NY Times On Judge Sotomayor And Property Rights

Adam Liptak reports Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings in the June 14, 2009 edition of the New York Times, comparing SCOTUS nominee Sotomayor's decision in an infamous (at least in eminent domain circles) case with the positions of the two Justices most recently confirmed to the Court, Chief Justice Roberts and Associate Justice Alito on a similar issue.

Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.

Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its wisdom and consequences. The decision, a 5-to-4 ruling in 2005, allowed local governments to take private property for business development and provoked outrage across the political spectrum. 

The article details the events which resulted in the Second Circuit's unreported summary decision in Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006), noting that the issue will likely be raised in Judge Sotomayor's upcoming confirmation hearings. As explained in the Times piece:

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser's company could put a Walgreen’s in the same place. 

The Second Circuit's unsigned panel order disposed of the case in a mere 1 1/2 pages, agreeing with the district court's dismissal of Didden's challenge for being brought too late, and holding that even if not time-barred, that Kelo "obliges us to conclude that they have articulated no basis upon which relief can be granted." Order at 3.

These type of summary orders by an appellate court are especially frustrating for the parties and their attorneys, because they provide no clue as to the court's rationale, no guidance for future cases, and appear to blow off worthwhile arguments without explanation. The lack of an opinion setting forth the court's rationale also makes it difficult for the losing party to seek further review (the Supreme Court denied cert in this case).

We've summarized Judge Sotomayor's property rights-related decisions in this post, and if she is confirmed, we won't have long to wait to find out her views on regulatory takings since the Court recently accepted review of a case from Florida on takings of beachfront property. That case won't be heard until next term when the new Justice presumably will be on the Court.