Conn. Justice 'Apologizes' to Susette Kelo for Eminent-Domain Decision, But Still Feels He Ruled Correctly

It appears that it's not news anywhere but at the Hartford Courant, where "Little Pink House" author Jeff Benedict reported the development on Saturday, and at Reason.com (HT to commenter dscott), which linked to the Courant story earlier today. I suspect it won't get much coverage at other establishment press outlets.

The development is that one of the four Connecticut Supreme Court justices in the 4-3 majority which ruled against Susette Kelo and the New London, Connecticut eminent-domain holdouts, ultimately sending the case to the U.S. Supreme Court, which ruled 5-4 against the plaintiffs in Kelo vs. New London, has apologized -- quite emptily, as it turns out -- to Ms. Kelo, face to face:

... 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.

If you stopped reading there, you would walk away thinking that the judge made an unconditional apology. Nope, as Benedict learned when he began pre-publication follow-up with Judge Palmer, who responded as follows in a November 2010 "personal and confidential" (at the time) letter:

"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."

So the only reason he's sorry is that the promised development emanating from what five foolish U.S. Supreme Court justices at the time of the ruling asserted was a “carefully formulated … economic development plan” didn't come to pass.

Judge Palmer proved that he still doesn't get it in a mid-August interview with Benedict in his chambers, and at the same time exposed the fatal flaw in so much of what passes for jurisprudence:

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.

I'm sorry, Judge Palmer, that doesn't cut it. The primary question before your court was whether Connecticut's statute went beyond the Constitution's Fifth Amendment restriction of eminent domain to "public use" situations. It wasn't, or shouldn't have been, about what had been done in previous cases, while perhaps looking to the Constitution as an afterthought.

You blew the ruling, because even if New London somehow had concocted the most wonderful and "successful" plan on earth with gleaming new buildings all around, it still would not have involved a "public use," and still should never, ever have been allowed. Judges should not care at all whether statist proponents of eminent-domain expansion have been able to rack up 100, 500, or 1,000 "precedent-setting" cases in front of pliant judges invoking "public purpose" instead of "public use" while allowing property to be taken from private citizens and conveyed to other private citizens. The starting point should always be what the Founders wrote, and determining what the Founders meant. Then, and only then, should case law matter. In Kelo vs. New London, case law shouldn't have meant a darned thing. The Fifth Amendment's "public use" limitation could hardly be more clear.

This exposes the fundamental flaw of the legal system's overdependence on case law. Previous rulings which vary from what the Founders prescribed become the new de facto legal standards, while the importance of the Constitution's original words and the Founders' original intent continually diminish.

Judge Palmer isn't "sorry" in any beneficial sense, and his apology to Susette Kelo, while perhaps a nice surface gesture, is as substantively hollow as the day is long. Now that Ms. Kelo understands the judge's twisted "logic" as explained to Benedict in the Courant, the guess here is that she totally agrees.

That said, high-profile "apologies" often make news. So far this one hasn't. I doubt that it will. The establishment prefers statism, and to portray judges, especially leftist judges (Palmer is a Democrat, and Benedict really should have identified his party affiliation), as our infallible betters.

Cross-posted at BizzyBlog.com.