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Should a 3-3 vote in the Connecticut Supreme Court sometimes, always or never result in adding a tie-breaking judge? That is the topic for today.

In late December 2016, the Supreme Court decided Skakel v. Commissioner of Correction, ruling 4-3 in favor of the state. (Senior Associate Justice Vertefeuille sat in place of Chief Justice Rogers, who was disqualified.) Immediately thereafter, the author of the majority opinion, Justice Zarella, left the bench.

Skakel then moved for reconsideration en banc, in January, requesting that a seventh justice be added to replace Zarella. It would be two more months before Justice D’Auria was sworn in as his replacement. Meanwhile, there was a motion pending and the court’s precedent, at least on a nondispositive motion, is that a 3-3 vote denies the motion. (State v. Cobb). However, Vertefeuille, one of the members of the majority, voted in favor of adding a new seventh justice, so the motion passed 4-2. Therefore, the court awaited D’Auria’s arrival. His vote changed the result to 4-3 favoring Skakel.

But suppose Vertefeuille had voted no, what then?

This is a very troubling question. It has nothing to do with the wisdom of a replacement justice voting to change the result. (This isn’t the first time it has happened.) The question has to do with the far more serious question of the potential breakdown in governance on the court. Take this hypothetical: the six justices in January voted 3-3 on the motion for reconsideration en banc, a dispositive motion. Although custom would suggest that a tie vote means that the motion fails, no rule expressly informs the Reporter of Judicial Decisions whether the motion is denied on a tie vote. Suppose the justices disagree that custom should prevail.

Practice Book §70-6 states, “When the court is evenly divided as to the result, the court shall reconsider the case, with or without oral argument, with an odd number of justices or judges.” Suppose the justices disagree on whether that section is applicable. And suppose the new justice decides to weigh in after taking the bench. What is the Reporter to report?

Vertefeuille’s vote allowed the court to dodge a governance crisis this time, but the court should adopt a rule to avoid a possible governance crisis in the future. Tie votes on motions should either always or never result in adding a tiebreaker. We could support either way, but the court should choose one way or the other now.