August 2010

In Klemm v. American Transmission Co., No. 2009AP2784 (Aug. 10, 2010), the Wisconsin Court of Appeals held that in order to obtain litigation expenses under a state statute which provides that a property owner may recover expenses if a condemnation award exceeds the “jurisdictional offer” by at least $700 and at least 15%, there must be a “jurisdictional offer” made. Seems simple enough, right?

The property owner and the trial court didn’t think so, and here’s why: ATC wanted to place an electricity transmission line across the Klemm’s land. Rather than fight the taking, the Klemms “agreed to the $7,750 compensation ATC offered in negotiations, with the understanding they had the right to appeal the amount.” Slip op. at 1. They did, and the condemnation commission awarded them $10,000. They asked for, and were awarded, litigation expenses pursuant to a statute which provides that litigation expenses shall be awarded…

Continue Reading Wisconsin App: When Statute Requires “Jurisdictional Offer” As Prerequisite To An Award Of Expenses, You Must Have A Jurisdictional Offer

Associate Justice Mark Recktenwald will be the next Chief Justice of the Hawaii Supreme Court.

Last week, Governor Linda Lingle made the appointment, and barring a horrifying scandal emerging, he is a going to be deemed “qualified” by the Hawaii State Bar Association, and after a veritable love-fest, the Senate will consent. His appointment comes one week after the same Senate, in a display of raw political power, shot down the Governor’s first appointment to the position, Intermediate Court of Appeals Judge Katherine Leonard.

Is Justice Recktenwald qualified to be the Chief Justice? Certainly. Indeed, he is highly qualified (even though that rating no longer is used), despite recently authoring an opinion for a 4-1 court that fundamentally rewrote Hawaii’s land use laws, but that lacked analysis and was thinly reasoned. (Cf. Justice Acoba’s concurring and dissenting opinion.) But as we noted earlier, one blown call…

Continue Reading Haw CJ v. 2.0

Barista’s note: This post is by our Damon Key colleague Rebecca A. Copeland. For those of you who have been following the process, Rebecca is familiar: she was present at the Judiciary Committee hearings when we live-blogged the Katherine Leonard confirmation. Her last post prior to joining Damon Key was as a Deputy Solicitor General for the State of Hawaii, where she argued important appeals for the State.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

On Friday, August, 13, 2010, Governor Lingle nominated Associate Justice Mark E. Recktenwald to be the next Chief Justice of the Hawaii Supreme Court.

Justice Recktenwald has served on the Hawaii Supreme Court since May 11, 2009. Prior to that he served as Chief Judge of the Intermediate Court of Appeal from April 30, 2007 until his confirmation to the Hawaii Supreme Court.

The following is a brief run down of the cases Justice Recktenwald authored during his time on…

Continue Reading CJ-Appointee Recktenwald’s Supreme Court Opinions

Barista’s note: This post is by our Damon Key colleague Rebecca A. Copeland. For those of you who have been following the process, Rebecca is familiar: she was present at the Judiciary Committee hearings when we live-blogged the Katherine Leonard confirmation. Her last post prior to joining Damon Key was as a Deputy Solicitor General for the State of Hawaii, where she argued important appeals for the State.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

On Friday, August, 13, 2010, Governor Lingle nominated Associate Justice Mark E. Recktenwald to be the next Chief Justice of the Hawaii Supreme Court.

Justice Recktenwald has served on the Hawaii Supreme Court since May 11, 2009. Prior to that he served as Chief Judge of the Intermediate Court of Appeal from April 30, 2007 until his confirmation to the Hawaii Supreme Court.

The following is a brief run down of the cases Justice Recktenwald authored during his time on…

Continue Reading CJ-Appointee Recktenwald’s Supreme Court Opinions

My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the “judicial takings” case. Mark, Tred, and I filed an amicus brief supporting the property owners in the case.

Here’s an excerpt from the Introduction to the article:

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 such a thing as a…

Continue Reading Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the “judicial takings” case. Mark, Tred, and I filed an amicus brief supporting the property owners in the case.

Here’s an excerpt from the Introduction to the article:

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 such a thing as a…

Continue Reading Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

In County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010), the Hawaii Supreme Court held that certain state zoning laws are “environmental” laws that may be enforced by private plaintiffs. The court held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case.” Slip op. at 4. In What Does Right to Clean Environment Mean, Honolulu Civil Beat‘s Michael Levine reports on the case, and various reactions (including ours):

The right to challenge zoning rules in court will not be totally unfettered. Courts must still decide whether a plaintiff has standing. The majority opinion explained the difference between a right of action and standing:

“The private right of action inquiry focuses on the question of whether any private party can sue to enforce a statute, while…

Continue Reading State Zoning Statutes As “Environmental” Laws – More On HAWSCT’s Ala Loop Decision

In County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010), the Hawaii Supreme Court held that certain state zoning laws are “environmental” laws that may be enforced by private plaintiffs. The court held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case.” Slip op. at 4. In What Does Right to Clean Environment Mean, Honolulu Civil Beat‘s Michael Levine reports on the case, and various reactions (including ours):

The right to challenge zoning rules in court will not be totally unfettered. Courts must still decide whether a plaintiff has standing. The majority opinion explained the difference between a right of action and standing:

“The private right of action inquiry focuses on the question of whether any private party can sue to enforce a statute, while…

Continue Reading State Zoning Statutes As “Environmental” Laws – More On HAWSCT’s Ala Loop Decision

Lawprof Steven J. Eagle (Geo. Mason), author of the treatise Regulatory Takings, has a forthcoming article The Really New Property: A Skeptical Appraisal:

Thisarticle reviews recent scholarship invoking the prophetic tradition in Americanjurisprudence and calling for the transformation of property law. It contrastsimposed top-down social change with Burkean and Oakeshottian gradual changederived from conversation within our legal and cultural tradition. The work ofRobert Ellickson is presented as illustrating the development of property lawin the Burkean tradition. Transformative property scholarship, on the otherhand, largely reflects Osborne and Gaebler’s view that government should steer andprivate actors row, reinforced by Thaler and Sunstein’s call for softpaternalism. The article asserts, however, that Kant and Berlin’s admonitionthat all of humankind is “crooked timber” precludes officials from a privilegedposition, a postulate well supported by public choice theory.

Thearticle views the change in conceptual thinking from Hohfeldian property toHeller’s anticommons and assertions of disintegration and…

Continue Reading Eagle On “The Really New Property: A Skeptical Appraisal”

Lawprof Steven J. Eagle (Geo. Mason), author of the treatise Regulatory Takings, has a forthcoming article The Really New Property: A Skeptical Appraisal:

Thisarticle reviews recent scholarship invoking the prophetic tradition in Americanjurisprudence and calling for the transformation of property law. It contrastsimposed top-down social change with Burkean and Oakeshottian gradual changederived from conversation within our legal and cultural tradition. The work ofRobert Ellickson is presented as illustrating the development of property lawin the Burkean tradition. Transformative property scholarship, on the otherhand, largely reflects Osborne and Gaebler’s view that government should steer andprivate actors row, reinforced by Thaler and Sunstein’s call for softpaternalism. The article asserts, however, that Kant and Berlin’s admonitionthat all of humankind is “crooked timber” precludes officials from a privilegedposition, a postulate well supported by public choice theory.

Thearticle views the change in conceptual thinking from Hohfeldian property toHeller’s anticommons and assertions of disintegration and…

Continue Reading Eagle On “The Really New Property: A Skeptical Appraisal”