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STATE v. PEELER—FIRST CONCURRENCE

ROGERS, C. J., concurring. Just as my personal

beliefs cannot drive my decision-making, I feel bound

by the doctrine of stare decisis in this case for one

simple reason—my respect for the rule of law. To

reverse an important constitutional issue within a

period of less than one year solely because of a change

in justices on the panel that is charged with deciding the

issue, in my opinion, would raise legitimate concerns by

the people we serve about the court’s integrity and the

rule of law in the state of Connecticut.

Having carefully considered the arguments presented

by the parties, I am not persuaded by the state’s contention that principles of stare decisis should not control the outcome of this case. Although I agree that

‘‘stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, Boys

Markets, Inc. v. [Retail Clerks Union, Local 770], 398

U.S. 235, 241 [90 S. Ct. 1583, 26 L. Ed. 2d 199] (1970), it

is indisputable that stare decisis is a basic self-governing

principle within the Judicial Branch, which is entrusted

with the sensitive and difficult task of fashioning and

preserving a jurisprudential system that is not based

upon an arbitrary discretion. The Federalist, No. 78, p.

490 (H. Lodge ed. 1888)(A. Hamilton). See also Vasquez

v. Hillery, 474 U.S. 254, 265 [106 S. Ct. 617, 88 L. Ed.

2d 598] (1986) (stare decisis ensures that the law will

not merely change erratically and permits society to

presume that bedrock principles are founded in the law

rather than in the proclivities of individuals).’’ (Internal

quotation marks omitted.) Patterson v. McLean Credit

Union, 491 U.S. 164, 172, 109 S. Ct. 2363, 105 L. Ed. 2d

132 (1989). ‘‘[N]o judicial system could do society’s

work if it eyed each issue afresh in every case that

raised it. . . . Indeed, the very concept of the rule of

law underlying our own [c]onstitution requires such

continuity over time that a respect for precedent is, by

definition, indispensable.’’ (Citation omitted.) Planned

Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674

(1992); see also George v. Ericson, 250 Conn. 312, 318,

736 A.3d 889 (1999) (‘‘Stare decisis is justified because

it allows for predictability in the ordering of conduct,

it promotes the necessary perception that the law is

relatively unchanging, it saves resources and it promotes judicial efficiency. . . . It is the most important

application of a theory of[decision-making] consistency

in our legal culture and it is an obvious manifestation

of the notion that [decision-making] consistency itself

has normative value.’’ [Citation omitted; internal quotation marks omitted.]).

‘‘While stare decisis is not an inexorable command

. . . particularly when we are interpreting the [c]onsti-
tution . . . even in constitutional cases, the doctrine

carries such persuasive force that we have always

required a departure from precedent to be supported by

some special justification.’’ (Citations omitted; internal

quotation marks omitted.) Dickerson v. United States,

530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405

(2000). ‘‘Such justifications include the advent of subsequent changes or development in the law that undermine a decision’s rationale . . . the need to bring [a

decision] into agreement with experience and with facts

newly ascertained . . . and a showing that a particular

precedent has become a detriment to coherence and

consistency in the law . . . .’’ (Citations omitted; internal quotation marks omitted.) Payne v. Tennessee, 501

U.S. 808, 849, 111 S. Ct. 2579, 115 L. Ed. 2d 720 (1991)

(Marshall, J., dissenting).

When neither the factual underpinnings of the prior

decision nor the law has changed, ‘‘the [c]ourt could

not pretend to be reexamining the prior law with any

justification beyond a present doctrinal disposition to

come out differently from [the prior decision]. To overrule prior law for no other reason than that would run

counter to the view repeated in our cases, that a decision to overrule should rest on some special reason

over and above the belief that a prior case was wrongly

decided.’’ Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 864.

I cannot identify any change or development in the

law since the decision in State v. Santiago, 318 Conn.

