Equal Protection

Subscribe to Equal Protection via RSS

Here’s a recent piece from Richard Borecca, the Honolulu Star-Advertiser’s political reporter, about the Texas reapportionment case recently set for full briefing and argument by the U.S. Supreme Court.

“In Hawaii, eligible voters count more than people” is behind a partial paywall, but here’s the key points in the event you are not a subscriber:

  • Hawaii has never counted the entire census-counted resident population for purposes of apportioning its state legislature. It has always relied on a method that somehow excludes active duty military and their families who reside in Hawaii from the reapportionment count. 
  • Hawaii is one of two states which does not base reapportionment on total census-counted population (Kansas being the other). 
  • When voter registration and participation was high in the years following statehoood in 1959, Hawaii counted registered voters, which due to the high percentage of Hawaii residents who registered to vote, was an accurate

…
Continue Reading Star-Advertiser: Hawaii “Is Exception To Constitutional Law” In State Reapportionment

As we recognized earlier this week when the U.S. Supreme Court noted probable jurisdiction in a redistricting case out of Texas, Hawaii’s current approach to state legislative reapportionment — under which the Hawaii Reapportionment Commission does not count active duty military, their spouses and children, and university students who pay non-resident tuition (108,000, or nearly 8% of the census-counted population were expressly excluded from representation in the Hawaii Legislature) — seems like it is back in play, even if a three-judge U.S. District Court ruled in 2013 that the scheme was constitutional, a decision that was summarily affirmed by the U.S. Supreme Court.

The Wall St. Jounal Law Blog today posts “Hawaii Military Carve Out May Play Role in Voting District Case,” noting:

Hawaii may figure prominently when the Supreme Court this fall considers a case where plaintiffs are seeking to have legislative districts drawn based on…

Continue Reading WSJ Law Blog: “Hawaii Military Carve Out May Play Role in Voting District Case”

Followers of the blog recognize that in addition to our regular menu of regulatory takings, eminent domain, inverse condemnation, and land use related items, our practice also includes voting rights and election law issues. So every now and then we post up interesting cases and decisions, especially where the issues involved are related to cases which we’ve done in the past.

Thus, it was with great interest that we saw the Supreme Court today noting probable jurisdiction in a case we’ve been following, ordering full briefing and argument on an issue that is near and dear to us: the question of who exactly gets counted under the Fourteenth Amendment’s Equal Protection Clause requirement that state legislative districts be of roughly equal size. See Evenwel v. Abott, No. 14-940. The question the Court has never squarely answered is equal size of who? Does the Equal Protection Clause require states…

Continue Reading SCOTUS To Revisit One-Person-One-Vote: Representational Equality Or Voting Equality?

Owners of taxi medallions in Boston thought that they had some kind of special relationship with the city, perhaps understandably so. After all, taxi medallions are tough to get, are expensive, require the owner to comply with stringent regulations, and are the only commercial vehicles which can pick up passengers on the street (in other words, be “hailed”). 

But apparently, this relationship wasn’t special enough to cover the so-called “sharing economy,” because the city, according to the Boston Taxi Owners Association, wasn’t doing much of anything to crack down on ridesharing services like Uber, Lyft, and Sidecar. While their models differ somewhat, at their core these services allow owners of private vehicles to give rides to passengers that might otherwise be using taxis. And this means trouble for the owners of taxi medallions because it is lower-cost competition which hurts their bottom line.

So they…

Continue Reading Fed Ct: Taxis Not Likely To Win On “Sharing Economy” Takings Claim

Land users, please read the California Court of Appeal’s opinion in Woody’s Group, Inc. v. City of Newport Beach, No.G050155 (Jan. 29, 2015), which starts off with this straightforward summary:

The language of the law is replete with synonyms for fairness: due process, equal protection, good faith, harmless error are all ways of expressing our commitment to fairness. The City Council of Newport Beach violated at least two basic principles of fairness in overturning a permit application approved by the city’s planning commission. It should come as no surprise, then, that their action also violated California law.

