Summary
finding failure to canvass respondent did not violate procedural due process rights
Summary of this case from In re NorthOpinion
No. 19372.
08-18-2015
In re YASIEL R. et al.
James P. Sexton, assigned counsel, with whom was Michael S. Taylor, West Hartford, for the appellant (respondent). Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner). Karen Oliver Damboise, for the minor children. Christine Perra Rapillo, director of delinquency defense and child protection, filed a brief for the Office of the Chief Public Defender as amicus curiae.
James P. Sexton, assigned counsel, with whom was Michael S. Taylor, West Hartford, for the appellant (respondent).
Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Karen Oliver Damboise, for the minor children.
Christine Perra Rapillo, director of delinquency defense and child protection, filed a brief for the Office of the Chief Public Defender as amicus curiae.
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.
Opinion
EVELEIGH, J.This certified appeal raises important issues concerning the review of unpreserved claims under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and our supervisory authority over the administration of justice in connection with the need to canvass a parent in a termination of parental rights proceeding. The present case arises from the trial court's judgments terminating the parental rights of the respondent mother, Ashley P., to her two minor children. On appeal, the Appellate Court concluded that, in order to prevail on an unpreserved claim under Golding, which requires that a party establish that an alleged constitutional violation “clearly exists,” a party must point to binding Connecticut precedent. In re Yasiel R., 151 Conn.App. 710, 721, 94 A.3d 1278 (2014). The respondent appeals, upon our grant of certification, claiming that: (1) the Appellate Court improperly construed the third prong of Golding ; (2) because her right to due process was violated, she can prevail under Golding; and (3) even if her right to due process was not violated, this court should nonetheless reverse the Appellate Court's judgment under our supervisory authority because the trial court failed to canvass her regarding her decision to waive her right to a trial and to not contest the allegations of the petitioner, the Commissioner of Children and Families. We conclude, contrary to the Appellate Court, that the absence of existing Connecticut precedent does not preclude consideration of a claim under Golding, but we are not convinced that the trial court's failure to canvass the respondent constituted a denial of her right to due process under the fourteenth amendment to the United States constitution. We are, however, convinced that we are warranted in using our supervisory authority over the administration of justice to require that a trial court canvass a parent who does not consent to the termination prior to the start of a termination of parental rights trial, in order to ensure the overall fairness of the termination of parental rights process. See part III of this opinion. Accordingly, we reverse the judgment of the Appellate Court.
We note that the trial court also terminated the parental rights of the respondent father. He did not, however, appeal from those judgments. See In re Yasiel R., 151 Conn.App. 710, 712 n. 1, 94 A.3d 1278 (2014). For the sake of simplicity, we hereinafter refer to the respondent mother as the respondent.
We granted certification as to the following two issues: (1) “Did the Appellate Court properly construe the third prong of State v. Golding, [supra, 213 Conn. at 239–40, 567 A.2d 823 ], to require that there be binding precedent that is directly on point for a constitutional violation clearly to exist such that relief can be afforded to the [respondent]?”; and (2) “Does the due process clause of the fourteenth amendment to the United States constitution require that a trial court canvass a parent personally about his or her decision not to contest the exhibits presented to the court against him or her in a parental termination proceeding?” In re Yasiel R., 314 Conn. 907, 99 A.3d 1169 (2014).
As we explain later in this opinion, although the issue regarding the exercise of our supervisory authority was not certified for appeal, after oral argument, the court requested that the parties submit supplemental briefing on this question.
The Appellate Court opinion sets forth the following relevant facts and procedural history. “The respondent's ‘fourth child, Yasiel, was born to [the respondent] when she was twenty-two years old. The father ... was fifteen years old when he impregnated [the respondent]. [The respondent] was subsequently arrested for statutory rape. [The father] moved in with [the respondent] while she was pregnant. After the child was born, [the respondent] reported that [the father] became increasingly violent. She said she did not want to remain in the relationship and wished to leave, but she became pregnant with Sky, her fifth child, in July, 2009, only four months after Yasiel was born.’ The two children were removed from the respondent's care on September 21, 2011. The respondent was thereafter provided with supervised visitation and transportation.“Due to the respondent's various arrests and her mental health and substance abuse issues, the petitioner filed petitions to terminate [the respondent's] parental rights in November, 2012. According to the petitioner, the court, on December 11, 2012, advised the respondent of her trial rights, entered denials to the petitions on her behalf, and appointed her an attorney. A contested hearing then was scheduled for November 12, 2013. At that hearing, the respondent's counsel stated that ‘although [the respondent is] not in agreement with the [termination of parental rights], she cannot bring herself to consent today. That being said, she's in agreement with the court taking the case on the papers. She's in agreement to the exhibits that ... have been entered.’ Her counsel then stated that the respondent ‘wants the court to be aware that things have significantly changed for her over the last two years' and continued to explain those changes. At no time did the court canvass the respondent personally to question her decisions not to contest the petitioner's exhibits and to waive her right to a full trial. It stated only that ‘I think I understand your position, and I will certainly consider that [you've made great progress] when I'm reviewing all the material....’
“The petitioner does not cite to the record or append any relevant transcript to her appellate brief to support the aforementioned statement. The respondent does not, however, dispute that this [advisement] occurred.” In re Yasiel R., supra, 151 Conn.App. at 713 n. 3, 94 A.3d 1278.
“According to the [trial] court's November 13, 2012 memorandum of decision, the respondent had a history of mental health issues, addiction problems, educational deficits, and a dysfunctional family origin. Her counsel thus wanted to emphasize that the respondent had stabilized her life by securing employment and housing.” In re Yasiel R., supra, 151 Conn.App. at 713 n. 4, 94 A.3d 1278.
