State v. Peeler , 321 Conn. 375 ( 2016 )

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STATE v. PEELER—FIRST DISSENT
ZARELLA, J., dissenting. ‘‘I would think it a violation
of my oath to adhere to what I consider a plainly unjusti-
fied intrusion [on] the democratic process in order that
the [c]ourt might save face. With some reservation con-
cerning decisions that have become so embedded in
our system of government that return is no longer possi-
ble . . . I agree with [United States Supreme Court]
Justice [William O.] Douglas: ‘A judge looking at a con-
stitutional decision may have compulsions to revere
past history and accept what was once written. But he
remembers above all else that it is the [c]onstitution
[that] he swore to support and defend, not the gloss
[that] his predecessors may have put on it.’ . . . Or
as the [United States Supreme] Court itself has said:
‘[W]hen convinced of former error, [the] [c]ourt has
never felt constrained to follow precedent. In constitu-
tional questions, where correction depends [on] amend-
ment and not [on] legislative action [the] [c]ourt
throughout its history has freely exercised its power to
reexamine the basis of its constitutional decisions.’ ’’
(Citation omitted.) South Carolina v. Gathers, 490 U.S.
805, 825, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989) (Scalia,
J., dissenting), overruled in part on other grounds by
Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115
L. Ed. 2d 720 (1991).
I think my colleagues and I are well advised to care-
fully consider the words of Justice Antonin Scalia, par-
ticularly Chief Justice Rogers and Justice Robinson,
who choose to uphold this court’s decision in State v.
Santiago, 318 Conn. 1, 122 A.3d 1 (2015), not because
they have decided that that decision is right, but
because of the dictates of stare decisis and concerns
over the legitimacy of this court. I cannot fathom how
Chief Justice Rogers and Justice Robinson believe they
respect the rule of law by supporting a decision that is
completely devoid of any legal basis or believe it is
more important to spare this court of the purported
embarrassment than to correct demonstrable constitu-
tional error. Of course, it is possible that Justice Rob-
inson believes that Santiago is correct, although he has
not told us so. As I shall explain subsequently in this
opinion, this approach prevents Justice Robinson from
conducting—or at the very least from demonstrating
to the public and to this court that he has undertaken—
a full, fair, and objective analysis of the benefit and
costs of applying stare decisis to Santiago.
I need not further swell the Connecticut Reports with
a lengthy exposition on why Santiago is wrong. It suf-
fices to say that the majority in that case employed an
improper legal standard and wrongfully usurped the
legislature’s power to define crime and fix punishment,
and the six factors set forth in State v. Geisler, 222
Conn. 672, 685, 610 A.2d 1225 (1992), support the con-
clusion that capital punishment remains consistent with
the social mores of this state and is not cruel and
unusual punishment in light of the passage of No. 12-
5 of the 2012 Public Acts (P.A. 12-5). See generally
State v. Santiago, supra, 318 Conn. 341–88 (Zarella, J.,
dissenting). Instead, the primary object of this dissent
is to bring order to our inconsistent and irreconcilable
stare decisis jurisprudence by articulating a defensible
and objective stare decisis standard. Then, in applying
that standard in the present case, I will show why
affording stare decisis effect to Santiago creates more
harm than it does good. Finally, I will explain why
overruling Santiago will enhance, not diminish, the
integrity and legitimacy of this court.
I
STARE DECISIS
The concurring justices in the present case contend
that the dictates of stare decisis require that we stand
by our decision in Santiago.1 In her concurring opinion,
Chief Justice Rogers, quoting from Dickerson v. United
States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d
405 (2000), states: ‘‘[T]he doctrine [of stare decisis]
carries such persuasive force that we have always
required a departure from precedent to be supported by
some special justification.’’ (Internal quotation marks
omitted.) Then, quoting Justice Thurgood Marshall’s
dissenting opinion in Payne v. Tennessee, supra, 501
U.S. 849 (Marshall, J., dissenting), she provides the fol-
lowing special justifications: ‘‘the advent of subsequent
changes or development in the law that undermine[s]
a decision’s rationale . . . the need to bring [a deci-
sion] into agreement with experience and with facts
newly ascertained . . . and a showing that a particular
precedent has become a detriment to coherence and
consistency in the law . . . .’’ (Internal quotation
marks omitted.) The majority in Payne, however, noted
that the ‘‘[c]ourt has never felt constrained to follow
precedent’’ when the ‘‘governing decisions are unwork-
able or are badly reasoned . . . .’’ (Emphasis added;
internal quotation marks omitted.) Payne v. Tennessee,
supra, 827; see also Seminole Tribe v. Florida, 517 U.S.
44, 63, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) (‘‘[The
court has] always . . . treated stare decisis as a princi-
ple of policy . . . and not as an inexorable command
. . . . [W]hen governing decisions are unworkable or
are badly reasoned, [the] [c]ourt has never felt con-
strained to follow precedent. . . . [The court’s] will-
ingness to reconsider [its] earlier decisions has been
particularly true in constitutional cases, because in such
cases correction through legislative action is practically
impossible.’’ [Citations omitted; internal quotation
marks omitted.]). In demanding some ‘‘ ‘special justifi-
cation’ ’’ to overrule Santiago, Chief Justice Rogers
overlooks contrary statements by both the United
States Supreme Court and this court. The United States
Supreme Court has often stated that it is not bound to
follow unworkable or badly reasoned precedents. See,
e.g., Vieth v. Jubelirer, 541 U.S. 267, 306, 124 S. Ct. 1769,
158 L. Ed. 2d 546 (2004); see also Smith v. Allwright, 321
U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed. 987 (1944) (‘‘when
convinced of former error, [the] [c]ourt has never felt
constrained to follow precedent’’ [emphasis added]). In
addition, we have often stated that we are free to over-
rule decisions that are clearly wrong. See, e.g., Conway
v. Wilton, 238 Conn. 653, 660, 680 A.2d 242 (1996)
(‘‘[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’’
[emphasis added; internal quotation marks omitted]);
see also State v. Salamon, 287 Conn. 509, 514, 526–27,
542–44, 949 A.2d 1092 (2008) (ultimately rejecting more
than thirty years of this court’s jurisprudence on Con-
necticut’s kidnapping laws because majority of court
was convinced it was wrong).
There is little doubt that Chief Justice Rogers over-
looks the clearly wrong exception in our and the United
States Supreme Court’s stare decisis jurisprudence
because it would lead her to no other conclusion than
that Santiago must be overruled. A cursory reading of
Chief Justice Rogers’ dissent in Santiago reveals
beyond any doubt that she strongly feels that the majori-
ty’s decision in Santiago is obviously wrong. In fact,
her belief that Santiago was completely wrong was
central to her dissent in that case and not merely an
observation made in passing. She describes the majori-
ty’s analysis in Santiago as ‘‘fundamentally flawed’’;
State v. Santiago, supra, 318 Conn. 231 (Rogers, C. J.,
dissenting); and ‘‘a house of cards, falling under the
slightest breath of scrutiny.’’ Id., 233 (Rogers, C. J.,
dissenting). She further stated that it was ‘‘riddled with
non sequiturs . . . [a]lthough to enumerate all of them
would greatly and unnecessarily increase the length of
[her dissent].’’ Id., 242 (Rogers, C. J., dissenting). In
Santiago, Chief Justice Rogers could uncover ‘‘no legiti-
mate legal basis for finding the death penalty unconsti-
tutional under either the federal or the state con-
stitution’’; id., 276 (Rogers, C. J., dissenting); leading her
to conclude that the majority in Santiago ‘‘improperly
decided that the death penalty must be struck down
because it offends the majority’s subjective sense of
morality.’’ Id., 277 (Rogers, C. J., dissenting).2 In her
dissent to this court’s denial of the state’s motion for
argument and reconsideration of Santiago, Chief Jus-
tice Rogers further demonstrated how flawed she
thought the decision in Santiago is. She stated: ‘‘Indeed,
if there was ever any doubt, it is now inescapably clear
that the three main pillars of the majority’s analysis
have no foundation . . . .’’ State v. Santiago, 319 Conn.
912, 919, 124 A.3d 496 (2015) (Rogers, C. J., dissenting).
In addition, she wrote: ‘‘By denying the state’s motion
for argument and reconsideration, the majority merely
reconfirms my belief that it has not engaged in an objec-
tive assessment of the constitutionality of the death
penalty under our state constitution. Instead, the major-
ity’s conclusion that the death penalty is unconstitu-
tional constitutes a judicial invalidation, without con-
stitutional basis, of the political will of the people.’’
(Internal quotation marks omitted.) Id., 920 (Rogers, C.
J., dissenting). In light of Chief Justice Rogers’ repeated
expressions regarding the fallacy of the majority opin-
ion in Santiago, it is no wonder she now overlooks the
clearly wrong exception to our stare decisis jurispru-
dence. She could not reasonably rely on stare decisis
if she acknowledged that exception.
Chief Justice Rogers’ action highlights a deeper prob-
lem with our case law on stare decisis. Our jurispru-
dence on stare decisis is constructed on contradictory
principles inconsistently applied.3 The concurring opin-
ions of Justices Palmer and Robinson in the present
case suffer from similar shortcomings.4 Both fail to rec-
ognize the presence of certain characteristics that gen-
erally result in our affording of less stare decisis effect
to a previous decision. At the very least, Justices Palmer
and Robinson should explain why these characteristics
are not important for purposes of the present case. For
example, Santiago announces a rule that applies in
criminal cases. In such context, we have often stated
that ‘‘[t]he arguments for adherence to precedent are
least compelling . . . when the rule to be discarded
may not be reasonably supposed to have determined
the conduct of the litigants . . . .’’ (Internal quotation
marks omitted.) State v. Salamon, supra, 287 Conn.
523. This is especially true in the present case because
the rule in Santiago was announced after the defendant
in the present case, Russell Peeler, engaged in criminal
conduct and was tried, convicted, and sentenced to
death. In addition, neither Justice Palmer nor Justice
Robinson explains why Santiago should not receive
less deference in light of the fact that it is a constitu-
tional holding. See, e.g., Seminole Tribe v. Florida,
supra, 517 U.S. 63 (‘‘[the court’s] willingness to recon-
sider [its] earlier decisions has been particularly true in
constitutional cases, because in such cases correction
through legislative action is practically impossible’’
[internal quotation marks omitted]); see also State v.
Lawrence, 282 Conn. 141, 187, 920 A.2d 236 (2007)
(Katz, J., dissenting) (‘‘[i]ndeed, it is well recognized
that, in a case involv[ing] an interpretation of the [c]on-
stitution . . . claims of stare decisis are at their weak-
est . . . [when the court’s] mistakes cannot be
corrected by [the legislature]’’ [internal quotation
marks omitted]).
The inconsistent application of stare decisis leaves
this court open to criticism that it is employing that
doctrine to reach ideologically driven or politically
expedient results, a real threat to this court’s integrity
and institutional legitimacy.5 Due to the underdevelop-
ment of our stare decisis case law, that doctrine can
be easily manipulated to reach a desired result. Thus,
I take this opportunity to articulate a principled frame-
work for the application of stare decisis.6 Then, I will
demonstrate why, in the present case, stare decisis
should not be applied to this court’s decision in
Santiago.
Before I delve into the stare decisis framework and
application, it is important that I address two prelimi-
nary matters. First, stare decisis has both a vertical and
horizontal component. See, e.g., W. Consovoy, ‘‘The
Rehnquist Court and the End of Constitutional Stare
Decisis: Casey, Dickerson and the Consequences of
Pragmatic Adjudication,’’ 2002 Utah L. Rev. 53, 55. Verti-
cal stare decisis refers to the principle that the decisions
of this court are binding on the lower courts of this
state. Id.; see also Black’s Law Dictionary (10th Ed.
2014) p. 1626 (defining vertical stare decisis as ‘‘[t]he
doctrine that a court must strictly follow the decisions
handed down by higher courts within the same jurisdic-
tion’’). On the other hand, horizontal stare decisis
addresses when this court should adhere to its own
earlier decisions. See W. Consovoy, supra, 55; see also
Black’s Law Dictionary, supra, p. 1626 (defining hori-
zontal stare decisis as ‘‘[t]he doctrine that court, esp[e-
cially] an appellate court, must adhere to its own prior
decisions, unless it finds compelling reasons to overrule
itself’’). The balance of this opinion concerns only hori-
zontal stare decisis.
Second, in my view, stare decisis has two modes of
operation. As a general matter, stare decisis, Latin for
‘‘to stand by things decided’’; (internal quotation marks
omitted) Black’s Law Dictionary, supra, p. 1626; is a
doctrine that directs a court to adhere to its earlier
decisions or to the decisions of courts that are higher
in a jurisdiction’s judicial hierarchy. More specifically,
however, the doctrine operates in two distinct manners.
First, the doctrine functions automatically in most
cases. I will call this mode of operation the rule of
precedent. Under this aspect of stare decisis, the court
assumes that its prior decisions are correct and relies
on such decisions in deciding the case before the court.
Under the rule of precedent, our previous decisions are
the bricks of the foundation on which the pending case
will be decided. Moreover, we rely on such decisions,
in large part, simply because they were decided prior
in time, that is, because they are precedent. Each time
this court cites a previous case to support a proposition,
the rule of precedent mode of operation of stare decisis
is implicitly at work. Second, stare decisis operates
more explicitly and directly when we reconsider a previ-
ous decision or line of decisions. In this context, the
doctrine provides a framework for determining whether
the court should continue to abide by a past decision,
even though it may be wrong. It is this distinct mode
of operation—more particularly, the framework it pro-
vides—that I will address in this opinion. With these
preliminary ideas in mind, I now turn to articulating a
principled doctrine of stare decisis.
A
A Principled Doctrine of Stare Decisis
As I just explained, stare decisis guides this court’s
determination of whether it should adhere to a previous
erroneous decision. Implicit in this framing of stare
decisis is that the court must decide whether the deci-
sion being reconsidered is wrong before it applies the
doctrine of stare decisis.7 In fact, and as I explain later
in this part of my opinion, the stare decisis analysis
cannot be completely conducted unless the court has
determined if, and more importantly, why, the previous
decision is incorrect. Moreover, the court need not
resort to the doctrine of stare decisis if it concludes
that the previous decision is correct. See R. Fallon,
‘‘Stare Decisis and the Constitution: An Essay on Consti-
tutional Methodology,’’ 76 N.Y.U. L. Rev. 570, 570 (2001).
In such circumstances, the court can simply affirm the
case on the basis of its merits. Id.I do not mean to suggest, however, that the wrong-
ness of the previous decision is part of the stare decisis
calculus. It is not. Indeed, it is fundamental that we
avoid conflating the merits and stare decisis considera-
tions. The reasons should be obvious. If a case could
be overruled simply because a majority of justices
believes it had reached the wrong conclusion, prece-
dent would have no independent value, and stare decisis
would be a hollow doctrine. See F. Schauer, ‘‘Prece-
dent,’’ 39 Stan. L. Rev. 571, 575–76 (1987) (argument
based on precedent places value on past decision
merely because it was decided in past, despite present
belief that past decision was erroneous); see also Hub-
bard v. United States, 514 U.S. 695, 716, 115 S. Ct. 1754,
131 L. Ed. 2d 779 (1995) (Scalia, J., concurring in part
and concurring in the judgment) (explaining that court
must give reasons for ignoring stare decisis, ‘‘reasons
that go beyond mere demonstration that the overruled
[decision] was wrong . . . otherwise the doctrine
would be no doctrine at all’’). Moreover, the oft-
repeated adage that, ‘‘in most matters it is more
important that the applicable rule of law be settled than
that it be settled right’’; Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 406, 52 S. Ct. 443, 76 L. Ed. 815(1932) (Brandeis, J., dissenting); would be empty of
any meaning. In addition to placing too little value on
precedent, the wrongness of a previous decision should
not factor into the stare decisis calculus because it is
difficult to quantify or measure the degree of a particu-
lar decision’s wrongness. See J. Fisch, ‘‘The Implica-
tions of Transition Theory for Stare Decisis,’’ 13 J.
