Category: 
by Hector N. Fertig
William, regardless of who was at fault, Didden or his lawyer, once the statute of limitations expired Didden’s cause of action was lost according to Sotomayor. At some point during this whole affair, he had two legal theories available to him:
1. That the taking was wrongful due to pretext, in the sense of Justice Stevens. The Supreme Court in Kelo found this relevant only to the property’s inclusion in the renovation plan and was ultimately barred from challenge by the expired statute of limitations in Didden.
2. That a taking for a private use due to extortion is unconstitutional. This was the attempted work around by Didden. They wanted to distinguish this from Kelo by including the pretext piece here. The result was that the Court said, “The ‘taking for private use’ part is a constitutional issue which has been settled by Kelo. Adding fraud, duress, extortion, mental handicap, or mistake does not create a new constitutional issue – these are separate legal issues with existing statutes of limitation.”
I’m not saying that I necessarily agree with the decision, but if the 2d Court of Appeals holds these two positions, it really does make for a short review. And with that, I’ll give you the last word.
Comments
This entry was posted on Thursday, May 28th, 2009 at 6:36 pm and is filed under C. William Chattin, Hector N. Fertig, Sotomayor, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Hector, I addressed most of these points in this earlier item:
http://www.obamapundit.com/?p=107
– Bill
The issue that the district got wrong (in our opinion) was when was I harmed 1999 or 2003 when the demand for 800,000 was made?
Our action was filed in under 12 weeks from the demand. How the lower court can find, without any discovery, evidence or testimony that my harm was in 1999 when the developer was given my rights, rather than when the demand was made to stop a governmental action by a payment to a private person just reeks of violations of public purpose or benefit.
How could I ever have know that in 1999 I would have been a victim in 2003 is beyond any reasonable defense.
I obviously can’t confirm whether this really is Bart Didden or not, but the argument presented doesn’t sound like an “unconstitutional taking” or “expansion of Kelo” argument. It is a question of “What constitutes the ‘harm’ and when did it occur?” Is it the inclusion of the property in the redevelopment plan or the extortion?
It appears that both the District Court and the Court of Appeals saw the Plaintiff’s claim as the former and concluded that the Statute of Limitations barred redress. If, however, the Plaintiff’s position is that it is the latter, there may have been an independent cause of action, still within the Statute of Limitations, that had nothing to do with the property’s inclusion in the redevelopment plan. In that case, he would likely lose his property to the redevelopment plan but might collect on the extortion claim. Was this even pursued?