Connecticut, The lack of a Constitution State
I was sent the below by email. If you know the story, and can read between the lines, you wonder why these bums are being paid tax dollars and have remained outside of jail cells.
Judges and power brokers make up rules as they go along, they have a long history of this in Connecticut. These "important" people, the ruling class, with a pretend Court System, as part of the Judicial Branch, rule a State like a Monarchy, and there is a class system. There is separate and unequal justice. Injustice is the rule, not the exception. A lot is hidden between statute language and "lawyer-speak". Those of us who have been following the judicial abuse in Connecticut can cite example after example. Police, attorney, prosecutorial, judicial, and official misconduct should not be so prevalent in any state, especially a state that calls itself, "The Constitution State, Connecticut".
"Do as I say, not as I do"
-Steven G. Erickson
This came in by email:
Separation of Power discussion Judiciary Hearings
REP. LAWLOR: And in the rules promulgation process, the process you've been in charge of for some time at the juddicial branch, has this come up at all? Have there been rules suggested or adopted that, you know, with victim notification or victim participation or access to information?
JUSTICE PETER T. ZARELLA: Not that I'm aware of. I don't recall any proposals being made with -- with regard to adding it as an element of canvass or something like that. That might be a potential, worth of investigation.
REP. LAWLOR: Thank you, your Honor. And congratulations once again.
JUSTICE PETER T. ZARELLA: Thank you.
SENATOR McDONALD: Your Honor, I just had a couple of questions to follow up on something that Representative Lawlor started to talk about.
As you know, over the last couple of years this committee, in particular, at the General Assembly, in general, has been looking at the separation of powers issues associated with the promulgation of rules and court procedures. It's been a difficult and mettlesome problem, but I certainly appreciate your efforts over the last couple of years to try to craft solutions, if you will. But picking up on Representative Lawlor's comment that you are a constitutional scholar and Chairman of the Rules Committee, is it your understanding that the Supreme Court has always had exclusive jurisdiction to promulgate its rules of procedure?
JUSTICE PETER T. ZARELLA: It -- it's a -- it depends what you use as the -- the measuring stick.
Prior to 1818, there was a statute passed by the Legislature that delegated the rulemaking authority to the -- the judges of the Superior Court sitting as a Supreme Court, I think is the language of the 1807 statute. That was kind of interesting because they were one and the same at that point. All of the superior court judges were -- sat at the Supreme Court at that point.
That remained unchanged, as I -- nearly as I can tell until 1818, when the Constitution was -- was adopted and the separation of powers was implemented for the first time in a document in Connecticut.
I don't know how much history you want here, but you asked whether or not the -- the Supreme Court has always maintained control over it. There are a number of statutes throughout the 18 -- 1800s that took the rulemaking authority from the Supreme Court, gave it to the Superior Court. I think it went back to the Supreme Court for a while and eventually it ended up in the -- the rulemaking authority ended up, by statute, in any event, with the judges of the Superior Court, the present system that we have now.
So if you're measuring stick is what the statute said, then it has been back and forth between the Supreme Court and the Superior Court.
SENATOR McDONALD: And the statute that you're referencing that's known as 51-14, which talks about the delegation by the Legislature to the judicial branch or to the judges of the Superior Court to promulgate rules.
JUSTICE PETER T. ZARELLA: Correct.
SENATOR McDONALD: Right?
Now in the statute it talks about all statutes relating to pleadings, practice and procedure in existence on July 1st of 1957 shall be deemed to be rules of court and shall remain, in effect, as such until modified, superseded, to the extent -- that type of thing.
Does the Rules Committee separately track the rules that were promulgated prior to 1957?
JUSTICE PETER T. ZARELLA: Every year, I think there's another statute that goes along with that that requires the chief justice to report to the -- maybe it's in the same statute -- report to the -- either the Judiciary Committee or the Legislature any changes in statutes that are above and beyond those that existed in that year, so -- and I believe that report is done. It's not -- I don't believe the Rules Committee does that. I think the -- I think the chief justice does it.