“[The trial] court terminated the parental rights of the respondent [as to both Yasiel and Sky on November 13, 2013]. In so doing, the court held that the petitioner had proved, by clear and convincing evidence, that (1) the children were neglected or uncared for in a prior proceeding, (2) the respondent was provided specific steps to take to facilitate the return of the children, and (3) the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, such parent could assume a responsible position in the lives of the children. The court also held that, in considering all the statutory criteria set forth in General Statutes § 17a–112 (k), termination was in the best interests of the children.” (Footnotes altered.) In re Yasiel R., supra, 151 Conn.App. at 712–14, 94 A.3d 1278. On appeal to the Appellate Court, the respondent argued that the trial court violated her right to due process when it failed to canvass her about her decision to waive her right to a full trial and to not contest the exhibits presented to the court by the petitioner. Id., at 712, 94 A.3d 1278. The Appellate Court affirmed the judgments of the trial court, concluding that the respondent failed to demonstrate that the failure to canvass her was plain error and that her constitutional claim failed under the third prong of Golding. Id., at 721–22, 94 A.3d 1278. Specifically, with regard to review under Golding, the Appellate Court concluded that the respondent's claim failed because she failed to “cite to any precedent from Connecticut for the proposition that a parent has a constitutional right to be personally canvassed at the trial stage of a termination proceeding.” Id., at 721, 94 A.3d 1278. The respondent then filed a petition for certification to appeal which we granted. See footnote 2 of this opinion.
After oral argument in this court, we ordered the parties to submit supplemental briefs to answer the following questions: “If this court were to conclude that the respondent ... cannot prevail on her claim that the due process clause of the fourteenth amendment ... required the trial court to canvass her personally regarding her decision not to challenge the evidence introduced by the petitioner ... and not to adduce any evidence of her own, should this court nevertheless consider whether to require the canvass under our inherent supervisory authority over the administration of justice? If so, should this court exercise its supervisory authority to require such a canvass?” The parties submitted supplemental briefs answering these questions.
I
We first consider whether the Appellate Court properly construed the third prong of Golding so as to require that there be directly applicable binding Connecticut precedent for a constitutional violation clearly to exist such that relief can be afforded to the respondent.
It is not disputed that the respondent did not preserve her constitutional claim before the trial court. Therefore, she seeks our review pursuant to Golding. In State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823, we held that an appellant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent's] claim will fail.” (Emphasis omitted; footnote omitted.) The Appellate Court held that “[i]n [the present] case, the first two prongs of Golding are satisfied. First, the record is adequate to review the respondent's claim. Second, ‘a claim concerning the termination of a respondent's parental rights is of constitutional magnitude in that [t]he right to the integrity of the family is among the most fundamental rights guaranteed by the fourteenth amendment.’ ” (Footnote altered.) In re Yasiel R., supra, 151 Conn.App. at 721, 94 A.3d 1278. The court concluded, however, that the respondent's claim faltered on the third prong of Golding because she failed to show that a constitutional violation clearly existed where, although the respondent pointed to cases from other jurisdictions in support of her due process claim, she failed to “cite to any precedent from Connecticut for the proposition that a parent has a constitutional right to be personally canvassed at the trial stage of a termination proceeding.” Id.
“The first two [prongs of Golding ] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail.... State v. Lavigne, 307 Conn. 592, 599, 57 A.3d 332 (2012).” (Internal quotation marks omitted.) In re Yasiel R., supra, 151 Conn.App. at 721 n. 7, 94 A.3d 1278.
On appeal to this court, the respondent claims that the text of the third prong of Golding does not support the Appellate Court's conclusion that the respondent was required to rely on “binding precedent to support [her] proposition.” Id. Further, the respondent contends that the Appellate Court's conclusion represents a stark departure from this court's jurisprudence over the last twenty-five years. The petitioner, however, contends that the respondent's counsel mischaracterizes the Appellate Court's decision. The petitioner asserts that the Appellate Court did not find that the respondent had failed to satisfy the third prong of Golding merely because it believed binding precedent was required to do so, but rather it did so after finding no supporting precedent and properly performing the due process analysis required by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We agree with the respondent. Although not dispositive of our analysis, we wish to clarify that the third prong of Golding does not require that there be existing Connecticut precedent already recognizing a constitutional right. Instead, a party satisfies the third prong of Golding if he or she makes a showing sufficient to establish a constitutional violation. Requiring anything more would defeat the purpose of Golding, which, of course, is to permit a party to prevail on an unpreserved constitutional claim when, on appeal, the party can demonstrate a harmful constitutional deprivation. Construing Golding in this manner, we conclude that our use of the word “clearly” in describing the requirements under that prong of the test is unnecessary and misleading. See State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823. Accordingly, we conclude that the third prong of Golding should read: “the alleged constitutional violation ... exists and ... deprived the [respondent] of a fair trial.” Id., at 240, 567 A.2d 823.
Indeed, our holding regarding the third prong of Golding is consistent with our prior case law, in which we have previously employed Golding to decide constitutional questions of first impression. See, e.g., State v. Montanez, 277 Conn. 735, 751, 894 A.2d 928 (2006) (utilizing Golding to decide for first time that “principal's use of self-defense properly may be considered in the prosecution of his accessory”); State v. Joyner, 225 Conn. 450, 457, 625 A.2d 791 (1993) (reviewing unpreserved claim under Golding “because it raises an important and unresolved question of state constitutional law” [emphasis added] ). Therefore, to the extent that the Appellate Court required that the respondent reference prior Connecticut precedent to be successful under the third prong of Golding, we disagree.
II
Having determined that the Appellate Court improperly construed the third prong of Golding, we must next consider whether the due process clause of the fourteenth amendment to the United States constitution requires that a trial court canvass a parent about his or her decision not to contest the exhibits presented against him or her in a parental termination proceeding and to waive his or her right to present a case at trial.
The right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Accordingly, a parent has a right to due process under the fourteenth amendment to the United States constitution when a state seeks to terminate the relationship between parent and child. See Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).
