2012 Connecticut Appellate Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 87 Pg. 1
87 CBJ 1
Connecticut Bar Journal
March 2013

Wesley W. Horton And Kenneth J. Bartschi [*]

I. Supreme Court

Ever since the legislature passed the plain language statute, General Statutes Section 1-2z, to overrule State v. Courchesne, [1] the authors have loudly complained that the legislative branch has no business telling the judicial branch how to construe statutes. After all, the essence of the legislature's job is to decide what the law will be, while the essence of the judiciary's job is to decide what the law is. Chief Justice John Marshall said as much over two hundred years ago in Marbury v. Madison, [2] and we do not understand why lawyers and the judges seem so little concerned about this direct attack on the fundamental role of the judiciary.

Briefly, what Section 1-2z says is that if the language of a statute is plain on its face or after reviewing other statutes, then the judiciary is bound to give that meaning to the statute unless it makes the statute absurd or unworkable. So unless one of these two narrow exceptions applies (and how often is a court likely to hold that the plain meaning of a statute is absurd?), the plain meaning must be declared the actual meaning. That is so even if an examination of secondary sources shows that there is a latent ambiguity in the statute, and even if all the legislators who spoke on what they thought the statute meant when it was being adopted, including the sponsor, thought it meant the opposite of its plain meaning.

Consider the war in Afghanistan. Suppose the statute gave a bonus to the estate of any member of the armed forces who was "killed in Afghanistan." Suppose further that a soldier, while chasing a terrorist in Afghanistan, was killed just over the border in Pakistan. Suppose further that all legislators who spoke when the bill was passed assumed that "killed in Afghanistan" meant "killed in the Afghanistan war." Under Section 1-2z, applying the statute only to those killed within the legal boundaries of Afghanistan would not be absurd or unworkable, so the courts would be helpless to do its job of determining what the law is.

Supporters of Section1-2z will point out that the legislature, when passing a statute, may add a section stating that it is to be, say, liberally construed by the courts. But in that situation the legislators are focusing on a particular statute and informing the courts what they are trying to accomplish; that is quite different from Section 1-2z, which was adopted independent of any particular statute and independent of any particular legislative session.

The Supreme Court has managed to dodge the question of the constitutionality of Section 1-2z for the past nine years. Most of the times when it might have come up, the lawyers didn't even raise the issue.[3]

The authors' law firm tried to get the Supreme Court to consider the issue in Francis v. 5Fonfara.[4] The case concerned whether a judicial marshal was entitled to a fee of $900 for conforming the copies to be served even if the marshal was provided the copies. It seemed like an ideal case because the trial court had declared the statute to have a plain meaning barring the $900 payment, but the legislative history showed precisely the opposite. The trial court then applied Section 1-2z and denied the fee. So our firm made a big fuss in the appellate brief and at oral argument about the unconstitutionality of the statute. Yet the Court managed to find the statute ambiguous; thus we won the $900 for our client but the constitutional issue was put off for another day.[5]

Francis was decided in January 2012. Seven months later, the Court dodged the issue again. In State v. Ramos, [6] the Court considered whether under General Statutes Section 54-1j(c) a criminal defendant could file a certain motion outside the three-year period stated in the statute. The Court held that the statute was plain and therefore the Court could not examine the legislative history, which arguably (not clearly, as in Francis) pointed in the opposite direction. It does not appear that the defendant raised the constitutional issue, [7] but Justice Palmer in a concurring opinion pointed out the problem:

For the reasons that the majority articulates, application of the plain meaning rule codified in General Statutes Section 1-2z compels this result. I write separately, however, to highlight an anomaly that arises in the present case: because the plain language of § 54—1j contains no suggestion of a grant of jurisdiction that would allow a trial court to entertain a motion filed beyond the three year period and to afford relief as a matter of discretion, § 1—2z precludes our consideration of legislative history clearly manifesting the legislature's view that § 54—1j allows a trial court to consider such a motion and to afford such relief. ... In other words, this appears to be an unusual case in which the application of § 1—2z precludes us from effectuating the legislature's intent.[



Some day, in some way, the constitutionality of Section 1-2z will be unduckable. Perhaps in 2013. The authors hope the lawyers lucky enough to have the issue available to them will argue it vigorously to the courts.

