This order denies the plaintiffs' motion for a preliminary injunction on their facial constitutional challenges to Article 19 of the Revised Ordinances of Honolulu. The order finds that: (1) Article 19 is a reasonable time, place, and manner restriction that is content-neutral and narrowly tailored to serve the significant government interest of maintaining public areas; (2) Plaintiffs are not likely to succeed on their claim that Article 19 is overly broad in violation of the First Amendment; and (3) Plaintiffs have failed to establish all the required elements for a preliminary injunction, including likelihood of success on the merits of their claims. Therefore, the court denies the plaintiffs' motion for a preliminary injunction based on their facial challenges to Article 19.
A judge on the United States Court of Appeals for the Second Circuit for the past 11 years, Sonia Sotomayor is now high on lists that lawyers and politicians have assembled of possible replacements for Justice David H. Souter of the Supreme Court. She has a reputation as a sharp, outspoken and fearless jurist, and many of her opinions have demonstrated a willingness to take the government to task whenever she believes the circumstances warrant it.
A judge on the United States Court of Appeals for the Second Circuit for the past 11 years, Sonia Sotomayor is now high on lists that lawyers and politicians have assembled of possible replacements for Justice David H. Souter of the Supreme Court. She has a reputation as a sharp, outspoken and fearless jurist, and many of her opinions have demonstrated a willingness to take the government to task whenever she believes the circumstances warrant it.
One of the many documents out and coming out that will show how it works. Garbage & Wilk circle the wagons and getting ready to cut Darren Meade adrift.
When Do Gas Drilling Bans Violate the Constitution of the United StatesKenneth Kamlet
An analysis of whether and when bans or moratoria on unconventional gas drilling and support activities, as practiced in New York by the State (de facto) and numerous localities, violate the "dormant" commerce clause of the U.S. Constitution.
A petition filed by the litigious Pennsylvania Environmental Defense Foundation preemptively asking PA Commonwealth Court to prevent Gov. Tom Corbett from issuing an executive order that would allow a little more drilling under (not on) some PA state land. The order by Corbett maintains a moratorium on new drilling that involves surface disturbance and requires any new drilling to be done from adjacent private property. The plan would raise an additional $75 million for PA's budget.
Farnsworth v Burhart - Decision from OH Seventh District Court of Appeals on ...Marcellus Drilling News
A decision from the Ohio Seventh District Court of Appeals on certain provisions regarding the 1989 Ohio Dormant Minerals Act. The court found: The 1989 DMA is self-executing; the 1989 DMA creates a fixed, rather than a rolling, look-back period; and a reference to a prior mineral severance in a surface conveyance is not a title transaction savings event. This is not the last word about the DMA. A major DMA case now sits before the OH Supreme Court to determine whether the 1989 or 2006 version of the law governs certain situations.
While working as a summer law clerk at Mayer & Mayer, I wrote this informational memorandum that outlines the historical origins and modern application of Vermont laws regarding fraudulent transfers.
Newtown Loses By Default Judgment- NECA -vs- KaaihueAngela Kaaihue
Newtown Loses By Default Judgment- NECA -vs- Kaaihue, a five year litigation and court battle. When NECA board of directors, and community are jealous for driving right by a property that could have been purchased, but was inherited by Angela Kaaihue, who has turned the property she inherited into a Hawaiian Gold Mine.
Hawaii Appellant Court Supreme Court judge castegnetti, judge jeffrey crabtree, judge karen t. nakasone, judge katherine g. leonard, judge keith hiraoka, judge lisa m. ginoza, judge sonja mccullen, judge clyde j. wadsworth, judge karen holma, judge gary W.B. chang
One of the many documents out and coming out that will show how it works. Garbage & Wilk circle the wagons and getting ready to cut Darren Meade adrift.
When Do Gas Drilling Bans Violate the Constitution of the United StatesKenneth Kamlet
An analysis of whether and when bans or moratoria on unconventional gas drilling and support activities, as practiced in New York by the State (de facto) and numerous localities, violate the "dormant" commerce clause of the U.S. Constitution.
A petition filed by the litigious Pennsylvania Environmental Defense Foundation preemptively asking PA Commonwealth Court to prevent Gov. Tom Corbett from issuing an executive order that would allow a little more drilling under (not on) some PA state land. The order by Corbett maintains a moratorium on new drilling that involves surface disturbance and requires any new drilling to be done from adjacent private property. The plan would raise an additional $75 million for PA's budget.
Farnsworth v Burhart - Decision from OH Seventh District Court of Appeals on ...Marcellus Drilling News
A decision from the Ohio Seventh District Court of Appeals on certain provisions regarding the 1989 Ohio Dormant Minerals Act. The court found: The 1989 DMA is self-executing; the 1989 DMA creates a fixed, rather than a rolling, look-back period; and a reference to a prior mineral severance in a surface conveyance is not a title transaction savings event. This is not the last word about the DMA. A major DMA case now sits before the OH Supreme Court to determine whether the 1989 or 2006 version of the law governs certain situations.
While working as a summer law clerk at Mayer & Mayer, I wrote this informational memorandum that outlines the historical origins and modern application of Vermont laws regarding fraudulent transfers.
Newtown Loses By Default Judgment- NECA -vs- KaaihueAngela Kaaihue
Newtown Loses By Default Judgment- NECA -vs- Kaaihue, a five year litigation and court battle. When NECA board of directors, and community are jealous for driving right by a property that could have been purchased, but was inherited by Angela Kaaihue, who has turned the property she inherited into a Hawaiian Gold Mine.
