1999 Connecticut Appellate Review

Publication year2021
Connecticut Bar Journal
Volume 74.

74 CBJ 135. 1999 Connecticut Appellate Review


1999 Connecticut Appellate Review


In their 1992 appellate review, the authors started the article as follows: "1992 was the year of the Berdon, a species never before sighted on the Connecticut Supreme Court." (fn1) Nineteen ninety-nine likewise was the year of the Berdon, a species never likely to be sighted ever again on the Supreme Court.

Justice Robert Berdon retired at age 70, on December 23, 1999. He started with a bang in September 1991, and he certainly did not end with a whimper. The first proof of this is in the slowing down of the court's decision-making process during 1999.

Past annual reviews have all considered cases argued from September of the previous year through June of the year being reviewed. This arrangement has roughly coincided with decisions made from mid-fall to mid-fall, but it does not work for 1999. For over a century before 1999, (fn2) virtually all decisions argued in the spring were decided by July 31, when the justices went on vacation for a month, and then were published over the course of August and September as the Reporter of judicial Decisions put them in reportable format. Usually just one or two, or at most four (in 1998), cases would go over for further consideration by the court after the summer vacation. In 1999 an extraordinary thirteen cases went over for further consideration in the fall. Berdon sat on twelve of them and partially or fully dissented in eleven. Given that the court had to process its normal incoming fall docket, given that Berdon also sat on six of the new September Term cases (including all five heard en banc), and given


that two of the carryover plus two of the September Term cases were decided the very week Berdon retired, what a chaotic end to the millennium it must have been!

Cases argued in the fall of 1999 and decided by December 23 must be considered in this year's review for another reason: Berdon's last year on the court should be appraised as a whole. He certainly was the leading dissenter on the court for the whole eight years he was there, but the vehemence, acerbity and, in the end, bitterness of his dissents, plus their sheer volume, grew exponentially as 1999 wore on, reaching a crescendo in December. In our 1998 appellate review (fn3) we pointed out that Berdon (as well as justice Francis McDonald) were outsiders on the court, with Berdon writing separate opinions in 37% of the cases on which he sat (44 out of 113). (fn4) Compared with 1999, however, his 1998 statistics make him look almost agreeable. In 1999, he filed separate opinions 52% of the time (64 out of 122)! (fn5) Those 64 separate opinions were mostly full dissents (50). Of the remaining 14, nine were partial dissents. Moreover, as will be seen, his idea of a partial dissent was just another opportunity for a full-blown attack on the majority, and even his five concurrences came from the pen of someone totally alienated from the rest of the Court.

The year started in typical form with Berdon dissenting from a 4-3 decision by justice Joette Katz in Lopiano v. Lopiano, (fn6) holding that a tort judgment is property subject to marital distribution for both pre- and post dissolution pain and suffering. Berdon pointed out that, six months earlier, Katz had authored Bamemann v. Bomemann, (fn7) holding that unvested stock options are also property subject to distribution where the options were earned before dissolution. Berdon was "unable to perceive any difference between the analytical approach, which the majority refuses to adopt, and the one that


this court adopted in Bornemann." (fn8) We quote Berdon's dissent in Lapiano as a calm and relatively impersonal (we state "relatively" because he does skewer Katz by name) dissenting start to his last twelve months on the court. The contrary was more in evidence as the year moved along.

In In re Baby Z, (fn9) the majority in January 1999 held that adoption by a nonrelative requires termination of the biological parent's rights. Berdon was the sole dissenter. He started by referring to the majority's "result driven conclusion" and its "disingenuous reasons" for not reaching the constitutional issues. (fn10) Then he really warmed up:

The decision of the majority tramples upon the constitutional rights of gay and lesbian parents - who are not permitted to marry under Connecticut law - and heterosexual parents who elect to remain unmarried. It does so by resorting to a hypertechnical eighteenth century analysis that has no place in the jurisprudence of the twenty-first century. Future generations will look back upon the majority's decision today with the same opprobrium with which we regard the draconian absurdities of the early English common law. Unfortunately, this observation will provide little solace to young Baby Z., his family, or those who are similarly situated. (fn11)

This observation is the prelude to a 41-page dissent concluding with footnote 48, which is five pages long.

