State Supreme Court Justice Palmer retiring
Decisions included same-sex marriage, end of death penalty
One of the longest careers in the long history of the state Supreme Court is coming to an end as Justice Richard N. Palmer retires after creating a remarkable body of work — a string of provocative opinions that held together majorities on some of the most explosive legal and political controversies of the last three decades.
It was decisions by Palmer — often for razor-thin majorities — that abolished the death penalty, established a right to same-sex marriage, set the stage for unlocking Catholic Church files on clergy abuse, enabled Sandy Hook families to sue the manufacturer of the assault rifle used to kill their children and opened jealously restricted town beaches to the public in a state with a largely inaccessible coast.
He has been active in the court’s entanglements in stubborn questions about how to finance and racially balance public schools. And his stunning decisions reversing murder convictions of two notorious accused killers so incited even his own colleagues on the court that it precipitated a personal exchange of dissents and loaded footnotes.
“Certainly, his is the longest term in well over 100 years,” said Wesley Horton, a Hartford lawyer and acknowledged dean of the state’s Supreme Court lawyers. “But more important, he is one of the most consequential judges of this generation.”
Other judges suggest he may be one of the most consequential ever.
Just two justices, both from the 19th century, served longer. Palmer has been on the court 27 years and finishes at No. 3 when he reaches the retirement age of 70 at the end of the month. His last day as a justice of the State Supreme Court is May 27, but he remains active until the court completes decisions in cases on which he already has sat. Afterward — if he chooses — he can sit on the Appellate Court or preside over cases as a trial judge on the Superior Court.
Court watchers already are taking stock of what most agree has been an exceptional career. Colleagues who have known Palmer for decades talk about an outgoing personality, self-deprecating humor and an entertaining storyteller. But they talk also about aggressiveness in applying the law to society’s controversies, anger at perceived injustice and persuasiveness that built majorities around his legal analyses.
“He’s a lawyer’s lawyer and a judge’s judge,” Appellate Court Judge Thomas Bishop said. “He loves the law and he lives the law. I think he is a man of great scholarship and integrity. I think he showed leadership on the court that is demonstrated by the fact that he wrote so many majority opinions in difficult and contentious matters.”
Supporters — including many who have disagreed with him over the years — talk about his “intellectual rigor,” his “sense of justice and injustice.” But the nature of his most important decisions — written for the narrowest of majorities on politically explosive legal questions — made contention inevitable. Critics complain his decisions have at times pressed the law too hard, encroaching on the legislature’s policymaking authority.
“His ability to play a proper role in the system but not be unduly constrained by the law’s conservative instincts is one of the things for which he will be remembered,” state Supreme Court Chief Justice Richard A. Robinson said.
How a single justice came to be assigned to write so many close, yet important decisions is part of the court’s secret workings. Seniority is said to be a factor and Palmer, at least in recent years, has been junior only to the chief justice.
“I think what I can say to you without getting into the deliberative process is that he has always been drawn to and he has never shied away from some of the most complex and controversial issues that came before the court,” said former state Supreme Court Chief Justice Chase Rogers, a member of the court from 2007 to 2018. “The bottom line is: Dick is a brave justice. He was very willing to take on some of the most controversial issues that came before the court.”
One of the challenges of writing a majority opinion is keeping the majority intact. After hearing arguments on a case, the justices take an initial vote and divide along lines that reflect early thinking on the law. If a member of a narrow majority becomes uncomfortable with the direction the opinion is taking, he can jump ship, converting a tentative majority to a minority. Colleagues said Palmer has combined passion, pragmatism and legal intuition in a way that that lends itself to coalition-building.
“I think that he is one of the most congenial people you will ever have the pleasure of working with,” said U.S. District Judge Robert N. Chatigny, a former law partner and friend. “He is, I think, a very good listener. And I think he looks for solutions and is more of a pragmatist than an ideologue. He has had plenty of experience working with other people who may not always agree with him. And I guess he has learned the art, skill of being able to build a coalition and hold it together. He’s not in it for the headlines. He is not in it for the history books. He is trying to do what seems right. And because he is such a likable guy I think people are apt to want to be on his side and stick with him.”
Academics, tennis and Weicker nomination
Palmer grew up in Wethersfield. He graduated Phi Beta Kappa from Trinity College, where he was captain of the tennis and squash teams — and two years after handling a squash racquet for the first time, he became a first-team All-American squash player. After completing the UConn School of Law with high honors, he clerked for former U.S. District and later U.S. Circuit Court Judge Jon O. Newman, as did Chatigny. On Newman’s suggestion, the two were briefly law partners in Hartford.
