1992 Connecticut Appellate Review
| Pages | 15 |
| Publication year | 2021 |
67 CBJ 15. 1992 CONNECTICUT APPELLATE REVIEW
1992 was the year of the Berdon, a species never before sighted on the Connecticut Supreme Court. Newly appointed justice Robert 1. Berdon dissented 37 times out of 184 cases, an unheard of number (the next highest number last year was four times). Of those 37 dissents, 36 were solo, also an unheard of number. He is the first justice ever to dissent publicly from the denial of certification.(fn1) And once he started, he picked up steam, dissenting twelve times through July, 1992. And he is the only justice in the 200-year history of the court ever to be rebuked by a majority of the other justices in a court opinion.(fn2)
Judicial missiles between Tapping Reeve and Zephaniah Swift in the 1810s, between John T. Peters and David Daggett in the 1820s and 30s, between William Hamersley and Simeon E. Baldwin in the 1890s and between Joseph W. Bogdanski and everyone else in the 1970s never packed the firepower of the following exchange between Berdon and a majority led by Justice David M. Borden in Fonfara v. Reapportionment Commission:
BERDON, J., dissenting. Today the majority trivializes our state constitution by failing to give meaning to the mandate of article third, § 4, which provides in clear and unambiguous language that "[f]or the purpose of forming assembly districts no town shall be divided except for the purpose of forming assembly districts wholly within the town." This is commonly referred to as the "town integrity" principle. Indeed, with at best a cursory review 0 Ze undisputed facts before us, the majority decides to rubber Stamp the 1991 Plan of Districting of the General Assembly of the state of Connecticut (1991 Plan), which was adopted by the reapportionment commission (commission) pursuant to article third, § 6(b) of the state constitution, as amended by articles XII, XVI, XXVI of the amendments.(fn3)
Responded Justice Borden
BORDEN, J., with whom CALLAHAN, GLASS and COVELLO, Js., join, concurring. I write separately to respond to what I regard as a gratuitous and unjustified ad hominem attack in the first paragraph of the dissenting opinion on the performance by the majority of our judicial duties in this case. Neither I nor any other member of the majority has "trivialize[d] our state constitution" by our decision. We have done our best to interpret the constitution in the light of its language, history and structure, in the light of what we regard as the relevant precedents, and in the light of the facts of this case. Neither I nor any other member of the majority is guilty of giving "at best a cursory review" of those facts. We have, instead, considered the facts presented to us in the record of the case carefully and thoroughly, as is our duty as judges. Finally, neither I nor any other member of the majority "decide[d] to rubber stamp" the districting plan at issue in this case. We have with equal care and thoroughness measured that plan in accordance with what we consider to be the appropriate constitutional standards, including what we regard as the burden placed by the constitution on the challengers to the validity of that plan. It is regrettable that the dissenter's disagreement with our conclusions somehow suggests to him that we have not performed our judicial function with the same sense of seriousness with which he has performed his.
The majority may have been moved to respond not only because of Berdon's dissent in Fonfara, but also because of the missile delivered at the end of his Weber dissent.
I am unable to understand what the majority means by extraordinary cause," but I do understand what justice means. Accordingly, I dissent.(fn4)
Two centuries of consensus are no more. Written opinions must give only a glimpse of the war going on in chambers and conference between Berdon and the rest of the court. But that glimpse shows the wide gulf separating him from everyone else. Not only is it extraordinary that Berdon attracted a second vote on only one of his 37 dissents,(fn5) but it is just as extraordinary that
no other justice dissented more than four times. In short, not only is Berdon isolated from the rest of the court, but the rest of the court is at least subconsciously going to greater lengths than in the past to stick together. The result is that, because Berdon is far to the judicial left, his presence paradoxically may have moved others to the right. The clearest example of this phenomenon is Justice Robert D. Glass, for whom 1992 was his last year on the Supreme Court. In previous years Glass was the most liberal member of the court and often dissented from conservative majority opinions.(fn6) Yet in 1992 he did not join even one of Berdon's 37 dissents. Indeed, in 1992 Glass did riot dissent at all.
There is no subtlety to Berdon's judicial philosophy: any debatable legal proposition will be read to broaden rather than to narrow the rights of the individual. At his best his opinions are the most eloquent and persuasive affirmation of his philosophy. His opinion for the majority in State v. Geisler,(fn7) is a masterly canvass of the Connecticut and English precedents. His dissent in State v. Smith,(fn8) in which the majority held that the trial court's erroneous refusal to permit a black defendant's counsel to ask prospective white jurors how they would feel if a close relative were to marry a black person was harmless, was a most eloquent statement about the prevalence of racial prejudice in our society today. And his dissent in Gold v. Warden(fn9) is far more persuasive than the majority opinion.(fn10) Berdon also serves a very useful role in exposing difficulties that the majority otherwise might have swept under the rug. While reasonable
minds may differ over the proper disposition of State v. Weber,(fn11) without Berdon's dissent we never would have known of the latebrief issue at all, for the majority surely would have written only "certification denied." Without Berdon's dissent in State v. Tillman,(fn12) we might never have focused on the serious problem of how lawyers should go about making offers of proof. Without his dissent in Perry v. Perry,(fn13) a case concerning the contempt power of magistrates, we might not have focused on the difficulty the majority had in relying on an 1894 decision.(fn14) Berdon also correctly chides the majority in Walker v. Commissioner of Correction,(fn15) for failure to decide suo motu a question of subject matter jurisdiction. If, as the majority says, the issue is too important to be decided without briefing, then why not order supplemental briefing? In Saporoso v. Aetna Casualty Co.,(fn16) he makes an irrefutable attack on the majority for invoking the "plain error" rule because of the appellant's failure to reraise an issue after a directed verdict where the issue had already been decided by the judge. (Borden joined Berdon's attack.) Finally, one of the most important constitutional cases of the year, Fonfara v. Reapportionment Commission,(fn17) would not have been the same without Berdon's exhaustive and eloquent dissent.
Berdon's dissents are often useful even where the majority seems to have the stronger argument. In State v. Ayala,(fn18) the issue was whether Article First, § 8 of the Connecticut Constitution allows a trial judge to revoke bail where the terms of the original bail order have been violated. The literal language of the section suggests not, but the majority found some persuasive Connecticut colonial history, together with the out-of-state cases, to hold otherwise. However, Berdon's dissent is important to remind us how close the call was. A similar remark could be made about Housing Authority v. Papandrea,(fn19) and State v. Cain.(fn20)
There are some Berdon dissents that serve no useful purpose. For example, it is difficult to see why he would have found an abuse of discretion in the failure to grant a continuance on the day set for trial in Statewide Grievance Committee v. Friedland.(fn21) It is also difficult to see why in Bleau v. Ward(fn22) he would have ordered a new trial only as to damages where liability was contested at trial. Two recent cases by the majority had disposed of that issue to the contrary. Berdon's...
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