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Thursday, September 22, 2011

Justice Palmer's apology to Susette Kelo versus Justice Kennedy's Kelo concurrence: What's the problem that the "public use" doctrine is trying to solve?

It is interesting news that the justice who cast the deciding vote against Susette Kelo on the Connecticut Supreme Court has publicly apologized for his decision. "Had I known all of what you just told us, I would have voted differently," Justice Palmer told a tearful Susette Kelo. But it is (to me) just as interesting that Justice Palmer's apology reveals an incoherence at the heart of the "public use" doctrine that Justice Palmer regrets not having deployed.

What exactly did Susette Kelo tell the justice? Only what I tell my students in my land-use class and what everyone now knows -- that "the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." The problem with the New London Development Corporation's condemnation of Kelo's house, on Justice Palmer's account,is that the New London Development Corporation did not have a reliable plan for disposing of the property after they acquired it, because the NLDC had not pinpointed a developer firmly and financially committed to improving the land after assembly. (The New London Development Corporation has put out a new RFP last May: I have no idea whether any developer bit).

Here's the confusion in "public use" doctrine revealed by Justice Palmer's apology: The facts that make Justice Palmer regret his vote -- the lack of a reliable development plan -- are precisely the facts that induced Justice Kennedy to defend his vote in his Kelo concurrence. Recall that Justice Kennedy concurred in Kelo on the ground that, because "[t]he identity of most of the private beneficiaries were unknown at the time the city formulated its plans," the condemnation could not have had the primary motivation of benefiting a specific private interest.

So what is the problem that the "public use" doctrine is trying to solve -- governmental corruption or governmental stupidity? It cannot solve both simultaneously. If the doctrine insists (as Justice Palmer suggests) that the condemnor have a specific and reliable development plan in place before condemnation -- a position being urged incidentally by the opponents of New York City's Willets Point condemnation -- then condemnors will probably have to choose a specific private beneficiary before the condemnation takes place, risking private corruption. If the doctrine insists (as Justice Kennedy suggests) that condemnations be pure of any taint of private interests, then there will be a greater risk of land assemblies' going forward without anyone's ever improving the assembled land.

Does such a fundamental dilemma at the heart of the "public use" doctrine make the doctrine's revival a hopeless cause?

Posted by Rick Hills on September 22, 2011 at 05:59 AM | Permalink


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The article has this:

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."

As to the need of a plan, that might be an important matter of due process before property can be seized, but not exactly sure how this is how the question of "public" use should be applied. That might apply to a plan to seize a home for a courthouse or something. It might never be built because of bad planning. It still would be "public" use.

Your discussion of Kennedy's position etc. sounds on point.

Posted by: Joe | Sep 22, 2011 11:14:29 AM

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