While we are on the subject of the legislature telling the courts how to do their job, we want to highlight Keller v. Beckenstein.[9] Keller concerned a claim for vexatious litigation that under normal judicial principles was not ripe because the underlying judgment was on appeal. But in the relevant statute, the legislature in effect said the courts should hear the case even if it was not ripe. We have no complaint about the precise result because, as the court held, the judicial ripeness doctrine is not rigid anyway.[10]Moreover, Article Fifth, Section 1 of the Constitution states that "the power and jurisdiction of the courts shall be defined by law, " and "law" usually means statutory law.

Our problem with Keller is this unnecessarily broad dicta: "Simply put, when the legislature has determined that the Superior Court has jurisdiction over a particular type of claim, we cannot rescind that grant of jurisdiction."[11] Suppose, for example, that the legislature gave the courts the power and jurisdiction to determine where the Hartford-New Britain busway should go. In the 1890s, the legislature actually did give the courts the power to determine where the trolley tracks in Norwalk should go. In one of the greatest constitutional decisions in the Supreme Court's history, the Court in Norwalk Street Railway Company's Appeal[12] held that such a determination was clearly an administrative, not a judicial, function and struck down the statute.

Or suppose that the legislature gave the courts power and jurisdiction to answer the legislature's questions about a proposed bill's constitutionality. In Reply of the Judges, [13] the Supreme Court justices stated:

There are in our minds so strong objections to the practice of asking on the part of the Legislature and of giving on the part of the Judges, opinions in advance as to the validity of contemplated legislation, that we feel it to be our duty, without intending any disrespect to your honorable body, to decline to give the opinion requested.[14]

We will assume that Keller is not intended to call into question these two decisions. Perhaps, if the Court is confronted with a similar issue, it can focus on the little word "claim" in the quotation above from Keller and hold that there is a constitutional limit to what the legislature can call a judicial claim. A good precedent to cite would be Walkinshaw v. O'Brien, [15] in which the Court said that the legislature cannot force the courts to do something that would undermine the essential characteristics of the constitutional courts. Or one could cite to Szarwak v. Warden, [16]in which the Supreme Court declared a statute giving a court below the Superior Court the power to adjudicate some felonies unconstitutional. Meanwhile, Keller shows the danger of dicta.

The Connecticut Constitution got a modest workout in 2012. There is Keller. There is also In re Petition of Reapportionment Commission, [17]in which the Supreme Court for the first time exercised its plenary constitutional authority under Article Third, Section 6(d) to adopt a congressional districting plan for the next decade. It did so by appointing a special master and then adopting his plan. While this does not look like a judicial act, we cannot complain because the Constitution itself mandates that role for the Supreme Court if all else fails. And all else did fail in 2011. Then there is State v. Gault, [18] holding that the Victim's Rights Amendment to Article First, Section 8 does not make the victim a party to the criminal case and therefore does not give the victim the right to appeal. And in State v. Santiago, [19]a death penalty case, the Court held, essentially under Connecticut due process principles, that the sole aggravating factor can constitutionally be identical to an element of the underlying capital crime.

The Connecticut Constitution would have gotten a more thorough workout in 2012 if lawyers had taken the time to make the six-prong Geisler analysis[20] required for a state constitutional claim. Instead, a number of appellants either briefed the state and federal constitutional issues together, which the Supreme Court has said time and again will yield a review of only the federal constitutional issue, or failed to raise a separate state constitutional issue at trial.

So in State v. Jackson, [21] the question was whether the defendant had a reasonable expectation of privacy in clothes left in a hotel room when he attempted suicide by jumping from the window. The Court found no such expectation under precedent interpreting the Fourth Amendment, and refused to consider whether Article First, Section 7 of the Connecticut Constitution provided...

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