State v. Peeler ( 2016 )

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STATE v. PEELER—SECOND DISSENT
ESPINOSA, J., dissenting. ‘‘ ‘Twill be recorded for a
precedent, And many an error by the same example
Will rush into the state.’’ W. Shakespeare, The Merchant
of Venice, act IV, sc. i.
I write this dissenting opinion not to address the
concurring opinion of Justice Palmer, who continues
to believe that State v. Santiago, 318 Conn. 1, 122 A.3d
1 (2015), was rightly decided.1 I have already addressed
the merits of Santiago, or rather, the lack thereof, in
my dissenting opinion in that case. Id., 388. Of course,
my dissenting opinion in Santiago pales in comparison
to the dissent issued by Chief Justice Rogers, who wrote
that ‘‘[e]very step’’ of the majority’s analysis in that
decision was ‘‘fundamentally flawed’’; id., 231; and then,
over the course of 110 blistering pages, painstakingly
and methodically exposed those flaws one by one, rip-
ping the majority’s all too vulnerable analysis to shreds,
revealing it to be both a violation of the principle of
stare decisis; id., 238; and so lacking in foundation that
it was built upon ‘‘a house of cards, falling under the
slightest breath of scrutiny.’’ Id., 233. Accordingly, I
refer any readers who retain doubts as to whether San-
tiago was clearly wrong to the dissenting opinion of
the Chief Justice. Id., 231–341.
I also need not address the barely two paragraph
disdainful majority opinion in the present case. I do
note, however, that it is hardly surprising that the major-
ity has decided to issue its opinion as a terse and dis-
missive per curiam, suggesting that the state’s
arguments in favor of overruling Santiago do not merit
serious consideration. This is particularly troubling con-
sidering the importance of the issue presented in this
appeal. It is this court’s duty to give full consideration
to the claims of the parties who come before it. In many
cases less significant than the present one, the court
as a matter of courtesy and respect answers all the
claims raised by the parties, even when the court may
believe that such claims lack merit. Dismissing the
state’s arguments in the present case in a per curiam
opinion creates the appearance that the outcome was
predisposed, and that oral argument was allowed
merely to avoid the perception that the state was being
treated unfairly. Indeed, Mark Rademacher, the assis-
tant public defender who argued this appeal, stated
that the purpose of granting the state’s motion for oral
argument was ‘‘ ‘[to make] the state feel good about
losing.’ ’’ J. Charlton, ‘‘Connecticut High Court Revisits
Death Penalty,’’ Fox 61, January 7, 2016, available at
http://fox61.com/2016/01/07/Connecticut-high-court-to-
revisit-death-penalty/ (last visited May 16, 2016).
I write to address the concurring opinion of the Chief
Justice who frames the issue presented in this appeal
in this manner: May the court overrule a recently estab-
lished precedent solely because there has been a panel
change since the now challenged decision? Taking that
as her starting point, the Chief Justice voices the con-
cern that overruling Santiago would call into question
the integrity of this court because doing so: (1) would
create the appearance that the court is governed by the
whims of individual justices rather than the rule of law;
(2) would create the public perception that the result
of a case depends on the composition of the panel; and
(3) would undermine the stability and predictability of
the law, on which litigants rely. The short answer to
those concerns is that they are unjustified and irrelevant
when the prior precedent at issue is clearly wrong. As
I explain in this dissenting opinion, this is particularly
true when the clearly wrong, recently decided case has
violated the doctrine of stare decisis—under those cir-
cumstances, that doctrine requires that the prior prece-
dent be overruled. Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 233–34, 115 S. Ct. 2097, 132 L. Ed. 2d 158(1995). The position of the Chief Justice in the present
case, therefore, is irreconcilable with her position in
her dissenting opinion in Santiago, that the decision
was clearly wrong. See State v. Santiago, supra, 318
Conn. 231. A panel change cannot insulate a clearly
wrong decision from being overruled.2
Because of the importance of the issue presented in
this appeal, a longer response is necessary. This court’s
appearance as an impartial decision-making body, gov-
erned by the rule of law rather than the proclivities of
individual panel members, is vital. No one disputes that,
nor does anyone question the integral role that stability
and predictability play in our legal system. But the pro-
testations of the Chief Justice are predicated on a straw
man that employs post hoc reasoning and finds no sup-
port in our stare decisis jurisprudence. In this dissent,
I consider these two flaws in the analysis of the Chief
Justice, and thereby illustrate the central flaw in her
opinion—it overlooks the overarching stare decisis
principle of which even playwrights are aware—a
clearly wrong decision is dangerous, because it will be
relied on as precedent. As this court frequently has
noted, ‘‘[i]t is more important that the court should be
right upon later and more elaborate consideration of
the cases than consistent with previous declarations.’’
(Internal quotation marks omitted.) Conway v. Wilton,
238 Conn. 653, 660, 680 A.2d 242 (1996). And when a
decision is so clearly wrong that the Chief Justice felt
compelled to write in her dissent that the ‘‘fundamen-
tally flawed’’ analysis suffers from a ‘‘complete absence
of any historical support,’’ relies on ‘‘irrelevant’’ factors;
State v. Santiago, supra, 318 Conn. 231; is so ‘‘riddled
with non sequiturs . . . [that] to enumerate all of them
would greatly and unnecessarily increase the length of
this [110 page] dissenting opinion,’’ engages in ‘‘specula-
tion’’ and relies on propositions that are ‘‘devoid of any
substantive content’’; id., 242–43; ‘‘misstates both the
eighth amendment jurisprudence of the United States
Supreme Court and the state constitutional jurispru-
dence of this court’’; id., 249; is ‘‘untenable’’; id., 254;
‘‘illogical’’; id., 256; ‘‘troubling’’; id., 257; and ‘‘deliber-
ately vague’’; id., 261; is predicated on a legislative his-
tory that was created by ‘‘cherry pick[ing] extra-record
sources that provide slanted and untested explanations
for the history of the death penalty in this state’’; id., 264
n.30; and constitutes a ‘‘judicial invalidation, without
constitutional basis, of the political will of the people’’;
id., 278; that decision, which itself violated the doctrine
of stare decisis, does not merit the application of
that doctrine.