Contemp. Legal Issues 93, 105 (2003). The ability to
distinguish between the degrees of wrongness of previ-
ous cases becomes necessary, however, if wrongness
is part of the stare decisis calculus. That is, if a lesser
degree of error is tolerable but a higher degree of error
is intolerable, some mechanism is needed to measure
and distinguish degrees of error; but developing such
a mechanism is prohibitively difficult. See id. Thus,
when we reconsider a previous decision of this court,
the stare decisis framework is applied only after we
have determined that the previous decision is incorrect,
irrespective of how wrong it is. Moreover, the merits
determination is independent of, and has no impact on,
the stare decisis analysis.8
Under this construction of stare decisis, the fact that
Chief Justice Rogers and Justice Robinson rely on the
doctrine of stare decisis to uphold Santiago suggests
that they both believe that decision is wrong. Of course,
there can be no question that Chief Justice Rogers
believes the decision in Santiago is wrong. I am unsure
whether Justice Robinson believes Santiago is wrong
because he does not tell us, but, because he did not
join Justice Palmer’s concurrence and instead relies on
stare decisis rather than the merits to uphold Santiago,
I am left to conclude that he likely does believe that
Santiago was incorrectly decided.9
The doctrine of stare decisis naturally raises the fol-
lowing question: what justifies a doctrine that counsels
this court to adhere to certain erroneous decisions? We
have repeatedly stated that ‘‘[t]he doctrine is justified
because it allows for predictability in the ordering of
conduct, it promotes the necessary perception that the
law is relatively unchanging, it saves resources and it
promotes judicial efficiency.’’ Conway v. Wilton, supra,
238 Conn. 658–59. Moreover, ‘‘it gives stability and con-
tinuity to our case law.’’ Id., 658. Undoubtedly, this
desire to achieve stability and consistency in our law is
born from respect for the rule of law. See, e.g., Planned
Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674(1992) (‘‘[i]ndeed, the very concept of the rule of law
underlying [the United States] [c]onstitution requires
such continuity over time that a respect for precedent
is, by definition, indispensable’’). If fidelity to or con-
cern for the rule of law justifies the doctrine of stare
decisis, at least in part, then it is important that we
understand what is encompassed in that ideal. At its
essence, the rule of law is the concept that governmen-
tal power is exercised under, and constrained by, a
framework of laws, not individual preference or ideol-
ogy. J. Waldron, ‘‘Stare Decisis and the Rule of Law: A
Layered Approach,’’ 111 Mich. L. Rev. 1, 3 (2012). As
Professor Randy J. Kozel aptly observed, this idea can
helpfully be understood by comparison to its converse,
the rule of individuals; see R. Kozel, ‘‘Settled Versus
Right: Constitutional Method and the Path of Prece-
dent,’’ 91 Tex. L. Rev. 1843, 1857 (2013); and Thomas
Paine captured the concept when he proclaimed ‘‘that
so far as we approve of monarchy, that in America the
law is king. For as in absolute governments the King
is law, so in free countries the law ought to be king;
and there ought to be no other.’’ T. Paine, Common
Sense and Other Writings (2005) p. 44. Thus, adherence
to the doctrine of stare decisis creates the appearance,
and at times the reality, that this court is guided and
constrained by the law—both written law, the constitu-
tion and statutes, and decisional law, the rules set forth
in the decisions of this court—and not the whim of its
individual members.
What should be obvious, however, is that application
of stare decisis can come into tension with the rule
of law as well. For example, if this court, upon later
consideration, concludes that our earlier reading of a
constitutional provision was incorrect but nonetheless
decides, due to stare decisis, to follow that erroneous
reading, we have entrenched the rule of individuals—
those individuals who comprised this court at the time
of the earlier decision—rather than the rule of law. See
J. Waldron, supra, 111 Mich. L. Rev. 7. This tension is
particularly problematic in the context of constitutional
adjudication, in which the text of the constitution, and
not the construction given to it by this court, is the
binding and supreme law.10 Id. After all, and in the words
of Justice Douglas, a judge must remember, ‘‘above all
else that it is the [c]onstitution [that] he swore to sup-
port and defend, not the gloss [that] his predecessors
may have put on it.’’ W. Douglas, ‘‘Stare Decisis,’’ 49
Colum. L. Rev. 735, 736 (1949).
Perhaps because of this inherent and unavoidable
tension, we have long held that stare decisis is not an
absolute impediment to change in our case law. See,
e.g., White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195(1990). Instead, we have called for a balancing of the
benefits and burdens of stare decisis, noting we ‘‘should
seriously consider whether the goals of stare decisis
are outweighed, rather than dictated, by the prudential
and pragmatic considerations that inform the doctrine
to enforce a clearly erroneous decision.’’ (Internal quo-
tation marks omitted.) State v. Salamon, supra, 287
Conn. 520; see also State v. Miranda, 274 Conn. 727,
733, 878 A.2d 1118 (2005) (‘‘there are occasions when
the goals of stare decisis are outweighed by the need to
overturn a previous decision in the interest of reaching a
just conclusion in a matter’’). Unfortunately, we have
never taken the opportunity to articulate the prudential
and pragmatic considerations or to outline the benefits
and burdens of stare decisis. It is this task to which I
now turn.
The remainder of this part of the opinion articulates
a principled balancing test this court should employ
when determining whether to afford stare decisis effect
to a previous decision that it is convinced is wrong or
about which it has serious doubts. The balancing test
I advocate includes four factors, one benefit and three
costs. On the benefit side of the scale is the protection
of reliance interests. The countervailing weights, that
is, the costs of adhering to an erroneous judicial deci-
sion, are the (a) cost of error correction, (b) cost to
the constitutional order, and (c) cost of unworkability
or uncertainty. Each of these four factors will be dis-
cussed in this opinion. The analysis of each factor and
the weighing of the benefit factor against the cost fac-
tors occur only after the court has concluded that the
precedent in question is wrong.
1
Benefit of Stare Decisis—Protection
of Reliance Interests
At first glance, it would appear that the benefits of
stare decisis are stability and constancy in the law. See,
e.g., Conway v. Wilton, supra, 238 Conn. 658 (‘‘[t]his
court has repeatedly acknowledged the significance of
stare decisis to our system of jurisprudence because it
gives stability and continuity to our case law’’). We have
acknowledged, however, that adherence to precedent,
and thereby stability and constancy, ‘‘is not an end in
and of itself’’; (internal quotation marks omitted) State
v. Salamon, supra, 287 Conn. 520; and, therefore, there
must be some other interest protected or policy served
by stability and consistency that is the benefit of
stare decisis.
Upon reviewing our cases and the academic literature
on stare decisis, I conclude that the benefit served by
stare decisis is the protection of reliance interests.11 In
fact, two of the stare decisis justifications we have
articulated in the past indirectly acknowledge the
importance of protecting reliance interests. As I noted
previously in this opinion, stare decisis is justified
because ‘‘it allows for predictability in the ordering of
conduct . . . [and] promotes the necessary perception
that the law is relatively unchanging . . . .’’ Conway
v. Wilton, supra, 238 Conn. 658–59. Thus, as long as the
law is predictable and relatively constant, citizens can
rely on it in planning their affairs.
We have also directly recognized the importance of
reliance interests when deciding whether to apply the
doctrine of stare decisis. For example, in cases involv-
ing tort or criminal law, we often remark that ‘‘[t]he
arguments for adherence to precedent are least compel-
ling . . . when the rule to be discarded may not be
reasonably supposed to have determined the conduct
of the litigants . . . .’’ (Internal quotation marks omit-
ted.) State v. Salamon, supra, 287 Conn. 523; accord
O’Connor v. O’Connor, 201 Conn. 632, 644, 519 A.2d 13(1986). In Salamon, this court was confronted with
whether an accused could be convicted under a kidnap-
ping statute, General Statutes § 53a-94, even though the
restraint involved in the kidnapping of the victim was
incidental to the commission of another criminal
offense; see State v. Salamon, supra, 513; a question
we had answered in the affirmative more than thirty
years earlier and reaffirmed on a number of occasions.
See, e.g., State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d
263 (1977), overruled by State v. Salamon, 287 Conn.
509, 949 A.2d 1092 (2008). On that occasion, however,
the court decided to reexamine, and ultimately to depart
from, our settled construction of the kidnapping statute.
See State v. Salamon, supra, 542. Justice Palmer, writ-
ing for a majority of the court in Salamon, reasoned that
the court was justified in reexamining and abandoning
Chetcuti and its progeny, in part, because there was
no reason to believe that criminals had adjusted their
conduct on the basis of the court’s interpretation of
criminal statutes. See id., 523 (‘‘[p]ersons who engage
in criminal misconduct . . . rarely if at all will . . .
give thought to the question of what law would be
applied to govern their conduct if they were to be appre-
hended for their violations’’ [internal quotation marks
omitted]). The lack of reliance, Justice Palmer stated,
weighed in favor of reconsidering the court’s past
cases. Id.This court similarly cited reliance, or the lack thereof,
in overruling prior precedent in Conway v. Wilton,
supra, 238 Conn. 677. In Conway, we reconsidered
whether municipalities and their employees were own-
ers under the Connecticut Recreational Land Use Act
(act), General Statutes (Rev. to 1995) § 52-557f et seq.,
and, therefore, entitled to immunity from liability for
injuries occurring on land the municipality holds open
to the public for recreational use. Id., 655, 657–58. Only
four and one-half years earlier, we had determined that
the statute’s language was clear and unambiguous and
held that municipalities were owners for purposes of
the act. See Manning v. Barenz, 221 Conn. 256, 260,
603 A.2d 399 (1992), overruled by Conway v. Wilton,
238 Conn. 653, 655, 680 A.2d 242 (1996). Nevertheless,
in Conway, we concluded that the act should not apply
to municipal landowners and overruled Manning; Con-
way v. Wilton, supra, 655, 676; reasoning, in part, that
it could not reasonably be supposed that the defendant
municipality tailored its conduct due to our holding in
Manning. Id., 677. Moreover, we noted that there was
no evidence that municipalities across the state had
decided to forgo liability insurance under the assump-
tion that Manning shielded them from liability.12 Id.
Fostering and protecting reliance interests are
important because, as Professor Jeremy Waldron has
commented, creating a sense that the law can be relied
on allows people to better exercise their liberty. J. Wal-
dron, supra, 111 Mich. L. Rev. 9. Although legal con-
straint is inescapable in the modern era, freedom is
nonetheless possible, Professor Waldron states, ‘‘if peo-
ple know in advance how the law will operate, and how
they must act to avoid its having a detrimental impact
on their affairs.’’ J. Waldron, ‘‘The Concept and the Rule
of Law,’’ 43 Ga. L. Rev. 1, 6 (2008). Stated differently,
if the law is relatively unchanging and known, individu-
als can anticipate, when facing new situations, how
they will be treated by the law and plan their con-
duct accordingly.13
Given the importance of reliance interests, such inter-
ests must be a central focus of our stare decisis calculus.
Thus, we need to develop a framework in which to
directly analyze what, if any, reliance interests a particu-
lar court precedent has engendered. The starting point,
of course, is identifying the forms of reliance interests
that may exist. One commentator has aptly organized
these interests into four categories: specific reliance;
governmental reliance; court reliance; and societal reli-
ance. See R. Kozel, ‘‘Stare Decisis as Judicial Doctrine,’’
67 Wash. & Lee L. Rev. 411, 452 (2010).
Specific reliance arises when an individual or group
conforms its behavior to rules announced by the court.
For example, the United States Supreme Court has long
held that stare decisis has special force in cases involv-
ing contract or property law. See, e.g., Payne v. Tennes-
see, supra, 501 U.S. 828 (‘‘[c]onsiderations in favor of
stare decisis are at their acme in cases involving prop-
erty and contract rights, where reliance interests are
involved’’); see also T. Lee, ‘‘Stare Decisis in Historical
Perspective: From the Founding Era to the Rehnquist
Court,’’ 52 Vand. L. Rev. 647, 691–98 (1999) (tracing
property and contract distinction back to early nine-
teenth century United States Supreme Court cases).
That court has explained that cases announcing prop-
erty or contract rules are entitled to greater stare decisis
weight because ‘‘[everyone] would suppose that after
the decision of [the] court, in a matter of that kind,
[they] might safely enter into contracts, upon the faith
that rights thus acquired would not be disturbed.’’ Pro-
peller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443,
458, 13 L. Ed. 1058 (1851). It has also been observed
that upsetting cases that establish rules of property
can be injurious to many titles because, in conveying
property, individuals rely on existing property and con-
tract rules. See, e.g., United States v. Title Ins. & Trust
Co., 265 U.S. 472, 486–87, 44 S. Ct. 621, 68 L. Ed. 1110(1924); see also, e.g., Ozyck v. D’Atri, 206 Conn. 473,
484, 538 A.2d 697 (1988) (Healey, J., concurring) (noting
reason ‘‘stare decisis applies with special force to deci-
sions affecting titles to land is the special reliance that
such decisions mandate’’). Conversely, we have opined
that cases establishing rules of tort or criminal law
receive diminished stare decisis weight, reasoning that
such cases, particularly unintentional tort cases, are
unlikely to influence individual behavior. See, e.g., State
v. Salamon, supra, 287 Conn. 523 (‘‘[p]ersons who
engage in criminal misconduct, like persons who
engage in tortious conduct, rarely if at all will . . . give
thought to the question of what law would be applied
to govern their conduct if they were to be apprehended
for their violations’’ [internal quotation marks omit-
ted]); O’Connor v. O’Connor, supra, 201 Conn. 645(abandoning this court’s categorical allegiance to place
of injury test when determining what law should apply
in tort cases, reasoning that departing from precedent
would not upset any expectations of litigants because
they will rarely ‘‘give thought to the question of what
law would be applied to govern their conduct if it were
to result in injury’’ [internal quotation marks omitted]).
The Executive and Legislative Branches, along with
local governments, also rely on this court’s decisions.
In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003),
Chief Justice Sullivan invoked legislative reliance in his
dissent, urging the court to adhere to the status quo.
See id., 348–50 (Sullivan, C. J., dissenting). In Craig,
this court created a common-law negligence action
against a purveyor of alcohol who negligently serves
alcohol to an intoxicated person who subsequently
causes injuries to another person. See id., 314, 339–40.
Prior to our holding in Craig, however, the general rule
provided by the common law was that no such action
shall lie against a purveyor of alcohol. See id., 322.
Moreover, in Quinnett v. Newman, 213 Conn. 343, 344,
568 A.2d 786 (1990), overruled in part by Craig v. Dris-
coll, 262 Conn. 312, 813 A.2d 1003 (2003), this court
held that Connecticut’s Dram Shop Act occupied the
field and therefore provided the injured person’s sole
remedy against a purveyor of alcohol for injuries caused
by an intoxicated person. Nonetheless, the court in
Craig decided to overrule Quinnett and the common
law’s long-standing general rule. Craig v. Driscoll,
supra, 329. Chief Justice Sullivan contended, however,
that the court should continue to decline to recognize
the common-law cause of action and abide by the hold-
ing in Quinnett, reasoning that the legislature had
enacted the Dram Shop Act in reliance on this court’s
common-law jurisprudence. Id., 344, 349–50 (Sullivan,
C. J., dissenting). In crafting a recovery scheme, the
legislature was aware that no common-law cause of
action ever had existed for plaintiffs to recover for the
negligent service of alcohol, and, therefore, the Dram
Shop Act reflected the legislature’s judgment as to when
such recovery should be allowed. See id., 349 (Sullivan,
C. J., dissenting). This court undermined the legislative
scheme, however, by recognizing a common-law cause
of action. See id. In such cases, according to Chief
Justice Sullivan, the legislature’s reliance on this court’s
prior precedent counseled strongly in favor of applying
stare decisis.14 Id., 349–50 (Sullivan, C. J., dissenting).
The judiciary, including this court, also relies on our
precedent. Under this form of reliance, our cases, as
well as those of the Appellate Court and the trial courts,
build on one another, resulting in the development of
a doctrinal structure. Cf. R. Kozel, supra, 67 Wash. &
Lee L. Rev. 459. For example, this court has established
a state double jeopardy jurisprudence that is founded
on our recognition in Kohlfuss v. Warden, 149 Conn.
692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.
Ct. 298, 9 L. Ed. 2d 235 (1962), that, despite the absence
of a double jeopardy clause in the state constitution,
the due process clause of article first, § 9, of the Con-
necticut constitution of 1818, which now appears in
article first, § 8, of the Connecticut constitution of 1965,
embraces a common-law rule against double jeopardy.
The final form of reliance is societal reliance. Unlike
the three previous forms of reliance, societal reliance
is concerned with perception, not behavior. A court’s
precedents, particularly its constitutional precedents,
have the ability to shape a society’s ‘‘perceptions about
our country, our government, and our rights.’’ R. Kozel,
supra, 67 Wash. & Lee L. Rev. 460. The United States
Supreme Court case of Dickerson v. United States,
supra, 530 U.S. 428, is instructive. In Dickerson, the
court considered, among other things, whether
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), should be overruled insofar as it
requires the suppression of an arrestee’s unwarned
statements. See Dickerson v. United States, supra, 432,
443. Chief Justice William Rehnquist, writing for the
court, declined to do so. Id., 443. Instead, he noted
that the stare decisis principles weighed heavily against
departing from Miranda because ‘‘Miranda has
become embedded in routine police practice to the
point where the warnings have become part of our
national culture.’’ Id. Undoubtedly, the focal point was
not on individual arrestees and police officers and
whether they order their behavior on the basis of
Miranda. Instead, the court’s attention was drawn to
how Miranda warnings have pervaded American cul-
ture. See id. The court clarified this point in Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485(2009), in referring to Dickerson: ‘‘In observing that
Miranda has become embedded in routine police prac-
tice to the point where the warnings have become part
of our national culture . . . the [c]ourt was referring
not to police reliance on a rule requiring them to provide
warnings but to the broader societal reliance on that
individual right.’’ (Citation omitted; internal quotation
marks omitted.) Id., 349–50. As Dickerson suggests, the
rules, principles, and rights established by court prece-
dent can become part of the citizenry’s consciousness.
