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My Detroit Free Press op ed on Sotomayor and Didden:

The Detroit Free Press recently published my op ed on Sotomayor and the Didden case:

It's not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London. But Judge Sonia Sotomayor, now herself up for the Court, succeeded. In the 2006 case of Didden v. Village of Port Chester she signed on to perhaps the worst federal court property rights decision in recent memory. In Kelo the Court held that the government can condemn a person's property and transfer it to someone else in order to promote economic development. In Didden, Judge Sotomayor's panel went further, upholding the government's condemnation of property after the owners refused to pay extortion money to a politically influential private developer.

This op ed is actually largely the same one as that published in the Orange County Register on Saturday. However, unlike the Register, the Free Press did not cut the parts responding to the main arguments advanced by Didden's defenders.

Steve:
Isn't Michigan already one of the most anti-eminent domain states out there? When you already have a State Supreme Court decision that forbids the use of eminent domain for economic development, the outcome of a case like Kelo is pretty irrelevant to you.

I guess I'm surprised you would choose to publish in such a venue as opposed to one that actually needs to take serious action in terms of eminent domain reform.
7.17.2009 1:06pm
Ilya Somin:
I guess I'm surprised you would choose to publish in such a venue as opposed to one that actually needs to take serious action in terms of eminent domain reform.

THe op ed was sent out to many papers simultaneously. The OCR and DFP were the ones that chose to publish it. Moreover, the op ed was principally about federal court protection for property rights, which is an issue that affects the entire country. It says nothing about state-level protection (about which I have written extensively elsewhere).
7.17.2009 1:16pm
SuperSkeptic:
If Michigan is one of the more "anti" eminent domain states, what is/are the most "pro" eminent domain state or states?
7.17.2009 1:26pm
Steve H (mail):
Judge Sotomayor was sitting as one judge on a three-judge panel. How did she, herself, undermine property rights?

If she had dissented, and had done so with the most eloquent, compelling, tear-jerking paean to private property rights in history, there's still two other judges. (Plus the whole statute of limitations argument, which was the true basis for the decision.)
7.17.2009 1:32pm
mariner:
Steve H:
Judge Sotomayor was sitting as one judge on a three-judge panel. How did she, herself, undermine property rights?

SHE . VOTED . FOR . IT .

Even a sailor can get that right. (Some things really are that simple.)
7.17.2009 1:46pm
KWC (mail):
Ilya only weakens his argument by stating his disagreement with Kelo. A strong argument might lie in his pointing out where Sotomayor's decisions contradicted Supreme Court law.

But here the take-away seems to be: Ilya frequently disagrees with federal judges on property-rights issues. It's unclear why the Senate should value Ilya's opinion more highly than five Supreme Court justices and three 2d Circuit judges. Because he's a prof at George Mason? Eh, no gracias.
7.17.2009 2:00pm
RPT (mail):
Mariner:

From the Oped:

"Judge Sotomayor’s ruling in Didden suggests that she would uphold even the most abusive condemnations, taking the Court even further in the same misguided direction."

Steve's point is that the statement that "Sotomayor made the ruling", without the disclosure that (1) it was a decision of a three judge panel, and (2) the other two judges who agreed with her but whose names are concealed were Republican appointees, is misleading. This is a very simple point. An expert legal commentator cannot honestly attribute the decision to her alone; that this is consistently done reflects poorly on the commentators who are not telling the whole truth. Furthermore, the failure to disclose that it was a statute of limitations decision is also misleading.

Why not openly acknowledge that it was "a unanimous three-judge panel of the Second Circuit — Judge Sotomayor and Republican appointees Reena Raggi and Peter Hall"?
7.17.2009 2:06pm
RPT (mail):
PS:

"Didden’s motion asking the full Second Circuit to re-hear his case was denied without recorded dissent, as was his petition for a writ of certiorari to the Supreme Court."
7.17.2009 2:09pm
Allan Walstad (mail):

It's unclear why the Senate should value Ilya's opinion more highly than five Supreme Court justices and three 2d Circuit judges.

Exactly. Who does Ilya Somin think he is, questioning authority like that?
7.17.2009 2:11pm
Stephen Houghton (mail):
"It's unclear why the Senate should value Ilya's opinion more highly than five Supreme Court justices and three 2d Circuit judges."

Because he is right?
7.17.2009 2:18pm
rosetta's stones:
Isn't Michigan already one of the most anti-eminent domain states out there? When you already have a State Supreme Court decision that forbids the use of eminent domain for economic development, the outcome of a case like Kelo is pretty irrelevant to you.

I guess I'm surprised you would choose to publish in such a venue as opposed to one that actually needs to take serious action in terms of eminent domain reform.


Michigan's recent history has been roiled by ED. Poletown was a bloodletting 30 years ago, and the Michigan SC only recently admitted their error. The airport expansion, stadiums, many shenanigans involved with ED in these parts, and I've participated in some of them (professionally unwitting, but I ain't blind either, even if I'm on the "good" side, and there sometimes ain't a "good" side to this in any event.).

It's a dirty business, and the people involved are dirty, sometimes if not often. The best course is to drain or at least lower the swamp. Around the carcass of liberty, jackals will surely gather to feed. Promiscuous use of ED promotes this, and is corrosive and corrupt, imo. Surely the courts must at least recognize this potential, if not include it as weighting their opinion?
7.17.2009 2:32pm
Gulf Coast Bandit (mail):
Forgive me if this has been asked and answered in a previous thread.

In the hearings, under questioning by Senator Grassley, I believe, Judge Sotomayor repeatedly stated that the decision was based on statute of limitations grounds. Is this the entire story? Did the panel misapply the statute of limitations? If not, how is this case a big deal? We don't want judges who will ignore things like the statute of limitations - that leads to activism and empathy and things we don't want, right?
7.17.2009 2:52pm
Commentor (mail):
How exactly does Didden undermine property rights any more than Kelo? I can't see how the extortion argument, even if completely true, undermines property rights at all.

The legislative body had already approved the taking; the developer simply could have taken the property.
7.17.2009 2:54pm
Steve:
How exactly does Didden undermine property rights any more than Kelo? I can't see how the extortion argument, even if completely true, undermines property rights at all.

Only in the sense that, once you have proclaimed something to be the worst thing ever, you must nonetheless find a way to ratchet up the rhetoric when the next occurrence rolls around. It's like how Sotomayor can be the most activist judge ever, and yet the next nominee will surely be even more activist.
7.17.2009 3:10pm
NickM (mail) (www):
Gulf Coast - according to the opinion, the statute of limitations expired in 2002 - for a taking that didn't even happen until 2003. They set the relevant date as the date the neighborhood was approved as a redevelopment area,even though no actual taking of the property had happened (much less the extortion attempt).

Nick
7.17.2009 3:12pm
Steve H (mail):
mariner, I know she voted for it. But the first two sentences of the op-ed suggest something bigger:

It’s not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London. But Judge Sonia Sotomayor, now herself up for the Court, succeeded.

This suggests that Judge Sonia Sotomayor, herself, undermined property rights in Didden.

I don't see how turning a 2-1 decision into a 3-0 per curiam "undermines property rights" to any great extent.

Heck, if she had dissented, then perhaps the case would have been published, and thus would have become binding precedent in the (very populous) Second Circuit, as well as persuasive authority throughout the country.

Perhaps by signing on to the per curiam, Judge Sotomayor actually protected property rights.
7.17.2009 3:20pm
MCM (mail):
Exactly. Who does Ilya Somin think he is, questioning authority like that?


Who said anything about questioning authority? The issue is, "Who is more persuasive?"
7.17.2009 4:13pm
DiverDan (mail):
There is really a very simple point to be made here, and that is the point made by Ilya Somin in his written testimony to the Senate Judiciary Committee. The point can be demonstrated by a straightforward syllogism:

(1) The "public use" limitation in the Takings Clause of the 5th Amendment was intended to be a limitation on the ability of government to use the power of condemnation to take away private property.

(2) The Federal Judiciary's willingness to accept a very broad (almost limitless) definition of "public use" so that it really means any public benefit at all, no matter how speculative, severely undermines the purpose of the "public use" limitation.

(3) Further, by granting almost complete deference to legislative branches in their determinations of what constitutes a "public benefit", the Federal Judiciary has abdicated its proper role as a check on the power of the political branches to abuse condemnation.

(4) Ergo, while the "public use" restriction was supposed to serve as a check on the political branches, the Courts, through (2) and (3) above, have put the foxes in charge of the henhouse.

As to Sotomayor's joinder in a unanimous (and anonymous) 3 judge decision in Didden, I will stipulate that she is not solely to blame, but that certainly does not absolve here of any recriminations for her part; if she disagreed with the other 2 judges, she had a duty to express that disagreement in dissent; if she was just going along for the sake of collegiality with the other members of the panel, that does not speak well of her integrity -- she owes every litigant before her a full and honest evaluation of their claims, and if she did in fact just join an opinion she really did not believe in for the sake of friendship for her panel mates, she denied Didden the fair and impartial decision that he was entitled to.

As to all of the Sotomayor defenders who keep harping on the Statute of Limitations issue as the determinative factor, the decision in Didden on limitations is almost as bad as the decision on pretext takings. A Statute of Limitations Defense under the facts asserted in the Complaint in Didden (remember, this case was decided on a 12(b)(6) Motion at the District Court) makes absolutely no sense for at least three reasons. First, as Professor Somin points out, the whole public use/pretext issue could not have been raised until the extortion demand was made by the City-approved developer; until that demand was made, there was no basis to claim that this was really a pretextual taking. Second, there is the whole issue of ripeness; while Port Chester did designate property as a redevelopment zone in 1999, it did NOT designate any particular property to be condemned or even acquired by the City, NOR did it even adopt or approve any particular development plan. Consequently, Bart Didden had no basis to know in 1999 whether his property might be condemned, or even what kind of redevelopment the City had in mind; any injury to his interest as a property owner in 1999 was highly speculative, and, under the Supreme Court's well settled precedent on ripeness, he simply had no basis to file suit until any potential injury to his interest as a property owner became more concrete. That occurred ONLY when the City gave him notice of the condemnation of his property. Third, the decision that the Statute of Limitations had run before the property had even been designated for condemnation is contrary to Sotomayor's own prior opinion in Brody v. Village of Port Chester, where she held that Due Process required actual notice of a proposed condemnation and notice of the deadline to challenge that condemnation in court. If Sotomayor had followed HER OWN Precedent, she should have rejected the limitations defense.
7.17.2009 4:27pm
Steven Lubet (mail):
Ilya certainly reads a lot into the Second Circuit's summary order, which was premised mainly on the statute of limitations. Even a misaplication of the statute of limitations does not really implicate property rights -- unless one thinks that empathy for a property owner should lead to a more sympathetic application of limitations periods.

Regarding the claimed extortion, how can Ilya be so sure that the allegations were well pled? I read his amicus brief, and I did not see any cites to the underlying complaint (only to the plaintiff's cert petition).
7.17.2009 4:48pm
Steve:
Second, there is the whole issue of ripeness; while Port Chester did designate property as a redevelopment zone in 1999, it did NOT designate any particular property to be condemned or even acquired by the City, NOR did it even adopt or approve any particular development plan. Consequently, Bart Didden had no basis to know in 1999 whether his property might be condemned, or even what kind of redevelopment the City had in mind; any injury to his interest as a property owner in 1999 was highly speculative, and, under the Supreme Court's well settled precedent on ripeness, he simply had no basis to file suit until any potential injury to his interest as a property owner became more concrete.

Under New York state law, you have to challenge a finding of public purpose when the municipality makes it. I think you have 60 days. There's no argument that your challenge isn't "ripe" until your property is actually condemned - your right to challenge the finding of public purpose is statutory.

Once your time to challenge the finding of public purpose has run, and the finding has therefore become conclusive, any subsequent challenge to the condemnation is simply hopeless under Kelo. The reason is that, as Kelo held, as long as there's a legitimate finding of public purpose for an overall redevelopment scheme, the courts will not look piecemeal at the justifications for individual condemnations within that scheme.

One of the frustrating things about these eminent domain threads is that people insist on arguing the law as they think it ought to be, rather than how it is.

Further, by granting almost complete deference to legislative branches in their determinations of what constitutes a "public benefit", the Federal Judiciary has abdicated its proper role as a check on the power of the political branches to abuse condemnation.

Kelo is not about a balancing between the Federal Judiciary and the political branches, it is about the balance between state and federal power. It is about whether to create a federal cause of action that would trump state statutes and constitutions as far as defining the scope of the eminent domain power.

On the one hand, you have the language of the Fifth Amendment that asserts a federal interest in protecting citizens against abusive condemnations. On the other hand, you have the fact that land use has been regarded as a quintessential state issue from day one. It is hard to imagine that the Founders, who (lest we forget) envisioned a federal government of limited powers, intended to create a strong federal limitation on the eminent domain power of states. And there's plenty of persuasive scholarship on the Fifth Amendment which suggests the intention was not to create a substantive limitation on what property could be taken, but merely to identify a federal right to fair compensation.

In point of fact, some states (like Michigan) choose to impose major limits on the eminent domain power, while others choose to make that power much broader. Kelo simply continues a longstanding tradition of federal deference to state and local determinations in this area.
7.17.2009 4:50pm
Gulf Coast Bandit (mail):
Nick, thanks.
7.17.2009 5:08pm
Jiffy:
The "simple point" is more accurately made by a different syllogism:


1. I disagree with the Supreme Court's holdings on the takings clause.

2. Judge Sotomayor (along with two Republican-appointed judges) voted to follow the Supreme Court's takings holdings.

3. Ergo, Judge Sotomayor should not be confirmed.
7.17.2009 5:18pm
rosetta's stones:
Once your time to challenge the finding of public purpose has run, and the finding has therefore become conclusive, any subsequent challenge to the condemnation is simply hopeless under Kelo. The reason is that, as Kelo held, as long as there's a legitimate finding of public purpose for an overall redevelopment scheme, the courts will not look piecemeal at the justifications for individual condemnations within that scheme.

