Expressio Unius et Cetera

 

By: Wesley W. Horton

Recently my partner Dana Hrelic mentioned to me that she had just returned from a conference with lawyers in Montreal. I responded that I had just returned from a conference with important lawyers in New Haven. This followed:

Dana: “Are you implying that the lawyers I saw were not important?”

Me: “Not at all. I wasn’t implying anything about your lawyers.”

Dana: “I learned in law school that ‘expressio unius est exclusio alterius.’”

Me: “I learned in March that Chief Justice Roberts disagrees with you. Take that!”

[Pause to bring up NLRB v. SW General, Inc., 137 S.Ct. 929 (2017)]

Dana: “Ha! It’s clearly distinguishable.”

And so it may be. But what is significant to practicing lawyers is that common law principles we deal with every day in our routine contract and torts cases can be affected by glancing at the latest U.S. Supreme Court cases that on their face deal with issues most of us will never face. (SW General concerned acting appointments by the President.)

“Expressio unius” is a phrase lawyers deal with all the time, and Chief Justice Roberts’ 6-2 opinion explains in clear English with sparkling examples when it does and does not apply. As he notes, if a permanent sign says, “Come see the lion and the giraffe,” and a temporary sign says, “The giraffe is sick,” you can properly infer that the lion is not sick. But if a radio station says, “We play your favorite hits from the ‘60s and ‘70s, but even though we play hits from the ‘60s, we do not play music by British bands,” you cannot properly infer that the station plays music by British bands from the ‘70s.

So Dana relied on the lion and I relied on the British bands. We declared a draw and returned to our billable files.[1]

[1]           Technically, I wrote this blog and then returned to my billable files.

Disciplinary Counsel v. Elder, (SC 19698)

 

 

I am frequently asked whether there is a statute of limitations applicable to grievances. My response has always been, “yes, but it has never been interpreted as being mandatory.” After the Supreme Court’s decision in Disciplinary Counsel v. Elder, (SC 19698), officially released May 2, 2017, I can finally change my answer to a definitive yes, and the statute of limitations is six years.

 

Brendon P. Levesque

 

 

Lewis v. Clarke

In Lewis v. Clarke, Docket No. 15-1500, decided April 25, 2017 by the Supreme Court of the United States, the Court reversed the Connecticut Supreme Court, 230 Conn. 706 (2016), on the issue of tribal immunity as applied to suits against employees of a sovereign tribe in their individual capacity.

 

In Lewis, the plaintiffs were injured in an automobile accident allegedly caused by the negligence of Clarke, an employee of the Mohegan tribe. At the time of the accident, Clarke was driving on a state highway in the course of his employment. The defendant moved to dismiss for tribal sovereign immunity. The trial court denied the motion. The Connecticut Supreme Court reversed, holding that tribal sovereign immunity applied to bar the suit. The plaintiffs’ petitioned for certification to the Supreme Court of the United States, which was granted.

 

The Supreme Court of the United States held that tribal sovereign immunity does not bar suits against tribal employees in their individual capacity even if the tort occurred within the scope of the employment. The Court further decided that tribal sovereign immunity still does not apply even where there is a statute which provides that the tribe will indemnify the individual employee. The application of sovereign immunity is determined by an analysis of the real party in interest: who will be legally bound by the action, not who will pay the judgment. In cases against employees in their official capacity, the real party in interest is the sovereign and so immunity applies. In this case, the real party in interest was the individual defendant. As such, tribal sovereign immunity does not bar the suit. The Court analyzed tribal sovereign immunity in the same manner as state sovereign immunity.

 

Attorneys Dana Hrelic and Karen Dowd authored a brief on behalf of Amici Curiae Connecticut Trial Lawyers Association and American Association for Justice in support of the plaintiffs. The brief was co-authored by Attorneys Michael D’Amico, President of CTLA, Jeremy D’Amico, both of D’Amico & Pettinicchi, LLC, and Jeffrey White, AAJ Associate General Counsel.

 

Five Worst Decision, Part V

Five Worst Decisions, Part V

By: Wesley W. Horton

This is it, the worst decision in the history of the Connecticut Supreme Court. And the winner is . . . State ex rel. Morris v. Bulkeley, 61 Conn. 287 (1892). The decision is so awful that it actually makes Bush v. Gore, 531 U.S. 98 (2000), look good.

