1994 Connecticut Appellate Review

• Pages: 1
• Publication year: 2021

Connecticut Bar Journal Volume 69.

69 CBJ 1. 1994 CONNECTICUT APPELLATE REVIEW

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1994 CONNECTICUT APPELLATE REVIEW

By WESLEY W. HORTON AND SUSAN M. CORMIER(fn*)

1994 is the year the Justices would just as soon forget about. For the first time in the history of the Supreme Court, one of its members was disciplined for judicial misconduct.

State v. Medina(fn1) was decided in August 1993, with Justice Flemming Norcott voting in the 4-1 majority to affirm the conviction in a murder case. In early October, the defendant filed a motion for reargument. The motion made a vague allegation that Justice Norcott had a conflict of interest. Norcott apparently admitted to his colleagues that he had a conflict, whereupon Chief Justice Ellen Peters referred the matter to the judicial Review Council and the Supreme Court granted the motion for reargument without dissent. At the reargument in November, 1993, Justice Robert Callahan replaced Norcott. The new decision was also 4-1 for conviction and was virtually identical to the orig-inal one except for the discussion about Norcott's disqualification.(fn2)

The majority decision discussed the Norcott issue only in footnote 4 and determined that reargument was appropriate, primarily because Norcott acknowledged he s ould not have sat and that reargument was appropriate, and secondarily because the state did not oppose the motion and because the matter was before the judicial Review Council. Justice Robert Berdon, who dissented both times, argued forcefully that the Supreme Court should not vacate a decision on disqualification grounds without knowing the facts on which that disqualification is based (Berdon did, however, vote in favor of reargument in October 1993.) As he also pointed out, the fact that the matter was before the judicial Review Council may or ma not mean that the nature of the conflict will become public.(fn3)

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As it turned out, the proceedings before the judicial Review Council never made the nature of the conflict public except for an admission by Norcott that there was a 11 close personal relationship" between him and the assistant public defender who represented the defendant before the Supreme Court in the first argument. In early 1994, by a divided vote, (whether the dissenters wanted more punishment or less was not made clear) the Council suspended Norcott from office for thirty working days. The punishment was carried out in the spring of 1994.

While outsiders can only speculate, the six month period from October 1993 to April 1994 must have been a nightmare for the Court. The important issue is what effect this contretemps will have on Norcott's long-term relationship with the rest of the court. While all the Justices will obviously be eager to put the matter behind them, it is difficult to believe his relationship with them will ever be the same as it was before October 1993.

The most important decision of 1994 is the death penalty case of State v. Ross.(fn4) While there were many important issues on liability, on compliance with federal death penalty procedures and on compliance with state statutory death penalty procedures, the most jurisprudentially important issue was whether the death penalty per se violates the Connecticut Constitution. The majority decision disappoints, not because of the result but because of the analysis.

The defendant had a steep uphill battle because five of the six Geisler factors(fn5) supported the State. But the Ross majority disposed of the sixth factor, which is what the argument was all about, in two paragraphs. While Justice Berdon's lengthy dissent on this point(fn6) is not irrefutable, the majority did not refute it. At the least, the six criteria discussed by Berdon(fn7) (which he did not create out of

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wholecloth) were worthy of mention by the majority.

One matter in Ross on which we fully agree with the majority is in deciding the case with only three of the seven Justices qualified to sit. It is of course unfortunate that a majority of the Justices were disqualified in such an important case. But Mr. Ross's case was ready for argument; he was entitled to be heard. That the Court would have preferred not to decide his case until it had decided other death penalty cases is no basis to deny Mr. Ross's right to be heard when his case was ready. Of course, when only two current Justices are in the majority, that fact may encourage litigants to rehash the issues settled in Ross, but that could also happen when several Justices leave the Court at about the same time, as happened in 1992. In any event, if a litigant wants to try to convince the Court to reconsider Ross in another case, that is not so terrible; meanwhile, Mr. Ross has received Justice without delay. We have also heard the opposite complaint: that the Court should have given some guidance on the procedures to follow in the death penalty proportionality review. We agree with the Court in holding that issue for another day and a fuller complement of Justices. The issue did not need to be resolved to dispose of Mr. Ross's appeal.

Ross was not the only case making 1994 a relatively unexciting year for the development of state constitutional law. Broadley v. Board Of Education(fn8) which concerned the right of gifted children to a gifted program and potentially raised important issues, became a minor decision because of the plaintiffs' apparent concession that gifted children did , not have a right to special education under the Connecticut Constitution. What is particularly unfortunate is the statement that "the equal...