April 2012

Here’s a short one for your just compensation files. In County of Dakota v. Cameron, No. 19HA-CV-09-3756 (Mar. 26, 2012), the Minnesota Court of Appeals held that Minnesota’s “minimum compensation” statute, “is ambiguous and that statutory intepretation is appropriate.” Slip op. at 7. The statute provides:

When an owner must relocate, the amount of damages payable, at a minimum, must be sufficient for an owner to purchase a comparable property in the community and not less than the condemning authority’s payment or deposit under section 117.042, to the extent that the damages will not be duplicated in the compensation otherwise awarded to the owner of the property. For the purposes of this section, “owner” is defined as the person or entity that holds fee title to the property.

The court defined “comparable property” according “to its common usage,” meaning something “similar or equivalent.” It rejected the property…

Continue Reading Minn App: Relocation, Comparable Property, And Minimum Compensation

The issue in in Filarksy v. Delia, No. 10-1018, yesterday’s opinion in which the unanimous Supreme Court held that a private lawyer who was retained by a local government is entitled to assert qualified immunity, was whether the lawyer was prohibited from asserting the defense merely because he was not formally employed by the city.

The specific issue before the Court was 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, was entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in civil rights actions under 42 U.S.C. § 1983. The Ninth Circuit concluded he could not avail himself of that defense because he did not get a W-2 from Rialto. The Supreme Court unanimously reversed.

[Disclosure: along with…

Continue Reading Some Thoughts About The Supreme Court’s Immunity Decision

We’ve been meaning to post the latest developments in a case we’ve been following, two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians) against the State of Hawaii Land Use Commission.

Our colleague Paul Schwind provided a comprehensive guest post on the civil rights case, and summarized the facts that led to both lawsuits here. In short, the Land Use Commission reclassified (rezoned) property as a sanction after it asserted the developers failed to comply with certain conditions, chief among them to provide a certain number of “affordable housing” units by a certain date.

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to…

Continue Reading Court: State Land Use Commission Exceeded Its Authority, Violated Developers’ Due Process And Equal Protection Rights

Today, the U.S. Supreme Court issued a unanimous opinion (by Chief Justice Roberts) in Filarksy v. Delia, No. 10-1018, holding that a private lawyer who was retained by a local government is entitled to assert qualified immunity. Along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity.

The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It’s not a land use case, but every land use and takings lawyer must know the contours of section 1983 law. The specific issue before the Court was 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…

Continue Reading SCOTUS: Private Attorneys Hired By Govt Entitled To Assert Qualified Immunity

Last Friday, we noted that the Supreme Court was scheduled to consider whether to accept cert in Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking, among other things.

However, according to the Court’s docket report this morning, the Court put off the decision for another week, rescheduling consideration until the April 20, 2012 conference. Does this mean that someone up there is interested? The same Justice or Justices who asked for briefs in response? That there is a titanic behind-the-scenes struggle between the Justices to get that fourth vote? The cert pool clerk was out sick last week?

We don’t know, but we sure are intrigued. Continue Reading Not So Fast…

Most likely, by the time you read this, the Supreme Court will have decided whether to grant cert in Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking, among other things. Today, you see, is the day the Court is scheduled to hold its conference to decide whether to do so.

We mere mortals won’t know what the result of the conference is until next week, of course, but we thought we’d get you ready. Use the time to review the key briefs:

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Continue Reading Conference Day For New York Rent Control Challenge

Several lessons from the Ninth Circuit’s opinion in Oklevueha Native American Church of Hawaii, Inc. v. Holder, No. 10-17687 (Apr. 9, 2012), a case involving the First Amendment and the Religious Freedom Restoration Act:

  • Do not send your weed via FedEx. 
  • Especially a pound of weed.
  • Even if you claim the weed is used for religious purposes.
  • Especially when your church “only exists to espouse the virtues of, and to consume, entheogens.”
  • If you do, and FexEx narcs you out to the feds (you do know what the “Fed” part of “FedEx” is short for?), don’t expect the feds to give your weed back, dude.
  • Bogarting your weed does not violate the RFRA, which does not provide for money damages either, man. It’s like sovereign immunity has not been waived. 
  • Consider yourself lucky the feds didn’t charge you with a crime, even though they might in

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Continue Reading Feds Bogart Entheogenic Church’s Weed

Update: some have reported difficulty with finding the How Appealing link below. Here’s a direct link to the issue.

The latest issue of Appellate Issues, the quarterly publication of the ABA’s Council of Appellate Lawyers is out, and features our article, “Preparing an Effective Appellate Brief – The Expert View.”

Also included in this issue are some really fascinating and helpful articles: “How to Write an Introduction” (they say the Intro is where you can win the case, and this article helps you hone your skills), “Theming the Appellate Brief,” three articles on tech issues: “Hyperlinking in the Appellate Arena,” “Video Hyperlinks: An Effective Tool in Appellate Advocacy,” and “Writing Appellate Briefs for Tablet Readers” (yes, many judges and clerks these days are reading your brief on screen), and an article by fellow Oahu denizen Col. Louis…

Continue Reading Latest Edition Of Appellate Issues: Preparing an Effective Appellate Brief – The Expert View … And More

Here’s the latest in the federal court reapportionment lawsuit, filed last week (we represent the plaintiffs). Above is the audio archive of my appearance yesterday morning on KHVH’s Rick Hamada Program. KITV also aired this report on the case. Posted below is the District Court order granting the request for a three-judge district court.

Order Granting Plaintiffs’ Request for a Three-Judge Court Pursuant to 28 U.S.C. § 2284, Kostick v. Nago, N…Continue Reading Latest In Federal Court Reapportionment Case

Our Cincinnati colleague Matt Fellerhoff has posted his thoughts on an interesting case from the Ohio Supreme Court, Clifton v. Village of Blanchester, No. CA2009-07-009 (Mar. 1, 2012). The case involves whether an owner whose property is located outside village limits can bring a takings case against the village. The Ohio Supreme Court held it could not. Why, you ask? Because the village could not exercise eminent domain to take the property, the property owner cannot bring a regulatory takings case against the village. Matt writes:

Even more problematic is the holding in the syllabus, that since Blanchester did not have the authority to condemn property outside of village limits, the remedy sought, an order from the court that Blanchester file an eminent domain action against Clifton to pay for the damage to his property (the only remedy for inverse condemnation under Ohio law), was insufficient and therefore, the…

Continue Reading Ohio: Owner Whose Property Is Outside Village Limits Can’t Bring A Takings Claim