Are you sure you're applying that precedent correctly, Steve? Did Kelo involve multiple condemnations, over a longer period of time? Were the condemnations left to the developer's discretion, both in terms of timing and location?


I won't make Somin's case for him, but I believe as I pointed out to you earlier, the "overall redevelopment scheme" in Didden, in a practical sense, wasn't in place at the time they're starting the SoL clock. If it had been, a decision on Didden's land condemnation, or not, would have been a firm one. Recall that Mrs. Kelo's property was taken immediately, and sits vacant yet today I believe, as I mentioned to you earlier. There are differences between the 2 cases, it seems to me.
7.17.2009 5:28pm
Allan Walstad (mail):


Who does Ilya Somin think he is, questioning authority like that?


Who said anything about questioning authority? The issue is, "Who is more persuasive?"

Persuasive on what basis, MCM? On the basis of your office or the quality of your arguments? If the former, that is an appeal to authority.

KWC said,

It's unclear why the Senate should value Ilya's opinion more highly than five Supreme Court justices and three 2d Circuit judges. Because he's a prof at George Mason? Eh, no gracias.

So there you go. By the way, KWC's reference to "Supreme Court law" was rather misplaced, wasn't it? The CONSTITUTION is the law. If judges are doing a lousy job enforcing the Constitution, I'm glad we have law profs like Somin who will speak up.
7.17.2009 5:28pm
ShelbyC:

2. Judge Sotomayor (along with two Republican-appointed judges) voted to follow the extend the Supreme Court's takings holdings to pretextual takings.
7.17.2009 5:31pm
Steve:
I won't make Somin's case for him, but I believe as I pointed out to you earlier, the "overall redevelopment scheme" in Didden, in a practical sense, wasn't in place at the time they're starting the SoL clock.

I don't agree with that at all. As the district court's decision makes clear, the entire redevelopment project was approved at one time, in July 1999, when the finding of public purpose was made. In fact, the plaintiffs sent a letter to the town in March 1999, indicating that they knew full well that a finding of public purpose would expose their property to condemnation. The fact that the actual redevelopment proceeded in phases doesn't change any of this. There is nothing in the law that would lead them to believe that they could just wait around and file a challenge to the finding of public purpose once the actual condemnation occurred.

The law is set up this way so there's one challenge period that clarifies everyone's rights, not a succession of piecemeal lawsuits. The finding of public purpose is the legal deprivation, and you have to bring an action at that time, rather than sleeping on your rights until the actual condemnation takes place. I don't see how the court got this wrong in the slightest.

The Kelo decision makes clear that the finding of public purpose is dispositive and serves to preclude a bunch of individual actions being brought to determine whether a given parcel really ought to be concluded in the redevelopment project. Citing Berman v. Parker, a 1954 decision, the Court held: "Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." Next time, the landowner will know that they need to challenge the finding of public purpose if they want to have any leverage.
7.17.2009 5:49pm
Steve H (mail):
Re DiverDan at 4:27 ...


As to Sotomayor's joinder in a unanimous (and anonymous) 3 judge decision in Didden, I will stipulate that she is not solely to blame, but that certainly does not absolve here of any recriminations for her part ...


I can see your point, but that's not really the issue that's leading me to bring up the 2-1 vs 3-0 matter. The issue that's driving me is the misleading impression given to the readers of the Detroit Free Press by the first two sentence of the op-ed. The op-ed tells us that, while it would be hard for "a" federal judge to undermine property rights more than Kelo, Judge Sotomayor managed to do so. Not "She signed on to a unanimous opinion that I think is really dangerous and wrong," but that she, herself, undermined property rights in Didden.



As to all of the Sotomayor defenders who keep harping on the Statute of Limitations issue as the determinative factor, the decision in Didden on limitations is almost as bad as the decision on pretext takings.


I'm just curious, have you read the pleadings or briefs in that case? Have you researched the authority on when taking claims accrue under New York state law?

Because not a single judge who *did* review the pleadings and research the law agrees with your position. I would submit that if your position was rejected by everyone who looked at the actual pleadings, briefs, statutes, and cases (including judges appointed from both sides of the aisle), while you yourself have not actually looked at the pleadings, briefs, statutes, and cases, then perhaps you should temper your opinions somewhat.
7.17.2009 6:03pm
rosetta's stones:
The fact that the actual redevelopment proceeded in phases doesn't change any of this.

It does if the phases, and the composition of those phases, aren't identified ahead of time. They weren't. There was no plan here, clearly.

The developer was mixing and matching, within his budget, SOP for them, and no problem with that of course. Except that here, ED was a part of his mixing and matching process, and hard to see how his obvious revenue enhancement, the root of his process, suddenly is a public use or public interest or public anything.

My question earlier: How can the developer be said to be negotiating over that property in good faith for 4 years, when he didn't even have a plan, and likely wouldn't even know if/when he'd be taking that property during those negotiations? How can the clock start until that point is reached? This is a practical milestone, and the court ignored it.


Citing Berman v. Parker, a 1954 decision, the Court held: "Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch."

I'd pick one nit here. Were they talking about one contiguous piece of land in that case, where the character of the development required merely a certain minimum surface area (land for one bridge or mil base, for example), and thus they'd just keep metastasizing around the perimeter until needs are met? In that case, I agree with you fully, SoL, public use, once both are identified and confirmed, we go to work 'til completion, and no further court time taken or necessary.

Or, were they talking about a collection of separate properties within an identified perimeter, in which a developer was gonna be mixing and matching condemnations, along some uncertain timeline?

I doin't believe that case directly overlays here, nor does Kelo. This Didden case is a departure from both, imo.
7.17.2009 6:05pm
Steve:
Or, were they talking about a collection of separate properties within an identified perimeter, in which a developer was gonna be mixing and matching condemnations, along some uncertain timeline?

It simply doesn't matter what the timeline is. If the municipality has drawn a boundary line, and made a finding of public purpose as to the redevelopment of the property within that line, that's the time when the law requires you to stand up and say wait, I don't agree that this project has a public purpose. Berman and Kelo are quite clear that you don't get to pass on the issue of whether the overall project has a public purpose in order to make an argument that your own specific property ought to be left out for some unique reason.

Every large-scale project is going to proceed in phases to some extent. You're going to have some landowners who are willing to sell and some who are going to require condemnation proceedings, you're going to have construction starting in one place before another. It's not all going to rise out of the ground in one majestic swoop. Every judge to look at this case has agreed that, under New York state law, the time to file a lawsuit commences when the finding of public purpose occurs.

As an advocate, you could certainly argue that this case was distinguishable and that no one should be required to file suit until they know the actual date on which their property will be condemned, but there's no legal support for that and I wouldn't expect it to be a winning argument. One of the purposes for a statute of limitations is that at some point in time, parties need to know what their rights are. Your proposed rule would mean that the project could go on for 10 years and no one would know until the very end whether some major part of it was going to get upset by the courts.
7.17.2009 6:24pm
ShelbyC:
Steve:

The law is set up this way so there's one challenge period that clarifies everyone's rights, not a succession of piecemeal lawsuits. The finding of public purpose is the legal deprivation, and you have to bring an action at that time, rather than sleeping on your rights until the actual condemnation takes place. I don't see how the court got this wrong in the slightest.


So if 3 years after the finding of public purpose, the developer excercizes his discretion and condem's only black owner's land, and he says it's because they're black, they have no recourse?
7.17.2009 6:36pm
mariner:
Steve and Steve H:

I still believe that state and local governments use eminent domain to rob private property owners on behalf of politically connected developers.

My point about Sotomayor was that she aided and abetted this process, not that she was responsible for it or could have stopped it on her own.

You have both made good arguments that the case was more about bad law (my term, not yours) than bad judging.

Thank you for taking the time to explain.
7.17.2009 6:51pm
rosetta's stones:
Every large-scale project is going to proceed in phases to some extent.

Correct, and the quality and character of those phases is identified up front, for each of those phases. We know what we're going to be doing, and how and when we're going to be doing it, and which (in large measure, because of the comprehensiveness of our plan) properties we'll be taking to achieve our goal... the completion of all phases. But if that comprehensive plan isn't in place, as seems clear here in Didden, then there is no clear plan, and then by definition, the public use hasn't been even identified, no?

Was the plan "Go for it how you like, and remember me at campaign fund time, big guy."?

How am I as a property owner supposed to know how my property is affected, if I don't even know the plan? I can't. And now ***I*** can't plan. I can't sell, because there's an unknown action outstanding. I can't build, because there's an unknown action outstanding. The developer basically got the local government to award him an option on my property, for free. Huh?

Look, as I implied above, as a typical ED action, this is likely dirty on both sides, and my guess is Didden was a speculator and waited until things were moving along nicely for the developer, and then piggybacked his drugstore onto a pat hand. But, why shouldn't he be allowed to do so? It's his property, and he's sat by with somebody else holding an option on his property to that point, to boot. What public use is served and is being protected here? I don't see it, really.


As an advocate, you could certainly argue that this case was distinguishable and that no one should be required to file suit until they know the actual date on which their property will be condemned

It's more than that. They didn't know if their property was gonna be condemned, as there was no plan. Thus, the SoL clockstart issue.

Steve, how much of Didden was based upon accepting those negotiations of 4 years duration as being of good faith, open handed? Do you think they were? Could they be, absent a plan? Do you seriously consider this a plan, based upon your understanding (mine's limited, admittedly, and I'm firing from the hip on most of this as you've likely intuited)?
7.17.2009 6:52pm
Steve:
But if that comprehensive plan isn't in place, as seems clear here in Didden, then there is no clear plan, and then by definition, the public use hasn't been even identified, no?

If the public use wasn't identified, that's a GREAT basis to challenge the finding of public purpose within the 30-day statutory period. If the municipality had simply said "look, there's going to be some kind of redevelopment somewhere within the city limits, don't know when, don't know what we're building, but you're on notice that we might be coming for your property any day now," then obviously any property owner is going to have a slam-dunk challenge under the New York statute.

But I think you're mistaken if you believe the redevelopment project in this case was anything like that. I won't consume the space necessary to quote from the District Court's opinion here, but it can be found at 304 F. Supp. 2d 548, and I think it shows that the plaintiffs knew full well that their property was part of the redevelopment, that it was going to be condemned unless they could negotiate out of it, and that it was part of phase 3 of the overall construction project.

More people should read the facts of the case, frankly. For one thing, they might find that the developer's "extortionate" demand that he be given an ownership share in the plaintiffs' proposed development was actually something the plaintiffs themselves had put on the table, way back in 1999 before the redevelopment plan even received final approval. See, you won't learn inconvenient little facts like that from reading Prof. Somin's op-eds.
7.17.2009 7:06pm
SamW:
From listening to the argument, the plan was known to the Plainitff's in 1999, and the city could have condemned, at any time, thereafter, with or without the negotiations.
7.17.2009 7:09pm
Jiffy:

So if 3 years after the finding of public purpose, the developer excercizes his discretion and condem's only black owner's land, and he says it's because they're black, they have no recourse?


The black owner would have a claim under the Equal Protection Clause, not the Takings Clause. Similarly, where an official or contractor commits extortion in exercising the taking power, he may be subject to prosecution, but that doesn't mean the taking violated the Takings Clause.

By the way, I would expect that the Statute of Limitations on the EPC claim would begin to run at the time of the taking, but the statute would have expired on any Takings Clause claim.
7.17.2009 7:12pm
rosetta's stones:
I think it shows that the plaintiffs knew full well that their property was part of the redevelopment, that it was going to be condemned unless they could negotiate out of it, and that it was part of phase 3 of the overall construction project.

Thanks, and I appreciate that firm answer, Steve. If Didden is looking at a known-known early on, it gives weight to the SoL they applied, for sure.

Well Somin, I find for the cursed government on the SoL issue.

As for public use in this case, you couldn't persuade me with Sophia Loren in her prime holding a fist full of 50's. ;-)
.
.
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I shoulda wrote that letter to that judge 10 years ago. He was probably on the take in that case too, however. You know the politicians cashed in. No way a judge should have accepted as valid the initial inputs to that case, which created such a massive settlement.

This ED business is dirty, folks.
7.17.2009 7:37pm
Alan Jeffries (mail):
man property rights! the biggest issue of our day!! please. this is absurt its very premise. like i get you got a high LSAT you did well in law school and you purport to write "scholarly" articles, but your premise remains the same which is property rights hogwash where you can't come from SCOTUS precedent at all yet you wish it to be so...your bottom line is you are a conservative republican who likes property, and poor dems just don't have it. Nothing less, hothing more. From where you choose that viewpoint is pretty much intectually dishonst and coming from your own original biases against the status quo. Just like Mr. Barnett, you are a naked partisan and not at all, a professor steeped in policy and doctrine.

Cheers.
7.17.2009 11:00pm
David M. Nieporent (www):
The law is set up this way so there's one challenge period that clarifies everyone's rights, not a succession of piecemeal lawsuits. The finding of public purpose is the legal deprivation, and you have to bring an action at that time, rather than sleeping on your rights until the actual condemnation takes place. I don't see how the court got this wrong in the slightest.
Because your analysis is misplaced no matter how many times you make it. You're describing New York state law. But we're talking about the constitution. And the finding of public purpose for a plan that hasn't been implemented and may never be implemented isn't a deprivation of anything as a matter of constitutional law.

