Updated, amplified, and clarified 6/7/10 after oral argument webcaast video was released. See more analysis here.
In the highly contested 40-minute oral argument (webcast) yesterday in the Columbia University eminent domain case, attorneys significantly reprised arguments in the briefs, with frequent references to the Atlantic Yards case the Court of Appeals decided last November.
I didn’t make it to Albany and none of the city’s three daily newspapers sent a reporter, but I've since amplified my initial report--based on a recording--with a look at the webcast.
The lack of coverage is dismaying, given that the Appellate Division’s surprising and contested rejection of the Empire State Development Corporation’s eminent domain findings was big news last December.
The bottom line of the argument is unclear, given there are various strands of argument. In other words, if the court upholds the ESDC on its finding of blight--as is not unlikely, given its decision in the AY case--it could find other reasons to block Columbia.
The team at the Columbia Spectator offered good coverage. Here's AP coverage.
From the Spectator, the setting:
ESDC attorney John Casolaro began by saying the ESDC deserved deference from the court because it’s a “legislative-type” decision--the ESDC is a creation of the legislature, but, of course, not controlled by the legislature--and the petitioners had not shown the decision was “baseless and without foundation in the record.”
He said it was both a Land Use Improvement Project, in which the ESDC “reasonably relied” on reports that buildings were deteriorating, and a Civic Project for educational purposes.
History of blight?
He was soon interrupted. "What about the conflict about the first report?" asked Chief Judge Jonathan Lippman, referring to the Blight Study by consultant AKRF, which was simultaneously working for Columbia.
"The second report, by EarthTech, doesn't have any of those concerns," Casolaro replied, with a slight air of grievance.
"I agree, I agree," Lippman responded.
“And with respect to the first report," Casolaro continued, "AKRF prepared a report that is based on documentary evidence in the record."
"Was it prudent to commission the first report?" asked Lippman.
Casolaro didn't quite answer. "ESDC reasonably relied on AKRF, as it has done many times in the past, and its decisions have been affirmed by this court, and other courts,” he said.
Were there any findings of blight before this project, another judge asked?
Casolaro cited “a long history of blight” in the area, including findings north in 1955 and just south 1959, and a 1969 redevelopment plan. He didn’t mention more recent studies that didn’t find blight.
“This wasn’t like Goldstein, where there was an actual longstanding finding of blight in the particular area," asked Judge Susan Read, referring to the Atlantic Yards case.
“That’s correct” Casolaro said, saying there had not been “a particularized blight finding for this site prior to the ESDC’s blight findings,” but “there was a discussion of blight.”
The plaintiffs in the Columbia case have tried to distinguish the two cases, though the plaintiffs in the AY case were all from outside the area--the Atlantic Terminal Urban Renewal Area--found decades previously to be blighted, and which had mostly been developed. (Remember, the AY site, according to Chuck Ratner of developer Forest City Enterprises, is a “great piece of real estate.”)
Columbia role?
What, asked Lippman, about the contention that Columbia contributed to the blighted nature of the area, as alleged by the plaintiffs?
“Columbia didn’t create the blighted conditions,” said Casolaro, pointing to two separate studies from 2003 and 2008. “We see that the record shows that Columbia spent money to try to fix it. In fact, Columbia spent nearly six million dollars to stabilize and repair buildings in the project site.”
He noted that Columbia didn’t renovate buildings, given that they were destined for demolition, but took steps to stabilize them.
Judge Robert Smith, the one dissenter in the AY decision, asked if there was a problem in that the agency doing the condemnation was doing the fact-finding.
“These are legislative determinations,” Casolaro replied, truncating the phrase “legislative-type.”
"You sound like the majority in the Atlantic Yards case," Smith said slyly. (There were some chuckles in the crowd, given that Smith was excluding his own ruling.)
"I am stating what the Court of Appeals has said in the past, correct," Casolaro replied, allowing himself a smile.
"I was afraid of that," Smith muttered.
Eminent domain for private university?
Would it be a new precedent, asked Judge Victoria Graffeo, to allow eminent domain for the expansion of a private university as a civic purpose?
“There is no other case in this state where the court has held that eminent domain can be used for the construction of a private educational facilities," Casolaro acknowledged.
"Why should we do that?" Graffeo cut him off.
“Because the legislature has indicated that this is a proper public purpose.”
What about the nature of the university, asked Lippman.
“What ESDC said," Casolaro responded. "is there is a need for educational facilities in the state, and the involvement of private entities is appropriate.”
“We don’t have to reach that second issue if we agree with you that the record supports a finding of blight,” one judge said.
"That's correct," Casolaro said, smiling a bit.
Due process issue
Lippman brought up claims that the ESDC denied the petitioners due process by denying Freedom of Information Law requests.
Casolaro said the cases cited by the petitioners weren’t relevant.
Smith was skeptical, saying he wasn’t clear from the record what had been denied.
There were six FOIL requests, Casolaro said. Three had been responded to, but two were in dispute.
Smith said he didn’t understand what they didn’t get.
As of 10/10/08, Casolaro said, there were only seven documents due the petitioners.
What did the documents relate to, Lippman asked.
As a lower court decision said, the documents were emails, scheduling meetings “minor things of relative insignificance,” Casolaro said.
Motive of condemnors
“Is motive at all an issue here?” Lippman probed, opening up a new line of argument.
“This is an issue that arose in Goldstein v. Pataki,” Casolaro said, pointing to the federal court of appeals decision in the AY eminent domain case, which said that if there’s a reasonable basis for the decision, motive’s not an issue.
Lippman pointed to the U.S. Supreme Court’s controversial Kelo v. New London decision, which upheld eminent domain for economic development but allowed that, in situations where there was evidence of pretext, a more searching look at motive was in order.
“Kelo was a very different situation because it was an economic development project--of course, this isn’t,” Casolaro said, skating over the claims that the Columbia project would produce 14,000 construction jobs and 6000 permanent jobs, as well as the point that the blight criterion of “underutilization” points directly to economic development.
"If you have Civic [Project] or Land Use [Improvement Project], do you have any questions about motive?" asked Lippman.
"You do not, Your Honor," responded Casolaro. “The educational purpose is patent. There's no question about whether a person really expects to put money in their pocket or not. Here you have a not-for-profit institution that’s creating educational facilities.”
Economic development
"If you look at the historic reality, there's an economic development aspect to this whole thing," Smith suggested. "Wasn't the whole problem that West Harlem was suffering economically?"
