Sotomayor on Takings

In our April 2007 print edition, I wrote about a particularly egregious abuse of eminent domain in Port Chester, New York:

In 2003 Bart Didden set out to build a CVS drugstore on property he owned in Port Chester, New York. Unfortunately, a developer hired by the town had other plans for Didden's land. The developer wanted to put up a Walgreens drugstore on the same property, so he demanded that Didden either pay $800,000 to "make him go away" or pony up a 50 percent stake in the CVS. Didden refused.

Just a day later, the Village of Port Chester condemned Didden's land, which it planned to hand over to the developer. Didden sued, but last year the U.S. Court of Appeals for the 2nd Circuit ruled the condemnation was consistent with Kelo.

"It took me years of hard work to buy that property, pay off my mortgages and really feel like I own it," Didden said in a December press release issued by his attorneys at the Institute for Justice, a libertarian public interest law firm that frequently handles eminent domain cases.

"Kelo did spark a massive public backlash," says Institute for Justice attorney Dana Berliner, "but at the same time it emboldened local governments to further abuse of eminent domain for private purposes. And it emboldened courts to approve these abuses."

Over at Forbes.com, Richard Epstein notes that Obama Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that upheld the condemnation. The panel's entire analysis: "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."

"[V]oluntary attempt to resolve appellants' demands" is one way of putting it. "State-sanctioned extortion" is another.

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  • mark||

    How empathetic of the 2nd Circuit :)

  • robc||

    1. What mark said. :)
    2. Realistically, however, it isnt the appeals court job to overturn SCOTUS decisions. Following Kelo isnt a sign, necessarily, of someone who would support Kelo. It could just be someone doing their job.

  • robc||

    However, if her decision didnt say "Im ruling this way because of Kelo, but Kelo is a fucking poor decision" then #2 doesnt really apply.

  • Fascitis Necrotizante||

    empathy joke thirded

  • ||

    The developer wanted to put up a Walgreens drugstore on the same property

    Plainly this second developer was unfairly oppressed, and needed some ... Oh, what's the word?

  • ||

    Don't worry, guys. Like Obama himself, his judicial picks are good on social issues.

    HAHAHAHAHAHAHA

  • ||

    Oh, what's the word?

    Gaping.

  • Xeones||

    Silly mark! Empathy means assisting historically-non-empowered but politically vocal GROUPS, not mere individuals. Especially not if they are fortunate enough to unfairly own property.

  • ||

    Every time I hear Obama talk about how his pick needs to have empathy, all I can hear is "Macho Man" Randy Savage:

    OOOOOH YEAH! FEEL THE P-A-A-A-A-I-I-I-N!!

  • ||

    Condemning land that was going to be used for a CVS in order to build a Walgreens, is in the public interest? How in the hell is one pharmacy chain more of a public interest than another pharmacy chain?

    I think it's time we started tar and feathering city councilmen again.

  • ||

    Why is empathy necessary to make legal decisions?

  • ||

    Because lack of empathy may mean that you're not human.

  • robc||

    Okay, I read the details above finally.

    Wow. Okay, completely ignore my point #2, this doesnt even follow from Kelo.

    My question is, why isnt the developer (and at least 1 member of the village council) not in jail for extortion?

  • Banjo Bob||

    "Why is empathy necessary to make legal decisions?"

    Because Lincoln freed the slaves.

  • ||

    Brandybuck nailed it. If the developer had been bringing in a luxury condo suite or a massage parlor or anything other non-equivalent business, Kelo, much as it sucks, would have applied. By substituting an identical store, they've stepped outside of the Supreme's precedent.

  • ||

    Why is empathy necessary to make legal decisions?

    So the people liberals feel good toward (i.e. their political supporters) will always win, without liberals being held accountable for explicit changes in the law to make it so. The law will just say "we get what we want" and be unalterable.

  • ||

    Why is empathy necessary to make legal decisions?

    So you can say, "That's not really what the law says," and mean it.