The State Register and Manual, the official Information Please of Connecticut, says that Morgan Bulkeley was the Republican Governor from 1889-1893. At that time the term of office was two years. He was elected in 1888 and did not run for reelection in 1890. So how could he have been the Governor until 1893? Read on.

The 1890 election was a close call. The Constitution said that the Legislature was to make the call on the second day of its next session. So in January 1891 the Democratic Senate called it for the Democrat and the Republican House called it for the Republican. Partisan feuding went on for months. Meanwhile, Bulkeley was not about to leave office until somebody was picked to replace him. The Democratic Senate retaliated by refusing to appropriate any funds to operate the government. Bulkeley, who simultaneously was the President of Aetna Insurance Company, responded by turning the state into a ward of his insurance company. The company proceeded to fund the state budget.

Eventually the Democrats got the bright idea to file a lawsuit. So in October 1891, the Democratic gubernatorial candidate, Luzon Morris, filed a quo warranto action against Bulkeley. Morris alleged that he was the rightful holder of the office. The case was quickly reserved to the Supreme Court, which heard oral argument over two days in late November.

As the justices cogitated throughout December without making a decision, Bulkeley continued to govern. The Supreme Court issued its momentous decision on January 5, 1892: the demurrer to the writ must be sustained, i.e., Morris’s claim must fail. Why? Because there was a pleading defect!

If I were to paraphrase the Court’s reasoning, you would not believe me, so I will quote it:

 

“The information [the complaint] does not allege that the relator [Morris] had the majority of all the votes, but only the majority as it appears by the returns of the presiding officers, while other parts of the information show that such apparent majority is in dispute. Nor does the information contain any allegation that the general assembly had become unable to decide upon the relator’s right to the office he claims.

 

If the relator shall hereafter, by an amendment of the present information, or by a new one, allege that he received a majority of all the votes lawfully cast for governor on the 4th day of November, 1890, and it shall also appear from the facts therein stated that the general assembly is without the power to make any declaration in respect to the election for governor, a case would be presented of which the superior court might take jurisdiction.

 

The superior court is advised that the information is insufficient, and to sustain the demurrer.”

61 Conn. at 376, which was 89 pages after the report of the decision began.

So, Mr. Morris, go back to square one, clean up your writ, and then maybe the Superior Court can take a look at it, but only if you also allege that the Legislature “has become unable to decide” who was elected. After all, only a year has gone by. Maybe the Legislature will turn over a new leaf now that a new year has begun. It is true that it may be too late constitutionally for the Legislature to act. But you didn’t allege that, Mr. Morris.

Of course nothing happened. So Bulkeley and the Aetna Insurance Company ran the state for another year until Morris decisively won in November 1892 and took office in January 1893.

Five Worst Decisions, Part IV

Five Worst Decisions, Part IV

By: Wesley W. Horton

Last time, I said that Buxton v. Ullman, 147 Conn. 48 (1959), one of the four infamous contraception decisions leading up to Griswold v. Connecticut, 381 U.S. 479 (1965), was the third worst decision in the history of the Connecticut Supreme Court. Today I report on the second worst decision, State v. Taborsky, 147 Conn. 194 (1960).

Messrs. Joseph L. Taborsky and Arthur Culombe were convicted of murder and sentenced to death. The evidence included their confessions. In that era, the state police had in its employ one Samuel Rome, a lieutenant at the time, whose specialty was extracting confessions while driving a suspect around the state in a police cruiser for hours on end. That also made it difficult for any lawyer to contact him.

On appeal to the Connecticut Supreme Court, the Court affirmed the convictions. The decision is a bland one, giving no detailed discussion of Rome’s techniques. In 1960, the Warren Court’s involvement in criminal process was still in the early stages. Taborsky or his lawyers must have thought a petition for certification was hopeless because he did not file one and so was executed.

