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Your Money or Your Land II - The Pacific Legal Foundation Amicus Brief in Didden v. Village of Port Chester:

Recently, I blogged about the amicus brief I filed on behalf of myself and seven other legal scholars urging the Supreme Court to hear the case of Didden v. Village of Port Chester. Didden is a Second Circuit decision that upheld the taking of property that was condemned because the owners refused to pay a private developer the $800,000 he demanded as the price for avoiding the use of eminent domain.

The Pacific Legal Foundation, a prominent public interest law firm, has now also filed an amicus brief in the case, also urging the Supremes to hear it. Unlike our brief, which focuses on the question of whether or not this kind of pretextual condemnation is permissible under the Public Use Clause of the Fifth Amendment, the PLF brief focuses on the separate question of whether the Constitution permits the government to use its regulatory powers to engage in "exactions" that force property owners to pay money to either the government or private parties as the price of retaining their rights. Both issues are important, and hopefully both will be considered by the Court.

For a helpful short synopsis of the exaction issue raised by Didden, see this post by PLF attorney and leading eminent domain expert Tim Sandefur, author of the PLF amicus brief.

Related Posts (on one page):

  1. Your Money or Your Land II - The Pacific Legal Foundation Amicus Brief in Didden v. Village of Port Chester:
  2. Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case:
Sean M:
Ilya,

I am curious: Given the statute of limitations bar that your last post didn't point out, but was suggested in the comments, do you think your case will make a good vehicle for the Supremes? After all, the SoL barrier isn't really "sexy," but it has to be overcome to get to the merits.
12.11.2006 11:04pm
Jon Rowe (mail) (www):
Let me note that Mr. Sandefur also blogs for us at Positive Liberty!
12.11.2006 11:11pm
Timothy Sandefur (mail) (www):
The statute of limitations problem, as I understand it, is bound up with the question of whether a person is injured at all by an extortionate demand such as the one alleged in the complaint. If the answer to that is yes, then the plaintiffs are within the statute of limitations. The District Court, in what I argue is a way overbroad statement, declared that it is never a legal injury for a person to threaten to use a legally vested right. That's just not true. But the Court of Appeals summarily affirmed that holding. Now, if it were true, you might have a statute of limitations problem, because then the injury accrued at the time of the resolution to take the property. But if the threat to use a lawful power is a harm, then that is the injury, and then the courts below were wrong about the statute of limitations.
12.11.2006 11:26pm
Ilya Somin:
As Tim points ut, the statute of limitations issue is inextricably linked to the substantive issues in the case: both exactions and public use. On the latter, the statute of limitations issue only bars the plaintiffs' suit is there is no difference between a pretextual taking initiated because of the owners' refusal to pay off a private developer and the mere possibility of a nonpretextual taking. This is explained in more detail in my brief (linked in the post).
12.12.2006 12:05am
Tom F:
Most local governments already force property owners to pay them money to retain their rights through the power of taxation (i.e. property tax), so why are their regulatory powers more limited?

I would understand if the people doing the regulating are unelected. Is that the case here?
12.12.2006 1:48am
Ilya Somin:
Most local governments already force property owners to pay them money to retain their rights through the power of taxation (i.e. property tax), so why are their regulatory powers more limited?

There is a difference between a generalized tax applied to all property and a payment that targets one owner or a small group. There's also a difference between a tax taht goes into the public fix and a payment that is extorted for the benefit of a private party such as Mr. Wasser in this case.
12.12.2006 2:19am
Rick C (mail):
I'd say something to the effect that eminent domain abuses like this are the kind of thing that'll cause people to start shooting...but it's already happened.
12.12.2006 8:37am
magoo (mail):
Why do you continue to use the phrase "public use clause" when it is clear from the face of the 5th Am that the so-called clause lacks a predicate? Have we reached the point where widespread inaccuracy justifies continued inaccuracy? A cynic might suggest that some people use "public use clause" to mislead others into assuming that the public use phrasing in the 5th Am. accomplishes more than it actually does. Does "public use prepositional phrase" lack the requisite adversarial punch?
12.12.2006 8:50am
JOEL MACKEY:
Could someone explain to a layman why this even has to go to a court to decide? It seems logical that the real estate developer should be given about 5 to 10 for extortion, and he and his co-conspirators in government should be given another 3-5 for conspiracy to commit extortion or something RICO.
12.12.2006 9:03am
TDPerkins (mail):
Why do you continue to use the phrase "public use clause" when it is clear from the face of the 5th Am that the so-called clause lacks a predicate?


Because the meaning of the phrase was clear until Poletown, or so, and the abnegation of the phrase evident in Kelo is an atrocity.
12.12.2006 9:13am
PersonFromPorlock:

Have we reached the point where widespread inaccuracy justifies continued inaccuracy?

Yup. It's called "Stare Decisis."
12.12.2006 9:54am
Timothy Sandefur (mail) (www):
Ha! Well said!

Of course, the right answer is that Kelo, Didden, and these other private use cases are actually violations of the Due Process Clause, but because Courts have turned their backs on the Due Process Clause, and refuse to enforce it as it ought to be enforced, we have to go with the Public Use Clause prepositional phrase. That phrase was written with the Due Process Clause in mind, however, by people who believed the substantive prohibition would be in the Due Process Clause. So it's like holding up one side of an arch when the other side has been torn down.
12.12.2006 10:10am
cathyf:
Could someone explain to a layman why this even has to go to a court to decide? It seems logical that the real estate developer should be given about 5 to 10 for extortion, and he and his co-conspirators in government should be given another 3-5 for conspiracy to commit extortion or something RICO.
Can another layperson second that question? In the earlier discussion, something was said about the local government "delegating" their "eminent domain" powers to some guy (not an elected or appointed government official), and then the guy using this power for the purposes of extortion.

