42 U.S.C. § 1983 | Civil Rights

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Here’s the amicus brief of the American Association for Justice (fka Association of Trial Lawyers of America) supporting the respondent in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts.

Earlier, we filed an amicus brief on behalf of the American Bar Association supporting the petitioner, and other organization also filed briefs in support (posted here). The petitioner’s merits brief is posted here. Oral argument is set for January 17, 2012.

More on this case as it becomes available.Continue Reading Trial Lawyers’ Amicus Brief In Filarsky: Common Law Did Not Recognize Private Attorney Immunity In 1871

Here’s the respondent’s merits brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts.

We filed an amicus brief supporting the petitioner for the American Bar Association, arguing that he should be able to claim those immunities. Other amici weighed in on the petitioner’s side also.

Brief of Respondent, Filarsky v Delia, No. 10-1018 (filed 12-14-2011)bsContinue Reading Respondent’s Merits Brief In Filarksy: Is A Private Lawyer Retained To Represent Government Entitled To Claim Qualified Immunity?

Today was the day we were to have found out whether the Supreme Court would review Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011). That’s the case seeking review of the Hawaii Supreme Court’s opinion which concluded that challengers to the property tax exemptions conferred on lessees of Hawaiian Homesteads lacked standing to bring suit. More from today’s Star-Advertiser report Court might hear case testing state benefits for Hawaiians.

Today, however, the Court released an order inviting the U.S. Solicitor General to express the views of the federal government, usually a sign that the Court has some interest in a case. No doubt the Court asked for the SG’s views because the cert petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. When federal laws are so questioned, the federal government…

Continue Reading SCOTUS Asks For Fed Input In Case Asking Whether Hawaiian Homes Property Tax Exemption Is Racial Discrimination

Einstein460x276No less a light than Albert Einstein is reported to have said that the “definition of insanity is doing the same thing over and over again and expecting different results.” That quote has always seemed more apocryphal than accurate to us, but it’s a good definition regardless of who first uttered it.

Exhibit “A” appended to that definition might be New York City’s “emergency” housing Rent Stablization Law, adopted for the first time in 1969 and renewed eleven times since. The RSL controls how much rent the owners of rent-stablized apartments may charge their tenants (you know, to keep poor folk like Faye Dunaway in their apartments). The city’s justification for the RSL is to deal with a series of housing “emergencies” (initially, the “effects of war and the aftermath of hostilities,” and then any rise in the city’s vacancy rate above 5%), and to allow a “transition from regulation…

Continue Reading What’s That Definition Of “Insanity” Again?

Update: The Court has invited the Solicitor General to provide the views of the federal government, so we’re still on hold.

At its December 9, 2011 conference, the U.S. Supreme Court will consider whether to review Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011). That’s the case seeking review of the Hawaii Supreme Court’s opinion which concluded that challengers to the property tax exemptions conferred on lessees of Hawaiian Homesteads lacked standing to bring suit.

Some background. Only “native Hawaiians” are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the property tax exemptions. The Hawaii court dismissed the case for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians).

The challengers filed a cert petition…

Continue Reading Final Briefs In Hawaii SCOTUS Case: Is The Hawaiian Homes Property Tax Exemption Racial Discrimination?

Last week, we filed the ABA’s amicus brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts. Our brief for the ABA supports the lawyer-petitioner, arguing that he should be able to claim those immunities.

Here are the other top-side amicus briefs supporting the petitioner:

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Continue Reading More Amicus Briefs In Filarsky: A Private Lawyer Retained To Represent Government Is Entitled To Claim Qualified Immunity

Today on behalf of the American Bar Association, we filed this amicus brief in Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011).

The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It’s not a land use case, but since every land use and takings lawyer must know the contours of section 1983 law, we thought we’d follow along. Of course, the issue is also of great interest to the ABA’s State & Local Government Law Section (I chair the Section’s Condemnation Law Practice Area, and run the CLE programs for the Section), so when ABA asked if we and our SLG colleagues would do a brief, we naturally agreed.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion …

Continue Reading New SCOTUS Brief: A Private Lawyer Retained To Represent Government Is Entitled To Claim Qualified Immunity

Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011) is not the typical case for this blog. It’s not a land use case, and involves a question of the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983.

But since section 1983 claims and defenses are something that every land use lawyer must understand, we thought we’d post it, even though it involves an employment matter.

The issue in the case is whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city employee, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions.

In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of the Supreme Court…

Continue Reading Is A Private Lawyer Retained To Represent Government Entitled To Claim Qualified Immunity?

palazzolo

From The Day comes the sad news that Anthony Palazzolo, the namesake of the U.S. Supreme Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), has died.

Anthony Palazzolo, whose fight to develop his property in Misquamicut made its way to the U.S. Supreme Court, died Nov. 3 at the age of 91.

Palazzolo, a former auto wrecker and lifelong resident of Westerly, sued the state of Rhode Island for 17 years before ending his fight in 2005.

The case pitted environmentalists and property-rights activists from across the country. Environmental officials said Palazzolo’s plan to fill and develop his wetlands would “strangle” Winnapaug Pond, since the marsh is a habitat for fish and shellfish, and filters and cleanses waters that end up in the pond.

Read the entire story here.

My PLF colleague Jim Burling argued the case on behalf of Mr. Palazzolo. Continue Reading Anthony Palazzolo (1918-2011)

We’ve been thinking a lot about exactions lately.

First, it was the petition for certiorari in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), which asks whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land. Then, late last week the Florida Supreme Court disagreed with the California and Texas Supreme Courts, and held in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011) that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation.

Now we’re back to the West Linn case, since the parties have filed their final briefs, and the Court is scheduled to decide whether to take the case at its upcoming November 10, 2011 conference. So…

Continue Reading Final Cert Briefs In West Linn Case: Are Nollan And Dolan Limited To Exactions Of Land?