Meanwhile, Culombe did file a petition, which was granted. After oral argument, Justice Felix Frankfurter, not known for his pro-Warren tendencies, was assigned to write the majority opinion. He, unlike the author of the Connecticut Supreme Court opinion, went into great detail about Rome’s technique and concluded with this blistering statement:

 

But when interrogation of a prisoner is so long continued, with such a purpose, and under such circumstances, as to make the whole proceeding an effective instrument for extorting an unwilling admission of guilt, due process precludes the use of the confession thus obtained. Under our accusatorial system, such an exploitation of interrogation, whatever its usefulness, is not a permissible substitute for judicial trial.

Culombe v. Connecticut, 367 U.S. 568, 635 (1961).

So, unlike the three cases that received my #5, #4 and #3 worst decision awards for what they said, State v. Taborsky wins #2 for what it did not say. It did not say anything while the state police were running riot in the 1950s.

The perceptive reader may note that #4, #3 and #2 were all decided between 1957 and 1960. That is not a coincidence because, as I have explained in detail in The History of the Connecticut Supreme Court (Thomson/West 2008), chapter 9, the time soon after Chief Justice Maltbie retired in 1950 was indeed the nadir in the Court’s history. But #1 is from an entirely different period; you will have to wait until next week to see what a truly awful decision looks like.

Five Worst Decisions, Part 3

Read Part 2 – Five Worst DecisionsLast time I discussed the fourth worst decision in the history of the Connecticut Supreme Court, Cole v. Steinlauf, 144 Conn. 629 (1957). Today I will discuss the third worst decision, Buxton v. Ullman, 147 Conn. 48 (1959).

Buxton is the most infamous of the four infamous contraceptive decisions between 1940 and 1964, holding that a statute preventing use of drugs or instruments to prevent contraception, even among spouses, and even if the woman’s health is at risk, was constitutional. Buxton was the most extreme of the four cases because one of the women claimed that in her previous pregnancy she had “developed a condition which brought her to the very brink of death.” 147 Conn. at 52.

The decision blandly responded:

 

It may well be that the use of contraceptives is indicated as the best and safest preventive measure which medical science can offer these plaintiffs. That fact does not make it absolutely necessary for the legislature to accept such a solution in all cases, where there is, as pointed out in the Tileston case (p. 92), another alternative, abstinence from sexual intercourse.

Id. at 58.

While Buxton was unanimous, the 1942 Tileston case was a 3-2 decision, with the dissent making the obviously proper response:

 

Even if it be conceded that such a course of conduct is reasonably practicable, taking into consideration the propensities of human nature, the resort to such a practice would frustrate a fundamental of the marriage state. The alternative suggested in the argument of the state against permitting qualified physicians to give proper medical advice upon this subject would tend in many cases to cause unhappiness and discontent between parties lawfully married, would stimulate unlawful intercourse, promote prostitution, and increase divorce.

Tileston v. Ullman, 129 Conn. 84, 102-03 (1942) (Avery, J., dissenting).

The U.S. Supreme Court dismissed an appeal in the Buxton case because it was a declaratory judgment action to prevent criminal prosecution, but there was no evidence that anyone had ever been prosecuted. So an arrest was arranged shortly thereafter, and thus was born the case we all know today, Griswold v. Connecticut, 381 U.S. 479 (1965), reversing State v. Griswold, 151 Conn. 544 (1964).
 
Read Part 1 – Five Worst Decisions
Read Part 2 – Five Worst Decisions

Five Worst Decisions, Part 2

by Wesley W. Horton
February 28, 2017
 

Last week I said the fifth worst decision in the history of the Connecticut Supreme Court is State v. Clemente, 166 Conn. 501 (1974). Today I will discuss the fourth worst decision: Cole v. Steinlauf, 144 Conn. 629 (1957).
 

Cole concerned a deed that conveyed real property to the grantee and his assigns forever. The word “heirs” was omitted and there was no evidence other than the language of the deed as to intent.
 

Four of the five justices had this to say on that:
 

To create an estate of inheritance in land by deed, it is necessary to use the word “heirs.” Chappell v. New York, N.H. & H.R. Co., 62 Conn. 195, 202, 24 A. 997. Where the common-law rule is in effect, as it is in Connecticut, a grant to a grantee “and his assigns forever” vest only a life estate in the grantee. 19 Am. Jur. 474.
 

Id. at 631-32.
 

