Category: 
by C. William Chattin
Hector, I want to address/clarify the points you raised below.
At the appellate level, and for purposes of review, the facts of a particular case have generally been stipulated to, and are a matter of record. True, some hidden, smoking-gun fact(s) may undermine the criticism of a controversial decision. But, the judge who authors an appellate decision will include in her opinion facts she finds pertinent to the result she reaches. So, the McDonald’s/hot coffee analogy is not exactly on point, as it relates to appellate decisions.
As a brief aside, appellate decisions are reached based on papers (“briefs” and the “record”) submitted to the appellate court and, sometimes, oral argument before the appellate court. “Sitting through the trial,” as it were, is not relevant to an appellate decision.
On Kelo, you are absolutely right that it is the law of the land and appellate courts are bound to abide by it. However, appellate courts are not bound to extend its holding; indeed, where the factual circumstances warrant, courts should “distinguish” Kelo from the cases before them.
Kelo involved a municipality seizing private property under the extraordinary power of eminent domain so that a developer could use the land to build a strip mall. Didden involved a municipality re-zoning certain private property under a category of “redevelopment,” and, thereafter, assigning to a private developer what amounted to autonomous control over the designated “redevelopment” property. After the property owner [Didden] refused to pay the developer an $800 thousand bribe, the developer had Didden’s property condemned and built his own private business on what had been Didden’s land.
The holding in Kelo certainly does not require an extension of its logic to permit extortion of property owners. And, perhaps most troubling is Sotomayor’s analysis-free application of Kelo to Didden:
to the extent that [Didden and his partner] assert that the Takings Clause prevents the State from condemning their property for a private use within a redevelopment district, regardless of whether they have been provided with just compensation, the recent Supreme Court decision in Kelo . . . obliges us to conclude that they have articulated no basis upon which relief can be granted.
