State v. Douglas C.

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BROWN v. COMMISSIONER OF CORRECTION—CONCURRENCE
McDONALD, J., concurring in the judgment. We have
often explained that ‘‘[t]he rules of practice were prom-
ulgated to create a harmonious body of law, and we
are required to read statutes [or rules] together when
they relate to the same subject matter . . . . Accord-
ingly, [i]n determining the meaning of a statute [or rule]
. . . we look not only at the provision at issue, but also
to the broader statutory [or Practice Book] scheme to
ensure the coherency of our construction.’’ (Internal
quotation marks omitted.) Gilchrist v. Commissioner
of Correction, 334 Conn. 548, 561–62, 223 A.3d 368(2020). With these principles in mind, I write separately
to honor the context in which this court has consistently
analyzed habeas actions and conclude that the Practice
Book provisions governing motions to dismiss in civil
actions dictate which procedures are required when a
habeas court dismisses a petition for a writ of habeas
corpus pursuant to Practice Book § 23-29.
I can discern no statutory interpretative analysis that
would permit the result reached by the majority, whose
opinion is devoid of any citation to chapter 11 of our
rules of practice, the chapter that governs the relevant
procedures applicable to civil actions, including habeas
corpus actions. Rather than analyze the controlling
Practice Book sections in chapter 11, the majority opin-
ion relies on perceived textual differences between
Practice Book §§ 23-24 and 23-29, a sweeping citation
to § 23-34, and certain extratextual sources in an effort
to support its conclusion. Relying on these sources, the
majority concludes that, when a habeas court, on its
own motion, seeks to dismiss a petition for a writ of
habeas corpus pursuant to § 23-29, it is required to
provide the petitioner only with notice of the motion
and an opportunity to submit a written brief in opposi-
tion to the motion but not a hearing as of right. None of
the sources relied on by the majority, however, requires
notice and an opportunity to submit a written brief.
Notably, the majority omits the true source of those
requirements—chapter 11 of the rules of practice—in
an effort to avoid acknowledging that a hearing is also
required as of right. See, e.g., Practice Book § 11-1 (peti-
tioner is entitled to notice of motion to dismiss); Prac-
tice Book § 11-10 (a) (petitioner is entitled to submit
written brief in opposition to motion to dismiss); Prac-
tice Book § 11-18 (a) (petitioner is entitled to hearing
on motion to dismiss). By carefully avoiding any citation
to chapter 11, the majority endeavors to create its own
set of rules, whereby a petitioner is not entitled to a
hearing to argue the merits of a habeas court’s motion
to dismiss.
Tellingly, the majority does not offer a substantiated
rationale for denying a petitioner his ‘‘as of right’’ oppor-
tunity to argue his grounds for not dismissing the peti-
tion when that effort is initiated by the habeas court.
The most the majority can muster is its claim, unsup-
ported by any evidence, that requiring oral argument
before dismissing a habeas petition, in that limited sub-
set of court initiated dismissal motions, would be ‘‘overly
burdensome’’ on the habeas court and, therefore, ‘‘inef-
ficient . . . .’’ That argument, however, could apply
with equal, if not greater, force to every other habeas
case, in which a motion to dismiss is filed by a respon-
dent, rather than initiated by the habeas court. Indeed,
it could also apply to every summary process action or
foreclosure case in this state. Would the majority sug-
gest that this court could bypass the exact same rule
at issue in this case, which provides an ‘‘as of right’’
opportunity to argue a motion to dismiss, in those
instances too, because it might make the job of the
judge easier or more convenient? My reading of the
majority’s opinion suggests that this court could do
exactly that, if it wanted, regardless of the rules that
all of the judges of the Superior Court have adopted as
a cohesive, legislative body.
Instead, I choose a different path that honors the
choices made by the Superior Court judges. Reading
the provisions of the rules of practice together, as we
must, I conclude that a habeas court must provide par-
ties with notice, an opportunity to submit a written
opposition, and a hearing as of right before it dismisses
a petition for a writ of habeas corpus pursuant to Prac-
tice Book § 23-29. Accordingly, I respectfully concur in
the judgment but disassociate myself from the analytic
path the majority has trod.
I agree with the majority’s recitation of the relevant
facts, procedural history, and standard of review. I also
agree with the majority that, at the time that the habeas
court dismissed the present habeas action filed by the
petitioner, Judson Brown, the court did not have the
benefit of our decision in Gilchrist v. Commissioner
of Correction, supra, 334 Conn. 548. In Gilchrist, we
clarified the proper application and scope of the two
Practice Book provisions under which a habeas court
may dispose of a habeas petition on the basis of pleading
deficiencies, Practice Book §§ 23-24 and 23-29. Section
23-24 (a) provides that the habeas court may decline
to issue the writ of habeas corpus if ‘‘it appears that:
(1) the court lacks jurisdiction; (2) the petition is wholly
frivolous on its face; or (3) the relief sought is not
available.’’ If the judicial authority declines to issue the
writ, it is required to ‘‘notify the petitioner . . . .’’ Prac-
tice Book § 23-24 (b). Section 23-29 similarly allows the
habeas court to dismiss the petition at any time, on its
own motion or on the motion of the respondent, if the
court determines that ‘‘(1) [it] lacks jurisdiction; (2) the
petition, or a count thereof, fails to state a claim upon
which habeas corpus relief can be granted; (3) the peti-
tion presents the same ground as a prior petition pre-
viously denied and fails to state new facts or to proffer
new evidence not reasonably available at the time of
the prior petition; (4) the claims asserted in the petition
are moot or premature; [or] (5) any other legally suffi-
cient ground for dismissal of the petition exists.’’
