2018 Connecticut Appellate Review

Publication year2021
No. 92 CBJ 88
Connecticut Bar Journal
June 18, 2019

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

I. Supreme Court

Sparks flew at the Connecticut Supreme Court in 2018, but not between the Justices (with one caveat, noted infra). The firestorm was created in early February 2018 by Republican legislators on the occasion of the retirement of Chase Rogers and Governor Malloy's nomination of Justice Andrew McDonald to replace her as Chief Justice. Rarely has Connecticut witnessed a partisan legislative battle on the promotion of a judge or justice, unlike what often occurs in Washington. But here we were in early 2018 with Justice McDonald enduring a lengthy grilling largely along party lines in a Judiciary Committee hearing. A major issue appeared to be his participation in declaring the death penalty unconstitutional in the 4-3 decision in State v. Santiago.[1] A subtext may have been that he was too liberal in general. An editorial in the Connecticut Law Tribune during the debates disproved the validity of that subtext,[2] and this year's work adds to the disproof. He is not Connecticut's version of Justice William Brennan.

Whatever the reasons Republican legislators may have had, Justice McDonald lost a close vote in the Senate, whereupon the Governor nominated Justice Richard Robinson as Chief Justice. His nomination was met with unanimous praise, and he was quickly confirmed and sworn in. Justices Maria Araujo Kahn and Raheem Mullins, who had been appointed on an interim basis as Associate Justices in the fall of 2017, were also soon confirmed in their jobs. Finally, Superior Court Judge Steven Ecker was promoted without controversy to the Supreme Court, but not in time to sit until September. Consequently, he does not figure in the cases decided in 2018.

The most newsworthy case of the year is Skakel v. Commissioner of Correction (Skakel II),[3] the long-running saga of the death decades ago of Martha Moxley allegedly at the hands of Michael Skakel. The merits of the legal dispute recently—his trial lawyer's performance—are not of particular jurisprudential significance, but the remarkable appellate procedural event unfolding over the past two years is.

On December 30, 2016 the Supreme Court issued its 4-3 decision in Skakel v. Commissioner of Correction (Skakel I)[4]holding that the claimed poor quality of the trial lawyer's performance did not merit a new trial. The majority opinion was written by Justice Peter Zarella, who retired at the end of that day to return to private practice. In January 2017, within the time for reargument, Skakel moved for reargument en banc, asking that a seventh judge or justice be added to the panel to replace Justice Zarella. This would not have happened in the U.S. Supreme Court, but there was some contrary precedent in Connecticut, as Skakel II indicated.[5] One of the three remaining justices in the majority, Justice Christine Verte-feuille (who, by the way, had a busy 2018 sitting as a Senior Associate Justice) voted to grant the motion to add a seventh justice. In March 2017, Gregory D'Auria, who was then serving as Connecticut's Solicitor General, was appointed to the Supreme Court and he joined the panel considering the merits of the motion for reconsideration. Justice D'Auria joined the 2016 dissenters, and the newly constituted majority then ordered a new trial. Justice Dennis Eveleigh, joined by Justices Vertefeuille and Carmen Espinosa, filed a passionate but not ill-tempered dissent on the merits. The same cannot be said for Justice Espinosa's separate dissent focusing on the vote to add a new seventh justice.

While there is nothing remarkable about having a new justice participate in reconsideration, Justice D'Auria was not yet appointed when the motion for reconsideration en banc came before the court in January 2017. Suppose Justice Vertefeuille had voted no on adding a seventh justice. What then? Would the justices then have voted on the merits on the motion for reconsideration? And if so, what would a 3-3 vote mean? A tie normally means a defeat. Furthermore, suppose the justices disagreed 3-3 on whether Practice Book § 70-6, requiring reconsideration by an odd number when the court is evenly divided as to the result, applies to a motion? (A motion was denied on a 3-3 vote in State v. Cobb.[6]) What was the Reporter of Judicial Decisions to do if in late January he had gotten an order from three justices that the motion was denied and an order from the other three that it wasn't?

Justice Vertefeuille is to be commended for making sure that this gridlock did not occur. The Supreme Court needs to revise its rules to make clear what the procedure is for all tie decisions.

