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Since the U.S. Supreme Courts decision in Knick v. Township of Scott (2019) 139 S.Ct. 2162 eliminated the requirement for a plaintiff to exhaust state court remedies before pursuing a takings challenge in federal court, there has been a significant uptick in federal lawsuits alleging a Fifth Amendment takings claim. For example, as we recently reported, a federal lawsuit was filed earlier this month alleging that the response by California agencies to the COVID-19 situation violated the state and federal Constitutions, and resulted in a partial or complete taking in violation of the Fifth Amendment. But as we noted in that post, there are serious questions as to the viability of alleging a Fifth Amendment takings claim in federal court against a state agency, given that Knick did not contain any discussion of eliminating a states sovereign immunity, and at least two courts have expressly held that Knick did nothing to abrogate a states sovereign immunity in the takings context. We now have a California district court decision to add to that growing list.

In ONeil v. California Coastal Commission, a property owner filed an action in federal court alleging that the actions of the California Coastal Commission and a local public agency violated his substantive due process rights and resulted in a taking in violation of the Fifth Amendment. In response the Coastal Commission filed a motion to dismiss, arguing that because the Commission was an arm of the state, the doctrine of sovereign immunity recognized in the Eleventh Amendment to the United State Constitution prohibited the claim. In an effort to sustain his claim, ONeil argued that after Knick the Eleventh Amendment was no longer a viable defense to a federal takins claim. The district court disagreed with Mr. ONeil, and dismissed the takings claim against the Coastal Commission.

Addressing the Knick decision, the district court stated: Knick did not address Eleventh Amendment immunity. Thus, as [the Coastal Commission] argues, Knick did not conceive of an additional exception to the Eleventh Amendment immunity. The district court also noted that while the Ninth Circuit has not yet addressed this specific issue, two other circuits have, and in each instance the Circuit Court found that the Eleventh Amendment barred the takings claim.

The district court also found that the plaintiff could not rely on the Ex Parte Young exception to the Eleventh Amendment which permits a plaintiff to sue a state official in federal court in order to seek prospective injunctive relief because it could not characterize ONeils relief request as prospective as he seeks just compensation, or damages, for the prior allegedly unconstitutional taking.

So even after Knick, the federal courthouse doors continue to remain closed to Fifth Amendment takings claims against the state or arms of the state.

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Cant Sue Here Federal Court Closed to Takings Claim - JD Supra

I am 82-plus years old, with two heart defects, making me exceptionally vulnerable to death should I get COVID-19. The ideal for me, of course, would be community lockdowns until a vaccine is found. But that cant be what is best for society. Last month 21 million Americans lost their jobs to lockdowns. The month before that nine million became unemployed. America is being destroyed financially. I can only imagine the intense financial and emotional devastation of those millions of people.

We need to get the country working again. Of course, when human contact increases, so too will the spread of the coronavirus. Still, individuals in large measure can take precautions, even in the workplace. And people over 65, the most vulnerable to the bug, can take special precautions. The reason we see so many young people attending, say, a rodeo or public beaches in California is that they likely view themselves as nearly invincible, having only a 1 or 2 percent risk of death should they be infected.

We are now living in a country where governors have seemingly become despots benevolent despots, but despots nonetheless. And these good people have run their states inconsistently. The automobile industry in Michigan can go back to work despite high numbers of infected in the state, but that same industry in California cant. My own view is that, say, Elon MuskElon Reeve MuskNASA, SpaceX and the private-public partnership that caused the flight of the Crew Dragon SpaceX capsule successfully docks at space station Trump calls Floyd death 'grave tragedy,' decries violent protests in Florida speech MORE will make his employees safe and should be permitted to do so. A California assemblywoman yelled, F--- Elon, but I think she is misguided. What is her view on the four million people in California who have lost their jobs to the virus?

There is another problem I have with state lockdowns: the U.S. Constitution has been tossed out the window. As former chief of staff to Chief Justice Warren Burger, I am especially protective of the human rights that the Constitution recognizes and protects. The Commerce Clause has been tossed: we generally cant travel or even leave our homes. First Amendment religious freedom has been altered so that we cant go to church even in a safe manner. The First Amendment right to assemble is gone. The right to private property as especially enumerated in the Fifth Amendment has been denied, as has due process. That amendment reads: we cannot be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.