By your logic, and Sotomayor's, even if the taking would violate the almost nonexistent limitations imposed by Kelo, there would be nothing that could be done about it. The city council could say, "We want to take your property so that the mayor's girlfriend has a place to live," and as long as they waited to actually take the property, they'd be okay if the state declared it a public purpose. The federal courts couldn't intervene at the time because there's no taking. They couldn't intervene after the fact because the statute of limitations to challenge the finding would expire.
7.18.2009 12:30am
American Psikhushka (mail):
Alan Jeffries-

...your bottom line is you are a conservative republican who likes property, and poor dems just don't have it.

I love it when liberals try to frame this issue in the standard "we're for the poor" stereotype when that is complete nonsense for this issue. These expansions of eminent domain for "economic development" are not "for the poor" they're for crony capitalism. Libertarians and (shiver) even some conservatives are the ones looking out for the property rights of the poor, middle class, and politically marginalized in this area.

where you can't come from SCOTUS precedent at all yet you wish it to be so

There's no doubt there is bad precedent on this issue. And I say that not because that's my opinion, but because most people understand that eminent domain - properly limited and controlled - is an acceptable way to get hospitals, highways, etc. built. The average person becomes outraged when they find out that some politically connected developers and businessmen have expanded it on the sly to the point where they can take other people's property (usually poor or middle class people) because they have a vague "plan" that might be profitable. It's like your wife's cousin that is always joining the pyramid marketing schemes has been handed the public treasury to play with - THAT'S bad precedent. It's actually worse than that, these are people's homes and lives that they are playing with.

Hey Alan, I have a plan for some business ventures that might be profitable. Can you mortgage your house to fund them? Understand that I don't take "no" for an answer.
7.18.2009 1:16am
American Psikhushka (mail):
Correction: My analogy in the post above is a little off. Substitute this paragraph for the last paragraph in the post above:

Hey Alan, I have a plan for some business ventures that might be profitable. I think the land your house sits on would be the perfect location. Give me your deed and I'll pay you what my local bureaucrat buddies say is fair market value. Understand that I don't take "no" for an answer.
7.18.2009 1:27am
Vermando (mail) (www):
Is Steve going to respond to David's constitutional point? I'm really enjoying this lesson and am curious to find out who is correct.
7.18.2009 1:50am
SamW:
"And the finding of public purpose for a plan that hasn't been implemented and may never be implemented isn't a deprivation of anything as a matter of constitutional law."


Yes, it is. It's, at the least, a regulatory taking under constitutional law. Your analysis would deprive owners of getting any compensation, even though the city has deprived them of control over developement of the property for years. But temporary takings are still constitutional takings.
7.18.2009 8:19am
Sara:
Sam is right. And its not unusual. For years, property lawyers have been trying to get around Statute of Limitations problems in takings cases by claiming they are not chllenging the original plan, only how its being implemented. It's well within the mainstream of jurispudrence to reject such claims.

On another matter, if there is a racial component then the owners have a Section 1983 cause of action and an equal protection claim, not a takings claim. Similarly there are other actions for extortion but not takings claims.
7.18.2009 8:54am
Larry Fafarman (mail) (www):
Steve said (7.17.2009 5:49pm) --
The finding of public purpose is the legal deprivation, and you have to bring an action at that time, rather than sleeping on your rights until the actual condemnation takes place.

The plaintiffs did not dispute the finding of public purpose -- the plaintiffs offered to use the land for the same purpose as the redeveloper intended, for a pharmacy. Somin's article said, "Wasser’s plan, once the transfer was completed, was to build a Walgreens pharmacy — virtually identical to Didden and Bologna’s plan." I assert that the original owners of the land should have first option on using the land for the intended public purpose.

There seems to be an assumption by some commenters here that the taking should be primarily for the benefit of the redeveloper. Wrong -- the taking should be primarily for the benefit of the public.

Kelo v. New London is one of the most unpopular decisions in the history of the Supreme Court, and if Sotomayor made an even worse eminent-domain decision, that is certainly noteworthy. The two other appeals court judges who joined her decision are not up for confirmation to the Supreme Court, so the decision is no problem for them, is it?

Steve H said (7.17.2009 3:20pm) --
Heck, if she had dissented, then perhaps the case would have been published, and thus would have become binding precedent in the (very populous) Second Circuit, as well as persuasive authority throughout the country.

Under a new federal court rule, Federal Rules of Appellate Procedure Rule 32.1, unpublished federal judicial opinions issued after Jan. 1, 2007 may be cited in any federal court (though not necessarily as binding precedent).
7.18.2009 9:19am
Sara:
"The two other appeals court judges who joined her decision are not up for confirmation to the Supreme Court."

Sure, but you can't sustain the argument that this is some rougue decision. Similarly, we know that the full 2nd Circuit, in denial of rehearing (without dissent) and the Supreme Court, inlcuding all of the Kelo dissenters, rejected Somin's arguments. Pretty much establishing Somin, as the outlier. Probably because they viewed this as a statute of limitations case.

Bart Didden was a commercial developer who owned property in the area that he had been trying for years, without success, to develop into a CVS pharmacy. Didden himself has admitted, CVS in or about 1996 told him flatly that it was “not interested in Port Chester.” All that changed with the City's redevelopment project. Thus, in 1999, far from objecting to any “public purpose” for the project, Didden wrote to the Village, noted the new interest of CVS and other possible tenants in his property, and asked the Village to remove his property from the proposed redevelopment zone. The Village declined to do so. Making it clear that in 1999, he should have sued.
7.18.2009 10:03am
Larry Fafarman (mail) (www):
Sara says,
Sure, but you can't sustain the argument that this is some rougue decision.

Sotomayor has been severely criticized for her decision against the reverse-discrimination lawsuit of the white New Haven firefighters, even though the district court judge, both of the other appeals court panelists, and four of the nine Supreme Court justices were in agreement with her.

In Miami Herald v. Tornillo, the US Supreme Court unanimously overturned an 8-1 decision of the Florida Supreme Court. Who made a "rogue decision" -- the US Supreme Court or the Florida Supreme Court?

Similarly, we know that the full 2nd Circuit, in denial of rehearing (without dissent) and the Supreme Court

Denial of an en banc rehearing and denial of certiorari by the Supreme Court do not necessarily indicate approval of a decision -- or even that the petitions for en banc rehearing and ceritiorari were given fair consideration. Since the decision was unpublished, it probably attracted very little notice.
inlcuding all of the Kelo dissenters, rejected Somin's arguments.

Now I know that you are talking through your hat -- the Supreme Court normally does not publicize how the justices vote on a petition for certiorari (an exception is when a dissent from denial of certiorari is published, but such dissents are fairly rare).
Thus, in 1999, far from objecting to any “public purpose” for the project

????? Did I say that Didden objected to the "public purpose" for the project? I said the opposite -- that he did not object to the public purpose for the project.
Didden wrote to the Village, noted the new interest of CVS and other possible tenants in his property, and asked the Village to remove his property from the proposed redevelopment zone. The Village declined to do so. Making it clear that in 1999, he should have sued.

The federal courts are very strict about the issues of ripeness, mootness, and the three fundamental bases of standing: (1) injury-in-fact, (2) injury traceable to the defendant, and (3) injury is redressable by the courts. I agree with those who say that the case was not ripe until the government actually took the property. Also, the charge of extortion was a new issue. I am astonished by the court's decision.
7.18.2009 11:38am
StanC:
Well your astonishment, not withstanding, its still a decision well within the mainstream of takings cases. You should get out more.
7.18.2009 11:52am
Sara:
"an exception is when a dissent from denial of certiorari is published, but such dissents are fairly rare"

Yay, limited to cases where the Supreme Court members think its an unusual and important case. Which this wasn't.
7.18.2009 11:56am
FredM:
"I agree with those who say that the case was not ripe until the government actually took the property."

You, apparently know nothing about takings law, though.
7.18.2009 11:58am
Sara:
"In Miami Herald v. Tornillo, the US Supreme Court unanimously overturned an 8-1 decision of the Florida Supreme Court. Who made a "rogue decision" . . .?"

You're the one argueing this is a rogue decision, not me.
7.18.2009 12:06pm
Sara:
"Denial of an en banc rehearing and denial of certiorari by the Supreme Court do not necessarily indicate approval of a decision --"

Larry, I didn't say it expressed approval. Should I use your, "??????," here. I said, the arguments for rehearing and review that Somin and others made, were rejected. Which, as a matter of public record, they were.
7.18.2009 12:13pm
Larry Fafarman (mail) (www):
StanC said,
Well your astonishment, not withstanding, its still a decision well within the mainstream of takings cases. You should get out more.

Why don't you tell that to Prof. Somin.

Also, the government should have given everyone an opportunity to participate in the redevelopment project on an equal basis instead of giving preference to one redeveloper. That is favoritism and cronyism.

FredM said,
"I agree with those who say that the case was not ripe until the government actually took the property."

You, apparently know nothing about takings law, though.

And you apparently know nothing about ripeness, mootness, and the three fundamental bases of standing in federal courts. The charge that there was extortion was a new charge, and that alone should have tolled the statute of limitations.

Sara said,
"an exception is when a dissent from denial of certiorari is published, but such dissents are fairly rare"

Yay, limited to cases where the Supreme Court members think its an unusual and important case. Which this wasn't.

Wrong -- denial of a cert petition without comment is no indication that the justices do not think that the petition has merit.

Sara said,
"In Miami Herald v. Tornillo, the US Supreme Court unanimously overturned an 8-1 decision of the Florida Supreme Court. Who made a "rogue decision" . . .?"

You're the one argueing this is a rogue decision, not me.

My point was that using your criteria, it is impossible to determine which decisions are "rogue decisions."

Sara said,
I said, the arguments for rehearing and review that Somin and others made, were rejected. Which, as a matter of public record, they were.

Wrong -- there is no public record of rejection. There is not a shred of evidence that any of those judges and justices ever even saw those arguments, let alone considered and rejected them. Unpublished opinions in particular tend to be ignored. You are very naive.
7.18.2009 2:41pm
Matt_T:
Alan Jeffries,

I think I just heard a nurse page you. It's time for your medication. Thanks.
7.18.2009 2:58pm
Sara:
"there is no public record of rejection."

Cert. Denied. Petition for rehearing Denied. Those are all public records and it means that the petitions were rejected.
7.18.2009 3:42pm
Larry Fafarman (mail) (www):
Sara said,
Those are all public records and it means that the petitions were rejected.

Before, you didn't say that the petitions were rejected, you said that the arguments were rejected -- you said, "the arguments for rehearing and review that Somin and others made, were rejected" (your comment of 7.18.2009 12:13pm). The petitions were rejected, but maybe the arguments were just ignored.
7.18.2009 4:26pm
Larry Fafarman (mail) (www):
Didden v. Village of Port Chester did receive honorable mention on SCOTUSblog, the unofficial website of the US Supreme Court, and therefore did attract some attention, which is especially noteworthy because it is an unpublished opinion. SCOTUSblog said,
Among the other cases that the Court declined to hear Tuesday were these:. . . . .

. . . 06-652, Didden v. Village of Port Chester, a plea by a group of private landowners in Port Chester, N.Y., who have sued the town and local officials claiming they were victimized by a private developer acting in league with local officials to condemn their land for that developer’s private use. The appeal sought new limits on the Court’s controversial 2005 decision in Kelo v. New London, allowing condemnation of private property for redevelopment as a private renewal project.

Didden was one of about eight cases given special mention out of a group of well over 100 cases that were denied certiorari.

I am glad to see that the case has come back to haunt Sotomayor.
7.18.2009 8:52pm
loki13 (mail):
I can't help but notice. Starting statement from Mr. Fafarman:


Kelo v. New London is one of the most unpopular decisions in the history of the Supreme Court, and if Sotomayor made an even worse eminent-domain decision, that is certainly noteworthy.


This seemed to be the first object, and what he was arguing- that the decision was not just, in his opinion, bad because he doesn't like the current law, but, instead, extended the reach of the current law or was incorrect.

Now, of course, Mr. Fafarman approvingly quotes the "unoffical" blog of the Supreme Court (which translated means it has no connection, although I do love SCOTUSBLOG):


The appeal sought new limits on the Court’s controversial 2005 decision in Kelo v. New London


Which, of course, is what most people have been trying to point out. Just because you don't like the current state of the law, just because you think it twists it beyond all bounds of fairness, doesn't mean that a CoA judge applying precedent is wrong.

This applies doubly to Professors who use somewhat evocative language as well.
7.18.2009 10:00pm
Larry Fafarman (mail) (www):
loki13 said,
what he was arguing- that the decision was not just, in his opinion, bad because he doesn't like the current law, but, instead, extended the reach of the current law or was incorrect.

I did not claim that Didden "extended the reach" of Kelo -- the two cases addressed different issues. So my argument is that Didden was "incorrect."

For one thing, Didden, unlike Kelo, did not challenge the government's "public use" finding for the redevelopment project -- the plaintiffs in Didden offered to build a pharmacy that is virtually identical to the pharmacy that the government-appointed redeveloper intended to build. And Didden, unlike Kelo -- involved extortion by a private redeveloper. Also, Didden involved a statute of limitations whereas Kelo did not. Furthermore, in Didden, a single favored private beneficiary was chosen in the beginning, whereas in Kelo "most of the private beneficiaries were unknown at the time the city formulated its plans," according to Justice Kennedy's concurring opinion in Kelo. IMO the following quotation from that concurring opinion clearly distinguishes Didden from Kelo:
There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. . . .

