August 2014

9780199322541_450After a couple of days detouring to election law, today we’re back to our usual programming.

We caught wind of an upcoming book (September 2014), “Private Property and Public Power: Eminent Domain in Philadelphia,” by Barnard College Professor Deborah Becher. “Her book—the first comprehensive study of a city’s eminent domain acquisitions—explores how and why Philadelphia took properties for private redevelopment between 1992 and 2007.” Sounds intriguing. More information about the book here.

Here’s an interview with Professor Becher about the book and her study, which lists some of her more controversial — and debatable — conclusions. Highlights:

  • “The problem is that pundits and activists present the transfer of ownership to a new private owner as the fundamental problem. They say that if government were to take property for a school, a highway, or a public park, abuse wouldn’t be an issue, and that all takings for new

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Continue Reading Upcoming Book: Private Property and Public Power – Eminent Domain in Philadelphia

To follow up on our earlier post about issues to look for in the legal challenge to the Hawaii Chief Elections Officer’s choice to hold the delayed Democratic Party primary election on Friday, August 15, 2014, rather than keep the 21-day window open, here are the Complaint and Motion for Temporary Restraining Order filed this morning in the circuit (trial) court on the Big Island. As we suspected might be the case, the Hawaii Supreme Court’s original jurisdiction to hear election contests was not invoked, since the relief sought by the complaint is to stop Friday’s planned election, and delay it to some other time.

You can read the documents themselves (thank you, Honolulu Civil Beat, for posting them), but here is the short version:

  • The plaintiff is Democrat Colleen Hanabusa, a candidate for the Democratic Party’s nomination as U.S. Senator. There are two claims for relief:
  • The first is a

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Continue Reading Too Soon? Lawsuit To Delay The Delayed Puna Precincts Primary Filed

Update 8/13/2014: complaint filed in circuit court on the Big Island, not the Supreme Court. More on the Complaint and motion for a TRO here. 

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It appears that the Chief Election Officer’s decision to postpone the primary election in the storm-hit Puna district on the Big Island and hold it on the Admission Day holiday on Friday, August 15 — instead of waiting for the full 21-day period which state law permits (which we covered here) — won’t go by without legal action if the reports are to be believed. See “Hanabusa May Sue to Block Friday’s Primary Election in Puna,” and “Hanabusa threatens to sue to block Friday’s election.” 

We obviously haven’t seen any lawsuit, but we have a few questions:

  • What court would have jurisdiction to consider the challenge, and does the Supreme Court have original jurisdiction as

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Continue Reading Issues To Watch In The Promised Lawsuit Challenging Hurricane Primary

We were all set to write up the New Jersey Supreme Court’s opinion in Borough of Merchantville v. Malik & Son, LLC, No. A-55 (Aug. 7, 2014) when we thought to ourselves “Tony Della Pelle and his crew at NJ Condemnation Law probably have this one covered already.” 

Sure enough, they did. See “NJ Supreme Court: Condemnor Has No Duty to Negotiate with Holder of Mortgage,” a writeup of the case by Joseph Grather. The title of that post tells you most of what you need to know about the decision: the court held that the condemnor only must engage in bona fide negotiations with the “title holder of record.” Why? Because the statute says it does, pretty plainly. Which means that it doesn’t have to engage with mortgage holders. Confirming again that old canon of statutory construction, “read the statute, read the statute, read…

Continue Reading NJ: Condemnor’s Duty Of Good Faith Only To Title Holder, aka Read The Statute

Last week, we posted our amici brief in Texas v. Clear Channel Outdoor, Inc., a case in which the Texas Supreme Court is considering two questions: first, whether a billboard owner is entitled to just compensation when the land on which it sits is taken by eminent domain, and second, what method of valuation can be used to measure compensation, if so. Here are the rest of the briefs in the case. 

Texas needed to widen a freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings. 

The court concluded the billboards are not moveable property, but are fixed…

Continue Reading Briefs In Texas Supreme Court: Is A Billboard Moveable Property?

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A Puna Voter?

Of all of the impacts of Hurricane Tropical Storm Iselle — which whacked the Big Island but thankfully not the rest of the state last Friday — the one that may be the longest lasting may be that the Democratic Party primary election for the U.S. Senate seat vacated by the death of Dan Inouye (filled in the interim by Brian Schatz, appointed by the Governor) will come down to one little district on the Big Island.

As long-time readers may know, from time-to-time we also cover election law topics, so on this beautiful post-storm and sunny Sunday, so we’re going to diverge a bit from our usual subject, because along with our colleague Mark M. Murakami, we were curious about the law governing the situation where a natural disaster interferes with an election. 

First, the tale of the tape. According to the latest…

Continue Reading The Law Behind Hawaii’s Hurricane Senate Primary Election: Let The Games Begin!

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Above is what it looks like out our downtown Honolulu office window on Saturday, August 9, 2014, at 11:30 a.m. A little gloomy, and very humid, but otherwise, just another day. According to the reports, the anticipated hurricanes, as we predicted, didn’t amount to much for us on Oahu. 

Below is downtown at about the same time yesterday morning at the corner of Bishop and King Streets. Very unusual. But speaking as someone who “braved” work yesterday (our office, along with just about everything in town, was closed), it barely rained in the downtown area. 

But better to err on the side of caution, I suppose. Also, to all of you who sent messages of concern, thank you. Thankfully nothing to be concerned about this time. 

20140808_111115Continue Reading All Clear – Hurricane No Big Deal On Oahu

Ducks

Here’s what we’re reading on this blustery Friday:

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Continue Reading Friday Links: Duck Gets Eminent Domain Power, A Small Piece Of New York City … And More

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An update from this morning for those of you wondering how things are going out here in the Hawaiian Standard Time zone with one, two, or even three hurricanes possibly bearing down on us. Here’s the view out of our office window, circa 1715 hours (that’s 5:15pm HST), August 7, 2014.  

Pretty much everything is closed down tomorrow: government offices, the state and federal courts, and private businesses, including our firm. We squeaked in an oral argument this morning in the Hawaii Supreme Court, but as of now, most folks are leaving the downtown area and heading home to hunker down. 

I’ve ridden out at least one prior Hawaii hurricane, and for whatever it’s worth, this one doesn’t have that pre-event “bad feeling” that accompanied that one, so my sense is that the next few days won’t be so bad. I hope I am right, but we’re all…

Continue Reading Still Girding – Downtown Honolulu Becoming A Ghost Town As Hurricane Bears Down

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A few have asked how we’re doing out here, with one, maybe two hurricanes apparently coming our way. Thank you for your concern.

We’re “girding” according to this story, but here is the view out of our office window, downtown Honolulu, looking east towards Waikiki and Diamond Head, circa 0630 hours, August 7, 2014. Things may change, but for now, all clear. 

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Continue Reading We’re Girding, But For Now, All Clear