Supreme Court To Field Full Panels In All Cases
BY THOMAS B. SCHEFFEY
In an effort to remove a nagging source of conflict, the Connecticut Supreme Court will begin fielding full seven-justice panels whenever possible, making a dramatic break from its previous practice of five-justice panels.
“I think it’s a great idea! I’ve been saying for years and years that they should sit en banc,” said Hartford appellate advocate and court historian Wesley W. Horton.
Previously, fielding a full court en banc panel was a special event, reserved for only the most controversial and potentially precedent-setting cases.
Chief Justice Chase T. Rogers is being credited with the initiative, which is in keeping with her expressed views that the court should be more open and less mysterious to the public it serves.
The policy, authorized as an internal court policy, keeps a purely Supreme Court panel without substitutions, even when one or two justices have to disqualify themselves. When one justice is recused, the high court said in its Sept. 2 announcement, “the Court will sit as a panel of six. If there are two disqualifications, the Court will sit as a panel of five.”
Sheila Huddleston, an appellate advocate and partner at Shipman & Goodwin in Hartford, said she was pleased by the change, especially if it helps the court render a final decision sooner.
In the past, after losing before a five-justice panel, a losing party could request reconsideration and reargument en banc. “The delay of reconsideration and reargument, a year after the case is decided, can be almost as disappointing to a client as losing,” said Huddleston.
She said that the upcoming September calendar has some panels of six justices, and that the procedure for resolving a 3 to 3 tie is established by Connecticut General Statute 52-209. It says that an additional judge will be added from the Appellate Court, and the matter will be reargued anew.
Charles Howard, a veteran appellate advocate and secretary of the Supreme Court Historical society, said he favored the new policy of full Supreme Court panels in as many cases as possible. “You get the benefit of every justice in every case,” he said.
In death penalty cases, the court is required to sit en banc by statute, and, even under the new policy, a seven-judge panel will be augmented with Appellate Court judges in the event of recusals.
The court announcement on its web site stated that the change is designed to “strengthen the precedential value of each opinion.”
The legal community and the public will not be left to wonder whether the case would have turned out differently if the full Supreme Court had considered the matter. Horton said one or two justices can make all the difference in how the argument proceeds and how the case is ultimately decided. “It seems to me that if you’re a justice on the top court, you want to be involved in all the cases in which you’re qualified to sit,” he said.
He added: I just don’t like the musical chairs aspect of the whole thing, where missing one or two of the justices changes the whole flavor of the argument and the decision.”
Daniel J. Klau, who co-chairs the Connecticut Bar Association appellate section, said Justice Peter T. Zarella met with the group in July, and was receptive to the section’s call for this change.
“There were one or two members who didn’t favor full en banc panels in every case,” said Margaret D. Little, of Stratford, a member of the section. Those opposed worried that full panels might slow the court’s rate of deciding its cases, she said.•
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