Casolaro paused, considering his words. “Columbia is not a profit-making institution,” he said, to some snickers from the audience. "It has no shareholders."
Smith said he meant economic development in a different way: “It looks to me as though the impulse, from the public point of view... the ESDC apparently... was to make West Harlem a nicer, more prosperous place... Doesn’t economic development describe that?”
Casolaro said the creation of educational facilities was separate from the clearing of land.
Smith cited concerns about employment.
“ESDC, after all, is an economic development agency,” Casolaro responded, conceding slightly. “So to the extent that Columbia’s the seventh largest employer in the city, that’s relevant.”
Sweetheart deal?
"Once you denominate Land Use, that's when you distinguish it from economic development, in the sense of Kelo?" asked Lippman. In his Kelo concurrence, Justice Anthony Kennedy suggested that courts look askance at projects that seem to be sweetheart deals.
Casolaro said confidently that the primary purpose in the New London case was economic development, as “the area wasn’t blighted.... Here you have a finding of substandard and insanitary by the agency. So it’s a different kind of case and the standards that might apply, given the concurrence of Judge Kennedy, don’t apply here.”
Judge Carmen Beauchamp Ciparick brought up the benefit package Columbia plans for the community.
"Absolutely correct," Casolaro responded. "ESDC negotiated 45 separate items of public benefit," including a community benefits fund of $76 million, a job training program, a health care program.
(Well, ESDC was Connected to the Community Benefits Agreement Columbia signed with the West Harlem Local Development Corporation (WHLDC), which is part of the Modified General Project Plan, but it's not like ESDC negotiated it directly. Moreover, the experimental WHLDC has been criticized as not representative, with a few members resigning. With Atlantic Yards, Forest City Ratner came with such benefits negotiated, and the CBA was not part of the official documents.)
“It satisfies the requirements of public use, and the UDC [Urban Development Corporation] Act, even without those community benefits,” Casolaro said. “However, ESDC wanted to make sure that the project made sense, from a community benefits standpoint. It insisted on more.”
"You’re taking the position that, because of the nature of this project," asked Read, "that considerations of pretext or motivation are simply irrelevant?"
“Well, completely correct, Your Honor,” Casolaro replied, noting that pretext means that public benefits alleged by the condemning agency wouldn’t occur.
Paying AKRF
"How would you recommend we interpret the fact that Columbia paid for all of your [legal and environmental] expenses?" asked Judge Eugene Pigott.
“It is the appropriate exercise of ESDC’s power to look to a sponsor,” Casolaro responded, his voice rising slightly in grievance. “It has a budget. It has to determine how to pay for its staff's activities and pay for the various blight studies. These were hugely expensive. To the extent that ESDC worked an agreement with Columbia where Columbia would pay for the costs necessary to explore the conditions to see if they satisfy the UDC Act..."
"Is that an unusual thing?" Lippman asked.
“It’s very common,” responded Casolaro. “It is usual for an agency to look for a cost reimbursement agreement with a sponsor that comes to it with a project so that the agency can undertake the various studies that are needed. The legislature doesn’t grant the ESDC the hundreds of thousands of dollars that are needed to investigate things of this sort.”
(Indeed, that was the case with AY.)
After 15 minutes, Casolaro’s remaining time was reserved for rebuttal.
Enter Siegel
Norman Siegel, attorney for the landowners, began by saying, “This case is very different from previous eminent domain cases that you've decided before.”
"How is it different from Atlantic Yards?" came the immediate question.
“In many, many ways,” Siegel said, pointing to a trainyard and a designated urban renewal area making up a majority of the area. (Of course the AY plaintiffs were outside of that area.)
Doesn’t the Atlantic Yards case, asked Smith, playing devil’s advocate, "stand for the proposition that we'll defer to the agency to a considerable extent?"
"Unfortunately, your colleagues did not accept your analysis," Siegel acknowledged.
"I think it's unfortunate too,” responded Smith, drawing laughs from the crowd. "Haven't you and I got a problem here?"
More laughs from the crowd.
Similar or different?
"No," Siegel insisted animatedly, "because this case is very different not only from Goldstein but from all the other cases you had. To begin with, I would submit, we have a unique record.”
Lippman intervened, saying that both Goldstein and the Columbia case involved blight. “As Judge Smith just indicated to you, isn’t our very, very recent precedent that it’s not just a difference of opinion... there is deference to the agency. Isn’t that the clear law, within the last year?”
“Not when there is bad faith,” Siegel enunciated firmly, gesturing with his finger. “There’s bad faith here on many occasions. There's bad faith with regard to the way that the methodology was used with regard to AKRF and Earth Tech. There is intentional bias with regard to the methodology... There’s at least half a dozen reasons. One: the application of arbitrary, inconsistent standards to measure for conditions indicative of blight.”
He cited the use of a vacancy standard of only 25% to indicate blight, "taking vacancy out of its original context and meaning," while in other cases the ESDC and AKRF had used a different standard. (With AY, it was 50%.) He cited a standard of underutilization of 60%, noting that, with a Floor Area Ratio (FAR) of 2, a one-story building would be blighted.
“You take the gas stations, they’re in good condition but they’re only one story,” he said, with an air of incredulity. “By their methodology, that is a blighted structure.”
What about building violations?
"Take for example, there's seven buildings that had garbage all owned by Columbia," Siegel responded. "Twelve buildings had conditions with regard vermin, all owned by Columbia. Ten, which had mold, all owned by Columbia."
Court role
“But what is our role here?” asked Lippman. “You’re saying that the methodology is so biased we should throw out those studies?
"Absolutely," Siegel responded.
"On the basis of our taking a look in this more micro sense, at each of these buildings and what the criteria was?" Lippman asked quizzically. "Is that our role?”
"You could take that role, but you don't have to take that role here," Siegel responded, "because you can get to the issue that the studies should be disregarded because the methodology is biased."
“The Atlantic Yards people,” countered Smith, "said there was plenty of bias, too. They said it was all a set-up for Ratner, that he picked out the area. Why is this any different? In fact, isn’t this area a little more rundown than the Atlantic Yards area?”
Siegel didn’t quite respond: "There are blight-like conditions, but they do not connect the blight-like conditions, such as the examples I just gave, with what blight is about. Blight is about a liability, it's about a disease, it's something that's contagious that affects the community."
"I agree," Smith responded. "But if you look at the pictures of the Atlantic Yards area, it didn’t look blighted to me either, and we said--in a decision by which I'm bound--said it’s not for us to decide, it's for the agency.”
