2014 Connecticut Appellate Review
| Publication year | 2021 |
| Pages | 3 |
Wesley W. Horton and Kenneth J. Bartschi, J. [*]
I. SUPREME COURT
Even lawyers who do not have much business with the supreme court are wondering: what is taking the justices so long to make their decisions? this question belongs front and center in any review of appellate developments in 2014, as the following charts make clear:
Time from Oral Argument to Decision
-
Decisions Officially Released in 2012
JUSTICE
MAJORITY
SEPARATE
Opinions
Months
Average
Opinions
Months
Average
Espinosa
Eveleigh
14
70
5.0
10
58
5.8
Harper
15
56
3.7
7
46
6.6
McDonald
McLachlan
15
76
5.1
3
14
4.7
Norcott
16
100
6.3
1
11
11.0
Palmer
15
128
8.5
9
65
7.2
Robinson
Rogers
21
83
4.0
1
11
11.0
Vertefeuille
2
6
3.0
1
4
4.0
Zarella
17
73
4.3
10
81
8.1
PER CURIAM
10
20
2.0
TOTAL
125
612
4.9
42
290
6.9
-
Decisions Officially Released in 2013
JUSTICE
MAJORITY
SEPARATE
Opinions
Months
Average
Opinions
Months
Average
Espinosa
4
13
3.3
Eveleigh
18
83
4.6
6
41
6.8
Harper
4
21
5.3
McDonald
8
29
3.6
3
18
6.0
McLachlan
Norcott
12
60
5.0
5
25
5.0
Palmer
13
115
8.8
4
40
10.0
Robinson
Rogers
13
69
5.3
2
9
4.5
Vertefeuille
4
30
7.5
Zarella
15
82
5.5
5
58
11.6
PER CURIAM
14
25
1.8
TOTAL
105
527
5.0
25
191
7.6
-
Decisions Officially Released in 2014
JUSTICE
MAJORITY
SEPARATE
Opinions
Months
Average
Opinions
Months
Average
Espinosa
13
108
8.3
6
63
10.5
Eveleigh
18
144
8.0
13
97
7.5
Harper
McDonald
13
73
5.6
8
77
9.6
McLachlan
Norcott
3
60
20.0
1
17
17.0
Palmer
12
137
11.4
12
129
10.8
Robinson
10
67
6.7
2
19
9.5
Rogers
20
154
7.7
2
16
8.0
Vertefeuille
2
14
7.0
2
22
11.0
Zarella
19 141
7.4
7
90
12.9
PER CURIAM
10 21
2.1
TOTAL
120 919
7.7
53*
530
10.0
*Excludes one separate opinion by Appellate Court Chief Judge DiPentima
In 2012, the court decided 125 cases in an average of 4.9 months. In 2013, the court decided 105 cases in an average of 5.0 months. But in 2014, the court decided 120 cases in an average of 7.7 months, which is more than 50% longer than in 2012 and 2013.
So what is going on? It is not that the Court decided significantly more appeals in 2014 than in previous years: While it decided 15 more than in 2013, it decided 5 fewer than in 2012. The delay can hardly be blamed on sitting en banc in all cases, because that protocol started in September 2009. Nor is the answer likely to be found in the office of the Reporter of Judicial Decisions. That office also reports the Appellate Court decisions, and they seem to be issued as timely in 2014 as in previous years.
Nor can we single out our usual suspect, Justice Palmer. While his time, as in past years, is higher than others, it went up 2.6 months in 2014, an increase slightly less than the average of 2.7 months. Nor can we blame a spate of death penalty or other unusually difficult cases in 2014, because there was not one. Nor were there significantly fewer per curiam decisions in 2014: 10 in 2012, 14 in 2013 and 10 in 2014.
