Dan Klau points, rather diplomatically, to a Connecticut Supreme Court opinion issued today [PDF] which he lost. It’s a civil case, but what sucked me in was his description of the issues in the case, which fits right in with the theme of complaints that I have with this present Supreme Court:
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?
Today, the Connecticut Supreme Court ruled that yes, it could very well decide appeals based on issues that it raised on its own and that no one thought of at the trial level and that weren’t preserved or properly briefed or that the trial judge had no opportunity to consider.
Okay, that’ll be the last of the snark for today, because it actually is a really interesting and important opinion written by Justice Palmer.
The issues were divided up by the Court as follows:
- Can an appellate court decide an issue based on a legal ground that is raised by a party for the first time on appeal?
- Can an appellate court decide an issue based on a legal ground that neither party raised in the trial court or on appeal?
- Can an appellate court decide an issue based on a legal ground that was raised below but for a different reason?
Spoiler alert: the answer to all three questions is “Yes, if…”
In order to answer these questions, the Court goes into a bit of fascinating legal history, discussing the two types of courts – of law and equity – and their merger in the American legal system and the possibility that the conflicting types of legal systems – adversarial and inquisitorial – lead to this situation where Courts are asked to, and sometimes decline to, review unpreserved legal issues:
In the United States, most jurisdictions, including Connecticut and the federal courts, have merged law and equity courts, and one set of appellate courts administers both systems. See B. Miller, supra, 1264. Although most ‘‘appellate procedures are overtly based on the principles of writ of error review at common law, rather than the appeal in equity . . . the historic tensions underlying law and equity persist . . . and still compete in the workings of appellate courts.”
‘‘Because judges [continue to] see their role as doing justice in the tradition of equity (or at least avoiding miscarriages of justice), courts frequently refuse to apply the waiver rule and instead raise issues sua sponte’’ to avoid an unjust result. see also Hormel v. Helvering, 312 U.S. 552, 557 (1941).
The Court then says that whatever the cause for this conflict, it is clear that appellate courts in America traditionally have had the power to consider issues that weren’t properly raised or preserved below.
For instance, the Court says that issues of subject matter jurisdiction must be always considered and decided no matter who raises the issue or when it is raised. The Court then gives the example of the “plain error” doctrine, which permits a court to reverse a conviction when an error is clear (or plain) from the record and it is “plain” that it is an error that would result in manifest injustice.
The Court then says that it also has the power to review claims that are not Constitutional in nature, even when no party has raised it below, by an exercise of its “supervisory authority”. In order for them to consider such issues, certain circumstances must be met:
- That the record is adequate for review;
- All parties must have an opportunity to be heard on this issue by way of briefing in the appellate court;
- There is no unfair prejudice to one party1;
- The party that did not raise the claim does not object to review2, or alternatively;
- The party who raised the unpreserved claim cannot prevail.
On this topic, the Court concludes:
This list is not intended to be exhaustive, and, indeed, it would be impossible to catalogue all of the circumstances under which review of an unpreserved claim might be appropriate. It is clear, however, that these are exceptional cases, in which the interests of justice, fairness, integrity of the courts and consistency of the law significantly outweigh the interest in enforcing procedural rules governing the preservation of claims.
The Court then discusses the second issue: when can it consider claims that no one raised?
The Court doesn’t get into this much, simply referring back to the lengthy discussion above and concluding that if a court could consider an issue raised on appeal for the first time, it can consider that same issue even if no one raises it:
In other words, if an exceptional circumstance exists that would justify review of an unpreserved claim if raised by a party, the reviewing court may raise the issue sua sponte.
This makes sense, given the Court’s ruling on Question 1. On Question 3, the Court says essentially the same:
We conclude that, in such cases, the reviewing court may review an unpreserved, alternative ground for affirmance, or raise the issue sua sponte, only if the claim merits review under the plain error doctrine or Golding, or under exceptional circumstances such as those previously described in this opinion.
This ruling is of particular interested to me – and should be to the criminal appellate lawyer – because of this same court’s trend in recent years to forgo the resolution of legal issues of Constitutional magnitude in criminal cases where some rigorous formulation of words was not followed in raising and preserving legal grounds for reversal or relief.
Earlier on, the court cites to Hormel v. Helvering. I think reproducing the exact quote is quite instructive and helpful and perhaps the Court itself should read it and abide by it more often than it currently does:
Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.
It does make me a little angry that the Court would come to this conclusion in a civil case, where the stakes aren’t quite the same as someone’s liberty. I do, however, disagree with Dan Klau in that I think this is the correct outcome.
I think our Courts have, for far too long now, viewed themselves as administrators and not judges. As my muse Miranda is fond of saying: “You’re judges; judge!”. I think they’ve forgotten or let fall by the wayside the essence of their existence: to shape and construct and interpret the prevailing jurisprudence of the State. To make tough decisions and to right wrongs.
I am hopeful that this opinion is perhaps the start of something new, that it is born of the realization that they’ve painted themselves into an untenable and unsustainable corner. That formulaic incantations cannot be required before the specter of Constitutional rights and remedies magically appears and can be dealt with.
I hope they’re starting to see that their job is to do more than ensure that the forms are filled out in the right order and that justice means something more than their honorific.