(As a judicial conservative, Smith seemed to be indicating that he felt bound by the previous opinion from which he dissented.)
“We’re not just arguing the public purpose and challenging blight,” Siegel responded carefully. When there are issues other than public purpose, you have a higher standard of substantial evidence, looking at the record to determine whether they meet that criterion.
“But again, the question that was just asked of you is, looking at it in a more macro sense,” Lippman asked, “wouldn’t you agree this area--it appears that this area is far more blighted than Atlantic Yards?”
“I’m not that familiar with the record in Atlantic Yards,” Siegel responded with some faux-naivete. Having represented Develop Don't Destroy Brooklyn and studied the Atlantic Yards eminent domain cases, he surely is familiar with the record.
He was told to assume Lippman’s statement was correct.
“It’s still not sufficient to meet the blight requirements,” he said a little aggrievedly. “Because you can’t just isolate conditions. In the Yonkers case in 1976, you said specifically that deteriorated structures are not enough, because what blight is about is the interrelationship between factors. You can’t just say because there’s garbage in a building that the neighborhood is blighted, the surrounding community is blighted.”
Conflict of interest
You’re going further than disagreeing with the studies, Lippman suggested.
“We're going much further," Siegel said, gesturing forcefully. "We’re challenging the methodology... Incredible. Think of it: the ESDC hires Columbia’s consultant to do the no-blight [sic] study.” (Actually, the “no-blight” study was conduced on the plaintiffs’ behalfs; Siegel meant the Blight Study.)
“That is not only bad faith, but it is the quintessential conflict of interest,” he said. “The lower court said very clearly: you can’t serve two masters.” (With AY, AKRF worked consecutively for Forest City Ratner and the ESDC.)
What about the independent consultants that produced reports similar to those from AKRF?
"The taint that was marked by AKRF was not erased by EarthTech," Siegel said, gathering steam. "They come in... they are supposed the AKRF study, it's in the contract. There's no evaluation of the AKRF study. They just adopt, wholesale, the methodology, the methodology that I submit, Judge Lippman, you do have a right to take a look at, and, as a question of law--”
Suppose you hire a consultant with a conflict; that doesn’t mean the consultant’s dishonest, Smith noted. Is it “so terrible” then to bring in another consultant to evaluate whether the initial work was done right?
Siegel said ESDC knew that AKRF was working for Columbia.
“There was a good deal of cooperation between ESDC and Columbia,” Smith said.
“I submit collusion,” Siegel riposted.
“There was obvious cooperation between ESDC and Ratner too, what's the difference?” Smith continued.
Siegel, not responding directly, said that he was arguing “collusion” in the Columbia case. Cooperation means working together in an open process, while “here what you had, from our position,” was a city decision “to give this land to Columbia for economic development reasons,” but shifted the rationale.
(The same argument could be made regarding Atlantic Yards.)
"Don't fall for it, judge"
Wasn’t there a lot of public input, asked Lippman, citing the role of the City Council in rezoning.
Not regarding eminent domain, Siegel said.
"Again, what is our role," Lippman asked. "Put aside the first study. Didn’t the second study go lot by lot through this property and make its own view?"
“Don’t fall for it, judge,” Siegel said, in a cheeky but nonaggressive way.
The second study "basically ignores" that the “overwhelming” number of “blight-like conditions” were in Columbia-owned or -controlled buildings, he said.
Public or private university
Read shifted the discussion. What if a state university, not a private institution, like Columbia, had proposed the expansion?
“It's a different the dynamic,” said Siegel. “You need public education for a Civic Project.”
What if CCNY took over the project, asked Ciparick.
"I have to disclose I'm a CUNY graduate," Siegel said a bit lightheartedly.
"As am I," the judge responded, with a grin.
Civic purposes limits education to “public education,” Siegel insisted.
How is it, Read asked, that a not-for-profit institution like Columbia doesn’t qualify?
Siegel said there was no case saying it was OK.
Wouldn't this be a quintessential example, Lippman asked. Doesn’t Columbia have an impact on the whole area?
What about a private day school, like Collegiate, or Dalton, asked Smith.
Smith said that could lead to a parade of private institutions seeking to expand. All the cases around the country, Siegel said, involve the prerequisite that the legislature explicitly give the private educational institution the right to eminent domain.
"Each time you want to do it, we need a separate statute?" asked Lippman.
"Absolutely," Siegel responded. "You're right on point."
Do we hold it against Columbia that it's an “'elite' institution,” asked Lippman.
“Have you heard me use that word,” responded Siegel. (It’s certainly been used by opponents of the project.)
“I don't want to hold it against anyone," Siegel responded. "I just believe in the law,” he added.
“I’m not just telling you I disagree with their [blight] analysis.” He pointed to the “no-blight study” that was unique in New York state jurisprudence, where those facing eminent domain--unlike in other states--can’t conduct discovery or cross-examination to examine the condemnor’s action.
(See comments from lawyers who represent condemnees on the Inverse Condemnation live blog: Writes Timothy Sandefur, "A huge problem is caused here by the fact that condemnations are handled by administrative agencies that gather their information through the procedures provided for such agencies, and NOT through a court process... What that means is, administrative agencies can include in their reports all sorts of junk evidence--hearsay, and irrelevant stuff—...and then make a determination based on that "evidence," and then the court will DEFER to that judgment, and refuse to second-guess that "evidence"!... Thus "evidence" that would never get through the door in a court proceeding gets in, and is just accepted as true by a court.")
He noted that, in the Atlantic Yards case, AKRF saw building violations as unreliable measures of blight but in the Columbia case it didn't.
How decide blight?
If the court agrees with him, Read asked, what should they say: "how would people understand what was blight and what wasn't blight?"
“I don’t think you even have to get there,” Siegel responded. "What you can say is, to begin with, they never should have even hired Columbia’s consultant."
Smith pressed on: how could a lawyer, citizen, or developer make sense of the dueling decisions if the court finds for Siegel’s clients?
How does ESDC know, added another judge.
"Well, I think what you set forth is that, when someone does a blight study, they need to make sure that the people doing it are independent and neutral.," Siegel said, a bit more low-key.
"So, to hire the right consultant to begin with is the answer?" Smith said.
"And second, have that study done before you make the decision that you’re giving the land in question to the developer who wants that land," Siegel continued.
(With Atlantic Yards, the Blight Study was done after the project was announced--an issue Smith seized on in his dissent, but was ignored by the majority.)
