2000 Connecticut Appellate Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 75 Pg. 26
Connecticut Bar Journal
Volume 75.





In recent years, we have tended to focus on one justice: 1999 was the Year of the Berdon,(fn1) 1998 was the Year of the Katz,(fn2) 1997 was the Year of the McDonald.(fn3) Justice McDonald was appointed Chief Justice in September 1999 and turned 70 on January 22, 2001, a week or so before our manuscript was submitted to the editor for publication. Since 2000 was expected to be his year in the sun (Berdon overshadowed him and everyone else in late 1999), we likewise expected to focus on him in this Review.

A new statute and McDonald himself have foiled our plans. Article Fifth, Section 6 of the Connecticut Constitution requires all justices and judges to retire at age 70 except that a judge over 70 may exercise the powers of a Superior Court judge to the extent the Legislature permits. The Legislature had previously stretched this section to allow retired Supreme and Appellate Court judges to sit on the Appellate Court, one per case.(fn4) In 2000, the Legislature stretched it further to allow judges who sat at oral argument on Supreme Court cases before they were 70 to decide those cases thereafter.(fn5) So instead of having McDonald hear his last appeal in


September or October 2000 and participate in his last decision before January 22, 2001, he presided as usual through the January 2001 Term and will no doubt be participating in the decisions of the Supreme Court for the rest of this year. On a trivial note, this state of affairs means that we will be in no position to sum up McDonald's work as chief justice until next year. On a serious note, it means that we will be treated to quite a spectacle throughout 2001: two parallel chief justices. While the statute has stretched the constitution to its limit, McDonald has gone one step further and stretched the statute to its limit. It is one thing to allow a retired justice to finish a handful of cases without having to rush to meet an inflexible deadline, as happened in late 1999 with Justice Berdon. It is quite another to hear cases right up to the deadline so that the retired justice hangs around as a virtual chief justice for months on end. The Supreme Court characterized such a situation for even an associate justice as being "unseemly."(fn6) McDonald dissented. He urged the Legislature to adopt the very provision that became Public Act 00-191.(fn7)

Chief Justice McDonald no doubt played the starring role in one major event in 2000: the Court's workload plunged dramatically. In the cases heard from September 1999 to June 2000, the court wrote approximately 135 decisions. In the previous court year it wrote approximately 155 decisions. That total itself was a reduction from approximately 175 in 1997-98. The dramatic workload reduction in 2000 does not mean that the cases it did hear were decided faster. Over a dozen cases were undecided by the August 2000 break; those decisions came dribbling out all fall and into January 2001. As we write in late January 2001, five remain undecided.


The workload reduction, accompanied by slower decision-making, is especially remarkable because Senior Justices Peters and Callahan were available for part of the year to sit on cases and write opinions. The high number of justices combined with the low number of cases meant that each regular justice had an average of two opinions to write per term, or about 16 for the whole year. Added to this was McDonald's penchant early in his tenure to appoint Superior Court judges to hear an abnormal number of appeals (that practice seems to have stopped by spring). Finally, McDonald did not assign many appeals for a hearing en banc. Chief Justice Callahan, who presumably was in charge of assignments for the September 1999 Term (McDonald did not become chief justice until September 15), assigned five cases for an en banc hearing that month. McDonald assigned nine cases for an en banc hearing for the next seven terms combined. In fact he dissented when the Court voted to decide Doyle en banc after oral argument.

With Berdon gone, McDonald lost some of his enthusiasm for dissenting, as the following table shows (although many of his separate votes were in the most important cases):

Separate Opinions - January 4, 2000 to January 2, 2001

Dissents Concurrences

McDonald 14 2

Borden 0 0

Norcott 4 0

Katz 6 0

Palmer 2 0

Sullivan 6 1

Vertefeuille 2 0

So in the 12 months after Berdon left, McDonald joined 16 separate opinions; in the prior 12 months, the number was 39.

