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Sotomayor's Testimony on the Didden Case:

In the same exchange with Senator Grassley where she misstated the holding of Kelo v. City of New London, Judge Sotomayor also defended her ruling in the controversial Didden case, where her Second Circuit Court of Appeals panel ruled that it was constitutionally permissible for a state to condemn property because the owners had refused developer Greg Wasser's demand to pay him $800,000 or give him a 50% stake in their business, threatening to have the property condemned if they did not comply. As I have argued in the past, this is precisely the sort of "pretextual" taking that even the Supreme Court majority in Kelo considered to be unconstitutional.

Responding to Grassley's questions, Judge Sotomayor claimed that the ruling was unexceptionable because it was based purely on the property owners' failure to file their case within the three year period required by the statute of limitations. Nothing to see here, let's just move on.

There are two serious problems with this explanation. First, Sotomayor's panel clearly addressed the substantive constitutional issue as well, ruling that "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 . . . obliges us to conclude that they have articulated no basis upon which relief can be granted." Didden v. Village of Port Chester, 173 Fed. Appx. 931, 933 (2d Cir. 2006) (emphasis added). Thus, even if Sotomayor was right about the statute of limitations question, she still made a seriously flawed ruling on the far more important constitutional issue.

Second, as I explained in this amicus brief (pp. 14-16) coauthored with several other property scholars, the Second Circuit's resolution of the statute of limitations issue was in fact inseparable from its resolution of the substantive question. The court had ruled that the three year statute of limitations expired in 2002, three years after the declaration of the 1999 redevelopment plan that gave the city the authority to use eminent domain in the area. But the plaintiffs' property was not condemned at that time and Wasser did not make his extortionate threats until November 2003, after which their property was almost immediately condemned.

Until that time, it was impossible to file a pretextual taking claim because no pretextual taking had yet occurred or even been threatened. Judge Sotomayor's panel ruled that Bart Didden and Dominick Bologna's case was time-barred because she assumed that there is no legal difference between the mere declaration of a redevelopment area and the use of condemnation for purposes of extortion. The panel's seemingly technical procedural ruling was actually based on a serious substantive error about the law of pretextual takings, as described in Kelo.

The second point described above is probably too complex to discuss in detail in a televised hearing with strict time limits (though I do discuss it in my written testimony to the Judiciary Committee). For nonexperts, the important point to remember is the first one: Sotomayor's panel ruled on the constitutional property rights issue as well, not just the technical statute of limitations question.

Strict:
I think that's called dicta.

In this case, obiter dicta, not judicial dicta.
7.14.2009 3:44pm
Ilya Somin:
I think that's called dicta. No, it's an alternative reason for decision. The Supreme Court has stated that when a court has 2 alternative reasons for its decision, each of which is individually sufficient, both are part of the holding. In any event, even if it's dicta, it still reveals her view of the constitutional issue.
7.14.2009 3:48pm
Steve:
Again, since it is undisputed that the plaintiffs commenced voluntary, amicable negotiations regarding the threatened condemnation of their property way back in 1999, and that those negotiations continued for the next four years, it is absurd to suggest that suddenly, in 2003, out of the blue we have this extortionate demand by the developer that triggers the statute of limitations anew. What the plaintiffs apparently mean by "extortion" is that they never succeeded in eliciting a settlement offer that was to their liking.

I don't question the commitment to property rights held by the amici, but at this point I am uncertain whether they are being played for fools or trying to play the rest of us. The facts of the case simply do not support their theory.
7.14.2009 3:49pm
Commentor (mail):
Assuming that Sotomayor's statement regarding Kelo, that it approved the condemnation of economically blighted areas, is incorrect. It is nevertheless a correct statement of law. Condemnation of economically blighted areas is an acceptable public use under the Fifth Amendment.
7.14.2009 3:49pm
Phatty:
Even a layperson could have spotted the flawed logic in Sotomayor's reasoning. When explaining why her panel took so long to issue a summary order, she stated, "We were waiting on Kelo." Why the hell do you need to wait for Kelo if the case can be quickly disposed on a statute of limitations argument?
7.14.2009 3:49pm
paul lukasiak (mail):
IIRC, the diddens opinion was unsigned -- in other words, unless you have evidence that she wrote the actual opinion, it seems clear that she decided the case on the "statute of limitations" basis.

