Equal Protection

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How often in an appellate opinion does the court use the term “glom?” 

[The Appellee] gloms onto the “police power” aspect of the definition [of regulatory fees] in arguing that “Medeiros plainly concern[ed] the ‘police power’ of ‘criminal investigative services,’ not a user fee as suggested by [the state].”

No matter what you may think of the phraseology of Hawaii Insurers Council v. Lingle, No. 27840 (Haw. Dec. 18, 2008), the decision is important because who can take your money,  how they go about doing it, and what happens to your money afterwards, matters. As Chief Justice John Marshall famously wrote in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), “the power to tax is the power to destroy,” and that may be even more true today where the power to regulate and impose fees may be the same thing.

Under Hawaii law, only the state…

Continue Reading HAWSCT: Separation of Powers Prohibits Legislative Transfer of Agency’s Regulatory Fees to General Fund

When must a landowner challenge a land use regulation she claims illegally impact her property?  Talk to a lawyer, and they’re usually going to say that you should act sooner than later, and often the time limitations are very short. Under California law, for example, facial challenges to a zoning ordinance must be brought within 90 days of enactment:

Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision:

. . . .

(B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.

Cal. Gov’t Code § 65009(c)(1)(B). But what about when an ordinance is amended — does the enactment of a “new”…

Continue Reading Cal. Court of Appeals: Extension of Ordinance Allows New Inverse Condemnation Challenge

The State of Washington, along with 31 others have filed an amicus brief in support of the State of Hawaii in the ceded lands case (available here) which argues:

The amicus curiae states are deeply concerned with the lower court’s conclusion that the Apology Resolution creates or recognizes claims that cloud the title to Hawaii’s state lands. As part of the “solemn agreement” embodied in the admission act, every state admitted into the Union since 1802 has received grants of land from the United States. See Andrus v. Utah, 446 U.S. 500 (1980). The acreage granted to the states is substantial, and the lands and proceeds from the lands support vital state institutions and programs across the nation. “Between 1803 and 1962, the United States granted a total of some 330,000,000 acres to the States for all purposes. Of these, some 78,000,000 acres were given in support of common…

Continue Reading Final Amicus Brief Supporting the State of Hawaii in Ceded Lands Case

In a significant development and unexpected move, the Solicitor General has filed in the U.S. Supreme Court an amicus brief on behalf of the United States strongly supporting the State of Hawaii’s position in the ceded lands case, asserting the Apology Resolution was “hortatory, not substantive,” and that the ceded lands trust is supposed to benefit all, not just one of five classes of beneficiaries. 

The brief is available here. The Court generally pays special attention to arguments made by the SG (who is sometimes known as the “tenth Justice”), especially its amicus positions.

The brief makes the point that the United States had undisputed and unclouded title to the ceded lands, and that interest was conveyed to the State in 1959 at statehood:

The Supreme court of Hawaii misread the Apology Resolution to reverse a century’s worth of federal law and policy governing the United States’ 1898 annexation…

Continue Reading Federal Government in Ceded Lands Case: Sorry Seems To Be The Hardest Word

In an significant development, on December 11, 2008, the Solicitor General filed an amicus brief in the ceded lands case now pending before the U.S. Supreme Court. We’ll post the brief shortly. The federal government’s participation was not expected. 

This amicus brief has the potential to influence the Court, as the Solicitor General is sometimes known as the “tenth Justice,” because of the attention the Court pays to his arguments. Continue Reading Ceded Lands Case: Federal Government Files Amicus Supporting Hawaii

The Grassroot Institute of Hawaii and the Southeastern Legal Foundation filed an amicus brief in the Hawaii ceded lands case, available here.  The brief argues:

Hawaii is justly admired as an integrated, racially blended society. It has been called a model for the rest of the country, perhaps for the world. But some people in Hawaii find no comfort in integration and equality. For over two decades, a counter-current promoting special privileges for persons of Hawaiian ancestry has gradually developed and, to some extent become the accepted norm among those in Hawaii with a vested interest in continuing such racial distinctions between citizens. This case is just a glimpse of the internal forces working to destroy the ideals of aloha and equal opportunity for every individual whatever his or her ancestry, embraced by the founding fathers of both the Kingdom of Hawaii (Kamehameha I, II and III) and the…

Continue Reading SCOTUS Ceded Lands Case: Another Amicus Brief

The brief of the Commissioner of Public Lands for the State of New Mexico is posted here.  The brief of the Center for Constitutional Jurisprudence is posted here.

The New Mexico brief explains:

Because the express trust created under the Hawaii Admission Act was based on principles established in the New Mexico and Arizona Enabling Acts, the Commissioner is well situated to provide background and analysis regarding the federal law issues raised by the Hawaii Supreme Court’s unprecedented injunction barring state alienation of lands held in a similar federal law trust.

Brief at 2-3. The Center’s brief argues:

This case raises the question of whether Congress can impose limits on the sovereign powers of states—long after the states have been admitted into the union. As interpreted by the Hawaii Supreme Court, the resolution adopted by Congress achieved that limit on state power. The state court acted in what…

Continue Reading More Amicus Briefs in SCOTUS Ceded Lands Case

Today, we filed an amicus brief in the ceded lands case on behalf of Pacific Legal Foundation, the Cato Institute, and the Center for Equal Opportunity, available here.

The core issue of this case is whether a state court, interpreting federal law, may enjoin the State of Hawaii from exercising its sovereign authority to sell,
lease, or rent the “ceded lands” for the benefit of all Hawaiian citizens, pending some resolution, as yet unknowable, of the claims of native Hawaiians to those lands. As this Court recognized in Rice, 528 U.S. at 505, the Republic of Hawaii ceded all of its former Crown, government, and public lands to the United States upon annexation in 1898. Revenues from the public lands were to be “used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.” Newlands Resolution, J. Res. 55, 55th Cong.…

Continue Reading Ceded Lands Case: Pacific Legal Foundation, Cato Institute, Center for Equal Opportunity Amicus Brief

The Mountain States Legal Foundation, “a nonprofit, public-interest law firm . . . dedicated to bringing before the courts those issues vital to the defense and preservation of individual liberties, the right to own and use property, the free enterprise system, and limited and ethical government” today filed an amicus brief in the Hawaii ceded lands case, now pending in the U.S. Supreme Court.  The brief is available here. 

The brief argues:

The State of Hawaii did not argue that, if this Court construes the Apology Resolution to confer special benefits on persons of Hawaiian ancestry, the
Resolution is unconstitutional because it violates the Equal Protection Component of the Due Process Clause of the Fifth Amendment. Nonetheless, this is one question the Court must answer in construing the meaning and effect of the Apology Resolution. A universal rule of statutory construction is that “statutes should be construed whenever possible…

Continue Reading Ceded Lands Case: Mountain States Legal Foundation Amicus Brief

The State of Hawaii filed its merits brief in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008).  Download the brief here.

The U.S. Supreme Court is reviewing the decision of the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), which held that the resolution in which Congress apologized for the United States’ role in the overthrow of the Kingdom of Hawaii in 1893 prohibits the state from transferring the ceded lands until a political settlement is reached with native Hawaiians.

The Court is reviewing the following Question Presented:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow. The question here is whether…

Continue Reading State of Hawaii’s Merits Brief in SCOTUS Ceded Lands Case