In Gilchrist, we concluded that Practice Book § 23-
24 serves a specific ‘‘screening function’’; Gilchrist v.
Commissioner of Correction, supra, 334 Conn. 560; and
allows a habeas court to review petitions ‘‘prior to the
issuance of the writ of habeas corpus and before com-
mencement of a habeas action.’’ Id., 561. We emphasized
that § 23-24 ‘‘is intended only to weed out obviously
and unequivocally defective petitions,’’ as ‘‘[b]oth stat-
ute and case law evince a strong presumption that a
petitioner for a writ of habeas corpus is entitled to
present evidence in support of his claims.’’ (Internal
quotation marks omitted.) Id., 560. ‘‘If the court declines
to issue the writ [pursuant to § 23-24], no further action
is necessary beyond notifying the petitioner because
there is no service of process, no civil action and,
accordingly, no need for the appointment of counsel.’’
(Emphasis added.) Id., 561. If the court does issue the
writ, however, ‘‘all further proceedings should continue
in accordance with the procedures set forth in our rules
of practice, including Practice Book § 23-29.’’ Id., 563.
The distinction between a habeas court’s decision to
decline to issue a writ pursuant to Practice Book § 23-
24 and its decision to dismiss the petition pursuant to
Practice Book § 23-29 is critical. Once a habeas petition
survives initial review—and, thus, makes it past the
judicial authority’s gatekeeping function—a civil action
has commenced, and the petitioner is entitled to certain
procedural rights and safeguards. See id., 556–57, 561,
563. It is beyond dispute that a habeas action is a civil
action in our courts, and, therefore, these rights and
safeguards include all of the procedures applicable to
other civil actions unless, of course, they are supple-
mented or superseded by the more specific rules per-
taining to habeas actions. See id., 555.
In the present case, the habeas court dismissed the
petition pursuant to Practice Book § 23-29 (3) without,
first, having considered whether it could decline to
issue the writ under Practice Book § 23-24. See id., 562
(‘‘[f]irst, upon receipt of a habeas petition . . . the judi-
cial authority must review the petition to determine if
it is patently defective because the court lacks jurisdic-
tion, the petition is wholly frivolous on its face, or
the relief sought is unavailable’’ (citations omitted)). I
therefore agree with the majority that the judgment of
the Appellate Court should be reversed and the case
remanded to the habeas court so that it can determine
whether grounds exist to decline to issue the writ pursu-
ant to § 23-24. I agree with the majority that this is the
most efficient approach for resolving cases pending
before this court and the Appellate Court that were
decided prior to this court’s decision in Gilchrist. See
footnote 11 of the majority opinion.
In my view, however, the majority should have ended
its analysis there, notwithstanding the pending cases it
cites; see footnote 1 of the majority opinion; because
that holding fully disposes of this appeal. Nevertheless,
because the majority opinion continued on to analyze
the petitioner’s rights prior to dismissal of his petition
pursuant to Practice Book § 23-29, I write separately
to express my disagreement with this dictum and the
majority’s interpretation of the relevant Practice
Book provisions.
Resolution of the issue of whether habeas courts are
required to provide parties with notice and an opportu-
nity to be heard before they dismiss a habeas petition
pursuant to Practice Book § 23-29 requires this court
to construe the rules of practice. Accordingly, our stan-
dard of review is plenary. See, e.g., Disciplinary Coun-
sel v. Elder, 325 Conn. 378, 386, 159 A.3d 220 (2017).
The familiar principles of statutory interpretation,
which apply with equal force to this court’s interpreta-
tion of our rules of practice, guide my analysis. See,
e.g., Meadowbrook Center, Inc. v. Buchman, 328 Conn.
586, 594, 181 A.3d 550 (2018). In construing statutes
or Practice Book provisions, ‘‘[General Statutes] § 1-2z
directs us first to consider the text of the statute [or
rule] itself and its relationship to other statutes [or
rules]. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute [or rule] shall not be considered.’’ (Emphasis
added; footnote omitted; internal quotation marks omit-
ted.) State v. Heredia, 310 Conn. 742, 756, 81 A.3d 1163(2013). It is axiomatic that, when interpreting a statute
or Practice Book provision, ‘‘we are guided by the prin-
ciple that the [promulgating authority] is always pre-
sumed to have created a harmonious and consistent
body of law . . . . Construing statutes [or Practice
Book provisions] by reference to others advances [the
values of harmony and consistency within the law]. In
fact, courts have been said to be under a duty to con-
strue statutes [and Practice Book provisions] harmoni-
ously [when] that can reasonably be done.’’ (Internal
quotation marks omitted.) State v. Agron, 323 Conn.
