Equal Protection

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Our colleague Rebecca Copeland has posted a preview and the briefs in an election law case we’re arguing next week in the Hawaii Supreme Court. See “Writ to Watch: Hyland v. Gonzales.” We’ve written about the case earlier here and here. 

The question for the court’s review is whether an appeal in a voter registration challenge case is timely brought — when mailed by the appellant, or when received by the Board of Registration Appeals? Under the statute, challengers have ten days in which to “bring” an appeal, and the Intermediate Court of Appeals concluded that it must be delivered to the Board within that time, not merely mailed. The court’s decision in this case could have an impact beyond the relatively rare election law context, because many administrative procedures and appeals are subject to similarly-phrased deadlines.  

Rebecca writes:

In the underlying case, Hyland challenged the…

Continue Reading Upcoming Election Law Hawaii Supreme Court Argument Preview: When Is A Registration Challenge “Brought?”

The issue resolved by the Minnesota Supreme Court in Zweber v. Credit River Township, No. A14-0893 (July 27, 2016) was one that land use lawyers deal with constantly: when an administrative agency is alleged to have violated someone’s constitutional rights, what procedural route must the legal challenge take — is the plaintiff required to go to court via administrative channels, or can she initiate an original jurisdiction (“de novo”) case?

In Zweber, the court came down on the side of original jurisdiction. There, Zweber owned undeveloped land which he wanted to develop, and he submitted a preliminary subdivision plat to divide it up. After a neighbor objected for the usual reasons (traffic), the County approved the plat application. But Zweber didn’t begin development and instead, a couple of years later applied for a new subdivision. “This time, based on the recommendation of the Planning Commission, the County Board denied…

Continue Reading Constitutional Property Claims Are For Courts, Not Agencies

Here’s the amici brief we’re filing today on behalf of the National Federation of Independent Business Small Business Legal Center and the Hillsborough County Chapter of the NAACP in support of a cert petition now pending at the Supreme Court.

The case centers around a “class of one” Equal Protection claim in which the plaintiff/petitioner alleges that his land use requests were treated by the County differently than other “similarly situated” landowners. The District Court granted summary judgment to the County because the other owners whom the plaintiff proffered in comparison were not subject to the Keystone Community Plan as were his properties. The Eleventh Circuit affirmed.

The court held that the comparators must be “identical in all relevant respects,” and since the other owners were not subject to the Keystone CP, end of story. It didn’t matter that the applicable provisions in the Keystone CP were the same as in…

Continue Reading Amici Brief: In Class Of One Equal Protection Claims, Is “Substantially Similar” A Search For Evidence, Or Unicorns?

Yet another detour back to our second favorite topic, election law.

Casetext asked us to provide some commentary and analysis of the Supreme Court’s recent Evenwel opinion, and we produced this piece (“What Does Evenwel v. Abbott Mean For ‘One Person, One Vote?’“), which is a refinement of our earlier blog post containing our initial thoughts on the decision.  

It’s not a long piece and we hope you read it (even you land users and takings mavens, who may be asked about this big case at your next cocktail party — all lawyers, after all, must be prepared at such events to respond to inquiries about every recent Supreme Court decision, even if they are far afield from your usual area of practice). The short answer to the question posed in the title is: 

Evenwel has transformed the “one-person, one-vote'” rule in reapportionment cases into…

Continue Reading What Does Evenwel v. Abbott Mean For “One Person, One Vote?”

Who must may be counted for reapportionment purposes?

Everyone!

A slight detour from our usual fare, to post some thoughts about today’s big  U.S. Supreme Court opinion on election law in Evenwel v. Abbott, No. 14-940. Evenwel is the sleeper case of the Term, and opened the possibility that the we might finally get an answer to a question the Supreme Court has dodged for over fifty years, involving the seemingly mundane issue of who can states count when they reapportion their legislatures: All Census-counted residents? U.S. citizens? Those eligible to vote? And who must they count? 

