STATE v. PEELER
Supreme Court of Connecticut
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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
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 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
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,
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). 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 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.
The inconsistent application of stare decisis leaves this court open to criticism that it is employing that doctrine to reach ideologically driven or politically expedient results, a real threat to this court‘s integrity and institutional legitimacy. Due to the underdevelopment of our stare decisis case law, that doctrine can be easily manipulated to reach a desired result. Thus, I take this opportunity to articulate a principled framework for the application of stare decisis. Then, I will demonstrate why, in
Before I delve into the stare decisis framework and application, it is important that I address two preliminary matters. First, stare decisis has both a vertical and horizontal component. See, e.g., W. Consovoy, “The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic Adjudication,” 2002 Utah L. Rev. 53, 55. Vertical stare decisis refers to the principle that the decisions of this court are binding on the lower courts of this state. Id.; see also Black‘s Law Dictionary (10th Ed. 2014) p. 1626 (defining vertical stare decisis as “[t]he doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction“). On the other hand, horizontal stare decisis addresses when this court should adhere to its own earlier decisions. See W. Consovoy, supra, 55; see also Black‘s Law Dictionary, supra, p. 1626 (defining horizontal stare decisis as “[t]he doctrine that court, esp[e- cially] an appellate court, must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself“). The balance of this opinion concerns only horizontal stare decisis.
Second, in my view, stare decisis has two modes of operation. As a general matter, stare decisis, Latin for “to stand by things decided“; (internal quotation marks omitted) Black‘s Law Dictionary, supra, p. 1626; is a doctrine that directs a court to adhere to its earlier decisions or to the decisions of courts that are higher in a jurisdiction‘s judicial hierarchy. More specifically, however, the doctrine operates in two distinct manners. First, the doctrine functions automatically in most cases. I will call this mode of operation the rule of precedent. Under this aspect of stare decisis, the court assumes that its prior decisions are correct and relies on such decisions in deciding the case before the court. Under the rule of precedent, our previous decisions are the bricks of the foundation on which the pending case will be decided. Moreover, we rely on such decisions, in large part, simply because they were decided prior in time, that is, because they are precedent. Each time this court cites a previous case to support a proposition, the rule of precedent mode of operation of stare decisis is implicitly at work. Second, stare decisis operates more explicitly and directly when we reconsider a previous decision or line of decisions. In this context, the doctrine provides a framework for determining whether the court should continue to abide by a past decision, even though it may be wrong. It is this distinct mode of operation—more particularly, the framework it provides—that I will address in this opinion. With these preliminary ideas in mind, I now turn to articulating a principled doctrine of stare decisis.
A
A Principled Doctrine of Stare Decisis
As I just explained, stare decisis guides this court‘s determination of whether it should adhere to a previous erroneous decision. Implicit in this framing of stare decisis is that the court must decide
I do not mean to suggest, however, that the wrongness of the previous decision is part of the stare decisis calculus. It is not. Indeed, it is fundamental that we avoid conflating the merits and stare decisis considerations. The reasons should be obvious. If a case could be overruled simply because a majority of justices believes it had reached the wrong conclusion, precedent would have no independent value, and stare decisis would be a hollow doctrine. See F. Schauer, “Precedent,” 39 Stan. L. Rev. 571, 575-76 (1987) (argument based on precedent places value on past decision merely because it was decided in past, despite present belief that past decision was erroneous); see also Hubbard v. United States, 514 U.S. 695, 716, 115 S. Ct. 1754, 131 L. Ed. 2d 779 (1995) (Scalia, J., concurring in part and concurring in the judgment) (explaining that court must give reasons for ignoring stare decisis, “reasons that go beyond mere demonstration that the overruled [decision] was wrong . . . otherwise the doctrine would be no doctrine at all“). Moreover, the oft-repeated adage that, “in most matters it is more important that the applicable rule of law be settled than that it be settled right“; Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S. Ct. 443, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting); would be empty of any meaning. In addition to placing too little value on precedent, the wrongness of a previous decision should not factor into the stare decisis calculus because it is difficult to quantify or measure the degree of a particular decision‘s wrongness. See J. Fisch, “The Implications of Transition Theory for Stare Decisis,” 13 J. Contemp. Legal Issues 93, 105 (2003). The ability to distinguish between the degrees of wrongness of previ-ous cases becomes necessary, however, if wrongness is part of the stare decisis calculus. That is, if a lesser degree of error is tolerable but a higher degree of error is intolerable, some mechanism is needed to measure and distinguish degrees of error; but developing such a mechanism is prohibitively difficult. See id. Thus, when we reconsider a previous decision of this court, the stare decisis framework is applied only after we have determined that the previous decision is incorrect, irrespective of how wrong it is. Moreover, the merits determination is independent of, and has no impact on, the stare decisis analysis.
Under this construction of stare decisis, the fact that Chief Justice Rogers and Justice Robinson rely on the doctrine of stare decisis to uphold Santiago suggests
The doctrine of stare decisis naturally raises the following question: what justifies a doctrine that counsels this court to adhere to certain erroneous decisions? We have repeatedly stated that “[t]he doctrine is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.” Conway v. Wilton, supra, 238 Conn. 658-59. Moreover, “it gives stability and continuity to our case law.” Id., 658. Undoubtedly, this desire to achieve stability and consistency in our law is born from respect for the rule of law. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (“[i]ndeed, the very concept of the rule of law underlying [the United States] [c]onstitution requires such continuity over time that a respect for precedent is, by definition, indispensable“). If fidelity to or concern for the rule of law justifies the doctrine of stare decisis, at least in part, then it is important that we understand what is encompassed in that ideal. At its essence, the rule of law is the concept that governmental power is exercised under, and constrained by, a framework of laws, not individual preference or ideology. J. Waldron, “Stare Decisis and the Rule of Law: A Layered Approach,” 111 Mich. L. Rev. 1, 3 (2012). As Professor Randy J. Kozel aptly observed, this idea can helpfully be understood by comparison to its converse, the rule of individuals; see R. Kozel, “Settled Versus Right: Constitutional Method and the Path of Precedent,” 91 Tex. L. Rev. 1843, 1857 (2013); and Thomas Paine captured the concept when he proclaimed “that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” T. Paine, Common Sense and Other Writings (2005) p. 44. Thus, adherence to the doctrine of stare decisis creates the appearance, and at times the reality, that this court is guided and constrained by the law—both written law, the constitution and statutes, and decisional law, the rules set forth in the decisions of this court—and not the whim of its individual members.
What should be obvious, however, is that application of stare decisis can come into tension with the rule of law as well. For example, if this court, upon later consideration, concludes that our earlier reading of a constitutional provision was incorrect but nonetheless decides, due to stare decisis, to follow that erroneous reading, we have entrenched the rule of individuals—those individuals who comprised this court at the time of the earlier decision—rather than the rule of law. See J. Waldron, supra, 111 Mich. L. Rev. 7. This tension is particularly problematic in the context of constitutional adjudication, in which the text of the constitution, and not the construction given to it by this court, is the binding and supreme law. Id. After all, and in the words of Justice Douglas, a judge must remember, “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.” W. Douglas, “Stare Decisis,” 49 Colum. L. Rev. 735, 736 (1949).
