The evolution of state constitutional law in Connecticut.

• Author: Norcott, Flemming L., Jr.
• Position: Symposium: State High Court Judges on Making Their Hardest Decisions

Good afternoon and thank you for inviting me to participate in this symposium. Your topic is one that will, no doubt, elicit interesting observations from those of us on the panel, and challenging questions from the audience.

A panel discussing the hardest cases we have handled inevitably, for me, involves a discussion of the development of state constitutional law in Connecticut, and is, I believe, a timely discussion for reasons I will share with you in a moment. I have chosen to remark on two cases, decided more than a decade ago, published just over one year apart, to illustrate the points I would like to share with you today.

It is my contention that we are still in the early stages of the development of state constitutional law--an evolution that is difficult to describe while in its midst, but which is occurring nonetheless. By way of brief background, and as a backdrop to my next point, I was elevated to the Connecticut Supreme Court in 1992. Ellen Peters was Chief Justice, and I am sure many of you are aware of her scholarly contributions to the academic literature on state constitutional law. For those of you who are not, I commend to you her article on the common law and the Connecticut Constitution, published in the Albany Law Review in 1989. (1) There is probably a copy around here somewhere.

Chief Justice Peters's book review published in the Michigan Law Review in 1986 speaks to the state of this evolution. (2) In her review of a collection of essays published following a national conference on developments in state constitutional law, she suggested that "[t]he essays produced for the conference should indeed point state courts in the direction of a more sophisticated inquiry into the role properly to be assigned to state constitutions as they emerge from the long shadow cast, for the last sixty years, by the Constitution of the United States." (3) She went on to state that, in her estimation, "[t]he dearth of scholarly analyses, due chiefly to the preoccupation of constitutional scholars with the work of the United States Supreme Court interpreting the United States Constitution, has unquestionably increased the difficulties ... state courts have encountered in their nascent efforts to take state constitutional rights seriously." (4)

From my vantage point, joining the Connecticut Supreme Court in the early 1990s, it was an exciting time to be entertaining appeals based in state constitutional law as a justice on the highest court in the state. The Connecticut Supreme Court had recently issued its opinion in State v. Geisler, (5) which was our first foray into a post-New York v. Harris (6) analysis of the exclusionary rule under our state constitution. Geisler, which is still good law and the subject of continuing debate in Connecticut, cited six "tools of analysis" to use when construing "the contours of our state constitution." (7) Those tools are: (1) the text itself; (2) our own court holdings and dicta; (3) federal precedent; (4) sister state decisions or sibling approach; (5) history; and (6) economic/sociological considerations. (8) The court concluded, in an opinion written by Justice Robert Berdon, that "the Harris rationale [for exclusion of evidence] falls short of the protection required under our state constitution." (9) A dissent by then-Justice Alfred Covello, now of the federal bench in Connecticut, spoke succinctly to the disagreement that was the crux of the matter. (10) He noted that there were no textual distinctions between the federal and state constitutions in the case and that, in his view, reliance on the historical antecedents cited in the majority opinion was not persuasive. (11) This dichotomy, perhaps not surprisingly, still presents itself to the court in cases presenting issues based in state constitutional law.

So now we arrive at the state of state constitutional jurisprudence in 1994 when the Connecticut Supreme Court was presented in Moore v. Ganim (12) with the issue of "whether, under the state constitution, the state of Connecticut has an affirmative obligation to provide its indigent residents with minimal subsistence." (13) At that time, Connecticut's general assistance statute provided that case...