Shortly after the decision came out, Edward Stephenson, a professor at UConn Law School, wrote a scathing attack in “The Dictum of Cole v. Steinlauf: Its Causes and Its Implications,” 32 Conn. B.J. 262 (1958). His article first pointed out that the quoted language was dictum. Stephenson then went on at great length to explain how thoughtlessly the majority was acting when it stated expressly that this absurd relic of English feudal law was a part of Connecticut common law in 1957.
 

He showed that Chappell, an 1891 case, is itself dictum, and that the Am. Jur. citation had very weak support in the cases it relied on. More important, the majority had no interest in what was going on elsewhere (where the rule had been abandoned in virtually all states), no interest in why the rule was adopted in the first place, and no interest in whether it was a good or even a marginally acceptable rule in 1957.
 

Dictum piled on dictum, and then treated as binding without reflection on the absurdity of the result, gives Cole v. Steinlauf the honor of fourth worst decision ever.
 
Read Part 1 – Five Worst Decisions
Read Part 3 – Five Worst Decisions

Five Worst Decisions

by Wesley W. Horton
 

At the monthly meeting for the Middlesex Bar Association on February 15, 2017, Justice Richard Palmer was the main speaker. He spoke about State v. Peeler and State v. Kono, the two most important state constitutional decisions of 2016. I was the warm-up speaker. I was asked to address five things in five minutes, so I decided to discuss briefly the five worst decisions of the Connecticut Supreme Court. Now that I have a bit more time, I will discuss these decisions in a little more detail, in serial format.

 

Today I will discuss the fifth worst decision, State v. Clemente, 166 Conn. 501 (1974).

 

After the State presented the testimony of two witnesses in a criminal case, the defendant demanded a copy of the statements they made to the police. The defendant’s demand was proper under a statute, C.G.S. § 54-86b, which overruled the previous common law rule that gave the trial court discretion on whether to order the State to turn over the statements. The defendant refused to say “pretty please” to the trial judge. The judge then refused to be bound by the statute and denied the defendant’s demand.

 

On appeal, the 3-2 majority declared the statute unconstitutional and affirmed the conviction. The purple prose about how the statute invaded the separation of powers concerning the judiciary’s controlling of discovery has to be quoted to be believed:

 

[A]cquiescence to a gradual invasion of the judiciary by the legislature would eventually render the former little more than a judicial staff of the legislature. All pretense of independence would disappear and the judicial power would come to rest again in the hands of the General Assembly as it did prior to the year 1818.

 

Id. at 515.
 

I am as big a supporter of separation of powers arguments as anyone, but there is just this tiny bit of a problem with the majority’s reasoning: as Judge Cotter pointed out in his dissent, there was a long line of cases in which the legislature enacted statutes concerning discovery with not a peep of an objection coming from the Supreme Court.

 

To strike down a sensible statute on such a weak separation of powers ground was an unwise exercise of its constitution powers, especially when the Court would easily have avoided the constitutional issue by simply acquiescing in the statute. By employing such an important constitutional principle for such a trivial result, the Court also weakened its hand for the time when it may urgently need this important principle in a real constitutional crisis.

 
Read Part 2 – Five Worst Decisions
Read Part 3 – Five Worst Decisions

How Appellate Lawyers Can Help Trial Lawyers

By: Wesley W. Horton

Our firm recently won a reversal of an almost $12,000,000 judgment in a sexual abuse case. The case is Doe v. Boy Scouts of America Corp., 323 Conn. 303, and it provides an illustration of how appellate lawyers can help cases while they are still in the trial court.

We were retained to assist the defendant’s trial lawyer in preparing the Boy Scout case for trial and to sit second chair at trial. Our primary role was to make sure that any potential appellate issues were properly raised and preserved before and during the trial. So we filed an appearance and reviewed and addressed all sorts of issues concerning the pleadings, the evidence and the charge to the jury. This left the trial lawyers free to concentrate on the business of trying the case, preparing the witnesses and handling the day-to-day brush fires of a trial.

As it turned out, the charge to the jury was the key to the reversal. Here is what happened. We prepared the requests to charge. While many of the requests were boilerplate, we knew there had been a recent sexual abuse case decided by the Supreme Court, Doe v. Saint Francis Hospital and Medical Center, 309 Conn. 146, that in our opinion established the defendant’s common-law duty in this case. So we spent a great deal of time crafting the relevant requests in the precise language of that case. The plaintiff’s lawyers objected to our requests and the trial court agreed with them. We then duly took exception and away we went on appeal when the jury found for the plaintiff.

