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On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment

The U.S. Supreme Court last week agreed to review the Florida Supreme Court's decision in Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), which held that a state statute prohibiting "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. See Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.

The Court accepted three questions for review, and the cert petition relied on two rather notorious cases with Hawaii origins to support the conclusion that a decision by a state court which unexpectedly changes established state common law rules of property is a compensable taking. See Pet. at 31-32 (citing Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985); Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978)).  The first Question Presented accepted for review is:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

In this post, we explore the background to the esoteric issue of "judicial takings" presented by the two Hawaii cases.

Robinson v. Ariyoshi — The Never Ending (Water Rights) Story

The Robinson litigation is one that holds a special place in our hearts, as it is a tale interwoven with the recent history of Hawaii, taking us from the time before jet travel when sugar and pineapple -- not tourism -- were the economic engines driving politics and the economy of the Territory of Hawaii, through the salad days of the openly activist Hawaii Supreme Court under the leadership of Chief Justice William S. Richardson, and finally sputtering out (sort of) after the U.S. Supreme Court's ripeness ruling in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

Here's the short summary, repeated from memory (the litigation, which is still pending, has been going on for 50 years now, so please forgive us if a few of the details are off). The case started out in 1959 in a Kauai county trial court as a dispute between several sugar plantations over which of them possessed the rights to surplus water in a Kauai stream, among other things. Nine years later, the trial court issued a 65-page decision based on long-standing Kingdom, Territory, and State water law, and declared who owned what. So far, it was just another in a long line of water disputes between private parties. The losing parties took the case to the Hawaii Supreme Court (in those days, there was no Intermediate Court of Appeals and all appeals by right went directly to the Supreme Court), where no party, including the State, argued that the controlling water law was anything but as established by long-standing Hawaii cases.

The Hawaii Supreme Court, however, "sua sponte overruled all territorial cases to the contrary and adopted the English common law doctrine of riparian rights." Robinson, 753 F.2d at 1470 (citing McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973)). The court "also held sua sponte that there was no such legal category as 'normal daily surplus water' and declared that the state, as sovereign, owned and had the exclusive right to control the flow," and "that because the flow of the Hanapepe [stream] was the sovereign property of the State of Hawaii, McBryde's claim of a prescriptive right to divert water could not be sustained against the state." Robinson, 753 F.2d at 1470. In other words, in a dispute between "A" and "B" over which of them possessed water rights, the Supreme Court simply said "neither of you do, the State owns it all."

The private parties who thought they had owned something for over a hundred years were understandably a bit miffed that their property had seemingly morphed into public property by the stroke of a Justice's pen, and, to add insult to injury, without even the chance to brief the Supreme Court before it announced the new rule. But after a rehearing on a narrow issue of state law, during which the court rebuffed an attempt by the private parties to raise federal constitutional issues, the Hawaii Supreme Court reaffrimed the McBryde ruling, with two Justices dissenting. See McBryde Sugar Co. v. Robinson, 55 Haw. 260, 517 P.2d 26 (1973) (per curiam). Justice Bernard Levinson switched his vote from the first opinion, concluding that it was a "radical departure" from established law, and was a taking:

Although I voted with the majority of this court in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973) [hereinafter referred to as McBryde I], I am constrained to recant that position in view of my current understanding of the problems of this case.  In light of the arguments adduced on rehearing, historical evidence discovered upon further research subsequent to the court's previous decision in this case, and a reappraisal of the reasoning supporting that decision, it is my opinion that the court committed error in holding that all surplus water belongs to the State and that private water rights, however acquired, may not be transferred to nonappurtenant land.  Because of the importance of this case to the development of the law on the subject of Hawaii's water resources, I have undertaken to present a detailed analysis explaining why McBryde I is not in keeping with long established and unique principles of Hawaiian water law.  Precisely because McBryde I is such a radical departure from these principles as they have been heretofore understood, moreover, I have concluded that McBryde I effectuates an unconstitutional taking of the appellant's and cross-appellants' property without just compensation and should be reversed on this ground as well.

McBryde, 55 Haw. at 262-63, 517 P.2d at 27 (Levinson, J., dissenting). The U.S. Supreme Court denied certiorari meaning the Hawaii Supreme Court's McBryde decision was final.