I
POST HOC STRAW MEN ARE UNPERSUASIVE
The Chief Justice misstates the issue presented in
this appeal, framing it as whether this court should
overrule a recently decided case because the panel has
subsequently changed. By formulating the issue in that
manner, she erects a straw man. Obviously, if this court
were to overrule a decision merely because the panel
had changed, the court would do damage to the rule
of law. That causal connection exists, however, only in
the opinion of the Chief Justice, who certainly finds
herself more than capable of knocking down the propo-
sition she has put forward. But the mere fact that a
decision overruling Santiago would have occurred after
the panel changed does not necessitate the conclusion
that the panel change would have caused the court to
overrule Santiago, and is nothing more than a logical
fallacy, an example of ‘‘post hoc, ergo propter hoc’’3 rea-
soning.
On another level, what the Chief Justice appears to
suggest is that, because the panel in Santiago would
have been unwilling to overrule that decision, the cur-
rent panel is prevented from doing so. She even goes
so far as to tally the unchanged votes of the remaining
three members of the majority panel from Santiago
that are on the panel for this appeal, counting that as
support for her decision to accord stare decisis effect
to Santiago. She appears to suggest, therefore, that if
one of the members of the majority in Santiago had
come to the realization that Santiago was clearly
wrong, a majority of the panel in the present case would
be justified in overruling Santiago. First, if that notion
does not create the appearance that the personally held
beliefs of individual justices govern the outcome of the
present appeal, I do not know what would. Second, the
Chief Justice does not give her own vote, or the votes
of the other two original dissenting justices, sufficient
weight. By my tally, those votes also totaled three.
Finally, if the notion advanced by the Chief Justice—
that an opinion should not be overruled because the
original majority continued to believe the case was
rightly decided—held any weight, Plessy v. Ferguson,
163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), over-
ruled by Brown v. Board of Education, 347 U.S. 483,
494–95, 74 S. Ct. 686, 98 L. Ed. 873 (1954), would still
be good law.
II
STARE DECISIS PRINCIPLES APPLIED TO A
DECISION THAT FLOUTED STARE DECISIS
This court has stated that ‘‘[one] well recognized
exception to stare decisis under which a court will
examine and overrule a prior decision . . . [is when
that prior decision] is clearly wrong.’’ (Internal quota-
tion marks omitted.) Conway v. Wilton, supra, 238
Conn. 660. The exception to the doctrine of stare decisis
for decisions that are ‘‘clearly wrong’’ is perhaps the
oldest and most well established, dating back to William
Blackstone, who explained: ‘‘[I]t is an established rule
to abide by former precedents, where the same points
come again in litigation . . . . Yet this rule admits of
exception, where the former determination is most evi-
dently contrary to reason; much more if it be contrary
to the divine law. . . . The doctrine of the law then is
this: that precedents and rules must be followed, unless
flatly absurd or unjust: for though their reason be not
obvious at first view, yet we owe such a deference to
former times as not to suppose they acted wholly with-
out consideration.’’ (Emphasis added.) 1 W. Blackstone,
Commentaries on the Laws of England (1775) pp. 69–70.
Contrary to the position of the Chief Justice, the
United States Supreme Court has held that when a
recently decided case has ignored and contravened
existing precedent, the doctrine of stare decisis
requires that the decision be overruled. As explained
by D. Arthur Kelsey, now a justice of the Supreme Court
of Virginia, when ‘‘a court overrules a more recent case
that, itself, violated stare decisis and thus represented
a divergence from settled precedent . . . the court
does not flout stare decisis by overruling the anomalous
case. Rather, it ‘restore[s]’ the prior ‘fabric of [the] law’
that the anomalous case departed from. Adarand Con-
structors, Inc. v. Pena, [supra, 515 U.S. 234]. Thus, in
Adarand Constructors, Inc., the [c]ourt overruled its
recent opinion in [Metro Broadcasting, Inc. v. Federal
Communications Commission, 497 U.S. 547, 110 S. Ct.
2997, 111 L. Ed. 2d 445 (1990)], stating: ‘Metro Broad-
casting [Inc.] itself departed from our prior cases—
and did so quite recently. By refusing to follow Metro
Broadcasting [Inc.], then, we do not depart from the
fabric of the law; we restore it.’ ’’ D. Kelsey, ‘‘The Archi-
tecture of Judicial Power: Appellate Review and Stare
Decisis,’’ 45 Judges’ J., p. 13 n.29 (Spring 2006).
I observe that there were significant panel changes in
the five years that passed between Metro Broadcasting,
Inc., and Adarand Constructors, Inc. The majority in
Metro Broadcasting, Inc., was comprised of Justices
Brennan, White, Marshall, Blackmun and Stevens.
Metro Broadcasting, Inc. v. Federal Communications
Commission, supra, 497 U.S. 550. The dissenters were
Chief Justice Rehnquist, and Justices O’Connor, Scalia
and Kennedy. Id. When the court overruled Metro
Broadcasting, Inc., in Adarand Constructors, Inc.,
none of the original panel members changed their posi-
tions, but only Justice Stevens remained of the original
majority. Adarand Constructors, Inc. v. Pena, supra,515 U.S. 202–203. Writing for the majority in Adarand
Constructors, Inc., Justice O’Connor distinguished this
context—when the court considers overruling a recent
decision that contravened well established precedent—
from the context presented in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844,
864, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), in which
the court considered whether to overrule Roe v. Wade,
410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
Adarand Constructors, Inc. v. Pena, supra, 233. When
Casey was decided, Roe had become ‘‘integrated into
the fabric of law.’’ Id., 234. By contrast, Metro Broad-
casting, Inc., created a tear in that fabric by violating
the principle of stare decisis; the doctrine therefore
required that the damage be controlled by overruling
the anomalous decision as soon as possible. Id., 233–34.