Yet governors deny our shops and jobs without due process or just compensation. Thirty million people so far have been left out in the cold. Some get a relatively small stimulus payment from the government but note that this government money was initially taken from taxpayers or borrowed or printed.

Another problem I have is with the cheap criticism pervasive throughout the country. I think President TrumpDonald John TrumpFauci says his meetings with Trump have 'dramatically decreased' McEnany criticizes DC mayor for not imposing earlier curfew amid protests Stopping Israel's annexation is a US national security interest MORE, California Gov. Newsom (D) Michigan Gov. Whitmer (D), New York Gov. Cuomo (D), Dr. Fauci, and all the other leaders in the country are trying to do the best they can. But this universal nightmare of worldwide contagion by an invisible bug is so big and so multifaceted that no one knows fully how to handle it. Even the trusted and revered Dr. Fauci, in a radio interview with host John Catsimatidis on Jan. 26, said about the coronavirus outbreak in China, Its a very, very low risk to the United States.... It isnt something that the American public needs to worry about or be frightened about.

Dr. Fauci, governors, and officials in Washington, D.C., are not omniscient, but they are doing their best and should be spared nasty criticism. Try walking a mile in their moccasins. G. K. Chesterton once observed that something can be so big that many do not see it. COVID-19 is as big as the world. No one should be expected to have all solutions.

Ronald L. Trowbridge, Ph.D., is a policy fellow at the Independent Institute. He was appointed by President Reagan to the United States Information Agency and later became chief of staff for Chief Justice Warren Burger.

Excerpt from:
An old man like me should be made more vulnerable to death by COVID-19 | TheHill - The Hill

Why not $1,203?

Like most Americans, I had anticipated my $1,200 CARES Act payment to be electronically deposited into my bank account. Instead, I received an envelope from the U.S. Department of the Treasury containing a paper check. At the time, I dismissed that inefficient delivery method. Perhaps, I even enjoyed the experience of touching a check.

What happened next is what bothers me. A week later, I received a follow-up letter, this time bearing the return address Internal Revenue Service stating that it contained Notice 1444. Naturally, I opened this envelope with even greater speed than the one from the Treasury Department. Instead of hopeful anticipation of its contents, the IRS return address had sent my mind into a temporary panic mode.

Fortunately, I quickly realized that Notice 1444 was merely a notification confirming that I will be receiving, or should have already received, a $1,200 check or debit card. Whew.

Surprisingly, the mysterious notice was merely a form letter printed with The White House as its letterhead, and it contained an image of the presidents signature. Am I the only person who found the essence of Notice 1444 to be a political mailing issued at the taxpayers expense?

Maybe I should give President Donald Trump a break and even follow his lead. Perhaps, every time I pay my bills, I should send follow-up letters informing my vendors/creditors what a good guy I am to have sent them the payments that were already due to them. I wonder if the government printing office will produce my Notice 1444 letters/envelopes at taxpayer expense, then arrange for the post office deliver them, postage free.

I estimate that copies of Notice 1444 cost our government (yours and mine) over $3 each. Quite frankly, I would rather have seen everyone receive $1,203. Wouldnt you?

James Donovan

Waikoloa

Greens idea would make Hawaii safest destination

Lt. Gov. Josh Greens idea for diagnostic testing of tourists before travel to Hawaii (Travel with Aloha) and serial testing once arrived, would make the Hawaiian Islands the safest vacation destination in the world. People would want to come here. For starters, a testing arrangement could be made with western states like California, Washington, and Alaska, and countries like Japan. Those locations would want their travelers tested before their return home. It would be a win-win. If the Hawaiian Islands become a hot spot, tourism may take years to recover.

Barbara Feliciano

Waimea

A restriction of a right?

Can Gov. David Ige restrict tourists from coming to Hawaii? My first impression as a Constitutional lawyer is absolutely not.

Under the U.S. Constitution, the right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment. The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law.