Perhaps because of this inherent and unavoidable tension, we have long held that stare decisis is not an absolute impediment to change in our case law. See, e.g., White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990). Instead, we have called for a balancing of the benefits and burdens of stare decisis, noting we “should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision.” (Internal quotation marks omitted.) State v. Salamon, supra, 287 Conn. 520; see also State v. Miranda, 274 Conn. 727, 733, 878 A.2d 1118 (2005) (“there are occasions when the goals of stare decisis are outweighed by the need to overturn a previous decision in the interest of reaching a just conclusion in a matter“). Unfortunately, we have never
The remainder of this part of the opinion articulates a principled balancing test this court should employ when determining whether to afford stare decisis effect to a previous decision that it is convinced is wrong or about which it has serious doubts. The balancing test I advocate includes four factors, one benefit and three costs. On the benefit side of the scale is the protection of reliance interests. The countervailing weights, that is, the costs of adhering to an erroneous judicial decision, are the (a) cost of error correction, (b) cost to the constitutional order, and (c) cost of unworkability or uncertainty. Each of these four factors will be discussed in this opinion. The analysis of each factor and the weighing of the benefit factor against the cost factors occur only after the court has concluded that the precedent in question is wrong.
1
Benefit of Stare Decisis—Protection of Reliance Interests
At first glance, it would appear that the benefits of stare decisis are stability and constancy in the law. See, e.g., Conway v. Wilton, supra, 238 Conn. 658 (“[t]his court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law“). We have acknowledged, however, that adherence to precedent, and thereby stability and constancy, “is not an end in and of itself“; (internal quotation marks omitted) State v. Salamon, supra, 287 Conn. 520; and, therefore, there must be some other interest protected or policy served by stability and consistency that is the benefit of stare decisis.
Upon reviewing our cases and the academic literature on stare decisis, I conclude that the benefit served by stare decisis is the protection of reliance interests. In fact, two of the stare decisis
We have also directly recognized the importance of reliance interests when deciding whether to apply the doctrine of stare decisis. For example, in cases involving tort or criminal law, we often remark that “[t]he arguments for adherence to precedent are least compelling . . . when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants . . . .” (Internal quotation marks omitted.) State v. Salamon, supra, 287 Conn. 523; accord O‘Connor v. O‘Connor, 201 Conn. 632, 644, 519 A.2d 13 (1986). In Salamon, this court was confronted with whether an accused could be convicted under a kidnapping statute,
This court similarly cited reliance, or the lack thereof, in overruling prior precedent in Conway v. Wilton, supra, 238 Conn. 677. In Conway, we reconsidered whether municipalities and their employees were owners under the Connecticut Recreational Land Use Act (act),
Fostering and protecting reliance interests are important because, as Professor Jeremy Waldron has commented, creating a sense that the law can be relied on allows people to better exercise their liberty. J. Waldron, supra, 111 Mich. L. Rev. 9. Although legal constraint is inescapable in the modern era, freedom is nonetheless possible, Professor Waldron states, “if people know in advance how the law will operate, and how they must act to avoid its having a detrimental impact on their affairs.” J. Waldron, “The Concept and the Rule of Law,” 43 Ga. L. Rev. 1, 6 (2008). Stated differently, if the law is relatively unchanging and known, individuals can anticipate, when facing new situations, how they will be treated by the law and plan their conduct accordingly.
Specific reliance arises when an individual or group conforms its behavior to rules announced by the court. For example, the United States Supreme Court has long held that stare decisis has special force in cases involving contract or property law. See, e.g., Payne v. Tennessee, supra, 501 U.S. 828 (“[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved“); see also T. Lee, “Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court,” 52 Vand. L. Rev. 647, 691-98 (1999) (tracing property and contract distinction back to early nineteenth century United States Supreme Court cases). That court has explained that cases announcing property or contract rules are entitled to greater stare decisis weight because “[everyone] would suppose that after the decision of [the] court, in a matter of that kind, [they] might safely enter into contracts, upon the faith that rights thus acquired would not be disturbed.” Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 458, 13 L. Ed. 1058 (1851). It has also been observed that upsetting cases that establish rules of property can be injurious to many titles because, in conveying property, individuals rely on existing property and contract rules. See, e.g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486-87, 44 S. Ct. 621, 68 L. Ed. 1110 (1924); see also, e.g., Ozyck v. D‘Atri, 206 Conn. 473, 484, 538 A.2d 697 (1988) (Healey, J., concurring) (noting reason “stare decisis applies with special force to decisions affecting titles to land is the special reliance that such decisions mandate“). Conversely, we have opined that cases establishing rules of tort or criminal law receive diminished stare decisis weight, reasoning that such cases, particularly unintentional tort cases, are unlikely to influence individual behavior. See, e.g., State v. Salamon, supra, 287 Conn. 523 (“[p]ersons who engage in criminal misconduct, like persons who engage in tortious conduct, rarely if at all will . . . give thought to the question of what law would be applied to govern their conduct if they were to be apprehended for their violations” [internal quotation marks omitted]); O‘Connor v. O‘Connor, supra, 201 Conn. 645 (abandoning this court‘s categorical allegiance to place of injury test when determining what law should apply in tort cases, reasoning that departing from precedent would not upset any expectations of litigants because they will rarely “give thought to the question of what law would be applied to govern their conduct if it were to result in injury” [internal quotation marks omitted]).
The Executive and Legislative Branches, along with local governments, also rely on this court‘s decisions. In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), Chief Justice Sullivan invoked legislative reliance in his dissent, urging the court to adhere to the status quo. See id., 348-50 (Sullivan, C. J., dissenting). In Craig, this court created a common-law negligence action against a purveyor of alcohol who negligently serves alcohol to an intoxicated person who subsequently causes injuries to another person. See id., 314, 339-40.
The judiciary, including this court, also relies on our precedent. Under this form of reliance, our cases, as well as those of the Appellate Court and the trial courts, build on one another, resulting in the development of a doctrinal structure. Cf. R. Kozel, supra, 67 Wash. & Lee L. Rev. 459. For example, this court has established a state double jeopardy jurisprudence that is founded on our recognition in Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626 (1962), cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962), that, despite the absence of a double jeopardy clause in the state constitution, the due process clause of article first, § 9, of the Connecticut constitution of 1818, which now appears in
The final form of reliance is societal reliance. Unlike the three previous forms of reliance, societal reliance is concerned with perception, not behavior. A court‘s precedents, particularly its constitutional precedents, have the ability to shape a society‘s “perceptions about our country, our government, and our rights.” R. Kozel, supra, 67 Wash. & Lee L. Rev. 460. The United States Supreme Court case of Dickerson v. United States, supra, is instructive. In Dickerson, the court considered, among other things, whether Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), should be overruled insofar as it requires the suppression of an arrestee‘s unwarned statements. See Dickerson v. United States, supra, 432, 443. Chief Justice William Rehnquist, writing for the court, declined to do
After the court has assessed and articulated the reliance interests of each category just described, it should turn to an examination of the disruption that would be caused if the precedent relied on is overruled. An assessment of the disruptive effect of overruling precedent considers the adjustment costs that would arise from the need to modify behavior tailored to conform with the precedent the court is contemplating overruling. See R. Kozel, “Precedent and Reliance,” 62 Emory L.J. 1459, 1486 (2013). Questions the court might consider when evaluating disruption costs include whether the overruling would (1) create a need for significant restructuring of corporate organizations or commercial transactions, (2) call into question the enforceability of contracts or title to real property, (3) cause a significant reordering of individual conduct, including risk shifting arrangements such as insurance policies, (4) upset a duly enacted legislative scheme and require the development of a new regulatory regime, (5) undermine the foundational decisions of a robust judicial doctrine, and (6) affect the broader, societal understanding of our constitutional system. Assessing the reliance engendered by a previous case and the costs that would arise from overruling such a case is the first step this court should undertake in balancing the benefit and costs of applying stare decisis to that case.
