1997 Connecticut Appellate Review

Publication year2021
Connecticut Bar Journal
Volume 72.





Five years ago this Review announced that "1992 was the year of the Berdon, a species never before sighted on the Connecticut Supreme Court."(fn1) Well, 1996 was the year of the McDonald, another species never before sighted there. (fn2) When he took his seat in September 1996, the general consensus was that he was a philosophically conservative voice to add to Justice Robert Callahan's at the moment that the latter was replacing Ellen Peters as Chief Justice. Coming hard on the heels of Chief Justice Peters' 4-3 majority opinion in Sheff v. O'Neill (fn3) in July, the often heard lament among politicians who disagreed with the majority opinion was that if only the case were being argued in September 1996 instead of a year earlier, the result would surely have been 4-3 the other way.

After a year of observing Justice McDonald in action on the Supreme Court, the authors find only one thing predictable about his vote, at least in civil cases, and that is an unpredictability more extreme than any other appellate judge the authors have known in the past thirty years.

The other justices are reasonably predictable in the numerous cases where the neutral legal principles involved either are uncertain, are difficult to apply or compete with each other: Justice Robert Berdon is far to the political left (meaning, as a glittering generality, favoring claimants in nondefamation personal injury cases, insureds in insurance policy cases, defendants in criminal cases, and the government in administrative cases against corporations), Justice Joette Katz is somewhat to the left, Chief Justice Callahan is somewhat to the right, and the other four(fn4) are in the middle, except for Justice Flemming Norcott when race is overtly involved,(fn5) in which event he is well to the left.

Justice McDonald, on the other hand, is all over the lot. His very first dissent, in Capers v. Lee, (fn6) is to the left of Justice Berdon. The issue was whether the accidental failure of suit statute, section 52-592, applies to a claim improperly filed with the Claims Commissioner. The majority opinion, by Justice Katz, and the principal dissent, by Justice Berdon, involved a relatively unremarkable disagreement about the meaning of the word "action" in section 52-592, with Justice Berdon taking the predictably liberal position that the word should be read broadly. Justice McDonald not only joined the dissent but also wrote his own, which Justice Berdon did not join. ' While both dissents discussed the state's conduct in not filing a motion to dismiss until after the statute of limitations had run, for Justice Berdon the significance of the point was merely to show the wisdom of his broad interpretation of the statute. But for Justice McDonald, this point seemed to have independent significance. While he did not directly say so, he implied that the state's delay is a ground by itself to deny the statute of limitations defense. Such a position makes Justice Berdon's dissent look downright moderate.

Adding emphasis to the implication of Justice McDonald's dissent is his forceful language in discussing a procedural point:

I would find, however, that the error fairly leaps out of the record. It should embarrass the Court to ignore such error. See Prudence Crandall v. The State, 10 Conn. 339, 370 (1834). (fn7)

What is remarkable about this language is not merely that it is found in his very first dissent as a member of the Supreme Court or that the language is so colorful. What is also remarkable is the citation. If all he wanted was a plain error citation, any of scores of cases from the 1990s could have done as well. Instead he reached back 162 years to the famous case involving one of the great heroines in the long struggle for racial equality.

The same day Capers was decided, he filed a concurring opinion, joined by Justice Berdon, in Castagno v. Wholean, (fn8) an en banc decision concerning grandparent visitation. The parties raised statutory and constitutional objections to the grandparents' claim. The majority opinion by Justice Katz found a way to construe the statute in order to avoid the constitutional objection and, following the normal rule, did so.

Justice McDonald was unable to see how the majority could "narrow the statute's application in the case of rebellious teenage romances, meddling distant relatives and inlaws, total strangers and overtly controlling friends and neighbors . . . . The time has now come, however, to consign this unconstitutional, intrusive and vexatious legislation to its deserved fate."(fn9)

Two months later (January 1997) Justice McDonald joined Justice David Borden's dissent in Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., (fn10) a 5-2 decision which permitted a unified offer of judgment made by one plaintiff to multiple defendants. Justice Berdon's majority opinion supported the broad reading of the offer of judgment statute advanced vigorously by the plaintiff's personal injury bar and opposed just as vigorously by the defendants' personal injury bar."(fn11)

Two more months went by, and he was back in the liberal camp. The issue in Sekor v. Board of Education (fn12) was whether a tenured teacher found incompetent to teach in one of the fields she was certified to teach (English) but not in another one (business) can be fired for incompetence. The 4-1 majority opinion by Justice Peters said yes. Justice McDonald said no and also found a due process violation because the lawyer who was representing the Board in the plaintiff's age discrimination suit was also advising the Board concerning her hearing in this case."

