2011

We’ve been kind of busy in the last few days with a couple of appellate briefs, so haven’t had a lot of time to post up the latest cases and articles of interest. But here’s what we are reading today, in between brief writing:

  • Hawaii Supreme Court Nominees Will Be Public – Courthouse News Services writes about the case in which we represent the Star-Advertiser in its case to compel the governor to publicly disclose the lists of judicial nominees he receives from the Judicial Selection Commission. More on the case here. The Reporters Committee for Freedom of the Press also reported on the story here. 
  • Beyond “NIMBY” – a post on Legal Planet, a blog produced by enviro lawprofs, advocates that we abandon the term NIMBY. I like “I GOT MINE.”

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Continue Reading Friday Round Up

In this press release issued yesterday, the Hawaii Judicial Selection Commission  announced it has amended its rules so that from now on, the JSC “will release the names of the nominees transmitted to the Governor or Chief Justice at the time they are transmitted and will be permitted to disclose statistical and historical information that summarizes patterns and trends in judicial selection.” More from the Star-Advertiser here.

In other words, the lists (of not less than four, and not more than six) names of nominees whom the JSC deem “qualified” to fill vacancies on the Circuit Court, Intermediate Court of Appeals, and the Hawaii Supreme Court, will now be made public at the same time the list is given to the Governor.

This is a new direction, because until this change, the JSC Rules have always barred the Commission from disclosing even the names of nominees: “[s]ince the…

Continue Reading Judicial Selection Commission: Public Will Know The Names Of Judge Nominees At The Same Time The Governor Does

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up. Continue Reading Brigham-Kanner Conference: The Video

Here’s what’s going on:

  • The Honolulu Star-Advertiser‘s story on yesterday’s decision by Circuit Judge Karl Sakamoto in the Star-Advertiser’s lawsuit to compel Governor Abercrombie to cease keeping the names of judicial nominees from the public: Judge to gov: Make names public. We represent the plaintiff:

“We are extremely pleased,” said newspaper attorney Diane Hastert. “Judge Sakamoto thoroughly analyzed all of the complex issues in the case and concluded the public has the right to know the names of individuals on the Judicial Selection Commission lists.”

. . . .

Deputy Attorney General Charleen Aina defended the governor’s position that the release would be a “frustration” of the government’s interest in the appointment process.

She told Sakamoto the process includes the commission screening and recommending the names confidentially, and the disclosure by the governor would “interfere” with that process.

But attorney Robert Thomas, who also represents the newspaper…

Continue Reading Tuesday Round-Up: JSC List Case, California Eminent Domain

Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011) is not the typical case for this blog. It’s not a land use case, and involves a question of the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983.

But since section 1983 claims and defenses are something that every land use lawyer must understand, we thought we’d post it, even though it involves an employment matter.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city employee, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions.

In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of the Supreme Court…

Continue Reading Is A Private Lawyer Retained To Represent Government Entitled To Claim Qualified Immunity?

This just in: In Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), the California Supreme Court held:

Under California’s “quick-take” eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacintothe lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal’s judgment.

Slip op. at 1-2 (footnote omitted).

We’ll review the opinion and post more when we get a chance. But this looks about right.

Continue Reading Cal Supremes: Lender’s Withdrawal Of Condemnation Deposit Does Not Waive Property Owner’s Defenses

As we noted here, the circuit court today ordered Governor Abercrombie to make public the list of nominees for the vacancy on the Hawaii Supreme Court (eventually filled by Justice McKenna) that was transmitted to him from the Judicial Selection Commission earlier this year. More from the Star-Advertiser‘s breaking news story here.

Below are the documents and briefs in the case:

  • The Complaint is posted here.
  • The Governor’s Answer is posted here.

Continue Reading Docs In JSC List Case

In a ruling delivered today, Circuit Judge Karl Sakamoto ordered Governor Abercrombie to publicly release the list of names transmitted to the Governor by the Judicial Selection Commission earlier this year for the vacancy on the Court that was subsequently filled by Justice Sabrina McKenna. Star-Advertiser v. Abercrombie, No. 11-1-1871-08. We represent the newspaper in this case. 

More on the case here. More from the Star-Advertiser here.Continue Reading Court Orders Governor To Cease Keeping JSC List Secret

West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), a petition we’ve been following that asked whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land, has been denied.

California and Texas say the nexus and rough proportionality standards apply to all exactions (we don’t want the government blackmailing permit applicants, regardless of the tribute that is demanded), while Florida says they don’t. Other courts have also weighed in on one side or the other, and lacking guidance from the Supreme Court, will continue to flounder about on this issue.

We suspect the Court’s reluctance to address the confusion has less to do with the issue at hand (must all exactions be related and proportional to the predicted impact of the development) and more to do…

Continue Reading Lower Court Split On Applicablity Of Nollan/Dolan To Exactions Other Than Land Continues: West Linn Petition Denied