Two Points Make A Line (And Suggest A Troubling Trend)

On June 3, the Connecticut Supreme Court officially released its decision in State v. Elson, one of less than a handful of cases in Connecticut history in which the Supreme Court reversed a trial judge after concluding that he had not committed an error of law or fact. (State v. Ubaldi and State v. Santiago are the only other cases of which I’m aware.)  No trial judge likes to get reversed, but all trial judges understand that the potential for reversal comes with the job.  However, for an appellate court to reverse a trial judge after concluding that he or she did not commit a legal error must really hurt.

I’ll discuss Elson in greater detail in a moment, but I want to state the thesis of this post right up front: State v. Elson and Blumberg Associates Worldwide v. Brown & Brown of Connecticut, Inc. (“Blumberg“), a case the Supreme Court decided earlier this year (about which I’ve blogged), are two “points” on the judicial space-time continuum through which a line can now be drawn.  Moreover, that line has an arrow on one end.  And the direction of that arrow suggests that our Supreme Court has abandoned longstanding norms that have governed the operation of our adversarial system of justice–norms like, “It is a bedrock principle of our adversarial system that courts decide only those claims that the parties have raised”–in favor of a philosopher-king model of appellate judging.  In that model appellate jurists invoke their “inherent supervisory power over the administration of justice”–a vague and ill-defined judicial power if ever there was one–to raise new issues on appeal sua sponte and to reverse trial judges, not because of a violation of any established rule of constitutional, statutory or common law or “clearly erroneous” finding of fact, but based on abstract notions of justice and concerns about the “public’s perception of the criminal justice system.”

I love our state Supreme Court. I have enormous respect for every single one of the justices. They are all learned persons of honor and integrity. With respect, however, I think that their collective judgment in Blumberg and Elson is misguided and is not only worthy of, but in fact demands, serious debate by the full bench and bar, if not the broader public.  With that preface in mind. . . .

I. A Brief Overview of Blumberg

Blumberg was a breach of contract case that morphed into a case about the role of appellate judges in our adversarial system.

The trial court granted the defendants’ motion for summary judgment on the contract claim and the plaintiff appealed.  Several months after oral argument, the Appellate Court issued an order inviting the parties to submit briefs addressing an issue that the appellate panel had raised on its own, an issue that could serve as an alternate ground for affirming the trial court’s grant of summary judgment.  The plaintiff objected to the Appellate Court raising an unpreserved non-jurisdictional issue sua sponte, but the court went ahead and, ultimately, affirmed the trial court on the alternate ground that it had raised after oral argument.

The Supreme Court granted the plaintiff’s petition for certification to appeal, which asked the Court to decide whether appellate courts have the legal authority to raise unpreserved non-jurisdictional issues sua sponte.  The plaintiff argued in the main that appellate courts should not have that authority in an adversarial system of justice.  As Justices Palmer and Zarella had written in their dissent in State v. Lenarz, 301 Conn.  417, 532 (2011), “[i]t is a bedrock principle of our adversarial system that courts decide only those claims that the parties have raised.”  Or as Chief Justice Roberts would say, judges are supposed to be umpires, calling balls and strikes as they see ’em, not telling the pitcher which pitches to throw.

However, in an opinion penned by Justice Palmer, and notwithstanding his dissent in Lenarz, the Court rejected the plaintiff’s main argument.  The Court then abandoned the “affirmative request” requirement for plain error review, thus allowing sua sponte review of plain error. (The law in effect at the time of the appeal required a party seeking plain error review to affirmatively request it in his opening brief.) I have no quarrel with that aspect of the Court’s decision, which brings Connecticut law in line with the federal courts, which can notice plain error on their own motion, at least in criminal cases.  But the Court did not stop there. It also held that under “exceptional circumstances,” both it and the Appellate Court could invoke their “inherent supervisory authority over the administration of justice” to permit sua sponte appellate consideration of legal arguments that did not rise to the level of plain error and that had neither been preserved in the trial court nor raised by a party on appeal.

The problem with the “exceptional circumstances” standard is the same problem that Justice Potter Stewart identified with respect to obscenity: “I know it when I see it.”  Put another way, whether a circumstance is truly exceptional is, like beauty, in the eyes of the beholder.  I seriously question whether the “extraordinary circumstances” standard will operate as a meaningful restraint on sua sponte issue generation by the Supreme or Appellate Courts.

II.  State v. Elson

The Court issued its decision in Blumberg in February 2014.  Approximately four months later it released its decision in State v. Elson.

I must digress for a moment and acknowledge that I represented the unsuccessful plaintiff in Blumberg.  More than a few readers, including some judges, have fairly and reasonably questioned whether I am a biased commentator on the decision. My bias is self-evident and I readily concede it. However, I had no involvement in State v. Elson and thus no personal axe to grind with the Court’s decision. I think that Elson firmly supports my thesis.