Nor does the blame seem to be on any delay in appointing justices. Justice Robinson began sitting in January 2014 after Justice Norcott retired in October 2013, but Justice Vertefeuille sat on a number of cases in the meantime and authored 2 opinions in 2014. Anyway, short delays in replacing justices are not unusual. It happened in late 2012 when Justices McLachlan and Harper left the court, and it happened in early 2011 when Justice Katz left the court.
One possibility is the increase in the number of separate opinions in 2014, especially by Justices Eveleigh and Palmer. The separate opinion numbers on the Court went from 42 in 2012 to 25 in 2013 to 53 in 2014, while Justice Eveleigh's numbers in those years went from 10 to 6 to 13, and Justice Palmer's went from 9 to 4 to 12. All three sets of 2014 numbers are significantly higher compared with 2013, but only slightly higher compared with 2012.
Whatever the reason for the delay, we would like to propose a modest solution: Put an Appellate Court Judge on every panel that does not have a full complement of 7 Supreme Court Justices and have each Appellate Court Judge be assigned an opinion to write. There is precedent for lower court judges to be assigned not only to sit but also to write opinions of the court Chief Justice House in the 1970s occasionally assigned an opinion to a Superior Court judge who filled up a panel, and Chief Justice Speziale in the early 1980s often did so[1] at a time when a litigant had to wait more than a year after the briefs and the record were filed before oral argument.[2] The Appellate Court is so up to date that its own work can still be handled expeditiously. We assume the Appellate Court judges would be happy to help out on the Supreme Court. There are lots of referees who, we also assume, would be happy to write more opinions, if necessary, on the Appellate Court. And our proposal avoids having 6-member courts, with the undesirable possibility of having to bring in an Appellate Court judge anyway after oral argument to handle a tie vote.
Plenty of cases in 2014 were decided by 5- or 6-justice panels, so there is a lot of room for the Appellate Court to help in paring down the time the Supreme Court takes to decide cases.
Justice delayed is justice denied; the Supreme Court needs to act.[3]
Procedure was the major topic in Supreme Court decisions in 2014 and leading the cast was Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc.[4] Blumberg Associates is a monumental effort by Justice Palmer (writing for a unanimous court) to explain all the permutations for when an appellate court should and should not decide an issue that is (1) not raised at all on appeal (i.e., suo motu), or (2) that is raised on appeal but was not properly preserved below. Indeed, an entire article could be devoted to discussing all the permutations.[5] The point to be made here is that there is nothing particularly new in Blumberg Associates; what is striking is how, instead of simply deciding the issue before it, the Court has issued a textbook on reviewability.
The decision was unanimous, but like all attempts to resolve issues globally rather than narrowly, there later comes remorse and division when the broad principles laid out in one case are applied to the next. Thus in Lane v. Commissioner of Environmental Protection,[6] Justices Zarella and McDonald disagreed with one of the Blumberg Associates permutations, that it is appropriate for the Court to review an unpreserved claim when the party making the claim cannot prevail.
Nevertheless, Blumberg Associates does serve a useful purpose in gathering the disparate holdings of many reviewability decisions in one place. Just beware of assuming that all of the justices will agree with every permutation as it is applied to individual cases.
Closely allied with the doctrine addressed in Blumberg Associates concerning when an appellate court should review an unpreserved (or even unraised) issue on appeal, is the corollary question of the appropriateness of the exercise of appellate supervisory powers over the lower courts. This has been a hot topic for the past decade and has become especially controversial among the Supreme Court Justices over the past two years.[7]
In State v. Carrion,[8] a 4-3 decision, the majority first decided that a charge to the jury that the state did not wish to see an innocent person convicted, did not rise to the level of a Golding violation so the judgment was affirmed. The Court went on, however, to exercise its supervisory powers and order trial judges to refrain from giving such a charge in the future. The Carrion dissenters did not think that this case presented the "rare circumstance" when supervisory powers should be invoked.
A few weeks later in State v. Edwards,[9] the Court unanimously refused to exercise supervisory authority in the voir dire process...
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