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Hawaii Governor Ige Considering Amendment to Hawaii Information Practices Law

The Honolulu Star-Advertiser had a front page story today on a bill passed by the Legislature proposing an amendment to Hawaii's Uniform Information Practices Act, Hawaii Revised Statutes Ch. 92F.

The bill, H.B. 287, underwent re-writes throughout the session.  The version that passed, and is awaiting Governor signature or veto, is:

     SECTION 1.  Section 92F-14, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     ****

     (8)  Information comprising a personal recommendation or evaluation; [and]

     (9)  Social security numbers[.]; and

    (10)  Information that if disclosed would create a substantial and demonstrable risk of physical harm to an individual."

The State of Hawaii Judiciary testified in favor of changes to Ch. 92F and Civil Beat's Law Center for the Public Interest opposed the changes.  The testimony of both the Judiciary and the Law Center is available here.  

The Judiciary's position appears to be tied to the physical safety and security vulnerable from the public disclosure of information:

This legislation is designed to promote the safety and security of individuals by ensuring that a review of matters relating to personal safety and security is part of the equation in determining whether particular documents shall be disclosed pursuant to Hawaii's Uniform Information Practices Act. While the present law states that government records shall not be disclosed if their disclosure would constitute a "clearly unwarranted invasion of personal privacy," the law does not specifically address situations where disclosure could result in a threat to one's physical safety or security.

The Law Center for Public Interest's testimony outlines its observation that personally identifiable information (read: social security number, etc) is already protected by Ch. 92F.

In addition to the Judiciary, the Honolulu Police Department supported the bill.  Several others opposed the bill, including Common Cause Hawaii, the Office of Information Practices, the Society of Professional Journalists and the American Civil Liberties Union.

Governor Ige has a few weeks to decide whether to sign the bill, veto the bill or let it become law without his signature.

On balance, Hawaii's law favors disclosure of government records.  The Star-Advertiser prevailed on its suit to compel Governor Abercrombie to produce the list of candidates he was considering for a supreme court justice-ship.  [Disclosure:  we represented the Star-Advertiser in that litigation].  

One wonders how many folks are at risk of physical harm from the government disclosure of this information. Hawaii is not known for high incidence of violent crime, in fact, those crimes are on the decline, and it seems unusual to change the law without an incident triggering the need for this law change, but most violent offenders probably find their victims through other means than Ch. 92F.  

Stay tuned for the Governor's action.

ABA Section of Litigation Annual Conference 2015

We are headed to the Big Easy tonight for the American Bar Association's Section of Litigation Annual Conference.  

The Real Estate Litigation Committee is pleased to present a seminar of complex claims resolution, entitled When the Levee Breaks - Resolving Complex Claims; Lessons of the Deepwater Horizon, Katrina and More.  Our panelists are Deborah Greenspan of Dickstein Shapiro, Professor Marilyn Berger of Seattle University School of Law, Daniel Cantor of Arnold & Porter and Stephen J. Herman of Herman Herman & Katz.  The panel will be moderated by Judge Nannette Brown of the District Court for the Eastern District of Louisiana.

Stay tuned.

Rocket Docket? Federal Court Stats Say D. Haw. is FAST

 

The Federal Judiciary just released its business report for the fiscal year ending September 30, 2014.

Where does the District of Hawaii, conceptually rendered above, stack up?

For civil cases, in terms of median time from filing to trial, D. Haw. has a median time interval of 15.5 months.  The average median time from filing to trial for all district courts was 24.9 months.  Hawaii placed third behind the Eastern District of Virginia's blazing 12.5 months and the Southern District of Florida's 14.6 months.

Hawaii had 667 civil cases in FY2014.  That is nearly three times the District of Alaska, double the District of Idaho, 30% more than the District of Montana and almost as much as the Eastern District of Washington.

For the 649 civil cases terminated in FY2014, 81 were contract, 45 involved real property, 18 were maritime personal injury, 56 involved personal injury, 192 were civil rights actions, 26 were intellectual property and 28 were labor suits.  82 cases were commenced with involving the federal government, either as plaintiff or defendant.  One odd phenomena of Hawaii is the relative dearth of social security litigation. In FY2014, only four social security cases were brought. The District of Idaho had 40.

