Over the strong dissent of three justices, the Connecticut Supreme Court today denied the State’s motion for reargument in State v. Santiago, the case decided last August which abolished the death penalty in Connecticut. Click here for my previous posts on the decision.
The denial of the motion for reargument is not unusual. What is unusual is the written dissent from the ruling and its publication on the Judicial Branch’s website. Decisions are always posted on the website; rulings on motions are not.
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.
Notwithstanding significant recent developments in the law concerning appellate review of unpreserved arguments and issues, the general rule remains that a party cannot raise an issue on appeal unless she has preserved it in the trial court. That rule, however, is not self-executing; it can be waived. If a party raises an issue for the first time on appeal and the opposing party does not object, the Appellate Court can go right ahead and review the unpreserved issue on its merits.
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.
The Litigation Section of the Connecticut Bar Association has invited former state Supreme Court Justice Ian McLachlan and noted appellate advocate Linda Morkan to discuss the Connecticut Supreme Court’s recent decision in Blumberg Associates Worldwide v. Brown and Brown. As I’ve discussed in prior posts, the decision addresses the circumstances under which appellate courts can resolve appeals based on unpreserved issues that the appellate judges raise sua sponte.
The McLachlan/Morkan presentation will take place at the Litigation Section’s meeting on March 4, 2014, from 6:00 pm to 9:00 pm, at Carmen Anthony’s Steakhouse in New Haven. It should be a great meeting. Click here to register!
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. 🙂