See R. Kozel, supra, 67 Wash. & Lee L. Rev. 462. Dis-
turbing such precedents may affect our understanding
of government and the relationship between citizens
and the government. See id.After the court has assessed and articulated the reli-
ance interests of each category just described, it should
turn to an examination of the disruption that would
be caused if the precedent relied on is overruled. An
assessment of the disruptive effect of overruling prece-
dent considers the adjustment costs that would arise
from the need to modify behavior tailored to conform
with the precedent the court is contemplating overrul-
ing. See R. Kozel, ‘‘Precedent and Reliance,’’ 62 Emory
L.J. 1459, 1486 (2013). Questions the court might con-
sider when evaluating disruption costs include whether
the overruling would (1) create a need for significant
restructuring of corporate organizations or commercial
transactions, (2) call into question the enforceability of
contracts or title to real property, (3) cause a significant
reordering of individual conduct, including risk shifting
arrangements such as insurance policies, (4) upset a
duly enacted legislative scheme and require the devel-
opment of a new regulatory regime, (5) undermine the
foundational decisions of a robust judicial doctrine, and
(6) affect the broader, societal understanding of our
constitutional system. Assessing the reliance engen-
dered by a previous case and the costs that would arise
from overruling such a case is the first step this court
should undertake in balancing the benefit and costs of
applying stare decisis to that case.
2
Costs of Stare Decisis
Once the benefit of applying stare decisis and adher-
ing to precedent has been uncovered and quantified,
the court must consider the burdens of applying stare
decisis. Generally speaking, the burdens of applying
stare decisis are the costs that result from perpetuating
judicial error. As I noted previously in this opinion,
there are three costs for the court to consider, and I
will consider each in turn.
When evaluating the costs that would result from
preserving judicial error, we should begin by consider-
ing the nature of the judicial error. This involves a two
part test. First, we must ask whether the error was
constitutional or statutory, because the cost of error
will vary depending on the nature of the error. This I
will call the cost of error correction. Second, if the error
is constitutional, we must consider if and how such
error disrupts the constitutional order. This will be
referred to as the cost to the constitutional order.
a
Cost of Error Correction
The United States Supreme Court has long recog-
nized that stare decisis has diminished force when the
precedent in question interprets or applies the constitu-
tion, as opposed to a statute. See, e.g., Burnet v. Coro-
nado Oil & Gas Co., supra, 285 U.S. 406–407 (Brandeis,
J., dissenting) (‘‘in cases involving the [f]ederal [c]onsti-
tution . . . [the] [c]ourt has often overruled its earlier
decisions’’); see also Agostini v. Felton, 521 U.S. 203,
235, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (noting
that stare decisis ‘‘is at its weakest’’ in constitutional
adjudications). The court has justified this constitu-
tional-statutory dichotomy by explaining the relative
difficulty of correcting constitutional error as compared
to correcting statutory error. See, e.g., Agostini v. Fel-
ton, supra, 235. When a court reaches an erroneous
conclusion about the meaning or application of the
constitution, such an error can be corrected only by
judicial decision or constitutional amendment. See id.Conversely, when a court improperly interprets a stat-
ute, the legislature, through a simple majority, can cor-
rect such error. See Burnet v. Coronado Oil & Gas Co.,
supra, 406 (Brandeis, J., dissenting). At least one justice
of this court has, in the past, approved of this reasoning.
See State v. Lawrence, supra, 282 Conn. 187 (Katz,
J., dissenting) (‘‘it is well recognized that, in a case
involv[ing] an interpretation of the [c]onstitution . . .
claims of stare decisis are at their weakest . . . where
[the court’s] mistakes cannot be corrected by [the legis-
lature]’’ [internal quotation marks omitted]). Although
the court does not discuss it in these terms, it can fairly
be said that the preservation of judicial constitutional
error imposes greater costs than the preservation of
statutory error due to the limited recourse of the people
to correct such error. See K. Lash, ‘‘The Cost of Judicial
Error: Stare Decisis and the Role of Normative Theory,’’
89 Notre Dame L. Rev. 2189, 2195–97 (2014). Professor
Kurt T. Lash has explained that, ‘‘[b]ecause remedying
judicial errors involving constitutional interpretation
remains beyond the ordinary reach of the democratic
process, this heightens the potential ‘cost’ of such
errors.’’ Id., 2196. The cost of correcting constitutional
error in Connecticut is particularly significant due to
our onerous constitutional amendment process, which
allows Connecticut citizens to directly call for constitu-
tional change only once every twenty years.15
b
Cost to the Constitutional Order
The preservation of judicial constitutional error may
result in costs beyond those arising from the difficulty
of correcting such an error. Such costs result when a
judicial decision alters or disturbs the state polity. A
brief digression into our constitutional history and the-
ory is needed to better understand this harm.
A fundamental principle of American government and
constitutions, including the constitutions of the many
states, is popular sovereignty. See A. Amar, ‘‘The Central
Meaning of Republican Government: Popular Sover-
eignty, Majority Rule, and the Denominator Problem,’’
65 U. Colo. L. Rev. 749, 749–51 (1994). In essence, popu-
lar sovereignty is the theory that, in a free society, the
people hold the power, and the government has only
that power the people delegate to it. Id., 762–66
(explaining founding era understanding of republican
government). The delegation of power occurs through
the adoption of a constitution, which establishes the
government and delegates the power among the
branches. See id., 764. Through this delegation, the peo-
ple may reserve certain rights to themselves, limiting
the government’s power to act in particular areas. Also
central to popular sovereignty is the people’s ability to
alter or abolish the established government, a right they
exclusively hold. See id., 749, 762–64. That is, only the
people, and not the governmental institutions they have
ordained, can alter the structure and powers of govern-
ment. See id.
The colonial citizens of Connecticut were no strang-
ers to the ideals embodied in popular sovereignty. In
fact, evidence dating back to the 1630s demonstrates
that the populace of the Connecticut colony adopted
the popular sovereignty principles. See, e.g., W. Horton,
‘‘Law and Society in Far-Away Connecticut,’’ 8 Conn.
J. Intl. L. 547, 549–50 (1993). In a 1638 sermon, Puritan
Reverend Thomas Hooker expounded on these princi-
ples. See H. Cohn, ‘‘Connecticut Constitutional History:
1636–1776,’’ 64 Conn. B.J. 330, 332–33 (1990). Specifi-
cally, Reverend Hooker stressed that the civil power
resided with the people, the people had the authority
to elect their political leaders, and the people estab-
lished the limits within which their political leaders
could act. See id. This sermon, it is argued by many,
was the catalyst of the Fundamental Orders of 1639.16
See, e.g., id., 333–34; see also W. Horton, The Connecti-
cut State Constitution: A Reference Guide (2d Ed. 2012)
p. 5. The Fundamental Orders contained ‘‘the germs
of a great principle—the principle of self-government
based on a limited measure of popular control.’’ (Inter-
nal quotation marks omitted.) H. Cohn, supra, 335. This
form of government and the popular sovereignty princi-
ples on which it was founded continued under the Char-
ter of 1662,17 after Connecticut’s signing of the
Declaration of Independence in 1776,18 and are embod-
ied in the 1818 and 1965 state constitutions. Indeed, the
principle is explicitly expressed in article first, § 2, of
the Connecticut constitution: ‘‘All political power is
inherent in the people, and all free governments are
founded on their authority . . . .’’
With this historical and theoretical background in
mind, I return to discussing the costs inherent in follow-
ing erroneous constitutional decisions. In constitutional
adjudication, we must take special care to ensure that
we are enforcing the will of the people as expressed
in their constitution. Because the ultimate power rests
in the people and has been allocated to the separate
branches of government, it is our duty to ensure that
each branch, including the judiciary, does not usurp the
power of its coequal branches. It is especially important
that we take pains to restrain this branch, because a
usurpation of legislative or executive power is, in effect,
a usurpation of the people’s power. It is true that the
constitution entrenches certain fundamental principles,
such as the freedom of the press, to immunize them
from majoritarian control; however, most political and
policy questions have been left to democratic rule, that
is, majority control through the elected branches of
government. In such cases, the people exercise their
power and carry out or vindicate their will at the ballot
box. Thus, it is essential that we not immunize from
majoritarian control those questions that the people
have left to the political process. To do so would be to
misappropriate the power of the people.19
When we erroneously interpret or apply the constitu-
tion in ways that upset the governmental structure or
intrude on the democratic process by frustrating the
majoritarian government, we levy a cost on the constitu-
tional order. See, e.g., K. Lash, ‘‘Originalism, Popular
Sovereignty, and Reverse Stare Decisis,’’ 93 Va. L. Rev.
1437, 1442 (2007). Professor Lash provides a taxonomy
that is helpful in understanding and evaluating such
errors and the costs they impose. See id., 1457–61. He
organizes judicial error in constitutional cases into two
broad parameters, namely, intervention versus nonin-
tervention, and immunity versus allocation. Id., 1454.
He explains his classifications as follows: ‘‘First, courts
may wrongfully intervene in the political process or
they may wrongfully fail to intervene. Second, judicial
error may involve a question of immunity (whether the
government has any power over a given subject) or a
question of allocation (which governmental institution
has power over a given subject).’’ (Emphasis omitted.)
Id. The degree of harm imposed on popular sovereignty
and the constitutional order, of course, varies with the
type of error; see id., 1457–61; and, as Professor Lash
explains, depends on how intrusive the error is on the
political process. See id., 1456–57.
I will begin with errors of allocation that, generally
speaking, impose the smallest amount of harm on our
constitutional order. See id., 1457–58. Allocation cases
are those involving questions of separation of powers.
See id., 1455. When the court erroneously allocates
power to the wrong branch of government, the harm
is minimal because, in most cases, the political process
can correct such error. See id., 1457. For example, if
we incorrectly determine that the Executive Branch
has a power the constitution does not grant that branch,
the people can reject such error by electing a governor
who will not exercise the wrongly allocated power. Id.,
1457–58. Allocation errors that appropriate power to
the judiciary from the political branches are more prob-
lematic due to the court’s insulation from the political
process. See id., 1455, 1458. In such cases, the costs
inflicted on the constitutional system are dependent on
the ability of the other branches to correct such error.
See id., 1458. For example, if the judicial usurpation of
authority can be corrected through the General Assem-
bly’s ability to define the jurisdiction of the court, the
costs are minimal. See id.; see also Conn. Const., art.
V, § 1 (‘‘[t]he powers and jurisdiction of these courts
shall be defined by law’’). If, however, the political pro-
cess cannot correct such error, the costs are significant
and of the same kind as discussed in erroneous cases
of immunity intervention, which I discuss subsequently
in this opinion. See K. Lash, supra, 93 Va. L. Rev. 1458.
Cases of immunity involve the question of whether
a particular issue is subject to political resolution; see
id.; that is, whether the constitution has entrenched a
principle, such as the freedom of the press, or left a
question to the democratic process, such as general
economic legislation. Immunity errors come in two
forms, nonintervention and intervention. See id., 1459.
A nonintervention error imposes fewer costs on the
constitutional order than does an intervention error.
See id. Erroneous nonintervention occurs when the
court fails to intervene, thereby overlooking a principle
entrenched in the constitution and leaving it to the
political process. See id., 1454, 1459. Such error does
undermine the legitimacy of our constitutional system
by allowing a simple majority in the General Assembly
to trump the entrenched will of the people; nonetheless,
the costs generated by erroneous nonintervention are
limited because the issue remains subject to majority
control. See id., 1459. Thus, if the court fails to protect
a right entrenched in the constitution, the people can
mobilize and, through the General Assembly, act to
protect such right through legislation. See id.
On the other hand, intervention error occurs when
the court entrenches a principle in the constitution that,
under a proper reading of the document, has no consti-
tutional status. See id., 1455. Such error inflicts the
greatest costs on popular sovereignty and the constitu-
tional order because it often removes from the political
process an issue that the constitution left to that pro-
cess. See id., 1460–61. Worse yet, the people have only
one avenue to correct such error, namely, constitutional
amendment, which requires either supermajoritarian
action by the General Assembly or awaiting the elector-
ate’s next opportunity to call a constitutional conven-
tion.20 See footnote 15 of this opinion.
In sum, judicial error in constitutional cases can frus-
trate the ideals of popular sovereignty and majority
rule, thereby disturbing the constitutional order. The
costs imposed by such a disruption should factor into
this court’s stare decisis calculus. Cases that involve
the greatest costs are those of erroneous immunity
intervention and erroneous usurpation of power by the
court; in those cases, such usurpation cannot be cor-
rected or mitigated by the political branches.21
c
Cost of Unworkability or Uncertainty
Perpetuating unworkable rules or uncertain judicial
decisions also imposes costs. This principle naturally
flows from the justifications for stare decisis. That is,
if stare decisis is a defensible doctrine because it creates
predictability and stability in the law; see, e.g., Conway
v. Wilton, supra, 238 Conn. 658; then decisions that
create uncertainty ‘‘undermine, rather than promote,
the goals that stare decisis is meant to serve.’’ Johnson
v. United States, U.S. , 135 S. Ct. 2551, 2563,
192 L. Ed. 2d 569 (2015). It would be ironic to adhere to
an uncertain precedent under the guise of stare decisis.
Often, this principle arises when the court finds a pre-
viously announced rule to be unworkable or when it
discovers that a particular precedent has come into
conflict with another case or line of cases.22 There is
no reason, however, why the same principle should not
apply when a case, despite not being unworkable or
creating conflict in court jurisprudence, creates uncer-
tainty. See, e.g., Citizens United v. Federal Election
Commission, 558 U.S. 310, 379, 130 S. Ct. 876, 175 L.
Ed. 2d 753 (2010) (Roberts, C. J., concurring) (‘‘[I]f
adherence to a precedent actually impedes the stable
and orderly adjudication of future cases, its stare decisis
effect is also diminished. This can happen in a number
of circumstances, such as when the precedent’s validity
is so hotly contested that it cannot reliably function as
a basis for decision in future cases . . . and when the
precedent’s underlying reasoning has become so dis-
credited that the [c]ourt cannot keep the precedent alive
without jury-rigging new and different justifications to
shore up the original mistake.’’); United States v. Dixon,
509 U.S. 688, 711–12, 113 S. Ct. 2849, 125 L. Ed. 2d
556 (1993) (overruling earlier case in part because it
created confusion).
In summary, under this framework, the court weighs
the benefit and costs of adhering to prior cases. The
court would employ a four step test in assessing
whether to adhere to stare decisis. In step one, the
court will consider the merits of the case under recon-
sideration. If it concludes that the previous case is cor-
rect, it will reaffirm that decision on the merits, and
the inquiry will end. On the other hand, if the court
should conclude that the previous decision is wrong,
it should continue on to steps two through four. In step
two, the court will analyze the benefit of adhering to the
precedent case. This analysis involves the evaluation of
one factor, namely, the reliance interests. In assessing
whether the case being reconsidered has engendered
any reliance, the court must methodically work through
each category of reliance interests—specific, govern-
mental, court, and societal—and catalog how each
group has ordered its behavior on the basis of the erro-
neous decision. It must further assess what disruption
would result if the case is overruled. Next, in step three,
the court would evaluate the costs of adhering to the
erroneous decision, which requires the evaluation of
three factors. Those factors include the (a) costs of
correcting the judicial error, (b) costs the error imposes
on the constitutional order, and (c) costs of unworkabil-
ity or uncertainty. After the costs have been identified
and evaluated, the court will move to the fourth and
final step: the court would compare the benefit to the
costs of adhering to the decision. If the reliance interests
and the disruption costs that would arise from overrul-
ing the decision outweigh the costs of perpetuating
judicial error, the previous decision will be afforded
stare decisis effect, and the court will be bound to
follow it. If, however, the costs of preserving judicial
error outweigh any reliance interests, the decision
under reconsideration will be afforded no stare decisis
effect, and it should be overruled.
B
Application of Principled Doctrine
of Stare Decisis to Santiago
The court’s adoption of the four step test outlined in
part I A of this opinion would result in a more consistent
and principled application of the doctrine of stare deci-
sis. In fact, applying this approach would shield this
court from the appearance that the doctrine of stare
decisis is used as a tool to reach a preferred result. I
will now apply this framework in the present case to
consider whether stare decisis should be applied to our
decision in Santiago.
1
Step One: The Merits of Santiago
As I previously observed, it would serve no purpose
to lengthen this dissent with further explanation as to
why Santiago was wrongly decided. Instead, it suffices
to say that, for the reasons Chief Justice Rogers, Justice
Espinosa, and I provided in our dissenting opinions in
Santiago, that decision was wrong then and continues
to be wrong now.
2
Step Two: The Lack of Reliance
Santiago Has Engendered
In part I A of this opinion, I explained that reliance
interests can generally be placed into four categories:
specific reliance; governmental reliance; court reliance;
and societal reliance. I will consider each category in
turn.
It cannot genuinely be argued that Santiago has gar-
nered any specific reliance. The individuals currently
on death row have not acted in reliance on our holding
in Santiago. Indeed, the conduct that resulted in their
convictions and death sentences occurred long before
we issued our decision in Santiago. Moreover, we have
often stated that stare decisis has less force in criminal
cases precisely because those cases do not beget reli-
ance interests. E.g., State v. Salamon, supra, 287 Conn.
