2017

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Chris Leong and the CJ’s

Earlier today, I spoke to the Hawaii State Bar Association in a session sponsored and produced by the HSBA’s Appellate Section (the best section in the HSBA, by the way), titled “The Top Ten Appellate Traps (And How To Avoid Them).”

My Damon Key colleague Chris Leong (also an appellate guy) moderated a following panel discussion with Chief Justice Recktenwald (HAWSCT), Chief Judge Nakamura (Intermediate Court of Appeals), and Clyde Wadsworth (Hawaii Solicitor General) on insider’s appellate tips and do’s and don’ts from the bench and lectern. 

Here are the materials and the cases which I mentioned during my session:

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Continue Reading Hawaii Appellate Traps (And How To Avoid Them) – Materials And Links From Today’s Session

This just in: the Hawaii Supreme Court has rendered a unanimous opinion in Leone v. County of Maui, No. SCAP-15-599 (Oct. 16, 2017), a case we’ve naturally been following because it involves regulatory takings (and we were involved in a similar case on a neighboring property). 

We haven’t had a chance to review the 48-page opinion in detail (once we do so, we will post a more detailed review), but the issue the court was presented with was, as we noted here, whether leaving land in its vacant state court be considered an economically beneficial use. Short story is that the court held yes, it could, thus seeming to create a lower court split (hello, cert petition) with at least one other court, the Federal Circuit in Lost Tree, concluding that economically beneficial use means more than someone might buy it down the road. 

There’s…

Continue Reading Conflict Check: Hawaii Adds To Lower Court Regulatory Takings Split: Is Leaving Land Vacant On The Hope It Is Worth More In The Future “Economically Beneficial Use”?

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University of Hawaii Law School Professor David Callies last night was presented with William and Mary Law School’s Brigham-Kanner Property Rights Prize which is “presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.” 

As W&M notes about Professor Callies, a “prolific scholar whose work explores land use, property, and state and local government law, Callies has lectured around the world and authored or collaborated on about 90 articles and 20 books. He has been a member of the prestigious American Law Institute since 1990 and is the Benjamin A. Kudo Professor of Law at the University of Hawaiʻi at Mānoa. Prior to entering academia, he was an attorney in private practice and an assistant state’s attorney.”

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We’re spending today in a series of panels which explore and build upon Professor Callies’ lifetime of work. Michael Berger, a past Prize winner, kicked off…

Continue Reading Professor David Callies Awarded William & Mary Law’s Brigham-Kanner Property Rights Prize

Survey

A lot of you read or get published in The Urban Lawyer, the scholarly journal published the ABA’s Section of State and Local Government Law (my Section). It’s our flagship publication: it is published quarterly, and has the largest circulation of any journal devoted to the Section’s subjects. A subscription is included as part of your Section membership. 

Publishing has changed a lot since the journal was first published half a century ago, and we’ve commissioned a short survey to ask readers and authors in which direction they want the journal, and our other Section publications (State and Local Law News (the newsletter), and the e-News (a monthly quick update) to go. 

So please take a couple of minutes, and complete the survey. It won’t take long. Tell us what you want — a hard copy delivered to your mailbox like now, a searchable pdf version…

Continue Reading Urban Lawyer Survey

A quick one since we’re in transit, and don’t really have time to post much. But that doesn’t mean that the Fifth Circuit’s opinion in Boerschig v. Trans-Pecos Pipeline, L.L.C. , No.  16-50931 (Oct. 3, 2017), isn’t worth your time to read in-depth. 

Here’s the setup:

Texas law allows a natural gas utility to condemn land for “public use.” Tex. Util Code § 181.004; Tex. Const. art. I, § 17(a). Trans-Pecos Pipeline, LLC exercised that authority and initiated a condemnation proceeding to obtain a 50-foot wide permanent right-of-way and easement on John Boerschig’s ranch. The ranch is along the route of a 148-mile pipeline Trans-Pecos is constructing in west Texas that terminates at the Mexican border in the middle of the Rio Grande.

Boerschig contends that by ceding condemnation power to a private company, Texas eminent domain law offends due process. His argument principally relies on the private nondelegation…

Continue Reading 5th Circuit: Texas Delegating Eminent Domain Power To A Private Pipeline Isn’t A Due Process Problem

The HSBA Bar Convention is being held on Wednesday, October 18, 2017 at the Hawaii Convention Center.

