2010

Heads up to all those who will be attending the upcoming ABA annual meeting in San Francisco. Please mark your calendars for Thursday, August 5 from 5:30 – 7:00 pm at the Bingham McCutchen offices at Three Embarcadero Center for a panel discussion on Careers in State and Local Government Law, sponsored by the Section of State and Local Government Law.

Joining me on the panel will be Professor David Callies, Honolulu, HI;David Courreges, Austin, TX; Larry Hoyt, Boulder, CO; and NikelleMeade, Austin, TX. Donna Frazier, Shreveport, LA will  moderate. The panel discussion will be followed by a networking reception. Come and join us.

The State and Local Government Law Section is a diverse mix, and includes private practitioners, government lawyers, judges, and law professors. The subject matter covered in the Section is wide, and includes Land Use, Condemnation (my Committee), Public Finance, Homeland Security, Environmental, Education, First…

Continue Reading ABA Panel On “Careers In State & Local Goverment Law” (And Reception)

Why we like law blogging: a commenter added to our recent post on Judge Katherine Leonard‘s opinions during her tenure as an Associate Judge on the Intermediate Court of Appeals.

In the 2009 Roxas case (regarding the extension of a $6 million judgment against Imelda and Ferdinand Marcos), http://www.state.hi.us/jud/opinions/ica/2009/ica28702.htm, Judge Foley wrote the opinion, Judge Leonard concurred, and Judge Nakamura dissented.

The Supreme Court accepted cert, vacated the ICA’s ruling, and sent the case back to circuit court. http://www.state.hi.us/jud/opinions/sct/2009/28702.htm

To the commenter, thanks for the additional case reference. Judge Leonard’s separate concurring opinion can be read here.

Continue Reading More On Chief Justice-Nominee Leonard’s Opinions

AliiolanihaleUpdate: How to Evaluate the Leonard Nomination

Yesterday, Governor Lingle appointed Intermediate Court of Appeals judge Katherine Leonard as the next Chief Justice of the Hawaii Supreme Court. The term of appointment is ten years, with the possibility of reappointment by the Judicial Selection Commission, with service until the mandatory retirement age of 70. Thus, it is possible that Judge Leonard could serve two decades as Chief Justice since she is only 50. Appointing her may be the single most lasting legacy of the Lingle Administration, as it could outlast the terms of the next two governors, and half the term of a third.

Judge Leonard’s statements at the press conference announcing the appointment were careful and judicious, quite naturally. We would not expect her or anyone else appointed to a judgeship to say anything but that she has “great respect for the rule of law,” which means “upholding the…

Continue Reading Judge Leonard’s Opinions

Last night, I had the opportunity to attend The Supreme Court and the Battle for Second Amendment Rights, a discussion of the U.S. Supreme Court’s two recent Second Amendment opinions, District of Columbia v. Heller (2008), the case in which the Court affirmed that the right to keep and bear arms is an individual right, and last term’s McDonald v. City of Chicago, which held that the Second Amendment was applicable to state and local governments via the Fourteenth Amendment’s Due Process Clause. The event was sponsored by the Independent Institute. 

We obviously do not focus on the Second Amendment on this blog (being much more concerned with the Fifth Amendment than the Second), but McDonald in particular captured our attention since the petitioner’s main argument in that case was that the Fourteenth Amendment’s Privileges or Immunities Clause (and not only the Due Process Clause) prohibits state…

Continue Reading Event: The Supreme Court And The Battle For Second Amendment Rights

Ninth_circuit Thanks to the Federal Bar Association (Northern District of California Chapter), today I had the pleasure of attending a panel discussion of the significant cases from the Supreme Court’s recently ended Term.

The panelists discussed “Guns, Free Speech, Criminal Justice, Campaign Finance, Separation of Powers … and ‘Inside Baseball’ Views of the Court and Docket” in a packed courtroom at the Ninth Circuit’s San Francisco courthouse. The panel was comprised of experienced appellate and Supreme Court advocates, and shared their insights on the “headlines and highlights” of the Term: 

  • Hon. Marsha Berzon, Judge, U.S. Court of Appeals for the Ninth Circuit, and former clerk to Justice Brennan
  • Professor Rory Little, U.C. Hastings College of the Law, Of Counsel to McDermott Will & Emery, and former law clerk to Justices Brennan, Stevens, and Stewart (ret.)
  • Kristin Linskley Myles, Munger Tolles & Olson LLP, and former law clerk to

…
Continue Reading Review Of The Supreme Court’s Term 2010 – Northern District Of California Chapter, Federal Bar Association Event

Here’s a case from the North Carolina Court of Appeals that is similar to last week’s decision by the Kansas Supreme Court, in that it involves an inverse condemnation claim resolved by the burdens on the parties in the course of a summary judgment motion.

