Tuesday, September 12, 2006

Connecticut’s Constitution BBQ

POLITICS
Who Will Judge Sullivan Ruling? Jurists Backing Away From Battle Over Legislative Subpoena Of The Ex-Chief Justice
September 9, 2006 By LYNNE TUOHY, HARTFORD COURANT STAFF WRITER

The controversy swirling around former Chief Justice William J. Sullivan has many ramifications, not least of which is the challenge of finding judges to hear an appeal to resurrect the subpoena for his testimony issued by the co-chairmen of the legislature's judiciary committee.

The entire Supreme Court Friday disqualified itself from hearing an appeal filed earlier this week by Attorney General Richard Blumenthal, on behalf of judiciary committee co-chairmen Sen. Andrew McDonald and Rep. Michael Lawlor. Blumenthal is appealing the quashing of the subpoena for Sullivan's testimony.

In an order Friday, the high court relegated the case to the Appellate Court, and specifically Chief Judge Joseph Flynn and the two senior-most judges of that court-Barry R. Schaller and Thomas A. Bishop.

But by day's end, both Flynn and Schaller had disqualified themselves, leaving Bishop as chief judge in charge of the matter with the next two senior judges - Alexandra DiPentima and C. Ian McLachlan - to hear the case if Bishop grants Blumenthal permission to appeal.

Superior Court Judge Dennis Eveleigh in June quashed the subpoena for Sullivan's testimony on separation of powers grounds, saying the legislators could not subpoena the testimony of a judge absent impeachment proceedings or a nomination hearing.

Eveleigh said the legislature's power would be "limitless" and the judiciary would "be at serious risk of losing its identity as an independent branch of government" if lawmakers could subpoena judges at will.

Blumenthal filed a motion asking Eveleigh to reconsider; the motion was denied late last month.Acting Chief Justice David M. Borden intervened in support of Sullivan's motion to quash, in furtherance of the separation of powers principal. Therefore, when Blumenthal's petition seeking permission to appeal Eveleigh's ruling landed on his desk, Borden immediately disqualified himself from deciding the matter, an action he made clear during the first day of Sullivan's disciplinary hearing Wednesday.

So it fell to the next senior justice, Flemming L. Norcott Jr., to issue Friday's order.Sullivan has been charged with five counts of violating the Judicial Code of Conduct for secretly withholding release of a controversial ruling to further the chances that his close colleague, Justice Peter Zarella, would succeed him as chief justice. Sullivan resigned as head of the judicial branch effective April 15, and assumed senior justice status. Zarella asked Gov. M. Jodi Rell to withdraw his nomination when Sullivan's alleged misconduct was revealed on April 24.

In the course of his defense against the code violations, Sullivan has subpoenaed all six of his colleagues on the high court to testify, which is presumably why the court feels obligated to disqualify itself. Those six justices also voted April 20 on whether the court as an institution should refer Sullivan to the Judicial Review Council, and were divided 3-3, presenting another potential conflict of interest.

Judges do not have to state why they are disqualifying, or recusing, themselves from cases, and Flynn and Schaller offered no reasons Friday for doing so.

However, Flynn is very close to Sullivan, who appointed him chief judge.

Schaller, sources have said, has cleared background checks to be Rell's nominee to fill the next vacancy on the high court, and may have removed himself for that reason.

Bishop could unilaterally deny Blumenthal's request for permission to appeal. And if he permits the appeal, he could create a larger panel of judges than the three that typically hear Appellate Court casesBlumenthal said he was not surprised by the turn of events.

"Certainly after the former chief justice subpoenaed every member of the court, this development was much more likely, if not inevitable," Blumenthal said.

"On the other hand, it is completely unprecedented and extraordinary and, indeed, historic, for the entire Supreme Court to disqualify itself from hearing a lawful appeal. It says something about the significance and sensitivity of these issues."

Lawlor agreed.

"Who's ultimately going to decide this is still up in the air," he said.

"Obviously the more judges participating, the more credibility and significance the decision will have. This particular case presents a fundamental separation of powers issue. It is, as far as we know, unprecedented in the nation. There has never been a case of legislators subpoenaing a judge, other than in a formal impeachment proceeding," Lawlor said.

Contact Lynne Tuohy at ltuohy@courant.com.

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