My Op ed On the Property Rights Implications of Judge Sotomayor's Decision in Didden v. Village of Port Chester:

The Orange County Register recently published 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 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 here). Wasser's alternative account of the facts is also irrelevant because Sotomayor's panel was legally required to assume the truth of Didden and Bologna's version of events, and because Wasser's version doesn't actually undermine the plaintiffs' claims that he used the threat of eminent domain as leverage for extortion.