In re Yasiel R. ( 2015 )

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IN RE YASIEL R.—FIRST CONCURRENCE AND DISSENT
ZARELLA, J., concurring in part and dissenting in
part. In the present case, the majority correctly deter-
mines that the trial court did not violate the constitu-
tional rights of the respondent, Ashley P., when it
allowed her to forgo a trial without canvassing her to
ensure that she understood the rights that she forfeited
in doing so. Nevertheless, the majority invokes this
court’s supervisory authority in order to reverse the
judgments of the trial court. In my view, this use of the
court’s supervisory authority is entirely unwarranted.
Moreover, I write separately to emphasize that this
court never should exercise its supervisory authority
to reverse a judgment in the absence of independent
grounds for reversal. Although I recognize that this
court previously has exercised its supervisory authority
in this manner, and that I have joined in some of those
decisions; see, e.g., State v. Connor, 292 Conn. 483,
505–506, 973 A.2d 627 (2009); I no longer believe that
it should. Procedural rules announced under the court’s
supervisory authority should be given only prospective
effect and not be used to reverse judgments in individual
cases. Accordingly, I respectfully dissent in part.
I begin by briefly outlining the principles that pre-
viously have guided this court in its use of supervisory
authority. ‘‘It is well settled that [a]ppellate courts pos-
sess an inherent supervisory authority over the adminis-
tration of justice. . . . Supervisory powers are
exercised to direct trial courts to adopt judicial proce-
dures that will address matters that are of utmost seri-
ousness, not only for the integrity of a particular trial
but also for the perceived fairness of the judicial system
as a whole. . . . Under our supervisory authority, we
have adopted rules intended to guide the lower courts
in the administration of justice in all aspects of the
criminal process . . . and on the civil side, as well.
Thus, this court has exercised its supervisory authority
over a wide variety of matters . . . . We ordinarily
invoke our supervisory powers to enunciate a rule that
is not constitutionally required but that we think is
preferable as a matter of policy.’’ (Citations omitted;
internal quotation marks omitted.) Kervick v. Silver
Hill Hospital, 309 Conn. 688, 710, 72 A.3d 1044 (2013).
‘‘Supervisory authority is an extraordinary remedy
that should be used sparingly . . . . Although [a]ppel-
late courts possess an inherent supervisory authority
over the administration of justice . . . [that] authority
. . . is not a form of free-floating justice, untethered
to legal principle. . . . Our supervisory powers are not
a last bastion of hope for every untenable appeal.
[Rather] [t]hey are an extraordinary remedy . . . .
Constitutional, statutory and procedural limitations are
generally adequate to protect the rights of the defendant
and the integrity of the judicial system. Our supervisory
powers are invoked only in the rare circumstance [in
which] these traditional protections are inadequate to
ensure the fair and just administration of the courts.
. . . Overall, the integrity of the judicial system serves
as a unifying principle behind the seemingly disparate
use of our supervisory powers. . . . Thus, we are more
likely to invoke our supervisory powers when there is
a pervasive and significant problem . . . or when the
conduct or violation at issue is offensive to the sound
administration of justice . . . .’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Edwards, 314 Conn. 465, 498–99, 102 A.3d 52(2014).
‘‘[W]e recently [have] explained that the cases in
which this court has invoked its supervisory authority
can be divided into two different categories. In the
first category are cases [in which] we have utilized our
supervisory power[s] to articulate a procedural rule as
a matter of policy, either as holding or dictum, but
without reversing [judgments] or portions thereof. In
the second category are cases [in which] we have uti-
lized our supervisory powers to articulate a rule or
otherwise take measures necessary to remedy a per-
ceived injustice with respect to a preserved or unpre-
served claim on appeal. Although we recently have
noted that [o]ur cases have not always been clear as
to the reason for this distinction . . . a review of the
cases in both categories demonstrates that, in contrast
to the second category, the first category consists of
cases [in which] there was no perceived or actual injus-
tice apparent on the record, but the facts of the case
lent themselves to the articulation of prophylactic pro-
cedural rules that might well avert such problems in
the future.’’ (Citation omitted; internal quotation marks
omitted.) State v. Carrion, 313 Conn. 823, 850, 100 A.3d
361 (2014); see also State v. Elson, 311 Conn. 726, 768–70
n.30, 91 A.3d 862 (2014) (listing cases in both cate-
gories).
