1995 Appellate Review

Publication year2021
Connecticut Bar Journal
Volume 70.

70 CBJ 1. 1995 Appellate Review


1995 Appellate Review

1995 is the year that the Connecticut Constitution finally became an ordinary part of the legal landscape. Until this past year, the state constitutional revolution that started in the mid1970s (fn2) produced a few extraordinary cases each year, duly noted in this Review. 1995, on the other hand, produced a flood of scholarly and thoughtful state constitutional decisions on a wide variety of constitutional provisions.

Why has this happened. For one thing, the Supreme Court has finally become comfortable with its role as final arbiter of the state constitution. Before Horton v. Meskill was decided in 1977, both court and counsel automatically assumed that the source of virtually all constitutional law was federal. This is seen explicitly in the Roundhouse cases, where the court said that the state and federal due process clause had the same meaning. As recently as Broadley v. Board of Education, (fn3) the court still said that "the equal protection provision of the federal and state constitutions have the same meaning and limitations." (fn4) This ghost from the past was finally put to rest, hopefully for good, in AFSCME, Council 4, Local 681, AFL-CIO v. West Haven, (fn5) in which the trial court was criticized for making this very point.

The attitude that federal law was the source of virtually all constitutional law was also seen in the routine and often exclusive reliance on federal constitutional cases until the Supreme Court explicitly made federal cases only one of six prongs in ana


lyzing the state constitution in State v. Geisler, (fn6) decided as recently as 1992.

While the Geisler factors have been applied often by the Supreme Court since 1992, undoubtedly it has taken two or three years for the significance of those Geisler factors to work their way down to the trial courts and the bar, and for cases properly raising those issues to work their way up to the Supreme Court.

By 1995, it was finally clear that lawyers would border on committing malpractice if they raised a state constitutional argument simply as a one-sentence tag-along to a federal constitutional argument. In addition to being very hospitable to seriously briefed state constitutional arguments, the Supreme Court has shown open hostility to tag-along arguments. (fn7) Consistent with this philosophy, the Supreme Court is considering, as this article is being written (January 1996), an amendment to the briefing rules to reward litigants who independently raise state constitutional issues with an additional 5 pages to their page limits. Whatever the reason, the result is plain: picking up the weekly Law journal and reading about the Connecticut Constitution is now an ordinary - as opposed to an extraordinary - event.

Now to the cases. The major ones concern separation of powers (Article 11), the no emoluments clause (Article 1, § 1), free speech (Article 1, §§2, 4, 5, 9 and 14), jury misconduct (Art. 1, §8), loss of exculpatory evidence by police (same), use of statement when witness unavailable (same), right to housing (same), right to just compensation (Article 1, § 11) and right to bear arms (Article 1, § 15). The Appellate Court also considered two major cases concerning the right of access to the courts (Article 1, § 10).

In Massameno v. Statewide Grievance Committee (fn8), a separation of powers case, the Supreme Court addressed the issue whether, and to what extent, prosecutors, executive branch officials since Article IV, §27 was added to the constitution in 1984, are subject to discipline by the judicial branch. The scholarly decision holds that "the judicial and executive branches have overlapping interests in the administration of justice and in the ac


tions of an officer of the court and therefore prosecutors are subject to judicial branch discipline the same as other officers of the court." (fn9)

While Serrano v. Aetna Ins. Co.,(fn10) which concerns retrospective legislation rewriting an insurance contract, primarily concerned the contract clause of the United States Constitution, there was also a short section on the emoluments clause of the state constitution. The constitutional cases cited in this section should remind counsel that the emoluments clause of Article 1, § I occasionally provides equal protection rights that are not to be found under federal law. (fn11)

Free speech was given a rousing boost in State v. Linares, (fn12) in which the Supreme Court followed judge Schaller's concurring opinion in the Appellate Court (fn13) and rejected the federal public forum analysis in Perry Education Assn. v. Perry Local Educators' Assn.(fn14), in favor of the more flexible prior federal approach in Grayned v. Rockford. (fn15)

In State v. Brown (fn16) the Supreme Court considered the constitutionality of a claim of jury misconduct under Art. 1, §8. While this decision was superseded after en banc reargument by an opinion in late 1995 which relies on both state and federal constitutional law, as well as the Supreme Court's supervisory powers over the administration of justice, (fn17) the result, that the trial court improperly failed to investigate a claim of possible juror misconduct, was the same.

As in Linares, State v. Morales (fn18) rejected prevailing federal law in construing the state constitution. Morales rejected Arizona v. Youngblood,(fn19) which held that loss by the parties of possibly exculpatory evidence must be shown to have been in bad faith, in favor of the balancing test that the Connecticut courts had applied before Youngblood. Morales and Linares thus shared another common point, that rigid constitutional tests should be rejected in favor of flexible ones.


Claiming the constitution should be kept up to date and applicable to modem controversies does not necessarily help the proponent of the constitutional claim. In State v. Munoz, (fn20) the defendant claimed, based on dictum in a 1911 case, (fn21) that the state constitution required the former testimony of an unavailable witness to be excluded unless the witness was dead. The court noted that the increased mobility of society and more reliable means of preserving testimony militated against such a constitutional right. Perhaps the most noteworthy, and surely the most scholarly, state constitutional case of 1995 is the en bane decision in Moore v. Ganim (fn22) with lengthy and outstanding opinions by justice Norcott for the majority, Chief justice Peters concurring separately (a rare event) and justice Berdon dissenting. (fn23) The case was specifically about the right to housing. There were two issues. The first was whether the state had a constitutional duty to provide subsistence benefits to all needy citizens. Principally this turned on the court's Article 1, § 10 jurisprudence about rights that existed at the time the constitution was adopted in 1818. The second issue was whether there was an un-enumerated constitutional right to subsistence benefits.

The case was argued en bane in June 1994, reargued en banc...

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