But it was not the last word. The sugar companies sued the state (Governor Ariyoshi, actually, since under Ex parte Young, 209 U.S. 123 (1908), a state official can be sued in federal court to enjoin unconstitutional conduct despite the 11th Amendment) in federal district court under the federal civil rights statute, 42 U.S.C. § 1983. The district judge -- the inimitable Martin Pence -- held that the Hawaii Supreme Court's McBryde decision took property without just compensation, and enjoined the state from enforcing the decision. See Robinson v. Ariyoshi, 441 F.Supp. 559 (D.Haw. 1977).

Up to the Ninth Circuit the parties went, which noted the tortured procedural path the case next took, including a detour back to the Hawaii Supreme Court on certified questions when the Ninth Circuit asked the court whether it really meant what it said in McBryde:

The leisurely pace of this litigation has produced three oral arguments in this court, two of which were followed by referral of certified questions to the Supreme Court of Hawaii. See Robinson v. Ariyoshi, 65 Hawaii 641, 658 P.2d 287 (1982) (Robinson II). Following the publication of the state court's answers to the certified questions, the parties briefed the remaining issues that had been narrowed by the earlier proceedings and reargued the case. A number of complex questions remain, but to expedite the matter we will discuss only those essential to a resolution of the main question: Can the state, by a judicial decision which creates a major change in property law, divest property interests?

Robinson, 753 F.2d at 1471. [Barista's note: are you keeping score yet? There's McBryde. McBryde II. McBryde III. Robinson I. Robinson II. Robinson III. Still to come: Robinson IV, V, VI, VII, and VIII, and then back to McBryde IV.]  After addressing jurisdictional issues, res judicata, and the Rooker/Feldman doctrine, the Ninth Circuit addressed the merits:

The state conceded at oral argument that the Fourteenth Amendment would require it to pay just compensation if it attempted to take vested property rights. The substantive question, therefore, is whether the state can declare, by court decision, that the water rights in this case have not vested. The short answer is no.

Robinson, 753 F.2d at 1473.The court determined that the water rights claimed by the private parties were vested rights, and that the state legislature or the state supreme court cannot alter those rights without condemnation and payment of just compensation.

By the time Robinson IV rolled around, the U.S. Supreme Court had issued its ruling in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that certain regulatory takings case were not ripe, and it granted cert and summarily vacated the Ninth Circuit's Robinson decision, ordering it to consider the decision again in light of Williamson County's new ripeness rules. See Ariyoshi v. Robinson, 477 U.S. 902 (1986) (Robinson IV). The Ninth Circuit vacated its earlier order (Robinson v. Ariyoshi, 796 F.2d 339 (9th Cir.1986) (Robinson V) and sent the case back to Judge Pence in the District Court.

Not to be deterred, Judge Pence found the case ripe under Williamson County. See Robinson v. Ariyoshi, 676 F.Supp. 1002, 1020-21 (D.Haw. 1987) (Robinson VI). Back up to the Ninth Circuit they went, and in Robinson v. Ariyoshi, 854 F.2d 1189 (9th Cir. 1988) (Robinson VII), the Ninth Circuit ordered further briefing on the issue.  In Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1990) (Robinson VIII), the Ninth Circuit vacated the District Court's decision and sent it back with instructions to dismiss the case because it was not ripe under Williamson County.

A thirty-one year old case was not ripe, you say?  How so?

As noted, we previously certified six questions to the Supreme Court of Hawaii. In response, the Hawaii court stated that the decision in McBryde II did not constitute the final disposition of the case. See Robinson II, 658 P.2d at 295-97. The court explained that the McBryde litigation began and was treated throughout by the trial court as an action to determine the rights of the parties to the waters of the Hanapepe. The trial court had attempted to identify the exact quantity of water to which each party was entitled. On appeal, the Supreme Court of Hawaii affirmed the award of appurtenant rights and reversed the award of prescriptive and surplus rights. No specific instruction was imparted to the trial court, and the Supreme Court did not utilize its power to render a final judgment. Further, no further proceedings are of record in the trial court. The court explained that the partial reversal without instruction merely rendered that portion of the judgment void. Id. at 296-97. Thus the only portion of the judgment which could be considered final after appeal was the partial quantification of the parties' water rights, namely the award of appurtenant rights.