Does it make sense to point out that properties cited for blight are owned by the entity asserting the blight, asked Pigott.
“That would be a good standard. I'd love to see it in the decision,” Siegel assented. There were laughs from the crowd.
“What are we going to do? We're going to reward Columbia because they didn’t maintain the conditions that were blight-like?” he asked. “We're going to reward them by giving them other people’s property?”
What about the $6 million Columbia spent, Lippman asked.
"The Nash Building and the Studebaker Building--they did external and internal," Siegel responded. "Most of the money was in regard to those two buildings that they’re keeping."
“You say yes, but they say no,” Smith said, in regard to questions of when blight started. “Are we supposed to referee that, or are we supposed to defer to the agency?”
You don’t necessarily have to referee it, Siegel responded, citing the larger questions of methodology and conflict of interest. "The methodology is a question of law."
Due process
What about the alleged due process violations, asked Judge Theodore Jones.
Siegel noted that the two-judge plurality plus the concurrence at the intermediate court agreed on the due process violations and that proposition alone should decide the case.
“The due process issue is fundamental," Siegel responded. "It is that the record was closed prior to us getting documents that courts said we were entitled to.”
“Are you proposing that as a flat rule," Smith asked, that if the petitioners don't have a document, the ESDC can’t close the record?
If there’s a court decision saying that petitioners are entitled to the documents, and they decide to appeal, Siegel said.
What if, hypothetically, the documents are inconsequential?
"You don't have to go there," Siegel responded, "because they are consequential here."
ESDC manufactured support for condemnation?
“When we came here to win in December [on an appeal], and I thank you for that decision," Siegel responded, "there’s a memo by a senior [ESDC] employee, Joseph Petillo... and he talks about, should we be doing this, when they want to do an RFP [request for proposals], and he says no, give it to AKRF, and his language is: We are going to manufacture support for condemnation. That is quite telling.”
He said that Petillo indicated that, post-Kelo, ESDC would try to accomplish the blight finding in a discreet way.
"I understand this is a helpful document for you," Smith observed. “You’re not really saying that it transforms the case. It's the same case, with or without that document."
“I have 1169 documents that are still in dispute,” Siegel responded.
Discovery available?
Lippman asked if the example spoke to motive.
Yes, said Siegel, but quickly returned to due process, laying out the contrasts with other states: “We should win just on that alone. The due process issue says, in this EDPL [Eminent Domain Procedure Law] system since 1976, I can’t get discovery, I can’t do cross-examination, I can’t go to a trial court.”
“Is there statutorily-provided discovery in this kind of situation?” asked Lippman, in a moment that was either incredibly ignorant or faux-naive.
“No,” responded Siegel.
“You say this is unconstitutional,” Smith asked.
"Yes," said Siegel.
"So there's never been a valid condemnation in the history of New York?" Smith probed.
"I'm talking about the change since 1976," Siegel responded, pointing to the EDPL.
"Since 1976, nobody's ever had due process in a condemnation?" Smith asked.
"No," responded Siegel, saying the due process issue regarded keeping the record open for FOILs.
"Isn’t that a different point than the one you were making a moment ago?" Smith asked.
Yes, Siegel said, "but I dropped that on the appeal. I have a footnote to preserve it [for an appeal], but I'm not pushing it at this point."
He said that, after ESDC got a stay, the record was already closed, and he couldn't use the documents.
Doesn't it depend on what the documents are about, Lippman asked.
“The petitioner defines what documents are important,” he said.
He said that the documents that could further establish pretext.
"As long as you can keep a FOIL going, they can't condemn the property?" Smith asked.
"No," Siegel responded.
And soon his time was up.
Rebuttal
Casolaro got the last five minutes.
With respect to due process, the documents that matter are the ones in the record, that the directors based their decision on, he said calmly.
"In principle, would you agree, if you withheld something critical from them, that would be a due process problem?" asked Smith.
“It’s not the facts in this case,” Casolaro said, evading the hypothetical.
Smith responded that it was a hypothetical.
“It would have to affect the decision of the agency,” responded Casolaro, gathering steam, citing a document that might indicate it wasn’t an educational project.
It’s alleged that ESDC was hiding critical documents, asked Pigott; can there be a due process problem?
"There can be, if you're hiding key documents that are related to the decision in the case," Casolaro agreed. "But how can you have that in the context of a case like this, where education in an obvious purpose? Either it's permitted by the act or it's not."
"How far do you go," asked Smith. "Can Dalton or Horace Mann do what Columbia did?"
“Dalton and Horace Mann and Columbia aren’t doing anything,” Casolaro responded, aggrievedly. “It’s an ESDC decision.”
“Can ESDC do for Dalton what it did for Columbia,” Smith pressed on.
“Yes,” acknowledged Casolaro, stressing that ESDC had been given the power by the legislature.
Could the expansion of Dalton, Smith asked skeptically, be a civic project?
Yes, Casolaro said, noting that the legislature said creation of educational projects are sufficient to be civic projects.
“So the expansion of the Dalton School is a Civic Project?"
"Yes," Casolaro responded. "The legislature drafted this statute, not ESDC."
"Condemnation of property for any educational institution meets the public use test?” Smith asked.
“Yes, it does,” responded Casolaro, his voice rising.
"Even if it's the local trade school?" Smith continued.
"It does," Casolaro again responded, tilting his head briefly as if in involuntary acknowledgment of Smith's slippery slope.
He cited a case involving Cornell, in which the court determined that education “singularly serves the public interest... and the legislative determination on that issue should prevail."
Due process
In his last minute, Casolaro aimed to counter Siegel’s claim that there were a thousand documents sought via FOIL. He said the plaintiffs had specific information on why they were withheld.
When the record was closed, all the documents had been produced that a lower court originally ordered produced: “Now, three years later, they’re apparently planning to say: we want more documents produced.”
“If they really wanted to pursue their rights,” he said, they would not have taken three years to go to court. "This is a litigation tactic."
"The court knows what the seven documents are. Counsel knows what the seven documents are," he said. "They're not referred to in the brief. The reason they're not referred to in the brief is that they’re not material to their arguments and not material to the issues in this case."
Casolaro, looking at his legal pad, was prepared to offer more rebuttal, but Lippman said the time was up.
Post-hearing comments
See post-hearing comments from the plaintiffs and allies from the Spectator’s blog.
In the highly contested 40-minute oral argument (webcast) yesterday in the Columbia University eminent domain case, attorneys significantly reprised arguments in the briefs, with frequent references to the Atlantic Yards case the Court of Appeals decided last November.