In my view, it is the second category of cases, in
which we have used our supervisory authority to
reverse judgments, that is problematic. The fundamen-
tal problem with this practice is that it undermines the
rule of law. To understand how, we must examine more
closely how we have used our supervisory authority to
reverse judgments in individual cases.
The question of whether we should use our supervi-
sory authority to reverse judgments in individual cases
is really a question of whether we should retroactively
apply the new rules we announce under our supervisory
authority to the facts of the cases in which they are
announced. In the past, we have not been consistent
in how we have applied such new rules. In some cases,
we have announced rules under the court’s supervisory
authority only prospectively. See, e.g., State v. Medrano,
308 Conn. 604, 631, 65 A.3d 503 (2013) (directing trial
courts to refrain from giving certain jury instruction
and upholding judgment even though trial court had
given such instruction); State v. Ouellette, 295 Conn.
173, 191–92, 989 A.2d 1048 (2010) (directing trial courts
to inquire into nature of plea agreements and upholding
judgment even though trial court had failed to so
inquire); State v. Griffin, 253 Conn. 195, 209–10, 749
A.2d 1192 (2000) (directing trial courts to refrain from
using certain instructional language and affirming judg-
ment even though trial court had used such language).
Yet, in other cases, we have applied such rules retroac-
tively to the facts of the case in which the rule is
announced. In those cases, we sometimes have affirmed
the judgment of the trial court on the ground that the
court had unknowingly complied with the new rule;
see, e.g., State v. Coleman, 242 Conn. 523, 534–35, 700
A.2d 14 (1997) (requiring trial courts to articulate rea-
sons for imposing longer sentence after trial than state
and defendant previously had agreed on pursuant to
vacated guilty plea and upholding defendant’s sentence
because trial court sufficiently had articulated such rea-
sons); and sometimes have reversed the judgment on
the ground that the trial court had failed to comply with
the new rule, even though the rule was not in effect at
the time of trial. See, e.g., State v. Elson, supra, 311
Conn. 764, 784–85 (cautioning trial courts against com-
menting negatively on, at sentencing, defendant’s deci-
sion to exercise his right to trial and remanding case
for new sentencing because trial court had done so);
State v. Rose, 305 Conn. 594, 605–606, 46 A.3d 146 (2012)
(adopting per se rule of reversibility when defendant
is compelled to stand trial in identifiable prison clothing
and upholding Appellate Court’s reversal of trial court’s
judgment because defendant had stood trial in such
clothing); State v. Santiago, 245 Conn. 301, 332, 340,
715 A.2d 1 (1998) (requiring trial courts to conduct more
extensive inquiry in order to investigate allegations of
racial or ethnic bias on part of juror and reversing
judgment because trial court had failed to conduct such
inquiry).1 Thus, there has been no rhyme or reason as
to when the court has applied a new rule prospectively
or retroactively.
Scholars suggest that the decision to apply a new
rule retroactively in the context of an individual case
involves countervailing interests. See L. Fuller, The
Morality of Law (1964) p. 57; see also J. Fisch, ‘‘Retroac-
tivity and Legal Change: An Equilibrium Approach,’’ 110
Harv. L. Rev. 1055, 1084–87 (1997). On the one hand,
retroactively applying a new rule destroys the parties’
reliance interests by subjecting them to a rule of which
they had no prior notice. See, e.g., Kaiser Aluminum &
Chemical Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.
Ct. 1570, 108 L. Ed. 2d 842 (1990) (Scalia, J., concurring)
(‘‘[t]he principle that the legal effect of conduct should
ordinarily be assessed under the law that existed when
the conduct took place has timeless and universal
human appeal’’); see also L. Fuller, supra, p. 57 (‘‘[i]f
[the] overruling is made retrospective, then the [party
relying on the decision being overruled] loses out
though he relied on a legal decision that was clearly in
his favor’’). On the other hand, if the new rule is not
applied retroactively, and the party who sought the new
rule does not receive the benefit of its effect, that party’s
incentive to suggest the promulgation of a new rule to
enhance the administration of the judicial system is
undermined. See L. Fuller, supra, p. 57; J. Fisch, supra,
1085–86. This concern, it seems to me, pales in compari-
son to the fairness and due process concerns that are
raised when a party is subjected to a rule of which it had
no prior notice. Nevertheless, the impact of imposing
retroactive rules also should be examined from the
perspective of not only individual cases, but the judicial
system as a whole.
