As we blogged about earlier this week here and here, Supreme Court nominee Sonia Sotomayor has come under baseless criticism from property rights advocates that she has, in the words of the Washington Times, a “bias against private property.” As we discussed, the attacks stem from the Second Circuit’s resolution of two cases growing out of successful efforts by the Village of Port Chester, New York, to redevelop its blighted downtown and waterfront areas through the use of eminent domain.

One of those cases was brought by a commercial developer, William Brody, whose property was taken as part of the redevelopment project. As set out in greater detail in our earlier post, Brody claimed that his constitutional right to due process had been violated because New York law at that time did not require Port Chester to provide him with individualized notice of a Village hearing to consider the public purpose of the redevelopment project, a purpose necessary to justify the exercise of eminent domain to take his property. He also claimed that due process entitled him to notice that he would have only 30 days to challenge the Village’s finding of a public purpose for the redevelopment.

Yesterday, the Institute for Justice, which represents William Brody, put out a press release announcing that Brody and Port Chester had entered into a settlement agreement ending Brody’s dispute with the Village. The release states that Brody has been “vindicated in [his] long-running eminent domain battle,” and notes a decision in 2008 by United States District Judge Harold Baer, Jr. “finding that the condemnation violated Brody’s rights to due process.”

Well, that’s not exactly the whole story. You see, when Brody filed his lawsuit claiming that New York law violated his constitutional right to due process, it was this very same Judge Baer who ruled against him. According to Judge Baer, due process did not require property owners to be given individualized notice of the public purpose hearing — notice by publication in a newspaper was sufficient — nor did due process require property owners to be informed that they would have only 30 days under state law to object to Port Chester’s public purpose findings. According to Judge Baer, “[t]he landowner is obligated to keep abreast of statutes and proceedings regarding his property.”

Brody appealed this harsh ruling to the Second Circuit, where a unanimous three-judge panel, including Judge Sotomayor, overturned Judge Baer’s decision and ruled in Brody’s favor. Agreeing with Brody, 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.

Having determined that Brody was entitled to notice as a matter of law, the Court of Appeals sent the case back to the District Court to determine whether Brody had actually received the notice to which he was legally entitled, and whether Brody was entitled to an award of damages. Judge Baer found that Brody had not received the actual notice due him, but held that the violation of his due process rights did not cause Brody any actual injury, and thus awarded Brody only $2.00 in nominal damages. According to the Institute for Justice, the settlement announced yesterday includes payment not only of the $2.00 but also of “an additional sum for the loss of [Brody’s] due process rights and a portion of the attorneys’ fees in the case.” A local paper reports that the total settlement amount is $475,002.

In announcing the settlement, Chip Mellor, the President of the Institute for Justice, stated that
If constitutional rights are going to mean anything, people have to have a meaningful opportunity to challenge the government’s actions in court. This litigation will go a long way toward making sure that future victims of eminent domain receive exactly that opportunity.
Back in 2005, when Judge Sotomayor and the others on the Second Circuit panel ruled in Brody’s favor on his due process claims, the Institute for Justice was quick to issue a press release praising their ruling as a victory for property owners. Yet yesterday’s release makes no mention of the Second Circuit at all nor the critical role that its ruling played. Might this have anything to do with Judge Sotomayor’s nomination to the Supreme Court and the charges that she is hostile to property rights, charges belied by the Brody case itself?

We don’t know. In any event, William Brody got two bucks from Judge Baer. He got his due process rights vindicated by Judge Sotomayor and her Second Circuit colleagues.