William, regardless of who was at fault, Didden or his lawyer, once the statute of limitations expired Didden’s cause of action was lost according to Sotomayor.  At some point during this whole affair, he had two legal theories available to him:

1. That the taking was wrongful due to pretext, in the sense of Justice Stevens.  The Supreme Court in Kelo found this relevant only to the property’s inclusion in the renovation plan and was ultimately barred from challenge by the expired statute of limitations in Didden.

2. That a taking for a private use due to extortion is unconstitutional.  This was the attempted work around by Didden.  They wanted to distinguish this from Kelo by including the pretext piece here.  The result was that the Court said, “The ‘taking for private use’ part is a constitutional issue which has been settled by Kelo.  Adding fraud, duress, extortion, mental handicap, or mistake does not create a new constitutional issue – these are separate legal issues with existing statutes of limitation.”

I’m not saying that I necessarily agree with the decision, but if the 2d Court of Appeals holds these two positions, it really does make for a short review.  And with that, I’ll give you the last word.

Hector, the parties in Didden submitted their briefing materials to the Second Circuit before Kelo was handed down; but, the Court (Sotomayor) - properly, in my estimation - waited until months after Kelo to issue the Didden decision.  Thus, the attorneys for Didden didn’t have the benefit of knowing what governing standard would be applied to their challenge at the time they submitted their materials to the Court.

In any event, regardless of the adequacies/inadequacies of the briefing materials (and arguments advanced, or not advanced, therein), the Court (i.e., Sotomayor) was duty bound to search the record to ensure the taking in question accorded with the standards set forth by Justice Steven’s opinion in Kelo.

Obviously, Sotomayor was aware that the City of Port Chester’s taking appears to have been consequenced by the plaintiffs’ refusal to pay a bribe.  And, of course, Justice Steven’s cautionary mandate about “pretextual takings” was likewise available to Sotomayor at the time she issued her opinion.  And yet, not only did she fail to connect those obvious dots, she non-chalantly declined to conduct any analysis at all, and summarily sanctioned a seizure of private property for failing to pay extortion money.

In sum, you’re giving a Second Circuit (and, soon to be, Supreme Court) justice with virtually unlimited resouces, including a team of Yale/Harvard/Columbia/NYU -educated law clerks, far too much deference.  If Sotomayor’s decision was actually predicated on substandard advocacy on the part of Didden’s lawyers, she should have said exactly that in her opinion, so the precedential effect of the case would have been clear. 

Instead, her opinion reads as though any State taking in the Second Circuit, even in retaliation for not paying bribe money, is beyond judicial scrutiny.  It’s a horrendous opinion, and falls far below the standards we should expect of a Second Circuit, let alone Supreme Court, justice.

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.”

Hector, with regard to the statute of limitations predicate, I will assume, without checking, that Sotomayor got that portion of the opinion, and, thus, the actual result, correct.  However, because she weighed into the constitutional issue with more than mere dicta, she provided a legally-binding, alternative holding of the Court…on a very dicey issue without undertaking any actual analysis, which is my biggest gripe. 

While Kelo is both an utter abomination and perhaps the most dangerous decision of the last 50 years, Justice John Paul Stevens, in his majority opinion, at least provided some thresholds standards that the State must meet in order to lawfully seize your property: Justice Steven emphasized that “the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” does not constitute “a public use” so as to make a “taking” bona fide.

The most disturbing aspect of Didden, issued just months after Kelo was handed down, is that Justice Sotomayor makes no reference to Justice Steven’s proviso, conducts absolutely zero analysis, and, in effect, treats Kelo as though it held that every government taking is bona fide and completely insulated from judicial scrutiny. 

Of course, what we actually know about Didden is that the taking reeks of pretextualism — Didden’s property was condemned only after, and apparently in retaliation for, Didden’s refusal to pay a bribe to the City’s hand-picked developer to the tune of $800 thousands, plus a share of the business.  And yet, Judge Sotomayor provides an analysis-free imprimatur of what appears to be a patently pre-textual taking of private property by an extortionary private developer.  That Judge Sotomayor will now be rending these types of opinions while sitting on the Supreme Court troubles me greatly.

Briefly, on cert. before the Supreme Court: if the Court is not inclined to hear the case, it’s most likely because there is another (indeed, primary) basis for the decision: the statute of limitations issues, such that the Court’s holding would not ultimately affect the result.  But, that doesn’t give me any more comfort as it relates to Sonio Sotomayor.

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.

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.

Two quick points:

I apologize to those for whom this is obvious, but some readers may not be familiar with the roles that judges play at different levels in the United States.  As a Federal Appellate Court Judge, Sotomayor doesn’t really have authority to ignore any United States Supreme Court decision, including Kelo.  Though I haven’t looked up the Didden case, if there were no legal problems with the decision, it’s not her place, generally, to ignore the finder of fact in the lower court.  Sotomayor’s job is primarily judicial review of legal determinations rather than rehearing the facts of a case (there are some exceptions, of course).