2
Costs of Stare Decisis
Once the benefit of applying stare decisis and adhering to precedent has been uncovered and quantified, the court must consider the burdens of applying stare decisis. Generally speaking, the burdens of applying stare decisis are the costs that result from perpetuating judicial error. As I noted previously in this opinion, there are three costs for the court to consider, and I will consider each in turn.
When evaluating the costs that would result from preserving
a
Cost of Error Correction
The United States Supreme Court has long recognized that stare decisis has diminished force when the precedent in question interprets or applies the constitution, as opposed to a statute. See, e.g., Burnet v. Coronado Oil & Gas Co., supra, 285 U.S. 406-407 (Brandeis, J., dissenting) (“in cases involving the [f]ederal [c]onstitution . . . [the] [c]ourt has often overruled its earlier decisions“); see also Agostini v. Felton, 521 U.S. 203, 235, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (noting that stare decisis “is at its weakest” in constitutional adjudications). The court has justified this constitutional-statutory dichotomy by explaining the relative difficulty of correcting constitutional error as compared to correcting statutory error. See, e.g., Agostini v. Felton, supra, 235. When a court reaches an erroneous conclusion about the meaning or application of the constitution, such an error can be corrected only by judicial decision or constitutional amendment. See id. Conversely, when a court improperly interprets a statute, the legislature, through a simple majority, can correct such error. See Burnet v. Coronado Oil & Gas Co., supra, 406 (Brandeis, J., dissenting). At least one justice of this court has, in the past, approved of this reasoning. See State v. Lawrence, supra, 282 Conn. 187 (Katz, J., dissenting) (“it is well recognized that, in a case involv[ing] an interpretation of the [c]onstitution . . . claims of stare decisis are at their weakest . . . where [the court‘s] mistakes cannot be corrected by [the legislature]” [internal quotation marks omitted]). Although the court does not discuss it in these terms, it can fairly be said that the preservation of judicial constitutional error imposes greater costs than the preservation of statutory error due to the limited recourse of the people to correct such error. See K. Lash, “The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory,” 89 Notre Dame L. Rev. 2189, 2195-97 (2014). Professor Kurt T. Lash has explained that, “[b]ecause remedying judicial errors involving constitutional interpretation remains beyond the ordinary reach of the democratic process, this heightens the potential ‘cost’ of such errors.” Id., 2196. The cost of correcting constitutional error in Connecticut is particularly significant due to our onerous constitutional amendment process, which allows Connecticut citizens to directly call for constitutional change only once every twenty years.
Cost to the Constitutional Order
The preservation of judicial constitutional error may result in costs beyond those arising from the difficulty of correcting such an error. Such costs result when a judicial decision alters or disturbs the state polity. A brief digression into our constitutional history and theory is needed to better understand this harm.
A fundamental principle of American government and constitutions, including the constitutions of the many states, is popular sovereignty. See A. Amar, “The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem,” 65 U. Colo. L. Rev. 749, 749-51 (1994). In essence, popular sovereignty is the theory that, in a free society, the people hold the power, and the government has only that power the people delegate to it. Id., 762-66 (explaining founding era understanding of republican government). The delegation of power occurs through the adoption of a constitution, which establishes the government and delegates the power among the branches. See id., 764. Through this delegation, the peo-ple may reserve certain rights to themselves, limiting the government‘s power to act in particular areas. Also central to popular sovereignty is the people‘s ability to alter or abolish the established government, a right they exclusively hold. See id., 749, 762-64. That is, only the people, and not the governmental institutions they have ordained, can alter the structure and powers of government. See id.
The colonial citizens of Connecticut were no strangers to the ideals embodied in popular sovereignty. In fact, evidence dating back to the 1630s demonstrates that the populace of the Connecticut colony adopted the popular sovereignty principles. See, e.g., W. Horton, “Law and Society in Far-Away Connecticut,” 8 Conn. J. Intl. L. 547, 549-50 (1993). In a 1638 sermon, Puritan Reverend Thomas Hooker expounded on these principles. See H. Cohn, “Connecticut Constitutional History: 1636-1776,” 64 Conn. B.J. 330, 332-33 (1990). Specifically, Reverend Hooker stressed that the civil power resided with the people, the people had the authority to elect their political leaders, and the people established the limits within which their political leaders could act. See id. This sermon, it is argued by many, was the catalyst of the Fundamental Orders of 1639. See, e.g., id., 333-34; see also
With this historical and theoretical background in mind, I return to discussing the costs inherent in following erroneous constitutional decisions. In constitutional adjudication, we must take special care to ensure that we are enforcing the will of the people as expressed in their constitution. Because the ultimate power rests in the people and has been allocated to the separate branches of government, it is our duty to ensure that each branch, including the judiciary, does not usurp the power of its coequal branches. It is especially important that we take pains to restrain this branch, because a usurpation of legislative or executive power is, in effect, a usurpation of the people‘s power. It is true that the constitution entrenches certain fundamental principles, such as the freedom of the press, to immunize them from majoritarian control; however, most political and policy questions have been left to democratic rule, that is, majority control through the elected branches of government. In such cases, the people exercise their power and carry out or vindicate their will at the ballot box. Thus, it is essential that we not immunize from majoritarian control those questions that the people have left to the political process. To do so would be to misappropriate the power of the people.
When we erroneously interpret or apply the constitution in ways that upset the governmental structure or intrude on the democratic process by frustrating the majoritarian government, we levy a cost on the constitutional order. See, e.g., K. Lash, “Originalism, Popular Sovereignty, and Reverse Stare Decisis,” 93 Va. L. Rev. 1437, 1442 (2007). Professor Lash provides a taxonomy that is helpful in understanding and evaluating such errors and the costs they impose. See id., 1457-61. He organizes judicial error in constitutional cases into two broad parameters, namely, intervention versus nonintervention, and immunity versus allocation. Id., 1454. He explains his classifications as follows: “First, courts may wrongfully intervene in the political process or they may wrongfully fail to intervene. Second, judicial error may involve a question of immunity (whether the government has any power over a given subject) or a question of allocation (which governmental institution has power over a given subject).” (Emphasis omitted.) Id. The degree of harm imposed on popular sovereignty and the constitutional order, of course, varies with the type of error; see id., 1457-61; and, as Professor Lash explains, depends on how intrusive the error is on the political process. See id., 1456-57.
