2008 Connecticut Appellate Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 83 Pg. 1
Connecticut Bar Journal
Volume 83.


Connecticut Bar Journal
Volume 83, No. 1, Pg.1
MARCH 2009


By Wesley W. Horton and Kenneth J. Bartschi (fn*)

I. Supreme Court

A. Top Three Decisions of2008

After fifteen years on the Supreme Court, Justice Richard Palmer can rightfully claim that 2008 was the Year of the Palmer.(fn1)He wrote the majority opinion in the most important case of the year, Kerrigan v. Commissioner of Public Health,(fn2) and he wrote either the majority opinion or a major concurring opinion in the second and third most important cases of the year, State v. DeJesus,(fn3)and State v. Salamon.(fn4 )Thus, Palmer starred in all three of the most important decisions of 2008.(fn5)

1. Kerrigan

Kerrigan is the most important case of the year and is the one decision that made national headlines. For the benefit of anyone in a coma for the last few months, Palmer held for a 4-3 majority in October 2008 that the exclusion of same-sex couples from the right to marry violates the equal protection provision of Article First, § 20 of the Connecticut Constitution. With the approval of a referendum in California overruling a similar California decision, Connecticut, Massachusetts, Iowa, and Vermont are now the only states permitting same-sex couples to marry.

In a gloriously eloquent opinion, Palmer decried the traditional societal and governmental discrimination against gay people. While the rights of such individuals are not specifically mentioned as one of the suspect categories of Section 20, Palmer developed a test for identifying quasi-suspect classes under the state constitution. He identified two factors-a history of discrimination and a distinguishing characteristic that bears no relation to the ability to contribute to society-^that must be shown in order for a plaintiff to prevail. Two additional factors-immutability, and minority status or lack of sufficient political power to remedy the wrong through the legislative process-may also be considered and presumably could be dispositive in a close case. Palmer concluded that all four factors were established and thus sexual orientation constituted a quasi-suspect class. Palmer's analysis is particularly exhaustive concerning the fourth factor (political powerlessness). Applying heightened scrutiny, he also rejected the state's reasons-^uniformity with other jurisdictions and tradition-as being insufficient to exclude same-sex couples from marriage.

One gripe the authors do have, that Palmer's opinion highlights, has to do with the constitutional analysis outlined in State v. Geisler.(fn6) Ironically, Palmer's opinion illustrates why the six-prong Geisler analysis mandated for state constitutional adjudication is much too wooden and should be overhauled. It is just plain weird for the majority first to have a 70-page exposition on general equal protection principles and then, oh, by the way, to conduct a 24-page Geisler review. If the first prong of Geisler is a textual analysis of the relevant constitutional provision, that analysis ought to come first. The problem is that the six categories, called "tools," overlap, are not of equal importance (although Geisler does not put the tools in any particular order of importance), and often provide unpersuasive information. For example, in Kerrigan, tool number 4, sibling state decisions, was largely rejected because the adverse decisions did not impress the majority. Indeed, Kerrigan emphasized what Geisler itself did not - that it is persuasive sibling state authority, which in Kerrigan included New York Chief Judge Kaye's and New Jersey Chief Justice Portiss's dissents, that counts.

Palmer was joined in the majority by Justices Flemming Norcott and Joette Katz and Appellate Court Judge Lubbie Harper.(fn7) There were three dissenting opinions. Justice David Borden,(fn8) joined by Justice Christine Vertefeuille, largely agreed with the constitutional principles in the majority opinion but disagreed with the application of the quasi-suspect class principle to gay rights.(fn9)

Borden held that all four factors discussed by the majority for quasi-suspect status had to be established and that, because gay people had sufficient political power, judicial intervention under heightened scrutiny was unnecessary to remedy the harm claimed. Borden concluded that incremental change sufficiently supported the legislature's decision to enact civil unions rather than extend marriage to same-sex couples. Vertefeuille also filed her own brief dissent to emphasize the heavy burden the plaintiffs faced in challenging the marriage laws.(fn10)

Finally, Justice Peter Zarella wrote a lone dissent that showed a judicial philosophy far different from not only the majority but also the other two dissenters. He argued that the purpose of marriage is to encourage responsible procreation and child-rearing. Since same-sex couples do not procreate naturally, they are not similarly situated to opposite sex couples. He concluded that rational basis review applied. Further, any underinclusion or overinclusion (given that some opposite-sex couples do not procreate and some same-sex couples rear children) is permitted under rational basis analysis.(fn11)

Concerning the level of scrutiny, the Kerrigan decision plowed new judicial territory in basing its decision on quasi-suspect class analysis, unlike Goodridge v. Department. of Public Health,(fn12) which decided the case on rational basis, and In re Marriage Cases,(fn13) which decided the case on strict scrutiny.

