178. Connecticut secrets

Connecticut selects its judges on a modified federal model, with nomination by the governor and actual appointment by the general assembly.  Last spring, 67-year-old Chief Justice William J. Sullivan decided to retire ("take senior status" - meaning, I gather, that he can continue to work as much as he wants while drawing his pension - who wouldn't take it, if he or she could?).

The governor appointed Associate Justice Peter T. Zarella to replace Sullivan.  Zarella, as it happens, had joined in an opinion written by Sullivan declaring that the general assembly, being a bunch of morons elected by unwashed proles, had no right to know what one-third of the government was getting up to.  Sullivan used slightly fancier language, but the basic point was that the people of Connecticut have no right to know what the judiciary is doing.

Although Sullivan's opinion pretended to be merely implementing the general assembly's will - that is, engaging in statutory construction - Sullivan himself knew that the general assembly would be irritated by the opinion's assault on the basic premise of democracy, an informed electorate, without which no government (or branch of government) can truly be said to be exercising just powers derived from the consent of the governed.

It occurred to Sullivan that, if the general assembly knew Zarella's views on the subject, it might be hostile to his nomination to be chief justice.  So Sullivan delayed the release of the opinion for no other reason than to influence the general assembly's actions.  In effect, he lied to the general assembly, but it was a lie of omission rather than commission - he just took steps to prevent the assembly from learning what it would be getting with a Chief Justice Zarella.  (See post 176 and post 7.)

The Connecticut Supreme Court's senior justice filed a complaint with the Connecticut Judicial Review Council, which apparently has no website and which is described here as "ultra secretive."  At the hearing on the complaint, it's reported, a member of the council named G. Kenneth Bernard - Edward Abbey once made a pointed remark about people who use that first initial - told the senior judge, "I'm failing to see what your letter did to assist the public, other than to quash Justice Zarella's opportunity to become chief justice." After all, how does it benefit the public to know their former chief justice was a deceitful political operator entirely bereft of ethical sense? 

G. Kenneth was complaining about a justice lifting the veil of secrecy from another justice's act of secreting a decision about judicial secrecy.

But the story gets riper.  The general assembly's judicial committee decided they wanted to know what Sullivan thought he was doing, trying to influence their deliberations in that way.   So they subpoenaed Sullivan to testify.  And Sullivan got one of his former subordinates to rule - no joke - that it violated the separation of powers for the legislative branch to question a judicial officer about his interference in the legislative process.  (Here's an opinion on motions for rehearing, explaining that the integrity of the legislative process is just not important enough to justify a subpoena against a god.) 

It's the sort of decision that you read with the faint hope that at some point the judge will admit he's just joking.   No one could actually believe that the legislature is powerless to investigate attempts to improperly influence it, could he?  Imagine a member of the assembly telling a judge that, as a legislative officer, he's beyond the court's subpoena power. 

It's hard to imagine a clearer example of what judges mean when they use the phrase "separation of powers."  They mean: the judiciary is supreme.  Any act by the other branches that inconveniences judges is a violation of the separation of powers.  But nothing judges do is ever a violation of separation of powers.  It's hardly necessary to point out that the judge relied almost exclusively on prior decisions of the Connecticut Supreme Court to define that court's immunity from democratic scrutiny.  Because, of course, there's no difference between the state Constitution and the opinions of the state Supreme Court, except that in case of conflict the latter take precedence over the former.

Oh, and Senior Justice Sullivan has also reportedly taken the position that the Judicial Review Council has no authority to investigate, and much less discipline, him.  You see, he's a member of the Supreme Court.  Need anything else be said?

Some good may come out of the pathetic fiasco.  There is some political pressure for increased openness in Connecticut's courts, though naturally the judges who prefer the autonomy that comes with secrecy are opposed to anything that smacks of letting people know what their government is doing on their behalf.  No doubt, the judges are lining up toadying lawyers to confirm that, yes, indeed, every trial would be like O.J.'s if judges didn't have the flexibility to do things that would shame them if publicized.

(Perhaps ironically, back in 2003 Sullivan was reported to be opposed to the routine sealing of certain cases.  It's all a question of whose dirty linen would be aired, I guess.)

Vincent Michael Valvo, editor of the Hartford Business Journal and president of the Connecticut Council on Freedom of Information, wrote an excellent op-ed in the Hartford Courant about the half-hearted reforms endorsed by a governor's commission.  The commission's biggest failure?  Rule-making authority: 

Connecticut's Constitution says very plainly that the "powers and jurisdiction of [the] courts shall be defined by law." This is the same language as in the federal Constitution. But on the federal level, it's clear what that means: Congress holds the authority to make the rules and procedures of the court.

In Connecticut, though, the courts have been slowly trying to change that perception, issuing rulings over the past three decades that, though just shy of ever saying it outright, have been aggregating power to the judicial branch that rightly belongs to the legislature. In Connecticut, the court thinks it - and only it - makes the rules. And so, apparently, does the Governor's Commission on Judicial Reform.

The commission never considered issuing a statement that the court has gone too far in absorbing rule-making power.

Rules of procedure are, by definition, forward-looking, of general application.  Adjudication is, by its nature, backward-looking and specific as between litigants.  The former is the province of the legislative branch, the latter is the province of the judiciary.  The distinction is not difficult.

But Connecticut's judiciary isn't alone in declaring that the enacting of forward-looking rules of general application is - exclusively - a judicial prerogative, when the rules in question affect the courts.  I think most state courts take that position.  You see, it's not a separation of powers problem when it's done by the courts.  That distinction's pretty simple, too.

Comments

[Steven G. Erickson]

Excellent post.

We need to have more judicial impeachment and abolish judicial immunity.

-Steven G. Erickson aka blogger Vikingas

P.S. do a word search on my name and you'll understand why I advocate this.

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