inversecondemnation.com

▪ Oral Arguments in Kauai Property Tax Appeal (mp3)

The recording of the Feb. 15, 2007 oral arguments in County of Kauai ex rel. Nakazawa v. Baptiste, the appeal challenging the "Kauai v. Kauai" intragovernmental lawsuit involving 2004's Ohana Kauai property tax Charter Amendment is now available, in three parts:

• Appellants' opening argument (20mb)

• Appellee's argument / Appellants' rebuttal (at 14:45) (27mb)

• Appellee's rebuttal (5mb)

Summaries of the arguments here and here (Hawaii Public Radio report).

    

▪ Correcting Misperceptions of Prop 13

A letter to the editor of the Honolulu Advertiser (scroll down to "Analysis of Prop. 13's Effect Missed the Mark") by the president of the Howard Jarvis Taxpayer Association correcting the article Echoes of California's Prop. 13 in Kauai's tax case:

California is still a high tax state — we rank sixth in per capita taxation — but by making taxes predictable, Proposition 13 provides to all homeowners the security of knowing their future tax liability, which allows them to budget accordingly.
    

▪ Briefs in SCOTUS Exaction Case

SCOTUSblog posts the merits briefs, the joint appendix, and briefs amici curiae in Wilkie v. Robbins.  That case involves land use exactions, and whether the government's illegal conduct qualifies as the predicate act of "extortion" under the RICO statutes.  More on the issues here.

▪ Careers in Property Law

I was at the University of Hawaii Law School today for an informal discussion with students about opportunities to practice property-related law.  There are many, and Hawaii has always been a hotbed of cutting edge issues in land use, regulatory takings, and eminent domain law. 

For example, the current Kelo-eque nearly-anything-goes approach to "public use" questions had its beginning in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), the case challenging Hawaii's Land Reform Act.  The "property rights" revolution arguably began with  Kaiser Aetna v. United States, 444 U.S. 164 (1979), which involved Oahu's Kuapa Pond, and issues of uncompensated public access.  In 2005, the Supreme Court analyzed Hawaii's gas station rent control statute under the Takings and Due Process Clauses in Lingle v. Chevron, U.S.A. Inc., 544 U.S. 528 (2005). Undoubtedly, there will be more.

Also, here are some of the resources I mentioned (and a couple I forgot):

• Pacific Legal Foundation
• Land Use Research Foundation (LURF) Hawaii
• Damon Key Leong Kupchak Hastert
• ABA Section on State & Local Government
• ABA Section of Litigation (Committee on Condemnation, Zoning & Land Use)

If you have any questions, email me.

▪ Ninth Circuit: No Fifth Amendment "Property" in Punitive Damage Award

After a jury found that an Oregon state agency violated the plaintiff's contitutional rights when it laid her off, it required Oregon to pay her compensatory and punitive damages.  After the judgment, Oregon got 40% back.  The Oregon "split recovery" statute provides that for certain punitive damage awards, the state is entitled to 40% of the award, to be deposited into a victim's compensation fund, even when the state is the defendant.  The plaintiff claimed, among other things, that the statute effected a taking of her property without just compensation. 

The Ninth Circuit held in Engquist v. Oregon Dep't of Agriculture (No. 35170, Feb. 8, 2007) that the plaintiff's interest in a punitive damage award was not "property" protected by the Fifth Amendment's Takings Clause.  The court's takings analysis begins on page 1527 of the slip opinion. 

    

▪ Property Owner Brief in Land Use Extortion Case

SCOTUSblog posts the brief for the landowner in Wilkie v. Robbins, a land use case to be heard by the US Supreme Court on March 19.  The appeal arose after federal officials used their regulatory power to coerce a Wyoming rancher to give the government an easement without just compensation.  Among other claims, the rancher sued the government officials in their individual capacities for extortion under "RICO" laws.

The Court accepted review of these questions (from the cert petition):

1. Whether government officials acting pursuant to their regulatory authority can be guilty under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.

2. Whether respondent’s Bivens claim based on the exercise of his alleged Fifth Amendment rights is precluded by the availability of judicial review under the Administrative Procedure Act, 5 U.S.C. 701 et seq., or other statutes for the kind of administrative actions on which his claim is based.

3. Whether the Fifth Amendment protects against retaliation for exercising a “right to exclude” the government from one’s property outside the eminent domain process and, if so, whether that Fifth Amendment right was clearly established.

Laurence Tribe of Harvard Law represents the landowner, and frames the case as follows:

Petitioners in this case, official of the United States Bureau of Land Management (BLM), engaged in a campaign of harassment and coercion designed to force respondent, a Wyoming rancher, to give the Government a property interest in his land without just compensation.  The principal question before the Court is whether that brazen attempt to circumvent both the limitations on petitioners' regulatory authority and the requirements of the Fifth Amendment violated respondent's clearly established rights under the Constitution and state and federal statutes prohibiting extortion under color of official right.

The U.S. Solicitor General will argue for the government officials, whose brief is posted here.  The decision of the 10th Circuit is here. 

More about the case from Northwestern U's School of Journalism.

▪ KHPR Report on Kauai Tax Appeal (mp3)

Hawaii Public Radio (KHPR) has posted a report on last week's County of Kauai ex rel. Nakazawa v. Baptiste appeal arguments here (2mb mp3).

▪ Echoes in Kauai Tax Appeal

The Advertiser's Jerry Burris writes Echoes of California's Prop. 13 in Kauai tax case with thoughts about the County of Kauai ex rel. Nakazawa v. Baptiste appeal:

There are some interesting legal niceties in this case that will become fodder for law school classes for years to come.

The first is the oddity that the complainant in this case is the County of Kaua'i, which effectively sued itself to block implementation of the charter amendment. County officials argued that the budgetmaking process would be in chaos if property tax collections (which provide the lion's share of the budget) were arbitrarily limited. Pacific Legal Foundation lawyers essentially said, come on, county lawyers should be defending this new law, not attacking it.

The other legal complexity is that there is confusion about who is "the county" when it comes to deciding how property taxes should be imposed. Is it the council and the administration, or is it the residents and taxpayers of Kaua'i?    

more...

▪ Another Report on HAWSCT Property Tax Arguments

Another summary of yesterday's arguments.

    

▪ More on Supreme Court Property Tax Arguments

More reports on yesterday's HAWSCT arguments in County of Kauai ex rel. Nakazawa v. Baptiste, the appeal challenging the "Kauai v. Kauai" intragovernmental challenge to 2004's Ohana Kauai property tax Charter Amendment.

• Supreme Court hears Kauai v. Kauai (The Garden Island 2/16/2007)
• Kauai property taxes, voters get day in court (AP/Honolulu Advertiser 2/16/2007)
• Kauai tax rollback fight goes before Hawaii Supreme Court (KHNL-TV8, 2/15/2007)
• High court weighs Kauai tax case (AP/Honolulu Star-Bulletin 2/16/2007)