April 2014

Back in October, we had the honor of moderating a discussion about the ripeness issue in takings law at the 40th Anniversary Symposium on The Takings Issue at Touro Law School (see here and here for more). Professor Vicki Been and Pacific Legal Foundation’s J. David Breemer were the panelists, each weighing in on how Williamson County came to be, and what future the rule may have, if any. 

The Touro Law Review has now published Dave’s article, “The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement.” Here’s the summary:

This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings …

Continue Reading New Article Of Note: The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement

You know the old saw, attributed to a variety of sources including Samuel Clemens, that “whiskey is for drinking, and water is for fighting over,” but here’s a decision from a U.S. District Court, that shows that whiskey is also for fighting over. Not quite whiskey, but a fungus that is claimed to be created by a nearby distillery.

In Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS (W.D. Ky. Mar. 19, 2014), the fight was about “whiskey fungus,” which is created when ethanol is emitted from a distillery and “combines with condensation on Plaintiffs’ real and personal property to ’cause an invisible, naturally occurring fungal spore to ‘germinate’ (start growing) and become a living organism, visible to the naked human eye.'” This stuff “creates an unsightly condition requiring abnormal and costly cleaning and maintenance, early weathering of surfaces,” and is pretty much a nuisance.

More about the case…

Continue Reading It Turns Out That Whiskey (Fungus) Is Also For Fighting, After All

The Hawaii Constitution requires that a member of the state House of Representatives be a “qualified voter” of the district she or he represents. In Hussey v. Say, No. CAAP-13-0002255 (Apr. 24, 2014), the Hawaii Intermediate Court of Appeals analyzed how someone who asserts that the representative from District A is in actuality a qualified voter in District B goes about mounting a legal challenge. Is this really a challenge to the representative’s voter registration, and thus must be instituted in the county’s Board of Registration, or may the challenger institute a quo warranto lawsuit in state circuit court? The ICA settled on the latter answer, concluding that courts have jurisdiction to consider these type of claims. 

The case involved allegations that a long-time House member who represents one district and is registered to vote there was actually living in another district (where his spouse and family live and …

Continue Reading Quo Warranto Fu: Courts Have Jurisdiction To Determine Whether State Representative Is A Qualified Voter In His District

Here’s what we’re reading today:

  • “Flash Boys and the Transportation Corridor Act” – from the North Carolina Land Use Litigator blog, some thoughts about the recent NC Supreme Court decision that we described as a “muddled hash.” This is the one in which the court denied class certification to the claims of 800+ property owners whose land has been blighted by the Map Act, a statute that allows the NC DOT to prohibit the development of parcels where the DOT wants to put a future highway. In a recent story on the case by North Carolina Lawyers Weekly, we said this about the case: “‘I’ve read the decision a couple of times since it was published and it still is kind of inexplicable to me,’ he said in a phone interview.’It’s somewhat frustrating because you can’t quite figure out what the court’s analysis is and where that leaves

…
Continue Reading Thursday Round-Up: NC Beltway Blight Case, Precondemnation Entry Statute Unconstitutional, Why Buy Land You Can Get For Free?

Today is Good Friday, an official state holiday in Hawaii, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that it doesn’t really. It’s just coincidence that the “spring holiday” occurs on the same day, and it’s plausible that the State had a secular purpose when it officially sanctified “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary.” 

Or so says the Ninth Circuit.

Related articles
Orthodox Bulgarians Mark Good Friday
Good Friday marked in Holy Land

Continue Reading Don’t Forget To Celebrate The Secular Good Friday Holiday Today, By Going Shopping Or Something

As many of you may already know, we’ve been publishing this blog for quite a while. What you may not know, except anecdotally, is that several of our law firm colleagues also are active bloggers in their respective fields of interest. We’ve mentioned them a few times, but you may have missed it.

So now, thanks to Hawaii Business magazine, there’s a neat little story on what we do, “Hawaii-Focused Legal Blogs” by Jon Letman, in the April 2014 edition. And for those of you who do not subscribe, they’ve kindly posted the article online here.

In addition to our humble blog, it notes that Tred Eyerly publishes Insurancelawhawaii.com (insurance coverage issues, locally and nationally), Anna Oshiro focuses on Hawaiiconstructionlaw.com (construction litigation, arbitration, bonding, and licensing issues), while Mark M. Murakami does Hawaiioceanlaw.com (maritime, Jones Act, navigation, and other interesting topics like “do captains have a duty…

Continue Reading Hawaii-Focused Legal Blogs

Each year, the William and Mary Law School’s Property Rights Project awards the Brigham-Kanner Property Rights Prize to a deserving person “whose work affirms that property rights are fundamental to protecting and preserving individual liberty.” This list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O’Connor. 

The Project just announced that Michael Berger has been selected as the 2014 recipient of the Prize. As noted, Mike “is the first practicing lawyer to receive the prize and is widely considered to be among the best takings lawyers in the nation.” The Prize will be presented at the 11th Annual Brigham-Kanner Property Rights Conference, on October 30-31, 2014 at the Law School in Williamsburg, Virginia. 

Here’s the full story:

Berger to Receive 2014 Brigham-Kanner Property Rights Prize

…
Continue Reading Mike Berger To Receive 2014 Brigham-Kanner Property Rights Prize From William & Mary Law School

The North Carolina Supreme Court has issued its opinion in Beroth Oil Co. v. North Carolina Dep’t of Transportation, No. 390PA11-2 (Apr. 11, 2014). That’s the case which we’ve been following about the class-action worthiness of of a case in which the N.C. DOT effectively blighted a huge swath of land by identifying it as a future highway, and then doing mostly nothing to acquire it, even though by virtue of a parcel’s identification on the map, the owner was prevented from obtaining building permits, or undertaking other development of the land.

The Supreme Court briefs are posted here, and we also recently posted NCDOT’s summary of the effect of a “protected corridor,” which is the DOT’s way under North Carolina’s Map Act of keeping property that it wants for future highways from being developed in the interim (we thought it should be called a “taking”). More background on the case here…

Continue Reading N.C.: “Map Act” Inverse Cases Must Be Prosecuted Individually, Not As A Class

Here’s the latest from the Federal Circuit, a decision involving regulatory takings, the big auto bailout, and the nature of property rights. A&D Auto Sales, Inc. v. United States, Nos. 13-5019, 13-1520 (Apr. 7, 2014)

In the TARP and the related bankruptcy cases, the federal government bailed out the two big American auto manufacturers, General Motors and Chrysler. Part of the $55 billion assistance deal required GM and Chrysler to terminate the franchises of many dealerships. Not surprisingly, those dealerships didn’t care for the idea that their businesses were not “too big to fail,” and objected in the Court of Federal Claims to the idea that they should be sacrificed to the greater good with a takings claim against the federal government. 

Although the automakers were already reducing their dealer ranks over time and GM’s initial viability plan had included additional dealer terminations, the government determined that…

Continue Reading Fed Cir: Big Auto Bailout Could Be A Taking