2009 Appellate Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 84 Pg. 1
Connecticut Bar Journal
Volume 84.


Connecticut Bar Journal
Volume 84, No. 1, Pg. 1
June 2010


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

I. Supreme Court

Last year did not have the fireworks of 2008 - Kerrigan v. Commissioner of Public Health.(fn1) Nor did one justice in 2009 stand out from the pack as Justice Richard Palmer did in 2008. But 2009 was not a bore either. Gne case, Honulik v. Greenwich,(fn2) is of great institutional importance, and one case, Rosado v. Roman Catholic Diocesan Corp., (fn3) got lots of press.

Honulik is the most important case in 2009. In 2000, the legislature passed an act, now codified at General Statutes Section 51-198(c), permitting justices who turn 70 after they hear oral argument but before the decision is released to participate in the decision, notwithstanding Article Fifth, Section 6 of the Connecticut Constitution, which states: "No judge shall be eligible to hold his office after he shall arrive at the age of seventy years ... ." Similar language was in Article Fifth, Section 3 of the 1818 Constitution.

Prior to 2000, the unwritten rule, almost universally followed by the justices since before 1818, was that any decision had to be released, or at least voted on, before a justice participating in the vote turned 70. This unwritten rule was apparently challenged by Justice Robert Berdon on the eve of his retirement in December 1999. In a dissent to a decision to consider a case en banc after oral argument, Doyle v. Metropolitan property and Casualty Ins. Co.,(fn4) Berdon said that the majority's view is that he can vote on a case only if it is publicly released before his 70th birthday. He then suggested the legislature might want to pass a statute to authorize a justice who sat at oral argument before age 70 to vote after age 70.

Shortly after Berdon retired, his suggestion led to a blast back from the rest of the court in Doyle (except Chief Justice Francis McDonald), that justices may well be constitutionally required to cease all Supreme Court decision-making before age 70.(fn5) The court stated that ceasing work before age 70 was the uniformly held view of all justices long before the current justices had been appointed.(fn6) The legislature disregarded this opinion and promptly adopted Berdon's suggestion effective in May 2000, just in time to allow Senior Justice Robert Callahan, who turned 70 in June, not to rush his decision-making process in a handful of cases on which he had sat a few months earlier.

McDonald turned 70 in January 2001. He mostly(fn7) continued the pre-2000 practice of not sitting on appeals too close to his retirement age. That way, the purpose of the statute to allow retiring justices to finish up their work without undue time pressure would be fulfilled without the unseemliness of a retired justice participating in a large number of decisions for months to come.

Justice David Borden, the next justice to retire (in August 2008), sat on only a few cases as late as May (although one was Kerrigan). But then came Justice Barry Schaller, whose 70th birthday was on November 23, 2008. He sat until November 20 and consequently this 2009 Review includes a great number of opinions on which he voted. Indeed, until well into 2009, his name was seen on opinions more than that of his successor, Justice Ian McLachlan, who did not start sitting until March.

So it is fitting that Honulik concerns the validity of a 3-2 decision by Schaller,(fn8) issued three months after he turned 70 (although in fairness to him, the case was argued seven months before his birthday).

The precise question is whether Schaller was holding office as a Supreme Court justice when he voted on a decision that was released after his 70th birthday.(fn9) The most convincing argument of Chief Justice Chase Rogers's 5-2 majority opinion that he was not is elaborated in two lengthy footnotes (14 and 15): Soon after the constitutional provision was enacted in I8I8, a statute was enacted permitting a constitutional judge (at that time a justice of the peace) to complete his business after the expiration of his term of office. This history was relied on in a decision in the I880s (fn10) to sustain the constitutionality of another statute permitting a Superior Court judge to dispose of business after ceasing to hold office. While the issue in Johnson concerned the preparation of a finding, which Johnson held to be a clerical act, the language of the decision was broader. In any event, preparing a finding is only clerical in the broadest sense of the word. Any lawyer who had to deal with the finding system, which was not abolished in jury cases until 1974 and in court cases until 1979, knows there was nothing clerical about it - the appeal often turned on what was or was not in the finding.