Hawaii Appellant Court Supreme Court judge castegnetti, judge jeffrey crabtree, judge karen t. nakasone, judge katherine g. leonard, judge keith hiraoka, judge lisa m. ginoza, judge sonja mccullen, judge clyde j. wadsworth, judge karen holma, judge gary W.B. chang
Presented to Chapter 38 members of the International Right of Way Association (IRWA) outlining the eminent domain process, including which property rights are eligible for constitutional protection, who may exercise the power of eminent domain and what procedures must be followed. IRWA is considered the central authority for right of way education for professionals acquiring property rights for highway projects, pipelines, electric lines and other utilities.
Sixth Circuit Court of Appeals Decision in Harper v Muskingum Watershed Conse...Marcellus Drilling News
Anti-drilling landowners (backed by Food & Water Watch) claimed the Muskingum Watershed Conservancy District had violated the deed to the land it owns by leasing that land for Utica Shale drilling. The Sixth Circuit dismissed the case. The anti-drillers lost.
San Diego attorney Scott McMillan sued Darren Chaker under federal RICO laws asking the court to order search engines to remove online content about Scott McMillan, such as a report stating Scott McMillan's involvement in child molestation and horrific loss rate in court, being in federal court on fraud allegations (Brightwell v. McMillan United States District Court, Case No. 16-CV-1696 W (NLS) ) and being labeled a vexatious litigant. Scott McMillan who is also the Dean of the McMillan Academy of Law in La Mesa, California suffered a traumatic loss when the federal court ordered the entire case dismissed.
Overview of eminent domain law, including constitutional basis, necessity and public use requirements, compensation, damages, fair market value, highest and best use, appraisal methodologies, and the date of take.
SDFL - Order Dismissing Various Claims - Jurisdiction - Trade SecretsPollard PLLC
The Plaintiff filed a 20 count lawsuit alleging, among other counts, theft of trade secrets, unjust enrichment, breach of fiduciary duty, trademark infringement, violations of the Computer Fraud Abuse Act and more.
This is the classic shock and awe, everything and the kitchen sink approach to litigation.
In this instance, that approach backfired spectacularly. The Court dismissed 17 of the counts on jurisdictional grounds -- holding they cannot be refiled in federal court but must be pursued, if at all, in state court.
The court also dismissed one count with prejudice. Denied the motion to dismiss with respect to one count. And granted leave to amend on one count--- but warned plaintiff and its counsel to mind Rule 11 if they decide to amend.
Think twice before you file a 20 count complaint in federal court where you are literally throwing everything at the wall and hoping something sticks.
See if you can see the NEXUS/CONNECTION/RELATIONSHIP with the Anna Louise Inn Scandal/Lawsuit and Ladye Margaret Townsend's BANKRUPTCY Action. If NOT, we are going to show the PUBLIC/WORLD the PATTERN-OF-CRIMINAL practices that have United States of America's President Barack Obama's and his Legal Counsel Baker Donelson Bearman Caldwell & Berkowitz' PARTICIPATION all OVER IT!
REBUTTAL TO 093015 BANKRUPTCY COURT FRIVOLOUS FINAL JUDGMENT - SHELLACKING 10...VogelDenise
We look forward to providing with a copy of the REBUTTAL to Bankruptcy Judge Edward Ellington's 9/30/15 Final Judgment . . . in the Townsend matter. Please be patient and return at a later date. In the meantime, you may want to visit our website at www.vogeldenisenewsome.net
Gov. Ige sent a letter to California Congresswoman Anna Eshoo in response to her August 2020 request for information about Hawaii's pandemic response.
https://www.civilbeat.org/2020/08/california-congresswoman-wants-answers-on-hawaiis-virus-response-effort/
Audit of the Department of the Honolulu Prosecuting Attorney’s Policies, Proc...Honolulu Civil Beat
This audit was conducted pursuant to Resolution 19-255,
requesting the city auditor to conduct a performance audit of the Honolulu Police Department and the Department of the Prosecuting Attorney’s policies and procedures related to employee misconduct.
Audit of the Honolulu Police Department’s Policies, Procedures, and ControlsHonolulu Civil Beat
The audit objectives were to:
1. Evaluate the effectiveness of HPD’s existing policies, procedures, and controls to identify and respond to complaints or incidents concerning misconduct, retaliation, favoritism, and abuses of power by its management and employees;
2. Evaluate the effectiveness of HPD's management control environment and practices to correct errors and prevent any misconduct, retaliation, favoritism, and abuses of power by its
management and employees; and
3. Make recommendations to improve HPD’s policies, procedures, and controls to minimize and avoid future managerial and operational breakdowns caused by similar misconduct.
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Contact with Dawood Bhai Just call on +92322-6382012 and we'll help you. We'll solve all your problems within 12 to 24 hours and with 101% guarantee and with astrology systematic. If you want to take any personal or professional advice then also you can call us on +92322-6382012 , ONLINE LOVE PROBLEM & Other all types of Daily Life Problem's.Then CALL or WHATSAPP us on +92322-6382012 and Get all these problems solutions here by Amil Baba DAWOOD BANGALI
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Currently pi network is not tradable on binance or any other exchange because we are still in the enclosed mainnet.
Right now the only way to sell pi coins is by trading with a verified merchant.
What is a pi merchant?
A pi merchant is someone verified by pi network team and allowed to barter pi coins for goods and services.
Since pi network is not doing any pre-sale The only way exchanges like binance/huobi or crypto whales can get pi is by buying from miners. And a merchant stands in between the exchanges and the miners.
