Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Sotomayor ‘Unpredictable’? Only If You Don’t Read the Court Decisions

One of the things are media are not good at is covering nuance. Once you add a couple conjunctions and independent clauses to a sentence, people’s eyes glaze over. There’s no better example of this than “mainstream media” reporting of court cases. Take this article from The New York Times about Sonia Sotomayor’s “unpredictable” legal opinions:

In a 2006 property rights case, she upheld a town’s effort to take private property for redevelopment. But in 2002, she supported property rights in a case involving impounded cars.

With only that information, it sure sounds like she’s crazy. But appellate court opinions regularly exceed 50 pages for a reason: there’s a lot to talk about, there are details to pay attention to, and the distinctions being made are incredibly fine — finer than a 750-word newspaper article can go into, either by design (it’s only 750 words, after all) or accident (does the person writing the story know about the law?).

Well, it’s a good thing they’re hopeless, because that gives me something to write about.

The “2006 property rights case,” Didden v. Village of Port Chester, came directly after the Supreme Court’s abominable 2005 decision in Kelo v. New London, in which the court’s liberal wing was actually the stupid group and where Justice Clarence Thomas wrote something worthy of praise. (I wrote about this case back in 2005.) First of all, the 2006 opinion isn’t even an opinion! It is properly called an “order.” Second, Sotomayor was part of the three-judge panel that heard the case, but that means nothing. The order, since it was nothing more than an order from the court, was signed by the clerk and not by any individual judge. Guilt by association, perhaps?

But getting to the substantive issue, the circuit court would have been hard-pressed to make a ruling that directly contradicted a Supreme Court decision. The case would have been appealed, and the Supreme Court would have decided the same way again. Blame the Supreme Court for such a terrible decision, not the Second Circuit for upholding it (this is the doctrine of stare decisis that the Senate Judiciary Committee brought up so often during the Roberts confirmation).

The Wall Street Journal Law Blog published an article titled “Will Didden v. Port Chester Be Judge Sotomayor’s Kelo Decision?” The short answer is “Yes, it will,” but only because, as a circuit court judge, Sotomayor is bound — again, by stare decisis — to uphold a decision that is both prior and from a higher court. What do conservatives want? If she had decided to overturn the precedent set by Kelo, then that would have been true “judicial activism,” to use the Right’s own empty language. But now they’re upset that she didn’t overturn the decision? Perhaps if she had been a member of the Supreme Court, she would have had a different opinion, but as a member of the Second Circuit, she was required to uphold the Supreme Court’s decision, something that the Second Circuit explicitly stated in its order: “the recent Supreme Court decision in Kelo v. City of New London [...] obliges us to conclude that [plaintiffs] have articulated no basis upon which relief can be granted.” But then again, the entire issue is moot because (1) there was no opinion issued; and (2) Sotomayor cannot be given exclusive ownership of the order, no matter how much her critics (or even misunderstanding journalists) would like to give it to her.

The 2002 case “involving impounded cars” — Krimstock v. Kelly – was another U.S. Second Circuit Court opinion of a three-judge panel, but at least an opinion was issued for this one. At issue was New York City’s authority to seize property used in the commission of a crime; to whit, vehicles driven by people arrested for DWI. Felony complaints required that the accused be afforded a “prompt” hearing to determine the legitimacy of the seizure; misdemeanors, which included DWI charges, had no such requirement. DWI defendants could challenge the seizure only after the city sought something called civil forfeiture, which, in the case of the six plaintiffs in this case, ranged from three months to a year after their DWI arrests. But even then the vehicle’s return is not ensured:

Upon seizing the vehicle, the police issue the arrestee a voucher for the vehicle and any other seized property. If a claimant makes a formal demand for the return of the vehicle, the City has twenty-five days in which either to initiate a civil forfeiture proceeding under the City’s Administrative Code or to release the vehicle. Even if the City chooses to commence a civil forfeiture proceeding within the twenty-five day period, however, the proceeding is commonly stayed until the criminal proceeding concludes. In a forfeiture proceeding, the City “bear[s] the burden of proving by a preponderance of the evidence that [it] is legally justified to continue to retain the property.” [Citations removed]

Sotomayor and the two other judges who heard the case found that this policy was ridiculous because an individual should not be denied the use of his or her property while a case is pending, especially given that “[a] car or truck is often central to a person’s livelihood or daily activities,” and given that “such possession may ultimately prove improper.”

Makes sense to me. Especially since some of the plaintiffs were making car payments on a vehicle they couldn’t use because it was impounded! Sotomayor, writing the opinion, acknowledged the legitimacy of seizing the vehicle in the first place (upon arrest for DWI), but then wondered why the police needed to continue to hold the vehicle pending trial. The court’s ultimate concern in this case was that there was no pre-emptive method for the accused to contest the continued holding of the vehicle, especially when it could take months or years for it to be returned.

The moral? Don’t believe what you read about court cases. As I’ve demonstrated here, two seemingly conflicting rulings on a “2002 property case” and a “2006 property case” turn out not to be so conflicting, or even rulings. Judge Sotomayor is not only smart, but eminently qualified, and makes her rulings based on the law, while giving the benefit of the doubt — where the law permits such benefit to be given! — to plaintiffs. What good does it do to err on the side of harshness, as Justices Roberts and Scalia do?