June 2011

This just in.

In a case we’ve followed closely, the U.S. Supreme Court has concluded that Nevada’s Ethics in Government Law is not unconstitutionally overbroad, and that a state may regulate apparent conflicts of interest in legislative voting without infringing upon an elected official’s First Amendment speech rights.

In an opinion by Justice Scalia and joined by CJ Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, the Court concluded that legislative voting is not “speech,” and when voting, an elected official is acting as trustee for his constituents, and not for herself. The Court reversed the Nevada Supreme Court’s contrary conclusion, and upheld the Nevada Commission on Ethics’ censure of a city council member for not recusing himself from voting on a casino development proposal when the council member’s personal friend and campaign manager was the developer’s “consultant.” The council member disclosed the relationship, but voted to…

Continue Reading SCOTUS: Legislative Voting Is Not “Speech,” State May Require Recusal For Legislators’ Conflicts Of Interest

“Kelo, Parents and the Spatialization of Color (Blindness) in the Berman–Brown Metropolitan Heterotopia” by Denver lawprof Tom Romero II.

This article utilizes interdisciplinary methodology and resources to describe the manner by which legally enforced color lines on a local scale became paradoxically proscribed, yet essential to what I call the multi-racial heterotopia. As a consequence of scholars largely having failed to make the link between eminent domain and school integration jurisprudence in the construction of the modern metropolitan United States, the article makes a timely and important intervention to the combined analysis of these most recent Supreme Court cases.

Posted on SSRN here. Topic seems worthy of examination, but what a title!Continue Reading Winner: Best Title For Law Review Article About Kelo (I Think)

Today, Honolulu Civil Beat features our piece on Nevada Comm’n on Ethics v. Carrigan, “Do Elected Officials With a Conflict of Interest Have a Right to Vote Anyway?“

We’ve written about the case recently in the Zoning & Planning Law Reporter (Supreme Court Preview: Voting as Speech When a Government Official Has a Conflict of Interest — “Analogy Gone Wild” Or First Amendment Right?, 34 Zon. & Plan. L. Rptr (Apr. 2011)), but the Civil Beat piece is less law-wonky:

In a perfect world, we wouldn’t need ethics laws to regulate the conduct of government officials. We could trust that by simply following their consciences, the personal morality of government officials would coincide with “doing the right thing” and we’d end up with a result everyone would agree was “ethical.”

But because we don’t live in a perfect world, an elected official’s view of what’s…

Continue Reading Op-Ed On SCOTUS Carrigan Case: Do Elected Officials With a Conflict of Interest Have a Right to Vote Anyway?

My Pacific Legal Foundation colleague and eminent domain scholar Tim Sandefur has posted an analysis of the legislation proposed by California’s redevelopment agencies in reaction to Governor Brown’s call to eliminate them (“California Redevelopment Agencies fight to defend their turf“).

Sandefur deconstructs (or should we say “redevelops”) the agencies’ claim that the bill will “tighten the definition of blight” — 

Section 33031 of the California Health and Safety Code defines the word “blight,” and AB 1250 does not change that section at all. This is problematic because the standards for “blight” are extremely vague: they include things like “nearby incompatible land uses that prevent the development,” “a high crime rate,” or “conditions that prevent or substantially hinder the viable use or capacity of buildings or lots.” What exactly do these phrases mean? Answer: whatever the government says they mean.

AB 1250 does not change these criteria. Instead, it…

Continue Reading Sandefur Redevelops A Proposal To “Tighten The Definition Of Blight”

My Damon Key colleague Rebecca A. Copeland is spearheading the formation of an Appellate Section in the Hawaii State Bar Association. Many state bars have groups devoted to issues of interest to appellate practitioners and justices/judges, and it’s about time we have one. It will allow those of us who practice in Hawaii’s appellate courts to share issues, improve appeal procedures, interface with the justices and judges whom we appear before, and raise the professionalism of the Hawaii appellate bar.

Rebecca is preparing the paperwork required by the HSBA’s Constitution and Bylaws for the formation of a new section and plans to submit them soon. Part of these efforts is measuring the interest of bar members, and a large number of attorneys expressing support will let HSBA know there’s a desire among its members for the formation of a section. 

If you are interested in an Appellate Section, we’d appreciate…

Continue Reading Come Join Us In The Appellate Section Of The Hawaii Bar

Rest easy: this post, thankfully, is not about a certain disgraced Congressman, but is about the much more mundane (but interesting to us) issue of how “owner of a business” is defined in the California statute that allows recovery for loss of goodwill in eminent domain.

In Galardi Group Franchise & Leasing, LLC v. City of El Cajon, No. D056737 (June 7, 2011), the California Court of Appeal (4th District) held that Galardi — which authorized Bingham to operate a Wienerschnitzel restaurant via a franchising agreement — is not the “owner” of a business entitled to be compensated for loss of goodwill caused by a taking. See Cal. Code. Civ. P. § 1263.510. However, the court concluded that Galardi might be entitled to compensation as the assignee of the operator’s rights.

Galardi is a franchisor of Wienerschnitzel restaurants (which feature that quintessentially Southern California delicacy, the chili dog).

Continue Reading Cal Ct App: Who “Owns” The Wienerschnitzel?

Civil Beat‘s recent story “Mayor, City Council Move Closer to Litigation on Rail” details the potential lawsuit over who gets to control the $18 million budget of the Honolulu Authority for Rapid Transit (HART), the newly created “semi-autonomous” agency that is overseeing the $5 billion rail project. The focus of the story is substance of the dispute over whether the city council or the mayor holds the purse strings, but this passage caught our eye:

In a Wednesday press conference, Honolulu Mayor Peter Carlisle confirmed that he’d be willing to sue the City Council over its position.

Carlisle told Civil Beat that the cost of legal fees would not be passed on to taxpayers. He said he sees no conflict of interest with the city lawyers — who represent both the executive and legislative branches — representing both the City Council and the mayor on the issue.

This naturally…

Continue Reading Two Wolves And A Lamb Decide On Dinner

“Nobody’s gonna remember how long it took. They’re only gonna look and see that it was done.”

     – New York Mayor Michael Bloomberg, on the use of
            eminent domain to build a basketball arena in Brooklyn

Battle for Brooklyn film poster

Earlier this year, at the annual ALI-ABA Eminent Domain law conference, filmmakers Michael Galinsky, Suki Hawley, and David Beilinson screened a rough cut of their documentary about the Atlantic Yards case, Battle for Brooklyn.

At the conference, we interviewed Mr. Galinsky after the showing, but wanted to wait for the film to be finalized before releasing a review. The film is now on the festival circuit and it looks like it is heading to general release in the near future so it’s time for us to actually let you know what we think about it.

If you have been following the many lawsuits and appellate opinions which the project generated…

Continue Reading Movie Review: Battle For Brooklyn

Civil Beat‘s recent report on the mayor’s plan to demolish the Waikiki Natatorium War Memorial, a salt-water swimming pool erected to honor those who served in “the Great War,” not only brought back some childhood memories (I swam there as a kid) but reminded us of the cost of preservation. When the thing or property sought to be preserved  — or, to use the bumper-sticker vernacular, “saved” — is public property like the Natatorium, the discussion usually involves the cost of doing so balanced against the desire to keep it.

But when the property involved is private property, you usually hear very little about the burdens placed on the owner, or the cost to the public of preservation. Which brings us to the tile of this post, which was inspired by a recent column by Howard Dicus “What do you want to save in Honolulu that’s old?…

Continue Reading What Do You Want To Save In Honolulu (And How Much Will It Cost?)