Robinson VIII, 887 F.2d at 218 (footnote omitted). Unbelievably, a third cert petition was not sought, and the litigation (per the Hawaii Supreme Court's edict as noted above) went back to the Kauai trial court where it all began in 1959, where, as far as anyone in these parts is aware, the case remains on the docket. The state certainly has no interest in moving it forward and ripening the case, and the private parties who originated the litigation are long since out of the sugar business. [See one note of correction in the comments.] Kauai is now a place of tax revolts, zoning fights, and quiet beaches, and the sugar industry is but a distant memory.

County of Hawaii v. Sotomura — Shifting The Line in the Sand

If you have managed to come along this far, congratulations -- there's more, but thankfully it's a shorter tale and one which follows the same general plot.

McBryde/Robinson was not a unique case, and the Hawaii Supreme Court regularly accomplished similar changes in established law in other areas. In County of Hawaii v. Sotomura, 55 Haw. 176, 517 P.2d 57 (1973), the court redefined the seaward boundary of a littoral parcel in a condemnation action from the high water mark to the "upper reaches of the wash of the waves," holding that no compensation was owed for the land seaward of the new line because it was owned by the state. The trial court had awarded nominal compensation of one dollar to the property owner for the condemnation of this property, but the Supreme Court declared that was error and took the dollar away. [Disclosure: my late law partner and name partner of our firm, Charlie Key, represented the property owners in the Hawaii Supreme Court.]

The property owners followed the Robinson script and sued in federal district court (for due process violations, not under a takings theory). The court determined "[j]udicial transfers of title to private lands to the State which do not permit the owner an opportunity to be heard or to present evidence is not constitutionally valid. Whenever a party is to be deprived of property, he is entitled to a meaningful hearing before the fact." Sotomura v. County of Hawaii, 460 F. Supp. 473, 478 (D. Haw. 1978). The district court concluded:

This Court fails to find any legal, historical, factual or other precedent or basis for the conclusions of the Hawaii Supreme Court that, following erosion, the monument by which the seaward boundary of seashore land in Hawaii is to be fixed is the upper reaches of the wash of the waves. To the contrary, the evidence introduced in this case firmly establishes that the common law, followed by both legal precedent and historical practice, fixes the high water mark and seaward boundaries with reference to the tides, as opposed to the run or reach of waves on the shore. For example, on the Island of Hawaii, the seaweed line was used to indicate the level of the high tides and high water mark. The decision in Sotomura was contrary to established practice, history and precedent and, apparently, was intended to implement the court's conclusion that public policy favors extension of public use and ownership of the shoreline. A desire to promote public policy, however, does not constitute justification for a state taking private property without compensation.

Id. at 480-81. The state's appeal to the Ninth Circuit was dismissed as untimely.

Just think of the possibilities if the deadline had not been missed -- this case might still be going on today.

It Is Good To Be The King: Councilmembers Personally Immune From Charges Of Retaliatory Eminent Domain Abuse

You may remember Mel Brooks' History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims "it's good to be the King!" each time he takes advantage of one of his subjects.

Well, it turns out that it really is good.

In Sable v. Myers, No. 07-6286 (10th Cir. Apr. 24, 2009), the U.S. Court of Appeals held that city councilpersons are absolutely immune from claims they used the domain power to take the property of an owner as retaliation for his having successfully brought a quiet title action against the city. 

Mr. Sable's property was immediately north of the city's public works facility.  His predecessor in title had adversely possessed from the city a portion of a former city street on the southern boundary of the property, and this "strip" was fenced in along with Sable's main parcel.  The city wanted to expand the public works facility and entered into negotiations with Sable to purchase the strip, but he eventually refused to sell.  After Sable's state-court quiet title suit began gaining traction, however, the city council voted to condemn both the strip and Sable's main property.  The Tenth Circuit highlighted the council's deliberations which formed the basis for Sable's belief:

Before the vote the Council discussed its power to acquire Mr. Sable’s property even if he did not want to sell it:

VICE-MAYOR FELTON: But in any case, could we acquire [Mr. Sable’s land], though? I mean, if [Mr. Sable] didn’t want to sell it?

