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by Hector N. Fertig
William, the McDonald’s analogy was broken out as a second point as it was not intended to address the role of Appellate Courts or how appellate proceedings work, but rather the language used in your summary of Didden. For example:
Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest; failing Didden’s bribe, Wasser threatened to promptly condemn the land and erect a pharmacy himself.
As I mentioned, I had not looked up the Didden case, and I had written my point solely to caution readers that there are nuances in court that are not always found in summaries. Some witnesses are believable and some are not. Some evidence is compelling to a jury while other evidence is found less so. Because of these things, a casual reader rarely has sufficient information to form a sound opinion on a case, in my opinion. As it turns out, the lower court dismissed an amended complaint in Didden so this particular case may not be relevant, though the larger reader warning stands.
As to the extension of Kelo in Didden, the attorneys for Didden certainly agree with you, using terms like extortion. However, the Court’s dismissal of Didden’s appeal appears to have been based on two points: (1) regardless of the nature of Wasser’s actions, a challenge to the purpose of a particular condemnation within a larger redevelopment area is not constitutionally cognizable (Didden’s holding was part of a larger renovation project) and (2) the statute of limitations had expired for Didden to challenge the entire redevelopment area. Didden could’ve challenged the entire renovation project to protect his rights, but for whatever reason failed to do so until it was too late. As a separate holding, the 2d Court of Appeals found that there was no unlawful exaction. So while there may be some doubt as to whether Sotomayor knows what extortion is, as a property rights issue it may be irrelevant and misleading to say that Didden is an extension of Kelo to include extortion.
As of this writing, the Supreme Court of the United States has not granted cert to review this decision. While this alone is not enough to conclude that the Appellate Court was right, it does suggest that the issues involved are not as crucial to the Supreme Court as other cases they chose to hear.