Meanwhile, with the rules unchanged and Chief Justice Rogers retiring on February 5, 2018, the Court took no chances with the two 4-3 decisions it issued in January in which she was in the majority. In State v. Holley,[7] a murder case of little significance, and in Connecticut Coalition for Justice v. Rell (CCJEFII),[8] a school finance case of great significance, the Court issued slip opinions in mid-January and made sure any reargument motions were filed in time for Chief Justice Rogers to participate. (The Court made the same accommodation for Justice Espinosa in Skakel II because of her impending retirement on May 28, 2018.[9])

CCJEF II held that the State is complying with the state constitutional mandate in Article Eighth, § 1 to provide a minimally adequate educational opportunity. The majority opinion ironically is based on Justice Richard Palmer's concurring opinion in CCJEF I.[10] His was the fourth vote in CCJEF I and it was narrower than the 3-justice plurality opinion that had allowed the case to go forward to trial. But he dissented in CCJEFII, stating that the majority was misreading his prior concurrence.[11] Two appellate court judges participated in the case and split their votes;[12] the split among the justices was Chief Justice Rogers with Justices Eveleigh and Vertefeuille versus Justices Palmer and Robinson.

While Chief Justice Rogers was busy working on the CCJEF II opinion, Justice Eveleigh, who had turned 70 in October 2017, was busy voting in favor of plaintiffs in all four torts and related cases on which he sat. In Byrne v. Avery Center for Obstetrics and Gynecology, P.C.,[13] he wrote for the Court creating a common law cause of action for a doctor's breach of client confidentiality. Justice Robinson concurred, but with a cautionary note that was less enthusiastic about creating new tort causes of action.[14]

On the other hand, in Martinez v. New Haven,[15] Justice Robinson (writing for a 6-1 majority, with Justice Eveleigh dissenting), held that there was no imminent harm for a student running around a schoolroom with safety scissors. And in Brooks v. Powers,[16] Justice Palmer (again writing for a 6-1 majority, with Justice Eveleigh dissenting), held that there was no imminent harm for a person standing in a field during a severe thunderstorm. Both of these cases involved governmental immunity. And in Lucenti v. Laviero,[17] Justice Robinson, in a 5-2 opinion (Chief Justice Rogers and Justice Eveleigh dissenting), held in a workers' compensation case that there was insufficient evidence that the employer was substantially certain that the employee would be injured.

We thought the plaintiff's bar had lost its best friend in 2017; it appears we were a year premature.

Another tort case, argued after Justice Eveleigh left the bench, is interesting because of its 4-3 split. In Graham v. Commissioner of Transportation,[18] the issue was whether the waiver of sovereign immunity under the state's highway defect statute, General Statutes § 13a-144, applies to actions and in-actions of the state police on the highway. Justice Robinson's opinion for the majority (joined by Justices McDonald, Kahn and Vertefeuille) said no; Justice D'Auria's dissent (joined by Justices Palmer and Mullins) said yes.

2018 was an interesting year for procedure—and not just because of Skakel II. With so many new justices appointed to the court and likely to remain for many years (Justices Palmer and Vertefeuille at age 68 are the only ones remotely close to 70), it is important for lawyers to look at otherwise minor cases that give an indication of the procedural proclivities of each of the justices. For example, in State v. Miranda,[19] the appellant objected at trial on relevance but only raised hearsay on appeal. Justice Robinson (writing for a 5-2 majority) refused to consider the issue; Justices D'Auria and Palmer said "close enough," but concurred on harmlessness.[20]

Another revealing example in a more significant case is State v. Castillo.[21] The issue certified from the Appellate Court was whether the juvenile defendant was in custody when he gave an incriminating statement. The defendant lost, and the 6-1 majority refused to exercise its supervisory authority to determine whether juveniles should be specifically warned that their statements could be used against them if transferred to adult court.[22] Justice DAuria dissented, and would have considered the state constitutional issue on this subject that the defendant raised in the Appellate Court.[23] A third example is In re Egypt E.[24] Where possible, we try to avoid characterizing decisions involving our office, so we will simply point out that the decision was 6-1, with Justice McDonald dissenting, and that Justice McDonald's view was that the majority was hammering a square peg into a round hole by effectively allowing the state to prevail in this termination of parental rights case on a ground that was not alleged.[25]

Other procedural cases are important, not because of any disagreement among the justices, but because they explain how a case that is substantively far different from a case that you may be currently appealing will probably...

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