Municipal & Local Govt law

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We couldn’t post much last week due to a pressing engagement on Friday before a three-judge federal district court (the case challenging Hawaii’s latest state reapportionment plan on Equal Protection grounds in which we represent the plaintiffs — more here). But the court took the matter under submission, so while we are awaiting a ruling we can clear off some of the backlog of items.

First, you will recall R&J Holding Co. v. Redevelopment Authority of Montgomery County, 670 F.3d 420 (3d Cir. Dec. 9, 2011), a case we detailed here, in which the Third Circuit held that a property owner did not actually or impliedly litigate its federal takings claims in an earlier state court case, and thus actually allowed a property owner to raise its federal constitutional claims in federal court.

Apparently, a property owner even having a chance of vindicating its federal constitutional rights…

Continue Reading Amicus Brief: Federal Takings Claims And State Law Claims … Ehh, What’s The Difference?

Update: the latest in the latest Williamson County-related cert petition here.

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If you tried to explain the practical results of Williamson County‘s ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking.

As we’ve explained many times, under Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County‘s rationale was that there is no violation of the Fifth Amendment by a state…

Continue Reading Fifth Circuit: Williamson County Ripeness Does Not Bar Due Process Claim In Federal Court

Here are the cases we discussed in this morning’s session at the Eminent Domain & Land Use in Hawaii seminar:

  • Brown v. Howard, No 26991 (June 21, 2011), the case in which the South Carolina Supreme Court held that an attorney’s services constitute property, and that property was taken when a trial court refused to let a court-appointed attorney withdraw from defending a criminal case, forcing him to work for a fee capped at $3,500. Here’s the Bar Association’s amicus brief on the issue.

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Continue Reading Links From Today’s Eminent Domain Conference

No, we’re not talking about POTUS and the OBL stuff. Rather, we have more end-zone dancing from the prevailing party (a lawyer) in Filarksy v. Delia, No. 10-1018 (Apr. 19, 2012).

According to this Above the Law story, Mr. Filarsky wasn’t satisfied with an “in your face” gesture to the losing party, he’s now told the respondent’s lawyer what he can do with himself. Check it out.

But you know what really galls us about this case? It isn’t the lawyers’ sniping and the animosity that apparently goes back a ways and extends beyond this case. It isn’t that Filarksy bothering to send the letters, and the recipient bothering to make them public, have proven to the world that lawyers are indeed as cliche as lawyer jokes make us out to be. It isn’t that the commenters in the Above the Law post try and resolve which of…

Continue Reading Enough With The “Spiking The Ball?”

Here’s the first of two CLE programs that I’m doing next week Thursday. Through the magic of the internet, we’re doing a nationwide webinar on ethics issues, followed by an in-person eminent domain conference in Honolulu.

On Thursday, May 10, 2012, starting at 1:00 p.m. EDT (10 a.m. PDT, 7 a.m. HST), I’ll be presenting “Municipal Law: Navigating Local Government Recusal Laws, Conflicts of Interest and Government Immunity” on-line, along with my colleagues Michael Donaldson, Michael Kamprath, and Professor Patricia Salkin. We’ll be discussing ethical issues, using two recent U.S. Supreme Court cases as context: Nevada Comm’n on Ethics v. Carrigan, and Filarsky v. Delia. Here’s a description of the program:

Local government counsel regularly face a myriad of ethical issues. Key problematic areas concern recusal laws, conflict of interest, identifying the client, and the scope and applicability of qualified immunity for…

Continue Reading Ethics CLE: Navigating Local Government Recusal Laws, Conflicts of Interest and Government Immunity

They say revenge is a dish best served cold.

But in Filarksy v. Delia, No. 10-1018 (Apr. 19, 2012), it apparently came with a side dish of “in your face victory dance.”

Check out this story about Mr. Filarsky’s reaction to his unanimous Supreme Court win in that case.

Disclosure: along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity. But we had no idea this was coming!Continue Reading Revenge Is A Dish Best Served … With A Side Dish Of “In Your Face!”

It’s always a safe bet to predict that the Supreme Court will decline to review a case. Statistics, after all, are on the side of “cert denied” regardless of the substantive merits of a case.

But there are some cases, like Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking (briefs here), that give you pause because they take a slightly different track: the respondents waived their right to respond, the Court invited them to file a BIOthe conference gets moved to April 20. Things like this make you go “hmmmmm.”

Well, the drama was for naught. Today, the Court issued the order denying cert. On one hand, it’s not surprising since the weight of statistics is never favorable, and from a practical standpoint, the Court might be reluctant to wade…

Continue Reading Cert Denied In NY Rent Control Challenge

The issue in in Filarksy v. Delia, No. 10-1018, yesterday’s opinion in which the unanimous Supreme Court held that a private lawyer who was retained by a local government is entitled to assert qualified immunity, was whether the lawyer was prohibited from asserting the defense merely because he was not formally employed by the city.

The specific issue before the Court was whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city employee, was entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in civil rights actions under 42 U.S.C. § 1983. The Ninth Circuit concluded he could not avail himself of that defense because he did not get a W-2 from Rialto. The Supreme Court unanimously reversed.

[Disclosure: along with…

Continue Reading Some Thoughts About The Supreme Court’s Immunity Decision

Today, the U.S. Supreme Court issued a unanimous opinion (by Chief Justice Roberts) in Filarksy v. Delia, No. 10-1018, holding that a private lawyer who was retained by a local government is entitled to assert qualified immunity. Along with my colleagues at the ABA Section of State and Local Government Law, I filed an amicus brief in the case on behalf of the American Bar Association supporting the lawyer’s claim to immunity.

The issue in the case involves the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. It’s not a land use case, but every land use and takings lawyer must know the contours of section 1983 law. The specific issue before the Court was whether Mr. Filarsky, a private lawyer retained by the City of Rialto, California to conduct a portion of the city’s internal investigation of a city…

Continue Reading SCOTUS: Private Attorneys Hired By Govt Entitled To Assert Qualified Immunity

Last Friday, we noted that the Supreme Court was scheduled to consider whether to accept cert in Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking, among other things.

However, according to the Court’s docket report this morning, the Court put off the decision for another week, rescheduling consideration until the April 20, 2012 conference. Does this mean that someone up there is interested? The same Justice or Justices who asked for briefs in response? That there is a titanic behind-the-scenes struggle between the Justices to get that fourth vote? The cert pool clerk was out sick last week?

We don’t know, but we sure are intrigued. Continue Reading Not So Fast…