523. For example, Justice Palmer wrote for the majority
in Salamon: ‘‘Persons who engage in criminal miscon-
duct . . . rarely if at all will . . . give thought to the
question of what law would be applied to govern their
conduct if they were to be apprehended for their viola-
tions.’’ (Internal quotation marks omitted.) Id. Some
might suggest that there has been specific reliance on
Santiago because certain death row inmates have filed
motions to vacate their death sentences. That argument
misses the mark. The relevant conduct, the commission
of a capital crime, was committed before this court
decided Santiago. That certain inmates are now trying
to capitalize on this court’s error is simply opportu-
nistic.
There similarly has been no governmental or court
reliance. Neither the Legislative Branch nor the Execu-
tive Branch has taken action in the wake of and in
reliance on Santiago. The legislature has not enacted
a new punishment scheme for capital crimes, and the
governor has not taken steps to implement a new pun-
ishment scheme. Cf. Craig v. Driscoll, supra, 262 Conn.
349 (Sullivan, C. J., dissenting) (‘‘the doctrine of stare
decisis has particular force in this case because of the
long-standing nature of the common law [on] which
our legislature has relied in crafting the remedies avail-
able to parties such as the plaintiffs’’). Moreover, neither
this court nor any other court in this state has relied
on Santiago to decide cases. Significantly, a judicial
doctrine has not been built on the foundation of Santi-
ago. In fact, courts that have been asked to apply the
central holding of Santiago have elected to stay the
proceedings and to await our decision in the present
case.
Finally, Santiago has not amassed any societal reli-
ance. As I discussed previously, societal reliance refers
to the people’s perception of our constitutional system
and the relationship between themselves and govern-
ment. The people of Connecticut have hardly had time
to absorb our decision in Santiago, and, thus, there has
been little time for that decision to become part of
Connecticut’s consciousness. Santiago simply has not
garnered, at least presently, the same level of social
and historical significance as the United States Supreme
Court’s decisions in, for example, Brown v. Board of
Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873(1954), or Miranda v. Arizona, supra, 384 U.S. 436, and
it would be disingenuous to suggest otherwise. The
principles expounded on in Brown have become part
and parcel of who we are as a society, and Miranda is
central to the people’s understanding of their relation-
ship with law enforcement. It cannot seriously be sug-
gested that Santiago has reached the same, or even
similar, status. Whether the people of this state and
country believe that capital punishment is, in all cases
and under all circumstances, unconstitutional is far
from a foregone conclusion, and, therefore, Santiago
does not represent a foundational legal norm.
Clearly, there is not a scintilla of reliance on Santiago.
Neither society nor the government has changed its
behavior to comport with that decision. Moreover, San-
tiago is far from being part of our state consciousness.
Even if it could be argued that there has been some
reliance on Santiago, such reliance would surely be
unreasonable. This court’s decision in Santiago was
released August 25, 2015, at a time when the present
appeal was pending. On September 4, 2015, the state
filed a motion for argument and reconsideration of our
decision in Santiago, a motion we denied on October
7, 2015. See State v. Santiago, supra, 319 Conn. 912. On
that very day, we also ordered supplemental briefing in
this case, addressing, among other things, the effect of
the judgment in Santiago. Thus, in an apparent moment
of double speak, this court declined to reconsider San-
tiago and called its legitimacy into question. What’s
more, the judgment in Santiago was not even final when
we ordered supplemental briefing in this case. See State
v. Santiago, 319 Conn. 935, 125 A.3d 520 (2015) (denying
state’s motion for stay of judgment on October 30, 2015).
In light of the complete lack of reliance on Santiago,
there is no need to consider the disruptive effect that
overruling Santiago would have. Obviously, if there
has been no reliance, there are no reliance interests
to disrupt.
3
Step Three: Assessing the Costs of
Perpetuating Santiago’s Error
Because there has not been even the slightest bit of
reliance on Santiago, only the most trivial of costs will
be necessary to tip the scale in favor of not affording
stare decisis effect to Santiago. The costs of preserving
Santiago, however, are stifling, not trivial. I will address
each of the three costs outlined previously in this opin-
ion. Those costs are the costs of error correction, costs
to the constitutional order, and costs of unworkability
or uncertainty.
a
The Uncertainty of Santiago
For the sake of brevity and clarity, I will first consider
the creation of uncertainty. There is a great irony in
arguing that the dictates of stare decisis would have this
court stand by a previous case that creates uncertainty.
Santiago is such a case. I do not suggest—nor could
I—that Santiago announced an unclear rule of law or
a test that will be unworkable in future cases. Nonethe-
less, the majority opinion in that case created an
immense ambiguity, an ambiguity that has left a dark
cloud of uncertainty over the powers of government.
The uncertainty arises from the majority’s mode of
analysis. In order to determine that the death penalty
is now offensive to our state constitution, the majority
employed a hybrid analysis of its own creation. As I
noted in my dissent in Santiago, the majority’s
approach in that case fell somewhere between a per
se analysis and a statutory analysis; State v. Santiago,
supra, 318 Conn. 342 (Zarella, J., dissenting); and, under
that approach, the majority reached the amorphous
conclusion that, in light of the legislature’s adoption of
P.A. 12-5, the death penalty no longer comports with the
state’s contemporary standards of decency, no longer
serves any legitimate penological purposes, and, there-
fore, is prohibited by the state constitution. See id., 9.
I admit that parsing the 140 page majority opinion in
Santiago can be a difficult and, at times, perplexing
task. After giving that decision careful, thorough, and
thoughtful consideration, however, I concluded that the
majority had not determined that the death penalty is
per se unconstitutional, and the majority in Santiago
had not disputed that conclusion. See id., 341–42 (Zare-
lla, J., dissenting). Although the majority in Santiago
never explicitly states that its holding was not per se,
it seemed to suggest as much. For example, in a foot-
note, the majority acknowledged that ‘‘society’s stan-
dards of decency need not always evolve in the same
direction. We express no opinion as to the circum-
stances under which a reviewing court might conclude,
on the basis of a revision to our state’s capital felony
statutes or other change in these indicia, that capital
punishment again comports with Connecticut’s stan-
dards of decency and, therefore, passes constitutional
muster.’’ Id., 86 n.88. A logical reading of this passage
suggests that some action short of a constitutional
amendment, such as a repeal of P.A. 12-5, would suffice
to render the death penalty constitutional in Connecti-
cut. In addition, the majority concluded its decision by
holding ‘‘that capital punishment, as currently applied,
violates the constitution of Connecticut.’’ (Emphasis
added.) Id., 140. A plurality of justices in the present
case, however, has caused me to query whether my
reading of the majority opinion in Santiago was incor-
rect. Justice Palmer, the author of the majority opinion
in Santiago, and two other members of the majority in
Santiago now maintain that, ‘‘[i]f the people of Connect-
icut believe that we have misperceived the scope of
[the state] constitution, it now falls on them to amend
it.’’ Text accompanying footnote 21 of Justice Palmer’s
concurring opinion. If, however, the holding in Santiago
was not per se, why is a constitutional amendment
necessary to reinstate capital punishment? The plurality
notes that the issue of whether capital punishment may
be reinstated in this state by means other than a consti-
tutional amendment is not before us in this case; see
footnote 21 of Justice Palmer’s concurring opinion; and,
therefore, the plurality expresses no opinion on that
question. See id. The plurality simply creates further
confusion regarding the ultimate holding in Santiago.
It is now obvious that Santiago has created a great
degree of uncertainty, and continuing that uncertainty
will impose costs. It is true that this court’s decisions
will often generate some amount of uncertainty. That
uncertainty, however, concerns whether the law
announced in a case will apply under different factual
circumstances. For example, in Campos v. Coleman,
319 Conn. 36, 57, 123 A.3d 854 (2015), this court recog-
nized a cause of action for loss of parental consortium.
The court did not decide, however, the outer limits of
that claim. See, e.g., id., 46. We did not determine
whether a stepchild, who has not been legally adopted
by his or her stepparent, would be permitted to bring
such a claim if the stepparent is injured. Id. In addition,
we left open whether the cause of action extends to
parental type relationships in which the parental figure
is not a biological or legal parent of the child. Id. Thus,
our decision in Campos created some degree of uncer-
tainty as to the extent of liability in certain tort cases.
This type of uncertainty, however, is to be expected, and
is tolerable, particularly in common-law adjudication,
where incremental development of the law is preferred.
The uncertainty created by Santiago, and evinced by
Justice Palmer’s concurring opinion in the present case,
however, is of a different kind and degree. Due to the
meandering reasoning in Santiago, members of the leg-
islature, as well as this court, are uncertain of what, if
any, authority the legislature has to enact a capital fel-
ony statutory scheme in the future. This uncertainty is
intolerable and imposes significant costs on our system
of government.
b
Santiago’s Tax on Our Constitutional Order
Closely related to the cost of this uncertainty are
the costs Santiago places on our constitutional order.
When a judicial decision erroneously immunizes an
issue from majoritarian control and mistakenly allo-
cates power to the judiciary, when such allocation can-
not be corrected by majoritarian action, it taxes our
constitutional order greatly. See K. Lash, supra, 93 Va.
L. Rev. 1458, 1460–61.
I will first address Santiago’s specious immunization
of capital punishment from majoritarian control. I will
explain how the court has created a constitutional right
when none existed. It will then be necessary, due to
the contorted reasoning of the majority in Santiago, to
consider whether the issue of capital punishment has
been removed from majoritarian control.
In concluding that the death penalty is unconstitu-
tionally cruel and unusual, the majority in Santiago
created a right that is not grounded in Connecticut’s
constitution. As I explained in my dissent in Santiago,
a cursory textual analysis of the constitution reveals
numerous references to capital punishment and capital
offenses.23 State v. Santiago, supra, 318 Conn. 353–55
(Zarella, J., dissenting). The entrenchment of these ref-
erences in our state constitution suggests that the peo-
ple of Connecticut have conferred on their government
the power to impose the ultimate punishment. More
specifically, they bestowed that authority on the legisla-
ture. See, e.g., State v. Darden, 171 Conn. 677, 679–80,
372 A.2d 99 (1976) (‘‘the constitution assigns to the
legislature the power to enact laws defining crimes and
fixing the degree and method of punishment . . .
within the limits and according to the methods therein
provided’’). The majority in Santiago swept away those
textual references by suggesting they were ‘‘incidental’’
and ‘‘merely acknowledge that the penalty was in use
at the time of drafting . . . [and] do not forever
enshrine the death penalty’s constitutional status as
standards of decency continue to evolve . . . .’’ State v.
Santiago, supra, 131. In so doing, however, the majority
ignored two important events. First, the delegates to
the 1965 constitutional convention expressly rejected
a proposed amendment that would have made capital
punishment unconstitutional. Journal of the Constitu-
tional Convention of Connecticut 1965, p. 111. Second,
in 1972, article first, § 19, of the Connecticut constitu-
tion was amended to provide that ‘‘no person shall, for
a capital offense, be tried by a jury of less than twelve
jurors without his consent.’’ (Emphasis added.) Conn.
Const., amend. IV. In light of these events, it cannot be
said that the constitutional references to capital punish-
ment are merely incidental. Together, the textual refer-
ences to capital punishment and capital crimes, and
the rejection of the proposed abolition of the death
penalty at the 1965 constitutional convention, entrench
capital punishment in our state constitution, thereby
requiring a constitutional amendment to make the death
penalty unconstitutional under all circumstances.24
Moreover, by embedding the death penalty in the state
constitution, the people expressed their opinion that
the punishment is not, and cannot be, per se unconstitu-
tional.
Although it is clear that Santiago created a right not
provided by the constitution, it is less clear whether it
immunizes capital punishment from majoritarian con-
trol. As I discussed previously in this part of my opinion,
the precise holding of Santiago is uncertain. In that
case, the majority seemed to suggest that whether the
death penalty could be imposed remained subject to
majoritarian decision. See, e.g., State v. Santiago, supra,
318 Conn. 86 n.88 (‘‘[w]e express no opinion as to the
circumstances under which a reviewing court might
conclude . . . that capital punishment again comports
with Connecticut’s standards of decency’’). In the pres-
ent case, however, Justice Palmer, along with two other
justices, suggests that, under Santiago, the death pen-
alty may be per se unconstitutional and that perhaps
capital punishment may be reinstated through constitu-
tional amendment only. See text accompanying foot-
note 21 of Justice Palmer’s concurring opinion. If this
latter reading is correct, preserving the error in Santi-
ago will impose significant costs on the constitutional
order because it has removed from the political process
a matter that the constitution has expressly left to that
process. If, on the other hand, the former reading is
correct, and capital punishment can be reinstated by
the legislature—for example, by repealing P.A. 12-5—
then the costs of this court’s error, although still exis-
tent, are less significant. This uncertainty surely has a
chilling effect on the legislature. Even if the legislature
has the authority to reinstate the death penalty, it may
be reluctant to do so for fear that such action is uncon-
stitutional under the majority’s reasoning in Santiago.
This chilling effect increases the costs that arise from
continued adherence to Santiago.
Regardless of whether Santiago immunizes capital
punishment from majoritarian control, it does impose
allocation costs on the constitutional order. Moreover,
the allocation error cannot be corrected through major-
itarian action and, therefore, levies substantial costs on
the constitutional order. As I just explained, the people
have enshrined capital punishment with constitutional
status. Furthermore, defining crime and fixing punish-
ment are part of the legislative, not judicial, power. See,
e.g., State v. Darden, supra, 171 Conn. 679–80. Thus,
by conferring the legislative power on the General
Assembly, the people determined that it is that body
who shall define capital crimes. See Conn. Const., art.
III, § 1 (‘‘[t]he legislative power of this state shall be
vested in . . . the general assembly’’). It is true that
the General Assembly, when defining crime and fixing
punishment, must act within the limits of the constitu-
tion; State v. Darden, supra, 679–80; and one limit the
constitution places on the legislature’s power to define
crime and to fix punishment is the prohibition on cruel
and unusual punishment. See, e.g., State v. Ross, 230
Conn. 183, 246, 646 A.2d 1318 (1994), cert. denied, 513
U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). In
sum, the people have determined that capital punish-
ment is, at least in certain circumstances, constitu-
tional. They expressed such belief in our constitution.
Moreover, the people granted the General Assembly
the power to define capital crimes. At the same time,
however, the people implicitly prohibited the imposi-
tion of cruel and unusual punishment, a prohibition
enforced by the Judicial Branch. Even if it is assumed,
for the sake of argument, that the constitutional provi-
sion generally prohibiting cruel and unusual punish-
ment is inconsistent with the enshrining of capital
punishment with constitutional status, it is rudimentary
that we read conflicting provisions of statutes and of
the constitution, so far as is possible, to be consistent
and to give effect to every word and provision thereof.
Thus, the most probable reading of these seemingly
conflicting commands is that the people determined
that capital punishment is a constitutional punishment
for the most heinous of crimes. In so doing, they deter-
mined that there are particular situations in which the
death penalty is a constitutional punishment. Thus,
under our current constitution, the death penalty can-
not be held unconstitutional in all cases and under
all circumstances. In addition, the people left for the
legislature the decision of which crimes shall be capital
crimes. Of course, in the exercise of that power, the
legislature could determine that it will not impose the
death penalty as a punishment for any crime. Moreover,
the legislature’s power is checked by our duty to enforce
the prohibition against cruel and unusual punishment.
In this context, our duty is limited to determinations
of whether the death penalty is unconstitutional as
applied to certain crimes or certain persons, or as car-
ried out, and not whether the death penalty, in and of
itself, is cruel and unusual. In Santiago, we exceeded
the outer bounds of this duty by determining that the
death penalty no longer comports with the state’s con-
temporary standards of decency and by concluding that
it thus can never be imposed. Our decision was not
limited to an as applied determination. Thus, we have
usurped the power of the legislature to define capital
crimes and to fix the appropriate punishment.
To compound our affront to the legislature’s power,
this court’s power grab cannot be corrected through
majoritarian action. Even if it is assumed that the legis-
lature could reinstate the death penalty by, for example,
repealing P.A. 12-5, it appears that the ultimate decision
regarding whether the constitution permits the imposi-
tion of capital punishment rests with this court. The
majority in Santiago stated: ‘‘We express no opinion
as to the circumstances under which a reviewing court
might conclude . . . that capital punishment again
comports with Connecticut’s standards of decency and,
therefore, passes constitutional muster.’’ (Emphasis
added.) State v. Santiago, supra, 318 Conn. 86 n.88.
And, in the present case, a plurality of justices suggests
that reinstating the death penalty may require a consti-
tutional amendment, but it reserves that question for
another day. See footnote 21 and accompanying text
of Justice Palmer’s concurring opinion. The majority in
Santiago contorted our constitutional order by con-
cluding that this court will decide when the death pen-
alty, in and of itself, is again constitutional. See State
v. Santiago, supra, 86 n.88. As I have explained, our
constitution enshrined capital punishment with consti-
tutional status and left to the legislature decisions
regarding if and when it should be imposed, subject to
limited, as applied, review by this court. Now, however,
the legislature cannot reinstate a capital punishment
scheme at all without the approval of this court or
perhaps, as the plurality states, only through a constitu-
tional amendment. This is an intolerable seizure of legis-
lative power by this court, an error that apparently can
be corrected through constitutional amendment only.
