The past year was one of transition for the Connecticut Supreme Court: Two new justices with atypical resumes and pioneering personal histories, Andrew McDonald and Carmen Espinosa, joined the Court in early 2013. Meanwhile, Justice Dennis Eveleigh emerged as a thoughtful, frequent dissenter whose judicial philosophy often diverged from the Court’s mainstream.
Before I turn to those subjects, however, an update: Last year in this publication, I called for the appellate record “to go the way of the dodo,” in hopes that the long-overdue extinction of that canary-colored anachronism would speed the time between briefing and oral argument. I was merely one of many voices clamoring for the elimination of the record, which had ceased to perform any useful function that the parties could not duplicate via appendices to their briefs.
I am happy to report that, as of July 1, 2013, ding-dong, the record is dead! Thanks to the combined efforts of the Connecticut Bar Association’s Appellate Advocacy Section and the Judicial Branch’s Advisory Committee on Appellate Rules (and with Justice Peter Zarella acting as a sometime court-bar liaison), Connecticut has adopted a modified version of the system that the federal appellate courts have used for many years. For all appeals filed after July 1, it is now the obligation of the appellant to include the key pleadings and decisions in the appendix to his brief; the appellee can, if he believes the appellant has omitted something, include the missing documents in his appendix.
While it will likely take practitioners some time to adapt to the new system, the change will remove a huge burden from the overworked Appellate Clerk’s Office — and that should significantly reduce the delay between briefing and oral argument.
From procedure to personnel: In late January, Justice McDonald became only the fourth non-judge in the last hundred years to be appointed to the Court; he replaced Justice C. Ian McLachlan, who had retired the previous June. (The other three are Justice Richard Palmer, former Chief Justice Ellen Peters, and Justice John Beach, who sat on the Court from 1913-1925 and, like Chief Justice Peters, was a professor at Yale Law School at the time of his appointment.)
Although never a judge, Justice McDonald is, of course, anything but a judicial neophyte. He was co-chair of the Judiciary Committee for all eight of his years in the state Senate and was Governor Dannel Malloy’s general counsel for the two years prior to his elevation to the bench – the most experience in the two other branches of government of any appointee in recent memory. Given how often the Court must navigate the perilous waters that separate our three sovereign branches from one another, it will be interesting to see what effect that experience has on Justice McDonald’s judicial philosophy. How will he approach statutory construction, for example, having been an architect of them for nearly a decade? And what will he do if (or, more likely, when) the Court considers the constitutionality of Connecticut General Statutes § 1-2z (the “plain-meaning rule”) given his prominent role in the inter-branch fracas that prompted its passage?
Justice Espinosa arrived at the Court in March, replacing Justice Lubbie Harper Jr., via a more traditional route than Justice McDonald; she served for 19 years as a trial judge and then had a short stint on the Appellate Court. However, Justice Espinosa, too, has an unusual entry on her C.V.: five years as a special agent for the FBI. Combined with her 11 years as a federal prosecutor, Justice Espinosa has a wealth of hard-won knowledge about the practical side of criminal law and one would expect her to be a leading voice on the Court in criminal cases.
Both Justice McDonald and Justice Espinosa are significant “firsts” for the Court: he the Court’s first openly-gay justice, she its first Hispanic justice (as she was the first Hispanic Superior Court and Appellate Court judge). Each would have been an excellent pick no matter their sexual orientation or race, but public perception of the Court — in this age of increased public scrutiny and identity politics — matters more than ever. Lacking the inherent powers of either the executive or the legislature, the Court must command respect to do its job effectively and it helps to foster such respect if the Court’s demographics reflect Connecticut’s as a whole.
It is too soon to gauge the impact Justice McDonald and Justice Espinosa will have on the Court’s jurisprudence, although the early returns suggest that Justice McDonald may follow in the independent-minded footsteps of the last McDonald to sit on the Court. See Equity One Inc. v. Shivers, 310 Conn. 119 (2013) (McDonald, J., dissenting) (taking the majority to task for relying on “on inferences from evidence in the record that is legally and factually insufficient”). Justice Espinosa has authored three opinions (and no dissents) as of the date of this article, all in fairly routine appeals: Incardona v. Roer, 309 Conn. 754 (2013), State v. Milner, 309 Conn. 744 (2013), and State v. Brown, 309 Conn. 469 (2013).)
