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March 2, 2007

Federal judge: Suit is hot air

The Brooklyn Papers
By Ariella Cohn

The headline undermines what is otherwise a pretty good article explaining the difference between trying the eminent domain case in Federal or State court.

Mike Rikon, a seasoned eminent-domain attorney practicing in New York, has a dim view of the eminent domain plantiffs' chances of prevailing in State Court:

“[Staying in the federal court] was the plaintiffs’ biggest hurdle and obviously they are not getting over it,” said Michael Rikon, an attorney who specializes in condemnation law.

An Institute for Justice attorney explains why:

“The laws make it tough no matter what track you are on, as long as you are in New York,” said Steven Anderson, director of the anti-eminent domain Institute for Justice Castle Coalition.

“In state courts,” he added, “it’s tougher.”

Unlike federal courts, New York’s courts don’t permit plaintiffs to seek the legal search warrant, called “discovery,” that allows them to dig through e-mails and other correspondence between defendants in the case.

Both sides have until next Wednesday to submit additional papers to Judge Nicholas Garaufis, who will make the final decision.

One of the attorneys for some of the footprint tenants explains why "discovery" in Federal court is better:

“If we end in state court, our appeal will be limited to [evidence of wrong-doing found in] the public record,” said Jennifer Levy, a South Brooklyn Legal Services attorney who is representing some of the residents of the project footprint named in the suit.

“But we are talking about the intent,” said Levy said, who is no relation to the magistrate. “And intent is a hard thing to uncover without evidence of [internal] communications.”

What next for the plaintiffs?

If Garaufis agrees with the magistrate’s recommendation, Brinckerhoff and Levy can appeal in a lower federal court or refile in the New York State Supreme Court.

Brinckerhoff said he remained confident that his constitutional challenge will prevail, even if does move to state court.

“We have a simple claim: You are entitled to an impartial arbiter [when your property is condemned],” he said, “Our allegation is that the outcome was predetermined a long time ago.”

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Posted by lumi at March 2, 2007 7:58 AM