Crisis at the High Court
In an article titled "High Court Nomination Troubled," the Hartford Courant reveals a truly sad episode in the history of our High Court. The article begins:
"Former Chief Justice William J. Sullivan secretly postponed release of a controversial ruling on access to court documents to enhance Justice Peter Zarella's prospects of being confirmed as chief justice, precipitating an unprecedented crisis of confidence in the state's highest court.
The 'bombshell' revelation was made to the governor and legislative leaders Monday morning in a three-page letter written by Senior Associate Justice David M. Borden, who is acting chief justice.
"The intent and effect of Chief Justice Sullivan's conduct was to deprive the legislature of the timely knowledge of Justice Zarella's vote in that case," Borden wrote of the court's sharply divided ruling last week foreclosing access to court documents under the Freedom of Information Act."
The Courant and other publications have thus far concentrated on the disturbing and improper decision of former Chief Justice Sullivan to withhold a judicial opinion with the hopes of positively affecting Justice Zarella's nomination. Criticism of the former Chief Justice of the state is appropriate and fair and his actions have the possibility of sacking Justice Zarella's nomination. Because I have no doubt that this aspect of the story will be sufficiently combed over by the media I wish to concentrate on an equally disturbing aspect of the story.
Equally disturbing is Justice David Borden's decision to inform the senate judiciary committee of the inner workings of the court, no matter how offensive, via his letter. The Courant has posted Justice Borden's letter and a thorough reading of it yields absolutely no reason -- other than political -- for the acting chief justice to advise the senate judiciary committee of the events that transpired. Justice Borden explains in his letter his authority to contact the judiciary committee as follows: "I believe it is my duty, acting as the head of the Judicial Branch pursuant to Connecticut General Statutes ยง 51-3, to bring these facts to your attention." However, nothing in Section 51-3 (which merely indicates that Borden is properly the acting chief justice) outlines such a "duty" to become involved in a political process. Short of any legislative empowerment, Borden's view, taken to its logical conclusion, would mean that his powers as chief justice are plenary. Given the history of the separation of powers, this simply cannot be. (A few examples demonstrate the ridiculousness of Justice Borden's argument. For example, since this "power" is not identified in the General Statutes, why would only the chief justice have it? Why not junior justices, too? If the sitting chief justice were the violator would the next justice in line have the power?) Moreover, to the extent that Justice Borden believed Chief Justice Sullivan's actions were improper because they affected a political process, his actions had the same affect and were therefore equally improper. After all, what would happen if Justice Zarella, during his confirmation were to misstate his position on a prior case? Would Justice Borden (or any other justice) be under a "duty" to report this misstatement? After all, such a misstatement would be just as likely as this incident to affect the senate judiciary committee. Such a duty simply does not exist especially when it would threaten to undermine the whole integrity of the court.
It's also relevant to note that Justice Borden -- who many regard as the intellectual leader of the court -- was not powerless to act in response to Chief Justice Sullivan's actions. He could have brought the matter to the attention of the Judicial Review Council. Justice Borden has been on the court since 1990 and he was therefore quite familiar with the disciplinary punishment handed out by that body to fellow Justice Fleming Norcott in 1994 for serious although dissimilar indiscretions. That would have been the proper forum to air his concerns.
The issue is also compounded somewhat by the fact that Justice Borden was known to have been desirous of the chief justice seat prior to the nomination of Judge Sullivan. This history between the justices will no doubt be brought to light and will also make this rift even uglier.
One final observation, albeit one akin to a possible conspiracy theory. On March 15 the senate reappointed Justice Borden to another eight year term. (Because he will be forced under state law to retire from the Supreme Court at age seventy he will not serve out his full term.) Chief Justice Sullivan announced his retirement two days later. Could it be that CJ Sullivan postponed his announcement until after Justice Borden's reappointment in the hopes that this would diminish the chance that Justice Borden would be the nominee? Perhaps that is a stretch, but one thing is certain: it would not be the first time that a judge (state or federal) delayed his retirement for succession reasons.
I'll blog more on this later as the story develops, especially since I believe the entire judicial selection process in Connecticut is deeply flawed. For now this much is clear: while there are no winners in all of this, the loss is clear: the integrity and reputation of our high court.