1, 122 A.3d 1 (2015), was issued or any new experiences

or facts that have come to light. Because there also has

been no showing that the substance of the opinion has

or will become a detriment to coherence and consistency in the law, applying the doctrine of stare decisis

is appropriate. Moreover, although the state has now

had an opportunity to present new arguments in the

present case that it had no reason to present in Santiago

because it was not on notice that this court would

consider them, the three members of the current court

who were in the majority in that case have rejected

those arguments on the merits and the fourth member

of the majority in Santiago, Justice Norcott, had for

many years before that decision expressed his view

that the death penalty is unconstitutional per se. See,

e.g., State v. Rizzo, 303 Conn. 71, 203, 31 A.3d 1094

(2011) (Norcott, J., dissenting) (‘‘the death penalty per

se is wrong, violates the state constitution’s prohibition

against cruel and unusual punishment [and] . . . our

statutory scheme forthe imposition of the death penalty

cannot withstand constitutional scrutiny because it

allows for arbitrariness and racial discrimination in the

determination of who shall live or die at the hands

of the state’’ [internal quotation marks omitted]), cert.

denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).

Accordingly, it is clear that, if these issues had been

raised and briefed in Santiago, the result would have
been no different. In fact, the only change that has

occurred is a change in the makeup of this court, which

occurred after oral argument in Santiago but before

the decision was released. I strongly believe that, in

and of itself, a change in the membership of this court

within a relatively short period of time cannot justify

a departure from the basic principle of stare decisis,

especially on an issue of such great public importance.1

See Payne v. Tennessee, supra, 501 U.S. 850 (Marshall,

J., dissenting) (change in court’s personnel ‘‘has been

almost universally understood not to be sufficient to

warrant overruling a precedent’’ [emphasis in original]);

Taylor v. Robinson, 196 Conn. 572, 578, 494 A.2d 1195

(1985) (Peters, C. J., concurring) (‘‘[a] change in the

constituency of this court is not a sufficiently compelling reason to warrant departure from a [recent decision]’’), appeal dismissed, 475 U.S. 1002, 106 S. Ct. 1172,

89 L. Ed. 2d 291 (1986); Tileston v. Ullman, 129 Conn.

84, 86, 26 A.2d 582 (1942) (‘‘a change in the personnel

of the court affords no ground for reopening a question

which has been authoritatively settled’’), appeal dismissed, 318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 603 (1943).

Any other conclusion would send the message that,

whenever there is a hotly contested issue in this court

that results in a closely divided decision, anyone who

disagrees with the decision and has standing to challenge it need only wait until a member of the original

majority leaves the court to mount another assault. In

my view, that would be a very dangerous message to

send. See Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 854 (‘‘no judicial

system could do society’s work if it eyed each issue

afresh in every case that raised it’’); Wheatfall v. State,

882 S.W.2d 829, 843 (Tex. Crim. App. 1994) (If new

personnel were the reason to overrule precedent, ‘‘this

[c]ourt would be forced to reconsider every decision

of . . . our [c]ourt upon changes in membership. Such

an endeavor would defeat one of the essential purposes

of stare decisis.’’), cert. denied, 513 U.S. 1086, 115 S.

Ct. 742, 130 L. Ed. 2d 644 (1995).

Regardless of any reliance on the majority decision

in Santiago, or lack thereof, stability in the law and

respect for the decisions of the court as an institution,

rather than a collection of individuals, in and of themselves, are of critically important value, especially on

an issue of such great public significance as the constitutionality of the death penalty.2 See Vasquez v. Hillery,

supra, 474 U.S. 265 (stare decisis ‘‘ensure[s] that the

law will not merely change erratically, but will develop

in a principled and intelligible fashion’’); George v. Ericson, supra, 250 Conn. 318 (‘‘[decision-making] consistency itself has normative value’’ [internal quotation

marks omitted]); People v. Hobson, 39 N.Y.2d 479, 491,

348 N.E.2d 894, 384 N.Y.S.2d 419 (1976) (It would be

‘‘scandalous for a court to shift within less than two

years because of the replacement of one of the majority
in the old court by one who now intellectually would

have preferred to have voted with the old minority and

the new one. The ultimate principle is that a court is

an institution and not merely a collection of individuals . . . . This is what is meant, in part, as the rule of

law and not of men.’’ [Emphasis added.]). Indeed, I

believe that overruling the flawed majority decision in

Santiago under these circumstances would inflict far

greater damage on the public perception of the rule of

law and the stability and predictability of this court’s

decisions than would abiding by the decision. See

Planned Parenthood of Southeastern Pennsylvania v.

