State Judges Don't Want Transparency

Everyone can be happy with the Judicial Review Council’s verdict in the case of former Connecticut Chief Justice William J. Sullivan — a 15-day suspension from his part-time retirement job as senior justice.

The council suspended Sullivan for delaying publication of a potentially controversial Supreme Court decision so that a colleague who concurred in it, Justice Peter T. Zarella, might not have to answer for it when the General Assembly considered his nomination to succeed Sullivan as chief justice. The Supreme Court decision at issue, like so many other Connecticut court decisions, held that the courts don’t have to make records public under freedom-of-information law.

Sullivan’s punishment may seem light but the big problem here is not the misconduct of one judge but the arrogance and unaccountability of the whole of Connecticut’s judiciary, the correction of which is well under way thanks to the Sullivan scandal. No one aggrieved by judicial arrogance and unaccountability could be mollified by

anyparticular punishment for Sullivan.

In regard to the former chief justice individually, Connecticut needs only for his political interference with the administration of justice to be acknowledged as wrong, which even Sullivan himself eventually did. As a part-time judge now Sullivan can’t do much more harm, and the acting chief justice, David M. Borden, is trying to induce the courts to adopt a program of openness.

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motiveis to be limited — to make the judiciary only as accountable as is necessary to reserve its ability to be unaccountable again someday.

For in seeking to get out from under the Sullivan scandal, the acting chief justice and most other judges are defending their power to legislate the judiciary’s rules independently of the General Assembly and the governor. While the state Constitution says the powers and jurisdiction of Connecticut’s courts "shall be defined by law," for decades the courts have intimidated governors and legislatures into thinking that the ordinary legislative process does not cover rules for the courts as it covers rules for the other two branches of government.

Connecticut’s judges claim that making court rules through ordinary legislation would violate the constitutional principle of the separation of powers of the branches of government. But that is exactly how those rules are made for the federal courts — through legislation enacted by Congress and the president. There is no suggestion of a "separation of powers" problem there. That is, the constitutional claim of Connecticut’s judiciary is not just bogus but

deliberatelybogus, another contrivance.

The remedy for this contrivance is an amendment to the state Constitution making explicit the authority of the Legislature and governor to legislate rules for the openness and accountability of the courts. This is where the new support of Connecticut’s courts for freedom of information ends, including the support of the acting chief justice, Borden.

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easyto undo and surely willbe eroded over time if the judges are left to themselves. Indeed, if the judges meant the new openness to be permanent, they would be happy to use the Constitution to ensure it — as the Constitution already does with its grand but unenforced proclamation that "all courts shall be open." That Borden and his colleagues oppose any constitutional guarantee of openness is proof of its necessity.

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