  • ||

    Where's SugarFree when we need him? Digusting prose involving Sotomayor, empathy, and possibly replicants, please.

  • ||

    This case is infuriating, but Sotomayor would just be replacing another flaming eminent domain enabler on the court, so no net loss.

  • ||

    It took me years of hard work to buy that property, pay off my mortgages and really feel like I own it,

    As often happens, feelings != reality. This is Amerika, you don't own property, you take care of it until the government wants it.

  • ||

    "It took me years of hard work to buy that property, pay off my mortgages and really feel like I own it," Didden said in a December press release issued by his attorneys at the Institute for Justice, a libertarian public interest law firm that frequently handles eminent domain cases"

    Wow, they guy has the nerve to think he owns the property just because he paid off the mortgage. The nerve of him.

    This would seem to be outside the scope of Kelo as Brandybuck points out. But then again maybe not. Perhaps Wall Greens recycles more the CVS or uses lower profile signs or has a more agressive minority hiring strategy. You could think of a million "reasons" why Wall Greens is in the public interest but CVS is not. Ultimately, this is where Kelo leads. It ends with everyone paying protection money to the local city government in order to build anything.

  • ||

    "I've seen things you white males wouldn't believe," Sonia muttered as she slid the enormous strap-on from beneath the judicial robes. She ran after Souter, gibbering and hooting in Bronxian Spaglish. She could hear him breathing, hiding behind a rotted wall. She could even hear the skin of his withered testicles as they drew up in fear.

    She rammed her head through the wall and caught David's hand, stripping the gavel from it easily. "Empathy is for turtles," she said as she gnawed his hand open. "This is for Ruth!" she growled, his pinky bone snapping like a whip. David cried out. "And this is for Sandra!" as she broke his ringfinger while he moaned. Sonia placed the gavel back into his hand. David tried to adjourn, but she was too fast.

    David ran from her through the crumbling hotel. He couldn't help but look back at her strap-on as it flailed in time with her inexorable stride. The roof, he thought. The roof.

  • ||

    I think Souter is a replicant in SugarFree's drama.

  • ¢||

    "It took me years of hard work to buy that property, pay off my mortgages and really feel like I own it"

    He sounds white.

  • ||

    You know, NutraSweet, you should have ripped off the progeny fucking scene from Possession instead.

  • ||

    I think Souter is a replicant in SugarFree's drama.

    In my director's cut, you can clearly see that Souter's eyes to glow red in two scenes.

  • ||

    Sug, you're even easier to summon than Biggie Smalls. Cool!

    I think you're onto something, though. Instead of categorizing Supreme Court Justices as liberal or conservative, a more telling distinction would be between those who prefer to wield the strap-on vs. those who'd rather receive (Souter was a minority, I would guess).

  • ||

    "In my director's cut, you can clearly see that Souter's eyes to glow red in two scenes."

    Is the directors cut going to include the infamous Scalia/Ginsberg cross dressing gardening scene? You know the one that was on Youtube for two hours before disapearing?

  • ||

    SugarFree

    Please stop with the creative writing. The people at my office are wondering what's so funny about buying/selling utility companies and their assets.

  • ||

    It turns out that that whole pubic hair/soda incident was a implanted memory. Anita Hill is a replicant.

    Whose memory was it? Sandra Day O'Connor's, of course. Clarence was banging her all along.

  • ||

    As loathsome as takings are, any literal reading of the clause shows that takings are Constitutional as long as just compensation is provided.

    Oh, I forgot... wingnuts only read the Constitution literally when they want to deny privacy rights.

    Shit - my wingnut skullcap falls off sometimes..

  • ||

    I'll have you know that I've seen attack ships on fire off the shoulder of Orion, ProL, and I can tell you that they aren't implanted memories.

  • mike||

    I live in Port Chester. Didden had zero interest in doing anything until he got wind of the Walgreens (which is quite a busy spot these days). This re-development project was many many years in the works

  • robc||

    mike,

    Then why the 800k/50% interest extortion "offer"?