Casey, supra, 505 U.S. 864 (‘‘A basic change in the

law upon a ground no firmer than a change in our

membership invites the popular misconception that this

institution is little different from the two political

branches of the [g]overnment. No misconception could

do more lasting injury to this [c]ourt and to the system

of law which it is our abiding mission to serve . . . .’’

[Citation omitted; internal quotation marks omitted.]),

quoting Mitchell v. W. T. Grant Co., 416 U.S. 600, 636,

94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974) (Stewart, J., dissenting).3

Accordingly, I concur with the majority opinion.

1

In their dissenting opinions, Justice Zarella and Justice Espinosa cite

numerous decisions in which this court has overruled one of its decisions.

Anyone who has had an opportunity to read those decisions will discoverthat

there is no inconsistency between the position that I took in the decisions in

which I joined and the position that I take in the present case. Of particular

significance, I would emphasize that, in many of the cases relied upon by

the dissenting justices in which this court has overruled a recent decision,

at least one member of the majority on the original decision that was

being overruled reconsidered and joined with the majority in the subsequent

overruling decision. In contrast, in the present case, it is perfectly clear that

all of the members of the majority in Santiago continue to believe in the

correctness of their decision, and the only change is the replacement of

Justice Norcott by Justice Robinson.

With respect to Justice Espinosa’s account of the panel changes that

occurred prior to our decision in Santiago, suffice it to say that this court

followed its standard procedures in determining which justices would sit

on all phases of that case.

2

I agree with much of Justice Zarella’s analysis in his dissent in the present

case, which, distilled to its essence, argues that, if a past decision was

manifestly incorrect and there has been no reliance on it, principles of stare

decisis may not require the court to stand by that decision. In Santiago,

however, Justice Zarella, Justice Espinosa and I explained at great length

why we believed that the majority decision was incorrect; see State v.

Santiago, supra, 318 Conn. 231–341 (Rogers, C. J., dissenting); id., 341–88

(Zarella, J., dissenting); id., 388–412 (Espinosa, J., dissenting); and we were

unable to persuade the majority. The three members of that majority who

are also in the majority in the present case continue to believe that Santiago

was not manifestly incorrect, and there is every reason to believe that the

fourth member, Justice Norcott, would agree with them because of his

unwavering belief that the death penalty is per se unconstitutional. See State

v. Rizzo, supra, 303 Conn. 202 n.1, 203 (Norcott, J., dissenting). When it is

clear that the same majority in a prior recent decision that this court is

considering overruling continues to believe that the case was correctly

decided, I cannot conclude that a mere change in membership of the court

justifies overruling that decision. When that has been the only intervening

change, stability is the overriding consideration. ‘‘For it is an established

rule to abide by former precedents, where the same points come again in

litigation; as well [as] to keep the scale of justice even and steady, and not

liable to waver with every new judge’s opinion . . . .’’ (Emphasis added.)

1 W. Blackstone, Commentaries on the Laws of England (1775) p. 69.
3

I emphasize that I express no view on the question of whether the

legislature could constitutionally reinstitute the death penalty by repealing

No. 12-5 of the 2012 Public Acts and its prospective abolition of the death

penalty and reenacting a death penalty statute that applied to all defendants,

regardless of the date of their offense. The majority in Santiago also recognized that this is an open question. See State v. Santiago, supra, 318 Conn.

86 n.88 (‘‘[w]e express no opinion as to the circumstances under which a

reviewing court might conclude, on the basis of a revision to our state’s

capital felony statutes or other change in [the five objective indicia of

society’s evolving standards of decency], that capital punishment again comports with Connecticut’s standards of decency and, therefore, passes constitutional muster’’); see id., 52–86 (discussing indicia). In any event, the policy

issue of whether to attempt to reinstate a constitutional death penalty is

now in the hands of the legislature.