The New York Times Thirsts for Justice. Sort of.

It isn’t every day that your faithful and obedient servant finds himself aligned shoulder-to-shoulder with luminaries like The New York Times and UC Irvine’s Law School Dean Erwin Chemerinsky, both of whom complain – and rightly so – that the Supreme Court has been increasingly making access to justice more difficult for ordinary folks who complain of constitutional mistreatment by the government.

Today’s New York Times editorial (Temple to Justice, Dec. 28, 2010, at p. A18) raises its voice again and admonishes the Roberts court to make sure that justice “be truly democratic, not merely reserved for the powerful.” Sounds right to us. But while this is a noble sentiment, it overlooks that even though none of the powerful are more powerful than the government, when it comes to constitutionally protected, individual property rights, the Times can usually be found on the side of the government, inveighing editorially against the interest of ordinary folks whose assets are being plundered, and so can Dean Chemerinsky. Case in point, the 2005 Kelo decision.

When the Supreme Court decided the wretched Kelo v. New London case in 2005, the popular reaction ran at some 90% against that awful ruling that permitted the eviction of the inhabitants of an unoffending lower middle-class neighborhood, followed by its destruction, for the sake of catering to the wishes of the Pfizer pharmaceutical company who wanted to see more upscale housing and shopping for its well-paid professional workforce. Michael Kinsley nailed it when, writing in the Los Angeles Times at the time, he observed that the Supreme Court found yuppification to be a “public use” within the meaning of the Fifth Amendment. And it was not just the result; in reaching it the Supreme Court held that it would defer to the condemnor’s decision to take, that did not even have to be rational but only “rationally related to the conceivable” – i.e., that whatever the city wanted to do with the subject property was a “public purpose,” good enough to be deemed a well-nigh conclusive, constitutional determination of “public use.”  That was bad enough, but worse was to come: the touted New London redevelopment plans that the court endorsed never materialized. The city’s chosen redeveloper could not even get financing for this “carefully planned” project, even before the 2008 real estate crash. And so, Connecticut politicians blew over $80 million of the taxpayers’ money for nothing. Adding insult to injury, Pfizer later announced that it is moving out of New London, taking some 1400 jobs with it. So much for the “public purpose” of community revival through the use of eminent domain.

But unlike almost all other newspapers, the New York Times supported that decision on its editorial page, even though it certainly denied access to justice to ordinary home owners whose modest dwellings were being seized to placate a powerful, wealthy corporation. Their legitimate interests did not receive impartial consideration from the court which was content to rubber-stamp the city’s self-serving policy. Small wonder the Times took that position. At the time, the Times was itself at the public trough up to its ears, consuming a “free lunch” served by the New York courts and redevelopment folks who condemned land for a new Times building at 8th Avenue and 43rd Street in Manhattan, at a subsidized cost. Which, in a stroke of poetic justice, turned out to be a flop too. The newspaper biz ain’t what it used to be, and before long, the Times was forced to sell its share in its new building which it now occupies as a tenant.

That should have been bad enough, but if you want to talk about denying access to justice altogether, there is nothing that beats the state of inverse condemnation law. On the one hand the Supreme Court says that when your property is taken, whether by physical invasion or by extreme regulations, you are entitled to just compensation, and when you sue under 42 U.S.C. § 1983, to a trial by jury. So what’s the problem?

The problem is that when you want to avail yourself of these ostensible rights, the courts tell you that you can’t. First, you are not allowed to sue in federal court like all other plaintiffs whose constitutional rights have been violated. You must first sue in state court, in an effort to recover your “just compensation” under state law. Why state law? Because, said the U.S. Supreme Court in the Williamson County Planning Commission case, unless you have first sought your available state court compensatory remedy, your federal cause of action isn’t deemed ripe, so if you try suing in federal court, you’ll get tossed out on your keester on a motion to dismiss.  And if you sue in state court, as you must do if you want relief, and that court denies it (a foregone conclusion in California), you then can’t seek relief under federal law because the state court decision denying relief under state law is deemed res judicata and decisive of the federal law as well. So if you try to sue in federal court then, you are told that the federal court has to give full faith and credit to the state court judgment even when it concededly denies you constitutionally-mandated relief. Thus, you become a legal pariah – unlike all other litigants who seek redress for violation of their constitutional rights, you can never get your federal taking claim considered on the merits – neither in state nor in federal courts. We not making this up. Four concurring U.S. Supreme Court Justices noted this fact of life in the San Remo Hotel case.

So you’d think that if there is any situation in which deserving litigants should be granted access to the courts and at least be able to present their federal constitutional grievances on the merits, this is it. So here is our suggestion to the New York Times and to Dean Chemerinsky: if you thirst for access to justice, you won’t find another field of law that is more deserving of your attention than the “ripeness mess” that has grown like a cancer and is now part and parcel of takings law. So willl these good folks strike a blow for the cause of access to justice in this case? Don’t be silly. That would be politically incorrect.

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