Less persuasive, but interesting, is another majority footnote (6) showing that in fact Justice Elisha Carpenter had participated in voting on a handful of cases that were decided in the month after he turned 70 on January 14, 1894. The majority refers to these cases as a "for example," but we are aware of no other examples since 1818.

While the issue is a close one, as can be seen by reading the dissenting opinions of Justices Joette Katz and Peter Zarella, we support the majority opinion.

Honulik provides an appropriate segue, not to the next case, but to the second major institutional decision of 2009: the decision in September to sit en banc in all cases.

Mr. Horton (but not Mr. Bartschi) had been calling for this action for several years in this forum. Starting in September all qualified justices will sit in all cases. If one or two justices are disqualified, the five or six remaining justices will decide the case. If six justices split it 3-3, an Appellate Court judge will be brought in to break the tie. (Ironically, when Appellate Court Judge Alexandra DiPentima was apparently brought up to do just that in State v. Nathan J.,(fn11) the justices apparently resolved their differences, because the vote was 70.) Only if more than two justices are disqualified, or if the case is a capital appeal (on which seven judges will always sit), will lower court judges sit at oral argument. Presumably, if there is a senior justice (there is none now), that justice will be the first to sit in place of a regular justice. And presumably, if a justice is qualified but absent, that justice will participate after reading the oral argument transcript.

It remains to be seen whether having all justices sit on all appeals will slow down (Mr. Bartschi's opinion) or speed up (Mr. Horton's opinion) the decision-making process, but one thing is clear: no longer will we cheer or groan as we used to do when we were told which two justices had been left without a chair when the music stopped.

The big headline case of the year is Rosado. The press mostly cared that, as soon as a hopeless petition for certiorari to the U.S. Supreme Court was disposed of, they would get to see the Catholic Church's dirty linen in the Bridgeport Diocese sex scandal from the 1990s. This story was particularly newsworthy because the Bishop of Bridgeport at the time became the Archbishop of New York, the most important Catholic seat in the United States.

We, however, are primarily interested in Rosado's institutional importance to the Supreme Court. As anyone who cares about the Supreme Court knows, retiring Chief Justice William Sullivan caused a crisis of confidence in the Supreme Court when he withheld publication of a decision that he thought might make the confirmation of his successor, Associate Justice Zarella, more difficult.(fn12)

The withholding was a symptom of a larger problem on Sullivan's watch: a general perception that too much secrecy attended judicial operations. This perception was fanned by the sealing of files of influential litigants.

When Sullivan stepped down as Chief Justice in March 2000 in the midst of the crisis, Governor Jodi Rell apparently decided not to appoint a replacement until the crisis was resolved. That left Borden, the justice with the highest seniority, as the acting Chief Justice for a year. His administrative actions in favor of openness attached widespread admonition by the legislature and the press.(fn13) Chief Justice Rogers has endorsed and followed up on his initiatives.(fn14)

With this background, Rosado was the perfect case for the Supreme Court to show that the initiatives of Borden and Rogers were supported by the court as a whole. In an opinion by Katz, the 4-1 majority, after disposing of a disqualification issue, specifically held that a document in a court file is presumptively available to the public if the court could reasonably rely on the docket in the performance of its adjudicatory function. Ergo, most discovery documents in the court file would be presumptively public even if the court had never made a discovery ruling.

The specific issue is itself not of great general significance because most discovery documents are not routinely filed with the court. But the specific issue highlights the broad issue, which is of great significance - that reasonable differences of opinion about the public's right to know are likely to be resolved in favor of the public.

And who was the dissenter? Former Chief Justice Sullivan.

With that we turn to free speech vs. the right to contract. In Ferricone v. Ferricone,(fn15) a marital dissolution case, the trial court had approved a confidentiality agreement providing that neither party would disseminate disparaging information about the other to the public and the press. After disposing of issues of contract law, and the unambiguity of the waiver of free speech rights, the court held that such rights may be waived by contract under both state and federal free speech law, that the agreement did not implicate...

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