Hawaii has a good chunk of cases brought by parties not represented by counsel.  For non-prisoner cases, 20% of cases were brought by pro se litigants.

Nationwide, the Federal Judiciary reports:

This fiscal year, filings in the U.S. courts of appeals fell 3 percent to 54,988. Total filings in the U.S. district courts remained stable, rising less than 1 percent to 376,536 as civil case filings increased 4 percent to 295,310, but filings for criminal defendants dropped 11 percent to 81,226. Petitions filed in the U.S. bankruptcy courts decreased 13 percent to 963,739. 

Knowing Your Rights: Honolulu Rail Project and Right of Way Acquisitions

Do you own property along the rail guideway?

Have you received a letter from a City right-of-way agent using terms like "fair market value" and "just compensation"?

Do you know your rights to relocation?

We are going to discuss these questions and more on Thursday, March 5, 2015, from 6:00 - 7:15 p.m. at the Farrington High School Cafeteria.  

Our law firm is hosting an informational session for the community, IN the community to help business owners whose rights or property may be impacted by the rail.  We've invited property owners, businesses, and residents whose rights may be impacted by the Honolulu rail project to join us and learn about the rights of property owners when their property is targeted for acquisition for public transit projects, and how to protect those rights. 

Here's the invite which we sent out:

Hawaii’s Constitution requires “just compensation” and monetary damages be paid if private property is taken for a public use such as the Honolulu rail project. The Honolulu Authority for Rapid Transit has already begun acquiring privately-owned property it needs for the rail corridor from the airport to Ala Moana, as shown in the video below.

Landowners along the rail route have substantial rights that may be impacted. For background and a FAQ on Honolulu's rail project, see Clearing Up Myths About Hawaii Eminent Domain Law and the Rail. More here: All Aboard? Honolulu Rail is Coming.

HART initially attempts to purchase property and other rights needed for the project by negotiation, but in the event it cannot reach an agreement with an owner about the compensation and damages it owes, HART has the authority to force immediate surrender of property by filing an eminent domain lawsuit against the owner, which allows a jury or a judge to determine the property’s value.

Please join Mark Murakami and Robert Thomas for an informational town hall meeting at which we will discuss the rail project, your rights as a property owner under Hawaii’s eminent domain law, and how you can protect your rights during the acquisition process. Here’s the location, date, and time:

• Location:  Farrington High Cafeteria
• Address:   1564 North King Street (free parking)
• Date:         Thursday, March 5, 2015
• Time:        6:00 – 7:15 p.m.

 Topics we will cover will include:

• Can I prevent HART from taking my property?
• What rights do I have if HART wants to enter my property to survey and drill for soil testing?
• The valuation process: how is “just compensation” and damages calculated by the courts?
• HART’s offer does not adequately compensate me – do I have to wait for HART to sue?
• What are my rights as a landlord, a tenant, or a business owner whose property is taken by HART?
• I have a mortgage on my property. Does the lender have any claim?
• What are my rights if HART takes less than 100% of my parcel?
• What does the law require if my home or my business must be relocated as a result of the project?

We have also invited an appraiser to attend to discuss the appraisal process.

We and our law firm currently represent several landowners whose property is targeted by HART for the rail. We have also represented property owners in eminent domain and similar matters for many years. Mark was Best Lawyers' in America's "Best Lawyer of the Year in Eminent Domain and Condemnation Law" for Honolulu in 2013, and Robert shared this designation in 2014. Mark and Robert and their partner Ken Kupchak are listed in Honolulu Magazine's "Best Lawyers in Hawaii" and in Hawaii SuperLawyers in Eminent Domain and Condemnation Law.

While the format of the meeting will not lend itself to individual consultations, there will be a short session after our presentation to respond to general questions. Light refreshments will be provided. We hope you or a representative are able to join us.

To reserve your space, please email your RSVP to me or Mark, or call either of us at (808) 531-8031.