I didn’t make it to Albany and none of the city’s three daily newspapers sent a reporter, but I've since amplified my initial report--based on a recording--with a look at the webcast.
The lack of coverage is dismaying, given that the Appellate Division’s surprising and contested rejection of the Empire State Development Corporation’s eminent domain findings was big news last December.
The bottom line of the argument is unclear, given there are various strands of argument. In other words, if the court upholds the ESDC on its finding of blight--as is not unlikely, given its decision in the AY case--it could find other reasons to block Columbia.
The team at the Columbia Spectator offered good coverage. Here's AP coverage.
From the Spectator, the setting:
Beyond the speaker’s dais and the dialogue between the lawyers and the judges, a large audience gathered to watch the case unfold. Well over 100 people crowded into the courtroom, and even more in an overflow room with a closed-circuit television. Many attendees were West Harlem residents, and a large number were members of local activist groups such as the Coalition to Preserve Community. CPC and other organizations sponsored a full bus from Harlem to Albany, as did State Senator Bill Perkins, who represents Harlem and has been an outspoken critic of eminent domain in Manhattanville.Opening up
ESDC attorney John Casolaro began by saying the ESDC deserved deference from the court because it’s a “legislative-type” decision--the ESDC is a creation of the legislature, but, of course, not controlled by the legislature--and the petitioners had not shown the decision was “baseless and without foundation in the record.”
He said it was both a Land Use Improvement Project, in which the ESDC “reasonably relied” on reports that buildings were deteriorating, and a Civic Project for educational purposes.
History of blight?
He was soon interrupted. "What about the conflict about the first report?" asked Chief Judge Jonathan Lippman, referring to the Blight Study by consultant AKRF, which was simultaneously working for Columbia.
"The second report, by EarthTech, doesn't have any of those concerns," Casolaro replied, with a slight air of grievance.
"I agree, I agree," Lippman responded.
“And with respect to the first report," Casolaro continued, "AKRF prepared a report that is based on documentary evidence in the record."
"Was it prudent to commission the first report?" asked Lippman.
Casolaro didn't quite answer. "ESDC reasonably relied on AKRF, as it has done many times in the past, and its decisions have been affirmed by this court, and other courts,” he said.
Were there any findings of blight before this project, another judge asked?
Casolaro cited “a long history of blight” in the area, including findings north in 1955 and just south 1959, and a 1969 redevelopment plan. He didn’t mention more recent studies that didn’t find blight.
“This wasn’t like Goldstein, where there was an actual longstanding finding of blight in the particular area," asked Judge Susan Read, referring to the Atlantic Yards case.
“That’s correct” Casolaro said, saying there had not been “a particularized blight finding for this site prior to the ESDC’s blight findings,” but “there was a discussion of blight.”
The plaintiffs in the Columbia case have tried to distinguish the two cases, though the plaintiffs in the AY case were all from outside the area--the Atlantic Terminal Urban Renewal Area--found decades previously to be blighted, and which had mostly been developed. (Remember, the AY site, according to Chuck Ratner of developer Forest City Enterprises, is a “great piece of real estate.”)
Columbia role?
What, asked Lippman, about the contention that Columbia contributed to the blighted nature of the area, as alleged by the plaintiffs?
“Columbia didn’t create the blighted conditions,” said Casolaro, pointing to two separate studies from 2003 and 2008. “We see that the record shows that Columbia spent money to try to fix it. In fact, Columbia spent nearly six million dollars to stabilize and repair buildings in the project site.”
He noted that Columbia didn’t renovate buildings, given that they were destined for demolition, but took steps to stabilize them.
Judge Robert Smith, the one dissenter in the AY decision, asked if there was a problem in that the agency doing the condemnation was doing the fact-finding.
“These are legislative determinations,” Casolaro replied, truncating the phrase “legislative-type.”
"You sound like the majority in the Atlantic Yards case," Smith said slyly. (There were some chuckles in the crowd, given that Smith was excluding his own ruling.)
"I am stating what the Court of Appeals has said in the past, correct," Casolaro replied, allowing himself a smile.
"I was afraid of that," Smith muttered.
Eminent domain for private university?
Would it be a new precedent, asked Judge Victoria Graffeo, to allow eminent domain for the expansion of a private university as a civic purpose?
“There is no other case in this state where the court has held that eminent domain can be used for the construction of a private educational facilities," Casolaro acknowledged.
"Why should we do that?" Graffeo cut him off.
“Because the legislature has indicated that this is a proper public purpose.”
What about the nature of the university, asked Lippman.
“What ESDC said," Casolaro responded. "is there is a need for educational facilities in the state, and the involvement of private entities is appropriate.”
“We don’t have to reach that second issue if we agree with you that the record supports a finding of blight,” one judge said.
"That's correct," Casolaro said, smiling a bit.
Due process issue
Lippman brought up claims that the ESDC denied the petitioners due process by denying Freedom of Information Law requests.
Casolaro said the cases cited by the petitioners weren’t relevant.
Smith was skeptical, saying he wasn’t clear from the record what had been denied.
There were six FOIL requests, Casolaro said. Three had been responded to, but two were in dispute.
Smith said he didn’t understand what they didn’t get.
As of 10/10/08, Casolaro said, there were only seven documents due the petitioners.
What did the documents relate to, Lippman asked.
As a lower court decision said, the documents were emails, scheduling meetings “minor things of relative insignificance,” Casolaro said.
Motive of condemnors
“Is motive at all an issue here?” Lippman probed, opening up a new line of argument.
“This is an issue that arose in Goldstein v. Pataki,” Casolaro said, pointing to the federal court of appeals decision in the AY eminent domain case, which said that if there’s a reasonable basis for the decision, motive’s not an issue.
Lippman pointed to the U.S. Supreme Court’s controversial Kelo v. New London decision, which upheld eminent domain for economic development but allowed that, in situations where there was evidence of pretext, a more searching look at motive was in order.
“Kelo was a very different situation because it was an economic development project--of course, this isn’t,” Casolaro said, skating over the claims that the Columbia project would produce 14,000 construction jobs and 6000 permanent jobs, as well as the point that the blight criterion of “underutilization” points directly to economic development.
"If you have Civic [Project] or Land Use [Improvement Project], do you have any questions about motive?" asked Lippman.
"You do not, Your Honor," responded Casolaro. “The educational purpose is patent. There's no question about whether a person really expects to put money in their pocket or not. Here you have a not-for-profit institution that’s creating educational facilities.”