And, guess what? This provision, which is a very powerful one, also applies to inter-state travel. So therefore, Iges Proclamation or Executive Order restricting us from traveling between islands is unconstitutional on its face.

So, the issue under the Constitution is whether the governors proclamation restricting us as American citizens, and tourists, as American citizens was reasonable. My answer is No. Whats your answer?

Lei Kihoi

Kailua-Kona

Fact or fiction?

Claims that nearly 70% of our countys property taxes come from the luxury home developments that are on the west side of the Big Island? Philanthropy from the targeted tax group? There are only absentee owners whose properties exceed $2 million in value. Give millions a year into the local charities of their choice? Are these really the jewels of our economy as he suggests? Why have I never read about all of this philanthropy in WHT? We always hear about the Sayre Foundations philanthropy.

There are many luxury homes on the west side that are exempt from the proposed tax increase just look at the real estate section in your Sunday paper under $2 million, of course the ultra wealthy never want to pay their fair share. Just look at Bill and Melinda Gates: opposes the 2% wealth tax on wealth over $50,000 but likes to be known as a great philanthropist.

Mark Zuckerberg, who also does not pay his fair share of taxes, recently gave $1 million to some charity of his choosing. Truth is society would be much better off if all of these super rich people and corporations would just pay their fair share to fund the social functioning of the societies in which they live, occupy, and rely on.

Come on Hawaii County Council and Mayor Harry Kim do the right thing by your constituents.

Rusty Iijima

Waikoloa Village

Letters policy

Letters to the editor should be 300 words or less and will be edited for style and grammar. Longer viewpoint guest columns may not exceed 800 words. Submit online at http://www.westhawaiitoday.com/?p=118321, via email to letters@westhawaiitoday.com or address them to:

Editor

West Hawaii Today

PO Box 789

Kailua-Kona, HI 96745

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Letters to the Editor: May 29, 2020 - West Hawaii Today

Activism in the cause of something you deeply believe in, when carried out by a private citizen is a noble thing and a precious right of our Republic.

But when institutions, put in place to serve the public in a fair and impartial fashion step over the bias line, it harms the very foundation of liberty and justice for all our nation was founded on.

I am going to deal with three.

Of course, the media went rogue a long time ago, which being in most cases private entities is their prerogative, although they violate their original mandate, to deliver news, untainted by personal political preferences.

One only has to look at the actions of Judge Emmet Sullivan in his handling of General Michael Flynns case to see the American judicial system at its worst.

Judge Sullivan has evidently decided that he will be prosecuting attorney, judge, jury and arbiter of jurisprudence, in essence reopening a case where the charges have been dropped by the prosecution, charges that were obviously bogus to begin with.

Or Dallas County Judge Eric Moye, who took it upon himself to sentence a woman to seven days in jail for violating a reopen order, when, if any penalty at all, a small fine would have been more in keeping with the actions of a lady who just wanted to feed her family.

Yet, just because he could and because of his personal feelings Judge Moye decided it would be better to incarcerate her in a jail where actual criminals, who had committed seriously harmful crimes had been turned back out on the street for fear of a Coronavirus spread in the jail.

When the premier law enforcement and finest investigative agency in the world stoops to the deceptive antics they have been guilty of the last few years, indictment by trickery, threats of financial ruin, trying to script testimonies, lying to obtain warrants and sullying the reputations of a time-honored agency like the FBI, it is a dark day for due process, and an even darker day for the thousands of honest and dedicated men and women who make up the rank and file.

James Comey is a national disgrace and a dangerous loose cannon, who, as the Bible says, gags on a gnat and swallows a camel.

Hillary Clinton used an unsecured internet server to conduct the business of the United States State Department, destroyed thousands of subpoenaed documents and Comey, in spite of mountains of evidence of criminal wrongdoing, exonerated her.

And Comey, along with other FBI officials signed FISA warrant applications issued on information they knew to be false.

Why was Lois Lerner, who weaponized the Internal Revenue Service never pursued past her fifth amendment plea?

Easy answer, because the trail would have led to places the powers to be at the time didnt want to go.

