Goldwater Institute: Expiration Date

Is there a statute of limitations on vindicating constitutional rights?

By Clint Bolick

Constitutional rights are eternal. But the City of Mesa believes that if you don't enforce them promptly, your right to do so expires. That would have been bad news for Oliver Brown, given that the Topeka, Kansas separate-but-equal laws had been on the books for decades before he challenged them.

Mesa's argument takes place in the context of the Goldwater Institute's legal challenge, on behalf of the Home Builders Association of Central Arizona, to a development impact fee for cultural facilities. Mesa retained the fee when it increased its impact fees by about 60 percent earlier this year.

We argue that the cultural facilities fee violates federal and state constitutional rules and a state statute that limits impact fees to necessary infrastructure costs that are caused by new development. Cities like Mesa have dramatically increased impact fees in recent years far beyond their legal limits.

Mesa, through the private-firm lawyers it hired to defend the fee, says a one-year statute of limitations applies, and that because the impact fees initially were passed several years ago, they now are immune to legal challenge.

That is a frightening thought: once the statute of limitations expires, goes the city's logic, it can amend a law to make it unconstitutional, and the entire scheme is beyond challenge. That would be a pretty nifty rule for practitioners of grassroots tyranny.

Fortunately, jurisprudence recognizes several exceptions to the statute of limitations. If an old law affects newcomers-like the impact fee does-they can challenge it. And if a law is changed-as the fee here was, backed ostensibly by new facts and figures--the amended law is subject to challenge.

Usually in lawsuits, procedural issues take a back seat to the main show. But here, Mesa's effort to dismiss the lawsuit on statute of limitations grounds has serious implications for freedom and the rule of law. Stay tuned as the parties do battle on the issue this Friday in Maricopa County Superior Court.

*Oral arguments in Home Builders v. Mesa are open to the public. The hearing begins at 1:30 p.m. on Friday, November 9, 2007 in the East Court Building in courtroom 411 of the Maricopa County Superior Court at 101 W. Jefferson in downtown Phoenix.

Clint Bolick is the director of the Goldwater Institute's Scharf-Norton Center for Constitutional Litigation.