The defendant’s appeal in Elson raised several claims of error that had been preserved at trial–and one that had not. The unpreserved claim was that the trial court had deprived the defendant of his constitutional right to due process of law by penalizing him–in the form of a more severe sentence than the court would otherwise have imposed–for exercising his constitutional right to a jury trial. The defendant had declined a plea bargain and had testified in his defense at trial for assaulting a college student while he was drunk. A jury found him guilty. Before sentencing, the defendant apologized for his actions, which prompted the trial court to utter the following comment before imposing its sentence:

We’ve all heard the defendant’s apology. I don’t know how sincere it is, but it is certainly unfortunate that it comes so late in the process. If the defendant had been truly apologetic, he wouldn’t have put the victim through the trial. To a large extent, it seems to me that the defendant’s apology represents thinking of himself rather than the victim.

The maximum sentence in the case would have been thirty-five years inprisonment. The state had recommended a sentence of thirty-five years inprisonment, suspended after twenty-five years, followed by five years probation.  The court rejected the state’s recommendation and sentenced the defendant to only twenty-five years imprisonment, execution suspended after twenty years, followed by five years of probation with special conditions.

Defense counsel did not attribute any legal significance to the judge’s comment about the defendant’s apology when the judge made the comment, for counsel made no objection in the trial court.  On appeal, however, counsel raised a due process claim based on the statement. The state objected to the argument as unpreserved and pointed out that the defendant had not affirmatively requested appellate review of the unpreserved claim under State v. Golding.  A three-judge panel of the Appellate Court split three ways on the due process/sentencing claim. Judge (later Justice) Harper wrote the lead opinion, which declined to consider the claim because the defendant had not met the “affirmative request” requirement for Golding review. Judge Dupont said the claim was reviewable, but rejected it on its merits.  Judge Bishop dissented.  He agreed with Judge Harper that the claim was not reviewable under Golding, but nonetheless believed that ‘‘the defendant’s sentencing claim raises a troubling issue warranting resentencing’’ under the Appellate Court’s supervisory powers over the administration of justice, a level of review that the defendant had requested for the first time in his reply brief.

The Appellate Court granted the defendant’s motion for reargument en banc.  The majority held that the defendant’s due process claim was not reviewable due to the lack of an affirmative request for Golding review. The majority also declined to review the defendant’s claim pursuant to its supervisory authority over the administration of justice, reasoning that the request was tardy, lacked adequate analysis, and that the interests of justice did not support the request.

The case then went to the Supreme Court, where the supervisory authority argument received a much different reception.  Justice Norcott, writing for a unanimous Court, opened his opinion with this statement:

This certified appeal raises several significant issues concerning the review of unpreserved claims under both State v. Golding . . . and our supervisory authority over the administration of justice, in connection with the well established constitutional principle that ‘‘the   augmentation of sentence based on a defendant’s decision to stand on [his or her] right to put the government to its proof rather than plead guilty is clearly improper.

Just as it abandoned the “affirmative request” requirement for plain error review in Blumberg, the Court eliminated that same requirement for Golding review. (Again, I have no quarrel with that aspect of the Court’s decision.) The Court then decided that the defendant’s due process claim satisfied the remaining requirements for Golding review, including that the record was adequate for appellate review. After considering the merits of the defendant’s due process argument, however, the Court stated, “[h]aving reviewed the totality of the sentencing record in the present case, we conclude that the defendant has not carried his burden of proving that the trial court penalized him for exercising his constitutional right to a jury trial.”

From my perspective (and I suspect just about everyone in the Office of the Chief State’s Attorney would agree with me), that should have been the end of the sentencing claim.  The Court had considered, and rejected, the defendant’s due process argument.  The trial court had not committed any cognizable legal error with respect to sentencing. Instead of stopping, however, the Court invoked its supervisory authority over the administration of justice, not simply as grounds for reviewing an unpreserved claim, but to justify reversing the trial court and remanding the case for resentencing. But, if the trial court had not committed any legal error–remember, the Supreme Court had just rejected the defendant’s due process claim–on what basis did the Court reverse the sentence?  The Court concluded that the trial court’s remarks

created the perception, if not the actuality, that the trial court, in crafting the sentence, improperly took into account the defendant’s exercise of his rights, which the court viewed as an unnecessary imposition on the system and the victim. Accordingly, given the adverse effects such commentary may have on the public’s perception of the inherent fairness of the criminal justice system, we conclude that a new sentencing proceeding is required. (Emphasis supplied.)

III.  What Exactly Is The Supreme Court’s “Inherent Supervisory Power Over The  Administration Of  Justice”?

As I stated at the outset of this post, my thesis is that Blumberg and Elson represent a radical departure from the Court’s historic understanding of the nature and extent of its inherent supervisory powers.  To support my thesis, I set forth the following abbreviated history of those powers as reflected in Connecticut law.

