2001 Connecticut Appellate Review

Publication year2021
Connecticut Bar Journal
Volume 75.




By Wesley W. Horton and Kenneth J. Bartschi*

I. Supreme Court

A. Continuity and Consensus

On January 22, 2001, Justice William S. Sullivan, age 61, became Chief Justice and Appellate Court Judge Peter T. Zarella, age 51, became an Associate Justice. With Justice David M. Borden becoming the oldest justice at age 63, there is a fair chance that there will be no changes on the Connecticut Supreme Court for over six years. In any event, with Justice Flemming L. Norcott, Jr., being 57 in January 2001, Justices Richard N. Palmer and Christine Vertefeuille both being 50, and Justice Joette Katz being 47, a high level of continuity is virtually assured over the next decade. One must go back to the 1940s to find a similar level of continuity over almost a whole decade.

The high level of continuity over the next decade is almost certain to be combined with a high level of consensus. Gone are Justices Robert I. Berdon and Francis M. McDonald, Jr., who dissented at the drop of a hat. In recent years there has been a high level of consensus among Justices Borden, Norcott, Palmer, and Katz; the following table shows that Justices Sullivan, Vertefeuille, and Zarella have every intention of joining that consensus:

Total 2001 Decisions: 147

Cases with Separate Opinions: 27 (18%)

Dissents Concurrences(fn1)

Sullivan 9 2

Borden 1 1

Norcott 2 0

Katz 5 1

Palmer 2 0

Vertefeuille 6 1

Zarella 4 1

McDonald 5 1

Other 3 0

While Chief Justice Sullivan's number of separate opinions is higher than anyone else's, eleven is nothing at all compared with the numbers in 1999, when Berdon voted for 64 separate opinions, 59 of which were dissents, and McDonald voted for 39 separate opinions, 29 of which were dissents.(fn2)

Consensus there may be today, but there still are differences. As the chart makes clear, it is hard to lose if Norcott, Palmer, or Borden is on your side.

The pattern of separate opinions shows some consistency. Sullivan never voted alone for a separate opinion. Undoubtedly he feels, unlike McDonald, that a chief justice's effectiveness is diluted if he is perceived as being a lone wolf. When he voted for a separate opinion, it most often was with Vertefeuille (six times out of eleven). That of course means that, of Vertefeuille's seven votes for a separate opinion, six were with Sullivan.

The Vertefeuille-Sullivan separate opinions are worth examining, both for their views and the views of the majority. Vertefeuille and Sullivan are more cautious than the majority of the court in finding clear error in factual questions and abuse of discretion in discretionary rulings. In Commissioner of Transportation v. Towpath Associates,(fn3) a condemnation case, the issue was whether the trial court properly found that the highest and best use of the condemned property was as a bridge site. While the case involved an interesting question of law (the doctrine of assemblage), the dispositive issue, as noted in Vertefeuille's dissent, was whether the findings of fact were clearly erroneous. Katz's majority opinion, joined by Borden and Palmer, shows considerable willingness if not enthusiasm to delve into the details of the case and to give somewhat less deference than Vertefeuille and Sullivan to the factfinder if the factfinder's reasoning or result seems dubious or unusual.

Three other Vertefeuille-Sullivan dissents occurred in criminal cases. In State v. Hammond,(fn4) the majority, once again in an opinion by Katz joined by Borden and Palmer, reversed a criminal conviction outright on the ground that there was no reasonable and articulable suspicion to stop and detain the defendant. While there was no issue concerning the finding of facts, the legal analysis by the Supreme Court was fact-intensive. The majority said there was not such a suspicion; Sullivan, joined by Vertefeuille, said there was. In State v. Slimskey,(fn5) the majority, in an opinion by Katz joined by Borden and Norcott, reversed a criminal conviction because the trial court abused its discretion in not disclosing portions of the victim's school records to the defendant. Once again, the analysis was fact-intensive. Vertefeuille, joined by Sullivan, would not have found an abuse of discretion.

The third criminal case, however, breaks the mold. In State v. Russo,(fn6) the 3-2 majority consisting of Palmer, Katz, and Zarella held that the privacy protection afforded to prescription records for controlled drugs is outweighed by the state's right to review such records without a search warrant in the course of an administrative inspection of a pharmacy as part of a criminal investigation. Remarkably, Katz was in the majority; Sullivan, joined by Vertefeuille, would have held the inspection a violation of the Fourth Amendment.

