2021 Conn. Appellate Review

• Publication year: 2009
• Citation: Vol. 94 Pg. 279
• Pages: 279

2021 CONNECTICUT APPELLATE REVIEWNo. 94 CBJ 279Connecticut Bar Journal2024

By Wesley W. Horton and Kenneth J. Bartschi. ^[*]

I. Supreme Court

Justice Richard Palmer turned seventy in May 2020, but we knew better than to take the opportunity in last year's Review to appraise his service on the Supreme Court. Not only did he have one of the longest tenures in the Court's history at twenty-seven years and two months,^[1] but he also had the reputation as one of the slowest authors in its history. And so it was that Justice Palmer remained a de facto justice well into 2021, authoring some of his most interesting opinions over a year after he was no longer a constitutional justice.

Justice Palmer was a direct appointment by Governor Lowell Weicker to the Supreme Court from his job at Chief State's Attorney. Previously, Justice Palmer had been Deputy United States Attorney, and then United States Attorney for Connecticut. He had no judicial experience, which made him a highly unusual choice at the time. Only Chief Justice Ellen Peters, previously a Yale Professor, also lacked prior judicial experience among all justices appointed since 1950. Even today it is relatively unusual; only two, Justice Andrew McDonald and Justice Gregory D'Auria, lack prior judicial experience. In our view, a wide variety of job backgrounds, not just judicial ones, is preferable in a state's highest court.

Justice Palmer took some time to make a judicial name for himself. In the 1990s, he often followed the lead of Justice David Borden, who had extensive judicial experience and whom Justice Palmer, with good reason, highly respected. The most noteworthy example is Palmer's joining his dissent in the 4-3 school desegregation decision, Sheff v. O'Neill.^[2]

Justice Palmer came out from Justice Borden's shadow in this century. Ironically, Justice Palmer's most important decision, both jurisprudentially and socially, Kerrigan v. Commissioner of Public Health,^[3] holding same sex couples had a right to marry under the Connecticut Constitution, was also a 4-3 decision in which Justice Borden wrote the dissent. Kerrigan's importance socially is obvious. Its importance jurisprudentially is that it made Connecticut the second state, after Massachusetts, to recognize marriage between same sex couples as a constitutional right,^[4] and it presaged the later adoption of marriage for same sex couples as a federal constitutional right.

Kerrigan is also important jurisprudentially because it emphasized the importance to the people of Connecticut of their separate constitutional rights. This would continue to be Justice Palmer's theme throughout the rest of his career. In State v. Santiago,^[5] also a 4-3 decision, he held that the legislature's prospective abolition of the death penalty, made all capital punishment cruel and unusual under the state constitution.

We can talk about other decisions of his that in our opinion generated more heat than light,^[6] but we have done so in previous Reviews and would rather focus on the two state constitutional decisions he wrote in 2021 that are a worthy cap to what we think is his principal judicial legacy: strengthening rights under the Connecticut Constitution.

The first is State v. Bemer.^[7] After disposing of a difficult statutory construction issue adversely to the defendant by a vote of 5-2, Justice Palmer for the majority held that Article First, § 7, of the state constitution requires an interpretive gloss on the statute that authorizes a court to order an examination of someone charged with certain sexual offenses for a sexually transmitted disease. The court ruled that § 7 limited the power to order such an examination to those situations where it would provide useful information to a victim who could not reasonably find that information in another manner.

The extensive constitutional analysis in Bemer is fascinating because, unlike other state constitutional decisions, there was no tally of the cases on point on each side from other states. There simply was no case directly on point, but there were many cases to be distinguished. Justice Palmer also gives a lengthy policy analysis. All in all, it shows him being a leader, not a follower, of other decisions in state constitutional adjudication.

