Unlike the U.S. Supreme Court, the Connecticut Supreme Court resists easy division into neat ideological voting blocs. The past year proved, once again, the futility of labeling our Justices as “liberal,” or “conservative”: Justice Richard Palmer, for example, wrote two opinions that expanded the rights of criminal defendants, State v. Guilbert, 306 Conn. 218 (2012), and State v. Rose, 305 Conn. 594 (2012), but also, at the very end of the last Court year, authored a scathing pro-prosecution dissent, State v. Lenarz, 301 Conn. 417 (2012) (He was joined by Justice Peter Zarella, the one member of the Court who merits a conservative label.)
Reading judicial tea leaves may be more of a challenge in Hartford than Washington, but when one examines the justices’ dissents and concurrences, interesting patterns do emerge. The past year proved fertile soil for that endeavor and it is an apt time for it: We are in the midst of wholesale changes in the Court’s roster – Justice C. Ian McLachlan retired in June; Justice Lubbie Harper will do so in November; and Justice Flemming Norcott Jr. will retire in October 2013.
Before I turn to that subject, my customary Annual Practitioners’ Gripe: To the frustration of litigants and lawyers alike, the past few years have seen a substantial increase in the time it takes the Court to assign appeals for oral argument. While hard data is hard to come by, anecdotal evidence suggests that the average time between the filing of the final brief and oral argument has ballooned to between four and six months – compared to one to two months in the Appellate Court.
One cause of the increase is the Supreme Court’s decision to hear all appeals en banc. With each justice now sitting on roughly 40 percent more cases, it is inevitable that the process would slow because that means 40 percent more work for each of them. Not much can be done about that short of reversing the all-en banc policy – and, given the importance of the Court’s decisions, it is fitting that all of the justices should sit on every appeal.
However, the other likely reason, preparation of the appellate record, is a different story. Under our current system, an appeal is not ready for argument until the appellate clerk’s office prepares the yellow-covered appellate record. In Supreme Court appeals, the record-preparation process has slowed considerably of late. In some cases, waiting for the record to be assembled and sent to the appellant for copying ends up being the single biggest source of delay.
The fault lies not with the diligent, but understaffed and overworked appellate clerk’s office; the fault lies with the record itself. It is high time for the record, which, as someone once said of the House of Lords, does very little and doesn’t do it very well, to go the way of the dodo. The record is a repetitive compilation of the key pleadings and decisions that some of the justices use as a reference tool at oral argument, but it costs a great deal in terms of time and effort to prepare. This limited function easily could be assumed by adding to the documents the parties are required to put in their appendixes.
On to a more interesting topic: The justices issued 39 separate concurrences and dissents from September 2011 to September 2012 and two trends stand out.
The most notable trend to emerge in 2011-12 was the repeated pairing of two sets of justices: Justice Zarella and Justice McLachlan, and Justice Dennis Eveleigh and Justice Christine Vertefeuille. Both duos concurred or dissented together seven times and their frequent, joint opinions – a new development this year – reveal some interesting commonalities.
Justices Zarella and McLachlan found frequent common cause over the past year in championing judicial restraint and caution. While the two certainly were not ideological strangers in the past, in 2011-12 Justice McLachlan joined five of Justice Zarella’s nine separate opinions, and Justice Zarella returned the favor in two of Justice McLachlan’s three. Indeed, the first number is actually misleadingly low because Justice McLachlan did not sit on one of the nine cases in which Justice Zarella wrote separately and another of Justice Zarella’s separate opinions was a one-paragraph concurrence.
While neither Justice Zarella nor Justice McLachlan is a doctrinaire conservative in the Scalia-n sense, many of their separate opinions sprang from the shared view that the courts should play a limited and deferential role, but are not doing so. From allowing expert testimony on the subject of eyewitness identification (Guilbert, supra), to reviewing a moot question in a child custody case under the “capable of repetition, yet evading review” doctrine (In re Emoni W., 305 Conn. 79 (2012) (Justice McLachlan dissenting), to the scope of quasi-judicial immunity afforded to a conservator (Gross v. Rell, 304 Conn. 42 (2012) (Justice McLachlan concurring and dissenting), the Zarella-McLachlan tandem was consistent in its narrower view of the authority of the courts and the scope of their role. Call them Connecticut’s Judicial Restrainers. (This is by no means a tag of opprobrium. Judicial restraint once was a “liberal” view, not a conservative one; Justice Oliver Wendell Holmes formulated the notion as an antidote to the Lochner-era striking down of social legislation by his more conservative brethren.)