. . .. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.

=======================
Now, of course, Mr. Fafarman approvingly quotes the "unoffical" blog of the Supreme Court

I quoted SCOTUSblog just to show that Didden got special mention there -- originally, I did not "approvingly" (or disapprovingly) quote SCOTUSblog except insofar as I approved of the case getting special mention. However, now that you have raised the issue of my "approval" or "disapproval" of the quotation, I want to say that I disapprove of the following statement from the quotation.

loki13 said,
(quoting SCOTUSblog)The appeal sought new limits on the Court’s controversial 2005 decision in Kelo v. New London

Which, of course, is what most people have been trying to point out.

As I stated above, Didden and Kelo addressed different issues -- I assert that the Kelo precedent does not apply to Didden.
7.19.2009 2:40am
David Schwartz (mail):
A reason is a "pretext" if it is not the reason something actually happened. In general, it is impossible to determine if a reason is a pretext until the thing actually happens. The arguments that the SOL for declaring the condemnation pretextual ran out before the decision to condemn was made are utterly absurd. If that's what New York State law says, it clearly runs afoul of the constitution.
7.19.2009 5:35am
loki13 (mail):
Larry and Dave,

I think we are all talking past one another. You don't like th current law, which is fine. But given the current law, the facts *as given* are not the parade of horribles you suggest.

IOW, this is not a locality taking a single parcel of land for public use and assigning it to a developer for use as a pharmacy, who then is extorting money from the lawful property owner so the lawful property owner cannot build his own pharmacy. This is part of a comprehensive redevlopment plan, without which, the original proerty owner would have no hope of building a pharmacy. In short, whithout the taking of other people's land, Mr. Didden would never have even been in a position to build that pharamcy. The developer did not have to negotiate; so calling years of good-faith negotiation by the developer that he did not have to do "extortion" mischaracterizes things by a mile (but makes for good pleadings and propoganda).

To put in more regular terms- you owna small undeveloped parcel along with others in the middle of nowhere. The government EDs all of the parcels in order to have a developer come in and build a sprawling open-air mall. Everything is announced and goes through and you land is plotted for a Nordstroms. You have NOTICE under state law. the developer is going about his business and you go to him and say, "Hey, how about I save you time and money and build a JC Penney there?" The developer agrees to enter negotioations and you dicker around for a while, but you're beeing unreasonable, or it's just not working out, so the developer proceeds. Guess what? You needed to file suit based on the original notice. Sometimes the law seems unfair that way, but otherwise, we'd have piecemeal suits by each property owner based upon the actual time of codemnation as opposed to when the entire "taking" was done.

It's fine if you don't like the whole "comprehensive redevlopment scheme" thing. Personally, I'm ambivalent. But, not everything that is wrong is unconstitutional. Vote out the local officials. Change the state constitution.
7.19.2009 11:36am
Brian G (mail) (www):
If the government and Judge Sotomayor think that my property would be more valuable in the hands of someone else, then I would gladly take 60% of the market value so that the common good can prevail. Big Brother and Big Sister know what's best for me and the common folk. Since I live in a neighborhood that is actually blighted, there isn't much chance they'll condemn my property, but I am ready to cooperate if they ever do.
7.19.2009 1:22pm
David M. Nieporent (www):
This is part of a comprehensive redevlopment plan, without which, the original proerty owner would have no hope of building a pharmacy. In short, whithout the taking of other people's land, Mr. Didden would never have even been in a position to build that pharamcy.
I don't know where you get this "fact" from; it's certainly not from the record, given that the case was decided on a motion to dismiss. (I know you're a liberal, and I often have to explain this to liberals: the fact that something happened after the government acted in no way proves that it wouldn't have happened if the government hadn't acted. Also, I asked this in another thread on the subject, and nobody answered: does anybody have any idea whether the Port Chester government redevelopment plan was any more successful than your average government redevelopment plan, such as New London's?)

To put in more regular terms- you owna small undeveloped parcel along with others in the middle of nowhere. The government EDs all of the parcels in order to have a developer come in and build a sprawling open-air mall. Everything is announced and goes through and you land is plotted for a Nordstroms. You have NOTICE under state law. the developer is going about his business and you go to him and say, "Hey, how about I save you time and money and build a JC Penney there?" The developer agrees to enter negotioations and you dicker around for a while, but you're beeing unreasonable, or it's just not working out, so the developer proceeds. Guess what? You needed to file suit based on the original notice. Sometimes the law seems unfair that way, but otherwise, we'd have piecemeal suits by each property owner based upon the actual time of codemnation as opposed to when the entire "taking" was done.
The only problem with this is that it makes a nonexistent distinction. Condemnation and taking are the same thing. The taking doesn't take place until it takes place. Here's what you have before the actual condemnation: NOTICE that the government is considering taking your property for redevelopment. Here's what you don't have: a constitutional injury.

Under Didden, a city could announce that the city's economy is struggling, and that redevelopment is needed, and thus the entire city is subject to condemnation in order to boost the economy. Under Kelo, that's a "public use." Under Didden, it can't be challenged because nobody has standing to do so at the time, and the city can do anything it wants after the fact, because the statute of limitations has run out.
7.19.2009 2:09pm
loki13 (mail):
David M. Nieporent,


does anybody have any idea whether the Port Chester government redevelopment plan was any more successful than your average government redevelopment plan, such as New London's?


As I have to explain to "you conservatives" this issue doesn't matter wrt. either the current state of Fifth Amendment law or to the statute of limitations issue. This is similar to someone bringing a 1983 action against a judge saying, "Does anybody have any idea if his official conduct was especially egregious?"

As for your repeated assertions about the constitiutional standing requirement (actual injury), I have several responses:
1. Blame Scalia for constitutionalizing this requirement. See also, Lujan.

2. You keep repeating this, but I haven't seen any evidence that there is a lack of constitutional standing after the finding of public purpose; would you care to provide evidence (case law would be nice) that this is true?

3. Even if true, I distinctly remember a refrain from the conservative side of the bench that every right does not have a remedy (see also, curtailing of Bivens actions).

As for the fact of the pharmacy, the comprehensive development scheme, and the lack of suitability before the CRP (love the acronym!), it is widely available. But you're right- it's not in the pleadings because it is irrelevant. As is your arguments wrt. the *current* state of the law. But that's why we have a democracy. Everything that is (in your opinion) bad is not unconstitutional. Vote at the ballot box or with your feet.

What people (like me) don't like is when you are mischaracterizing the current law (extortion!, horrible judging!) because you don't like it or think it's wrong. I think the court is wrong in all sorts of areas (11th Am., 4th Am., Bivens, some parts of the 1st etc.), but I don't get all nasty and snide about CoA judges who are applying the SCTOUS precedent.
7.19.2009 2:34pm
Sara:
In the Second Circuit, the owners do have constitutional imjury at the time the plan is adopted in 1999. That is, according to the Court, when the town "initiated condemnation proceedings" for all property in the plan area under New York law, by adopting the plan. Brody v. Port Chester (Summary Judgment on due process claim reversed because of evidence of lack of notice of 1999 hearings). Opinion by George W. Bush appointed Judge Wesley, joined by noted conservative, Judge Winter, and by Judge Sotomayor.
7.19.2009 5:47pm
Sara:
Or try this link Brody
7.19.2009 5:55pm
David M. Nieporent (www):
does anybody have any idea whether the Port Chester government redevelopment plan was any more successful than your average government redevelopment plan, such as New London's?

As I have to explain to "you conservatives" this issue doesn't matter wrt. either the current state of Fifth Amendment law or to the statute of limitations issue. This is similar to someone bringing a 1983 action against a judge saying, "Does anybody have any idea if his official conduct was especially egregious?"
I know that, under Kelo, the issue doesn't matter; I wasn't asking for legal purposes. I was asking for informational purposes.
7.19.2009 6:22pm
Larry Fafarman (mail) (www):
loki13 said (7.19.2009 11:36am) --
. . .this is not a locality taking a single parcel of land for public use and assigning it to a developer for use as a pharmacy, who then is extorting money from the lawful property owner so the lawful property owner cannot build his own pharmacy.

The effect is the same.
This is part of a comprehensive redevlopment plan, without which, the original proerty owner would have no hope of building a pharmacy. In short, whithout the taking of other people's land, Mr. Didden would never have even been in a position to build that pharamcy.

This is true -- Didden said that prior to the redevelopment plan, CVS showed no interest in having a pharmacy in the area. And according to an article in the Christian Science Monitor, there would have been no redevelopment plan if the developer, G&S, had not agreed to invest and risk $100 million in funding the project, and Didden's CVS pharmacy would have cut into G&S's reward for that investment and risk (but this reduction in reward would have been offset by a reduction in investment and risk). Also, the redevelopment project will greatly enhance the pharmacy's worth. So Didden wanted to get a free benefit from the investment and risk taken by G&S -- but is that wrong? People get free benefits all the time from investments and risks taken by others. Also, Didden and his partner owned the property, and as the saying goes, possession is nine-tenths of the law. There is also the question of whether the government has the right to designate an exclusive developer for a redevelopment project, but there might have been no redevelopment plan if G&S had not been given exclusive rights to the project. The situation is actually quite complicated, but none of these considerations entered into the decisions of the courts. The appeals court's decision is here.

As for the redevelopment plan being "comprehensive," no one has yet explained how Didden's CVS pharmacy would have disrupted the comprehensiveness of this plan.
The developer did not have to negotiate;

Voluntarily negotiating does not give one the right to extort.
Everything is announced and goes through and you land is plotted for a Nordstroms. You have NOTICE under state law. the developer is going about his business and you go to him and say, "Hey, how about I save you time and money and build a JC Penney there?"

The name of the chain is immaterial -- in my old neighborhood, for example, there is a clothing department store that has been owned by at least three different chains.
Sometimes the law seems unfair that way, but otherwise, we'd have piecemeal suits by each property owner based upon the actual time of codemnation as opposed to when the entire "taking" was done.

This "piecemeal suits" argument is a red herring. Any landowner wanting to sue would have to present good reasons why the statute of limitations should be tolled. Didden had good reasons. The "public use" finding of 1999 is irrelevant because Didden did not challenge that finding, and Didden raised new issues. The principle of equitable tolling is so basic to the law that it is ridiculous that we are even arguing about it.
Vote out the local officials. Change the state constitution.

Or don't appoint lousy judges to the Supreme Court.
7.19.2009 6:50pm
loki13 (mail):
DMN,

I am aware of this. You might notice, um, a parallel structure with you lecturing "us liberals" (a phrase I am sure some people who know me would get a kick out of, BTW) when I was making a point for informational purposes dealing with the mischaracterization of the case (I believe you brought up the analogy of taking someone's land and turning it over to a crony, which is different than a CRP). :)

Anyway, you keep bringing up constitutional standing, and how this ruling makes (under NYS Law) all challenged impossible, so long as the body waits between the public purpose finding and the actual condemnation. I think this has been rebutted, but I would like to see your caselaw to the contrary. If there is a parade of horribles, at least show us the floats.
7.19.2009 6:52pm
loki13 (mail):

As for the redevelopment plan being "comprehensive," no one has yet explained how Didden's CVS pharmacy would have disrupted the comprehensiveness of this plan.


Wow.... have you thought this through? I mean, really? Is there a part of comprehensive that is unclear? If Didden can do it, then *anyone* can do it. If anyone can do it, then there is no plan. No Walgreens gets built. No CVS gets built. Some, like Prof. Somin, argue this is a good thing (they believe the argument about holdouts isn't, for the most part, true). But your statement is nonsensical.

As for the rest of your rebuttal, the only thing that was correct is you last statement- yes, if you want the law changed, change the law (local, state, or a change in SCOTUS). But this decision was correct under the *current* law.

But I couldn't help but notice this:

Any landowner wanting to sue would have to present good reasons why the statute of limitations should be tolled. Didden had good reasons

No, he didn't. You say equitable tolling? Show me. Statutes of limitations exist for defendants, and if you just whine about equitable tolling wah wah wah in a conclusory fashion, you, sir, are a part of the problem. Join DMN at the plaintiff's bar for a drink. ;)
7.19.2009 7:00pm
Sara:
I'm not sure what you consider success but a quick google search suggests development occured under the plan. Link see also, Link and Link and Link
7.19.2009 7:04pm
David M. Nieporent (www):
In the Second Circuit, the owners do have constitutional imjury at the time the plan is adopted in 1999. That is, according to the Court, when the town "initiated condemnation proceedings" for all property in the plan area under New York law, by adopting the plan. Brody v. Port Chester (Summary Judgment on due process claim reversed because of evidence of lack of notice of 1999 hearings). Opinion by George W. Bush appointed Judge Wesley, joined by noted conservative, Judge Winter, and by Judge Sotomayor.
Sara, I'm familiar with Brody, and I don't see how it helps support the argument. True, the court in Brody described the initial public purpose determination as "initiating condemnation proceedings," but by the time Brody sued in October 2000, the city had already brought an actual condemnation action in court (in April 2000).

That in no way shows that the court would have held, prior to the city's actual legal action, that Brody would have had standing to challenge it. Although he may not have received due process in 1999, he had suffered no injury until April 2000.
7.19.2009 7:10pm
loki13 (mail):
DMN,

I am not sure I agree with your analysis of Brody. While it is true that the condemnation went ahead (giving him actual standing according to you) the 2d did not resolve the issue on that matter; instead, they specifically held wrt. standing on pg. 7 (and n.6) that the actual condemnation was not the basis for the standing. Are you reading it differently?

