- Who should benefit when beaches grow by accretion?
Posted November 30, 2009, 2:11 am by charley foster
...The state, or oceanfront landowners? And does it affect your opinion that when beaches erode it is the oceanfront landowners who bear the loss? Today's Star Bulletin provides some background on the question, which was the subject of oral arguments before the ICA back on Nov. 10. (Bay Beach Ohana 28 v. State of Hawaii, No. 28175). Under Hawaii law, the beach makai of the statutorily defined shoreline is public. Obviously, shorelines do not remain static but move through erosion and accretion...
- The ongoing saga of Kauai County Charter Section 20.02
Posted November 24, 2009, 7:48 am by charley foster
Andy Parx has another in his worthwhile series of posts on the ongoing controversy over Kauai County Charter's ethics provision that no officer or employee of the county shall appear in behalf of private interests before any county board, commission or agency. Recall the recent county attorney opinion that asserted that the provision leads to results just too absurd to comply with, and must therefore be read in conjunction with more lenient county ordinances so that officers, employees, etc can...
- Hilo TSA child porn suppression case
Posted November 22, 2009, 8:53 am by charley foster
KITV - A federal judge in Hawaii on Tuesday threw out all the evidence against a man caught with child pornography at Hilo Airport. By law, the TSA must search all checked baggage for explosives. Although conducted without warrants, such searches are considered constitutionally reasonable administrative searches provided that they are no more extensive nor intensive than necessary to detect the presence of weapons or explosives, and that they are confined in good faith to that purpose. One...
- Friday gecko blogging
Posted November 20, 2009, 12:19 am by charley foster
Where I grew up, instead of geckos, we had these - They had pleasant dispositions, as do geckos, and I caught many as "pets" as a child; but these guys, while not having detachable tails, had one very cool feature over geckos. They could squirt blood out of their eyes.
- Great motions to dismiss
Posted November 19, 2009, 2:00 pm by charley foster
State v. Wheeler is a freshly filed Hawaii Supreme Court opinion that ruled that the operation of a vehicle "on a public way, street, road, or highway" is an essential element of the offense of Operating a Vehicle Under the Influence of an Intoxicant, and that a charge that omits the 'public street' element fatally fails to state an offense. This despite the fact that the statutory definition of "operate" specifies that it involves driving "upon a public way, street, road, or highway." The...
- Publishing pictures of DUI arrestees
Posted November 19, 2009, 12:37 am by charley foster
Star Bulletin - The Honolulu Police Department's plans to post the names and photos of alleged drunken drivers on a new Web page have disturbed some attorneys, who say it's unconstitutional and will infringe on the person's right to a fair trial. Is it unconstitutional? I'm not so sure. Newspapers publish the names of arrestees in arrest reports. And the GI publishes the pictures of people with outstanding warrants. I imagine the First Amendment gives news outlets the right to publish public...
- Kauai County manager would be unconstitutional, according to county attorney
Posted November 18, 2009, 1:07 am by charley foster
In response to a request for an opinion on the Charter Review Commission's proposal to amend the charter to allow for a county manager form of government, the county attorney's office asserts that such a change would violate both the state constitution and state statutes. (Here's a copy of the opinion helpfully posted online by the Garden Island. Here's the GI's report). The county attorney points to Article VIII, Sect. 2 of the Hawaii Constitution, which provides that - Each political...
- Search legal opinions and journals on Google Scholar beta
Posted November 17, 2009, 1:03 pm by charley foster
...as of tonight! Here's the official announcement on The Official Google Blog. Search by case name or topic here. It appears to include federal bankruptcy, district and appellate court cases, and state appellate decisions. I see that internal citations are hyperlinked. That's a nice feature. Unfortunately, many of the journal articles I was able to turn up reside behind pay walls. Of course, that's not Google's fault and at least the searcher has notice that the articles are there.
- Reviving priveleges or immunities, maybe
Posted November 17, 2009, 2:03 am by charley foster
Overturning Slaughterhouse would certainly change Con Law II for all time. Con Law II is the second of two constitutional law classes in the oddly universal law school curriculum, and Slaughterhouse was a consolidated case in which the Supreme Court in 1873 first interpreted the Fourteenth Amendment to the U.S. Constitution. Under the Fourteenth Amendment - No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any...