I will begin with errors of allocation that, generally speaking, impose the smallest amount of harm on our constitutional order. See id., 1457-58. Allocation cases are those involving questions of separation of powers. See id., 1455. When the court erroneously allocates power to the wrong branch of government, the harm is minimal because, in most cases, the political process can correct such error. See id., 1457. For example, if we incorrectly determine that the Executive Branch has a power the constitution does not grant that branch, the people can reject
Cases of immunity involve the question of whether a particular issue is subject to political resolution; see id.; that is, whether the constitution has entrenched a principle, such as the freedom of the press, or left a question to the democratic process, such as general economic legislation. Immunity errors come in two forms, nonintervention and intervention. See id., 1459. A nonintervention error imposes fewer costs on the constitutional order than does an intervention error. See id. Erroneous nonintervention occurs when the court fails to intervene, thereby overlooking a principle entrenched in the constitution and leaving it to the political process. See id., 1454, 1459. Such error does undermine the legitimacy of our constitutional system by allowing a simple majority in the General Assembly to trump the entrenched will of the people; nonetheless, the costs generated by erroneous nonintervention are limited because the issue remains subject to majority control. See id., 1459. Thus, if the court fails to protect a right entrenched in the constitution, the people can mobilize and, through the General Assembly, act to protect such right through legislation. See id.
On the other hand, intervention error occurs when the court entrenches a principle in the constitution that, under a proper reading of the document, has no constitutional status. See id., 1455. Such error inflicts the greatest costs on popular sovereignty and the constitutional order because it often removes from the political process an issue that the constitution left to that process. See id., 1460-61. Worse yet, the people have only one avenue to correct such error, namely, constitutional amendment, which requires either supermajoritarian action by the General Assembly or awaiting the electorate‘s next opportunity to call a constitutional convention. See footnote 15 of this opinion.
c
Cost of Unworkability or Uncertainty
Perpetuating unworkable rules or uncertain judicial decisions also imposes costs. This principle naturally flows from the justifications for stare decisis. That is, if stare decisis is a defensible doctrine because it creates predictability and stability in the law; see, e.g., Conway v. Wilton, supra, 238 Conn. 658; then decisions that create uncertainty “undermine, rather than promote, the goals that stare decisis is meant to serve.” Johnson v. United States, 576 U.S. 591, 605, 135 S. Ct. 2551, 2563, 192 L. Ed. 2d 569 (2015). It would be ironic to adhere to an uncertain precedent under the guise of stare decisis. Often, this principle arises when the court finds a previously announced rule to be unworkable or when it discovers that a particular precedent has come into conflict with another case or line of cases. There is no reason, however, why the same principle should not apply when a case, despite not being unworkable or creating conflict in court jurisprudence, creates uncertainty. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310, 379, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (Roberts, C. J., concurring) (“[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent‘s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases . . . and when the precedent‘s underlying reasoning has become so discredited that the [c]ourt cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.“); United States v. Dixon, 509 U.S. 688, 711-12, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993) (overruling earlier case in part because it created confusion).
In summary, under this framework, the court weighs the benefit and costs of adhering to prior cases. The court would employ a four step test in assessing whether
B
Application of Principled Doctrine of Stare Decisis to Santiago
The court‘s adoption of the four step test outlined in part I A of this opinion would result in a more consistent and principled application of the doctrine of stare decisis. In fact, applying this approach would shield this court from the appearance that the doctrine of stare decisis is used as a tool to reach a preferred result. I will now apply this framework in the present case to consider whether stare decisis should be applied to our decision in Santiago.
1
Step One: The Merits of Santiago
As I previously observed, it would serve no purpose to lengthen this dissent with further explanation as to why Santiago was wrongly decided. Instead, it suffices to say that, for the reasons Chief Justice Rogers, Justice Espinosa, and I provided in our dissenting opinions in Santiago, that decision was wrong then and continues to be wrong now.
2
Step Two: The Lack of Reliance Santiago Has Engendered
In part I A of this opinion, I explained that reliance interests can generally be placed into four categories: specific reliance; governmental reliance; court reliance; and societal reliance. I will consider each category in turn.
It cannot genuinely be argued that Santiago has garnered any specific reliance. The individuals currently on death row have not acted in reliance on our holding in Santiago. Indeed, the conduct that resulted in their convictions and death sentences occurred long before we issued our decision in Santiago. Moreover, we have often
There similarly has been no governmental or court reliance. Neither the Legislative Branch nor the Executive Branch has taken action in the wake of and in reliance on Santiago. The legislature has not enacted a new punishment scheme for capital crimes, and the governor has not taken steps to implement a new punishment scheme. Cf. Craig v. Driscoll, supra, 262 Conn. 349 (Sullivan, C. J., dissenting) (“the doctrine of stare decisis has particular force in this case because of the long-standing nature of the common law [on] which our legislature has relied in crafting the remedies available to parties such as the plaintiffs“). Moreover, neither this court nor any other court in this state has relied on Santiago to decide cases. Significantly, a judicial doctrine has not been built on the foundation of Santiago. In fact, courts that have been asked to apply the central holding of Santiago have elected to stay the proceedings and to await our decision in the present case.
Finally, Santiago has not amassed any societal reliance. As I discussed previously, societal reliance refers to the people‘s perception of our constitutional system and the relationship between themselves and government. The people of Connecticut have hardly had time to absorb our decision in Santiago, and, thus, there has been little time for that decision to become part of Connecticut‘s consciousness. Santiago simply has not garnered, at least presently, the same level of social and historical significance as the United States Supreme Court‘s decisions in, for example, Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), or Miranda v. Arizona, supra, 384 U.S. 436, and it would be disingenuous to suggest otherwise. The principles expounded on in Brown have become part and parcel of who we are as a society, and Miranda is central to the people‘s understanding of their relationship with law enforcement. It cannot seriously be suggested that Santiago has reached the same, or even similar, status. Whether the people of this state and country believe that capital punishment is, in all cases and under all circumstances, unconstitutional is far from a foregone conclusion, and, therefore, Santiago does not represent a foundational legal norm.
Clearly, there is not a scintilla of reliance on Santiago. Neither society nor the government has changed its behavior to comport with that decision. Moreover, Santiago is far from being part of our state consciousness. Even if it could be argued that there has been some reliance on Santiago, such reliance would surely be unreasonable. This court‘s decision in Santiago was released August 25, 2015, at a time when the present appeal was pending. On September 4, 2015, the state filed a motion for argument and reconsideration of our decision in Santiago, a motion we denied on October 7, 2015. See State v. Santiago, supra, 319 Conn. 912. On that very day, we also ordered supplemental briefing in this case, addressing, among other things, the effect of the judgment in Santiago. Thus, in an apparent moment of double speak, this court declined to reconsider Santiago and called its legitimacy into question. What‘s more, the judgment in Santiago was not even final when we ordered supplemental briefing in this case. See State v. Santiago, 319 Conn. 935, 125 A.3d 520 (2015) (denying state‘s motion for stay of judgment on October 30, 2015).
