Posted by Ilya Somin:
My Op ed On the Property Rights Implications of Judge Sotomayor's Decision in
*Didden v. Village of Port Chester*:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247517811
The Orange County Register recently published [1]my op ed on the
troubling implications of Judge Sotomayor's ruling in Didden v.
Village of Port Chester:
It's not easy for a judge to undermine property rights further than
the Supreme Court did in 2005 in Kelo v. City of New London, Conn.
But Judge Sonia Sotomayor, who is scheduled to begin Senate
cofirmation hearings today on her nomination to the high court,
succeeded. In the 2006 case of Didden v. Village of Port Chester
she signed on to perhaps the worst federal court property rights
decision in recent memory.
In Kelo the court held that the government can condemn a person's
property and transfer it to someone else in order to promote
economic development. In Didden, Judge Sotomayor's federal
appellate-court panel went further, upholding the government's
condemnation of property after the owners refused to pay extortion
money to a politically influential private developer.
In 1999 the village of Port Chester, N.Y., established a
"redevelopment area," giving designated developer Gregg Wasser a
virtual blank check to condemn property within the area. When local
property owners Bart Didden and Dominick Bologna sought a permit to
build a CVS pharmacy in the area, Wasser demanded that they pay him
$800,000 or give him a 50 percent partnership interest in the
store, threatening to have their land condemned if they said no.
They refused, and a day later the village condemned their property.
Didden and Bologna challenged the condemnation on the ground that
it was not for a "public use," as the Constitution's Fifth
Amendment requires. Their argument was simple and compelling:
Extortion for the benefit of a private party is not a public use.
In a short, cursory opinion, Sotomayor's panel upheld the
condemnation.
Although based partly on Kelo's very broad definition of "public
use," the Didden ruling extended the term beyond what Justice John
Paul Stevens had in Kelo. In particular, Stevens had noted 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." As an example of such an unconstitutional pretextual taking,
he cited a case with far less egregious facts than Didden....
Kelo was a 5-4 decision, denounced by many on both left and right.
The next few Supreme Court nominees could well determine whether it
is overruled � or is expanded to weaken property rights even
further. Under the guise of "redevelopment," local governments
across the country often condemn property for the purpose of
transferring it to politically favored interests. Since World War
II, hundreds of thousands have lost their homes. Usually, those
displaced are poor, minorities or the politically weak � a point
emphasized by the NAACP in its amicus brief in Kelo. The stakes
here are very high.
Judge Sotomayor's ruling in Didden suggests that she would uphold
even the most abusive condemnations, taking the court even further
in the same misguided direction.
Probably because of space constraints, the editors cut out most of my
discussion of claims that Didden was correctly decided because the
property owners failed to file their case on time or because Gregg
Wasser had a conflicting account of the facts. The statute of
limitations issue is ultimately a sideshow because the panel clearly
resolved the constitutional claim as well, and because the the two
were in fact inextricably connected (points I addressed in more detail
[2]here). Wasser's alternative account of the facts [3]is also
irrelevant because Sotomayor's panel was required to assume the truth
of Didden and Bologna's version of events, and because Wasser's
version doesn't actually undermine the plaintiff's claims that he used
eminent domain as leverage for extortion.
References
1.
http://www.ocregister.com/articles/didden-property-court-2489663-public-kelo
2. http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245196970
3. http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243972122
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