending court sessions in the evening or during the day so that attendance will not affect their jobs;
  • The city’s municipal court will not hold more than 7 trials per session;
  • The city will permit people to pay their fines and fees online and not in person;
  • The city will not penalize people for their failure to appear in court for minor traffic violations and violations of its municipal ordinance;
  • The city’s municipal court will hold a contempt hearing before imposing any penalty for failure to pay a fine or fee; and
  • The city’s municipal court will not sentence anyone to incarceration unless the defendant is represented by counsel or has knowingly and voluntarily waived their right to counsel.

The plaintiffs will monitor the city’s compliance with the consent decree through regular reports by the city regarding its financial condition and the number of active cases and fines and fees it has collected. If the plaintiffs believe the city is not complying with the consent decree, the plaintiffs can mandate to meet with the city and, if this is unsuccessful, move the court to enforce compliance. The district court will retain jurisdiction to enforce the provisions of the consent decree.

“The Supreme Court has repeatedly held that municipalities cannot have a financial interest in convicting defendants,” said IJ attorney Joshua House. “We are happy to see Pagedale put such financial interests aside and focus instead on the Constitution’s requirements of due process and fairness.”

“Finally, my nightmare is over,” said Pagedale homeowner and class representative Valarie Whitner. “Every morning I woke up worried that I’d get another ticket. Now I can sleep easy and get on with my life.”

“Bryan Cave Leighton Paisner is proud to have made a difference in the lives of so many residents of North St. Louis County through this litigation,” said Bryan Cave Leighton Paisner  Partner Ben Clark. “All St. Louisans, like all Americans, deserve the fundamental protections our Constitution guarantees, and we are thrilled to have played a part in ensuring those rights are protected in our own backyard.”

“Across the country, the government has resorted to using policing for profit to wrest money from individuals who are often the poorest and most vulnerable among us,” said IJ President Scott Bullock. “This case, like IJ’s work in fighting civil forfeiture, is a vital part of IJ’s efforts to end this abusive and short-sighted practice. Because the Constitution forbids the government from using the justice system as a means to raise revenue, IJ will continue this fight across the country.”

You may read the final consent decree here.

Louisiana Legislature Send License Review Bill to Governor

Late Thursday, the Louisiana House of Representatives unanimously approved HB 748, a bill that would review the state’s burdensome and often arbitrary licenses. The bill now heads to Gov. John Bel Edwards, who endorsed an earlier version of the bill as a way to provide “regulatory relief” for Louisiana entrepreneurs.

Sponsored by Rep. Julie Emerson, the final version of HB 748 would require the governor to review at least 20 percent of Louisiana’s occupational regulations every year over the next five years. According to research by the Institute for Justice, Louisiana is the 6th most broadly and onerously licensed state. In fact, occupational licensing is now one of the biggest barriers to finding jobs, with almost 1 in 3 workers in Louisiana either licensed or certified.

“Although we wish Rep. Emerson’s original review bill (which passed the House with only nine votes against it) had become law, the final product is still a valuable step forward,” noted Artur Davis, senior consultant for legislation and coalitions at the Institute for Justice. “By signing this bill, Gov. Edwards would have an important and revived tool to rigorously examine the numerous burdens inflicted on Louisianans by occupational licensing. We stand ready and are eager to help the governor fulfill the bill’s mandate as he works to reduce government obstacles to Louisiana’s home-grown entrepreneurs.”

Louisiana is not the only state looking to overhaul occupational licensing. Last month, Nebraska enacted a comprehensive sunset review process for its licensing laws that is very similar to the one originally proposed by Rep. Emerson. In Virginia, Gov. Ralph Northam approved a pilot program aimed at reducing regulatory requirements and costs by 25 percent over the next three years.

“With HB 748, the governor’s findings and recommendations would provide the vehicle for other public interest advocates committed to creating jobs and expanding economic opportunity to join us,” Davis added. “Together, we will ask legislative leaders to address the biggest and most important labor market issue in Louisiana.”

Nationwide, calls to reform America’s sclerotic licensing laws have come from a strikingly diverse chorus, including the Trump Administration’s Labor Department, the White House Council of Economic Advisers under President Obama, the Brookings Institution, the Heritage Foundation, the Institute for Justice and the Federal Trade Commission.

Arizona Governor Signs Law Freeing Food Trucks to Operate Across the State

Phoenix, Ariz.Arizona Gov. Doug Ducey signed a bill that will allow food trucks to operate with greater freedom across the state. The Institute for Justice worked with legislators to construct a bill based on “Food Truck Freedom,” a study of best practices in regulating mobile vending.

“With the signing of legislation, food truck owners can much more easily operate across the state of Arizona,” said Paul Avelar, Managing Attorney of the Institute for Justice Arizona Office. “Because of a patchwork of outdated and hostile local rules and regulations, these mobile businesses find it difficult to actually move from place-to-place. This new law will allow many more Arizonans to consider an affordable path to starting their own business.”

HB 2371, introduced by State Rep. Kevin Payne, will prevent municipalities from banning food trucks or creating red tape that makes it difficult for trucks to operate. This red tape includes restrictions that stop food trucks from parking in legal public parking spaces, that force trucks to leave private lots after an arbitrarily short period, and that prohibit trucks from operating within a certain distance of brick-and-mortar restaurants.

“States all across the country should pay attention to what Arizona did,” said Robert Frommer, an Institute for Justice senior attorney, who is the head of IJ’s National Street Vending Initiative and has represented food truck owners across the nation. “A thriving food truck scene has many benefits, including increased jo