2015

Who gets counted for reapportionment purposes?

Everyone!

Please forgive the deviation (a pun for our election law colleagues) from the blog’s usual land use and takings fare, but frequent readers understand that we also have an interest in election law, and occasionally post up items of interest.

Today we filed this amici brief in Evenwel v. Abbott, No. 14-940, the case on appeal to the Supreme Court which asks which “population” states must use when reapportioning their state legislatures and drawing district boundaries. We’ve covered this case, as well as our own case in which we (unsuccessfully) challenged Hawaii’s practice of basing reapportionment on  “permanent residents” and excluding military personnel and their families. Our brief argues:

The parties in this case suggest answers to a deceptively simple question: who constitutes the body politic in the states? This question is one the Court has avoided answering explicitly for nearly half a century. Amici…

Continue Reading Amici Brief In SCOTUS Reapportionment Case: Close Scrutiny For Anything Less Than Total Population

We’re continuing our Detroit-themed posts today, with this one about auto bailouts and takings.

We generally don’t post trial court decisions, preferring to wait until we have a published opinion from a court of appeals. But from time to time, we have made exceptions, like here, where the counsel involved are well-known and the issue looks like one that might eventually go up the chain, and indeed has once already.

So it is in Colonial Chevrolet Co., Inc. v. United States, No. 10-647C (Sep. 9, 2015), in which the Court of Federal Claims denied the government’s motion to dismiss a takings claim. The plaintiffs are (former) General Motors and Chrysler dealers whose dealership contracts were sloughed off as part of the $38 billion bailout of the auto manufacturers. As part of the deal, the companies were required to cancel many of their franchise agreements, “forcing the dealerships to close.” According to the plaintiffs, “Chrysler …

Continue Reading CFC: Auto Bailout Could Have Resulted In A Taking Of Dealerships’ Contracts

20150919_170343

We’re in Detroit and environs for the weekend, doing some scouting for an upcoming meeting of the ABA’s Section of State and Local Government Law.

Had a Faygo Redpop at the site of Tiger Stadium in Corktown, dinner in Poletown, a fresh peach at the Saturday Eastern Market, and read this recent Sixth Circuit opinion reinstating the Insane Clown Posse‘s lawsuit against federal prosecutors over the DOJ’s inclusion of Juggalos on its gang list.  

Although things look like they’re on the uptick here, Detroit has a long way to go. For some insight on how they got this bad, check out Professor Kanner’s recent article, “Detroit and the Decline of Urban America,” 2013 Mich. State. L. Rev. 1547 (2013). 

Parsons v. U.S. Dep’t of Justice, No. 14-1848 (6th Cir. Sep. 17, 2015)

Continue Reading Detroit Travelogue

We’re not exactly sure why, but the facts in State of Texas v. Treeline Partners, Ltd., No. from the Texas Court of Appeals just crack us up.

First, the court comes up with a definition of “lowball” —

In attempting to ask potential jurors whether they believe that the State “lowballs,” the State’s attorney properly inquired about whether the venire members held a preexisting bias or prejudice that the State underestimates property values. See WEBSTER’S NEW WORLD COLLEGE DICTIONARY 801 (3d ed. 1996) (defining “lowball” as a verb meaning “to give an understated price, estimate, etc. to (someone), esp. without intending to honor it” or “to so understate (a price, etc.)”).

Slip op. at 7. Save that one for your briefwriting databank.

The case involved the State’s attempt to ask potential jurors and make arguments about whether they believed that the State lowballs eminent domain valuations. Now the…

Continue Reading Condemnor Entitled To Ask Jurors Whether They Believe DOT “Lowballs,” If Condemnor Hints It Does

In those states with a commission process in condemnation, any guess where an appellate court comprised of judges will come down on who gets to make the final call about what evidence is admissible — a judge or the commissioners?

Well, if you guessed the judge, you’d be right. In Regional Transportation Dist. v. 750 W. 48th Ave., LLC, No. 14SC64 (Sep. 14, 2015), the Colorado Supreme Court summed up the applicable rule of law succinctly: “commissioners have some implicit authority to make evidentiary rulings without the oversight of the trial judge,” but “the judge is still the judge,” and she gets the final call. Slip op. at 11. So the commissioners cannot “overrule” or “reconsider” a judge’s earlier ruling that evidence is admissible, nor can they ignore a judge’s instruction that they disregard other evidence.

It shouldn’t have been too hard to presage that judges would conclude that judges have the final say (judges, not lay commissioners, are…

Continue Reading Colorado: Judicial Evidentiary Rulings, Not Commission’s, Control In Eminent Domain Valuation Hearings

Here’s the cert petition you knew was coming, which asks the U.S. Supreme Court to review the California Supreme Court’s decision upholding the City of San Jose’s “inclusionary housing” requirement by applying rational basis review. The California court held the requirement was not an “exaction,” and was no more than a mere zoning regulation or price control. 

Here’s the Question Presented:

A San Jose, California, ordinance conditions housing development permits upon a requirement that developers sell 15% of their newly-built homes for less than market value to city-designated buyers. Alternatively, developers may pay the city a fee in lieu. The California Supreme Court held that, even where such legislatively-mandated conditions are unrelated to the developments on which they are imposed, they are subject only to rational basis review.

This raises an issue on which the state courts of last resort and federal circuit courts of appeal are split nationwide. The…

Continue Reading Cert Petition: Requirement That Developers Set Aside “Affordable” Units Is Subject To More Than Rational Basis Review

As noted in the Honolulu Civil Beat story, “Hawaii AG Backs Vermont GMO Labeling Law,” Hawaii has signed on to an amici brief in support of the State of Vermont in the Second Circuit appeal of a Vermont federal court’s ruling which rejected a challenge to Vermont’s requirement to label GMO products. The Civil Beat story reports on the brief, but as far as we can tell, doesn’t actually post the brief. Law nerds rejoice: here it is.

What is intriguing is that Hawaii chose to join this brief. Recall that Hawaii has no statewide GMO labeling laws, although it does have comprehensive laws that address the topic of GMO’s, a conclusion reached by at least two federal courts in challenges to county-adopted ordinances which deal with GMO issues (although none of the ordinances involve labeling). [Disclosure: we represented an amicus party in one of those District…

Continue Reading Hawaii Joins Amici Brief In 2d Cir GMO Labeling Appeal

I’ve put off posting this for a while, but it now feels like the right time.

Back in May, Chuck Hurd — an old mentor and colleague — passed away. When I was fresh out of law school, Chuck (known as “CHH” to us in the firm) was one of the first experienced lawyers to take me under his wing and offer the guidance that was sorely needed as I flailed about in court and on paper. His mentoring and friendship was one of the primary reasons I joined my firm. He was at the time a “courtroom warrior,” but as his obituary notes, he evolved to “peacemaker,” and devoted his energies to resolving problems as a mediator.

Although eventually he departed the firm to set up his own shop, we kept in touch over the years. To my regret, not as formally as we should have, but when we’d see each…

Continue Reading Aloha, Chuck Hurd