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           STATE v. PEELER—FIRST CONCURRENCE

   ROGERS, C. J., concurring. Just as my personal
beliefs cannot drive my decision-making, I feel bound
by the doctrine of stare decisis in this case for one
simple reason—my respect for the rule of law. To
reverse an important constitutional issue within a
period of less than one year solely because of a change
in justices on the panel that is charged with deciding the
issue, in my opinion, would raise legitimate concerns by
the people we serve about the court’s integrity and the
rule of law in the state of Connecticut.
   Having carefully considered the arguments presented
by the parties, I am not persuaded by the state’s con-
tention that principles of stare decisis should not con-
trol the outcome of this case. Although I agree that
‘‘stare decisis is a principle of policy and not a mechani-
cal formula of adherence to the latest decision, Boys
Markets, Inc. v. [Retail Clerks Union, Local 770], 398
U.S. 235, 241 [90 S. Ct. 1583, 26 L. Ed. 2d 199] (1970), it
is indisputable that stare decisis is a basic self-governing
principle within the Judicial Branch, which is entrusted
with the sensitive and difficult task of fashioning and
preserving a jurisprudential system that is not based
upon an arbitrary discretion. The Federalist, No. 78, p.
490 (H. Lodge ed. 1888) (A. Hamilton). See also Vasquez
v. Hillery, 474 U.S. 254, 265 [106 S. Ct. 617, 88 L. Ed.
2d 598] (1986) (stare decisis ensures that the law will
not merely change erratically and permits society to
presume that bedrock principles are founded in the law
rather than in the proclivities of individuals).’’ (Internal
quotation marks omitted.) Patterson v. McLean Credit
Union, 491 U.S. 164, 172, 109 S. Ct. 2363, 105 L. Ed. 2d
132 (1989). ‘‘[N]o judicial system could do society’s
work if it eyed each issue afresh in every case that
raised it. . . . Indeed, the very concept of the rule of
law underlying our own [c]onstitution requires such
continuity over time that a respect for precedent is, by
definition, indispensable.’’ (Citation omitted.) Planned
Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674
(1992); see also George v. Ericson, 250 Conn. 312, 318,
736 A.3d 889 (1999) (‘‘Stare decisis is justified because
it allows for predictability in the ordering of conduct,
it promotes the necessary perception that the law is
relatively unchanging, it saves resources and it pro-
motes judicial efficiency. . . . It is the most important
application of a theory of [decision-making] consistency
in our legal culture and it is an obvious manifestation
of the notion that [decision-making] consistency itself
has normative value.’’ [Citation omitted; internal quota-
tion marks omitted.]).
   ‘‘While stare decisis is not an inexorable command
. . . particularly when we are interpreting the [c]onsti-
tution . . . even in constitutional cases, the doctrine
carries such persuasive force that we have always
required a departure from precedent to be supported by
some special justification.’’ (Citations omitted; internal
quotation marks omitted.) Dickerson v. United States,
530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405
(2000). ‘‘Such justifications include the advent of subse-
quent changes or development in the law that under-
mine a decision’s rationale . . . the need to bring [a
decision] into agreement with experience and with facts
newly ascertained . . . and a showing that a particular
precedent has become a detriment to coherence and
consistency in the law . . . .’’ (Citations omitted; inter-
nal quotation marks omitted.) Payne v. Tennessee, 501
U.S. 808, 849, 111 S. Ct. 2579, 115 L. Ed. 2d 720 (1991)
(Marshall, J., dissenting).
  When neither the factual underpinnings of the prior
decision nor the law has changed, ‘‘the [c]ourt could
not pretend to be reexamining the prior law with any
justification beyond a present doctrinal disposition to
come out differently from [the prior decision]. To over-
rule prior law for no other reason than that would run
counter to the view repeated in our cases, that a deci-
sion to overrule should rest on some special reason
over and above the belief that a prior case was wrongly
decided.’’ Planned Parenthood of Southeastern Penn-
sylvania v. Casey, supra, 505 U.S. 864.
   I cannot identify any change or development in the
law since the decision in State v. Santiago, 318 Conn.
