A quick one today because we’re offline (more on that later). Pacific Legal Foundation (the folks who are representing the property owner in the pending case challenging the continuing viability of the Williamson County ripeness doctrine), has posted this entry on their blog, “This monkey got his day in court. Property owners still can’t.”

The post focuses on the brief we filed in the case on behalf of the Citizens’ Alliance for Property Rights Legal Fund, which notes the disparity between a monkey having standing to bring a suit in federal court to protect its (alleged) (intellectual) property rights, but human property owners like Ms. Knick having no right to do the same when asserting her plain old property rights. 

Our brief didn’t focus on the monkey background, so here it is:

In 2011, nature photographer David Slater set up camera equipment for a group of wild crested macaques to take selfies. That’s when a macaque known as Naruto took a now infamous selfie.

The photo went viral and wound up on the Wikimedia Commons website, which had designated it as a public domain image. Slater objected that he owned the copyright, but Wikimedia refused to remove the image reasoning that because the monkey was the photographer, the photo could not be copyrighted.

Just as that dispute drew to a final stalemate, PETA decided to sue Slater on behalf of Naruto for publishing a photography book that included the monkey selfie. PETA asked the court to recognize the monkey’s rights in the photo (and to appoint PETA to administer all proceeds from the photograph to advance its activities). A trial court dismissed the monkey’s case, and PETA appealed to the Ninth Circuit Court of Appeals. Although the Ninth Circuit ultimately dismissed Naruto’s lawsuit, the court held that Naruto did have standing to sue humans for damages.

Although a monkey has access to the federal courts, a property owner often does not. That is because property rights are the only rights guaranteed by the United States Constitution that are not directly enforceable by federal courts.

The temptation is to view our brief as just a bit of cheek, but there’s a serious point there (we hope). As we wrote in the brief:

For more than three decades, the state procedures requirement has confused litigants, fractured courts, and has forced property owners to assert their federal constitutional rights in state courts, most never to see the light of day again. Until Williamson’s state procedures requirement is finally relegated to history’s dustbin, this confusion and injustice will continue. All that property owners ask for is the same opportunity afforded others who assert their federal constitutional civil rights claims: the chance to have a federal court adjudicate their federal rights, nothing more.

The Court will hear oral arguments on October 3, 2018. We’ll have more then.