629, 638, 148 A.3d 1052 (2016); see also, e.g., Wiseman
v. Armstrong, 295 Conn. 94, 102–104, 989 A.2d 1027(2010) (looking to relevant Practice Book scheme to
‘‘ensure the coherency of [its] construction’’ and
applying principle that promulgating authority is pre-
sumed to have intended to ‘‘[create] a harmonious and
consistent body of law’’ to court’s interpretation of rele-
vant Practice Book provision (internal quotation
marks omitted)).
In accordance with § 1-2z, I first turn to the relevant
language of Practice Book § 23-29 to determine whether
the provision expressly answers the question of whether
a habeas court is required to provide parties with notice
and an opportunity to be heard before the court dismisses
a habeas petition pursuant to that rule. Section 23-29
provides: ‘‘The judicial authority may, at any time, upon
its own motion or upon motion of the respondent, dis-
miss the petition, or any count thereof, if it determines
that: (1) the court lacks jurisdiction; (2) the petition,
or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted; (3) the petition
presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new
evidence not reasonably available at the time of the
prior petition; (4) the claims asserted in the petition are
moot or premature; [or] (5) any other legally sufficient
ground for dismissal of the petition exists.’’ The major-
ity correctly notes that § 23-29 is silent on the issue of
whether prior notice or an opportunity to be heard is
required before dismissal. Where I part ways with the
majority is its conclusion that the provision’s silence
renders it ambiguous.
‘‘It is well settled . . . that silence does not necessar-
ily equate to ambiguity. . . . Rather, [i]n determining
whether legislative silence renders a statute [or Practice
Book provision] ambiguous, we read the statute [or
Practice Book provision] in context to determine
whether the language is susceptible to more than one
reasonable interpretation.’’ (Citations omitted; empha-
sis added; internal quotation marks omitted.) State v.
Ramos, 306 Conn. 125, 136, 49 A.3d 197 (2012); see also,
e.g., Mayfield v. Goshen Volunteer Fire Co., 301 Conn.
739, 745, 754–56, 22 A.3d 1251 (2011); Hicks v. State,
297 Conn. 798, 802, 1 A.3d 39 (2010); State v. Orr, 291
Conn. 642, 653–54, 969 A.2d 750 (2009); Carmel Hollow
Associates Ltd. Partnership v. Bethlehem, 269 Conn.
120, 133–34, 848 A.2d 451 (2004).1
The majority reasons that Practice Book § 23-34’s
reference to the fact that ‘‘[t]he judicial authority may
establish . . . additional procedures’’ somehow allows
this court to bypass its duty to consider Practice Book
§ 23-29 against the backdrop of the broader Practice
Book scheme. See footnote 7 of the majority opinion
and accompanying text. I disagree. Section 23-34 pro-
vides that ‘‘[t]he judicial authority may establish such
additional procedures as it determines will aid in the fair
and summary disposition of habeas corpus petitions,
including, but not limited to, scheduling orders.’’ A far
cry from giving a habeas court the broad authority to
create any additional procedural rule it deems appro-
priate in a given case, § 23-34 merely governs case man-
agement matters and is applicable only after a habeas
petition has survived the judicial authority’s review pur-
suant to Practice Book §§ 23-24 and 23-29, and a civil
action has commenced.
In Gilchrist, we observed that ‘‘[t]he rules of practice
governing habeas corpus proceedings . . . clearly
evince an order of operations, providing for procedures
and motions in the sequence in which they generally
occur in a typical habeas case.’’ (Citation omitted.)
Gilchrist v. Commissioner of Correction, supra, 334
Conn. 562. It was this principle, coupled with the unique
procedures applicable to habeas actions, that led us to
conclude that Practice Book § 23-24 comes first in the
procedural sequence. See id., 556–62. Under its author-
ity pursuant to § 23-24, the judicial authority can decline
to issue the writ if the petition is patently defective.
See id., 562–63. If the writ is issued, however, the habeas
court should then take the actions necessary to prepare
the case to move forward, such as ruling ‘‘on any request
for the appointment of counsel and any application for
the waiver of filing fees and costs of service.’’ Id., 563;
see also Practice Book §§ 23-25 and 23-26. ‘‘After the
writ has issued, all further proceedings should continue
in accordance with the procedures set forth in our rules
of practice, including Practice Book § 23-29.’’ Gilchrist
v. Commissioner of Correction, supra, 563. Once the
petition survives review under § 23-29, and the civil
action has commenced, our rules of practice provide
guidance for filing a return and a reply to the return,
amending a petition or pleading, and requesting a more
specific statement. See Practice Book §§ 23-30 through
23-33. It would make little sense for the Rules Commit-
tee of the Superior Court to insert such procedures in
between yet another avenue through which a habeas
court could dismiss a habeas petition. Instead, in my
view, § 23-34 introduces the subsequent sections, which
deal specifically with the procedural aspects of the
habeas action: the schedule for filing pleadings; Practice
Book § 23-35; summary judgment; Practice Book § 23-
37;2 discovery; Practice Book § 23-38; depositions; Prac-
tice Book § 23-39; and court appearances. Practice
Book § 23-40. In addition to the procedures to which
habeas petitioners are explicitly entitled, ‘‘[t]he judicial
authority may establish such additional procedures’’
as it deems necessary to move the case forward and,
thus, reach a ‘‘fair and summary disposition . . . .’’