The United States Supreme Court relied on the very
same principle in United States v. Dixon, 509 U.S. 688,
704, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), in which
it overruled its decision in Grady v. Corbin, 495 U.S.
508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), following a
panel change. The court in Dixon explained that ‘‘Grady
contradicted an unbroken line of decisions, contained
less than accurate historical analysis, and has produced
confusion . . . .’’ (Internal quotation marks omitted.)
United States v. Dixon, supra, 711. Letting that decision
stand, therefore, would ‘‘mock stare decisis.’’ Id., 712;
see D. Kelsey, supra, 45 Judges’ J., p. 13 n.29.
That is precisely the context in the present case. The
Chief Justice detailed the manner in which the majority
in Santiago cast aside a vast body of existing precedent,
simply because the majority of the panel in that case
held a contrary view, in complete contravention to
applicable precedent and with flagrant disrespect for
the principle of stare decisis. State v. Santiago, supra,
318 Conn. 238–39 (Rogers, C. J., dissenting). She
observed that essential to the majority’s analysis was
its position that ‘‘this court’s previous holdings that the
due process provisions of the state constitution do not
bar the imposition of the death penalty for the most
heinous murders are now questionable . . . .’’ Id., 238
(Rogers, C. J., dissenting). She then criticized the major-
ity, not only for its lack of respect for precedent, but
also for its lack of intellectual honesty. She pointed out
that the majority—unwilling to openly acknowledge the
fact that it was overruling dozens of decisions, which
repeatedly had upheld the constitutionality of the death
penalty, solely because the majority would have held
a different view—‘‘carefully avoid[ed] suggesting . . .
[that those decisions] were wrongly decided.’’ (Citation
omitted.) Id., 238 n.5.
In fact, the Chief Justice’s dissenting opinion in Santi-
ago makes clear that the majority decision in that case
was driven by naked judicial activism, in contravention
to the existing law of this state. She explained:
‘‘[B]ecause there is no legitimate legal basis for finding
the death penalty unconstitutional under either the fed-
eral or the state constitution, I can only conclude that
the majority has improperly decided that the death pen-
alty must be struck down because it offends the majori-
ty’s subjective sense of morality.’’ Id., 276–77. It was a
classic example of a court giving no effect or even
consideration to the principle of stare decisis, and rep-
resented a drastic departure from our death penalty
jurisprudence. Inevitably, such decisions are, as the
Chief Justice expressed eloquently, ‘‘based on a house
of cards, falling under the slightest breath of scrutiny.’’
Id., 233. In other words, such decisions inevitably are
clearly wrong and destroy the fabric of the law. Stare
decisis requires that such decisions be overruled.
In the present case, accordingly, the question is not
whether the court should overrule Santiago because of
a panel change. The question that the Chief Justice
should be asking is whether stare decisis principles
support the conclusion that a panel change prevents
this court from being able to overrule a clearly wrong,
recently decided case that constitutes an abrupt depar-
ture from well established precedent. And the clear
answer to that question is no; stare decisis requires
that the fabric of the law be restored by overruling the
anomalous decision.
The Chief Justice cannot point to a single case to
support the proposition that a panel change prevents
the court from overruling clearly wrong precedent,
because none exists. My research has revealed that all
of this court’s decisions overruling prior precedent have
happened following a panel change. During her tenure,
for instance, my research also has revealed that this
court has overruled its prior precedent on at least
twenty-five occasions. In every single one of those
cases, the panel that overruled the prior precedent dif-
fered from the panel that had decided the original case.
See State v. Wright, 320 Conn. 781, 810, A.3d
(2016) (overruling in part State v. DeJesus, 270 Conn.
826, 856 A.2d 345 [2004]); Arras v. Regional School
District No. 14, 319 Conn. 245, 268–69 n.24, 125 A.3d
172 (2015) (overruling Pollard v. Norwalk, 108 Conn.
145, 142 A. 807 [1928], ‘‘to the extent that Pollard sup-
ports the dissent’s position’’ in Arras, on basis that if
dissent’s reading of Pollard were correct, Pollard would
be inconsistent with Bortner v. Woodbridge, 250 Conn.
241, 736 A.2d 104 [1999], and Sadlowski v. Manchester,
206 Conn. 579, 538 A.2d 1052 [1988]); Campos v. Cole-
man, 319 Conn. 36, 57, 123 A.3d 854 (2015) (overruling
Mendillo v. Board of Education, 246 Conn. 456, 717
A.2d 1177 [1998]); State v. Moreno-Hernandez, 317
Conn. 292, 308, 118 A.3d 26 (2015) (overruling in part
State v. Gonzalez, 222 Conn. 718, 609 A.2d 1003 [1992]);
Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d
249 (2014) (overruling in part both Purzycki v. Fair-
field, 244 Conn. 101, 708 A.2d 937 [1998], and Burns v.
Board of Education, 228 Conn. 640, 638 A.2d 1 [1994]);
State v. Artis, 314 Conn. 131, 156, 101 A.3d 915 (2014)
(overruling State v. Gordon, 185 Conn. 402, 441 A.2d
119 [1981], cert. denied, 455 U.S. 989, 102 S. Ct. 1612,
71 L. Ed. 2d 848 [1982]); State v. Elson, 311 Conn. 726,
746–48, 748 n.14, 754, 91 A.3d 862 (2014) (overruling in
part In re Jan Carlos D., 297 Conn. 16, 997 A.2d 471[2010], State v. Cutler, 293 Conn. 303, 977 A.2d 209[2009], In re Melody L., 290 Conn. 131, 962 A.2d 81[2009], Johnson v. Commissioner of Correction, 288
Conn. 53, 951 A.2d 520 [2008], State v. McKenzie-
Adams, 281 Conn. 486, 915 A.2d 822, cert. denied, 552
U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 [2007], State
v. Commins, 276 Conn. 503, 886 A.2d 824 [2005], Lebron
v. Commissioner of Correction, 274 Conn. 507, 876 A.2d
1178 [2005], and State v. Ramos, 261 Conn. 156, 801
A.2d 788 [2002]); Ulbrich v. Groth, 310 Conn. 375, 409,
78 A.3d 76 (2013) (overruling in part Flagg Energy
Development Corp. v. General Motors Corp., 244 Conn.
