June 2016

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In today’s per curiam opinion in Wiesenberg v. University of Hawaii, No. SCWC-15-0000711 (June 30, 2016), the Hawaii Supreme Court clarified a point of appellate procedure that has been unnecessarily vague — and therefore dangerous — for a while: whether a trial court’s entry of an amended judgment, entered after the filing of a post-judgment order, resets the time for an appellant to file her notice of appeal. The Supreme Court was reviewing an order by the Intermediate Court of Appeals dismissing an appeal for lack of jurisdiction because the appellant missed the filing deadline.

If, like us, you rejoice in these type of issues, read on. 

Like we’ve said before, jurisdictional deadlines like notices of appeal are the kind of things that keep we lawyers awake at night. In the past, appellate filing deadlines caused you at times to have to sprint down to the Appellate Clerk’s office…

Continue Reading HAWSCT Clarifies When An Amended Trial Court Judgment Restarts The Appeal Window

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With apologies to Professor Kanner (who regularly features a “Lowball Watch” on his blog), we offer this report of Down v. Ministry of Transportation, No. LC140038 (May 12, 2016), a trial-level property owner victory by our Toronto colleague Shane Rayman (last seen in the pages of this blog winning a great case in the Supreme Court of Canada). We’ve been meaning to post the decision for a while, but got caught up in other things. We probably should have waited at least another couple of days for Canada Day, but oh well.

But before we get into today’s case, we want to digress a bit with this bit of Canadiana. Or at least our one story about that True North strong and free, that played into every one of our preconceptions.

Many years ago, while living in New York City, we got the bright idea one dark…

Continue Reading Lowball Watch: That’s A Lot Of Bucks, Even If They’re Canadian Dollars

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Here’s one we’ve been waiting for, but had been hoping for a better result.

In Resource Investments, Inc. v. United States, No. 15-802 (cert. petition filed Dec. 16, 2015), the U.S. Supreme Court was being asked to consider the issue it left open after United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), whether takings claims must be excepted from the rule in Tohono that the Court of Federal Claims is deprived of jurisdiction in any case which is based on the same operative facts “pending in any other court any suit or process.”

Tohono was not a takings case, but rather a non-takings claim for damages. The Supreme Court upheld the dismissal of the claim by the CFC on jurisdictional grounds, because the at the time the Nation filed its CFC complaint against the United States for money damages, the District Court was considering the Nation’s…

Continue Reading SCOTUS Denies Cert In Last Hanging Takings Case – Tohono’s Jurisdictional Ambush Remains Lurking

Here’s the latest in a case we’ve been following, and that could be hugely important. This is a case about federal court jurisdiction and takings claims against the federal government.

We reported on the of Brott v. United States when it commenced: it’s a rails-to-trails takings case, so it would be understandable if you thought this was going to be another one of those dry posts about Court of Federal Claims and Federal Circuit jurisdiction. But it isn’t.

Because, you see, our colleague Thor Hearne and his team brought the case in the United States District Court for the Western District of Michigan, where the property is located. But wait, you say, they can’t do that, because they are seeking more than $10,000 in just compensation, and that means the CFC, an Article I court, has exclusive jurisdiction over the complaint.

Or does it? Not according to this brief, …

Continue Reading “Juridical Garlic,” The Takings Clause, And Magna Carta: Sixth Circuit To Consider Jury Right And Article III Courts For Federal Reg Takings Claims

Free CLE credit, and a free lunch — who can top that?

Join two experts, U. Hawaii Law School Dean Avi Soifer, and Professor John Eastman (Chapman Law, and former clerk to Justice Clarence Thomas), in downtown Honolulu, tomorrow, Tuesday, June 28, 2016, for “United States Supreme Court Review – October 2015 Term.”

Among the topics they will be discussing are the big immigration, union dues, affirmative action, and Clean Water Act cases decided by the Court. 

Details:

Date: Tuesday, June 28, 2016
Time: 11:30 a.m.
Location: the offices of Carlsmith Ball, 1001 Bishop Street
RSVP: fedsochawaii@gmail.com

And did we mention a free credit of CLE (and lunch)? 