And do you know of any caselaw to support your oft-repeated assertion?
7.19.2009 7:25pm
Larry Fafarman (mail) (www):
loki13 says,
If Didden can do it, then *anyone* can do it. If anyone can do it, then there is no plan. No Walgreens gets built. No CVS gets built.

You are showing that you don't understand this case at all. Didden's CVS pharmacy would have been a substitute for G&S''s Walgreens pharmacy.
As for the rest of your rebuttal, the only thing that was correct is you last statement

Wrong -- everything is correct. You can't win debates by scoffing.
You say equitable tolling? Show me.

I and others have already showed you -- you just weren't paying attention.
and if you just whine about equitable tolling wah wah wah in a conclusory fashion

If others can whine about statutes of limitations, I can whine about equitable tolling.
7.19.2009 7:31pm
Larry Fafarman (mail) (www):
"Wise Latina," my eye.
7.19.2009 7:32pm
Sara:
He was deprived of due process but suffered no injury? Where is your case law?
7.19.2009 7:38pm
loki13 (mail):

You are showing that you don't understand this case at all. Didden's CVS pharmacy would have been a substitute for G&S''s Walgreens pharmacy.


I....will...explain....this....slowly.....

If I am a developer, and I am building a giant mixed-use development, then I am going to build it on all parcels. Yes, any given land-owner could theoretically substitute their property for an equivalent. For example:
Developer has 100 plots of land in the massive retail development:
On Able's land, there will be a Nordstrom.
On Baker's land, there will be a Barnes and Noble.
On Caine's land, there will be a Coffee Beanery.
On Didden's land, there will be a Walgreen's.
and so on....

Everything is approved. *After it is approved*, A wants to build a JC Penney, B wants to build a Borders, C wants to build a Starbucks, and D wants to build a CVS and so on. Why? Because the land has value due to the CRP (all the other stores going in). They're all substitutes, right? Of course, then the developer no longer wants to develop. Without that, A, B, C, D and so on no longer have the central action to get the other stores in, and their own plans fall apart (like how Didden wasn't able to get CVS interested until the CRP). Leaving nothing.

Either they're all public use, or none of them are. If you want to argue for none, great! Get involved in local and state politics, or write law review articles (I'm half-kidding there).

As for your equitable tolling- no one has shown why there should be equitable tolling under NY State law as to the finding of public purpose. Please feel free.
7.19.2009 7:48pm
Sara:
As to equitable tolling, can you point to where that theory was presented to the court?
7.19.2009 7:59pm
Sara:
True, the court in Brody described the initial public purpose determination as "initiating condemnation proceedings," but by the time Brody sued in October 2000, the city had already brought an actual condemnation action in court (in April 2000).


Further to my request for caselaw, can you also explain why you view only the initiating of the action for title as injury, because the actual award of title to the city did not occur until 2001, after Brody's Federal suit in 2000. Why does the injury not accrue in 1999, when condemnation proceedings were initiated?
7.19.2009 8:29pm
American Psikhushka (mail):
loki-

(I believe you brought up the analogy of taking someone's land and turning it over to a crony, which is different than a CRP). :)

Actually a CRP is simply a plan that might make money, usually brought by someone familiar with and ingratiated with the local political and business establishment. Often - some would say more often than not - these individuals can be referred to as "cronies" of the local political establishment. Which isn't necessarily bad, unless they are shown favoritism, profit at the expense of other citizens and taxpayers, etc.

Local governments have to deal with for-profit businesses to acquire goods and services necessary to perform the functions they are entrusted to do. These necessary dealings already result in more than enough corruption, profiteering, bid-rigging, conflicts of interest, etc.

To create a practice where a private business can submit a plan that if approved allows them to take private property away from private citizens for their own use on speculative (remember, these plans might be profitable) business ventures increases the possibility of abuse by orders of magnitude. And of course the "cronies" mentioned above are those most likely to submit CRPs in the first place, and the most likely to have those CRPs approved.

Liberals (not saying you are one) are usually suspicious of business, capitalism, profit, etc. Here you have business interests taking private property, usually from the poor and middle class, to engage in speculative business ventures. So it's difficult to understand. My guess is that it appears they are so enamored of government and government control of the economy that they find it acceptable. But the contradiction is pretty striking nonetheless.

And of course "pie in the sky" CRPs are more likely to be approved during the artificial boom periods caused by the central bank creating excess money and credit, which will then result in malinvestment in these development projects and their eventual crash. This malinvesment will have been made easier through the expansion of eminent domain takings. Which means that a lot of the time this process of taking people's private property will all have been for nought because of central bank manipulation. But that's an issue for another day....
7.19.2009 9:30pm
loki13 (mail):
AP-

You make a great argument for what you believe the law should be. I've heard good arguments from both sides as to what the law *should* be; the only interesting thing to me is the usual points are reversed in this case. (Liberals- local/state governments are good! Democratic accountability is good! Federalism is good! Deference is good! Conservatives- Local/state governments are bad! Federalism is bad! Deference is bad! Let's constitutionalize more stuff!)

I am somewhat agnostic as to whether this is, in the aggregate, a "good" or a "bad" thing (so long as there really is just compensation). I just really hate it when people twist what the state of the law is, or make extreme claims with colorful language about what is a fairly unexceptional case *under current law*.
7.19.2009 9:44pm
Larry Fafarman (mail) (www):
loki13 said (7.19.2009 7:48pm) --
A wants to build a JC Penney, B wants to build a Borders, C wants to build a Starbucks, and D wants to build a CVS and so on. Why? Because the land has value due to the CRP (all the other stores going in). They're all substitutes, right? Of course, then the developer no longer wants to develop.

You are presenting an imaginary situation as opposed to what actually exists. And as I said, one of the issues is whether a government should be allowed to give preference to a single private redeveloper instead of giving everyone an equal opportunity to participate in the redevelopment.
As for your equitable tolling -- no one has shown why there should be equitable tolling under NY State law as to the finding of public purpose. Please feel free.

The Didden opinion shows that in the 2nd Circuit federal court of appeals, equitable tolling is controlled by federal law and not state law:
Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). "While state law supplies the statute of limitations for claims under § 1983, federal law determines when a federal claim accrues." Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001). Under federal law "a cause of action generally accrues `when the plaintiff knows or has reason to know of the injury that is the basis of the action.'" M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993)). Appellants had reason to know of the basis of their injury when the Board announced its public purpose finding on July 14, 1999. (emphasis added)

Equitable tolling is especially applicable here because the causes of action are new injuries and not just new discoveries of old injuries as is so often the case where equitable tolling is applied.

I of course disagree with the last sentence in the above quotation.

Sara said,
As to equitable tolling, can you point to where that theory was presented to the court?

"Equitable tolling" is a doctrine or principle, not a "theory."

The following statement in the Didden opinion shows that the plaintiffs presented an "equitable tolling" claim to the courts, though the opinion does not identify the claim by that name:
Appellants, however, brought suit in January 2004, more than three years after the date their claims accrued, and thus their claims are time-barred. We reject Appellants' contention that their injury actually accrued in November 2003 when G&S and Wasser "first utilized their de facto eminent domain power against [them] in an effort to exact a cash payment or partnership interest" in the pharmacy project.

The decision violates the principle that '[u]nder federal law 'a cause of action generally accrues `when the plaintiff knows or has reason to know of the injury that is the basis of the action.'" (see first quote of opinion) The injury that is the basis of the action here is not the public purpose finding, which the plaintiffs never challenged, but is the extortionate demand made by the redeveloper in Nov. 2003.

David M. Nieporent said,
In the Second Circuit, the owners do have constitutional imjury at the time the plan is adopted in 1999.

I assert that the question of whether the period of the statute of limitations began with the finding of a public purpose in 1999 is moot because equitable tolling applies. Also, the courts are often very hardnosed about the issue of ripeness for litigation and often will not consider a case to be ripe until an administrative decision is absolutely final and possible administrative remedies have been exhausted.
7.19.2009 10:30pm
Sara:
You still have not shown the doctrine was argued to the Court. Plainitff has the burden to raise it. Did Plaintiff argue it in thier brief? Generally, the doctrine applies, where Plaintiff was prevented, though no fault of his own, from bringing suit earlier, which is not the case where the cause of acion accrued in 1999.
7.19.2009 11:05pm
Larry Fafarman (mail) (www):
Sara:says,
You still have not shown the doctrine was argued to the Court. Plainitff has the burden to raise it.

WHAT? My quotation of the opinion says that a right to equitable tolling was a "contention" of the appellants (i.e., the plaintiffs in the district court):
We reject Appellants' contention that their injury actually accrued in November 2003 when G&S and Wasser "first utilized their de facto eminent domain power against [them] in an effort to exact a cash payment or partnership interest" in the pharmacy project.

What in the hell is the matter with you? I gave you a plain, simple, direct answer and you don't understand it. You are just impossible.
Generally, the doctrine applies, where Plaintiff was prevented, though no fault of his own, from bringing suit earlier, which is not the case where the cause of acion accrued in 1999.

The doctrine also applies in the following situations:

(1) The plaintiff was not aware of the injury (this is different from being aware of the injury and unable to sue)

(2) There is a new cause of action (the situation here)
7.20.2009 12:48am
loki13 (mail):
Equitable tolling applies when there is a new cause of action? Hmmmmm.... if there is a new cause of action, isn't that, like, a *new cause of action*, and that cause of action will be under its own SOL?

I'm just a simple man, and having forgotten everything about equitable tolling other than "desperate strategy when things look really bad" I decided to look up the generic elements (source- AMJUR):

— extraordinary circumstances prevented the plaintiff from filing despite his or her diligence.
— the plaintiff actively pursued his or her judicial remedies by filing a defective pleading during the statutory period or the claimant has been induced or tricked by the defendant's misconduct into allowing the filing deadline to pass.
— the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his or her claim.

I don't see the third one there (the one Larry claims is the basis for the court's decision, even though they don't mention it).

Moreoever-
Also, equitable tolling is not available if the claimant has failed to exercise due diligence in preserving his or her legal rights . . .

(source, also AMJUR)

Since according to the law, Didden was able to bring suit and chose not to earlier, I'm not seeing it. But, as Larry puts it so pleasantly, maybe something's just wrong with me.
7.20.2009 1:46am
Larry Fafarman (mail) (www):
loki13 moans,
if there is a new cause of action, isn't that, like, a *new cause of action*, and that cause of action will be under its own SOL?

Of course -- but what is the problem with that? Depending on any applicable equitable tolling statute, the new SOL may be shorter than the original SOL.
I'm just a simple man

You are not just a "simple man" -- you are a simpleton who shows no capacity for original thought.
and having forgotten everything about equitable tolling other than "desperate strategy when things look really bad"

The "desperate strategy" is by the lousy judges who will do anything to dodge the merits issues of a case.
I decided to look up the generic elements (source- AMJUR)
. . . .
. . . . .
— the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his or her claim.

That's right -- despite all due diligence, a plaintiff will not be able to obtain vital information bearing on the existence of a claim that does not yet exist and which cannot be anticipated.
I don't see the third one there (the one Larry claims is the basis for the court's decision, even though they don't mention it).

A third one? You mean a fourth one -- three reasons are already listed. As I showed above, a fourth reason is not needed, but there is nothing wrong with adding more reasons if they are consistent with the purpose of equitable tolling. And I did not say that a valid reason for equitable tolling "is the basis for the court's decision" -- I said that the court ignored a valid reason for equitable tolling.
Since according to the law, Didden was able to bring suit and chose not to earlier, I'm not seeing it.

I said a zillion times already that Didden could not bring suit earlier because he did not challenge the public purpose finding of 1999.
But, as Larry puts it so pleasantly, maybe something's just wrong with me.

There is something terribly wrong with you. This time I will not put it so pleasantly -- you are lousy troll.
7.20.2009 3:10am
Larry Fafarman (mail) (www):
IMO Sotomayor's error in imposing a statute of limitations in this case is far more serious than any error that she might have committed in the much more highly publicized New Haven firefighters case. Imposing the SOL in Didden is an especially egregious example of one of the biggest problems with our courts -- judges' misuse of technicalities to dismiss cases in order to dodge the merits issues. I am surprised that those who oppose Sotomayor's confirmation -- and there must be a lot of them out there -- have not made more hay out of Didden. We also need to send the courts a message saying that we are very unhappy with this misuse of technicalities.
7.20.2009 5:52am
David Schwartz (mail):
Since according to the law, Didden was able to bring suit and chose not to earlier, I'm not seeing it. But, as Larry puts it so pleasantly, maybe something's just wrong with me.
Because Didden's claim is that the actual condemnation was unlawful under Federal law because it was not for a public purpose but was in fact to enrich the private developer. How can Didden coherently argue the reason for the final condemnation decision before that decision was actually made?
7.20.2009 7:33am
FredG:
Larry, You're emotional insults mean that you have lost the argument. You don't undersand equitable tolling. You don't have equitable tolling for a new cause of action. You have a new cause of action. Did the Plaintiff's raise this argument, in thier brief, that they had a new cause of action? Or were they limited by the right they did raise, "not to have their property taken by the State through the power of eminent domain for a private use, regardless of whether just compensation is given."

David, On another matter, accrual of a Section 1983 cause of action is determined by Federal Law. The applicable statute of limitations, however, is determined by State law. Part of our Federal System. So, the fix is to get the State to raise the SOLs.
7.20.2009 7:50am
FredG:
How can Didden coherently argue the reason for the final condemnation decision before that decision was actually made?

