Nearly 25 years ago, Pnina Lahav, my constitutional law professor at BU School of Law, taught me one of the most important lessons I would ever learn about the law and about judging: “Who” should decide a legal issue is often much more important than “how” the legal issue should be resolved.
That lesson came to mind as I sat in the Connecticut Supreme Court this morning watching oral arguments in the case of Lopez, et al. v. Bridgeport Board of Education, et al., otherwise known as the Paul Vallas case. Mr. Vallas is, for the moment at least, the superintendent of schools for the City of Bridgeport. He does not have the standard credentials required to be a school superintendent in the State of Connecticut. But he does have a waiver of the customary requirements, granted by the State Board of Education pursuant to a special statute intended to make it easier for Connecticut to attract otherwise qualified superintendents from out-of-state.
The plaintiffs, who filed a quo warranto action to remove Mr. Vallas from office, contend that the process leading to the granting of a waiver was a sham and a farce. The attorneys representing Mr. Vallas strongly disagree with that assessment of the facts, but that is not their primary argument. They argue, with support from the State of Connecticut, which filed an amicus brief, that a plaintiff cannot use a quo warranto action to collaterally attack, i.e., to second guess, the licensing decision of a state agency.
In other words, the plaintiffs contend that it is proper to use a quo warranto action to ask a trial judge to decide, essentially de novo, whether the statutory requirements for granting a waiver were satisfied in this case. In their view, judges wearing black robes get the last word. By contrast, Mr. Vallas’s attorneys argue that the legislature, by amending a statute specifically to authorize the Board of Education to grant waivers under certain circumstances, committed to that agency the discretion to make the decision about whether to grant a waiver. In their view, the BOE gets the last word. At a bare minimum, the BOE’s decision is entitled to great deference.
In short, the real legal battle in this case is not whether Mr. Vallas was entitled to a waiver, but who gets to decide whether he met the requirements for a waiver–the BOE or the courts.
It is always hard (not to mention foolish) to make predictions about the outcome of a case based on the questions the justices ask from the bench during oral argument. For what it is worth, however, I think that at least a few of the justices are uncomfortable with the plaintiffs’ argument. The best example of this discomfort was a hypothetical that Justice Zarella posed. He asked attorney Norman Pattis, who argued for the plaintiffs, the following question (the quote is from memory, but I believe it is essentially accurate):
“Mr. Pattis, to become judges, the justices on this Court must first submit an application to the Judicial Selection Commission and then be interviewed by the members of the Commission. The Commission must then determine whether an applicant meets certain statutorily-defined criteria to become a judge. If the answer is “yes,” the applicant’s name goes on a list, and the governor can only appoint people on that list to the bench. Is it your position that any taxpayer in the state can file a quo warranto action and demand a trial to determine whether the Commission, in approving someone to become a judge, acted in accordance with all statutory requirements, and if not, demand that the judge be removed from the bench?”
When Justice Zarella asked that question, I immediately thought of Chief Justice Roberts asking the Solicitor General whether the Fourth Amendment would require the police to obtain a warrant before attaching a GPS locator device to his car in order to track the car’s movements. The government, which did not believe the Fourth Amendment applied in that situation, lost that case.