2009

We’ve been loosely following the Senate Judiciary Committee’s hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say “loosely” since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.

Here’s a sampling, followed by some thoughts:

  • She’s Lying by Paul Campos – “Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.”
  • Written testimony of Lawprof Ilya Somin (Geo. Mason University) – “As President  Barack Obama has written, ‘[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.’ The protection of property rights was one of

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Continue Reading Do Judges “Make” Law? The Sotomayor Nomination And The Beachfront Takings Case

What do you call an appeal in which the Supreme Court doesn’t address any of your five questions presented?

If you are the petitioner’s attorneys in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (July 13, 2009), you’d call it “victory.”

In that case — which was being considered by the Hawaii Supreme Court on secondary cert review — the petitioners asserted the Intermediate Court of Appeals “gravely erred” (see Haw. Rev. Stat. § 602-59(b)(1)) when it held the Director of the Honolulu Department of Planning and Permitting was within his authority when he concluded a surf school’s use of a space in a hotel lobby would be a valid nonconforming use if the school adhered to certain conditions imposed by the Director.

Usually, cases about nonconforming uses aren’t exactly the most interesting to read. Commonly known as “grandfathering,” and…

Continue Reading HAWSCT On Nonconforming Uses: You Can’t Change What You Didn’t Establish

Little-pink-houseThe National Constitution Center regularly posts “We The People Stories,” podcasts of “nationally recognized leaders debating and discussing the Constitution.”

The latest is about Kelo and eminent domain, and is well worth a listen.

Here’s the summary:

A conversation about Kelo v. City of New London four years after the Supreme Court’s highly controversial 5-4 decision involving the use of eminent domain to transfer land from one private owner to another to further economic development. Since the 2005 decision, 40 states have passed legislation limiting the state government’s power of eminent domain for economic development. In practice, however, solutions have proven elusive. Guests include investigative journalist Jeff Benedict, author of Little Pink House: A True Story of Defiance and Courage, and attorneys Brian Blaesser and Scott Bullock. Veteran Supreme Court correspondent Lyle Denniston moderates. Program recorded on 06/10/2009.

The mp3 is posted here. More on Little Pink Continue Reading National Constitution Center Podcast On Kelo

The Senate’s hearings on Circuit Judge Sonia Sotomayor’s nomination as an Associate Justice of the U.S. Supreme Court begin today. Here’s our summary of cases in which she was involved as a circuit and district judge on the issue.

If confirmed, we may find out her thinking about regulatory takings very soon, because in its next Term, the Court will be reviewing Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), a case about the taking of littoral (beachfront) land in Florida. Our summary of the issues in that case is here.

If she is elevated to the Court, this case could prove especially interesting because her one unabashedly pro-property owner decision as a Second Circuit judge focused on procedural due process. In Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005), the court held…

Continue Reading Sotomayor On Takings And Property Rights Issues

That now-cliched line from Field of Dreams, “if you build it they will come” (actually, it’s “he will come,” but work with us here) seemed to be the driving force behind the New London Development Corporation’s plans for the Fort Trumbull neighborhood when it wanted to condemn the homes of Susette Kelo and her neighbors. If they condemned, Pfizer would come.

They condemned the hell out of it, but it turns out that it wasn’t the pharmaceutical giant that came, or even Shoeless Joe and his Black Sox. According to a report in the New London, Connecticut paper The Day, birds — killdeer, red-winged blackbirds, mourning doves and others — have come: “Fort Trumbull Neighborhood Is For The Birds.”

WhenSpinoza observed some 350 years ago that “nature abhors a vacuum,” theFort Trumbull peninsula hadn’t seen its first fort yet, let alone anyhints of the…

Continue Reading Field Of (Broken) Dreams In New London?

In System Components Corp. v. Florida Dep’t of Transportation, No. SC08-1507 (July 9, 2009), the Florida Supreme Court resolved a conflict in the lower Florida courts regarding the application of business damages in a condemnation case under Florida Statutes § 73.071(3)(b). The court held that a business is not required to relocate as the result of a partial taking, but if it chooses to do so, only the actual damages suffered by the business are compensable, and “its business damages must be determined in light of its continued existence at its new location.” Slip op. at 3.

The Florida appeals courts were split on the issue. In State Dep’t of Transportation v. Tire Centers, LLC, 895 So. 2d 1110 (Fla. 4th DCA 2005), the Fourth District court awarded business damages as if the business had ceased to exist on the date of the taking, reasoning that the…

Continue Reading Florida Supreme Court: Property Owner’s Off-Site Mitigation Taken Into Account In Calculating Business Damages From A Partial Take

I don’t know of anyone who looks forward to reading 61-page single-spaced opinions. I know I sure don’t. But that’s the nature of the beast in decisions after a bench trial by trial courts, which are tasked with processing the facts and applying the law after hearing days, weeks, or months of evidence and argument. And when a long opinion is presented straightforwardly and the detail provided is essential to the decision, the pain is considerably lessened.

Such is the case with the opinion of the Court of Federal Claims in Arkansas Fish and Game Comm’n v. United States, No. 05-381L (July 1, 2009).

The Arkansas Game & Fish Commission (“Commission”) owns approximately 23,000 acres of land along the Black River in northeastern Arkansas that it manages as the Dave Donaldson Black River Wildlife Management Area (“Management Area”). The Commission in essence claims that during the years 1993-2000 the…

Continue Reading Court Of Federal Claims: Feds Liable For $5.8M Inverse Condemnation For Flooding

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.). Still, on the day we celebrate independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally as a legal pleading, and is the product of careful legal thinking. So lawyers can’t be all that bad, right?

As convincingly argued by historian Peter Charles Hoffer in his book The Law’s Conscience: Equitable Constitutionalism in America (1990), the structure and style of the Declaration follows a form familiar to most modern lawyers: a complaint initiating a lawsuit. There’s the introduction and “whereas” section (why we’re doing this); the bill of particulars…

Continue Reading The Verified Complaint In Equity: The Declaration Of Independence

Homesweet.jpb Update 7/15/2009: The Supreme Court will hear oral arguments on Thursday, August 20, 2009, from 9:00-10:00. Here’s the notice.

The Hawaii Supreme Court has agreed to hear the appeal regarding whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui. Under Haw. Rev. Stat. § 602-58 (1993), an appeal may be transferred from the ICA to the Supreme Court if the issue is one of “fundamental public importance” or if it is an issue of first impression or a novel legal question.

The Court’s order transferring the appeal from the Intermediate Court of Appeals is posted here.  [Disclosure: my Damon Key colleagues and I represent the Lanai voter who successfully challenged the residency of the councilperson.]  On June 10, 2009, we filed this application to transfer the case …

Continue Reading HAWSCT To Review Residency Challenge: Is Intending To Live Somewhere Enough To Be “Residing” There?

In What’s At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of “judicial takings” case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Raises several interesting points and worth a read.Continue Reading PropertyProf’s Summary Of The SCOTUS Beachfront Takings Case