Long-Term, Strategic Litigation Comes Full-Circle in Brody Case

June 22, 2009

We always say that IJ does long-term, strategic litigation. Our litigation in the case of Brody v. the Village of Port Chester is a perfect example of what that means. The Brody case has certainly been long-term—it is entering its ninth year. Unfortunately, the case has involved an enormous number of procedural disputes, and we have had to take the case up on appeal several times to reverse the lower court. But at every turn, our approach to the case has been strategic and has had far-reaching implications.

We filed the case originally to challenge New York’s eminent domain procedures. In New York—counter to any reasonable expectation—when the government moved to take property through eminent domain, the owners had to bring a legal challenge before they knew their property would be taken. You did not read that last sentence incorrectly. Owners had to bring their challenge within 30 days of the approval of a project that may result in eminent domain sometime in the next 30 or 40 years. Even worse, under the old law, the government did not have to tell you that this was your one and only chance to fight some future use of eminent domain. All the local government had to do was publish a notice in a newspaper’s classified ads that the plan had been approved and that the government had determined that eminent domain would be appropriate. The notice pointedly did not mention that there were 30 days to bring a legal challenge or that you would lose all your rights if you did not mount a challenge immediately.

Enter Bill Brody, a business owner in Port Chester, N.Y., who wanted to challenge the taking of his property. He contacted IJ months before the condemnation happened but, unbeknownst to him, months after his right to challenge that taking had expired.

IJ brought suit on behalf of Bill Brody to challenge New York’s law as violating the procedural due process guarantee of the 14th Amendment. We were particularly concerned about this law because we noticed in many states that local governments tend to hide the ball, telling people that they are safe until it is too late to do anything about it. New York seemed to be the most obvious procedural due process violation—it was blatantly unconstitutional on its face—but we also thought it represented a larger trend.

The case had an immediate effect in New York. As a result of the case, state legislators changed the law so that other New Yorkers would receive notice of the process and would be told they had to file a lawsuit in order to protect their rights. For New Yorkers, this was an enormous change. Instead of receiving no notice of the loss of their rights, they now receive a certified letter telling them explicitly what they have to do to challenge the taking of their home or business.

But the case and our legal victory in the Second U.S. Circuit Court of Appeals has had many more far-reaching effects. There are lots of cases about how the government gives notice—mail, newspaper, certified mail—but this is one of the very few cases about what the notice has to say. And if the government is taking an action that will affect your rights, it has to tell you about the fact that you have a limited opportunity to fight for your rights.

In addition to changing the law in New York, the case also helped create major legal changes in both New Jersey and Hawaii. New Jersey had a system similar to New York’s. Home and business owners could challenge a condemnation when it happened, but they couldn’t challenge the government’s claim that the area was “blighted.” That was an important limitation, because once you cannot challenge “blight,” it becomes next to impossible to win a challenge to the taking of the property. In the 2008 case of Harrison Redevelopment Agency v. DeRose, a New Jersey appellate court relied in large part on the Brody decision to hold that this rule violated due process. The court ruled that owners cannot be bound by the time limit on challenging blight findings and can challenge them if the government ever moves to take the property. That means thousands of people who had lost their ability to fight condemnations in New Jersey now can do so.

Sometimes, we do not even realize the impact of the precedents we set. In December 2008, the Hawaii Supreme Court issued an important decision that reversed a lower court ruling against owners who were challenging the taking of their property for the benefit of private parties. (This is the latest in a string of state high court decisions that reject the Kelo majority holding and find for property owners in eminent domain cases.) I was emailing with the attorney who litigated the case, Robert Thomas, and he told me that Hawaii also had a short time frame for bringing legal challenges. The trial court, in an unpublished decision in 2007, allowed the owners to challenge the taking anyway, citing Brody. According to Thomas, “Brody carried the day.” Without the Brody decision, this important Hawaii ruling might never have happened.

These have been the most important cases based on Brody that we know about, but it has also been cited in various other cases, including in 2008 to find an asset forfeiture proceeding in New York unconstitutional and in 2006 to reverse certain fines being charged by a local government in Michigan.

This is what long-term, strategic litigation is all about: When IJ takes a case, the precedents we set take on a life of their own, securing greater freedom for thousands or even millions of people beyond the individuals we actually represent. And that makes every one of the nine years spent fighting the Brody case worthwhile.

Dana Berliner is an Institute senior attorney.

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