(Emphasis added.) Practice Book § 23-34; see also, e.g.,
Kelsey v. Commissioner of Correction, 329 Conn. 711,
725, 189 A.3d 578 (2018) (citing § 23-34 in support of
observation that ‘‘the rules of practice expressly recog-
nize the habeas court’s discretion over scheduling’’
(emphasis added)).
My reading of Practice Book § 23-34 also garners
support from a similar provision in chapter 23, the ‘‘Mis-
cellaneous Remedies and Procedures’’ chapter of our
rules of practice. Section 23-34 substantively mirrors
Practice Book § 23-14, which provides: ‘‘The judge to
whom complex litigation cases have been assigned may
stay any or all further proceedings in the cases, may
transfer any or all further proceedings in the cases to
the judicial district where the judge is sitting, may hear
all pretrial motions, and may enter any appropriate
order which facilitates the management of the complex
litigation cases.’’ (Emphasis added.) Like § 23-34, I read
§ 23-14 to give complex litigation judges authority over
matters of docket management. See, e.g., W. Horton et
al., 1 Connecticut Practice Series: Superior Court Civil
Rules (2020–2021 Ed.) § 23-14, authors’ comments, p.
951 (‘‘[Practice Book § 23-14] generally confers wide
trial and docket management discretion on complex
litigation judges—an appropriate thing . . . given the
nature and purpose of the [C]omplex [L]itigation [D]ocket’’).
In my view, it would be untenable to construe § 23-14
to give complex litigation judges the power to dismiss
a case without providing parties with a hearing as of
right, particularly in such high stakes matters, when an
ordinary slip and fall, negligence action would be the
subject of a mandatory oral argument pursuant to Prac-
tice Book § 11-18 (a) before it could be dismissed. So,
too, would it be contrary to principled tenets of civil
procedure for a habeas court to dismiss a petition pursuant
to Practice Book § 23-29 without affording the peti-
tioner a hearing as of right.
More fundamentally, I am troubled by the analysis
through which the majority arrives at its conclusion
that a petitioner is entitled only to notice and an oppor-
tunity to be heard on the papers, but not oral argument
as of right, prior to dismissal of the petition. As I explain
hereinafter, the majority fails to analyze the issue in this
case through the lens with which we have traditionally
analyzed habeas actions, which are civil actions. See,
e.g., Gilchrist v. Commissioner of Correction, supra,
334 Conn. 555. Although the majority acknowledges that
habeas actions are civil proceedings, it nevertheless
concludes that ‘‘the Rules Committee did not intend for
the general provisions governing civil cases to resolve
the question before us.’’ I disagree. Well settled dictates
of statutory construction require that we read provi-
sions of our rules of practice together; because the
procedures applicable to habeas actions do not answer
the specific question before us, the only logical next
step—in my view—would be to look to the general
Practice Book scheme.
Nevertheless, following its conclusion that Practice
Book § 23-29 is ambiguous, the majority seeks to divine
the Rules Committee’s intent in drafting that provision.
The majority begins by looking to an earlier version
of the provision, namely, Practice Book (1995) § 531
(repealed October 1, 1995), which provided for the dis-
missal of a habeas petition ‘‘without hearing’’ only if ‘‘a
previous application brought on the same grounds was
denied . . . unless [the application] states new facts
or proffers new evidence not reasonably available at
the previous hearing.’’ The majority correctly notes that,
when our rules of practice were amended, and Practice
Book §§ 23-24 and 23-29 were adopted, the ‘‘without
hearing’’ language in Practice Book (1978–97) § 531 was
abandoned. See Boria v. Commissioner of Correction,
186 Conn. App. 332, 355–56, 358–59, 199 A.3d 1127(2018) (Bishop, J., concurring), rev’d on other grounds,
345 Conn. , A.3d (2022). The majority con-
cludes that the omission of this language in § 23-29
indicates that ‘‘the Rules Committee intended to require
something more under [that section] . . . .’’ That
‘‘something more,’’ in the majority’s view, is not a full
hearing but, instead, a right to be heard on the papers by
filing ‘‘a brief or a written response . . . .’’ I disagree.
In my view, the majority simply cannot reach the
conclusion that notice and a hearing are required prior
to dismissal without acknowledging chapter 11 of the
rules of practice. The only purported ‘‘authority’’ cited
by the majority, supporting its notion that only notice
and a hearing on the papers are required before dis-
missal, is the ‘‘textual difference between [Practice
Book §§ 23-24 and 23-29] . . . .’’ I am unpersuaded that
this textual difference ‘‘requires’’ much of anything. In
my view, the true source of authority for these entitle-
ments is chapter 11. See, e.g., Practice Book § 11-1
(petitioner is entitled to notice of motion to dismiss);
Practice Book § 11-10 (a) (petitioner is entitled to sub-
mit written brief in opposition to motion to dismiss).