(IMHO, the "statute of limitations" argument is specious in terms of common sense -- but as we saw in the recently decided employment gender discrimination case, the filing deadline cases often make very little sense at all.)
7.14.2009 3:52pm
Ilya Somin:
it is undisputed that the plaintiffs commenced voluntary, amicable negotiations regarding the threatened condemnation of their property way back in 1999, and that those negotiations continued for the next four years, it is absurd to suggest that suddenly, in 2003, out of the blue we have this extortionate demand by the developer that triggers the statute of limitations anew. What the plaintiffs apparently mean by "extortion" is that they never succeeded in eliciting a settlement offer that was to their liking.

The plaintiffs stated that only in November 2003 did Wasser threaten to have their land condemned unless they paid him money or gave him a 50% stake. Wasser himself did not dispute that, except to claim that he also offered them the option of buying their land at a price far below its value. In any event, on a Rule 12(b)6 motion, Sotomayor was required to assume the truth of the plaintiff's version of events, a point I discussed in this post.
7.14.2009 3:54pm
Steve:
The plaintiffs stated that only in November 2003 did Wasser threaten to have their land condemned unless they paid him money or gave him a 50% stake.

You're evading the issue. It is undisputed that the plaintiffs voluntarily commenced negotiations in 1999, and that the negotiations continued amicably for four years. What you're doing is taking the developer's final proposal from that ongoing negotiation process and treating it like it occurred in a vacuum, absent the context of four years of ongoing negotiations.

Yes, whatever the developer's final offer was, that was probably the first time they made that specific offer. So what? You don't get to voluntarily participate in four years of exchanging offers and demands, and then when you never get an offer to your liking, claim that the final offer was "extortion." Certainly after Twombly a court is not required to accept such a preposterous set of allegations as true.
7.14.2009 4:04pm
Phatty:

You don't get to voluntarily participate in four years of exchanging offers and demands, and then when you never get an offer to your liking, claim that the final offer was "extortion."

Is this the "Steve Rule"? I've never heard that one before. I've always thought that the limitations period began when the cause of action accrued, which is usually when a wrongful injury has occurred. Under your rule, if I engage in negotiations with a buyer for ten years to sell my house, and then the buyer becomes frustrated and punches me in the nose, I can't sue the buyer for battery because our course of dealing began ten years prior.
7.14.2009 4:12pm
Phatty:

Yes, whatever the developer's final offer was, that was probably the first time they made that specific offer. So what?

What if that specific offer was "sell me your house or I shoot you dead"? Is it that hard to grasp the concept that all the previous offers were perfectly legal and the final offer was wrongful?
7.14.2009 4:14pm
Lior:
@Steve:
You're evading the issue.


Unfortunately, you are evading the issue. It is quite possible that what actually happened was as you describe, and hence that the statute of limitations had run out in 2002. It is even possible that, considering all the evidence, your version of the evens is the most probable.

However, the plaintiffs claim otherwise, and while their claim may be improbable it is not impossible. The way the US law works is that the panel featuring Ms. Sotomayor was not supposed to theorize about the most probably version of events. Rather, they were supposed to assume that the version of events was as described by plaintiffs: peaceful negotiations for 4 years followed by an illegal extortionate offer in 2003.
7.14.2009 4:25pm
Granite26:
Slightly off-topic, but is there merit in asking experts to ask pertinant questions in the hearings? In this case, I would think that sitting Justices would have the best understanding of what is being asked of today's Justices, and could perhaps ask a few slightly pointed questions in correct terms.

It's possible this would be a conflict of interest or a waste of the impotent justices time, but I think that it could be of great assistance to the informed public in making decisions. It's possible that we might see slightly independant questions about qualifications and understanding rather than mindless point-scoring by politicians. (At least more so).
7.14.2009 4:29pm
ShelbyC:
@Steve, the developer wanted $800,000 or a 50% stake. What was he bringing to the table in exchange for that?
7.14.2009 4:32pm
Steve:
Is it that hard to grasp the concept that all the previous offers were perfectly legal and the final offer was wrongful?

That's hardly the allegation that was made in Didden. In fact, the people like Prof. Somin who want to advance this "extortion" argument basically want to sweep the four years of negotiations under the rug and pretend like they never happened, because the theory falls to pieces otherwise.

The allegation being made is that the municipality's finding of public purpose in 1999 was a mere pretext, and that the real agenda was extracting a cash payment from the property owner. Now, is it even the slightest bit plausible that a developer seeking to extract an extortionate payment would sit back, wait for the property owner to come to him, and then participate in four years of completely unobjectionable negotiations before suddenly dropping the hammer?