- See more at: http://www.inversecondemnation.com/#sthash.U4FpvQw8.dpuf

American Law Institute CLE 2015 - Wrap Up

Just got back from San Francisco and the ALI-CLE Eminent Domain and Condemnation Law 101 seminar.

Together with Dwight Merriam of Connecticut and Brad Kuhn of California, we presented on the "Assemblage" doctrine is set out in the Supreme Court's decision in Olson v. U.S. and book-ended by the Supreme Court's decision in U.S. v. Fuller.  That doctrine, in a physical taking case, allows a landowner to argue that the highest and best use of its property could be determined by taking into account a use that required the assemblage of its property with other properties.  Even those not owned by the landowner.

We didn't get a chance to discuss the other seminal cases in this area, but they are included for your reference:  Clarmar Realty v. Redevelopment Authority of the City of Milwaukee, Miller v. Preisser.  The Connecticut Supreme Court's rejection of assemblage is found at Commissioner of Trans. v. Towpath Associates.

My partner, Robert Thomas, has materials galore over at www.inversecondemnation.com.

 

Basics of Eminent Domain Law - Presentation to the Hawaii Paralegal Association

Special shout-out to the Hawaii Paralegal Association for inviting me to join them at their monthly meeting to talk about Eminent Domain law.  It isn't often that folks ASK to learn about the ins and outs of eminent domain law, especially in Hawaii so we were pleased to help share a little of an area of law that we certainly enjoy.

My slides and an audio recording of the presentation are included below for your listening enjoyment or insomnia treatment.

Chief Justice Recktenwald's State of the Judiciary Address

State of the Judiciary Address to the Hawaii Legislature

Waiting for Chief Justice Recktenwald's speech. Excited to hear about Kona Judiciary complex and more.

If City Doesn't Fund Improvements, Should You and Your Neighbors?

Of late, residents in Kailua have bemoaned the state of public facilities to cope with an increasing tourist population.  Public facilities created haphazardly over the last century can easily be overwhelmed with the increased traffic stemming from the ease of information about those facilities.  "If you build it, they will come" gives way to "if you put it on yelp, brace for impact".

The City and County of Honolulu plainly have the power to build roads, improve facilities, repair bathrooms, and manage traffic, but if it does not do so, we wondered if property owners and business owners have the ability to act.

Turns out, they do.

Under the Revised Ordinances of Honolulu, residents can petition the City for the creation of a Community Facility District. A slightly different entity called a Special Improvement District can be created to for improvement of community infrastructure to improve the business environment.

Under Chapter 34, a Community Facility District can be created at the request of the Mayor, the action of the City Council or by petition.  It may be established to finance the acquisition, planning, design, construction, installation, improvement, or rehabilitation of any real property or structure.  Such improvements can be streets, roads, bikeways, public parking facilities, park or recreation facilities, cultural facilities, undergrounding utilities, etc. A nonprofit corporation is established, bond financing is available and the District has the power to assess properties in the district to pay for such improvements.

Under Chapter 36, a Special Improvement District can be created to provide financing and administration for improvements like, services to enhance the security of persons and property within the district, landscaping services, enhanced sanitation services; services promoting and advertising activities within the district; Marketing education for businesses within the district; and decorations and lighting for seasonal and holiday purposes.

These districts are valid creations of the municipal government.  See Von Damm v. Conkling, 23 Haw. 487 (1916)(City and County of Honolulu's improvement districts do not violate 5th Amendment).

We aren't sure whether it was Thomas Jefferson or Lyndon Johnson, but government is best which is closest to the people.  While Honolulu Hale is not that far from Kailua, these districts provide a way for a community to improve the public facilities in their own neighborhood.

 

 

Coast Guard Announces Video of the Year Contest

This is a bit afield of our usual fare of condemnation, Jones Act and maintenance and cure cases.  But, since it is the end of the year, we thought you may want to participate in the Coast Guard's Video of the Year contest.  Vote here.

 

Being a former cutterman, I'm a bit partial to the cutter video.

 

 

 

Or for a flashback to my first ship, the IRIS, watch buoytending in action: