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Remarks of Justice Flemming L. Norcott, Jr.
on the occasion of Justice David M. Borden's
Last Day Hearing Cases as a Member
of the Connecticut Supreme Court
May 18, 2007

 

Thank you, Chief Justice Rogers. I join you and all of our colleagues in welcoming our guests here today. As I look back on the years I have had the privilege of serving with David, I realize that I joined him on the Superior Court bench in 1979, on the Appellate Court bench in 1987, and the Supreme Court bench in 1992. Now, as he enters another stage in his distinguished judicial career, I look to the example he set as the senior associate justice of the Supreme Court. In doing so, I marvel at the full measure of his legacy.

There are many accomplishments to be noted here today, reaching back many years. Past service as President of the Connecticut Judges' Association speaks to the respect Justice Borden earned from his fellow judges. Acting as Chair of the Rules Committee of the Superior Court is a daunting task, frequently thankless, but he fulfilled those duties for eight years. Judges and attorneys alike continue to benefit from his leadership on that Committee. Appointment as the first Administrative Judge of the Appellate System while he was an Appellate Court judge, and carrying those duties over upon appointment to the Supreme Court, demonstrates a deep understanding of and commitment to serving the entire Appellate System of the Connecticut Judicial Branch.

While I was preparing these remarks, I started to think back on the cases, the conferences, the spirited discussions, and the even more spirited softball games. As we sit here in this courtroom, however, I can't help but recall the many cases argued before and decided by a panel including Justice Borden. For the record, Justice Borden sat on 3,256 panels as an appellate jurist, 1,288 of those in the Supreme Court. So when the Chief Justice questioned in her remarks how anyone can be brief when seeking to summarize such a long and impressive career, I reminded myself that we ask attorneys to limit their remarks each time they appear before us. Well, I can tell you, just as they can, it isn't easy. So, based on the court's denial of my request for permission to speak beyond the time allotted for these remarks, I will focus on just a few of the cases that stand out in my memory of my time on the bench with Justice Borden.

I was a member of the panel for the Ledbetter case authored by Justice Borden in 2005. This case stands out in my mind for two reasons. First, it is an important case articulating the law in a difficult area in criminal matters: identification. Questions about the reliability of eyewitness identification arise on a regular basis, and this case presented a number of difficult issues to be addressed by the court. David's thoughtful opinion clearly brings each argument to the fore and thoroughly discusses each one. The discussion of the constitutional dimension alone makes this a significant case in our state's jurisprudence. But that is not where this case ends, and this brings me to my second point. Understanding the difficulties inherent in this area of law, and understanding that the audience for our opinions extends beyond the facts of each case, this opinion speaks to the need for a carefully crafted jury instruction informing the jury of the risks inherent in eyewitness identification. Justice Borden sought not only to be clear in the law of the case, but also in its application. That's what distinguishes, for me, an interesting case from a notable opinion.

Two other cases are noteworthy, and I will comment quite briefly on these. State v. Rizzo, a death penalty case, and Sheff v. O'Neill presented similarly unique challenges to the court. Suffice it to say that Justice Borden, as the author of the majority opinion in the former, and as a dissenting justice in the latter, was most sensitive to the difficulties the court faces when deciding cases such as these. His considerable judicial and leadership qualities are evident in the text of his opinions as they were throughout the process of hearing and deciding those cases.

The next case - which I know is a favorite of Justice Borden's - Billington v. Billington - was among the earlier cases he authored on this court. The opinion was published in 1991. I was on the Appellate Court at the time, so I would first like to point out that I was not a member of the Appellate Court panel that was reversed in his decision. Billington involved a lengthy discussion of financial affidavits in a marital dissolution case. Now the first thing that occurred to me when I read this case, other than the typically tortured procedural path it took, is that this can't be the only case where there may have been fraud in a financial affidavit. But the part of the opinion that really appeals to me is the distinction Justice Borden drew between the diligence required of parties in commercial cases and that required in marital cases. Seems pretty obvious to all of us now that this principle is established, but the opinion greatly clarified this point of law. Similarly, his statement that settlement negotiations in a marital case are unlike those in an accident case appears to us today to be a statement of the obvious. But he was writing the opinion as an astute observer of human nature when he emphasized that the court should not countenance such fraudulent conduct in that unique relationship. Of course he cited his own Appellate Court dissent in Grayson when he drafted that part of the majority opinion. Nevertheless, upon reading the opinion - or any opinion authored by Justice Borden - you are left with the impression that it was written by a brilliant, and very humane, judge.

Although not related to any specific case, I do recall a number of times that Justice Borden articulated his philosophy about being an appellate jurist. He has likened it to arriving at a battlefield after the battle is over, and trying to make sense out of what has just happened. Some might not be able to do that, but David could.

Finally, leaving the case law and reflecting on the most recent and extraordinary service by our Senior Associate Justice, I can only say that I expected no less. While on this court, Justice Borden authored 366 majority opinions, 48 concurring opinions and 48 dissents, and still counting. While these are impressive numbers, they are by no means the full measure of his service to the court or to the people of this state. The legacy he leaves is a career where he achieved success as an attorney, as a judge, and as a justice -- and where he conducted himself at all times as a person of honor.

Remarks by Chief Justice Rogers | Remarks by Justice Borden
 

 

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