Commentary––

Connecticut’s Judges Refuse Accountability

By Chris Powell

No more secret lawsuits, news reports proclaimed about the convention of Connecticut’s judges held the other day.

Not quite.

Yes, the judges adopted rules that prohibit sealing a lawsuit up so tight that nobody except the parties to it can even know it’s there. But the rule won’t take effect for a few weeks, and the lawsuits that already have been completely concealed will stay secret, no matter how many there are. (The Judicial Department keeps changing the number.) The wrongs already committed will not be righted. And though the Judicial Department knows or can determine which judges engaged in secret lawsuits, it continues to reject requests to identify them.

Further, even as Connecticut’s leading judges have spent weeks making a show of their devotion to openness and accountability, the full judiciary turned aside with contempt the urgings of legislators and citizens to hold its convention in public and to let the public see how each judge voted on the rules changes. Indeed, according to the little information that escaped their convention, the judges insisted on a secret paper ballot vote, lest even their own colleagues find out how they performed in public office.

The reported implication of the secret paper ballot was that the judges who wanted to preserve the ability to keep lawsuits secret feared retaliation from the good guys in the controversy –– Chief Justice William J. Sullivan and Supreme Court Justice Peter T. Zarella, chairman of the Judicial Department’s Rules Committee, who, conscious of the disgrace that has fallen upon the department, worked furiously to diminish it with the rules change. But judges may have wanted a secret ballot just as much so they might never have to account for their vote to the public and the General Assembly, which confers judicial reappointments.

The way the Judicial Department continues to operate, its rules could change back again in favor of secret lawsuits without any notice to the public and the legislature. The judges could call another secret convention and hold another secret ballot and adopt secret rules allowing secret lawsuits. In fact, many if not most judges argue that the state Constitution allows them to do this –– that as a matter of law they answer to no one, no how.

This is what many judges call the constitutional principle of “separation of powers.” They say it means that laws made by the elected branches of government can’t tell the appointed branch of government what to do. This interpretation of “separation of powers” is self-serving and revolutionary bunk. Make that counterrevolutionary bunk, since the revolution in these parts, however much it is forgotten, was democracy.

This problem of a secretive and unaccountable judiciary continues to fester behind the cosmetics just hurriedly applied by Chief Justice Sullivan and Justice Zarella because the General Assembly continues to be intimidated by judges and lawyers out of its responsibility to hold the courts to account, continues to be separated out of its own powers. For Connecticut’s Constitution gives the state’s courts no powers at all.

The section of the Constitution establishing the judiciary is the briefest of the sections establishing the three branches of government. It simply creates the courts and then declares, “The powers and jurisdiction of these courts shall be defined by law.”

That is, the courts can do only what statute law authorizes them to do. Since, when the Constitution was adopted in 1965, Connecticut still aspired to be a democracy, this is only common sense. Jurisdictions where unelected officials make law and regulations are something less than democracies.

The provocation from the Judicial Department to democracy and to the General Assembly’s authority is greater than ever now and the legislature should stop shrinking from it. The Judicial Department’s rules changes solve little. Lawsuits remain secret, as does the whole process of making rules for the courts. If the principle of “separation of powers” is really to be followed, the rule-making function, being legislative, belongs to the legislature; the judicial function is only to decide cases, and judges must stop making rules.

Thus more than ever Connecticut needs a law or two getting the Judicial Department out of the legislation business –– ordering disclosure of the lawsuits that otherwise will remain secret despite the judiciary’s rules change; identifying the judges who, doing favors for the influential, concealed lawsuits; requiring the Judicial Department to get the General Assembly’s and the governor’s ratification of any rule making the department presumes to do for itself; and fully subjecting the Judicial Department to Connecticut’s Freedom of Information Act. In short, legislation to bring Connecticut’s courts back into a democratic system of government.

And for the next eight years or so –– the term of office for Connecticut’s judges –– the most compelling question for the legislature to put to judicial nominees may be how they have just voted or would vote in the future on issues of secrecy.

Connecticut’s courts should be the defenders of democracy, not its subverters, and should be so not just for the public’s sake but also for their own –– for the maintenance of public confidence. The courts should do whatever they can to disperse the cynicism that is devouring Connecticut’s institutions and its public life, not nurturing that cynicism with secrecy, arrogance, and self-serving doctrinal contrivances.

A lord chief justice of England, John Gordon Hewart, knew this sort of thing. Remaining a small-d democrat even after leaving Parliament for the bench, he wrote in a decision in 1923: “A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”

In its Declaration of Rights, Connecticut’s Constitution puts it even more forcefully: “All courts shall be open.” Many of them don’t realize it, but having taken an oath to that Constitution, Connecticut’s judges and legislators have already sworn to make it so.

(Chris Powell is managing editor of the Journal Inquirer in Manchester.)