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Prepared Remarks by Justice Peter T. Zarella
Bar Admission Ceremony
May 16, 2008

Thank you Chief Justice Rogers,

I am pleased to have the opportunity to speak to you. Today, you stand on the threshold of your legal career. In a few minutes you will recite your oaths as an attorney and as a commissioner of the Superior Court, and cross that threshold to enter the worthiest of professions. Your entrance into this noble profession is well-deserved, yet comes with great responsibility.

A few short weeks ago, this Court participated in its annual Law Day ceremony, the theme of which was "The Rule of Law." We all understand that ours is a country of laws and not of men. As Thomas Paine explained in A Common Sense, "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." In the world in which we now live, I suggest that remembering this fundamental principle and striving to protect it is as critical today as it was when our nation was founded.
 

Biography of Justice Peter T. Zarella

Judges' Corner

Of course, the basics are known to you already. Our constitutional democracy depends upon the separation of powers amongst three co-equal branches of government, checks and balances and a legal system charged with the protection of individual rights.

In a country, like ours, that is defined by freedom for all its people, itís sometimes easy to take for granted this form of government as well as the freedoms it protects. It can also be all too easy for us to take for granted the inherent promise that our system makes to people when they walk into a courthouse.

The promise is simply this: No matter who you are, or where you come from, no matter how much money you make, or what color you skin is, what sex you are, or how and if you worship, you will be treated fairly, and the judge will make his or her decision based on the facts of the case and the applicable law. The promise is that decisions will be made free of passion and prejudice and untainted by public opinion.

This promise is served and protected first and foremost by the maintenance of an independent judiciary. Lawyers, from the first day in law school, talk a great deal about the rule of law - the fundamental principle that the law, not the passions or prejudices of the moment will govern the determination of judicial decisions. It is this rule of law that all Americans hold sacred. This is not America's goal for its citizens, it is America's promise.

The concept of judicial independence ensures that each decision will be made only in accordance with the laws applicable to that case. Judicial independence makes possible the protection of fundamental rights, such as freedom of expression, assembly, religion, fair trial by an impartial jury and more that are shared by all Americans and guaranteed by our state and federal constitutions.

Judicial independence consists of two concepts - institutional independence and decisional independence.

Institutional independence is the concept that our constitution contemplated three branches of government all with a separate role to play in our democracy and all coequal. It is the co-equal nature of the three branches and the limitations on the powers of each of the branches which is the single greatest protector of our freedoms. Across this country today the threats to decisional and institutional independence are growing and have been the subject of much study and concern. For example, the under-funding of the basic needs of the judiciary and attempts to divest courts of rule making authority are among the varying threats to the institutional independence of the courts.

Decisional independence, on the other hand, is the freedom of the judiciary to render impartial decisions on the cases that come before us, based solely on the facts and the rule of law, without influence, threats, or fear of reprisals.

To ensure the protection of our fundamental rights, we, as citizens must all be vigilant concerning threats to decisional independence. Improper pressures on the judiciary can arise from a number of sources. In our state we are fortunate that we do not elect the justices of the Supreme Court or judges of the appellate and superior Courts. In states where they are elected, campaigns have been waged against particular judges, not because they violated their sworn oaths to make fair determinations based on law and facts, but because those decisions flew in the face of current public opinion on a particular topic or were adverse to a particular interest group. But in states, such as ours, where judges are free of election pressures, there are still other issues that implicate decisional independence. During the judicial appointment or reappointment process, those involved in this process may become preoccupied, not with measuring the candidates level of respect for the rule of law, but with how a potential candidate is likely to decide a particular issue with which he or she has not yet been faced, or with the thought processes that went into a specific decision in which a sitting judge participated.

Regardless of how judges assume their positions on the bench, they all additionally must face the pervasive and instantaneous coverage, and in some instances sensationalized coverage of events, on the internet, by the print media, and by the electronic media that make it increasingly difficult to ensure that parties receive a fair trial in high profile cases. Bloggers and other members of the press as well as social commentators routinely express opinions on guilt or innocence of defendants long before the facts are complete and the determinations made. If the result of the trial is other than as projected, then the conclusion is that there has been a failure in our system. The protections afforded the press under our constitution do not allow and should not allow censorship but it is up to us, the lawyers and judges of this great system, to do all in our power to ensure that in our American democracy, the rule of law, not concern for satisfying the opinions of others remains paramount. In order to accomplish this we must be ever vigilant in guarding both decisional and institutional independence.