Can I get in on that racket? Get my local city council to "delegate" drug enforcement to me, and then go hold up the local meth dealers for $800K or 1/2-interest?
12.12.2006 11:49am
te:

The Pacific Legal Foundation, a prominent public interest law firm

Sure, I guess if you consider an organization funded by Exxon Mobil, Weyerehauser, etc. to be acting in "public interest."
12.12.2006 12:56pm
Jnor (mail) (www):
This sounds like something out of Goodfellas. How can this possibly be legal? How do you come up with $800 grand as the price?
12.12.2006 12:57pm
Hank_Bradley (mail):
te-

The Pacific Legal Foundation is funded partly by me, and by all the gods of all the diverse peoples in the universe, it IS a public interest law firm. When you purport to cite association with the Devil, you make no argument at all. Property rights are as much civil rights as any others, sometimes more so.
12.12.2006 1:53pm
te:
somebody doth protest too much
12.12.2006 2:29pm
Debauched Sloth (mail):
"Let me explain to you how this works: you see, the corporations finance Team America, and then Team America goes out... and the corporations sit there in their... in their corporation buildings, and... and, and see, they're all corporation-y... and they make money." -- Tim Robbins (puppet), Team America: World Police
12.12.2006 5:35pm
jaed (mail):
Let me third the motion above. Is there any indication of why no prosecutor has tried to get an indictment, if the facts are as alleged?
12.12.2006 7:29pm
Timothy Sandefur (mail) (www):
The Pacific Legal Foundation is funded overwhelmingly by individuals who agree with the things we do. About 15 percent of our funding comes from corporate sources, although I don't know which companies, since I'm not in our funding department (and my figures may be a little off for this reason). Another 1 percent comes from attorneys fees in cases we win. The other 84 percent comes from individual donors who agree with the things we do.

I find it amusing how, when anti-property rights groups are funded by corporate donations, in the range of hundreds of millions of dollars, that's okay. And when they're funded by government, that's okay--because these groups are disinterested protectors of the public interest.

But when individuals and businesses agree with the principles we defend, and put their money where their mouths are, we're suddenly shills for Snidley Whiplash and his gang of greedy capitalist henchmen.

Pathetic what a little ad hominem will do.
12.12.2006 7:49pm
jncc (mail):
Feeling a little touchy today Mr.Sandefur?

PLF's initial financial support came from members of the California Chamber of Commerce and J. Simon Fluor of the Fluor Corporation's oil, nuclear and mineral dollars.

And, yes, let's talk about all those "individual donors." That phrase sort of conjures up images of honest hardworking americans sitting at the kitchen table and writing out their humbel $15 and $25 checks doesn't it?

In reality these individuals are "people like the Castle Rock Foundation (the Coors family) ($125K in 2005) the Carthage Foundation -- a Scaife family front $175 in 2005 and 2004 and, best of all over $600K directly another one of the Scaife family. People may recall the Scaife family as the folks who were really, really interested in what Bill Clinton did with his penis.

And I will leave it to others to decide whether when the PLF filed suit earlier this year to removed endangered species protection for the marbled murrelet whether they were doing that because of all of the folks across America who were upset by that listing, or whether the PLF was doing it because of all of the funding they received from the timber industry.
12.12.2006 8:25pm
TJIT (mail):
te, and jncc

You folks provide a good example of when you can't argue on the facts argue on the funding.

In other words you might be taken seriously if you actually added something useful to the discussion not unrelated tangents like
the folks who were really, really interested in what Bill Clinton did with his penis.
Which has precious little relevance to the item being discussed. Aside from the fact that somebody is getting scr**ed by government action:-)

Cheers,

TJIT
12.12.2006 10:25pm
Ryan Waxx (mail):
Of course, it could be that the timber industry decided to make their corporate donations to people who already had inclinations towards property right.

Which is rational self-interest, and hardly requires a foaming-mouthed accusation of litigation bought and paid for.

If you would accuse the evil wood people of taking interest in government, you would do well to remember that the REASON they do so is because the government takes such interest in them. In a world where industries can be choked off by government fiat, I should HOPE that the Sierra Club isn't the only voice 'allowed' to have people donate to it.

Obviously, you feel differently.
12.12.2006 10:26pm
jncc (mail):
Waxx

No, I don't feel that that people should only be able to donate to the Sierra Club. What I do believe is in honesty and transparency. I mean, rapists and child molesters have a right to attorneys, so I don't see why all these foundations and corporations are so coy about paying lawyers.

TJIT - actually, I was following up on the characterization of the PLF as "public interest" attorneys so that was the "facts". And, I provided the description of the Scaife family as being penis obsessed because I thought that is what would jog most people's memories about who they are. If you can come up with a better description of the family that spent millions of dollars to "investigate" what Bill Clinton did with his penis, go right ahead.
12.13.2006 1:38pm
Ryan Waxx (mail):
He lied under oath using his penis? Wouldn't that hurt?
12.13.2006 4:45pm
lucia (mail) (www):
He lied under oath using his penis? Wouldn't that hurt?

Gosh, I thought the idioms were "think with your penis" and "talk out of your ass".
12.14.2006 1:36pm