2007

Since 1998, the Hawaii Supreme Court Law Library has been very good about posting the opinions and orders of the Hawaii appellate courts (Supreme Court and Intermediate Court of Appeals) on line, usually within hours of their filing with the Clerk’s office.  The site is an invaluable public resource. 

However, unless you visit the site constantly, there is no way to keep up with what is posted: there is no official RSS feed, or any way to subscribe so that you are notified when opinions are published.  To try and fill that void, we’ve created a new blog, “Hawaii Appellate Opinions.” 

Nothing fancy, just an unofficial list — without commentary — of the opinions, copied from the law library’s site, along with a RSS feed where you can subscribe to receive notification when new opinions are published.  We’ll make every effort to keep current and update the feed…

Continue Reading ▪ Hawaii Appellate Court Opinions RSS Feed

Out of the most insignificant situations can come the most significant legal decisions. 

It is being reported that the government has asked SCOTUS to review the Sixth Circuit decision in Pagan v. Fruchey,No. 04-4414 (6th Cir. June 29, 2007), which held that the First Amendment prohibitsthe government from outlawing a “for sale” sign on cars parked on apublic street:

The issue started in July 2003 when Pagan put a “for sale” sign inthe window of his car on East Sharon Avenue, only to be threatened witha $250 fine or jail time by Glendale police, which was under GlendalePolice Chief Matthew Fruchey’s leadership at the time.

Theappeals court ruled 8-7 in June that evidence submitted by Glendale ata district court hearing last year was not sufficient, and thusrejected the village’s ordinance that prohibits “for sale” signs invehicles parked on public streets.

Village officials told Paganthe sign was commercial speech, which…

Continue Reading ▪ Cert. Petition Filed in “For Sale” Sign on Cars on Public Property Case

The US Supreme Court has denied review to MiPro Homes, L.L.C. v. Mount Laurel Township (No. 06-1345) (docket listing here).  The question the Court was asked to review was:

Whetherthe Takings Clause of the Fifth Amendment to the Constitution prohibitsa municipality from taking private property for “public use” when themunicipality’s public use determination is ad hoc, pretextual, and notpart of a comprehensive planning process.

A summary of the case, including the petition and the decisions of the New Jersey courts is posted here.

Also denied was McNamara v. City of Rittman (No. 06-1481) (docket listing here), a petition asking the court to reconsider the ruling in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), which requires a property owner to utilize available state compensation remedies prior to suing in federal court for a regulatory taking or inverse condemnation.  The Sixth Circuit’s decision Continue Reading ▪ Post-Kelo Cert. Petition (MiPro) Denied

When does a person or organization have enough legal interest in an issue such that it can be a plaintiff in lawsuit?  Are there any systematic checks in place to keep the courts from being co-opted for political ends?  These were key issues raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).  This post looks at the procedural issue of “standing,” an issue that took up a majority of the court’s 104-page opinion. 

An earlier post focuses on the substantive issue of whether the State DOT erred when it determined that improvements to Maui’sKahului Harbor necessary to the Superferry’s Maui operation were within the categorical administrative exemptions tothe Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343,and therefore no Environmental Assessment was necessary.Continue Reading ▪ Superferry EIS Case Summary pt. II: Throwing Open The Barn Door After the Horses Have Been Let Out

The Maui Vacation Rental Association has sued the County of Maui, the county Planning Director, and the Department of Planning in federal court in Honolulu for constitutional and other violations, seeking declaratory and injunctive relief.  The complaint summarizes the claims:

This is an action for injunctive and declaratory relief against defendants, and each of them, for their conduct in dealing with the owners of property being used as Transient Vacation Rentals in the County of Maui. Plaintiff alleges procedural and substantive due process and equal protection violations, equitable estoppel, breach of express and implied contract. Plaintiff also alleges municipal liability for failure to adequately train and supervise entity employees, and for the maintenance of illegal customs and policies, both of which cause and allow constitutional violations of procedural due process, substantive due process, equal protection, and deprivation of honest government services, in violation of the Fourth, Fifth and Fourteenth Amendments…

Continue Reading ▪ Maui Sued in Federal Court for Vacation Rental Policies

You can read the court’s Findings of Fact, Conclusions of Law, and Order here.

I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

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Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia’s lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County’s power to take the property

…
Continue Reading ▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party

New Jersey Eminent Domain Blog posts “Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation” about last Term’s US Supreme Court decision in Wilkie v. Robbins:

But what makes Wilkie particularly troubling is the clearpattern of harassment against Robbins by the BLM over the course offive years. While the alleged violations by BLM employees againstRobbins have administrative and state court remedies, the problemremains that these could only be pursued piecemeal, at the greatexpense of time and money by the property owner.

. . .

The question remains: Where does an aggrieved citizen like Robbins seekredress? Administrative and state judicial actions for individualincidents are a far from satisfactory remedy. However, this isprecisely what the Court suggested, and it is consistent with theCourt’s decision in San Remo Hotel L.B. v. City and County of San Francisco,125 S.Ct. 2491 (2005). The message is clear: A property owner must seekrelief…

Continue Reading ▪ More on Wilkie v. Robbins – Where to go When Government Goes Wild

The “Daily Dish” blog at the Honolulu Advertiser poses an intriguing question: “Should anyone own the beach?”  The issue, however, isn’t about beach ownership, but rather restriction of access to publicly-owned beaches via private roads:

This past August a group of homeowners in Kailua installed a 6-foottall gate — with a combination lock! — at the end of their private roadto stop people from using the right-of-way to the beach.

Naturally,this has infuriated a collection of Kailua residents, surfers andbeachgoers who are fed up with wealthy homeowners restricting access toa beach everyone should be able to enjoy.

The comments posted are worth reading, if only to get a feel for how the issue — and the law — is perceived — and often mistakenly applied.  Many beachfront property owners are not (contrary to common perception) “wealthy homeowners” intent on claiming public beaches as their own.  Many are…

Continue Reading ▪ Beach “Ownership” and Access Over Private Property

Thanks to Professor Gideon Kanner at Gideon’s Trumpet for pointing out a recent important eminent domain case from the Court of Appeals of Washington (state), HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007).  The court summarized the case:

The power of eminent domain is an inherent power of the state and redelegations of that power to private parties are invalid.  Here, the Seattle Monorail Project agreed to assign its rights in an uncompleted condemnation proceeding to a private party.  Because the Seattle Monorail Project did not have the power to make such an assignment, and because the Seattle Monorail Project’s actions evidenced its intent to abandon the condemnation proceedings, we affirm the trial court on this issue.

Opinion posted here, Professor Kanner’s thoughts here.Continue Reading ▪ Eminent Domain Power Can’t Be Delegated to Private Party

What purpose is served by the Legislature providing for an environmental assessment “exemption” if there are always exceptions to the exemption? 

That is the question raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).

This post looks at the substantive issue in the case — whether DOT erred when it determined that improvements to Maui’s Kahului Harbor were within the categorical administrative exemptions to the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, and therefore no Environmental Assessment was necessary. The Hawaii Supreme Court held DOT was wrong, and the improvements were not exempt.  The issue of “standing” took up a majority of the court’s opinion, and I deal with that issue in this post.

I won’t go into a blow-by-blow outline of the court’s reasoning, which…

Continue Reading ▪ Superferry EIS Case Summary pt. I: Do Statutory Exemptions Mean Anything?