The final decision on the rules should be up to the elected legislature, just as Congress has final authority over federal court rules.

Critics of judiciary seek constitutional amendment
September 27, 2006

HARTFORD — A day after a number of Connecticut judges made clear that they aren't completely happy with some proposals for increased openness in the state's courts, speakers at a public hearing Tuesday showed that a number of people aren't completely happy with the state's judiciary.

Speaker after speaker at a hearing held Tuesday by the Commission on Judicial Reform, appointed by Gov. M. Jodi Rell, called for an amendment to the state constitution to rein in claims by Connecticut's courts that the constitution gives them exclusive authority over matters such as court rules.

Although Rell raised the possibility of a constitutional amendment when she named the commission several months ago, the commission didn't recommend such an amendment, focusing instead on proposals to make the court process more open in particular areas.

Richard S. Kay, a University of Connecticut law professor who specializes in constitutional law, told the commission that the state's courts have asserted broad authority in a series of decisions dating from the 1960s, which he called "flawed in their reasoning."

As a result, he said, any changes adopted as a result of the commission's study will remain in effect only as long as the state's judges accept them.

Kay said the principle on which a constitutional amendment should be based is that "matters of public policy are to be decided by representatives who are electorally accountable."

The professor argued that claims of "broad and unreviewable judicial lawmaking power" are inconsistent with the underlying purpose of the separation of powers among the three branches of government, established by the state and federal constitutions.

"The point of this elaborate scheme is to make the exercise of power more difficult," Kay said. Each branch of government is supposed to exercise its powers in coordination with the other branches, he explained.

Judge's job: decide cases

Although Kay didn't suggest language for a constitutional amendment, he said an amendment should make clear that the only power the courts exercise exclusively is to "fairly and impartially decide cases."

He said common sense dictates that judges should be involved in drafting court rules because they have everyday experience with those rules. But he said the final decision on the rules should be up to the elected legislature, just as Congress has final authority over federal court rules.

Other speakers told the commission that at least two journalism groups, the Connecticut chapter of the Society of Professional Journalists and the Connecticut Council on Freedom of Information, also have called for a constitutional amendment to prevent secrecy in Connecticut's courts.

Patrick Sanders, the Connecticut news editor for the Associated Press, was a member of the Judicial Department's Public Access Task Force. He said the task force "had a fatal flaw, that the judges themselves will decide yes or no on many of our recommendations."

"It's completely inappropriate for the courts to make up their own rules of openness," Sanders said.

During the task force's deliberations, he said, "time after time, we were told the judges will never approve that."

Journal Inquirer Managing Editor Chris Powell, speaking on behalf of the Connecticut Council on Freedom of Information, decried what he called the judiciary's "separation of powers scam," saying, "Any rules will be ignored or undone at the judiciary's will."

The governor's commission and the Judicial Department task force were created following the disclosure this spring that former state Chief Justice William J. Sullivan had delayed release of a controversial decision to help Justice Peter T. Zarella's chances of winning confirmation to succeed him as chief justice.

Following that disclosure, Rell withdrew Zarella's nomination at his request.

Victims can be hurt

Although media representatives and other advocates of openness dominated much of Tuesday's hearing, two representatives of crime victims emphatically told the commission of the harm that can come from excessive or insensitive media coverage of the courts.

The commission and the Judicial Department task force have proposed pilot programs for television coverage of Superior Court proceedings, including criminal proceedings.

Mary Hamel of Torrington told the commission that her former husband broke into her house and repeatedly raped her in the presence of her children. She said she expected her identity to be protected by law but found that she was effectively identified in news accounts because her husband was charged with sexual assault in a spousal relationship.

"The motive behind the press is money and viewers and what will attract both," Hamel said, adding, "Sex sells."

"The only thing I had going for me was that my name and picture were not published," Hamel said. She argued that crime victims should have the right to deny requests for cameras in court, without the need for a hearing on the issue.

Allowing such hearings, she said, would be "just giving the defense another tool to intimidate a witness."

State Victim Advocate James F. Papillo said there should be no "commercial electronic media coverage" of sexual assault or domestic violence crimes, which he called "private affairs for the most part." And he argued that only gavel-to-gavel television coverage of trials should be allowed, airing after the jury has delivered its verdict.

"There is a strong public policy in our state to encourage people to report crime and cooperate with the court," Papillo said. "Going too far with cameras in the courtroom could frustrate this important public policy."

Copyright 2006, Journal inquirer

From: Journal Inquirer, Manchester, Connecticut, September 27, 2006,, accessed 10/09/06.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.