The first time the phrase “inherent supervisory powers over the administration of justice” appears in our case law is State v. Ubaldi, 190 Conn. 559 (1983).  Ubaldi involved a well-preserved claim of intentional prosecutorial misconduct involving a deliberate violation of the trial court’s rulings.  The state argued on appeal that the Court could not upset the jury’s guilty verdict unless the defendant could establish that, viewing the trial proceedings as a whole, he had been deprived of his constitutional right to a fair trial.  The Court rejected that argument.  Instead, citing a Ninth Circuit decision for the proposition that “an appellate court has a certain inherent supervisory authority over the administration of justice,” the Court held that “where a prosecutor interjects remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant, his conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.”  In other words, the Court ruled that it had the inherent power and authority to set aside a verdict and order a new trial based on intentional prosecutorial misconduct even if that misconduct did not rise to the level of a constitutional violation of a defendant’s due process right to a fair trial.

In so holding, the Court recognized the extraordinary nature of its decision to overturn a criminal conviction and order a new trial because of prosecutorial misconduct “where a new trial is not constitutionally mandated.”  (Emphasis supplied.)  “Upsetting a criminal conviction is a drastic step, but it is the only feasible deterrent to flagrant prosecutorial misconduct in defiance of a trial court ruling.”  The Court also “recognized that the reversal of a criminal conviction in the exercise of a court’s supervisory authority must not be undertaken without balancing other interests which may be involved,” such as the “trauma which the victim of a heinous crime might undergo by being forced” to experience a retrial.

In short, the Court in Ubaldi understood that invoking its inherent supervisory powers to reverse a conviction was a really, really big deal.

The Court next invoked its inherent supervisory powers in State v. Cohane, 193 Conn. 474 (1984), another case involving prosecutorial misconduct, this time a violation of the state’s constitutional obligation, under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence to the defendant.  Unlike in Ubaldi, the Court concluded that the defendant’s constitutional rights had been violated, but the Court went further and said its decision to reverse the defendant’s conviction and order a new trial was not only based on constitutional principles, but on its “inherent supervisory authority [to] . . . set aside a conviction an order a new trial where the original trial was tainted by prosecutorial misconduct.”

In the years after Ubaldi and Cohane, the Court began to invoke its inherent supervisory powers over the administration of justice in other contexts.  Typically, it used those powers to “direct trial courts to adopt judicial procedures” to be applied prospectively, such as requiring trial judges to remain present throughout voir dire, requiring judicial inquiry into allegations of juror misconduct, requiring bifurcation of jury proceedings in certain death penalty cases, and so on.  See State v. Santiago, 245 Conn. 301 (1998) (listing cases in which the Court had invoked its inherent supervisory powers to establish rules of judicial procedure on prospective basis). It also used its inherent power to reverse a few convictions outside of the prosecutorial misconduct context.  For example, in State v. Santiago, the Court rejected the defendant’s claim that the trial court abused its discretion by failing to investigate allegations of juror misconduct, but still set the defendant’s conviction aside and remanded for a new trial. In almost all of these cases, the Court tempered its invocation of its inherent powers with the statement that they were not a “form of free-floating justice, untethered to legal principle” and could be invoked “only in the rare circumstances where the traditional protections are inadequate to ensure the fair and just administration of the courts.”

In 2002, in footnote 16 of its opinion in State v. Ramos, 261 Conn. 156, the Court stated that it could use its inherent supervisory powers for a new purpose: to justify reviewing a claim the defendant had raised on appeal but had failed to preserve at trial. The Court wrote, “[i]n certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the Golding or plain error doctrines.”  The Court supported that statement by immediately quoting the following about inherent supervisory powers from State v. Anderson, 255 Conn. 425 (2001):

Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law. . . . Rather, the standards are flexible and are to be determined in the interests of justice. . . . [O]ur supervisory authority is not a form of free-floating justice, untethered to legal principle.

Notably, the Court ultimately concluded in Ramos that the interests of justice did not support appellate review of the particular unpreserved claim at issue in the appeal.

I interpret footnote 16 in Ramos, with its reference to Anderson, as suggesting that invoking inherent supervisory powers to justify appellate review of claims raised for the first time on appeal was not novel, i.e., that the Court had previously invoked its inherent supervisory powers for that very purpose.  But, while the quote from Anderson is accurate, it says nothing about using inherent supervisory powers to justify appellate review of an unpreserved claim. The issue in Anderson was whether the Appellate Court erred in invoking its inherent supervisory powers to overturn a verdict and order a new trial in a particular case. The Supreme Court answered that question in the affirmative.

