Luurtsema v. Commissioner of Correction (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** LUURTSEMA v. COMMISSIONER OF CORRECTION SECOND CONCURRENCE PALMER, J., concurring. I agree with much of the plurality opinion and concur in the result that the plurality reaches. I am unable to join the plurality opinion, however, because I do not believe that we should decide the question of whether to adopt a per se rule in favor of full retroactivity under our common law. The plurality may be correct that there is persuasive reason to reject a per se rule, but we need not resolve the issue to decide the present case because, as the plurality also concludes, the petitioner, Peter Luurtsema, is entitled to full retroactivity regardless of whether we adopt such a rule. My primary reason for concluding that we should decline to decide the petitioner s claim seeking a per se rule concerns another claim that this court is not deciding, that is, the petitioner s constitutional due process claim. Although I also agree with the plurality that we need not and should not decide the constitutional claim, the plurality, in declining to address that claim, leaves open the possibility that principles of due process require full retroactivity in all cases. Indeed, that is what Justice Katz concludes in her concurrence. If Justice Katz is correct that due process requires full retroactivity in all cases, then this court, in rejecting a per se rule for purposes of our common law, adopts a rule that is contrary to constitutional requirements, a result that should be avoided. I express no view as to whether Justice Katz is correct in her constitutional analysis, but I see no good reason to adopt a commonlaw rule unnecessarily for purposes of the present case that may conflict with constitutional principles.1 Of course, sometimes it is useful to the bench and bar for this court to clarify an area of the law by considering and deciding an issue that, strictly speaking, is unnecessary to resolve the case. In my view, however, this case is not such a case, as it is exceedingly rare for a court to be confronted with a claim like the claim that the petitioner raises. I therefore concur. 1 The plurality notes that, under United States Supreme Court precedent, [when] a state court changes its interpretation of a statute, the construction does not require retroactivity. (Emphasis in original.) Footnote 21 of the plurality opinion. The plurality further explains that its common-law analysis assumes, arguendo, that Salamon did represent a change, rather than [a] clarification, of the law. Id. I agree with both of these statements, but neither statement mitigates the concern that I have expressed regarding the potential that the plurality s holding ultimately may be deemed to violate principles of due process. This is so because the plurality s decision to reject a per se rule of full retroactivity indeed may violate principles of due process if this court were to determine as Justice Katz contends that Salamon represented a clarification of the law rather than a change in the law, a determination that the plurality does not make for purposes of the present case.
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