The N.C. Property Rights Coalition faxed the following letter to members of the U.S. Senate Judiciary Committee earlier today:

July 15, 2009

The Honorable Patrick J. Leahy
The Honorable Jeff Sessions
The Honorable Dianne Feinstein
The Honorable John Cornyn
The Honorable Tom Coburn
The Honorable Ron Wyden
The Honorable Russell D. Feingold
The Honorable Sheldon Whitehouse
The Honorable Benjamin L. Cardin
The Honorable Amy Klobuchar
The Honorable Edward E. Kaufman
The Honorable Richard J. Durbin
The Honorable Charles E. Grassley
The Honorable Lindsey Graham
The Honorable Herb Kohl
The Honorable Orrin G. Hatch
The Honorable Jon Kyl
The Honorable Arlen Specter
The Honorable Charles E. Schumer
The Honorable Al Franken
United States Senate
Washington, D.C. 20510

Dear Senator:

On behalf of the N.C. Property Rights Coalition and concerned property owners throughout North Carolina and the nation, I am writing to express our serious concerns regarding Judge Sonia Sotomayor’s nomination to the United States Supreme Court.

Private property rights are and have always been one of the cornerstones of our free society. Our Founding Fathers’ beliefs on this issue were so strong that they saw fit to enshrine property rights in the Bill of Rights.

Unfortunately, Judge Sotomayor’s record of upholding and honoring the framers’ intent regarding private property rights is suspect at best. To ensure that Judge Sotomayor’s position on the Court would not undermine the Constitutional right of Americans to own and control private property without fear of unjust government seizure, we ask that you exercise your proper role in Judge Sotomayor’s confirmation process by meticulously examining her background and prior rulings in property rights-related cases.

The Second Circuit’s 2006 decision in Didden v. Village of Port Chester is particularly troubling (Judge Sotomayor sat on the panel which issued the unsigned opinion in this case).  The Second Circuit’s opinion in Didden v. Village of Port Chester dramatically expanded the government’s authority to seize lands pursuant to eminent domain. The plaintiffs alleged that the local village violated their Fifth Amendment rights by engaging in a pretextual taking that directly benefitted a private party. Plaintiffs claimed that the beneficiary of that seizure had previously demanded compensation to prevent the seizure from taking place. The plaintiffs were landowners whose property partially overlapped with a redevelopment district designated by the town government, and the municipality had already designated a private company as the developer of that district. The landowners entered into negotiations with a pharmacy chain to build a pharmacy on their property. Shortly thereafter, the private developer for the redevelopment district met with the landowners and demanded a payment of $800,000 or a 50% interest in the contemplated project. According to the plaintiffs, the developer stated that if the landowners did not agree to his demands, he would begin condemnation proceedings, take the land, and develop a competing pharmacy chain on the same property. Two days after the landowners refused the developer’s demands, a condemnation proceeding was initiated.

Judge Sotomayor and her colleagues held that the landowners’ claims were time-barred. In dismissing the property owners’ suit as having been filed too late, Judge Sotomayor and her colleagues essentially held that the property owners had to have filed suit to prevent the extortion before it had even been attempted. The panel held that the plaintiffs’ claims were foreclosed by Kelo v. New London, a 2005 Supreme Court decision that expanded the ability of governments to condemn property pursuant to a broadly-defined “public purpose.” Although Kelo did expand the government’s authority to take private property, it did not give the government complete authority to do so. Instead, the Court said that a city “would no doubt be prohibited from taking . . . land for the purpose of conferring a private benefit on a particular private party . . . . Nor would [a city] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”

At the very least, the alleged facts presented a close question as to whether they fit within the Court’s statement that pretextual takings are not allowed. Judge Sotomayor’s panel, however, disposed of the plaintiffs’ arguments in one paragraph. The panel dealt with the claims that the developer extorted funds from the plaintiffs in one sentence, characterizing his threats as “voluntary attempts to resolve” the dispute between the parties.

Although it dismissed the case on procedural grounds, the Second Circuit also addressed the merits of the plaintiffs’ Fifth and Fourteenth Amendment claims.  It stated that “we agree with the district court that [the developer’s] voluntary attempt to resolve [the plaintiffs’] demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

The Second Circuit’s decision in Didden expanded the government’s ability to condemn property for public use even beyond that established by the Supreme Court’s decision in the now infamous Kelo v. New London case.  Despite weakening property rights protections by broadly defining “public use,” Kelo constrained the government’s ability “to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”  The circumstances underlying Didden, however, suggest that Port Chester’s rationale for condemning the plaintiff’s private property was very much a “pretext of a public purpose.”

We believe that the Second Circuit’s willingness to abolish nearly all restraints on the government’s condemnation power in Didden sets a dangerous precedent for future litigation and threatens the rights of property owners throughout America. We are concerned that, if Judge Sotomayor is confirmed to the Supreme Court, she will exercise a similarly dismissive approach to the protection of our Constitutionally guaranteed private property rights.

We ask you to carefully and thoroughly question Judge Sotomayor about her record on property rights in general and Didden v. Village of Port Chester in particular. Property rights are one of the cornerstones of our Republic; we fear that Judge Sotomayor’s confirmation to the U.S. Supreme Court could undermine this fundamental right. The American people deserve to know where Judge Sotomayor stands on this important issue.

Sincerely,

Kieran J. Shanahan, Chairman