Why was Susan Rice not questioned about the supposed video that so angered the Islamists in Libya they attacked an embassy killing four Staff including a US ambassador, while four more Americans were left to fend for themselves for 13 hours while Barack Obama and Hillary Clinton twiddled their thumbs.

Was the person who made and released the video ever identified and his case tried for whatever crime the Obama administration deemed him guilty of?

Why did it take a swat team the size of a small army to arrest Roger Stone in the middle of the night? Was such a show of force with armored vehicles and frogmen for the benefit of the CNN crew that just happened to be in the neighborhood in the wee hours of the morning?

The three institutions Im speaking about, media, law enforcement and judicial system have the conglomerate power to hound, charge, or not charge, convict and sentence innocent people to jail time, to defend or condemn, to investigate or ignore, to pass out light or heavy sentences or no sentences, all dependent on politics, ideology or sometimes, just personal like or dislike.

These three, acting in concert could subvert justice to the point where it doesnt even really exist.

Agenda driven media, activist judges and crooked law enforcement are the things that make up nightmares and dictatorships.

Pray for our troops our police and the peace of Jerusalem.

(PUB. NOTE: Charlie Daniels is an iconic, best-selling American recording artist, singer, songwriter, fiddle player, and author whose recordings including The Devil Went Down to Georgia have sold in the tens of millions. He is a member of The Grand Ole Opry and The Country Music Hall of Fame. Readers can follow Charlies SoapBox blogs on his website, http://www.charliedaniels.com, where you can also find his tour schedule and news of upcoming events.)

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SOAP BOX: Judicial, media and agency activism: the scourge of the twenty-first century - Therogersvillereview

By Michael Loucks

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Law360 (May 29, 2020, 5:00 PM EDT) --

When the pandemic erupted in earnest in March and states began implementing stay-at-home orders or guidances, the federal courts, which supervise the federal grand juries, suspended (virtually) all nonemergency sessions. As the country begins to emerge from home confinement, the courts will begin to loosen restrictions on the sitting of grand juries. Will they fully recover and what does that mean?

The U.S. Supreme Court has called the grand jury a "kind of buffer or referee between the Government and the people" and asserted that an "independent and informed grand jury" is a "necessity to society." The Department of Justice Manual provides that the grand jury "is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal prosecutions."

The rules permit the prosecutor to seek an indictment based solely upon hearsay evidence, so long as the grand jury knows that the evidence is indeed hearsay to the witness presenting it. Criticism of the grand jury as a barrier to unfounded prosecutions has included the statement by New York Judge Sol Wachtler: "If a district attorney wanted, a grand jury would indict a ham sandwich."

The grand jury is an efficacious investigative tool. It acts in secret, which allows witnesses to recount events far from the glare of publicity and pressure that accompanies it. Individuals under investigation may not know who is testifying and accordingly may not bring improper pressure to bear.

Witnesses who refuse to provide evidence can be compelled to testify, and even immunized upon assertion of the Fifth Amendment to decline to answer questions. Subpoenas may be issued to collect documents from third parties, including those reluctant to help in the investigation of criminal conduct. And, as the DOJ itself recognizes, it can act as a protection for defendants from meritless charges.

Two things are clear: Only a grand jury can return an indictment, and only a grand jury that is given the opportunity to evaluate the government's core evidence can act as a bulwark against unfounded prosecutions.

While prosecutors can seek an indictment with only the presentation of hearsay evidence, following such a practice in all matters and for all evidence not only eviscerates the efficacy of the grand jury as an investigative tool (it is hearing only evidence already collected), such a practice effectively eliminates the grand jury's efficacy as a bulwark.

Until 2014, the DOJ reported the number of "proceedings before grand jury" in the aggregate for all United States attorney's offices. The number of grand jury proceedings rose fairly steadily from 23,925 in 1990 to a peak of 47,253 in 2010. After reporting consecutive annual drops to 41,324 in 2013, the DOJ eliminated, without explanation, further reports of this data from the annual report.

Nevertheless, the DOJ has continued to report the number of hours that the individual United States attorneys' offices spend in the grand jury. The reported grand jury hours present a stark picture of diminishing grand jury investigations and protections for citizens.

