Handicapping The Outcome Of State v. Peeler (Part One)

Yesterday, the Connecticut Supreme Court heard oral argument in State v. Peeler, a case that presents the Supreme Court with the opportunity to reaffirm or overrule its decision last August in State v. Santiago (Santiago II), which abolished the death penalty. (I use the term Santiago II to distinguish it from an earlier decision in the same case, which the Court and parties refer to as Santiago I.)

I’ve written about the Santiago and Peeler cases at some length, and this post presumes the reader’s familiarity with my earlier posts. The purpose of Part One of this two-part post is to handicap the outcome of yesterday’s argument. In Part Two, coming soon, I will outline the various possible permutations of the Court’s eventual decision, which I do not expect for many months.

Let me first remind readers how the justices on yesterday’s panel voted last August in Santiago II. Justices Palmer, Eveleigh and McDonald voted to strike down the death penalty entirely, while Chief Justice Rogers and Justices Zarella and Espinosa dissented, voting to uphold the constitutionality of Public Act 12-5, which abolished the death penalty prospectively only. Let me also remind readers that the dissenting justices did not merely disagree with the majority decision. Rather, the dissenting justices considered it a blatant usurpation of legislative power and an flagrant abandonment of the majority justices’ role as judges, i.e., as impartial interpreters of the law.

The seventh justice on the panel, Richard Robinson, was not on the panel that decided Santiago II.  He succeeded retired Justice Flemming Norcott, Jr., who provided the fourth vote in Santiago II to strike down the death penalty entirely.  That is why I have previously described Justice Robinson as a swing vote.

Now, on to handicapping. Caveat: No one can predict with any certainty how appellate judges will ultimately rule in a case based on the questions they ask during oral argument.  But the questions do provide insight into the issues that are troubling them.

First.  Nothing Justices Palmer, Eveleigh or McDonald said yesterday causes me to believe that they are likely to change the views they expressed last August in Santiago II. So, I see three solid votes to reaffirm Santiago II. That means the state needs the votes of all four remaining justices on the panel to overturn Santiago II.

I have one thought about a question Justice McDonald asked. He noted that Connecticut’s landmark same-sex marriage decision, Kerrigan v. Comm’r of Public Health (2008), was decided by a 4-3 vote. He asked Senior Assistant State’s Attorney Harry Weller whether, if the composition of the Supreme Court had changed shortly after that decision, the Court could have overruled it. The tone of the question suggested that Justice McDonald believed overturning Kerrigan under those circumstances would have been improper and a clear violation of stare decisis. Weller answered that, yes, the Court could have overturned the decision, but whether it should have would depend on many other factors.

As a strong supporter of same-sex marriage, and as an advocate who filed an amicus brief in support of gay marriage in the Kerrigan case, I share Justice McDonald’s concern about the propriety of overruling Kerrigan simply because of a change in the composition of the Court. It is eminently reasonable to ask why the 4-3 decision in Santiago II could (or should) be overturned if the 4-3 decision in Kerrigan could (or should) not. However, what if Kerrigan had been decided 4-3 against same-sex marriage and, shortly thereafter, a new justice was appointed to the Supreme Court who was believed to support gay marriage and who replaced a justice who voted otherwise? As an advocate, I can say without equivocation that supporters of same-sex marriage would not have hesitated to find a new case that presented an opportunity to ask the Supreme Court to reconsider a “bad” Kerrigan decision. And I suspect that they would have had strong arguments why stare decisis was not an obstacle to overruling the bad decision. And I also suspect Justice McDonald would have considered those arguments weighty.

My point is not to suggest that there is anything hypocritical about Justice McDonald’s position concerning Kerrigan. The point he was making was valid. Instead, my point is simply to acknowledge the existence of opposing arguments.

Second.  Justices Zarella and Espinosa both asked questions about the doctrine of stare decisis that focused more on the exceptions to the doctrine and whether those exceptions were satisfied in this case. In a series of questions directed to Public Defender Mark Rademacher, Justice Zarella got Rademacher to concede that the doctrine is not absolute and that a prior decision  can, and perhaps should, be overruled if it is “clearly wrong.” Justice Zarella’s questions also suggested that he has serious questions whether there has been any “reliance” on the Santiago II decision, which is an important component of stare decisis. I think it is reasonably likely that Justices Zarella and Espinosa stand by their dissents last August and vote to overturn Santiago II.

Third.  Justice Robinson was relatively quiet, but he did ask questions of Rademacher concerning deference to the legislature and whether a public law that repealed the death penalty prospectively can reasonably be interpreted as an an indication that the citizens of Connecticut no longer view the death penalty as acceptable under any circumstances. I have no strong sense about how Justice Robinson will ultimately vote. If forced to take a position, I think it is slightly more likely than not that he votes with Justices Zarella and Espinosa. But, honestly, I’m just guessing.

Fourth.  Chief Justice Rogers expressed serious concern about the appearance of the Supreme Court overruling one of its own decisions so quickly simply because the composition of the Court had changed. That concern is legitimate. The Supreme Court draws its moral authority in part from the public perception that its decisions are the product of the impartial application of the rule of law, not the personal preferences of individual justices. A court that flip-flops on close cases whenever its composition changes risks losing its moral authority in the eyes of the public.

I have two thoughts about the Chief Justice’s concern. First, the flip-flopping problem has, in a way, been an issue throughout the Santiago and Peeler cases. I created a chronology that shows how the composition of the panels hearing those cases at various points in time has constantly changed and almost certainly affected the outcomes of those cases at different stages.

Second, the Chief Justice’s justifiable concern about the appearance of flip-flopping is, however, only one side of the equation. If a prior decision is “clearly wrong”–and Mark Rademacher conceded that the doctrine of stare decisis permits overruling clearly wrong decisions–then voting to reaffirm such a decision perpetuates bad law for the sake of maintaining appearances.

The Chief Justice is on record as stating in her dissent in Santiago II that “every step of [the majority’s] analysis is fundamentally flawed.” Not just one or two steps; every step.  And not just a little bit flawed; fundamentally flawed. She also wrote in her dissent that “the majority’s determination that the death penalty is unconstitutional under our state constitution is based on a house of cards, falling under the slightest breath of scrutiny.” And she accused the majority of significant procedural improprieties in its decision:

The majority has addressed issues that the defendant did not raise, has relied on extra-record materials that the parties have not had an opportunity to review or to rebut, has failed to provide the state with an opportunity to respond to its arguments and conclusions and, finally, in reaching the decision that it has today, has unconstitutionally usurped the role of the legislature.

Those are all mighty strong words (with which I have agreed in prior posts.)  And the Chief Justice meant them. If she decides to vote with Justices Palmer, Eveleigh and McDonald to reaffirm Santiago II, she will need to explain why that decision is not as wrong–both substantively and procedurally–as she said it was in August and why maintaining the public appearance that the Supreme Court is an impartial adjudicator of the law outweighs the importance of getting the law “right.”

So, how will the Chief Justice vote? I think there is a reasonable possibility she votes to reaffirm Santiago II. As the Chief Justice, I think her understandable and legitimate concern about how the public will perceive the Court if it reverses course so quickly may outweigh her concerns about the correctness of Santiago II.

In sum, I think there are three solid votes to reaffirm Santiago II (Js. Palmer, Eveleigh and McDonald); two solid votes to overrule the decision (Js. Zarella and Espinosa); one dissenter who may very well vote with the Santiago II majority (CJ Rogers); and one vote that I can’t predict (Robinson, J.). On balance, the scales tip slightly in favor of the Court reaffirming Santiago II. (For what it is worth, that’s about where I come out personally. See the penultimate paragraph of this post.)