January 2012

ABA_SLGThere’s still time to register for tomorrow’s teleconference on Ethics for Municipal Attorneys: Reconciling the Rules of Professional Conduct with Government Ethics Law (a live webinar and teleconference which starts at 1:00 p.m. Eastern Time). More information, including registration, here. This program is sponsored by the ABA Continuing Legal Education Center and the Section of State and Local Government Law.

We’ll be focusing on more than just ethics for government attorneys, and we’ve built the program around our thoughts on the U.S. Supreme Court’s decision in Nevada Commission on Ethics v. Carrigan, where the Court concluded that a city council member’s vote was not first amendment “speech,” and he was therefore subject to a Nevada statute thave prohibits elected officials from voting when they may appear to have conflicts of interest.

Joining me in the discussion will be Yvonne M. Nevarez-Goodson (Commission Counsel and one of the lawyers…

Continue Reading ABA Teleseminar: Ethics, Government Conflicts Of Interest, And The First Amendment

The week before last, the Hawaii Supreme Court unanimously invalidated the Reapportionment Commission’s redistricting plan because the Commission included non-residents in the population base, and the Hawaii Constitution requires use of “the total number of permanent residents in each of the basic island units and computed by the method known as the method of equal proportions.” (emphasis added). The court required the Commission to try again.

The Commission has now sought “clarification and/or reconsideration,” first asking the court for more guidance on the method of “extracting” non-permanent residents from the population base and the procedure for preparing a new plan, and second arguing that the inability to separate resident and nonresident military personnel makes the court’s requirement that the Commission do so unconstitutional under the equal protection clause. Motion at 10-11. The Commission notes that Alaksa and Kansas, when faced with similar difficulties avoided the constitutional problem by using the…

Continue Reading Do-Over Sought In Hawaii Reapportionment Case

YouvebeentrumpedDonald Trump has more money than you. He’s also a huckster, a self-aggrandizing showman, a judgmental snob, and an eminent domain abuser with more than a hint of mean lying just below the surface. And he has really weird hair.

But we already knew that, and if these are the only insights to be taken from You’ve Been Trumped (Montrose Pictures 2011), the new documentary by director Anthony Baxter, the film would add little to the conversation.

But at its core, You’ve Been Trumped demands more of its audience by posing an essential question: in the “supersized” consumerist culture epitomized by Mr. Trump, is “better” inherently preferable? The film highlights his belief that modest, traditional, and worn-at-the-heels should naturally give way to glitzy, contemporary, and grandiose.

The U.S. Supreme Court sided with Mr. Trump’s philosophy in Kelo v. City of New London, the case where the Court’s majority allowed…

Continue Reading Movie Review: “You’ve Been Trumped” – Is “More” And “Better” Always Preferable?

At yesterday’s Hawaii Water Law Conference, several presenters discussed what is known as the “East Maui water case” (that is easier to say than “In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanawi streams“), which was up before the Hawaii Supreme Court on a certiorari application after the Intermediate Court of Appeals dismissed the case for lack of appellate jurisdiction. The Water Commission denied the petitioner’s request for a contested case, and the ICA dismissed the appeal from the Water Commssion because under the Hawaii Admistraitve Procedures Act, there was no final order from which the petitioners could appeal.

But by the time we all returned to our offices late in the day, the Hawaii Supreme Court had granted the application for certiorari and summarily vacated the ICA’s dismissal…

Continue Reading HAWSCT: Appellate Jurisdiction Triggered By Signed Water Commission Minutes

Yesterday, the Supreme Court heard oral arguments in Sackett v. EPA, No. 10-1062 (transcript here). We were going to write up our thoughts, but minds immeasurably better than ours beat us to it. Concensus seems to be that the EPA is going to get smacked, but we can’t tell yet how hard. Our review of the transcript leads us to the same conclusion, but we’ve learned never to count chickens before their anticipated hatch date, so will reserve judgment.

  • SCOTUSblog: A weak defense of EPA – “With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers.”

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Continue Reading Sackett v. EPA Oral Argument Round Up

Here’s the last brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case involving the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. We filed an amicus brief in the case on behalf of the American Bar Association. The other merits and amici briefs are posted here.

Oral argument is set for January 17, 2012.

Reply Brief for the Petitioner, Filarksy v. Delia, No. 10-1018Continue Reading Final Brief In Filarsky: A Private Lawyer Retained To Represent Government Is Entitled To Claim Qualified Immunity

Trumped

Following up on the success of last week’s screenings of Battle for Brooklyn comes another documentary about “sports vs homes,” this time with an environmental twist.

Come join us this Friday, January 13, 2012 at 7:30 p.m. for the Hawaii premiere of “You’ve Been Trumped” at the Doris Duke Theater at the Honolulu Academy of Arts. There is a pre-screening reception from 6:00 – 7:30, so please come early.

In this controversial David-and-Goliath story, a group of Scottish homeowners take on Donald Trump as he sets out to build the world’s most luxurious golf resort on one of Scotland’s last wilderness areas. When the Scottish government overturns their own environmental laws to greenlight the project, the stage is set for an extraordinary summer of discontent.

Winner: Victor Rabinowitz and Joanne Grant Award for Social Justice, Hamptons International Film Festival.

I will post my review shortly.

I will be…

Continue Reading Hawaii Premiere: “You’ve Been Trumped” – Friday, January 13, 2012

The transcript from today’s arguments in Sackett v. EPA, No. 10-1062. Justice Alito, quoted above (p. 37) was an active questioner. More to come after we’ve read the transcript. Disclosure: Pacific Legal Foundation represents the petitioners; I do PLF’s work in Hawaii. Continue Reading Sackett v. EPA Transcript: “Don’t you think most ordinary homeonwers would say this kind of thing can’t happen in the United States?”

12.WATHIThere is still time to join us for the upcoming Hawaii Water Law conference, to be held in Honolulu on January 11, 2012. I am the planning co-chair along with Jesse Souki, Director of the State of Hawaii Office of Planning.

In addition to Jesse and me, we’ve assembled a diverse and talented faculty: UH lawprof David Callies will speak with Elijah Yip (Cades) on the latest developments in water law and public trust litigation. State Water Commissioner Lawrence Miike will update us on the latest goings-on at the Commission. My Damon Key partner Greg Kugle is speaking with Leo Asuncion, the Manager of the Coastal Zone Management Program at the State Office of Planning on coastal issues.

After lunch, we have a special guest, Ed Thomas (a lawyer and President of the National Hazard Mitigation Association, and a nationaly known expert in floodplain management and…

Continue Reading Hawaii Water Law Conference (Jan. 11, 2012)