Connecticut Supreme Court in Hartford.
Connecticut Supreme Court in Hartford. (Photo: John Phelan via Wikimedia Commons)

When does our Connecticut Supreme Court speak as “the court” with the full weight of stare decisis?

We all may reflexively believe that the answer is easy: when a majority of the court signs onto an opinion. But what if there are two majority opinions in the same case?

State of Connecticut v. Edmonds (323 Conn. 34, 2016) was an appeal from the Appellate Court, which had found that the trial court had correctly determined that the defendant was not seized until police officers performed a pat-down search, and that the record was inadequate to review the defendant’s claim of unreasonable search and seizure. Convictions followed—on one count of possession of narcotics with an intent to sell, and one count of failure to appear.

The court reversed the Appellate Court, in a decision by Justice McDonald in which Chief Justice Rogers and Justices Palmer, Eveleigh and Robinson concurred.

The court found that the defendant was seized within the meaning of the U.S. and Connecticut Constitutions no later than when an officer commanded him to stop. Simultaneously, two police cruisers effectively blocked the two available exists from a small parking lot behind a Subway shop and other retail stores.

Justice Espinosa, with whom Justice Zarella joined, filed a vituperative dissent. It claimed the majority’s opinion was based on false assumptions, a misreading of relevant case law, a muddling of jurisprudence, and use of case law from other jurisdictions, which it called “simply unpersuasive and corrosive of the predictability and stability of our case law.”

The dissent further claimed that the majority’s opinion “will ultimately have the practical effects of hindering law enforcement at the most fundamental level and further endangering citizens living in crime-ridden neighborhoods.” Further, the dissent said, citizens living in those neighborhoods would react to the majority’s opinion with “bewilderment and frustration,” and those neighborhoods would become “fertile soil for the growth of further crime.”

The majority of the court—Rogers, Palmer, Eveleigh, Robinson and McDonald—responded to the dissent with what amounts to a majority opinion entitled a concurrence, authored by Justice Robinson. It takes issue with the dissent’s conclusion that police will now be hamstrung in their ability to prevent crime in high-crime areas, and that citizens living in crime-plagued neighborhoods will react with bewilderment and frustration. The concurrence argues with force that citizens living in high-crime areas, many of whom have been subjected to a disproportionate number of suspicionless stops, would welcome the notion that living in high-crime areas does not significantly lower their constitutional protections; that the right against unreasonable searches and seizures should not be tailored to one’s zip code.

The question here is, what are we to make of the second majority opinion? The court, for example, through Justice Robinson, found: “Beyond fear and distrust, some citizens have developed hostility and animosity toward police as a result of the prevalence of suspicionless stops.”

May propositions such as this be cited as an opinion of the court?

Justice Espinosa labels the second majority opinion an “ostensible concurrence.” She may be right—ostensible because the weight and importance of the opinion, presumably causing a majority of the court to sign on, seems essential to the majority holding itself. Rather than send the significant propositions in the concurrence into an uncertain future in the court’s jurisprudence, we suggest some options.

Justice McDonald may have taken Justice Robinson’s work and incorporated it into the court’s holding. The principles espoused there certainly directly support the undergirding rationale of the holding. Or perhaps Justice Robinson could have been assigned to write the majority holding, and allowed to incorporate his views into the work.

Alternatively, the court may incorporate the concurrence into its opinion, and substitute the corrected opinion. This can be done at anytime.

These options grant some certainty to the lingering question: When the majority of the court speaks, are they speaking for the court?