Appellate Court Justice William Lavery listened to the debate in the Senate Chambers Thursday with his arms folded across his chest and watched as the Senate voted 23-13 in favor of a bill that would change how the Appellate and Supreme Court distribute their case load. The amendment introduced by Sen. Andrew McDonald-D-Stamford modifies under what circumstances a senior justice would be able to hear a case.  The new amendment says retired senior justices can’t hear a case in the Appellate or Supreme Court if one of the 16 justices appointed to the court is available. Under the new legislation, effective upon adoption, a retired senior justice who has not reached the age of 70 could be called to serve only when the court could not fill a full panel—three in the Appellate Court and five in the Supreme Court.

Republicans speculated the amendment was a reaction to more recent events involving the Supreme Court, but Democrats denied the accusation saying recent events highlighted the urgency for such an amendment.McDonald said the allegations regarding retired Chief Justice William Sullivan’s decision to withhold a 4-3 decision on a Freedom of Information case was not the driving factor behind the amendment. In the FOI decision, released to the public Friday, April 21, the court found that the public should not have access to certain court documents. Two justices, Lavery and Justice Richard Palmer, were added to the five-member panel on the case after it was heard by the court. Their addition to the panel in the FOI case could have altered the outcome, since only a five-member panel is necessary to render an opinion, McDonald said. Had Lavery and Palmer not been added the panel the court’s decision would have gone the other way, since it was 3-2 in favor of disclosure before they got there, McDonald said. Did Sullivan know how Lavery was going to vote? And was Justice Vertefeuille truly unavailable to hear the case? The answers to these questions and more may be revealed when the legislature gets a chance to review the court’s records and hold a public hearing.Meanwhile, Sen. John Kissel R-Enfield said that the Appellate Court and its caseload would be adversely effected by this amendment, according to the Appellate Court’s chief judge. Appellate Court Chief Judge Joseph Flynn wrote in a letter distributed to the Senate Thursday that the court deals with almost 600 cases per year. “If we cannot call on these senior judges and referees who have past service on the Supreme or Appellate Courts to serve as the third person on some panels, the work of this court will take longer.” “For example, this will mean important appeals regarding termination of parental rights and the adoptions which sometimes follow would be delayed,” Flynn wroteKissel said the cases mentioned in Flynn’s letter have “nothing to do with the maelstrom created in the last week.” He said the Appellate Court is “getting sucked into this,” through this amendment, which did not receive a public hearing. Kissel said if there’s a problem in the Appellate or Supreme Courts with allocation of personnel then the legislature should work together with them on it instead of creating legislation. He said it’s possible the amendment is “meritorious, but I don’t know because there hasn’t been a public hearing.” McDonald said under current law, it’s possible none of the sitting members of the court would hear a case in their appointed court. He said it was the intention of the legislature that senior semi-retired justices be used when one of the appointed justices has a conflict of interest or in other situations, such as an illness. Otherwise, it’s possible those appointed to the court would never hear a case when that’s why the legislature appointed them, he said. McDonald said there’s nothing in the amendment that precludes the semi-retired justices from continuing to serve. Sen. Andrew Roraback, R-Goshen, said the Democrats were allowing “due process to get lost in the fervor of the last few weeks.”  “I’m not sure this isn’t a solution in search of a problem,” he added. McDonald said after the legislation passed the Senate that “courts in Connecticut only have jurisdiction over what he legislature gives to it.”