126, 709 A.2d 1075 [1998]); State v. Moulton, 310 Conn.
337, 362 n.23, 363, 78 A.3d 55 (2013) (overruling ‘‘prior
precedent to the contrary’’ of court’s conclusion that
‘‘[General Statutes] § 53a-183 [a] proscribes harassing
and alarming speech as well as conduct’’); State v.
Polanco, 308 Conn. 242, 245, 261, 61 A.3d 1084 (2013)
(overruling in part State v. Chicano, 216 Conn. 699, 584
A.2d 425 [1990], cert. denied, 501 U.S. 1254, 111 S. Ct.
2899, 115 L. Ed. 2d 1062 [1991]); State v. Sanchez, 308
Conn. 64, 80, 60 A.3d 271 (2013) (overruling in part
Finley v. Aetna Life & Casualty Co., 202 Conn. 190,
520 A.2d 208 [1987], overruled in part on other grounds
by Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719[1993]); State v. Guilbert, 306 Conn. 218, 253, 49 A.3d
705 (2012) (overruling in part State v. McClendon, 248
Conn. 572, 730 A.2d 1107 [1999], and State v. Kemp,
199 Conn. 473, 507 A.2d 1387 [1986]); State v. Paige,
304 Conn. 426, 446, 40 A.3d 279 (2012) (overruling in
part State v. Greenberg, 92 Conn. 657, 103 A. 897 [1918]);
Gross v. Rell, 304 Conn. 234, 270–71, 40 A.3d 240 (2012)
(overruling in part Lesnewski v. Redvers, 276 Conn.
526, 886 A.2d 1207 [2005]); Arrowood Indemnity Co. v.
King, 304 Conn. 179, 201, 39 A.3d 712 (2012) (overruling
in part Aetna Casualty & Surety Co. v. Murphy, 206
Conn. 409, 538 A.2d 219 [1988]); State v. Payne, 303
Conn. 538, 541–42, 564, 34 A.3d 370 (2012) (overruling
State v. King, 187 Conn. 292, 445 A.2d 901 [1982], ‘‘and
its progeny,’’ and overruling in part State v. Tomas D.,
296 Conn. 476, 995 A.2d 583 [2010]); State v. Kitchens,
299 Conn. 447, 472–73, 10 A.3d 942 (2011) (overruling
in part State v. Ebron, 292 Conn. 656, 975 A.2d 17 [2009]);
Bysiewicz v. DiNardo, 298 Conn. 748, 778–79 n.26, 6
A.3d 726 (2010) (overruling In re Application of Slade,
169 Conn. 677, 363 A.2d 1099 [1975]); State v. Connor,
292 Conn. 483, 528 n.29, 973 A.2d 627 (2009) (overruling
in part State v. Day, 233 Conn. 813, 661 A.2d 539 [1995]);
St. Joseph’s Living Center, Inc. v. Windham, 290 Conn.
695, 729 n.37, 966 A.2d 188 (2009) (overruling Fanny
J. Crosby Memorial, Inc. v. Bridgeport, 262 Conn. 213,
811 A.2d 1277 [2002], and United Church of Christ v.
West Hartford, 206 Conn. 711, 539 A.2d 573 [1988], to
extent that those cases were inconsistent); State v.
DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008)4 (over-
ruling in part State v. Sanseverino, 287 Conn. 608, 949
A.2d 1156 [2008] [Sanseverino I], superseded in part
by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710[2009] [Sanseverino II]); State v. Salamon, 287 Conn.
509, 513, 542, 949 A.2d 1092 (2008) (overruling entire
line of cases interpreting kidnapping statutes as
allowing conviction for kidnapping even when restraint
involved was merely incidental to commission of
another offense, most recently stated in State v. Luurt-
sema, 262 Conn. 179, 811 A.2d 223 [2002]); Jaiguay
v. Vasquez, 287 Conn. 323, 348, 948 A.2d 955 (2008)
(overruling in part Johnson v. Atkinson, 283 Conn. 243,
926 A.2d 656 [2007]); State v. Grant, 286 Conn. 499, 535,
944 A.2d 947 (overruling in part State v. Whipper, 258
Conn. 229, 780 A.2d 53 [2001]), cert. denied, 555 U.S.
916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008); Gibbons
v. Historic District Commission, 285 Conn. 755, 771,
941 A.2d 917 (2008) (overruling in part Stankiewicz
v. Zoning Board of Appeals, 211 Conn. 76, 556 A.2d
1024 [1989]).
The Chief Justice presided over many of the appeals
in which this court overruled prior precedent. Accord-
ingly, this court’s existing practices in adhering—or not
adhering—to the stare decisis principles that the Chief
Justice currently invokes are relevant in evaluating the
persuasiveness of her claim that the doctrine prevents
this court from overruling Santiago. I note that many of
this court’s recent decisions overruling prior precedent
include no discussion whatsoever of the doctrine of
stare decisis. See, e.g., Haynes v. Middletown, supra,
314 Conn. 323 (overruling in part both Purzycki v. Fair-
field, supra, 244 Conn. 101, and Burns v. Board of Edu-
cation, supra, 228 Conn. 640, with no mention of stare
decisis or underlying principles); State v. Sanchez,
supra, 308 Conn. 78 (overruling in part Finley v. Aetna
Life & Casualty Co., supra, 202 Conn. 190, with no
mention of stare decisis or underlying principles); State
v. Paige, supra, 304 Conn. 446 (overruling in part State
v. Greenberg, supra, 92 Conn. 657, with no mention
of stare decisis or underlying principles). The Chief
Justice’s stated concern in her concurring opinion in
this case, that overruling Santiago would raise ques-
tions ‘‘about the court’s integrity and the rule of law in
the state of Connecticut,’’ cannot be reconciled with
the number of times this court has overturned its prior
decisions without even considering whether doing so
would be consistent with the doctrine.