Moreover, I would conclude that the Rules Commit-
tee’s deletion of the language ‘‘without hearing’’ con-
tained in Practice Book (1995) § 531 implies that the
Rules Committee intended for habeas courts to hold
a hearing on a habeas petition prior to its summary
dismissal pursuant to Practice Book § 23-29. Indeed,
had the Rules Committee intended for petitions to be
dismissed on the bases enumerated in § 23-29 without a
hearing, it would have continued to include the ‘‘without
hearing’’ language in that provision, as it had previously
included in Practice Book (1995) § 531. See, e.g., Gil-
more v. Pawn King, Inc., 313 Conn. 535, 546–48, 98
A.3d 808 (2014) (concluding that legislature’s removal
of certain language from prior version of statute indi-
cated that legislature intended to effectuate change in
subsequent version of statute). My interpretation, tell-
ingly, also aligns with the mandate of chapter 11, which
provides that ‘‘oral argument shall be a matter of right’’
on motions to dismiss. Practice Book § 11-18 (a).
The majority also draws on the legislature’s 2012
habeas reform as support for its conclusion that,
although the rules of practice require that a petitioner
receive notice of the habeas court’s intention to dismiss
a petition and an opportunity to file a written response,
‘‘[i]t does not . . . necessarily follow from this premise
that a habeas court’s dismissal on its own motion pursu-
ant to Practice Book § 23-29 requires a full hearing
. . . .’’ Specifically, the majority appears to conclude
that, given the amendments’ intended purpose of
‘‘ ‘averting frivolous habeas petitions and appeals,’ ’’ the
Rules Committee could not have intended to impose a
hearing requirement when it adopted § 23-29, as this
additional procedure would ‘‘[overburden] an already
strained habeas docket . . . .’’ Although I agree that
the legislature’s 2012 reform measures were intended
to create a mechanism for screening frivolous habeas
claims and addressing the influx of habeas petitions, I
disagree that this intent necessarily supports the majori-
ty’s conclusion that the Rules Committee intended that
habeas petitioners only be allowed the opportunity to
submit a written brief—and not be afforded a hearing
as of right—prior to a habeas court’s dismissal of a
petition under § 23-29. See, e.g., Adams v. Rubinow,
157 Conn. 150, 156, 251 A.2d 49 (1968) (explaining that,
under separation of powers principles, ‘‘the General
Assembly has no power to make rules of administration,
practice or procedure [that] are binding on [our appel-
late courts or the Superior Court]’’); Heiberger v. Clark,
148 Conn. 177, 185, 169 A.2d 652 (1961) (‘‘[i]rrespective
of legislation, the rule-making power is in the courts’’);
see also, e.g., State v. McCahill, 261 Conn. 492, 520B,
811 A.2d 667 (2002) (explaining that, under separation
of powers doctrine, ‘‘the General Assembly lacks the
power to enact rules governing procedure’’ (internal
quotation marks omitted)).
To the extent the legislature’s intent is relevant in
this regard, we have made clear that, ‘‘notwithstanding
the comprehensive nature of the 2012 habeas reform,
through which five entirely new subsections were
added to [General Statutes § 52-470], the legislature left
intact the final clause of § 52-470 (a), which provides
that the habeas court ‘shall . . . dispose of the case
as law and justice require.’ Thus, the legislature retained
language that makes clear that the expeditious resolu-
tion of habeas petitions must be accomplished in a
manner that does not curtail a petitioner’s right to
due process. In other words, the two principles of expe-
diency and due process must be balanced in effectuat-
ing the legislative intent of the 2012 habeas reform.’’
(Emphasis added.) Kelsey v. Commissioner of Correc-
tion, supra, 329 Conn. 716–17. The petitioner’s right to
due process, in my view, includes the right to notice,
to submit a written opposition, and an opportunity to
be heard as of right, consistent with the rules of practice
applicable to civil actions generally.3
I recognize the majority’s concern that there may be
instances in which the habeas court does not have the
necessary information at the time of initial review to
make a determination pursuant to Practice Book § 23-
24. See footnote 8 of the majority opinion. However, it
is not this court’s role to erect a backstop in Practice
Book § 23-29 and to inject exceptions into the general
civil rules—in the form of an opportunity to be heard
only on the papers—thereby circumventing petitioners’
rights to a hearing. See, e.g., Doe v. Norwich Roman
Catholic Diocesan Corp., 279 Conn. 207, 215–16, 901
A.2d 673 (2006) (‘‘[w]e must construe a statute [or Prac-
tice Book provision] as written . . . [and we] cannot
rewrite a statute [or Practice Book provision] to accom-
plish a particular result’’ (internal quotation marks omit-
ted)). Significantly, ‘‘this court has recognized on num-
erous occasions that [it] lacks authority to make
changes to the rules of practice’’; State v. DeJesus, 288
Conn. 418, 508, 953 A.2d 45 (2008) (Katz, J., dissenting);
as ‘‘the judges of the Superior Court are [the ones]
empowered to adopt and promulgate rules regulating
pleading, practice and procedure in judicial proceed-
ings,’’ and those rules ‘‘have the force of law.’’ (Internal
quotation marks omitted.) Id., 507 (Katz, J., dissenting).
