State v. Peeler, SC18125

• Court: Supreme Court of Connecticut
• Writing for the Court: ZARELLA, J.
• Decision Date: 07 June 2016
• Parties: STATE v. PEELER
• Docket Number: SC18125

STATE
v.
PEELER

SC18125

Supreme Court of Connecticut

June 7, 2016

FIRST DISSENT

ZARELLA, J., dissenting. "I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion [on] the democratic process in order that the [c]ourt might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible . . . I agree with [United States Supreme Court] Justice [William O.] Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the [c]onstitution [that] he swore to support and defend, not the gloss [that] his predecessors may have put on it.' . . . Or as the [United States Supreme] Court itself has said: '[W]hen convinced of former error, [the] [c]ourt has never felt constrained to follow precedent. In constitutional questions, where correction depends [on] amendment and not [on] legislative action [the] [c]ourt throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.' " (Citation omitted.) South Carolina v. Gathers, 490 U.S. 805, 825, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989) (Scalia, J., dissenting), overruled in part on other grounds by Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).

I think my colleagues and I are well advised to carefully consider the words of Justice Antonin Scalia, particularly Chief Justice Rogers and Justice Robinson, who choose to uphold this court's decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), not because they have decided that that decision is right, but because of the dictates of stare decisis and concerns over the legitimacy of this court. I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error. Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so. As I shall explain subsequently in this opinion, this approach prevents Justice Robinson from conducting—or at the very least from demonstrating to the public and to this court that he has undertaken—a full, fair, and objective analysis of the benefit and costs of applying stare decisis to Santiago.

I need not further swell the Connecticut Reports with a lengthy exposition on why Santiago is wrong. It suffices to say that the majority in that case employed an improper legal standard and wrongfully usurped the legislature's power to define crime and fix punishment, and the six factors set forth in State v. Geisler, 222

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Conn. 672, 685, 610 A.2d 1225 (1992), support the conclusion that capital punishment remains consistent with the social mores of this state and is not cruel and unusual punishment in light of the passage of No. 12-5 of the 2012 Public Acts (P.A. 12-5). See generally State v. Santiago, supra, 318 Conn. 341-88 (Zarella, J., dissenting). Instead, the primary object of this dissent is to bring order to our inconsistent and irreconcilable stare decisis jurisprudence by articulating a defensible and objective stare decisis standard. Then, in applying that standard in the present case, I will show why affording stare decisis effect to Santiago creates more harm than it does good. Finally, I will explain why overruling Santiago will enhance, not diminish, the integrity and legitimacy of this court.

I STARE DECISIS

The concurring justices in the present case contend that the dictates of stare decisis require that we stand by our decision in Santiago.¹ In her concurring opinion, Chief Justice Rogers, quoting from Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), states: "[T]he doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some special justification." (Internal quotation marks omitted.) Then, quoting Justice Thurgood Marshall's dissenting opinion in Payne v. Tennessee, supra, 501 U.S. 849 (Marshall, J., dissenting), she provides the following special justifications: "the advent of subsequent changes or development in the law that undermine[s] a decision's rationale . . . the need to bring [a decision] into agreement with experience and with facts newly ascertained . . . and a showing that a particular precedent has become a detriment to coherence and consistency in the law . . . ." (Internal quotation marks omitted.) The majority in Payne, however, noted that the "[c]ourt has never felt constrained to follow precedent" when the "governing decisions are unworkable or are badly reasoned . . . ." (Emphasis added; internal quotation marks omitted.) Payne v. Tennessee, supra, 827; see also Seminole Tribe v. Florida, 517 U.S. 44, 63, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) ("[The court has] always . . . treated stare decisis as a principle of policy . . . and not as an inexorable command . . . . [W]hen governing decisions are unworkable or are badly reasoned, [the] [c]ourt has never felt constrained to follow precedent. . . . [The court's] willingness to reconsider [its] earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible." [Citations omitted; internal quotation marks omitted.]). In demanding some " 'special justification to overrule Santiago, Chief Justice Rogers overlooks contrary statements by both the United

