DiVito v. DiVito

• Decision Date: 08 July 2003
• Citation: 828 A.2d 617,264 Conn. 921
• Court: Connecticut Supreme Court
• Parties: JUDY DIVITO v. BRIAN DIVITO.

264 Conn. 921

828 A.2d 617

JUDY DIVITO v. BRIAN DIVITO.

Supreme Court of Connecticut.

Decided July 8, 2003.

Robert S. Kolesnik, Jr., in support of the petition.

Arnold M. Potash, in opposition.

The defendant's petition for certification for appeal from the Appellate Court, 77 Conn. App. 124 (AC 22445), is denied.

SULLIVAN, C. J., did not participate in the consideration or decision of this petition.

APPENDIX

JUSTICE DAVID M. SHEA 1922-2003

Justice David M. Shea died on July 22, 2003, at the age of eighty-one. His judicial service in this state spanned more than thirty seven-years. Each day of that service, David Shea exemplified Socrates' definition of the attributes of a good judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially. To this mix of admirable judicial attributes, David Shea added one more: boundless enthusiasm for exploring both the precise contours of a particular case and its implications for cases yet to come.

David Michael Shea spent almost all of his life in Hartford, where he was born on July 1, 1922, the second child of Michael and Margaret O'Leary Shea. He was educated at Our Lady of Sorrows School and then at Hartford High School, from which he graduated in 1940. After military service in the United States Army during World War II, he returned to Connecticut to complete his education at Wesleyan University and Yale Law School. For the next eighteen years, he was happily engaged in the private practice of law, mostly with the Hartford firm of Bailey, Wechsler and Shea. Throughout his subsequent career as a judge, he continued to live in Hartford with his beloved wife Rosemary and their eight children. Except for family summers in Vermont, he was regularly to be seen on Hartford streets, briskly walking his two large collies.

Justice Shea's judicial work began with his appointment as a judge of the Superior Court on January 1, 1966. Serving in that capacity for fifteen years, Justice Shea not only heard cases on the regular docket of the court but also served on its sentence review division and on its appellate session. On November 9, 1981, Justice Shea joined the Connecticut Supreme Court and remained an associate justice for the next eleven years until his constitutionally mandated retirement at the age of seventy in 1992. For another eleven years, he was a judge trial referee, undertaking responsibilities for trials, settlements and Appellate Court decision making. He brought his formidable judicial talents to bear wherever he was assigned.

The statistics of his work tell part of the story of Justice Shea's legacy to the law of this state. On the Supreme Court, he wrote 322 majority opinions as well as sixty concurrences. Always independent of mind, he also wrote eighty-six dissents.

Numbers do not, however, convey the intellectual commitment and the consummate good sense with which Justice Shea undertook the crafting of scholarly opinions on the wide range of subjects that came to the Supreme Court during his eleven year tenure. For his colleagues and for his law clerks, he was always available for searching discussions about the cases on the court's agenda and their likely consequences for future litigation. For one and all, he was a joy to work with because, unabashedly, he loved being a judge.

In addition to his judicial work, Justice Shea served for many years as the chairperson of the Rules Committee of the Superior Court. His prodigious institutional memory of the origins of various rules was an important resource on which his judicial colleagues were happy to rely. Indeed, procedural law was an area in which Justice Shea was especially knowledgeable. He frequently reminded the court that the purpose of rules of procedure was to facilitate rather than to obstruct litigation and he spearheaded the reform of administrative appeals in land use cases.¹ It is impossible to capture the width and breadth of Justice Shea's judicial career in a few short pages. Justice Shea's contributions to state constitutional law may, however, serve as a surrogate. Although Justice Shea's views of the provisions of the Connecticut constitution were sometimes controversial, each of his opinions reflected a keen understanding of the importance of these constitutional provisions and a keen concern for the role of a judiciary in applying open-ended constitutional language. It is in the area of state constitutional law that Justice Shea's opinions have cast the longest shadow.

Three cases illustrate the manner in which Justice Shea, writing for the court, addressed state constitutional issues. In Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984), he recognized the independent role of the free speech provision of our constitution, holding that "[f]ederal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights." In Pellegrino v. O'Neill, 193 Conn. 670, 676, 480 A.2d 476 (1984), he articulated the principle that, as a matter of state law, "the constitutional obligations to provide justice without undue delay and to afford due process of law must be taken to empower the courts charged with that responsibility to have access to the state treasury in an emergency for any funds reasonably necessary for that purpose." In each of these cases, he nonetheless concluded that the plaintiffs could not prevail. By contrast, in Tamm v. Burns, 222 Conn. 280, 610 A.2d 590 (1992), he reiterated, as a prior case had held, that the state could not rely on sovereign immunity to defeat a plaintiff's claim for just compensation for property taken by the state, reasoning that "the doctrine of sovereign immunity is not available to the state as a defense to claims for just compensation arising under article first, § 11, of the Connecticut constitution." (Internal quotation marks omitted.) Id., 283.

Despite his principled recognition of state constitutional law, Justice Shea was reluctant to construe state constitutional language that mirrored that of the federal constitution to achieve an outcome that departed from established federal constitutional case law. He thus dissented from cases holding that, under the state constitution's due process clause, a custodial suspect must be informed that an attorney is ready to provide legal guidance² and that under the state constitution's confrontation clause, a child victim may testify on videotape.³ In his view, in the absence of persuasive historical evidence to the contrary, Connecticut constitutional law ordinarily should follow federal constitutional law.

In one of his most important opinions, however, Justice Shea went further. The case is State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990). The opening sentence of his opinion set the stage. "The dispositive issue in this appeal is whether evidence seized by police officers in violation of our state constitution may be admitted during a criminal trial, as part of the state's case-in-chief, under a `good faith' exception to the exclusionary rule." Id., 151. Justice Shea recognized that, in United States v. Leon, 468 U.S. 897, 911-12, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1987), the United States Supreme Court, construing the federal constitution, had held such evidence to be admissible. Many state courts had followed suit. Nonetheless, for a unanimous Connecticut Supreme Court, he made it clear that the right answer to this question was a resounding "No." Justice Shea's reasoning was compelling. He focused on Leon's premise that exclusion of evidence seized pursuant to a defective warrant would not have a significant deterrent effect either on the issuing judge or magistrate or on police officers preparing warrant applications. He disagreed with this premise. Drawing on his own experience as a trial court judge confronted with requests for warrant authorizations at all hours of the day and night, he held that the law should not create disincentives for police officers to search for a proper factual basis for an enforceable warrant or for judges to scrutinize warrant applications with care. The Marsala opinion commands respect because of Justice Shea's effective blending of searching legal analysis with every day experience on the ground.

Finally, Justice Shea's opinions, in state constitutional law and elsewhere, reflect his deep understanding of the relationship between legal principles and democratic principles. His opinion in Pellegrino speaks eloquently to these values. For the majority, he concluded that our state constitution did not confer on judges the authority to compel the legislature to appoint additional judges, even if their absence substantially impaired the...