Pacific Legal Foundation Aims to Extend Supreme Court Win Streak

The Pacific Legal Foundation will attempt to extend its remarkable success at the US Supreme Court when it presents its latest case to the justices on Tuesday.

The libertarian public interest law firm has won 17 of its high court cases, including all three of its cases last term, by seeking out sympathetic plaintiffs that highlight the real world effects of government actions.

PLF makes “a point to find people that allow us to tell the best story,” said Steven Anderson, the organization’s president and CEO. “We want a simple story and a sympathetic one.”

The group’s latest case, Sheetz v. County of El Dorado, California, is no different. It’s the “classic American tale” of a laborer turned business owner at the mercy of his local government, said PLF attorney Brian Hodges.

Desirable Plaintiffs

Founded in 1973, the Sacramento-based law firm now boasts more than 100 attorneys and staff. Billing itself as a civil rights group, PLF focuses on individual rights.

“Economic liberties are important parts of civil liberties,” said PLF’s Director of Litigation Larry Salzman. And yet traditional civil rights groups tended to neglect them, he said.

“Our niche has been to occupy these spaces that were neglected by the traditional civil rights movement,” Salzman said.

To do so, PLF aims to always have a “constant stream” of cases at various levels and different circuits which “allows us to bring the best petitions possible to the US Supreme Court,” Anderson said.

To build that pipeline, PLF conducts its own academic research and files records requests to find its own plaintiffs and cases.

For example, PLF researched jurisdictions that allow the government to take an entire home to satisfy often much lower tax debts, which led to one of its three victories last term in Tyler v. Hennepin County.

A unanimous court said a Minnesota county’s seizure of a 94-year-old’s $40,000 condo to satisfy a $15,000 tax bill was an unlawful “taking” under the Fifth Amendment.

Salzman said the group’s reputation has also led plaintiffs and local attorneys to reach out to PLF for help.

That’s how the Sheetz case came to the group.

Former PLF attorney Paul Beard II, now in private practice filed the petition with the court alleging that a California county acted illegally when it forced George Sheetz to pay more than $23,000 in fees to fund unrelated road improvements before he could build a home on his property.

Salzman said it only made sense for Beard to team up with his former employer given its 40 years of involvement with the issue of “unconstitutional conditions.”

In PLF’s first high court case in 1987, Nollan v. California Coastal Commission, the Supreme Court said localities couldn’t charge unrelated fees as a condition to building on personal property.

Two more PLF cases, Dolan v. Tigar in 1994 and Koontz v. St. Johns River Water Management District in 2013, clarified and strengthened that rule.

The Sheetz case is more or less the last question left unresolved— whether the unconstitutional conditions doctrine applies only to decision made by bureaucrats like individual permitting officials, or if it also applies to schemes put in place by a legislature.

Missed Opportunities

PLF’s strategy of seeking out favorable clients is “plucked from the playbook” pursued by left-leaning groups like the NAACP and the ACLU in the 1960s and 1970s, said UCLA law professor Scott Cummings.

It led to huge successes, like the NAACP’s landmark 1954 Brown v. Board of Education ruling, which mandated public school desegregation.

Brown was the culmination of a 20-year campaign to find sympathetic plaintiffs, file in the right jurisdictions, and make incremental changes to the law, Cummings said.

Conservatives soon took note.

Cummings pointed to a 1971 memo that future Justice Lewis Powell wrote for the US Chamber of Commerce noting that those on the right had neglected opportunities in the courts.

“Other organizations and groups,” Powell said, “have been far more astute in exploiting judicial action.” The ACLU “initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court.”

Conservative groups should also take advantage of this “vast area of opportunity,” Powell said. In doing so, the “greatest care should be exercised in selecting the cases in which to participate, or the suits to institute.”

“PLF was very first group on the right to be modeled on the liberal groups,” Cummings said.

Gut Feeling

Anderson said its been easier in recent terms to secure victories at the court, given new members’ focus on issues at the heart of what PLF does.

Property rights and separation of powers are “areas where this court in the last decade seem particularly interested,” Salzman said. So there’s certainly been a “convergence of PLF’s expertise and the questions that this court seems very interested in addressing.”

But Anderson said that nearly half of the victories that PLF has achieved in the high court have been unanimous. And even where the decision is divided, its often not along predictable ideological lines, he said.

In Wilkins v. United States, another of the group’s wins last term, the Trump appointees joined the court’s liberals in a 6-3 decision, with the three remaining conservatives—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—in dissent.

“So it’s not necessarily people who were appointed by a particular political party” that are siding with PLF, Anderson said. Often, it’s something that just “resonates with people in their gut.”