The Evolution of State Constitutional Law in Connecticut

Good afternoon and thank you for inviting me to participate in this symposium. Your topic is one that will, no doubt, elicit interesting observations from those of us on panel, and challenging questions from audience. A panel discussing hardest cases we have handled inevitably, for me, involves a discussion of development of state constitutional law in Connecticut, and is, I believe, a timely discussion for reasons I will share with you in a moment. I have chosen to remark on two cases, decided more than a decade ago, published just over one year apart, to illustrate points I would like to share with you today. It is my contention that we are still in early stages of development of state constitutional law--an evolution that is difficult to describe while in its midst, but which is occurring nonetheless. By way of brief background, and as a backdrop to my next point, I was elevated to Connecticut Supreme Court in 1992. Ellen Peters was Chief Justice, and I am sure many of you are aware of her scholarly contributions to academic literature on state constitutional law. For those of you who are not, I commend to you her article on common law and Connecticut Constitution, published in Albany Law Review in 1989. (1) There is probably a copy around here somewhere. Chief Justice Peters's book review published in Michigan Law Review in 1986 speaks to state of this evolution. (2) In her review of a collection of essays published following a national conference on developments in state constitutional law, she suggested that [t]he essays produced for conference should indeed point state courts in direction of a more sophisticated inquiry into role properly to be assigned to state constitutions as they emerge from long shadow cast, for last sixty years, by Constitution of United States. (3) She went on to state that, in her estimation, [t]he dearth of scholarly analyses, due chiefly to preoccupation of constitutional scholars with work of United States Supreme Court interpreting United States Constitution, has unquestionably increased difficulties ... state courts have encountered in their nascent efforts to take state constitutional rights seriously. (4) From my vantage point, joining Connecticut Supreme Court in early 1990s, it was an exciting time to be entertaining appeals based in state constitutional law as a justice on highest court in state. The Connecticut Supreme Court had recently issued its opinion in State v. Geisler, (5) which was our first foray into a post-New York v. Harris (6) of exclusionary rule under our state Geisler, which is still good law and subject of continuing debate in Connecticut, cited six of analysis to use when construing the contours of our state constitution. (7) Those tools are: (1) text itself; (2) our own court holdings and dicta; (3) federal precedent; (4) sister state decisions or sibling approach; (5) history; and (6) economic/sociological considerations. (8) The court concluded, in an opinion written by Justice Robert Berdon, that the Harris rationale [for exclusion of evidence] falls short of protection required under our state constitution. (9) A dissent by then-Justice Alfred Covello, now of federal bench in Connecticut, spoke succinctly to disagreement that was crux of matter. (10) He noted that there were no textual distinctions between federal and state constitutions in case and that, in his view, reliance on historical antecedents cited in majority opinion was not persuasive. (11) This dichotomy, perhaps not surprisingly, still presents itself to court in cases presenting issues based in state constitutional law. So now we arrive at state of state constitutional jurisprudence in 1994 when Connecticut Supreme Court was presented in Moore v. …