August 2007

Hawaii Supreme Court Justice Acoba, joined by Justice Duffy, filed an extensive dissenting opinion in yesterday’s decision in County of Kauai ex rel. Nakazawa v. Baptiste (or, as it should now be called Kauai County Council v. County of Kauai), on the issue of standing that’s worth reading:

DISSENTING OPINION BY ACOBA, J.,
WITH WHOM DUFFY, J., JOINS

With all due respect, our role is to protect the judicial process, not to subvert it.

In sua sponte deleting Defendant-Appellee Kauai County Council (County Council) as a defendant in this case and adding it back as the putative plaintiff in order to create a supposed controversy between the County Council and Defendant-Appellee Mayor of Kauai (Mayor) and Defendant-Appellee Finance Director of Kauai (Finance Director), the majority does exactly that, manipulating the lawsuit so as to create a controversy that did not in fact exist when the suit was filed, when…

Continue Reading ▪ HAWSCT: Dissenting Opinion in Kauai Property Tax Appeal

The Hawaii Supreme Court has issued its opinion in the Kauai property tax case, County of Kauai v. Baptiste (No. 27351, Aug. 6, 2007).  A collection of posts on the case here.  [Note: I represent the Appellants.]

Bottom line: judgment affirmed in all significant respects.  First: government officials possess the power to manufacture and funda lawsuit against themselves.  Second: the Ohana Kauai property tax measure (a voter-enacted amendment to the county charter) violated the Hawaii Constitution, because it grants the power to set property tax policy only to county “governments.” 

The score: 3-2.  Majority opinion by Moon, C.J., joined by Justices Levinson and Nakayama.

Justice Acoba authored the dissenting opinion, which was joined by Justice Duffy.  Continue Reading ▪ HAWSCT: Decision in Kauai Property Tax Appeal

The Ninth Circuit has issued a new opinion in Northern California River Watch v. City of Healdsburg (No. 04-15442, Aug. 6, 2007). 

The case involves the post-Rapanos standard for how “navigable waters of the United States” is defined in the Clean Water Act, and what wetlands are covered under the Act’s jurisdiction.  The court summarized its decision, holding that the controlling test from the Rapanos plurality (4-4-1) decision is Justice Kennedy’s “significant nexus” test:

Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River. 

The issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that  discharges into the Pond are discharges into the…

Continue Reading ▪ Clean Water Act Post-Rapanos — Ninth Circuit’s New Opinion in Northern Cal. River Watch v. City of Healdsburg

A New York federal court has ruled in favor of a property owner thata municipality wrongfully exercised eminent domain and denied thelandowner procedural due process by not providing proper notice of hisright to contest the taking.  Brody v. Village of Port Chester, No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007).

Under the eminent domain law of New York state, a property owner has thirty days from a condemnor’s determination and findings that a taking of property is for public use to challenge that determination in court.  The Village decided to take Brody’s property for redevelopment, and its decision was reported in the local newspapers.  The papers also published a summary of the Village’s reasons for taking Brody’s property.

Brody, however, did not receive any individualized notice that his property was slated for condemnation.  Nor did he receive notice that he had thirty days to contest the public use…

Continue Reading ▪ Eminent Domain Due Process Notice