Russo aside, Vertefeuille's tendency to show greater deference to the trial court than the other justices is also seen in her solo dissent in Millbrook Owners Assn., Inc. v. Hamilton Standard,(fn7) where Borden's majority opinion, after making a detailed analysis of the trial court proceedings, found that the trial court abused its discretion in dismissing the case on the ground of an alleged violation of discovery orders. Vertefeuille, in a sharply worded dissent, would have found no abuse of discretion. Sullivan did not sit on Millbrook.

Vertefeuille may turn out to be an occasional foil to Borden, as one sees in Millbrook. She is more of a stickler for procedural regularity, whereas Borden is more likely to surmount a procedural problem if he perceives no unfairness in doing so. A good example of such sparring is Levey Miller Maretz v. 595 Corporate Circle,(fn8) where Borden's majority opinion, joined by Norcott and Katz, reached a subsidiary issue not raised by the appellee because the issue was "injected into the case by the reasoning of the Appellate Court"(fn9) and because it undermined the main certified issue. Vertefeuille, concurring in the result and joined by Sullivan, would not have reached the subsidiary issue because it was not properly raised. Vertefeuille also thought the majority was improperly resolving a disputed issue of fact.

The authors may be sticking their necks out (the readers will know by the time this article is published), but Travelers Ins. Co. v. Namerow(fn10) could turn out to be another round in the occasional Borden/Vertefeuille sparring. Vertefeuille, writing for the majority and joined by Norcott and Appellate Court Judge Joseph P. Flynn, refused to decide whether the defendant was entitled to a charge to the jury that motive is a necessary element of a claim of civil arson on the ground that the defendant's special defense did not have language that either asserted or implied that position. Katz, joined by Sullivan (!), disagreed on the procedural issue and then would have ruled on the merits, contrary to previous rulings of both the Supreme Court and Appellate Court, that motive should be a necessary element of the defense. Three weeks after the ruling, the Supreme Court granted reconsideration en banc, with Borden and Zarella added to the panel (Palmer was disqualified). As we write, a decision is pending.

It is quite interesting that Vertefeuille's 3-2 majority in Travelers is being reconsidered en banc but none of the 3-2 decisions in which she dissented is. It is of course possible that disqualifications prevented reconsideration of the other cases en banc, but it is also possible that the two missing justices saw no reason for reconsideration because they did not see the need to afford the same degree of deference to the trial court as Vertefeuille did.

None of the above 3-2 and 4-1 decisions (except for Russo ) made many newspaper headlines this past year. We discuss them because they are easy to overlook by busy lawyers who glance at headlines in the Law Journal and quickly move on. While not big cases, they often tell lawyers much more than the big ones about how the Court as a whole is really approaching cases, especially because dissents, if they do nothing else, force all of the majority's reasoning process into the open.

The authors draw several conclusions from these divided opinions. First, as has been the case for several years, Borden, Norcott, Katz, and Palmer in 2001 were the core of the court; they do not always agree, but they show a common judicial philosophy of moderate (but no more) deference to the trial court's factfinding and discretionary rulings and moderate (but no more) insistence on procedural regularity by the litigants. For Sullivan and especially Vertefeuille, "strong" rather than "moderate" is probably the more accurate adjective. Interestingly, Zarella participated in only one of these split decisions, Russo (plus he voted for reconsideration in Travelers ).

B. Reversals of the Appellate Court

While there is some division in the Supreme Court about how much slack should be given to trial judges, there is very little about how much slack should be given to the Appellate Court. It would not be an understatement to say that the Appellate Court received a thorough manhandling by the Supreme Court in 2001.

In previous years and for at least a decade, the reversal rate on cases certified by the Supreme Court after decision by the Appellate Court has hovered around 50%. In 2001, the reversal rate was 65% (30 out of 46).(fn11) Not only has the reversal rate gone up, but the reversals are hardly ever on important issues.(fn12) To some extent, the high reversal rate may be explained by the fact that the Supreme Court is granting certification on fewer cases. But, as a number of decisions we will now discuss demonstrate, that cannot be the whole story.

For the Appellate Court, the most embarrassing reversal was in Rosato...

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