These recent decisions also call into question the
assertion of the Chief Justice that stare decisis must
be adhered to in the present case because ‘‘neither the
factual underpinnings of the prior decision nor the law
has changed . . . .’’ She contends that one of these
changes is necessary before a court may overrule a
decision. Presumably, because she recognizes no
exception for clearly wrong decisions despite its well
established roots in our law, and because she obviously
believes that Santiago was clearly wrong; see State
v. Santiago, supra, 318 Conn. 231–341 (Rogers, C. J.,
dissenting); she takes the position that even when a
decision is clearly wrong, it must be accorded stare
decisis effect unless one of these two conditions is
present. She claims that in the absence of one or both
of those two conditions, the decision to overrule prior
precedent is based merely on ‘‘a present doctrinal dispo-
sition to come out differently from [the prior decision].’’
Planned Parenthood of Southeastern Pennsylvania v.
Casey, supra, 505 U.S. 864.
In a case that was decided mere months ago, how-
ever, the Chief Justice joined the majority in overruling
prior precedent, despite the absence of either of these
two conditions. And in doing so, the court recognized
a new cause of action, hardly a small change in the
law. In Campos v. Coleman, supra, 319 Conn. 57, this
court overruled Mendillo v. Board of Education, supra,246 Conn. 456, 461, 477–96, in which the court had
declined, based on an exhaustive analysis of the rele-
vant policy principles and applicable precedent, to rec-
ognize a derivative cause of action for loss of
consortium by a minor child. The justification provided
by the court in Campos for overruling Mendillo, which
had been decided by an en banc panel before the court
adopted that practice for all cases, is illuminating:
‘‘Upon reconsideration of the relevant considerations,
including the five factors that this court found determi-
native in Mendillo, we now agree with the concurring
and dissenting opinion in Mendillo that the public policy
factors favoring recognition of a cause of action for
loss of parental consortium outweigh those factors dis-
favoring recognition.’’ Campos v. Coleman, supra, 43.
The opinion then proceeded to consider each of those
factors and explain why the present panel now ‘‘dis-
agree[d]’’; id., 45; with the evaluation conducted by the
panel in Mendillo of each of those factors. Id., 44–57.
In other words, the panel in Campos simply disagreed
with the conclusion arrived at by the panel in Mendillo,
so Mendillo was overruled. Nothing in the factual under-
pinnings or the law had changed in the more than seven-
teen years since Mendillo was decided. The court in
Campos relied on many of the identical authorities on
which the court in Mendillo had relied, but the court
in Campos arrived at a different conclusion.
One would expect, considering the Chief Justice’s
claim that the court is bound by the doctrine of stare
decisis in the present case, that she would have
expressed similar concerns regarding the risk that the
court might appear to be deciding cases on the basis
of the personal moral beliefs of individual justices, and
that Campos would include an extensive and consid-
ered discussion of why stare decisis should not apply
to Mendillo. Not so. Not only did Campos restrict its
passing reference to the doctrine of stare decisis to a
brief footnote, but it also misstated one of the basic
principles underlying the doctrine. Id., 57 n.16. Specifi-
cally, as I have explained in this dissenting opinion, the
exception to the doctrine of stare decisis for clearly
wrong decisions is well established. That exception,
however, is quite narrow, and does not apply to a deci-
sion when a current panel concludes merely that,
although the original decision was ‘‘wrong,’’ reasonable
jurists could disagree. We have therefore limited the
application of the ‘‘clearly wrong’’ exception to stare
decisis to those instances when overruling prior prece-
dent is compelled by ‘‘the most cogent reasons and
inescapable logic . . . .’’ (Emphasis added; internal
quotation marks omitted.) Conway v. Wilton, supra,
238 Conn. 660–61. The court in Campos, however,
merely made the conclusory statement that its decision
to overrule Mendillo was justified because ‘‘logic dic-
tate[d] such a result.’’ Campos v. Coleman, supra, 319
Conn. 57 n.16. This statement significantly lowers the
bar. If all that were required in order for this court
to overrule prior precedent was the present panel’s
conclusion that ‘‘logic dictated’’ that result, our defini-
tion of the word ‘‘precedent’’ would have to change rad-
ically.
Outside observers reading the Campos decision
might be concerned that the sole reason for its conclu-
sion was the composition of the panel. The Chief Jus-
tice, however, joined the majority, a position that is
inconsistent with her concern in the present case to
avoid the appearance of being driven by a mere doc-
trinal disagreement with the previous panel.
The Chief Justice’s decision in State v. DeJesus,
supra, 288 Conn. 418, is particularly problematic for
her, because in that case, without any hesitation, she
authored an opinion that accomplished precisely what
she asserts today would so threaten the rule of law and
the integrity of this court. In Sanseverino I, supra, 287
Conn. 612–13, decided less than two months before
DeJesus, this court applied State v. Salamon, supra,287 Conn. 509, to reverse the defendant’s conviction
for kidnapping. In Salamon, this court overruled a long
line of cases that had held that a conviction for kidnap-
ping would lie even when ‘‘the restraint involved . . .
[was] merely incidental to the commission of another
offense perpetrated against the victim by the accused.’’
Id., 513. The defendant in Sanseverino I had been con-
victed of both kidnapping and sexual assault. Sansever-
ino I, supra, 611–12. The majority in Sanseverino I,
supra, 624, concluded that, under the new rule, which
required that the state prove that the restraint involved
was more than merely incidental to and necessary for
the commission of the sexual assault, ‘‘no reasonable
jury could have found the defendant guilty of kidnap-
ping in the first degree on the basis of the evidence
that the state proffered at trial.’’ Accordingly, the proper
remedy, the court concluded, was not a retrial on the
kidnapping charge, but an outright acquittal. Id., 626.