JOHN WILLIAMS [a private attorney apparently retained by the City]: Yes, we can.

VICE-MAYOR FELTON: Just because of where it’s sitting, and why we want it?

CITY ATTORNEY MOLER: That’s right. If it’s for a public purpose—

Id. Vol. III at 872. At that point, as we understand the transcript of the meeting, various conversations began simultaneously.  But one exchange (on which Mr. Sable relies to show Defendants’ improper motive) was recorded:

COUNCILMAN RAWLS: . . . There’s none.

VICE-MAYOR FELTON: It’s good to be King.

Slip op. at 4.  When the city instituted condemnation proceedings Sable objected, but the state courts upheld the taking as having a public purpose. Sable then filed suit in state court against the councilpersons and the city, seeking damages under 42 U.S.C. § 1983 for a retaliatory taking. The city removed the suit to federal court, which declined to grant the councilpersons absolute legislative immunity, and the appeal to the Tenth Circuit followed.   The Tenth Circuit held that decisions to condemn property are legislative judgments, and the councilmembers were thus completely immune from suit, regardless of their motivations:

The decision to expand the public-works facility was neither an administrative matter (such as the conduct of a meeting) nor an essentially ministerial task (as when applying the law and predetermined criteria to select a bid). Oklahoma law authorizes municipalities to exercise the power of eminent domain to obtain land for public works. The City's decision to take Mr. Sable's land was undoubtedly an exercise of discretion regarding a matter of public policy that would impact the functioning of public services for years to come. That the councilors may have exercised that discretion on the basis of motives that were irrelevant to public purposes does not affect the councilors' legislative immunity.

Slip op. at 12-13 (citations omitted). This case isn't all that groundbreaking on the legal issue -- legislators are generally completely personally immune from suits involving their legislative decisions -- but does give a peek behind the curtain at how and why decisions to take property are often made. The opinion ended with a recognition that while the legislators are immune, the city itself is not:

We appreciate the discomfort that may arise from the recognition of legislative immunity in this case. Mr. Sable's allegations (whose truth has not been adjudicated) create an ugly picture of the abuse of public power to achieve improper ends. Perhaps such pettiness is more likely to arise in municipal legislative bodies than in legislatures with more members and broader jurisdiction. It is also true, however, that charges of improper motive are likely easier to bring at the local-government level. And the honor and fortune that come from service in local government are slight enough that many capable candidates for municipal office would surely forgo the rewards of such service if faced with the possibility of being sued for every decision taken without public consensus. Moreover, those mistreated by municipal legislators are not without remedy. Not only are political remedies available, but a municipality, as opposed to its officials, is subject to suit under § 1983. History has shown that the greater good comes from protecting legislators from suit based on their legislative acts. This conclusion may be little solace to one who perceives himself to be the victim of abuse of power. But perhaps it emphasizes each citizen’s duty, for the public interest as well as one’s own, to seek the election of honest, capable leaders, or even run for office oneself.

Slip op. at 15. Thanks to Dean Patty Salkin's Law of the Land blog for bringing this decision to our attention.  Her summary of the case is here.

The Nerve Of Those Californians, Vindicating Federal Constitutional Rights In Texas Federal Courts!

As we noted in this post, the recent U.S. Court of Appeals for the Fifth Circuit decision in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009) is garnering a lot of commentary for the dissenting judge's opening ad hominem and the majority's terse response.  Earlier, we summarized the substantive issues in the case, which involve the Fourth Amendment's seizure requirements in a takings-esque fact pattern -- which are, ultimately, more interesting that this distraction -- but wanted to comment briefly.

The case involves a Texas property owner -- but (quelle horreur!) a resident of California -- who seeks to prevent Texas officials from enforcing a Texas statute regulating beachfront ownership because it would either take her property without just compensation, or is an unconstitutional seizure (or both).  The Fifth Circuit affirmed the dismissal of her takings claim as unripe for federal review under Williamson County, but held that her Fourth Amendment seizure claim was not subject to that case's ripeness requirement. Ultimately, the majority certified the questions of state law relevant to the seizure issue to the Texas Supreme Court. 

