81 CBJ 1. 2006 CONNECTICUT APPELLATE REVIEW.

• Author: BY WESLEY W. HORTON AND KENNETH J. BARTSCHI*

Connecticut Bar Journal

Volume 81.

81 CBJ 1.

2006 CONNECTICUT APPELLATE REVIEW

CONNECTICUT BAR JOURNALVolume 81, No. 1March 20072006 CONNECTICUT APPELLATE REVIEWBY WESLEY W. HORTON AND KENNETH J. BARTSCHI*I. CHIEF JUSTICE CONTROVERSY

In a normal year, the authors would move right to the decisions issued by the Supreme Court and the Appellate Court in the past year. But 2006 was not a normal year, so we shall focus initially on the brouhaha concerning Chief Justice Sullivan's temporary withholding of the decision in Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission1 in order to advance Justice Zarella's nomination to replace him as Chief Justice. For those who have been on Mars for the past year, we shall start by summarizing the basic, undisputed facts.

Justice Sullivan was appointed Chief Justice in January 2001 at the same time that Justice Zarella was appointed an associate justice. For much of Sullivan's tenure he had to deal with the discovery by the press of abuses in the sealing of trial court files. This led to more agitation by the press and concern by the Legislature for increased openness in general concerning the judicial branch.

In the midst of these developments, the Clerk, G.A. 7 case arrived at the Supreme Court's doorstep. Five justices, presumably selected by the Chief Justice, as is customary, heard oral argument in February 2005 on an appeal by the Freedom of Information Commission. The Superior Court had held that the Freedom of Information Act did not apply to a request for the judicial branch's criminal and motor vehicle computer system identifying pending cases because the request did not pertain to an administrative function of the judiciary, which was the only function disclosable under the Act.

Several months later, the Supreme Court ordered that the case be considered en banc.2 This is a common occurrence when the justices are split 3-2. Since Justice Vertefeuille was disqualified, the next most senior judge, Chief Judge Lavery of the Appellate Court, was chosen to replace her, as is commonly done.

On March 14, 2006, the six justices and Judge Lavery met and voted 4-3 in favor of Chief Justice Sullivan's opinion affirming the judgment and thus concluding that the requested records are not available to the public. Justices Zarella and Palmer and Judge Lavery joined the majority opinion. Justice Palmer also wrote a concurring opinion suggesting the attorney might be entitled to the records if he directly asked the judiciary rather than the F.O.I.C. for them. Justice Norcott, joined by Justices Borden and Katz, dissented. The three opinions were forthwith delivered to Kevin Loftus, the Reporter of Judicial Decisions, for proofreading, headnoting and publication. More about the opinions anon.

The very next day, March 15, Sullivan announced that he would resign as Chief Justice on April 15 and assume the status of senior justice. Two days later, March 17, Governor Rell announced her intention to nominate Justice Zarella as his replacement. The Judiciary Committee of the Legislature was not happy with the sudden turn of events because its calendar for the session was full. Cochairmen McDonald and Lawlor asked the Governor to postpone her nomination until after the session was over but she declined; they then asked Sullivan to postpone his retirement until January 1, 2007 but he declined. On March 30, the Judiciary Committee set a hearing on the Zarella nomination for April 18.

Meanwhile, back at the Supreme Court, shortly after the Clerk, G.A. 7 decision was delivered to Loftus, Sullivan, unbeknown to the other justices, told him to hold up publication. The rest of March came and went and Justice Palmer started to wonder why he had not gotten a proof of his concurring opinion from Loftus. In early April Palmer's clerk was dispatched to Loftus and soon thereafter Palmer got surprising news: Sullivan had put a hold on the decision. Palmer then asked Sullivan about the hold and got stunning news: Sullivan had put the hold on so as not to interfere with Zarella's prospects to be confirmed as Chief Justice. Sullivan was concerned that the Legislature would be upset with the result and Zarella's vote in Clerk, G.A. 7.