While McDonald still dissents far more than anyone else, he does not attract any consistent allies. In eight cases he dissented alone, in three he dissented or concurred with Sullivan, in one with Vertefeuille, in one with Palmer, in one with Peters, in one with two Appellate Court judges and in one with Sullivan and Katz. There are few other patterns in


voting. Sullivan and Vertefeuille, who joined the Court in September 1999 and January 2000 respectively, dissented together in one case; otherwise Vertefeuille was in the majority in five of the six other times Sullivan wrote a separate opinion (Sullivan was not on the second case in which Vertefeuille dissented). However, in all four cases where Norcott dissented, Katz joined him.

Petitions for certification fared more poorly in 2000, no doubt due to Berdon's retirement. In the fall of 1999, before he retired, the grant rate was 25 out of 103 (24%). In calendar 2000, the grant rate was 53 out of 281 (19%). While McDonald occasionally dissented along with Berdon from the denial of certification in 1999, he dissented not once in 2000. Nor did anyone else. In general, the Supreme Court was very consensus-oriented in 2000; with McDonald's retirement it is likely to become even more so.

The most important state constitutional decision in 2000 was Ramos v. Vernon,(fn8) authored by Katz and holding that Vernon's teenage curfew ordinance does not violate any of several provisions of the Connecticut Constitution. The most significant aspect of the otherwise unanimous en banc decision was the expansion of the facial challenge doctrine. Previously facial challenges were generally limited to free speech (Article First, §§ 4, 5 and 14) and vagueness (§ 8) issues. Ramos, over the protest of Sullivan and McDonald, expanded such challenges to equal protection (§§ 1 and 20), search and seizure (§ 7), personal liberty (§ 9), and substantive due process (§ 10) claims. If the facial challenge doctrine applies in these additional areas, it seems likely that Ramos will be cited as authority for applying it to virtually any state constitutional claim.

An interesting counterpoint to Ramos is State v. Ehlers,(fn9) a unanimous en banc decision authored by Sullivan holding that the First Amendment does not apply to child pornography and therefore a facial challenge to the vagueness of the pornography statute's applicability to 16- and 17-


year-olds was not permitted. No state constitutional issue was mentioned.

Seymour v. Elections Enforcement Commission,(fn10) a 3-2 decision by Norcott with McDonald and Sullivan dissenting, held that a statute requiring campaign statements to say by whom the statements were made did not violate the First Amendment. No state constitutional claim was discussed on this point, although a state separation of powers claim concerning the appointment of the members of the commission was also rejected, apparently unanimously.

A state and a federal constitutional claim were raised in ATC Partnership v. Windham,(fn11) authored by Peters. The Supreme Court held that there is no freestanding constitutional tort claim for allegedly arbitrary seizure and condemnation of real and personal property. The Court distinguished between personal and economic interests and pointed out that there was no claim of a physical confrontation with the police or illegal entry by the police into a private home. The Court thus followed Kelley Property Development, Inc. v. Lebanon,(fn12) and distinguished Binette v. Sabo.(fn13)

Falco v. Institute of Living(fn14) gave a narrow construction to legislative exceptions to the psychiatrist-patient privilege; Falco went on to hold the right to redress under Article First, §10 is not implicated by a ruling that may make it difficult for a plaintiff to gather the evidence necessary to establish a cause of action. Falco held that §10 is implicated only if a statute restricts or alters the cause of action itself.

State v. Webb,(fn15) authored by McDonald, held that a lethal injection does not constitute cruel and unusual punishment under the Connecticut Constitution, and State v. Gibbs,(fn16) authored by McDonald, discussed various statistical models for determining a fair cross-section in selecting a jury array. The mathematically challenged should avoid Gibbs.State v. Glenn,(fn17) authored by Callahan, held that Article First, § 7 does not allow a subfacial challenge to an informant's veracity in a warrant application.

The most dramatic criminal case in 2000 was State v. Johnson,(fn18) a 4-3 decision reversing a death penalty because near instantaneous death from a burst of bullets does not show an intention to inflict physical or psychological pain or torture. The majority opinion was written by Katz but joined in by the more conservative Borden, Palmer and Callahan. McDonald wrote an emotional dissent joined by two Appellate Court judges. Johnson is an example of questionable use of the chief justice's assignment powers. It is one thing to add a lower court judge to make a full panel of five justices if necessary because of disqualification or absence. It is quite another to add to a full panel to make an artificial en...

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