I will leave the telegram contact of my personal pi merchant. I and my friends has traded more than 6000pi coins successfully
Tele-gram
@Pi_vendor_247
Falcon stands out as a top-tier P2P Invoice Discounting platform in India, bridging esteemed blue-chip companies and eager investors. Our goal is to transform the investment landscape in India by establishing a comprehensive destination for borrowers and investors with diverse profiles and needs, all while minimizing risk. What sets Falcon apart is the elimination of intermediaries such as commercial banks and depository institutions, allowing investors to enjoy higher yields.
when will pi network coin be available on crypto exchange.DOT TECH
There is no set date for when Pi coins will enter the market.
However, the developers are working hard to get them released as soon as possible.
Once they are available, users will be able to exchange other cryptocurrencies for Pi coins on designated exchanges.
But for now the only way to sell your pi coins is through verified pi vendor.
Here is the telegram contact of my personal pi vendor
@Pi_vendor_247
Falcon stands out as a top-tier P2P Invoice Discounting platform in India, bridging esteemed blue-chip companies and eager investors. Our goal is to transform the investment landscape in India by establishing a comprehensive destination for borrowers and investors with diverse profiles and needs, all while minimizing risk. What sets Falcon apart is the elimination of intermediaries such as commercial banks and depository institutions, allowing investors to enjoy higher yields.
how to sell pi coins in South Korea profitably.DOT TECH
Yes. You can sell your pi network coins in South Korea or any other country, by finding a verified pi merchant
What is a verified pi merchant?
Since pi network is not launched yet on any exchange, the only way you can sell pi coins is by selling to a verified pi merchant, and this is because pi network is not launched yet on any exchange and no pre-sale or ico offerings Is done on pi.
Since there is no pre-sale, the only way exchanges can get pi is by buying from miners. So a pi merchant facilitates these transactions by acting as a bridge for both transactions.
How can i find a pi vendor/merchant?
Well for those who haven't traded with a pi merchant or who don't already have one. I will leave the telegram id of my personal pi merchant who i trade pi with.
Tele gram: @Pi_vendor_247
#pi #sell #nigeria #pinetwork #picoins #sellpi #Nigerian #tradepi #pinetworkcoins #sellmypi
The secret way to sell pi coins effortlessly.DOT TECH
Well as we all know pi isn't launched yet. But you can still sell your pi coins effortlessly because some whales in China are interested in holding massive pi coins. And they are willing to pay good money for it. If you are interested in selling I will leave a contact for you. Just telegram this number below. I sold about 3000 pi coins to him and he paid me immediately.
Telegram: @Pi_vendor_247
how can I sell my pi coins for cash in a pi APPDOT TECH
You can't sell your pi coins in the pi network app. because it is not listed yet on any exchange.
The only way you can sell is by trading your pi coins with an investor (a person looking forward to hold massive amounts of pi coins before mainnet launch) .
You don't need to meet the investor directly all the trades are done with a pi vendor/merchant (a person that buys the pi coins from miners and resell it to investors)
I Will leave The telegram contact of my personal pi vendor, if you are finding a legitimate one.
@Pi_vendor_247
#pi network
#pi coins
#money
NO1 Uk Rohani Baba In Karachi Bangali Baba Karachi Online Amil Baba WorldWide...Amil baba
Contact with Dawood Bhai Just call on +92322-6382012 and we'll help you. We'll solve all your problems within 12 to 24 hours and with 101% guarantee and with astrology systematic. If you want to take any personal or professional advice then also you can call us on +92322-6382012 , ONLINE LOVE PROBLEM & Other all types of Daily Life Problem's.Then CALL or WHATSAPP us on +92322-6382012 and Get all these problems solutions here by Amil Baba DAWOOD BANGALI
#vashikaranspecialist #astrologer #palmistry #amliyaat #taweez #manpasandshadi #horoscope #spiritual #lovelife #lovespell #marriagespell#aamilbabainpakistan #amilbabainkarachi #powerfullblackmagicspell #kalajadumantarspecialist #realamilbaba #AmilbabainPakistan #astrologerincanada #astrologerindubai #lovespellsmaster #kalajaduspecialist #lovespellsthatwork #aamilbabainlahore#blackmagicformarriage #aamilbaba #kalajadu #kalailam #taweez #wazifaexpert #jadumantar #vashikaranspecialist #astrologer #palmistry #amliyaat #taweez #manpasandshadi #horoscope #spiritual #lovelife #lovespell #marriagespell#aamilbabainpakistan #amilbabainkarachi #powerfullblackmagicspell #kalajadumantarspecialist #realamilbaba #AmilbabainPakistan #astrologerincanada #astrologerindubai #lovespellsmaster #kalajaduspecialist #lovespellsthatwork #aamilbabainlahore #blackmagicforlove #blackmagicformarriage #aamilbaba #kalajadu #kalailam #taweez #wazifaexpert #jadumantar #vashikaranspecialist #astrologer #palmistry #amliyaat #taweez #manpasandshadi #horoscope #spiritual #lovelife #lovespell #marriagespell#aamilbabainpakistan #amilbabainkarachi #powerfullblackmagicspell #kalajadumantarspecialist #realamilbaba #AmilbabainPakistan #astrologerincanada #astrologerindubai #lovespellsmaster #kalajaduspecialist #lovespellsthatwork #aamilbabainlahore #Amilbabainuk #amilbabainspain #amilbabaindubai #Amilbabainnorway #amilbabainkrachi #amilbabainlahore #amilbabaingujranwalan #amilbabainislamabad
Introduction to Indian Financial System ()Avanish Goel
The financial system of a country is an important tool for economic development of the country, as it helps in creation of wealth by linking savings with investments.
