1998 Connecticut Appellate Review

• Publication year: 2021
• Pages: 73

Connecticut Bar Journal Volume 73.

73 CBJ 73. 1998 CONNECTICUT APPELLATE REVIEW

1998 CONNECTICUT APPELLATE REVIEW

By WESLEY W. HORTON AND SUSAN M. CORMIER*

Nineteen ninety-eight was the year of the Katz, a species the authors have sighted here and there in the past six years but not carefully studied. This year she was sighted everywhere and deserves a careful study. We are not so bold as to conclude that we are witnessing the creation of the Katz Court, but she is clearly one of the key players.

In the past year the Supreme Court decided 23 en banc decisions, which include many of the most important decisions of 1998. Of those 23, Katz wrote the lead opinion in six. The next highest number was Callahan with five, followed by Norcott with four, Borden and Palmer with three each, Peters and per curiam with one each and Berdon and McDonald with zero. Even more important, of the 23 cases, five, Binette v. Sabo,(fn1) Pamela B v. Ment,(fn2) State v. Miranda,(fn3) Packer v. Board of Education(fn4) and Ireland v. Ireland,5 had numerous separate opinions, and it was Katz who got the votes for the lead opinion in all but Binette and Packer.

Katz also was the author of many of the Court's most aggressive decisions. Miranda, applying the assault statute to a live-in boyfriend whose girlfriend injures her (but not his) child, is a case in point. Pamela B, holding justiciable a claim against the chief court administrator and a commissioner to compel them to take steps to remedy alleged statutory and constitutional violations concerning hearings on temporary custody orders in neglect cases, is another. Many eyes opened wide when she authored the reversal of the $16,000,000 legal malpractice judgment and directed judgment for the defendant in Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin,(fn6) on the ground that the plaintiff, while proving malpractice, had not sustained its burden of proof on damages. Many eyes opened just as wide when the Court issued Bornemann v. Bornemann(fn7) in July over McDonald's protest that he was not ready to vote. The authors see more than a coincidence that Katz wrote the majority opinion. In Marone v. Waterbury,(fn8) a 5-2 majority resolved a workers' compensation issue raised only by an amicus curiae. Katz wrote the majority opinion. Finally, in In re Dean,(fn9) Katz wrote a very vigorous opinion rejecting judge Dean's appeal from a censure.

In one substantive area, Katz completely dominated the Court in 1998. That area is family law. The Court decided 10 significant family cases: Ireland, Bornemann, Jenkins v. Jenkins,(fn10) Unkelbach v. McNary,(fn11) Eldridge v. Eldridge, (fn12) Taff v. Beacher,(fn13) Doe v. Doe,(fn14) Simmons v. Simmons,(fn15) Charles v. Charles,(fn16) and Ahneman v. Ahneman.(fn17) Incredibly, Katz wrote the majority opinion in the first six plus the opinion for the three dissenters in Doe. And she wrote the majority opinion in Miranda which, while a criminal case, involves an issue to which the family bar must pay attention - child abuse.

The most important family opinion is probably Ireland, not so much for the issue of most importance to the majority and over which the individual justices anguished (burden of proof on best interests of child when custodial parent plans to move out of state), as for the issue of incidental importance to the litigants (the proper role of the attorney for the child). It is good that Ireland finally clarified that important issue. The attorney for the child must act like a lawyer, not like a litigant; the latter is the role of a guardian ad litem.

Unkelbach decided that contributions of a party's domestic partner to living expenses are properly treated as a gift and therefore part of that party's gross income. Borneman decided that unvested stock options are similar to vested pension benefits. Jenkins decided that dependency benefits received by minor children are properly included in the disabled parent's gross income. Eldfidge decided issues of civil contempt and Taff decided the appealability of an order barring the filing of any motions for a year. All of these cases decided important issues of practical importance to family lawyers, and all of them were decided by Katz.

Finally, the most interesting family case is Doe, an en banc 4-3 decision (Ireland and Eldfidge were also en banc) concerning a minor child of a surrogate mother raised by the father and his wife. The majority held that the wife has a "powerful, albeit nonparental, claim to custody"; the dissent would have held her to be a parent. The scholarly opinions - majority by Borden, dissent by Katz - show the Supreme Court at its best.(fn18)

Katz does dissent from time to time, as we see in Doe, but no more than Callahan and Borden, and far less than Berdon and McDonald. When she joined the Court in 1992, she was perceived as a likely ally of Berdon. Whatever evidence might have supported that proposition before 1998 mostly evaporated this past year. Berdon filed 44 separate opinions in 1998; Katz fully or partially agreed in four.

