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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88677
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I have a case of constructive taking of property by a city

Resolved Question:

I have a case of constructive taking of property by a city by means of denying the only economic use, which is residential, an established use of the property which is allowed to continue on all adjacent properties. No facts or legal argument in opposition to compensation by the city were presented, except the absurd notion that if no value remains then somehow no value was taken, which would not withstand any examination.

The problem is that this is a superior (county) court which never rules against the city, and one of the judges actually denies that cities can violate civil rights, another absurd contention. So my motion for summary judgment was denied on these absurd grounds.

The judge halted the pretrial conference and directed the city to make a motion for dismissal which he intends to approve, on the same obviously false grounds. I can appeal but the situation is absurd and a great waste of time, and remand to the same court will just cause another go-around of obviously false legal gambits, tampering with process etc.

So should I move to recuse, when the statute does not require recusal for obvious prejudice, and the judge is left to judge himself? Or request an investigation by the state's Committee of Judicial Ethics for violation of the Code of Judicial Conduct, which also fails to list gross prejudice, merely conflicts of interest?
Submitted: 9 months ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 9 months ago.

Thank you for your question. Please permit me to assist you with your concerns. In this situation if you believe that the judge is misapplying the law and has an unnaturally deferential view toward the city, you do not lose anything outright by filing a motion for recusal. it also places you on record that you contested the rulings not based on the la but based on application and bias, which is somewhat different and potentially more favorable for an appeal. However the better option here (or rather subsequent option here) may be to refile this in federal district court instead, and request that the district court formally evaluate your grievance directly with the city government rather than keep it in a county court where there may be both bias and favoritism against you and your case. Hope that helps.

Customer: replied 9 months ago.

Thanks, XXXXX XXXXX would have gone to federal court for original jurisdiction but thought that I had to "exhaust state remedies" for the case to be ripe. It is a federal issue (and the federal court also has jurisdiction by complete diversity in this case). How do I get it into federal court at this point?

Expert:  Dimitry K., Esq. replied 9 months ago.
John,

Thank you for your follow-up. In terms of exhausting state remedies, that does not include the courts, merely all of the administrative steps and appeals. Otherwise filing federally would make more sense based on the obvious inference of bias.

In terms of getting this into federal court, you would need to either retain counsel or hit a law library so as to research 'removal'. You would need to file a motion for removal and file the complaint in federal court before it is ruled upon on the state level. This is a fairly complicated motion and also district courts are far more complicated and harder to navigate which is why counsel, at least for consults, may be a necessity. Then if the motion for removal is granted, the case is transferred to the district court and the federal courts take over.

Good luck.
Customer: replied 9 months ago.

Thanks. Dimitri. I have navigated the federal courts Pro Se but could not figure our how to remove this to federal court. That is really the advice I need from you or someone there who knows Massachusetts procedures.

Expert:  Dimitry K., Esq. replied 9 months ago.
John,

My apologies but that would be beyond my scope of knowledge here. I do not practice in Massachusetts federal courts and that is beyond my scope of expertise. I will go ahead and opt out to see if other professionals may assist you. Take care.
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Are you the plaintiff in the case? You are the party who filed the suit in state court?
Customer: replied 9 months ago.

Yes, I am the Plaintiff, owner of the property, a house lot in Massachusetts on which a home was demolished; my plans to rebuild it were denied by the city in violation of a statutory right to rebuild, which is required to avoid a constructive "regulatory" taking in violation of Amendments V and XIV. So it is a very clear civil rights case with close precedents, already written up with both federal and state case law.


 


But I don't know how to remove the case to federal district court in Boston to avoid manifest prejudice in the state Superior court.

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

I am afraid there is bad news. As plaintiff who chose where to file suit, all federal case law states the plaintiff is strictly forbidden no matter what reason from removing a case from state court to federal court. The reason behind this the courts all say is that the plaintiff had the choice of forum in the beginning and picked state court and he/she is stuck with that choice.

The only possible way to do this is you would have to try to voluntarily dismiss the case "without prejudice" and then you would have to file a brand new suit in federal court. Thus, if you can dismiss the case without prejudice (meaning you have the right to refile) and your statute of limitations has not expired, then once you dismiss you would file your new suit in the US District court. If the court dismisses "with prejudice" then your case is over and cannot be refiled.




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Customer: replied 9 months ago.

Thanks, XXXXX XXXXX that is bad news.


So should I move to recuse, when the statute does not require recusal for obvious prejudice, and the judge is left to judge himself? Or request an investigation by the state's Committee of Judicial Ethics for violation of the Code of Judicial Conduct, which also fails to list gross prejudice, merely conflicts of interest?


 


I can appeal but only after a great waste of time, and the court will try to corrupt the evidence to prevent meaningful review, and remand to the same court will just cause another go-around of obviously false legal gambits, tampering with process etc.

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

It was funny I happened to know that after searching for several hours for another party to find some angle for them as plaintiff to remove and there are absolutely no exceptions according to the courts.

You have to prove actual bias to get the judge removed. If you do not have evidence of actual bias, it is almost impossible and even attorneys do not do this lightly. If you have such evidence you can file your motion to recuse and try to get the judge removed. The matter of recusal is generally left to the discretion of the trial judge. Demoulas v. Demoulas Super Markets, Inc., 428 Mass. 543, 546 (1998).
An abuse of discretion must be shown to reverse a decision denying a recusal motion. Commonwealth v. Daye, 435 Mass. 463, 469 (2001). In considering whether to approve or deny a request for recusal a judge must consult his own emotions and conscience to determine whether he is free from bias or prejudice and then perform an objective appraisal of whether this is a proceeding in which his impartiality might reasonably be questioned. Correia v. Correia, 70 Mass. App. Ct. 811, 818 (2007). On appeal the courts look at whether the judge himself believed that he was free from bias or prejudice and whether he himself believed that his impartiality would not be reasonably questioned. Id. The MA courts hold that to establish a basis for recusal the moving party must show that a judge demonstrated bias or prejudice arising from an extrajudicial source, and not from something learned from participation in the case. Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 144 (2008).

Thus, when the judge refuses to recuse themselves, it is very hard to overturn that on appeal as well.
Customer: replied 9 months ago.

Thank you for your exceptionally good reply.


 


My last question (above) is whether I should request an investigation by the state's Committee of Judicial Ethics for violation of the Code of Judicial Conduct, which also fails to list gross prejudice, merely conflicts of interest?


 


The reason for this is that this court, probably the same judge, is the source of the only case I have found in which any judge in the US has argued (absurdly) that municipalities cannot be prosecuted for civil rights violations, as this judge has stated, despite the major case law to the contrary, such as the US Supreme Court case Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978) and the Massachusetts case James G. Cayon vs. City of Chicopee & another 360 Mass. 606, 609 (1971)? He simply put his personal prejudice in favor of municipalities ahead of the law.


 


That is, does this prejudice if established, constitute the "prejudice arising from an extrajudicial source, and not from something learned from participation in the case"?

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your reply.

This is merely an opinion of one judge, not necessarily prejudice to give rise to an ethics violation. Judges make rulings all the time that might not be consistent with the law and this is for an appeals court to overturn them. I do not know that what you are saying would give rise to the level of prejudice required for your recusal.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 88677
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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