Section 1 of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without the process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In determining what procedural safeguards are required by the federal due process clause when the state seeks to terminate the parent-child relationship, the United States Supreme Court has utilized the balancing test set forth in Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. 893. To determine whether due process requires a canvass in this context, Mathews directs us to consider and weigh three factors: “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail.” Id.
We first consider the importance of the private interest that is jeopardized by the termination proceeding. The petitioner does not dispute that the respondent's interest in retaining her parental rights as to her children is constitutionally protected. Indeed, this court has recognized that “[t]he rights to conceive and to raise one's children have been deemed essential, basic civil rights of man, and [r]ights far more precious ... than property rights.” (Internal quotation marks omitted.) In re Juvenile Appeal (83–CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983). “Unquestionably, these important rights are severely threatened by the state's initiation of termination proceedings. Such proceedings may result not only in the modification or limitation of parental rights, but may irrevocably sever the relationship between parent and child.... This deprivation is unique and complete.... Consequently, under the first prong of the [Mathews ] test, the private interest of a parent in a termination proceeding is considerable.” (Citations omitted.) In re Alexander V., 223 Conn. 557, 561, 613 A.2d 780 (1992). We agree with the respondent that the fundamental liberty interest of a parent that is placed in jeopardy by a trial to terminate that parent's parental rights, standing alone, has been sufficient to warrant heightened procedural safeguards.
The respondent contends that the second Mathews factor militates in her favor. She argues that the twin perils of conducting a termination trial in summary fashion and the risk of inadvertently foreclosing a parent from receiving a full trial on the merits must both be considered. There is a need, she suggests, to subject social workers, who author the social studies that courts rely on, to cross-examination. There is also a need to cross-examine expert witnesses. The respondent also points to the fact that in a summary proceeding, without the court first canvassing the parent, there is the potential that crucial rights will be inadvertently waived. These rights can only be waived, she claims, if they are made knowingly, intelligently and voluntarily. The petitioner, however, claims that the second factor of Mathews weighs heavily in favor of herself. The petitioner asserts that the respondent's intention to forgo testimonial evidence and the trial court's failure to canvass her regarding that decision did not erroneously deprive her of any right. In support of her position, the petitioner contends that, despite the fact that the respondent's brief is an apparent wholesale attack on her trial attorney's strategy, the respondent is not claiming that she received ineffective assistance of counsel. In addition, the petitioner asserts that it would be impracticable to canvass the respondent on every issue because the trial court would be required to ask whether the respondent agrees with every objection or every exhibit that is admitted without any objection. Finally, the petitioner claims that the respondent's due process rights were protected because she was present and represented by an attorney and she was fully able to participate in the proceedings if she had so desired.
The second factor set forth in Mathews requires that we examine the extent to which current procedures create a risk of an erroneous deprivation of parental rights and also that we weigh the likelihood that a canvass would reduce that risk. We begin by noting that there currently is no statute or court rule requiring a trial court in a termination proceeding to conduct a canvass prior to the initiation of the trial. However, “[t]he essence of due process is the requirement that a person in jeopardy of a serious loss [be given] notice of the case against him and [an] opportunity to meet it.” (Internal quotation marks omitted.) State v. Lopez, 235 Conn. 487, 493, 668 A.2d 360 (1995). As one of our sister states has stated: “Procedural due process includes notice to the person whose right is affected by the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the [c]onstitution or statutes; and a hearing before an impartial decisionmaker.” (Internal quotation marks omitted.) In re Interest of Mainor T., 267 Neb. 232, 247–48, 674 N.W.2d 442 (2004).
We agree with the petitioner that the added procedural safeguard requiring that a trial court canvass a parent prior to a termination of parental rights trial does not substantially decrease any risk of erroneous deprivation of her right to family integrity. When the respondent is represented by counsel, the current procedures in place adequately protect the respondent from any claimed constitutional deficiencies. We note that the respondent was previously advised of her rights approximately one year before the start of trial and she was represented by an attorney throughout the proceedings. It has frequently been recognized, albeit in other contexts, that “we strongly presume that counsel's professional assistance was reasonable, and the [respondent] has the burden to overcome the presumption that [her] attorney was employing sound trial strategy.... We evaluate the conduct from trial counsel's perspective at the time.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 137–38, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006) ; see also footnote 5 of this opinion. On appeal, the respondent's claims relate to failures of her attorney during the trial on the termination of parental rights. A canvass of the respondent would, however, do nothing to enhance the performance of her attorney during the trial. The respondent certainly had adequate notice of the proceedings and was present with her counsel at the time of the trial. She had the opportunity to participate in a contested hearing, present evidence on her own behalf, testify on her own behalf, and object to any exhibits and cross-examine witnesses, but she declined to do so. In the present case, the respondent does not claim that she attempted to participate and was prevented from doing so by her attorney or that she asked her attorney to participate and he refused. Therefore, we conclude that the second Mathews factor weighs heavily in favor of the petitioner.
The cases from other jurisdictions cited by the respondent in support of her position are easily distinguishable from the case at bar. See Thompson v. Clark County Division of Family & Children, 791 N.E.2d 792 (Ind.App.) (reversing judgment terminating parental rights where trial court had performed truncated hearing in which summaries of testimony were offered in lieu of testimony), transfer denied, 804 N.E.2d 755 (Ind.2003) ; State ex rel. Children, Youth & Families Dept. v. Stella P., 127 N.M. 699, 986 P.2d 495 (1999) (reversing judgment terminating parental rights where respondent mother did not attend her termination of parental rights trial and her attorney and guardian ad litem both neglected to inform court that respondent mother objected to termination of her parental rights); In re Etter, 134 Ohio App.3d 484, 731 N.E.2d 694 (1998) (reversing judgment terminating parental rights where mother's attorney and guardian ad litem admitted to permanent custody petition and trial court did not personally canvass mother concerning this admission in violation of Ohio law); State ex rel. Dept. of Human Services v. Sumpter, 201 Or.App. 79, 83, 116 P.3d 942 (2005) (reversing judgment terminating mother's parental rights where trial court entered stipulated judgment “ ‘voluntarily’ ” terminating mother's parental rights, but did not canvass mother or her guardian ad litem at subsequent hearing); In re Termination of Parental Rights to Idella W., 288 Wis.2d 504, 708 N.W.2d 698 (2005) (vacating order terminating parental rights where father was federal prisoner in witness protection program and was not brought by federal authorities to court for his termination trial and only participated by telephone).
