Equal Protection

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To all who were able to join today’s ABA Section of Real Property, Trust and Estate’s Condemnation, Zoning and Land Use Committee’s call on the AIG takings trial, currently pending in the U.S. Court of Federal Claims, thank you for participating. I’ve posted the entire talk (minus questions) above.

Here are the links to the stories, analysis, and materials I mentioned: 

  • The original complaint, first filed in the CFC in November 2011. 
  • Second Amended Complaint in the CFC case, along with Mr. Boies’ quote that this will be “an easy case to litigate.” We described the case as “audacious,” if only because it seeks $25 billion in just compensation. 
  • Professor Gideon Kanner’s (who has been following this case more closely than we have) first thoughts on the complaint. 
  • The CFC’s Opinion and Order granting in part and denying in part the United States’ motion to dismiss.  

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Continue Reading Links From Today’s ABA Talk On The AIG Bailout Takings Case

Earlier, we posted the recording of the Ninth Circuit’s recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.

Two days after arguments were submitted, the Ninth Circuit panel unsubmitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this…

Continue Reading Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission’s Immunity For Reclassification

Here are the merits briefs in an important case set for argument later this month in the Hawaii Supreme Court.

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 essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban 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 done so and the LUC ordered it to show cause why the land classification should not revert to agricultural.  

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this is the matter now…

Continue Reading HAWSCT Briefs In Bridge Aina Lea: Takings, State Land Reclassification, And Orders To Show Cause

It’s been our experience that when a court of appeals — particularly when it’s the Ninth Circuit, and it’s the eve of oral argument — raises an issue on its own after the briefs have been filed and requests supplemental briefing, then whatever that issue is must really be on the judges’ minds. They’re the cream of the crop (right?) and along with their cohort of law clerks (the next generation cream), they know the law (right?). And, as one Ninth Circuit judge candidly revealed at one of those bench/bar tip sessions last year, law clerks like nothing better than to catch the advocates in a misstatement or to find a missed argument, so they can present the issue to their judge like a cat bringing home a dead bird to its master (we’re paraphrasing that last bit, of course, but the judge did say that clerks groove on finding things…

Continue Reading Ninth Circuit Sua Sponte Raises Williamson County Ripeness, Asks For Briefing, Gets Some

One portion of the federal Uniform Relocation Act, 42 U.S.C. § 4651, requires Federal agencies participating in projects requiring the acquisition of private property to be guided by certain policies that “assure consistent treatment for owners . . . and . . . .promote public confidence in Federal land acquisition practices,” such as (and we’re paraphrasing here), do it as quickly as possible, try to get it by negotation, don’t use condemnation to leverage a lower negotiated price, and so forth. 

These policies apply to state and local condemnors when their projects involve federal funding, and in Clear Sky Car Wash LLC v. City of Chesapeake, No. 13-1492 (4th Cir. Feb. 21, 2014), the owner whose property was being condemned by the Virginia Department of Transportation asserted VDOT was not following the rules. VDOT instituted a “quick take” eminent domain action in state court, and Clear Sky went to federal…

Continue Reading 4th Cir: Uniform Relocation Act Requirements Are Like The Pirate’s Code – “More What You’d Call ‘Guidelines,’ Than Actual Rules”

Our Latin cousins warned us long ago homo sapiens non urinat in ventum (“a wise man does not pee into the wind”) but such wisdom doesn’t prevent us from trying at times to buck the conventional thinking. Because sometimes, you don’t know which way the wind is blowing until you go outside and actually feel the breeze. 

Today, the U.S. Supreme Court told us. In a one-line order, the Court affirmed the three-judge U.S. District Court’s ruling that the 2012 Hawaii Reapportionment Plan, which excluded active duty military, military families, and students who do not pay resident tuition from the population basis, did not fall short of Equal Protection’s requirements. See also SCOTUSblog’s “Hawaii Redistricting Upheld.” The 2012 Plan treats these classes as residents who have not exhibited the intent to remain in Hawaii “permanently.” The Court also affirmed the 2012 Plan’s very large (44% and 21%)…

Continue Reading Supreme Court Upholds Hawaii Redistricting Plan

At the Hawaii Agriculture Law Conference which we just wrapped last week, perhaps the hottest topic on the agenda was the anti-GMO ordinances recently adopted by the Counties of Hawaii (Big Island) and Kauai.

Barista’s note: One advantage of having POTUS in town for a couple of weeks was that it resulted in a cohort of national reporters sitting around with nothing to write about, no doubt being pestered by their editors suffering back in the polar vortex to get off the beach and actually file a story or two. Thus, we saw a series of big league newspapers filing stories about Hawaii, including this marqee piece in the New York Times about the anti-GMO measures, “A Lonely Quest for Facts on Genetically Modified Crops.”

At the Ag Conference, we discussed the possibility of a lawsuit being filed against Kauai, since it seems to be the locus…

Continue Reading The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court

Here’s the Brief Opposing Motion to Affirm, filed today (Dec. 26, 2013) in Kostick v. Nago, No. 13-456.

That’s the appeal currently pending in the Supreme Court challenging a ruling by a three-judge U.S. District Court upholding the 2012 Hawaii Reapportionment Plan against an Equal Protection challenge. The Plaintiffs assert that the 2012 Plan’s exclusion of 108,767 military, military families, and university students from Hawaii’s population count falls short of Equal Protection’s requirement of representational equality, and that the Plan’s 44% and 21% deviations from district population equality far exceed the Supreme Court’s 10% threshold for presumed unconstitutionality. Disclosure: we represent the Plaintiffs-Appellants.

The Brief in Opposition responds to the State of Hawaii’s Motion to Affirm, which, in turn was responding to our Jurisdictional Statement (remember, this is an appeal, not a cert petition):

“Nothing to see here folks, move along” is the State’s central theme in…

Continue Reading SCOTUS Brief In Hawaii Reapportionment Case: Exclusions From Population Are Not Reviewed Under “Rational Basis”

Here’s the State of Hawaii’s Motion to Affirm, filed earlier today. This brief responds to the Jurisdictional Statement, filed two months ago in the case now pending in the U.S. Supreme Court which challenges the 2012 Hawaii Reapportionment Plan. The State has hired some very big gun Supreme Court litigators (at who knows what cost to Hawaii taxpayers) to try and convince the Court that this case isn’t worthy of further review.

We represent the appellants in the case, who assert that the 2012 Plan’s exclusion of 108,767 military, military families, and university students from Hawaii’s population count falls short of Equal Protection’s requirement of representational equality. We won’t go into the details of the arguments in the Motion to Affirm, since you can read it yourself. Besides, we will be filing a short opposition with the Court, which will contain our responses. 

After the briefing is complete…

Continue Reading State’s Motion To Affirm In Hawaii Reapportionment Case

It’s easy to report when you win a case, not so easy when you … don’t (at least not yet).

That’s the result in this stage of the Hawaii reapportionment case, as yesterday, a three-judge U.S. District Court denied the plaintiffs’ motion for summary judgment and entered summary judgment for the state defendants. We represent the plaintiffs by the way. Here’s the court’s Opinion and Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendants’ Motion for Summary Judgment.

We won’t comment on the case, but we can repeat what we told the papers:

We always believed that the issues in this case merited resolution by the U.S. Supreme Court. We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no. While we have not finished reviewing the Hawaii District Court’s rationale in detail, everything we’ve…

Continue Reading Three-Judge District Court: No Equal Protection Violations In Excluding Military From Reapportionment Population, Or in 44% Deviation