NY Times article on Sotomayor property rights case tells only half the story

The New York Times left out key facts in reporting on a 2nd Circuit ruling that Sonia Sotomayor joined in a case involving the Fifth Amendment's Takings Clause, resulting in a significantly one-sided article that bolstered critics of the ruling.

In a June 15 article citing criticism of a decision by Supreme Court nominee Sonia Sotomayor and two other 2nd U.S. Circuit Court of Appeals judges to throw out a lawsuit alleging violation of due process and the Fifth Amendment's Takings Clause, New York Times reporter Adam Liptak left out key facts, resulting in a significantly one-sided article bolstering the contention by critics of the decision that, in the words of a law professor cited in the article, it was “the worst federal court takings decision” since the Supreme Court's ruling in Kelo v. City of New London.

In the case of Didden v. Village of Port Chester, the 2nd Circuit upheld the lower court's finding for the defendant, holding that the suit was filed too late and writing that even if the statute of limitations did not bar the suit, the Supreme Court's decision in Kelo would have prevented the court from finding for the plaintiff. Although the court made clear it was deciding the case based on the statute of limitations, Liptak characterized the decision as “applying and extending Kelo” -- without providing any basis for asserting that the decision represented an “extension” of Kelo.

Liptak presented the facts as follows:

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden's property so that Mr. Wasser's company could put a Walgreen's in the same place.

“Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn't going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”

But in reporting on the statute of limitations issue, Liptak reported only criticism of the decision and not the court's rationale. Liptak wrote:

The brief decision in Didden made two points. First, it said Mr. Didden had filed his suit too late. The village had announced the redevelopment plan in 1999, and Mr. Didden did not sue until 2004. His claim, the court said, was therefore barred by a three-year statute of limitations.

That was a curious ruling, Professor Epstein said, because it required Mr. Didden to sue over his claim of extortion before it happened.

Liptak omitted entirely the court's justification for its ruling that the statute of limitations clock started running in 1999, and not, as Epstein asserted, at the time of the alleged extortion -- which the district court ruled, and the 2nd Circuit agreed, had not occurred. The 2nd Circuit held:

Under federal law “a cause of action generally accrues 'when the plaintiff knows or has reason to know of the injury that is the basis of the action.' ” M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir.2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir.1993)). Appellants had reason to know of the basis of their injury when the Board announced its public purpose finding on July 14, 1999.

The district court opinion makes clear that the plaintiff had reason to know at the time about the board's decision that ultimately gave rise to the condemnation of his property:

On July 14, 1999, following a public hearing, the Port Chester Board of Trustees (the “Board”) adopted a resolution (the “1999 Findings”) (1) making a Finding of public purpose for condemnation purposes under Article 2 of the New York State Eminent Domain Procedure Law and (2) approving the LADA and the designation of G&S as “the qualified and eligible redeveloper” for the Project (Affidavit of Greg Wasser P 12 Exh. A.)


Although [New York law] does not require individual notice to the affected property holders, Defendants have attached a copy of the notice of public hearing and copies of signed receipts acknowledging that Plaintiffs received that notice. (Wasser Aff. P 12 Exhs. D & E.) The EDPL allowed affected property owners 30 days after July 14, 1999 to appeal the Board's findings. EDPL § 207. Plaintiffs took no such appeal.

But Liptak cited only Epstein's criticism and not what the 2nd Circuit panel said was its application of federal law.

Further, in contrasting Sotomayor's actions in Didden with the views on Kelo of two prominent Republican appointees to the Supreme Court -- Justices John Roberts and Samuel Alito -- Liptak failed to report that the other two judges in the unanimous decision are Republican appointees. Liptak named them -- Judges Reena Raggi and Peter W. Hall -- but not who appointed them to the 2nd Circuit: President George W. Bush.

Finally, Liptak quoted only two legal experts on the Didden case -- professors Ilya Somin and Richard A. Epstein -- both sharp critics of the 2nd Circuit decision and both signatories to a Supreme Court amicus brief on behalf of the plaintiffs.