The third factor in the Mathews balancing test concerns the government's interest in the proceeding and the fiscal and administrative burdens attendant to increasing procedural requirements. The respondent contends that the state has two interests that are implicated by requiring trial courts to canvass parents in termination of parental rights trials. The first is its “fiscal and administrative interest in lessening the cost involved in termination proceedings”; the second is its parens patriae interest “in the accurate and speedy resolution of termination litigation in order to promote the welfare of the affected child.” In re Alexander V., supra, 223 Conn. at 565, 613 A.2d 780. The respondent claims that the fiscal and administrative costs of a short canvass would be minimal. Further, she argues, a canvass would ensure the accuracy of the termination proceeding.
The petitioner asserts that the state's primary interest in terminating parental rights is to free the child for adoption or to free the child of uncertainty. The petitioner also asserts that it has an interest in expediting cases involving abused and neglected children, and the speedy resolution of trials involving the termination of parental rights in order to protect the welfare of the affected children. The petitioner further claims that the respondent's proposed canvass would necessitate the trial court to extensively educate the parent on multiple substantive and procedural legal principles in order to ensure this “ ‘waiver’ ” of objections to exhibits was knowingly and voluntarily made. As such, the petitioner contends that the cost and delay are significant with little if any potential benefit to the respondent.
While we agree with the respondent that the cost of a short canvass would be minimal, if any, we also acknowledge that a lengthy canvass could potentially affect the accurate and speedy resolution of the termination proceeding. Therefore, in view of the fact that the respondent was represented throughout the course of this proceeding, we view the third Mathews factor as neutral to both sides and fully dependent on the length of a proposed canvass, which we do not perceive as being constitutionally required.
Having considered the three factors set forth in Mathews, we conclude that due process does not require that a trial court canvass a respondent who is represented by counsel when the respondent does not testify or present witnesses and the respondent's attorney does not object to exhibits or cross-examine witnesses. Although it is evident that the parent has an important interest to be protected, the strength of the second Mathews factor outweighs our conclusions regarding the first and third factors. We therefore conclude that the respondent has failed to sustain her burden of proof as to the third prong of Golding and we reject her claim on that basis.
III
Having concluded that the respondent's right to due process was not violated, we next consider whether we should nonetheless exercise our supervisory authority to require a canvass prior to a termination of parental rights trial.
The respondent urges us to use our supervisory power to require a canvass in a situation, such as the present case, where there is no testimony offered by the respondent, no objection to exhibits and no cross-examination of witnesses. The respondent claims that using our supervisory power to require a canvass in such situations is consistent with the ruling in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 155–61, 84 A.3d 840 (2014), where this court recently articulated the circumstances under which it is appropriate for the court to exercise its supervisory authority. The respondent further claims that because the present case involves safeguards for securing a fundamental right, we should use our supervisory authority to guide the trial courts in the administration of justice.
In response, the petitioner asserts that using our supervisory authority to require a canvass would inject a trial court into the relationship between counsel and the parent by requiring courts to canvass a respondent, directly, about her counsel's trial strategy. The petitioner further contends that the very reasons that constitutional due process does not require a canvass in this situation also counsels against the adoption of a rule that would entail the same sort of intrusion. The petitioner also suggests that it would be very difficult to craft a rule applicable to all situations. Here, in particular, the petitioner argues that the record is not clear that the respondent's counsel totally abandoned the case. She points to the fact that counsel argued to the court, based upon one of the exhibits, that the respondent “has had clean drug screens over the course of the last two years.” The petitioner further expresses a concern that a canvass could be required every time counsel agreed to the admission of a piece of evidence, perhaps contrary to trial counsel's strategic choice to do so. Also, the petitioner contends that such a rule is not prudent at this time since the Rules Committee of the Superior Court and other attorneys experienced in the area have not had the opportunity to voice their opinion on the matter. We disagree with these contentions and, rather, agree with the respondent that, in the interest of the fair administration of justice, it is appropriate that we exercise our supervisory authority to require that a trial court canvass the respondent parent before the start of any trial on the termination of parental rights.
It is well settled that “[a]ppellate courts possess an inherent supervisory authority over the administration of justice.... The exercise of our supervisory powers is an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v. Lockhart, 298 Conn. 537, 576, 4 A.3d 1176 (2010) ; see also State v. Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012).
We recognize that this court's “supervisory authority is not a form of free-floating justice, untethered to legal principle.” (Internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997). Rather, the rule invoking our use of supervisory power is “one that, as a matter of policy, is relevant to the perceived fairness of the judicial system as a whole, most typically in that it lends itself to the adoption of a procedural rule that will guide lower courts in the administration of justice in all aspects of the [adjudicatory] process.” (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 768, 91 A.3d 862 (2014). Indeed, “the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of [this court's] supervisory powers.” (Internal quotation marks omitted.) State v. Edwards, 314 Conn. 465, 498, 102 A.3d 52 (2014).