One of the panel's three judges dissented, however, and to say that his dissent was unusual is somewhat of an understatement, because he begins the opinion with an attack on the plaintiff and her lawyers, Pacific Legal Foundation.  [Before we go further, I must disclose that I do PLF's work in Hawaii, so I am viewing this from the perspective of one who has a (slight) stake in the issue.  Also, a disclaimer: the views expressed here are my own, not PLF's which can be found here.]

The dissent attacked on two grounds: (1) that the plaintiff and her lawyers are from California and (2) that the case is part of a "thinly veiled Libertarian crusade." Here's the full text:

Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit's published mission statement declares that its raison d'être includes "defend[ing] the fundamental human right of private property," noting that such defense is part of each generation’s obligation to guard "against government encroachment.") The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians' Cervantian tilting at Texas’s Open Beaches Act ("OBA") is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum
knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority's reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance's action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Slip op. at 22-23 (footnote omitted) (emphasis original).  Most of the criticism of the dissenting opinion has focused on its knock against the "thinly veiled Libertarian crusade" (see here, here, and here, for example), and rightly asks why a litigant's or attorney's motivations are in any way relevant to the resolution of the issues. After all, hardly a peep is heard when other public interest organizations litigate pro bono on issues of public importance, and a goodly portion of the federal courts' civil docket would disappear if "test cases" and public interest cases could somehow be dismissed simply because they were part of "a [insert your political philosophy here] crusade."  Federal courts have article III standing requirements and other prudential doctrines to avoid advisory opinions and to preserve federalism, but there's little doubt that if a federal court has subject matter jurisdiction over a controversy, it has some obligation to consider it, even if the plaintiff and her lawyers may also have some larger view of the goals of the case.

However, what makes us the most uneasy about the dissenting opinion is its openly hostile labeling of the plaintiff and her lawyers as "these Californians."  We might be tempted to characterize it as an uncontrolled outburst of local Texan pride or a display of old-school "home cooking" (e.g., "'these Californians' should know that's not how we do things here in Texas"), but it appears that Judge Weiner is from Louisiana, so that dog won't hunt ("You Californians should know that's not how we do it in the Fifth Circuit" doesn't quite pack the visceral punch of the original).

It would also be different were the residence of the plaintiff and her attorneys somehow relevant to the issue in the case -- if the case were about personal jurisdiction and minimum contacts, for example.  But the residence of the plaintiff and her lawyers, their philosophical leanings, and that they are representing her without charge, have nothing to do with the case. Thus, the "meta-message" the dissenting opinion delivers is more hostile and ominous: out-of-state troublemakers do not deserve to have standing in "our" courts.

Shades of Jim Crow sentiments have no place in a judicial opinion, and in the end, any legal or logical credibility the dissent may otherwise have possessed is lost in its gratuitous references to the state of residence of the plaintiff and her lawyers. 

The majority responded with an appropriate degree of restraint in footnote 1: 

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent "Context"), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

Slip op. at 2 n.1.  Download the opinion and the dissent here.

Hawaii's Good Friday Holiday: It's Like Thanksgiving And Christmas

If you are wondering why your calls to State and County offices go unanswered tomorrow, it is because it is Good Friday, a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. 

The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions, also known as collective bargaining.

The Establishment Clause, which has been incorporated against the states by the due process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called separation church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance.  The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to insure that public workers have more days off, not to make sure they were religious: 

[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as  in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries.
Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.

This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since  a clearly secular purpose  for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.

An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.

The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991).  The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t is of no constitutional moment that Hawaii selected a day of traditional Christian worship, rather than a neutral date, for its spring holiday once it identified the need."  The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose: 

We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering for holiday status days on which many people choose to be absent from work for religious reasons. That the state legislature was able to accomplish its secular purpose and at the same time accommodate the widespread religious practices of its citizenry is hardly a reason to invalidate the statute.

(citation omitted). One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion: 

The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii's endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone. Because I believe that such a state establishment of religion violates both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.

The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.

Zoning Permit Case Update

Here's the latest on the Kauai Springs cases. As reported in The Garden Island (Kauai's daily), the Kauai Planning Commission issued the remaining zoning permit -- "Final Kauai Springs permit approved." 