It facilitates the flow of funds form the households (savers) to business firms (investors) to aid in wealth creation and development of both the parties
The European Unemployment Puzzle: implications from population agingGRAPE
We study the link between the evolving age structure of the working population and unemployment. We build a large new Keynesian OLG model with a realistic age structure, labor market frictions, sticky prices, and aggregate shocks. Once calibrated to the European economy, we quantify the extent to which demographic changes over the last three decades have contributed to the decline of the unemployment rate. Our findings yield important implications for the future evolution of unemployment given the anticipated further aging of the working population in Europe. We also quantify the implications for optimal monetary policy: lowering inflation volatility becomes less costly in terms of GDP and unemployment volatility, which hints that optimal monetary policy may be more hawkish in an aging society. Finally, our results also propose a partial reversal of the European-US unemployment puzzle due to the fact that the share of young workers is expected to remain robust in the US.
NO1 Uk Black Magic Specialist Expert In Sahiwal, Okara, Hafizabad, Mandi Bah...Amil Baba Dawood bangali
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#vashikaranspecialist #astrologer #palmistry #amliyaat #taweez #manpasandshadi #horoscope #spiritual #lovelife #lovespell #marriagespell#aamilbabainpakistan #amilbabainkarachi #powerfullblackmagicspell #kalajadumantarspecialist #realamilbaba #AmilbabainPakistan #astrologerincanada #astrologerindubai #lovespellsmaster #kalajaduspecialist #lovespellsthatwork #aamilbabainlahore#blackmagicformarriage #aamilbaba #kalajadu #kalailam #taweez #wazifaexpert #jadumantar #vashikaranspecialist #astrologer #palmistry #amliyaat #taweez #manpasandshadi #horoscope #spiritual #lovelife #lovespell #marriagespell#aamilbabainpakistan #amilbabainkarachi #powerfullblackmagicspell #kalajadumantarspecialist #realamilbaba #AmilbabainPakistan #astrologerincanada #astrologerindubai #lovespellsmaster #kalajaduspecialist #lovespellsthatwork #aamilbabainlahore #blackmagicforlove #blackmagicformarriage #aamilbaba #kalajadu #kalailam #taweez #wazifaexpert #jadumantar #vashikaranspecialist #astrologer #palmistry #amliyaat #taweez #manpasandshadi #horoscope #spiritual #lovelife #lovespell #marriagespell#aamilbabainpakistan #amilbabainkarachi #powerfullblackmagicspell #kalajadumantarspecialist #realamilbaba #AmilbabainPakistan #astrologerincanada #astrologerindubai #lovespellsmaster #kalajaduspecialist #lovespellsthatwork #aamilbabainlahore #Amilbabainuk #amilbabainspain #amilbabaindubai #Amilbabainnorway #amilbabainkrachi #amilbabainlahore #amilbabaingujranwalan #amilbabainislamabad
NO1 Uk Black Magic Specialist Expert In Sahiwal, Okara, Hafizabad, Mandi Bah...
Seabright injunction ruling
1. IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DE-OCCUPY HONOLULU;
CATHERINE RUSSELL;
CHRISTOPHER SMITH; ANDREW
SMITH; MADORI RUMPUNGWORN;
DOMINIC JAMES; and JOHN DOES
1-50;
Plaintiffs,
vs.
CITY AND COUNTY OF
HONOLULU; WESTLEY CHUN, in
his personal and official capacity;
TRISH MORIKAWA, in her personal
and official capacity; LARRY
SANTOS, in his personal and official
capacity; KEN SHIMIZU, in his
personal and official capacity; and
JOHN DOES 1-50,
Defendants.
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CIVIL NO. 12-00668 JMS-KSC
ORDER DENYING PLAINTIFFS’
SUPERCEDING MOTION FOR
PRELIMINARY INJUNCTION,
DOC. NO. 85, ON PLAINTIFFS’
FACIAL CONSTITUTIONAL
CHALLENGES
ORDER DENYING PLAINTIFFS’ SUPERCEDING MOTION FOR
PRELIMINARY INJUNCTION, DOC. NO. 85, ON PLAINTIFFS’ FACIAL
CONSTITUTIONAL CHALLENGES
I. INTRODUCTION
Plaintiffs De-Occupy Honolulu, Catherine Russell, Christopher Smith,
Andrew Smith, Madori Rumpungworn, and Dominic James (“Plaintiffs”) are part
of the “Occupy” movement that has taken place throughout various cities.
Case 1:12-cv-00668-JMS-KSC Document 126 Filed 05/21/13 Page 1 of 20 PageID #:
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2. 2
Plaintiffs have maintained a constant presence at Honolulu’s Thomas Square for
over a year, where they have erected tents, signs, and other artwork. Plaintiffs
bring this action against Defendants City and County of Honolulu (the “City”) and
Westley Chun, Trish Morikawa, Larry Santos, and Ken Shimizu in their personal
and official capacities (collectively, “Defendants”), who have conducted,
participated, and/or overseen several impoundments of Plaintiffs’ property at
Thomas Square. Defendants have conducted these impoundments pursuant to
Chapter 29, Articles 18 and 19 of the Revised Ordinances of Honolulu (“ROH”),
which provide that the City may seize personal property left on public property
after providing twenty-four hours notice. Plaintiffs assert that these ordinances and
impoundments violate the First, Fourth, Fifth, and Fourteenth Amendments, and
the Hawaii Constitution, and assert related state law claims.
