2005 Connecticut Appellate Review

Publication year2021
Connecticut Bar Journal
Volume 79.


VOLUME 79, NO. 2




When this article was initially submitted for publication in March 2006, the most important recent Connecticut appellate case was the review of the Connecticut Supreme Court's decision by the U.S. Supreme Court in Kelo v. New London.(fn1) But as we now well know in late April, the most important Connecticut appellate case argued in 2005 in fact has the mundane title of Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission.(fn2) It was the most important case, not because of its holding, but because of Chief Justice Sullivan's unilateral decision to put a hold on the issuance of the decision after it had been approved in order to advance Justice Zarella's chances of being confirmed as his replacement as chief justice on Sullivan's retirement on April 15, 2006. (Sullivan, who is 67, is to continue as a senior justice.) Sullivan's rationale apparently was that the legislature might be upset with the 4-3 decision by Sullivan that Zarella joined.

So let us first examine the opinion. The F.O.I.C. ordered the clerk of G.A. 7 to disclose certain information in the court's computer system concerning pending cases .The issue was whether the records served "adjudicative functions," in which case they were exempt, or "administrative functions," in which case they were not. In 1984, the Supreme Court unanimously gave "administrative functions" a restrictive reading because of separation of powers concerns and held that the requestor was not entitled to notice of and access to meetings of the Superior Court Rules Committee.(fn3)

* Both of the Hartford Bar. This Review considers all cases argued on appeal between September 2004 and May 2005 and officially reported by May 16, 2006.

1 125 S .Ct. 2655 (2005), affirming 268 Conn. 1, 843 A.2d 500 (2004) (en banc). Mr. Horton argued the case in the U.S. Supreme Court on behalf of the defendants.

2 278 Conn. 28 (2006).

3 Rules Committee of the Superior Court v. Freedom of Information Commis-

In a 4-3 decision in Clerk of the Superior Court, the majority followed the "restrictive reading" holding of Rules Committee and ruled in favor of the clerk. The dissent on the other hand emphasized certain contrary dicta in Rules Committee. Justice Palmer, who cast the key vote, wrote a concurring opinion noting the presumptive right of access the public has to judicial records - but not necessarily on the F.O.I.C.'s timetable. The authors find Palmer's concurring opinion attractive, recognizing as it does the separation of powers issue without losing sight of the public's legitimate interest in what goes on in its courts. The irony is that a nod in the majority opinion toward Palmer's concurrence might have lessened the anticipated adverse legislative reaction.

The other irony, of course, is that the justified uproar over Sullivan's hold on the release of the opinion for a political reason has far overshadowed any adverse reaction to the decision itself. His hold was clearly improper and has cast a pall over the whole court. The reaction of the other justices to Sullivan's hold has also exposed a serious rift in the relationship between Justices Borden and Zarella, about which more anon.

The authors, whose professional life revolves around the business of the Supreme Court, are simply heartsick about the situation, which they hope and pray will be speedily and fully resolved.(fn4)

So now back to Kelo.

In a 5-4 decision, the U.S. Supreme Court affirmed the Connecticut Supreme Court's 4-3 decision that the power of eminent domain is properly used to condemn private property for private development pursuant to a long-range municipally developed plan to provide benefits for an economically distressed municipality. Such a condemnation constitutes a "public use" under the Fifth Amendment. The decision created a firestorm of criticism across the political spectrum,

4 There is one non-issue in this sorry affair. Some may think there is something suspicious in the 4-3 vote because the case was originally heard by five justices, three of whom ended up as the dissenters. But under P.B. § 70-7(b), only the Supreme Court as a whole (not just the chief justice) can add two more justices after oral argument. When the court is split 3-2, it is not unusual to add the two remaining justices. As it happens, Justice Vertefeuille was disqualified, so the most senior appellate judge, Chief Judge Lavery, replaced her. Nothing suspicious there either.

with both state and federal legislators talking about curbing such powers statutorily.