With respect to the rules of practice, this court is not
free to supplant its own policy preferences for those
of the judges of the Superior Court. See, e.g., id., 507–508
(Katz, J., dissenting); see also, e.g., State v. Johnson,
228 Conn. 59, 61–62, 634 A.2d 293 (1993) (‘‘[a]lthough
a clarifying amendment [to] the rules of practice to
address the problem illuminated by this case might well
be desirable, this court does not sit as the Rules Com-
mittee’’); State v. Jennings, 216 Conn. 647, 665 n.11,
583 A.2d 915 (1990) (‘‘We do not sit to decide the utility
or need for written instructions in the Connecticut
courts. To the extent that the defendant seeks such a
decision, his request is more properly directed to the
Rules Committee . . . .’’). Put simply, ‘‘[i]f the legisla-
ture [or the Rules Committee] desires a different result,
it is a legislative function to rewrite the statute [or
Practice Book provision] to achieve that result.’’ Doe
v. Norwich Roman Catholic Diocesan Corp., supra, 216.
In contrast to the majority’s interpretation, I would
look to the existing Practice Book provisions that per-
tain to all civil actions and provide an orderly and pre-
dictable answer to the question before us. Rather than
rely on extratextual sources and perceived develop-
ments in the habeas rules to formulate an ‘‘interpreta-
tion’’ of the required procedures—and invite the Rules
Committee, post hoc, to amend the text of the relevant
rules as it deems appropriate—the majority should have
applied the principled tenets of statutory construction,
which dictate the procedures to which a habeas peti-
tioner is entitled before a habeas court, on its own
motion, dismisses a petition.
I begin my own analysis with the well established
principle that ‘‘[h]abeas corpus is a civil proceeding.’’
Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970).
Consequently, ‘‘[a] habeas corpus action, as a variant
of civil actions, is subject to the ordinary rules of civil
procedure, unless superseded by the more specific rules
pertaining to habeas actions.’’ (Internal quotation marks
omitted.) Kendall v. Commissioner of Correction, 162
Conn. App. 23, 45, 130 A.3d 268 (2015). Because the
rules pertaining to habeas actions do not provide a
more specific rule, I look to the broader Practice Book
provisions governing civil actions, generally, in order
to determine whether a petitioner is entitled to notice
and a hearing prior to dismissal of a habeas petition.4
See, e.g., Gilchrist v. Commissioner of Correction,
supra, 334 Conn. 555; Nelson v. Commissioner of Cor-
rection, 326 Conn. 772, 782, 167 A.3d 952 (2017); see
also, e.g., Boria v. Commissioner of Correction, supra,
186 Conn. App. 360–61 n.9 (Bishop, J., concurring) (cit-
ing cases in which our Appellate Court applied provisions
of general civil rules of practice to habeas actions).
Relevant to this case, chapter 10 of the Practice Book
—titled ‘‘Pleadings’’—and chapter 11—titled ‘‘Motions,
Requests, Orders of Notice, and Short Calendar’’—pro-
vide, among other things, the procedures applicable
to motions to dismiss generally. Accordingly, in the
absence of a more specific rule in the habeas section
of our rules of practice, chapters 10 and 11 govern the
procedural requirements a habeas court must satisfy
before it dismisses a petitioner’s habeas petition. Prac-
tice Book § 11-1 (a) provides in relevant part that
‘‘[e]very motion . . . directed to pleading or procedure
. . . shall be in writing. . . .’’5 As we have explained,
‘‘[t]he requirement that parties file their motions in writ-
ing is to ensure that the opposing party has written
notice of the motion to dismiss.’’ Herrmann v. Summer
Plaza Corp., 201 Conn. 263, 273, 513 A.2d 1211 (1986);
see also Practice Book § 10-31 (requiring that nonmov-
ant have opportunity to respond to motion to dismiss,
providing for both legal argument and factual supple-
mentation of record in response).6 ‘‘[R]eceipt of ade-
quate notice is essential in order for the nonmoving
party to exercise [his] right under the [rules of practice]
to be heard.’’ Boria v. Commissioner of Correction,
supra, 186 Conn. App. 361 (Bishop, J., concurring).
As Judge Bishop recently noted in his concurrence in
Boria, the rules of practice provide nonmoving parties
to a motion to dismiss with two explicit opportunities
to be heard. Id. First, Practice Book § 11-10 (a) provides
an adverse party to a motion to dismiss the opportunity
to submit a written opposition to the motion.7 Second,
pursuant to Practice Book § 11-18 (a), ‘‘as to motions
to dismiss [and certain other motions] . . . oral argu-
ment shall be a matter of right . . . .’’ (Emphasis
added.) The application of these rules of practice to
this case leads to the conclusion that, pursuant to chap-
ters 10 and 11, a habeas petitioner is entitled to notice,
an opportunity to file a written opposition, and an
opportunity to be heard before a matter may be dis-
missed under Practice Book § 23-29.
The application of the foregoing rules is no doubt
most straightforward when it is the respondent who
moves to dismiss pursuant to Practice Book § 23-29.