When viewed from the perspective of the entire judi-
cial system, it is clear to me that we should not give
retroactive effect to new rules announced under our
supervisory authority because doing so subverts the
rule of law. At its essence, the rule of law ‘‘conveys
an ideal of governmental power and discretion being
exercised and constrained within a framework of
rules.’’ J. Waldron, ‘‘Stare Decisis and the Rule of Law:
A Layered Approach,’’ 111 Mich. L. Rev. 1, 2 (2012).
‘‘The rule of law requires people in positions of authority
to exercise their power under the authority, and within a
constraining framework, of public norms (laws) rather
than on the basis of their own preferences or ideology
. . . .’’ Id., 3; cf. R. Kozel, ‘‘Precedent and Reliance,’’
62 Emory L.J. 1459, 1464 (2013) (rule of law ensures
that ‘‘bedrock principles are founded in the law rather
than in the proclivities of individuals’’ [internal quota-
tion marks omitted]). The judiciary’s adherence to the
rule of law is a defining characteristic of any healthy
democracy, as it provides individuals with ‘‘clarity, cer-
tainty, predictability, [and] trustworthiness’’ as to the
rules that govern their lives. J. Finnis, Natural Law and
Natural Rights (1980) p. 272.
We undermine the rule of law when we promulgate
a new rule under the court’s supervisory authority and
then reverse a trial court’s judgment on the ground that
the trial court had failed to comply with that new rule,
which did not exist at the time of trial. As I previously
discussed, this court has observed that ‘‘the integrity
of the judicial system serves as a unifying principle’’ to
guide our use of supervisory authority; (internal quota-
tion marks omitted) State v. Edwards, supra, 314 Conn.
498; and that we use our supervisory authority to
reverse a judgment only when it ‘‘is necessary to ensure
that justice is achieved in [a] particular case.’’ State v.
Carrion, supra, 313 Conn. 852. When, however, the only
principles constraining our use of supervisory authority
are concepts such as ‘‘integrity’’ and ‘‘justice,’’ we are
not really constrained at all. See Kaiser Aluminum &
Chemical Corp. v. Bonjorno, supra, 494 U.S. 857 (Scalia,
J., concurring) (‘‘Manifest injustice, I fear, is just a surro-
gate for policy preferences. . . . [When discussing the
standard of manifest injustice] one is not really talking
about justice at all, but about mercy, or compassion,
or social utility, or whatever other policy motivation
might make one favor a particular result.’’ [Internal
quotation marks omitted.]). Indeed, we openly acknowl-
edge the fact that the rules that we craft pursuant to
the court’s supervisory authority are simply rules that
‘‘we think [are] preferable as a matter of policy.’’ (Inter-
nal quotation marks omitted.) Kervick v. Silver Hill
Hospital, supra, 309 Conn. 710. Thus, when we retroac-
tively apply such rules to reverse judgments, we decide
cases not on the basis of controlling legal principles,
but on the court’s policy preferences.
Constantly exercising the court’s supervisory author-
ity in this manner compromises the legitimacy of this
court. See State v. Carrion, supra, 313 Conn. 854 (Zare-
lla, J., concurring) (‘‘invoking this authority too easily
and too often can undermine the very integrity of the
judicial system that this authority is designed to pro-
tect’’). As the final arbiter of legal disputes in this state,
there is nothing to restrain the court in its use of supervi-
sory authority but the court itself. As long as this court
allows itself to reverse judgments in individual cases
under its supervisory authority, litigants cannot be sure
whether we will decide such cases on the basis of our
constitution, statutes, and precedent, on the one hand,
or our own policy preferences, on the other. Such uncer-
tainty erodes the predictability and public confidence
that adherence to the rule of law fosters. State v. Elson,
supra, 311 Conn. 771 (expansive use of supervisory
authority may lead to ‘‘arbitrary, result oriented, and
undisciplined jurisprudence’’).
