SC Year In Review: Two New Faces And One Dissenting Voice
The past year was one of transition for the Connecticut Supreme Court: Two new justices with atypical resumes and pioneering personal histories, Andrew McDonald and Carmen Espinosa, joined the Court in early 2013. Meanwhile, Justice Dennis Eveleigh emerged as a thoughtful, frequent dissenter whose judicial philosophy often diverged from the Court's mainstream.
Before I turn to those subjects, however, an update: Last year in this publication, I called for the appellate record "to go the way of the dodo," in hopes that the long-overdue extinction of that canary-colored anachronism would speed the time between briefing and oral argument. I was merely one of many voices clamoring for the elimination of the record, which had ceased to perform any useful function that the parties could not duplicate via appendices to their briefs.
I am happy to report that, as of July 1, 2013, ding-dong, the record is dead! Thanks to the combined efforts of the Connecticut Bar Association's Appellate Advocacy Section and the Judicial Branch's Advisory Committee on Appellate Rules (and with Justice Peter Zarella acting as a sometime court-bar liaison), Connecticut has adopted a modified version of the system that the federal appellate courts have used for many years. For all appeals filed after July 1, it is now the obligation of the appellant to include the key pleadings and decisions in the appendix to his brief; the appellee can, if he believes the appellant has omitted something, include the missing documents in his appendix.
While it will likely take practitioners some time to adapt to the new system, the change will remove a huge burden from the overworked Appellate Clerk's Office — and that should significantly reduce the delay between briefing and oral argument.
From procedure to personnel: In late January, Justice McDonald became only the fourth non-judge in the last hundred years to be appointed to the Court; he replaced Justice C. Ian McLachlan, who had retired the previous June. (The other three are Justice Richard Palmer, former Chief Justice Ellen Peters, and Justice John Beach, who sat on the Court from 1913-1925 and, like Chief Justice Peters, was a professor at Yale Law School at the time of his appointment.)
Although never a judge, Justice McDonald is, of course, anything but a judicial neophyte. He was co-chair of the Judiciary Committee for all eight of his years in the state Senate and was Governor Dannel Malloy's general counsel for the two years prior to his elevation to the bench – the most experience in the two other branches of government of any appointee in recent memory. Given how often the Court must navigate the perilous waters that separate our three sovereign branches from one another, it will be interesting to see what effect that experience has on Justice McDonald's judicial philosophy. How will he approach statutory construction, for example, having been an architect of them for nearly a decade? And what will he do if (or, more likely, when) the Court considers the constitutionality of Connecticut General Statutes § 1-2z (the "plain-meaning rule") given his prominent role in the inter-branch fracas that prompted its passage?
Justice Espinosa arrived at the Court in March, replacing Justice Lubbie Harper Jr., via a more traditional route than Justice McDonald; she served for 19 years as a trial judge and then had a short stint on the Appellate Court. However, Justice Espinosa, too, has an unusual entry on her C.V.: five years as a special agent for the FBI. Combined with her 11 years as a federal prosecutor, Justice Espinosa has a wealth of hard-won knowledge about the practical side of criminal law and one would expect her to be a leading voice on the Court in criminal cases.
Both Justice McDonald and Justice Espinosa are significant "firsts" for the Court: he the Court's first openly-gay justice, she its first Hispanic justice (as she was the first Hispanic Superior Court and Appellate Court judge). Each would have been an excellent pick no matter their sexual orientation or race, but public perception of the Court — in this age of increased public scrutiny and identity politics — matters more than ever. Lacking the inherent powers of either the executive or the legislature, the Court must command respect to do its job effectively and it helps to foster such respect if the Court's demographics reflect Connecticut's as a whole.
It is too soon to gauge the impact Justice McDonald and Justice Espinosa will have on the Court's jurisprudence, although the early returns suggest that Justice McDonald may follow in the independent-minded footsteps of the last McDonald to sit on the Court. See Equity One Inc. v. Shivers, 310 Conn. 119 (2013) (McDonald, J., dissenting) (taking the majority to task for relying on "on inferences from evidence in the record that is legally and factually insufficient"). Justice Espinosa has authored three opinions (and no dissents) as of the date of this article, all in fairly routine appeals: Incardona v. Roer, 309 Conn. 754 (2013), State v. Milner, 309 Conn. 744 (2013), and State v. Brown, 309 Conn. 469 (2013).)