Senate grills Judge Sotomayor on controversial property rights legislation

Valuation Insights & Perspectives, Summer, 2009

During the Supreme Court confirmation hearings for Judge Sonia Sotomayor, both the controversial Supreme Court 2005 ruling reached in Kelo v. City of New London and Sotomayor's own ruling in the controversial Didden v. Village of Port Chester came up.

In a 5-4 ruling in Kelo v. City of New London, the Supreme Court ruled that it was constitutional under the Takings Clause of the Fifth Amendment and eminent domain for local government to seize private property for private economic development. In response to Kohl's asking what an appropriate "public use" for condemning private property is, Sotomayor incorrectly claimed that Kelo upheld a taking in an economically blighted area. "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. ... [T]he court held that a taking to develop an economically blighted area was appropriate," Sotomayor asserted.

However, there were no allegations of blight in Kelo. As Justice John Paul Stevens noted in his opinion on Kelo, "There is no allegation that any of these properties [that were condemned] is blighted or otherwise in poor condition." Although the court held that the government can condemn a person's property and transfer it to someone else in order to promote economic development, many people were alarmed about the consequences of this landmark ruling. Justice Sandra Day O'Connor wrote at the time, "[N]othing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."

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Under questioning by Sen. Charles Grassley, R-Iowa, Sotomayor also defended her ruling in the controversial Didden v. Village of Port Chester. In Didden, Sotomayor's federal appellate-court panel upheld the government's condemnation of property after the owners refused to pay a private developer. The plaintiffs challenged the condemnation on the ground that it was not for a public use, as the Constitution's Fifth Amendment requires. However, Sotomayor's panel upheld the condemnation and denied Didden a court appearance. In that decision, Sotomayor's court ruled on the statute of limitations, taking into account that the developer had rights under a contract with the state and Didden had rights under the Fifth Amendment, but did not bring them in a timely enough manner so as to avoid the conflict.

For the complete transcript, visit www.nytimes.com/2009/07/14/us/politics/14confirm-text.html. The Kelo passages are on pages 15-16 and Didden on pages 31-34.