1, 122 A.3d 1 (2015), was issued or any new experiences
or facts that have come to light. Because there also has
been no showing that the substance of the opinion has
or will become a detriment to coherence and consis-
tency in the law, applying the doctrine of stare decisis
is appropriate. Moreover, although the state has now
had an opportunity to present new arguments in the
present case that it had no reason to present in Santiago
because it was not on notice that this court would
consider them, the three members of the current court
who were in the majority in that case have rejected
those arguments on the merits and the fourth member
of the majority in Santiago, Justice Norcott, had for
many years before that decision expressed his view
that the death penalty is unconstitutional per se. See,
e.g., State v. Rizzo, 303 Conn. 71, 203, 31 A.3d 1094
(2011) (Norcott, J., dissenting) (‘‘the death penalty per
se is wrong, violates the state constitution’s prohibition
against cruel and unusual punishment [and] . . . our
statutory scheme for the imposition of the death penalty
cannot withstand constitutional scrutiny because it
allows for arbitrariness and racial discrimination in the
determination of who shall live or die at the hands
of the state’’ [internal quotation marks omitted]), cert.
denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).
Accordingly, it is clear that, if these issues had been
raised and briefed in Santiago, the result would have
been no different. In fact, the only change that has
occurred is a change in the makeup of this court, which
occurred after oral argument in Santiago but before
the decision was released. I strongly believe that, in
and of itself, a change in the membership of this court
within a relatively short period of time cannot justify
a departure from the basic principle of stare decisis,
especially on an issue of such great public importance.1
See Payne v. Tennessee, supra, 501 U.S. 850 (Marshall,
J., dissenting) (change in court’s personnel ‘‘has been
almost universally understood not to be sufficient to
warrant overruling a precedent’’ [emphasis in original]);
Taylor v. Robinson, 196 Conn. 572, 578, 494 A.2d 1195
(1985) (Peters, C. J., concurring) (‘‘[a] change in the
constituency of this court is not a sufficiently compel-
ling reason to warrant departure from a [recent deci-
sion]’’), appeal dismissed, 475 U.S. 1002, 106 S. Ct. 1172,
89 L. Ed. 2d 291 (1986); Tileston v. Ullman, 129 Conn.
84, 86, 26 A.2d 582 (1942) (‘‘a change in the personnel
of the court affords no ground for reopening a question
which has been authoritatively settled’’), appeal dis-
missed, 318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 603 (1943).
Any other conclusion would send the message that,
whenever there is a hotly contested issue in this court
that results in a closely divided decision, anyone who
disagrees with the decision and has standing to chal-
lenge it need only wait until a member of the original
majority leaves the court to mount another assault. In
my view, that would be a very dangerous message to
send. See Planned Parenthood of Southeastern Penn-
sylvania v. Casey, supra, 505 U.S. 854 (‘‘no judicial
system could do society’s work if it eyed each issue
afresh in every case that raised it’’); Wheatfall v. State,
882 S.W.2d 829, 843 (Tex. Crim. App. 1994) (If new
personnel were the reason to overrule precedent, ‘‘this
[c]ourt would be forced to reconsider every decision
of . . . our [c]ourt upon changes in membership. Such
an endeavor would defeat one of the essential purposes
of stare decisis.’’), cert. denied, 513 U.S. 1086, 115 S.
Ct. 742, 130 L. Ed. 2d 644 (1995).
   Regardless of any reliance on the majority decision
in Santiago, or lack thereof, stability in the law and
respect for the decisions of the court as an institution,
rather than a collection of individuals, in and of them-
selves, are of critically important value, especially on
an issue of such great public significance as the consti-
tutionality of the death penalty.2 See Vasquez v. Hillery,
supra, 474 U.S. 265 (stare decisis ‘‘ensure[s] that the
law will not merely change erratically, but will develop
in a principled and intelligible fashion’’); George v. Eric-
son, supra, 250 Conn. 318 (‘‘[decision-making] consis-
tency itself has normative value’’ [internal quotation
marks omitted]); People v. Hobson, 39 N.Y.2d 479, 491,
348 N.E.2d 894, 384 N.Y.S.2d 419 (1976) (It would be
‘‘scandalous for a court to shift within less than two
years because of the replacement of one of the majority
in the old court by one who now intellectually would
have preferred to have voted with the old minority and
the new one. The ultimate principle is that a court is
an institution and not merely a collection of individu-
als . . . . This is what is meant, in part, as the rule of
law and not of men.’’ [Emphasis added.]). Indeed, I
believe that overruling the flawed majority decision in
Santiago under these circumstances would inflict far
greater damage on the public perception of the rule of
law and the stability and predictability of this court’s
decisions than would abiding by the decision. See
Planned Parenthood of Southeastern Pennsylvania v.
