2003 Connecticut Appellate Review
| Publication year | 2021 |
| Pages | 47 |
77 CBJ 47. 2003 Connecticut Appellate Review
A.. Statutory Interpretation
State v. Courchesne(fn1) was by far the most important decision in 2003. In overruling long-standing and widely accepted "plain meaning" rules of statutory construction in favor of a "purposive" rule, the Supreme Court established itself as a national leader in any discussion of how judges should decide what a statute means. Courchesne concerns not only what a statute means, but more broadly what language means. As the Courchesne dissenters noted in a later case,(fn2) the decision establishes a philosophy of judging. That a new philosophy of judging reliant on "purposive rule" was established in a death penalty case in which the new rule favors the state proved beyond a doubt that it applies to all cases.
Courchesne is a 5-2 decision. Justice Borden wrote the majority opinion; Justice Zarella, joined by Chief Justice Sullivan, wrote the dissent. Both opinions are exhaustive, scholarly presentations of the competing philosophical arguments.
Briefly, the majority holds that the court's role in interpreting a statute is to discuss the ultimate goal - the purpose - the legislature was intending to accomplish in writing the statute. While the text of the statute is the most important
evidence of that purpose, the text is not the purpose itself Accordingly, in all cases, even when the text is clear, the court will search elsewhere for confirming or contradicting evidence of legislative purpose
The dissent responds that legislative intent is found in the meaning of what the legislature said. If the text is clear, the court's inquiry is at an end. According to the dissent, granting the court the right to look beyond the text even when the text is clear makes it difficult for the public to rely on what the statute says and also permits the courts to interpret a statute to mean whatever they want it to mean.
We agree with the majority.(fn3) Justice Holmes put it well when he wrote that "a word is the skin of a living thought."(fn4) That is to say, people first have a thought and then they want to communicate that thought to others through language. Language is the means, not the end. That legislators may have conflicting thoughts expressed in the same language simply makes judging what the thought is more difficult or perhaps impossible, but the theory is the same: legislators have an end in mind and use language to accomplish that end. If evidence of the end is clear and the language used is plainly contradictory to reaching that end, why should judges turn a blind eye?
The majority approach is not an attempt by judges to put themselves in a position of greater power to do as they please. In reality, intellectually dishonest judges would no more be circumscribed by the majority approach than by the minority
one. In the latter case, they would simply declare clear text to be ambiguous and then go on to indulge their political predilections. Critics of the Warren Court have been known to level just such charges.
As is seen in the statutory construction cases decided since Courchesne, that decision is not a temptation to intellectual dishonesty - at least not in Connecticut. Through December 30, 2003, there are almost two dozen cases that apply the Courchesne analysis and reach the same result as would have been reached under the "plain meaning" rule. This is what one would expect if the Courchesne rule is being applied honestly, because it should be an unusual event for nontextual evidence to override text.
