Appellate Judges: Umpires Or Gods?

OK, now that I have your attention with the admittedly over-the-top title of this post, I wanted to alert readers to a pending appeal (which I argued last March), the decision in which will reveal a great deal about how the justices of the Connecticut Supreme Court view their roles as appellate jurists.  In particular, it will tell us whether a majority of the Court believes that the proper role of an appellate court is to decide the issues that the parties have raised and argued–and only those issues–or, alternatively, whether the Court believes that it is appropriate to decide cases based on issues that appellate judges raise on their own initiative.   In short, can and should appellate courts raise and decide unpreserved issues sua sponte?

The facts of the underlying case are interesting, but not relevant to this post.  What is relevant is that the trial court tossed my case (I represented the plaintiff) on a summary judgment motion.  I appealed.  In the Appellate Court, the parties briefed and argued several issues, all of which had been preserved in the trial court.  Several months after oral argument, however, the Appellate Court issued a letter asking the parties to submit supplemental briefs addressing a new issue of the court’s own creation.  In my supplemental brief I objected (politely) to the court raising an unpreserved issue sua sponte.  The court did not find my objection persuasive and issued a decision that affirmed the grant of summary judgment to the defendant on the alternative ground that the court itself had raised.

Less than pleased with this state of affairs, I filed a petition for certification and asked the Supreme Court to decide whether sua sponte issue generation by appellate courts on non-jurisdictional issues is permissible, even when the parties are offered the opportunity to submit supplemental briefs.  The Supreme Court granted certification and, as noted, the case was argued last March.

Our main argument in the Supreme Court  was fairly simple: Courts and appellate jurists are (or should be) in the business of deciding cases based on the arguments raised by counsel.  When judges raise issues sua sponte (other than issues concerning subject matter jurisdiction), they are taking on a quasi-advocate role that has no place in our adversarial system of justice.   While Connecticut law recognizes plain error and Golding review as grounds for reviewing unpreserved issues, the law also makes clear that the party seeking such review must affirmatively request it in her appellate brief. 

Of course, I have no idea how the Court will ultimately rule on the petition.  I wouldn’t be surprised if the Court is divided.  Time will tell.  Stay tuned.

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