While the political ramifications of Kelo have been much discussed in the press, two other points are of particular interest in an article focusing on the Connecticut appellate courts. First, while the U.S. Supreme Court majority generally tracked the reasoning of the Connecticut Supreme Court majority in relying on a 50-year-old precedent, Berman v. Parker,(fn5) the U.S. and Connecticut dissents bear no resemblance to each other. In the U.S. Supreme Court, the principal dissent by Justice O'Connor bitterly attacked the majority's reliance on Berman and predicted dire consequences.(fn6) Justice Thomas's lone dissent went further and essentially would have overruled Berman and the circa 1900 precedents on which it relied.(fn7) On the other hand, Justice Zarella's dissent completely accepted the majority's reliance on Berman but agreed with the plaintiffs' back-up argument that a higher standard of proof should be required to permit eminent domain for private development.(fn8) In the U.S. Supreme Court, the majority brushed off this argument(fn9) and the two dissents completely ignored it.

The second point of particular interest here is that Kelo is the first case since 1985 in which a petition for certiorari from a decision of a Connecticut state court was granted. The last such case was State v. Barrett.(fn10) Barrett was of little significance, involving the use of an incriminating statement in an unusual fact situation. Before Barrett, the last case coming directly from the Connecticut state courts was Caldor's, Inc. v. Thornton,(fn11) a modestly important decision about the Establishment Clause. To find a Connecticut state court decision providing the grist for a U.S. Supreme Court

5 348 U.S. 26 (1954). Berman permitted eminent domain for private development as long as the overall area to be condemned was blighted, even though Mr. Berman's property itself was not. It is a mystery to the authors why the public was shocked, shocked! that Kelo came out the way it did.

6 125 S.Ct. at 267 1-77.

7 125 S.Ct. at 2677-87.

8 268 Conn. at 154-72.

9 125 S.Ct. at 2667-68.

10 197 Conn. 50,495 A.2d 1044 (1985), rev'd, 479 U.S. 523 (1987).

11 191 Conn. 336,464 A.2d 785 (1983), aff'd, 472 U.S. 703 (1985).

decision as significant as Kelo, one must go back 40 years to State v. Griswold,(fn12) the principal foundation for Roe v. Wade.(fn13)

Next to Clerk and Kelo, the Connecticut appellate cases that most transfixed the press and public in 2005 concern Michael Ross's decision to drop all proceedings contesting his sentence of death.

First, a note about those sitting in judgment on appeal. The Supreme Court apparently has a baseboard rule that all death penalty appeals will be heard en banc regardless of how many justices are disqualified. In the Ross proceedings, where three justices did not sit, three Appellate Court judges sat along with the remaining four Supreme Court justices. This is unfortunate because it leaves open the possibility that one justice, with the support of three lower-court judges, can outvote three justices. As will be seen, that almost came to pass.

Since Ross wanted to abandon all court proceedings, others tried to stop his execution, initially scheduled for late January 2005. The principal case was brought as a writ of error by his former attorney, the public defender, from a decision in which the trial court refused to schedule a hearing on the public defender's claim that Ross was incompetent. The Supreme Court held in State v. Ross(fn14) that the public defender was aggrieved of the trial court's decision that he lacked standing, but that his offer of proof on incompetence was insufficient to establish his standing to be afforded an evidentiary hearing.

With Ross's execution looming in a few days, there was a flurry of other litigation. In Missionary Society of Connecticut v. Board of Pardons & Paroles,(fn15) the court held the judiciary had no jurisdiction over the Board's refusal to hold a commutation hearing, and in In re Application for Writ

12 151 Conn. 544, 200 A.2d 479 (1964), rev'd, 381 U.S. 479 (1965). The Connecticut Supreme Court had held, based on a long line of precedents, that the legislature could prohibit even married couples from using contraceptives.

13 410 U.S. 113 (1973)

14 272 Conn. 577, 863 A.2d 654 (2005) (en banc).

15 272 Conn. 647, 866 A.2d 538 (2005) (en banc).

of Habeas Corpus by Dan Ross,(fn16) the court held Dan Ross, Michael Ross's father, had no standing to argue that the execution should be stayed until another court determines in a pending habeas corpus proceeding in which Michael Ross was not a party whether racial disparities exist in the imposition of the death penalty.

While the result in those cases was unanimous, in a separate ruling denying a motion to stay by Dan Ross,(fn17) Justice Norcott and Judges Lavery and Dranginis dissented on the ground that the Supreme Court should sua sponte stay Ross's execution until the habeas corpus proceeding was completed.(fn18) The three justices in the majority prevailed because of Judge Foti's vote.


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