October 2014

Mark your calendars for Friday, October 24, 2014, the date of the Hawaii Bar Association Convention, in Honolulu. As noted here, the HSBA’s Appellate Law Section is sponsoring a three-hour session featuring the Chief Justice of the Hawaii Supreme Court, the Chief Judge of the Intermediate Court of Appeals, other justices and judges, and appellate practitioners with insider views of the appellate courts. 

If that’s not enough to get you there, you can fulfill your entire CLE yearly requirement in one session, also. A must-attend for you appellate nerds (or anyone else interested in how the common law develops in our fair jurisdiction). 

More on the program from Rebecca Copeland’s Record on Appeal blog, including registration information. 

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Hawaii Appellate Section’s Fourth Annual Meet & Greet

Continue Reading Appellate Practice CLE At Hawaii Bar Convention

If that title doesn’t grab you, nothing will. Here’s the description of an upcoming program from the American Planning Association that looks awfully interesting:  

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Sex, Guns & Drugs:  Planning for Controversial Land Useson Wednesday, October 22nd from 1:00 to 2:30 PM CST. Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. Presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink, this webcast will explore if and where controversial businesses belong in communities.

The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms. But it’s not that simple. Businesses that rely on these constitutional guarantees continue to generate controversy in communities across the country. To compound matters, state legislatures from Arizona to Massachusetts have been busy granting new — and in many cases, previously unheard of — rights to marijuana and firearm retailers.This has rapidly drawn planners and zoning practitioners into the debate over how these businesses best fit into their communities, and whether their communities are legally obligated to accommodate these uses in the first place. Spend an hour learning about the issues and regulatory strategies from around the country. 

Webcast—Sex, Guns & Drugs:  Planning for Controversial Land Uses

October 22, 2014

1:00 – 2:30 PM CST

More information here

, including registration. 
Continue Reading Upcoming Webcast: “Sex, Guns, And Drugs: Planning For Controversial Land Uses”

When the feds need medical care for prisoners, by statute, the Medicare rate is set as the full compensation owed to medical services providers. One of those providers, Baker County Medical Services, sued in U.S. District Court, seeking a declaration that the statute is a taking because, “it is forced to render emergency medical care to federal detainees but its compensation for such treatment is limited to the Medicare rate, an amount less than its actual costs.” 

Short answer, according to the 11th Circuit in Baker County Medical Services, Inc. v. U.S. Att’y General, No. 13-13917 (Aug. 14, 2014): no.

The reason: Baker County Medical chose to treat all emergency patients, including federal prisoners, so can’t complain that the pay is not enough:

Even so, a long line of cases instructs that no taking occurs where a person or entity voluntarily participates in a regulated program or activity. We…

Continue Reading 11th Cir: Voluntarily Treating Federal Prisoners Means No Takings Claim For Partial Reimbursement For Medical Costs

Ah, Williamson County. We’ve ranted about it before, so we won’t do so here (again). But takings mavens know that a property owner must meet two tests before she can raise a takings claim against a state or local government in federal court: the state or local government must have reached a final decision on the uses to which her property may be put, and she must seek (and be denied) just compensation via state procedures.

We’ve always viewed both parts of the test as very “takings-specific” and not really applicable to other areas. The rationale supporting the final decision requirement is that a court really can’t tell whether property has been “taken” until it understands what uses may be allowed by the state or local government. Absent such a decision, the government may allow some economically beneficial use. Similarly, the state procedures test rationale is that a…

Continue Reading 2d Cir Extends Williamson County Ripeness “Final Decision” Requirement To ADA Claims

You mght read the headline of this post and naturally say to yourself, “well, that’s obvious.” But to the Eleventh Circuit in Kentner v. City of Sanibel, 750 F.3d 1274 (11th Cir. 2014), it wasn’t.

In that case, the court concluded that riparian rights are not “fundamental rights” protected by the Due Process Clause from arbitrary and capricious government action, in this case, a ban on the construction of docks and piers (except, apparently, city-owned docks and piers). The court concluded that riparian rights are not “fundamental” rights because they are merely “state-created” rights.

After we read it, the court’s rationale was so inexplicable we asked aloud, “[i]f you can figure out the court’s logic about why riparian rights are not fundamental, and what is a ‘state-created’ right (in contrast to a state-created right created by legislative act, or why the legislature’s hand triggers greater scrutiny than mere…

Continue Reading New Cert Petition: Isn’t Property A Fundamental Right?