Thus, the only reasonable conclusion I can reach is that
continuing to follow the erroneous decision in Santiago
will levy great costs on the constitutional order of Con-
necticut because, in that decision, this court altered the
balance of power created by the people.
c
The Costs of Correcting Santiago
Are Likely Significant
Finally, I turn to the difficulty of error correction and
the costs it imposes. Erroneous constitutional decisions
create greater costs than erroneous statutory or com-
mon-law decisions because of the difficulty in correct-
ing such error. See, e.g., Agostini v. Felton, supra, 521
U.S. 235 (stare decisis ‘‘is at its weakest when [a court]
interpret[s] the [c]onstitution because [its] interpreta-
tion can be altered only by constitutional amendment
or by overruling [its] prior decisions’’). When we
improperly interpret the constitution, that error can
be corrected only by constitutional amendment or by
decision of this court. E.g., id. When, on the other hand,
we improperly interpret or apply a statute or common-
law rule, the legislature can correct our mistake through
simple, majoritarian action. Thus, because Santiago is
a constitutional decision, perpetuation of its error will
impose a significant cost. Even if the legislature could
reinstate the death penalty notwithstanding our deci-
sion in Santiago, the damage caused by the decision
would remain. Without a constitutional amendment or
the overruling of Santiago, the reasoning of that case
will remain intact. If the reasoning remains, so does
the usurpation of legislative power, because, in Santi-
ago, the majority indicated that a reviewing court
would serve as the arbiter of whether and when capital
punishment will again comport with contemporary
standards of decency in Connecticut. The difficulty of
correcting our error, therefore, is significant, particu-
larly given the restrictive method of constitutional
amendment in Connecticut. See footnote 15 of this
opinion.
4
Step Four: Weighing the Benefit and
Costs of Affording Santiago
Stare Decisis Effect
The imbalance between the reliance interests that
would be protected and the costs that would result
from adhering to Santiago is so clear that I almost need
not express it. The weighing in the present case is akin
to using an elephant (costs of giving stare decisis effect
to Santiago) as a counterweight for a mouse (reliance
interests). In all actuality, using a mouse to represent
the reliance interests at stake is far too generous. Not
a single individual or institution, including this state’s
government, has acted in reliance of our decision in
Santiago. In fact, that decision’s legitimacy was placed
on shaky ground from the beginning because we ques-
tioned its precedential effect before the judgment in
that case was final; see State v. Santiago, supra, 319
Conn. 935 (denying state’s motion for stay of judgment);
and, therefore, even if there had been any reliance on
Santiago, it would have been unreasonable. The costs
of adhering to that decision, however, are astronomical.
First, and most significant, Santiago has upset the bal-
ance of governmental power created by our constitu-
tion. In that case, this court took for itself a power that
always has resided in the legislature. Moreover, the only
way to restore the equilibrium of governmental power
is by amending the state constitution, which is no easy
task. Second, the ultimate holding of Santiago is
unclear. Third, that decision may or may not have immu-
nized capital punishment from majoritarian control,
despite the people’s intention, expressed through the
constitution, to allow the democratic and political pro-
cesses to determine if and when the ultimate punish-
ment might be imposed. Finally, if this court does not
now overrule Santiago, a constitutional amendment is
the only certain way to correct this court’s overreach-
ing. On balance, it is clear that the costs far outweigh
the benefit of applying stare decisis to Santiago, and
therefore, that decision should be overruled.25
II
THE COURT’S INSTITUTIONAL LEGITIMACY
In their concurring opinions, Chief Justice Rogers
and Justice Robinson focus primarily on concerns over
this court’s legitimacy. Chief Justice Rogers argues that
overruling Santiago within one year of deciding that
case simply because there has been a change in court
membership would call into question the integrity of
this court and our commitment to the rule of law. Simi-
larly, Justice Robinson concludes that the present case
turns on the ‘‘stare decisis considerations of this court’s
institutional legitimacy and stability . . . .’’ Text
accompanying footnote 2 of Justice Robinson’s concur-
ring opinion. He continues by stating that, if this court
were to now overrule Santiago, it would appear that
an important constitutional case was retracted simply
due to a change in court personnel. I am not unsympa-
thetic to my colleagues’ concerns over the legitimacy
of the court. Indeed, I agree that it would be a travesty if
we were to overrule our previous cases simply because
they no longer comport with the personal and ideologi-
cal beliefs of a majority of the justices of this court.
That, however, is not this case. Moreover, the idea that
we may subordinate our oath to uphold the constitution
to concerns about this court’s public appearance is
incomprehensible. See Conn. Const., art. XI, § 1.
The arguments in the concurring opinions of Chief
Justice Rogers and Justice Robinson rest on faulty
premises. First, they both seem to suggest that overturn-
ing court precedent is inconsistent with the rule of
law. For example, Chief Justice Rogers apparently feels
bound by Santiago because of her ‘‘respect for the rule
of law,’’ and Justice Robinson concludes that we should
follow Santiago because to do otherwise ‘‘would
imperil our state’s commitment to the rule of law
. . . .’’ Second, and far more bizarre, Chief Justice Rog-
ers and Justice Robinson contend that the change in
court membership is an insufficient reason to overturn
Santiago in the present case. Of course, I agree that a
change in court personnel cannot justify overruling an
earlier decision; that fact, however, would not serve as
the basis for overruling Santiago. Instead, we would
overrule Santiago because, one, the reasoning of the
majority opinion in that case was inherently flawed and
led to an erroneous conclusion, and, two, a weighing
of the benefit and costs of applying the doctrine of stare
decisis dictates that it should not be applied to our
decision in Santiago.
I will further expound on the flaws in both of these
premises, but, before I do, I will briefly explain from
what source the court derives its legitimacy. This
court’s legitimacy arises from the willingness of the
people of Connecticut to accept and obey the court’s
decisions and is ‘‘a product of substance and perception
. . . .’’ Planned Parenthood of Southeastern Pennsyl-
vania v. Casey, supra, 505 U.S. 865. That acceptance
is a product of our fidelity to the rule of law, that is,
our ‘‘legitimacy depends on making legally principled
decisions under circumstances in which their princi-
pled character is sufficiently plausible to be accepted
by the [people of this state].’’ (Emphasis added.) Id.,
866; see also T. Tyler & G. Mitchell, ‘‘Legitimacy and the
Empowerment of Discretionary Legal Authority: The
United States Supreme Court and Abortion Rights,’’ 43
Duke L.J. 703, 796–99 (1994) (concluding, after litera-
ture review and empirical study, that United States
Supreme Court’s contention in Casey that judicial legiti-
macy comes from objective and neutral decision-mak-
ing finds strong support). Stated differently, the court
receives and maintains its legitimacy by deciding cases
through the objective and dispassionate application of
the law and by ignoring how such cases will be per-
ceived by the public. Cf. Planned Parenthood of South-
eastern Pennsylvania v. Casey, supra, 958 (Rehnquist,
C. J., concurring in the judgment in part and dissenting
in part).
It appears that Chief Justice Rogers and Justice Rob-
inson understand that this institution’s legitimacy
comes from a fidelity to the rule of law. They take the
argument one step further, however, and conflate stare
decisis with the rule of law. To be sure, at times, adher-
ence to precedent serves the ideals of the rule of law,
but, as I discussed in part I A of this opinion, blindly
following precedent can also result in a great cost on
the rule of law. I can think of no case in which this reality
has been more readily apparent than in the present case.
In her dissenting opinion in Santiago, Chief Justice
Rogers stated: ‘‘[B]ecause there is no legitimate legal
basis for finding the death penalty unconstitutional
under either the federal or the state constitution, I can
only conclude that the majority has improperly decided
that the death penalty must be struck down because it
offends the majority’s subjective sense of morality.’’
(Emphasis added.) State v. Santiago, supra, 318 Conn.
276–77 (Rogers, C. J., dissenting). Then, in dissent to
this court’s denial of the state’s motion for argument,
which the state had filed after we issued our decision
in Santiago, she wrote: ‘‘By denying the state’s motion
for argument and reconsideration, the majority merely
reconfirms my belief that it has not engaged in an objec-
tive assessment of the constitutionality of the death
penalty under our state constitution.’’ (Emphasis
added.) State v. Santiago, supra, 319 Conn. 920 (Rogers,
C. J., dissenting). In light of Chief Justice Rogers’ belief
that the majority opinion in Santiago was driven by the
individual predilections of the justices who had joined
that opinion, her contention in the present case that
the rule of law binds her to that decision, as Justice
Scalia might say, ‘‘taxes the credulity of the credulous.’’
Maryland v. King, U.S. , 133 S. Ct. 1958, 1980,
186 L. Ed. 2d 1 (2013) (Scalia, J., dissenting). Out of a
so called ‘‘respect for the rule of law,’’ Chief Justice
Rogers shows that ideal the greatest disrespect by
entrenching, into our constitutional jurisprudence no
less, what she perceives to be the rule of individuals.
In addition, if this court’s legitimacy is truly a matter
of ‘‘substance and perception’’; (emphasis added)
Planned Parenthood of Southeastern Pennsylvania v.
Casey, supra, 505 U.S. 865; then, certainly, we must
acknowledge and correct plain error. Id., 983 (Scalia,
J., concurring in the judgment in part and dissenting in
part). Insofar as it is perception that Chief Justice Rog-
ers and Justice Robinson are worried about, the answer
is simple. To prevent the appearance that we are a court
driven by the whim of a majority of the justices, we
must carefully obey the rule of law. We do so by applying
an objective and transparent standard to weigh the ben-
efit and costs of giving Santiago stare decisis effect.
Applying objective standards in a neutral way, and then
articulating the reasons for our holding, will placate
any appearance that this court is governed by people
rather than by laws. After all, the rule of law, at its
essence, is governmental decision-making within a
framework of laws. As Professor Daniel A. Farber so
aptly put it in a slightly different context, it is under-
standable for justices to be troubled by the perception
that they are acting, not on the basis of their interpreta-
tion of the law but, rather, on the basis of the personal
proclivities of a majority of the justices. See D. Farber,
‘‘The Rule of Law and the Law of Precedents,’’ 90 Minn.
L. Rev. 1173, 1197 (2006). ‘‘The proper response, how-
ever, is for those [j]ustices to consider the merits of
the case with particular care, to guard against any
unconscious influences from political pressures [or per-
sonal belief] one way or the other, and then to explain
their reasoning with clarity to the public.’’ Id. As I have
already discussed, the careful application of an objec-
tive stare decisis standard clearly dictates that this court
should not uphold Santiago on the basis of stare decisis.
To do otherwise would disserve, and not enhance, the
integrity of this court.
I now turn to the second premise of Chief Justice
Rogers’ and Justice Robinson’s contentions, namely,
that the change in this court’s membership between
Santiago and the present case is the reason we would
overturn Santiago.26 Their reasoning suffers from the
logical fallacy of post hoc ergo propter hoc, or ‘‘after
this, therefore resulting from it.’’ Black’s Law Diction-
ary, supra, p. 1355; see also id. (defining ‘‘post hoc ergo
propter hoc’’ as ‘‘[t]he logical fallacy of assuming that
a causal relationship exists when acts or events are
merely sequential’’). Their reasoning is simple. Because
the present appeal has been decided after a change in
the court’s membership, the change in the membership
is the reason to overturn Santiago. The flaw in this
argument should be evident. If this court now were
to overturn Santiago, it would not be because Justice
Robinson replaced Justice Norcott. Certainly, the
change in court membership may be a circumstance
under which the overruling occurs, but it is nothing
more than pure happenstance. Instead, the actual rea-
sons for overruling Santiago, as I have already stated,
would be, one, a majority of the justices believes that
decision is not supported by the law and, two, after
weighing the benefit and costs of stare decisis, a major-
ity of the justices concludes that Santiago is not deserv-
ing of stare decisis effect.27
Even more troubling than the fallaciousness of this
argument is its suggestion that this court is bound, now
and forever, to follow any decision, right or wrong,
unless the panel that decided the previous case is identi-
cal to the panel that wishes to overrule that case. Such
a rule would completely ignore the past practice of this
court. In fact, I have yet to uncover, despite consider-
able research, a case in which a panel overruling a
previous decision of this court was identical to the
panel that decided the case being overruled. This has
held true even when we have overruled a decision only
shortly after it was released. For example, in State v.
DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), we
overruled a conclusion we reached seven weeks earlier
in State v. Sanseverino, 287 Conn. 608, 625–26, 641, 949
A.2d 1156 (2008), superseded in part, 291 Conn. 574,
969 A.2d 710 (2009). Despite the passage of such little
time, the panels in both cases were not identical.
Sanseverino was decided by Chief Justice Rogers and
Justices Norcott, Katz, Palmer, and me. See State v.
Sanseverino, supra, 287 Conn. 608. Justices Vertefeuille
and Sullivan, however, were also members of the panel
in DeJesus. See State v. DeJesus, supra, 418. Perhaps
some might argue that the panel change did not impact
our decision to overrule Sanseverino, but that fact is
of no legal significance. It has likewise been observed
that many overruling decisions in the United States
Supreme Court were issued after a change in court
membership.28
In response, I imagine that Chief Justice Rogers and
Justice Robinson would echo the arguments made by
one of our colleagues at oral argument in the present
case. At oral argument, it was suggested that some
change in circumstances or law, other than a change
in court personnel, is necessary to justify overruling a
prior decision. Perhaps they would justify this court’s
previous departures from precedent, despite the
changes in court composition, by explaining that
‘‘[e]xperience can and often does demonstrate that a
rule, once believed sound, needs modification to serve
justice better.’’ (Internal quotation marks omitted.)
George v. Ericson, 250 Conn. 312, 318, 736 A.2d 889(1999). And, of course, this justification would undoubt-
edly explain some of our past overruling decisions. It
does not, however, explain why we should be restrained
from overruling a case that was demonstrably wrong
when decided, has not engendered any reliance, and
imposes significant costs on society simply because a
justice who decided it has been replaced. In fact, the
United States Supreme Court required nothing more
when it overruled Bowers v. Hardwick, 478 U.S. 186,
106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in Lawrence
v. Texas, 539 U.S. 558, 577–78, 123 S. Ct. 2472, 156 L.
Ed. 2d 508 (2003). See Lawrence v. Texas, supra, 577,
578 (noting that ‘‘Bowers was not correct when it was
decided,’’ that it was not correct when court overruled
it, and that ‘‘[t]he holding in Bowers . . . ha[d] not
induced detrimental reliance’’). It is worth noting that
the court that decided Lawrence was almost entirely
different from the court that decided Bowers. Only
Chief Justice Rehnquist and Justices O’Connor and Ste-
vens sat on both cases. Compare id., 561, with Bowers
v. Hardwick, supra, 187. Moreover, in DeJesus, this
court did not rely on any arguments or experience that
was not presented by the dissenting justice in Sansever-
ino. See State v. DeJesus, supra, 288 Conn. 529 (Katz,
J., dissenting); see also State v. Sanseverino, supra,
287 Conn. 641–42 (Zarella, J., dissenting). Instead, the
majority in DeJesus merely concluded that Sanseverino
was wrong. See State v. DeJesus, supra, 437. If a change
in court membership could prevent a subsequent court
from considering a previous court’s decision, ‘‘segrega-
tion would be legal, minimum wage laws would be
unconstitutional, and the [g]overnment could wiretap
ordinary criminal suspects without first obtaining war-
rants.’’ Citizens United v. Federal Election Commis-
sion, supra, 558 U.S. 377 (Roberts, C. J., concurring).
Surely, such a rule is not sound policy.
Perhaps realizing the illogicality of a rule that would
prohibit this court from overruling an erroneous deci-
sion simply because a member of the majority that
reached such decision has left the court, Chief Justice
Rogers suggests that we employ an even more unrea-
sonable test. See footnote 2 of Chief Justice Rogers’
concurring opinion. She acknowledges that a manifestly
incorrect decision that has engendered no reliance may
be overturned. See id. In determining whether a prior
decision is manifestly incorrect, however, she is guided
not by what a majority of the current justices thinks
but by what the majority of the justices in the prior
decision thinks, or might think if they still occupied a
seat on our bench.29 See id. Thus, the salient question
in the present appeal becomes: ‘‘What would Justice
Norcott do?’’ And the current court is required to divine
an answer. Surely, the reader does not need me to call
his or her attention to the theoretical flaw in this idea.
Under such a test, our decisions will turn on pure specu-
lation regarding how a former justice, or justices, would
decide a current case if they were still on the court. In
addition, justices who have reached the constitutionally
required retirement age, and in some cases, who have
passed away, will continue to rule supreme in this insti-
tution, not because of the decisions they wrote, and the
reasoning therein, but simply because they happened to
vote with the majority in a case that is subsequently
under reconsideration.
