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"Why should people get to see plans? This isn't a public project."
Bruce Ratner in Crain's Nov. 8, 2009

With Kelo Apology, Judicial Contrition and Cowardice Are Displayed

In 2010 and 2005 the author of the US Supreme Court's 5-4 ruling in the Kelo v. City of New London eminent domain case, Justice John Paul Stevens, expressed unease about his ruling in favor of Connecticuts's condemnors, suggesting that he was handcuffed by "settled" law even though he disagreed with the policy at play. He did not regret his decision but, according to the NY Times, addressing a bar association meeting in Las Vegas in 2005, he said:

''...I was convinced that the law compelled a result that I would have opposed if I were a legislator.''

...the eminent domain [Kelo] case that became the term's most controversial decision, he said that his majority opinion that upheld the government's ''taking'' of private homes for a commercial development in New London, Conn., brought about a result ''entirely divorced from my judgment concerning the wisdom of the program'' that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that ''the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.'' But he said that the planned development fit the definition of ''public use'' that, in his view, the Constitution permitted for the exercise of eminent domain.

Now comes Justice Richard N. Palmer of Connecticut's Supreme Court—the court responsible, in a 4-3 ruling, for propelling the plaintiffs' case up to the US Supreme Court—giving an apology to Susette Kelo for his majority vote, as witnessed by "Little Pink House" author Jeff Benedict. Benedict's account of the apology, and his communication with Justice Palmer about publishing the account, reveals some very disturbing cognitive dissonance (and cowardice) not just in Palmer's mind, but in the general judicial mind. Palmer's "sorry" is followed by a sorry explanation of what he meant by "sorry."

AApparently his contrition isn't strong enough to convince himself that he should seek to overture his own ruling (something that Michigan's high court has done when it came to understand its own misguided 23-year old Poletown eminent domain ruling and overturned it—"settled law"? we think not). Instead he claims to be sorry because he didn't know the personal hardship that the New London homeowners had gone through and he couldn't have possibly known that the New London/Pfizer development plan would end up as a barren wasteland and a dumping ground for Hurricane Irene refuse. Even if he had known the hardship or the eventual outcome of the plan, rest assured this would not have changed his ruling because of "settled" law.

Benedict describes the apology and his further interaction with the Connecticut Justice in the Hartford Courant:

Apology Adds An Epilogue To Kelo Case
Supreme Court Justice's Startling Apology Adds Human Context To Tough Ruling

If a state Supreme Court judge approaches a journalist at a private dinner and says something newsworthy about an important decision, is the journalist free to publish the statement?

I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court's infamous 5-4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book "Little Pink House."

Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4-3 majority against Susette and her neighbors. Facing me, he said: "Had I known all of what you just told us, I would have voted differently."

I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.

Then Justice Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words "I'm sorry."

It was all she could do to whisper the words: "Thank you."

Then Justice Palmer let go of her hand and walked off.

Benedict then goes through his effort to fairly disclose to Justice Plamer what he was planning to write about this encounter first in the paperback version of his book, but what later turned out to be this Courant article. This effort led to some revealing aspects of the judicial mind and, frankly, some rather inconsistent thinking. The article continues:
I didn't expect a response. And for weeks none came. Then the unexpected happened. Justice Palmer sent me a "personal and confidential" letter dated Nov. 8, 2010. In it he didn't dispute my account. Nor did he ask me not to publish. Rather, he provided some important context.

"Those comments," he wrote, "were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." He later added that he could not know of those facts "because they were not yet in existence."

I had never received a confidential letter from a sitting Supreme Court judge. (The letter is quoted here with Justice Palmer's permission.)

In response, I added an 87-word footnote to the text, accommodating Justice Palmer's request for context.

With my consent, The Courant called Justice Palmer to say it was considering publishing my account. That prompted Justice Palmer to call me on Aug. 2. It marked the first time we had actually spoken since our initial encounter at the dinner more than a year earlier.

He expressed one serious concern. He didn't want readers to get the misimpression that he would allow sympathy or emotion to sway his vote on a legal matter.

I understood. Although he made no attempt to persuade me to alter what I had written, I suggested that I'd write a fresh piece for The Courant that would include further input from him. I also offered to show him what I wrote before it was published.

He agreed and a couple of weeks later, I visited him in his chambers. He was gracious enough to allow my four children (ages 5, 9, 11 and 15) to come along for a private tour of the court. Justice Palmer spent almost two hours with us. It was like an advanced civics course. He even let my kids take turns wearing his robe and sitting in the justice's chairs in the court.

After our meeting I gave him nine written questions. A week later he responded in writing. Here is a sampling:

Q: What were your impressions after meeting Susette Kelo at last year's dinner honoring the Supreme Court?

A: The members of my court … almost never get to meet and observe the parties to its cases. Listening to your talk, and meeting Susette Kelo, gave me … the opportunity to hear firsthand about certain personal, human aspects of the case that we otherwise would not have known about. … While it's almost certainly best that we do not have that opportunity in advance of deciding the case — we do not want to be swayed by personal reactions unrelated to the law of the case — the chance to learn more about the plaintiff's unique situation and perspective was both educational and absorbing.

Q: Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?

A: I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent. Whether the Kelo case has led to good statutory law is not a question for me or my court; so long as that law is constitutional, its merits are beyond the scope of our authority. Of course, judges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law's constitutionality.

Some journalists may cringe at the idea of giving the subject of a story editorial input. But as an author I do it often. I find it improves accuracy. Consider that when I showed this piece to Justice Palmer, he e-mailed me a clarification on his apology to Susette. "I do recall telling Susette I was sorry," he wrote. "But I was expressing my regret for what she had gone through. I would not want the reader to think that I was apologizing for my vote, which I was not doing."

Posted: 9.20.11
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Eminent Domain Case
Goldstein et al v. ESDC
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November 24, 2009
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