2010 Appellate Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 85 Pg. 47
Connecticut Bar Journal
Volume 85.


Connecticut Bar Journal
Volume 85, No. 1, Pg. 47
March 2011


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

I. Supreme Court

The Supreme Court justices are probably delighted that no statewide elections are scheduled for 2011. This past year kept them rather busier than usual on that score.

Three election cases forced them on three separate occasions to drop everything else for several days to attend to urgent election business. The first was Bysiewicz v. Dinardo,(fn1) holding that the plaintiff, the sitting Secretary of the State, was not statutorily qualified to run for the office of Attorney General. The second was Foley v. State Elections Enforcement Commission,(fn2) holding that a non-endorsed candidate for Governor could pool his qualifying contributions with those of the endorsed candidate for Lieutenant Governor in order to be eligible for public financing of his primary campaign. The third was Butts v. Bysiewicz,(fn3) holding that neither the Secretary of the State nor the Superior Court has the power to extend a statutory deadline for the filing of a particular election document with the office of the Secretary of the State.

In Bysiewicz, the court gave a generous reading of the declaratory judgment rules to allow the plaintiff to litigate her eligibility before she was even nominated by the Democratic Convention in May. The court then gave an expansive reading to the statute requiring the Attorney General to have ten years' "active practice at the bar of this state."(fn4) Five of the seven justices held that the quoted language means a lawyer with some experience litigating cases in court, which would disqualify lawyers with an exclusively office practice. The two concurring justices thought the majority went too far. Since the plaintiff had only eight years in private practice before becoming Secretary of the State for twelve years, they would have held only that that role did not qualify her under the statute.

The court also held, unanimously, that the statute was not unconstitutional under Article Sixth, § 10 of the Constitution, which states: "Every elector who has attained the age of eighteen shall be eligible to any office in the state ... The court gave a narrow ruling to that provision, enacted in 1818, holding that it was inapplicable to the office of Attorney General, which did not exist until the 1890s. The plaintiff's analogy that television did not exist when the First Amendment was enacted failed to impress the court.

In July, it was on to Foley. The plaintiff was endorsed by the Republican Party for Governor in May but Michael Fedele received sufficient votes to challenge him in a primary. Fedele wanted public funding under recently passed legislation, but he did not have enough small contributions to show the sufficient base of support needed to qualify. Fedele claimed he could also use the contributions to the endorsed candidate for Lieutenant Governor (who supported Fedele) in order to qualify. The statute was not clear on that point. The court, 4-1, gave a generous interpretation of the statute to make Fedele eligible. Judge Gruendel, sitting by designation because four justices were disqualified, did not agree, but concurred in the result on a technical ground.

In September, it was time to hear Butts. The plaintiff, endorsed by the Democratic Party for probate judge, failed to file the party's certificate of endorsement with the Secretary of the State in the prescribed manner (he mailed it by regular rather than certified mail) and there was no evidence that it was timely received. The court gave a very strict reading to the procedural requirements of the election statute.

While the authors can perceive no grand theme running through these dissimilar election cases, they share one thing in common: the Supreme Court's willingness to set other business aside and move with lightning speed when the occasion warrants.

In Bysiewicz, the appellant appealed on May 11; the plaintiff (the appellee) moved to expedite on May 12; the Supreme Court immediately granted the motion and ordered simultaneous briefs on May 14; the court heard oral argument on May 18 at 2:00 and decided the appeal on the merits by 4:30, although the written decision was not issued until October. Foley moved with the same speed from appeal (July 20) to decision (July 27), although the written decision came out much faster, in early August. Butts was a mite slower because the plaintiff moved for articulation. But even there it was only 13 days from appeal (September 2) to oral decision (September 15).

The only minor complaint the authors have about the justices' result-first-reasoning-later procedure is similar to Grandpapa's grump to Peter about the wolf: What if you had changed your mind between your oral result and your written decision, what would you have done then?

So much for elections. Other than those cases, the three biggies for 2010 involved educational finance, condemnation law, and capital punishment.