"Former Chief Justice William J. Sullivan secretly postponed release of a controversial ruling on access to court documents to enhance Justice Peter Zarella's prospects of being confirmed as chief justice, precipitating an unprecedented crisis of confidence in the state's highest court.
The 'bombshell' revelation was made to the governor and legislative leaders Monday morning in a three-page letter written by Senior Associate Justice David M. Borden, who is acting chief justice.
"The intent and effect of Chief Justice Sullivan's conduct was to deprive the legislature of the timely knowledge of Justice Zarella's vote in that case," Borden wrote of the court's sharply divided ruling last week foreclosing access to court documents under the Freedom of Information Act."
The Courant and other publications have thus far concentrated on the disturbing and improper decision of former Chief Justice Sullivan to withhold a judicial opinion with the hopes of positively affecting Justice Zarella's nomination. Criticism of the former Chief Justice of the state is appropriate and fair and his actions have the possibility of sacking Justice Zarella's nomination. Because I have no doubt that this aspect of the story will be sufficiently combed over by the media I wish to concentrate on an equally disturbing aspect of the story.
Equally disturbing is Justice David Borden's decision to inform the senate judiciary committee of the inner workings of the court, no matter how offensive, via his letter. The Courant has posted Justice Borden's letter and a thorough reading of it yields absolutely no reason -- other than political -- for the acting chief justice to advise the senate judiciary committee of the events that transpired. Justice Borden explains in his letter his authority to contact the judiciary committee as follows: "I believe it is my duty, acting as the head of the Judicial Branch pursuant to Connecticut General Statutes ยง 51-3, to bring these facts to your attention." However, nothing in Section 51-3 (which merely indicates that Borden is properly the acting chief justice) outlines such a "duty" to become involved in a political process. Short of any legislative empowerment, Borden's view, taken to its logical conclusion, would mean that his powers as chief justice are plenary. Given the history of the separation of powers, this simply cannot be. (A few examples demonstrate the ridiculousness of Justice Borden's argument. For example, since this "power" is not identified in the General Statutes, why would only the chief justice have it? Why not junior justices, too? If the sitting chief justice were the violator would the next justice in line have the power?) Moreover, to the extent that Justice Borden believed Chief Justice Sullivan's actions were improper because they affected a political process, his actions had the same affect and were therefore equally improper. After all, what would happen if Justice Zarella, during his confirmation were to misstate his position on a prior case? Would Justice Borden (or any other justice) be under a "duty" to report this misstatement? After all, such a misstatement would be just as likely as this incident to affect the senate judiciary committee. Such a duty simply does not exist especially when it would threaten to undermine the whole integrity of the court.
It's also relevant to note that Justice Borden -- who many regard as the intellectual leader of the court -- was not powerless to act in response to Chief Justice Sullivan's actions. He could have brought the matter to the attention of the Judicial Review Council. Justice Borden has been on the court since 1990 and he was therefore quite familiar with the disciplinary punishment handed out by that body to fellow Justice Fleming Norcott in 1994 for serious although dissimilar indiscretions. That would have been the proper forum to air his concerns.
The issue is also compounded somewhat by the fact that Justice Borden was known to have been desirous of the chief justice seat prior to the nomination of Judge Sullivan. This history between the justices will no doubt be brought to light and will also make this rift even uglier.
One final observation, albeit one akin to a possible conspiracy theory. On March 15 the senate reappointed Justice Borden to another eight year term. (Because he will be forced under state law to retire from the Supreme Court at age seventy he will not serve out his full term.) Chief Justice Sullivan announced his retirement two days later. Could it be that CJ Sullivan postponed his announcement until after Justice Borden's reappointment in the hopes that this would diminish the chance that Justice Borden would be the nominee? Perhaps that is a stretch, but one thing is certain: it would not be the first time that a judge (state or federal) delayed his retirement for succession reasons.
I'll blog more on this later as the story develops, especially since I believe the entire judicial selection process in Connecticut is deeply flawed. For now this much is clear: while there are no winners in all of this, the loss is clear: the integrity and reputation of our high court.
posted by CC | 11:11 PM
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