Municipal & Local Govt law

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In this press release issued yesterday, the Hawaii Judicial Selection Commission  announced it has amended its rules so that from now on, the JSC “will release the names of the nominees transmitted to the Governor or Chief Justice at the time they are transmitted and will be permitted to disclose statistical and historical information that summarizes patterns and trends in judicial selection.” More from the Star-Advertiser here.

In other words, the lists (of not less than four, and not more than six) names of nominees whom the JSC deem “qualified” to fill vacancies on the Circuit Court, Intermediate Court of Appeals, and the Hawaii Supreme Court, will now be made public at the same time the list is given to the Governor.

This is a new direction, because until this change, the JSC Rules have always barred the Commission from disclosing even the names of nominees: “[s]ince the…

Continue Reading Judicial Selection Commission: Public Will Know The Names Of Judge Nominees At The Same Time The Governor Does

Here’s what’s going on:

  • The Honolulu Star-Advertiser‘s story on yesterday’s decision by Circuit Judge Karl Sakamoto in the Star-Advertiser’s lawsuit to compel Governor Abercrombie to cease keeping the names of judicial nominees from the public: Judge to gov: Make names public. We represent the plaintiff:

“We are extremely pleased,” said newspaper attorney Diane Hastert. “Judge Sakamoto thoroughly analyzed all of the complex issues in the case and concluded the public has the right to know the names of individuals on the Judicial Selection Commission lists.”

. . . .

Deputy Attorney General Charleen Aina defended the governor’s position that the release would be a “frustration” of the government’s interest in the appointment process.

She told Sakamoto the process includes the commission screening and recommending the names confidentially, and the disclosure by the governor would “interfere” with that process.

But attorney Robert Thomas, who also represents the newspaper…

Continue Reading Tuesday Round-Up: JSC List Case, California Eminent Domain

Filarsky v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011) is not the typical case for this blog. It’s not a land use case, and involves a question of the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983.

But since section 1983 claims and defenses are something that every land use lawyer must understand, we thought we’d post it, even though it involves an employment matter.

The issue in the case is 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, is entitled to claim the same qualified immunity that is generally available to government employees acting in good faith who are defendants in 1983 actions.

In Richardson v. McKnight, 521 U.S. 399, 408 (1997), a bare majority of the Supreme Court…

Continue Reading Is A Private Lawyer Retained To Represent Government Entitled To Claim Qualified Immunity?

As we noted here, the circuit court today ordered Governor Abercrombie to make public the list of nominees for the vacancy on the Hawaii Supreme Court (eventually filled by Justice McKenna) that was transmitted to him from the Judicial Selection Commission earlier this year. More from the Star-Advertiser‘s breaking news story here.

Below are the documents and briefs in the case:

  • The Complaint is posted here.
  • The Governor’s Answer is posted here.

Continue Reading Docs In JSC List Case

In a ruling delivered today, Circuit Judge Karl Sakamoto ordered Governor Abercrombie to publicly release the list of names transmitted to the Governor by the Judicial Selection Commission earlier this year for the vacancy on the Court that was subsequently filled by Justice Sabrina McKenna. Star-Advertiser v. Abercrombie, No. 11-1-1871-08. We represent the newspaper in this case. 

More on the case here. More from the Star-Advertiser here.Continue Reading Court Orders Governor To Cease Keeping JSC List Secret

West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), a petition we’ve been following that asked whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land, has been denied.

California and Texas say the nexus and rough proportionality standards apply to all exactions (we don’t want the government blackmailing permit applicants, regardless of the tribute that is demanded), while Florida says they don’t. Other courts have also weighed in on one side or the other, and lacking guidance from the Supreme Court, will continue to flounder about on this issue.

We suspect the Court’s reluctance to address the confusion has less to do with the issue at hand (must all exactions be related and proportional to the predicted impact of the development) and more to do…

Continue Reading Lower Court Split On Applicablity Of Nollan/Dolan To Exactions Other Than Land Continues: West Linn Petition Denied

The big news in Hawaii this week is the Asia-Pacific Economic Cooperation international summit, currently underway in Honolulu. Waikiki is on lockdown as leaders from 21 Pacific Rim nations, including U.S. President Obama and a lower level functionary from “Chinese Taipei,” come to town for a confab on free trade and economic cooperation in the region. Plus, they might have to dress up in the national costume of the host country. (Query: is aloha wear the “national costume” of the host United States? Not really, but it is a regional style, and making these stuffed shirts dress up like Elvis or Jack Lord seems like a hoot; we can’t wait to see Australia’s Julia Gillard in a muumuu.) Big stuff.

What do Hawaii’s leaders hope to accomplish by having the eyes of the world turned on us during the summit? In Opportunity comes ashore, the daily paper reports…

Continue Reading Potemkin Village, Hawaiian Style?

SCOTUSblog has designated West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), as a petition to watch for today’s conference.

That’s the case which asks whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land.

“Petitions to watch” are those petitions which SCOTUSblog predicts have a reasonable chance of a grant (besides their own, of course). Continue Reading West Linn Case A “Petition To Watch” – Are Nollan And Dolan Limited To Exactions Of Land?

5330215_big Hold the date: on Tuesday, December 6, 2011, from 5:30 – 8:00 p.m., the University of Hawaii School of Law is sponsoring a reception at the Pacific Club, in Honolulu to celebrate the publication of Eminent Domain, a Handbook of Condemnation Law by the American Bar Association.

Since so many of the people who worked on the book are associated with the U.H. Law School (I authored two chapters, my Damon Key colleagues Mark Murakami and Christi-Anne Kudo Chock authored another, the appendix was authored by three Honolulu lawyers who are also alums, and Professor David Callies is one of our editors), the law school is being kind enough to throw a little party. It turned out it was just a happy coincidence that we were all associated with the project, and Professor Callies promises that he did not round up his former students to pitch in. 

The book, as…

Continue Reading Book Reception: Eminent Domain – A Handbook of Condemnation Law (Honolulu, 12/6/2011)

Hold the presses! In an unusual move spurred by a recent decision by the Florida Supreme Court, the petitioner has filed a supplemental brief in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), the case which asks whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land.

Earlier this week, we thought we had seen the final briefs in the case, but alas no. The petitioner’s supplemental brief discusses the Florida Supreme Court’s opinion in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011), which held that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation. The brief argues:

The Florida Supreme Court’s decision in Koontz underscores the importance…

Continue Reading Late-Breaking: Supplemental Brief In West Linn Case: Are Nollan And Dolan Limited To Exactions Of Land?