afternoon, Senator McDonald, Representative Lawler, members of the
Committee. I am David Borden, and I am the Senior Associate Justice
of the Connecticut Supreme Court. I come before you today to discuss
the Judicial Branch’s concerns with Senate Joint Resolution 32,
Resolution Proposing An Amendment to the State Constitution
Concerning the Practices and Procedures of the Courts.
Judicial Branch strongly opposes this resolution, which would
transfer from the judiciary to the legislature the power to make the
procedural rules that govern court practice. We believe that the
rule-making power should remain within the province of the
judiciary, where it has been for nearly two hundred years since
Connecticut’s Constitution created a separate and independent
Judicial Department of government.
It is useful to this discussion to understand just what we mean
when we refer to rule-making. Rule-making is a detailed and arduous
undertaking. As many of you know, there are more than 1100 rules of
civil, family, juvenile, criminal and appellate procedure. These
rules, which are published in the Connecticut Practice Book and are
available on the Judicial Branch’s website, are sets of instructions
to the lawyers and judges that are designed to ensure a level
playing field in the litigation process. Most of them involve
specific matters that are of great importance to the fair and
efficient operation of the litigation process but of limited
interest to the general public, such as the procedures and time
limits for a litigant to amend a complaint filed with the court.
The rules of practice are adopted by a vote of all our state
judges at the Annual Meeting of the Judges of the Superior Court,
which is open to the public. Prior to this vote, however, the Rules
Committee of the Judges of the Superior Court – which also meets
openly – holds a public hearing on proposed rules or amendments to
rules that have been submitted by judges, lawyers, or members of the
This public hearing provides an opportunity for individuals to
appear and to voice their support for, concerns with, or opposition
to the proposed rules. In fact, it is very similar to the procedure
I am participating in here today. It affords a meaningful
opportunity for the public, including the media, the bench, and the
bar, to make suggestions or offer criticisms.
I believe that this framework ought to be maintained. Because the
judges work with the rules every day, they have the detailed
knowledge and every-day courtroom experience that informs them of
whether the rules are working. In addition, I believe that
transferring the rule-making power to the legislature could subject
that power to political factors that should not be allowed to
influence the formulation of our rules of court.
There is an additional reason that I believe the state should not
take the extreme step of enacting a constitutional amendment -- it
is unnecessary. For decades, the General Assembly and the judges of
the Superior Court have acted in comity on issues of court practice
and procedure. While inconsistencies between Practice Book rules and
statutes are rare, they have occurred from time to time. In these
instances, we have worked cooperatively to harmonize the language,
either by amending the rule or by requesting amendments to the
statute. Simply put, we have been good partners and we have worked
diligently to reach mutually agreeable solutions. In fact, in my
nearly 30 years in the state judiciary, I cannot recall a single
instance where this was not so.
For example, just this past July, technical amendments were
adopted by the judges to conform sections of the Practice Book to
recent enactments of the General Assembly. Specifically, two
sections regarding offers of compromise were amended to conform to
Public Act 05-275, An Act Concerning Medical Malpractice.
Similarly, sixteen sections of the Practice Book rules regarding
family matters procedures were amended in light of Public Act 05-10,
an act that authorized civil unions.
In other instances, new initiatives have required both statutory
changes and changes to our rules. For example, when it became clear
that the state generally needed to create a program for crisis
intervention and referral assistance to attorneys who suffer from
alcohol, substance abuse, or gambling problems, our two branches of
government worked together to create the program and make the
necessary changes in statute and rule. My point is that we have not
been at loggerheads; we have respected one another and acted
cooperatively. Neither branch of government has found it necessary
to usurp the power and authority of the other.
Lastly, it has often and rightly been said that a constitutional
amendment should be a remedy of last resort. I strongly urge to you
that we are nowhere near that point of last resort. Recent issues,
such as the super-sealing of cases and the delayed release of the GA
7 case, did not arise because of a provision in the rules. In
addition, they have both been appropriately addressed and resolved.
The reason often given by those who argue for a constitutional
amendment on the rule-making power is to ensure that the courts are
accountable to the people of our state. I submit that the courts are
accountable to the people. Recently, the Judicial Branch has
undertaken historic and unprecedented steps to enhance that
accountability by increasing the openness, transparency, and public
accessibility of the courts. I have previously spoken to you about
these specific steps, and will speak to you at greater length
regarding our progress when we discuss Senate Bill 1479, An
Act Concerning Judicial Branch Openness. I am confident that
these steps will ensure that the courts are and remain appropriately
accountable to the public that we serve, without compromising the
courts’ independence as the only non-political branch of government.
I, in my capacity as Senior Associate Justice – in effect, Acting
Chief Justice – since April of last year, began this process of
openness and accessibility. As you know, Judge Rogers, whom the
Governor has nominated to be our next Chief Justice, fully supports
this change and direction, and intends to continue it. Thus, there
should no fear that this is a temporary phenomenon. I am confident
that it will be permanent and healthy--both for the Branch and for
the public that we serve. At the least, I urge you to give us time
to prove this to you and to that public.
Thus, I respectfully suggest that the adoption of a
constitutional amendment would be unwise. It might politicize the
rule-making process, disregard our history of working cooperatively
on behalf of the citizens of this state, and would be, in my
opinion, an over-reaction to events that transpired last year.
Instead, I believe that a period of reflection and observation would
be the wiser course. I urge you to wait and watch how the Judicial
Branch operates in an open, transparent and accessible fashion.
The Judicial Branch’s mission is to resolve matters brought
before it in a fair, timely, efficient and open manner. We are
committed to fulfilling this mission to the best of our abilities,
and believe that in order to do so we must maintain the authority to
adopt our Rules of Practice. Therefore, I respectfully request that
the Committee not act favorably on this resolution.
Thank you for the opportunity to testify.