December 2015

We are on the road today, so were not going to post. But when the case title is Perfect Puppy, Inc. v. City of East Providence, No.15-1553 (Dec. 8, 2015), who could resist?  

Reading through the court of appeals’ passive-aggressive sniping at the plaintiff — a pet shop challenging the City’s ban on pet shops — it boils down to this: plaintiffs did the right thing and filed their due process and equal protection claims in state court, after which the complaint was removed to federal court by the City. In federal court, Perfect Puppy amended its complaint to allege a facial and as-applied regulatory takings claim. After which the District Court dismissed the facial takings claim and all of the other constitutional claims, except the as-applied takings challenge, which it remanded to state court under — you guessed it — Williamson County. 

The First Circuit affirmed…

Continue Reading Happiness Is Not A Perfect Puppy In The First Circuit: Removed Takings Claim Remanded As Unripe

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Today, the Honolulu Star-Advertiser published an op-ed by me, Col. David Brostrom (U.S. Army, retired), Rep. Mark Takai, who represents Hawaii’s First Congressional District in the U.S. House of Representatives, and Andrew Walden, editor and publisher of Hawaii Free Press, about the case, argued this morning in the U.S. Supreme Court about who gets counted when state legislatures get reapportioned:

Hawaii might finally be forced to include military among ‘We the People’

By David P. Brostrom, Mark Takai and Andrew Walden

December 8, 2015

“We the People.”

The familiar opening of the U.S. Constitution, announcing our most cherished principles.

Big words, for sure.

But just who are “We the People?”

The U.S. Supreme Court is now considering that question in a Texas case in which Hawaii’s decades-long exclusion of active-duty military and families from the body politic is front and center.

In Evenwel v. Abbott, the court…

Continue Reading Op-Ed: In SCOTUS One-Person, One-Vote Case, Hawaii Might Finally Be Forced To Include Military Among ‘We The People’

Who gets counted for reapportionment purposes?

Everyone!

Tomorrow, the Supreme Court is hearing oral arguments in two election law cases, Evenwel v. Abbott, No. 14-940, and Harris v. Arizona Ind. Redistricting Comm’n, No. 14-232.  We’ve covered the issues presented by these cases several times, so please forgive the continuing detour from takings law that we take whenever we get into our other favorite area, election law.

Evenwel is the sleeper case of the Term,  and may finally answer a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: all residents? U.S. citizens? Those eligible to vote? And who must they count? Think back to your Con Law I class, and the “one-person, one-vote” rule from Reynolds v. Sims, 377 U.S. 533 (1964), the case which first announced that rule, and the…

Continue Reading Lessons From Takings Law For The “One-Person, One-Vote” SCOTUS Cases

Hawaii is either 5 or 6 hours behind Eastern Time, depending on the time of year (we don’t adhere to Daylight Savings Time), so we’re a quarter-day behind the part of the country where a lot — if not most — of the important things legal, financial, and political occur. Scheduling conference calls can be a chore, too. But we’re used to it, and sometimes, being outside the national attention range can work to our advantage, and we can get away with things which — were they occurring elsewhere — would attract more scrutiny, and a more skeptical eye.  

At least that is the way it appears once you step outside the Hawaii bubble, and find out how others view things that we do.

We’re way outside the bubble this week in Washington, D.C. (a different sort of bubble altogether), doing some election law things — we’ll have some…

Continue Reading The View Of The Nai Aupuni Election From Washington, D.C.

Space. The final frontier. These are the voyages of the telescope Thirty Meter. Its five year continuing mission: to explore strange new worlds. To seek out a Conservation District Use Permit from the Board of Land and Natural Resources, and navigate the treacherous waters of Hawaii administrative law. To boldly go where twelve other telescopes have gone before! 

The “the cart before the horse,” is what the majority opinion authored by Chief Justice Recktenwald which invalidated the CDUP held the BLNR did when it “issued the permit before the contested case hearing was resolved and the hearing was held.” But the same might be said about the court’s procedural due process reasoning, because it could have reached the same result by employing a much narrower — and in our view, a much less opaque — statute-based rationale.

Dead Man Walking

Ironically — given the huge public interest in the…

Continue Reading Carts Before Horses, And Pearls Before Swine: The Hawaii Supreme Court’s Fractured Rationale For Invalidating The TMT Permit

A shorter one today. In Catalina Foothills Unified School Dist. No. 16 v. La Paloma Prop. Owners Ass’n, Inc. No. 1 CA-CV 14-0838 (Nov. 24, 2015), the Arizona Court of Appeals held that a statutory grant of power to school districts to take property for “buildings and grounds” also implied the power to take property to access those buildings and grounds.

The School District acquired La Paloma’s vacant land in a stipulated eminent domain judgment, promising that the only access to the new campus from an adjacent private road also owned by La Paloma would be on foot. The road was used by residents of the La Paloma subdivision for vehicular access.

Well, you know how these things go when you make agreements with entities with the power of eminent domain, and sure enough, after the District built a new campus, it decided that it also needed vehicular access…

Continue Reading Ariz App: Statute Giving School District Power To Take “Buildings And Grounds” Implies Power To Take Roads

One for all you civil procedure and jurisdiction wonks. The background facts are a bit detailed, so please bear with us. 

Normandy Apartments in Tulsa, Oklahoma made a series of agreements with the federal government: in return for Normandy agreeing to rent to low-income Section 8 tenants and maintain the premises, the Department of Housing and Urban Development would pay the difference between the tenant’s contribution and the rent. The last of these agreements was not with HUD, but with the Oklahoma Housing Finance Authority, although the terms were essentially the same. Normandy also agreed with HUD that in return for renting to low-income tenants, Normandy could prepay its HUD-backed mortgage. Like the Section 8 contract, this agreement obligated Normandy to maintain the premises, a standard enforced by HUD inspections.

Normandy failed several inspections, and after some back-and-forth about whether Normandy was entitled to correct the alleged failings, HUD informed it…

Continue Reading Fed Cir On Judicial Estoppel, The Tucker Act Shuffle, And Penn Central