Kerrigan also plowed new political territory in surviving the November 2008 election returns, unlike the decision in California.(fn14) While Connecticut, unlike California and many other states, never succumbed a century ago to the populist impulse to add ballot initiatives to state constitutions, November 2008 coincidentally happened to be the time that comes every 22 years to decide whether a state constitutional convention should be convened. Those opposing gay marriage had for months been promising a yes vote so that a ballot initiative could be added to the constitution. When Kerrigan was unofficially released on October 10, 2008, their efforts redoubled. But, contrary to the prediction of the polsters, they failed by a considerable margin (nearly 60%) and there will be no constitutional convention. The no vote reflects the lack of any real political fallout from Kerrigan. It is an important victory for gay rights advocates and can reasonably be viewed as a ratification of Kerrigan and the voters' deference to the court's authority to adjudicate constitutional claims.

2. DeJesus

State v. DeJesus(fn15) garnered no publicity, nationally or otherwise, but it is the second most important case of 2008. It held that the Code of Evidence adopted by the Judges of the Superior Court, while binding on them, is not binding on the Supreme Court.

Like Kerrigan, DeJesus yielded four opinions. Unlike Kerrigan, DeJesus did not yield a majority opinion. Indeed, all four opinions in DeJesus are quite different from one another, although six of the justices agreed that the Code of Evidence is not binding on the Supreme Court. Chief Justice Rogers wrote in the plurality decision, joined by Justices Norcott and Vertefeuille, that the Superior Court judges' intent to bind the Supreme Court was ambiguous. Because of doubt whether the judges could constitutionally do that, the plurality decided that the judges did not do so.(fn16) Justice Palmer, writing for himself, concluded that the judges unambiguously did not intend to bind the Supreme Court because they had no constitutional power to do so.(fn17) Justice Zarella, writing also for Justice Sullivan, considered the intent of the judges unimportant, because they had no constitutional power to bind the Supreme Court.(fn18) Finally, Justice Katz, writing for herself, said, a pox on all your houses, the judges did it and they had the power to do it.(fn19) Former Justice Borden, the father of the Code, must be rolling in his office (at the Appellate Court).

DeJesus abounds in interesting issues, but the intention of the Superior Court judges is not among them. If there is any ambiguity in their language, Katz wins that one, especially with the additional materials she cites in replacement pages(fn20 )concerning Borden's communication with the judges while the Code was being considered. The really interesting jurisprudential questions are:

(1) Can a Code of Evidence adopted by the Superior Court judges bind the Supreme Court?;

(2) If not, does it make sense to have a Code that is binding on one court but not another?;

(3) Can the Supreme Court itself adopt a Code of Evidence?

(4) If so, should it?

(5) Is there a difference between a rule of evidence and a rule of practice?

(6) If not, can the legislature overrule a rule of evidence?

(7) Where does State v. Clemente(fn21) stand in all this?; and

(8) What about the Appellate Court?

Question (1) was explicitly answered "no" by Palmer, Zarella, and Sullivan and "yes" by Katz. The other three doubted the Superior Court's power to bind the Supreme Court. The key here is the traditional powers of the Supreme Court, especially those existing in 1818, when the first constitution was adopted. Here Katz is on weak ground. Rogers points to a number of pre-1818 cases in which the Supreme Court was exercising its common-law powers to decide a rule of evidence. Palmer and Zarella also emphasize this point in their concurring opinions. Katz notes in her lone dissent that the legislature itself could pass a Code of Evidence binding on all the courts. That is true, but it is no answer constitutionally. Just because the legislature, as a coordinate branch of government, has had the traditional power to change the rules of evidence does not mean the...

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