64 CBJ 1. 1989 Connecticut Supreme Court Review.

• Author: By WESLEY W. HORTON AND ALEXANDRA DAVIS (fn*)

Connecticut Bar Journal

Volume 64.

64 CBJ 1.

1989 Connecticut Supreme Court Review

1989 Connecticut Supreme Court ReviewBy WESLEY W. HORTON AND ALEXANDRA DAVIS (fn*)1989 was an exciting year in Prague but not in Hartford. No landmark rulings were issued by the Connecticut Supreme Court, and the only really interesting development is justice Healey's continued move to the left. Meanwhile, the Court continues to disappoint the Bar in handling procedural issues.

The infamous Simko v. Zoning Board of Appeals (fn1) was the most important decision of 1988, and it dominated our review last year. (fn2) Simko created quite a backwash in 1989.

The statute passed in 1988 (fn3) to overrule Simko only addressed the precise problem in Simko: failure to mention the clerk [of the municipality] in the summons. In Ilvento v. Frattali, (fn4) the Supreme Court was confronted with a plaintiff who had failed to mention the chairman or clerk [of the zoning commission]. The reasoning of Simko was squarely on point. The Supreme Court had two courses open: it could confess error and overrule Simko, or it could reaffirm Simko and throw out the plaintiff. Unwilling either to admit error or to take more abuse, the Court ducked the whole issue in a per curiam decision holding that the "intention" of the Legislature to overrule Simko controls.

In the long run, Ilvento could be even more embarrassing than Simko. Ilvento's holding - it is not just dictum - is that what the Legislature means but does not say is more important than what it says. The statute is not vague or ambiguous, nor does the Supreme Court suggest that it is. If Ilvento is serious, it overrules two centuries of case law on statutory construction.

Simko caused a different problem in Demar v. Open Space & Conservation Commission, (fn5) an inland wetlands appeal. Under that statutory scheme, the same language that was addressed in Simko appears concerning service on the commissioner of environmental protection. However, there was an additional sentence stating that the commissioner could appear at a later time. This sentence provided the Supreme Court with the way to distinguish Simko. Of course, another way of looking at this statutory scheme is to say that it demonstrates why Simko was wrongly decided to begin with. That is to say, the additional sentence merely makes obvious what everyone should have already known, that the language construed in Simko did not create a jurisdictional requirement.

Simko still has fangs, however. In Spicer v. Zoning Commission, (fn6) the plaintiff failed to "deliver" a copy of the appeal papers to the municipal clerk. The Supreme Court affirmed the dismissal. We regret that not even one member of the Court referred to Justice Shea's luminous concurring opinion in Andrew Ansaldi Co. v. Planning & Zoning Commission, (fn7) criticizing the unnecessary imposition of subject matter jurisdictional requirements in administrative appeals. Spicer leaves open the question whether the appeal has to be delivered to the clerk by a proper official, or whether it can, for example, be given to a 10-year-old to fold into a paper airplane for a suitable airborne delivery.

So it appears that the Simko saga will continue to go on and some litigants will continue to be denied their day in court for a technicality the enforcement of which serves no purpose.

The Simko saga is rivaled by the Hughes v. Bemer saga. In Hughes v. Bemer (fn8) the Supreme Court held that the failure to file a brief opposing a motion to strike at least five days before the hearing mandated the granting of the motion. In Hughes v. Bemer II (fn9), Hughes I was held to be res judicata on the merits of the case. In 1989, the Supreme Court completed the saga in Burton v. Planning Commission (fn10) and Blonder v. Hartford Helicopters, Inc., (fn11) by applying the reasoning of Hughes to the motion to dismiss.

The plaintiff in Burton termed the Hughes rule "draconian." The Supreme Court was amused but not convinced. (fn12) The Court's response was that the plaintiff, who filed her brief four days before the hearing, could have requested the trial judge for an extension of time to hold the hearing so that the brief would be timely. But that would be a bizarre request indeed. The plaintiff did not need an extension for any useful purpose, because her brief was already filed. It is true that either the court or the defendant might have wanted an extension to have more time to review her brief, but that was not in issue. The purpose of the rule was to speed things up, but the Supreme Court interpreted it to slow things down.

Fortunately the Superior Court judges in June 1989 showed more sense by amending the motion rules, the effect of which is to overrule both Hughes and Burton. (fn13)

The Simko-Hughes procedural philosophy is also seen in Williamson v. Commissioner. (fn14) At issue was whether the sole proximate cause requirement in highway defect actions against the state should be continued. Because the plaintiff failed to ask the trial judge to overrule Perotti v. Bennett, (fn15) the Supreme Court refused to consider the issue. It is difficult to understand why the plaintiff must ask the trial judge to do something that if granted could be grounds for his impeachment.

The procedural landscape is not all wasteland. Justice Hull authored a fine opinion on the authority of dictum in Winslow v. Lewis-Shepard, Inc. (fn16) Would that other opinions distinguished so carefully between holding and dictum! Justice Shea authored a well-reasoned opinion on the final judgment rule in Gold v. Newman. (fn17) Justices Callahan and Hull authored sensible opinions that required a new trial in toto when a major portion of the judgment was erroneous in Fazio v. Brown (fn18) and Sunbury v. Sunbury. (fn19) Finally, Lo Sacco v. Young (fn20) is a sensible application of the waiver rule to a late-filed motion to set aside verdict.

But a few sensible procedural decisions do not alter the overall landscape. While Simko and Hughes may be the most and areas, the landscape in general is pretty barren. Witness the general verdict rule. As Pedersen v. Vahidy (fn21) shows, knowing when the rule applies and how to avoid it are matters of considerable subtlety. It is a rule followed with a vengeance. The Supreme Court also has no consistent philosophy on stare decisis. On December 20, 1988, the Court applied the doctrine with a vengeance in Connecticut National Bank v. Commissioner: "a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." (fn22) On January 3, 1989, the Court ignored the doctrine in Carchidi v. Roderhiser and Pool v. Bell. (fn23) As with Ilvento, the Court reached what it felt was a desired result in those cases. In the process it leaves everyone in doubt on the much more important issue of when stare decisis applies.

Enough on procedure. In last year's review, we noted that Justice Healey bad come clearly into the liberal fold. (fn24) In 1989...