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In yet another extraordinary development in the matter of former state Supreme Court Chief Justice William J. Sullivan’s alleged misconduct, the entire Connecticut Appellate Court–acting en banc and in place of the entire Supreme Court–will decide whether Sullivan must obey a subpoena to testify before a legislative committee. All seven associate members of the Supreme Court recused themselves from the petition for certification to appeal filed September 5 by the Judiciary Committee Co-Chairmen, Sen. Andrew J. McDonald (D-Stamford) and Rep. Michael P. Lawlor (D-East Haven). Appellate Chief Judge Joseph P. Flynn and Appellate Judge Barry R. Schaller, the two most senior members of the intermediate appellate court, also recused themselves on September 8. In an order released today, Appellate Court Judge Thomas A. Bishop granted the petition and indicated that he and the remaining seven members of the Appellate Court “shall act as the Supreme Court for the purposes of hearing and deciding this matter.” Bishop’s order set forth the parties’ short briefing schedule, but did not set a date for oral argument. Attorney General Richard Blumenthal, who represents McDonald and Lawlor, reacted positively to Bishop’s decision. “We are very pleased and impressed, not only that Judge Bishop decided to hear the case, but put it on a fast track with a full panel, including some of the best judges in the state.” “There was a fear of a vacuum” concerning whether there would be a sufficient number of constitutional judges available to rule on a matter involving the constitutional separation of powers argument, Blumenthal said. “The buck needed to stop. We’re pleased that it stopped at such a high level, at a �Class A’ panel. The decision obviously reflects a view of the profound and historic issues at stake,” he told the Law Tribune. McDonald said he was “gratified that Judge Bishop took it on himself to ensure an en banc decision in the case. Clearly it’s unprecedented to have an entire Supreme Court disqualified and to have seven judges of the Appellate Court serve as the Supreme Court. But, all aspects of this case have been unprecedented,” he added. The petition was a request for an expedited appeal directly to the Supreme Court, pursuant to C.G.S. 52-265a. The chief justice must decide whether the appellants have made the requisite showing that the case presents “a matter of substantial public interest in which delay may work a substantial injustice” on the appellants. Sullivan’s attorneys, Robert J. Cooney and Edward Maum Sheehy of Williams, Cooney & Sheehy in Trumbull, objected to the petition. In a short memorandum filed Sept. 5, Cooney wrote that there was no indication that delay would cause substantial injustice. He also suggested that the direct appeal to the Supreme Court from any discipline imposed by the Judicial Review Council in the related complaint against Sullivan “may make an appeal in this matter moot.” Rejecting Sullivan’s arguments, Bishop wrote, “I find the prerequisites for this application have been met.” Expedited direct appeal to the state’s highest court was also used Rowland v. The Select Committee, which upheld the legislature’s right to subpoena a sitting governor involved in formal impeachment proceedings. The underlying issue in the Sullivan v. McDonald case is whether, in the absence of a formal impeachment inquiry, the legislature has the authority to subpoena a sitting justice. McDonald and Lawlor, as co-chairmen of the Judiciary Committee, claim that Sullivan deliberately interfered with the legislature’s exclusive power to appoint judges. With the exception of Sullivan, all the Supreme Court justices agreed to testify voluntarily before the committee investigating Sullivan’s conduct. Sullivan refused, prompting the committee’s subpoena and the ensuing constitutional battle. None of the disqualified judges provided reasons for their recusals. But many legal observers suggest that, at least so far as the justices’ disqualification, the integral role the court played in the aftermath of events following the stunning discovery that Sullivan had withheld the GA-7 decision to help the pending nomination of Justice Peter T. Zarella for chief justice explained their sense that at least the appearance of impropriety compelled stepping down from the case. All of the associate justices of the high court were involved in the court’s discussion and subsequent vote on whether to file a misconduct complaint against Sullivan with the Judicial Review Council. By a three-to-three vote, the justices defeated an internal proposal to make a referral to the disciplinary body, Borden testified at Sullivan’s misconduct hearing last week. Borden, acting individually, filed the complaint after the court’s vote. The decision to recuse had nothing to do with the justices’ status as subpoenaed witnesses in the pending JRC hearing against Sullivan, suggested appellate attorney Wesley Horton of Hartford’s Horton Shields & Knox. Rather, their disqualification stemmed from the fact that “the justices all voted on the matter already and were very involved in the underlying factual situation,” Horton said in a recent interview. Flynn was appointed to the position of chief judge of the Appellate Court by Sullivan last year; Schaller is said to have completed preliminary background checks in order to be nominated to the Supreme Court by Gov. M. Jodi Rell, the Hartford Courant reported Saturday. C.G.S. 52-265a, the statute under which McDonald and Lawlor sought the expedited appeal, does not articulate the procedure to follow when all the justices of the Supreme Court are disqualified from ruling on the petition. The statute refers only to the chief justice. In referring the matter to the Appellate Court, Norcott relied on C.G.S. 51-204(c), which provides that “any three judges of the Superior Court” may be designated to “constitute the court for the hearing of the action.” Noting the apparent conflict between Norcott’s designation of an Appellate Court judge to hear the matter and the statutory requirement of Superior Court judges, Horton explained that the statute pre-dated the Appellate Court. Furthermore, the common law doctrine of necessity�that if everyone is disqualified, then no one is disqualified, because of the need for judicial resolution of disputes�supported appellate review of a Superior Court level decision. Waterbury Superior Court Judge Dennis G. Eveleigh issued a temporary injunction against the subpoena in June. “You want to have as much credibility as possible, and it would be better to have a full panel of appellate judges than just three Superior court judges in this case,” Horton said.

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