The Hartford Courant reports that the Connecticut state courts will no longer require parties to publish court notices in local papers, effective January 2. Instead, notices will be published in a dedicated court website.
The practice of court notice by publication, sometimes called constructive notice, goes back centuries. It is designed to assure that all interested parties are informed of legal proceedings, especially when those parties cannot be found personally. Indeed, constructive notice played a central role in two of the most famous Supreme Court cases in history. In Mullane v. Central Hanover Bank & Trust Co. (1950), the Court signed off on constructive notice for parties who could not be reasonably ascertained at the time the suit was filed. In Pennoyer v. Neff (1877), the infamous bane of many a first-year law student, the Court based its personal jurisdiction analysis on the premise that constructive notice alone was not enough for the Oregon courts to exercise power over an out-of-state defendant.
Constructive notice is founded on the assumption that if notice is published somewhere, the interested parties are reasonably likely to learn about the proceeding. That itself is a bit of a fiction — the notice in Pennoyer v. Neff was published in a local religious publication called the Pacific Christian Reporter — hardly a paper of major import or geographical reach. But with the unquestioned dominance of the internet in our lives, and the ongoing struggles of the newspaper industry, it is probably more fair to post notices online that in the paper anyway. Newspaper publishers might be rightly angry about the development, but with 2020 on the horizon, it seems sensible for the Connecticut courts to embrace the twenty-first century.
Pictured: The newspaper notice in Pennoyer v. Neff
This depressing story relates the brutal public invective that some family court judges in Connecticut have recently experienced–including a slew of anti-semitic, racist, and homophobic slurs. And it’s not just on social media. Opponents of the judges have erected vicious billboards on interstate highways, and have shown up to public hearings provocatively dressed to draw attention to their hatred of the judge.
The problem is compounded, first, by the nature of family court cases, which are often highly emotional and difficult. The well-accepted standard of doing what is in the “best interests of the child” is easy to state, but not to easy to apply. A second aggravating factor is the ongoing political fight between Connecticut’s legislators and Governor Dannel Malloy over judicial appointments and reappointments. And, of course, delays and court costs only add to the stress of the litigant experience.
So there is much room for improvement. But obviously no judge (indeed, no person) deserves to be attacked based on race, gender, religion, sexual orientation, and the like.
Connecticut Supreme Court Justice Andrew McDonald’s bid for that court’s chief justiceship came to an end yesterday, when the state senate rejected his nomination by a 19-16 vote. One Senator abstained due to personal conflicts.
The nomination seemed troubled from the start. McDonald has been a close political associate of Connecticut Governor Dannel Malloy for years, and that affiliation hurt him during the confirmation process. He drew a 20-20 tie vote in committee, and barely passed through the Connecticut House on a 75-74 vote. In the Senate, his nomination was opposed by every Republican, as well as one Democrat.
Some have been quick to blame the failed nomination on McDonald’s status as an openly gay man, suggesting that the opposition was driven by homophobia. But cooler heads have pointed out that McDonald was not helped by Malloy’s animated approach to the nomination, which evidently included promises to fill the next open seat on the court with a Republican. If anything, McDonald’s nomination was undone by classic politics — that is, authentic disputes over public policy — rather than modern identity politics. Better than his nomination had not come down to politics at all, but the insinuation that he is not chief justice today because of his sexual orientation is offensive to all sensible people.
Still working to get his nominee Andrew MacDonald confirmed as the state’s chief justice, Connecticut Governor Dannel Malloy has “signaled a willingness” to fill MacDonald’s Associate Justice seat with former Republican Senator Andrew Roraback. Roraback is currently a trial judge.
The state senate seems unconvinced:
Senate Republican leader Len Fasano of North Haven said Thursday the confirmation of McDonald, who would be the first openly gay chief justice, will be made independently of Roraback’s chances for professional advancement.
“I believe the governor has not made Roraback a nominee,” Fasano said. “The issue is not whether or not he does. The issue is whether or not Justice McDonald should be chief justice.”
The controversial nomination of Andrew McDonald to the Chief Justice of Connecticut barely passed the state House of Representatives on Monday, by a 75-74 voted. Several Democrats joined Republican opposition to make the vote extremely close.
McDonald had previously received an “unfavorable” report when his nomination led to a 20-20 committee vote. In the leadup to the House debate, outside groups accused Republicans of opposing McDonald because of his sexual orientation. Republicans again fiercely denied that charge in the House. And indeed, most of the debate centered on McDonald’s decision to join a slim 4-3 court majority which struck down the Connecticut death penalty. That decision spared the lives of two men on death row who had been convicted of killing the wife and daughters of state Rep. William Petit. Petit firmly fought against McDonald’s nomination.
The nomination now moves to the state senate, where Republicans hold a slim effective majority.
Earlier I reported on the deadlock in the Connecticut Judiciary Committee over the nomination of Justice Andrew McDonald to become that state’s next Chief Justice. The entire legislature will take up the nomination next Monday. In the meantime, certain trolls have apparently posted homophobic slurs about McDonald on the internet. (McDonald, a former Democratic legislator, is openly gay.) And in response, a left-leaning lobbying group called True Justice has created a digital ad accusing Republican opponents of McDonald’s nomination of “hate” and “homophobia.” The Republican leadership has been insistent that its opposition has nothing to do with McDonald’s sexual orientation, which seems wholly plausible since it was never an issue when McDonald was originally confirmed to the bench five years ago.
To be clear, it certainly does appear that Republican opposition to McDonald’s ascension is politically based — they would prefer someone with more conservative (or less liberal) credentials. This intersection of law and politics is perhaps unavoidable in the modern age, but it still hurts the credibility and perceived impartiality of the judiciary. Legislative Republicans would be better off confirming an accomplished jurist to the position for which he was duly nominated, and liberal agitators would be better off by not trying to turn every policy decision with which they disagree into hysteria and name-calling.
Meanwhile, Hawaii’s federal district court will soon have new judges, thanks in large part to tried-and-true backroom politics. This article lays out the interesting negotiations between the White House and Hawaii’s Democratic senators to get a number of federal judicial nominees confirmed. Score one for the old style of politics.