More than three years after first submitting permit applications for its Koloa bottling facility, The Kaua‘i Springs water company finally left the Planning Commission with approved permits Tuesday.

The commission, complying with a fall 2008 order from 5th Circuit Judge Kathleen Watanabe, approved a special permit four weeks after doing the same for a use permit and a Class IV zoning permit. The three documents go a long way toward lifting the cloud that had been hovering over the company as it operated on the strength of a temporary injunction since May 2007.

The final permit approval came with caveats. Conditions were attached based on representations made by the applicant in the September 2005 permit application and agreed to Tuesday by Kaua‘i Springs owner Jim Satterfield and attorney Robert Thomas, according to David Minkin, special counsel for the county in the matter.

For more information about the case, here are some links to earlier media coverage:

• "Kauai Springs wins lawsuit against Planning Commission" (The Garden Island, Aug. 20, 2008)

• A May 2006 story about the case from the Honolulu Star-Bulletin

• A story from the Kauai newspaper about the TRO that halted the County's attempt to shut the business down while the appeal was being considered.

Land Use Round-Up

Some interesting reports filtering across my screen today:

• Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, "Regulatory Takings and the Fourteenth Amendment."  On that subject, check out "No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights" by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

• The New York Post -- with its own inimitable headline -- has published an op-ed about the eminent domain controversy in NYC's Manhattanville neighborhood: "College Cheats - Columbia Blighted Own Hood." More on the issue here.

• Reasononline posts "Not One More Acre!" about the opposition by Colorado ranchers, environmentalists, and scientists to the U.S. Army's proposed expansion of a training area.  

• The Maui News reports "Council reviews housing statute" (actually, it's an ordinance, but close enough) about possible amendment to Maui County's 40-50% "workforce" housing (aka affordable housing) ordinance. That ordinance is also being challenged in federal court, and the latest decision in the lawsuit is posted and analyzed here.

Zoning And Land Use Round-Up

A collection of interesting reports on land use and zoning topics:

• Mission residents reject American Apparel (San Francisco Chronicle) - "Congratulations to the residents of Valencia Street. After a rowdy and sometimes misleading campaign, they managed to stop American Apparel - a socially conscious, popular, American-run clothing store - from moving into one of the street's vacant storefronts....It's another through-the-looking-glass moment in San Francisco. They love the product but hate the store solely because there are about 260 of them worldwide. That means it's a chain and unwelcome under any circumstances."

• Sixth Circuit Court of Appeals Finds Mayor Acted with Malice Intent and Violated Substantive Due Process (Law of the Land blog) - Evidence was sufficient to uphold a jury's verdict that a city violated substantive due process because the new mayor changed the way the city enforced the zoning code to "strict enforcement" and harassed a property owner who was denied a certificate of occupancy. Corr v. City of Ecorse, No. 07-1604 (6th Cir. Dec. 29, 2008).

• Panel to review housing ordinance (Maui News) - The latest chapter in the controversy surrounding Maui County's affordable housing exaction - is the County going to rethink the 40-50% donation requirement?  The latest decision from the federal court lawsuit mentioned in the article is posted and analyzed here.

• Oakland zoning rules a minefield for businesses (San Francisco Chronicle) - This story details how bureaucracy and the requirement for a Conditional Use Permit stifled at least one potential entrepreneur in Oakland, California.

Latest Developments In Maui Affordable Housing Exaction Case

For a while now, we've been meaning to post the latest order in the Maui affordable housing case from the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.), but for one reason or another, haven't had the chance until now. 

The case is a challenge to the County of Maui's "workforce housing" ordinance, enacted in in 2006, which imposes a 40% to 50% affordable requirement on new housing developments of five or more units, and on an application to subdivide a lot into five or more parcels. In lieu of providing actual units, a developer may either pay a fee equivalent to 30% of the total project sales, donate improved land of the same value, or donate raw land valued at 200% of the in-lieu fee. Ordinance 3418 is posted here.  I posted on the case earlier here.

