Conservative critics of Sotomayor have repeatedly focused on a handful of cases as examples of how bad she truly is, including the Ricci case, a case that was supported by conservatives in the 7th Cir. that failed to incorporate the 2nd Amendment ahead of Supreme Court instruction to do so (the NY case involved nunchunks), and a property rights case known as Didden v. Village of Port Chester. The NYT, in a slanted piece, focused on that case a few days ago.
“[Kelo] touches some very sensitive nerves,” Judge Alito said. “Taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.”
Putting aside that Sotomayor's panel (she joined a unanimous opinion) had to follow Kelo, like it or not, Didden was not about taking someone's home away. It involved a lot that he planned to use commercially all along. The local government decided to -- per Kelo quite legitimately -- redevelop the area via a private party. Didden claimed a failed negotiation over his property amounted to "extortion," but two levels of federal courts quite reasonably* didn't buy it. To cite the court on the most emotionally laden allegation raised:
Threats to enforce a party's legal rights are not actionable. DiRose v. PK Mgmt. Corp., 691 F.2d 628, 633 (2d Cir. 1982). Thus, even if Defendants did request payment in exchange for relinquishing the legal right to request condemnation, Plaintiffs have no recourse. ...
That Port Chester, G&S, and Wasser did meet with Plaintiffs and conveyed a proposal that Plaintiffs found unacceptable does not give Plaintiffs any substantive claims. Plaintiffs pursued their CVS site plan application and the CVS lease knowing that the Private Developers, under the LADA, might attempt to buy or condemn the disputed properties. [this factored into a holding that Didden did not meet the statute of limitations]
Meanwhile, in a (for some reason) less talked about case covering the same overall project, the Sotomayor joined a ruling that reaffirmed the due process rights of property owners, this time regarding the proper notice required. This ruling was quite significant:
Having determined that Brody was entitled to notice as a matter of law, the Court of Appeals sent the case back to the District Court to determine whether Brody had actually received the notice to which he was legally entitled, and whether Brody was entitled to an award of damages. Judge Baer** found that Brody had not received the actual notice due him, but held that the violation of his due process rights did not cause Brody any actual injury, and thus awarded Brody only $2.00 in nominal damages. According to the Institute for Justice, the settlement announced yesterday includes payment not only of the $2.00 but also of “an additional sum for the loss of [Brody’s] due process rights and a portion of the attorneys’ fees in the case.” A local paper reports that the total settlement amount is $475,002.
Maybe if the conservatives in the Senate can delay her hearings, they could find better material.
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* This discussion suggests Sotomayor's panel could have more carefully covered the case ... it agrees that the holding was correct, but thought a more detailed ruling might deal with problems in other cases. Quite telling -- critics appear to want judges selectively to be "activist" in support of their specific hobbyhorses. Some analysis of on Ricci make this point very well: predictions that Sotomayor's panel will be overturned in effect via a new application of the law.
** I remember him!