Another Trinity graduate, Stanley A. Twardy Jr., was appointed U.S. attorney in 1985, recommended by then-U.S. Sen. Lowell P. Weicker Jr. One of Twardy’s first recruits was Palmer, who became deputy U.S. attorney and later, for a year, U.S. attorney.
At the time, influential state Democrats, alarmed by the unwelcome interest of the state’s top state prosecutor in political crimes, effectively eliminated the ability of state police and prosecutors in Connecticut to make political corruption cases. The U.S. attorney’s office jumped into the vacuum, opening a string of prosecutions that that ended a decade later with the conviction of Gov. John G. Rowland. The office also moved against the Colombian drug cartels then dumping tons of cocaine on the state.
Palmer personally supervised a case against a Colombian who was laundering tens of millions of dollars in U.S. dope profits for trafficker Pablo Escobar. It was an undercover investigation that crossed the country before winding up on a yacht in the Caribbean Sea. Since Colombia wouldn’t extradite drug kingpins, Palmer flew to Aruba with a team of FBI agents, lured the culprit onto a chartered yacht and snatched him in international waters.
Weicker made Twardy his chief of staff when he was elected governor in 1990. Weicker, a Yale
Law School graduate, persuaded Palmer to become chief state’s attorney and the two became friendly, dining together and playing tennis.
“He got to know Lowell,” Twardy said. “He and Weicker were playing tennis one morning and Weicker said, ‘Hey Palmer. How’d you like to be a Supreme Court Justice?’ That’s exactly how it happened.”
Gay marriage, death penalty, overturned convictions
Palmer joined the court in 1993 as what court watchers considered a moderate conservative but they said he drifted left, mostly on social issues, although ideological consistency matters far less in Hartford than in Washington. A colleague said he never lost his conservatism in criminal matters.
He has been perceived, at least, as liberal since his 4-3 majority decision in Kerrigan v. Commissioner of Public Health, the contentious 2008 case that established same-sex marriage as a right under the state constitution. Two other states had legalized gay marriage by statute. Palmer’s decision was the first time a state court did so and his exhaustive analysis became the legal model adopted elsewhere.
Kerrigan turned on Connecticut’s civil union law, a sloppy legislative compromise that had given gay couples all the rights and privileges of traditional marriage — everything but the word marriage. Eight same-sex couples sued, saying they wanted the word, too.
Palmer wrote: “We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.”
Seven years later he infuriated conservatives again, writing for another 4-3 majority in State v Santiago, the 2015 death penalty appeal that that ended capital punishment in Connecticut. Across his career, Palmer had dependably upheld Connecticut’s half-century-old death penalty law. But the Santiago appeal was based on a new law, another puzzling legislative compromise that said the state could execute previously convicted killers, but not those who might be convicted in the future.
Palmer’s opinion for the majority concluded that the law’s prospective aspect, dividing future and past killers into separate classes and punishing them differently, amounted to cruel and unusual punishment. But the section of the opinion that galvanized conservatives was its assertion that the legislature’s willingness to abandon future executions showed that Connecticut, as a society, had come to view a death sentence as an anachronistic punishment of dubious deterrent value.
“In light of the governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose,” Palmer wrote.
There was more contention in 2015, with Palmer’s decision for a 4-2 majority in LaPointe v Commissioner of Correction. He reversed a murder conviction against Richard LaPointe, a tiny, impressionable man who had been stunted and mentally impaired by a childhood disorder. LaPointe had married a handicapped woman and was working as a dishwasher when his mother-in-law was killed and set afire. In Palmer’s decision, the majority concluded that police detectives tricked LaPointe into confessing, then concealed evidence suggesting his innocence. The decision released LaPointe, who had been confined for a quarter-century with the state’s most dangerous criminals a highsecurity state prison.
Three years later, in the 2018 Michael Skakel v. Commissioner of Correction, Palmer’s decision for another 4-3 majority overturned the conviction of Kennedy cousin Michael Skakel, who had been charged with the murder of the teenage girl who lived across the street from his home in Greenwich. Skakel and the victim, Martha Moxley, were 15 years old when the crime was committed in 1975.
The slow-motion way the decision unfolded makes it one of the most extraordinary in the court’s history.
