Sonia Sotomayor & Property Rights

The current issue of The Land Report takes an in-depth look at Obama Administration and the American Landowner. Since that issue came off the press, the President has already been faced with a crucial task: nominating a replacement for Supreme Court Associate Justice David Souter. His choice? Federal appeals court judge Sonia Sotomayor.

Next Monday, July 13, the Senate Judiciary Committee will begin her confirmation hearings. Landowners will be paying particular attention to Judge Sotomayor regarding property rights, in particular, Kelo v. City of New London, the controversial 2005 decision that sparked a national uproar. What will her stance be? Insight can be gleaned from her role in an important test of Kelo that took place in 2006: Didden v. Village of Port Chester.

According to The New York Times:

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.

“Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn’t going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”

Mr. Didden refused. The next day the village condemned his property.

As The Times points out, when Didden’s appeal reached the Court of Appeals for the Second Circuit, his case was rejected with a terse, unsigned decision. The response has not been favorable:

The ruling in Didden is not popular among some property rights and constitutional law professors. Eight of them filed a brief in 2006 unsuccessfully urging the Supreme Court to hear an appeal.

“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”

Read more at:

“Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings,” New York Times, June 15, 2009

More Field Reports From The Land Report:

1. Northeastern Landowners Get $165M For Natural Gas Rights
   A coalition of landowners in one of the country’s emerging natural gas hot spots has reached an agreement to lease 30,000 acres to Fortuna Energy for natural gas drilling...
2. Supreme Court Rules 9-0 Against Hawaiians’ Land Claims
   Last week the nation’s highest court ruled that Native Hawaiians do not have a legal claim to state lands totaling more than 1.2 million acres. Native Hawaiians as well as...
3. Western Massachusetts to Become National Forest?
   Former Governor Mitt Romney’s proposal to designate the Berkshires and all of Western Massachusetts as national forest is being considered once again. Massachusetts is one of just six states...
4. Crossing the Divide with Al Biernat
   When it came to the Colorado hamlet of Creede, it was love at first sight for Dallas restaurateur Al Biernat (standing front and center with wife Jeannie and writer...
5. Ask the Expert: Scott Jones
   The second session of the 111th Congress is already under way, and landowners have a lot at stake. With that in mind, The Land Report turns to Scott Jones...