Connecticut Appeliate Review

Publication year2021
Connecticut Bar Journal
Volume 71.




1996 is the year of Sheff v. O'Neill(fn1) In his dissent justice Borden suggested it might be the case of the century.(fn2) In any event it surely is the case of the year.In one sense Sheff continues what has been happening in the Supreme Court for the past two decades, namely, the development of state constitutional law. Since Harlon v. Meskill (fn3) the Court has become more interested in resolving state constitutional issues independent of federal constitutional law.(fn4) Sheff follows on the precedent of Hwton, which involved the more modest task of school finance reform (although justice Loiselle, dissenting in Horton (fn5) did not think the decision was so modest at the time). Both Sheff and Horton resolved the issues solely under the education and equal protection provisions of the state constitution.

In another sense, Sheff moves into new territory. Horton, like most of the Court's more recent state constitutional pronouncements, was based on similar precedents from other state courts around the country. There is no case anywhere in the country like Sheff. Justice Loiselle notwithstanding, Horton was "just" a school finance case. Sheff is unique in the Court's history; it committed the judiciary to insure that a solution is found to a major societal problem.

The Court based this commitment on two sections of the Connecticut Constitution: Article Eighth, §1, which contains a guarantee for free public elementary and secondary education; and Article First, §20, which contains a general equal protection clause and a phrase prohibiting "segregation or discriminaion." The Court in Sheff was split 4-3, with the two most scholarly members of the Court (Peters and Borden) writing the majority and dissenting opinions respectively.

The unusually sharp language of the dissent in Sheff masks the fact that all seven justices agreed on a number of important points. They all agreed that the case was justiciable and that judge Hammer's rationale, that there was no state action, was wrong. (fn6) More important, they all agreed that racial and ethnic isolation in the public schools is a bad thing. (fn7) Where they disagreed, however, was on the constitutional sig~ nificance of racial isolation in light of judge Hammer's findings of fact. justice Borden makes it clear that a different set of findings could well have led to a different result for the dissenters under the plaintiffs' general equal protection count. It Was judge Hammer's findings of fact, not a broader philosophical problem with the plaintiffi' case, that led to the dissenes lengthy discussion of the pleadings and the history of the language of §20. (fn8)

Sheff is of, interest not just because of the subject matter or because of its place in state constitutional history. Of interest is Chief justice Peters' use of an interpretive strategy, introduced to us through a word we were perhaps not aware was in the dictionary: "conjoint." Sheff was decided based on a conjoint reading of Article Eighth and Article First. (fn9) Of course Chief justice House had done the same thing in Horton, but a conjoint reading of legal materials has become a growth industry of late and not just in construing constitutions.

The Court has recently applied a conjoint approach to issues of statutory construction as well. A traditional tenet of statutory construction is that the Court does not examine legislative history if the statutory language is un ambiguous. (fn10) In a pair of decisions, the Court, in Conway v. Wilton (fn11) and Luce v. West Haven,(fn12) overruled Manning v. Barenz(fn13) and held that the recreational land use statute does not apply to municipalities. Manning had held that the statute was clear and unambiguous. Conway, however, responded:

Nevertheless, upon closer scrutiny of this issue, we conclude that an ambiguity arises in the application of the statute to municipalities. Specifically, the ambiguity in this seemingly unambiguous language becomes apparent when, in deciding whether "owner" applies to a municipality, the legislative history and public policy underlying the statute are considered.(fn14)

In Conway, the legislative history was no longer subordinate to the statutory text, but was read conjointly with it

The traditional judicial attitude about the relationship between statutory and common law is that the latter ignored the former. A statute either did or did not displace the common law. If it displaced the common law, the latter was simply inoperative; it if did not displace it, the latter continued to apply as if there were no statute. There were contradictory tenets about how broadly or narrowly to construe statutes impinging on the common law, but everyone would agree that, if the statute, however broadly read, did not control, then the common law stood unaffected. That is the case no longer. Fahy v. Fahy (fn15) opened the door in 1993 to a conjoint reading of statutes and the common law. That is, a nonapplicable statute can be used as an analogy, just as a common law case often is, to provide a backdrop against which a consistent body of law ought to develop.

The Fahy doctrine flourished in 1996, being discussed in Bohan v. Last(fn16) (common law liability for supplying alcohol to minors--consistency does not mean that the common law always has to mirror every aspect of statutory law), Keeney v. Old Saybrook (fn17) (failure of town to abate nuisance-reference o "need to adapt the common law to reflect policy changes in our statutory law"), and Conway(fn18) itself.

Sheff, of course, was not the only constitutional action in 1996. All seven justices finally weighed in on the constitutionallty of the death penalty in State v. Webb.(fn19) After summarily reaffirming the reasoning of State v. Ross (fn20) and State v. Barton,(fn21) justice Berdon discussed why the death penalty did not violate the social compact clause of Article First, §1.(fn22) justices Borden, Norcott, and Katz had not participated in either Rass or Baton. With justice Berdon dissenting in those two cases, Mr. Webb had to get all three missing votes. He came close, but Justice Borden made it 4-3 for the state.

The state won another narrow victory (3-2) in State v. Trine, (fn23) which held that non-threatening contraband can be seized in a pat-down without a warrant under Article First, §7. The sense of touch, said the majority, is not inherently less reliable than the other senses, at least not to a trained officer. Although the defendant lost, Dine demonstrates that the defendant, faced with adverse federal precedent, (fn24) does not necessarily have to show how the text or history of the Connecticut Constitution differs from the federal constitution. Instead, the defendant must show that the observations of human experience, as the justices see them, make the police action unreasonable. Mr. Trine came close.

The state also won in State v. James(fn25) which held that the state need only show the voluntariness of a confession by preponderance of. the evidence. The vote was 5-2, with justices Berdon and Katz dissenting. James did not directly rule on whether official misconduct must be shown in order to raise an involuntariness claim. State v. Lapointe (fn26) might have provided an opportunity to discuss that issue, but that case raised only a federal constitutional issue. Although every justice agreed that Sheff was justiciable, six of the seven held in Nielsen v. State (fn27) that a spending cap claim under Article Third, §18, was...

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