The chart below reflects, at five-year intervals from 1985 and for each year from 2006, the grand jury hours reported by the DOJ, the total criminal cases filed, and the grand jury hours per criminal case (the total for years 2005-2007 have been corrected using an average for the U.S. District Court for the District of Columbia across 2003 through 2009 given apparent reporting errors for the middle three years for that federal court).The hours per case overstate the actual hours spent on each matter in which an indictment is returned as there will be in each year matters that are investigated and for which no indictment is returned.

The drop in hours is even more startling for certain United States attorneys. In 2008, the Chicago United States attorney spent 2,718 hours before the grand jury; by 2011 that number had dwindled to 360, and would drop further to just 133 in 2018. The United States attorney in Boston spent 2,889 hours before the grand jury in 2008; in 2011, those hours had dropped to 1,281 and would further dwindle to 566 in 2018. The United States attorney in Los Angeles spent 1,353 hours before the grand jury in 2008; in 2018, these hours had dropped to 495.

One might consider these numbers to simply be erroneous reports; the drops are so prodigious. Corroboration exists. The federal courts have reported total grand jury hours and criminal proceedings filed by indictment since 2012; the courts' data reflects 36-42 minutes per indictment during the period 2012-2018. While slightly higher than the 24-36 minutes reported by the DOJ, both reports are in the same small ballpark.

The DOJ's data reflects poorly on the use of the grand jury as either an investigative tool or a bulwark against unfounded prosecutions. Where the grand jury spent on average two hours collecting and evaluating evidence in a criminal case between 1985 and 1995, by 2000, that time had been cut in half, to just 60 minutes.

The grand jury time remained relatively unchanged through 2009, when the grand jury time per case stood at 54 minutes. The time per case then resumed its slide; by 2011, grand juries were spending just 30 minutes per criminal case indicted. After rising marginally for three years to 36 minutes, the time per case has again dropped, to just 24 minutes in 2018.

In short, in a generation, the grand jury time per case has dropped from 126 minutes to just 24. Factoring in the time necessary for introducing a matter to the grand jury, swearing in witnesses, requesting the return of an indictment, deliberating, and appearing before a judge to return the indictment, grand jury time spent hearing actual witness testimony is hardly likely to be even 10 minutes per indictment returned.

Assuredly, the pandemic has not changed this trend; while most federal court orders closing court houses do not explicitly shutter all grand jury proceedings, the major United States attorney's offices have announced few, if any, indictments since early March.

In the near term, citizens called upon to serve in grand juries may be reluctant to do so in the shadow cast by the coronavirus and the potential for it to reemerge. Federal prosecutors, already using the grand jury less than they were 20 years ago, may themselves be reluctant to use them. With the reopening of grand juries by the federal courts this summer, can we expect a return to a further dwindling of their use by federal prosecutors?

The vanishing grand jury over the past 35 years marks step with the DOJ's dramatic reduction in all prosecutions since 2011. If the DOJ believes as its manual states, the DOJ must also be concerned that the grand jury, as presently used, has lost much of its efficacy as a barrier to unfounded prosecutions.

Conclusion

Beginning in 2011, the United States attorneys and the Department of Justice have substantially reduced all criminal prosecutions; with limited exceptions, that across the board reduction continued into 2018.

This drop was coupled with a reduction in the use of the grand jury as an investigative tool. In those seven years of declining prosecutions, the time spent by federal prosecutors per case in actual grand jury investigation dropped from 60 minutes to less than 25 minutes per case.

The courts have in the past refused to look behind the curtain at the extent and nature of a prosecution's presentation to the grand jury, including refusing to require presentment to the grand jury of exculpatory evidence. At some point, though, there may be a tipping point, and a court will conclude that the government's presentation to the grand jury in seeking criminal charges is so spare as to not satisfy the Fifth Amendment's requirement of a "presentment or indictment of a grand jury." With just 24 minutes per indictment, we may be at that tipping point.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

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Will Grand Juries Ever Recover From The Pandemic? - Law360