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Sotomayor's Light Record On Property Matters Creates Uncertainty

The conventional wisdom is that Sonia Sotomayor's appointment to the U.S. Supreme Court doesn't make a whole lot of difference, because there's not much meaningful ideological distance between her and her predecessor, Justice David Souter. So, the party line goes, the court will still be stuck in the familiar 5-4 or 4-5 split, depending on how Justice Anthony Kennedy is feeling that day.

But there's a debate brewing as to whether that's really the case in land use and property rights law. Souter's movement toward government power culminated in 2005 with his decision to side with the five-member majority in the controversial case of Kelo v. New London, 545 U.S. 469, (see CP&DR Economic Development, July 2005) which upheld a city's power to use eminent domain in a redevelopment situation to transfer property from one private owner to another.

Would Sotomayor have done the same? You'd think so. But unlike Samuel Alito (see CP&DR Insight, December 2005), her federal judicial record while lengthy doesn't include a lot of takings cases. And, not surprisingly, her confirmation hearings did not provide much insight. Sen. Herb Kohl (D-Wisconsin) asked Sotomayor point-blank what she thought about Kelo.

Her stand-pat answer typical of Supreme Court nominees these days was this: "Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge.

"As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests the question of the reach of Kelo has to be examined in the context of each situation, and the court did, in Kelo, note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public a public purpose and public use.

"I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate."

In other words, she mostly hid behind the Supreme Court's ruling as a precedent, saying almost nothing except she is bound to follow precedent and apply the precedent in a context-specific situation. To the extent that this testimony provides any insight at all which is not much it kind of suggests that she would have sided with New London. She provided this hint by acknowledging the whole public use question: Essentially, can forcing a property transfer from one private owner to another serve a public purpose? John Roberts and especially Samuel Alito would surely have hidden behind the precedent and the context-specific idea just as cleverly as Sotomayor maybe more so but they probably would not have characterized public use as a complicated concept.

In suggesting that Sotomayor is a typical pro-government liberal on property rights issues, property rights advocates point mostly to a series of Second Circuit rulings, but in almost all of these cases Sotomayor was a member of the panel and not the opinion's author. The case most bothersome to the pro-property side is Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006), a case which was not signed by an individual judge and not published in the federal reporter.

The facts would be amusing if they weren't so frightening. A landowner in Port Chester located in Westchester County, New York, near the Connecticut border wanted to build a drug store inside a redevelopment zone. A local developer with influence in the redevelopment area demanded that the landowner either pay him $800,000 or give him a half-interest in the project, and he threatened that if the landowner did not agree, the village would condemn his property. The landowner refused and the village went forward with eminent domain proceedings.

The Second District upheld a federal trial judge in throwing the case out. UCLA law professor Eugene Volokh, one of the best pro-property bloggers, acknowledged that the panel may have simply thought it was implementing Kelo, because the case clearly states that the federal judiciary should give great deference to local judgments in eminent domain cases. But writing for the majority in Kelo, Justice John Paul Stevens, the only former city attorney on the high court, concluded that "pretextual" condemnations condemnations that claim to serve a public purpose but whose real purpose is to benefit a private party aren't covered by the ruling. "It is difficult to imagine a more clearly pretextual taking than this one," Volokh wrote of the Didden case.

Beyond that you have to go all the way back to her federal trial court days to find an opinion she wrote that seems relevant. In that case she also seems to favor the government. In In re St. Johnsbury Trucking Co., 199 Bankr. 83 (S.D.N.Y. 1996) and 191 Bankr. 122 (S.D.N.Y. 1996), a trucking company claimed the federal trucking rates law represented a taking of property. Sotomayor appeared to agree that the economic value of the trucking company's property had been taken away but ruled in favor of the government based on the well-known three-pronged test in the Penn Central case. (My description was taken from another good property rights blog, www.inversecondemnation.com, written by Hawaii property rights lawyer Robert Thomas, who expressed appropriate outrage at the ruling.)

However, there are a few points on the other side that suggest Sotomayor may be more moderate on property rights than these rulings suggest. Chief among these is Krimstock v. Kelley, a 2002 Second Circuit decision written by Sotomayor, in which the panel overturned the New York City Police Department's longstanding practice of holding vehicles seized from accused criminals indefinitely and not permitting the owners any legal recourse in attempting to reclaim the vehicle.

This ruling got good press among anti-government types. But it is, of course, a different kind of case. The owners of the property in question are not developers, but, rather, accused criminals. So maybe Sotomayor really is an unquestionably liberal judge, even when she rules in favor of property owners and against the government.

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