In light of the complete lack of reliance on Santiago, there is no need to consider the disruptive effect that overruling Santiago would have. Obviously, if there has been no reliance, there are no reliance interests to disrupt.
3
Step Three: Assessing the Costs of Perpetuating Santiago‘s Error
Because there has not been even the slightest bit of reliance on Santiago, only the most trivial of costs will be necessary to tip the scale in favor of not affording stare decisis effect to Santiago. The costs of preserving Santiago, however, are stifling, not trivial. I will address each of the three costs outlined previously in this opinion. Those costs are the costs of error correction, costs to the constitutional order, and costs of unworkability or uncertainty.
a
The Uncertainty of Santiago
For the sake of brevity and clarity, I will first consider the creation of uncertainty. There is a great irony in arguing that the dictates of stare decisis would have this court stand by a previous case that creates uncertainty. Santiago is such a case. I do not suggest—nor could I—that Santiago announced an unclear rule of law or a test that will be unworkable in future cases. Nonetheless, the majority opinion in that case created an immense ambiguity, an ambiguity that has left a dark cloud of uncertainty over the powers of government.
The uncertainty arises from the majority‘s mode of analysis. In order to determine that the death penalty is now offensive to our state constitution, the majority employed a hybrid analysis of its own creation. As I noted in my dissent in Santiago, the majority‘s approach in that case fell somewhere between a per se analysis and a statutory analysis; State v. Santiago, supra, 318 Conn. 342 (Zarella, J., dissenting); and, under that approach, the majority reached the amorphous conclusion that, in light of the legislature‘s adoption of
I admit that parsing the 140 page majority opinion in Santiago can be a difficult and, at times, perplexing task. After giving that decision careful, thorough, and thoughtful consideration, however, I concluded that the majority had not determined that the death penalty is per se unconstitutional, and the majority in Santiago had not disputed that conclusion. See id., 341-42 (Zarella, J., dissenting). Although the majority in Santiago never explicitly states that its holding was not per se, it seemed to suggest as much. For example, in a footnote, the majority acknowledged that “society‘s standards of decency need not always evolve in the same direction. We express no opinion as to the circumstances under which a reviewing court might conclude, on the basis of a revision to our state‘s capital
It is now obvious that Santiago has created a great degree of uncertainty, and continuing that uncertainty will impose costs. It is true that this court‘s decisions will often generate some amount of uncertainty. That uncertainty, however, concerns whether the law announced in a case will apply under different factual circumstances. For example, in Campos v. Coleman, 319 Conn. 36, 57, 123 A.3d 854 (2015), this court recognized a cause of action for loss of parental consortium. The court did not decide, however, the outer limits of that claim. See, e.g., id., 46. We did not determine whether a stepchild, who has not been legally adopted by his or her stepparent, would be permitted to bring such a claim if the stepparent is injured. Id. In addition, we left open whether the cause of action extends to parental type relationships in which the parental figure is not a biological or legal parent of the child. Id. Thus, our decision in Campos created some degree of uncertainty as to the extent of liability in certain tort cases. This type of uncertainty, however, is to be expected, and is tolerable, particularly in common-law adjudication, where incremental development of the law is preferred. The uncertainty created by Santiago, and evinced by Justice Palmer‘s concurring opinion in the present case, however, is of a different kind and degree. Due to the meandering reasoning in Santiago, members of the legislature, as well as this court, are uncertain of what, if any, authority the legislature has to enact a capital felony statutory scheme in the future. This uncertainty is intolerable and imposes significant costs on our system of government.
b
Santiago‘s Tax on Our Constitutional Order
Closely related to the cost of this uncertainty are the costs Santiago places on our constitutional order. When a judicial decision erroneously immunizes an issue from majoritarian control and mistakenly allocates power to the judiciary, when such allocation cannot be corrected by majoritarian action, it taxes our constitutional order
I will first address Santiago‘s specious immunization of capital punishment from majoritarian control. I will explain how the court has created a constitutional right when none existed. It will then be necessary, due to the contorted reasoning of the majority in Santiago, to consider whether the issue of capital punishment has been removed from majoritarian control.
In concluding that the death penalty is unconstitutionally cruel and unusual, the majority in Santiago created a right that is not grounded in Connecticut‘s constitution. As I explained in my dissent in Santiago, a cursory textual analysis of the constitution reveals numerous references to capital punishment and capital offenses.23 State v. Santiago, supra, 318 Conn. 353–55 (Zarella, J., dissenting). The entrenchment of these references in our state constitution suggests that the peo-ple of Connecticut have conferred on their government the power to impose the ultimate punishment. More specifically, they bestowed that authority on the legislature. See, e.g., State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976) (“the constitution assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment . . . within the limits and according to the methods therein provided“). The majority in Santiago swept away those textual references by suggesting they were “incidental” and “merely acknowledge that the penalty was in use at the time of drafting . . . [and] do not forever enshrine the death penalty‘s constitutional status as standards of decency continue to evolve . . . .” State v. Santiago, supra, 131. In so doing, however, the majority ignored two important events. First, the delegates to the 1965 constitutional convention expressly rejected a proposed amendment that would have made capital punishment unconstitutional. Journal of the Constitutional Convention of Connecticut 1965, p. 111. Second, in 1972, article first, § 19, of the Connecticut constitution was amended to provide that “no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent.” (Emphasis added.)
