2013

Cornell lawprof Robert Hockett, the guy who by all accounts thought up of the idea of using eminent domain to take “blighted” (underwater, but mostly performing) mortgages, was interviewed on “Air Occupy” about the scheme yesterday. Here’s the podcast (we originally embedded the podcast below, but the darn thing was set to play automatically and it was just supremely irritating, so we deleted it and provided the link instead).

He goes into his thoughts on the motive of the opponents, among other things.

One thing we can’t figure: how an organization (although perhaps “decentralized, hacktivist collective” would be more acceptable to the group), can get within five feet of supporting a plan that was proposed, funded, and pushed by a bunch of the same “Wall Street” types who supposedly caused the problem. Anarchy breeds strange bedfellows?Continue Reading Cornell Lawprof Talks About His Plan To Take Underwater Mortgages

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During a break at the recent ABA State and Local Government Law Fall meeting in Santa Fe, New Mexico, we took a short ride up to the town of Los Alamos for a little “nuclear tourism” at the site of the current National Lab, and, of course, the place where the first two atomic bombs were designed and build in World War II. Los Alamos was chosen as the site because it was remote, away from the prying eyes of foreign spies and the American public. That’s still probably true.

So we’re at the Bradbury Science Museum, when colleague Dwight Merriam pointed out the above letter, which tells us how the U.S. Government acquired the land it needed for the Manhattan Project. In case you can’t read the photo, here’s a transcription of the letter:

War Department

Washington

DEC — 1 1942

Mr. A.J. Connell
President and Director…

Continue Reading The Eminent Domain Angle In Nuclear Tourism

The Honolulu City Council has proposed a charter amendment that asks the voters to approve eliminating the Mayor’s current veto power over the Council’s eminent domain resolutions.

The Resolution doesn’t directly say that, of course, but what it does command is that after the Council adopts a resolution to take property, the city administration must within 90 days start the condemnation action. In other words, no mayoral veto. Currently under the Charter, the Mayor may veto resolutions of taking:

Resolutions authorizing proceedings in eminent domain shall not be acted upon on the date of introduction, but shall be laid over for at least one week before adoption. Such resolutions shall be advertised once in a daily newspaper of general circulation and may be advertised, as deemed helpful, in other newspapers at least three days before adoption by the council. Not less than three copies of such resolutions shall be filed…

Continue Reading Should The Honolulu Charter Eliminate The Already Minimal Check Of A Mayoral Veto On Eminent Domain Resolutions?

Here’s the State’s Reply Brief supporting its application for cert and responding to the landowner’s BIO in the land court registration case, In re Campbell. The brief argues that “[t]his is no minor land dispute,” and “that the State is very concerned about the ICA Opinion.”

What’s so important about the State’s claimed reservation of mineral and metallic mines that had made it put up this kind of resistance? It’s not like there’s a whole lot of mining potential on Oahu’s north shore (unless its big waves they’re after). Scroll down to page 4 to get to what we suspect is the real gold that’s at stake here: geothermal rights (something Hawaii probably has in abundance):

If this Court grants the State’s application for writ of certiorari, it will have to consider whether minerals and metallic mines were ever part of the “bundle of sticks” conveyed by a…

Continue Reading Final Brief In Land Court Registration Case

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In this eminent-domain case, a jury determined that the City of Laredo’s condemnation was
not for an authorized public use and awarded attorney’s fees and expenses to the property owner
under Texas Property Code § 21.019(c).  This fee-shifting statute authorizes the trial court to “make
an allowance to the property owner for reasonable and necessary fees” and expenses to the judgment
date, when condemnation is denied.  The City appealed the award, complaining about deficiencies
in the property owner’s attorney’s fees proof under the fee-shifting statute.  The court of appeals
reformed the award in part and, as reformed, affirmed.  ___ S.W.3d ___, ___ (Tex. App.—San
Antonio 2012).  Because we conclude that deficiencies remain in the property owner’s proof of

City of Laredo v. Montano, No. 12-274 (Tex., Oct. 25, 2013)


Continue Reading Texas: “A Lot Of Legal Research” Isn’t Good Enough To Support Eminent Domain Fees

Civil pro wonks, get ready: we all know that under the Full Faith and Credit Clause, states are required to give the judgments of another state the same respect that those judgments would receive in the courts of the other state. That principle remains the same whether the judgment is issued by a state court, or a federal court exercising diversity jurisdiction. The Supremacy Clause also reinforces the notion that a state court must respect and enforce a federal court’s judgment, and can’t simply blow it off.

But what does a litigant do when she claims that a state court isn’t giving full faith and credit to an earlier federal court judgment that she claims settled a dispute? Is her remedy limited to an appeal to a state appeals court and ultimately the U.S Supreme Court by way of certiorari review? Or can she bring an original jurisdiction action…

Continue Reading New Cert Petition: How Do You Enforce The Full Faith And Credit Clause (And What Is A Judicial Taking)?

Here’s the Response to Application for Writ of Certiorari by the State of Hawaii, which opposes the State’s cert app asking the Hawaii Supreme Court to review for grave error the Intermediate Court of Appeals’ opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013).

That’s the case in whic the ICA held that the intent of the land court registration provisions (Torrens title) in Chapter 501 of the Hawaii Revised Statutes is to “preserve the integrity of titles,” slip op. at 11, and “a certificate of title is unimpeachable and conclusive except as otherwise provided by law.” Id. That seems straightfoward enough, as any dirt lawyer in a state with a Torrens registration system knows. These systems, in which the state guarantees indefeasable title to the rights and interests reflected in the register, remain active in a…

Continue Reading Response To Cert Application In Land Court Registration Case

image from www.osborneink.com
Here’s the latest on the Hawaii Democratic Party’s federal court challenge to Hawaii’s “open primary” election system, a case we’ve covered earlier.  Both the Party and the defendant State of Hawaii have sought summary judgment, but according to this report (“Judge hints at ruling in Democratic Party’s lawsuit“), it may be too early in the case for either side to win as a matter of law.

The issue at the heart of the case is whether Hawaii’s mandatory open primary system of choosing a party’s standard-bearer to run in the general election is a “severe burden” on the Party’s right to association.  As this story by Ian Lind in Civil Beat (“Is ‘Open Primary’ a ‘Severe Burden’ on Democrats?“) notes:

That question of whether or not the “open primary” is a “severe burden” on the party will likely determine the eventual outcome of the…

Continue Reading Latest On Democrats’ Challenge To Hawaii’s Open Primary

Rent control cases rarely thrill us. They’s often long, the ordinances and rules being challenged are usuallylabyrinthian, and from our point of view, the results are mostly unsatisfying. 

The California Court of Appeal’s recent opinion in Colony Cove Properties, LLC v. City of Carson, No. B227092 (Oct. 21, 2013) doesn’t deviate from that pattern: it’s 50 pages long, the city’s mobilehome rent control system for determining a “fair” return for the park owner will make your head hurt, and in the end, the court held that the property owner was not entitled to make a profit after the payment of debt service. So we’ll leave it to you to read the details in the case itself if those issues interest you.

But what did catch our eye was the final few pages, in which the court reversed the lower court’s determination that the property owner reserving its federal takings…

Continue Reading Cal App: Rental Owner Makes “Enough,” But Can Go To Federal Court Later