  • ||

    "Oh, I forgot... wingnuts only read the Constitution literally when they want to deny privacy rights"

    "nor shall private property be taken for public use, without just compensation."

    Since when did building a WallGreens become a public use?

  • robc||

    any literal reading of the clause shows that takings are Constitutional as long as just compensation is provided

    nor shall private property be taken for public use, without just compensation.

    Leave something out dim-bulb?

  • ||

    "I live in Port Chester. Didden had zero interest in doing anything until he got wind of the Walgreens (which is quite a busy spot these days). This re-development project was many many years in the works"


    So what? It is his land. He shouldn't have to use it "timely" in order to keep it. I don't care if he planned to keep it as a vacant lot. He shouldn't have to sell it to the city to go to some developer.

    It is interesting how lefties love Kelo so much but also love organizations like the Nature Conservancy that buy land to stop development. I bet lefties won't like Kelo so much when some town in Montana condems some piece of land owned by the Nature Conservancy to build some much needed economic development like a shopping mall or a strip mine.

  • ||

    "nor shall private property be taken for public use, without just compensation. "

    Walgreens is open to the public. ;0)

  • ||

    "nor shall private property be taken for public use, without just compensation."



    Well, shrike is simply going with the other literal reading, the one that says that you owe just compensation if it's taken for public use, but if it's taken for private benefit or just plain extortion, you don't even need just compensation.

    It is a literal reading, it's just completely untenable.

  • ||

    Fine, Kelo was for public use. I'm opposed to such.

    My point was the hypocrisy of the "literalists".

    Almost all takings have had a tax benefit like Kelo - toll roads and bridges for example.


    The Scalia "originalist" crowd is full of shit - no doubt.

  • Xeones||

    shrike, you were doing so well. But, dude, you have to keep taking the meds for them to work.

  • ||

    Is the directors cut going to include the infamous Scalia/Ginsberg cross dressing gardening scene?

    Yes, if the pinheads at the studio will get off my back. And I'd like to restore the ten-minute interlude where Roberts plays the mood-organ wearing nothing but a dried cat's anus as a cock ring.

  • robc||

    Switch to a Georgian Single Tax and the "timeliness" issue goes away.

  • ||

    Fine, Kelo was for public use. I'm opposed to such.

    My point was the hypocrisy of the "literalists".

    Almost all takings have had a tax benefit like Kelo - toll roads and bridges for example.



    Is a tax benefit "public use," shrike? It seems to me that that's the basis of the dispute. Does the text say "public benefit," or "public revenue?" It does not. It says "public use." A private building that provides public revenue does not, in my opinion, qualify as "public use."

    shrike, stop with the attempts at meretricious argumentation. You apparently have an obsession with finding hypocrisy, but on this issue at least there is none. A literal textual reading of the Constitution excludes "public use," unless you change "public use" to mean something other than what the words typically mean. Try reading the opinions themselves.

  • ||

    Episiarch,

    Let's think about that memory for a moment. Ships on fire? In space? Hmmmm.

    And off the "shoulder of Orion"? You have memories of seeing the body parts of a constellation? I see.

    Dude, you are so a replicant. Mercer knows that you don't have any empathy, either. Join highnumber in the replicant holding pen, please.

  • ||

    ok Thacker, what about all the private land taken for private rail lines?

    Are you pretending this is new?

    What was the motive for states to accommodate rail lines?

    Ok, we have a hundred years of precedent, whats the remedy?


    Nothing is stopping a state legislature from clarifying this little clause.

    I'm all for it.

    "Any taking may not involve a private concern"

    fine with me - but it won't work either.

  • ||

    ok Thacker, what about all the private land taken for private rail lines?

    Rail lines are the functional equivalent of roads, the quintessential "public use."

    Nothing is stopping a state legislature from clarifying this little clause.

    The Constitution is there so we don't have to rely on corruptible legislatures to rein themselves in, shrike.

    C'mon. This is Civics 101 stuff.

