Equal Protection

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Cle-logoFor those of you attending the Virginia Eminent Domain Conference, here’s the expanded papers on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” and Public Use issues.

Use the password provided at the conference to open the pdf’s. It’s the same p/w for both. If you forgot the password, email me.

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y’all are going to have to wait for a bit — after a decent interval to allow the attendees to get their money’s worth, we’ll remove the password.

For more about the cases and books we discussed yesterday during my presentation on “Virginia’s Place in National Eminent Domain Trends, check these out:

  • Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the “substantially advance” test as a takings test).

     
    Continue Reading Materials From Today’s Virginia Eminent Domain Conference

    On Tuesday, February 26, 2013, the Judiciary and Labor Committee of the Hawaii State Senate will be conducting a public hearing and taking testimony on S.B. 286, a measure which amends a state statute to define “permanent resident” as used in state reapportionment and redistricting as “any person counted as a usual resident of the state of Hawaii in the lastpreceding United States census.”

    Currently, under the Hawaii Supreme Court’s decision in Solomon v. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012), “permanent resident” is defined as “domiciliary,” which means that to be considered a permanent resident of Hawaii, a person must have a physical presence plus have exhibited an “intent to remain.”

    As you may well know, we represent the plaintiffs in Kostick v. Nago, No. 12-00184 JMS-LEK-MMM, the case challenging Hawaii’s 2012 Reapportionment Plan for violating the Equal Protection Clause (among other things). That case…

    Continue Reading Testimony On Defining “Permanent Residents” For Hawaii Reapportionment As Census Count

    The speed of the internet: we were all set to summarize our thoughts on the South Carolina Supreme Court’s opinion in Dunes West Golf Club, LLC v. Town of Mount Pleasant, No. 2011-194211 (Jan. 9, 2013), a case involving equal protection, substantive due process, and takings claims, when Dean Patty Salkin at the Law of the Land blog beat us to it. See “SC Supreme Court Finds No Takings After Council Denies Rezoning for Golf Club Property” for the details.

    This one thing caught our eye in the opinion. The court held that the “substantially advance a legitimate state interest” test, which the U.S. Supreme Court in Lingle v. Chevron USA Inc., 544 U.S. 528 (2005) held was a test of substantive due process and not one of takings law, was the same thing as the “rational/conceivable basis” test. In other words, the term “substantially advance” is…

    Continue Reading S. Carolina: “Substantially Advance” Means “Not Arbitrary And Capricious”

    The Courrt has denied certiorari in Corboy v. Louie, No. 11-336, the case asking the Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for Hawaiian Homestead leases because they are ineligible to receive them).

    Here’s the order, in the event you want to see it for yourself.

    This case had been kicking around on the docket since December 2011, and it was only on the Term’s last day that the Court finally said no. Continue Reading Supreme Court Declines To Review Challenge To Native Hawaiian Property Tax Exemptions

    Lost in all the excitement over today’s ruling in the the Obamacare case that turned out not to be today, is this little tidbit for those from Hawaii. The Court yet again did not make a decision whether to grant cert in Corboy v. Louie, No. 11-336, which had been scheduled for last Thursday’s conference. This is the case asking the Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for Hawaiian Homestead leases because they are ineligible to receive them).

    This case was originally scheduled for the Court’s December 9, 2011 conference, but that was put off when the Court asked the Obama Administration to file an amicus brief, which…

    Continue Reading SCOTUS Delays Consideration Of Challenge To Hawaiian Homes Property Tax Exemption (Yet Again)

    Here is the final brief (Petitioner’s response to the SG’s inviation amicus) in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the case asking the U.S. Supreme Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for a Hawaiian Homestead lease).

    The case was originally scheduled for the Court’s conference on December 12, 2011, but the Court postponed consideration of the case and invited the Obama Administration to weigh in with a brief, because the petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. The SG’s brief asserted that the Hawaii Supreme Court decided…

    Continue Reading Final Brief In Case Challenging Hawaiian Homes Property Tax Exemption As Racial Discrimination: SG’s Assertion That HAWSCT Decision Was One Of State Law “Dead Wrong.”

    Here’s more on Armour v. City of Indianapolis, No. 11-161 (June 4, 2012), the case in which a 6-3 majority of the Supreme Court held that the City’s decision to forgive the balance owing for homeowners who had not fully paid the sewer assessement, while not issuing refunds to their neighbors who had already paid in full.

    The last article got us to thinking: if the primary reason that the Court held that the refusal to provide refunds was not irrational was that it was too much administrative hassle to cut the checks, doesn’t that mean the tail is wagging the dog? Aren’t the…

    Continue Reading More On SCOTUS’s Property Tax (In)equality Case

    That’s the essence of today’s opinion in Armour v. City of Indianapolis, No. 11-161 (June 4, 2012), in which a 6-3 majority upheld the City’s decision to forgive the balance owing for homeowners who had not fully paid the assessement, while not issuing refunds to their neighbors who had already paid in full.

    The majority held that the City had a “rational basis” in effect to charge Homeowner A nearly 30 times as much for the same service as Homeowner B because it would be too much “administrative hassle” (to quote CJ Roberts’ dissent) to process refunds to those who had fully paid the assessment. Since no suspect classification was involved, the City’s actions are reviewed only for minimum rationality. Which, as we know, means “any excuse.”

    For many years, an Indiana statute, the “Barrett Law,” authorized Indiana’s cities to impose upon benefited lot owners the cost of sewer…

    Continue Reading SCOTUS: Property Owners Who Paid Sewer Assessements In Full Are Fools

    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

    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”