Anticipating The AG’s Opinion Concerning Watchdog Cuts

Much ink has been spilled over the past several weeks about OPM Secretary Ben Barnes’s stated intention to impose further cuts on the state watchdog agencies’ budgets beyond what the General Assembly imposed last spring. State legislators, good government advocates (including me) and newspaper editorial pages have all criticized the proposed cuts. Governor Malloy recently stated that this is not an issue on which he intends to dig in his heels, a welcome indication of the administration’s willingness to work the issue out amicably.

But just in case that friendly effort to resolve the dispute is not successful, the agencies have stated that they may ask the Attorney General to opine on the legal issues in the case. This post is my take on the law. As I explain, while the watchdog agencies remain subject to the legislative budget ax, they are legally immune from gubernatorial budget cuts.

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Why Empathy Matters In The Judicial Process

When President Obama nominated Sonia Sotomayor to become an Associate Justice of the United States Supreme Court, he listed empathy among the criteria he wanted in a Supreme Court justice. That statement ignited a heated debate about the role of empathy in the judicial process. No doubt it also caused Sotomayor significant heartburn during her confirmation hearings, as she sought to persuade the Senate that she believed judges should decide cases based on the law and the facts, not on their “feelings” for a particular party to a lawsuit.

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Rethinking The Plain Meaning Rule

It has been more than twelve years since the General Assembly overruled State v. Courchesne and codified the “plain meaning rule” in General Statutes § 1-2z. The plain meaning rule says that a court shall not consult extra-textual evidence of the meaning of the statute unless the statutory text, read in context, is ambiguous.

Implicit in the rule, then, is the proposition that legislative history is useful information. It can be helpful to ascertaining the meaning of a statute. But the plain meaning rule says it is only helpful if the text is ambiguous.

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Posner v. Amar On The Constitution

For many years, Slate magazine has hosted an online “Breakfast Table” discussion at the end of each Supreme Court term.  The discussions are always very interesting.

This year’s discussion features a terrific (and snarky) exchange between a great jurist, Seventh Circuit judge Richard Posner, and a great scholar, Yale Law School Professor Akhil Reed Amar.  Here’s an excerpt of Posner’s view of the value of judges studying constitutional text and history:

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Understanding The Supreme Court’s McDonnell Decision

A unanimous Supreme Court yesterday overturned the federal bribery conviction of former Virginia Governor Bob McDonnell.  The decision set off a firestorm of a debate about whether the Court had effectively gutted the federal government’s ability to prosecute elected officials for excepting gifts in exchange for doing favors.  For interested readers, SCOTUSblog has an online symposium featuring thoughtful commentary, pro and con, on the decision.



Fourth Amendment Exclusionary Rule Takes A Hit

Yesterday the U.S. Supreme Court decided, 5-3, that except in cases of “flagrant misconduct,” evidence seized following an illegal stop need not be suppressed if it turns out that the person stopped happened to have an outstanding warrant. Tejas Bhatt provides an excellent analysis of the decision in Utah v. Strieff on his blog, CT Criminal Law. And Orin Kerr explains the decision over at SCOTUSblog.

The Death Penalty Is Really Dead

Over the strongly worded dissents of  Justices Zarella and Espinosa, the Supreme Court today stood by its decision last August in State v. Santiago, which abolished the death penalty.  Today’s decision (actually six opinions) in State v. Peeler had the potential to reverse Santiago due to a change in the composition of the court.  But Chief Justice Chase Rogers, who had dissented from Santiago, switched sides and voted to reaffirm Santiago based on stare decisis.  Justice Richard Robinson also voted with the majority to reaffirm Santiago on that same ground.

It will take me some time to digest all of the opinions.  What is notable, however, is that the Court issued a per curiam opinion, rather than the customary majority opinion penned by particular judge.  The Chief Justice, Justice Palmer and Justice Robinson each wrote concurring opinions.  As noted, Justices Zarella and Espinosa dissented.  Justice Zarella did not hold back:

I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error. Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so. As I shall explain subsequently in this opinion, this approach prevents Justice Robinson from conducting—or at the very least from demonstrating to the public and to this court that he has undertaken a full, fair, and objective analysis of the benefit and costs of applying stare decisis to Santiago.

Supreme Court (Likely) Reaffirms Death Penalty Unconstitutional

According to the Judicial Branch website, the Connecticut Supreme Court will release its decision in State v. Peeler today (at 11:30 am) concerning the status of the death penalty in Connecticut. Last August, in State v. Santiago, the court held that the death penalty violated the state constitution’s prohibition against cruel and unusual punishments. But, as I’ve explained on this blog, today’s much-anticipated decision in State v. Peeler had the potential to overrule Santiago due to a change in the composition of the court (the retirement of Justice Flemming Norcott, Jr. and the addition of Justice Richard Robinson.

However, based on the number of concurring and dissenting opinions listed on the branch’s website, I think it is safe to say that the court will reaffirm Santiago.  The website lists a majority opinion, three concurring opinions and two dissents.  The dissents were almost certainly written by Justices Peter Zarella and Carmen Espinosa, who also dissented in Santiago.  That there are only two dissents likely means two things: First, Chief Justice Chase Rogers, who dissented in Santiago–describing “every step of [the majority’s] analysis [as] fundamentally flawed”–has switched sides, so to speak, and is now voting to reaffirm Santiago based on the doctrine of  stare decisis–Latin for “stand by things decided.” Second, Justice Richard Robinson, who was not on the panel that decided Santiago, has also voted to reaffirm that decision, likely for the same reasons as the Chief Justice.

We’ll learn at 11:30 if my prediction is correct.  Stay tuned.

Marion Cotillard, Labor Unions And Conflicts Of Interest

Check out this post at CT Good Governance.

Discussing Politics And The Budget On “The Wheelhouse”

I had the pleasure of joining WNPR’s John Dankosky and Colin McEnroe this morning on The Wheelhouse, the station’s weekly news roundtable.  Along with Christine Stuart of CT News Junkie, we discussed politics and the state budget.  Check out this post at CT Good Governance for more about our lively discussion.


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