Normally, I accept what my colleagues have written
and do not attempt to uncover a delitescent meaning
or ulterior motive, and I will not do so in the present
case. I have trouble accepting, however, that it is the
institutional integrity of this court that truly concerns
Chief Justice Rogers. First, she largely agrees with the
stare decisis analysis I have presented in this opinion.
See footnote 2 of Chief Justice Rogers’ concurring opin-
ion. Second, she does not refute my argument that this
court’s legitimacy comes from a fidelity to the rule of
law; overruling prior cases is, in many instances, consis-
tent with the rule of law, and any appearance that we
are driven by the rule of individuals can be placated
by the application of an objective stare decisis test.
Third, in the recent past, neither this court nor Chief
Justice Rogers has expressed concern about overruling
a prior decision after a change in court membership.30
Chief Justice Rogers also expresses concern that
overruling Santiago would send the message that a
challenge to any four to three decision may be mounted
when a member of the original majority leaves the court.
My response is concise and simple: So what. This has
been, and will always be, the case, unless we make
stare decisis an inexorable command. A challenge may,
at any time, be mounted against any of our previous
decisions, whether they are four to three, five to two, six
to one, or unanimous. That is part of our constitutional
system. For a period of more than thirty years, criminal
defendants repeatedly and consistently attacked this
court’s interpretation of the state’s kidnapping statutes.
See, e.g., State v. Luurtsema, 262 Conn. 179, 200, 202,
811 A.2d 223 (2002); State v. Amarillo, 198 Conn. 285,
304–306, 503 A.2d 146 (1986); State v. Chetcuti, supra,173 Conn. 170–71. In State v. Salamon, supra, 287 Conn.
513–14, this court decided to adopt the interpretation
the criminal defendants had been advocating for years.
Moreover, the majority in Salamon did not seem trou-
bled at all by the fact that various earlier compositions
of this court had repeatedly rejected such an interpreta-
tion. This court need not stand blindly by an earlier
decision simply because it was reached on the narrow-
est of votes.31 Instead, what is important is that the
court objectively apply the legal rules that govern each
case and decide, on the basis of a neutral application
of a principled stare decisis doctrine, whether the dic-
tates of stare decisis require us to continue to adhere
to an earlier, erroneous decision.
In sum, the argument that the integrity and legitimacy
of this court would be undermined by overruling Santi-
ago is faulty. First, the rule of law does not bind us to
erroneous precedent. Instead, it requires us to neutrally
apply an objective stare decisis framework and to
decide whether the benefit of affording Santiago stare
decisis effect is outweighed by the costs. Second, if the
entire court were to reexamine our holding in Santiago,
and, after such examination, a majority of the justices
were to conclude that Santiago is wrong, it would not
be because there has been a change in the court’s mem-
bership.
III
CONCLUSION
In closing, I want to note an astute observation once
made by Chief Justice Charles Evan Hughes, when he
was an Associate Justice of the United States Supreme
Court. In response to the argument that dissent weak-
ens the court’s institutional prestige, Justice Hughes
wrote: ‘‘When unanimity can be obtained without sacri-
fice of conviction, it strongly commends the decision
to public confidence. But unanimity [that] is merely
formal, [that] is recorded at the expense of strong, con-
flicting views, is not desirable in a court of last resort,
whatever may be the effect [on] public opinion at the
time. This is so because what must ultimately sustain
the court in public confidence is the character and
independence of the judges. They are not there simply
to decide cases, but to decide them as they think they
should be decided, and while it may be regrettable that
they cannot always agree, it is better that their indepen-
dence should be maintained and recognized than that
unanimity should be secured through its sacrifice.’’ C.
Hughes, The Supreme Court of the United States: Its
Foundation, Methods and Achievements—An Interpre-
ation (1928) pp. 67–68. The observation of Justice
Hughes is equally applicable in the present case. What
will ultimately sustain this court’s legitimacy is a pru-
dent and independent exercise of the judgment of each
individual justice, guided, of course, by our constitution
and our laws. Just as it may be regrettable when the
justices do not all agree, it may also be regrettable that
our public appearance may temporarily be tarnished
when we overrule a previous decision in short order.
Far greater, and more important, than such regret, how-
ever, is our oath to uphold the constitution and our
duty to objectively interpret that law. I am troubled by
the suggestion that we must adhere to a decision,
despite our belief that such a decision is unconstitu-
tional, for no reason other than the appearance that
we have changed our mind due to a change in court
personnel. I cannot, in good conscience, join the court
in such action. I believe the oath we take requires more
of us.
1
It would be careless of me if I failed to mention that stare decisis has
never been prominent in our capital punishment jurisprudence. Indeed,
past justices convinced of the death penalty’s unconstitutional status were
unmoved by the doctrine of stare decisis and continually declined to join
the court’s decisions upholding capital punishment. For example, dissenting
in part from the majority opinion in State v. Ross, 230 Conn. 183, 646 A.2d
1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d
1095 (1995), Justice Berdon concluded that capital punishment was facially
unconstitutional under our state constitution because it did not comport
with the contemporary standards of decency. Id., 286–87, 319, 334 (Berdon,
J., dissenting in part). Despite this court’s contrary holding in that case; id.,
256; Justice Berdon continued to dissent in capital cases, arguing that the
death penalty was per se unconstitutional. See, e.g., State v. Cobb, 251 Conn.
285, 523, 743 A.2d 1 (1999) (Berdon, J., dissenting), cert. denied, 531 U.S.
841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Webb, 238 Conn. 389,
551, 680 A.2d 147 (1996) (Berdon, J., dissenting); State v. Breton, 235 Conn.
206, 260, 663 A.2d 1026 (1995) (Berdon, J., dissenting). Similarly, the first
time Justices Norcott and Katz decided a capital punishment case, they,
too, felt unconstrained by precedent, such as Ross. In Webb, Justice Katz
joined Justice Berdon’s dissent, concluding that the death penalty was
facially unconstitutional; State v. Webb, supra, 551; and Justice Norcott
concluded, in dissent, that the Connecticut capital penalty scheme violated
the state constitution’s prohibition against cruel and unusual punishment,
although he would not say that the death penalty was unconstitutional in
all cases. See id., 566–67 (Norcott, J., dissenting). Subsequently, in Cobb,
Justice Norcott joined Justices Berdon and Katz in their belief that the death
penalty was unconstitutional in all cases. See State v. Cobb, supra, 543
(Norcott, J., dissenting); see also id., 522–23 n.1 (Berdon, J., dissenting).
Both Justices Norcott and Katz maintained their position throughout their
tenure on this court; see, e.g., State v. Santiago, 305 Conn. 101, 307 n.166,
49 A.3d 566 (2012) (Justice Norcott, writing for the majority, declined to
examine constitutional challenge to capital punishment because it had been
recently rejected by majority of this court in State v. Rizzo, 303 Conn. 71,
184, 201, 31 A.3d 1094 [2011], cert. denied, U.S. , 133 S. Ct. 133, 184
L. Ed. 2d 64 [2012], but he maintained that he remained steadfast in his
own conclusion that death penalty does not comport with Connecticut
constitution), superseded in part by State v. Santiago, 318 Conn. 1, 122 A.3d
1 (2015); State v. Rizzo, supra, 202 (Norcott, J., dissenting) (‘‘I continue to
maintain my position that the death penalty has no place in the jurisprudence
of the state of Connecticut’’ [internal quotation marks omitted]); State v.
Colon, 272 Conn. 106, 395, 864 A.2d 666 (2004) (Norcott, J., concurring)
(Justice Norcott indicated that he continued to adhere to his ‘‘ ‘ongoing
position’ ’’ that death penalty is unconstitutional but joined majority because
judgment of court did not result directly in imposition of death, as court
reversed defendant’s death sentence), cert. denied, 546 U.S. 848, 126 S. Ct.
102, 163 L. Ed. 2d 116 (2005); State v. Colon, supra, 395 (Katz, J., concurring
and dissenting) (‘‘I maintain my belief that the death penalty fails to comport
with contemporary standards of decency and thereby violates our state
constitution’s prohibition against cruel and unusual punishment’’ but ‘‘con-
cur . . . because . . . I have an obligation to decide the issue before the
court’’ [internal quotation marks omitted]); State v. Peeler, 271 Conn. 338,
464, 857 A.2d 808 (2004) (Katz, J., with whom Norcott, J., joins, dissenting)
(‘‘[a]dhering to . . . view that the death penalty is, in all circumstances,
cruel and unusual punishment prohibited by the constitution’’), cert. denied,
546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); State v. Rizzo, 266
Conn. 171, 313–14, 833 A.2d 363 (2003) (Norcott, J., concurring) (noting
continued belief that death penalty cannot ‘‘ ‘be administered in accordance
with the principles of fundamental fairness set forth in our state’s constitu-
tion’ ’’ but joining majority because decision related to procedural safeguards
in imposing ultimate punishment and did not directly result in imposition
of death sentence); State v. Rizzo, supra, 266 Conn. 314 (Katz, J., concurring
and dissenting) (‘‘I maintain my belief that the death penalty . . . violates
our state constitution’s prohibition against cruel and unusual punishment.
. . . Nevertheless, I address the issue pertaining to the burden of persuasion
for the imposition of the death penalty because . . . I have an obligation
. . . to decide the issue before the court . . . .’’ [Citation omitted; internal
quotation marks omitted.]); State v. Reynolds, 264 Conn. 1, 254, 836 A.2d
224 (2003) (Katz, J., dissenting) (maintaining belief that death penalty vio-
lates state constitution’s prohibition against cruel and unusual punishment),
cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); State
v. Courchesne, 262 Conn. 537, 583–84, 816 A.2d 562 (2003) (Norcott, J.,
concurring) (maintaining opposition to constitutionality of death penalty
but joining majority because it addressed narrow procedural question and
because imposition of death penalty would not necessarily follow as direct
consequence of majority’s decision); State v. Courchesne, supra, 584–85
(Katz, J., concurring and dissenting) (same); State v. Webb, 252 Conn. 128,
147, 750 A.2d 448 (Norcott, J., dissenting) (expressing continued opposition
to death penalty), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53(2000); State v. Webb, supra, 252 Conn. 147 (Katz, J., dissenting) (‘‘I continue
to believe that the death penalty . . . violates our state constitution’s prohi-
bition against cruel and unusual punishment’’); despite this court’s numerous
decisions to the contrary. See, e.g., State v. Rizzo, supra, 303 Conn. 201(‘‘[w]e conclude that the death penalty, as a general matter, does not violate
the state constitution’’); State v. Colon, supra, 383 (rejecting invitation to
reconsider decisions holding death penalty constitutional because court was
not convinced that previous decisions were wrong); State v. Reynolds, supra,
236–37 (same); State v. Webb, supra, 238 Conn. 401 (disagreeing with defen-
dant’s claim that ‘‘the death penalty statutes facially violate . . . article
first, §§ 8 and 9, of the Connecticut constitution’’); State v. Ross, supra, 251
(rejecting claim that death penalty is cruel and unusual in all circumstances).
In my view, it is appropriate for our capital punishment jurisprudence to
take little notice of stare decisis. The stakes in capital cases are high—life
or death—and it is unlikely that any justice of this court will be unsure of
the constitutional status of the ultimate punishment, whether he or she
believes that it is constitutional or unconstitutional. It seems that the best
decision-making policy in this arena, in which our holdings are of great
constitutional, moral, and practical magnitude, is to allow each justice to
reach an independent judgment regarding the death penalty’s constitutional-
ity, while giving little weight to stare decisis. In the present case, however,
the concurring justices heavily weigh stare decisis and thereby prevent each
justice from reaching an independent judgment regarding the constitutional-
ity of the death penalty.
2
See also State v. Santiago, supra, 318 Conn. 277–78 (Rogers, C. J., dis-
senting) (‘‘The majority’s decision to strike down the death penalty in its
entirety is a judicial invalidation, without constitutional basis, of the political
will of the people. It is this usurpation of the legislative power—not the
death penalty—that violates the societal mores of this state as expressed
in its fundamental law.’’); id., 341 (Rogers, C. J., dissenting) (‘‘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’’).
3
This inconsistent application is best illustrated by a juxtaposition of
cases in which this court overruled precedent with cases in which this court
has upheld precedent. In many instances in which this court decides to
overrule a previous case, it is not due to the clarity of the error in the
previous case or because the most cogent reasons and inescapable logic
required it. Instead, it is simply because a majority of the members of the
panel reaches a different conclusion than the majority of the previous panel.
See, e.g., Campos v. Coleman, 319 Conn. 36, 43, 123 A.3d 854 (2015) (overrul-
ing Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 [1998],
in recognizing new cause of action after reconsidering five policy factors
court addressed in Mendillo and simply reaching different conclusion regard-
ing weight and balance of those factors, and stating that it ‘‘now agree[s]
with the concurring and dissenting opinion in Mendillo that the public policy
factors favoring recognition of [the] cause of action . . . outweigh those
factors disfavoring recognition’’); State v. Salamon, 287 Conn. 509, 542, 949
A.2d 1092 (2008) (overruling more than thirty years of precedent interpreting
Connecticut’s kidnapping statutes, which had not required proof that defen-
dant had restrained victim for longer period or to greater degree than neces-
sary to commit other charged crimes without explaining why, or even if,
that prior precedent was clearly wrong); Craig v. Driscoll, 262 Conn. 312,
328–30, 340, 813 A.2d 1003 (2003) (implicitly overruling more than one
century of case law denying common-law negligence action against purveyor
of alcoholic beverages for injuries caused by intoxicated patron without so
much as stating that case law was wrong, justifying new cause of action
on basis that it would further objectives of state’s Dram Shop Act, which
was enacted with knowledge that no common-law negligence action would
lie for such injuries, and overruling Quinnett v. Newman, 213 Conn. 343,
568 A.2d 786 [1990], which concluded that legislature had occupied field
when it enacted Dram Shop Act, but noting that such conclusion was incon-
sistent with court’s holding to contrary in Kowal v. Hofher, 181 Conn. 355,
436 A.2d 1 [1980]). Contrarily, in instances in which we uphold precedent,
we trumpet the clearly wrong and most cogent reasons and inescapable
logic standards. See, e.g., State v. Ray, 290 Conn. 602, 614–16, 966 A.2d 148(2009) (denying defendant’s invitation to overrule prior cases concluding
that, under General Statutes § 21a-278 [b], defendant must prove that he or
she is drug dependent, noting that, ‘‘[i]f [it had been] writing on a blank
slate, [it] might [have found] persuasive the defendant’s argument[s],’’ and
noting that defendant’s arguments were supported by statute’s text, chronol-
ogy of statutes, and legislative history but were raised and rejected in State
v. Hart, 221 Conn. 595, 605 A.2d 1366 [1992], and defendant had presented
‘‘no developments in the law, no potential for unconscionable results, no
irreconcilable conflicts and no difficulties in applying [the court’s] construc-
tion of § 21a-278 [b]’’ and therefore had not demonstrated that previous
cases were clearly wrong or that most cogent reasons and inescapable
logic required overruling of them). To further illustrate our inconsistent
application of this doctrine, I point the reader to the countless cases in
which we overrule precedent without even a mere mention of stare decisis.
In fact, my research has uncovered at least twenty-six such cases since I
have joined this court. See, e.g., Grey v. Stamford Health System, Inc., 282
Conn. 745, 757, 924 A.2d 831 (2007); Batte-Holmgren v. Commissioner
of Public Health, 281 Conn. 277, 289, 914 A.2d 996 (2007); Kerrigan v.
Commissioner of Public Health, 279 Conn. 447, 455, 904 A.2d 137 (2006);
RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691, 899
A.2d 586 (2006); Right v. Breen, 277 Conn. 364, 377, 890 A.2d 1287 (2006);
Alexson v. Foss, 276 Conn. 599, 608 n.8, 887 A.2d 872 (2006); State v. Single-
ton, 274 Conn. 426, 438, 876 A.2d 1 (2005); State v. Cruz, 269 Conn. 97, 106,
848 A.2d 445 (2004); State v. Crawford, 257 Conn. 769, 779–80, 778 A.2d 947(2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002);
see also footnote 30 of this opinion (citing cases spanning from 2007 to
2016). In highlighting the cases cited in this footnote and footnote 30 of this
opinion, I do not mean to suggest that any of the overrulings were improper.
I express no opinion in that regard. Instead, I use these cases simply to
illustrate the point that our jurisprudence in this area is weak and incon-
sistent.
4
I note that a plurality of justices, Justices Palmer, Eveleigh, and McDon-
ald, need not resort to stare decisis because they continue to believe that
Santiago is correct. Thus, any discussion of stare decisis as a rationale for
affirming Santiago is unnecessary. Nonetheless, those justices do address
stare decisis.