I apologize for belaboring the issue. My point is simply this: State v. Ramos appears to be the first time that the Supreme Court actually stated that it could use its inherent supervisory powers to justify a decision to review a claim that a party raised for the first time on appeal.  Any suggestion in Ramos that the Court had previously invoked those powers for that purpose is incorrect, IMHO.

IV. Conclusion

The foregoing represents, in a rough but reasonable sense, the state of the law in 2013 concerning the nature and extent of the Supreme and Appellate Courts’ inherent supervisory powers.  Do Blumberg and Elson represent a radical, if not at least very significant, expansion of that power?  I think so.  State v. Ramos only stands for the proposition that an appellate court may invoke its supervisory powers to consider an argument an appellant has clearly raised on appeal, but failed to preserve below. Blumberg expanded the Court’s inherent powers to justify an appellate court’s decision to invent issues on its own, to decide cases based on issues and arguments that no party had ever raised in the trial court or on appeal.  It sanctioned the role of the appellate jurist as a quasi-advocate.

Elson significantly expanded the Court’s inherent supervisory powers in a slightly different direction. It is one thing for the Court to invoke its supervisory authority over the administration of justice to justify appellate review of an unpreserved claim, whether raised by a party for the first time on appeal (as in Ramos) or by the Appellate or Supreme Court sua sponte (as in Blumberg). It is another thing entirely for the Court to consider an unpreserved constitutional claim under Golding, reject that claim on its merits, and then invoke its supervisory authority to reverse a trial court’s judgment because of concerns about the public’s perception of the criminal justice system.  The distance between Ubaldi and Cohane, which involved well-preserved claims of intentional prosecutorial misconduct, and Elson, which involved an unpreserved claim about a judge’s comment during sentencing, is vast.

To be sure, the Court in Elson could have used its opinion to remind trial judges in future cases to avoid making remarks during sentencing that could give rise to a false perception that the judge was penalizing a defendant for exercising his right to a jury trial. (Norm Pattis would disapprove of such a reminder.  His concern, expressed in a recent Law Trib column, is that judges will simply penalize defendants for exercising their right to a jury trial, while being more careful not to say out loud what they are actually doing.  I do not share that concern, but I do share his concerns about the problems with our plea bargaining system.) The Court even could have invoked its supervisory authority to craft a rule, to be applied prospectively, barring a trial judge from commenting on the sincerity of a defendant’s apology.  (I express no position on the wisdom of such a rule. I’m merely noting that the Court could use its supervisory authority to create such a rule.)  If a trial judge then violated that rule in a future case, such violation might constitute grounds for reversal.

Perhaps I have overstated the extent to which Blumberg and Elson expanded the Supreme and Appellate Courts’ inherent supervisory powers over the administration of justice.  I don’t think so.  And I don’t think I am alone.  I think many members of the bar, and the Superior Court bench, share my views.  But I would welcome competing perspectives, particularly from members of the criminal defense bar.

Let me be clear about a couple of things before I conclude.  First, of course I agree that a defendant must not be penalized for exercising his constitutional right to a jury trial. The Supreme Court concluded, however, that the defendant in Elson had not proved that he had been penalized. Second, I am not attempting to minimize the importance of the public’s perception of the fairness of the criminal justice system.  But I do question the soundness of the Supreme Court’s “perception” concerns in Elson, given  (1) that experienced defense counsel in that case did not perceive the trial judge’s comments as problematic when they were made, and (2) that the trial court imposed a lower sentence than the state had recommended, and considerably less than the maximum possible sentence. (In fact, I think the Court could easily have used its opinion as a “teachable moment” to explain why the “perception” concerns were misplaced and that the trial judge’s rejection of the state’s recommended sentence demonstrated the integrity of the judge and the system.)

Interestingly, Elson never once cites to Blumberg.  Yet, the scent of Blumberg permeates Elson. Together, the two decisions reveal a court that is blazing a new path for appellate judging, a path on which appellate judges are free to invent new issues on appeal and to reverse trial courts, not because they have committed a cognizable legal or factual error, but because the trial judge has said or done something that does not comport with the appellate judges’ abstract notions of fairness and justice. This is a dramatic development in our judicial system.  It has serious implications for the rule of law in our state.  It warrants serious discussion and debate.

2 Comments on “Two Points Make A Line (And Suggest A Troubling Trend)”

  1. Laurie Feldman says:

    For those holding judicial power and genuinely anxious to use it for the good and betterment of our justice system, perhaps an even greater challenge than making right calls in each case is to stay within the case when unraised, concerning matters call out to be “fixed” with one wave of the robed hand. This article is an excellent start at exploring reasons why wisdom calls for the hard choice of restraint.

    This comment is my personal opinion and not necessarily the position of the Chief State’s Attorney’s Office.

  2. Joe says:

    Your concerns have resonated, see below:

    Click to access 316CR84F.pdf

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