August 2010

Happy Birthday to us: we uploaded our first posts on this blog four years ago this day. In lawblog years, that’s quite a while.

If you can’t already tell by the over 1,100 posts during this time, we enjoy doing this. Even even though it’s a lot of work, it’s rewarding. Mostly because of the readers, subscribers, and contributors whom this blog has allowed us to meet and get to know over the years.

Finally, we wouldn’t be much without our fellow-travelers — those other law bloggers who, like us, make the time to share thoughts about the legal issues of the day. Here’s a partial list:

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Continue Reading Entering Our Fifth Year

We like creative lawyering. We really, really do. After all, we like to think of ourselves as creative lawyers. But sometimes, you wish your colleagues would keep their ardor for seeing a “taking” in every situation in check, because by raising — and losing, badly — these marginal claims, they lessen tolerance for more serious takings challenges, and make proving substantial claims more difficult.

So appears to us the case of Bala v. North Dakota, No. 20090312 (Aug. 23, 2010), in which the North Dakota Supreme Court affirmed the dismissal for failure to state a claim of a number of takings challenges to the state and federal governments’ enforcement actions against a horse racing enterprise that — oops! — missed about 10 million in excise tax payments. Here’s the fact summary from the opinion:

In 2003, state and federal authorities began investigating RSI’s account wagering activities. The State, through…

Continue Reading North Dakota SCT: Gov’t Seizure A Function Of Police And Tax Power, Not Eminent Domain

Barista’s note: This post, like our earlier post on Justice Recktenwald’s Supreme Court opinions, is by our Damon Key colleague Rebecca A. Copeland. For those of you who have been following the process, Rebecca is familiar: she was present at the Judiciary Committee hearings when we live-blogged the Katherine Leonard confirmation. Her last post prior to joining Damon Key was as a Deputy Solicitor General for the State of Hawaii, where she argued important appeals for the State. If you are on Twitter, follow her at @rcopelandhi.

Reminder: we will be live blogging the Senate Judiciary hearings on Justice Recktenwald’s appointment starting at 9:50 a.m. on Wednesday, August 25, 2010.

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In the second edition of opinions by Hawaii Supreme Court Chief Justice appointee Mark E. Recktenwald (currently serving as an Associate Justice on the court), we review the opinions he authored during his tenure on the…

Continue Reading CJ-Appointee Recktenwald’s ICA Opinions

We all live under the threat the government may exercise eminent domain and take our property, and must live with that cloud, unless the threat becomes more concrete. Only then can we run to court to complain about it. While the U.S. Court of Appeals for the Seventh Circuit didn’t expressly hold so, that idea underlay its decision in Rock Energy Cooperative v. Village of Rockton, No. 10-1106 (Aug. 10, 2010) (sounds like something out of “The Flintstones,” no?).

In that case, Rock Energy sought a declaratory judgment from the federal district court that the Village does not have the authority to purchase or condemn its property. We leave the details for you to review, but here is the most interesting part of the decision in our view:

We begin with Rock Energy’s eminent-domain theory. The company would like us to believe that its Alliant assets are…

Continue Reading Seventh Circuit: Threat Of Eminent Domain No “Sword Of Damocles,” So Declaratory Judgment Suit Premature

On Wednesday, August 25, 2010, we live-blogged the Hawaii Senate Judiciary and Government Operations hearing on the appointment of Associate Justice Mark Recktenwald as the next Chief Justice of the Hawaii Supreme Court.

The hearing on the ultimately-failed appointment of ICA Judge Leonard for the CJ post lasted the better part of the day, but the scenario did not repeat, as there was but a single testifier opposed to Justice Recktenwald as Chief Justice.

Joining us on the blog were Jesse Souki (Hawaii Land Use Law and Policy blog), and my Damon Key colleagues Mark M. Murakami (hawaiioceanlaw.com), and Rebecca A. Copeland.

Our resource page on the appointment of Justice Recktenwald is here (Haw CJ ver. 2.0).

