June 2010

Today’s Honolulu Star-Advertiser runs the editorial Perk of incumbency: Unequal time, about Hawaii’s “resign to run” requirement (article II, section 7 of the Hawaii Constitution), particularly the interplay with equal time in broadcast media:

The cynic might say that elected officials are candidates every day of their working lives. Attorney Robert Thomas, who admits to a little cynicism, observes this frequently these days when the bus he’s riding to work rumbles past the mayor’s campaign headquarters.

“When we pass the ‘Mufi for Governor’ signs, I think, ‘It must be nice having your campaign office there and not be a candidate yet,'” he said. “I can see why people are confused.”

Despite recent complaints about unofficial candidates maintaining a high profile, especially through their regular radio spots, this confusion is unlikely to lift anytime soon.

….

To say [former Congressman Neil] Abercrombie [also a candidate for Governor] is unhappy, particularly…

Continue Reading Perpetual Campaigns And Hawaii’s “Resign To Run” Requirement

In its Thursday editorial, Common Sense and Private Property, the New York Times barely conceals its derision for both the property owners who instituted takings claims in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151, and the four-Justice plurality who set forth the standards for judicial takings, but who couldn’t convince a fifth that this was the right case in which to adopt those standards:

Not a single Supreme Court justice agreed with the harebrained notion that some Florida property owners were entitled to the extra land created when the state widened the beach in front of their houses. But in an opinion issued Thursday, four justices came very close to creating an equally harebrained precedent: that a court decision about the application of a state’s property laws can amount to a “taking” of private property, as if a city or state had…

Continue Reading NY Times On Stop The Beach Renourishment: Justice Thurgood Marshall Had “Harebrained” Ideas

Here’s a round up of the latest commentary and analysis of yesterday’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151.

Continue Reading Friday’s Stop The Beach Renourishment (Judicial Takings) Links

Today’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 is generating a lot of analysis and commentary. When the case was filed and argued, we suspected it would generate keen interest, so in anticipation, the ABA’s State and Local Government Law Section assembled an expert panel discussion of the case at the upcoming ABA Annual Meeting in San Francisco.

Update and Lessons of Stop the Beach Renourishment v. Florida Department of Environmental Protection is scheduled for August 6, 2010 from 2:30 – 4:00 p.m. at the Hilton San Francisco Union Square. I will be moderating the panel, which includes expert takings law advocates and scholars. All of us filed briefs in the case:

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Continue Reading ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)

Here are some links to analysis of today’s U.S. Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11:

Continue Reading Stop The Beach Links

Professor Ben Barros has posted the first analysis and summary of today’s Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11. See Supreme Court Rules in Stop the Beach.

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court’s judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court’s opinions and with links to commentary about the case.

We will be posting some thoughts after a chance Continue Reading First Summary And Analysis Of Stop The Beach Renourishment Judicial Takings Case

Things I never thought I would see in a Supreme Court opinion include the riddle “how much wood would a woodchuck chuck if a woodchuck could chuck wood,” but there it is, in black and white on page 11 of Justice Scalia’s opinion today in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is…

Continue Reading Scalia, J.: “How Much Wood Would A Woodchuck Chuck If A Woodchuck…”

This just in: the Supreme Court has issued opinions in the judicial takings case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted June 15, 2009):

JUSTICE SCALIA delivered the opinion of the Court with respect to Parts I, IV, and V, concluding that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendments. Pp. 24–29.

(a) Respondents’ arguments that petitioner does not own the property and that the case is not ripe were not raised in the briefs in op-position and thus are deemed waived. Pp. 24–25.

(b) There can be no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral property owners had rights to future accretions and to contact with the water superior to the State’s right to fill in its submerged land. That showing cannot be…

Continue Reading Opinion In Judicial Takings Case – Stop The Beach Renourishment v. Florida Dept Of Environmental Protection

The WMA Reporter, the monthly publication of the Western Manufactured Communities Housing Association has published A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak), my short article that attempts to deconstruct some of the more common terms property lawyers toss about. Here’s the Introduction:

One of my law school professors once remarked (hopefully in jest) “if it ain’t Latin, it ain’t the law.” While thankfully we have moved away from the days when Latin and Norman French were the languages of the law, those of us who regularly represent property owners defending their rights sometimes toss about terms that, although they purport to be standard English, often make normal people look at us askance.

We may forget that not everyone might understand what we mean when we say, for example, “The court dismissed the regulatory takings claim on ripeness grounds under Williamson County because the…

Continue Reading A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak)