Appellate Judges: Umpires Or Gods?, CtdPosted: February 10, 2014
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.