42 U.S.C. § 1983 | Civil Rights

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Before we get to today’s post (kindly provided by our colleague and friend Paul Schwind), and the Ninth Circuit briefs, here’s some background on the cases he writes about. 

On June 10, 2014, the Ninth Circuit will ride circuit to Honolulu and hear oral arguments in a case which we’ve posted about before. The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians). The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Under Hawaii’s statewide land use planning scheme, the LUC, a state agency, has jurisdiction over these “boundary amendments,” which look and act a whole lot like a change in municipal zoning for those of…

Continue Reading Guest Post: Upcoming Ninth Circuit Oral Argument In Bridge Aina Lea: Pullman Abstention, Williamson County Ripeness, And Absolute Immunity

Update: PLF’s Dave Breemer on the decision “In a New Victory, Court Blasts Rules Barring Court Access for Property Owners,” while Gideon Kanner adds his thoughts in “Be Still, My Heart! Second Circuit Rules for a Property Owner In a Stinging Inverse Condemnation Opinion.” 

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Check this out, just received: In Sherman v. Town of Chester, No. 13-1503-cv (May 16, 2014), the U.S. Court of Appeals for the Second Circuit held that a takings claim was ripe, and that Williamson County does not stand in the way. 

We love the way this opinion starts off, with a literary reference:

Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But thing were not so simple on Catch-22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of…

Continue Reading 2d Cir and Catch-22: Takings Case Ripe, “Seeking a final decision from the Town would be futile”

Back in October, we had the honor of moderating a discussion about the ripeness issue in takings law at the 40th Anniversary Symposium on The Takings Issue at Touro Law School (see here and here for more). Professor Vicki Been and Pacific Legal Foundation’s J. David Breemer were the panelists, each weighing in on how Williamson County came to be, and what future the rule may have, if any. 

The Touro Law Review has now published Dave’s article, “The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement.” Here’s the summary:

This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings …

Continue Reading New Article Of Note: The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement

One portion of the federal Uniform Relocation Act, 42 U.S.C. § 4651, requires Federal agencies participating in projects requiring the acquisition of private property to be guided by certain policies that “assure consistent treatment for owners . . . and . . . .promote public confidence in Federal land acquisition practices,” such as (and we’re paraphrasing here), do it as quickly as possible, try to get it by negotation, don’t use condemnation to leverage a lower negotiated price, and so forth. 

These policies apply to state and local condemnors when their projects involve federal funding, and in Clear Sky Car Wash LLC v. City of Chesapeake, No. 13-1492 (4th Cir. Feb. 21, 2014), the owner whose property was being condemned by the Virginia Department of Transportation asserted VDOT was not following the rules. VDOT instituted a “quick take” eminent domain action in state court, and Clear Sky went to federal…

Continue Reading 4th Cir: Uniform Relocation Act Requirements Are Like The Pirate’s Code – “More What You’d Call ‘Guidelines,’ Than Actual Rules”

Looks like eminent domain and Hawaii are in the news today. Here’s what we’re reading:

Related articles
Scalia predicts Kelo will fall, but Korematsu would stand

Continue Reading Tuesday Round-Up: Hawaii In The Eminent Domain Spotlight

Here’s the latest foray into the judicial takings arena. In this cert petition, a beverage distributor asserts that the Connecticut Supreme Court’s decision altering established property rights in unclaimed refund values in bottles resulted in a taking. 

Here are the Questions Presented:

For nearly 30 years, Connecticut beverage distributors had established property rights in socalled “unclaimed refund values” accumulated in conjunction with the State’s bottle return regulatory scheme. The Connecticut Supreme Court eliminated these rights in holding that a recent amendment to the regulatory scheme did not affirmatively vest distributors with an interest in the so-called unclaimed refund values, allowing the State to retroactively take the distributors’ property.

1.  Did the Connecticut Supreme Court’s opinion eliminating an established property right, and allowing the State to retroactively take the petitioners’ property, effect a “judicial taking” in violation of the Fifth and Fourteenth Amendments to the United States Constitution?