Economic development
"If you look at the historic reality, there's an economic development aspect to this whole thing," Smith suggested. "Wasn't the whole problem that West Harlem was suffering economically?"
Casolaro paused, considering his words. “Columbia is not a profit-making institution,” he said, to some snickers from the audience. "It has no shareholders."
Smith said he meant economic development in a different way: “It looks to me as though the impulse, from the public point of view... the ESDC apparently... was to make West Harlem a nicer, more prosperous place... Doesn’t economic development describe that?”
Casolaro said the creation of educational facilities was separate from the clearing of land.
Smith cited concerns about employment.
“ESDC, after all, is an economic development agency,” Casolaro responded, conceding slightly. “So to the extent that Columbia’s the seventh largest employer in the city, that’s relevant.”
Sweetheart deal?
"Once you denominate Land Use, that's when you distinguish it from economic development, in the sense of Kelo?" asked Lippman. In his Kelo concurrence, Justice Anthony Kennedy suggested that courts look askance at projects that seem to be sweetheart deals.
Casolaro said confidently that the primary purpose in the New London case was economic development, as “the area wasn’t blighted.... Here you have a finding of substandard and insanitary by the agency. So it’s a different kind of case and the standards that might apply, given the concurrence of Judge Kennedy, don’t apply here.”
Judge Carmen Beauchamp Ciparick brought up the benefit package Columbia plans for the community.
"Absolutely correct," Casolaro responded. "ESDC negotiated 45 separate items of public benefit," including a community benefits fund of $76 million, a job training program, a health care program.
(Well, ESDC was Connected to the Community Benefits Agreement Columbia signed with the West Harlem Local Development Corporation (WHLDC), which is part of the Modified General Project Plan, but it's not like ESDC negotiated it directly. Moreover, the experimental WHLDC has been criticized as not representative, with a few members resigning. With Atlantic Yards, Forest City Ratner came with such benefits negotiated, and the CBA was not part of the official documents.)
“It satisfies the requirements of public use, and the UDC [Urban Development Corporation] Act, even without those community benefits,” Casolaro said. “However, ESDC wanted to make sure that the project made sense, from a community benefits standpoint. It insisted on more.”
"You’re taking the position that, because of the nature of this project," asked Read, "that considerations of pretext or motivation are simply irrelevant?"
“Well, completely correct, Your Honor,” Casolaro replied, noting that pretext means that public benefits alleged by the condemning agency wouldn’t occur.
Paying AKRF
"How would you recommend we interpret the fact that Columbia paid for all of your [legal and environmental] expenses?" asked Judge Eugene Pigott.
“It is the appropriate exercise of ESDC’s power to look to a sponsor,” Casolaro responded, his voice rising slightly in grievance. “It has a budget. It has to determine how to pay for its staff's activities and pay for the various blight studies. These were hugely expensive. To the extent that ESDC worked an agreement with Columbia where Columbia would pay for the costs necessary to explore the conditions to see if they satisfy the UDC Act..."
"Is that an unusual thing?" Lippman asked.
“It’s very common,” responded Casolaro. “It is usual for an agency to look for a cost reimbursement agreement with a sponsor that comes to it with a project so that the agency can undertake the various studies that are needed. The legislature doesn’t grant the ESDC the hundreds of thousands of dollars that are needed to investigate things of this sort.”
(Indeed, that was the case with AY.)
After 15 minutes, Casolaro’s remaining time was reserved for rebuttal.
Enter Siegel
Norman Siegel, attorney for the landowners, began by saying, “This case is very different from previous eminent domain cases that you've decided before.”
"How is it different from Atlantic Yards?" came the immediate question.
“In many, many ways,” Siegel said, pointing to a trainyard and a designated urban renewal area making up a majority of the area. (Of course the AY plaintiffs were outside of that area.)
Doesn’t the Atlantic Yards case, asked Smith, playing devil’s advocate, "stand for the proposition that we'll defer to the agency to a considerable extent?"
"Unfortunately, your colleagues did not accept your analysis," Siegel acknowledged.
"I think it's unfortunate too,” responded Smith, drawing laughs from the crowd. "Haven't you and I got a problem here?"
More laughs from the crowd.
Similar or different?
"No," Siegel insisted animatedly, "because this case is very different not only from Goldstein but from all the other cases you had. To begin with, I would submit, we have a unique record.”
Lippman intervened, saying that both Goldstein and the Columbia case involved blight. “As Judge Smith just indicated to you, isn’t our very, very recent precedent that it’s not just a difference of opinion... there is deference to the agency. Isn’t that the clear law, within the last year?”
“Not when there is bad faith,” Siegel enunciated firmly, gesturing with his finger. “There’s bad faith here on many occasions. There's bad faith with regard to the way that the methodology was used with regard to AKRF and Earth Tech. There is intentional bias with regard to the methodology... There’s at least half a dozen reasons. One: the application of arbitrary, inconsistent standards to measure for conditions indicative of blight.”
He cited the use of a vacancy standard of only 25% to indicate blight, "taking vacancy out of its original context and meaning," while in other cases the ESDC and AKRF had used a different standard. (With AY, it was 50%.) He cited a standard of underutilization of 60%, noting that, with a Floor Area Ratio (FAR) of 2, a one-story building would be blighted.
“You take the gas stations, they’re in good condition but they’re only one story,” he said, with an air of incredulity. “By their methodology, that is a blighted structure.”
What about building violations?
"Take for example, there's seven buildings that had garbage all owned by Columbia," Siegel responded. "Twelve buildings had conditions with regard vermin, all owned by Columbia. Ten, which had mold, all owned by Columbia."
Court role
“But what is our role here?” asked Lippman. “You’re saying that the methodology is so biased we should throw out those studies?
"Absolutely," Siegel responded.
"On the basis of our taking a look in this more micro sense, at each of these buildings and what the criteria was?" Lippman asked quizzically. "Is that our role?”
"You could take that role, but you don't have to take that role here," Siegel responded, "because you can get to the issue that the studies should be disregarded because the methodology is biased."
“The Atlantic Yards people,” countered Smith, "said there was plenty of bias, too. They said it was all a set-up for Ratner, that he picked out the area. Why is this any different? In fact, isn’t this area a little more rundown than the Atlantic Yards area?”
Siegel didn’t quite respond: "There are blight-like conditions, but they do not connect the blight-like conditions, such as the examples I just gave, with what blight is about. Blight is about a liability, it's about a disease, it's something that's contagious that affects the community."
