July 24, 2009

by Bill Levinson

It is already known that Barack Obama’s Supreme Court nominee Sonia Sotomayor has used racist language to describe herself as more qualified than “white males.” According to “Vote No on Sotomayor” (Wall Street Journal, July 24 2009, page A13), Sonia Sotomayor also, as a jurist on the Second Circuit, voted to sanction the moral and ethical equivalent of retail theft by price tag switching. This is strong language, but we invite our readers to tell us why it does not accurately describe the quoted material:

Judge Sotomayor also revealed a troubling approach to property rights in Didden v. Village of Port Chester (2006). Sitting on another Second Circuit panel, Judge Sotomayor voted to uphold the condemnation of the plaintiffs’ private property despite the obvious corruption surrounding the case. The plaintiffs’ only faced condemnation because they refused to pay off a politically connected developer. When they refused to pay, the city then condemned the land, declaring it for “public use.”

(More about Didden v. Village of Port Chester here)
Common shoplifters steal from stores by switching, for example, a $50 price tag for a $25 tag from another item. In Didden v. Village of Port Chester, a politically connected real estate developer demanded a payoff from another property owner. When the owner refused to pay, the developer then colluded with municipal officials to take the owner’s property through eminent domain, for a price set by the municipality as opposed to an agreed price between a willing buyer and seller. There is no ethical difference whatsoever between this and retail theft through price tag switching except for the fact that Sonia Sotomayor and five Supreme Court justices used their authority to make it legal.

Noting that “Vote No on Sotomayor” was written by a former Republican Senator, we investigated further and found the following. Sonia Sotomayor’s name appears prominently on the decision.

According to Appellants, at a November 2003 negotiation session with Defendants-Appellees G&S and Wasser, Wasser demanded $800,000 from them in order to avert a condemnation proceeding of their property within the redevelopment district, and offered to allow them to proceed if Defendants-Appellees were given a partnership interest in the project. Appellants refused both demands and, two days later, they received a petition seeking to condemn their property. On appeal, Appellants advance constitutional claims based on the Fifth and Fourteenth Amendments asserting, inter alia, that they have a right “not to have their property taken by the State through the power of eminent domain for a private use, regardless of whether just compensation is given.” The statute of limitations applicable to § 1983 claims in New York is three years.

…Appellants, however, brought suit in January 2004, more than three years after the date their claims accrued, and thus their claims are time-barred. We reject Appellants’ contention that their injury actually accrued in November 2003 when G&S and Wasser “first utilized their de facto eminent domain power against [them] in an effort to exact a cash payment or partnership interest” in the pharmacy project.

Moreover, even if Appellants’ claims were not time-barred, to the extent that they 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 v. City of New London, 125 S. Ct. 2655 (2005), obliges us to conclude that they have articulated no basis upon which relief can be granted. See id. at 2668 (”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.”); see also Rosenthal & Rosenthal Inc. v. New York State Urban Dev. Corp., 771 F.2d 44, 46 (2d Cir. 1985). Finally, we agree with the district court that Appellees’ voluntary attempts to resolve Appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.

The district court properly dismissed the complaint on the ground that the Appellants’ claims are time-barred. Accordingly, the judgment of the district court is hereby AFFIRMED.

The authors of the Kelo decision, with which Ms. Sotomayor apparently agrees, do not understand the U.S. Constitution–a basic qualification for any Supreme Court justice.

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

Nowhere does the U.S. Constitution say that the government can take private property, even with just compensation, and hand it over to another private party. Nonetheless, unethical and possibly corrupt municipal officials have done exactly this. Examples include taking an automobile dealership and handing it over to a competitor. Koman Properties is another poster child for eminent domain abuse:

Eminent Domain: Is It Only Hope For Inner Cities?
By RYAN CHITTUM
Staff Reporter of THE WALL STREET JOURNAL
October 5, 2005; Page B1

…But to build in an urban area like East St. Louis, Mr. Koman must rely on eminent domain — the government’s power to force a landowner to sell property at what is considered a fair price. The State Street project wouldn’t have happened if the city hadn’t used the threat of eminent domain to clear about 40 houses and a gas station, Mr. Koman says. Of those properties, only two owners held out for long periods, and one of those buildings was condemned and appropriated through eminent domain after the owner refused to settle.

This reference (from the Institute for Justice) uses the word “extortion” numerous times with regard to the Didden case:

THIS CASE PRESENTS AN OPPORTUNITY TO RESOLVE A SPLIT AMONG FEDERAL CIRCUITS AND STATE COURTS OF LAST RESORT ABOUT THE APPROPRIATE LEGAL STANDARD TO APPLY TO DEMANDS FOR CASH PAYMENTS IN EXCHANGE FOR GOVERNMENT DISCRETIONARY ACTION.

By asserting in a single sentence that Wasser’s demand for $800,000 in exchange for not condemning Petitioners’ property was not “an unconstitutional exaction in the form of extortion,” the panel below glossed over an important, and unresolved, constitutional question. 173
Fed. Appx. at 933; App. 4. The panel held that a demand for a cash payment to stave off a condemnation can never give rise to a constitutional violation. This places the Second Circuit in direct conflict with a number of state courts of last resort that have found constitutional limitations on when governments may demand cash payments as a condition of the use of their discretionary police powers over private property. [10]

The reference also cites the Second Circuit’s “reasoning” in rejecting the plaintiff’s case:

E. Extortionate Demand for Payment.
Plaintiffs claim that Defendant Wasser demanded that they pay him the sum of $800,000 or else he would cause Port Chester to condemn the Subject Properties and thereby divest Plaintiffs of title. However, their allegation of an extortionate demand of $800,000 to avoid condemnation adds nothing of legal significance to Plaintiffs’ claims. As Plaintiffs themselves assert in their Complaint, G & S and Wasser have the authority under the LADA to obligate Port Chester to pursue condemnation of properties within App. 14 the Project’s boundaries. (Scheinkman Aff., Ex. A, ¶ 62). Threats to enforce a party’s legal rights are not actionable. DiRose v. PK Mgmt. Corp., 691 F.2d 628, 633 (2d Cir.1982). Thus, even if Defendants did request payment in exchange for relinquishing the legal right to request condemnation, Plaintiffs have no recourse.

The EDPL does not require the condemner to negotiate with a private property owner in good faith prior to seeking to acquire title to the property. Nat’l Fuel Gas Supply Corp. v. Town of Concord, 299 A.D.2d 898, 752 N.Y.S.2d 187 (4th Dep’t 2002). That Port Chester, G & S, and Wasser did meet with Plaintiffs and conveyed a proposal that Plaintiffs found unacceptable does not give Plaintiffs any substantive claims. Plaintiffs pursued their CVS site plan application and the CVS lease knowing that the Private Developers, under the LADA, might might attempt to buy or condemn the disputed properties.

We are not attorneys and cannot give legal advice, but this defies common sense. The Constitution’s provision for taking private property for public use was certainly not intended to enable demands for payment to prevent private property from being taken for private use. Sonia Sotomayor’s agreement with the Kelo decision shows that she, like David Souter and Ruth Bader Ginsberg, is unfit to serve on the U.S. Supreme Court and probably any court whose responsibility is to uphold individual rights and the Constitution of the United States. We encourage the U.S. Senate to reject her confirmation for this reason.