See, e.g., Boria v. Commissioner of Correction, supra,
186 Conn. App. 362 (Bishop, J., concurring) (‘‘In such
circumstances, it is clear that the respondent must file
a written motion and a memorandum of law and serve
the same on the petitioner . . . . The effect of the ser-
vice of the motion and brief is to provide the petitioner
with the notice necessary for the petitioner to be able
to . . . file a memorandum of law in opposition to the
motion . . . and . . . claim the matter for oral argu-
ment . . . .’’). Nevertheless, in my view, the aforemen-
tioned principles apply with equal force, albeit in a
slightly different way, when the court moves to dismiss
the petitioner’s habeas petition on its own motion.8 Most
notably, the habeas court need not draft a formal motion
to dismiss or file a memorandum of law in support of
its own motion to dismiss. Practice Book § 10-30 (b)
explicitly provides that ‘‘[a]ny defendant, wishing to
contest the court’s jurisdiction, shall do so by filing a
motion to dismiss . . . .’’ (Emphasis added.) Similarly,
Practice Book § 11-1 (a) explains that ‘‘[e]very motion,
request, application or objection directed to pleading
or procedure . . . shall be in writing,’’ but Practice
Book § 11-2 defines ‘‘motion’’ in relevant part as ‘‘any
application to the court . . . .’’ (Emphasis added.)
When the habeas court, on its own motion, moves to
dismiss a habeas petition, the motion is brought by the
court. Thus, these rules provide that the court need not
file a formal motion to dismiss or file a memorandum
of law when the court, on its own motion, moves to
dismiss the petition.
Although the requirement of a written motion to dis-
miss or a memorandum of law in support of the motion
is inapplicable when the habeas court moves to dismiss
the petition on its own motion, habeas petitioners, nev-
ertheless, are still entitled to notice, an opportunity to
submit a written brief, and an opportunity to be heard
prior to the court’s dismissal of the petition. I agree
with Judge Bishop that, in the absence of an express
provision in Practice Book § 23-29 allowing the habeas
court to act without providing notice to the petitioner
and an opportunity to be heard on the court’s motion,
‘‘it is unreasonable and contrary to the rules pertaining
to civil matters generally for [an appellate] court to
import such a provision into § 23-29.’’ Boria v. Commis-
sioner of Correction, supra, 186 Conn. App. 363 (Bishop,
J., concurring). Indeed, even when the habeas court
moves to dismiss the petition on its own motion, Prac-
tice Book §§ 11-10 (a) and 11-18 (a) provide the peti-
tioner with an opportunity to be heard—both on the
papers and through oral argument as of right. Further-
more, when the motion to dismiss is placed on the short
calendar list; see Practice Book §§ 11-13 (a) and 11-
18 (a); the petitioner is provided with notice of the
proceeding. See Practice Book § 11-14 (‘‘[n]otice of the
assigned date and time of the motion shall be provided
to attorneys and self-represented parties of record’’);
cf. Griswold v. Camputaro, 177 Conn. App. 779, 792,
173 A.3d 959 (2017) (‘‘[t]hese rules [of practice] imple-
ment the fundamental principle of judicial administra-
tion [t]hat no matter shall be decided unless the parties
have fair notice that it will be presented in sufficient
time to prepare themselves upon the issue’’ (internal
quotation marks omitted)), aff’d, 331 Conn. 701, 207
A.3d 512 (2019).
My interpretation also serves to synergize Practice
Book § 23-29 with Practice Book § 23-40 (a), which pro-
vides for the right of the petitioner to be present at
‘‘any evidentiary hearing and at any hearing or oral
argument on a question of law which may be dispositive
of the case . . . .’’ Although I acknowledge that this
rule does not expressly require the habeas court to
conduct a hearing prior to dismissal of a petition pursu-
ant to § 23-29, I agree with Judge Bishop that the ‘‘provi-
sions [of § 23-40] entitling a petitioner to be present at
any dispositive hearing would be rendered illusionary
if [the] petitioner had no right to a hearing at all.’’ Boria
v. Commissioner of Correction, supra, 186 Conn. App.
360 (Bishop, J., concurring). In my view, the clearer,
most harmonious, interpretation of the interplay
between §§ 23-29 and 23-40 would be to ‘‘conclude that
the latter [rule] entitle[s] a habeas petitioner to notice
and an opportunity to be heard before dismissal pursu-
ant to § 23-29.’’ Id., 360 n.8 (Bishop, J., concurring).
For the foregoing reasons, I conclude that, in the
absence of a more specific provision in the rules of
practice pertaining to habeas corpus actions stating
otherwise, the habeas court must apply all of the rele-
vant general civil practice rules contained in chapters
10 and 11 when it considers dismissing a petition pursu-
ant to Practice Book § 23-29. Application of those rules
provides that petitioners are entitled to notice, an
opportunity to submit a written opposition, and a hear-
ing as of right prior to dismissal of their petition pursu-
ant to § 23-29.
We have commented that ‘‘[b]oth statute and case
law evince a strong presumption that a petitioner for
a writ of habeas corpus is entitled to present evidence
in support of his claims.’’ Mercer v. Commissioner of
Correction, 230 Conn. 88, 93, 644 A.2d 340 (1994). I
would add that the rules of practice go further and
require that habeas petitioners are entitled to present
relevant information before a habeas court dismisses
the petition pursuant to Practice Book § 23-29. Accord-
ingly, I respectfully concur in the judgment.
