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Appellate judge's recusal may be good news for AY eminent domain plaintiffs

Though they didn't say so explicitly, plaintiffs in the Atlantic Yards eminent domain case had to be pleased to learn that U.S. District Judge Edward Korman, the most skeptical member of a three-judge panel who last October 9 heard the appeal after the case had been dismissed, recused himself from the case.

Develop Don't Destroy Brooklyn (DDDB), which organized the lawsuit and whose spokesman, Daniel Goldstein, is lead plaintiff, issued a press release yesterday stating that Korman had recused himself. Though no formal reason was stated, Korman did in court offhandedly mention that he'd received an Atlantic Yards mailer “some years ago” and responded in the affirmative.

(It’s not clear what mailing he got, but I wrote that it could have been this May 2004 flier, and DDDB assumes as much in its press release, noting that it's believed that respondents got a tote bag and a voucher for two Nets tickets. Click to enlarge.)

Two judges divided?

DDDB's press release stated, "Pursuant to the rules of the Court, the two remaining members of the three-judge panel may request a replacement judge at their discretion, but must request a replacement judge if they do not agree on how to decide the appeal."

Does that mean that the remaining judges, Robert A. Katzmann and Debra Ann Livingston, are divided? We don't know.

Plaintiffs' attorney Matthew Brinckerhoff told me, "After the recusal, the two remaining judges could have decided the appeal on their own without a replacement provided they both agreed on the disposition and were not otherwise inclined to ask for a replacement judge."

That leaves open the option that they sought a replacement judge for reasons of legitimacy rather than disagreement. Indeed, Brinckerhoff in the press release said the addition was "indicative of the integrity of this court and a sign of the seriousness with which the court is addressing these issues."

New oral argument?

Korman has been replaced on the panel by Chief Judge Dennis Jacobs. The plaintiffs last week asked for a new oral argument before the reconstituted panel, given that Jacobs wasn't present at the previous hearing. (Presumably, he does have access to the transcript.)

Brinckerhoff said he couldn't estimate the likelihood of a new argument. "Because replacements are rare, and a new argument is discretionary and it logistically requires the three judges to assemble for a special session, it's basically impossible to handicap, but I suspect it will be primarily Chief Judge Jacobs' call as the new member (and the Chief)," he said.
(Update: a new argument was denied.)

Korman's skepticism

"I have no reason to doubt that Judge Korman would have decided our appeal fairly and impartially, notwithstanding any issues created by his response to Ratner's propaganda campaign," Brinckerhoff said in the press release, echoing comments he made after the court hearing in October.

Still, it was clear that Korman seemed skeptical of the plaintiffs' case, and he's a Brooklynite who remembers the Dodgers. Then again, skepticism from the bench, as exemplified by state Supreme Court Justice Joan Madden's demeanor in court last May on the lawsuit challenging the environmental review, does not necessarily translate into a result, as Madden's decision last Friday showed.

But it's a good bet that, sometime after Korman's rather offhand and last-minute statement from the bench in court last October, the issue of what exactly he'd done--and how it appeared--became a lot clearer to the judge and his colleagues.


  1. alas, this may instead mean that they didn't want an appeal based on an obvious conflict of interest to slow down the process. i.e., they're laying a sounder foundation for shutting down the E.D. case.


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