Continue Reading 8/25/2010: Live Blog Of Justice Recktenwald Senate Hearing

Courts have equitable powers to fashion remedies that the law may not account for, but does a state’s judicial power stretch so far as to allow it to order a property owner to sell an acre of property (at fair market value) to a neighbor who had built an encroaching structure over the property line due to the erroneous words of a surveyor, even though the neighbor could not prove adverse possession or any other theory that would entitle its building to continue to encroach?

In Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), a deeply divided (5-4) Washington Supreme Court held that even though the encroaching property owner was not entitled to adversely possess the property, the court would order an appraisal of the property, and force the owner to sell it. Our thanks to the Supreme Court of Washington Blog and to our colleagues at the Eminent…

Continue Reading Why Isn’t This A “Judicial Taking?” Washington Supreme Court Orders Property Owner To Sell To Neighbor

It’s always a pleasure when a gifted colleague is recognized, perhaps more so when they are called to public service. Comes word that Cincinnati attorney Matt Fellerhoff has been appointed by Ohio governor Strickland to the state trial bench. Congratulations, Matt!

While we lament his loss to the private bar (Matt has an enviable record in defending property owners in eminent domain cases), we know that the citizens of Ohio are gaining a judge who will render justice impartially and with a strong dose of common sense. We last worked with Matt presenting a session at February’s ALI-ABA eminent domain conference, “Winning Arguments in Challenging the Right toTake and Public Use.” We’re going to miss you, but wish you well on your new venture (and in the upcoming retention election)!Continue Reading Matt Fellerhoff Appointed To The Ohio Bench

The Hawaii Supreme Court in an opinion authored by Chief Justice Moon and joined by Justices Nakayama and Duffy (Justices Acoba and Recktenwald concurred separately), held that an administrative appeal regarding the disinterment of Native Hawaiian burial remains discovered at the Ward Village shops site in Honolulu was moot, but that the “public interest” exception to the mootness doctrine required the case be heard:

On application, Kaleikini essentially argues that the ICA erred in dismissing her appeal as moot. As discussed more fully infra, we agree with the ICA that Kaleikini’s  direct appeal was moot; however, unlike the ICA, we hold that Kaleikini’s appeal falls within the public interest exception to the mootness doctrine. Additionally, in addressing the merits of Kaleikini’s appeal, we hold that the circuit court erred in dismissing Kaleikini’s agency appeal for a lack of subject matter jurisdiction because Kaleikini met the requirements of HRS §…

Continue Reading HAWSCT: Native Hawaiian Burials (Iwi) Case Moot, But Exception Applies

Yes, the government took your property. But it wasn’t an exercise of its eminent domain authority. When you don’t pay your tax bills, the government can foreclose on your property, and sell it. Which it did. Inverse condemnation complaint dismissed.

Epice Corp. v. Land Reutilization Auth. of the City of St. Louis, No. 4:07CV00206 (E.D. Mo., Aug. 17, 2010) (“The Court agrees with these courts in finding that the foreclosure of a tax lien
involves the taxing power, not the eminent domain of the government.”). Continue Reading Missouri Federal Court: No Compensation Owed When Property Is Taken By The Tax Power

The “reporter-hosts” at Honolulu Civil Beat are doing a very valuable public service by putting on an event this Thursday focusing on the Hawaii State Bar Association’s role in judicial nominations. Featured speakers are Hugh Jones (current HSBA president), and Michael Lilly (former State Attorney General). It’s open to the public.

The recent unqualified rating for Supreme Court Chief Justice nomineeKatherine Leonard placed the Hawaii State Bar Association’s review processunder intense scrutiny. In Hawaii Bar Association’s Secrecy Under Fire,Civil Beat Land Reporter-Host Michael Levine asked questions about thereview process itself. “Why so last-minute? Why no results? And why norationale?”

We will be hosting our next Beatup to discuss the role of the barassociation in the judicial nomination process. Key thought leaders on thetopic will speak about what was learned from the Leonard nomination and how thebar association might consider changing its approach. As always, the audiencewill be active participants…

Continue Reading Civil Beat Public Forum (aka “Beatup”) On HSBA’s Role In Judicial Nominations