We recently reemphasized the fact that three criteria must be met before we will consider invoking our supervisory authority. Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. at 155–61, 84 A.3d 840. First, the record must be adequate for review. Id., at 155, 84 A.3d 840. Second, all parties must be afforded an opportunity to be heard on the issue. Id., at 156, 84 A.3d 840. Third, an unpreserved issue will not be considered where its review would prejudice a party. Id. If these three threshold considerations are satisfied, the reviewing court next considers whether one of the following three circumstances exists: (1) the parties do not object; (2) the party that would benefit from the application of this court's supervisory powers cannot prevail; or (3) a claim of exceptional circumstances is presented that justifies deviation from the general rule that unpreserved claims will not be reviewed. Id., at 158–61, 84 A.3d 840.It is clear that the three threshold requirements have been satisfied in the present case. Just as the record was adequate to consider the respondent's due process claim, it is also adequate to consider whether this court should adopt a rule requiring a canvass in trials for termination of parental rights pursuant to its supervisory power. Specifically, the issues regarding whether the respondent chose to waive her right to offer her own testimony or that of other witnesses on her behalf, challenge any evidence, or cross-examine witnesses is evident from the transcript of the trial. Further, the second predicate requirement is satisfied because the parties have been afforded the opportunity to brief the issue. Finally, the petitioner will not be prejudiced if this court were to rely on its supervisory power to adopt the suggested canvass rule. If such canvasses are required, there would have been nothing that the petitioner could have done to prevent such a canvass, even if she had known about the rule at the time that trial counsel agreed on the summary proceeding. This proposed canvass rule does not present a situation where the parties are prejudiced because, had they been aware of a new rule, they would have presented additional evidence or prepared their case in a different manner. Thus, the three predicate requirements are met for the invocation of the rule.
We next consider whether there are exceptional circumstances that would justify review of this unpreserved claim. In this regard, we note that delineating the circumstances in which a trial court is obligated to canvass a parent personally regarding her right to contest the petitioner's allegations against her at trial, as well as determining what the scope that such a canvass must be, are the type of “exceptional circumstances” in which this court has previously invoked its supervisory authority. For instance, in State v. Connor, 292 Conn. 483, 518–19, 973 A.2d 627 (2009), this court employed its supervisory authority to require a trial court to canvass defendants who have been found competent to stand trial to assess whether they also were competent to conduct the trial proceedings without counsel. Further, in State v. Gore, 288 Conn. 770, 778, 955 A.2d 1 (2008), we invoked our supervisory power to require, in the absence of a written waiver, a canvass of the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently, and voluntarily. Also, in Duperry v. Solnit, 261 Conn. 309, 329, 803 A.2d 287 (2002), we exercised our supervisory authority to require that in all future cases in which a defendant pleads not guilty by reason of mental disease or defect, the trial court must canvass the defendant to ensure that his plea is made voluntarily and with a full understanding of the consequences. We exercised our supervisory authority in the aforementioned cases to ensure “ ‘the fair and just administration of [justice]’ ”; State v. Connor, supra, at 518–19 n. 23, 973 A.2d 627 ; “ ‘to guide the [trial] courts' ”; State v. Gore, supra, at 787, 955 A.2d 1 ; and “in light of concerns of fundamental fairness....” Duperry v. Solnit, supra, at 326–27, 803 A.2d 287. In all three of these cases, the canvass rules were deemed not to be constitutionally compelled. Like the rights in Connor, Gore , and Duperry, the respondent in the present case was faced with the loss of core fundamental rights—her fundamental parental rights and right to family integrity—that were placed in jeopardy through the use of an adjudicatory procedure that failed to ensure that she understood the significant risks of proceeding as she did. Also, like Gore, which involved the waiver of the jury trial, and like Duperry, which involved the entry of a plea, the result in the present case was that the trial was not an adversary proceeding. Although the petitioner points to the fact that counsel for the respondent commented on certain language in an exhibit, those comments of counsel did not serve as evidence or convert this summary proceeding into an adversarial one.It is significant that Connecticut requires its trial courts to canvass, inter alia, parents pleading nolo contendere in a neglect or termination proceeding; Practice Book § 35a–1 ; criminal defendants waiving their right to a jury trial; see State v. Gore, supra, 288 Conn. at 786–87, 955 A.2d 1 ; criminal defendants who have been found competent to stand trial but wish to represent themselves at that trial; see State v. Connor, supra, 292 Conn. at 518–19, 973 A.2d 627 ; and criminal defendants regarding their plea of not guilty by reason of mental defect where the state does not challenge that claim; see Duperry v. Solnit, supra, 261 Conn. at 329, 803 A.2d 287 ; all circumstances that lead to the loss of significant personal rights. We conclude, therefore, that this case involves exceptional circumstances requiring that we employ our supervisory power.
“In utilizing our supervisory powers, we [have] emphasized that [a]n important function of this court is to ensure public confidence in the integrity of the judicial system. This confidence is enhanced through the enactment of rules that safeguard the fairness of our system of justice.” (Internal quotation marks omitted.) State v. Elson, supra, 311 Conn. at 773, 91 A.3d 862. Furthermore, “[w]e are aware of no principle that would bar us from exercising our supervisory authority to craft a remedy that might extend beyond the constitutional minimum....” State v. Rose, supra, 305 Conn. at 607, 46 A.3d 146. “[T]his court ordinarily [invokes its] supervisory powers to enunciate a rule that is not constitutionally required but that [it thinks] is preferable as a matter of policy.” (Emphasis omitted; internal quotation marks omitted.) Id., at 608, 46 A.3d 146.
In the present case we have concluded that the respondent, who was represented by counsel, was not constitutionally entitled to a canvass regarding her trial counsel's strategy and the decision not to contest evidence presented by the petitioner. Nevertheless, we recognize that the lack of a canvass of all parents in a parental rights termination trial may give the appearance of unfairness insofar as it may indicate a lack of concern over a parent's rights and understanding of the consequences of the proceeding. Therefore, we conclude that public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences.
