42 U.S.C. § 1983 | Civil Rights

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This just in: in Leone v. County of Maui, No. 29696 (June 22, 2012), the Hawaii Intermediate Court of Appeals held that a plaintiff alleging a regulatory taking is not required to seek an amendment to a Community Plan in order to ripen her claim. A CP amendment is a legislative act, and plaintiffs are not required to try to change the law before they seeks just compensation. 

The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have tried to change offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.

Disclosure: we filed an amicus brief in the case in support of the property owner, arguing that Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) does not require a takings plaintiff to…

Continue Reading HAWICA: Plaintiff Need Not Change The Law To Ripen Takings Claim Under Williamson County

Every now and then, there’s a cert petition which those who generally support the petitioner’s side of the equation secretly hope is not granted, and breathe a sigh of relief when the Court denies review. Today, we’re sure that those on the regulatory side of the table are doing just that, because the Court declined to review the Third Circuit’s decision in R&J Holding Co. v. Redevelopment Authority of Montgomery County, 670 F.3d 420 (3d Cir. Dec. 9, 2011), a case we detailed here.

In that case, the Third Circuit held that a property owner did not litigate its federal takings claims in an earlier state court case, and thus actually allowed a property owner to raise its federal constitutional claims in federal court. In its cert petition, the redevelopment agency claimed that the Third Circuit’s application of Pennsylvania preclusion law created an “unfair procedural trap” for…

Continue Reading Cert Denied In Williamson County Case

Recently, in Intellectual Laziness on the Supreme Court, a short essay about the Supreme Court’s recent Equal Protection decision about unequal property assessments, Professor Richard Epstein wrote, “[i]t’s time to scrap the irrational ‘rational basis test.'” Decisions like the Ninth Circuit’s recent opinion in Samson v. City of Bainbridge Island, No. 10-35352 (9th Cir. June 15, 2012) make you think he’s onto something.

We were about to do a detailed post about the case, when our partner Mark Murakami beat us to it, so we won’t repeat the facts or the panel’s analysis (more accurately, lack of analysis, given the application of the “rational basis” test) here. Instead, we offer these thoughts:

  • A property owner can win in state court, and obtain a ruling that a temporary building moratorium is unconstitutional, but a permanent prohibition is not? That’s because the ruling was one of Washington state

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Continue Reading 9th Circuit Weeps For Property Owners Subject To “Long Odyssey,” But Still Rules Against Them

Here’s the cert petition in a case we’ve been following that presents a question that has divided the lower courts – do the nexus and rough proportionality tests for whether a land use exaction works a taking apply to exactions of cash, or are they limited to land exactions? In St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011), the Florida Supreme Court added to the lower court split when it held under both the U.S. and Florida Constitutions that the Nollan and Dolan tests are only applicable “where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.”

The property owner has now sought U.S. Supreme…

Continue Reading New Cert Petition: Nollan/Dolan Not Limited To Land Exactions

This just in: the Ninth Circuit has issued an opinion in Kaahumanu v. State of Hawaii Dep’t of Land and Natural Resources, No. 10-15645 (June 6, 2012), the case challenging the State’s regulation of commercial weddings on state beaches under the First Amendment. The court mostly upheld the regulations, but struck down the power of government officials to revoke a permit and modify it.

More, after a chance to digest the opinion.

Kaahumanu v. Dep’t of Land and Natural Resources, No. 10-15645 (9th Cir June 6, 2012)Continue Reading 9th Circuit: Hawaii’s Regulation Of Commercial Beach Weddings Does Not Violate First Amendment, Except…

The federal government has filed its invitation brief in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the cert petition asking the U.S. Supreme Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptons conferred on lessees of Hawaiian Homesteads.

Only “native Hawaiians” are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the tax exemptions. The petitioners are not “native Hawaiians” and thus are not lessees, and paid their property taxes under protest. When they sought refunds in the Hawaii Tax Appeals Court and argued that they should also be exempt, that court concluded that “native Hawaiian” was not a racial classification and did not review the tax exemption with strict scrutiny. Instead, the court upheld the exemption under rational basis review. The Hawaii Supreme Court vacated the Tax Court decision…

Continue Reading Obama Administration’s Amicus Brief: Deny Cert To Case Challenging Property Tax Exemptions For Hawaiian Homestead Lessees

Update: the latest in the latest Williamson County-related cert petition here.

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If you tried to explain the practical results of Williamson County‘s ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking.

As we’ve explained many times, under Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County‘s rationale was that there is no violation of the Fifth Amendment by a state…

Continue Reading Fifth Circuit: Williamson County Ripeness Does Not Bar Due Process Claim In Federal Court

Here is the final brief (the Plaintiffs’ reply to the Chief Election Officer and Reapportionment Commission’s Memorandum in Opposition to the Plaintiffs’ Motion for Preliminary Injunction) in the federal court lawsuit challenging Hawaii’s use of “permanent resident” as its reapportionment population basis. Kostick v. Nago, No. 12-00184 (complaint filed Apr. 6, 2012).

The U.S. Census includes everyone who is a “usual resident” of Hawaii in its count of population — this includes servicemembers, their families, and university students. The Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents,” and in an opinion issued in January 2012, the Hawaii Supreme Court held this means the Commission must “extract” active duty military, their families, and university students who do not pay resident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii.

The lawsuit argues that the Equal Protection Clause guarantees …

Continue Reading Final Brief In Reapportionment Challenge: Hawaii’s Exclusion Of Military Does Not Survive “Close Constitutional Scrutiny”

No, we’re not talking about POTUS and the OBL stuff. Rather, we have more end-zone dancing from the prevailing party (a lawyer) in Filarksy v. Delia, No. 10-1018 (Apr. 19, 2012).

According to this Above the Law story, Mr. Filarsky wasn’t satisfied with an “in your face” gesture to the losing party, he’s now told the respondent’s lawyer what he can do with himself. Check it out.

But you know what really galls us about this case? It isn’t the lawyers’ sniping and the animosity that apparently goes back a ways and extends beyond this case. It isn’t that Filarksy bothering to send the letters, and the recipient bothering to make them public, have proven to the world that lawyers are indeed as cliche as lawyer jokes make us out to be. It isn’t that the commenters in the Above the Law post try and resolve which of…

Continue Reading Enough With The “Spiking The Ball?”

How hard is it for the government to obtain a Williamson County dismissal that a federal takings claim is not ripe for federal court reivew? Not too hard, says Justice Souter.

Justice Souter? But wait, didn’t he retire, you ask? Recall that Supreme Court justices who retire from the Court don’t really “retire” in the sense that they may continue to sit and hear cases in the federal courts of appeals. Justice O’Connor has done so, and Justice Souter did so in Efron v. Mora Dev. Corp., No. 11-1347 (Mar. 26, 2012, a case from the First Circuit involving a claim for a regulatory taking in Puerto Rico.

The Puerto Rico highway department condemned Efron’s land, and although he objected, the Commonwealth court transferred ownership and possession to the department. Efron then went to federal court on civil rights claims against the department and Mora Development, alleging that they…

Continue Reading Justice Souter: Dismissal Under Williamson County Is So Easy, A Caveman Could Do It