1
The majority opinion cites the Appellate Court’s majority and concurring
opinions in Boria v. Commissioner of Correction, 186 Conn. App. 332, 199
A.3d 1127 (2018), rev’d, 345 Conn. , A.3d (2022), as support for
its conclusion that Practice Book § 23-29 is open to ‘‘at least two plausible
interpretations . . . .’’ I disagree that the interpretation of § 23-29 advanced
by the Appellate Court’s majority opinion is at all plausible. Indeed, even
the majority in Boria conceded that ‘‘the analysis contained in Judge Bishop’s
concurrence has some appeal’’ but thought it ‘‘prudent not to weigh in
further with respect to [the] issue’’ until Gilchrist was decided. Boria v.
Commissioner of Correction, supra, 341 n.9. The Appellate Court’s reason-
ing, in my view, suffered from the same analytical misstep present in the
majority’s analysis here; the Appellate Court did not read § 23-29 in harmony
with the entire Practice Book scheme, as was its duty. See, e.g., State v.
Agron, supra, 323 Conn. 638.
2
Like Practice Book § 23-29, Practice Book § 23-37, which governs sum-
mary judgment in habeas actions, does not, by its terms, provide for a
hearing as of right. Under the majority’s expansive reading of Practice Book
§ 23-34, a habeas judge could, theoretically, rule on a motion for summary
judgment—or a motion to strike—without providing a petitioner with an
opportunity to be heard. Surely, this would raise due process concerns. Cf.
State v. Anderson, 319 Conn. 288, 311, 127 A.3d 100 (2015) (‘‘[F]or more
than [one] century the central meaning of procedural due process has been
clear: Parties whose rights are to be affected are entitled to be heard . . . .’’
(Emphasis added; internal quotation marks omitted.)).
3
Indeed, insofar as the majority is concerned about expeditious review
of frivolous habeas petitions, Practice Book § 23-24 acts as a gatekeeper, as
it ‘‘conserve[s] judicial resources by eliminating obviously defective petitions
. . . .’’ Gilchrist v. Commissioner of Correction, supra, 334 Conn. 560.
4
The very structure of our rules of practice suggests that chapter 23 of
the Practice Book is supplemental to, and works in conjunction with, the
rules of practice governing civil actions generally. Chapter 23 is aptly titled
‘‘Miscellaneous Remedies and Procedures.’’ It contains the specific provi-
sions applicable to habeas actions; see Practice Book §§ 23-21 through 23-
42; foreclosure of mortgages; see Practice Book §§ 23-16 through 23-19;
mandamus actions; see Practice Book §§ 23-45 through 23-49; arbitration;
see Practice Book §§ 23-60 through 23-66; and alternative dispute resolution.
See Practice Book § 23-67. Chapter 23 is a subsection of the broad, general
section, ‘‘Superior Court—Procedure in Civil Matters,’’ which spans seven-
teen chapters detailing process in civil actions.
5
Practice Book § 10-30 (b) also provides in relevant part that ‘‘[a]ny defen-
dant, wishing to contest the court’s jurisdiction, shall do so by filing a motion
to dismiss . . . .’’
6
Specifically, Practice Book § 10-31 provides: ‘‘(a) Any adverse party shall
have thirty days from the filing of the motion to dismiss to respond to the
motion to dismiss by filing and serving in accordance with Sections 10-12
through 10-17 a memorandum of law in opposition and, where appropriate,
supporting affidavits as to facts not apparent on the record.
‘‘(b) Except in summary process matters, the motion shall be placed on
the short calendar to be held not less than forty-five days following the
filing of the motion, unless the judicial authority otherwise orders. If an
evidentiary hearing is required, any party shall file a request for such hearing
with the court.’’
I note that the Rules Committee’s—and, by extension, the Superior Court
judges’—explicit decision, in subsection (b) of Practice Book § 10-31, to
exclude summary process matters from placement on the short calendar is
significant. Had the Rules Committee also intended for motions to dismiss
in habeas actions to be excluded from placement on the short calendar, ‘‘it
could have done so expressly . . . .’’ Dept. of Public Safety v. State Board
of Labor Relations, 296 Conn. 594, 605, 996 A.2d 729 (2010).
7
Practice Book § 11-10 (a) provides in relevant part: ‘‘A memorandum of
law briefly outlining the claims of law and authority pertinent thereto shall
be filed and served by the movant with the following motions and requests
. . . (2) motions to dismiss except those filed pursuant to Section 14-3
. . . . Memoranda of law may be filed by other parties on or before the
time the matter appears on the short calendar.’’
8
I note that the majority opinion is silent as to whether the petitioner
would be entitled only to notice and an opportunity to submit a written
opposition, and no oral argument, when the respondent—instead of the
habeas court—initiates the motion to dismiss. Practice Book § 23-29 makes
no distinction between the two and provides that the habeas court may
dismiss the petition, ‘‘at any time, upon its own motion or upon motion of
the respondent . . . .’’ In my view, the majority opinion would have to be
read to apply the same procedure regardless of who is the movant, which
clearly is contrary to the ordinary course of civil procedure.