We also note that the canvass that we require differs from that the respondent claims is constitutionally mandated. The canvass we require today will be given to all parents involved in a termination trial, not just those whose attorneys choose not to contest evidence. Indeed, we require that the canvass be performed at the very start of the termination trial, before a decision as to whether to challenge evidence has been communicated to the court. In so doing, the canvass we require does not single out those parents whose attorneys have made a tactical decision not to contest the evidence presented. As a result, the canvass we require does not interfere with the attorney-client relationship but serves to inform and protect all parents.
Indeed, the provision of our rules of practice which requires a trial court to canvass a parent pleading nolo contendere in a neglect or termination proceeding is instructive here. See Practice Book § 35a–1 (b). The existence of such a requirement demonstrates that the judges of the Superior Court thought it was important that “[t]he judicial authority shall determine whether a noncustodial parent or guardian standing silent understands the consequences of standing silent.” Practice Book § 35a–1 (b). Similarly, by exercising our supervisory authority in the present case, we are promoting public confidence in the process by ensuring that all parents involved in parental termination proceedings fully understand their right to participate and the consequencesof the proceeding. We conclude, therefore, that it is proper to exercise our supervisory power in the present case and require that, in all termination proceedings, the trial court must canvass the respondent prior to the start of the trial. The canvass need not be lengthy as long as the court is convinced that the respondent fully understands his or her rights. In the canvass, the respondent should be advised of: (1) the nature of the termination of parental rights proceeding and the legal effect thereof if a judgment is entered terminating parental rights; (2) the respondent's right to defend against the accusations; (3) the respondent's right to confront and cross-examine witnesses; (4) the respondent's right to object to the admission of exhibits; (5) the respondent's right to present evidence opposing the allegations; (6) the respondent's right to representation by counsel; (7) the respondent's right to testify on his or her own behalf; and (8) if the respondent does not intend to testify, he or she should also be advised that if requested by the petitioner, or the court is so inclined, the court may take an adverse inference from his or her failure to testify, and explain the significance of that inference. Finally, the respondent should be advised that if he or she does not present any witnesses on his or her behalf, object to exhibits, or cross-examine witnesses, the court will decide the matter based upon the evidence presented during trial. The court should then inquire whether the respondent understands his or her rights and whether there are any questions. This canvass will ensure that the respondent is fully aware of his or her rights at the commencement of the trial. It will neither materially delay the termination proceeding nor unduly burden the state.
We reject the petitioner's argument that this canvass will involve the court in counsel's trial strategy because the canvass merely constitutes an advisement to the respondent of his or her rights regarding the trial. In fact, as explained previously in this opinion, trial courts frequently canvass parties in other circumstances, such as when a parent pleads nolo contendere in a neglect or termination proceeding, a criminal defendant waives his or her right to a jury trial, a criminal defendant wishes to represent himself or herself, or when a criminal defendant pleads not guilty by reason of mental defect. Therefore, the claim that a canvass unduly interferes with trial strategy is unavailing. We recognize that there may be rare instances wherein counsel may not actively participate in the trial because the petitioner has no or insufficient evidence to support the grounds claimed. Further, there may be substantial reasons why counsel does not wish to call his or her client to testify. We do not agree, however, that the advisement which we impose today will interfere with trial strategy, nor do we contemplate a situation where a respondent will be able to interrupt the trial if his or her counsel does not object to a certain exhibit or piece of testimony. Further, although we appreciate the petitioner's concern that the Rules Committee of the Superior Court and other parties experienced in termination proceedings were not consulted before implementing this rule, we are mindful that proceedings before the Rules Committee of the Superior Court take time. Because the parental rights involved in such a canvass are so important in ensuring the fairness of the process, we do not believe it would be prudent to require that the public wait for the adoption of a new rule of practice. We conclude, therefore, that imposing the canvass rule announced today is an appropriate exercise of our supervisory authority.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgments of the trial court and to remand the case to the trial court for further proceedings consistent with this opinion.In this opinion ROGERS, C.J., and PALMER, McDONALD and VERTEFEUILLE, Js., concurred.
ZARELLA, J., concurring in part and dissenting in part.
In the present case, the majority correctly determines that the trial court did not violate the constitutional 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 previously have guided this court in its use of supervisory authority. “It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice.... Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, 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]ppellate 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 utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved 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 injustice apparent on the record, but the facts of the case lent themselves to the articulation of prophylactic procedural 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 categories).
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 fundamental 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 supervisory 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 judgment even though trial court had used such language). Yet, in other cases, we have applied such rules retroactively 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 reasons 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 reasons); 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. at 764, 784–85, 91 A.3d 862 (cautioning trial courts against commenting negatively on, at sentencing, defendant's decision 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). Thus, there has been no rhyme or reason as to when the court has applied a new rule prospectively or retroactively.
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).
Although the Commissioner of Children and Families filed separate petitions and certain other supporting documents discussed herein on behalf of each of the two children who are the subject of this appeal, Yasiel R. and Sky R., and, in some instances, certain affidavits were made and studies conducted in the name of both children, for purposes of clarity, we refer to these documents in the singular.
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, “Retroactivity 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, at 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, at p. 57; J. Fisch, supra, at 1085–86. This concern, it seems to me, pales in comparison 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 judicial 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., at 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 quotation 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, certainty, 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 quotation marks omitted) State v. Edwards, supra, 314 Conn. at 498, 102 A.3d 52 ; 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. at 852, 100 A.3d 361. 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. at 857, 110 S.Ct. 1570 (Scalia, J., concurring) (“Manifest injustice, I fear, is just a surrogate 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 acknowledge 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.” (Internal quotation marks omitted.) Kervick v. Silver Hill Hospital, supra, 309 Conn. at 710, 72 A.3d 1044. Thus, when we retroactively 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 authority in this manner compromises the legitimacy of this court. See State v. Carrion, supra, 313 Conn. at 854, 100 A.3d 361 (Zarella, 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 protect”). As the final arbiter of legal disputes in this state, there is nothing to restrain the court in its use of supervisory 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 uncertainty erodes the predictability and public confidence that adherence to the rule of law fosters. State v. Elson, supra, 311 Conn. at 771, 91 A.3d 862 (expansive use of supervisory authority may lead to “arbitrary, result oriented, and undisciplined jurisprudence”).