5
The United States Supreme Court has suffered such criticism at the
hands of numerous academic writers precisely because it has inconsistently
applied its stare decisis doctrine. See, e.g., C. Cooper, ‘‘Stare Decisis: Prece-
dent and Principle in Constitutional Adjudication,’’ 73 Cornell L. Rev. 401,
402 (1988) (characterizing stare decisis as ‘‘a doctrine of convenience, to
both conservatives and liberals’’ and stating that ‘‘[i]ts friends, for the most
part, are determined by the needs of the moment’’); M. Paulsen, ‘‘Does the
Supreme Court’s Current Doctrine of Stare Decisis Require Adherence to
the Supreme Court’s Current Doctrine of Stare Decisis?,’’ 86 N.C. L. Rev.
1165, 1209 (2008) (‘‘Notions of ‘judicial integrity’ would seem to require
acknowledgment that stare decisis is a doctrine of convenience, endlessly
pliable, followed only when desired, and almost always invoked as a make-
weight. . . . [I]t [is] a ‘Grand Hoax.’ ’’).
6
In the process of articulating an objective stare decisis framework, it
will be necessary to overrule, at least in part, our current stare decisis
jurisprudence. That irony is not lost on me. This overruling, however, is
justified under the analysis I set forth subsequently in this opinion. Briefly,
there is no doubt that our stare decisis doctrine has been relied on by
individuals and the branches of government. See part I A 1 of this opinion
(addressing reliance interests in stare decisis). In fact, each time an individ-
ual or government agency, including a court, relies on a decision of this
court, it is implicitly relying on stare decisis and the belief that we will not
overrule such a decision. Those interests, however, are outweighed by the
costs of adhering to our current jurisprudence on this point. First, and
most important, our current doctrine is unworkable and unpredictable. See
footnotes 3 and 30 of this opinion; see also part I A 2 c of this opinion
(explaining cost of unworkability and uncertainty). Second, it is likely that
only this court can bring order to the chaos in our stare decisis jurisprudence.
See part I A 2 a of this opinion (discussing cost of error correction). Because
the doctrine is, in essence, a principle of judicial decision-making, it seems
unlikely that the General Assembly could legislate on the matter.
7
I acknowledge that this court’s past practice may not have required that
we first decide whether the previous decision was correct. As I will explain
in this part of my opinion, however, deciding the merits question as a
threshold matter, and keeping such determination independent of the stare
decisis analysis, provides a more objective, and therefore principled,
approach to stare decisis.
8
I recognize that, previously in this opinion, I criticized Chief Justice
Rogers for overlooking the clearly wrong exception to our stare decisis
jurisprudence. I did so, however, to point out this court’s inconsistent appli-
cation of stare decisis, not to suggest that a previous decision’s wrongness
should continue to be part of this court’s stare decisis calculus.
9
I acknowledge that Justice Robinson does not agree that the merits and
stare decisis analyses are distinct and separate. Instead, he considers the
degree of a precedent’s wrongness to be a component in deciding whether
a prior decision should be given stare decisis effect. He gives two reasons
why he cannot agree with a stare decisis framework, such as the one pre-
sented in this opinion, that does not consider a precedent’s relative degrees
of wrongness. I will address each of these concerns in turn but first note
that this court’s decisions are either right or wrong. To what degree a
decision is wrong does not, in the end, change the fact that it is wrong.
This point is particularly important in constitutional adjudication, such as
in the present case. Our constitution is the supreme law of this state, and
all judges have sworn an oath to uphold it. If a case purporting to expound
on the constitution is wrong as to its meaning or application, that case is
in conflict with the constitution, and the mere fact that the case might be
only slightly wrong, whatever that might mean, does not save it. This is
why the degree to which a precedent is wrong is irrelevant to the stare
decisis calculus.
With respect to Justice Robinson’s concerns, he first states that the stare
decisis analysis set forth in this opinion ‘‘appears to be receptive to overruling
precedent in a way that undercuts the salutary features with respect to
promoting stability in the law.’’ Footnote 5 of Justice Robinson’s concurring
opinion. This point highlights a theoretical difference in our views. Justice
Robinson, it appears, believes that stability in the law, in and of itself, has
some normative value worthy of protection. Thus, if a prior decision of this
court is only slightly wrong, he might sustain it for the sake of preserving
stability. In my view, however, stability has no normative value independent
of the protection of actual reliance interests, as I explain in part I A 1 of
this opinion, and, therefore, it is the degree of reliance, not wrongness, that
I consider to be important in a stare decisis analysis. See, e.g., State v.
Salamon, supra, 287 Conn. 520 (noting that adherence to precedent and,
thereby, in my view, stability, ‘‘is not an end in and of itself’’ [internal
quotation marks omitted]). Insofar as Justice Robinson might be suggesting
that stability in our case law is important because it engenders public reliance
on our decisions, I submit that such an interest is equally protected by a stare
decisis analysis focused on assessing the reliance a decision has garnered.
Second, Justice Robinson argues that my approach ‘‘overrule[s] certain
well established principles of stare decisis, namely, that: (1) the prior deci-
sion must be shown to be ‘clearly wrong’ with a ‘clear showing that an
established rule is incorrect and harmful’ . . . and (2) ‘a court should not
overrule its earlier decisions unless the most cogent reasons and inescapable
logic require it.’ ’’ (Citation omitted; emphasis in original.) Footnote 5 of
Justice Robinson’s concurring opinion. I have acknowledged this irony and
have explained why our stare decisis jurisprudence should be overruled.
See footnote 6 of this opinion.
10
This natural tension is less apparent and problematic when this court
considers stare decisis in the context of the common law, because the
source of the common law is precedent, and not a written constitution or
code. Moreover, the common law has developed incrementally and over time.
11
Chief Justice Rogers and Justice Robinson both claim that maintenance
of the court’s legitimacy is also a benefit of stare decisis. Perhaps at a
superficial level they are correct, but, upon deeper reflection, it becomes
clear that the court’s legitimacy comes from fidelity to the rule of law. See
part II of this opinion. At times, the rule of law will counsel us to follow
precedent, and, in such cases, adherence to the dictates of stare decisis
does contribute to the court’s institutional legitimacy. Other times, however,
fidelity to the rule of law will require us to depart from erroneous judicial
decisions. In such cases, after fair and careful consideration and impartial
application of the applicable law, this court’s legitimacy is not harmed simply
because it has decided to depart from a previous erroneous ruling. Thus,
for these reasons, I do not believe that this court’s legitimacy is an appro-
priate factor to be considered in the stare decisis calculus. Moreover, if
Chief Justice Rogers and Justice Robinson were right, we could rarely, if
ever, overrule precedent. See part II of this opinion.
In the past, we have also cited the conservation of resources and judicial
efficiency as justifications for stare decisis. See, e.g., Conway v. Wilton,
supra, 238 Conn. 659. It seems to me that these benefits, however, are
reasons to adhere to precedent in general and not justifications for the
continued adherence to wrong decisions specifically. In the words of then
Judge, later Justice, Benjamin N. Cardozo, ‘‘the labor of judges would be
increased almost to the breaking point if every past decision could be
reopened in every case, and one could not lay one’s own course of bricks
on the secure foundation of the courses laid by others who had gone before
him.’’ B. Cardozo, The Nature of the Judicial Process (1921) p. 149. Thus,
following precedent conserves resources and fosters efficiency because it
prevents the court from having to consider every possible issue, in every
case. For example, if a criminal defendant claims that he has been tried
and convicted in violation of the state constitution’s prohibition against
double jeopardy, he need not first argue that the due process clause of
article first, § 8, of the state constitution prohibits double jeopardy. Instead,
he may rely on our cases holding to that effect. See, e.g., State v. Gonzalez,
302 Conn. 287, 314–15, 25 A.3d 648 (2011). Thus, adherence to precedent
creates efficiency and conserves resources by allowing litigants to rely and
build on our past decisions in order to frame their arguments and focus
our attention on the unique issues that arise in their case, rather than having
to start from ground zero. When we decide to reexamine a previous decision,
however, as we have in the present case, little efficiency results from adher-
ence to stare decisis after briefs are filed and arguments are heard.
12
Salamon and Conway are but two examples in which this court has
decided to revisit and overrule its prior decisions because the discarded
cases had not conjured any meaningful reliance. Other examples abound.
See, e.g., Mueller v. Tepler, 312 Conn. 631, 647, 655, 95 A.3d 1011 (2014) (in
limiting rule in Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 [1991],
Chief Justice Rogers reasoned ‘‘that allowing a plaintiff to maintain a loss
of consortium claim under . . . circumstances [in which she was not mar-
ried to the injured person because such marriage was prohibited by law
would] not impair preexisting expectations or reliance interests in any seri-
ous way’’); State v. DeJesus, 288 Conn. 418, 479 n.2, 953 A.2d 45 (2008)
(Palmer, J., concurring) (reasoning that lack of ‘‘any material reliance’’ on
previous decision gives stare decisis little force); Commission on Human
Rights & Opportunities v. Board of Education, 270 Conn. 665, 681, 855
A.2d 212 (2004) (overruling Morel v. Commissioner of Public Health, 262
Conn. 222, 811 A.2d 1256 [2002], and Lisee v. Commission on Human
Rights & Opportunities, 258 Conn. 529, 782 A.2d 670 [2001], in part because
neither case is type that engenders significant reliance interest); Craig v.
Driscoll, 262 Conn. 312, 349–50, 813 A.2d 1003 (2003) (Sullivan, C. J., dis-
senting) (stare decisis dictated that court not create common-law negligence
action against purveyor of alcohol because legislature, in enacting Dram
Shop Act, relied on long established common law rejecting such claim);
Ozyck v. D’Atri, 206 Conn. 473, 484, 538 A.2d 697 (1988) (Healey, J., concur-
ring) (noting reason ‘‘stare decisis applies with special force to decisions
affecting titles to land is the special reliance that such decisions mandate’’);
O’Connor v. O’Connor, supra, 201 Conn. 645 (‘‘[o]ur refusal to adhere to
. . . [prior precedent] . . . does not defeat any legitimate prelitigation
expectations of the parties founded in reliance on our prior decisions’’).
13
Commercial actors provide an informative example. Such actors rou-
tinely rely on judicial decisions when forming contracts or structuring corpo-
rate organizations. See, e.g., Citizens United v. Federal Election Com-
mission, 558 U.S. 310, 365, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (reliance
interests are important considerations in contract cases because parties act
in conformance with existing legal rules when structuring transactions);
Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298, 317, 112 S. Ct.
1904, 119 L. Ed. 2d 91 (1992) (declining to overrule previous rule because
it ‘‘has engendered substantial reliance and has become part of the basic
framework of a sizable industry’’). If the law was in constant flux, however,
commercial actors would be unable to rely on it, resulting in either a chilling
of commercial activities or frequent upsetting of expectations, thereby caus-
ing a waste of resources.
14
Chief Justice Sullivan’s legislative reliance argument was vindicated
approximately four months after our decision in Craig when the legislature
passed No. 03-91 of the 2003 Public Acts (P.A. 03-91), abrogating our holding
in Craig, at least with respect to intoxicated patrons who are twenty-one
years of age or older. See P.A. 03-91, § 1, codified at General Statutes (Rev.
to 2005) § 30-102.
15
The Connecticut constitution may be amended in one of two ways.
First, any legislator may propose an amendment. See Conn. Const., amend.
VI. The proposed amendment must be approved either by three fourths of
the members of each house of the General Assembly or by at least a majority
of the members of each house in two successive sessions of the General
Assembly. Conn. Const., amend. VI. Once so adopted, the amendment is
presented to the people for their approval at the next general election. Conn.
Const., amend. VI. To become effective, it must receive the support of a
majority of the electors voting on the amendment. Conn. Const., amend. VI.
Second, the constitution may be amended at a convention called for such
purpose. See Conn. Const., art. XIII, § 1. A constitutional convention can
be called by either the General Assembly or the people. See Conn. Const.,
art. XIII, §§ 1 and 2. The General Assembly may convene a constitutional
convention by a two-thirds vote of the members of each house. Conn. Const.,
art. XIII, § 1. A convention can be convened in this way at any time not
earlier than ten years since the convening of a prior convention. Conn. Const.,
art. XIII, § 1. Alternatively, every twenty years, the people are presented, at
a general election, with the question of whether a constitutional convention
shall be convened. See Conn. Const., art. XIII, § 2. If a majority of the electors
voting on such question call for a convention, a convention will be convened.
See Conn. Const., art. XIII, § 2. Any proposals from a constitutional conven-
tion to amend the constitution will become effective when approved by a
majority of the people voting thereon. See Conn. Const., art. XIII, § 4.
As is evident from the foregoing discussion, amending the Connecticut
constitution is no easy task. It requires supermajoritarian or successive
majoritarian action by the General Assembly, accompanied by approval of
a majority of the state’s citizens. If the General Assembly does not propose
constitutional amendments or call a constitutional convention for that pur-
pose, the citizens have the opportunity to call such a convention and to
propose amendments only once every twenty years.
16
I acknowledge that not all scholars and historians believe that Reverend
Hooker’s sermon was political in nature or that it inspired the Fundamental
Orders of 1639. See M. Besso, ‘‘Thomas Hooker and His May 1638 Sermon,’’
10 Early Am. Stud. 194, 197, 207 (2012). There have been many interpretations
of Reverend Hooker’s sermon. Some historians have suggested it pro-
nounced and advocated new principles for government, which later appeared
in the Fundamental Orders. See id., 202–206. Others have argued that Rever-
end Hooker’s ideas were not original but representative of local practices,
and that the sermon’s ultimate goal was to advocate for a form of civil
government. See id., 206–207. Still other historians suggest that Reverend
Hooker’s sermon was not politically motivated at all but espoused a religious
message. See id., 207. Whether Reverend Hooker’s sermon was the catalyst
for the Fundamental Orders, simply reflected popular understanding of
government at the time, or was a religious message is unimportant for
present purposes. What is important is that it embodied the spirit and beliefs
of the time, and those beliefs embraced the principles of popular sovereignty.
17
In 1662, the Fundamental Orders were supplanted by the Charter of
1662 granted by King Charles II, although the structure of government was
left largely unchanged. See H. Cohn, supra, 64 Conn. B.J. 337–39. The Charter
of 1662 remained in effect at least until the signing of the Declaration of
Independence in 1776, except for a short, eighteen month period in the
1680s when Connecticut was annexed as part of the Dominion of New
England. See id., 340–42; see also W. Horton, ‘‘Connecticut Constitutional
History: 1776–1988,’’ 64 Conn. B.J. 355, 357 (1990).
18
In 1776, Connecticut, along with the other colonies, declared its indepen-
dence from England. W. Horton, ‘‘Connecticut Constitutional History: 1776–
1988,’’ 64 Conn. B.J. 355, 357 (1990). Rather than abandoning the Charter
of 1662 for a new constitution, however, the General Assembly simply
removed any reference to the English monarch and declared that the govern-
ment established by the Charter would remain the ‘‘civil constitution of this
state . . . .’’ (Internal quotation marks omitted.) Id.
In the years after declaring independence from England and leading up
to the constitutional convention of 1818, whether Connecticut had a constitu-
tion became a contentious issue. See R. Purcell, Connecticut in Transition:
1775–1818 (1918) pp. 177–80, 243–46, 249–50, 259–61. The arguments that
the state had no constitution sounded in theories of popular sovereignty.
See id., pp. 177–80, 243–46. For example, if the people were the fountain
of power, which was the belief in Connecticut, the Charter of 1662, it was
argued, could not be the state’s constitution because it was adopted by the
General Assembly, not the people. See id., 177–80. John Leland stated in
1802: ‘‘The people of Connecticut have never been asked, by those in author-
ity, what form of government they would choose; nor in fact, whether they
would have any form at all. For want of a specific constitution, the rulers
run without bridle or bit, or anything to draw them up to the ring-bolt.’’
(Internal quotation marks omitted.) Id., p. 245. Moreover, the General Assem-
bly could amend or revoke any law it wanted, including those set forth in
the Charter. Id., pp. 255–56.
Likewise, those who argued that there was a constitution in Connecticut
also relied on popular sovereignty. Judge Zephaniah Swift wrote: ‘‘Indeed
no form of government could have been valid, unless approved, and adopted
by the people in convention, or in some other way.’’ 1 Z. Swift, A System
of the Laws of the State of Connecticut (1795) p. 57. In fact, Judge Swift
acknowledged that once Connecticut ratified the Declaration of Indepen-
dence, thereby severing its ties with England, the people had the right to
establish a new form of government, if they had seen fit. Id. Nonetheless,
Judge Swift believed that the Charter of 1662 continued as the constitution
of Connecticut. See id., pp. 56–57. He theorized that the real legitimacy of
state government arose, not so much from the Charter, but from the people’s
assent to be governed as described by the Charter. See id., pp. 57–58. Even
if the Charter was the sole basis of the government’s power, Judge Swift
argued, it still remained valid. See id., p. 58. Although the Charter, and the
government it established, would have become invalid after Connecticut
declared its independence from England, ‘‘the subsequent conduct of the
people, in assenting to, approving of, and acquiescing in the acts of the
legislature,’’ established the validity of the Charter’s continuation. Id.
Whether a constitution existed in Connecticut between 1776 and 1818 is
unimportant for present purposes. What is important is that the debate on
that issue illustrated the prominence of popular sovereignty in Connecticut
in the years leading up to the 1818 constitutional convention. Moreover,
this debate was the impetus, at least in part, for that convention.