What to do now? Palmer spoke to Borden, the senior associate justice and, as of April 15, the de facto acting chief justice. During the week of April 17 several things happened. The six associate justices met and split 3-3 on whether to file a complaint with the Judicial Review Council. Borden then decided to inform the Governor and the Judicial Review Council on his own of what had happened. Before he did so, however, on Friday, April 21, the Clerk, G.A. 7 decision was made public on the judicial web site. Ironically, the decision attracted little immediate attention. Also ironically, during that week of April 17, it became evident that there was no time for the Judiciary Committee to hold a public hearing on Zarella's nomination and that therefore the nomination would not be considered in the current session.

On Monday, April 24, Borden delivered his letters and the public brouhaha began. Sullivan immediately confirmed his reason for holding the decision and offered in a letter to the parties to disqualify himself from any motion for reconsideration. The press, the Governor and the Legislature went into an immediate uproar. For most of that week, the headlines in the Hartford Courant concerned Sullivan's action and Zarella's nomination. The Judiciary Committee announced that it would conduct hearings on the Sullivan hold; the Governor, with Zarella's consent, withdrew his nomination; and the Legislature quickly passed a bill limiting the power of senior justices (Sullivan being the only current one) to sit on appeals. Meanwhile, Justice Borden on his own filed a complaint with the Judicial Review Council, although that was not publicly known until later. As a sidelight, an exchange of letters between Borden and Zarella also made public on April 24 concerning Zarella's position the preceding week showed a contentious relationship between the two.

The legislative session ended in May but the brouhaha proceeded apace. The Judiciary Committee set a hearing at which all justices except Sullivan offered to testify voluntarily. The Committee then subpoenaed Sullivan, who responded by moving to quash the subpoena. The motion was referred to Judge Eveleigh in Waterbury. The judicial branch, which had on Borden's authority retained counsel separate from Sullivan's, participated in the hearing. Judge Eveleigh agreed with Sullivan and the judicial branch and quashed the subpoena. The Judiciary Committee then canceled the hearing even though the other justices were willing to testify, and requested certification to appeal under C.G.S. § 52-265a, whereupon all the justices and the two most senior Appellate Court judges disqualified themselves. Judge Bishop of the Appellate Court granted certification and he and the other remaining six judges of that Court sat as the Supreme Court to hear the Committee's appeal on November 1.

In December Sullivan announced that he would testify voluntarily to the Committee and suggested to the Supreme Court that the Committee's appeal was therefore moot. While his claim had always been based on separation of powers, now he said he had only challenged the subpoena to protect his rights before the Judicial Review Council, whose proceedings had now concluded. Two obvious problems with this explanation were: (1) Had he raised in May what is essentially a routine due process issue, the Committee could have decided to postpone its hearing until the Council completed its proceedings, thus obviating the whole separation of powers issue; and (2) If he succeeds in his pending appeal from the decision of the Judicial Review Council, there may be a new evidentiary hearing. Nevertheless, as we complete our Review in mid-January 2007, it appears likely that the parties will resolve their differences. The Supreme Court issued a per curiam decision on January 12 that gives the parties a chance to do so and thus moot the appeal.3

Meanwhile, on July 20 the Judicial Review Council found probable cause on Justice Borden's complaint. Several days of public hearings then took place in the fall, concluding with an 11-1 decision that Sullivan had committed misconduct and would be suspended for 15 days. In December, Sullivan appealed to the Supreme Court, which may well have the same seven Appellate Court judges that heard the subpoena appeal deciding his fate. Sullivan continues to sit on appeals when other justices are disqualified. Even if his suspension is upheld, the impact on pending appeals on which he sat will be minimal since there would just be a 15-day hiatus when these cases could not be disposed of.

These two proceedings, plus the Governor's decision to postpone her decision on nominating a Chief Justice, guaranteed that the brouhaha remained in the public's mind throughout 2006.

One thing that should have happened did not. Clerk, G.A. 7 was officially issued on May 2, so the F.O.I.C. had until May 12 to move for reconsideration and accept Sullivan's invitation that he step aside. The F.O.I.C. voted 3-2 not to file a motion. The reason given by the F.O.I.C. chairman, who voted with the majority, was that it was improper to ask for reconsideration of a decision that had already been reconsidered. But Clerk, G.A. 7 had not...