Christine Stuart photo
Justice David Borden, pictured (Christine Stuart photo)

While the Judicial branch has gone out of its way to make sure Connecticut’s courts are open to the public, the legislature will take up the issue again this year, Judiciary Co-Chairman Rep. Michael P. Lawlor of East Haven said Monday.

He said when the former Supreme Court Chief Justice William Sullivan decided in 2006 to delay the release of a Freedom of Information case in order to help his friend and colleague, Justice Peter Zarella succeed him, “it really put the legislature in a position to make some important and difficult decisions.”

Former Supreme Court Justice David Borden disagreed with Lawlor’s opinion that legislation is necessary in order to codify the court’s position. Borden said Monday that “legislation is unnecessary.” He said “we have changed the culture in the judicial branch and Chief Justice Chase Rogers has committed herself to continuing it.”

“There’s very little chance of reversal,” Borden, who is now the judicial branch public access liaison, said.

But Lawlor and former New London Day editorial page editor Morgan McGinley didn’t trust the Judicial branch to continue its practice of openness. McGinley said many of the changes were made because the governor and the judges were embarrassed by Sullivan’s actions and the discovery of secret court dockets.

Borden said the openness of the courts was effectuated without any legislative action. Lawlor said the legislature planned to take action last year, but were thwarted when Rep. Bill Dyson of New Haven introduced an amendment banning the death penalty. Lawlor said a debate on the death penalty would have taken 8 to 9 hours and made it impossible to introduce the legislation during the last few busy days of the session.

Some on the panel argued in favor of amending the state constitution to return the rulemaking power to the legislative branch. Many feel the judiciary took over the rulemaking power in the 1970s when it decided a case called State v. Clemente. Click here to read a summary of that case.

Lawlor said he didn’t think it was necessary for the legislature to amend the state constitution to make effective changes to the judiciary. He said all the legislature has to do is make sure “what is established can’t be reversed.” This means clarifying what the judicial branch views as an administrative vs. an adjudicative function.

In a 4-3 decision the Supreme Court found that docket information, which is the most basic information about a case, such as the name of a defendant, is not an administrative function and therefore not available to the public.

According to last year’s legislation an administrative function would include docketing. Borden argued that while the Supreme Court found docket information is not available to the public under the Freedom of Information Act, the judicial branch is currently posting that information on its web site and will continue to make the information public.

When pressed, in a hypothetical manner, about what would happen if a similar case were brought to a trial court today. Borden said the court would have no choice but to uphold Supreme Court precedent in the case. But he said he couldn’t imagine any case would be brought because all documents are now available to the public.

Borden was not aware of Vincent Valvo’s request for docket sheets, which was denied by former Chief Court Administrator William Lavery. Valvo’s case, which is poised to become the next Supreme Court openness case, is outlined in this story here.