Hawaii Lawyers’ Chapter, Federalist Society: U.S. Supreme Court Review October 2015 Term (June 28, 2016) 

Continue Reading Tomorrow, June 28, 2016, Downtown Honolulu: U.S. Supreme Court Term In Review

The power company needed an easement across Hylton’s land for a transmission line. It made him an offer, backed by an appraisal. But that appraisal didn’t account for Hylton’s mineral rights, although it acknowledged that the property did contain two coal deposits, at least according to Hylton.

The parties “signed an agreement granting [the utility] the right to enter Hylton’s property and construct the transmission line.” But the following month, the utility filed an eminent domain action to condemn the easement, which alleged that it had fulfilled its “statutory obligation” and made a “bona fide offer to purchase,” one of the prerequisites to its filing of the condemnation action.  

Not quite, countered Hylton. The offer wasn’t sufficient — those coal deposits were rendered worthless as a result of the taking — so the offer which was based on an appraisal which didn’t account for the mineral rights wasn’t “bona…

Continue Reading Virginia: An Unacceptably Low Offer Of Compensation Is Still A “Bona Fide” Offer

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As we noted last week, the expanding costs of the Honolulu Rail project has forced Honolulu’s mayor to ask whether construction should be delayed or stopped entirely, short of its planned terminus at Ala Moana shopping center. “Middle Street” became the new rail watchword, even though stopping it there would omit — temporarily or permanently — the most densely populated, and therefore the most useful, portion of the route. 

Middle Street is somewhat of a nondescript, dare we say it, “blah” street; more of a demarcation between the airport area and the more industrialized Dillingham corridor. A place you generally go by on your way elsewhere, not consider a destination. Frankly, it doesn’t have much of a reputation for anything exciting. In our minds, it is most notable as the border between “town” and “country,” at least psychically. 

  • Civil Beat‘s Chad Blair, however, sees it differently. In a tongue-in-cheek

…
Continue Reading Rail: Building To The Nowhere Of Middle?

A land use diversion, to take you into the weekend. As land users know, the vested rights and zoning estoppel doctrines are all about timing. When did the government gave the green light” (however that is defined in your jurisdiction), what did the property owner do after that, and when did the government decide “hey, wait a minute, we’ve changed our mind” about that earlier green light? For more, see this law review article we co-authored a few years ago that highlights these dynamics. Even the title reflects that it is all about timing: “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii.”

As we wrote, “These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would unconstitutional or unfair to prevent it from completion.” 

Well, here’s an opinion from …

Continue Reading Cal App: Vested Rights Are All About Timing

There’s a lot of procedural history to digest in the Michigan Court of Appeals’ opinion in AFT Michigan v. Michigan, No. 303702 (June 7, 2016), because it is merely the latest in a long string of opinions from that court, and the Michigan Supreme Court, interspersed with the Michigan legislature’s attempts to react. The opinion lays it all out, and we won’t repeat it here.

The short story is that the legislature adopted a statute which required public school employees to contribute 3% of their salaries to the retirement and health care system. Adding insult to injury, the withholding was labeled as an employer contribution.

The employees sued, alleging a taking among other claims. The court of appeals agreed it was a taking, but while the case languished in the Michigan Supreme Court awaiting discretionary review, the legislature revised the offending parts of the statute. In a different case…

Continue Reading Mich App: Forced Employee Contributions To Retirement Fund – Still A Taking

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It’s a good day. You win your takings case in the Texas Supreme Court. True, it’s a narrow 5-4 victory, and it merely reverses summary judgment against you, which means only that you live to fight another day. But a win is a win, we always say. The decision is based on the Texas Constitution, which also means that your win is insulated from U.S. Supreme Court review. 

So it’s game over, right? 

Not so fast. Under Texas appellate procedure, a win in that court isn’t necessarily the end of the process. You need to get by a motion for rehearing as well. In our (non-Texas) experience, these things are usually exercises in futility for the moving party, at least if the goal is to get the court to change its mind on the critical issue decided. Yes, we’ve seen recon and rehearing motions granted from time to time, but only…

Continue Reading Texas Turnabout: Gov’t Development Approvals Without Flood Control Plan Isn’t A Taking