Casey, supra, 505 U.S. 864 (‘‘A basic change in the
law upon a ground no firmer than a change in our
membership invites the popular misconception that this
institution is little different from the two political
branches of the [g]overnment. No misconception could
do more lasting injury to this [c]ourt and to the system
of law which it is our abiding mission to serve . . . .’’
[Citation omitted; internal quotation marks omitted.]),
quoting Mitchell v. W. T. Grant Co., 416 U.S. 600, 636,
94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974) (Stewart, J., dis-
senting).3
      Accordingly, I concur with the majority opinion.
  1
     In their dissenting opinions, Justice Zarella and Justice Espinosa cite
numerous decisions in which this court has overruled one of its decisions.
Anyone who has had an opportunity to read those decisions will discover that
there is no inconsistency between the position that I took in the decisions in
which I joined and the position that I take in the present case. Of particular
significance, I would emphasize that, in many of the cases relied upon by
the dissenting justices in which this court has overruled a recent decision,
at least one member of the majority on the original decision that was
being overruled reconsidered and joined with the majority in the subsequent
overruling decision. In contrast, in the present case, it is perfectly clear that
all of the members of the majority in Santiago continue to believe in the
correctness of their decision, and the only change is the replacement of
Justice Norcott by Justice Robinson.
   With respect to Justice Espinosa’s account of the panel changes that
occurred prior to our decision in Santiago, suffice it to say that this court
followed its standard procedures in determining which justices would sit
on all phases of that case.
   2
     I agree with much of Justice Zarella’s analysis in his dissent in the present
case, which, distilled to its essence, argues that, if a past decision was
manifestly incorrect and there has been no reliance on it, principles of stare
decisis may not require the court to stand by that decision. In Santiago,
however, Justice Zarella, Justice Espinosa and I explained at great length
why we believed that the majority decision was incorrect; see State v.
Santiago, supra, 318 Conn. 231–341 (Rogers, C. J., dissenting); id., 341–88
(Zarella, J., dissenting); id., 388–412 (Espinosa, J., dissenting); and we were
unable to persuade the majority. The three members of that majority who
are also in the majority in the present case continue to believe that Santiago
was not manifestly incorrect, and there is every reason to believe that the
fourth member, Justice Norcott, would agree with them because of his
unwavering belief that the death penalty is per se unconstitutional. See State
v. Rizzo, supra, 303 Conn. 202 n.1, 203 (Norcott, J., dissenting). When it is
clear that the same majority in a prior recent decision that this court is
considering overruling continues to believe that the case was correctly
decided, I cannot conclude that a mere change in membership of the court
justifies overruling that decision. When that has been the only intervening
change, stability is the overriding consideration. ‘‘For it is an established
rule to abide by former precedents, where the same points come again in
litigation; as well [as] to keep the scale of justice even and steady, and not
liable to waver with every new judge’s opinion . . . .’’ (Emphasis added.)
1 W. Blackstone, Commentaries on the Laws of England (1775) p. 69.
   3
     I emphasize that I express no view on the question of whether the
legislature could constitutionally reinstitute the death penalty by repealing
No. 12-5 of the 2012 Public Acts and its prospective abolition of the death
penalty and reenacting a death penalty statute that applied to all defendants,
regardless of the date of their offense. The majority in Santiago also recog-
nized that this is an open question. See State v. Santiago, supra, 318 Conn.
86 n.88 (‘‘[w]e express no opinion as to the circumstances under which a
reviewing court might conclude, on the basis of a revision to our state’s
capital felony statutes or other change in [the five objective indicia of
society’s evolving standards of decency], that capital punishment again com-
ports with Connecticut’s standards of decency and, therefore, passes consti-
tutional muster’’); see id., 52–86 (discussing indicia). In any event, the policy
issue of whether to attempt to reinstate a constitutional death penalty is
now in the hands of the legislature.