The complaint asserts claims for "unconstitutional conditions," regulatory takings, substantive due process, equal protection, and claims under Hawaii law. The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here (note, the Complaint was amended on Sep. 6, 2007). The court earlier dismissed the "unconstitutional conditions" claim, holding it was a regulatory takings claim and was not ripe under Williamson County because the plaintiffs had not pursued a state compensation remedy. That order is posted here.

On November 25, 2008, the court issued an Order Denying Plaintiffs' Motion for Partial Summary Judgment; and Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment. The court held that the Williamson County ripeness rules also apply to the due process and equal protection challenges, which were not ripe because the property owner had not obtained a "final decision" from the County:

In this case, there is no dispute that Plaintiffs brought an appeal to the County Council requesting a waiver from the strictures of the Ordinance. The appeal for a waiver was denied. It is also undisputed that Plaintiffs have not  filed any formal application or submitted a development plan under the Ordinance. Thus, while Plaintiffs may have received a sufficient denial of a variance in the form of the Council’s waiver rejection, it is clear from the record that Plaintiffs have not received a final decision from the Council rejecting their development plan. Under the final decision jurisprudence, Plaintiffs' as-applied due process and equal protection claims must fail because they are unripe.

Slip op. at 14. The court noted that the Ninth Circuit applies the final decision prong of Williamson County's ripeness rule to substantive due process and equal protection challenges. Slip op. at 11 (citing Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1455-56 (9th Cir.), as amended, 830 F.2d 968 (1987), cert. denied, 484 U.S. 1043 (1988); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375, 379 (9th Cir. 1988), cert. denied, 488 U.S. 851 (1988); Herrington v. County of Sonoma, 857 F.2d 567, 569 (9th Cir. 1988)). The district court noted "the policy behind requiring a final decision before a court can adjudicate [due process and equal protection] claims is that 'it is generally impossible to determine the extent of the infringement absent a final determination by the relevant governmental body.'" Slip op. at 12 (quoting Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1404-05 (9th Cir. 1989), overruled on other grounds Armendiz v. Penman, 75 F.3d 1311, 1326 (9th Cir. 1996)).  

The final decision rule has at least some semblance of logic applied to regulatory takings, where the Supreme Court has established a rule that the value remaining after regulation is applied to property is relevant to the question of whether the property has been taken. But the Ninth Circuit's application of this requirement to due process and equal protection claims has little logical basis, and virtually no support in the constitutional text. Why should it matter that some use might be able to be made of property if the government is acting arbitrarily, without notice and opportunity to be heard, or treating one property owner differently than another? The constitution is violated when even in the course of a preliminary decision about what uses can be made of property the government acts badly, not just when (as in regulatory takings) the government does not recognize its obligation to pay just compensation. But a District Court obviously cannot overrule circuit law, even when a rule makes no sense, so the court was bound to apply the Ninth Circuit's Hoehne rule, so any challenge to the rule itself will have to wait until appeal. 

The court also held that it would not be futile for the property owner to have submitted a development plan, even though the owner claimed that doing so would be cost-prohibitive and would force it to operate at a loss.  Slip op. at 15. The Ninth Circuit's futility rule requires that in order to prove that submitting an application for development would be futile, the property owner must -- and we are not kidding here -- submit an application and see whether it gets denied. And if that application is denied, the property owner must ask for a "variance." See Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1988). Again, a District Court is in no position to overrule binding circuit precedent, no matter how silly it may be, although the court in Kamaole Pointe at least recognized the "inherent contradiction in having an exception to an application requirement require submission of applications" --

This Court recognizes the inherent contradiction in having an exception to an application requirement require submission of applications. See Zilber v. Town of Moraga, 692 F. Supp. 1195, 1199 (N.D. Cal. 1988) (criticizing the logic of Kinzli’s "meaningful application test). Kinzli and its progeny, however, indicate that the "meaningful application" requirement that triggers the futility exception is designed to provide a forum for developers who have repeatedly submitted legitimate development plans to local agencies only to have them continuously delayed or denied. Moreover, this Court is bound by Ninth Circuit authority which has, in this area of law, repeatedly reinforced the "meaningful application" test. See Zilber, 692 F. Supp. at 1200 (acknowledging that "although this Court is less than comfortable with the Kinzli rule, it is well established in this circuit and therefore binding upon the Court").