Currently before the court is Plaintiffs’ Superceding Motion for
Preliminary Injunction, Doc. No. 85, in which Plaintiffs argue that they are entitled
to injunctive relief because ROH Art. 19 (“Article 19”) on its face violates the First
Amendment and the due process clause of the Fourteenth Amendment. Although
Plaintiffs also initially raised as-applied challenges, the parties subsequently agreed
that they will enter into a Stipulated Injunction addressing these claims. As a
result, the court addresses Plaintiffs’ facial challenge only, and DENIES Plaintiffs’
Case 1:12-cv-00668-JMS-KSC Document 126 Filed 05/21/13 Page 2 of 20 PageID #:
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3. 3
Superceding Motion for Preliminary Injunction on the facial challenges.
II. BACKGROUND
A. Factual Background
The only claims at issue for purposes of the Motion for Preliminary
Injunction are Plaintiffs’ claims that Article 19 is facially invalid.
Article 19 is directed to prohibiting stored personal property on public
property. The purpose of Article 19 is to “maintain public areas in clean, sanitary,
and accessible condition, to prevent harm to the health or safety of the public, to
prevent the misappropriation of public property for personal use, and to promote
the public health, safety and general welfare by ensuring that public property
remains readily accessible for its intended uses.” ROH § 29-19.1.
To that end, ROH § 29-19.3 prohibits persons from storing “personal
property” on “public property.” “Personal property” is defined as “any and all
tangible property, and includes, but is not limited to, items, goods, materials,
merchandise, furniture, equipment, fixtures, structures, clothing, and household
items.” ROH § 29-19.2. “Public property” is defined as “all property that is
owned, managed or maintained by the city, and shall include, but not be limited to
any street, sidewalk, replacement sidewalk, medial strip, space, ground, mall,
building, structure, public park, and any other property of the city.” Id.
Case 1:12-cv-00668-JMS-KSC Document 126 Filed 05/21/13 Page 3 of 20 PageID #:
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4. 4
ROH §§ 29-19.3 and 29-19.4 outline when the City may impound
personal property located on public property. Pursuant to ROH § 29-19.3(a), the
City may impound at any time “personal property placed on public property [that]
interferes with the safe or orderly management of the premises or poses a threat to
the health, safety, or welfare of the public.” And pursuant to ROH § 29-19.3(b),
the City may impound personal property on public property after giving twenty-
four hours written notice requiring its removal. ROH § 29-19.4(a) provides that
the written notice:
shall be deemed to have been served if a copy of the
written notice is served on the person storing the personal
property or is posted prominently and conspicuously on
the stored personal property. The written notice shall
contain the following:
(1) A description of the personal property to be
removed (such description may refer to an attached
photograph).
(2) The location of the personal property.
(3) The date and time the notice was posted.
(4) The section of the ROH that is being violated.
(5) A statement that the personal property will be
impounded if not removed within 24 hours.
(6) The location where the removed property will
be stored.
(7) A statement that impounded property will be
sold or otherwise disposed of if not claimed within
30 days after impoundment.
(8) A statement that the property owner shall be
responsible for all costs of removal, storage and
disposal.
Case 1:12-cv-00668-JMS-KSC Document 126 Filed 05/21/13 Page 4 of 20 PageID #:
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5. 5
Once personal property is impounded, ROH § 29-19.5(a) requires the
City to store it, and the owner of the impounded property “shall be assessed
moving, storage, and other related fees and costs” and “shall bear the responsibility
for the risk of any loss or damage to the impounded property.”
If the City wishes to dispose of the impounded items, “[a]t least 30
days prior to disposal of impounded personal property, the city shall serve notice in
writing apprising the owner of the personal property of the description and location
of the impounded personal property and of the intent of the city to sell, donate, or
otherwise dispose of the impounded property.” ROH § 29-19.5(b). Alternatively,
the City may auction, sell by negotiation, keep by the City, or donate to any other
government agency or charitable organization impounded personal property. ROH
§ 29-19.5(c).
Prior to disposal, an owner may repossess his impounded property
“upon submitting satisfactory proof of ownership or entitlement and payment of all
unpaid rent, debts, and charges owing and all handling, storage, appraisal,
advertising, and other expenses incurred by the city in connection with the
proposed disposal of the impounded property.” ROH § 29.19-7.
///
///
Case 1:12-cv-00668-JMS-KSC Document 126 Filed 05/21/13 Page 5 of 20 PageID #:
2707
6. 6
B. Procedural Background
On December 12, 2012, Plaintiffs filed this action, and their Second
Amended Complaint asserts claims titled: (1) Violation of Fourth Amendment;
(2) Due Process Violation; (3) First Amendment Violation; (4) Takings Clause;
(5) Conspiracy; (6) Failure to Train and Supervise; (7) Hawaii Constitution --
Unreasonable Seizure; (8) Hawaii Constitution -- Property and Due Process
Protections; (9) Hawaii Constitution -- Freedom of Speech; (10) Hawaii
Constitution -- Law of the Splintered Paddle; (11) Conversion; (12) Replevin;
(13) Negligence; (14) Negligent Supervision and Training; (15) Trespass to
Chattels; and (16) Fraud. Doc. No. 80.
On April 1, 2013, Plaintiffs filed their Superceding Motion for
Preliminary Injunction. Doc. No. 85. Defendants filed an Opposition on April 15,
2013, Doc. No. 90, and Plaintiffs filed a Reply on April 29, 2013. Doc. No. 95. At
a May 10, 2013 status conference, the parties agreed that although Plaintiffs had
raised both facial and as-applied challenges to Article 19, the parties would be able
to reach an agreement regarding a stipulated injunction as to Plaintiffs’ as-applied
claims, leaving only the facial challenge for the court to decide. On May 15, 2013,
Defendants submitted supplemental briefing on the facial due process challenge.
