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ORD319.7A 10-30-15 15:31:39
ROGERS, C. J., with whom ZARELLA, J., joins, con-
curring in the denial of the state’s motion to stay. I
write this concurring opinion to explain why, despite
the fact that I voted to grant the state’s motion to recon-
sider this court’s decision in State v. Santiago, 318
Conn. 1, A.3d (2015) (Santiago II), I have now
voted to deny the state’s motion to stay the judgment
in that case pending resolution of the separate appeal
in State v. Peeler, Docket No. SC 18125. In Santiago II,
supra, 140, a majority of this court concluded that the
death penalty is now unconstitutional under our state
constitution as the result of the prospective abolition
of the death penalty in No. 12-5 of the 2012 Public Acts.
The state filed a motion for argument and reconsidera-
tion of that decision claiming that the majority had
addressed numerous issues that the defendant, Edu-
ardo Santiago, had not raised and that the state had
not had an opportunity to brief, which a majority of
this court denied. State v. Santiago, 319 Conn. 912,
A.3d (2015) (Santiago III). The state also filed a
motion for permission to brief these issues in Peeler,
which this court granted. The state now has filed a
motion requesting that this court stay the judgment in
Santiago II until the court has decided the issue of the
constitutionality of the death penalty as a matter of first
impression in Peeler.
For the following reasons, I have concluded that the
state’s motion to stay must be denied. The appeal in
Santiago II was decided, the motion for argument and
reconsideration was denied and, therefore, the decision
is now final. Although I continue to believe that the
majority in Santiago II unfairly denied the state an
opportunity to address many of the issues on which
the majority based its decision holding that the death
penalty is unconstitutional under the state constitution;
see Santiago III, supra, 319 Conn. 912–13 and n.1 (Rog-
ers, C. J., dissenting from denial of state’s motion for
argument and reconsideration of Santiago II); a major-
ity of the court has spoken on that issue, and the orderly
administration of justice compels me to abide by its
decision. I cannot and will not ignore our ordinary poli-
cies and procedural rules governing the finality of judg-
ments because their application in a particular instance
leads to a result with which I happen to strongly dis-
agree.1 I am compelled to follow these rules because
doing otherwise would in the long term undermine the
public faith in the integrity of this court, which is ulti-
mately the sole basis of its authority.
I also briefly address the majority’s latest argument
in support of its claim that, contrary to the state’s repre-
sentations in its motion for argument and reconsidera-
tion of our decision in Santiago II and in the present
motion to stay, the state was in fact on notice that
this court would consider numerous issues that the
defendant did not expressly raise. Procedurally, I
believe that the majority’s eleventh hour attempt to
justify the majority opinion in Santiago II is irregular.
If the majority believed that the state’s brief in Santiago
II demonstrates that it was on notice of the claims that
the state, I and two other members of this court contend
were not properly before the court, the time for it to
say so was in the original majority opinion, when the
issue of lack of notice to the state had been specifically
raised in my dissenting opinion. Substantively, the
majority points out that the state responded to the spe-
cific issues raised by the defendant in support of his
claim that our state constitution’s due process clauses
provide greater protection from the execution of the
death penalty after prospective repeal than does the
eighth amendment to the United States constitution
under State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992). It then appears to contend that this fact
somehow demonstrates ‘‘[q]uite clearly’’ that the state
must have been on notice that this court would consider
any and all issues that could possibly support the defen-
dant’s state constitutional claim, even though the defen-
dant had not expressly raised the issue, this court had
expressly considered and rejected most of these issues
a mere one and one-half years before oral argument in
Santiago II; see State v. Rizzo, 303 Conn. 71, 184–201,
31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct.
133, 184 L. Ed. 2d 64 (2012); and this court had just
reaffirmed Rizzo and summarily rejected the defen-
dant’s state constitutional claim in this very case. See
State v. Santiago, 305 Conn. 101, 306, 49 A.3d 566 (2012).
For the reasons that I previously have discussed at
length in my dissenting opinions in Santiago II and
Santiago III, the majority’s contention does not with-
stand scrutiny. It would serve no purpose to repeat
those arguments here.
1
I agree with the defendant’s contention in his opposition to the state’s
motion to stay that there is no authority for the proposition that this court
may stay a judgment in a particular case pending resolution of a similar
issue in an entirely separate case. Although this court has occasionally
arranged its docket so that similar issues raised in separate cases may be
decided at the same time, I am aware of no case in which it has followed
the procedure that the state is advocating. I emphasize, however, that I
express no opinion here as to whether the decision in Santiago II will be
binding on this court in Peeler, an issue that must be decided not in the
present case, but in Peeler.