Moreover, by invoking the court's supervisory authority to reverse judgments in individual cases, we contradict 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. at 498, 102 A.3d 52. That is exactly what we have turned our supervisory authority 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 supervisory 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 outweigh 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 retroactively always will be offset by the interest of the opposing 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. at 506, 973 A.2d 627 (exercising supervisory authority after rejecting defendant's constitutional claims). Thus, when this court is presented with an unsuccessful legal or constitutional claim, we nevertheless will be able to recognize the need for and to implement a procedural fix by promulgating a prospective rule. Limiting our use of supervisory authority to creating only prospective rules therefore will not constrain our ability to appropriately oversee and administer the system of justice. Accordingly, we no longer should invoke the court's supervisory 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. at 7.
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.
It is instructive to observe what the court in Ubaldi did not rely on to justify its newly recognized power. That is, the court did not rely on Practice Book § 60–2, formerly Practice Book (1978–97) § 4183, to justify its claim to possess “inherent supervisory power.” See Practice Book § 60–2 (“[t]he supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction”). By not looking to the authority of the court to supervise the appellate process to justify the power it invoked in Ubaldi, the court drew a distinction between the two types of authority—the authority to supervise the proceedings before this court on appeal pursuant to the rules of practice, and the authority to supervise the proceedings at the lower courts, pursuant to Ubaldi. The derivation of our supervisory power in Ubaldi, therefore, is distinct in origin from the court's authority pursuant to the rules of practice.
I observe that our decisions have not always been clear, when invoking this court's supervisory authority, whether that authority is grounded in the rules of practice, or derived from this court's decision in Ubaldi, and instead have conflated the two types of authority. See, e.g., In re Jonathan M., 255 Conn. 208, 236, 764 A.2d 739 (2001) (declining request that court exercise supervisory authority to remand case for further evidentiary hearings and to retain jurisdiction of appeal, which request implicated court's authority under Practice Book § 60–2 ; rather than citing to rules of practice, court cited as authority State v. Andrews, 248 Conn. 1, 20, 726 A.2d 104 (1999), which involved denial of request to exercise of supervisory authority to reverse conviction on basis of prosecutorial improprieties).
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 prospectively “ensure[s] public confidence in the integrity of the judicial system”; (internal quotation marks omitted) State v. Elson, supra, 311 Conn. at 773, 91 A.3d 862 ; without contravening 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 judgments. 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. at 854, 100 A.3d 361 (Zarella, J., concurring); State v. Rose, supra, 305 Conn. at 629–33, 46 A.3d 146 (Zarella, J., dissenting); State v. Santiago, supra, 245 Conn. at 341, 351, 715 A.2d 1 (Callahan, C.J., concurring in part and dissenting in part); State v. Coleman, supra, 242 Conn. at 549–50, 700 A.2d 14 (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 frequency. 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 individual cases.
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 exercise.” I agree with those explanations but would add a third possible explanation—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, at 572–73, 462 A.2d 1001. 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., at 561, 462 A.2d 1001. 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 anew trial. See id., at 565, 462 A.2d 1001. The court rejected this argument and ordered a new trial pursuant to its supervisory authority; id., at 575, 462 A.2d 1001 ; without determining whether the trial court had abused its discretion or whether Ubaldi had been deprived of a fair trial. See id., at 564–75, 462 A.2d 1001. As Justice Espinosa explains in her concurring and dissenting opinion, the court in Ubaldi apparently established that supervisory authority should be “invoked only when its exercise is necessary and the interests involved are of the utmost importance, 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 contempt sanctions, disciplinary boards or other means.” State v. Ubaldi, supra, 190 Conn. at 571, 462 A.2d 1001. 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.
As a possible explanation for the court's evolution in its understanding of its role, Beale offers the observation that McNabb was decided three years after legislation authorized the Supreme Court to promulgate rules of criminal procedure and two years after the court decided Sibbach v. Wilson & Co., 312 U.S. 1, 14–16, 61 S.Ct. 422, 85 L.Ed. 479 (1941), which upheld the validity of rules 35 and 37 of the recently promulgated Federal Rules of Civil Procedure. A. Beale, supra, 84 Colum. L.Rev. at 1444–45 and 1445 nn. 74 and 75.
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 termination 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 supervisory 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 emphasize 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.
ESPINOSA, J., concurring in part and dissenting in part.
I agree with parts I and II of the majority opinion. Specifically, I agree with the majority that the Appellate Court incorrectly construed the third prong of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), to require an appellant to produce binding precedent directly on point in order to establish that “the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial” in order to prevail under Golding. I also agree with the majority that the respondent mother, Ashley P. (respondent), has not demonstrated that her right to due process was violated by the trial court's failure to personally canvass her regarding her decision to allow the court to decide whether to grant the petition1 of the petitioner, the Commissioner of Children and Families, to terminate the parental rights of the respondent on the basis of the documentary evidence submitted by the petitioner, without the presentation of testimony.