Justice Zarella dissented, arguing that the majority deci-
sion improperly had evaluated the sufficiency of the
state’s evidence presented at trial on the basis of the
new rule. Id., 654. Justice Zarella observed: ‘‘The major-
ity may be correct that, on the basis of the facts pre-
sented at the defendant’s trial, the state did not
demonstrate that the defendant perpetrated a restraint
of the victim that has legal significance independent of
the sexual assault. The state, however, had no knowl-
edge when presenting its case to the jury that it was
necessary to make such a showing.’’ Id. (Zarella, J., dis-
senting).
The Chief Justice, who had joined the majority in
Sanseverino I, authored State v. DeJesus, supra, 288
Conn. 437, which, with the addition of two new panel
members, overruled Sanseverino I. In DeJesus, the
Chief Justice relied on the very same principles—in
fact, the very same case law—that she and the other
members of the majority in Sanseverino I had found
unpersuasive less than two months earlier. Compare
Sanseverino I, supra, 287 Conn. 648–64 (Zarella, J.,
dissenting), with State v. DeJesus, supra, 288 Conn.
434–39. And she did so notwithstanding the objections
of the dissent, which argued that the decision in DeJesus
evinced a ‘‘lack of respect for the principle of stare
decisis . . . .’’ State v. DeJesus, supra, 288 Conn. 529(Katz, J., dissenting). Specifically, the dissent in
DeJesus levied an uncannily familiar accusation against
the majority, stating that ‘‘[t]he majority’s decision to
overrule such recent precedent strikes at the very heart
of [stare decisis].’’ (Emphasis added.) Id., 530 (Katz,
J., dissenting).
Writing for the majority in DeJesus, the Chief Justice
quickly dismissed the dissenting opinion’s arguments,
voicing no concerns whatsoever that either the subse-
quent panel change or the quick nature of the about face
presented any impediment to overruling Sanseverino I.
State v. DeJesus, supra, 288 Conn. 437–38 n.14. This is
particularly noteworthy for several reasons. First, as I
have observed, the dissent expressly pointed out the
fact that DeJesus was released at a whiplash-inducing
speed after Sanseverino I, which was controlling prece-
dent as to the appropriate remedy for less than two
months before the court changed its mind. Id., 529
(Katz, J., dissenting). Second, the sole justification on
which the majority in DeJesus relied for its decision to
overrule Sanseverino I was that the rule announced
was clearly ‘‘wrongly decided.’’ (Emphasis added.) Id.,
437 n.14. The opposite conclusion, the majority
explained, was compelled by the most ‘‘inescapable
logic . . . .’’ Id. This basis, that Sanseverino I was not
merely wrong, but indisputably so, is the very same
basis that the Chief Justice now asserts is somehow
insufficient to overrule Santiago, despite her very pub-
lic and very obvious belief that Santiago is clearly
wrong. Lastly, I observe that because so little time
passed between the publication of Sanseverino I and
DeJesus, absolutely nothing had changed between the
two decisions. This is particularly ironic, given the Chief
Justice’s insistence in the present case that in order for
this court to overrule prior precedent, there must have
been some subsequent change in the facts or the law,
and that the conclusion that a decision was clearly
wrong, on its own, is insufficient to justify a departure
from stare decisis. One wonders what the Chief Justice
might have responded in DeJesus, had the dissent
pointed out, quite accurately, that ‘‘the only change that
has occurred [since Sanseverino I was decided] is a
change in the makeup of this court . . . .’’
Do not misunderstand me to suggest that State v.
DeJesus, supra, 288 Conn. 418, was wrongly decided.
To the contrary, DeJesus is perfectly consistent with
the doctrine of stare decisis, because Sanseverino I,
supra, 287 Conn. 608, had ignored prior precedent. The
panel in DeJesus, therefore, was required by the doc-
trine of stare decisis to overrule the portion of Sansever-
ino I that contravened well established precedent,
regardless of how recently Sanseverino I had been
decided, and regardless of whether there was a panel
change. DeJesus repaired the fabric of the law. And
DeJesus did so as quickly as possible, before the errant
decision could do damage. That is precisely what we
are asked to do in the present case.
The position of the Chief Justice, that when there
has been a panel change, stare decisis precludes the
court from overturning a recent, clearly wrong decision
that flouted established precedent, conflicts with a fun-
damental principle underlying the doctrine of stare deci-
sis, namely, that the doctrine, although grounded in
stability and consistency, cannot be rigid. Otherwise,
consistency and stability would require the court to
follow precedent regardless of how wrong it may be.
See Conway v. Wilton, supra, 238 Conn. 660 (‘‘Stare
decisis is not an inexorable command. . . . [A]lthough
[s]tare decisis is a doctrine developed by courts to
accomplish the requisite element of stability in court-
made law, [it] is not an absolute impediment to change.
. . . [S]tability should not be confused with perpetuity.
If law is to have a current relevance, courts must have
and exert the capacity to change a rule of law when
reason so requires.’’ [Citations omitted; internal quota-
tion marks omitted.]). As this court has stated on many
occasions, it is more important to be right than to be
consistent. Id.The two ‘‘rules’’ that the Chief Justice focuses on in
her concurring opinion in the present case are: (1) this
court cannot overrule a decision following a panel
change; and (2) this court cannot overrule a recently
decided case. As to the first supposed rule, she points
to no instance in which this court overruled prior prece-
dent, where there had not been an intervening panel
change. She also fails to cite to a single decision by
this court declining to overrule a prior precedent on
the basis that it was too recently decided. Assuming,
however, for purposes of discussion, that these two
rules bar the court from overruling prior precedent, her
rigid application of these principles, if carried out in
the manner that they suggest is appropriate, would guar-
antee that a clearly wrong decision would stand uncor-
rected.
An excellent illustration of this principle is this
court’s decision in Tileston v. Ullman, 129 Conn. 84,
86, 26 A.2d 582 (1942), appeal dismissed, 318 U.S. 44,
46, 63 S. Ct. 493, 87 L. Ed. 603 (1943), which declined
to overrule State v. Nelson, 126 Conn. 412, 11 A.2d 856(1940), based in part on the principle that ‘‘a change in
personnel of the court affords no ground for reopening
a question which has been authoritatively settled.’’ Just
as in the present case, there had been a panel change
between the two decisions; the panels differed by one
member because Justice Hinman, who had been on the
panel in Nelson, had retired. In Nelson, the court had
rejected a challenge to General Statutes (1930 Rev.)