The public utility decided to install a sewer line in what it thought was the footprint of an existing public sewer easement. Eminent domain is not implicated since the easement map shows that “all sewer easements are public” and thus do not need to be condemned. Not so fast, the map is wrong, said Mr. Costa who claimed to be the owner of the land on which the sewer was installed. Both sides filed summary judgment motions, Costa supporting his with affidavits from an attorney and a surveyor, testifying that the map does not show true state of affairs, and that the sewer was…

Continue Reading North Carolina App: When Opposing Summary Judgment, Make Sure Your Declarations State Facts, Not Conclusions (Applies In Inverse Condemnation Cases)

So let’s say you want to hold fundraisers for political bigshots in your home. When the crowd you are hobnobbing with includes Bill Clinton, you might expect the Secret Service to come along, and you might expect that your local constabulary is asked to pitch in to help the T-Men with security, and traffic and crowd control.

You might also expect that despite residing in what is considered an “affluent village” where the median family income is reported to be $200,000, the local taxpayers might not appreciate shouldering the expense of the extra security that your soirees require. Thus, you should not be surprised when the village fathers and mothers adopt an ordinance requiring that people whose closed-to-the-public events spur the need for these extra services to bear the cost instead of the taxpayers. 

But even after the ordinance is adopted you never get sent a bill, despite…

Continue Reading 7th Circuit: Political Chutzpah Lawsuit Not Ripe

In Kauai Springs struggling, The Garden Island (the Kauai daily newspaper) writes about

The Kauai Planning Commission (Planning Commission) asks this Court to validate a remarkable theory: that in the course of reviewing whether Kauai Springs, Inc. (Kauai Springs) was entitled to three simple zoning permits for its agriculturally-zoned land, the public trust doctrine required the Planning Commission to determine water rights and water usage – issues acknowledged as beyond the Planning Commission’s competence, and beyond its jurisdiction.

The Planning Commission’s consideration of the zoning permits required it to determine whether Kauai Springs’ use of its land was “compatible with the neighborhood” and whether it was “reasonable use of land situated within the Agricultural or Rural District.” Further, Haw. Rev. Stat. § 91-13.5 (1998) and Kauai’s “deemed approved” ordinances mandate that if the Planning Commission did not process the applications within certain times, they were automatically approved.

The Planning…

Continue Reading Justice Delayed Is Justice Denied: Zoning Permits

Property_1800 I recently picked up a copy of Property Rights – Eminent Domain and Regulatory Takings Re-Examined (Bruce L. Benson, ed., Independent Institute 2010), available on-line here.

At 299 pages and with 13 entries, I haven’t had a chance to read the whole thing yet. But after an initial skim, a few of the chapters stand out: Steven Eagle on Assembling Land for Urban Development – The Case for Owner Participation, Ilya Somin on The Limits of Backlash – Assessing the Political Response to Kelo, and Scott Bullock on The Inadequacy of the Planning Process for Protecting Property Owners From the Abuse of Eminent Domain for Private Development. 

We will post more as we get further into the book, but for now, here’s the publisher’s summary: 

The U.S. Supreme Court decision, Kelo v. New London, has become a dramatic focal point for the broad use of eminent…

Continue Reading New Book: Property Rights – Eminent Domain and Regulatory Takings Re-Examined (2010)

In Hines v. California Coastal Commission, No. A125254 (decided June 17, 2010, ordered published July 13, 2010), the California Court of Appeal (First District) held that the California Coastal Commission properly refused to hear the appeal of a neighbor who opposed the grant of a use permit because the appeal did not present a “substantial issue” under the Coastal Act.

There is a lot of detail in the lengthy opinion, and we won’t cover it all here, but here’s the short version. The county board of supervisors granted a coastal development permit to build a home and garage, which reduced the 100-foot riparian setback to 50 feet. A neighbor objected, asserting that the county’s coastal policy “absolutely forbids construction of permanent structures within 100 feet from the lowest line of riparian vegetation,” and sought appellate review by the California Coastal Commission. The Commission declined to exercise jurisdiction. The…

Continue Reading Cal App: No “Substantial Issue” Meriting Appeal To Coastal Commission