SENATOR McDONALD: Well, but my question -- my question was do you see any -- well, let me ask a different question.
Do you see any distinction between rules that were promulgated prior to July 1st of 1957 and rules of practice promulgated after that date about who has the authority to do -- to promulgate such rules?
JUSTICE PETER T. ZARELLA: I think in -- in State versus DeJesus, which is a case that was recently decided that had to do with rules of evidence, it had nothing to do with -- it didn't have anything directly to do with rules of procedure. There is an analogy made between the rules of procedure or practice and the rules of evidence, saying there's a -- a fairly healthy -- I thought it was healthy -- discussion in that case as to the authority inside the branch itself with respect to the rules of evidence, but brought into that discussion was the -- was the history of the rules of practice.
There is a theory, and I'm not expressing an opinion on this because it hasn't been before us yet, and it may or may not come before us, but there is a theory that if, when the constitution was passed or adopted in 1818, it froze in time whatever existed at that point with respect to the powers of the various branches. And if the statute in 1818, the appropriate delegation by the Legislature to the -- to the courts in 1807 was in effect in 1818 when the Constitution was adopted, then in 1818 that became part of the Constitution. I think that's probably the argument that it doesn't matter what happened after that once it was constitutionalized in 1818.
SENATOR McDONALD: Okay. So let me get back to my -- one of my prior questions. Does the Rules Committee that you chair, separately track rules of practice that were promulgated before July 1st of 1957?
JUSTICE PETER T. ZARELLA: The Rules Committee itself does not. The -- the -- the Office of Counsel that offers services to the Rules Committee I believe does that for the chief justice.
SENATOR McDONALD: And in your experience, has any rule of practice or procedure that was promulgated before July 1st of 1957, ever been modified, extended or superseded?
JUSTICE PETER T. ZARELLA: I'm sure they have.
SENATOR McDONALD: And you as the --
JUSTICE PETER T. ZARELLA: Numerous times.
SENATOR McDONALD: My point is --
JUSTICE PETER T. ZARELLA: Oh, I get -- I understand.
SENATOR McDONALD: You got my point. Okay.
Has the Legislature been notified of that?
JUSTICE PETER T. ZARELLA: I believe they have.
SENATOR McDONALD: Beforehand?
JUSTICE PETER T. ZARELLA: No -- beforehand?
SENATOR McDONALD: Yes.
JUSTICE PETER T. ZARELLA: I doubt it was beforehand. I suspect that that notification probably goes out after the Rules Committee completes it -- its work and the judges in the Superior Court have adopted the rule.
SENATOR McDONALD: And how can that be done consistent with 51-14? How can a rule that was declared by statute to be a rule be superseded without the acquiescence of the General Assembly?
JUSTICE PETER T. ZARELLA: It would -- if the power resides in the juddicial branch constitutionally to create and -- and modify its own rules, that's the power.
SENATOR McDONALD: Okay.
JUSTICE PETER T. ZARELLA: Constitutional.
SENATOR McDONALD: And ultimately -- I mean, the challenge for us institutionally is that, under that paradigm, the juddicial branch is the only one having a discussion about who has the authority to adopt or modify rules that, at least going back into the fifties, appear to have been done by statute?
JUSTICE PETER T. ZARELLA: I would suggest that it's been done even prior to 1957 by the Legislature and by statute. The statutes didn't begin in 1957 with this -- in this regard. They date all the way back -- you'll find one of them in the 1850's. I think you'll find another one in the 1830's.
SENATOR McDONALD: Right.
JUSTICE PETER T. ZARELLA: And it's a product, in my view, of the history of the development of the independent judiciary in this state.
In 1818, the Legislature -- and with all due respect, I know you're all Legislators and -- did not recognize fully the independence of the branch, the judicial branch. In fact, they, I believe, continued to do divorces in the -- in the Legislature. And it was only -- and the branch was unwilling in the early days of the supposed independence of challenging the Legislature in the 18 -- early 1800's. It was only until the Norwalk Railroad case that really established the independence of the branch, and that was in the late 1800's that they -- they established the independence of -- of the -- of the branch.
