Five Worst Decisions, Part I

At the monthly meeting for the Middlesex Bar Association on February 15, 2017, Justice Richard Palmer was the main speaker. He spoke about State v. Peeler and State v. Kono, the two most important state constitutional decisions of 2016. I was the warm-up speaker. I was asked to address five things in five minutes, so I decided to discuss briefly the five worst decisions of the Connecticut Supreme Court. Now that I have a bit more time, I will discuss these decisions in a little more detail, in serial format.

Today I will discuss the fifth worst decision, State v. Clemente, 166 Conn. 501 (1974).

After the State presented the testimony of two witnesses in a criminal case, the defendant demanded a copy of the statements they made to the police. The defendant’s demand was proper under a statute, C.G.S. § 54-86b, which overruled the previous common law rule that gave the trial court discretion on whether to order the State to turn over the statements. The defendant refused to say “pretty please” to the trial judge. The judge then refused to be bound by the statute and denied the defendant’s demand.

On appeal, the 3-2 majority declared the statute unconstitutional and affirmed the conviction. The purple prose about how the statute invaded the separation of powers concerning the judiciary’s controlling of discovery has to be quoted to be believed:

[A]cquiescence to a gradual invasion of the judiciary by the legislature would eventually render the former little more than a judicial staff of the legislature. All pretense of independence would disappear and the judicial power would come to rest again in the hands of the General Assembly as it did prior to the year 1818.

Id. at 515.

I am as big a supporter of separation of powers arguments as anyone, but there is just this tiny bit of a problem with the majority’s reasoning: as Judge Cotter pointed out in his dissent, there was a long line of cases in which the legislature enacted statutes concerning discovery with not a peep of an objection coming from the Supreme Court.

To strike down a sensible statute on such a weak separation of powers ground was an unwise exercise of its constitution powers, especially when the Court would easily have avoided the constitutional issue by simply acquiescing in the statute. By employing such an important constitutional principle for such a trivial result, the Court also weakened its hand for the time when it may urgently need this important principle in a real constitutional crisis.

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