Equal Protection

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The Hawaii Chief Election Officer and the Reapportionment Commission have filed their  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 representational equality as well as…

Continue Reading State’s Brief In Hawaii Reapportionment Case: Military Stationed In Hawaii Are “Transients”

Here’s the motion for preliminary injunction we filed yesterday in the federal lawsuit challenging Hawaii’s exclusion of military personnel, their families, and university students who do not pay resident tuition, from the population count when reapportioning the state legislature.

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.

From the motion’s Introduction:

The Supreme Court maintains the touchstone of a state legislative reapportionment plan is population. Reynolds v. Sims, 377 U.S. 533…

Continue Reading Motion For Preliminary Injunction: Hawaii Legislative Reapportionment Must Include All Residents, And Cannot “Extract” Military, Military Families

In a per curiam unpublished decision, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s dismissal in Crystal Dunes Owners Ass’n v. City of Destin, No. 2011-14595 (Apr. 17, 2012) (per curiam opinion here, or below).

The plaintiffs own a strip of private beach in Destin, Florida. If the name of that locale sounds familiar, it’s because its the site of the Supreme Court’s recent decision in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection, in which the Court declined to confirm the existence of a “judicial takings” theory of recovery where the plaintiffs claimed the Florida Supreme Court changed the rules midstream and took their property as a consequence.

The latest case does not involve a claim of judicial takings, but has its genesis in the property owners’ beef with other branches of government, the city and the sheriff’s department.

Continue Reading 11th Cir: Property Owners Should Use Self-Help To Evict Private Beach Trespassers (Because Florida Self-Help Laws Always Work Out So Well)

The editorial in today’s Honolulu Star-Advertiser writes:

The state Supreme Court’s ruling in January that determined how boundary lines should be drawn for this year’s election in August made scant reference to the agency created primarily for that purpose: the U.S. Census Bureau. That is why a lawsuit in federal court should result in the prompt ordering of the lines to be redrawn to conform with the nationally customary method of including military and out-of-town students in the population count, in time for the upcoming elections.

…

The commission noted in its final report last year that the U.S. Supreme Court had ruled in 1962 that a state could not exclude military people from the population base “based solely on the nature of their employment,” but that seems to be what the state’s high court mistakenly has done.

In 48 other states, lines are drawn according to the Census Bureau’s…

Continue Reading Star-Advertiser: “Census should guide election boundaries”

We’ve been meaning to post the latest developments in a case we’ve been following, 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) against the State of Hawaii Land Use Commission.

Our colleague Paul Schwind provided a comprehensive guest post on the civil rights case, and summarized the facts that led to both lawsuits here. In short, the Land Use Commission reclassified (rezoned) property as a sanction after it asserted the developers failed to comply with certain conditions, chief among them to provide a certain number of “affordable housing” units by a certain date.

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to…

Continue Reading Court: State Land Use Commission Exceeded Its Authority, Violated Developers’ Due Process And Equal Protection Rights

Here’s the latest in the federal court reapportionment lawsuit, filed last week (we represent the plaintiffs). Above is the audio archive of my appearance yesterday morning on KHVH’s Rick Hamada Program. KITV also aired this report on the case. Posted below is the District Court order granting the request for a three-judge district court.

Order Granting Plaintiffs’ Request for a Three-Judge Court Pursuant to 28 U.S.C. § 2284, Kostick v. Nago, N…Continue Reading Latest In Federal Court Reapportionment Case

It may be Good Friday (an official State Holiday in Hawaii), but the federal courts are open, and today, on behalf of six plaintiffs including several veterans, we filed a lawsuit challenging under the Equal Protection Clause the State of Hawaii’s practice of excluding military personnel, their families, and university students who pay nonresident tuition from the population count when reapportioning the state legislature.

The U.S. Census counts everyone who is a “usual resident” of Hawaii in its count of population — including military, their families, and university students — but the Hawaii Constitution requires the Hawaii Reapportionment Commission to only count “permanent residents.” 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 pay nonresident tuition from the 1.3 million+ persons counted by the Census as usual residents of Hawaii. This…

Continue Reading Federal Court Lawsuit: Hawaii Legislative Reapportionment Cannot Exclude Military, Military Families

We’ve been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon’s Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, “conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” Corey v. Dep’t of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new…

Continue Reading 9th Cir: No Vested Rights Taken By Oregon’s Measure 49

Once again, our old friend and colleague Paul Schwind is following an interesting ongoing case. We’ve been tracking the “Bridge Aina Le`a” litigation, but have not had the time to digest the latest developments in a comprehensive fashion and Paul attended the recent federal court hearing in the federal phase, and has kindly provided us with the details. 

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 State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the…

Continue Reading Guest Post: Federal Courts Flashback – Takings And Vested Rights Challenge To Land Use Commission