- Hawaii Supreme Court expands criminal defendants' right to counsel
Posted November 16, 2009, 5:22 am by charley foster
The U.S. Constitution's Sixth Amendment right to assistance of counsel does not give a criminal defendant the right to confer with counsel during breaks in trial when the defendant is testifying. (In other words, when the defendant is on the stand, and the court takes a short break, the court doesn't have to let the defendant confer with his or her attorney). However, as of today, Article I, Section 14 of the Hawaii Constitution does guarantee such a right. In State v. Mundon, No. 28448, slip...
- Supreme Court declines to hear challenge to Redskins trademark
Posted November 16, 2009, 1:04 am by charley foster
Actually, the Supreme Court declined to hear "[w]hether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act despite the plain meaning of the statutory language stating that such a petition may be filed "at any time."" A group of Native American individuals had sued contending that the Washington Redskin trademarks were registered contrary to the federal trademark act, which prohibits registration if a mark consists of or comprises...
- RFP Posted for Environmental Review Contract to Support Interisland Wind and Undersea Cable Project
Posted November 15, 2009, 7:20 pm
The state recently posted a request for proposals ("RFP") for environmental studies to support the Interisland Wind and Interisland Cable projects. The Interisland Cable is intended to connect wind facilities on the islands of Molokai and Lanai to Oahu, with a phased expansion to Maui. The Interisland Cable project is part of the Energy Agreement signed by the State Division of Consumer Advocacy of the Department of Commerce & Consumer Affairs, and Hawaiian Electric Companies ("HEC"), on...
- NAR Reports Pending Home Sales Rise for Eight Consecutive Monthly Gains
Posted November 15, 2009, 6:44 pm
The National Association of Realtors (NAR) reported that Pending home sales rose again, marking eight consecutive monthly gains-the longest streak since measurement began in 2001. NAR's index is released during the first week of each month and is designed to be a leading indicator of housing activity. The index measures housing contract activity, based on signed real estate contracts for existing single-family homes, condos and co-ops.
- Prof. Jon Osorio and his attorneys, Mililani Trask and Ke'eaumoku Ka'iama
Posted November 14, 2009, 2:07 pm by charley foster
...discussing the ceded lands case here on Big Island Video News.com
- 9th Circuit clarifies abuse of discretion standard
Posted November 14, 2009, 7:28 am by charley foster
On appeal, issues decided by trial courts are accorded various levels of discretion. For instance, trial courts have a great deal of discretion when making findings of fact. Appellate courts are supposed to respect that discretion when reviewing the factual findings of trial courts and are to overturn factual findings only if the trial court abused its discretion in making the finding. There has long existed a tension among Supreme Court precedents about when an appellate court may determine...
- "Whatever Happened to the Contract Clause?"
Posted November 11, 2009, 12:19 pm by charley foster
Via Legal History Blog, an interesting history of what was once "the most litigated provision in the Constitution and...the chief restriction on state authority" but which ultimately fell victim to New Deal constitutionalism. Article I, section 10, clause 1 - No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex...
- Does Your Project Trigger the Endangered Species Act?
Posted November 9, 2009, 8:28 am
The Office of Environmental Quality Control (OEQC) recently posted a collection of native and invasive species flash cards on its web site. According to the Bishop Museum, there are more endangered species per square mile in the Hawaiian islands than any other place on the planet. For example, of the more than 140 Hawaiian bird species and subspecies present in the Hawaiian islands prior to human contact, more than half have been lost to extinction. Among the remaining 71 endemic bird species,...
- DoD Military Realignment from Okinawa to Guam Creates Opportunities and Challenges
Posted November 8, 2009, 6:05 pm
The Department of Defense (DoD) is finalizing the draft environmental impact statement (DEIS) for the relocation of U.S. military resources from Okinawa to Guam. DoD plans to increase its military presence in Guam from about 15,000 in 2009 to more than 39,000 by 2020 at a cost of more than $13 billion. GAO-10-72 October 14, 2009. The Navy estimates that annual construction spending of $1 billion would require about 5,000 to 10,000 workers and that at its maximum the workforce could consist of...
- Bruce Davidson
Posted November 8, 2009, 12:25 pm by charley foster
Today's New York Times (Which we buy for the book reviews, honest, nothing else) featured a piece on Bruce Davidson, a photographer I've admired for many years. So here's one of his photos I've always liked -
- Un-slaughtering the Privileges or Immunities Clause
Posted November 8, 2009, 9:06 am by charley foster
What a great title for a symposium: "A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?" The Privileges or Immunities Clause is part of the Fourteenth Amendment passed, of course, after the Civil War. It says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." While the Amendment's Due Process clause has led over time to the incorporation of certain guarantees in the Bill...