A National Precedent being set to allow Judicial Abuse?

Or, a precedent where the courts have ultimate power over the other 2 branches of government citing separation of powers?

CONNECTICUT NEWS
Hoping To Avoid Landmark Ruling
High Court Removes Obstacles But Sidesteps Subpoena Issue - For Now
January 13, 2007
By LYNNE TUOHY, COURANT STAFF WRITER

Former Chief Justice William J. Sullivan may testify voluntarily before the legislature's judiciary committee, but the landmark constitutional battle over whether his testimony can be forced by legislative subpoena remains very much a live issue.

For now.

The state Supreme Court Friday removed a major obstacle to Sullivan's voluntary testimony, but left hanging any decision that would amount to the nation's first ruling on whether lawmakers can compel a judge's testimony at anything other than a confirmation or impeachment proceeding.

The conflict centers on whether one branch of government can subpoena a member of a co-equal branch of government to testify. Past historic battles on the same issue have been resolved short of appellate review.

If Sullivan has another change of heart and refuses to testify about withholding release of a controversial ruling for political reasons, or cuts short his testimony in a fit of pique, the state's highest court has reserved the right to rule on the issue.

The court also made clear, in its cogent six-page ruling, that it would prefer not to address such a monumental constitutional issue if it can be otherwise settled by the parties.

"Courts have a duty to avoid unnecessary constitutional issues," the court wrote, quoting precedent. "When constitutional issues arise concerning the respective powers of the coordinate branches of government, judicial intervention should be delayed until all possibility of settlement has been exhausted."

The court's ruling was "per curiam" - meaning it was agreed upon by all those who considered the matter, but no one judge took ownership of the opinion. In the unprecedented situation in which the judicial branch finds itself these days, that unanimity can be viewed more as a positive team effort than as a way for any one judge to grandstand or dodge the bullet. If there had been a dissenting opinion, authors would have been assigned to write both the majority and dissenting opinions.

But Friday's ruling is yet another indicator of how Sullivan's conduct in the spring of 2006 has wreaked havoc with the staid norm of the judiciary and had unprecedented consequences, large and small.

Because Sullivan's conduct in withholding release of a controversial ruling on public access to court dockets embroiled other members of the court who then felt compelled to turn whistle-blower, Friday's ruling involved nary a justice of the state's highest court. Members of the Appellate Court, a tier below the state Supreme Court, were designated to sit in place of the Supreme Court justices and decide the appeal.

Sullivan, who admitted he withheld release of the controversial ruling to help his protégé, Justice Peter Zarella, succeed him as chief justice, was found guilty of violating the code of judicial ethics in November and was issued a 15-day suspension. He has appealed those sanctions.

When news broke in late April that Sullivan had put a secret hold on release of the ruling, the co-chairmen of the legislature's judiciary committee said they would hold hearings to investigate the extent of misconduct by Sullivan and the judicial branch. But when Sen. Andrew McDonald and Rep. Michael Lawlor issued a subpoena for his testimony in June, Sullivan succeeded in having a trial judge quash the subpoena as a violation of separation of powers.

McDonald and Lawlor appealed, and Friday's ruling addresses a key concern expressed by McDonald and Lawlor about availing themselves of Sullivan's newfound willingness to testify - namely, that their willingness to do so could be construed as a violation of an order by Superior Court Judge Dennis Eveleigh that the lawmakers make no other efforts to compel Sullivan's testimony.

The Supreme Court Friday stayed Eveleigh's injunction, leaving all parties free to schedule hearings and testify. The ruling did not address the quashing of the subpoena, leaving open the landmark constitutional question.

McDonald said Friday's ruling "clears out a lot of the legal thicket that was hindering our ability to move forward. We can do so now. I don't think anybody - neither the litigants nor the court - was anxious to have a final decision that would serve as the first of its kind in the nation. If we can avert that, and finally have Justice Sullivan fully submit to the jurisdiction of the committee, that's a preferable result."

But McDonald was still miffed that Sullivan's change in posture was so late in coming.

"What's going to happen next month should have happened in June," McDonald said. "He's put the judicial branch through a particularly troublesome time for little or no purpose."

McDonald said he anticipated the judiciary committee would schedule Sullivan's testimony sometime early in February. Sullivan's lawyers did not immediately return calls seeking comment.

Contact Lynne Tuohy at ltuohy@courant.com.