Property tax

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Yes, the government took your property. But it wasn’t an exercise of its eminent domain authority. When you don’t pay your tax bills, the government can foreclose on your property, and sell it. Which it did. Inverse condemnation complaint dismissed.

Epice Corp. v. Land Reutilization Auth. of the City of St. Louis, No. 4:07CV00206 (E.D. Mo., Aug. 17, 2010) (“The Court agrees with these courts in finding that the foreclosure of a tax lien
involves the taxing power, not the eminent domain of the government.”). Continue Reading Missouri Federal Court: No Compensation Owed When Property Is Taken By The Tax Power

In What’s At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of “judicial takings” case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Raises several interesting points and worth a read.Continue Reading PropertyProf’s Summary Of The SCOTUS Beachfront Takings Case

I’ve received a few interesting comments and e-mails on an earlier post (“Why Hawaii Can’t Vote On Property Taxes”) about the Ohana Kauai property tax charter amendment and how it was declared unconstitutional by a 3-2 Hawaii Supreme Court.

Here’s one that I thought was worth moving from the below-the-fold comment section:

I know you’re addressing strict legal interpretations here at inversecondemnation.com, but I feel compelled to mention that giving the direct power to tax to the electorate does not necessarily mean that it will be exercised fairly and wisely. To deprive the electorate of ability to directly set tax policy through charter amendments does not deprive them of the ample power they have to effect tax policy through their choice of elected representatives and their ability to remove unresponsive representatives. It also permits elected representatives to make wise and balanced decisions fair to all taxpayers many of which have…

Continue Reading Further Thoughts On Property Taxes And Voting

Faced with a budget shortfalls and declining revenue projections (and what level of government these days isn’t?), the Honolulu City Council voted today to raise property taxes and eliminate a property tax credit that would have softened the raise for some homeowners. See the reports here and here. It also voted to raise the bus fare from $2 to $2.50 for a single fare (with corresponding increases in monthly pass fares), up the vehicle weight tax 25% this year and an additional 25% next year (Hawaii taxes automobiles by weight, not by age as California does), and quadruple parking rates at the Honolulu Zoo.

There’s been a lot of rumbling lately from Hawaii taxpayers about decreasing government expenditures and controlling property tax rates, but a few years ago, after years of pleading with their elected representatives for relief, Kauai voters actually did something about it. They voted to amend…

Continue Reading Why Hawaii Can’t Vote On Property Taxes

How often in an appellate opinion does the court use the term “glom?” 

[The Appellee] gloms onto the “police power” aspect of the definition [of regulatory fees] in arguing that “Medeiros plainly concern[ed] the ‘police power’ of ‘criminal investigative services,’ not a user fee as suggested by [the state].”

No matter what you may think of the phraseology of Hawaii Insurers Council v. Lingle, No. 27840 (Haw. Dec. 18, 2008), the decision is important because who can take your money,  how they go about doing it, and what happens to your money afterwards, matters. As Chief Justice John Marshall famously wrote in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), “the power to tax is the power to destroy,” and that may be even more true today where the power to regulate and impose fees may be the same thing.

Under Hawaii law, only the state…

Continue Reading HAWSCT: Separation of Powers Prohibits Legislative Transfer of Agency’s Regulatory Fees to General Fund

Slgn_frontpageThe ABA Section on State & Local Government has published my article “Because They Can: Judicially Excising the People from the Definition of “County” in the Hawaii Constitution” in the State & Local Government Law News (Spring 2008). 

The article is a summary and analysis of County of Kauai ex rel. Nakazawa v. Baptiste, 165 P.3d 916 (Haw.2007), the 3-2 decision in which the Hawaii Supreme Court creatively overcame justiciability problems to hold that the term “the counties” in the Hawaii Constitution’s provisions regarding property taxes means “county councils.”  In doing so, the court invalidated a voter-enacted Kauai charter amendment that would have rolled back property taxes to 1998 levels, and set a yearly cap on increases.  The dissenting justices accused the majority of “subverting the judicial process,” and would have dismissed the case for lack of standing. 

The article is posted on the ABA’s web …

Continue Reading New Article Published: “Because They Can: Judicially Excising the People from the Definition of ‘County’ in the Hawaii Constitution”

In August, by a3-2 vote, the Hawaii Supreme Court determined that the term “county” inarticle VIII, section 3 of the Hawaii Constitution means “countycouncils.”  The majority held that only county councils may establish property tax policies, and that voters of the county have no power to do so directly by amending their county charter. 

The majority first determined that it was perfectly acceptable for government officials to be both the plaintiffs and the defendants, and sue each other in a friendly lawsuit in which the County Attorney represented both sides.  The majority also approved of the county council hiring a private law firm to prosecute the case in which it was a defendant, with $250,000 of public funds.

The dissenting justices accused the majority of “subvertingthe judicial process” by ignoring standing and justiciability requirements by rearranging the parties after oral arguments,and by attributing the arguments of the defendants to the…

Continue Reading 2007 in Review: Hawaii Supreme Court Rewrites the Constitution

A “SLAPP suit” is a “strategic lawsuit against public participation,” and many states have statutes designed to thwart retaliatory lawsuits to protect the public’s willingness to exercise First Amendment rights.  For example, California’s statute defines SLAPP suits as:

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Cal. Code. Civ. Proc. § 425.16 (emphasis added).  Hawaii’s anti-SLAPP statute is codified at Haw. Rev. Stat. ch. 634F, and defines a SLAPP suit somewhat differently than California:

“SLAPP”means a strategic lawsuit against public participation and refers to alawsuit that lacks substantial justification or is interposed for delayor harassment and that is solely based on the party’s public participation before a governmental body.

Haw. Rev. Stat. § 634F-1 (emphasis added).

In City of Riverside v. Stansbury, Nos. E040125 & E040973 (Cal. Ct. App. Oct. 12, 2007), the…

Continue Reading ▪ SLAPP Suits, Ballot Measures, and Curbing Eminent Domain Abuse

You can read the court’s Findings of Fact, Conclusions of Law, and Order here.

I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

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Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia’s lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County’s power to take the property

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Continue Reading ▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party