Doc. No. 122. A hearing was held on May 17, 2013.
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III. STANDARD OF REVIEW
“A preliminary injunction is an extraordinary and drastic remedy
[that] is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008)
(citation and quotation signals omitted). To obtain a preliminary injunction, a
plaintiff “must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). So long as all
four parts of the Winter test are met, “a preliminary injunction [may] issue where
the likelihood of success is such that ‘serious questions going to the merits were
raised and the balance of hardships tips sharply in [plaintiff’s] favor.’” Alliance for
Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “In other words,
‘serious questions going to the merits’ and a hardship balance that tips sharply
toward the plaintiff can support issuance of an injunction, assuming the other two
elements of the Winter test are also met.” Id. at 1132.
IV. ANALYSIS
To be entitled to preliminary injunctive relief under Winter, Plaintiffs
must “make a showing on all four prongs.” Id. Based on the following, the court
finds that Plaintiffs have failed to establish that they are entitled to preliminary
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injunctive relief as to any of their facial challenges at this time because Plaintiffs
have failed to establish at least one prong for each claim.
A. First Amendment
Plaintiffs seek preliminary injunctive relief on the basis that Article 19
is “overly broad and/or serves as a prior restraint to vigils or demonstrations lasting
more than 24 hours” and therefore violates the First Amendment. Doc. No. 85-1,
Pls.’ Mot. at 14. Plaintiffs are not likely to succeed on this facial challenge.
1. Overbreadth
The overbreadth doctrine protects against the chill of constitutionally
protected speech that may arise from a threat of enforcement of an overbroad law.
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
944 (9th Cir. 2011) (en banc) (“Redondo Beach”). “In a facial challenge to a law’s
validity under the First Amendment, the ‘law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” Id. (quoting United States v. Stevens, 130 S.
Ct. 1577, 1587 (2010)). Plaintiffs “need not necessarily introduce admissible
evidence of overbreadth, but generally must at least ‘describe the instances of
arguable overbreadth of the contested law.’” Id. (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449 n.6 (9th Cir. 2008)).
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At the May 17, 2013 hearing, Plaintiffs conceded that Article 19 is content-neutral.
2
Article 19 does not directly regulate speech, instead, it prohibits personal property from
being stored on public property for more than twenty-four hours. It may arguably regulate
speech, however, to the extent it prevents an individual from engaging in expression using
personal property on public property for more than twenty-four hours. Because the court finds
that the Article 19 does not meet the “time, place, and manner” test, the court assumes without
deciding that Article 19 in fact regulates speech for purposes of the analysis.
3
That Article 19 regulates speech on public sidewalks, which “‘occup[y] a special
position in terms of First Amendment protection,’” Redondo Beach, 657 F.3d at 944, does not
change the analysis. Courts nonetheless apply the “time, place, and manner” to such regulations.
See, e.g., id.; Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011).
9
A content-neutral ordinance such as Article 191
is subject to
intermediate scrutiny under the “time, place, and manner” test. See id. at 945.
Under this test, “the government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions ‘are justified
without reference to the content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information.’” Id. (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Applying these principles, Article 19 -- to the extent it regulates
speech2
-- is a reasonable “time, place, and manner” restriction.3
First, Article 19 is
justified without reference to the content of any speech -- Article 19 prohibits the
storage of private property on public property so that public property is available
for use by all persons. Second, Article 19 is narrowly tailored to prohibit the
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storage of private property on public property -- Article 19 does not ban all
personal property on public property, only personal property left on public
property for more than twenty-four hours. Ward, 491 U.S. at 798 (explaining that
an ordinance “need not be the least restrictive or least intrusive means of”
achieving the government’s goals, but it may not “burden substantially more
speech than is necessary”). As a result, Article 19 affects at most only a minute
sliver of protected speech -- individuals who wish to engage in protected speech
for more than twenty-four hours using personal property to engage in such speech.
Third, given the small amount of protected speech affected, Article 19 still leaves
open numerous alternative channels for protected speech. See Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984).
The court therefore finds that Plaintiffs are not likely to succeed on
their facial overbreadth challenge and are therefore not entitled to preliminary
injunctive relief on this claim. See, e.g., DISH Network Corp. v. F.C.C., 653 F.3d
771, 776-77 (9th Cir. 2011) (determining that where claimant failed to establish
likelihood of success on the merits, the court “need not consider the remaining
three” elements for preliminary injunctive relief).
///
///
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2. Prior Restraint
The prior restraint doctrine provides that “a law cannot condition the
free exercise of First Amendment rights on the unbridled discretion of government
officials.” World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 687 (9th
Cir. 2010) (quoting Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814,
818 (9th Cir. 1996) (internal quotation marks omitted)). “Unbridled discretion
challenges typically arise when discretion is delegated to an administrator, police
officer, or other executive official,” as opposed to a legislative body. Id. (quoting
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1042 (9th
Cir. 2009)). The prior restraint doctrine generally applies in the licensing context,
requiring an “official to provide an explanation for his decision.” Id. (quoting
Long Beach Area Peace Network, 574 F.3d at 1025).
The prior restraint doctrine does not apply to Article 19. Article 19
neither creates a permitting structure, nor gives any City officials unbridled
discretion in determining when to impound items of personal property. Rather,
Article 19 outlines that the City may impound personal property left on public
property only if it poses a threat the “health, safety, or welfare of the public,” or
only after giving twenty-four hours notice. ROH § 29-19-3. The court therefore
finds that Plaintiffs are not likely to succeed in establishing that Article 19 is an
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impermissible prior restraint, and are therefore not entitled to preliminary
injunctive relief on this claim.