The most exciting thing about the Bemer decision is that the constitutional discussion—finally—starts with a statement that we have been advocating for years. We could hardly believe our eyes when we first read it:

We first address the defendant's claim under the state constitution because there is no clear and binding precedent on the issue of whether a statute authorizing mandatory examinations for sexually transmitted diseases and mandatory testing for HIV of individuals charged with certain sexual offenses is reasonable under the fourth amendment in the absence of a showing of probable cause to believe that testing is necessary to advance the health interests of the victim or the public.^[8]

The final decision he authored as a justice is State v. Correa,^[9] issued in September, a novel state constitutional decision under § 7 holding that the privacy interests implicated by a canine sniff of the exterior door of a motel room raises similar § 7 issues to those of a canine sniff of the outside of an apartment or condominium, even though a motel room usually is not considered a home, and was not in fact in this case.

Unlike in Bemer, Justice Palmer's constitutional analysis in Correa is not extensive but it is still fitting that he chose to end his Supreme Court career with a unanimous decision expanding rights under the state constitution. His leadership on the Supreme Court will be missed.

Since we are on the subject of the state constitution, we may as well turn to other decisions on the subject in 2021, the most important being the two COVID-19 cases. The first is Fay v. Merrill,^[10] holding that absentee voting for everyone in a pandemic was permissible under Article Sixth, § 7, which permits an absentee ballot for anyone who 'because of sickness' is unable to appear at a polling place on election day. Chief Justice Richard Robinson, writing for a unanimous court, gives an extensive historical analysis of absentee voting in Connecticut, including his explanation that the absence of such a provision during the Civil War prevented soldiers at war from voting.

The other COVID-19 case is Casey v. Lamont,^[11] challenging the extensive executive orders issued by Governor Ned Lamont. After concluding that the pandemic constitutes a “serious disaster” for the purpose of a statute delegating emergency powers to the governor, Justice Andrew McDonald turned to whether the governor's sweeping powers violated Article Second (addressing the separation of powers) by giving too much legislative power to the executive. Justice McDonald, a former legislator, made a detailed exposition of how the statute guided how the executive's powers were to be exercised and limited them to six months unless renewed legislatively. Justice McDonald also noted the existence of legislative oversight. One comes away reading Casey with the confidence that the separation of powers doctrine is alive and well in Connecticut.

In Anthony A. v. Commissioner of Correction,^[12] the petitioner challenged his prison status as a sex offender based on non-conviction information. Justice Christine Keller, speaking for the whole court, held that the petitioner was deprived of procedural rights at the prison hearing to which he was by law entitled, and this violated Article First, § 9. Unfortunately, Anthony A. relies on prior precedent holding that § 9 provides nothing more than federal constitutional law provides. It is one thing for the court to say that it agrees with a decision of the U.S. Supreme Court; it is quite another, and it seems to us an abdication of power, in effect to delegate to the U.S. Supreme Court the final interpretation of the Connecticut Constitution.

In fact, Anthony A.'s statement about federal authority is directly contrary to what the court said about Article First, § 8, a few weeks later in State v. Culbreath.^[13]Culbreath followed up on a recent decision, State v. Purcell,^[14] holding that an ambiguous request for a lawyer after a Miranda warning required police questioning to cease. However, under federal constitutional law, only a clear request for a lawyer required questioning to cease.

We hope that in due course the Supreme Court will give a decent interment to the statements in various cases, including those interpreting § 9, suggesting that its hands are tied by another court in deciding the meaning of any provision of the Connecticut Constitution.

We turn now to procedural cases, one of which highlights the significance of one's reputation as preserved by Article First, § 10. In part because of that provision, the Supreme Court, in State v. Gomes,^[15] ruled that a criminal appeal is not moot because the defendant has been deported. Unlike federal law, Connecticut law considers reputational damage from a conviction to be a judicially-recognized collateral consequence of a conviction.

In State v. Armadore,^[16] the Supreme Court closed the gap in its Golding jurisprudence by holding that it applies to all constitutional claims that were not timely or properly raised. The specific issue in Armadore concerned a new decision announced while the appeal was underway. The case has a useful discussion of supplemental briefs and the fact that they should almost always be allowed.

It was a big year in criminal law as we have already seen. Some of the other interesting criminal cases are State v. Komisarjevsky,^[17] with a lengthy discussion of pretrial publicity in the case of the notorious 2007 Cheshire home invasion and multiple murders; State v. Gonzalez,^[18] a thorough discussion by Justice Maria Kahn for the court of the possible abuse by...