Anyone who doesn't feel obligated to accept Prof. Somin's characterization of the facts as gospel should simply read the District Court decisions, 304 F. Supp. 2d 548 and 322 F. Supp. 2d 385. The court gave the extortion argument short shrift because it deserved short shrift.
7.14.2009 4:32pm
ShelbyC:

The allegation being made is that the municipality's finding of public purpose in 1999 was a mere pretext,


That's not the allegation being made. The allegation is that the developer's final condemnation decision was a pretext. The developer could have let the property owner build the drug store, and the same public purpose would have been accomplished. And he would have, if the owner had given him $800,000. But the owner didn't pay, so the developer condemned the property. Not because the community needed a drug store (which it would have had anyway) but because the owner didn't pay the developer.
7.14.2009 4:41pm
Steve:
However, the plaintiffs claim otherwise, and while their claim may be improbable it is not impossible. The way the US law works is that the panel featuring Ms. Sotomayor was not supposed to theorize about the most probably version of events. Rather, they were supposed to assume that the version of events was as described by plaintiffs: peaceful negotiations for 4 years followed by an illegal extortionate offer in 2003.

Where do the plaintiffs allege peaceful negotiations for 4 years followed by an illegal extortionate offer? It's not in the complaint, it's not in any of their affidavits.

In any event, the finding of public purpose became definitive and not subject to challenge way back in 1999. The court was unquestionably correct in holding that the 2003 allegations did not and could not operate to give plaintiffs a second bite at challenging the finding of public purpose. The issue that Prof. Somin doesn't want to deal with is that under state law, you have to challenge the finding of public purpose when it's made; you don't get to sit back and wait for a condemnation proceeding to be filed several years down the road.
7.14.2009 4:45pm
Steve:
The allegation is that the developer's final condemnation decision was a pretext. The developer could have let the property owner build the drug store, and the same public purpose would have been accomplished.

As we discussed in the previous thread, you seem to want to create a legal regime where any time your property is condemned for a given purpose, you can automatically challenge the condemnation simply by promising to use the property for the same purpose yourself. Maybe the law ought to work this way, but it currently doesn't, and I don't think it would be appropriate for judges to simply invent such a rule.
7.14.2009 4:47pm
rosetta's stones:
Steve,

Of course the negotiations went on over 4 years. The developer obviously was cash limited as all are, and proceeded accordingly. Further, it's obvious he hadn't a comprehensive development plan in place, otherwise, all of the condemnation actions would have proceeded immediately, as they did in Kelo, where evidently Ms. Kelo's property sits vacant to this day.

The developer was mixing and matching properties, and maximizing his income, and using the state's eminent domain power to do so. He was doing this without a firm plan, so when finally a firm plan for the appellant's property came forth in 2003, don't you agree that's when a SoL clock should begin ticking?

The plan begets the action, no?

And, can you seroiusly claim that the developer was negotiating in good faith for 4 years, while knowing that he wasn't going to actually buy the property, or condemn it, until he had a plan to quickly execute a development involving that property? That guy wouldn't sink money into something until he was ready, if he's like me or any other developer out there. He would not be prepared to give consideration until a plan was in place. That clock can't start until the potential for consideration starts, in a real sense.

You're too quick to accept things at face value, me thinks. Think this thing through and you may find it stinks as much to you as it does to me and Somin.
7.14.2009 4:49pm
ShelbyC:

The issue that Prof. Somin doesn't want to deal with is that under state law, you have to challenge the finding of public purpose when it's made; you don't get to sit back and wait for a condemnation proceeding to be filed several years down the road.


But the purpose can change. Imagine if the town had made a finding of public purpose, but the developer had condemned only black property owner's property, because they were black. Are you saying that it would be to late to challenge the finding of public purpose?
7.14.2009 4:50pm
ShelbyC:

As we discussed in the previous thread, you seem to want to create a legal regime where any time your property is condemned for a given purpose, you can automatically challenge the condemnation simply by promising to use the property for the same purpose yourself.


No, but in this case I could have gotten out of the condemnation simply by paying $800,000 to a private individual.
7.14.2009 4:54pm
Lior:
@Steve:
In any event, the finding of public purpose became definitive and not subject to challenge way back in 1999.


Are you saying that the "purpose" of the taking is fixed once and for all at the time the city council makes its decision, independently of the purpose to which the property is actually put to use later? Say the city allows the developer to take the land and built a toll bridge; this is clearly legal by all standards. The developer then waits 4 years so the statute of limitations expires and finally takes the land to sell it on the real-estate market market. Do the property owners have any recourse?
7.14.2009 5:11pm
MJT:
Although this is off topic, can anyone point me to a discussion of whether the requirement in the new House bill on health reform that individuals buy health insurance is constitutional, in particular what is the Constitutional clause empowering Congress to impose that requirement on a citizen?
7.14.2009 5:39pm
Tugh (mail):
Ilya said:

