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Appellate Court Notes: Week of December 8

Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted December 8, 2014

Every now and then a case gets snuck into the summaries after they are first issued.  This is one of them.  Some may contend this decision inappropriately went beyond the clear and unambiguous language of the statute and continues the trend of painting Connecticut as a business unfriendly state.  Others may argue that the outcome is a logical extension of the statute and what they always assumed the law required.  

In this case the employee had received a series of poor performance evaluations.  The employee claimed however that she had overcome those performance issues and been told her performance was satisfactory and she no longer had to be supervised.  Then she claimed she announced that she needed some time off for surgery to remove a tumor and her employer promptly fired her as it perceived her surgery would leave her disabled and used as a pretext her past poor performance reviews. 

The issue on appeal became whether the Connecticut Fair Employment Practices Act 46a-51 covers discrimination based upon a “perception of disability”, and not just for employees actually suffering a disability.  The majority concluded that although the statute was clear and unambiguous that it does not cover a perception of disability, they had to side with the CHRO’s longstanding interpretation of the statute and reverse the Appellate Court and find the statute does cover “perceptions” of disability.  The majority concluded that the legislative history still had to be reviewed despite the statute being clear so as to avoid a bizarre result such as where an employer could not fire you because you had AIDS but could fire you upon learning you were going off to be tested for it.  The legislative history revealed a reluctance of the legislature to define which type of disabilities were covered to keep the statute broad and remedial.

Justice Palmer concurred with the result but would have found the outcome justified by the language of the statute without the need to consult legislative history.

Justice Zarella dissented saying he agreed the statute was clear and unambiguous and thus saw no need to go further and consult legislative history as it did not lead to a bizarre result for the legislature not to have created a cause of action for a the perception of disability.

Generating several dissents, this decision held that an arbitration panel formed under the Teacher Negotiation Act (TNA); General Statutes

§ 10-153a et seq is not a subcommittee of the Department of Education and therefore is not subject to the open meetings provision of the Freedom of Information Act (FOIA).  Therefore the FOIC order that the arbitration panel create a transcript of the stenographic record from one of its arbitration hearings was reversed.

In one dissent Justice McDonald argued that the arbitration panel is a public agency under General Statutes regardless of the majority’s conclusion that the panel is not wholly funded by the government and is subject to minimal oversight by the Department of Education .  Its members are appointed by the governor, with the advice and consent of the General Assembly, and they discharge specific governmental duties in accordance with a comprehensive statutory scheme.

So they are ‘‘officials’’ of a‘‘ ‘[p]ublic agency’ ’’ of the state within the meaning of § 1-200 (1) (A) he argued.

I normally do not summarize matrimonial decisions but this one got the goat of our own retired Judge Lynda Munro as being problematic.  The Supremes ruled today that the dramatic post-divorce increase in income of the spouse paying the alimony shall not alone be justification for the payee spouse to come back to court and ask for an increase in the alimony award, absent extraordinary circumstances being shown, such as the payee’s lifestyle had been severely curtailed at the time of the divorce and could not be maintained at that time due to a lack of economic resources.  Other than that, a spouse does not have the right to participate in the fruits of the labor of the payor spouse after divorce as they have not contributed to that success. 

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  Copyright 2014 Pullman & Comley, LLC. All Rights Reserved.

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