Second, without actually sitting through the trial, it is very easy to be mislead regarding the merits of one side or the other.  This doesn’t stop people from making sweeping conclusions based upon them but it probably should.  As an example, everyone is familiar with the woman who spilled coffee on herself at McDonald’s and won a million dollar settlement in a classic case of a run-away jury.  The other side of the story (the woman received terrible burns across much of her body, McDonald’s had been warned that they were over-heating their coffee and that this posed a danger to the public and McDonald’s specifically chose to ignore these warnings as they felt it would be cheaper to litigate than to change their behavior) is rarely heard.  My point is only that hearing one side of a story is generally not enough to draw an informed conclusion.

So, here is what we know about PBHO’s pick of Sonia Sotomayor to replace departing Justice David Souter on the Supreme Court:

• Her curriculum vitae is first rate, and her qualifications stellar:  valedictorian from Cardinal Spellman High School in the Bronx; graduated summa cum laude with an A.B. from Princeton University; earned a J.D. from Yale Law School, where she was an editor of the Yale Law Journal; worked as Assistant District Attorney in New York Country; nominated by George H. W. Bush, and served, as Judge on U.S. District Court for the Southern District of New York (August 12, 1992 – October 7, 1998); and was elevated Circuit Judge of the United States Court of Appeals for the 2nd Circuit by Bill Clinton on October 7, 1998.
• Her personal story is extremely compelling: she and her family grew up poor in the South and East Bronx — in the Bronxdale Houses housing project and then Co-op City — and she was diagnosed with Type 1 diabetes at age 8.
• Her judicial reputation, according to most legal scholars, is solid, if unremarkable.
• She wrote the majority opinion of the Second Circuit in the Maurice Clarett v. the NFL case, 369 F.3d 124 (2004), which upheld the NFL’s 3-year post-high-school age rule.

Not surprisingly, Judge Sotomayor, largely perceived as a liberal/progressive, is drawing fire from the Right.  But, the Right should be wary not to overplay the “empathy card,” or otherwise seek to dwell on her racially dubious statements, what appears to be a high reversal rate, or her dismissive treatment of Frank Ricci, the dyslexic firefighter, in what appeared to be a textbook case of reverse discrimination.

Of far more importance to me, and what skeptics of this nomination should focus on, are a series of her rulings on property rights.  In an era where four of the remaining eight Supreme Court Justices signed onto the highly dubious Kelo v. City of New London decision, 545 U.S. 469 (2005), which permitted a city to use the extraordinary power of eminent domain to deprive a lawful owner of his property in order to build a strip mall (which was never, in fact, built), and where the sitting President of the United States is attempting to force bondholders to write-off the majority of their interest in General Motors and Chrysler, and has otherwise taken control on the financial industry with sights on the heath care industry, it’s hard to argue that property rights are not under assault.  Here is a look at a few select opinions:

Didden v. Village of Port Chester – Bart Didden wanted to build a pharmacy on land he owned in a redevelopment district in Port Chester; the town of Port Chester, by side agreement, had given Greg Wasser control of the redevelopment district. 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.  Indeed, exactly that came to pass.

On review, a panel of the Second Circuit, on which Sotomayor sat, apparently relying on Kelo, non-chalantly, and conclusorily, brushed aside the naked extortion: “We agree with the district court that [Wasser's] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”  The Court’s decision has been strongly criticized.

New York Times v. Tasini – freelance contributions to the Times sued over the paper’s subsequent licensing of their writing to electronic databases that then re-sold the pieces to customers for a substantial profit, flouting the more basic I.P principle that rights not specifically assigned remain with the owner. In her opinion for the Second Circuit, Judge Sotomayor sided with the Times.  On appeal before the U.S. Supreme Court, Judge Sotomayor’s decision was overturned 7-2 by the Court.

Krimstock v. Kelly – in a more positive case on property rights, Sotomayor invalidated New York City’s policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. 

Merrill Lynch v. Dabit – Judge Sotomayor issued the opinon of the Court, wherein she held that state courts could entertain certain securities lawsuits notwithstanding the preemptive effect of federal law.  (For years, Congress has been attempted to curtail “forum shopping” of class action lawsuits in friendly state courts by forcing plaintiffs into federal court.)  The Supreme Court reversed her decision 8-0. 

Knight v. Commissioner – Judge Sotomayor issued an opinion on the tax deductibility of certain trust fees.  On review, the Supreme Court upheld her result but unanimously rejected her approach as one that (per Roberts) “flies in the face of the statutory language.”

Malesko v. Correctional Services Corp. -  Judge Sotomayor’s opinion extended the implied private action against federal officers alleged to have violated a citizen’s constititutional rights to create an implied damages action against a private corporation operating a halfway house under contract with the Bureau of Prisons.  On review, the Court reversed Sotomayor by a 5-4 vote.