It is still early in Justice Andrew McDonald’s judicial career, but does anyone else see the makings of a justice who is not afraid to say “no” to the state in Fourth Amendment cases?
A colleague recently lent me his copy of the new biography of Justice Scalia, “A Court of One.” It’s an enjoyable read. Last night I was reading a chapter that discussed how opinions are assigned to particular justices for drafting after oral argument. The power to assign an opinion to a particular justice is quite significant. Even when the opinion of the court is unanimous, the assignment of drafting responsibility to a particular justice can have a great impact on the scope of the ultimate decision. Some justices are known for narrow decisions, others write much more broadly. Each justice speaks with a unique “voice.” Moreover, the non-writing justices tend to be fairly deferential to the authoring justice in any given case because the non-writing justices want similar deference when they are drafting opinions for the court.
On consideration of the petition by the defendant for certification to appeal from the Appellate Court . . . it is hereby ordered that said petition be, and the same is hereby granted, limited to the following issue: “Should this court overrule State v. Kitchens, thereby permitting review of the defendant’s unpreserved claim of instructional impropriety? If so, is the defendant entitled to prevail on that claim under Golding?
Today the United States Supreme Court surprised just about everyone by declining to hear appeals in any of seven cases in which lower courts had struck down as unconstitutional state laws banning same-sex marriage. Legal bloggers are having a field day as they try to understand why the four solidly conservative justices on the court (Roberts, Scalia, Alito and Thomas) did not vote in favor of granting at least one of the petitions for a writ of certiorari. (Only four votes are required to grant a cert petition.)
I am ill-equipped to weigh in on this issue. But here are three links (click here, here and here) to a few different perspectives on the issue. A more extensive discussion of the Court’s surprising decision appears on SCOTUSblog.
Earlier this week Superior Court Judge Julia Dewey found Douglas Wirth not guilty of sexually abusing a son that he and his former husband had adopted through the Department of Children and Families (“DCF”). As the Hartford Courant reported, Judge Dewey did not limit her opinion to explaining why she found that the state had failed to meet its burden of proof; she also had some fairly harsh things to say about DCF for allegedly failing to turn over all relevant documents until the eve of trial. She was particularly concerned about DCF’s apparent failure to disclose pre-adoption records of the complainant.
In a letter filed with the Superior Court today (a copy of which I obtained through a request to DCF), DCF Commissioner Joette Katz responds to Judge Dewey’s criticisms. Here is an excerpt from the letter:
As I noted in my immediately preceding post, several justices on the Connecticut Supreme Court are concerned that the court has been invoking its “inherent supervisory authority over the administration of justice” too frequently and, in so doing, may be undermining the integrity of the judicial system. Justice Zarella expressed the need for the court to adopt a single, consistent standard governing the court’s use of that authority in order to avoid “the appearance of arbitrary decisionmaking.”
I share Justice Zarella’s concerns and offer the following comparison of two cases to illustrate why they are justified.
In the wake of our state Supreme Court’s decisions in Blumberg Associates Worldwide, Inc. v. Brown & Brown and State v. Elson, I expressed a fairly strong opinion on this blog that those decisions reflected a growing–and troubling–trend in which the Court was increasingly invoking its “inherent supervisory powers over the administration of justice” to justify its decisions.
When I posted my opinions on this blog, I knew a number of members of the bar shared my concerns. I also suspected some members of the bench did so as well. As of last week, those suspicions are, well, no longer suspicions. It appears that at least three members of the Supreme Court–Justices Zarella and Espinosa, and Senior Justice Vertefuille–are thinking harder about just when and how the Court should invoke its inherent supervisory powers.
I argued a very interesting case this morning in the Supreme Court concerning how municipal charters should be interpreted when the text of the charter and the actual, longstanding practice (two decades, to be precise) of the local government allegedly conflict.
The Supreme Court expedited briefing of the case, DeMayo v. Quinn, this summer so that it would be ready for argument in September. Now we await a decision. . . .
New York criminal defense lawyer Scott Greenfield, who blogs at Simple Justice, has a terrific follow-up on his blog to my immediately preceding post. His post is well worth reading. (He also has some very kind words to say about my post, for which I thank him.)
Connecticut public defender and blogger Gideon and I had a spirited exchange the other week about the Connecticut Supreme Court’s recent decision in State v. Kelly, which concerned the legality of a warrantless Terry stop (and resultant arrest) of a person whom the police had no reason to suspect of having done anything wrong, must less anything criminal. So why did the Court hold that the detention and subsequent arrest of this person was constitutional? Because he happened to be walking down the street with someone the police reasonably suspected of a crime. A clearer case of “guilt by association” would be hard to find.