B. Due Process -- Lack of Hearing
Plaintiffs assert that Article 19 violates the due process clause of the
Fourteenth Amendment because it offers no opportunity for hearing, whether
before or after the seizure of personal property.
Under the Fourteenth Amendment, “[n]o state shall . . . deprive any
person of life, liberty, or property, without due process of laws.” U.S. Const.
amend. XIV. “Property” for purposes of the Fourteenth Amendment includes an
individual’s personal possessions. See Fuentes v. Shevin, 407 U.S. 67, 84 (1972).
Where a protected interest is implicated, the relevant question is “what procedures
constitute ‘due process of law.’” Lavan v. City of Los Angeles, 693 F.3d 1022,
1031 (9th Cir. 2012) (quoting Ingraham v. Wright, 430 U.S. 651, 672 (1977)).
“The fundamental requirement of due process is the opportunity to be
heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). “This inquiry [] examine[s] the procedural safeguards built into the
statutory or administrative procedure of effecting the deprivation, and any
remedies for erroneous deprivations provided by statute or tort law.” Zinermon v.
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Burch, 494 U.S. 113, 126 (1990). As Mathews outlines, determination of what
process is due is a fact-specific inquiry requiring consideration of three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail.
424 U.S. at 335.
Applying these principles, there is no dispute that Plaintiffs have a
property interest in their possessions that are impounded and stored pursuant to
Article 19. See Lavan, 693 F.3d at 1031 (determining that plaintiffs have a
property “interest in the continued ownership of their personal possessions”).
Thus, the relevant question is whether Plaintiffs have a likelihood of success in
establishing that Article 19 violates the Fourteenth Amendment for failure to
provide either a pre- or post- deprivation hearing. Considering the Mathews
factors, the court finds that Plaintiffs have not carried their burden.
First, the court recognizes that a strong private interest exists in
Plaintiffs’ continued ownership of their possessions, especially given that the
possessions impounded under Article 19 may be everything that a homeless
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This post-seizure notice must be served on the owner of the impounded property if
known, or “posted for three consecutive days on the public property where the property was
stored or seized” if the owner is not known. ROH § 29-19.5(b).
5
Article 19 stands in stark contrast to other ordinances allowing immediate seizure and
(continued...)
14
individual owns. See, e.g., id. at 1032 (“For many of us, the loss of our personal
effects may pose a minor inconvenience. However, . . . the loss can be devastating
for the homeless.” (quoting Pottinger v. City of Miami, 810 F. Supp. 1551, 1559
(S.D. Fla. 1992)); see also Kincaid v. City of Fresno, 2006 WL 3542732, at *37
(E.D. Cal. Dec. 8, 2006) (“[A] homeless person’s personal property is generally all
he owns; therefore, while it may look like ‘junk’ to some people, its value should
not be discounted.” (quotations and citations omitted)).
Yet Article 19 includes several safeguards to prevent the erroneous
deprivation of Plaintiffs’ property, including that the City must: (1) provide
twenty-four hours written notice before items are seized, ROH §§ 29-19.3(b),
29-19.4(a); (2) provide post-seizure notice describing the items that have been
taken and the location where they may be retrieved, ROH § 29-19.5(b);4
and
(3) hold seized items for at least thirty days before destruction. Id. Thus, at every
step -- pre-seizure, post-seizure, and pre-destruction -- the City is required to
“announce its intentions” and allow Plaintiffs the opportunity to either move their
items away from public property to avoid seizure or retrieve them post-seizure.5
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(...continued)
destruction of property, which were determined to violate due process. See, e.g., Logan v.
Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (“[T]he State may not finally destroy a
property interest without first giving the putative owner an opportunity to present his claim of
entitlement.”); Lavan, 693 F.3d at 1033 (“The district court did not abuse its discretion when it
found a likelihood of success on Appellees’ Fourteenth Amendment claims, as the City admits it
failed utterly to provide any meaningful opportunity to be heard before or after it seized and
destroyed property belonging to Skid Row’s homeless population.”); Propert v. Dist. of
Columbia, 948 F.2d 1327, 1335 (D.C. Cir. 1991) (“Although [a municipality] may have a strong
interest in the prompt removal of supposed junk vehicles from the streets, its interest in the
immediate destruction of such vehicles is far from apparent.”); Kincaid, 2006 WL 3542732, at
*38 (“The City’s process, or lack thereof, creates not just the risk, but the certainty of erroneous
deprivation.”).
6
The court recognizes that some broad language in Stypmann v. City & Cnty. of San
Francisco, 557 F.2d 1338, 1344 (9th Cir. 1977), suggests that a hearing is generally required,
whether pre- or post-seizure. See id. (“Seizure of property without prior hearing has been
(continued...)
15
See Lavan, 693 F.3d at 1032 (“[T]he government may not take property like a thief
in the night; rather, it must announce its intentions and give the property owner a
chance to argue against the taking.” (quoting Clement v. City of Glendale, 518 F.3d
1090, 1093 (9th Cir. 2008)). By giving these opportunities to prevent permanent
deprivation of Plaintiffs’ possessions, the process outlined in Article 19 appears
wholly reasonable, see Lavan, 693 F.3d at 1032 (“[D]ue process requires law
enforcement “to take reasonable steps to give notice that the property has been
taken so the owner can pursue available remedies for its return.” (quoting City of
West Covina v. Perkins, 525 U.S. 234, 240 (1999)), and Plaintiffs offer no
explanation of how a hearing would add any additional value to prevent the
erroneous deprivation of personal property.6
Indeed, to avoid seizure of their
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(...continued)
sustained only where the owner is afforded prompt post-seizure hearing at which the person
seizing the property must at least make a showing of probable cause.”). The court does not
construe Stypmann, however, as requiring a “hearing” in the formal sense where Article 19
provides twenty-four hours notice before the seizure, and further provides that the owner of
impounded property may simply obtain its return by establishing proof of ownership. Under
such circumstances, a hearing would add nothing to prevent an erroneous deprivation, which in
any event could be adequately addressed through state tort law. See Catron v. City of St.
