Posted by Ilya Somin:
Sotomayor's Troubling Property Rights Ruling in * Didden v. Village of Port
Chester*:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243364120
University of Chicago and NYU law professor Richard Epstein[1] points
out that Judge Sotomayor was on a Second Circuit panel that issued the
unsigned opinion in one of the worst property rights decisions in
recent years, in the case of Didden v. Village of Port Chester. This
does not bode well for her likely future rulings on property rights
issues that come before the Supreme Court. In a 2007 National Law
Journal op ed on Didden (no longer available on line, but excerpted
[2]here), Epstein and I discussed the facts of this disturbing case:
The U.S. Supreme Court's 2005 decision in Kelo v. City of New
London generated a backlash on both sides of the political
spectrum..... Many of the rear-guard defenders of this
ill-conceived decision insisted that abusive condemnations are an
aberration in an otherwise sound planning process. They, it turns
out, were wrong. Didden v. Village of Port Chester, a most
unfortunate decision out of the 2d U.S. Circuit Court of Appeals,
helps demonstrate the shortcomings of their optimistic view.
In 1999, the village of Port Chester, N.Y., established a
"redevelopment area" and gave its designated developer, Gregg
Wasser, a virtual blank check to condemn property within it. In
2003, property owners Bart Didden and Dominick Bologna approached
Wasser for permission to build a CVS pharmacy on land they own
inside the zone. His response: Either pay me $800,000 or give me a
50% partnership interest in the CVS project. Wasser threatened to
have the local government condemn the land if his demands weren't
met. When the owners refused to oblige, their property was
condemned the next day.
Didden and Bologna challenged the condemnation in federal court, on
the grounds that it was not for a "public use," as the Fifth
Amendment requires. Their view, quite simply, was that out-and-out
extortion does not qualify as a public use. Nonetheless, the 2d
Circuit . . . upheld this flexing of political muscle.
In fairness to Sotomayor and the other judges on the panel, their
ruling was in part based on the Supreme Court's 2005 decision in
[3]Kelo v. City of New London, which defined "public use" extremely
broadly. However, the majority opinion by Justice John Paul Stevens
also emphasized that "the mere pretext of a public purpose, when its
actual purpose was to bestow a private benefit," was not enough to
count as a "public use." It is difficult to imagine a more clearly
pretextual taking than this one, since Didden and Bologna's property
would not have been condemned if it weren't for their refusal to pay
Wasser the money he sought to extort from them. [4]Wasser's plan for
the property was to build a Walgreen's pharmacy on it, which is
virtually identical to the previous owners' plan to build a CVS. There
was no general public benefit that Wasser's plan would provide that
would not have been equally well achieved by allowing Didden and
Bologna to keep their property and carry out their plan to put a CVS
there.
The Didden panel decided the case in part based on procedural grounds
(claiming that Didden and Bologna filed their case too late). However,
it also clearly rejected their public use argument on the merits (see
pp. 3-4 of the Second Circuit's opinion, available in the appendix to
[5]the property owners' cert. petition). Sotomayor's endorsement of
this ruling is a strong sign that she has little or interest in
protecting constitutional property rights. Her appointment is likely
to exacerbate [6]the second-class status of property rights in the
Court's jurisprudence.
The fact that the Supreme Court refused to take the case is not much
of a point in the ruling's favor. The Court accepts only a tiny
fraction of all the cert petitions that come before it and refuses to
hear many important cases. Moreover, the panel further reduced the
chance of appellate review by leaving this important decision
unpublished.
For more details on Didden, see [7]this amicus brief urging the
Supreme Court to review the case, which Epstein and I filed along with
several other property scholars.
References
1.
http://www.forbes.com/2009/05/26/supreme-court-nomination-obama-opinions-columnists-sonia-sotomayor_print.html
2. http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168297924
3. http://www.law.cornell.edu/supct/html/04-108.ZS.html
4. http://volokh.com/archives/archive_2006_12_03-2006_12_09.shtml#1165625027
5.
http://www.ij.org/images/pdf_folder/private_property/Didden-Cert-Petition.PDF
6. http://ssrn.com/abstract=1247854
7.
http://www.ij.org/images/pdf_folder/private_property/didden/Professor-amicus-on-petition-for-cert.PDF
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