Moreover, by invoking the court’s supervisory author-
ity to reverse judgments in individual cases, we contra-
dict our continual assertion that our supervisory
authority does not serve as ‘‘a last bastion of hope
for every untenable appeal.’’ (Internal quotation marks
omitted.) State v. Edwards, supra, 314 Conn. 498. That
is exactly what we have turned our supervisory author-
ity into by using it, as we do in the present case, to
reverse judgments in the absence of legal grounds for
reversal. As long as we continue to exercise our supervi-
sory authority in this manner, claimants will justifiably
seek to prevail under the court’s supervisory authority,
regardless of whether their legal claims are meritorious.
In my view, these considerations significantly out-
weigh the aforementioned policy considerations that
support the retroactive application of new rules. As I
previously discussed, the interests of the party that
would benefit from having the new rule applied retroac-
tively always will be offset by the interest of the oppos-
ing party who had no notice of the new rule. Most
importantly, whatever the cost to individual litigants of
not applying a rule retroactively, it would be vastly
outweighed by the benefits of adhering to the rule of
law. With respect to our ability to supervise the judicial
system, prospectively applying new rules articulated
under our supervisory authority will not diminish the
number of opportunities we have to do so. In the vast
majority of cases, including the present case, requests
to exercise our supervisory authority are accompanied
by legal claims. See, e.g., State v. Connor, supra, 292
Conn. 506 (exercising supervisory authority after reject-
ing defendant’s constitutional claims). Thus, when this
court is presented with an unsuccessful legal or consti-
tutional claim, we nevertheless will be able to recognize
the need for and to implement a procedural fix by prom-
ulgating a prospective rule. Limiting our use of supervi-
sory authority to creating only prospective rules
therefore will not constrain our ability to appropriately
oversee and administer the system of justice.2 Accord-
ingly, we no longer should invoke the court’s supervi-
sory authority to reverse judgments in the absence of
independent grounds for reversal, as this practice risks
‘‘entrenching the rule of men rather than the rule of
law.’’ J. Waldron, supra, 111 Mich. L. Rev. 7.
To be sure, I do not suggest that the court never
should exercise its supervisory authority. The court can
properly continue to announce prophylactic procedural
rules in order to ensure the sound administration of
the judicial system. Such an exercise of supervisory
authority does not diminish the rule of law because it
does not require the court to change the outcome of
an individual case on the basis of judge made rules that
are essentially creatures of policy rather than the law.
We properly may articulate new rules pursuant to our
supervisory authority regardless of whether we are
reversing a judgment on the basis of independent legal
grounds raised on appeal, as long as we apply the new
rule prospectively and not to the facts of the case in
which it is announced. Applying new rules prospec-
tively ‘‘ensure[s] public confidence in the integrity of
the judicial system’’; (internal quotation marks omitted)
State v. Elson, supra, 311 Conn. 773; without contraven-
ing the rule of law.
Finally, I note that an alternative to limiting our use
of supervisory authority to announce only prospective
rules would be to self-impose additional limitations on
the use of our supervisory authority to reverse judg-
ments. I have no confidence, however, that this more
moderate proposal would be effective. Justices of this
court, including myself, have, for decades, authored
dissenting and concurring opinions counseling against
the excessive use of supervisory authority. See, e.g.,
State v. Carrion, supra, 313 Conn. 854 (Zarella, J., con-
curring); State v. Rose, supra, 305 Conn. 629–33 (Zarella,
J., dissenting); State v. Santiago, supra, 245 Conn. 341,
351 (Callahan, C. J., concurring in part and dissenting
in part); State v. Coleman, supra, 242 Conn. 549–50
(Norcott, J., concurring). As Justice Espinosa details in
her concurring and dissenting opinion, those calls for
restraint have gone unheeded, as the court has only
exercised its supervisory authority with increasing fre-
quency.3 This makes it highly doubtful that additional
self-imposed conditions on the use of supervisory
authority would lead this court to resist the use of its
supervisory authority to reverse judgments in individ-
ual cases.