Because the condemnation proceedings were intiated in 1999, under settled circuit precedent, and because his claim was that compensation was irrelevant.
7.20.2009 8:01am
David Schwartz (mail):
Because the condemnation proceedings were intiated in 1999, under settled circuit precedent, and because his claim was that compensation was irrelevant.
This is analogous to ridiculous arguments like double jeopardy allowing a person to kill with impunity someone he has already been convicted (obviously, erroneously) of killing. Until the City commits to pay compensation, they have not decided to take. It is the actual taking that the Constitution requires to be for a public use.

That is a facially ridiculous argument that I find it hard to believe any lawyer could make with a straight face. You can't announce "I might do X", then wait for the SoL to pass, and the keep open the option to do X or not-X with complete immunity for whatever decision you ultimately make over the subsequent eternity with the landowner forever in a limbo where at any time has land can be taken for any reason.

The initial decision can be completely legitimate, unassailable at law. But three years later, the initial reason can dissipate. It is absurd, laughable, to argue that the City can leave you in limbo forever deprived of your fifth amendment right because you could only challenge it when there was no grounds to challenge it.
7.20.2009 8:54am
FredG:
There is grounds to challenge it in 1999. And he knew all facts necessary to bring the claim he asserted in 1999: he knew the city had initiated condemnation proceedings and he knew the identity of the developer. Your argument would deprive property owners of compensation even for temporary takings.
7.20.2009 9:16am
David Schwartz (mail):
He didn't know the decision to take his property and offer him compensation would be made for to enrich a private developer with the 1999 reason used as a pretext. He didn't know the decisions to take his property would be made at all, much less why it would be made.

Suppose the 1999 decision is completely reasonable. Can they then take his property for any reason in 2082?

Until they decide to offer him compensation, they have not decided to take his property. So long as they may or may not take his property, they have not decided to take it. It is the actual decision to take his property that the Constitution says must be for a public use.

There is no way to know how a decision was made until it is at least known that that decision is in fact made.

This argument is just completely and utterly absurd.
7.20.2009 9:33am
FredG:
They had decided to take his property in 1999, preferably as with most property owners through negotiation, otherwise, under the EPL, through an action for title and compensation.

The EPL proceeding had already been held to be constitutional before Didden. Moreover, his claim was that no compensation was just because a private developer was involved.
7.20.2009 9:44am
rosetta's stones:
You can't announce "I might do X", then wait for the SoL to pass, and the keep open the option to do X or not-X with complete immunity for whatever decision you ultimately make over the subsequent eternity with the landowner forever in a limbo where at any time has land can be taken for any reason.

Yes, as I mentioned earlier, the developer was basically awarded an option on Didden's property, for free, thanks to his politician friends.

Now, I can see the value of Didden's property rising between 1999 and 2007, and the compensation rising accordingly, and let's hope that's the price the developer has to pay for not exercising his option in 1999. He shouldn't be making out, Didden should be, if the SoL argument holds.

And by that, the current highest and best use of that property should be used to calculate the compensated value... to include the value increase during the time period that the developer was exercising his options on surrounding properties.

That is to say, compensation should be the value of a property suitable for a thriving CVS/Walgreen drugstore, not for a blighted property.
7.20.2009 9:48am
FredG:
Sounds right, Rosy. Although, someone has said that the developer committed his own funds ($100M) in 1999.
7.20.2009 9:55am
loki13 (mail):
Larry,

I will make sure, in the future, when someone brings a claim that is barred by the statute of limitations-

1. Check the "applicable equitable tolling statute" to-
2. See if there is a new cause of action and, of course-
3. See if the equitable tolling statute causes "the new SOL [to] be shorter than the original SOL."

I never knew that's how it worked! Thanks, Larry! I will no longer troll by posting legal references, and defer to this wonderfulness!
7.20.2009 12:03pm
Larry Fafarman (mail) (www):
FredG said,
Larry, You're emotional insults mean that you have lost the argument. You don't undersand equitable tolling. You don't have equitable tolling for a new cause of action. You have a new cause of action.

Wrong -- I have won the argument. I was insulting because I was responding to the insulting tone of another commenter. You are really getting nitpicking here -- I showed in my comment of 7.19.2009 10:30pm that I was already aware of the point that you raised above -- I said,
Equitable tolling is especially applicable here because the causes of action are new injuries and not just new discoveries of old injuries as is so often the case where equitable tolling is applied.

What is the practical difference between (1) a truly new injury and (2) a newly discovered old injury that was not previously discovered despite due diligence? The effect is the same. How does the term "equitable" not apply to the first situation? Why should equitable tolling be applied in the second situation but not the first? I used the term "equitable tolling" because I wanted to show that I was using an old legal principle and not trying to create a new one.

Also, the Didden appeals court opinion said,
Under federal law "a cause of action generally accrues `when the plaintiff knows or has reason to know of the injury that is the basis of the action.'" M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993)).

The above statement says nothing about whether the cause of action was unknown because (1) it already existed but was not discovered despite due diligence or (2) did not yet exist.
Did the Plaintiff's raise this argument, in thier brief, that they had a new cause of action?

Yes -- the appeals court opinion said,
We reject Appellants' contention that their injury actually accrued in November 2003 when G&S and Wasser "first utilized their de facto eminent domain power against [them] in an effort to exact a cash payment or partnership interest" in the pharmacy project.

====================

Or were they limited by the right they did raise, "not to have their property taken by the State through the power of eminent domain for a private use, regardless of whether just compensation is given."


That is a much too vague and general statement of the cause of action.

Like so many judges, you have shown an inability to think outside the box.

FredG says,
There is grounds to challenge it in 1999. And he knew all facts necessary to bring the claim he asserted in 1999: he knew the city had initiated condemnation proceedings and he knew the identity of the developer.

I have said umpteen times already that the 1999 finding of a public purpose is irrelevant because the plaintiffs never challenged that finding. And the city did not initiate condemnation proceedings in 1999 -- the city initiated condemnation proceedings in 2003. The Didden opinion itself says that condemnation proceedings were initiated in 2003 --
Appellants refused both demands and, two days later, they received a petition seeking to condemn their property.
7.20.2009 12:36pm
loki13 (mail):

What is the practical difference between (1) a truly new injury and (2) a newly discovered old injury that was not previously discovered despite due diligence? The effect is the same. How does the term "equitable" not apply to the first situation? Why should equitable tolling be applied in the second situation but not the first?


Thank you, Larry. Every post, you make me smile.


Like so many judges, you have shown an inability to think outside the box.


On this, at least, we agree! More judicial activism! What we need is judges who disregard the SOL, decide things on empathy for poor plaintiffs like Mr. Didden instead of the persnickety law, and raise issues sua sponte that aren't briefed. In fact, isn't that what the Supreme Court should have done with Lily Ledbetter- heck, y'all screwed up, and your lawyer never mentioned it, but let's just equitably toll that sucker!
7.20.2009 12:57pm
loki13 (mail):
Wait- there is one last question I have for Larry to complete my research; which applicable equitable tolling statute should Didden have used to determine his new SOL for his new cause of action? Just, um, in case?
7.20.2009 12:59pm
FredG:
Yes. Thank you Larry that was truly funny! What's the difference between one cause of action and another, equity ties them all together!

But on a technical note, as a matter of law, the condemnation of Mr. Didden's proerty was initiated in 1999, despite plainitff's mischaracterization of the later title and compensation hearing, that you quote.
7.20.2009 1:12pm
Larry Fafarman (mail) (www):
loki13 said,
I will make sure, in the future, when someone brings a claim that is barred by the statute of limitations-

1. Check the "applicable equitable tolling statute" to-

2. See if there is a new cause of action

Of course, whether there is a new cause of action cannot be determined just by looking at the "applicable equitable tolling statute" -- though such a statute might define what new causes of action are allowable. BTW, there might not be an applicable equitable tolling statute -- equitable tolling is often just something that the courts apply as a general legal principle.
3. See if the equitable tolling statute causes "the new SOL [to] be shorter than the original SOL."

I think that is a very good idea -- the new SOL might very well be shorter to compensate for a possible big delay associated with the expiration or running of the original SOL.
I never knew that's how it worked!

We learn something new every day.
Thank you, Larry. Every post, you make me smile.

Debates cannot be won by scoffing, bozo.
and raise issues sua sponte that aren't briefed.

The new cause of action was briefed, you lousy troll.
which applicable equitable tolling statute should Didden have used to determine his new SOL for his new cause of action?

As I noted above, there might not be an applicable equitable tolling statute -- equitable tolling is often based on case law. For example, equitable tolling is implicit in the following statement in the Didden opinion --
Under federal law "a cause of action generally accrues `when the plaintiff knows or has reason to know of the injury that is the basis of the action.'" M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993)).
7.20.2009 3:00pm
rosetta's stones:
Looking forward, how long does this developer get to play Boss Hog within this tract of land, and shake down property owners and condemn properties at will?

Forever?

Is this his territory now? Nobody gets nothin' done if'n he don't give his say so?

Or, is the court going to come back and set some artitrary time limit on this?

The SoL issue is interesting, but it's the Public Use issue that leads us most astray here, imo. Once the courts opened that pandora's box, Boss Hog comes to the fore. And he's got an open checkbook for all his political friends.

Nothin' wrong with blind justice, as long as it knows it's blind, and doesn't try to run around loose with sighted crooks.
7.20.2009 3:33pm
Larry Fafarman (mail) (www):
FredG barfed,
Yes. Thank you Larry that was truly funny!

Look at the jerk who criticized my comment for being insulting.
What's the difference between one cause of action and another, equity ties them all together!

I never said that the 1999 and 2003 causes of action were the same, bozo. Here are the differences --

(1) The 1999 cause of action was the finding of a public purpose for the redevelopment project -- a finding that the plaintiffs never disputed

(2) The 2003 cause of action consisted of the following: (i) initiation of condemnation proceedings, (ii) attempted extortion by the redeveloper, and (iii) a claim that the condemnation had no public purpose because the plaintiffs offered to build a pharmacy that would have been nearly identical to the pharmacy planned by the redeveloper.

What does tie the 1999 and 2003 causes of action together is the fact that they both concerned the same redevelopment project. However, according to you, the 2003 cause.of action was completely new, so by that line of reasoning, the original statute of limitations period no longer applies and the 2003 cause of action should have started a new SOL period.
But on a technical note, as a matter of law, the condemnation of Mr. Didden's proerty was initiated in 1999, despite plainitff's mischaracterization of the later title and compensation hearing, that you quote.

????? I did not quote anything about a "title and compensation hearing" -- I only noted that the Didden opinion said that condemnation proceedings were initiated in 2003:
Appellants refused both demands and, two days later, they received a petition seeking to condemn their property.

Give up already -- we've got you every which way but loose.
7.20.2009 3:37pm
loki13 (mail):

Of course, whether there is a new cause of action cannot be determined just by looking at the "applicable equitable tolling statute" -- though such a statute might define what new causes of action are allowable. BTW, there might not be an applicable equitable tolling statute -- equitable tolling is often just something that the courts apply as a general legal principle.


Really? I had no idea- a general legal principle? Like, in equity? There may be a Chancery court that should look into this. But I need to know more- could you give me an example of a new cause of action that is defined by an applicable equitable tolling statute?


Debates cannot be won by scoffing, bozo.


That's true, but this isn't a debate. After all, you claimed earlier to have won the argument. Since then, I have simply been trying to learn more about the law from you. I have both learned more today, and been more entertained, than I have in some time. So, really, it's win-win!

(Aside to FredG- when you wrote, "But on a technical note, as a matter of law..." well, I think we long ago passed the point of either technicalities or any relation to the law. It's mere popcorn-passing now.)
7.20.2009 3:43pm
loki13 (mail):
[As an aside, because it's really hard to keep this up-

1. Larry, you are more than welcome to have your normative opinions about whether, as a matter of fairness, Didden was correctly decided or not.

2. Moreover, as an American citizen, you are entitled to your opinion about whether the courts are correctly interpreting the 5th Amendment's Taking Clause.

3. Finally, you do not need to go to law school or be a lawyer/judge/professor etc. to have an opinion about the law.

However....

A. If you go on to a legal blog AND

B. Are very insulting to other people AND

C. Start throwing either legal concepts, terms of art, or other high-falutin' concepts around with the grace of manhole covers THEN

D. People will start being mean and snarky back to you for their own comedic purposes and you won't get the joke.

IOW, you have made some totally bizarre statements, and, when called on them, doubled down. To give you an example that might make more sense to you:

If I came to you as a mechanical engineer and told you that in my opinion a bridge was faulty, and, moreover, 2+2 = 12, you idiot!

Then... it wouldn't make much sense if, after you called me on my lack of knowledge about the specific math issue (which would probably be funny to you) I said, "Well, yeah, but I meant for those times when 2 = 4, you moron!"

So yeah, whether the bridge was built correctly or incorrectly is separate from the math... but it would still be funny to people who understood math, and more funny because of the attitude of the person saying it. Whether, holistically, you are correct or incorrect in a cosmic way about whether the Didden decision is just or not is separate from the way you've been mangling legal concepts and being a jerk about it. Which doesn't excuse my jerkiness... but I'd thought I'd point this out to you. Hope it helps.]
7.20.2009 4:25pm
FredG:
Sorry, Lar, but an "equitable tolling statute" is funny, as is not knowing the difference between a legal standard and plaintiff's claims, or two COAs and one COA.