In April, State v. Hodge (fn12) gave a plurality of the court an opportunity to hold that the Batson doctrine - that peremptory challenges may not be made on the basis of race - also applies to religious beliefs. Berdon was not interested in that academic discussion; he was upset that the majority did not reverse the conviction based on the evidence concerning peremptory challenges allegedly based on race. He noted that the Connecticut appellate courts have reviewed seventeen Batson challenges but sustained none, and concluded: "The majority in this case adds fuel to the public perception that the judicial branch will tolerate racism." (fn13)


Berdon in 1998 had written the 3-2 majority opinion in Paige v. St. Andrew's Roman Catholic Church Corp., (fn14) a routine tort appeal that Berdon himself admitted was "a close case." (fn15) justices Flemming Norcott and Richard Palmer joined his majority opinion affirming the large plaintiffs verdict. A motion for reargument was granted, resulting in July 1999 in a 5-2 decision for the defendant. (fn16) Palmer switched sides, explaining that what he considered a critical factual assertion in Berdon's majority opinion turned out to be mistaken. (fn17) Berdon's response was vicious. He concluded a lengthy tirade against Palmer as follows:

Finally, if justice Palmer had genuinely believed last September that this entire case pivoted upon the fulcrum of whether or not a single employee had a key to a door that was propped open at all relevant times, justice Palmer should have independently verified the relevant citations to the trial transcript that I included in the draft majority opinion that I circulated to the first panel that heard this case. His failure to do so last September strongly suggests that he recognized that the zen like detail of who had keys to an unlocked door is barely relevant, let alone dispositive. In short, justice Palmer has got to come up with something better than this if he wishes to justify his decision to jump ship by joining the opinion that justice Borden has written. (fn18)

What is so remarkable about this tirade is that Palmer's vote was not crucial - the vote would have been 4-3 for reversal even if Palmer had not changed sides.

Now we turn to a Berdon "concurring" opinion. In August 1999 the majority in Bortner v. Woodbridge (fn19) reinstated the results of an election on the ground that violation of certain election statutes had not been proven. Berdon concurred but, because the majority made a remark about the importance of the stability of the electoral process, Berdon had this to say:

First, I believe that part I of the majority opinion is dangerously misleading, and I write to set the record


straight . . . Pursuant to the legislative mandate contained in §9-328, it is the duty of the trial court to elevate integrity and accuracy over stability. To the extent that the majority opinion contains innuendo to the contrary, it should be disregarded. (fn20)

But that was not enough. He then complained that the majority is much more eager to reverse trial judges in election disputes than it is to do so in criminal cases involving peremptory challenges (for example, Hodge). (fn21) He concluded his concurring" opinion:

Apparently, my colleagues in the majority believe that a new election for the Woodbridge elementary school is more important than the perception among African-Americans that the overwhelmingly white legal system - which once enforced and legitimized both slavery and segregation - continues to discriminate against them. I am simply bewildered. (fn22)

On the same day Bortner was decided, the majority in State v. Misiorski (fn23) held 6-1 that the office of adult probation has the power to notify the community of a sex offender's conviction. Berdon dissented, concluding:

In short, the majority's grant of fascistic powers to probation officers cuts away a pound of flesh from the constitutional right to privacy. Accordingly, I dissent. (fn24)

In September, 1999, Berdon turned his extreme views toward a different target: statutory deadlines. In Schreck v. Stamford, (fn25) the majority construed the 10-day statutory deadline for appealing a workers' compensation commissioner's decision to start running when notice is sent to a party's counsel. Berdon was not interested in the niceties of construing whether "party" in the statute also meant "party's counsel." Unless the statute unambiguously provided that strict compliance with the deadline was a jurisdictional prerequisite, or unless there was prejudice, Berdon "would adopt the following universal rule. An appeal is timely if it is filed within a


reasonable time after a statutory deadline,. . . . " (fn26) As is stated...

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