In sum, I disagree with the majority that the facts of
the present case warrant the use of our supervisory
authority to require trial courts, in parental rights termi-
nation proceedings, to canvass parents who elect to
forgo a contested trial. Furthermore, I disagree with the
majority’s retroactive application of that new canvass
requirement in the present case and its use of its super-
visory authority to reverse the judgments of the trial
court on the ground that the trial court had failed to
conduct such a canvass, which was not required at the
time of the termination proceedings. Finally, I empha-
size that, in future cases, the court should give only
prospective effect to new rules articulated pursuant to
its supervisory authority and not use its supervisory
authority to reverse judgments in individual cases. If
we are to uphold the ideal of the rule of law, we must
decide cases on the basis of existing legal principles,
not on the basis of our own policy judgments regarding
the administration of the judicial system.
Accordingly, I respectfully concur in part and dissent
in part.
1
Further complicating this history of our inconsistent application of new
rules crafted under our supervisory authority is the fact that the prospective
effect of such new rules is not always clear. See State v. Smith, 275 Conn.
205, 242, 881 A.2d 160 (2005) (declining to reverse judgment when trial court
had failed to heed this court’s prior direction, pursuant to its supervisory
authority, to discontinue use of certain jury instruction).
2
Furthermore, the Rules Committee of the Superior Court entertains
improvements to our rules of practice on an ongoing basis. Proposed
improvements can be and are submitted to the Rules Committee by judges,
lawyers, bar associations, members of the legislature, and members of the
public, as well as other associations.
3
Justice Espinosa offers two possible explanations for this increase: (1)
a self-conferred power such as our supervisory authority ‘‘lacks limits unless
[they] are self-imposed’’; and (2) ‘‘after the court announced the existence
of its supervisory authority in [State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d
1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983)], the
court seems simply to have assumed its validity and has not given significant
consideration to establishing and adhering to any parameters for its exer-
cise.’’ I agree with those explanations but would add a third possible explana-
tion—the court in Ubaldi, which first established limitations on the use of
the court’s supervisory authority, failed to comply with its own limitations.
See State v. Ubaldi, supra, 572–73. Thus, Ubaldi, sub silencio, fostered a
low bar for future use of this court’s supervisory authority.
In Ubaldi, the defendant, Charles F. Ubaldi, claimed that the trial court
improperly had denied his motions for a mistrial after the assistant state’s
attorney (prosecutor) engaged in deliberate prosecutorial misconduct. See
id., 561. The state claimed that, even if the prosecutor had engaged in
misconduct, Ubaldi was required to prove that such misconduct was harmful
in order to receive a new trial. See id., 565. The court rejected this argument
and ordered a new trial pursuant to its supervisory authority; id., 575; without
determining whether the trial court had abused its discretion or whether
Ubaldi had been deprived of a fair trial. See id., 564–75. As Justice Espinosa
explains in her concurring and dissenting opinion, the court in Ubaldi appar-
ently established that supervisory authority should be ‘‘invoked only when
its exercise is necessary and the interests involved are of the utmost impor-
tance, and when an evaluation of the interests involved reveals that the
balance weighs in favor of invoking the authority.’’
The circumstances in Ubaldi, however, failed to meet this standard. It
unquestionably was not necessary to reverse Ubaldi’s conviction through
the use of the court’s supervisory authority in order to undo the harm
wrought by the prosecutor’s deliberate misconduct because, as the court
in Ubaldi acknowledged, other states deter such misconduct ‘‘through con-
tempt sanctions, disciplinary boards or other means.’’ State v. Ubaldi, supra,190 Conn. 571. Additionally, in weighing the countervailing interests to
reversing Ubaldi’s conviction, the court failed to account for the inherent
cost to the state and the judiciary in requiring them to use resources to
retry a case in which the guilt of the defendant was not in doubt. Cf. Teague
v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality
opinion) (noting cost of retrying cases after retroactive application of new
rule). Because this court was unable to adhere to the limitations on the use
of its supervisory authority in the very case in which those limitations were
announced, it should come as no surprise that those limitations subsequently
have rung hollow.