RLUIPA and Statutes of Limitations

[Edward Hartnett]

I though that Alexander Dushku's question was about the statute of
limitation applicable to RLUIPA, which was passed long after December 1990,
wasn't it?  And doesn't RLUIPA create its own right of action, without
having to piggyback on section 1983?  So why should the Wilson rule for
section 1983 claims matter at all for RLUIPA?

Am I missing something?

Ed Hartnett
Seton Hall





                    Ken Katkin
                    <katkink at NKU.EDU>           To:     RELIGIONLAW at listserv.ucla.edu
                    Sent by: Law &              cc:
                    Religion issues for         Subject:     Re: RLUIPA and Statutes of
                    Law Academics                Limitations
                    <RELIGIONLAW at listserv
                    .ucla.edu>


                    11/19/01 04:47 PM
                    Please respond to Law
                    & Religion issues for
                    Law Academics






        In response to Ed Hartnett's question, the default 4-year statute
of limitations set forth in 28 USC § 1658 applies only to federal statutes
enacted on or after Dec. 1, 1990, the date of enactment of 28 U.S.C. §
1658.
        Specifically, Section 1658 provides that:  "Except as otherwise
provided by law, a civil action arising under an Act of Congress enacted
after the date of the enactment of this section may not be commenced later
than 4 years after the cause of action accrues."   The section was enacted
as Pub.L. 101-650, Title III, § 313(a), Dec. 1, 1990, 104 Stat. 5114.
         To my knowledge, the rule of Wilson v. Garcia, 471 U.S. 261
(1985), cited by Alexander Dushku (i.e. that each state's personal-injury
statute of limitations applies to §1983 claims filed in that State), is
still good law with respect to Section 1983.
See, e.g., Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994).
Moreover, in Owens v. Okure, 488 U.S. 235 (1989), the Supreme Court further
clarified the Wilson v. Garcia rule by holding that "[W]here state law
provides multiple statutes of limitations for personal injury actions,
courts considering § 1983 claims should borrow the general or residual
[State] statute for personal injury actions."  488 U.S. at 249-50.
           In my view (and leaving aside for the moment the question
whether RFRA or RLUIPA could or can be supported on Commerce Power
grounds), the Bessard court's distinction between Section 1983 claims based
on the First Amendment and Section 1983 claims based on the Fourteenth
Amendment is plainly erroneous.  All Section 1983 claims are predicated on
the Fourteenth Amendment, which provides the Constitutional authority for
Congress to create civil remedies against the States for deprivations of
Liberty without Due Process of Law.   Congress's power to create a civil
remedy for State violations of "First Amendment" liberties (religion and
speech) flows directly from the "incorporation" of those liberties as
limits on State power via the Fourteenth Amendment's Due Process Clause.
Without such Fourteenth Amendment incorporation, the First Amendment would
not bind the States at all.

--Prof. Ken Katkin
Salmon P. Chase College of Law
561 Nunn Hall
Northern Kentucky University
Highland Heights, KY 41099
(859) 572-5861 phone
(859) 572-5342 fax
katkink at nku.edu

Edward Hartnett wrote: Why wouldn't RLUIPA be subject to the default 4-year
statute of limitations
contained in 28 USC 1658?

Ed Hartnett
Seton Hall

                    Alexander Dushku
                    <ADUSHKU at KMCLAW.COM>        To:
RELIGIONLAW at listserv.ucla.edu
                    Sent by: Law &              cc:
                    Religion issues for         Subject:     RLUIPA and
Statutes of Limitations
                    Law Academics
                    <RELIGIONLAW at listserv
                    .ucla.edu>

                    11/19/01 01:20 PM
                    Please respond to Law
                    & Religion issues for
                    Law Academics

RLUIPA raises an interesting statute of limitations issue.  In Wilson v.
Garcia, 471 U.S. 261 (1985), the Court held that sec. 1983 claims are best
characterized as personal injury actions and therefore state statutes of
limitations governing personal injury claims apply.  This was in large
measure based on the fact that the "atrocities that concerned Congress in
1871 plainly sounded in tort."  (at 277)

In Bessard v. Calif. Com. Colleges, 867 F.Supp. 1454 (E.D. Calif. 1994),
the court took a different tack under RFRA, holding that because RFRA's
"unifying theme" is the First, not Fourteenth Amendment, and because RFRA
creates a substantive right that Smith held was not guaranteed by the First
Amendment, the most appropriate statute of limitations is California's
catchall statute, not its personal injury statute.  I don't know if this
view was widely adopted.

Portions of RLUIPA purport to fall within current First Amendment
protections, yet other portions clearly do not.  Unlike sec 1983, RLUIPA is
creating a substantive right and not just a remedy.  Any thoughts as to
which statute of limitations might apply to RLUIPA?

Alexander Dushku
adushku at kmclaw.com
Kirton & McConkie
web address: http://www.kmclaw.com
60 East South Temple, Suite 1800
Salt Lake City, UT 84111-1004
(801) 328-3600
(801) 321-4893 (fax)

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