By Kenneth J. Bartschi and Karen L. Dowd. [*]
I. Supreme Court
Some years, the Supreme Court's decisions reveal a theme we explore in this review, but 2023 was not one of those years. The court released no real blockbusters, and the number of published opinions (70) was down somewhat from the average of 100 or so annually as the drought of trials (and therefore decisions to appeal) in 2020 and 2021 due to the COVID-19 pandemic works its way through the appellate system.
There was a bit of drama, however, concerning the court's membership. On March 9, 2023, former Justice Maria Araujo Kahn resigned to take a seat on the Second Circuit Court of Appeals.[1] Governor Ned Lamont nominated U.S. Attorney Sandra Slack Glover to fill the vacancy. Glover clerked for Justice Sandra Day O'Connor during the same term that now-Justice Amy Coney Barrett clerked for Justice Antonin Scalia. Glover joined her fellow clerks from that term in a letter supporting Barrett's nomination to the Seventh Circuit Court of Appeals. This letter of support came back to haunt Glover in her Connecticut confirmation hearings. Justice Barrett, of course, succeeded Justice Ruth Bader Ginsberg on the U.S. Supreme Court and ultimately provided the fifth vote in Dobbs v. Jackson Women's Health Organization[2]to overrule Roe v. Wade.[3] The lingering rancor over Dobbs got Glover into trouble with the more liberal members of the Connecticut legislature because of her prior support of Justice Barrett. Glover responded by criticizing Dobbs and affirming her support for abortion rights, which alienated the more conservative members of the legislature and ultimately doomed her nomination.
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Governor Lamont then turned to his former legal counsel, Attorney Nora Dannehy, as his nominee, and she was confirmed in September 2023. Justice Dannehy's background includes public service and private practice. In addition to serving as Governor Lamont's legal counsel, she served as a U.S. Attorney and as Deputy Attorney General for the State of Connecticut. She has also worked as corporate counsel and in a private law firm.
Notably, Justice Dannehy is now the third sitting justice who did not first serve as a trial judge.[4] We have no qualms about Justice Dannehy's qualifications given her impressive career and sterling reputation. Nor do we believe that experience as a trial judge is a prerequisite to service on the Supreme Court. But the fact remains that the court regularly issues decisions that affect how trial judges do their work and an understanding of what occurs in the trenches is important in assessing such issues. The authors hope that the governor will consider a jurist who has served as a trial judge the next time a vacancy opens to ensure that sufficient practical experience at the trial level informs the Supreme Court's jurisprudence.
Turning to the cases heard, it was a relatively uneventful year for the development of constitutional law. State v. Avo-letta[5] held that a special act extending the time to sue for alleged injuries to children due to poor air quality at certain public schools was an unconstitutional public emolument in violation of Article First, § 1 of the state constitution where the state did not cause the defendants to miss the statute of limitations.
Two cases concerned the Dormant Commerce Clause of the federal constitution. In Direct Energy Services, LLC v. Public Utilities Regulatory Authority,[6] the court concluded
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that marketing restrictions and regulations pertaining to renewable energy credits outside a specific geographic region did not violate the Dormant Commerce Clause. Similarly, in Alico, LLC v. Somers,[7] the Court held that the Dormant Commerce Clause was not violated by the "double" taxation of motor vehicles registered in Massachusetts (and subject to an excise tax there) but garaged in Connecticut and therefore also subject to Connecticut property taxes.
Relying on precedent from the United States Supreme Court, our Supreme Court held in State v. Langston[8] that the trial court did not violate the defendant's Sixth Amendment right to a jury by considering conduct for which the defendant had been acquitted when the court imposed a sentence within the statutory limits. The court also concluded after a thorough analysis that the state constitution did not provide greater protection than the federal constitution in this case.[9]Otherwise litigants largely gave the state constitution short shrift[10] or ignored it entirely.[11]
A case that could be described as constitutionally adjacent was Cerame v. Lamont.[12] It came to the court on certification from the U.S. District Court in Connecticut where the plaintiff claimed that General Statutes § 53-37 violates the First Amendment.[13] The question concerned the scope of
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§ 53-37, which criminalizes speech by any person "who by his advertisement" holds anyone out for ridicule because of membership in various protected classes.[14] The plaintiff argued that this statute applied to his banter with friends and social media posts, but the court held that it only applies to commercial speech.[15] So apparently that relative who drinks a little too much at holiday dinners and channels their inner Archie Bunker is safe from prosecution under this statute.