19
Examples of what I view as this court’s overreach abound. See, e.g.,
Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295
Conn. 240, 244–45, 990 A.2d 206 (2010); Office of the Governor v. Select
Committee of Inquiry, 271 Conn. 540, 544–45, 858 A.2d 709 (2004); Sheff v.
O’Neill, 238 Conn. 1, 3–4, 678 A.2d 1267 (1996).
20
Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905),
provides an instructive example of intervention error. In that case, the United
States Supreme Court struck down a state labor law; see id., 57–58, 64;
holding, among other things, that the right of an employee and an employer
to enter into an employment contract was protected by the due process
clause of the fourteenth amendment. Id., 53 (‘‘[t]he right to purchase or to
sell labor is part of the liberty protected by [the fourteenth] amendment [to
the United States constitution], unless there are circumstances [that] exclude
[that] right’’). If, upon reconsideration, the United States Supreme Court
had continued to adhere to the holding in Lochner and its progeny, the
result would have been to immunize certain labor policies from majoritarian
and legislative consideration. See Planned Parenthood of Southeastern
Pennsylvania v. Casey, supra, 505 U.S. 861 (observing that overruling of
Adkins v. Children’s Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785[1923], by West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S. Ct. 578,
81 L. Ed. 703 [1937], ‘‘signaled the demise of Lochner’’).
21
In fact, Professor Lash argues that such cases should receive reverse
stare decisis treatment, that is, the presumption should be for overruling,
not sustaining, such cases. See K. Lash, supra, 93 Va. L. Rev. 1442, 1458,
1461. We need not go so far as to declare that such cases are presumptively
invalid; it is sufficient to say that, in order to sustain such cases under the
doctrine of stare decisis, the reliance interests to be protected must be
extremely significant.
22
See, e.g., Montejo v. Louisiana, 556 U.S. 778, 792, 129 S. Ct. 2079, 173
L. Ed. 2d 955 (2009) (‘‘the fact that a decision has proved unworkable is a
traditional ground for overruling it’’ [internal quotation marks omitted]);
Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct. 2472, 156 L. Ed. 2d 508(2003) (noting that Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92
L. Ed. 2d 140 [1986], can be overruled because it creates uncertainty insofar
as its central holding was inconsistent with other United States Supreme
Court precedent); Helvering v. Hallock, 309 U.S. 106, 119, 60 S. Ct. 444, 84
L. Ed. 604 (1940) (‘‘stare decisis is . . . not a mechanical formula of adher-
ence to the latest decision . . . when such adherence involves collision
with a prior doctrine more embracing in its scope, intrinsically sounder,
and verified by experience’’).
23
See Conn. Const., art. I, § 8 (‘‘[n]o person shall be . . . deprived of life,
liberty or property without due process of law’’ [emphasis added]); Conn.
Const., amend. IV (‘‘no person shall, for a capital offense, be tried by a jury
of less than twelve jurors without his consent’’ [emphasis added]); Conn.
Const., amend. XVII (‘‘[i]n all criminal prosecutions, the accused shall have
a right . . . to be released on bail upon sufficient security, except in capital
offenses, where the proof is evident or the presumption great’’ [emphasis
added]); Conn. Const., amend. XVII (‘‘[n]o person shall be held to answer
for any crime, punishable by death or life imprisonment, unless upon proba-
ble cause shown at a hearing in accordance with procedures prescribed by
law’’ [emphasis added]).
24
I note my belief that the textual references alone are sufficient to secure
capital punishment’s constitutional status. The events of the 1965 constitu-
tional convention simply make me more resolute in my conclusion.
25
Chief Justice Rogers misstates my stare decisis analysis when she
asserts: ‘‘[D]istilled to its essence, [Justice Zarella’s analysis asserts] that,
if a past decision was manifestly incorrect and there has been no reliance
on it, principles of stare decisis may not require the court to stand by that
decision.’’ Footnote 2 of Chief Justice Rogers’ concurring opinion. As I have
clearly stated, stare decisis does not require us to stand by a decision if
‘‘the costs of preserving judicial error outweigh any reliance interests . . . .’’
Part I A 2 c of this opinion. Although Chief Justice Rogers is partially correct
insofar as stare decisis does not require a court to adhere to a manifestly
incorrect decision that has engendered no reliance, her recitation of my
test requires too much. Under my approach, stare decisis does not apply if
the costs of adhering to an erroneous decision outweigh the reliance interests
that would be upset by overruling that decision. Thus, if a case has not
garnered any reliance, it could be overruled if adherence to such decision
would impose the slightest of costs, regardless of whether it is mani-
festly wrong.
26
It would be remiss of me not to note that the quandary regarding the
change in court membership is entirely a problem of the court’s creation.
This court had the opportunity and idea to decide the present appeal before
the appeal in Santiago, thereby allowing the full and current panel of the
court to decide whether the prospective repeal of the death penalty set
forth in P.A. 12-5 made it unconstitutional to carry out the death sentences
then in place. In fact, the present appeal was originally argued on July 10,
2014, more than one year before Santiago was decided on August 25, 2015.
Nevertheless, the court decided, despite our policy to have important consti-
tutional issues decided by the full and current panel of this court, to answer
the novel question raised by the passage of P.A. 12-5 in Santiago, with a
panel that included a justice who had long since reached the mandatory
retirement age. Moreover, and as Justice Espinosa correctly notes in her
dissenting opinion in the present case, the panel that decided an earlier
appeal in Santiago; see State v. Santiago, 305 Conn. 101, 49 A.3d 566 (2012);
in which the court did not reach the contention of the defendant, Eduardo
Santiago, that the death penalty was per se unconstitutional, was different
from the panel that decided Santiago’s later appeal to this court in State v.
Santiago, supra, 318 Conn. 1. I do not suggest it was improper for Justice
Norcott to remain on the panel in Santiago. In fact, he was well within his
right to do so under General Statutes § 51-198 (c). Instead, my concern is
only over the order in which Santiago and the present appeal were decided.
27
Justice Robinson suggests that I am overly optimistic about the public’s
ability to look past the panel change and to understand that the overruling
of this court’s recent decision in Santiago would not be because of the
panel change but because, as I have just explained, a majority of the justices
in the present case have concluded that (1) Santiago is wrong, and (2) the
costs of adhering to Santiago greatly outweigh the benefit. See footnote 8
of Justice Robinson’s concurring opinion. As a ‘‘cautionary tale,’’ he refers
to a recent decision of the Kansas Supreme Court, namely, State v. Petersen-
Beard, Docket No. 108,061, 2016 WL 1612851 (Kan. April 22, 2016). Footnote
9 and accompanying text of Justice Robinson’s concurring opinion. In that
case, which was released April 22, 2016, the Kansas Supreme Court overruled
three of its ‘‘prior’’ decisions, all also released April 22, 2016. State v. Pet-
ersen-Beard, supra, 2016 WL 1612851, *1. Arguments in the three prior
decisions had been heard approximately one year before argument in Pet-
ersen-Beard, by a panel that contained a trial judge who was sitting by
designation of the Chief Justice while a vacant seat on the court was filled.
That seat was filled, and the new panel heard Petersen-Beard, reaching, as
Justice Robinson notes, the opposite conclusion. Justice Robinson then
notes that ‘‘the rapid overruling was . . . widely noticed, and primarily
attributed to the change in personnel of the Kansas Supreme Court.’’ Foot-
note 9 of Justice Robinson’s concurring opinion. Justice Robinson does not
refer to any evidence, however, that the public is outraged or has lost
confidence in the court due to this overruling. Instead, he refers to a few
legal scholars who observe the panel change and concurrent change in the
court’s position. See id. The brunt of the consternation noted by the scholars
and the dissenting justices in Petersen-Beard, however, seems to be over
the court’s decision to delay the release of the three overruled cases for
approximately eight months in order to draft the opinion in Petersen-Beard,
which overruled those cases, thereby delaying the relief afforded the individ-
ual defendants and depriving similarly situated individuals of the benefit of
the holding of the three overruled cases. In fact, the dissenting justices in
Petersen-Beard do not even allude to stare decisis or the dangers of overrul-
ing a recent decision when the only change is in the composition of the
panel. Thus, I respectfully disagree that Petersen-Beard illustrates why this
court should refrain from overruling Santiago.
Finally, in response to a concern that Justice Palmer raises in his concur-
ring opinion, I would like to note that Petersen-Beard provides an example
of a court of last resort quickly reversing its own constitutional ruling.
28
Professor Thomas R. Lee, in discussing factors that might explain the
United States Supreme Court’s tendency to overrule prior decisions, stated:
‘‘One statistical study has suggested, for example, that the [c]ourts that have
disproportionately altered precedent have been characterized by significant
changes in membership. . . . A familiar example is the Hughes Court, which
overturned [fifteen] precedents during its last nine years after the [c]ourt’s
entire membership was transformed between 1937 and 1941. . . . Similarly,
most of the Warren Court’s decisions overruling precedent were handed
down after Justice [Felix] Frankfurter’s retirement in 1962, while most of
the Burger Court’s overruling decisions came after [Justice] Douglas’ retire-
ment in 1975.’’ (Citations omitted.) T. Lee, supra, 52 Vand. L. Rev. 650 n.14.
29
There is a great irony in Chief Justice Rogers’ reasoning that gives me
pause. While she is occupied with explaining that she, Justice Espinosa,
and I have already espoused, ‘‘at great length,’’ why we think Santiago is
incorrect; footnote 2 of Chief Justice Rogers’ concurring opinion; noting
that Justices Palmer, Eveleigh, and McDonald continue to believe that Santi-
ago was correctly decided, and speculating about how Justice Norcott would
rule, she overlooks the elephant in the room: What does Justice Robinson,
a current member of this court sitting on this case, think?
Of course, this is not the only problem that stems from Chief Justice
Rogers’ reasoning, although it is the most important. She correctly notes
the obvious, namely, that stare decisis does not require this court to stand
by a manifestly incorrect decision that has not been relied on. See id. She
then states: ‘‘In Santiago, however, [she], Justice Espinosa and I explained
at great length why we believed that the majority decision was incorrect
. . . and we were unable to persuade the majority.’’ (Citations omitted.) Id.Isn’t this a curious notion? Apparently, when determining whether a previous
decision of this court was manifestly incorrect, we consider whether the
dissenting justices in the prior case successfully persuaded the majority
justices that they, the majority, had reached a manifestly incorrect decision.
If the dissenting justices had prevailed in the prior decision, would the
outcome not have been different? Obviously, it would have been, so Chief
Justice Rogers must mean something else. Perhaps, what she is trying to
suggest is that she, Justice Espinosa, and I must now come up with a new
reason that Santiago is incorrect. Why, if Santiago was incorrect when
decided for the reasons that we then stated, would it not still be incorrect
for the same reasons today? After all, as Chief Justice Rogers has observed,
it has been less than one year since we decided Santiago. Moreover, I am
again back to that vexing question, what does Justice Robinson think? That
seems like a particularly important question under the current circumstances
when three of the current members of the court think Santiago is correct
and three others have explained why it is demonstrably wrong. If Justice
Robinson could offer a different explanation for why Santiago is erroneous,
would that get us past Chief Justice Rogers’ unique test?
Finally, Chief Justice Rogers notes that those justices who were in the
majority in Santiago, and join in the per curiam opinion in the present case,
continue to believe that Santiago is correct, almost as to suggest that, if
only one of them had changed his mind, perhaps we would then be permitted
to overrule Santiago. Again, she leaves the reader to create his or her
own explanation. Unfortunately, I can be of no help. I cannot think of any
constitutional, statutory, or common-law rule that bestows greater authority
on a justice who was in the majority of a prior decision when that decision
is being reconsidered.
30
During Chief Justice Rogers’ tenure on this court, we have overruled
prior precedent in twenty-five cases. See State v. Wright, 320 Conn. 781,
810, A.3d (2016); Arras v. Regional School District No. 14, 319
Conn. 245, 268–69 n.24, 125 A.3d 172 (2015); Campos v. Coleman, supra,
319 Conn. 38, 57; State v. Moreno-Hernandez, 317 Conn. 292, 308, 118 A.3d
26 (2015); Haynes v. Middletown, 314 Conn. 303, 316, 323, 101 A.3d 249(2014); State v. Artis, 314 Conn. 131, 156, 101 A.3d 915 (2014); State v. Elson,
311 Conn. 726, 754, 91 A.3d 862 (2014); Ulbrich v. Groth, 310 Conn. 375,
409, 78 A.3d 76 (2013); State v. Moulton, 310 Conn. 337, 362–63 and n.23,
78 A.3d 55 (2013); State v. Polanco, 308 Conn. 242, 260–61, 61 A.3d 1084(2013); State v. Sanchez, 308 Conn. 64, 80, 60 A.3d 271 (2013); State v.
Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012); State v. Paige, 304 Conn.
426, 446, 40 A.3d 279 (2012); Gross v. Rell, 304 Conn. 234, 270–71, 40 A.3d
240 (2012); Arrowood Indemnity Co. v. King, 304 Conn. 179, 201, 39 A.3d
712 (2012); State v. Payne, 303 Conn. 538, 541–42, 34 A.3d 370 (2012); State
v. Kitchens, 299 Conn. 447, 472–73, 10 A.3d 942 (2011); Bysiewicz v. DiNardo,
298 Conn. 748, 778–79 n.26, 6 A.3d 726 (2010); State v. Connor, 292 Conn.
483, 528 n.29, 973 A.2d 627 (2009); St. Joseph’s Living Center, Inc. v. Wind-
ham, 290 Conn. 695, 729 n.37, 966 A.2d 188 (2009); State v. DeJesus, supra,288 Conn. 437; State v. Salamon, supra, 287 Conn. 514; Jaiguay v. Vasquez,
287 Conn. 323, 348, 948 A.2d 955 (2008); State v. Grant, 286 Conn. 499, 535,
944 A.2d 947, 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). In all twenty-five cases, the subsequent overruling panel
was different from the panel that decided the cases being overruled. More-
over, Chief Justice Rogers either authored or joined the majority in nineteen
of these cases. See State v. Wright, supra, 830; Campos v. Coleman, supra,
64; State v. Moreno-Hernandez, supra, 292, 312; Haynes v. Middletown,
supra, 305; State v. Artis, supra, 131, 161; State v. Elson, supra, 726, 785;
Ulbrich v. Groth, supra, 470; State v. Moulton, supra, 337, 370; State v.
Polanco, supra, 242, 263; State v. Sanchez, supra, 64, 87; State v. Guilbert,
supra, 274; Gross v. Rell, supra, 237; Arrowood Indemnity Co. v. King,
supra, 179, 204; State v. Payne, supra, 541; State v. Kitchens, supra, 500;
State v. Connor, supra, 483, 533; State v. DeJesus, supra, 420; State v. Grant,
supra, 502 ; Gibbons v. Historic District Commission, supra, 755, 778. Chief
Justice Rogers dismisses my point by stating that there is no inconsistency
in her position in the foregoing cases and the position she takes in the
present appeal. See footnote 1 of Chief Justice Rogers’ concurring opinion.
Anyone who reads the cases Justice Espinosa and I cite, however, will
discover that not once, in any of these twenty-five cases, has this court,
or Chief Justice Rogers, ever raised a concern over a change in panel
membership or queried how a departed justice who was in the majority
would have ruled if he or she had still been a member of the court. In fact,
in seventeen cases—Wright, Arras, Moreno-Hernandez, Haynes, Ulbrich,
Sanchez, Paige, Gross, King, Payne, Kitchens, Bysiewicz, Connor, St.
Joseph’s Living Center, Inc., DeJesus, Grant, and Gibbons—the words
‘‘stare decisis’’ cannot be found in the majority opinions at all.
31
At oral arguments in the present appeal, counsel was asked whether
our ruling in Kerrigan v. Commissioner of Public Health, 289 Conn. 135,
141, 147–48, 957 A.2d 407 (2008), also a controversial four to three decision,
which held that a statute purporting to prohibit same sex marriage was
unconstitutional, could be attacked and overruled. I again note that a deci-
sion should not receive special stare decisis consideration because it was
decided by one vote rather than two or three. In addition, and more
important, I doubt that this court, notwithstanding the United States
Supreme Court’s recent decision in Obergefell v. Hodges, U.S. , 135
S. Ct. 2584, 2604–2605, 192 L. Ed. 2d 609 (2015), could overrule Kerrigan
in light of the tremendous reliance interests that decision has engendered.
First, the day after we decided Kerrigan, marriage licenses were being
issued to same-sex couples. Second, there has been a reordering in employee
benefits and health insurance in light of Kerrigan. Third, it is likely that
the principles represented by Kerrigan have become part of the conscious-
ness of the citizens of this state. Undoubtedly, there has been even more
reliance on Kerrigan than that which I just outlined.
In his concurring opinion, Justice Robinson suggests that the reliance in
the present case is different only in kind and not in degree from the reliance
interests that would be at stake if Kerrigan were reconsidered. See footnote
6 of Justice Robinson’s concurring opinion. In light of my analysis in part
I B of this opinion, I cannot fathom the logic behind such a claim.