While Justice McDonald’s first months on the Court hint at independent-mindedness, Justice Eveleigh spent the past year as the Court’s champion dissenter. He penned 10 dissents and one concurrence (thus preventing last year’s titleholder, Justice Richard Palmer, from three-peating.) No Berdon he, Justice Eveleigh’s temperate and thoughtful solo opinions recall — both in tone and philosophy — another dissenting voice often at odds with the Court’s dominant philosophy: former Chief Justice Joseph Bogdanski.
Two themes predominate in Justice Eveleigh’s dissents and concurrences. The first is his tendency, like Justice Bogdanski in the late 1970s, to side with the plaintiff in tort cases. In Jarmie v. Troncale, 306 Conn. 578 (2012), for example, the majority held that a physician had no common-law duty to warn a patient of the driving risks associated with her medical condition (hepatic encephalopathy, for those who may be curious), and thus had no duty to the third party whom the patient injured when that condition allegedly caused her to collide with the third party’s car.
Justice Eveleigh parted company, in a long and scholarly dissent, with the majority’s decision upholding the striking of the third party’s complaint based on the “numerous policy considerations that support the imposition of a duty under the circumstances presented in this case.”
Justice Eveleigh again took a broader view of duty than the majority — this time under the Dram Shop Act — in O’Dell v. Kozee, 307 Conn. 231 (2012). While the majority made visible, or otherwise perceivable intoxication, a mandatory showing for liability under the act, Justice Eveleigh (joined by Chief Justice Rogers) would have held “that evidence of visible or otherwise perceivable signs of intoxication is one means, but not the only means, of proving intoxication under [the Act].”
Justice Eveleigh also differed from the majority about the scope of an insurer’s duty to defend a negligence suit. See Misiti LLC v. Travelers Property Casualty Co., 308 Conn. 146, 169 (2013) (Eveleigh, J., dissenting) (Travelers had duty to defend because there was a “possibility that the injuries sustained by the underlying plaintiff . . . arose out of her use of the premises” leased to Travelers’ insured).
And even when Justice Eveleigh and the majority reached the same conclusion, he would have construed the law more generously for the plaintiff. See Grenier v. Commissioner of Transportation, 306 Conn. 523, 563-64 (2012) (Eveleigh, J., concurring and dissenting) (fraternity owed hazee common-law duty “to provide him with safe transportation for fraternity events,” and statutory duty based on Connecticut’s anti-hazing law); Ugrin v. Town of Cheshire, 307 Conn. 364, 395 (2012) (Eveleigh, J., concurring and dissenting) (town’s duty to warn plaintiffs about sinkhole was ministerial, not discretionary).
Justice Eveleigh’s views stem, in part, from the second theme in his dissenting opinions: factual deference. Just as he tends to construe the facts that might give rise to a duty, and a plaintiff’s factual allegations, more generously than most of his brethren, Justice Eveleigh’s solo opinions emphasize deference to the trial court’s role as factual arbiter. In Simms v. Seaman, 308 Conn. 523 (2013), for instance, Justice Eveleigh eschewed the majority’s bright-line rule of absolute attorney immunity from suit for litigation conduct in favor of allowing such actions if there had been “a finding of fraud or dishonesty . . . by the trial court on a motion for sanctions, or a similar finding of misconduct . . . by the statewide grievance committee . . . .” In a similarly deferential fashion, Justice Eveleigh (joined by Justice Vertefeuille) would have found an alternate ground to uphold the trial court’s denial of a motion to modify alimony and child support. See Tanzman v. Meurer, 309 Conn. 105, 121 (2013) (Eveleigh, J., dissenting).
As a leading commentator has noted, Chief Justice Bogdanski had the pleasure of watching his dissents “become law in his own generation.” (Wesley Horton, The History of the Connecticut Supreme Court, at 188 (2008 Ed.). Whether the Court will move towards Justice Eveleigh (or he towards it) in coming years remains to be seen, but it seems clear that his is one of several new voices that may move the Court in a new direction. •