This is the stuff of Hollywood. They should make a movie out of this (oh wait).
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.
But takes it back!
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….”
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.
Amazing. Courts defer to the facts of the government, and those facts turn out to be wrong. Justice Kennedy’s blah concurrence about the importance of development plans is rubbish.
This dissent from the Connecticut Supreme Court (H/T Ilya Somin) is on point about burdens (burdens, where did you hear about that before?, social cost?)
In my view, the development plan as a whole cannot be considered apart from the condemnations because the constitutionality of condemnations undertaken for the purpose of private economic development depends not only on the professed goals of the development plan, but also on the prospect of their achievement. Accordingly, the taking party must assume the burden of proving, by clear and convincing evidence, that the anticipated public benefit will be realized. The determination of whether the taking party has met this burden of proof involves an independent evaluation of the evidence by the court, with no deference granted to the local legislative authority. In the present case, the evidence fails to establish that the foregoing burden has been met….
The record contains scant evidence to suggest that the predicted public benefit will be realized with any reasonable certainty. To the contrary, the evidence establishes that, at the time of the takings, there was no signed agreement to develop the properties, the economic climate was poor and the development plan contained no conditions pertaining to future development agreements that would ensure achievement of the intended public benefit if development were to occur.
Here, the state bears the burden to justify its safety cost (seizing the property to provide for economic development of the community), rather than the individual (Kelo) having the burden to justify her libety costs (not giving up her land and creating hold-out problems). The dissent is more worried about safety costs, the majority more worried about liberty costs. BTW, Judging the Constitutionality of Social Cost is now on SSRN.