SENATOR McDONALD: Okay.
JUSTICE PETER T. ZARELLA: So these statutes were passed as a matter of course.
SENATOR McDONALD: All right. You know, we are at -- I know other members of the committee want to ask questions. I have a couple of other ones, but I actually want to ask you -- we're going to have an opportunity to be revisiting this subject later on in the session -- would you be willing to come back and help us work through some of these issues when we have that opportunity?
JUSTICE PETER T. ZARELLA: Certainly.
SENATOR McDONALD: I appreciate that.
I did want to go back to the DeJesus case, however, because that decision is largely unnoticed in the public, but I think it's a very important decision. And the question I have for you is, if the rules of evidence codify existing statutes and the common law on the rules of evidence -- right? Do we agree that the rules of evidence codify existing statutes and common law?
JUSTICE PETER T. ZARELLA: Absolutely.
SENATOR McDONALD: Okay. So if the rules of evidence are the codification of statutory and common law, how is the Supreme Court authorized to supplant the rules of evidence if it deems it appropriate in any particular case?
And that's what I understood the DeJesus decision to allow the Supreme Court to do, and if I'm wrong, please correct me.
JUSTICE PETER T. ZARELLA: The DeJesus case was a question of whether or not the ultimate authority with respect to the code of evidence lies with the Superior Court judges or the Supreme Court. It was an interbranch dispute, had not -- not -- literally, nothing to do with the Legislature.
The question was, if the Superior Court judges promulgated a code of evidence, was that code binding on the Supreme Court? Obviously, if there -- there is a recog -- has been a recognition in this state that there is a joint function in creating the rules of evidence, you have the right to pass statutes with respect to evidence, we have the common law of evidence that we develop. This had nothing to do with whether or not the Supreme Court could ignore or overrule a statute. This had to do with the power of the Superior Court judges to bind the Supreme Court judges.
SENATOR McDONALD: But -- and I understand that. But the Superior Court judges codified -- in adopting the rules of evidence, it codified within the code statutory evidentiary standards.
JUSTICE PETER T. ZARELLA: Right.
SENATOR McDONALD: So is there a carve-out in the DeJesus case to say that the Supreme Court can only overrule rules of evidence that were promulgated under the code of evidence under the common law and not under statute?
JUSTICE PETER T. ZARELLA: The -- the -- no. There wasn't a carve-out, and I don't believe that it was necessary to carve anything out, because the dispute in, and as I said, in DeJesus, revolved around the distribution of power inside the judicial branch. Nobody was suggesting that the Supreme Court, by common law, could ignore or overrule a statute.
SENATOR McDONALD: So what would happen if the Legislature codified the code of evidence into statute; would that be binding on the Supreme Court?
JUSTICE PETER T. ZARELLA: It's a -- that's a -- it's a difficult question. I think certainly -- it's a difficult question. I suspect you probably could.
SENATOR McDONALD: And --
JUSTICE PETER T. ZARELLA: And, in fact, I think the reason you didn't and specifically asked the -- the -- the judicial branch to do it was because when -- whenever you try and codify a major piece of work like the rules of evidence, you're going to have everybody sort of picking at their pet, you know, their pet peeves, and I guess that was the reason why it was asked that the code originally be codified and adopted by the -- by the judicial branch.
SENATOR McDONALD: Right. And -- but, see, the problem -- the problem I have is I under -- that predates my tenure here in the Legislature.
JUSTICE PETER T. ZARELLA: Right.
SENATOR McDONALD: The problem I have with that is, if something like that is done as a matter of convenience, a generation later it takes on added significance that it was somehow ceding power from one branch of government to another. And your branch of government is concerned with that type of thing; our branch of government is concerned with that type of thing. I'm just trying to figure out where that appropriate balance is because -- well, let me ask you the question.
Why should the judges of the Superior Court participate in an annual review of the rules of evidence if it doesn't appear to have any binding authority on the branch itself?