<blockquote>
Wasser himself did not dispute that, except to claim that he <b>also offered them the option of buying their land at a price far below its value</b>.
</blockquote>

This simply false as a matter of fact. He offered to pay $800K in addition to the market value for the land. It is regrettable that Professor Somin keeps making the false claim despite being called on it at least five times (while never addressing it, as far as I know).
7.14.2009 5:44pm
Tugh (mail):
It appears that Professor Somin did address in "update IV" to one of his previous posts the issue that Wasser offered to pay for the land 800K plus the market value. However, Professor Somin never adequately explained how and why the break-up of the negotiations can be called "extortion". The explanation having to do with "lost profits" makes little sense (since by the same logic, Wasser would have lost profits by allowing property owners to go ahead with their project).

7.14.2009 5:51pm
ShelbyC:
Tugh:

This simply false as a matter of fact. He offered to pay $800K in addition to the market value for the land.


The cert petition says:


In 2003, the private developer told Petitioners that he
would have their property condemned unless they either
paid him $800,000 or gave him a 50% equity interest
in their project. The developer sought a share
in Petitioners' expected profits.
7.14.2009 5:58pm
Jim at FSU (mail):
Wait a minute here, don't statutes of limitations tend to run from the time that the cause of action first accrued? How can you start a 3 year statute of limitations running 4 years before there is a use of eminent domain?

Filing a development plan that doesn't threaten someone's property doesn't give rise to a cause of action. It's just a plan. For all we know, plaintiffs probably assumed their use of the land was in conformance with that plan (since both the plaintif and defendant wanted to build a pharmacy there).
7.14.2009 6:33pm
Jim at FSU (mail):
Also, someone ban Steve for being an obvious fucking troll.
7.14.2009 6:36pm
ShelbyC:
Lay off Steve, he's not a troll.
7.14.2009 6:40pm
shertaugh:
I found Sotomayor's view on Kelo as spot-on as Nelson Lund's view on the footnote in Heller clearly stating that all federal and state courts to apply an incorporation analysis in all future 2nd A cases.
7.14.2009 6:46pm
geokstr (mail):

Ilya Somin:
...he also offered them the option of buying their land at a price far below its value.

Alternatively, they could have merely given the government approved crook $800,000 or a 50% ownership in their business for the privilege of not having their land stolen by said crook for free.

Wow. Such a deal.

In America today, you may have to buy your own land back from yourself, but it's OK because the price will be "far below its value." What a country.

IANAL, but maybe that is one of the reasons I find this case infuriating, sickening and quite frightening. It's no coincidence that all the liberal justices went for this. When your philosophy tells you that there is no such thing as private property anyway, and that they have the right to take it from you to "spread the wealth around" to their supporters, what other decision could there possibly be? To each according to their needs, after all. The village will need the money to raise your kids.

Steve:
The plaintiffs stated that only in November 2003 did Wasser threaten to have their land condemned unless they paid him money or gave him a 50% stake.

You don't get to voluntarily participate in four years of exchanging offers and demands, and then when you never get an offer to your liking, claim that the final offer was "extortion."

And it's not possible, I suppose, that the developer also knew that the statute had run, and that now he held all the aces? If he had made such extortionate demands just a few months earlier, he could have been in hot water, no?
7.14.2009 6:46pm
Tatil:

How can you start a 3 year statute of limitations running 4 years before there is a use of eminent domain?

The argument is that the statute of limitations started when the city declared public purpose for the plan. If you think this is just a pretext, you should take action during that time. Some people question whether the owners whose property was not condemned by then would have standing to go to court. I am a lay person, so I cannot be sure, but I assume they could. I think Prof. Somin's argument is that even if it was acceptable when the plan was first announced, the condemnation did become pretextual once the "extortionate" offer was made. It make sense to me, but I don't know the exact wording of the law, so it is hard for me to tell either way. However, there were two other judges that came up with the ruling, so apparently this is not such an obvious angle.

Is there a chance Supreme Court is going to take up this case?
7.14.2009 6:59pm
PlugInMonster:
Why even bother with this farce? She's going to get 75-80 votes anyway. This is just a useless spectacle.
7.14.2009 7:11pm
ArthurKirkland:
Cherry-picking facts and arguments might, in some circumstances, be an appropriate refuge for a hired-gun advocate (particularly where a straight shot would be unflattering to the client), but that strategy has no place in ostensibly scholarly analyses intended to persuade. It seems just as easy to construct a damning case against the plaintiffs as it is to present a strong case for them. I would welcome an analysis that avoids the overreaching extremes ("extortion," for example, is a charge more properly advanced by one whose breast pocket contains a certified record of the target's conviction).