"I agree," Smith responded. "But if you look at the pictures of the Atlantic Yards area, it didn’t look blighted to me either, and we said--in a decision by which I'm bound--said it’s not for us to decide, it's for the agency.”
(As a judicial conservative, Smith seemed to be indicating that he felt bound by the previous opinion from which he dissented.)
“We’re not just arguing the public purpose and challenging blight,” Siegel responded carefully. When there are issues other than public purpose, you have a higher standard of substantial evidence, looking at the record to determine whether they meet that criterion.
“But again, the question that was just asked of you is, looking at it in a more macro sense,” Lippman asked, “wouldn’t you agree this area--it appears that this area is far more blighted than Atlantic Yards?”
“I’m not that familiar with the record in Atlantic Yards,” Siegel responded with some faux-naivete. Having represented Develop Don't Destroy Brooklyn and studied the Atlantic Yards eminent domain cases, he surely is familiar with the record.
He was told to assume Lippman’s statement was correct.
“It’s still not sufficient to meet the blight requirements,” he said a little aggrievedly. “Because you can’t just isolate conditions. In the Yonkers case in 1976, you said specifically that deteriorated structures are not enough, because what blight is about is the interrelationship between factors. You can’t just say because there’s garbage in a building that the neighborhood is blighted, the surrounding community is blighted.”
Conflict of interest
You’re going further than disagreeing with the studies, Lippman suggested.
“We're going much further," Siegel said, gesturing forcefully. "We’re challenging the methodology... Incredible. Think of it: the ESDC hires Columbia’s consultant to do the no-blight [sic] study.” (Actually, the “no-blight” study was conduced on the plaintiffs’ behalfs; Siegel meant the Blight Study.)
“That is not only bad faith, but it is the quintessential conflict of interest,” he said. “The lower court said very clearly: you can’t serve two masters.” (With AY, AKRF worked consecutively for Forest City Ratner and the ESDC.)
What about the independent consultants that produced reports similar to those from AKRF?
"The taint that was marked by AKRF was not erased by EarthTech," Siegel said, gathering steam. "They come in... they are supposed the AKRF study, it's in the contract. There's no evaluation of the AKRF study. They just adopt, wholesale, the methodology, the methodology that I submit, Judge Lippman, you do have a right to take a look at, and, as a question of law--”
Suppose you hire a consultant with a conflict; that doesn’t mean the consultant’s dishonest, Smith noted. Is it “so terrible” then to bring in another consultant to evaluate whether the initial work was done right?
Siegel said ESDC knew that AKRF was working for Columbia.
“There was a good deal of cooperation between ESDC and Columbia,” Smith said.
“I submit collusion,” Siegel riposted.
“There was obvious cooperation between ESDC and Ratner too, what's the difference?” Smith continued.
Siegel, not responding directly, said that he was arguing “collusion” in the Columbia case. Cooperation means working together in an open process, while “here what you had, from our position,” was a city decision “to give this land to Columbia for economic development reasons,” but shifted the rationale.
(The same argument could be made regarding Atlantic Yards.)
"Don't fall for it, judge"
Wasn’t there a lot of public input, asked Lippman, citing the role of the City Council in rezoning.
Not regarding eminent domain, Siegel said.
"Again, what is our role," Lippman asked. "Put aside the first study. Didn’t the second study go lot by lot through this property and make its own view?"
“Don’t fall for it, judge,” Siegel said, in a cheeky but nonaggressive way.
The second study "basically ignores" that the “overwhelming” number of “blight-like conditions” were in Columbia-owned or -controlled buildings, he said.
Public or private university
Read shifted the discussion. What if a state university, not a private institution, like Columbia, had proposed the expansion?
“It's a different the dynamic,” said Siegel. “You need public education for a Civic Project.”
What if CCNY took over the project, asked Ciparick.
"I have to disclose I'm a CUNY graduate," Siegel said a bit lightheartedly.
"As am I," the judge responded, with a grin.
Civic purposes limits education to “public education,” Siegel insisted.
How is it, Read asked, that a not-for-profit institution like Columbia doesn’t qualify?
Siegel said there was no case saying it was OK.
Wouldn't this be a quintessential example, Lippman asked. Doesn’t Columbia have an impact on the whole area?
What about a private day school, like Collegiate, or Dalton, asked Smith.
Smith said that could lead to a parade of private institutions seeking to expand. All the cases around the country, Siegel said, involve the prerequisite that the legislature explicitly give the private educational institution the right to eminent domain.
"Each time you want to do it, we need a separate statute?" asked Lippman.
"Absolutely," Siegel responded. "You're right on point."
Do we hold it against Columbia that it's an “'elite' institution,” asked Lippman.
“Have you heard me use that word,” responded Siegel. (It’s certainly been used by opponents of the project.)
“I don't want to hold it against anyone," Siegel responded. "I just believe in the law,” he added.
“I’m not just telling you I disagree with their [blight] analysis.” He pointed to the “no-blight study” that was unique in New York state jurisprudence, where those facing eminent domain--unlike in other states--can’t conduct discovery or cross-examination to examine the condemnor’s action.
(See comments from lawyers who represent condemnees on the Inverse Condemnation live blog: Writes Timothy Sandefur, "A huge problem is caused here by the fact that condemnations are handled by administrative agencies that gather their information through the procedures provided for such agencies, and NOT through a court process... What that means is, administrative agencies can include in their reports all sorts of junk evidence--hearsay, and irrelevant stuff—...and then make a determination based on that "evidence," and then the court will DEFER to that judgment, and refuse to second-guess that "evidence"!... Thus "evidence" that would never get through the door in a court proceeding gets in, and is just accepted as true by a court.")
He noted that, in the Atlantic Yards case, AKRF saw building violations as unreliable measures of blight but in the Columbia case it didn't.
How decide blight?
If the court agrees with him, Read asked, what should they say: "how would people understand what was blight and what wasn't blight?"
“I don’t think you even have to get there,” Siegel responded. "What you can say is, to begin with, they never should have even hired Columbia’s consultant."
Smith pressed on: how could a lawyer, citizen, or developer make sense of the dueling decisions if the court finds for Siegel’s clients?
How does ESDC know, added another judge.
"Well, I think what you set forth is that, when someone does a blight study, they need to make sure that the people doing it are independent and neutral.," Siegel said, a bit more low-key.
"So, to hire the right consultant to begin with is the answer?" Smith said.
"And second, have that study done before you make the decision that you’re giving the land in question to the developer who wants that land," Siegel continued.