The Appellate Section has a wonderful line-up for the morning (9:00 am – Noon), and our wonderful line-up of speakers:

  • Robert Thomas, of Damon Key Leong Kupchak Hastert, will provide tips and solutions on the top 10 appellate traps; 
  • Hawaii Attorney General Doug Chin and Deputy Attorney General Deirdre Marie-Iha will provide an update on the travel ban litigation (only a few days after their upcoming United States Supreme Court oral argument), and tips and advice based on unique appellate procedure that has arisen during the litigation; and
  • Our popular Appellate Panel with guests HAWSCT Chief Justice Mark Recktenwald, ICA Chief Judge Craig Nakamura, and Hawaii Solicitor General Clyde Wadsworth.

Here is a link to register on-line, and by Wed. 9/27, there is an early bird discount: 

 http://hsba.org/HSBA/HSBA_CLE/2017_HSBA_Bar_Convention/HSBA/HSBA_CLE/HSBA_Bar_Convention/HSBA_Bar_Convention.aspx?hkey=aa3b38fd-1670-478f-8ab2-384cec22804cContinue Reading HSBA Annual Meeting: Ten Appellate Traps, And How To Avoid Them

Chucknorris
No, this isn’t the billboard.

As the title of Dep’t of Transportation v. Adams Outdoor Advertising of Charlotte LP, No. 206PA16 (Sep. 29, 2017) might indicate, this is a condemnation case involving billboard valuation in North Carolina. But the issues in the case go much deeper, we think.

On the surface, the North Carolina Supreme Court resolved a question of which state statute applies when the DOT acquires land on which an income-generating billboard is located: a statute which requires DOT to pay “fair market value of the property at the time of the taking” when it takes property for highway purposes (Article 9), or a statute which requires inclusion of the “value of the outdoor advertising” in compensation when certain prohibited billboards on leased land are condemned (Article 11) in order to remove them. The billboard was one of those now-prohibited billboards (it was a nonconforming use, since…

Continue Reading NC: Evidence Of Rental Income From A Billboard Is Admissible In Just Comp Trial

ALI-CLE2018

It’s not too early to reserve your spot at the 35th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Francis Marion Hotel in historic downtown Charleston, South Carolina, January 25-27, 2018. 

We’re finalizing the Conference details, but can report that the program will, as usual, feature expert presenters from across the nation, and both an in-depth update on the subjects we love, and a “101” track for those new to the field or who would appreciate a refresher. Check out some of the topics:

  • Takings and Damaging by Flood: Case Selection Advice For Savvy Practitioners
  • Quarterbacking the Case: Blocking Defenses, Controlling the Witnesses, and Converting for Verdicts
  • We’ve Been Working on the Railroad: Utility Crossing Disputes
  • Protecting Your Record,and Anticipating Appeals
  • Lucas 25 Years Later: Property Rights in the Age of Global Warming
  • Building and Growing Your Eminent Domain Practice With

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Continue Reading 2018 ALI-CLE Eminent Domain Conference: Early-Bird Registration Discount Now Posted

It’s no secret: along with a lot of our colleagues, we have thought for a long time that the Supreme Court needs to address the “final decision” prong of the Williamson County ripeness test. Ever since four Justices in 2005 concurred in San Remo Hotel to say so, we’ve been anticipating the case which presents the Court with the vehicle to finally present that issue. There have been a lot of attempts in the interim, but none so far successful (here’s the latest, a case asking the Court to overrule Williamson).

Meanwhile, the lower courts have been steadily chipping away (see this decision, for example) at Williamson County, concluding it is a prudential doctrine, that further applications would be futile, that it doesn’t apply to facial claims, and similar. 

Here’s another cert petition, recently filed, that doesn’t call for overruling Williamson County outright…

Continue Reading New Williamson County Cert Petition: How Far Down The Rabbit Hole Does The “Final Decision” Requirement Take Us?

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Back when the opinion was first released, we posted a list of Murr v. Wisconsin links. Now that Court is nearly back from its summer vacation, here’s an updated list:

Will there be more? No doubt. Murr is the takings case that keeps on giving. Continue Reading The Takings Case That Keeps On Giving: Murr Round-Up, Continued