Christine Stuart photo

The Judiciary Committee postponed Superior Court Judge John R. Downey’s elevation to the Appellate Court Tuesday while it gathered transcripts from hearings he presided over in Stamford Superior Court.

The transcripts seem to show Downey is “emphatic” in deciding not to hear cases involving illegal aliens, Judiciary Committee Co-Chairman Rep. Michael Lawlor said.

“He’s taken a position that is not part of the law,” Lawlor said.

Lawlor called this “a form of judicial activism.” He said it’s unclear whether Downey was “inaccurate or untruthful” about his position on the issue during his testimony Tuesday.

The transcript discussed during the confirmation hearing was one from a wrongful death case on May 24, 2002. On page 12 of the transcript Downey begins a line of questioning regarding the deceased man’s U.S. citizenship.

When Downey was questioned by lawmakers about the case, he said he “threw out an intellectual bone to challenge,” the plaintiff’s attorney, Brenden Leyden. “He didn’t bite on the bone and we continued with the issues of the case,” Downey said.

According to the court transcript, Downey asked, “I presume that he had all his documentation as to his being legal here in the United States?”

“I believe so. That hasn’t been raised as an issue by anyone,” Leyden replied.

“Well, it might be an issue in Judge Downey’s court, because I believe that no one has the right to sue in the State of Connecticut court system unless they’re duly authorized to sue,” Downey replied.

Leyden sent a letter to the Judiciary Committee in support of Downey’s nomination.

“From a policy perspective, I think it would be particularly problematic if we were to start jeopardizing the careers of judges on the basis of what amounts to academic musings in the course of oral argument,” Leyden wrote.

One of the transcripts that was brought to the committee’s attention after Downey’s testimony was postponed, was a May 9, 2002 divorce case between Ana Retuerto and Reducino Soto.

In the transcript, Downey says he will not hear the case because, “Only people who are legally here in the United States, in my opi—-are entitled to the rights and privledges that we extend to U.S. citizens. Why should a person become a U.S. citizen if they can otherwise enjoy the same rights as the rest of us especially after 9/11?”

The May 24, 2002 case, Jaiguay v. Vasquez, was appealed to the state Supreme Court. Eighteen of Downey’s decisions have been appealed and on appeal 10 have been affirmed, three have been partially affirmed, and five have been overturned.

Judiciary Committee Co-Chairman Sen. Andrew McDonald, D-Stamford, began to question Downey Tuesday about his knowledge of immigration law and the equal protection clause only to be cut off by Sen. Andrew Roraback, R-Goshen, who reminded Downey that he didn’t have to answer any questions of law which might come before the court in the future.

McDonald attempted to continue, but Downey responded by saying “It’s probably not a good idea for me to comment on it now.”

At one point during the hearing Downey referred to himself in the third person like he did in the May 24, 2002 transcript and Sen. John Kissel, R-Enfield, asked him to refrain from making third party references to himself calling it “Seinfeldesque.”

The committee is expected to continue Downey’s nomination hearing sometime before Sept. 17.