Finally, constitutional cases that "might have been" were Mills v. Hartford HealthCare Corp.[16] and a companion case, Manginelli v. Regency House of Wallingford, Inc.[17] Both concerned the application of an executive order issued at the beginning of the COVID-19 pandemic providing immunity from suit for healthcare workers from malpractice claims for actions taken in support of the state's response to the pandem-ic.[18] The court sought supplemental briefing and invited amicus briefs on the unpreserved question whether the governor had the authority to suspend the common law.[19] Reaching this issue could have required the court to confront Gentile v. Altermatt,[20] which is understood to hold that the legislature (and therefore, presumably, the governor) cannot eliminate a common-law cause of action in existence in 1818 without providing a suitable alternative.[21] The court, however, concluded the limitations of supplemental briefing and the inadequate opportunity to develop the factual record in the trial court counseled against deciding the question in these cases.[22]
On the other hand, the final judgment rule got a bit of a workout in 2023. First is a footnote in Strazza Building & Construction, Inc. v. Harris[23]
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observing that while Connecticut law regards the denial of motions to dismiss based on res judicata or collateral estoppel as final judgments for purposes of appeal, this is not the federal rule.[24] Although the court questioned whether it should revisit the Connecticut rule, it did not do so as the parties did not raise the question in the certified appeal.[25]
Another finality question spawned six opinions in three cases, four of which were unnecessary. The issue concerned whether the denial of a special motion to dismiss a SLAPP[26]suit pursuant to General Statutes § 52-196a was final for purposes of appeal. (Spoiler alert: it is.) The procedural route to resolving the question was a bit convoluted. The question first arose in Pryor v. Brignole,[27] a certified appeal from an Appellate Court order dismissing the appeal for lack of a final judgment. A five-justice panel heard argument on February 24, 2022, with Justices Kahn and Alexander apparently recused.[28] A few months after oral argument in Pryor, the court transferred two appeals to itself, Smith v. Supple[29]and Robinson v. V.D.,[30] raising the same issue.[31] Smith and Robinson were argued in October 2022 as motions with Justice Alexander on the panel for both. Pryor was reargued the same day without Justice Alexander. Smith and Robinson apparently resulted in evenly divided panels as Appellate
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Judge Eliot Prescott was added to become the deciding vote in those cases and was added to Pryor as well.
The main decision appears in Smith. Chief Justice Richard Robinson, writing for himself, Justices McDonald and Mullins, and Judge Prescott, held that while § 52-196a does not expressly provide a right to appeal from the denial of a special motion to dismiss, the extraordinary remedy it provides would be lost without an immediate appeal, so the order was final under the second prong of the Curcio test.[32]Justice D'Auria, joined by Justices Ecker and Alexander, dissented, taking the view that the right to appeal is "strictly construed,"[33] and concluded that the statute did not afford an immediate appeal. It is not clear why the court transferred Smith and Robinson after oral argument in Pryor, which became a 4-2 decision with the addition of Judge Prescott. Pryor would originally have been a 3-2 decision comprised of the regular members of the court who were not disqualified. The court could have decided the issue in Pryor without involving an Appellate Court judge who ended up being the deciding vote on the case used to decide the issue.
Another published opinion based on a motion with an evenly divided court was State v. Malone.[34] There, the defendant filed a motion for permission to file a late appeal. The court divided 3-3 and because the rules did not provide for adding another jurist on such a motion when the court was evenly divided, the motion failed.[35]
While we're on the subject of adding jurists after argument, the court added Justice McDonald and Judge Cradle from the Appellate Court after argument to reach a majority decision in Commissioner of Mental Health &Addiction Services v. Freedom of Information Commission,[36] concerning whether a police report for a state hospital was subject to
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disclosure under the Freedom of Information act. The panel...
