Sotomayor on Property Rights

      Sotomayor on Property Rights

      July 30th, 2009

      Guest Contribution by Rachel Beach

      Judge Sonya Sotomayor may be sailing through the senate hearings given her highly qualified track record, a White House and Senate majority in her favor, and appeal as the first Latina judge, but one might find some relief in the expression of a few well-placed reservations. In paradox to her background of civil rights service and concern for the constitutional protections afforded to all citizens, Sotomayor's track record on property rights should register concern among the underprivileged and politically weak. Her highly controversial decision in the 2006 case of Didden v. Village of Port Chester ruled against land owners Bart Didden and Dominick Bologna whose property was condemned after they refused to pay a local developer's extortion demands. Sotomayor's decision went beyond the procedural grounds of the Supreme Court's 2005 decision in Kelo v. City of New London, Connecticut, allowing the expropriation of private property for the benefit of other private interests.

      Should Sotomayor reach the Supreme Court, it appears that expropriation and extortion for personal gain - if the party in question is politically-connected and affluent - can hope for federal backing. If a developer can convince the city to rezone an area for redevelopment, and has legal ground to request condemnation of private property for his own gain then the disenfranchised should have great reason to fear her decisions. Sotomayor's decision exacerbates problems of the insecurity of property, and those whose property is most likely to be expropriated inhabit the lowest strata of American renters and home-owners: tenants in the ghettos. They suffer from semi-"unreal estate".

      Here is the account of a lady who went from poor tenant to homeless to middle-class lady in Washington D.C. after struggling with the mayor's office for years to gain the rights to purchase the condemned apartment she was renting. Deborah was once one of those who inhabited "unreal estate". Her's is one of the rare stories of the poor successfully fighting for their rights (using the right-of-first-refusal under D.C. property laws regarding tenants) and gaining ownership. However, Sotomayer's ruling would make the struggles of homeowners like Deborah more difficult. The logic of the ruling suggests that developers have the power to deny rights to tenants, not for public gain, but for the private gain of the developer over tenants. Granted, we do not know all the details of the ruling or the case, but as the most probable soon-to-be Justice of the Supreme Court, Sotomayor's decision seems rather discouraging,.

      The current economic crisis is a property right issues (i.e. an unstable valuation of the real estate market), but a clear and established property right system especially for private individuals can be a way out of this current mess and prevents further crisis. Like in the case of Deborah, ownership of property motivates investment and entrepreneurial ingenuity which is much needed in today's economy. Sotomayer's ruling is indeed a red flag to such success stories as that of Deborah's.