Planet Kaua`i

• The Kauai Onion

  A new Kauai blog - topical with a satiric bent. [...]
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  Posted: December 10, 2009, 3:29am EST
  by charley foster

• Harvard Law Review On The "Ceded Lands" Case

  Number of comments: 0
  Inversecondemnation.com has a comment and a link to the article. [...]
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  Posted: December 09, 2009, 7:51am EST
  by charley foster

• Something strikes me as amiss with yesterday’s fed court rejection of Jones Act challenge

  Number of comments: 0
  Having posted a couple of minor remarks on this constitutional challenge to the Jones act, after reading that there was a decision I looked up the order to give it a quick read.
  
  Under the federal Jones Act, all goods shipped between U.S. ports must [...]
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  Posted: December 09, 2009, 7:03am EST
  by charley foster

• "It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it"

  Number of comments: 0
  Hull v. Scruggs, 2 So.2d 543 (Miss. 1941), discussed here. [...]
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  Posted: December 08, 2009, 10:54am EST
  by charley foster

• Law of the shoreline in Hawaii

  Number of comments: 1
  My post last week, The many definitions of "shoreline", generated some good comments and debate so maybe there's interest in this short annotation on Hawaii shoreline law a friend emailed to me recently. I don't know its source and will update when I find out.
  
  LAW OF [...]
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  Posted: December 08, 2009, 4:05am EST
  by charley foster

• Apparently there was a supreme court order in Kauai v. OIP?

  Number of comments: 0
  The Garden Island ran an interesting follow-up yesterday on County of Kauai v. OIP in which the OIP had appealed to the state Supreme Court an ICA decision affirming the Fifth Circuit’s order that the minutes from County Council Executive Session 177 not be disclosed. (Here's the full' [...]
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  Posted: December 07, 2009, 3:24am EST
  by charley foster

• This weekend's big North Shore surf

  Number of comments: 3
  I drove up with the family for a look and took a couple of pics -
  
  
  [...]
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  Posted: December 06, 2009, 3:28pm EST
  by charley foster

• KC Lum loses 9th Cir. appeal

  Number of comments: 0
  Here's the memorandum decision. And here's the Garden Island's coverage.
  
  While the case was ostensibly an employment dispute, there has been broader interest in the outcome because part of the claims involved access to the infamous and controversial Kauai County Council Executive Session 177 minutes.
  [...]
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  Posted: December 04, 2009, 4:13am EST
  by charley foster

• The many definitions of "shoreline"

  Number of comments: 12
  HawaiiOceanLaw.com has an interesting criticism of - or correction to - Joan Conrow's recent Honolulu Weekly article called "Shrinking Beaches," which begins:
  When the Hawaii Supreme Court ruled three years ago that the public shoreline extends to the seasonally highest wash of the waves, many saw it as [...]
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  Posted: December 04, 2009, 2:10pm EST
  by charley foster

• Hanalei boat tour operator wins summary judgment against county

  Number of comments: 0
  I've been following the Garden Island's coverage of the Lady Ann boat tour case in which the county last June claimed the company lacked permits necessary to operate out of Michael Sheehan’s boat yard in Hanalei Bay. In August, the court denied the county’s motion for a preliminary injunction.' [...]
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  Posted: December 03, 2009, 3:34am EST
  by charley foster

• Native Hawaiian Legal Corp seeks to delay work on Kuhio Highway at Wailua

  Number of comments: 2
  (Actually, NHLC represents a resident plaintiff who seeks to delay work at Wailua). According to the Garden Island -
  The suit seeks [an] EIS; claims violation of state laws to protect known burial sites; claims state failure to identify constitutionally protected cultural rights (proper identification and protection of [...]
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  Posted: December 02, 2009, 11:09am EST
  by charley foster

• Criminal conviction as evidence in a civil suit

  Number of comments: 0
  If you have a burning curiosity about the evidentiary consequences of a criminal conviction to a subsequent civil case based on the same events that gave rise to the conviction, you're in luck.' [...]
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  Posted: December 01, 2009, 7:34am EST
  by charley foster

• Who should benefit when beaches grow by accretion?

  Number of comments: 1
  ...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. [...]
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  Posted: November 30, 2009, 5:11am EST
  by charley foster

• The ongoing saga of Kauai County Charter Section 20.02

  Number of comments: 0
  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' [...]
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  Posted: November 24, 2009, 10:48am EST
  by charley foster

• Hilo TSA child porn suppression case

  Number of comments: 3
  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 [...]
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  Posted: November 22, 2009, 11:53am EST
  by charley foster

• Friday gecko blogging

  Number of comments: 2
  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 [...]
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  Posted: November 20, 2009, 3:19am EST
  by charley foster

• Great motions to dismiss

  Number of comments: 5
  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 [...]
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  Posted: November 20, 2009, 5:00pm EST
  by charley foster

• Publishing pictures of DUI arrestees

  Number of comments: 5
  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. [...]
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  Posted: November 19, 2009, 3:37am EST
  by charley foster

