Having failed to gain momentum against Judge Sotomayor with discredited racial attacks on her record, conservatives are now misrepresenting her record on eminent domain. According to an editorial in today’s Washington Times:
Judge Sotomayor served as the senior judge on one 2006 case, Didden v. Village of Port Chester, which respected University of Chicago law professor Richard Epstein described as “about as naked an abuse of government power as could be imagined.” Her judicial panel’s ruling might be the worst violation of property rights ever approved by a federal appeals court.
If you believe Professor Epstein, a radical libertarian who thinks that the minimum wage and child labor laws are unconstitutional, the facts of the Didden case are troubling. Epstein claims that two developers sought approval to build a CVS Pharmacy, but were told by another private developer who was in league with local authorities that they must “[e]ither pay me $800,000 to build, give me a piece of the action, or I’ll have the village take the property.” When the CVS developers refused to pay this bribe, Epstein claims that the village took their land.But Epstein needs to get his facts straight.As a commentary in Forbes magazine explains “the facts of the case offer ample support for Sotomayor’s position.” The three developers in this case were caught in a legal battle over how land in a specially-designated redevelopment area should be used. According to Forbes, no one ever demanded a bribe from anyone — rather, one developer offered to settle the case for $800,000:
Wasser’s $800,000 offer came at a November 2003 meeting with Didden and his business partner Domenick Bologna. The attendees do not agree on what happened at that session, but Wasser’s account appears to be — at the very least — a plausible one. . . .
According to court documents, Wasser estimated that the winner of the dispute would make a $2 million profit but that “whoever would be responsible for completing the project should be given some credit and was entitled to more than a 50–50 split.” He said that whichever party proceeded with its drug store plans should pay the other $800,000, and he added that he was willing to take either end of the deal.In retrospect, Wasser’s offer appears to have been quite generous because he had strong reason to believe that he would win in court (as he ultimately did).
The CVS developers refusal of this settlement offer led to an impasse which halted both projects. Eventually, the village ended the impasse by using its eminent domain power to buy the CVS developers’ property.
But even if Epstein and the Washington Times were telling the truth about the alleged bribe, Sotomayor was still correct to rule against the CVS developers for a very basic reason; they filed their lawsuit too late. As even a cursory reading of Sotomayor’s decision reveals (link is to a long PDF, the decision appears on pages 36–39), the CVS developers learned that their property was subject to eminent domain in 1999, but they waited until 2004 to file suit — two years after the three year statute of limitations had expired.
So the CVS developers didn’t lose because Sotomayor is waging some kind of crusade against landowners, they lost because they apparently don’t understand how to use a calendar.
The Washington Times’ slam on Sotomayor has no basis in reality. Hopefully the next time they choose to attack her, they will find a more reliable source than Richard Epstein.