Regardless of whether Santiago immunizes capital punishment from majoritarian control, it does impose allocation costs on the constitutional order. Moreover, the allocation error cannot be corrected through majoritarian action and, therefore, levies substantial costs on the constitutional order. As I just explained, the people have enshrined capital punishment with constitutional status. Furthermore, defining crime and fixing punishment are part of the legislative, not judicial, power. See, e.g., State v. Darden, supra, 171 Conn. 679-80. Thus, by conferring the legislative power on the General Assembly, the people determined that it is that body who shall define capital crimes. See
To compound our affront to the legislature‘s power, this court‘s power grab cannot be corrected through majoritarian action. Even if it is assumed that the legislature could reinstate the death penalty by, for example, repealing
c
The Costs of Correcting Santiago Are Likely Significant
Finally, I turn to the difficulty of error correction and the costs it imposes. Erroneous constitutional decisions create greater costs than erroneous statutory or common-law
4
Step Four: Weighing the Benefit and Costs of Affording Santiago Stare Decisis Effect
The imbalance between the reliance interests that would be protected and the costs that would result from adhering to Santiago is so clear that I almost need not express it. The weighing in the present case is akin to using an elephant (costs of giving stare decisis effect to Santiago) as a counterweight for a mouse (reliance interests). In all actuality, using a mouse to represent the reliance interests at stake is far too generous. Not a single individual or institution, including this state‘s government, has acted in reliance of our decision in Santiago. In fact, that decision‘s legitimacy was placed on shaky ground from the beginning because we ques-tioned its precedential effect before the judgment in that case was final; see State v. Santiago, supra, 319 Conn. 935 (denying state‘s motion for stay of judgment); and, therefore, even if there had been any reliance on Santiago, it would have been unreasonable. The costs of adhering to that decision, however, are astronomical. First, and most significant, Santiago has upset the balance of governmental power created by our constitution. In that case, this court took for itself a power that always has resided in the legislature. Moreover, the only way to restore the equilibrium of governmental power is by amending the state constitution, which is no easy task. Second, the ultimate holding of Santiago is unclear. Third, that decision may or may not have immunized capital punishment from majoritarian control, despite the people‘s intention, expressed through the constitution, to allow the democratic and political processes to determine if and when the ultimate punishment might be imposed. Finally, if this court does not now overrule Santiago, a constitutional amendment is the only certain way to correct this court‘s overreaching. On balance, it is clear that the costs far outweigh the benefit of applying stare decisis to Santiago, and therefore, that decision should be overruled.25
THE COURT‘S INSTITUTIONAL LEGITIMACY
In their concurring opinions, Chief Justice Rogers and Justice Robinson focus primarily on concerns over this court‘s legitimacy. Chief Justice Rogers argues that overruling Santiago within one year of deciding that case simply because there has been a change in court membership would call into question the integrity of this court and our commitment to the rule of law. Similarly, Justice Robinson concludes that the present case turns on the “stare decisis considerations of this court‘s institutional legitimacy and stability . . . .” Text accompanying footnote 2 of Justice Robinson‘s concurring opinion. He continues by stating that, if this court were to now overrule Santiago, it would appear that an important constitutional case was retracted simply due to a change in court personnel. I am not unsympathetic to my colleagues’ concerns over the legitimacy of the court. Indeed, I agree that it would be a travesty if we were to overrule our previous cases simply because they no longer comport with the personal and ideological beliefs of a majority of the justices of this court. That, however, is not this case. Moreover, the idea that we may subordinate our oath to uphold the constitution to concerns about this court‘s public appearance is incomprehensible. See
The arguments in the concurring opinions of Chief Justice Rogers and Justice Robinson rest on faulty premises. First, they both seem to suggest that overturning court precedent is inconsistent with the rule of law. For example, Chief Justice Rogers apparently feels bound by Santiago because of her “respect for the rule of law,” and Justice Robinson concludes that we should follow Santiago because to do otherwise “would imperil our state‘s commitment to the rule of law . . . .” Second, and far more bizarre, Chief Justice Rogers and Justice Robinson contend that the change in court membership is an insufficient reason to overrule Santiago in the present case. Of course, I agree that a change in court personnel cannot justify overruling an earlier decision; that fact, however, would not serve as the basis for overruling Santiago. Instead, we would overrule Santiago because, one, the reasoning of the majority opinion in that case was inherently flawed and led to an erroneous conclusion, and, two, a weighing of the benefit and costs of applying the doctrine of stare decisis dictates that it should not be applied to our decision in Santiago.
I will further expound on the flaws in both of these premises, but, before I do, I will briefly explain from what source the court derives its legitimacy. This court‘s legitimacy arises from the willingness of the people of Connecticut to accept and obey the court‘s decisions and is “a product
It appears that Chief Justice Rogers and Justice Robinson understand that
In addition, if this court‘s legitimacy is truly a matter of ”substance and perception“; (emphasis added) Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 865; then, certainly, we must acknowledge and correct plain error. Id., 983 (Scalia, J., concurring in the judgment in part and dissenting in part). Insofar as it is perception that Chief Justice Rogers and Justice Robinson are worried about, the answer is simple. To prevent the appearance that we are a court driven by the whim of a majority of the justices, we must carefully obey the rule of law. We do so by applying an objective and transparent standard to weigh the benefit and costs of giving Santiago stare decisis effect. Applying objective standards in a neutral way, and then articulating the reasons for our holding, will placate any appearance that this court is governed by people rather than by laws. After all, the rule of law, at its essence, is governmental decision-making within a framework of laws. As Professor Daniel A. Farber so aptly put it in a slightly different context, it is understandable for justices to be troubled by the perception that they are acting, not on the basis of their interpretation of the law but, rather, on the basis of the personal proclivities of a majority of the justices. See D. Farber, “The Rule of Law and the Law of Precedents,” 90 Minn. L. Rev. 1173, 1197 (2006). “The proper response, however, is for those [j]ustices to consider the merits of the case with particular care, to guard against any unconscious influences from political pressures [or personal belief] one way or the other, and then to explain their reasoning with clarity to the public.” Id. As I have already discussed, the careful application of an objective stare decisis standard clearly dictates that this court should not uphold Santiago on the basis of stare decisis. To do otherwise would disserve, and not enhance, the integrity of this court.
I now turn to the second premise of Chief Justice Rogers’ and Justice Robinson‘s contentions, namely, that the change in this court‘s membership between Santiago and the present case is the reason we would overrule Santiago.26 Their reasoning suffers from the logical fallacy of post hoc ergo propter hoc, or “after this, therefore resulting from it.” Black‘s Law Dictionary, supra, p. 1355; see also id. (defining “post hoc ergo propter hoc” as “[t]he logical fallacy of assuming that a causal relationship exists when acts or events are merely sequential“). Their reasoning is simple. Because the present appeal has been decided after a change in the court‘s membership, the change in the membership is the reason to overrule Santiago. The flaw in this argument should be evident. If this court now were to overrule Santiago, it would not be because Justice Robinson replaced Justice Norcott. Certainly, the change in court membership may be a circumstance under which the overruling occurs, but it is nothing more than pure happenstance. Instead, the actual reasons for overruling Santiago, as I have already stated, would be, one, a majority of the justices believes that decision is not supported by the law and, two, after weighing the benefit and costs of stare decisis, a majority of the justices concludes that Santiago is not deserving of stare decisis effect.27
Even more troubling than the fallaciousness of this argument is its suggestion that this court is bound, now and forever, to follow any decision, right or wrong, unless the panel that decided the previous case is identical to the panel that wishes to overrule that case. Such a rule would completely ignore the past practice of this court. In fact, I have yet to uncover, despite considerable research, a case in which a panel overruling a previous decision of this court was identical to the panel that decided the case being overruled. This has held true even when we have overruled a decision only shortly after it was released. For example, in State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), we overruled a conclusion we reached seven weeks earlier in State v. Sanseverino, 287 Conn. 608, 625-26, 641, 949 A.2d 1156 (2008), superseded in part, 291 Conn. 574, 969 A.2d 710 (2009). Despite the passage of such little time, the panels in both cases were not identical. Sanseverino was decided by Chief Justice Rogers and Justices Norcott, Katz, Palmer, and me. See State v. Sanseverino, supra, 287 Conn. 608. Justices Vertefeuille and Sullivan, however, were also members of the panel in DeJesus. See State v. DeJesus, supra, 418. Perhaps some might argue that the panel change did not impact our decision to overrule Sanseverino, but that fact is of no legal significance. It has likewise been observed that many overruling decisions in the United States Supreme Court were issued after a change in court membership.28
