Memorandum Supporting Motion for Order Governing Expert Witnesses and Opposing Defendants' Proposed Order

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Cv-89 360977 s 

  

  

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0 SUPERIOR COURT 

MILO SHEFF, ET. AL. HARTFORD/NEW BRITAIN 

VS. AT HARTFORD 

WILLIAM A. O'NEILL, ET. AL. 3 JUNE 18, 1992 

FINDINGS AND ORDERS OF THE COURT       
| BEFORE: HONORABLE HARRY HAMMER, JUDGE 

APPEARANCES: 

PHILIP TEGELER, ESQ.   
COUNSELF FOR THE PLAINTIFFS 

JOHN R. WHELON, ESQ. William H. Juall 

ASSISTANT ATTORNEY GENERAL Court Monitor 
  

      
 



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THE COURT: I want to identify the case 

for the record. This is Docket CV-89 0360977, 

Milo Sheff, et. al, v. William A. O'Neill. 

The Court is being asked to rule on the defen- 

dant's motion for order of compliance, which 

is dated May 14, 1992. The Court would note 

that the Court's ruling on the defendant's 

motion for an order of compliance as to inter- 

rogatories one through sixteen, as well as, 

I believe, interrogatory nineteen, is based   
upon what the Court perceives to be the essential 

role of pre-trial discovery in a case such 

as this one, in which the plaintiffs are 

seeking a declaratory ruling by the Court 

on the issue of whether or not their rights 

under the State Constitution are being denied. 

I would point out that the ruling cannot 

be made in a vacuum, it has to be based upon 

the peculiar nature of this case, and reliance   
upon precedent is not necessarily determinative. 

The Court's ruling must necessarily be made 

in the light of what the law of this case, 

so called, is at the present time, as it 

has been explicated by the Court in its rulings 

on the defendant's motions to strike, which 

was decided on May 18, 1990. And its rulings 

on their motion for summary judgement, which 
      
 



was filed in February 24 of this year, February 

  
    

    

  

24, 1992. As well as the Court's understanding 

of the plaintiff's claims of law as they 

have been articulated repeatedly in their 

written and oral arguments in opposition 

to those motions, and as they are set forth 

in their pleadings. 

The Court's review of the wording of 

interrogatories one through seven, which 

are captioned -- one through four, I believe, 

are captioned, affirmative acts, five through     seven are captioned, failure to act. The 

Court's review of those interrogatories is | 

that they're essentially contention interrog- 

atories, in the sense that requests the facts 

upon which the plaintiff based their legal 

| contentions. The Court accepts the plaintiff's | 

replies to those interrogatories as responsive 

based on tie plaintiff's consistent contention 

throughout these proceedings, which is reasserted 

in this amended response to those interro- 

gatories that -- quote -- it is the present 

condition of racial and economic segregation 

in the region's schools that violates the 

Connecticut Constitution as a matter of law   
-- close quotes -- and that the State has 

fd an affirmative duty under the Constitution 

      
 



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to provide -- as argued by the plaintiffs 

~~ to provide equal educational opportunity 

for all its students. 

The Court, however, will direct the 

plaintiffs, in any event, to provide supple- 

mentation to the extent necessary with respect 

to one through seven. I wanted to ask you 

specifically if you would, Mr. Tegeler, why 

you felt that supplementation as to questions 

five through seven was necessary. What was 

the basis for that contention as opposed 

to one through four? Do you follow me? 

MR. TEGELER: Your Honor, I think 

- I believe what we said in our brief and 

in oral argument was that we have responded 

fully. There are a couple items which have 

come to our attention. For example, recommen- 

dations made to the State, that weren't listed 

in our response. 

THE COURT: Well, what I'm indicating 

to you, Mr. Tegeler, is that there is -- 

to the extent -- and I would suggest that, 

all other things being equal, you disclose 

rather than not. Because it's certainly 

not going to do any harm. I'm indicating 

to you, to the extent -- I'm indicating for 

informational purchases and based on your 
      

  

 



          

continued duty to disclose, if you think 

  

that -- if there's any information in your 

files which may be of assistance to the State 

in discovery of further evidence, that you 

should make those supplementations no later 

than August 15, 1992. 

MR. TEGELER: I believe there are such 

documents, and we will comply, Your Honor. 

THE COURT: The Court also finds that 

interlocutories eight through ten as well   as five through seven, in part at least, 

improperly and prematurely seek to have the 

plaintiffs disclose what may essentially 

be either a judicial determination, after 

the constitutional question has been resolved, 

or a judicially directed legislative determina- 

tion, which so often happens if the decision 

is in favor of the plaintiff, after the con-   stitutional issue has been resolved. And 

in that connection I would just cite, in 

addition to our own case, our Horton v. Meskill 

case, we also have reference of Abbot v. 

Burke -- that is Abbot v. Burke, two, at 

575 : Atlantic Second : 359 -- 371, there's   a reference to Chief Justice Hughes’ concurring 

opinion, in which he makes reference to the 

aE importance of deference to the legislative 

      
 



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determination when a judicial determination 

of unconstitutionality is made. 

The Court concurs with the defendant's 

argument that questions eleven through twelve 

-- eleven and twelve, with regard to minimally 

adequate education, and thirteen to fourteen, 

the disparities in educational inputs and 

outputs, based upon the law of the cases, 

I have indicated are separate and distinct, 

and the plaintiffs must frame their responses 

accordingly, without incorporating their 

responses to one set of questions by reference 

to the other. 

As to interrogatories fifteen and sixteen, 

as well as nineteen, the Court will direct 

that full and up to date supplemental responses 

be filed by the plaintiffs no later than 

August 15, 1992. Insofar as interrogatory 

eighteen in concerned, with regard to expert 

witnesses, the Court finds that the plaintiffs 

are in compliance. And of course, Mr. Whelon, 

the Court's rulings are without prejudice 

to your filing an appropriate motion after 

August 15. 

I wanted to indicate to you gentlemen 

that I would like to ask you at this point 

what -- I believe you feel at least a -- 
      
  

  

 



    

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there should be a conference in chambers, 

a status conference in chambers. Do you 

agree, gentlemen? 

MR. WHELON: After August 15, yes. 

THE COURT: I'll] be happy to oblige 

you at this point. So I'll ask you to meet 

with me in chambers right after the recess. 

MR. WHELON: Your Honor, may an objection 

and Exception he tad to your ruling, insofar 

as you've denied portions of the defendant's 

motion? 

THE COURT: I certainly will. 

MR. WHELON: Thank you, Your Honor. 

THE COURT: You may have a comparable 

exception to the extent that the ruling was 

against you. 

MR. TEGELER: Thank you, Your Honor. 

THE COURT: We'll stand in recess. 

    
  

  

 



    

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Cv-89 360977 Ss 

MILO SHEFF, ET. AL. 

VS. 

WILLIAM A. O'NEILL, ET. AL. 

CERTIFICATION 

I, William H. Juall, do hereby certify that 3 the - 

foregoing is a true and accurate transcription of the 

tape in the above-captioned matter, heard before the 

Honorable Harry Hammer, Judge of the Superior Court 

of the Hartford/New Britain J.D. on June 18,1992. in 

Hartford, Connecticut. 

Dated this day of June 19, 1992, in Hartford, 

Connecticut. 

Tos HUA 

William H. Juall 

  

Court Monitor