Too Soon Old And Too Late Smart: A Jurist Offers His Kelo Mea Culpa

Comes word from Jeff Benedict, author of the Kelo book Little Pink House, via his blog and a story in the Hartford Courant, that one of the Connecticut Supreme Court justices who voted in favor of the government approached Mrs. Kelo last year at an event and apologized for ruling against her. After she told her story, he came up and said, "[h]ad I known all of what you just told us, I would have voted differently." Recall that the Connecticut Supreme Court ruled 5-4 that the "economic development" taking of the homes of Mrs. Kelo and her neighbors passed muster under the Connecticut and U.S. Constitutions, overturning the trial court's post-trial judgment that the takings were invalid, so a single vote would have changed the ruling. The publisher wanted to add this as a new epilogue to the forthcoming paperback edition of LPH, so Benedict wrote the justice to give him a heads-up. The justice responded: "Those comments 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." Before we get into a love-fest for the latest judicial mea culpa in this case (he's not the first jurist to offer a 20/20 hindsight in Kelo) let's remember what the Connecticut Supreme Court majority held: We conclude that economic development projects created and implemented pursuant to chapter 132 that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, satisfy the public use clauses of the state and federal constitutions. Kelo v. City of New London, 843 A.2d 500, 520 (Conn. 2004) (footnote omitted). And just what was the "economic development project" that the justices considered and concluded would "create new jobs" and have other sorts of rainbows-and-unicorns results? The court relied on a legislative determination that eminent domain was necessary to acquire land for redevelopment, a determination it reviewed under both federal and state law with the "rational basis" test. See id. at 521-22. The majority concluded that Connecticut (like the federal courts) have "long taken a flexible approach to construction of hte Connecticut public use clause," id. at 522, and deferred to the legislature's determination of public use." Id. at 523 ("Moreover, the court in Olmstead laid the foundation for our deferential approach to legislative declarations of public use…"). Public "use" of the property taken is not the measure of the public use of the taking, "but rather, the right of the public to receive and enjoy its benefit." Id. at 525 (quoting Katz v. Brandon, 245 A.2d 579, 586 (Conn. 1968)). The majority express cited with approval the U.S. Supreme Court's opinions in Berman v. Parker, 348 U.S. 26 (1954) (where the Court held that the legislature's pronouncement of public interest — and thus public use — was "well-nigh conclusive"), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a case in which the Court "noted that whether the act is successful in solving Hawaii's land problems is irrelevant to whether it was passed in furtherance of a valid public purpose." Kelo, 843 A.2d at 527 n.38. Having concluded that the success vel non of the legislative plan was "irrelevant," the Connecticut Supreme Court majority determined that "economic development" takings were not categorically prohibited: Under this broad and deferential constitutional rubric, we conclude that an economic development plan that the appropriate legislative authority rationally has determined will promote significant municipal economic development, constitutes a valid public use for the exercise of the eminent domain power under both the federal and Connecticut constitutions. Id. at 528. The court concluded: Accordingly, we find them persuasive, and we conclude that economic development plans that the appropriate legislative authority rationally has determined will promote municipal economic development by creating new jobs, increasing tax and other revenues, and otherwise revitalizing distressed urban areas, constitute a valid public use for the exercise of the eminent domain power under either the state or federal constitution. Id. at 531. The court rejected the property owners' arguments that the primary beneficiaries of the condemnations would be private entities, and that any public benefit was incidental and insignificant. Id. at 536. The court refused to evaluate the plan on a parcel-specific basis, and instead looked at the development plan as a whole. The court approved of the overall plan, and refused to balance the "social cost" of the plan against the supposed public benefits: We take the opportunity, however, to state that the trial court's social costs analysis was an improper, but in this case, harmless, supplantation of a decision-making function better suited to legislative bodies. Although the courts remain charged with determining whether the facts and circumstances of the particular case reveal that the primary pur-pose of the taking is to benefit the public, the balancing of the benefits and social costs of a particular project is uniquely a legislative function. Id. at 541 n. 58. The court concluded that the plan was sufficient because "the trial court correctly identified the ample public benefits that the development plan, once implemented, was projected to provide." Id. at 542. The majority expressly did not question whether these "projections" were accurate or truly predictive, noting that it "[a]ssum[ed] them to be correct," and that the courts review the legislature's factual assumptions by asking whether they "rationally may have considered to be true by the government decisionmaker." Id. at 542 & n. 60. This is a long way from asking whether the plan would really work, of course, and is predicated on the assumption that it would, with a property owner's only chance a showing that the legislature was wholly irrational when it believed it might work, truly an impossible standard of review. The point of us quoting these passages from the majority opinion is that it did not matter to the court whether New London's development plan would "materialize." Thus, even if the property owners had been able to show that the plan likely would fail and that the area had a high chance of becoming "barren and wholly undeveloped," the rational basis standard of review endorsed by the Connecticut Supreme Court majority meant that these factual predictions would be meaningless unless the city's predictions of success were utterly impossible or completely irrational, which they were not. So while it's nice to see one of the justices who endorsed that rationale make nice and say sorry, it seems to be a bit of historical revisionism to suggest that if only he'd known the future accurately he would have voted differently (wouldn't we all, Your Honor, wouldn't we all), when he expressly held that predictions of success or failure of the plan were legally irrelevant. The rational basis standard of review he applied to the case makes his present assertion that he he didn't know of the failure of the plan because those facts "were not yet in existence," itself pointless. How about instead of these heartfelt — but legally meaningless — post hoc gestures, courts adopt a standard of review that would allow consideration of evidence about whether redevelopment plans such an New London's really have a genuine chance of working? Now that would be a development worth heralding.

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