Some Signs Of Judicial Restraint On The Horizon

In the wake of our state Supreme Court’s decisions in Blumberg Associates Worldwide, Inc. v. Brown & Brown and State v. Elson, I expressed a fairly strong opinion on this blog that those decisions reflected a growing–and troubling–trend in which the Court was increasingly invoking its “inherent supervisory powers over the administration of justice” to justify its decisions.

When I posted my opinions on this blog, I knew a number of members of the bar shared my concerns.  I also suspected some members of the bench did so as well.  As of last week, those suspicions are, well, no longer suspicions.  It appears that at least three members of the Supreme Court–Justices Zarella and Espinosa, and Senior Justice Vertefuille–are thinking harder about just when and how the Court should invoke its inherent supervisory powers.

Last week the Court issued its slip opinion in State v. Carrion, in which the Court affirmed the Appellate Court’s judgment affirming the defendant’s conviction on multiple counts of sexual assault and risk of injury to a minor. One of the issues on appeal concerned the trial court’s jury instruction that ‘‘[t]he state . . . does not want the conviction of an innocent person. The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.’’  The defendant argued that this instruction improperly bolstered the state’s credibility in the eyes of the jury by suggesting that the state would not have brought the charges unless it strongly believed that the defendant was guilty.

Viewed in the context of the entire jury charge, the Supreme Court rejected the defendant’s argument.  But the Court was sufficiently concerned about the specific language at issue that it invoked its inherent supervisory powers to create a clear rule, to be applied in future cases, against including such language in jury charges.

The Court’s decision to invoke its inherent supervisory powers prompted Justice Zarella to write a concurring opinion, which Justice Espinosa and Senior Justice Vertefuille joined.  Justice Zarella wrote:

Although this court has broad discretion in determining whether to invoke its supervisory authority, and may do so to implement remedies beyond the constitutional minimum, invoking this authority too easily and too often can undermine the very integrity of the judicial system that this authority is designed to protect. In my view, this court should expressly adhere to certain limiting principles when invoking its supervisory authority, regardless of the type of case before it. Applying the same standard in all cases avoids the appearance of arbitrary decisionmaking and maintains the integrity of the judicial system as a whole. Thus, I would adopt a consistent standard with respect to our invocation of supervisory authority.

* * *

In my view, this court has been invoking its supervisory powers too easily and too often, and imposing a single, consistent analytical standard in all cases would help curb this excess.

I’ll discuss the standard for which the concurring justices advocated in a separate post.  For now, however, it is sufficient to note that three justices are sufficiently concerned about the growing use of inherent supervisory powers that they wrote a concurring opinion about the issue.

One Comment on “Some Signs Of Judicial Restraint On The Horizon”

  1. Jay Sexton says:

    Further support for this trend can found in the slip opinion released today in Lane v. Commissioner of Environmental Protection. In another concurrence authored by Justice Zarella, though this time joined by Justice McDonald, he retreated from Blumberg’s principle that the Supreme Court’s supervisory power may be invoked where ‘‘[r]eview of an unpreserved claim may be appropriate . . . when the minimal requirements for review are met and . . . the party who raised the unpreserved claim cannot prevail.’’ Lane v. Commissioner, citing Blumberg. The concurrence was short, and can be repeated here without burdening your server overmuch. Justices Zarella and McDonald explained, “[a]lthough the majority correctly cites and applies this principle, I believe in retrospect that reviewing an unpreserved claim on which a party cannot prevail makes no sense because an inability to prevail leaves the party raising the claim in exactly the same position he would have been had the claim been deemed unreviewable. In addition, reviewing an unpreserved claim on which a party cannot prevail consumes valuable judicial resources that could be better utilized to review properly preserved claims.” The concurrence can be found at the following link:

    Click to access 314CR89A.pdf

    It will be interesting to see if this trend continues or whether the number of cases invoking the use of its supervisory power continues to increase, as seems to have been the case since Blumberg.

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