2012

A recently-published Note from the Stanford Law Review: Josh Patashnik, Bringing a Judicial Takings Claim, 64 Stan. L. Rev. 255 (Jan. 2012). Here’s the abstract:

This Note seeks to answer a set of questions prompted by the Supreme Court’s 2010 decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In that case, six Justices recognized that the Constitution provides some protection against so-called judicial takings—court decisions that, like executive and legislative action, might be deemed to take property rights. But the Court’s fractured holding provided little guidance on a handful of practical issues that will be of immense interest to potential judicial takings plaintiffs, like whether such claims can be brought in federal court and what remedies might be available. I argue that a judicial takings plaintiff should be able to bring her case in federal district court, notwithstanding the barriers the Supreme…

Continue Reading New Article: Bringing a Judicial Takings Claim (Stanford Law Review)

Here’s the final amicus brief supporting the petitioner in the case challenging New York City’s rent control ordinance. The case is in the cert stage (we posted the petition here, along with the other three amicus briefs supporting the petition), and although the respondents initially waived their response rights, the Court requested a response which is now due on March 5, 2012.

Here’s more on the case:

The Court’s docket report is here. Continue Reading One More Amicus Brief In NYC Rent Control Takings Challenge

Here are the links to the cases and other items discussed today at the International Municipal Lawyers Association webinar with Dan Mandelker and Dwight Merriam. Most of these cases are also in your written materials.

  • South Carolina Bar’s

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Continue Reading Links From Today’s IMLA Regulatory Takings Webinar

Today’s Honolulu Star-Advertiser carries a story on the Hawaii Supreme Court’s opinion in Hamilton v. Lethem, No. SCWC-27580 (Feb. 7, 2012), the case in which we successfully represented a father who challenged the lack of standards in “show cause” hearings in Family Courts under the Due Process Clause. The court held that Family Courts must consider a parent’s claim that the force he or she used on his or her child was permissible discipline and not impermissible abuse; the opinion set forth standards for the courts to analyze such claims.

The S-A story, “High court clarifies discipline defense” notes, “‘I think it’s a good ruling,’ said Thomas Farrell, who last year was chairman of the Family Law section of the Hawaii State Bar Association. ‘There was a lack of clarity in the law, and it does seem to me that a parent has a right to use…

Continue Reading “A Good Day For Freedom”

Hamilton v. Lethem, No. SCWC-27580 (Feb. 7, 2012), the opinion we posted about here is being hotly debated and discussed at the Volokh Conspiracy blog here.

Barista’s note (since we represented the petitioner): many of the comments on Volokh make judgments about whether Father’s acts constituted “abuse.” However, the point we made in our arguments to the Hawaii Supreme Court was not that the court should determine whether they were or not, but rather whether it was possible for the lower courts to reach that conclusion without standards to guide the analysis. In the absence of standards, any conclusion they made regarding abuse was an ad hoc decision and violated due process. Thus, the Supreme Court did not reeach a conclusion about whether Father’s acts were permissible discipline, but remanded the case to the family court to apply the standards the court set forth in the opinion, so…

Continue Reading Hawaii Supreme Court Decision On Parental Right To Discipline Children Discussed

What we’re reading today:

  • Court weighs handling of suit over DOT rules for future highways – North Carolina colleague Matthew Bryant argued an appeal yesterday in the court of appeals regarding the class action-worthiness of a case in which the Dep’t of Transportation effectively blighted a huge swath of land by identifying it as a future highway, and then did nothing to acquire it. More on the appeal (Beroth Oil Co. v. North Carolina DOT) here. 
  • The Federalist Society’s view of the oral arguments in Filarksy v. Delia. We filed an amicus brief for the ABA supporting the petitioner in that case, which involves the availability of qualified immunity for private-practice lawyers who work for state and local governments, but whom are not employed by those entities. 

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Continue Reading Thursday Round-Up

This one is decidedly not about land use, eminent domain, or regulatory takings, so we’ll keep it short.

In a case we’ve been tracking (because we represent the petitioner), the Hawaii Supreme Court has issued a unanimous opinion in Hamilton v. Lethem, No. SCWC-27580 (Feb. 7, 2012). As we previewed here when the cert application was accepted, the issues in the case revolve around the due process rights of parents in civil TRO proceedings in Family Court.

The court held that “parents have a constitutional right to discipline children inherent in their liberty interest … under the due process clause … of the Hawaii Constitution[,] … trial courts shall consider whether the discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor in determining whether the parent’s conduct constituted abuse or proper discipline, and … a non-custodial parent retains the right to discipline…

Continue Reading HAWSCT: Due Process, Parents’ Rights, And The Need For Appellate Counsel

Today, at the ABA Midyear Meeting in New Orleans, I sat in on one of the best CLE programs that I have heard in a long time, “Preparing an Effective Appellate Brief” (sponsored by the Council of Appellate Lawyers of the ABA’s Appellate Judge’s Conference).

I wasn’t taking notes, but instead “tweeted” updates live from the session with what I thought were the more interesting points. Rather than prepare a narrative summary, I’ll simply repost the tweets I posted:

  • At “Preparing an Effective Appellate Brief” sponsored by Appellate Lawyers Council.
  • Judge Smith (Ninth Circuit): your brief may be your only chance

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Continue Reading “Preparing an Effective Appellate Brief” – The Expert View

On Saturday, February 4, 2012, from 10:00 am to noon at the Sheraton New Orleans, the American Bar Association and the State & Local Government Law Section is sponsoring a free screening of “ Crime After Crime,” the award-winning documentary from director Yoav Potash. I saw the film last year, and loved it:

“Crime” and “land use lawyers” are phrases not usually heard together; in most cases, the worlds of criminal law and land use never intersect, and lawyers for developers and property owners don’t have much occasion to visit the “Attorney’s Room” at the state pen. But in the documentary film Crime After Crime, two land use lawyers including our State and Local Government Law Section colleague Nadia Costa (Vice-Chair of the Section’s Land Use Committee), plunge into that unfamiliar milieu.

Read my complete review here.Continue Reading ABA Midyear, New Orleans: Free Screening Of “Crime After Crime” (Feb. 4, 10 am)

Most of the cert petitions about eminent domain in recent years have focused on the “public use” side of the equation, and not on the “just compensation” side. That’s not surprising, since the Kelo issue (the power to take) has been the object of intense public interest, so much so that as eminent domain lawyers, we no longer pass under the public radar. (We say “most” since there have been a few petitions on the compensation issue, all denied. Here for example.)

But now comes this cert petition (River Center LLC v. The Dormitory Authority of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012)) which presents three questions focused directly on the Just Compensation Clause. It’s a case we’ve been following as it worked its way up through the New York state court system, and it is now ripe for U.S. Supreme Court …

Continue Reading New Cert Petition: Just Compensation For Development Potential, Inequitable Precondemnation Activities