2019 Appellate Review

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 93 Pg. 3
Pages3
2019 APPELLATE REVIEW
CLAIM NO. 93 CBJ 3
Connecticut Bar Journal
June 18, 2020

BY WESLEY W. HORTON AND KENNETH J. BARTSCHI [*]

I. Supreme Court

A. Analysis of Split Decisions

When we are chatting with others about Supreme Court Justices—whether of the Connecticut or United States variety—we often find ourselves responding to a remark that so-and-so is a conservative or a liberal. If we are in a querulous mood, we may respond, "Are you talking about judicial philosophy or political philosophy?" Sometimes the answer makes a difference, as where Justice Sotomayor supported an opinion by Justice Scalia because the politically liberal position today happened to coincide with what James Madison would have done.[1] But often the answer makes no difference, so we decided this year to take a close look at who are the conservatives and who are the liberals on the Connecticut Supreme Court.

This is a good year to take a close look because there were no changes in the make-up of the Supreme Court in 2019, following dramatic changes in 2017 and 2018, with Chief Justice Chase Rogers and Justices Peter Zarella, Dennis Eveleigh, and Carmen Espinosa being replaced by Justices Gregory DAuria, Raheem Mullins, Maria Kahn, and Steven Ecker, and Justice Richard Robinson becoming Chief Justice. While there were the inevitable disqualifications of the newer justices because of their previous participation in some cases as lawyers or lower court judges, all of them voted in most of the cases decided in 2019.

While Justice Richard Palmer retires at age 70 in May 2020, and Senior Justice Christine Vertefeuille does so in December, everyone else is between 41 (Justice Mullins) and 62 (Chief Justice Robinson), so the make-up of the Court may be highly stable for many years to come. Hence, the usefulness of knowing how the justices may divide in close cases.

Here are the numbers. In 2019, the Supreme Court issued decisions in 95 cases. Of those, 73 were unanimous, 5 more were unanimous in the result, and 17 had at least one dissent.[2]

The first point to be made is obvious: about four-fifths of the time it does not matter to the litigants what the differences in the philosophy of the justices are. But one-fifth of the time it does, and that is a fraction worth heeding.

So, what is the difference between a conservative and a liberal? One crude way to answer this question is to look at criminal (including habeas), juvenile, and tort (including fraud and breach of fiduciary duty) cases. A conservative supports the state or custodian in criminal and juvenile cases and the defendant in tort cases; a liberal does the opposite. Let us see what looking at the cases that way yields.

Conveniently, 16 of the 17 cases with a dissent were in criminal, juvenile, or tort cases, and the justices divided as follows:

Liberal

Conservative

Did Not Sit

Chief Justice Robinson

1

12

3

Justice Vertefeuille

1

5

10

Justice Kahn

3

13

0

Justice Mullins

3

12

1

Justice McDonald

6

7

3

Justice D'Auria

9

5

2

Justice Palmer

11

5

0

Justice Ecker

12

0

4

As can be seen, there is a dramatic dividing line, four justices on one side, three on the other, and Justice McDonald in the middle. Of course, as we said, this is a crude measure, as seen in a recent zoning case where Justice Ecker's concurring opinion, strongly disagreeing with dicta in the majority opinion on an important issue of inverse condemnation law (i.e., that a landowner has a constitutional right to rebuild a legally nonconforming structure that has been substantially destroyed by fire or the like), was joined by Chief Justice Robinson,[3] and as seen in a recent appellate procedure decision, where Chief Justice Robinson wrote the majority opinion supported by the three liberals concluding that a judgment was final concerning a bankruptcy stay issue.[4]

But a crude measure is better than no measure, and the cautious advocate in a criminal, juvenile, or tort case will take notice. Given the close split the above chart shows, the cautious advocate will also take notice when Governor Lamont nominates a replacement for Justice Palmer.[5]

The authors' crude measure shows not only the size of the gap between the liberal and the conservative justices, but also the size of the gap between Justice Ecker and Justice Palmer, the next most liberal member. When Justice Palmer retires, the gap between Justice Ecker and the rest of the justices may widen. Justice Ecker also is the only justice in 2019 to file a solo dissent, and he did it four times (excluding two companion dissents).

Here is the detailed breakdown of the split decisions. The most important cases will be discussed in more substantive detail infra.

