Governor's Commission Negligent

THE CHRIS POWELL COLUMN

For release Sunday, October 1, 2006
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NOTE: Also see Op-ed by Vince Valvo,
president of the Connecticut Council on Freedom of Information,
Commentary Page 1, Sunday Hartford Courant, 10-1-06.
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GOVERNOR'S COURT REFORM COMMISSION
EVADED TOP ISSUE: WHO MAKES THE RULES?

By CHRIS POWELL

Parallel commissions studying how to make Connecticut's courts more open, one appointed by the acting chief justice, the other by Governor Rell, have issued reports that differ substantially in just one respect.

The acting chief justice's commission knew exactly where to send its recommendations -- some to the convention of judges and some to the General Assembly. But the commission appointed by Governor Rell affected to have no clue about who should be in charge of what. The governor's commission said it "did not consider it within its mission to recommend whether a recommendation should be implemented by the judicial branch, the legislature, or both."

That is, the governor's commission carefully avoided the huge issue underlying the scandal that prompted the appointment of both commissions -- the issue of just who makes the rules for Connecticut's courts.

In contrast, the judiciary's commission had been appointed precisely to make whatever sacrifices to openness were necessary to subdue the clamor about judicial secrecy and unaccountability and thus to persuade the governor and the legislature to walk away from the problem and to allow the judiciary to continue legislating its own rules. But the governor's commission didn't have to have any angle apart from the public interest; the governor's commission was free to recognize that no unelected branch of government should be permitted to make its own rules.

Unfortunately the governor's commission also was dominated by judges and lawyers and so it declined to address the crucial question of jurisdiction. Thus the governor's commission defaulted. Its most important conclusion was, in effect, to leave judges free to make rules for court operations without supervision, free to continue to legislate, free to continue to separate the governor and legislature from their powers.

This situation can be corrected only with the constitutional amendment proposed by the minority on the governor's commission, making explicit the authority of the legislature and governor to make rules for the courts through ordinary legislation -- a proposal endorsed at the commission's final hearing not only by the usual resentful journalists but also an authority in constitutional law, University of Connecticut Law School Professor Richard S. Kay.

Will the judicial scandal be enough to prompt Governor Rell and the General Assembly to stand up for their own branches of government against the long reign of judicial imperialism, enough to prompt them to reclaim their constitutional powers? The governor's commission failed but she doesn't have to, and neither does the legislature, even though its Judiciary Committee is controlled by lawyers who draw most of their livelihoods from their private practice in the courts and would like appointment as judges when their legislative service is done.

Therein lies the great irony of the judicial scandal, which broke when Chief Justice William J. Sullivan was caught delaying publication of a Supreme Court decision against freedom of information so that his colleague, Justice Peter T. Zarella, who had concurred in the decision and had just been nominated as the next chief justice, could avoid questions about it during the legislative confirmation process.

Of course journalists and a few good-government types in the legislature might have complained about Zarella's participation in the judiciary's latest blow to freedom of information. But not the legislative committee with jurisdiction over Zarella's nomination, the Judiciary Committee. Indeed, under its co-chairmen, state Sen. Andrew J. McDonald, D-Stamford, and state Rep. Michael P. Lawlor, D-East Haven, both lawyers and opponents of freedom of information, the Judiciary Committee would have congratulated Zarella for helping to keep the public ignorant of court business and continuing to undermine the legislature's own authority to make rules for the courts.

This is no exaggeration. For the other day Superior Court Judge Dennis Eveleigh ruled that the Judiciary Committee could not subpoena Sullivan, now retired, in its investigation of his attempt to conceal Zarella's record from the committee -- and the committee meekly accepted the decision. Quashing the subpoena, the judiciary proclaimed: We are supreme in government in Connecticut, and you mere elected officials cannot even question us.

The Judiciary Committee's leaders affected to be disappointed by the quashing of the subpoena. But they were not really disappointed, not disappointed enough to do anything about it, not disappointed enough to move to impeach anyone or to legislate the General Assembly's authority back into law.

It's not that the lawyer-legislators on the Judiciary Committee have no self-respect. It's that they think of themselves as part of the branch of government they are supposed to be regulating, not the branch of government to which they were elected.

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Chris Powell is managing editor of the Journal Inquirer in Manchester, Conn.