§§ 6246 and 6562, which together, as construed by the
court, made it a criminal offense for a physician to
prescribe contraceptives to a married woman, even
when ‘‘the general health and well-being of the patient
require[d] it.’’ Tileston v. Ullman, supra, 85. The court
in Nelson expressly left open the question of whether
an exception should be read into the statutes when a
physician has concluded that pregnancy would jeopar-
dize the life of the woman, which the court acknowl-
edged was a commonly recognized exception in
abortion statutes at the time. State v. Nelson, supra,
418; Tileston v. Ullman, supra, 85.
The plaintiff in Tileston was a licensed physician who
sought a declaratory judgment that General Statutes
(1930 Rev.) §§ 6246 and 6562 allowed for an exception
when a physician had concluded that pregnancy would
place a woman’s life in danger. Although this was pre-
cisely the issue that had been left unresolved by Nelson;
State v. Nelson, supra, 126 Conn. 418; the court in Tiles-
ton characterized the claim as one that would require
it to overrule Nelson, and declined to do so, in part
because the panel had changed. Tileston v. Ullman,
supra, 129 Conn. 86.
In Tileston, the court’s reliance on the panel change
obviated any need to reexamine the problematic public
policy principles on which Nelson had rested. Specifi-
cally, in Nelson, the court had explained that the stat-
utes’ ‘‘plain purpose’’ was ‘‘to protect purity, to preserve
chastity, to encourage continence and self-restraint, to
defend the sanctity of the home, and thus engender
. . . a virile and virtuous race of men and women.’’
(Internal quotation marks omitted.) State v. Nelson,
supra, 126 Conn. 425. The court’s choice of the word
‘‘ ‘virile’ ’’ is revealing, in light of its additional observa-
tion that ‘‘not all married [women] are immune from
temptation or inclination to extra-marital indulgence,
as to which risk of illegitimate pregnancy is a recognized
deterrent deemed desirable in the interests of morality.’’
Id., 424. Because the women at issue in the appeal were
all married, any child born as a result of a so-called
‘‘illegitimate pregnancy’’ would not actually be ‘‘illegiti-
mate’’; putative father laws would prevent that. The
purpose of the statutes, accordingly, was to protect the
‘‘virility’’ of husbands by preventing them from being
made into cuckolds! It is easy to see why the panel in
Nelson would deem such a public ‘‘purpose’’ to out-
weigh any concerns over women’s general health.
Similarly, the panel in Tileston had no difficulty bal-
ancing that noble public ‘‘purpose’’ against the consider-
ably greater risk presented to the female patients at
issue in that case—death. Indeed, for those women,
the court had a perfectly legal, alternative solution:
‘‘absolute abstention.’’ Tileston v. Ullman, supra, 129
Conn. 92. Writing for the majority, Justice Ells, the only
new panel member, even offered a helpful observation:
‘‘Certainly [absolute abstention] is a sure remedy.’’ Id.The decision in Tileston illustrates the dangers of the
rigid application of stare decisis. The court in Tileston
was able to rely in part on a panel change to justify its
refusal to allow for a statutory exception that had not
been dictated by prior precedent, despite the fact that
the exception was commonly allowed in the much more
extreme case of abortion. Id., 85, 86. Similarly, the Chief
Justice is able to rely on the panel change in the present
case to justify her refusal to overrule a decision that
blatantly violated the doctrine of stare decisis. Tileston
also starkly demonstrates the fallacy of concluding that
this court risks the appearance that its decision is driven
by the doctrinal disposition of the panel only when a
new panel overrules prior precedent. Most importantly,
Tileston highlights the principle that some decisions
are so wrong that duty requires that the court overrule
them. If a slightly different panel than the one in the
present case had decided yesterday that physicians
could be prosecuted for providing contraception to
female patients, I have no doubt that the Chief Justice
would voice no concerns that the rule of law or integrity
of this court would be imperiled by overruling that
clearly wrong decision.
Of course, the best evidence that the Chief Justice
improperly relies on the doctrine of stare decisis to
justify her conclusion that Santiago should not be over-
ruled is Santiago itself. That is, the overwhelming irony
is that the Chief Justice relies on the doctrine of stare
decisis in declining to overrule a decision that she her-
self recognized tramped merrily over this court’s entire
body of death penalty jurisprudence, in complete disre-
gard of that doctrine.5 The decision in Santiago rewrote
history, contorted both this court’s legal precedent and
the legislative history of No. 12-5 of the 2012 Public
Acts (P.A. 12-5), and blatantly substituted its own moral
judgment for that of the people of this state. Good
jurisprudence, not the present doctrinal disposition of
a slightly different panel, would justify overruling such
an abuse of judicial power. As the Chief Justice notes in
her concurring opinion, the court’s decision in Santiago
‘‘raise[d] legitimate concerns by the people we serve
about the court’s integrity and the rule of law in the
state of Connecticut.’’ We now have the opportunity to
restore the faith of the people of this state in this court’s
respect for the rule of law. The doctrine of stare decisis
requires that we take that opportunity.
Overturning Santiago would not require justices to
decide the present case according to their personal
moral beliefs. The Chief Justice explained in her dis-
senting opinion in that case that Santiago was decided
and governed by ‘‘the majority’s subjective sense of
morality’’; State v. Santiago, supra, 318 Conn. 277; and
was completely contrary to what was dictated by
existing precedent and the legislative history of P.A.
