I am deeply honored to share this prestigious open government award with four fantastic journalists, editors and publishers at the Connecticut Law Tribune: Tom Scheffey, Paul Sussman, Jeff Forte and Isaac Avilucea. One could not ask for better clients or a better cause worth fighting for.
UPDATE: A friend suggested I link to a song I wrote a few years back about freedom of information. It’s worth a chuckle or two, especially late at night, after a few drinks. . . .
As the State of Connecticut considers whether to retry Richard Lapointe, and as many of his supporters try to persuade the state not to do so, I offer readers this short, yet significant, excerpt from the Connecticut Supreme Court’s 1996 decision rejecting his direct appeal from his conviction for murdering Bernice Martin, his wife’s eighty-eight year old grandmother:
In a previous post I discussed the State of Connecticut’s motion asking the Connecticut Supreme Court to reconsider its controversial decision in Lapointe v. Comm’r of Correction. I have just learned that, by order dated May 5, 2015, the Supreme Court denied that motion. The two justices who dissented from the original decision–Zarella and Espinosa–would have granted the motion for reconsideration. In short, the votes on the motion tracked the votes on the original decision.
Ruthann Robson has this excellent post on the Constitutional Law Prof Blog on yesterday’s very important decision by the Second Circuit, which held that the NSA lacks the statutory authority under section 215 of the PATRIOT Act to collect millions and millions of call records from commercial providers, like Verizon. Edward Snowden revealed the existence of this program.
“There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice, that does not live by secrecy.”
The Yankee Institute for Public Policy, a Connecticut-based conservative think tank, recently released a policy brief concerning Connecticut’s spending cap. The brief is referenced in an Op-Ed on CT News Junkie authored by Peter Bowman, President of the Connecticut Lawyer’s Chapter of the Federalist Society.
Contrary to my earlier post, which explains why the spending cap is judicial unenforceable, the Executive Summary of the policy brief states that “if lawmakers raise taxes while also exceeding the spending cap without an emergency declaration, taxpayers may have cause to challenge their tax bills in court.” The key word in this sentence is “may,” and it is a word with which I respectfully disagree, unless it is construed to mean “infinitesimally small possibility.”
Amy Howe, writing for SCOTUSblog, has this helpful “plain english” post on today’s arguments in the United States Supreme Court concerning same-sex marriage. Bottom line: The justices are divided on this hot button issue. We’ll have to wait until the end of June for what could be a socially transformative decision.
Short answer: No. Long answer: No. Short explanation: The “political question” doctrine. Longer explanation: See below.
The House and Senate Republicans released their own budget proposal today, called the “Blueprint for Prosperity.” As a lawyer with a strong interest in open government, page 21 of the report caught my eye. It contains a section entitled “Safeguarding Connecticut’s Watchdog Agencies.” The section states:
While doing some research this morning, I happened upon a wonderful quote by the great Second Circuit judge Learned Hand on the issue of statutory interpretation. The quote seemed particularly apt with King v. Burwell still very much on my mind. Here’s the quote (from Cabell v. Markham, 148 F.2d 737 (2d Cir. 1945)):
The decisions are legion in which [courts] have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute. . . . As Holmes, J., said in a much-quoted passage from Johnson v. United States, 163 F. 30, 32, 18 L.R.A., N.S., 1194: “it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.” . . . Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. (Emphasis supplied.)
[UPDATE: 4/28/15] A learned member of the bar points out, quite accurately, that the approach to statutory interpretation described above is difficult to reconcile with General Statutes section 1-2z, about which I’ve blogged at length in the past.