Obama Pundit

by Hector N. Fertig

William, I agree that the analysis presented was short, it is not clear to me what more you would have her say on the property rights issue.

Your reading of Justice Stevens’ majority opinion is correct regarding the ‘mere pretext’ standard, but I think it is largely irrelevant.  The question wasn’t whether or not Didden’s property was wrongfully condemned; the question was: if his property were wrongfully condemned, did Didden pursue his rights in a manner that allows the courts to make him whole?  Didden never challenged the development plan as the statute of limitations had expired and so he tried to work around that deficiency by arguing that his property was wrongfully taken for private use.  Judge Sotomayor makes plain her reasoning in Didden when she quotes Justice Stevens in Kelo,

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project.

Judge Sotomayor never says that the City did the right thing, never says that extortion is acceptable and never expands Kelo.  Didden (or his lawyers) did a poor job in their challenge and Judge Sotomayor simply states (paraphrasing), “You may have been wronged, but you’ve chosen to go about settling your dispute inappropriately.  The right way to handle this, the way that would allow this Court to potentially find in your favor, would have been for you to challenge the inclusion of your property in the renovation plan – not by arguing, as you have, that the Takings Clause prevents the State from condemning your property for private use.  Kelo makes clear that this is not the standard.  If you had challenged your property’s inclusion in the renovation plan, then we could have taken up the question of a ‘pretext’ in its inclusion in that plan.  As you did not do this (or could not do this because of the statute of limitations), you have articulated no basis upon which relief can be granted.”