Rosy, There are often sunset provisions in these Plans.
7.20.2009 5:02pm
American Psikhushka (mail):
loki13-

(Liberals- local/state governments are good! Democratic accountability is good! Federalism is good! Deference is good! Conservatives- Local/state governments are bad! Federalism is bad! Deference is bad! Let's constitutionalize more stuff!)

You seem to be engaging in some pretty stilted line-drawing here. I'm fairly certain libertarian or conservative conceptions of "federalism" never included "letting local governments take real estate from private citizens to supply local business cronies with land for speculative real estate development".

I am somewhat agnostic as to whether this is, in the aggregate, a "good" or a "bad" thing (so long as there really is just compensation). I just really hate it when people twist what the state of the law is, or make extreme claims with colorful language about what is a fairly unexceptional case *under current law*.

Well I think the "current law" is so horrendous and nonsensical it pretty much cries out for colorful language.

And I'm not so sure the "current law" is being applied competently or equitably. Despite your spat with Larry, I think some of his arguments have merit. I'm not an expert in this area of the law, but I think there's a good chance that if the plaintiffs had brought a claim right after the 1999 finding of "public purpose" there is a good chance that it would have been thrown out for one of the technical reasons mentioned, like "ripeness". So what you're left with is a Catch-22 - claims within the statute of limitations aren't "ripe"/etc., and the ripe claims are outside the statute of limitations. This backstopping the absurd notion that taking private property for use in accordance with speculative private development "plans" that might be profitable is a "public use".
7.20.2009 8:41pm
loki13 (mail):
AP,

As I am sure you understand, there is not a perfect overlap between what we commonly think of is "correct" or "right" or even "legal" and what is, in fact, the actual legal standard. For example, there is a distinction between equitable tolling and arguing that your COA accrues at a later date. *This is an important distinction legally* but might seem unimportant to others.

As for your other point, I addressed it above. While some (most distinctly Dave M. Nie...) have claimed that there would be this sort of standing problem (an inability to bring suit when the public purpose is declared, and an inability to bring suit after the condemnation due to the SOL), he hasn't provided any evidence that this is a problem, and others have provided evidence and caselaw that seems persuasive to me that there is standing to bring the suit.

In short- Didden snoozed, Didden lost. Uh, or something more rhymey. He should have either 1) filed suit immediately or 2) filed suit before the SOL ran out while in negotiations (it's called leverage). Bad lawyering. It happens.
7.20.2009 9:24pm
David Schwartz (mail):
loki13:
In short- Didden snoozed, Didden lost. Uh, or something more rhymey. He should have either 1) filed suit immediately or 2) filed suit before the SOL ran out while in negotiations (it's called leverage). Bad lawyering. It happens.
So Didden should have somehow foreseen that the final decision to condemn and compensate would be made to enrich a private developer using the 1999 decision as a pretext? Even though there was no indication that would happen until after the SoL ran out?
7.20.2009 11:29pm
loki13 (mail):
David,

I disagree with your characterization of the facts. But that's okay, frame it as you want. As I've explained before, I am relatively agnostic about 5th Am. jurisprudence. Did you stab the guy 55 times? Did he run into your knife repeatedly? It's all about characterizing it. I could just as easily say that Didden should have filed suit when they told him they were taking his land, or during the SOL period, instead of sitting on his rights and trying to extort the developer with outrageous demands then filing nuisance suits to get his way. ;)
7.21.2009 12:13am
David Schwartz (mail):
loki13: Sorry, what you are claiming is simply incoherent. Why should Didden have filed suit earlier? The injury of which he is complaining did not happen yet and there was no way he could have known it would happen.
7.21.2009 12:43am
loki13 (mail):
David,

I am not sure I am following you. At all. There was a finding of public purpose (i.e. that his land would be taken) in 1999. There were hearings in 1999. Didden *knew* his land was going to be taken in 1999. Here's the trial court:

In Didden I, I held that all of Plaintiffs' claims, which assert that the Project lacks a public purpose or that the LADA improperly invoked Port Chester's eminent domain power relating to public purpose, are time-barred. Plaintiffs, in their Memorandum of Law in Opposition to Defendants' Motion to Dismiss, do not contest that the three-year statute of limitations governing general personal injury actions applies to 42 U.S.C. § 1983 claims brought within New York State. Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Brandman v. N. Shore Guidance Ctr., 636 F.Supp. 877 (E.D.N.Y.1986). They also do not contest that while state law provides the limitations period, the issue of when the federal cause of action accrued is a matter of federal law. Fiesel v. Bd. of Educ. of N.Y., 675 F.2d 522, 524 (2d Cir.1982). As stated in my previous opinion, under federal law, a cause of action under § 1983 accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Barrett v. U.S., 689 F.2d 324, 333 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366.

[2] KeyCite Citing References for this Headnote As I held in Didden I, the statute of limitations began to run on July 14, 1999, once Port Chester authorized a land disposition agreement with G &S, which covered the use of eminent domain incidental to the implementation of the redevelopment Project, and it was found that there was a legitimate public purpose for condemnation. Didden, at 564. Plaintiffs, however, assert that they did not suffer any injury until November 5, 2003, when G &S and Wasser allegedly attempted to exact a cash payment from them. Plaintiffs claim that they “could not have envisioned that the Private Defendants could engage in such conduct in March 1999.” This argument does not save Plaintiffs' claim from being time-barred.

*389 The March 30, 1999 letter from Plaintiffs to the Board shows that Plaintiffs were fully aware that a finding of public purpose would expose their property to the prospect of condemnation. They even expressed concern that the consequences of Port Chester entering into the LADA with the Private Defendants would mean that they would not have a “level playing field” from which to negotiate with G &S, and that G &S would have leverage because of its option to condemn the property of “those property owners with whom they are unable to finalize a deal.” Consequently, Plaintiffs were able to, and did in fact, contemplate Port Chester's actions in 1999. This action was commenced on January 16, 2004, nearly five years after Plaintiffs sent their March 30, 1999 letter, and well over four years after Post Chester issued a public purpose finding and decided to enter into a land disposition agreement with G &S. Therefore, I find that all of Plaintiffs' claims are time-barred.

****You might not agree with this. But dem's the ruling, adopted by the 2d Cir.
7.21.2009 12:50am
Larry Fafarman (mail) (www):
loki13 said (7.20.2009 3:43pm) --
Debates cannot be won by scoffing, bozo.

That's true, but this isn't a debate. After all, you claimed earlier to have won the argument.

I won, but the debate is continuing.
I have both learned more today, and been more entertained, than I have in some time

I am not here to entertain you, bozo.
I had no idea- a general legal principle?

Equitable tolling can be just a general legal principle, or it can be governed by statute, or it can be governed by case law. Here are examples of equitable tolling statutes (from 42 USC §7607) --
(c) Additional evidence
In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as to (sic -- "to" is probably extraneous) the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence.

- - - - - - - - -

Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b) of this section). Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.

FredG barfed (7.20.2009 5:02pm) --
Sorry, Lar, but an "equitable tolling statute" is funny, as is not knowing the difference between a legal standard and plaintiff's claims, or two COAs and one COA.

I just gave examples of "equitable tolling statutes," doofus. The difference between a "legal standard" and "plaintiff's claims" is like the difference between apples and oranges -- you are comparing two unrelated things. And if eminent domain cases are limited to just one statute of limitations period, there can be equitable tolling where there are two different causes of action.

American Psikhushka said (7.20.2009 8:41pm) --
Despite your spat with Larry, I think some of his arguments have merit.

Thanks, AP.

loki13 said (7.20.2009 9:24pm) --
AP,

As I am sure you understand, there is not a perfect overlap between what we commonly think of is "correct" or "right" or even "legal" and what is, in fact, the actual legal standard

And you and FredG are arbitrarily and arrogantly assuming that you are the ones who know what the actual legal standard is.
For example, there is a distinction between equitable tolling and arguing that your COA accrues at a later date.

You are making this too complicated. If eminent domain cases are allowed just one statute of limitations period and that statute of limitations period is defined as starting when the first possible cause of action (in this case, the finding of public purpose) accrues, then there can be equitable tolling where the actual cause of action (in this case, the actual condemnation) accrues at a later date. Duh.
While some (most distinctly Dave M. Nie...) have claimed that there would be this sort of standing problem (an inability to bring suit when the public purpose is declared, and an inability to bring suit after the condemnation due to the SOL), he hasn't provided any evidence that this is a problem

It was not a matter of an "inability" to bring suit when the public purpose was declared -- it was just that the plaintiffs had no desire or intention to dispute the finding of public purpose. And the inability to bring suit after the actual condemnation due to the SOL was a "problem" -- that is a gross understatement.
7.21.2009 3:46am
David Schwartz (mail):
loki13:
Didden *knew* his land was going to be taken in 1999.
But he had no way to know whether the taking would be for the legitimate public purpose announced at the time or whether that purpose would merely be a pretext for a subsequent taking for a completely different reason (purely to enrich a private developer after the public benefit was already assured).

As stated in my previous opinion, under federal law, a cause of action under § 1983 accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action.
The injury that is the basis of the action was the developer's decision to actually condemn the land. The taking is in exchange for just compensation. Until the municipality is ready to pay compensation, it has not taken.

To argue that a municipality can announce a 100% legitimate public purpose, then 20 years later take the land for any reason at all, legitimate or not, is to totally ignore the substantive Federal right at stake here.
7.21.2009 6:23am
SamW:
Until the municipality is ready to pay compensation, it has not taken.

Yes, it has. The village took the right to develope his property in 1999. He knew it, in 1999 and should have sued before the 3 years ran out.
7.21.2009 7:39am
Larry Fafarman (mail) (www):
David Schwartz said,
loki13:
Didden *knew* his land was going to be taken in 1999.

But he had no way to know whether the taking would be for the legitimate public purpose announced at the time or whether that purpose would merely be a pretext for a subsequent taking for a completely different reason (purely to enrich a private developer after the public benefit was already assured).

Exactly, David. In 2003/2004, Didden had the argument that his CVS pharmacy would provide the public benefit as effectively as G&S's Walgreens pharmacy -- he didn't have that argument in 1999. That was a circumstance change that justified equitable tolling of the statute of limitations. Because there is apparently no federal statute governing equitable tolling in eminent domain cases, the courts had the flexibility to tailor equitable tolling to suit this particular case. The appeals court only cited a precedent that said that under federal law a cause of action only "generally" accrues when the plaintiff "knows or has reason to know of the injury that is the basis of the action" (I am assuming arguendo that the 1999 finding of public purpose --instead of the actual condemnation -- may be considered to be "the injury that is the basis of the action") -- this case was an exception to "generally." The appeals court opinion said,
Under federal law "a cause of action generally accrues `when the plaintiff knows or has reason to know of the injury that is the basis of the action.'" M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003) (quot ing Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993)). Appellants had reason to know of the basis of their injury when the Board announced its public purpose finding on July 14, 1999.


==========================

The injury that is the basis of the action was the developer's decision to actually condemn the land.

Yes, as I pointed out before, the courts are often very hardnosed about the issue of ripeness for judicial review and often will not consider a case to be ripe until an administrative decision is absolutely final and possible administrative remedies have been exhausted.
7.21.2009 7:53am
David Schwartz (mail):
Yes, it has. The village took the right to develope his property in 1999. He knew it, in 1999 and should have sued before the 3 years ran out.
What just compensation did he receive for this taking?
7.21.2009 8:19am
SamW:
What just compensation did he receive for this taking?

Exactly. That's one of the reasons why he's been injured and it's important that he sue.
7.21.2009 8:29am
loki13 (mail):
Larry,

Thank you so much for returning! Truly, you are the ray of sunshine that brightens my life on a daily basis. I will be sad when the thread times out, for I will miss your wit, wisdom, insults, and belief that quickly looking things up in teh googlez is legal reseach. Unfortunately, playing with you is starting to lose its entertainment value; it's like having fun teasing someone and then noticing that they're wearing a helmet while getting on the shortbus.

Anyway, you might want to look carefully at your smashing example. You understand how Art. I judges and the admin law system works, right?

Right?

*sigh* Like I said, it's both funny and pathetic. That's why I wrote that message above, Lar- after checking out your website, I figured you were a little out of your depth, so I thought I'd explain that you were just saying things (inadvertently) that were funny, and being an a$$ about it.

Anyway, good luck with the evolution and holocaust-denying!
7.21.2009 11:18am
loki13 (mail):
Aw, heck. I've been learning so much. I've jut got to got the Larry take on these issues-

In the quoted section of the USC-

Who is the Administrator?
Does the Administrator sit in equity?
What is this "rule" the code keeps speaking of?
Is there a difference between discretionary powers of a court and statutes of limitations?

Since I lack the capabilities of teh googlez, please enlighten me!
7.21.2009 11:41am
Larry Fafarman (mail) (www):
SamW said,
What just compensation did he receive for this taking?

Exactly. That's one of the reasons why he's been injured and it's important that he sue.

Even if he had sued in 1999, he would have had grounds for a second lawsuit in 2003/2004 on the following claims: (1) his CVS pharmacy would have provided the same public benefit as the G&S Walgreens pharmacy and (2) G&S was making extortionate demands.

As I discussed in my comment of 7.19.2009 6:50pm, the situation was complex. But dismissal of the lawsuit on the basis of a statute of limitations was not justified.
7.21.2009 11:55am
Teller:
Hint, Larry, there is no administrative law, no administrative court, and no adminstative law judge involved, here. On the other hand, there is a legislative and independent judiciary proceeding. But, if you are a holocaust denier, you probabely won't understand this, either.
7.21.2009 11:55am
loki13 (mail):

(2) G&S was making extortionate demands.


One last time. This was a legal right.

