1991 Connecticut Appellate Review

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• Publication year: 2021

Connecticut Bar Journal Volume 66.

66 CBJ 1. 1991 Connecticut Appellate Review

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1991 Connecticut Appellate Review

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

T. Clark Hull retired from the Supreme Court in June 1991. Oral argument will not be the same ever again. There is much to commend a trenchant question wrapped in a witty package. He also followed in the tradition of Leo Parskey in making his written opinions good reading. A well-turned phrase not only lightens a heavy issue, but also illuminates the opinion and fixes it in the reader's mind. Everyone has a favorite Hullism. We rather like his recent response in Connecticut National Bank & Trust Co. v. Chadwick (fn1) to our attack on Mooney v. Tolles: (fn2) Chadwick and Mooney are will construction cases.

Regardless of the claimed tenuous citation of authority, we conclude that rumors of Mooney's death have been greatly exaggerated. Justice Hull will be missed.

Chadwick, Hull's swan song, (fn3) introduces the major theme of this Review: overruling cases. 1991 was a harvest year for this theme, for while the rumors of Mooney's demise were greatly exaggerated, rumors of Kimbro's demise were not. Indeed, in four major cases, the Supreme Court gave notice that a precedent, even a recent one, is only as good as its reasoning. Thus State v. Barton (fn4) overruled State v. Kimbro, (fn5) Billington v. Billington (fn6) overruled in part Varley v. Varley, (fn7) Aetna Casualty & Surety Co. v. Jones (fn8) overruled Brockett v. Fensen (fn9) and State v. Parris (fn10) overruled dictum in State v. Ouellette. (fn11) The oldest overruled case, Brockett, was written in 1966.

Kimbro was one of the landmarks of state constitutional law when it was decided in 1985. The U.S. Supreme Court had

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recently retrenched on the strict Aguilar-Spinelli test in determining probable cause for searches and arrests. (fn12) In a 3-2 decision by justice Arthur Healey, the Connecticut Supreme Court decided to continue following the Aguilar-Spinelli test under the Connecticut constitution.

By late 1990, two of the three justices in the majority (Healey and Dannehy) had retired but the two dissenters (Shea and Callahan) had not. The Supreme Court decided to reconsider Kimbro and overruled it in Barton. (fn13) The vote was 6-1 overruling Kimbro, with justice Angelo Santaniello changing his mind from Kimbro, and Justice Robert Glass in opposition.

In 1942, the Supreme Court stated that "a change in the personnel of the court affords no ground for reopening a question which has been authoritatively settled." (fn14) The remark of course merits a smile today, as it probably did in 1942. But the result in Barton reflects more than just a personnel change, for the author, Chief Justice Ellen Peters, does not routinely vote on the conservative side of split votes, and the court as a whole has been willing to expand rights in criminal cases, as in State v. Marsala. (fn15) It is therefore worth exploring why six justices were persuaded to overrule Kimbro.

The first thing the Supreme Court noted is that Kimbro made no historical analysis of Article First, § 7.1 (fn16) Chief Justice Peters cited early Connecticut cases and an article by Professor Christopher Collier in footnote 4 of her opinion. Last year she emphasized the importance of historical analysis in construing state constitutional provisions. (fn17) Moreover, the debates of the 1818 Constitutional Convention have become readily available to the Bar. (fn18) The historical materials tended to support the state's position in Barton and undermine Kimbro, especially since

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Kimbro ignored them.

The lesson for lawyers is clear: if a case stands in your way, check its historical analysis. If there is none, search for history to undermine it.

What appears to be the more important reason Kimbro was overruled is not history but experience. The Supreme Court dealt frequently with Kimbro for six years (see Shepard's Connecticut citations) and decided the required analysis was simply too rigid. This is another lesson for lawyers: listen and watch for grumblings from the justices - perhaps at oral argument, perhaps in opinions or dissents, perhaps at Bar Association speeches - for what precedents do not seem to be working

Billington, like Barton, is one of the major cases of 1991. Billington overruled the Varley holding that, in attacking a marital judgment for fraud, a litigant must prove diligence in attempting to uncover the fraud before judgment is entered.

Billington attacked Varley's foundation, although not for lack of historical analysis. As Billington noted, (fn19) the cases on which Varley relied were primarily commercial cases, which did not address the special problems of marital cases and the special status of the financial affidavit.

One might have detected faint "grumbling from the justices" in judge David Borden's dissent in Grayson v. Grayson. (fn20) And, indeed, Justice Borden in Billington quoted Judge Borden's dissent in Grayson. (fn21)

Aetna v. Jones overruled Brockett v. Jensen for a more easily discoverable reason: the law had changed in other states in the meantime. As Jones notes, in 1966, at the time of Brockett, the Restatement of judgments required mutuality of parties to invoke collateral estoppel, but since then this requirement has been dropped by both the Restatement and many other courts."

Parris involves the constancy of accusation rule in sex crime cases. Until 1983, hearsay statements by the victim about the

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crime were admissible as an exception to the hearsay rule. In 1983 Ouellette in dictum stated that the exception applied only if the court made a preliminary ruling that the statement was made at a natural time. Parris overruled this dictum.

Parris reminds us that dictum is not binding. The mere fact that Ouellette discussed the subject in depth did not convert dictum into a holding. There is considerable irony here, for Ouellette itself refused to follow the broad language of a 1971 opinion on the ground "that the precedential value of a decision should be limited to the four corners of the decision's factual setting." (fn23)

In overruling Ouellette, Parris reinstated a long line of cases going back to 1830, (fn24) while carefully avoiding the case Ouellette had essentially criticized as dictum. (fn25) The lesson for lawyers is clear: if a bad case is on point, see if the ruling can fairly be called dictum.

This discussion ends with a brief return to Chadwick and Mooney. While Mooney was not overruled, Chadwick took that claim very seriously. Mooney held that events occurring after the execution of a will can be considered in determining a testator's intent. Some of the appellants in Chadwick claimed that Mooney mis-cited a prior case and that the holding in Mooney had not been specifically reaffirmed since...