Katz is pretty much in the center of the Court along with Bordon, Norcott, Palmer and Peters (Callahan being somewhat to the right, Berdon being far to the left, and McDonald being most anywhere). She is clearly a force to be reckoned with.

Officially, Peters has been semi-retired since 1996. Unofficially, she is hardly retired at all. While she sat on less than half the cases the other justices did, she wrote more majority opinions than either Berdon or McDonald, as the following table shows:

Author of

Justice Panels Sat On Majority Opinion Percentage Authored
Callahan 120 23 19%
Borden 115 20 17%
Berdon 113 11 10%
Norcott 115 16 14%
Katz 112 22 20%
Palmer 120 18 15%
McDonald 111 15 14%
Peters 53 16 30%

So if she sits, Peters is about twice as likely to write the majority opinion as any otherjustice. Those arguing appeals before panels on which she sits should take note.(fn19)

Nor is Peters assigned to write opinions in only routine cases. New Mif~rd Savings Bank v. Jajer(fn20) concerned the right to open a judgment of strict foreclosure to correct the mortgagee's inadvertent omission of another parcel from the complaint. She wrote an important workers' compensation decision concerning the "relative nature of the work" versus the right to control" tests in Hanson v. Transportation General, Inc.(fn21) And she wrote an important decision liberally construing the business records statute in New England Savings Bank v. Bedford Realty Corp.(fn22) There is about a 100% chance that any thorny Uniform Commercial Code issue will be assigned to her, as in fact happened in Flagg Energy Development Corp. v. General Motors Corp.(fn23)

Other significant decisions by Peters are State v. Sullivan,(fn24) concerning the preliminary showing a defendant must make to get around the rape shield statute in a constancy of accusation case; Toise v. Rowe,(fn25) concerning the right to judicial review concerning administrative rulings of the Bureau of Rehabilitation Services; and Ruddock v. Burrowes,(fn26) holding that a disciplinary dismissal can be a matter of form under the accidental failure of suit statute.

It is clear that Peters will continue to be a force on the Court until March 21, 2000.

On the other hand Berdon and McDonald are not forces at all on the Court. The authors are aware of three opinions in 1998 in which Berdon's vote was crucial. In two cases, State v. Eady(fn27) and Paige v. St. Andrew's Roman Catholic Church Corp.,(fn28) a motion for reconsideration or reargument en banc was granted. The authors are aware of one opinion in which McDonald's vote was crucial. In that case, Bhinder v. Sun Co.,(fn29) and in Berdon's third case, Binette v. Sabo,(fn30) the decision was 4-3. Since McDonald and Berdon were on opposite sides, one of their votes mathematically had to be crucial.

In the whole year, McDonald wrote only four and Berdon wrote only two important decisions for the Court. McDonald wrote Mayer v. Biafore, Florek and ONeill,(fn31) holding that in a legal malpractice case the plaintiff need not obtain a ruling in the underlying claim the lawyers allegedly mishandled; Salaman v. Waterbury,(fn32) reversing a verdict for the plaintiff and holding that there was insufficient evidence to hold the defendant liable for a swimming death; State v. Longo,(fn33) Concerning an automobile search; and a school busing decision to be discussed shortly. Berdon wrote Wright Bros. Builders, Inc. v. Dowling,(fn34) holding that the Home Solicitation Sales Act does not permit minor or technical violations of the statute to be a defense to payment, and State v. Cardwell,(fn35) concerning the ticket scalping statute. That is it.

McDonald and Berdon's alienation from the rest of the Court is truly remarkable; this alienation is confirmed by the following table:

Panels Dissenting Separate Percentage of
Justice Sat on Votes(fn36) Concurring Votes Separate Opinions
Callahan 120 5 4 8%
Borden 115 4 4 7%
Berdon 113 39 5 39%
Norcott 115 2 1 3%
Katz 112 6 2 7%
Palmer 120 0 4 3%
McDon- 111 32 7 35%
ald
Peters 53 2 1 6%

Palmer wrote the most important constitutional decision of the year, Binette v. Sabo. Binette creates a state constitutional right under Article First, §§7 and 9 (the search and seizure and personal liberty clauses) to claim damages against a police officer for a violation of constitutional rights, but rejects such a claim under Article First, §10 (the open courts clause). The decision on §§ 7 and 9 was 4-3, with Callahan, Norcott and McDonald dissenting; the decision on §10 was 5-1, with Katz dissenting and Berdon not reaching the issue.

The most disappointing state constitutional decision is Board of Education v. State Board of Education,(fn37) concerning the busing of students to parochial schools on days when the public...