Today, for the second time in two weeks, the Connecticut Supreme Court took the unusual step of publishing on its website an order denying a motion for rehearing in a case. (Opinions resolving appeals are always published; rulings on motions for reargument are almost never written, much less published.) Two justices–Zarella and Espinosa–dissented from the court’s decision denying the state’s motion for reargument in In re: Yasiel R., a case involving the termination of parental rights. In that case a majority of the court rejected the appellant’s claim of constitutional error in the termination proceedings, but then proceeded to invoke the court’s “inherent supervisory authority over the administration of justice” to make up a new rule concerning termination proceedings. The court then applied that new rule retroactively to provide relief to the appellant. Justices Zarella and Espinosa both issued strong dissents.
As I noted in my immediately preceding post, several justices on the Connecticut Supreme Court are concerned that the court has been invoking its “inherent supervisory authority over the administration of justice” too frequently and, in so doing, may be undermining the integrity of the judicial system. Justice Zarella expressed the need for the court to adopt a single, consistent standard governing the court’s use of that authority in order to avoid “the appearance of arbitrary decisionmaking.”
I share Justice Zarella’s concerns and offer the following comparison of two cases to illustrate why they are justified.
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.
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.
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.
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. 🙂