Supreme Court Fireworks

Wesley W. Horton

Until the Lapointe decision was issued in April 2015, it had been nine years since lawyers and politicians were being heard to say, “What is going on at the Supreme Court?” In April 2006, the issue was how the other six justices should have responded to the revelation that Chief Justice William Sullivan had improperly held up the publication of a controversial 4-3 decision, Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission, 278 Conn. 28 (2006), in order to influence the legislature in considering the nomination of his successor. In April 2015, the issue was how the six sitting justices should have responded to one another’s opinions in the 4-2 decision in State v. Lapointe, 316 Conn. 225 (2015).

Before getting to the opinions, we note that the purpose of this blog is not to expound on whether Mr. Lapointe was or was not entitled to a new trial. The point of this blog is to emphasize the importance of civility in the legal system.

The majority opinion makes a vigorous presentation on why Mr. Lapointe is entitled to a new trial. Justice Zarella in dissent makes a vigorous response. There is nothing unusual here. That is what the Supreme Court justices are supposed to do when they disagree on an important issue. But Justice Zarella’s dissent was not sufficient for Justice Espinosa. While she joined his dissent, she added her own dissent accusing the majority of being Mr. Lapointe’s advocate and prejudging the case. This is a wholly inappropriate and uncivil accusation. Indeed, were there any merit to it, the remedy was to file a complaint with the Judicial Review Council, not to fulminate without evidence in a judicial opinion.

Not content to ignore her fulminations or simply to respond in some mild fashion, such as by saying that they were wholly inappropriate in a judicial opinion, the majority overreacted, stating in footnote 69 that she “dishonors this court.” It was unnecessary for the majority to respond so strongly. No reader was likely to take Justice Espinosa’s accusation literally, so by responding as they did the majority took the reader’s focus away from the incivility of Justice Espinosa’s tirade and put the focus onto their own footnote 69.

When a lawyer is unfairly accused of some impropriety in court by the opposing counsel, the best response is usually a small arm, not a nuclear bomb. A small arm here would have sufficed.