Also, most scholars I have encountered do not refer to themselves as scholars.

Prof. Somin probably has some worthy points to advance, but they are buried or weakened by stridency.
7.14.2009 7:16pm
David Schwartz (mail):
The argument is that the statute of limitations started when the city declared public purpose for the plan. If you think this is just a pretext, you should take action during that time.
A reason is a "pretext" if it's not the real reason something happened. How can you possibly know the real reason something happened before that thing has happened?
7.14.2009 7:42pm
Steve H (mail):

No, it's an alternative reason for decision.


Wow. Will you be testifying under oath?
7.14.2009 7:48pm
Anderson (mail):
Sotomayor: history's greatest monster.

Can we move on now?
7.14.2009 7:51pm
ShelbyC:
Yeah, Anderson, you just move on.
7.14.2009 7:55pm
Jim at FSU (mail):

The argument is that the statute of limitations started when the city declared public purpose for the plan. If you think this is just a pretext, you should take action during that time.


This is a basic standing to sue problem. Declaring public purpose is not enough to grant standing on its own. There has to be a threat to someone's interests before they can sue.

Statutes of limitations are meant to punish litigants for sitting on their rights. It's a completely idiotic notion that:
- a party could take action that doesn't give rise to a cause of action against them by any party
-but taking that action causes the statute of limitations to start running against all parties for some later act

It would be like me publishing a notice in the newspaper that I planned to commit a theft and then waiting for the statute of limitations to run out before I start stealing stuff.

Cliff notes version: Steve is an idiot and you are idiots for agreeing with him.
7.14.2009 8:52pm
loki13 (mail):

Cliff notes version: Steve is an idiot and you are idiots for agreeing with him.


Expanded Cliff Notes: Steve, Sotomayor, Two Other Second Circuit Judges that joined the per curiam, and the rest of the Second Circuit (no rehearing, this seems unremarkable in the circuit) are all idiots.

Jim at FSU, OTOH, is a brilliant scholar who never resorts to mere name-calling.
7.14.2009 10:39pm
loki13 (mail):
BTW, is it only on the intertubez that people feel free to call other people idiots for agreeing with an un-reversed unanimous Court of Appeals decision? I get calling them wrong, or having different normative values, but idiots? I guess that means we'll have one more idiot on SCOTUS, and one less at FSU.
7.14.2009 10:42pm
steve is not a troll:
There are far more obvious trolls out there trolling for a banning (like "levisbaby"); Steve ain't one of them.

And Anderson, stop posting. Please. You're neither thoughtful, witty nor funny.
7.15.2009 12:29am
Careless:


Expanded Cliff Notes: Steve, Sotomayor, Two Other Second Circuit Judges that joined the per curiam, and the rest of the Second Circuit (no rehearing, this seems unremarkable in the circuit) are all idiots.

Jim at FSU, OTOH, is a brilliant scholar who never resorts to mere name-calling.

Does anyone want to explain to the non-lawyers here why he is wrong? Certainly having so many judges at multiple levels on your side is good evidence that he's wrong legally, but the actions that the judges seem to be protecting are so evil that it's had to believe they're legal.
7.15.2009 1:18am
loki13 (mail):
Careless,

First, you are welcome to look at the actual District Court opinions (Steve provided the legal cite above). Second, the reason many of us aren't bothering to rebut some of the outlandish claims is they have (in our minds) been rebutted on previous threads, and Prof. Somin has not seen fit to either retract anything or temper his language. Such is his right, as it is his blog. While I think reasonable minds may differ, I also think that his choice of some words and his description of some events has just been flat out incorrect. Nevertheless, I recommend looking through previous threads for the whole story. In the end, though, what you will find is the following:

1. A court is applying the current law. Remember, this is a unanimous panel decision. Also, this is a case about the statute of limitations. While the SOL can often seem unfair or "evil", it is what it is. Prof. Somin believes they got the SOL issue wrong; the District Court judge and Three Appellate Judges disagree with him, and they were not reversed. Prof. Somin is welcome to write an article about it, but he is not in charge of interpreting 2d Cir. Law.
2. Prof. Somin, who believes in a radical revamping of our current understanding of the 5th Am., is choosing to characterize the case in a different fashion.

While I do not begrudge Prof. Somin his normative view of the 5th Am., and I appreciate the scholarship he has done (he pointed me to an excellent work he wrote comparing the comparative neglect the Takings Clause has suffered vis-a-vis our "civil" liberties), you should remember that his view is radically different than current jurisprudence. His view my someday be accepted, but that day is not today.
7.15.2009 2:31am

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