• Kauai County manager would be unconstitutional, according to county attorney

  Number of comments: 0
  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' [...]
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  Posted: November 18, 2009, 4:07am EST
  by charley foster

• Search legal opinions and journals on Google Scholar beta

  Number of comments: 0
  ...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, [...]
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  Posted: November 18, 2009, 4:03pm EST
  by charley foster

• Reviving priveleges or immunities, maybe

  Number of comments: 2
  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. [...]
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  Posted: November 17, 2009, 5:03am EST
  by charley foster

• Hawaii Supreme Court expands criminal defendants' right to counsel

  Number of comments: 0
  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 [...]
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  Posted: November 16, 2009, 8:22am EST
  by charley foster

• Supreme Court declines to hear challenge to Redskins trademark

  Number of comments: 0
  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 [...]
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  Posted: November 16, 2009, 4:04am EST
  by charley foster

• Prof. Jon Osorio and his attorneys, Mililani Trask and Ke'eaumoku Ka'iama

  Number of comments: 2
  ...discussing the ceded lands case here on Big Island Video News.com [...]
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  Posted: November 15, 2009, 5:07pm EST
  by charley foster

• 9th Circuit clarifies abuse of discretion standard

  Number of comments: 0
  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 [...]
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  Posted: November 14, 2009, 10:28am EST
  by charley foster

• "Whatever Happened to the Contract Clause?"

  Number of comments: 0
  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 [...]
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  Posted: November 12, 2009, 3:19pm EST
  by charley foster

• Bruce Davidson

  Number of comments: 3
  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 -
  
  
  [...]
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  Posted: November 09, 2009, 3:25pm EST
  by charley foster

• Un-slaughtering the Privileges or Immunities Clause

  Number of comments: 0
  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" [...]
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  Posted: November 08, 2009, 12:06pm EST
  by charley foster

• No furloughs for state judges

  Number of comments: 2
  It would violate the state constitution. Paul Curtis has a related piece in the Garden Island this morning -
  Article XVI; Section [3.5]. There shall be a commission on salaries as provided by law, which shall review and recommend salaries for the justices and judges of all state [...]
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  Posted: November 06, 2009, 2:31am EST
  by charley foster

• Would you freak

  Number of comments: 3
  ...if you were an attorney and a deputy walked up and rummaged through your case file behind your back and took a document while you were at the podium addressing the court?
  
  
  
  Here's a related article from Heat City ("Hard News in the Public Interest from'" [...]
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  Posted: November 06, 2009, 3:41pm EST
  by charley foster

• New furlough lawsuit

  Number of comments: 0
  This one based on a due process argument according to the Star-Bulletin -
  The latest complaint contends that shortening the school year by 17 days without giving adequate notice and opportunity for public comment violated students' rights to due process of law.
  
  "We have a constitutionally created educational'" [...]
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  Posted: November 05, 2009, 3:12am EST
  by charley foster

• Another landmark in long-running Hawaiian Home Lands case

  Number of comments: 0
  The Advertiser -The class-action lawsuit Kalima v. State of Hawaii was filed on behalf of more than 2,700 DHHL beneficiaries. It alleged that DHHL did not provide homes in a timely and prompt manner as required by the Admission Act.The Star-Bulletin -
  The decision yesterday came in a [...]
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  Posted: November 04, 2009, 12:08pm EST
  by charley foster

• Plaintiff's attorney comments on Kaloko Dam settlement

  Number of comments: 0
  Philip R. Brown -
  The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property. [...]
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  Posted: November 03, 2009, 11:23am EST
  by charley foster

• Mortgage ind. trade journal: HUD threatens FHA revocation against Hawaii-based reverse lender

  Number of comments: 0
  "The Board was particularly concerned about one case in which the Company steered an 88-year-old borrower into purchasing an annuity which would not mature until she reached her 104th birthday." [...]
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  Posted: October 30, 2009, 4:46am EDT
  by charley foster

• Ceded Lands case last man standing dismissed

  Number of comments: 0
  Today the Hawaii Supreme Court filed what should be the final order in the ceded lands case, OHA v. Housing and Community Development Corp of Hawaii. Recall that the state supreme court had held that the federal Apology Resolution gave rise to a fiduciary duty on the part of [...]
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  Posted: October 28, 2009, 3:01pm EDT
  by charley foster

• Furlough Fridays law suits

  Number of comments: 1
  An article in yesterday's Star Bulletin describes "two federal lawsuits that seek to block Furlough Fridays in Hawaii's public schools, one representing nine students with autism and the other on behalf of regular and special education students."
  
  Today's Advertiser covers the denial by the court of an' [...]
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  Posted: October 23, 2009, 3:38am EDT
  by charley foster

• It's not all work all the time...

