November 2011

U. Hawaii Law School alums – comes this devastating news from Dean Avi Soifer:

Dear Members of the William S. Richardson School of Law Community;

I have the awful task of informing you that Professor Jon Van Dyke passed away earlier today while at a conference in Australia.

I am personally so very sorry to have to give you this news.

Jon was admired, loved, and vitally important throughout a remarkable number of different circles of people stretching far beyond our Law School, but we were particularly and truly blessed to have the direct benefit of his many years of inspirational teaching and scholarship, remarkable public service, and deep and abiding friendship.

There is and will be no other like him.

Jon apparently died in his sleep and we are awaiting further details about memorial arrangements.

Tomorrow we will gather for an All School Memorial during what would have been…

Continue Reading Jon Van Dyke, Teacher

The EPA has filed its merits brief in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the agency’s assertion via a “compliance order” that a portion of their land are “wetlands” and that they violated the Clean Water Act.

The EPA’s brief asserts that the compliance order the Sacketts received, although it stated “EPA’s finding that petitioners had violated [the CWA] by discharging fill material into regulated wetlands without a permit,” Br. at 6, was merely an invitation to contact the EPA and work things out with the agency. According to the brief, the compliance order was only EPA’s “view” that the Sacketts had violated the CWA, and served only to inform them that “unless they took specified measures to achieve prospective compliance with the Act, the agency might seek penalties and/or injunctive relief through a judicial enforcement action.”…

Continue Reading EPA Brief In Clean Water Act Case: Compliance Order Provides “Regulatory Guidance” And Is Not An Enforcement Order

Object on other grounds: the brief is filed too late, it raises waived issues, the brief does not conform to the rules, the cover sheet is the wrong color. Whatever.

But please, do not object on the basis that “amicus curiae” means “friend of the court,” and the filer is really a friend of the other party.

Especially when amicus practice is well-accepted. They even write law review articles about it.

And if you still are intent on objecting on that basis, please don’t cite a 1903 case as your sole support. You’ll just look desperate.

Objection to Motion for Leave to File Amicus Curiae Brief, Corboy v Louie, No. 11-336 Continue Reading Appellate Practice Tip: Do Not Object To An Amicus Brief Because It Is Filed By A Friend Of A Party, Not A Friend Of The Court

Update: The Court has invited the Solicitor General to provide the views of the federal government, so we’re still on hold.

At its December 9, 2011 conference, the U.S. Supreme Court will consider whether to review Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011). That’s the case seeking review of the Hawaii Supreme Court’s opinion which concluded that challengers to the property tax exemptions conferred on lessees of Hawaiian Homesteads lacked standing to bring suit.

Some background. Only “native Hawaiians” are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the property tax exemptions. The Hawaii court dismissed the case for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians).

The challengers filed a cert petition…

Continue Reading Final Briefs In Hawaii SCOTUS Case: Is The Hawaiian Homes Property Tax Exemption Racial Discrimination?

The Star-Advertiser reports this breaking story — Governor makes names of court nominees public:

Following a court order prompted by a Honolulu Star-Advertiser lawsuit, Gov. Neil Abercrombie released the names of nominees to the Hawaii Supreme Court and two Circuit Court judgeships.

Attorney General David Louie said the governor still disagrees with the court decision.

However, the Judicial Selection Commission, which screens and forwards the names of judicial nominees to the governor, decided last week to release the list of candidates when it submits the list to the governor.

“In light of the changed circumstances with the Commission’s actions, judicial applicants will no longer have any expectation of confidentiality,”  Louis [sic] said.

Here is the AG’s News Release. We represent the Star-Advertiser in the case. Here are the documents from that case.

Update: noting that “Abercrombie still disagrees with a ruling but effectively waives the state’s appeal rights,” the…

Continue Reading Hawaii Governor Releases List Of Judicial Nominees

Last week, we filed the ABA’s amicus brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts. Our brief for the ABA supports the lawyer-petitioner, arguing that he should be able to claim those immunities.

Here are the other top-side amicus briefs supporting the petitioner:

…
Continue Reading More Amicus Briefs In Filarsky: A Private Lawyer Retained To Represent Government Is Entitled To Claim Qualified Immunity

Although the focus of this blog is land use and related topics, our practice involves more than that — we also take appeals in other areas of law presenting unsettled or untested questions. Here’s the latest example, a case that asks what standards govern the Family Court’s evaluation of an application for a civil TRO in light of a parent’s fundamental right to discipline his or her children (which includes the right to use reasonable corporal punishment).

In Hamilton v. Lethem, No. 27580 (Haw. Ct. App. June 30, 3011), the Hawaii Intermediate Court of Appeals concluded that the TRO process did not violate a parent’s rights, and affirmed the Family Court’s issuance of a restraining order. Earlier this week, the Hawaii Supreme Court agreed to review these Questions Presented:

    1.    When determining whether to issue a TRO, does the parental right to discipline children require the application of…

Continue Reading HAWSCT New Cert Grant: Evaluating Parental Discipline In Civil TRO Cases

This is a post for those who decided they wanted to visit a law blog today instead of (a) filling their bellies with the usual Thanksgiving fare; (b) watching football on TV; (c) gearing up for the insanity of the day-after shopping; or (d) pretty much anything else.

Seriously, what are you doing reading a law blog this day?

Anyhow, here’s the deal if you are: On Thursday, December 1, 2011 at 1:00pm-2:30pm EST (10:00am-11:30am PST, 8:00am – 9:30am HST) we’ll be presenting the on-line webinar “Eminent Domain: Redevelopment Challenges for Local Governnment – Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use“ (click the link for more information), and if you’d like to join us with the $250 registration fee waived (yes: free, gratis, no charge, free-ninety-free), and you are one of the first three people…

Continue Reading T-Day Door Prize. Second Prize Is A Set Of Steak Knives.

As reported yesterday by the NY Times :

Maurice R. Greenberg, the former chief executive of the American International Group, sued the United States Treasury and the Federal Reserve Bank of New York on Monday, contending that their takeover of the insurer in the fall of 2008 was improper and that the Fed breached its duty to A.I.G. shareholders when it unwound the company’s disastrous bets on mortgage securities.

. . . .

“What these lawsuits say is that in our country, not even the government is above the law,” said David Boies, the lawyer at Boies, Schiller & Flexner, who represents Mr. Greenberg and Starr. “When the government takes action, although it has enormous power, there are legal limits to what they can do. One of those limits is that they cannot take private property even for a good purpose if they do it in violation of…

Continue Reading Legal Superstar Files New CFC Just Compensation Complaint For Federal Taking Of AIG

Today on behalf of the American Bar Association, we filed this amicus brief in Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011).

The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It’s not a land use case, but since every land use and takings lawyer must know the contours of section 1983 law, we thought we’d follow along. Of course, the issue is also of great interest to the ABA’s State & Local Government Law Section (I chair the Section’s Condemnation Law Practice Area, and run the CLE programs for the Section), so when ABA asked if we and our SLG colleagues would do a brief, we naturally agreed.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion …

Continue Reading New SCOTUS Brief: A Private Lawyer Retained To Represent Government Is Entitled To Claim Qualified Immunity