Appellate Judges: Umpires Or Gods?, Ctd

A few months ago I wrote a post about a case I had argued in the state Supreme Court in March of last year.  The main issue in the case was whether, absent plain error, constitutional error or an issue implicating subject matter jurisdiction, appellate courts can raise on their own initiative (i.e., sua sponte) an issue that neither party had raised below or on appeal, and then decide the case based on that issue.  I jokingly characterized the dispute as requiring the Supreme Court to decide whether appellate jurists are mere umpires who decide the issues the parties raise–and only those issues–or whether they are gods who are able to dream up unpreserved issues out of thin air in the interest of doing justice.

Today, the Supreme Court provided the answer to that question: appellate jurists are gods. 🙂

In its decision in Blumberg Associates Worldwide v. Brown and Brown, et al. the Supreme Court (in a unanimous opinion penned by Justice Palmer) held that both it and the Appellate Court may, in their discretion, in “exceptional circumstances,” exercise their “supervisory authority” to consider non-jurisdictional issues that none of the parties had raised in the trial court or on appeal.

Having represented the unsuccessful plaintiff-appellant, I’m too close to the case to comment on it objectively.  But it is an important case for all appellate advocates.

UPDATE (2/11/14):  Gideon, writing over at his blog, A Public Defender, has an excellent discussion of the case. 

Gideon views the “exceptional circumstances” test as a positive development.  I’m not sure I agree.  In our briefs, we recognized that we probably could not convince the Supreme Court to hold that an appellate court may never consider an unpreserved, non-jurisdictional issue sua sponte.  So we suggested that the Court consider adopting the federal rule, which allows an appellate court to notice plain error sua sponte.  (Case law in Connecticut has long held that a party seeking plain error review of an issue on appeal must affirmatively request such review in her opening brief on appeal.)  Instead of simply adopting the federal rule, the Court relied on its vague, nebulous “supervisory authority” as the source of its discretion to consider unpreserved issues sua sponte in “exceptional” cases, an equally vague and nebulous standard.  That standard appears to make it easier for an appellate court to raise an issue sua sponte than it is for a party to seek plain error review, which requires a showing of manifest injustice that is obvious on the record.   (The opinion, however, appears to abandon the longstanding requirement that a party affirmatively request plain error review; it states that an appellate court can notice plain error on its own.)

Can a party now affirmatively request review of an unpreserved issue based on the “exceptional circumstances” standard, which appears to be an easier standard to meet than plain error?  And if the answer is “no,” what sense does that make?  What is left of the plain error rule?  What about Golding review?  Questions, questions.  So many questions.


4 Comments on “Appellate Judges: Umpires Or Gods?, Ctd”

  1. Gideon says:

    I agree that there are many questions left unanswered. I guess my point was simply that I’m in favor of more relaxed rules of reviewability than more stringent ones, especially when it comes to criminal appeals. It gave me some hope because the trend in recent years has been to go in the opposite direction, relying on the strictest interpretation of objections raised to find them unpreserved.

  2. This is a complicated issue. It’s also dicey to discuss openly–pseudonym or no. I might have more to say behind a closed door.

    In defense of the CTSC opinion: SCOTUS itself doesn’t follow the federal rule. Supplemental orders in US v. Jones, 132 S. Ct. 945 (2012) come to mind as a relatively recent example.

    In defense of the doctrine: consider a case where both parties have submitted poor briefs. Should the court torture itself to decide the case on arguments that really make no sense, or should it focus the arguments with a cogent legal question? It happens more than you might think, Dan. Oh yes.

    What if, in the course of research, the judge or a clerk discovers a problem in crafting the opinion on the arguments presented? I tend to be okay with the FNs that say, “we do not decide blahblahblah,” but candidly, sometimes opinions on obscure or poorly crafted legal questions can lead to bizarre doctrines down the line, with or without those footnotes. Connecticut’s current approach to “attendant circumstances” in § 53a-49 (a) (1) comes to mind as something unhinged like that.

    I have serious concerns with the doctrine, though. For starters, the court gets to act in essence as its own legislative body, raising bills in the form of supplemental briefing orders. That alone gives me great pause–so much for the reasoning behind requiring a case or controversy.

    My greatest concern is that the doctrine is tremendously open to abuse–abuse without malice, even. The rule is essentially an “I-know-it-when-I-see-it” kind of ad hoc test. Because there is no clear standard for what is an exceptional circumstance, the rule will be invoked without consistency. It’s dangerous to due process as a matter of course. How could you litigate whether the CTAC abused its discretion in concluding exceptional circumstances did or did not exist on a particular legal issue?

    I wonder how much of a fan Gideon would be when the doctrine is invoked to favor the state? What if, as a matter of course, it was invoked to favor the state 85% of the time? Still a fan? I know–you’re holding out for the new doctrines that favor defendants. Okay, sure. I can appreciate that. But how often does that happen these days, with the CTSC, honestly?

    Generally, not a fan. I can understand where the court is coming from, though.


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