(With Atlantic Yards, the Blight Study was done after the project was announced--an issue Smith seized on in his dissent, but was ignored by the majority.)
Does it make sense to point out that properties cited for blight are owned by the entity asserting the blight, asked Pigott.
“That would be a good standard. I'd love to see it in the decision,” Siegel assented. There were laughs from the crowd.
“What are we going to do? We're going to reward Columbia because they didn’t maintain the conditions that were blight-like?” he asked. “We're going to reward them by giving them other people’s property?”
What about the $6 million Columbia spent, Lippman asked.
"The Nash Building and the Studebaker Building--they did external and internal," Siegel responded. "Most of the money was in regard to those two buildings that they’re keeping."
“You say yes, but they say no,” Smith said, in regard to questions of when blight started. “Are we supposed to referee that, or are we supposed to defer to the agency?”
You don’t necessarily have to referee it, Siegel responded, citing the larger questions of methodology and conflict of interest. "The methodology is a question of law."
Due process
What about the alleged due process violations, asked Judge Theodore Jones.
Siegel noted that the two-judge plurality plus the concurrence at the intermediate court agreed on the due process violations and that proposition alone should decide the case.
“The due process issue is fundamental," Siegel responded. "It is that the record was closed prior to us getting documents that courts said we were entitled to.”
“Are you proposing that as a flat rule," Smith asked, that if the petitioners don't have a document, the ESDC can’t close the record?
If there’s a court decision saying that petitioners are entitled to the documents, and they decide to appeal, Siegel said.
What if, hypothetically, the documents are inconsequential?
"You don't have to go there," Siegel responded, "because they are consequential here."
ESDC manufactured support for condemnation?
“When we came here to win in December [on an appeal], and I thank you for that decision," Siegel responded, "there’s a memo by a senior [ESDC] employee, Joseph Petillo... and he talks about, should we be doing this, when they want to do an RFP [request for proposals], and he says no, give it to AKRF, and his language is: We are going to manufacture support for condemnation. That is quite telling.”
He said that Petillo indicated that, post-Kelo, ESDC would try to accomplish the blight finding in a discreet way.
"I understand this is a helpful document for you," Smith observed. “You’re not really saying that it transforms the case. It's the same case, with or without that document."
“I have 1169 documents that are still in dispute,” Siegel responded.
Discovery available?
Lippman asked if the example spoke to motive.
Yes, said Siegel, but quickly returned to due process, laying out the contrasts with other states: “We should win just on that alone. The due process issue says, in this EDPL [Eminent Domain Procedure Law] system since 1976, I can’t get discovery, I can’t do cross-examination, I can’t go to a trial court.”
“Is there statutorily-provided discovery in this kind of situation?” asked Lippman, in a moment that was either incredibly ignorant or faux-naive.
“No,” responded Siegel.
“You say this is unconstitutional,” Smith asked.
"Yes," said Siegel.
"So there's never been a valid condemnation in the history of New York?" Smith probed.
"I'm talking about the change since 1976," Siegel responded, pointing to the EDPL.
"Since 1976, nobody's ever had due process in a condemnation?" Smith asked.
"No," responded Siegel, saying the due process issue regarded keeping the record open for FOILs.
"Isn’t that a different point than the one you were making a moment ago?" Smith asked.
Yes, Siegel said, "but I dropped that on the appeal. I have a footnote to preserve it [for an appeal], but I'm not pushing it at this point."
He said that, after ESDC got a stay, the record was already closed, and he couldn't use the documents.
Doesn't it depend on what the documents are about, Lippman asked.
“The petitioner defines what documents are important,” he said.
He said that the documents that could further establish pretext.
"As long as you can keep a FOIL going, they can't condemn the property?" Smith asked.
"No," Siegel responded.
And soon his time was up.
Rebuttal
Casolaro got the last five minutes.
With respect to due process, the documents that matter are the ones in the record, that the directors based their decision on, he said calmly.
"In principle, would you agree, if you withheld something critical from them, that would be a due process problem?" asked Smith.
“It’s not the facts in this case,” Casolaro said, evading the hypothetical.
Smith responded that it was a hypothetical.
“It would have to affect the decision of the agency,” responded Casolaro, gathering steam, citing a document that might indicate it wasn’t an educational project.
It’s alleged that ESDC was hiding critical documents, asked Pigott; can there be a due process problem?
"There can be, if you're hiding key documents that are related to the decision in the case," Casolaro agreed. "But how can you have that in the context of a case like this, where education in an obvious purpose? Either it's permitted by the act or it's not."
"How far do you go," asked Smith. "Can Dalton or Horace Mann do what Columbia did?"
“Dalton and Horace Mann and Columbia aren’t doing anything,” Casolaro responded, aggrievedly. “It’s an ESDC decision.”
“Can ESDC do for Dalton what it did for Columbia,” Smith pressed on.
“Yes,” acknowledged Casolaro, stressing that ESDC had been given the power by the legislature.
Could the expansion of Dalton, Smith asked skeptically, be a civic project?
Yes, Casolaro said, noting that the legislature said creation of educational projects are sufficient to be civic projects.
“So the expansion of the Dalton School is a Civic Project?"
"Yes," Casolaro responded. "The legislature drafted this statute, not ESDC."
"Condemnation of property for any educational institution meets the public use test?” Smith asked.
“Yes, it does,” responded Casolaro, his voice rising.
"Even if it's the local trade school?" Smith continued.
"It does," Casolaro again responded, tilting his head briefly as if in involuntary acknowledgment of Smith's slippery slope.
He cited a case involving Cornell, in which the court determined that education “singularly serves the public interest... and the legislative determination on that issue should prevail."
Due process
In his last minute, Casolaro aimed to counter Siegel’s claim that there were a thousand documents sought via FOIL. He said the plaintiffs had specific information on why they were withheld.
When the record was closed, all the documents had been produced that a lower court originally ordered produced: “Now, three years later, they’re apparently planning to say: we want more documents produced.”
“If they really wanted to pursue their rights,” he said, they would not have taken three years to go to court. "This is a litigation tactic."
"The court knows what the seven documents are. Counsel knows what the seven documents are," he said. "They're not referred to in the brief. The reason they're not referred to in the brief is that they’re not material to their arguments and not material to the issues in this case."
Casolaro, looking at his legal pad, was prepared to offer more rebuttal, but Lippman said the time was up.
Post-hearing comments
See post-hearing comments from the plaintiffs and allies from the Spectator’s blog.
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