The Supreme Court took the appeal away from the Appellate Court and held that, because the requests to charge properly stated the law from the Saint Francis case, a new trial had to be ordered.

In the course of a trial, there are so many issues to address, so many “what about” questions to answer. Understandably, sometimes it’s hard to focus on the day-to-day needs of the trial and on preserving issues in case of an appeal. Having appellate counsel in from the start of trial alleviates those concerns, while also allowing the trial lawyer to focus on the trial and its many nuances.

State v. Kono and the Primary Versus Interstitial Approach to Deciding Constitutional Questions

By Kenneth J. Bartschi, Partner

Among the cases the Connecticut Supreme Court worked furiously to complete before Justice Peter Zarella left the court to return to private practice was State v. Kono, 324 Conn. 80 (2016). The court held in a 6-1 decision that a warrantless canine sniff at the door of the defendant’s condominium, which revealed the presence of marijuana within, was an illegal search and seizure. While that result is interesting in its own right, the divergent routes to that conclusion raise the question whether the court should start with the Connecticut constitution or the federal constitution when both are properly in-voked.

Writing for the majority, Justice Richard Palmer held that the canine sniff violated Article First, § 7 of the Connecticut constitution because the defendant had a reasona-ble expectation of privacy in the entrance to his home. Justice Zarella concurred, but concluded that the search violated the Fourth Amendment to the federal constitution, relying on a Second Circuit decision. (Justice Espinosa dissented, arguing, inter alia, that the defendant did not have a reasonable expectation of privacy in the shared hall-way to his condo.)

The divergent paths of the majority and Justice Zarella provide an opportunity to examine the primacy doctrine, in which the court first analyzes the state constitution, and the interstitial approach, where the court begins with the federal constitution and moves to the state constitution only where the federal rule is ambiguous or does not provide the relief sought. Note that the question arises only in cases of first impression where the parties have invoked both constitutions and properly briefed the state consti-tution according to the analysis set forth in State v. Geisler, 222 Conn. 672 (1992).

Although it has not been entirely consistent, the Connecticut Court Supreme generally has followed the interstitial approach. Indeed, both the majority and the con-currence thought that the proper approach was to start with the federal constitution and turn to the state constitution only if federal law was unsettled or failed to provide the re-lief the defendant sought. They disagreed in Kono on the clarity of federal law as it per-tained to the canine sniff in question.

Despite this seeming agreement, however, Justice Zarella used the concurrence to argue that the court should consistently follow the interstitial approach. He is correct that the court has not always been consistent in deciding which constitution to apply first. In arguing for the interstitial approach though, Justice Zarella seems to be ad-dressing advocates of the primacy doctrine off the court as well as the majority in Kono since the disagreement in Kono really concerned the degree of certainty as to the fed-eral rule, not the overall approach.

In broad strokes, Justice Zarella’s arguments in support of the interstitial ap-proach are: federal constitutional law now dominates because the Supreme Court has applied much of the Bill of Rights to the states through the Fourteenth Amendment and the primacy doctrine ignores this reality; a well-developed body of federal constitutional law makes it likely that the answer to any given case will probably be readily available; addressing the federal constitution first allows the court to articulate the differences be-tween the state and federal constitutions when they exist; under Geisler, the court must analyze federal cases anyway; deciding a claim under the federal constitution avoids unnecessary state constitutional analysis; and deciding the federal constitutional ques-tion first avoids “creating unnecessary or unintended differences between federal and state law,” which might be perceived as a results-oriented rejection of the federal rule. 324 Conn. at 149.

These are largely pragmatic considerations. For instance, a Geisler analysis re-quires consideration of federal precedent among its six prongs. Since the court needs to review federal case law anyway when deciding the state constitutional question, and since it would be bound by the minimum standards set by the United States Supreme Court, that inquiry could very well end the analysis and avoid engaging in the lengthy assessment of the constitution text, its history, Connecticut appellate authority, sibling state authority, and socio-economic considerations that Geisler requires.