Palmer’s majority opinion concluded that Skakel’s legal defense, when he was convicted of murder in 2002, was so woefully deficient that the jury’s guilty verdict could not be relied upon. Remarkably, 16 months earlier, the court had taken the opposite position. In the earlier decision, Justice Peter Zarella wrote for a different 4-3 majority that Skakel’s trial defense was competent, that his conviction should stand and that he should finish serving his life sentence.
What changed between the decisions was not the facts or the law, but the composition of the court.
Zarella retired immediately after the court ruled the first time. Skakel quickly asked the court to reconsider the ruling, but he asked that that governor fill Zarella’s seat with a new justice before the court decided whether it would reconsider. As senior justice at the time, it was Palmer’s decision and he agreed — to both reconsideration and replacement of Zarella. A new court, including Zarella’s replacement, agreed to reconsider and, more than a year later, Palmer issued the decision in Skakel’s favor.
‘Honest and dedicated’
Palmer has written close to 600 opinions over nearly three decades. But Santiago and LaPointe may have generated the loudest response — outside the court as well as internally.
In Santiago, the minority asserted in its dissent that measuring Palmer’s “contemporary standards of decency” is a task best left to the legislature.
In LaPointe, now retired Justice Carmen Espinosa was exercised enough to write two dissents. In the first, in collaboration with Zarella, she attacked the majority’s legal reasoning. In the second, a personal dissent, she attacked the majority’s motives, accusing it of twisting the law in order to impose the outcome it desired on the case, rather than the conclusion reached through the judicial process.
“And justice is most certainly not attained by doffing one’s judicial robe and donning an advocate’s suit,” Espinosa wrote.
The majority responded through the now infamous footnote 69 appended to Palmer’s majority opinion. It read in part:
“Rather than support her opinion with legal analysis and authority, however, she chooses, for reasons we cannot fathom, to dress her argument in language so derisive that it is unbefitting an opinion of this state’s highest court.”
Conservative believers in traditional marriage and capital punishment were paying attention across the street from the court at the state Capitol and set their sights on Palmer. Palmer’s eightyear term was due to expire on March 17, 2017 and the legislature had to confirm him for another.
Reappointment of Supreme Court justices normally is pro forma. But the winter of 2017 was a time of rare political parity at the Capitol as the result of a successful election for Republicans the previous November. A hearing was convened on Palmer’s reappointment and Republicans tried to block it.
Sen. Michael McLachlan, a Danbury Republican, questioned Palmer about the Santiago decision, contrasting it against his record of having upheld multiple death sentences in the past, the last being that imposed on Todd Rizzo, who killed a 13-year-old boy with a hammer.
“What changed between Rizzo and Santiago?” McLachlan asked.
“The statute changed,” said Palmer. “I have not changed my mind on the death penalty. It was only with the passage of a bifurcated statute that I ultimately concluded it was unconstitutional.”
McLachlan turned to the infamous footnote.
“You threw a grenade,” McLachlan told Palmer. “Why did you do that?”
“We just felt the dissent in LaPointe was unfair and really accused us of engaging in conduct that is improper for judges,” Palmer said.
Kevin Kane, then the highly regarded chief state’s attorney, had telephoned Palmer and offered to testify in favor of reappointment, even though Kane was frequently on the losing end of Palmer’s decisions. The two had worked together as prosecutors and, for years, Palmer chaired the commission that oversees the state Division of Criminal Justice. Palmer declined the offer, worrying that Kane could jeopardize his own political support. Kane appeared anyway.
“At some point somebody has to decide what the law is,” Kane said recently. “And whether you agree with it or not, he made an honest, good-faith decision as to what he believed the law is. And he had the courage to make it. And his reappointment shouldn’t have turned on that. He’s been honest and dedicated.”
Palmer was reappointed for a narrow term.
Because of coronavirus mitigation, the state Supreme Court convened remotely on May 8 for his final case, an appeal by a Bridgeport man convicted of murder after walking up to a complete stranger and shooting him to death in front of witnesses on a city street. The killer is arguing he should have been acquitted by reason of mental disease or defect.
The courtroom was empty. The justices and lawyers participated from their homes or offices by audio connection. Normally, there is a ceremony on such occasions. Instead, Robinson said recited an appraisal of Palmer’s career on the court into the record.
“Justice Palmer has an uncanny ability to get to the heart of an issue and look around the corner in a way that many do not,” Robinson said. “He is a careful, exacting thinker, but also a free thinker. Though respectful of precedent and his own limited role in the system, he has always had the vision and courage to move the law forward when it is appropriate to do so or correct an injustice.”