  • ||

    At least empathy makes you not a utilitarian.
    Replicants have no problem sacrificing puny mortals to the good of the state, if they are so ordered.

    But I'm sure if what Sotomayor has is really empathy, or just selective empathy - for people identified as 'oppressed' by the leftist intellectual class. I.e. no empathy for people who want to build a CVS, lots of empathy for people that want to build a Walgreens.

  • EscapedWestOfTheBigMuddy||

    Ultimately, this is where Kelo leads. It ends with everyone paying protection money to the local city government in order to build anything.



    So hiring a Chicago machine politician to occupy the Oval Office was the right thing to do then. Institutional experience and all that...

    Glad that's all cleared up.

  • shriek||

    RC DEAN, YOU CHRIST FAGGOT!!!11!1

  • ||

    It should also be noted that rail lines were at some point determined to be public utilities and common carriers and as such subject to regulation and franchising. And even natural monopolies, at least on a regional level.

    This gave them a significantly different legal position than a corner drug store.

    No comment as to the rightness or wrongness of this and naturally lawyers and historians present would have written the above more accurately, and likely more concisely.

    Mill ponds that flooded land upstream from dams were placed in a similar category, I believe.

  • ||

    Rail lines are the functional equivalent of roads, the quintessential "public use."

    Except for the fact that I must pay the owner for its use.

    Look - lets get real - the Constitution has flaws and this takings clause is too damned ambiguous.

    Its not even close to the worst flaw though.

    And I must tip my hat to my fellow classic liberal, Tommy J., for the damned fine job he did manage back in the day.

  • alan||

    People, a little empathy for Ms Sotomayor is in order here. If she had ruled to curtail the expansive power of the state and ruled in favor of 'property rights' that would have nixed any hope of advancing her career to the level of the Supreme Court. You have any idea how the press and Washington would read such a ruling? Aren't you asking a bit much of the poor woman to give up on her life long dream just to keep some poor schmuck from being completely fucked over by the system?

  • robc||

    shrike,

    Why should 100 years of wrong precedent stop the courts from getting it right today?

    They were wrong applying ED to rail lines.

    It was wrong in Kelo and in this case.

    Dont see the problem with that approach.

  • ||

    No comment as to the rightness or wrongness of this and naturally lawyers and historians present would have written the above more accurately, and likely more concisely.

    You are a wise man, Mr. Bartram.

  • ||

    robc, that is fair.

    The whole 'takings clause' has been mangled throughout history and better yet - EXPLOITED for gain by opportunists!

    Agreed?

    Fix it then - by amendment. Don't jerk it around pretending to be an "originalist" or such.... or a progressive looking for a higher tax base.

    Suddenly, after 100 years of use, this has become a paranoid wingnut issue.

    Come on!

    It hasn't changed.

  • robc||

    Fix it then - by amendment.

    It doesnt need fixing. The text is perfectly fine, if followed.

    Who is pretending to be an originalist?

  • ||

    The whole 'takings clause' has been mangled throughout history and better yet - EXPLOITED for gain by opportunists!

    Agreed?

    Fix it then - by amendment. Don't jerk it around pretending to be an "originalist" or such.... or a progressive looking for a higher tax base.



    Ah, so since for 100 years or so the text has been misread, it's completely unreasonable to insist that the text be read correctly. Instead, propose an amendment that will still be misread so long as we don't insist on reading the text to say what it means.

    What's more, shrike insists on criticizing the very judges who read the text correctly. Apparently they are not allowed to do so, since for 100 years some other judges have disagreed.

  • ||

    Suddenly, after 100 years of use, this has become a paranoid wingnut issue.



    So the NAACP are paranoid wingnuts? Ralph Nader? The Grey Panthers? (Both of whom were involved in Poletown)

    List of organizations filing amicus briefs in Kelo arguing against shrike's position of the definition of "public use":

    Urban Sociologist Jane Jacobs, Author of Death and Life of Great American Cities


    NAACP, AARP, et al.


    American Farm Bureau Federation, et al.