In response, I imagine that Chief Justice Rogers and Justice Robinson would echo the arguments made by one of our colleagues at oral argument
Perhaps realizing the illogicality of a rule that would prohibit this court from overruling an erroneous decision simply because a member of the majority that reached such decision has left the court, Chief Justice Rogers suggests that we employ an even
Normally, I accept what my colleagues have written and do not attempt to uncover a delitescent meaning or ulterior motive, and I will not do so in the present case. I have trouble accepting, however, that it is the institutional integrity of this court that truly concerns Chief Justice Rogers. First, she largely agrees with the stare decisis analysis I have presented in this opinion. See footnote 2 of Chief Justice Rogers’ concurring opinion. Second, she does not refute my argument that this court‘s legitimacy comes from a fidelity to the rule of law; overruling prior cases is, in many instances, consistent with the rule of law, and any appearance that we are driven by the rule of individuals can be placated by the application of an objective stare decisis test. Third, in the recent past, neither this court nor Chief Justice Rogers has expressed concern about overruling a prior decision after a change in court membership.30
Chief Justice Rogers also expresses concern that overruling Santiago would send the message that a challenge to any four to three decision may be mounted when a member of the original majority leaves the court. My response is concise and simple: So what. This has been, and will always be, the case, unless we make stare decisis an inexorable command. A challenge may, at any time, be mounted against any of our previous decisions, whether they are four to three, five to two, six to one, or unanimous. That is part of our constitutional system. For a period of more than thirty years, criminal defendants repeatedly and consistently attacked this court‘s interpretation of the state‘s kidnapping statutes. See, e.g., State v. Luurtsema, 262 Conn. 179, 200, 202, 811 A.2d 223 (2002); State v. Amarillo, 198 Conn. 285, 304-306, 503 A.2d 146 (1986); State v. Chetcuti, supra, 173 Conn. 170–71. In State v. Salamon, supra, 287 Conn. 513-14, this court decided to adopt the interpretation the criminal defendants had been advocating for years. Moreover, the majority in Salamon did not seem troubled at all by the fact that various earlier compositions of this court had repeatedly rejected such an interpretation. This court need not stand blindly by an earlier decision simply because it was reached on the narrowest of votes.31 Instead, what is important is that the court objectively
In sum, the argument that the integrity and legitimacy of this court would be undermined by overruling Santiago is faulty. First, the rule of law does not bind us to erroneous precedent. Instead, it requires us to neutrally apply an objective stare decisis framework and to decide whether the benefit of affording Santiago stare decisis effect is outweighed by the costs. Second, if the entire court were to reexamine our holding in Santiago, and, after such examination, a majority of the justices were to conclude that Santiago is wrong, it would not be because there has been a change in the court‘s membership.
III
CONCLUSION
In closing, I want to note an astute observation once made by Chief Justice Charles Evan Hughes, when he was an Associate Justice of the United States Supreme Court. In response to the argument that dissent weakens the court‘s institutional prestige, Justice Hughes wrote: “When unanimity can be obtained without sacrifice of conviction, it strongly commends the decision to public confidence. But unanimity [that] is merely formal, [that] is recorded at the expense of strong, conflicting views, is not desirable in a court of last resort, whatever may be the effect [on] public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges. They are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice.” C. Hughes, The Supreme Court of the United States: Its Foundation, Methods and Achievements—An Interpre-tation (1928) pp. 67–68. The observation of Justice Hughes is equally applicable in the present case. What will ultimately sustain this court‘s legitimacy is a prudent and independent exercise of the judgment of each individual justice, guided, of course, by our constitution and our laws. Just as it may be regrettable when the justices do not all agree, it may also be regrettable that our public appearance may temporarily be tarnished when we overrule a previous decision in short order. Far greater, and more important, than such regret, however, is our oath to uphold the constitution and our duty to objectively interpret that law. I am troubled by the suggestion that we must adhere to a decision, despite our belief that such a decision is unconstitutional, for no reason other than the appearance that we have changed our mind due to a change in court personnel. I cannot, in good conscience, join the court in such action. I believe the oath we take requires more of us.
Notes
I note my belief that the textual references alone are sufficient to secure capital punishment‘s constitutional status. The events of the 1965 constitutional convention simply make me more resolute in my conclusion.
Chief Justice Rogers misstates my stare decisis analysis when she asserts: “[D]istilled to its essence, [Justice Zarella‘s analysis asserts] that, if a past decision was manifestly incorrect and there has been no reliance on it, principles of stare decisis may not require the court to stand by that decision.” Footnote 2 of Chief Justice Rogers’ concurring opinion. As I have clearly stated, stare decisis does not require us to stand by a decision if “the costs of preserving judicial error outweigh any reliance interests . . . .” Part I A 2 c of this opinion. Although Chief Justice Rogers is partially correct insofar as stare decisis does not require a court to adhere to a manifestly incorrect decision that has engendered no reliance, her recitation of my test requires too much. Under my approach, stare decisis does not apply if the costs of adhering to an erroneous decision outweigh the reliance interests that would be upset by overruling that decision. Thus, if a case has not garnered any reliance, it could be overruled if adherence to such decision would impose the slightest of costs, regardless of whether it is manifestly wrong.
It would be remiss of me not to note that the quandary regarding the change in court membership is entirely a problem of the court‘s creation. This court had the opportunity and idea to decide the present appeal before the appeal in Santiago, thereby allowing the full and current panel of the court to decide whether the prospective repeal of the death penalty set forth in
Justice Robinson suggests that I am overly optimistic about the public‘s ability to look past the panel change and to understand that the overruling of this court‘s recent decision in Santiago would not be because of the panel change but because, as I have just explained, a majority of the justices in the present case have concluded that (1) Santiago is wrong, and (2) the costs of adhering to Santiago greatly outweigh the benefit. See footnote 8 of Justice Robinson‘s concurring opinion. As a “cautionary tale,” he refers to a recent decision of the Kansas Supreme Court, namely, State v. Petersen-Beard, Docket No. 108,061, 2016 WL 1612851 (Kan. April 22, 2016). Footnote 9 and accompanying text of Justice Robinson‘s concurring opinion. In that case, which was released April 22, 2016, the Kansas Supreme Court overruled three of its “prior” decisions, all also released April 22, 2016. State v. Petersen-Beard, supra, 2016 WL 1612851, *1. Arguments in the three prior decisions had been heard approximately one year before argument in Petersen-Beard, by a panel that contained a trial judge who was sitting by designation of the Chief Justice while a vacant seat on the court was filled. That seat was filled, and the new panel heard Petersen-Beard, reaching, as Justice Robinson notes, the opposite conclusion. Justice Robinson then notes that “the rapid overruling was . . . widely noticed, and primarily attributed to the change in personnel of the Kansas Supreme Court.” Footnote 9 of Justice Robinson‘s concurring opinion. Justice Robinson does not refer to any evidence, however, that the public is outraged or has lost confidence in the court due to this overruling. Instead, he refers to a few legal scholars who observe the panel change and concurrent change in the court‘s position. See id. The brunt of the consternation noted by the scholars and the dissenting justices in Petersen-Beard, however, seems to be over the court‘s decision to delay the release of the three overruled cases for approximately eight months in order to draft the opinion in Petersen-Beard, which overruled those cases, thereby delaying the relief afforded the individual defendants and depriving similarly situated individuals of the benefit of the holding of the three overruled cases. In fact, the dissenting justices in Petersen-Beard do not even allude to stare decisis or the dangers of overruling a recent decision when the only change is in the composition of the panel. Thus, I respectfully disagree that Petersen-Beard illustrates why this court should refrain from overruling Santiago. Finally, in response to a concern that Justice Palmer raises in his concurring opinion, I would like to note that Petersen-Beard provides an example of a court of last resort quickly reversing its own constitutional ruling.