  Number of comments: 0
  
  
  With my son and friends at a school dive club event last week [...]
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  Posted: October 21, 2009, 5:41am EDT
  by charley foster

• Jones Act challenge updates from around the web

  Number of comments: 0
  Here's Mark Murakami's (HawaiiOceanLaw.com) description along with a link to the complaint.
  The suit notes that because the Jones Act requires cargo to be transported on U.S. flagged ships between U.S. ports, Hawaii residents pay more for their goods. It purports to be class action on behalf of all [...]
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  Posted: October 21, 2009, 5:29am EDT
  by charley foster

• Looming appeal - lower court rules first degree murder not appropriate under law where Family Court defendant murders witness

  Number of comments: 0
  According to this Advertiser piece, fifteen year old Vernon Bartley had burglary charges pending against him in family court when he allegedly murdered his 51 year old neighbor who would have been a witness against him in the burglary case.
  
  Under Hawaii law, A person commits the offense [...]
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  Posted: October 21, 2009, 4:44am EDT
  by charley foster

• Police arrest 10 year old girl for assaulting her brother

  Number of comments: 0
  This seems like something we could be hearing more about. According to a minimalist Advertiser report, in its entirety -
  A 10-year-old girl was arrested yesterday morning after her 8-year-old brother reported being assaulted.
  
  The children live together in Kalihi and got into an argument, police said. [...]
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  Posted: October 21, 2009, 3:58am EDT
  by charley foster

• "They want to create a whole new animal - the guilty bystander."

  Number of comments: 1
  In a comment to the previous post, Big Island attorney blogger John Powell reminded me of the Seinfeld finale in which Elaine, George, Jerry, and Kramer are charged with violating a Good Samaritan statute after standing by and ridiculing the victim during a mugging. Their Cochran-esque attorney, Jackie Chiles, [...]
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  Posted: October 20, 2009, 6:09am EDT
  by no-name extra

• No duty of crime witness to call the police

  Number of comments: 7
  This case ought to take any lawyer back to first year law school torts class where we learned the common law “no duty to rescue rule” under which, so long as you were not responsible for placing someone in danger or risk, you have no obligation to help them even [...]
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  Posted: October 17, 2009, 5:30am EDT
  by no-name extra

• Right of citizens to sue to challenge council member's eligability goes to state Supreme Court

  Number of comments: 0
  According to the Advertiser and the Maui News, the Hawaii Supreme Court will hear an appeal by plaintiff-appellant Lanai residents asking that Council Member Sol Kaho'ohalahala be blocked from serving on the Maui County Council on grounds that he is not a resident of the council's Lanai residency [...]
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  Posted: October 15, 2009, 3:32am EDT
  by no-name extra

• National Book Award Finalists

  Number of comments: 0
  ...are here. [...]
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  Posted: October 15, 2009, 3:02am EDT
  by no-name extra

• Another factual twist to challenge Hawaii's native burial laws

  Number of comments: 0
  In this case involving native burials, the plaintiffs allege... ...that trenching work [for Kawaiaha'o Church's new $17.5 million multipurpose center] disturbed the graves of [Plaintiff Abigail Kawananakoa's] ancestors — Queen Kapiolani and her family. The suit names the church and various state agencies as defendants. It alleges a violation' [...]
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  Posted: October 14, 2009, 4:19pm EDT
  by charleyfoster

• inversecondemnation.com live blogs HAWSCT oral arguments this morning: Are State Zoning Laws "Environmental" Statutes?

  Number of comments: 0
  Robert Thomas again brings the court to the people (he previously live blogged the HAWSC Superferry oral arguments with great success).

  Today's blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) will go live at' [...]

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  Posted: October 13, 2009, 3:11am EDT
  by charleyfoster

• Advertiser - Hawaii considers 6-member juries

  Number of comments: 0
  The Advertiser reports that "Hawai'i lawmakers may consider legislation next year" to amend Article I, Section 13 of the state Constitution, relating to jury trials, in order to reduce the size of juries in civil trials and "minor criminal trials" from 12 to six members. According to the paper,' [...]
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  Posted: October 12, 2009, 6:35am EDT
  by charleyfoster

• The increasing use by police of the "stop and frisk"

  Number of comments: 0
  This AP article on the increasing use by police of a practice called the "stop and frisk" caught my eye recently (while I'm not a criminal defense trial attorney, I do write motions to suppress illegally obtained evidence for a handful of lawyers who are criminal defense trial attorneys).' [...]
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  Posted: October 11, 2009, 6:19am EDT
  by charleyfoster

• second attempt [2 scam u]..pls reply

  Number of comments: 0
  Hey, look. I just got an internet scam email!
  
  Attention: Counsel,
  
  We the management of Weifang Wecan Imp. & Exp.Co.,Ltd., require your legal representation for our north american Customers. We have two companies owing us, one in canada and the other in USA.
  
  Please confirm if [...]
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  Posted: October 08, 2009, 1:19pm EDT
  by charleyfoster

• The legal difference between making mix tapes in the old-school analog day and in the new (more restrictive) digital age

  Number of comments: 0
  If you're old like me you might have, back in the day, mixed tapes of various songs from LPs in your collection and passed them around with your friends. And then later, if you're like me, when everything was finally digital, you might have mixed songs from your computer hard-drive [...]
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  Posted: October 08, 2009, 1:02pm EDT
  by charleyfoster