Thanks to a decision made by Attorney General Richard Blumenthal, transcripts of usually closed-door proceedings by the ultra secretive Judicial Review Council have been made public. Blumenthal’s decision that the council’s investigatory records must be made public after the council determines it has sufficient evidence to bring charges has opened a small window into the council’s deliberations and findings.
No one yet has asked Blumenthal whether his decision will apply retrospectively to previous Judicial Review Council investigations. In any case, Blumenthal’s decision opens the doors wide to a case involving State Supreme Court intrigue that previously had been bathed in the half-light of secret deliberations – and the resulting disclosures are not pretty.
According to the transcripts of the council’s deliberations, Justice Richard Palmer learned on April 8 from a law clerk’s query that Supreme Court Chief Justice William Sullivan had placed a hold on the publication of a decision that, some believe, might have affected a legislative vote on whether to accept Governor Jodi Rell’s nomination of Peter Zarella as Chief Justice of the court.
On April 10, Palmer told Justice David Borden about the hold, and “sometime thereafter,” according to a news report, Justice Joette Katz “was consulted.” Both Borden and Palmer testified before the council that Zarella denied knowing that there was a publication hold on a ruling that might have affected his nomination, and both testified, according to one report, “that they had no reason to disbelieve him.”
Indeed, there is a good reason justices Borden and Palmer may have thought that Zarella’s protestation that he knew nothing of the hold was true: They didn’t tell him.
On April 20, ten days after justices Borden, Palmer and Katz had consulted with each other, the Supreme Court met and decided on a vote of 3-3 not to refer a complaint of misconduct against Justice Sullivan to the Judicial Review Council. Opposing the complaint were justices Flemming Norcott Jr, Christine Vertefeuille and Zarella; Palmer, Katz and Borden approved the referral.
Borden later filed a compliant by himself. Asked why Palmer and Katz didn’t join him in the complaint, Borden responded, “If we all three did it, it would be piling on, or something like that."
During the council proceedings, Borden was asked why he did not apprise justices other than Palmer and Katz that Sullivan had placed a hold on the publication of a decision that might damage Zarella’s prospects. He said, “We didn’t know what we were going to do. There was the three of us, fairly close friends and colleagues.”
Asked why he did not confront Sullivan immediately on April 10, Borden responded, “We were. I’m being very candid here, we were afraid we would find out what we ultimately found out ... and it took us awhile to get up the courage, the gumption, integrity or whatever to find out about it and do something about it." By “we,” Borden did not mean to include justices Norcott, Vertefeuille or, most importantly, Zarella, who withdrew his nomination after Borden had issued a letter denouncing Sullivan to the legislative committee deciding Zarella’ nomination.
“I take it you had some ambitions to be chief justice some day,” attorney Robert Cooney asked Borden at the Judicial Review Council hearing, to which Borden, now the sitting Chief Justice of Connecticut’s high court, responded, “Oh, I would have liked it. I think ‘ambitions’ might be a bit strong.”
G. Kenneth Bernard, a lawyer and member of the review council, challenged Borden: "I'm failing to see what your letter did to assist the public, other than to quash Justice Zarella's opportunity to become chief justice.”
Said Borden, “I don't think I could have, as a matter of what was right and, frankly, what was practical, sat on that information without informing the legislature… I was in an extraordinary situation and I made the best judgment I could about what I had and what my obligations were."
Borden apparently felt no obligation to tell Zarella on April 10, when he received the information from Palmer, that Sullivan by holding publication of a report potentially damaging to Zarella was pursuing a course that might well – as it did – damage Zarella’s prospects as Rell’s nominee for chief justice.
Let no one speak of ambitions here. Ambitions have no place among honorable men.