By Wesley W. Horton and Kenneth J. Bartschi [*]
Co-author Bartschi yields to co-author Horton to make a personal statement.
Since the Connecticut Supreme Court's 1978-1979 term, I have been either the sole author of this annual Connecticut Appellate Review (1978-1984) or a co-author with Kenneth Bartschi (since 2000), Susan Cormier (1993-2000) and Alexandra Davis (now the Honorable Alexandra DiPentima) (1984-1993), which makes this Review number 44. It also will be my last, so I hereby bequeath my role to co-author Bartschi and whomever he chooses to co-author number 45.
When I started in 1978 there was no Appellate Court, Chief Justice Charles House had just retired, Justice John Cotter had just replaced him, and Yale Professor Ellen Ash Peters had just been appointed as an Associate Justice. Over the course of the next twenty-two years, twelve of them as Chief Justice, Peters would give the court an intellectual heft it had not had since Chief Justice William Maltbie retired in 1950. Most important, she got the attention of lawyers and the public with her vigorous revitalization of the Connecticut Constitution. During that period she had a very able colleague and foil in Justice David Shea in the 1980s and Justice David Borden in the 1990s.
Emphasis on the Connecticut Constitution did not wane when Justice Peters was constitutionally required to retire at age 70 in 2000. This Review each year before and since then has discussed all of the areas the Supreme Court has advanced into concerning the Connecticut Constitution. At the same time, this Review has often criticized lawyers for not paying sufficient attention to the Connecticut Constitution.
Since the advancement of state constitutional litigation is the one professional subject I would most like to be remembered for, and since there is plenty of grist for that mill in the decisions issued in 2022, the Supreme Court section of this Review will focus more attention than usual on the Connecticut Constitution.
That ends my personal statement. Now to our joint 2022 Review.
I. Supreme Court
Lots of decisions in 2022 concerned individual rights, but only a handful specifically discuss the Connecticut Constitution. One of the most important decisions to do so is State v. Patel, [1] involving the confrontation clause. After first holding that the statement of a co-conspirator to a fellow inmate inculpating the defendant is non-testimonial under the Sixth Amendment of the United States Constitution,[2] the Supreme Court discussed article first, § 8 of the Connecticut Constitution and whether it would require a more protective approach, especially if the government had any role in inducing the conversation. While the court was not persuaded to depart from the federal standard on the record in this case, it left a broad hint that this general issue was a promising one for a future case.
Another important state constitutional decision is State v. Jose A.B., [3] concerning voir dire. The issue was whether distrust of law enforcement is a race-neutral reason for exercising a preemptory challenge. Federal constitutional law clearly says yes,[4] so the issue was joined under article first, §§ 1, 8, 19 and 20 of the Connecticut Constitution. After an extensive analysis of the six Geisler factors,[5] the court declined to hold that the Connecticut constitution provided greater protection in light of a task force convened to address the issue. Unfortunately, the issue was not preserved at trial and so had to be raised under the four prongs of State v. Golding[6]as modified by In re Yasiel R., [7] the most important prong being whether the trial record is adequate to decide the issue.
Jose A.B. thus highlights what is and is not working for the Connecticut Constitution: appellate lawyers make good, even if not always successful, appellate arguments on the subject, but trial lawyers often miss the issue entirely, thus leaving the appellate lawyers with a less than ideal record. In thirteen decisions, about one-third of all the Supreme Court decisions in which a constitutional issue was raised in 2022, the Supreme Court had to say that the issue, state or federal, was reviewed under Golding. This is frankly rather shocking.
In In re Ivory IV., [8] appellate counsel raised both state and federal constitutional issues but trial counsel had raised only a federal one, showing again that the Connecticut Constitution is an afterthought to many lawyers. Ivory W. was a termination of parental rights case. The mother had a criminal trial pending and wanted the termination trial continued until her criminal trial had been held. She claimed at the termination trial that the denial of a continuance violated her self-incrimination rights under the Fifth Amendment. The Supreme Court held that the penalty of a non-continuance was not so severe as to violate the Fifth Amendment. The court then turned under Golding to article first, §§ 8 and 10 and discussed at length the fundamental rights of parents to raise their children versus the public policy against allowing children to remain in foster care for a lengthy period. On balance, the latter policy prevailed on the facts of the case.