Slip op. at 17, n.1. Although it dismissed the substantive due process and equal protection claims, the court held the procedural due process claim was ripe because the plaintiff asserted that the County did not provide adequate procedures in evaluating its appeal for a waiver, and thus was not a "'challenge to the application of land use regulations' to the land." Slip op. at 21. This split-decision underscores the strange dichotomy in the federal courts between "land use" and property cases and cases which seek to vindicate other constitutional rights. See, e.g., slip op. at 18, n.2 (dismissing the substantive due process claim on ripeness grounds because it involved application of land use regulations). We thought the Crown Point case finally ditched that distinction (as we noted here), but maybe, that, like the final decision and futility rules, must wait for appeal.

Finally, the district court disposed of the state law claim the County was without power to enact the ordinance because only the State can impose an "affordable housing impact fee." "Impact fees" as defined in Haw. Rev. Stat. § 46-141 are limited to those imposed to fund public facility capital improvements required by the development. The court held that this definition does not include the in-lieu fee required under the County's ordinance because the money collected goes into the general affordable housing fund and is not earmarked for offsetting capital improvement projects attributable to the development. Slip op. at 32. This seems like circular reasoning, as noted in this post.

Trial on the remaining issue is set for December 2009.

Reply In Support Of Petition In Pratt v. Cal. Coastal Comm'n - Penn Central And Williamson County

The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition seeks review of the California Court of Appeal's opinion reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008), available here.

The issues presented in the case involve the Penn Central ad-hoc test for regulatory takings, and the "final determination" prong of the Williamson County ripeness rule. The Reply brief argues:

The Brief in Opposition is liberally salted with Respondent California Coastal Commission's assertions of what it refers to as the "facts" (e.g., pp. 5, 11) as well as disparagement of the presentation in the Petition as having "no evidence" (e.g., pp. 7, 11) behind it.

The Brief in opposition thus highlights the problem that call for the Court's review: there has been no trial to establish the facts and the courts below turned what should have been an evidentiary trial into assumptions supposedly made as a matter of law. Building on those deficiencies in the lower courts' rulings, the Commission's brief substitutes self-serving prose and misdirected invective towards Petitioner's counsel in pace of a due process proceeding in which the facts of the controversy -- not just counsel's argumentation -- are presented as proper evidence to an impartial trier of fact.

In light of the standard the Court has established for deciding regulatory taking cases (i.e., "ad hoc" factual determinations [see Pet., pp. 10-18]), an inquiry into evidence is essential. Lower courts that are hostile to private property rights fail or refuse to understand that basic notion, thus showing the need for corrective action by this Court.

As shown in the Petition, the Court's decisions hold that each regulatory taking case must be decided "ad hoc"on its own facts. (E.g., Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 [1978].) Of necessity, that can only be done after trial, with the presentation and evaluation of evidence.

Reply at 1-2.

Disclosure: we filed an amicus brief in the case for the Western Manufactured Housing Community Association, available here, which argues:

Because [the Penn Central] framework eschews any "set formula" and relies instead on "essentially ad hoc, factual inquiries," it is, by its very nature, incapable of being subject to the rigid "20 percent is enough value" per se rule established by the California court. The decision below ignored the requirement of a "weighing of all the relevant circumstances," and established a bright-line rule focused solely on economic impact: when the government’s denial of a development proposal leaves a property owner with no more than 20 percent (or as little as 1120 square feet) of her land available for development, the remaining two Penn Central factors become irrelevant. This arbitrary rule is apparently based on nothing more than caprice, since the court below offered no analysis or rationale in support. Lacking this Court’s clarification, the default regulatory takings test has become a standardless exercise in judicial intuition, hidden behind a gloss of objectivity.

The cert petition and the other amici briefs supporting it are posted here. The Reply brief is responding to arguments made the Coastal Commission in its Brief in Opposition, posted here.

California Coastal Commission's Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)

The California Coastal Commission has filed its Brief in Opposition to the cert petition in Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here).  The California Court of Appeal's opinion, reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) is available here). 

The issues presented involve the Penn Central ad-hoc test for regulatory takings, and the "final determination" prong of the Williamson County ripeness rule.

We filed an amicus brief in the case, available here. The cert petition and the other amici briefs supporting it are posted here.