Earlier today, we posted Part I of our response to conservatives’ claims that Judge Sotomayor has a “bias against private property” — the screaming headline of a recent Washington Times editorial — an attack founded on unjustified criticism of the Second Circuit’s resolution of litigation involving the efforts of Port Chester, New York, to redevelop its blighted downtown and waterfront areas. In Part I, we demonstrated why the case of Bart Didden provides no support for conservatives’ claims. Here, in Part II, we examine the case of the other alleged Sotomayor property rights victim, William Brody, a case in which Judge Sotomayor in fact ruled in Brody’s favor.

Like Bart Didden, William Brody was another commercial property owner within the Port Chester redevelopment zone. Brody supported the redevelopment project as a whole, but he objected to the inclusion of his property in the redevelopment area and refused offers by G & S to purchase his property. Although New York law did not at that time require Port Chester to provide notice to individual property owners of its redevelopment and condemnation plans but only to publish notice in a local paper, Port Chester nonetheless did send notice to individual property owners, and sent Brody by certified mail a notice of its June 1999 hearing to consider the public purpose of the redevelopment project. Brody’s wife signed for this mailing, but Brody claimed he did not recall receiving it. Nonetheless, he did attend the public hearing and spoke in opposition to the condemnation of his property. (New York has since amended its laws to require the giving of individualized notice to property owners.)

In 2000, after Port Chester had condemned his property, Brody brought a lawsuit in federal court claiming that his property had been taken without notice and an opportunity to be heard, in violation of the Due Process Clause. The District Court rejected Brody’s claims, holding that notice by publication in a newspaper that a hearing was to be held on the project was sufficient for purposes of due process, and that personal service on individual property owners was not required. The court rejected Brody’s additional claim that due process required property owners to be informed that they would have only 30 days under state law to object to Port Chester’s public purpose findings, stating that “[t]he landowner is obligated to keep abreast of statutes and proceedings regarding his property.”

Brody appealed, and Judge Sotomayor joined a unanimous panel decision of the Second Circuit in Brody’s favor, reversing the District Court as to both of these harsh rulings. Far from being hostile to property owners, the Second Circuit’s decision is highly protective of them. That decision, written by George W. Bush appointee Richard Wesley and joined not only by Judge Sotomayor but also by Judge Ralph Winter, beloved by conservatives, soundly rejected Port Chester’s argument that a “public use” determination was “essentially a legislative decision not subject to the requirements of due process,” and underscored the critical role of the judiciary in “setting the outer boundaries of public use [as] an important constitutional limitation.” Accordingly, the Second Circuit held that due process required that individual property owners be given notice of the public purpose hearing, and also that they be informed of the 30-day period in which to challenge a public purpose finding.

The Institute for Justice, which represented Brody, praised the Second Circuit’s ruling as a victory for property owners:
The 2nd Circuit confirmed what we’ve been saying all along: New York’s notice procedure was utterly inadequate. The Court confirmed that people do indeed have the right to challenge whether the government can take their property, and government agencies can’t hide the ball to deprive owners of that right . . . [H]ome and business owners can take comfort and inspiration in the fact that even in the face of terrible odds and tenacious adversaries, the rights of property owners will finally be vindicated.
Although the Washington Times grudgingly acknowledges that Judge Sotomayor did “join[] in a ruling in favor of [Brody,]” it goes on to complain that she “refus[ed] to order the remedy of returning the property to him.” Once again, the Washington Times is completely off base, as the issue of remedy was not even before the Second Circuit. To the contrary, there still remained for resolution in the district court the factual issue of whether Brody had received actual notice of the condemnation plan and his right to sue, which would have obviated any due process violation and his right to any relief at all. (The Second Circuit’s ruling held that, as a matter of law, Brody had a due process right to notice; the case was sent back to the district court to determine whether he had actually received the notice to which he was legally entitled.) And even in the absence of actual notice, the relief due would be dependent on the damages suffered, another issue needing factual resolution in a trial court. Apparently, the Washington Times would have had Judge Sotomayor and her colleagues put the judicial remedy cart before the judicial liability and damages horse (and, no doubt, would then have criticized them for overstepping their role as appellate judges).

Like the Didden case, the case of William Brody simply does not justify conservatives’ claims that Judge Sotomayor has a “bias against private property.” To the contrary, it demonstrates an enormous respect for the constitutional requirement of due process of law, including as a protection for the rights of private property owners.