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.
Last Friday the State filed a motion asking the Connecticut Supreme Court to reconsider, en banc, its 4-2 decision in Lapointe v. Comm’r of Correction, which generated four opinions: the majority opinion (Palmer, J.), a concurring opinion (Rogers, C.J.) and two dissents (Espinosa, J. and Zarella, J.). The case has generated considerable controversy for several reasons, including the unjudicial tone of some of the opinions and footnotes and, perhaps more importantly, the majority’s resolution of the case based on an issue that was neither briefed nor argued.
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. 🙂
OK, now that I have your attention with the admittedly over-the-top title of this post, I wanted to alert readers to a pending appeal (which I argued last March), the decision in which will reveal a great deal about how the justices of the Connecticut Supreme Court view their roles as appellate jurists. In particular, it will tell us whether a majority of the Court believes that the proper role of an appellate court is to decide the issues that the parties have raised and argued–and only those issues–or, alternatively, whether the Court believes that it is appropriate to decide cases based on issues that appellate judges raise on their own initiative. In short, can and should appellate courts raise and decide unpreserved issues sua sponte?