Judge Sotomayor and Property Rights

In a recent SBE Council Cybercolumn, I looked at President Obama’s Supreme Court nominee Judge Sonia Sotomayor. The piece focused on what businesses should be asking when it comes to a Court nomination, and how, in some key areas, Sotomayor generates questions and uncertainty.

One of those areas was property rights.

I noted: “Most worrisome, she joined an order in the 2006 property rights case of Didden v. Village of Port Chester that supported a town seizing private property for use by a developer. The decision lined up with the Supreme Court's 5-to-4 Kelo decision that trampled all over the U.S. Constitution and the private property rights of individuals and small businesses. This a fundamental issue, and individuals and small business owners should be concerned.”

The Monday, June 15, New York Times ran an important article with more details on this case.

The Times reported:

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.” …

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.

Should we be concerned? Well, Richard A. Epstein does not seem to be all that worried. The Times noted:

But another author of the brief, Richard A. Epstein, said the decision in Mr. Didden’s case was a rare misfire that provided no larger insights into Judge Sotomayor’s thinking. “It’s a disappointment and it’s wrong and it’s ill thought out,” Professor Epstein, a law professor at the University of Chicago and New York University, said of the ruling. “But it’s not one of six. It’s one of two.” (The other poorly handled decision, he said, was Ricci v. DeStefano, which rejected employment discrimination claims from white firefighters in New Haven.)

Epstein is right to criticize the decision signed on to by Sotomayor, but is wrong to discard it as a mere one of two bad decisions. Not only have there have been others, and certainly other declarations by Sotomayor that are troublesome, but the Didden v. Village of Port Chester case deals with an issue that is fundamental to the Constitution, the nation, individuals, families and small businesses. It is a fundamental issue of private property rights, and Sotomayor got it wrong.

Raymond J. Keating
Chief Economist
Small Business & Entrepreneurship Council