February 2007

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:

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

    
Continue Reading ▪ Oral Arguments in Kauai Property Tax Appeal (mp3)

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.
    
Continue Reading ▪ Correcting Misperceptions of Prop 13

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 HawaiiHous. 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…

Continue Reading ▪ Careers in Property Law

After a jury found that an Oregon state agency violated the plaintiff’scontitutional rights when it laid her off, it required Oregon to pay her compensatoryand punitive damages.  After the judgment, Oregon got 40% back.  The Oregon “split recovery” statute provides that for certain punitivedamage 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. 

    
Continue Reading ▪ Ninth Circuit: No Fifth Amendment “Property” in Punitive Damage Award

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…

Continue Reading ▪ Property Owner Brief in Land Use Extortion Case

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…

Continue Reading ▪ Echoes in Kauai Tax Appeal

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.

   Continue Reading ▪ More on Supreme Court Property Tax Arguments