By Wesley W. Horton
I argued (and lost) the state constitutional argument concerning the sex abuse statute of limitations in the Doe case decided on July 7. Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357 (2015). While there are lots of things to discuss about the decision, I want to focus on Justice Zarella’s concurrence.
The majority went down the familiar 6-prong Geisler test, State v. Geisler, 222 Conn. 672 (1992), for state constitutional questions – prong by prong – and found that four supported the plaintiff, one clearly supported the plaintiff, and one was neutral. Justice Zarella said, and I agree, that we should rethink the prongs, although my rethinking is quite different from his. To him only three – the constitutional text, the constitutional history and decisions of the Connecticut Supreme Court and Appellate Court – should matter. Two of the three – federal decisions and out-of-state decisions – should rarely matter, and the third – social and economic considerations – never.
I am somewhere in the middle. I would have a somewhat flexible hierarchy. At the top is text. If the text is clear the other prongs do not matter except in the rare situation where one of them concerns a latent ambiguity in the text. If the text is not clear, I agree with Justice Zarella that the history of the constitutional text and prior judicial construction of the text or related provisions, if clear, usually will trump anything in the other three prongs. But “if clear” is a big caveat, and “usually” leaves room for flexibility. Certainly Doe is an excellent example of the major prongs not being clear.
I do not understand why Justice Zarella would look to other jurisdictions only in rare events, such as if the Connecticut founders mentioned another specific jurisdiction. Equal protection and due process, for example, are broad terms meant to set out a philosophy of government rather than a cookbook with specific instructions. What other appellate courts around the country think today and have thought in the past about such terms and how they apply to individual cases strikes me as highly relevant if Connecticut precedents are inconclusive or questionable. On the other hand, just because the Connecticut founders in 1818 took a shortcut and essentially plagiarized the Mississippi Bill of Rights of 1817 strikes me as no reason for justices in Connecticut today to pay any special attention to what the Mississippi founders thought about equal protection.
I do agree with Justice Zarella that federal authority is not a very relevant prong. Federal authority is either binding on states, making a state constitutional analysis of no significance, or it is not binding on states, in which case it is not necessarily more persuasive than the authority of other states.
The last prong, social and economic considerations, is just another way of saying that constitutions are a philosophy, not a cookbook. For example, Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008) (holding that exclusion of same-sex couples from marriage), could not have been decided as it was in 1818 or even 1998, but it could have been and was in 2008. That decision is an example of why I would have flexibility in handling the six prongs: in Kerrigan, though the Court did not say so, it was really the sixth prong that came out trumps.