Perhaps the most valuable dissent by Justice McDonald is found in United Illuminating Co. v. New Haven. (fn14) The majority opinion, a. tour de force in statutory construction by Justice Borden, held that section 12-53 gives local tax assessors three years to revalue personal property listed by the taxpayer even though that statute refers to "omitted property" and section 12-55, which explicitly applies to listed property, gives the assessor only one year.

Were it not for Justice McDonald's succinct and very clear plain-language dissent, it would be very difficult for onlookers (such as the authors of this Review) to see just how problematic the majority opinion is. Justice Borden's opinion is so dense and subtle that it is easy to be dazzled by his brilliance. The dissent reminds us that we are indeed being dazzled.

His next plain-language dissent, also involving local taxation, is more amusing but less impressive. In Sears, Roebuck & Co. v. Board of Tax Review,"(fn15) the 3-2 majority opinion by Justice Peters held that interest on a taxpayer overpayment under section 12-117a is discretionary even though the statute says that the taxpayer "shall" get interest. Justice McDonald's dissent, joined by Justice Berdon, remarked: "Only in Wonderland does shall mean may."(fn16) We especially like his concluding paragraph: "Accordingly, I respectfully dissent, with the hope that the majority does not read dissent as agreement."(fn17) But amusing is all it is, for Justice Peters did not need Justice Borden's subtlety in United Illuminating to demolish this dissent. The Court has long construed "shall" to mean "may" (and vice versa), when the context requires, and the context certainly required it here.

Until April 1997, none of his dissents concerned criminal cases. In April he dissented from the majority's conclusion in State v. Valentine (fn18) that error was harmful. In July and August, he dissented in eight criminal or habeas corpus cases, and curmudgeon is the word that comes to mind. In six, he is well to the right of the Court, in four, dissenting alone; of the three in which Chief Justice Callahan also sat, they agreed only once. (fn19) The two dissents in which the Chief Justice voted with the majority show Justice McDonald at his most curmudgeonly. In State v. Johnson, (fn20) the majority held that a felony murder conviction for the killing of a police officer, Trooper Bagshaw, cannot serve as a predicate for a capital felony where the defendant did not intentionally murder the victim. In 1996, the Supreme Court had held that capital felony does not apply to arson murder. (fn21) Unless that case was to be overruled (which apparently was not an issue), how it could possibly be distinguished is difficult to see, and six justices so held. Justice McDonald indulged in what can only be called flag waving by quoting the Code of Honor Trooper Bagshaw swore to and the history of murders of police officers in the line of duty. (fn22) He did the same thing in his dissent in State v. Small, (fn23) involving a felony murder conviction for a drug related robbery.

Likewise, in Miller v. Commissioner of Correction, (fn24) the majority opinion by Justice Borden created a very stringent test for a habeas petitioner who is claiming actual innocence. As Justice Berdon noted in a concurrence, the test is so stringent that hardly anyone will ever qualify (fn25) But the majority's exhaustive opinion showed a unique set of circumstances and affirmed the grant of relief. That was too much for Justice McDonald, who basically would have disregarded the fact finding of the habeas trial judge.

State v. Wilson (fn26) concerned the construction of the insanity defense statute, section 53a-13. Apart from procedural issues, the difficult question was fought between the majority opinion by Justice Palmer and the two concurrences by Justices Katz (fn27) and Berdon. (fn28) The majority's thorough statutory exegesis made it clear that the word "wrongful" included "immoral"; the real issue was the extent to which the defense applied to the defendant's delusions that the act was...

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