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Here’s the recording of our webinar from earlier this week, in which we and fellow Honolulu lawyer Jeff Portnoy did our best to address some of the many questions that have arisen during the coronavirus shut-down.

Jeffrey Portnoy and Robert Thomas talked about what we can expect as the state and counties slowly lift their seemingly endless stay-at-home orders, which have discriminated between “essential” and “nonessential” workers, mandated “social distancing” and mask-wearing, and imposed 14-day quarantines on arriving airport passengers, both tourists and residents returning home.

During the hourlong event, Portnoy and Thomas considered whether businesses destroyed or devastated by the lockdowns have any legal recourse, and whether proposals being suggested to revive Hawaii’s devastated tourism industry, such as replacing the 14-day quarantines with various forms of testing and tracking, might violate constitutional privacy protections.

We’ve written up two articles with our thoughts on these issues:

The first…

Continue Reading Video: “Lockdown, Testing and Tracking: Are They Really Legal?” (A Look At Hawaii’s COVID Response)

Important developments in the two lawsuits that are on file challenging Hawaii Governor David Ige’s emergency proclamation and myriad supplemental proclamations.

First, we were all set to post the briefs and summarize the arguments for tomorrow’s scheduled U.S. District Court hearing on a motion for preliminary injunction in the first case when earlier today, the plaintiffs in that case voluntarily dismissed the lawsuit without prejudice. As a result, the court vacated tomorrow’s scheduled hearing and ordered the case closed:

EO: In light of Plaintiffs’ Notice of Dismissal, Dkt. No. 26, the Court vacates the briefing requirements set forth in Dkt. No. 24 with respect to Defendants’ Motion to Consolidate (Dkt. No. 22), and vacates the June 26, 2020 hearing on Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 15). All pending motions are deemed withdrawn and/or moot, and the Clerk is directed to close this case. (JUDGE DERRICK K. WATSON)(tyk) (Entered:…

Continue Reading One Left: Lawsuit Challenging Hawaii Gov’s COVID Orders Voluntarily Dismissed … And Other Developments

Yesterday, in the second of two cases that we’ve been following (both of which are in the U.S. District Court for the District of Hawaii, and are challenging the Hawaii Governor’s coronavirus-related shutdown orders for a variety of reasons, see For Our Rights v. Ige (assigned to Judge Watson) and Carmichael v. Ige (assigned to Judge Otake)), the United States (via the U.S. Attorney and the Department of Justice) filed a Statement of Interest, arguing the shut-down orders violate the Privileges and Immunities Clause of the Constitution (article IV, section 2). You know, that’s the “and” clause, that doesn’t do much (but it does prohibit discrimination against out-of-state residents).

The Statement asserts that the Governor’s two-week self-quarantine requirement, which is imposed on all inbound travelers regardless of residency is “effective[ly] discriminati[on]” against nonresidents because yes, both tourists, nonresidents, and returning residents must shut themselves in after arrival, but …

Continue Reading Federal Court To USA In Hawaii Quarantine Challenge: Explain Why You Filed P&I Right To Travel Amicus, When Plaintiffs Didn’t Raise P&I Right To Travel In The Complaint

The University of Hawaii Law Review has graciously agreed to publish an article we’ve been working on, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020) (download from SSRN at the link).

The article takes a deeper dive into Hawaii’s emergency laws, the judicial history of the Hawaii court on public health emergencies (we unfortunately have a lot of such history), some modern Hawaii Supreme Court jurisprudence, and Hawaii’s love of Spam® (the lunch meat, not the junk email). It also takes a hard look at the most important limitation on government power in an emergency, the statutory requirement that any emergency proclamation automatically terminates no later than sixty days after it is issued.

(Tomorrow, we’ll be joining Honolulu lawyer Jeff Portnoy, and Dr. Keli‘i Akina for a free, open-to-the-public program sponsored by…

Continue Reading New Article: “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority” (U. Haw. L. Rev. forthcoming 2020)

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Update: our thoughts on the Hawaii-law claims in this article, “Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority,” 43 U. Haw. L. Rev. ___ (forthcoming 2020).

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Here’s the second complaint filed in the U.S. District Court for the District of Hawaii challenging the governor’s coronnavirus shut down orders. Back in March, the governor issued a proclamation declaring an emergency, and since then has issued nine “supplemental” declarations, re-upping the end date which is now the end of July). Here’s the first complaint (in that case, the plaintiffs dropped their request for a TRO, and the court has scheduled a hearing on a motion for preliminary injunction for June 26, 2020).

There’s a Fifth Amendment claim (sorry, not a takings claim, but a right to travel), as well as a host of federal constitutional claims (due process, equal protection, section …

Continue Reading New (Hawaii) Complaint: Coronavirus Orders Violate Right To Travel, Equal Protection, Due Process (And More)

There’s a lot of opinion in the U.S. Court’s of Appeals’ opinion in Stratta v. Roe, No. 18-50994 (May 29, 2020). Yes, the court reversed the district court’s dismissal of a takings claim. But most of the opinion is devoted to the question of whether a Texas water conservation board — an agency whose mission is to regulate surface water uses — may take advantage of the State of Texas’s 11th Amendment immunity (no, held the court). We recommend that part of the opinion to you, federal courts junkies.

But there’s a couple of takings gems in there also. The case involved a challenge by a property owner who was (allegedly) treated by the water conservation board less generously than an (allegedly) similarly-situated municipality, resulting in the owner’s inability to make use of its groundwater rights. (In short, a Pennsylvania Coal claim, where instead of coal being required to…

Continue Reading Fifth Circuit: Texas Groundwater Rights Are Takings Clause “Property”

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“The Cornfield” at Antietam

Two more complaints that challenge state-ordered shut-down orders as takings. The first from Maryland, the second from across the country in Nevada. These join an ever-growing list of such lawsuits. See here, here, here, here and here, for example.

We set out what we think about how these type of claims should be analyzed in this article (“Evaluating Emergency Takings: Flattening The Economic Curve“). And, we’ll be moderating a Federalist Society teleforum (open to the public!) next Friday on “COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings?” if you want to get in on the issue.

Of course, we shall keep following along. 

(What’s the deal with the photos you ask? Nothing, except the first is from the Antietam Battlefield on our last visit (the Maryland complaint is…

Continue Reading Two More Complaints Challenging Shut-Down Orders As Takings (Md, Nev)

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Picture 1: how normal people see pie.

Picture 2: how you see pie if you’re coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there’s still room for those of you still not committed. Register here. Don’t miss out. There will be pie. Continue Reading Record Attendance (But There’s Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

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You overwhelmingly asked for Nashville, and we’re bringing it to you!

Get ready, and hold your place now: here’s the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

  • Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
  • Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
  • When A River Runs Thought It: Water Rights and

…
Continue Reading Here’s The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020