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States Supreme Court and this court. The United States Supreme Court has often stated that it is not bound to follow unworkable or badly reasoned precedents. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 306, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004); see also Smith v. Allwright, 321 U.S. 649, 665, 64 S. Ct. 757, 88 L. Ed. 987 (1944) ("when convinced of former error, [the] [c]ourt has never felt constrained to follow precedent" [emphasis added]). In addition, we have often stated that we are free to overrule decisions that are clearly wrong. See, e.g., Conway v. Wilton, 238 Conn. 653, 660, 680 A.2d 242 (1996) ("[one] well recognized exception to stare decisis under which a court will examine and overrule a prior decision . . . [is when that prior decision] is clearly wrong" [emphasis added; internal quotation marks omitted]); see also State v. Salamon, 287 Conn. 509, 514, 526-27, 542-44, 949 A.2d 1092 (2008) (ultimately rejecting more than thirty years of this court's jurisprudence on Connecticut's kidnapping laws because majority of court was convinced it was wrong).

There is little doubt that Chief Justice Rogers overlooks the clearly wrong exception in our and the United States Supreme Court's stare decisis jurisprudence because it would lead her to no other conclusion than that Santiago must be overruled. A cursory reading of Chief Justice Rogers dissent in Santiago reveals beyond any doubt that she strongly feels that the majority's decision in Santiago is obviously wrong. In fact, her belief that Santiago was completely wrong was central to her dissent in that case and not merely an observation made in passing. She describes the majority's analysis in Santiago as "fundamentally flawed"; State v. Santiago, supra, 318 Conn. 231 (Rogers, C. J., dissenting); and "a house of cards, falling under the slightest breath of scrutiny." Id., 233 (Rogers, C. J., dissenting). She further stated that it was "riddled with non sequiturs . . . [a]lthough to enumerate all of them would greatly and unnecessarily increase the length of [her dissent]." Id., 242 (Rogers, C. J., dissenting). In Santiago, Chief Justice Rogers could uncover "no legitimate legal basis for finding the death penalty unconstitutional under either the federal or the state constitution"; id., 276 (Rogers, C. J., dissenting); leading her to conclude that the majority in Santiago "improperly decided that the death penalty must be struck down because it offends the majority's subjective sense of morality." Id., 277 (Rogers, C. J., dissenting).² In her dissent to this court's denial of the state's motion for argument and reconsideration of Santiago, Chief Justice Rogers further demonstrated how flawed she thought the decision in Santiago is. She stated: "Indeed, if there was ever any doubt, it is now inescapably clear that the three main pillars of the majority's analysis have no foundation . . . . State v. Santiago, 319 Conn. 912, 919, 124 A.3d 496 (2015) (Rogers, C. J., dissenting). In addition, she wrote: "By denying the state's motion

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for argument and reconsideration, the majority merely reconfirms my belief that it has not engaged in an objective assessment of the constitutionality of the death penalty under our state constitution. Instead, the majority's conclusion that the death penalty is unconstitutional constitutes a judicial invalidation, without constitutional basis, of the political will of the people." (Internal quotation marks omitted.) Id., 920 (Rogers, C. J., dissenting). In light of Chief Justice Rogers' repeated expressions regarding the fallacy of the majority opinion in Santiago, it is no wonder she now overlooks the clearly wrong exception to our stare decisis jurisprudence. She could not reasonably rely on stare decisis if she acknowledged that exception.

Chief Justice Rogers' action highlights a deeper problem with our case law on stare decisis. Our jurisprudence on stare decisis is constructed on contradictory principles inconsistently applied.³ The concurring opinions of Justices Palmer and Robinson in the present case suffer from similar shortcomings.⁴ Both fail to recognize the presence of certain characteristics that generally result in our affording of less stare decisis...