Tuesday, April 25, 2006

Mass Corruption of the US’s Destruction

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Peter T. Zarella

CONNECTICUT NEWS
High Court Nomination Troubled Controversy Roils Capitol After Ex-Chief Justice Says He Tried To Help Successor's Chances
April 25, 2006 By LYNNE TUOHY, Hartford Courant Staff Writer

Former Chief Justice William J. Sullivan secretly postponed release of a controversial ruling on access to court documents to enhance Justice Peter Zarella's prospects of being confirmed as chief justice, precipitating an unprecedented crisis of confidence in the state's highest court.

The "bombshell" revelation was made to the governor and legislative leaders Monday morning in a three-page letter written by Senior Associate Justice David M. Borden, who is acting chief justice.

"The intent and effect of Chief Justice Sullivan's conduct was to deprive the legislature of the timely knowledge of Justice Zarella's vote in that case," Borden wrote of the court's sharply divided ruling last week foreclosing access to court documents under the Freedom of Information Act.

On Monday night, Zarella sent Gov. M. Jodi Rell a letter asking her to withdraw his nomination from consideration during the current legislative session, which some legislative leaders viewed as simply a tactical move to take the heat off until after the session ends.

Zarella said in his letter to Rell, "I am confident that, given a public hearing and public airing, I will be able to justify your confidence in me."

Rell issued a brief statement saying she continues to believe that Zarella "is a man of integrity and outstanding judicial ability. I am troubled by the revelations that have been brought to light, and am equally troubled by the politics - in both the legislative and judicial branches of government - that have overshadowed this important nomination."

The ramifications of Borden's letter go far beyond the Zarella nomination, which was expected to die on the Senate calendar. Rell said Monday night that she would revisit her nomination of a chief justice candidate "once I am satisfied that all relevant questions are answered and concerns addressed."

She stopped short, however, of vowing to renominate Zarella.

The allegation, which Sullivan does not dispute, signals that the state's highest court has been deeply divided and tainted by political motives that compromise its integrity.

Sullivan apparently believed that release of the ruling, in which Zarella sides with the majority to deny public access to court records, would give lawmakers added ammunition to challenge Zarella's overall philosophy.

"If this is true, it means the system was manipulated, and there's no more damning indictment than that," one Superior Court judge said Monday.

One lawyer described the revelation as "explosive, phenomenal," and said that it clearly has created "open war" within the court.

Lawyers and judges who commented on the controversy did not want their names used for fear of retribution.

Although Sullivan resigned as chief justice on April 15, he remains on the court as a senior justice and is tightly allied with Zarella.Borden's letter details how a routine inquiry by one justice into the status of a Freedom of Information case involving access to the judicial system's computerized criminal and motor vehicle dockets turned into a confrontation with the former chief justice.

"On April 17, in response to an inquiry by Justice [Richard N.] Palmer as to whether he knew that the case was on hold and why, Justice Sullivan acknowledged that he had placed the case on hold and that he had done so to aid the appointment of Justice Zarella as Chief Justice by delaying the release of the decision in the case," Borden wrote.

"Justice Palmer stated to Justice Sullivan that he considered that action to be improper."

It was not clear Monday whether one or more of the justices had referred the matter to the Judicial Review Council for investigation and possible discipline of Sullivan. Complaints made to the council are confidential until, and unless, it votes that there is sufficient evidence to hold a hearing.

Sen. Andrew J. McDonald, D-Stamford, co-chairman of the judiciary committee, called Borden's letter "a shocking development, and nothing short of a bombshell in the middle of an already contentious situation.

"After first reading the details of the Borden letter into the record Monday morning but holding no discussion on them, the judiciary committee voted 17-1 in favor of Zarella's nomination, with 17 members - including McDonald and co-Chairman Michael P. Lawlor, D-East Haven - abstaining because no public hearing was held. It was a hollow victory for Zarella.

Senate President Pro Tem Donald E. Williams Jr., D-Brooklyn, said the "unprecedented judicial campaign to mislead the legislature" is just one of many reasons the nomination will not be taken up by the Senate."

Outgoing Chief Justice William Sullivan appears to have been playing the worst kind of judicial politics by deliberately withholding a key judicial decision, which raised questions about Justice Zarella's commitment to transparency in the Judicial Department," Williams said. He added that Sullivan should retire completely and not be allowed to hear cases as a senior judge, and called for a full investigation of Sullivan's actions.

The 4-3 ruling against the Freedom of Information Commission, stating that computerized dockets of criminal and motor vehicle cases are not subject to access under the FOI Act, was released last Friday - more than 14 months after it had been argued. Sullivan wrote the majority opinion.

Zarella issued a one-sentence statement thanking the judiciary committee for its vote, and saying that he looks forward to a public hearing.Sullivan, in a two-page letter addressed to the lawyers in the FOI case, said he does not believe that he violated any canons of the Code of Judicial Ethics.

In the letter, Sullivan cites allegations that he violated three specific canons, but he does not state the source of those allegations. The canons in question require that a judge uphold the integrity and independence of the judiciary; that a judge "should not allow the judge's family, social or other relationships to influence his or her conduct or judgment"; and that a judge should perform judicial duties impartially.

Sullivan begins his letter to the lawyers by saying that some of his colleagues believe he should remove himself from the case in light of his conduct in holding up the decision, and invites their response. The court could rehear the case, with another judge substituting for Sullivan, or it could review the records and transcripts of the case, and issue a new ruling.

Attorney Victor Perpetua, who argued the case before the high court on behalf of the FOI Commission, said he finds it "tragically ironic" that Sullivan tried to keep secret a court document on whether certain court records are open to the public.

"It's unprecedented," said Perpetua.

"And it's disturbing."

Perpetua said he will brief the FOI Commission at its meeting Wednesday, and take his direction from its members. It is expected that the commission will seek a new ruling in which Sullivan does not participate.

After a routine conference March 14 on the ruling in the FOI case by the justices and appellate court judge who participated in the case, Sullivan the same day directed the office of the Reporter of Judicial Decisions not to release the opinion until he cleared its release, Borden said.

One lawyer said the controversy highlights a division on the court "that's been known but never openly displayed."

"I don't know if it violates a rule of ethics, but it's certainly questionable conduct unbecoming the head of a branch of government, to delay the release of information for the purposes of nominating proceedings," she said.

"On its face, it certainly raises questions relative to the Code of Judicial Conduct."

Courant Capitol Bureau Chief Christopher Keating and Staff Writer Mark Pazniokas contributed to this story.

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