As attractive as practical considerations might be, it is not clear whether they outweigh the value of having a robust jurisprudence under our state constitution. For example, in Kono, the majority relied on the reasonable expectation of privacy one has in the entrance to one’s home, which in this case was a condominium accessible only through a shared hallway, to conclude that a warrant was necessary before a dog could sniff at the door in search of contraband. Whether the United States Supreme Court would agree in the same circumstances is less than clear.

A recent Supreme Court decision, Florida v. Jardines, 133 S. Ct. 1409 (2013), held that a dog sniff at the curtilage of the house violated the Fourth Amendment but relied on common-law property principles, not a reasonable expectation of privacy. Jus-tice Kagan, joined by Justices Ginsberg and Sotomayor, would have resolved the mat-ter on the basis of privacy, but their view failed to command a majority of the Court. Further, two prior decisions, United States v. Price, 462 U.S. 696 (1983), and Illinois v. Caballes, 543 U.S. 405 (2005), held that dog sniffs of luggage at airport or of cars did not violate the Fourth Amendment because there was no reasonable expectation of pri-vacy in contraband. By deciding Kono on state constitutional grounds, the court was able to avoid the uncertainty of federal law.

To be sure, as Justice Zarella points out, if the United States Supreme Court re-versed on the Fourth Amendment question, the case would return to the Connecticut Supreme Court for resolution of the state constitutional claim. But that would drag out the case two or more years and could well mean extending the incarceration of a de-fendant who was improperly convicted. Pragmatic considerations should not overlook the effect on litigants.

Further, although a reversal by the Supreme Court of the Fourth Amendment claim might undermine the state constitutional claim as well, this is not necessarily the case. Persuasive authority from other jurisdictions is not limited to majority opinions but may include concurrences and dissents. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (finding dissenting opinions in sibling state decisions to be more persuasive on the question of marriage equality than the majority opinions). At least where there is no controlling authority from the United States Supreme Court granting the relief sought, addressing the state constitution first may well shorten the decision-making process. Thus, pragmatic considerations run in both directions.

It is true that federal constitutional law dominates and it may be convenient if the state constitution means the same thing as the federal constitution. But Connecticut is a sovereign state and ceding the meaning of our constitution to the United States Su-preme Court unnecessarily erodes the efficacy of our constitution as an independent source of law. To avoid this erosion of our state constitutions independence, it would be preferable to rely solely on the federal constitution where it controls rather than state that the constitutions have the same meaning. This leaves open the possibility that our state constitution has a different meaning if the federal rule changes in the future.

Finally, Justice Zarella worried that distinctions between the state and federal constitutions could encourage forum shopping. Indeed, one reason the United States Supreme Court applied much of the Bill of Rights to the states was that states often provided fewer constitutional protections in the area of search and seizures. Federal authorities would turn over ill-gotten evidence to state prosecutors who would be able to use the evidence in state proceedings. Justice Zarella worries that the reverse could occur if the state constitution offered greater protections that the federal constitution.

To the extent state prosecutors will turn ill-gotten evidence over to federal prose-cutors, that problem, if it is one, would be limited to procedural claims such as the ex-clusion of evidence. A federal court would apply Connecticut law to substantive claims, whether through its own analysis or by certifying questions to the Connecticut Supreme Court. See, e.g., Ramos v. Vernon, 254 Conn. 799 (2000) (answering certified question from the Second Circuit as to Article First, §§ 4, 5, and 14). In any event, that ship has already sailed as the court has held that Article First, § 7 provides greater protection in search and seizure matters than the federal constitution under some circumstances. See, e.g., State v. Marsala, 216 Conn. 150 (1990) (rejecting federal good-faith excep-tion for an illegal search warrant).

Where the United States Supreme Court has issued controlling authority that provides the relief sought, it makes sense to dispose of the case on the basis of the federal constitution and decline to reach the state constitution. In all other cases, both the courts and litigants should turn first to the state constitution. The Connecticut Su-preme Court is the final authority on the Connecticut constitution and should not readily cede that authority. Moreover, Connecticut has for many years now been a leader in providing constitutional protections for its citizens. Having a robust state constitutional jurisprudence sustains and enhances that tradition and ensures that whatever may happen in Washington, the citizens of Connecticut can remain secure in their constitu-tional rights under our state constitution.