    National Association of Homebuilders & National Association of Realtors


    John Norquist, President, Congress for New Urbanism


    Becket Fund for Religious Liberty


    13 Noted Property Law Professors


    Property Rights Foundation of America


    Richard Epstein & the Cato Institute


    Better Government Association & Other Community Groups


    Claremont Institute


    Pacific Legal Foundation & Property Owners Battling Eminent Domain Abuse


    Goldwater Institute, et al.


    Cascade Policy Institute, et al.


    Reason Foundation


    New London Landmarks, Inc. & Coalition to Save Fort Trumbull


    Develop Don't Destroy (Brooklyn), Inc., et al.


    New Jersey Property Owners Fighting Eminent Domain Abuse


    Texas Property Owners Fighting Eminent Domain Abuse


    Pennsylvania Property Owners Fighting Eminent Domain Abuse


    Mountain States Legal Foundation, et al.


    New London R.R. Co., Inc.


    Hawaii Property Owners Fighting Eminent Domain Abuse


    Tidewater Libertarian Party


    Rutherford Institute

    --

    You may call some of them wingnuts, but the AARP, NAACP, SCLC, Jane Jacobs, et al.?

  • Ben||

    Since this comment thread is devolving into a slash fiction parody of Blade Runner. I thought I would just post (.(.) or (.y.)or whichever version of the ASCII art that adequately describes the people were talking about.

  • ||

    Rail lines are the functional equivalent of roads, the quintessential "public use."

    Except for the fact that I must pay the owner for its use.


    Do you? I thought you had to pay the railroad to haul your stuff for you, just like you have to pay a trucking company to haul your stuff for you.

    If you had your own train, would you have to pay to use the rail line? Who would you pay?

  • ||

    The clause is ambiguous.

    Revel in your false laymens certainty then.

    Judicial minds on the court have reached another conclusion.

  • ||

    And legal minds in the Bush administration also reached certain conclusions. So what? They were wrong, too.

  • ziggrl||

    What the hell is Kelo?

  • robc||

    The clause is ambiguous.

    The takings clause isnt even remotely ambiguous to native readers of the english language more than half a brain.

    Whether 5 members of SCOTUS were raised on latin or suffered lobotomies, I leave as an exercise.

  • mike||

    Sry I had to head to a meeting and cut my last comment short. Didden, not the developer, was the one attempting to extort. He seemed to believe by showing up at the last moment with a competing pharmacy he would get a deal, the classic 'just go away now' pay off so that the developer could complete the project. Didden never had any intent to develop this land then, nor previously. The developer, however, had only agreed to the project prior to 1999 based on their ability to build and profit. Didden did nothing to contest the redevelopment zone in 1999, 2000, 2001..etc. Only when the proposed use of his property became known did he act. The time to act was in 1999.

  • ||

    Fix it then - by amendment. Don't jerk it around pretending to be an "originalist" or such

    OK, how do we word this. Perhaps:

    "In the foregoing amendments, 'public use' is to be understood as meaning public use. 'Right to keep and bear arms' is to be understood as meaning 'right to keep and bear arms', and 'commerce among the several states' is to be understood as meaning 'commerce among the several states'."

    Yep, that ought to nail it down.

  • ||

    mike,

    If that's so, why did the other developer demand a 50% share in the CVS that wasn't going to get built?

  • ||

    So, a guy can demand an $800 grand bribe, and not only stay out of jail but end up stealing the land from the guy he was trying to shake down?

    That's even more egregious than Kelo, in my book.

    -jcr

  • ||

    What the hell is Kelo?

    It's the case where the supreme court abandoned all pretense of protecting property rights.

    -jcr

  • ||

    BanjoBob - I don't know if you were being sarcastic, but actually, Lincoln didn't free the slaves. He only freed slaves in Confederate States, not in the remaining slaveholding states within the United States. Clever little war tactic!

  • ||

    John Thacker,

    If property is taken for private use, then it is a deprivation of property without due process, for which the government actually has more liability than the just compensation standard; the taking can even be enjoined.

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