Legal News

Will Didden v. Port Chester Be Judge Sotomayor?s Kelo Decision?

By Ashby Jones

So far, of all the cases ruled upon by Sonia Sotomayor during her stint on the Second Circuit, her ruling in Ricci v. DeStefano has arguably garnered the most criticism. (In that case, as we detailed briefly on Tuesday, a group of white firefighters in New Haven, Conn., challenged the city's decision not to use an employment test for use in promotions when the use of the test results would have had a disproportionate benefit to white applicants over minority applicants. Sotomayor was part of a three-judge panel that — in a strangely short per curiam opinion — upheld the city's determination.)

We’ll certainly have occasion to circle back to the Ricci decision, but for now, let’s talk about a different case she participated in which could prove question-fodder at her hearing. The case is called Didden v. Village of Port Chester, and it was written about at length by Chicago professor Richard Epstein (pictured) back in February in Forbes magazine. Click here for the piece; here for the Volokh Conspiracy’s take on the case, which follows in the lineage of the highly controversial Kelo v. City of New London Supreme Court case from 2005.

According to Epstein and George Mason’s Ilya Somin, who wrote an amicus brief urging the Supreme Court to take the case, the facts of the Didden case go like this:

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.

But a Second Circuit panel, which included Sotomayor, upheld the taking.

According to Volokh and Epstein, the panel’s ruling was largely based on procedural considerations. And the court was bound to follow the Kelo ruling, which defined the term “public use” very broadly.

That said, writes Somin:

[T]he majority opinion [in Kelo] 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. . . . 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 the second-class status of property rights in the Court’s jurisprudence.

Adds Epstein, in this Forbes follow-up piece from Tuesday: “Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.”

Full post as published by Law Blog - WSJ.com on May 27, 2009 (boomark / email).