The frequency with which Justices Eveleigh and Vertefeuille formed a tandem was more surprising, given that they did not do so a single time in 2010-11. Moreover, their pairing was a distinctly one-sided affair: Justice Vertefeuille joined in all six of Justice Eveleigh’s dissents and concurrences in 2011-12, but he joined in none of hers.
For the Eveleigh-Vertefeuille tandem, the trial court usually is king. The common thread in many of their joint opinions is deference to the trial court and a great appreciation for the oft-arduous burdens placed on trial judges. In their dissent in State v. Jordan, 305 Conn. 65 (2012), for example, they took issue with the majority’s conclusion that a troublesome criminal defendant had “clearly and unequivocally” asserted his right to represent himself.
In the dissent in Duart v. Dept. of Correction, 303 Conn. 11 (2012), they disagreed with placing the burden to prove discovery misconduct entirely on the party moving for a new trial. Both decisions are trial court-centric, albeit in different ways: The former recognizes that statements that may seem clear in a cold appellate record may not be so in the heat of a courtroom, while the latter stems from the central role of the trial court in refereeing discovery disputes.
This is not to say that Justices Eveleigh and Vertefeuille are blindly deferential. In State v. Coccomo, 302 Conn. 113 (2011), their dissent states that they would have affirmed the Appellate Court’s reversal of the defendant’s DWI conviction based on plain error by the trial court in admitting questionably-maintained blood alcohol test results. Nonetheless, as the two justices who spent the most years on the trial bench (12 years for Justice Eveleigh and 10 for Justice Vertefeuille), decisions with an extra pinch of deference for the trial judge under review hardly come as a surprise.
The Lone Wolf
Justice Palmer, by contrast, adheres to Alexander Pope’s maxim, “Sworn to no master, of no sect am I: As drives the storm, at any door I knock.” In 2011-12, he issued nine separate opinions – four dissents and five concurrences – and joined in four others. This was mere chump change compared with 2010-11 when he wrote 19(!) separate opinions, but 2011-12 was the second year in row when Justice Palmer had the highest total on the Court.
What is more telling than the sheer volume of Justice Palmer’s separate opinions, however, is that seven of the nine were solo endeavors. Nor is this tendency new: in 2010-11, 16 of his 19 opinions were solos; in 2009-10, it was seven out of 10. Moreover, Justice Palmer writes alone with near-equal frequency in civil and criminal cases: in 2011-12, he wrote solo opinions in four civil and three criminal cases.
This proclivity for writing solo reflects a core feature of Justice Palmer’s jurisprudence: unpredictability. Of late, he has become a centrist by average – often to the left and the right on similar-seeming issues.
Take procedural fairness in criminal cases, for example: In Rose, Justice Palmer’s majority opinion invoked the Court’s supervisory authority to announce a per se rule that forcing a defendant to stand trial in “identifiable prison clothing” is unconstitutional and cannot be harmless error. In Lenarz, on the other hand, he forcefully took issue with the majority “presum[ing] a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship,” and dismissing criminal charges based on that breach.
Justice Palmer’s unpredictability is the natural by-product of two things: First, he is less apt to take the state’s point of view in criminal cases than he used to be and has therefore authored both very pro-defense and pro-prosecution opinions. This is not to suggest that Justice Palmer ever was biased in any way. However, having been the Chief State’s Attorney and Connecticut’s United States Attorney immediately prior to his appointment, Justice Palmer naturally brought a certain mindset to his early years on the Court. It is, for instance, difficult to imagine the 1993 version of Justice Palmer writing a painstaking, 103-page dissent from the Court’s refusal to award a criminal defendant a new trial based on newly discovered evidence. Skakel v. State, 295 Conn. 447, 553 (2010).
(Justice Palmer has evolved in other ways as well – from joining former Justice David Borden’s narrow view of our state constitution’s equal protection clause in Sheff v. O’Neill, 238 Conn. 1 (1996), to a more expansive view of the same provision in Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008).)
More fundamentally, however, Justice Palmer is unpredictable because he, like former U.S. Supreme Court Justice John Paul Stevens, seemingly does not try to fit his decision-making into some larger jurisprudential doctrine. Justice Palmer’s opinions – in particular his solo dissents and concurrences – suggest that he considers each case largely on its own facts and then decides it based on his view of the just and fundamentally fair result, without worrying too much whether that result is “consistent” with his past positions. Certainly, Justice Palmer pays heed to precedent and does not opine in a vacuum.
But when his gut conflicts, in a particular case, with the outcome that his prior opinions seem to dictate, he follows Winston Churchill’s maxim about the need sometimes to be a fugitive from one’s own party in the name of conscience. •