In each of these cases in which either Zarella or Sullivan sat, a concurrence was filed agreeing with the result but not with the Courchesne rule.(fn5) In the first such concurrence, Sullivan and Zarella pointed out - correctly in the authors' view - that this new rule of statutory construction is not subject to stare decisis because it is a rule of judicial philosophy and no collection of justices can tell other justices what philosophy to hold.(fn6)
Ironically, Sullivan and Zarella's views on judicial philosophy cast doubt on the constitutionality of a statute passed in 2003 essentially overruling Courchesne, effective October 1, 2003, and ordering the judiciary to use the "plain meaning" rule unless its use reaches an absurd result.(fn7) This is the rule to which Sullivan and Zarella adhere. But if the majority cannot tell the minority what judicial philosophy to hold, can another branch of government tell the majority what judicial philosophy to hold? The issue of who decides what the law means came up in the debates during the 1818 Constitutional Convention. Before 1818, the legislative branch of government reigned supreme. The leading proponent of the separa-
tion of powers, Nathan Smith, had this to say in the debate on Article Second:
Hitherto the supreme power had been vested in the legislature of the state; originally, the legislature possessed ALL power - they enacted and executed the laws; but few years since all petitions for new trials were brought before that body; they had very wisely to be sure parceled out their powers and given the judicial and executive into other hands - but the question is, will not the people declare, in whom the supreme power shall be vested and not leave the decision of it to the legislature? If the legislature have all power they may conduct prudently, as heretofore and they may not; the people are prepared to make this a fundamental article; the powers of the legislature have been so parceled out, that they are now really vested in three distinct departments - and since they have prepared the machinery, will they not make it permanent? The experience of mankind has proved that the supreme executive power can't be vested with safety in the legislature; the power of enacting laws can be confined to the legislature with safety - but can the power of executing them also be confined with equal safety? Shall the same power which enacts the law, have authority to put it in execution; let the executive power be distinct, and you may rely on a safe execution of the law. Coming to the Judicial department, shall the legislature be the judge, who is to put a construction upon the law which he has not made himself? Has not this been declared to be the very definition of despotism?(fn8)
At the end of Smith's speech, Article Second was "approved and accepted," apparently without dissent.(fn9)
The Supreme Court will no doubt need to grapple in 2004 with the new statute overruling Courchesne. This statute goes further than the legislative clarification cases, the latest being Bhinder v. Sun Co.,(fn10) holding that the legislature can clarify a previously enacted statute and its clarification will be applicable to pending cases, even if the Supreme Court has interpreted the statute to the contrary (as long as the Supreme Court decision does not terminate the litigation). But Bhinder involves the legislature's disagreeing with the
Supreme Court about what the legislature intended in a particular case; the Courchesne statute involves the more dramatic issue of whether the legislature can tell the courts how to go about doing their job.
It is a pity that the legislature saw fit to read Courchesne as a power grab by the majority when all the majority was doing was trying to protect the legislature from itself in those cases where the literal meaning of the text is clearly not what the legislature intended to accomplish. The only real problem with Courchesne is that it makes the work of statutory construction more time-consuming for judges and advocates. But if the extra effort leads to decisions that more faithfully accomplish what the legislature intended to accomplish, then that is effort well spent.
B. Procedural Issues
We now descend from Mt. Courchesne to discuss the more mundane issues of the day. Two Reviews ago(fn11) we complained about the Appellate Court's tendency to duck issues by blaming appellants for not filing what we thought were unnecessary motions for articulation. This is no longer a significant problem. The Supreme Court in 2003 took care of the Appellate Court's problematic 2001 decisions in Zahringer v. Zahringer,(fn12) where articulation was held unnecessary because the trial court decision was clear; Niehaus v. Cowels Business Media, Inc.,(fn13) where articulation was held unnecessary for summary judgment; Ammirata v. Zoning Board of Appeals,(fn14) where articulation was held unnecessary when appellate review is plenary and the facts are undisputed; and Connecticut National Bank v. Gager,(fn15) where articulation was held unnecessary when the record was held adequate for review and both parties agreed it was adequate. See also Gould v. Mellick & Sexton,(fn16) where, contrary to the
Appellate Court, the Supreme Court held that summary judgment could properly be rendered in a case involving complicated financial transactions.
We think the Appellate Court saw which way the wind was blowing before these cases were decided, because none of the decisions issued by the Appellate Court since the fall of 2002 leaves the authors with the impression that the Appellate Court unfairly ducked the merits. This satisfactory state of affairs of course does not signal a green light for lawyer sloppiness. Quite the contrary. In Alliance Partners, Inc. v. Voltarc Technologies, Inc.,(fn17) the Supreme Court affirmed an Appellate Court's dismissal of an appeal that was filed one day late. The lawyer's excuse was that he did not know how to compute the 20-day appeal period even though the rule was crystal clear and the Appellate Court had previously announced that only a good reason would avoid a timely motion to dismiss. We agree with the...
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