Larry owes me $5000 as legal debt that is due.* Larry starts sputtering- "You dolt, I want to pay you $1000!" I say no. We continue negotiation. Larry screams, "You moron, I'll pay $2000!" I say no. Larry says, "There is no debate. I've won! I'll pay you $3000 or you'll get nothing!" I say- you know what, Lar, you seem like a nice guy. I'll tell you what- I'll let you off the hook for $4000.**

Larry replies , "You barfed that figure- it's $3000 or nothing!"

So I bring a bring a claim against Larry for the full amount owed- $5000. Did I extort Larry when I was negotiating?



*Think of it as the amount of my time he has wasted, with a credit for his entertainment value.
**For those of you studying for the Bar, don't forget consideration! No K would have been formed. And good luck.
7.21.2009 12:07pm
Larry Fafarman (mail) (www):
loki13 said,
In the quoted section of the USC-

Who is the Administrator?
Does the Administrator sit in equity?
What is this "rule" the code keeps speaking of?
Is there a difference between discretionary powers of a court and statutes of limitations?

I gave you the number of the statute -- why can't you look these things up yourself? I could have given a link to the statute but did not think it was necessary to do so, since it is obvious that the quotes are equitable tolling statutes.

Anyway, your questions are irrelevant.

Teller says,
Hint, Larry, there is no administrative law, no administrative court, and no adminstative law judge involved, here. On the other hand, there is a legislative and independent judiciary proceeding.

Irrelevant. You and Loki13 don't understand that "equitable tolling" is a broad concept -- it means the delay or extension of deadlines for seeking review and is done for reasons of fairness. There are various reasons for equitable tolling, e.g., new injuries, new discoveries of old injuries, and changes in circumstances. Anyway, there must be equitable tolling statutes out there that do not involve administrative courts, administrative law judges, etc., if that bothers you. And BTW, one of the examples I gave does involve the "independent judiciary."

Teller barfed,
But, if you are a holocaust denier, you probabely won't understand this, either.

As I said, debates cannot be won by scoffing, dunghill.

lok13 said,
(2) G&S was making extortionate demands.

One last time. This was a legal right.

Even if it is legal, it is still extortion. One of the questions is whether this kind of extortion is or should be legal.

"I'm always kicking their butts -- that's why they don't like me."
-- Gov. Arnold Schwarzenegger
7.21.2009 1:03pm
loki13 (mail):
Yay! A response!

There's just too much good gold in there to mine! There was a prupose to my questions- I'm sorry that you didn't see it. But let's just go with the flow. If a statute defines a time limit, and gives the court thee discretion to waive that limit, do we then have both a statute of limitations and an equitable tolling statute? So if I have the right to file an amended answer within, oh 20 days but the court may give leave to file later (say, during the cause of the action)... then there's a 20 day statute of limitations AND an equitable tolling statute! I never knew that! The FRCP will never be the same....


You and Loki13 don't understand that "equitable tolling" is a broad concept -- it means the delay or extension of deadlines for seeking review and is done for reasons of fairness. There are various reasons for equitable tolling, e.g., new injuries, new discoveries of old injuries, and changes in circumstances.


Legal terms mean whatever Larry wants them to mean, nothing more, nothing less. For example, in Larry's world, hearsay means testimony that shouldn't be heard, unless it should. How much simpler the law could be!
7.21.2009 1:27pm
loki13 (mail):
(as an aside.... i'm normally not this mean, but this falls into my three part exception-

1. Person is a jerk.
2. Person had things explained to them in a previous post.
3. Person is a holocaust-denier.

so.... yeah, it's a slow day, and I'll get my kicks....)
7.21.2009 1:30pm
Larry Fafarman (mail) (www):
Loki13 barfs,
Legal terms mean whatever Larry wants them to mean, nothing more, nothing less.

The root words of "equitable tolling" are "equitable" and "tolling." What is there about the meanings of the words "equitable" and "tolling" that you don't understand, bozo?

Examples given in definitions are often just illustrative, not exhaustive, and different references will give different examples. For example, Wikipedia gives this example of equitable tolling:
An action to redress a tort committed against a minor is generally tolled in most cases until the child reaches the age of majority. A ten-year-old who is injured in a car accident might therefore be able to bring suit one, two or three years after he turns 18.

So here is an example of equitable tolling where the cause of action is known from the beginning!
7.21.2009 2:03pm
loki13 (mail):
Wow. So, for example, if something is covered by a state's Blue Sky Laws, it hass to do with keeping the sky the color blue, because that's what each word means, right?


[blah blah blah 18 yrs old...]

So here is an example of equitable tolling where the cause of action is known from the beginning!


1. This is what happens with the wikipedia wunderkind. Good googling, there. Bad analysis, though.

2. That's not equitable tolling. You understand that there's different concepts- like, not allowing the SOL to run in a medmal case on minor (when the SOL begins to run)... or the difference if the plaintiff is mentally incapacitated.... or.... equitable tolling.... or claiming that the defendant is barred (there's even a word for this... estopped!) from claiming a SOL defense... or characterizing the cause of action/choice of law to get around a SOL... to attempts to characterize when the COA accrues* or, well, there's a whole lot of ways to try and get around the SOL.

But only one of them is equitable tolling. And it has a specific meaning, which you don't understand. Feel free to look at the generic definition I provided above-- it's just AMJUR, but it might help. Maybe, someday, you'll *evolve* to understand it. But please, keep posting. I'll be saving some of your choicest comments.

*This is what was done in the Didden case. Not equitable tolling, but, rather, an attempt to say the COA accrued at a later date.
7.21.2009 2:38pm
Larry Fafarman (mail) (www):
Loki13 driveled,
So, for example, if something is covered by a state's Blue Sky Laws, it hass to do with keeping the sky the color blue, because that's what each word means, right?

Just because some terms' meanings cannot be derived from the terms' parts does not mean that is true of all terms, you stupid fathead. What an idiot.
That's not equitable tolling. You understand that there's different concepts- like, not allowing the SOL to run in a medmal case on minor (when the SOL begins to run)... or the difference if the plaintiff is mentally incapacitated [if incapacitation is temporary] .... or.... equitable tolling.... or ... to attempts to characterize when the COA accrues

Those are all examples of equitable tolling, doofus. As I said, equitable tolling is delaying or extending -- for reasons of fairness -- the deadline of a statute of limitations.

Loki13, you are just a stupid ignoramus who is pretending to be an expert.
7.21.2009 3:37pm
loki13 (mail):
Larry-

You really are too much fun! So... from the quoted section above, a disagreement about when the cause of action accrues is equitable tolling? Who needs a fancy JD when they can go to Larry's School of Common Sense Lawyerin'! Motto- "It's all equitably tolled, dude!"

(By the way- have you ever come across the phrase "term of art"? And no, I don't mean a word associated with paintings.)
7.21.2009 3:51pm
loki13 (mail):
Larry-

I'll try one last time by giving you an example that you might be able to wrap your head around.

I'm sitting around one day at my house, and I decide it would be nice to have a little get togther with the jerkiest, holocaust-denying-iest, evolution-don't-believing-iest person I know. So I call you up and extend you an invitation to come by my house. I *invite* you over. When you're over at my house, you go to use the bathroom and get shocked and badly injured by a live electrical cable I didn't know about. You sue me, because you're an invitee.

NO. You're not. You're a licensee, and, as, a matter of law, you lose. If you were an invitee, you likely would have won. These definitions have nothing to do with you being invited- because it's a term of art. Equitable tolling is also a term of art. It doesn't just mean "stay the statute of limitations whenever the judge thinks it is fair".

However, I am looking forward to your next post- drivelled.... barfed.... ignoramus.... you are the comedy mine that keeps on giving!
7.21.2009 4:25pm
loki13 (mail):
Anyway- last post. Larry, it's been entertaining. Really. Moreso because you don't understand how entertaining it's been. But now I have real work to do. I hope to see you in a future thread. While I am a big fan of getting the non-legal perspective (I've learned a lot about the law from non-lawyers) your particular mix of ignorance, obstinance, and jerkiness makes you a delight. And remember- whenever someone bothers doing something, like, I don't know, giving you silly non-legal secondary sources like American Jurisprudence, please come back with your common sense and wikipedia skills. That'll teach us ignoramuses!

I'll go barf on to my real work with my drivel. Enjoy your holocaust denying!
7.21.2009 5:16pm
Larry Fafarman (mail) (www):
loki13 moaned,
So... from the quoted section above, a disagreement about when the cause of action accrues is equitable tolling?

That depends. In Didden v. Village of Port Chester, the courts essentially ruled that the plaintiffs were entitled to just one statute of limitations period and that that period began with the 1999 finding of a public purpose. So one interpretation is that the plaintiffs were essentially arguing that the events of 2003 justified equitable tolling of that one statute of limitations period. However, the plaintiffs never challenged that public purpose finding in court (in fact, the plaintiffs argued that their CVS pharmacy proposal satisfied the public purpose finding), so the plaintiffs were essentially requesting equitable tolling of the statute of limitations period for a cause of action that they were not challenging! So in this case, "equitable tolling" would have just given standing to sue on the basis of the events of 2003 rather than on the basis of the cause of action that began the statute of limitations period that was tolled.

As I said, Loki13, you have no capacity for thinking outside the box. You only care about adherence to your own arbitrary rigid rules and don't care at all about whether justice is served. Some situations require flexible thinking, which you are incapable of.
7.21.2009 5:21pm
Larry Fafarman (mail) (www):
BTW, no one ever explained why the courts held that the plaintiffs were entitled to just one cause of action, the 1999 finding of a public purpose.
7.21.2009 6:09pm
loki13 (mail):
It's been explained several times. The plaintiff (Didden) attacked under several theories (for example, unlawful delegation). All were dismissed. The one we've been discussing under the SOL is the 1983 claim.* You might want to look it up- try "Hendrix, Jimi, If A Merman I Should Be"

Again, feel free to disregard the arbitrary rigid rules of the law and find on the basis of empathy... um, justice.
7.21.2009 6:42pm
Larry Fafarman (mail) (www):
Error correction --

I said (7.21.2009 1:03pm),
I gave you the number of the statute -- why can't you look these things up yourself? I could have given a link to the statute but did not think it was necessary to do so, since it is obvious that the quotes are equitable tolling statutes.

Oops, I did actually link to the statute. My error. I guess that I was considering not linking to it.
7.21.2009 7:35pm
Larry Fafarman (mail) (www):
loki13, I thought you said that your previous comment would be your last.
It's been explained several times.

No, it has not been explained at all.

The decision to dismiss the actual condemnation as a cause of action is contrary to everything I ever learned about ripeness and the rules of standing. Incredible. Just incredible.
7.21.2009 7:43pm
Larry Fafarman (mail) (www):
loki13 of course has shown himself to be a complete idiot.
7.21.2009 7:46pm
loki13 (mail):
You're right... I lied.... I feel like Michael.... Just when I thought I was out, the comedy draws me back in....

Actually.... there's comedy, high comedy (Charlton Heston playing a Mexican Federale in Touch of Evil) and then these posts. I just can't resist. I mean, here's the quote that brought me back:

"no one ever explained why the courts held that the plaintiffs were entitled to just one cause of action"

Wow.... as for being explained several times, this isn't the first Didden thread (although I am sure if Prof. Somin ever reads through this, it'll be the last one!). So three last points-

1. Try reading the district court's opinion to get a better flavor for what's going on. 322 F.Supp.2d 385.

2.

The decision to dismiss the actual condemnation as a cause of action is contrary to everything I ever learned about ripeness and the rules of standing. Incredible. Just incredible.

The court never dismissed the actual condemnation. How does one even do that? The court ruled that the SOL for bringing the 1983 claim accured in 1999, when Didden knew that his property was being taken for a public purpose. The case was ripe then, and Didden had standing then (also cf. Dave M. Nieporent's theories, which I haven't seen backed up by persusasive authority). But I'd still love to hear everything you've learned about ripeness and the rules of standing! Really! That's the main reason I'm writing this- when I saw that... I was on the edge of my seat. I thought to myself, "Self, what wonderfulness will Larry be sharing now?"

3.

loki13 of course has shown himself to be a complete idiot.

You are too sweet! I live for your validation, and that's about as validated as a ticket to a parking garage after a $100 purchase.

Anyway, thanks, and good luck with that whole "debunking the myth of meticulous Nazi holocaust records" thing. Mazel tov!
7.21.2009 10:33pm
Larry Fafarman (mail) (www):
The court never dismissed the actual condemnation. How does one even do that?

You stupid dunghill, the appeals court dismissed the actual condemnation right here:
We reject Appellants' contention that their injury actually accrued in November 2003 when G&S and Wasser "first utilized their de facto eminent domain power against [them] in an effort to exact a cash payment or partnership interest" in the pharmacy project.

I have fed this lousy disgusting troll for far too long.
7.22.2009 6:27am
loki13 (mail):
Oh Larry, you are my poster!

I love how you pretend to not even notice the "fancy-shmacny" wordplay (how does a court dismiss a condemnation, as opposed to, say, a complaint?).... and barrel right ahead and repeat the obvious. What makes it even more clever (cleverer? clevererer?) is that you act like you don't even realize that you've *just repeated* the exact same thing that was said to you, except that you're unaware of it! Truly, this new persona you've adopted belongs in the internet hall of fame, and has provided not only me, but now a growing number of my friends some needed respite in an otherwise mundane day. Are you sure you're not Andy Kaufmann?

Again, I appreciate the time you've put into this, because I know that you have a lot of other windmills to tilt at. You're a trooper!
7.22.2009 10:59am

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