Professor Thomas R. Lee, in discussing factors that might explain the United States Supreme Court‘s tendency to overrule prior decisions, stated: “One statistical study has suggested, for example, that the [c]ourts that have disproportionately altered precedent have been characterized by significant changes in membership. . . . A familiar example is the Hughes Court, which overturned [fifteen] precedents during its last nine years after the [c]ourt‘s entire membership was transformed between 1937 and 1941. . . . Similarly, most of the Warren Court‘s decisions overruling precedent were handed down after Justice [Felix] Frankfurter‘s retirement in 1962, while most of the Burger Court‘s overruling decisions came after [Justice] Douglas’ retirement in 1975.” (Citations omitted.) T. Lee, supra, 52 Vand. L. Rev. 650 n.14.
There is a great irony in Chief Justice Rogers’ reasoning that gives me pause. While she is occupied with explaining that she, Justice Espinosa, and I have already espoused, “at great length,” why we think Santiago is incorrect; footnote 2 of Chief Justice Rogers’ concurring opinion; noting that Justices Palmer, Eveleigh, and McDonald continue to believe that Santiago was correctly decided, and speculating about how Justice Norcott would rule, she overlooks the elephant in the room: What does Justice Robinson, a current member of this court sitting on this case, think?
During Chief Justice Rogers’ tenure on this court, we have overruled prior precedent in twenty-five cases. See State v. Wright, 320 Conn. 781, 810, ___ A.3d ___ (2016); Arras v. Regional School District No. 14, 319 Conn. 245, 268-69 n.24, 125 A.3d 172 (2015); Campos v. Coleman, supra, 319 Conn. 38, 57; State v. Moreno-Hernandez, 317 Conn. 292, 308, 118 A.3d 26 (2015); Haynes v. Middletown, 314 Conn. 303, 316, 323, 101 A.3d 249 (2014); State v. Artis, 314 Conn. 131, 156, 101 A.3d 915 (2014); State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014); Ulbrich v. Groth, 310 Conn. 375, 409, 78 A.3d 76 (2013); State v. Moulton, 310 Conn. 337, 362-63 and n.23, 78 A.3d 55 (2013); State v. Polanco, 308 Conn. 242, 260-61, 61 A.3d 1084 (2013); State v. Sanchez, 308 Conn. 64, 80, 60 A.3d 271 (2013); State v. Guilbert, 306 Conn. 218, 253, 49 A.3d 705 (2012); State v. Paige, 304 Conn. 426, 446, 40 A.3d 279 (2012); Gross v. Rell, 304 Conn. 234, 270-71, 40 A.3d 240 (2012); Arrowood Indemnity Co. v. King, 304 Conn. 179, 201, 39 A.3d 712 (2012); State v. Payne, 303 Conn. 538, 541-42, 34 A.3d 370 (2012); State v. Kitchens, 299 Conn. 447, 472-73, 10 A.3d 942 (2011); Bysiewicz v. DiNardo, 298 Conn. 748, 778-79 n.26, 6 A.3d 726 (2010); State v. Connor, 292 Conn. 483, 528 n.29, 973 A.2d 627 (2009); St. Joseph‘s Living Center, Inc. v. Windham, 290 Conn. 695, 729 n.37, 966 A.2d 188 (2009); State v. DeJesus, supra, 288 Conn. 437; State v. Salamon, supra, 287 Conn. 514; Jaiguay v. Vasquez, 287 Conn. 323, 348, 948 A.2d 955 (2008); State v. Grant, 286 Conn. 499, 535, 944 A.2d 947 (2008), cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008); Gibbons v. Historic District Commission, 285 Conn. 755, 771, 941 A.2d 917 (2008). In all twenty-five cases, the subsequent overruling panel was different from the panel that decided the cases being overruled. Moreover, Chief Justice Rogers either authored or joined the majority in nineteen of these cases. See State v. Wright, supra, 830; Campos v. Coleman, supra, 64; State v. Moreno-Hernandez, supra, 292, 312; Haynes v. Middletown, supra, 305; State v. Artis, supra, 131, 161; State v. Elson, supra, 726, 785; Ulbrich v. Groth, supra, 470; State v. Moulton, supra, 337, 370; State v. Polanco, supra, 242, 263; State v. Sanchez, supra, 64, 87; State v. Guilbert, supra, 274; Gross v. Rell, supra, 237; Arrowood Indemnity Co. v. King, supra, 179, 204; State v. Payne, supra, 541; State v. Kitchens, supra, 500; State v. Connor, supra, 483, 533; State v. DeJesus, supra, 420; State v. Grant, supra, 502; Gibbons v. Historic District Commission, supra, 755, 778. Chief Justice Rogers dismisses my point by stating that there is no inconsistency in her position in the foregoing cases and the position she takes in the present appeal. See footnote 1 of Chief Justice Rogers’ concurring opinion. Anyone who reads the cases Justice Espinosa and I cite, however, will discover that not once, in any of these twenty-five cases, has this court, or Chief Justice Rogers, ever raised a concern over a change in panel membership or queried how a departed justice who was in the majority would have ruled if he or she had still been a member of the court. In fact, in seventeen cases—Wright, Arras, Moreno-Hernandez, Haynes, Ulbrich, Sanchez, Paige, Gross, King, Payne, Kitchens, Bysiewicz, Connor, St. Joseph‘s Living Center, Inc., DeJesus, Grant, and Gibbons—the words “stare decisis” cannot be found in the majority opinions at all.
At oral arguments in the present appeal, counsel was asked whether our ruling in Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 141, 147-48, 957 A.2d 407 (2008), also a controversial four to three decision, which held that a statute purporting to prohibit same sex marriage was unconstitutional, could be attacked and overruled. I again note that a decision should not receive special stare decisis consideration because it was decided by one vote rather than two or three. In addition, and more important, I doubt that this court, notwithstanding the United States Supreme Court‘s recent decision in Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584, 2604-2605, 192 L. Ed. 2d 609 (2015), could overrule Kerrigan in light of the tremendous reliance interests that decision has engendered. First, the day after we decided Kerrigan, marriage licenses were being issued to same-sex couples. Second, there has been a reordering in employee benefits and health insurance in light of Kerrigan. Third, it is likely that the principles represented by Kerrigan have become part of the consciousness of the citizens of this state. Undoubtedly, there has been even more reliance on Kerrigan than that which I just outlined. In his concurring opinion, Justice Robinson suggests that the reliance in the present case is different only in kind and not in degree from the reliance interests that would be at stake if Kerrigan were reconsidered. See footnote 6 of Justice Robinson‘s concurring opinion. In light of my analysis in part I B of this opinion, I cannot fathom the logic behind such a claim.