12-5. Id., 270–76. I agree with her. Even a jurist who is
deeply, morally opposed to capital punishment, how-
ever, has a duty to follow the law. I agree with the Chief
Justice that the majority in Santiago ignored that duty,
and resolved the appeal on the basis of their personal,
moral opposition to the death penalty. Id., 277. Overrul-
ing that decision now, not after the decision has been
‘‘on the books’’ long enough to be relied on as precedent,
is the best way to adhere to the principle of stare decisis
and repair the damage that has been done to the rule
of law. The United States Supreme Court has made
clear that when a court is called upon to overrule a
recent decision that has violated stare decisis, the doc-
trine of stare decisis requires that the prior decision
be overruled. See Adarand Constructors, Inc. v. Pena,
supra, 515 U.S. 233–34. By focusing on the panel change,
rather than the damage that Santiago inflicted on the
rule of law, the Chief Justice loses sight of what needs
to be done in the present case—the fabric of the law
must be repaired. And the only way to do that would
have been to overrule Santiago.
I respectfully dissent.
1
Given that my dissenting opinion does not address his concurring opin-
ion, it is puzzling that Justice Palmer feels the need to respond to my dissent.
2
I observe that unlike Chief Justice Rogers, Justice Robinson does not
embrace the notion that there are any circumstances when stare decisis
requires the court to adhere to a clearly wrong decision.
3
See Black’s Law Dictionary (9th Ed. 2009) (noting Latin phrase post hoc,
ergo propter hoc is translated as ‘‘ ‘after this, therefore because of this,’ ’’
and defining phrase as ‘‘relating to the fallacy of assuming causality from
temporal sequence; confusing sequence with consequence’’).
4
The similarity in case names between State v. DeJesus, supra, 270 Conn.
826, and State v. DeJesus, supra, 288 Conn. 418, is purely coincidental.
Hereinafter, all references in this dissenting opinion to DeJesus are to State
v. DeJesus, supra, 288 Conn. 418.
5
I also note the irony that Santiago itself involved multiple panel changes.
Justices opted in and out of the panel while it was being considered by this
court, yet no one seemed to be concerned that those panel changes would
give rise to the public perception that the result of an appeal before this
court depended on the composition of the panel. A summary of the panel
changes in that case reveals that they were quite numerous.
I begin with the panel that decided State v. Santiago, 305 Conn. 101, 49
A.3d 566 (2012), which was argued on April 27, 2011, and was the same
appeal that gave rise to the decision in State v. Santiago, supra, 318 Conn.
1. That panel was comprised of Chief Justice Rogers, and Justices Norcott,
Zarella, McLachlan, Eveleigh, Harper and Vertefeuille. Over the course of
the years during which the decision in State v. Santiago, supra, 305 Conn.
1, was pending before this court, the orders on the motions in that case
reveal that Justice Palmer had recused himself from the case.
On May 9, 2012, more than one year after oral argument in State v.
Santiago, supra, 305 Conn. 1, the defendant in that case filed a motion
seeking permission to file a supplemental brief addressing the effect of No.
12-5 of the 2012 Public Acts on his appeal. The order denying that motion
was issued by the same panel that heard oral argument in State v. Santiago,
supra, 305 Conn. 101. The motion was denied ‘‘because, under the circum-
stances of this case, these constitutional issues would be more appropriately
addressed in the context of postjudgment motions.’’ Id., 308 n.167. The
decision in State v. Santiago, supra, 305 Conn. 101, was released one
month later.
On September 12, 2012, the original panel in State v. Santiago, supra, 305
Conn. 101, granted the defendant’s renewed motion requesting permission
to file a supplemental brief and his motion seeking permission to file a late
motion for reconsideration. On September 14, 2012, the Chief Clerk of the
Supreme Court notified the parties in a letter that Justice McLachlan, who
was scheduled to leave the Judicial Branch at the end of that month, had
withdrawn from the panel, and that Justice Palmer, ‘‘who is not recused on
the legal issues implicated in the reconsideration, has been added to the
panel.’’ At that point in time, therefore, the panel in what was to become
State v. Santiago, supra, 318 Conn. 1, now consisted of Chief Justice Rogers,
and Justices Norcott, Palmer, Zarella, Eveleigh, Harper and Vertefeuille.
In November, 2012, Justice Harper reached the age of seventy. Although
his continued participation in the case was authorized by this court’s decision
in Honulik v. Greenwich, 293 Conn. 641, 644, 658, 980 A.2d 845 (2009),
and General Statutes § 51-198 (c), he withdrew from the panel. Similarly,
although her status had not changed, and her continued participation in the
case as a senior justice was authorized by § 51-198 (b), Justice Vertefeuille
also withdrew from the panel. Justice McDonald and I were added to the
panel after we joined the court, thus allowing the defendant’s motion for
reconsideration to be decided by all of the court’s then current members.
At that time, the panel in what was to become State v. Santiago, supra, 318
Conn. 1, now consisted of Chief Justice Rogers, and Justices Norcott, Palmer,
Zarella, Eveleigh, McDonald and myself.
Oral argument was heard on the defendant’s motion for reconsideration
on April 23, 2013. Justice Robinson joined the court in December, 2013.
Justice Norcott, at that time a judge trial referee, did not withdraw from
the panel, and Justice Robinson was not added to it.
In the meantime, the present case was marked ready on May 13, 2014.
At that time, the decision on the defendant’s motion for reconsideration
was more than one year away from being published. See State v. Santiago,
supra, 318 Conn. 1. Although the same issue presented in the motion for
reconsideration in that case had been raised and briefed in the present case,
and although the panel in the present case was comprised of the Chief
Justice and sitting Associate Justices of this court, while the panel in State
v. Santiago, supra, 318 Conn.1, was not, the court did not determine to
address the issue in the present case.
The Chief Justice observes in her concurring opinion that in State v.
Santiago, supra, 318 Conn. 1, ‘‘this court followed its standard procedures
in determining which justices would sit on all phases of that case.’’ I am
not suggesting that the court did not follow its standard procedures; I merely
observe that while the panel changes in that case were many and ongoing,
in the end, those changes yielded the result that in one of the most important
decisions this court has decided in recent history, the panel that decided
the case was not comprised of all of the sitting justices of this court, contrary
to this court’s established policy in important cases. This could have been
avoided if this court had resolved this issue in the present case.