The biggest education finance case since Horton v. Meskill(fn5) is Connecticut Coalition for Justice in Education Funding, Inc. v. Rell.(fn6) (Note to plaintiffs' lawyers: next time please choose a student as the lead plaintiff.) Article Eighth, § 1 of the Connecticut Constitution states:

Free public schools. There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.

Connecticut Coalition holds that that language entitles that all students to a "suitable" education, that is, an education that is suitable to prepare students to participate as citizens in a democratic society.

Horton held that Connecticut's school finance system violated the rights of students in property-poor towns to an equal educational opportunity, but the education claim was combined with an equal protection claim. Likewise, Sheff v. O'Neill,(fn7) a desegregation case, combined an education article claim with an equal protection claim. In Connecticut Coalition, on the other hand, the plaintiffs made no such equal protection claim on the appeal.

Connecticut Coalition has no majority opinion. The vote is really 3-1-1-2. Justices Norcott, Katz, and Schaller agreed with the plaintiffs; Justice Palmer semi-agreed with the plaintiffs; Justice Vertefeuille disagreed with the plaintiffs on the merits; and Justices Zarella and McLachlan disagreed with the plaintiffs on justiciability. Justice Palmer's is thus the key opinion and it makes the plaintiffs' burden high: the state need only show that it is providing a "minimally adequate" education, and the judicial branch must give "considerable deference" to the legislative and executive branches as to what that phrase means.(fn8) Justice Vertefeuille's view is that Article Eighth only means that students are entitled to "free" and "public" schools.(fn9) Justices Zarella and McLachlan's view is that Article Eighth, untethered to a Norton-like equal protection claim, is textually committed to the legislature.(fn10)

The big condemnation case is New England Estates, LLC v. Branford,(fn11) holding that a developer's unrecorded and unexercised option to purchase property is not a property interest under Connecticut law and therefore not protected by the Fifth Amendment of the U.S. Constitution.

The Branford case involves the condemnation of undeveloped property. The owners and the developer claimed in a Section 1983 action that the property was improperly condemned by the Town of Branford and therefore that the condemnation violated the Takings Clause of the Fifth Amendment. While the owners prevailed on appeal, most of the award had been to the developer. The town prevailed against the developer because of Patterson v. Farmington Street Railway Co.,(fn12) holding that an option contract conveys no property interest to an optionee.

The last biggie is State v. Courchesne.(fn13) Courchesne holds that the common law "born alive" rule exists in Connecticut. That means that the defendant, who killed a pregnant woman and her fetus, who was arguably born alive before dying, was eligible for the death penalty for killing two persons even though by statute the fetus was not a person at the time of the defendant's actions.

We say "arguably" because a new trial was unanimously ordered to determine in fact whether the fetus was born alive. But only five of the justices thought the "born alive" rule should have been adopted in Connecticut. Justices Zarella and Norcott dissented.

One of the remarkable events of 2010 in the emergence of Justice Palmer as a frequent dissenter in favor of the defendant in criminal cases. His biggest splash was his lone 153-page dissent in State v. Skakel.(fn14) Four of the five justices hearing the case rejected Skakel's petition for new trial based on newly discovered evidence, two justices concluding that the evidence was insufficient, two concluding that the evidence was inadmissible. Justice Palmer roared back with excruciating detail showing why he felt Skakel was entitled to a new trial.

He also disagreed with the majority in three other major criminal cases. In State v. Outing,(fn15) the 4-3 majority led by Justice Katz refused to reconsider precedent disallowing expert evidence on the unreliability of eyewitness testimony. The majority refused on the ground that it was an inopportune case (which it was). Justice Palmer filed a lengthy concurrence explaining why the precedent is unjust and why the court should not wait for the opportune case to overrule it.

In State v. Jenkins,(fn16) Justices Palmer and Katz filed separate dissents from Justice Norcott's 3-2 decision that Article First, Section 7 of the state constitution does not prohibit the police from (1) inquiring about non-traffic...

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