Petersburg, 2009 WL 3837789, at *8 (M.D. Fla. Nov. 17, 2009) (determining that state tort law
provided adequate due process for any negligent loss of seized property under ordinance similar
to the City’s ordinance in this action) (citing Parratt v. Taylor, 451 U.S. 527, 541-44 (1981)
(finding a pre-deprivation hearing unworkable because a state cannot predict the negligent loss
of property), overruled by Daniels v. Williams, 474 U.S. 327, 336 (1986), (finding that no
Section 1983 liability arises out of a government official’s negligent act)).
16
property, Plaintiffs may simply remove their items from public property within
twenty-four hours of notice being posted, and to avoid their destruction, Plaintiffs
may simply seek their return from the City. Given these multiple opportunities to
prevent permanent deprivation, a hearing, whether pre- or post-seizure, would add
little to prevent an erroneous deprivation.
Also weighing against additional procedures is that the City has a
substantial interest in ensuring that public property is available for use by
everyone. Article 19 articulates its purpose as to “maintain public areas in clean,
sanitary, and accessible condition, to prevent harm to the health or safety of the
public, to prevent the misappropriation of public property for personal use, and to
promote the public health, safety and general welfare by ensuring that public
property remains readily accessible for its intended uses.” ROH § 29-19.1. Article
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17. 7
Specifically, ROH § 29-19.8 provides that a person may repossess their seized property
upon “payment of all unpaid rent, debts, and charges owing and all handling, storage, appraisal,
advertising, and other expenses incurred by the city in connection with the proposed disposal of
the impounded property.” ROH 29-19.5 also provides that “the owner shall be assessed moving,
storage, and other related fees and costs” of impounded property.
8
Because Plaintiffs have not established irreparable harm, the court does not address the
likelihood of success on the merits on this claim. See Alliance for Wild Rockies, 632 F.3d at
(continued...)
17
19 balances this interest with Plaintiffs’ rights to their possessions through the
multiple opportunities given for Plaintiffs to avoid seizure and/or destruction of
their property. A hearing -- either pre- or post-seizure -- would certainly increase
the administrative burden of ensuring that public property is available for use by
the entire public, and as explained above, would add little procedural safeguard of
preventing erroneous deprivation of stored property on public property.
Considering these Mathews factors together, the court finds that
Plaintiffs are not likely to succeed on their claim that Article 19 requires a pre- or
post-deprivation hearing. As a result, Plaintiffs are not entitled to preliminary
injunctive relief on this claim.
C. Due Process -- Fee Requirement for Return of Impounded Items
Plaintiffs assert that Article 19’s requirement that owners pay certain
fees7
before repossessing their property violates due process. Because Plaintiffs
have not established the likelihood of irreparable harm on this claim, the court
rejects that Plaintiffs are entitled to preliminary injunctive relief.8
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(...continued)
1135; see also Amylin Pharm., Inc. v. Eli Lilly & Co., 456 Fed. Appx. 676, 679 (9th Cir. 2011)
(“To support injunctive relief, harm must not only be irreparable, it must be imminent;
establishing a threat of irreparable harm in the indefinite future is not enough. Rather, a plaintiff
must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”
(quotations and citations omitted)). Given the court’s finding of no possibility of irreparable
harm, this Order should not be construed as providing any determination of the merits of this
claim.
18
Although Article 19 requires the payment of fees, in their
supplemental briefing and at the May 17, 2013 hearing, counsel for the City
represented that the City has not charged any fees (including charges for handling,
storage, etc.) to property owners seeking return of their impounded personal
property. Indeed, the City cannot charge fees at this time -- such fees and costs
must be first approved and “fixed” by the City Council. Specifically, the Revised
Charter of Honolulu (2000) § 3-112 provides that “[t]he council shall by ordinance
fix the fees and charges for all services rendered by the city and for the use of city
property and facilities, except as otherwise provided by this charter.” In other
words, before the City can charge any fees on property owners in relation to
Article 19, the City Council will first need to take action, and the City Council thus
far has failed to do so.
In light of these facts, Plaintiffs cannot establish irreparable harm at
this time -- the City cannot seek fees unless and until the City Council fixes such
fees, and whether and when such event occurs is entirely speculative. Because
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Plaintiffs cannot establish irreparable harm on this claim, Plaintiffs are not entitled
to preliminary injunctive relief. Of course, if the City takes steps to fix the fees
and/or otherwise charges fees to property owners seeking repossession of the
impounded property, Plaintiffs may renew their request for preliminary injunctive
relief on this claim.
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V. CONCLUSION
Based on the following, the court DENIES Plaintiffs’ Superceding
Motion for Preliminary Injunction, Doc. No. 85, to the extent it seeks relief based
on facial constitutional challenges.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 21, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
De-Occupy Honolulu et al. v. City & Cnty. of Honolulu et al., Civ. No. 12-00668 JMS-KSC,
Order Denying Plaintiffs’ Superceding Motion for Preliminary Injunction, Doc. No. 85, on
Plaintiffs’ Facial Constitutional Challenges
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