First basic principle: You cannot be a judge in your own case. In this case Councilmember Mike Henn, having already voiced his “strong[]” opposition to Woody’s application, was allowed to appeal the approval of Woody’s application to the very body on which he sits, where he did his best to convince his…

Continue Reading Cal App: Zoning Authorities Need To “Play Fair”

The wheels of justice may grind slowly, but they do grind. Yesterday, the Ninth Circuit granted a motion we filed back in June 2013, and permitted us to file this amicus brief on behalf of the Western Manufactured Housing Communities Association in a case that is scheduled to be argued in mid-February 2015, Rancho de Calistoga v. City of Calistoga, No. 12-17749.  

The case is a federal court challenge to a California wine-country municipality‘s decision to deny a rent increase for a mobilehome park subject to the city’s rent control ordinance. The complaint alleged that the city’s failure to allow the ground lease rent to increase to $624 violated the park owner’s rights under the takings, due process, and equal protection clauses. The District Court eventually dismissed the complaint for failure to state a claim for relief under Rule 12(b)(6), because, among other things, the park …

Continue Reading 9th Circuit Amicus Brief: How To State A Valid Claim After Lingle – Regulatory Taking, Private Taking, Or Due Process?

Here’s that last case in our 2014 opinion queue, from way back in July. It’s also coincidentially the 2,500th post on the blog.

In Sawn Beach  Corolla, LLC v,.County of Currituck, No. COA13-1272 (July 1, 2014), the North Carolina Court of Appeals considered vested rights and takings claims in a fact pattern than streched back decades. 

In 1966, the owners purchased 1400 acres for residential development. In 1969, the owners recorded a subdivision plat, to make both residential and commerical uses. The county had no zoning ordinance in place at that time. The owners spent $425,000 on preliminary work and infrastructure, such as surveying, engineering and grading. Big bucks in 1960’s dollars.

The county adopted a zoning ordinance in 1971, zoning the property for “RO2,” which prohibits most businesses, including those contemplated by the owners. “Nevertheless, plaintiffs continued to believe that they would be allowed to commerically develop their…

Continue Reading Our Final 2014 Opinion Post: Vested Rights In North Carolina

Here’s one of the decisions we’ve been meaning to post for a while.

In Schmude Oil Co., Inc. v. Dep’t of Envt’l Quality, No. 313475 (July 1, 2014), the Michigan Court of Appeals held that there was no wipeout per se taking, nor was there a Penn Central taking, when the DEQ refused to permit the plaintiff to drill for shale oil on its private property.

The plaintiffs’ land was partially in a “nondevelopment region” which absolutely banned drilling, while the other portion was in a “limited development region” in which “drilling could occur, subject to certain limitations.” The plaintiffs requested the DEQ issue 8 permits for the nondevelopment region, and 3 permits for the limited region. The DEQ denied all the applications. 

The court of appeals determined that within the nondevelopment region, the DEQ was required to have rejected the drilling requests (nondevelopment means no drilling), and that…

Continue Reading Mich App: Denial Of Shale Oil Drill Permits Not A Taking

We bring you the latest guest post by colleague Paul Schwind, who has been tracking the issues and arguments that recently led the Hawaii Supreme Court to conclude, in DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014), that the Hawaii Land Use Commission wrongfully rescinded an earlier reclassification of land (read: “rezoning” to all you non-Hawaii land users).

The oral argument recording is posted above.

We’ll post up our thoughts on the decision in a separate post. 

—————————————————————-

Hawaii Supreme Court In Aina Lea: The Rationales Behind The Opinion

by Paul J. Schwind*

Robert has asked me to summarize the rationales behind the holdings in the Hawaii Supreme Court’s recent opinion in DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014), which he summarized the following day, outlining the litigation history of the…

Continue Reading Guest Post – Hawaii SCT In Aina Lea Case: The Rationales Behind The Opinion

The Hawaii Supreme Court has issued a lengthy opinion in a case we’ve been following, DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014). 

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, the latter being the case in which the Supreme Court just ruled.

The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from “urban” back to to “agriculture.” Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not fully done so and the LUC ordered it to show cause why the land classification should not revert to…

Continue Reading HAWSCT: Land Use Comm’n Can’t Rescind A Re-zoning Via Truncated Procedures