At the same time, judges are the first to recognize that judicial independence must be balanced by judicial accountability. Our system of independent courts has built-in protections that insure judicial accountability. On an institutional level, the Judicial Branch budget is decided by the legislature after hearings and discussions. On a decisional level, virtually all court proceedings are open to the public. Written decisions are available for inspection and discussion. Appeals, as of right in most cases, require that a court of appellate judges review the legal accuracy of a decision, ensuring a measured second look at decisions outside the complicated arena of a trial courtroom. Cases involving our most fundamental individual rights can be reviewed by the highest court of the land.

Additionally, I suggest that the responsibility to defend the independence of our courts rests with all Americans because it benefits all Americans. Recently, an example of the press understanding and protecting the decisional independence of the judiciary occurred in a very high profile case here in Connecticut. A convicted sex offender was scheduled to be released from prison after having served the proscribed period of incarceration. The press noted the scheduled event and reported on the extraordinary consternation of the community. It was the topic of talk shows and the rhetoric grew as the date of release grew closer. Eventually the attorney general, in response to the concerns expressed by the community, moved the court to delay the release of the defendant despite the fact that the defendant had served his sentence. A hearing was scheduled. The motion was flatly denied by the judge as the court properly ruled that the attorney general had no standing to bring such a motion. The Journal Inquirer, a newspaper from Manchester, Connecticut, praised the action by the judge as upholding the rule of law. Notably, the journal observed that "The justice system has succeeded, remarkably so in light of the pressure applied to it from the top of the government to induce it to rule by something other than the law at the expense of someone suddenly despised throughout the state. Judge Handy had reminded those applying the pressure that the law is no respecter of persons and that the Constitution forbids ex-post facto laws. She could have quoted Supreme Court Justice Felix Frankfurter's droll observation that 'the safeguards of liberty have been forged in controversies involving not very nice people.'" I would suggest that the newspaper was doing its part to preserve the rule of law by recognizing that the judge could not and should not succumb to public pressure. In my opinion, this reporting represents the best of the journalistic world.

As this example demonstrates, non-lawyers sometimes will stand up for the importance of the rule of the law. The reality is, however, that it often falls to attorneys to actively defend the fundamental principle that judges must be free from public pressure in order to fulfill our constitutional obligation to make independent decisions, however unpopular those decisions may be. As one justice said "Öthe right to do the right thing, or, believing it to be the right thing, to do the wrong thing.". Attorneys have a duty to seek appellate review and correction of a decision premised on a mistaken application of the law, where a judge, believing it to be the right thing, did the wrong thing. When you take the oath today to uphold the constitution of the United States and the state of Connecticut you, in effect, take on your first client - the judiciary. As officers of our legal system, you especially are responsible for defending the judiciary from unwarranted intrusions on its independence.

As an attorney, how will you do this? Sometimes there is simply a public misconception about the parameters of a court's jurisdiction to entertain certain issues, or a lack of expertise on the part of some in considering the broad implications of a hoped-for decision. As an attorney, you will do your part in helping the public, and your own clients, understand a court's opinion or the boundaries of the law. Sometimes there are unfair attacks upon a court or a specific decision or a judge. Criticism of judgments is an integral part of our democratic process. But to be valuable, the criticism should be of the judgment not the judge. There is nothing wrong in criticizing a ruling. As former ABA President Jerome Shestack observed, "[e]very lawyer who appeals is criticizing a ruling." But, as an attorney, who recognizes that the Code of Judicial Conduct requires that a judge abstain from public comment about a pending proceeding, you will do your part by publicly defending against unwarranted, unfair, or inappropriate criticism of the judiciary. Similarly legislative intrusions and other intrusions that threaten institutional independence should be opposed by attorneys when they deem that intrusion to be violative of the doctrine of separation of powers.

In undertaking these responsibilities you will often be afforded help by our bar associations. Our state and local bar associations have since their inception provided an avenue of communication and fostered effective bench-bar relations. They have been an educational resource on the role of the judiciary for schools, community groups, and the media. They have, above all, been advocates for the decisional independence of the Judicial Branch. I urge you to join and participate actively in the initiatives spearheaded by your soon to be colleagues.

Throughout the history of our country and our state, attorneys have played a vital role in ensuring the individual rights and personal freedoms that we all enjoy. These freedoms are protected by adherence to the rule of law which is a basic premise of a civilized society. These rights have been safeguarded in large part by protecting the independence of the judiciary to enter judgments protecting those freedoms.

You are about to enter a noble profession. To uphold our liberties with the honesty, courage and respect that they deserve is today, as it has always been, the worthiest of pursuits. I extend to you, on behalf of the justices of the Supreme Court and the men and women of the Judicial Branch, the best of luck in your endeavor.

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