2.  Did the Connecticut Supreme Court’s opinion arbitrarily deprive distributors of their property in violation of the…

Continue Reading New Cert Petition: State Court Altering Bottle Refund Rights A Judicial Taking

Check this out. In Patel v. City of Los Angeles, No. 08-56567 (Dec. 24, 2013), the en banc Ninth Circuit concluded that a city ordinance which requires hotel owners to open guest records for inspection to the LAPD without a warrant constitutes a “search,” and that doing so is a facial violation of the Fourth Amendment. As summarized by the court:

Plaintiffs, who are motel owners in Los Angeles, challenged the provision of § 41.49 authorizing warrantless, on-site inspections of hotel guest records by any police officer. The en banc court held that a police officer’s nonconsensual inspection of hotel guest records under § 41.49 constituted a Fourth Amendment “search.” The en banc court also held that even under the more lenient Fourth Amendment principles governing administrative record inspections, § 41.49 was facially invalid. The en banc court concluded that in order for the city to comply with the Fourth Amendment, it must afford hotel operators an opportunity to challenge…

Continue Reading En Banc 9th Cir: LA Ordinance Allowing Inspection Of Hotel Records Facially Invalid

Civil pro wonks, get ready: we all know that under the Full Faith and Credit Clause, states are required to give the judgments of another state the same respect that those judgments would receive in the courts of the other state. That principle remains the same whether the judgment is issued by a state court, or a federal court exercising diversity jurisdiction. The Supremacy Clause also reinforces the notion that a state court must respect and enforce a federal court’s judgment, and can’t simply blow it off.

But what does a litigant do when she claims that a state court isn’t giving full faith and credit to an earlier federal court judgment that she claims settled a dispute? Is her remedy limited to an appeal to a state appeals court and ultimately the U.S Supreme Court by way of certiorari review? Or can she bring an original jurisdiction action…

Continue Reading New Cert Petition: How Do You Enforce The Full Faith And Credit Clause (And What Is A Judicial Taking)?

Here’s the latest brief in the Democratic Party’s federal court challenge to Hawaii’s “open primary” system (the Party’s reply brief, which both is its final word supporting its motion for summary judgment, and its response to the State of Hawaii’s counter-motion for summary judgment).

This brief responds to the State’s argument that the mandatory open primary (in which voters can pull a ballot for any party on election day, regardless of the voter’s party affiliation or nonaffiliation) isn’t that much of a burden on the Democrats’ freedom to associate with whom they choose. The Party asserts its associational rights are overly burdened by prohibiting it from insuring that its card-carrying members are the ones who are making the choice for the Party’s general election standard-bearer.

Yes, the brief argues, Hawaii may be overwhelmingly blue, but don’t penalize us for being good at what we do by making…

Continue Reading Hawaii Dem Party In Open Primary Challenge: Hawaii Citizens “Think One Way,” So Don’t Reward Incompetent Parties By Violating Our Associational Rights

Here’s some news: the State of Hawaii thinks that Hawaii has a “vibrant multi-party system.”

Really?

The reality, of course, is not only different, it is much different, as a summary of the situation by Honolulu Civil Beat (“One-Party Dominance“) points out. An overwhelmingly Democratic congressional delegation, a nearly one-party legislature, only one non-Democratic governor since the initial post-statehood Bill Quinn (R), etcetera, etcetera, etcetera.

Here’s more interesting news. To all you “crossover” voters who pulled one party or another’s ballot in Hawaii’s “open primary” election: the State of Hawaii says that by doing so, you are affiliating with that party. Well, at least enough that the primary system is not violating the Party’s right to association with whom it wants, meaning most likely not you.

These are among the gems to be gleaned from the State’s counter-motion for summary judgment and memorandum in opp to the…

Continue Reading State Of Hawaii: Open Primary Is Constitutional Because Pulling A Democratic Ballot Is “An Act Of Affiliation With The Democratic Party”