Supreme Court Denies Motion For Reconsideration In Lapointe CasePosted: May 11, 2015 Filed under: Appellate Law | Tags: blumberg, elson, lapointe, sua sponte 4 Comments
In a previous post I discussed the State of Connecticut’s motion asking the Connecticut Supreme Court to reconsider its controversial decision in Lapointe v. Comm’r of Correction. I have just learned that, by order dated May 5, 2015, the Supreme Court denied that motion. The two justices who dissented from the original decision–Zarella and Espinosa–would have granted the motion for reconsideration. In short, the votes on the motion tracked the votes on the original decision.
I remain deeply troubled by the decision, in which the dissenting justices accused the majority of deciding the case based on an issue that had never been briefed or argued. The majority denied that accusation, stating that the issue it resolved–which concerned the standard of review applicable to expert testimony in a habeas trial–was always in the case. However, in my earlier post I noted that the state, in its motion for reconsideration, squarely challenged the majority’s statement. The state wrote:
This Court has a long and proud tradition of ensuring, for purposes of fundamental fairness, that those who appear before it have notice of the issue under consideration and the opportunity to be heard with respect thereto. Sequenzia v. Guerrieri, 298 Conn. 816, 821 (2010). This tradition is likewise a casualty of the majority’s decision for the reasons advanced by the dissenting justices.
I recently obtained a copy of Mr. Lapointe’s opposition to the state’s motion for reconsideration; it does not disagree with the state’s position that the issue the Supreme Court decided was not in the case until the court raised it sua sponte.
Given the state’s unequivocal statement that it had no idea the issue the Supreme Court resolved was in the case, given Mr. Lapointe’s acquiescence to that statement, and given the opinions of the two dissenting justices, what are we to make of the majority’s statement that it did not raise the issue sua sponte? I see only two possibilities: 1) the majority was being completely disingenuous when it said the issue was in the case; or 2) the Supreme Court has effectively adopted a new negligence-type standard for determining when an issue is in a case. Under that new fangled standard, the majority effectively told the state, “Well, maybe you didn’t know the issue we decided was subsumed within the question we certified for appeal, but you should have known.”
I find this state of affairs very, very unsettling. And I don’t think I’m alone. In fact, I know I’m not alone. But more folks who are concerned about these developments need to speak out, respectfully of course. I’m not asking for a revolution. I am asking for the bench and the organized bar to find a way, perhaps through a symposium, to start a serious dialogue about whether the Supreme Court is heading down the wrong track by raising issues sua sponte.
UPDATE: (5/14/15) Senior Assistant State’s Attorney Harry Weller forwarded me the following comment, which he authorized me to post:
I share Dan’s concern about the “track” the Connecticut Supreme Court is taking, and agree fully that members of the bench and bar should engage in a serious dialogue about what that track means for the present and future of Connecticut’s jurisprudence.
I am equally concerned with this Court’s present aggressive use of its Supervisory Authority. From reaching out to decide arguments not raised by the parties, which wholly compromises the adversarial process, to providing relief to a party after determining that his rights were not violated by the trial court’s action—see, State v. Elson—the Court’s jurisprudence is, to quote Dan “very, very unsettling.”
Although I share your concerns about Blumberg, I would be willing to join your dialogue, and take the other side-e.g. that Blumberg, while perhaps factually incorrect, is not wrongfully raw judicial authority. Cf. Brantley v. Hampden Probate and Family Court, 457 Mass. 172 (2010).
Joe, I’m always happy to have someone make an opposing argument. So make it! ;). What does the cited case say?
The Hampden Probate and Family Court used “protocols” where their probation officers would obtain information about litigants including from DCF and then shared them with judges ex parte in proceedings involving child custody and to determine the best interests of children-and the judges considered them. These reports often contained layered hearsay and litigants often were often unaware of their existence, let alone having an opportunity to challenge them by way of cross-examination.
The SJC ruled that the individual litigants lacked standing. However, the SJC still reviewed the protocols pursuant to their superintendent authority over the judiciary (G.L. c.211, §3) and held that the use of the protocols violated the constitutional rights of the litigants to due process in a realm where the stakes were at their highest-the litigants constitutional rights to care and custody of their children-and stayed any further implementation absent proper rule-making.
What’s the point? The Court refused to venerate form over substance when there was a systemic violation of individual rights at stake. The Court acknowledged that the litigants no longer had any stake in Hampden’s protocols-indeed, protocols that had been revised twice during litigation and there was no further risk of a child custody case occurring for them. But the protocols were also not about to disappear-and their continued use raised grave systematic problems for the sound administration of justice. So, the Court proceeded to review them and resolve the issue once and for all.
Sua sponte issue raising may not be wise and may be deleterious if the discretion to raise the issue is abused. But what is worse is to say that there is no review at all-or, preservation is a jurisdictional limit on the Court’s power. Such a consideration is an unrealistic and dangerous leash on the powers of an appellate court. Compare Commonwealth v. Simpson, 428 Mass. 646, 648-649 (1998) (an appellate court may consider an issue apparent in the record but not raised by the parties if it creates a substantial risk of a miscarriage of justice); In Re Baby Z., 247 Conn. 474, 536 (1999) (Berdon, J., dissenting) (“a hypertechnical eighteenth century analysis…has no place in the jurisprudence of the twenty-first century.”) I say we should expect nothing less of our appellate courts to address issues of importance even if not properly preserved or argued by the parties-especially if their duty is to “say what the law is.”
The real problem, as I see it, is that our Supreme Court is torn about the scope of review unpreserved or unargued errors should get. Golding and P.B. 60-5/plain error review seem too confined/confining. cf. Baby Z.. But, that’s just me. Let me know if you want further analysis.
Developments on this front.
Click to access 317CR83B.pdf
Cf. M.G.L. c.211, §3.