Does that not -- I understand we have a -- that there's an intellectual and constitutional issue at stake, but I'm trying to figure out why would judges waste their time in participating in that process if it didn't have any real-world consequences.
JUSTICE PETER T. ZARELLA: Well, if you take -- if you look at the code as a codification of existing law on a date its published, it's a very useful and -- and -- it's useful to attorneys. It's useful to judges. It's a very useful document.
Whether or not the judges of the Superior Court ought to be adopting it as a binding --
SENATOR McDONALD: Your Honor, could I interrupt you.
JUSTICE PETER T. ZARELLA: Sure.
SENATOR McDONALD: This is now the second time that the testimony has been interrupted by cell phones. Would everybody please take a moment to turn their cell phones off or turn them on to a silent mode so that we can give our full attention to Justice Zarella.
I apologize for interrupting, your Honor.
JUSTICE PETER T. ZARELLA: Unfortunately, and I agree with you, that sometimes things are done for one reason, but over the course of time that reason gets lost. My understanding of how the -- the code of evidence was originally delegated to the -- to the judicial branch was that there was --
SENATOR McDONALD: Not delegated.
JUSTICE PETER T. ZARELLA: Well -- I'm sorry. Ended up being done by the -- the judicial branch, was there was a joint committee of the Legislature and the judicial branch. And that committee, working together, codified -- they came up with the proposed codification of the rules of evidence, taking into account all of the case law and all of the statutes, incorporated it into this one document. I think it was 1999 this happened. It was then presented to this committee, it's my understanding, and after some thought it was decided -- and I was not part of it -- it was decided that it might be better if the judges -- if the judicial branch adopted it.
I think Justice Callahan was -- was the chief justice at the time, and a decision was made that, if there's a -- we have a rules committee who created a code of evidence committee inside the judicial branch, don't make a recommendation of -- on evidence rules to the rules committee, which will then pass it on to the judges of the Superior Court. I think that was chosen because it was the only method that was available, at that particular point in time, inside the branch itself for the adoption of any kind of rules.
SENATOR McDONALD: And one final question.
JUSTICE PETER T. ZARELLA: And I don't know what the support for that is. I don't know what the authority to do that is.
SENATOR McDONALD: One final question and then I'll shut up. The -- if the rules of evidence are not binding on the Supreme Court, given their constitutional role, right, how can they be binding on individual judges of the Superior Court who are also discharging their constitutional obligations?
JUSTICE PETER T. ZARELLA: Again, if -- if there is a separate source of authority such as a statute, it's binding on all of them. If it's common law that's where we --
(Gap in tape.)
JUSTICE PETER T. ZARELLA: -- have common law authority as well. If there's an area where no decision has ever been made on a particular evidentiary question, they're creating the common law.
If that is appealed to the Supreme Court, that becomes the ultimate common law authority.
SENATOR McDONALD: Understood. But it --
JUSTICE PETER T. ZARELLA: So if -- I'm sorry.
SENATOR McDONALD: No. Well, I mean, you know, any creative lawyer can find a nuance in any rule of evidence, and my concern is if that -- if that nuance is created, does that create an opening for a Superior Court judge to create a new rule of common law in spite of the code of evidence if they can crack the door open a little bit?
JUSTICE PETER T. ZARELLA: They -- they may. I mean, and there's nothing wrong with that because it will ultimately be reviewed by the Supreme Court. And either the imprimatur will be put on that or it won't. So I don't see that as a particular problem.
SENATOR McDONALD: Okay. Well, I'll be happy to take the subject up with you later. I appreciate your time. And, obviously, we are always illuminated by your comments, and I congratulate you on your nomination.
JUSTICE PETER T. ZARELLA: Thank you.
SENATOR McDONALD: Senator Kissel.
SENATOR KISSEL: Thank you very much, Chairman McDonald.
Justice Zarella, delighted to see you. Thank you for all
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I was terrorized at the Connecticut State Capitol [story]