November 2011

Here’s the latest from the U.S. Court of Appeals for the Federal Circuit (the court that hears appeals in most regulatory takings claims against the federal government), CCA Associaties v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).

This is an appeal of a Court of Federal Claims decision holding that two federal statutes worked a taking under the three-part Penn Central test because they abrogated the rights of the owner of a Louisiana apartment building to prepay its way out of providing low income housing. The CFC held that the programs set up under the statutes in effect forced CCA to continue to provide low income housing — a public good — and that it was a taking.

The Federal Circuit reversed:

The United States appeals from the decision of the Court of Federal Claims that the Emergency Low Income Housing Preservation Act, Pub. L. No. 100-242, §…

Continue Reading Federal Circuit: No Regulatory Taking Under Penn Central Test

Here are three more items from the Honolulu media about the case in which the Star-Advertiser is seeking the Judicial Selection Commission lists from the Governor (Star-Advertiser v. Abercrombie, No. 11-1-1871-08). Disclosure: we represent the Star-Advertiser in this case.

  • Off The Beat: Should OIP Be Patting Itself on the Back? – Honolulu Civil Beat‘s editorial tracking the arc of the case, including the drama surrounding the Office of Information Practice. After one OIP director was replaced after the office issued an opinion about the JSC list, her replacement pretty much washed the OIP’s hands of the matter saying there was nothing more

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Continue Reading More On The JSC List Case

The Hawaii Attorney General today issued a statement responding to the recently-announced changes in the Judicial Selection Commission Rules, whereby the Commission said that from here forward, it would publicly disclose the names on the list of judicial nominees at the same time it transmits those lists to the “appointing authorities” (governors and Chief Justices).

He also announced some thoughts about whether the Governor will appeal the ruling that he must disclose JSC lists. [Disclosure: we represent the Star-Advertiser in this case.].

Here’s what the AG had to say:

“We recognize the right of the Judicial Selection Commission to change its rules and decide upon its own authority whether to publicize the names on the list. But this does not change the holding in the Pray vs. Judicial Selection Commission case that provided the Governor with discretion to release the names, contrary to Judge Sakamoto’s ruling against…

Continue Reading AG’s Statement About JSC List Case And Rule Changes

We’ve been kind of busy in the last few days with a couple of appellate briefs, so haven’t had a lot of time to post up the latest cases and articles of interest. But here’s what we are reading today, in between brief writing:

  • Hawaii Supreme Court Nominees Will Be Public – Courthouse News Services writes about the case in which we represent the Star-Advertiser in its case to compel the governor to publicly disclose the lists of judicial nominees he receives from the Judicial Selection Commission. More on the case here. The Reporters Committee for Freedom of the Press also reported on the story here. 
  • Beyond “NIMBY” – a post on Legal Planet, a blog produced by enviro lawprofs, advocates that we abandon the term NIMBY. I like “I GOT MINE.”

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Continue Reading Friday Round Up

In this press release issued yesterday, the Hawaii Judicial Selection Commission  announced it has amended its rules so that from now on, the JSC “will release the names of the nominees transmitted to the Governor or Chief Justice at the time they are transmitted and will be permitted to disclose statistical and historical information that summarizes patterns and trends in judicial selection.” More from the Star-Advertiser here.

In other words, the lists (of not less than four, and not more than six) names of nominees whom the JSC deem “qualified” to fill vacancies on the Circuit Court, Intermediate Court of Appeals, and the Hawaii Supreme Court, will now be made public at the same time the list is given to the Governor.

This is a new direction, because until this change, the JSC Rules have always barred the Commission from disclosing even the names of nominees: “[s]ince the…

Continue Reading Judicial Selection Commission: Public Will Know The Names Of Judge Nominees At The Same Time The Governor Does

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up. Continue Reading Brigham-Kanner Conference: The Video

Here’s what’s going on:

  • The Honolulu Star-Advertiser‘s story on yesterday’s decision by Circuit Judge Karl Sakamoto in the Star-Advertiser’s lawsuit to compel Governor Abercrombie to cease keeping the names of judicial nominees from the public: Judge to gov: Make names public. We represent the plaintiff:

“We are extremely pleased,” said newspaper attorney Diane Hastert. “Judge Sakamoto thoroughly analyzed all of the complex issues in the case and concluded the public has the right to know the names of individuals on the Judicial Selection Commission lists.”

. . . .

Deputy Attorney General Charleen Aina defended the governor’s position that the release would be a “frustration” of the government’s interest in the appointment process.

She told Sakamoto the process includes the commission screening and recommending the names confidentially, and the disclosure by the governor would “interfere” with that process.

But attorney Robert Thomas, who also represents the newspaper…

Continue Reading Tuesday Round-Up: JSC List Case, California Eminent Domain

Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011) is not the typical case for this blog. It’s not a land use case, and involves a question of the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983.

But since section 1983 claims and defenses are something that every land use lawyer must understand, we thought we’d post it, even though it involves an employment matter.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city employee, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions.

In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of the Supreme Court…

Continue Reading Is A Private Lawyer Retained To Represent Government Entitled To Claim Qualified Immunity?

This just in: In Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), the California Supreme Court held:

Under California’s “quick-take” eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacintothe lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal’s judgment.

Slip op. at 1-2 (footnote omitted).

We’ll review the opinion and post more when we get a chance. But this looks about right.

Continue Reading Cal Supremes: Lender’s Withdrawal Of Condemnation Deposit Does Not Waive Property Owner’s Defenses