Cert Improvidently Granted–An Analysis
Posted: January 16, 2014 Filed under: Appellate Law, Practice and Procedure 2 CommentsThe Connecticut Supreme Court recently released a decision dismissing an appeal on the ground that it had improvidently granted certification to appeal from the Appellate Court. Such a ruling means that the parties to the appeal in the Supreme Court expended a great deal of time and money for, well, nothing. It also means the justices spent a great deal of time reading the briefs, preparing for and holding oral argument, and perhaps even deliberating about the case for, well, nothing.
Accordingly, both the Supreme Court and the parties to an appeal on certification have a shared interest in avoiding such a wasteful outcome. Too many dismissals on certification improvidently granted (“CIG”) grounds means that the Supreme Court justices are doing a poor job of deciding whether a case is worthy of certification.
As I read the recent case, it seemed to me that I had seen quite a few such rulings in the past year. That got me wondering: how frequently does our state Supreme Court dismiss a case after briefing and oral argument on CIG grounds? The following chart, based on a little Westlaw research, answers that question for the years 2000 through 2013. (Click on the chart to enlarge it.)
On average, the Connecticut Supreme Court dismisses five appeals each year on CIG grounds. The worst year for CIG dismissals was 2007 (11); the best years were 2002, 2006 and 2008, in which only 2 cases each year were dismissed as CIG. With 8 CIG’s in 2013 (and 1 so far in 2014), my sense that I had been seeing more CIG’s than usual was justified. And the trend since 2010 is not good. (Wes Horton, would you care to speculate on what’s going on?)
Of course, these are raw numbers. I have not calculated CIG’s as a percentage of all cases decided, nor have I compared the Connecticut Supreme Court’s CIG data to any other court. In short, I don’t know whether our state Supreme Court does a better or worse job of determining whether a case is cert-worthy than other state supreme courts or the United States Supreme Court. Perhaps next week. . . .
Appealingly Brief! 
I suspect that part of this is the dramatic change in the Justices that have occurred in the last three years. Indeed, we’ve seen four different Justices be appointed since. You need three votes to get certification, if memory serves-and I don’t think we see how the votes turn out on that, save Justice Berdon’s dissents from denials or that a particular Justice did not hear a petition or State v. Komisarjevsky (ROGERS, CJ, NORCOTT, AND ZARELLA, J.J. would have denied certification there.) I wonder if the three who are granting are not subsequently present to hear the case on the merits-and that’s why some of the cases go away. We also don’t know how involved Senior Justice Vertefeuille is. It’s nearly 15 years since Doyle v. Metropolitan Insurance, 252 Conn. 912 (1999) (BERDON, J., dissenting from rehearing en banc) and 252 Conn. 914 (2000) ostensibly clarified the role of Senior Justices (and which the Court has disclaimed in part in Honulik v. Town of Greenwich, 293 Conn. 641, 648, n.6, 2009). Some fresh clarification on that would be helpful-especially given how there has been a change in the Justices.
But that’s just me.
I do care to speculate. I checked and found 74 petitions for certification granted in 2013 (I did not check 2012 or 2011), but I don’t think a 10% dismissal rate after oral argument proves much. Some issues look great until the clerk bores into the record after full briefing. Some of the blame may be on appellees who don’t focus on the deficiencies in the record in opposing the petition.
I do, however, think the Court is granting too many petitions, especially since the reversal rate on petitions has dropped to about 1 in 3 in 2013.