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January 16, 2008

DDDB PRESS RELEASE: Judge Recuses Himself From Three-Judge Panel Considering Appeal on Atlantic Yards Eminent Domain Case Goldstein v. Pataki

NEW YORK, NY — Brooklyn Federal Judge Edward R, Korman has recused himself from the pending eminent domain appeal Goldstein v. Pataki. The original case, filed in October 2006, argues that New York state's use of eminent domain for Forest City Ratner’s Atlantic Yards project violates the United States Constitution. The appeal by 13 property owners and tenants in the development project’s footprint was filed on July 31, 2007 and argued on October 9th in the US Court of Appeals for the Second Circuit. If plaintiffs eventually win their case and keep their properties, the result would be that the project could not be constructed.

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. Judge Korman has been replaced on the three-judge panel considering the appeal by Chief Judge Dennis Jacobs. The other two judges who heard the October 9th argument are Judge Robert A. Katzmann and Judge Debra Ann Livingston.

Last week, the plaintiffs filed a motion seeking a new oral argument before the reconstituted panel in light of the recusal, because Judge Jacobs did not have the benefit of hearing answers to the numerous questions raised by the previous panel.

Although no reason for the recusal was provided, Judge Korman had announced before the argument on October 9th that he had previously received an Atlantic Yards promotional mailer that he had responded to affirmatively. The only mailer that fits Judge Korman's description is a 4-color glossy "Live, Work, Play" Atlantic Yards promotional direct mailer that Forest City Ratner mailed to approximately 300,000 people early in its public relations campaign. It appears that Judge Korman was one of the fewer than three percent who responded to what many who oppose the project have dubbed the "Liar Flyer" by mailing back a postage paid return card declaring "Yes! I Support Atlantic Yards and the Jobs, Housing, and Open Space it Will Create." In exchange for his support, it is believed that Judge Korman received a voucher for two free tickets to a New Jersey Nets game and a Nets tote bag.

"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," said plaintiffs’ lead counsel Matthew Brinckerhoff of Emery Celli Brinckerhoff & Abady LLP,

Brinckerhoff explained, "Our appeal raises important constitutional questions about the propriety of former Governor Pataki's decision to seize my clients homes and properties and give them to Ratner -- a law school class mate and major political donor. The whole project was Ratner's idea. Ratner coveted plaintiffs' properties. Pataki did not consider a single alternative to Ratner's plan. Nor did he consider even one other developer to reap the rewards of the government's largesse. It is indicative of the integrity of this court and a sign of the seriousness with which the court is addressing these issues that the two remaining judges requested a replacement ensuring that this important appeal will be decided by a full, three-judge panel."

Posted by lumi at January 16, 2008 6:27 AM