In today’s ruling the Court didn’t cast the net wide, but instead (as we urged it to do in our amicus brief) drew a narrow rule: states may count everyone, but they are not required to. Thus, Texas’s plan, and the plans of those states which count total population…

Continue Reading Mantras Without Meanings (We Takings Lawyers Predicted This One) – 8-0 SCOTUS Rules States May Count Everyone In Reapportionment

Here’s a new cert petition, seeking SCOTUS review of an unpublished opinion from the Eleventh Circuit. That court concluded that Dibbs’ equal protection challenge to the Hillsborough County’s Community Plan failed because he could not identify others who were similarly situated but treated differently.

Dibbs asserted. among other claims, that the County treated him differently from others when it rejected his development proposals as inconsistent with the Community Plan for three parcels he owned. Motivated by malice, he asserted, the County singled him out for ill treatment because of “vindictiveness, maliciousness, animosity, spite or other reasons unrelated to a legitimate government interest.”

Dibbs isn’t part of a protected class, so this is an Olech class-of-one claim in which he must show that he was treated differently from others similarly situated, and that the County “applied a facially neutral ordinance for the purpose of discriminating.” The district court and the …

Continue Reading New Cert Petition: Circuit Split On “Class Of One” Equal Protection Claims – “Similar” Or “Identical?”

Mississippi, like many states, by statute allows private parties to condemn a neighbor’s land for use as a private access road, if doing so is “necessary” for a landlocked parcel to gain ingress and egress. This power is subject to limitations: for example, the parcel must be truly landlocked with no other access. Mississippi apparently has an additional requirement, that the power cannot be exercised within the limits of an incorporated city or town. 

The property at issue in High v. Kuhn, No. 2015-IA-00072-SCT (Miss. Mar. 17, 2016) is within the incorporated City of Gulfport, so the owner objected when his neighbor tried to exercise the power to take his land for access to an otherwise landlocked parcel. The trial court, however, held that the owner had waived the right to assert this objection by not objecting within five days as required by another statute. Besides, the court held, the incorporated…

Continue Reading Mississippi: Statute That Says No Private Takings For Access Within City Limits Means Just That

In a segment called “Are the Courts Crazy?,” (their title, not ours!), Kelii Akina and I chat about the recent decisions in the Thirty Meter Telescope case, the pig hunting as a traditional and customary native Hawaiian practice case, Hawaii’s new Environmental Court, and the challenge to the Hawaiians-only election which is currently being considered by the U.S. Supreme Court (the one in which Dr. Akina is the lead plaintiff). 

And rest assured: we concluded that no, the courts are not crazy. 

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Continue Reading Lawtalk: Thirty Meter Telescope, Putting The “Puaa” Back In Ahupuaa, And Oprah Elections

Here’s your daily dose of election law action (don’t worry, land users, we’ve got one of those in the hopper for today as well), the latest on what has been labeled the “Costco” election and the “Oprah” election. The former premised on the notion that a seat at the convention now has all the worth of a Costco membership, the latter on the action by the purportedly private organization holding the election calling it off and declaring that all candidates could participate after the Supreme Court enjoined ballot counting and result certification.   

Well the other shoe has dropped, and the latter action has resulted in a Motion for Civil Contempt, filed yesterday in the U.S. Supreme Court, asking the Court to slap the State, the Governor, OHA and its trustees, and Nai Aupuni (and others, including the ironically-named Akamai Foundation) for violating the Court’s injunction that …

Continue Reading More SCOTUS Action In Oprah/Everyone Wins Election

Back to the Hawaiian-only election. Here’s an interview from ThinkTech Hawaii which asks “Is Nai Aupuni Sponsored by the State Government?“

The interview is conducted by the plaintiff in the Akina v. Hawaii case, and the interviewees are one of the lawyers for the plaintiffs, Michael Lilly, and the other is U. Hawaii lawprof Williamson Chang. Each has their viewpoint of course (Professor Chang has argued that Hawaiians should be independent, and not relegated to tribal status, while Dr. Akina and Mr. Lilly are challenging the election), but whatever your view of this thing is, the program is a very good 1/2 hour education on the principles at stake.

The quote in this post’s title is from Professor Chang, whose answer to the question posed by the video’s title is clearly “yes.” If Hawaiians want independence, then those efforts should not be funded by the very…

Continue Reading “When Thomas Jefferson was writing the Declaration of Independence, he did not apply for a grant … from [King] George.”