State v. Pan[9] concerns a right to bail under the Connecticut Constitution, and the good news is there is nary a footnote to Golding. Construing the bail provision in article first, § 8, the Supreme Court required that more extensive procedures be available to defendants after arraignment in order to challenge bail orders.
We must also give credit to counsel for raising a Connecticut constitutional argument in State v. Belcher[10] that the defendant's sentence was disproportionate under article first, §§ 8 and 9. This is a subject worthy of future consideration, but the defendant won on a separate argument that the trial court at sentencing had improperly referred to him as a charter member of a group of superpredators.
In State v. Gray, [11] concerning the extent to which coercive measures that are taken to force a witness to testify might violate the defendant's right to a fair trial, the defendant raised only a federal constitutional issue. While the defendant did not prevail on the facts, the Supreme Court was very concerned about making sure that trial courts employed the least restrictive means necessary to ensure that a material witness appears in court.
In In re Annessa J., [12] a parental rights termination case, a virtual trial was held in the fall of 2020, at the height of COVID-19. Via Golding, the mother claimed a state and federal constitutional right to a trial in court. The federal due process claim failed for an inadequate record. The state claim, however, was based in part on the "open courts" provision in article first, §10. The record was adequate for the claim that "open" means "in person." However, the court construed it as not necessarily requiring courts to conduct trials in person.
One major case in which the Supreme Court explicitly noted that no constitutional claim was raised is Commission on Human Rights & Opportunities v. Edge Fitness, LLC, [13] holding that General Statutes § 46a-64(b)(1) of the Public Accommodations Act does not contain an implied gender privacy exception for women-only workout areas.[14] While the court concluded that the statutory text adopted in 1994 was clear, 28 years is a long time ago in this area of the law and the court suggested at the end of its opinion that the legislature may wish to re-examine its understanding of the terms "gender" and "sex." We would also note that article first, § 20, unlike the U.S. Constitution, expressly bans discrimination on the basis of sex. That constitutional term invites examination by the court.
Another case that does not raise a Connecticut constitutional issue but nevertheless also demonstrates how the Connecticut Constitution deviates from the U.S. Constitution is State v. Gore, [15] in which the Supreme Court overruled State v. Finan[16] and held that lay opinion testimony that relates to the identification of a person in a video or photograph may be admissible as an ultimate issue under the Connecticut Code of Evidence. The important constitutional point is that the Code had been adopted by the justices of the Supreme Court and judges of the Appellate and Superior Courts. The Supreme Court exercised its ultimate power as the head of the judicial branch to amend the Code. Such a result would be inconceivable under the U.S. Constitution, which places such a matter under the ultimate control of Congress.
One Connecticut constitutional case not involving article first is In re Petition of Reapportionment Com mission Ex. Rel., [17] concerning re apportionment of Connecticut's five Congressional districts. The legislature deadlocked, so article third, § 6 as amended put that duty on the Supreme Court. The court ordered a special master to do as little as possible to change the 2012 reapportionment map, which also was court-ordered and followed along the lines of the 2002 map agreed-to by a bipartisan commission of the legislature.
This is about all there is for the Connecticut Constitution in 2022. To press home our argument that lawyers too often treat state constitutional litigation as an afterthought, we now list major constitutional decisions in 2022 where it appears no state issue was raised or, if it was, it was not separately briefed (in which case the court assumes that the Connecticut Constitution means the same thing as the federal one).
Here is the list: State v. Morel-Vargas[18] (waiver of right to testify can be made by counsel under the Fifth Amendment); State v. Police[19] (John Doe arrest warrant identifying subject only through partial DNA profile violates the Fourth Amendment); State v. Samoulis[20] (emergency aid exception to Fourth Amendment...