There were a number of criminal/habeas appeals resulting in split decisions in 2019: State v. Daniel B.[

6

] (six justices, with Ecker dissenting) (evidence of attempted murder sufficient; to determine what constitutes a "substantial step," the focus is on what has been done, not on what remains to be done); State v. Petion[7] (McDonald, with Palmer, Kahn, and Ecker; Mullins, Robinson, and D'Auria, dissenting) (IV2 inch scar on the left elbow is not a "serious physical injury" as a matter of law); State v. McCleese[8] (six justices, with Ecker dissenting) (excessive sentence of juvenile can be remedied by changing eligibility for parole); and State v. Williams-Bey[9](five justices, with Ecker dissenting) (refusal to consider whether a mandatory criminal sentence for a juvenile is unconstitutional).

Other criminal cases are State v. Fernando V.[10] (Ecker, with Palmer and D'Auria; Robinson and Kahn, dissenting) (exclusion of testimony harmful); State v. Ayala[11] (Mullins, with Robinson, McDonald, and Kahn; DAuria, Palmer, and Ecker, dissenting) (hearsay error harmless); State v. Leniart[[1]](Mullins, with Robinson, Kahn, andVertefeuille; Palmer, McDonald, and DAuria, dissenting in two opinions) (expert testimony offered by the defense about the unreliability of jail-house informants is discretionary with trial judge); and State v. McCoy[13] (Mullins, with Robinson, Kahn, and Vertefeuille; DAuria, Palmer, and McDonald, dissenting) (trial court loses jurisdiction after sentencing in a case with a bizarre factual circumstance).[14]

A second major area of contention in 2019 can be found in the area of tort law: Soto v. Bushmaster Firearms International, LLC[15] (Palmer with McDonald, Mullins, and Kahn; Robinson, Vertefeuille and Appellate Court Judge Nina Elgo, dissenting) (Sandy Hook case can proceed); Geriatrics, Inc. v. McGee[16] (McDonald, with Palmer, Robinson, and Ecker; D'Auria, Mullins, and Kahn, dissenting) (defendant fraudulently transferring assets under a power of attorney is liable under the Fraudulent Transfer Act); Northrup v. Witkowski[17](five justices, with Ecker dissenting) (municipal maintenance and repair of sewer drains is not ministerial); and Doe v. Cochran[18] (Palmer, with DAuria, Mullins, and Vertefeuille; Robinson, McDonald, and Kahn, dissenting) (medical doctor liable to identifiable non-patient, who had an exclusive romantic relationship with the patient, for negligently failing to notify the patient of an STD).

Other tort cases are Osborn v. Waterbury[19] (Mullins, with Palmer, DAuria and Ecker; Kahn, Robinson, and McDonald, dissenting) (determining the appropriate number of supervisors at school recesses does not require expert testimony); and Saunders v. Briner[20] (Kahn, with Palmer, DAuria and Ecker; Robinson, McDonald, and Mullins, dissenting) (owner of a one-person corporation has standing to bring a direct action for breach of fiduciary duty even though his injury is not separate and distinct from that of the corporation).

Finally, juvenile law saw two major split decisions: In re Jacob W.[21] (Kahn, with Palmer, Mullins, and Vertefeuille; DAuria, McDonald, and Ecker, dissenting) (custodian preventing a parent from having an ongoing relationship with a child cannot be a basis for terminating parental rights); and In re Taijha H.-B.[22] (Palmer, with McDonald, and Ecker; Mullins and Kahn, dissenting) (parent in termination case has a right to Anders[23] review).

B. Notable Decisions

Now to a review of the most important Supreme Court opinions of 2019.

1. Tort Law

Tort law leads the field in 2019 and one case got national attention: Soto v. Bushmaster Firearms International, LLC.[24]The question of national interest is whether Connecticut's consumer protection laws survive federal immunity law protecting firearm manufacturers who were sued by the families of children killed in the Sandy Hook School rampage. The 4-3 decision, at the motion stage, said yes. The U.S. Supreme Court denied certiorari, but the issue may well be revisited if the plaintiffs get a verdict.

Another tort case involving federal law is Mangiafico v. Farmington,[25] holding that asking for injunctive relief in an action brought under 28 U.S.C. § 1983 does not require the plaintiff first to exhaust administrative remedies. The interesting point is that, in so holding, the Court overruled two fairly recent decisions.[26] While there is nothing remarkable about doing so on rare occasions, 2019 saw precedent overruled not only in Mangiafico, but also in two other tort cases, Ventura v. East Haven[27] and Northrup v. Witkowski,[28] one criminal case, State v. Leniart,[29] and one case about standing, Tremont Public Advisors, LLC v. Connecticut Resources Recovery Authority.[30]

In Ventura, the Court unanimously held that whether an act is ministerial for the purpose of municipal immunity is normally a question of law, overruling Lombard v....

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