by Wesley W. Horton
October 28, 2015
As all the partisans about the death penalty decision raise their shrill voices, those of us who don’t have a stake in the result, as far as any existing clients are concerned, struggle to make sense of what is happening on and off the Supreme Court.
I for one have been reluctant to speak out on the decision in my usual speedy fashion as I struggle with what to say. While I will have more to say as time goes by, I will start today with one point no one can dispute: Justice Norcott, who turned 70 in late 2013, and was the fourth vote in the majority, would not have been able to vote in 2015 but for a statute passed in 2000 because of chaos caused by Justice Robert Berdon in late 1999.
Article Fifth, § 6 states: “No judge shall be eligible to hold his office after he shall arrive at the age of seventy years, [with exceptions not relevant here].” Other than a short period concerning one justice in 1894, throughout the nineteenth and twentieth centuries justices approaching age 70 stopped sitting in time to vote on all decisions before they turned 70. In the late twentieth century, that meant no sitting the last three or four months before turning age 70. But Justice Berdon, who turned 70 on December 23, 1999, refused to follow that custom and sat on appeals as late as September 29, 1999. That, plus his high dissent rate, caused chaos in December as the justices struggled to get out their opinions before he had to retire.
So in early 2000, the legislature passed what is now C.G.S. § 51-198(c), which allows any justice who heard oral argument before turning 70 not only to vote on the decision whenever issued but also to vote on a timely motion for reargument. Although the statute does not expressly say so, presumably the intention is that, if the motion is granted, the justice is permitted to vote on the merits of the reargued case. That of course is exactly what happened here. The statute was held constitutional in a 5-2 vote in Honulik v. Greenwich, 293 Conn. 641 (2009).
So Mr. Santiago’s appeal was argued to the Supreme Court before April 2012, when the death penalty was abolished prospectively. In June 2012, Santiago was decided, whereupon a motion for reargument was filed and granted, and supplemental briefs were filed and supplemental argument was held in early 2013. The reargument obviously raised a new issue that normally would be inappropriate for reargument but highly appropriate for a new proceeding in the Superior Court. But that would have meant no Justice Norcott, a vocal opponent of the death penalty.
Even so, Justice Norcott could have voted without invoking the statute, had the decision come down before he turned 70. But the decision took over 2 years, so he had to invoke the statute.
My own view is that it looks bad for a court when, notwithstanding a constitutional provision that a justice must stop holding office at age 70, a newly appointed justice has to sit on the sidelines for months, and in this one case years, while a justice over age 70 decides very important cases with which the new justice may disagree.
I have a suggestion for the legislature: amend §51-198(c) to require any justice planning to take advantage of the statute to stop hearing appeals four months before turning age 70, and to prohibit that justice from voting if the opinion is released more than four months after turning 70.