I write separately, however, to express my disagreement with the majority's determination, in part III of its opinion, to invoke this court's supervisory authority to reverse the judgment of the Appellate Court in the present case in accordance with the new rule announced in its decision, which requires the trial court to personally canvass a parent who is represented by counsel before accepting a waiver of the right to a full trial and a decision not to contest the exhibits offered by the Department of Children and Families (department) in support of a petition to terminate parental rights. Today's decision exemplifies the routine manner in which this court invokes its supervisory authority of late. Certainly, the issue at stake is an important one—ensuring that a parent's waiver of the right to trial and to contest the department's evidence in a termination proceeding is knowing, intelligent and voluntary. The majority has not persuasively explained, however, why representation by counsel is not sufficient to ensure that a parent's waiver comports with the requirements of due process. The majority, therefore, has not demonstrated how its rule is required for the administration of justice. Nor has the majority offered any explanation as to why it believes this case presents the type of extraordinary circumstance that justifies the invocation of this court's supervisory authority in order to reverse the judgment of the Appellate Court. My review of the record reveals that there was no question that the respondent, who was represented by counsel and who previously had her rights terminated with respect to three of her other children, was quite familiar with the consequences of the termination of her parental rights. There is no indication in the record that counsel was experiencing any difficulty communicating with the respondent or that the respondent had taken issue with the strategic decisions of counsel at any point during these protracted proceedings. Nor has the respondent alleged that her counsel's performance was deficient. Indeed, the record provides support for the conclusion that the respondent's counsel was justified in resting on the papers, given the overwhelming, negative testimony about the respondent that would have been presented had this case gone to trial. By invoking its supervisory authority, therefore, the majority second-guesses the strategy choices of counsel and forces the children who are the subject of the petition to suffer additional, needless delay before being placed permanently. Accordingly, I respectfully dissent with respect to part III of the majority opinion.
I have said it before—this court exercises its supervisory authority “too broadly, too readily and too often.” Lapointe v. Commissioner of Correction, 316 Conn. 225, 457, 112 A.3d 1 (2015) (Espinosa, J., dissenting). In light of recent decisions expanding the scope of that authority; see id., at 268–72, 112 A.3d 1 ; Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 144–66, 84 A.3d 840 (2014) ; as well as the court's increasingly routine reliance on what is supposed to be an extraordinary power, I believe that it is time to take stock and consider the ramifications of the court's existing jurisprudence on the scope of that authority. Because that power is now entrenched in our jurisprudence, I do not believe that it is possible to abandon it, but it is time that we take seriously the oft recited mantra that this court's supervisory power should be exercised rarely. See, e.g., State v. Edwards, 314 Conn. 465, 498, 102 A.3d 52 (2014) ; State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998).
Three decades—that is the extent of this court's history of reliance on its inherent supervisory authority. Thirty years, out of the almost 230 year history of this court's published opinions. I believe that it is fair to say that the supervisory authority of this court is a relatively new power. In light of its brief history, it is perhaps not surprising that we have not yet considered the ramifications of how we have used the power thus far. This court's recent decisions, however, make it very clear that the time has come to have that discussion. See, e.g., Lapointe v. Commissioner of Correction, supra, 316 Conn. at 268–72, 112 A.3d 1 ; Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. at 144–66, 84 A.3d 840. In order to better understand the nature of our supervisory power and the need to exercise it with “great caution”; State v. Santiago, 245 Conn. 301, 343, 715 A.2d 1 (1998) (Callahan, C.J., concurring and dissenting); I begin by reviewing the origins of our reliance on it, trace the path of that power to its present day form, and, finally, explain why the present case is not an appropriate one for the exercise of that authority.
Preliminarily, I offer the following observation. Unrestrained exercise of this court's supervisory authority is dangerous because it erodes the predictability that is essential to the rule of law. The best perspective from which to understand the danger is from the vantage point of the litigants who appear before this court. Massachusetts Supreme Judicial Court Justice Oliver Wendell Holmes, later a justice of the United States Supreme Court, expressed it aptly: “When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.” O. Holmes, “The Path of the Law,” 10 Harv. L.Rev. 457 (1897).
Justice Holmes' remarks clarify that predictability is not an abstract value, revered in a vacuum by the proponents of judicial restraint. It is a value that has pragmatic worth, because predictability ensures that the law works for those who need it. The parties who argue before this court through their attorneys are entitled to rely on the predictability of the rule of law. They come before the court with the expectation that the existing precedents will determine the resolution of the appeal, and they make their decisions and prepare their cases on the basis of that expectation. When this court decides appeals more and more frequently on the basis of supervisory authority, however, we add a level of mystery to the law that defeats expectation. No one wants to pay an attorney to speculate as to whether this court will decide to invoke its supervisory authority. And no attorney wants to be placed in the position of trying to guess whether his or her appeal will be the next instance in which the court exercises that authority rather than resting the decision on the merits. Reserving our supervisory authority for the very rare instances when it is appropriate, by exercising self-restraint, and adhering consistently to guidelines for its exercise will protect the predictability that is essential to the rule of law.
I
HISTORY OF THIS COURT'S EXERCISE OF SUPERVISORY AUTHORITY
A
Origin of the Authority
The origin of this court's supervisory authority tells the entire story—our power is self-conferred, unanchored, and, unless we ourselves restrain it, unlimited. This court first invoked its inherent supervisory authority in 1983, in State v. Ubaldi, 190 Conn. 559, 569–75, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983), in which the court reversed the defendant's conviction on the basis of prosecutorial impropriety. The defendant in Ubaldi had been convicted of various counts of larceny in connection with the conversion of tax funds that he had collected on behalf of the city of Waterbury. Id., at 560, 462 A.2d 1001. During cross-examination of the defendant, the prosecutor asked whether a certain person, Nick Jamele, to whom the defendant apparently had disbursed city funds, was the defendant's “ ‘bookie....’ ” Id., at 561, 462 A.2d 1001. The court sustained the defendant's objection to the question and instructed the jury to disregard it. Id., at 561–62 n. 2, 462 A.2d 1001. The state subsequently attempted to call Jamele as a witness. Id., at 564, 462 A.2d 1001. During the state's proffer to the court outside the presence of the jury, however, Jamele successfully invoked his fifth amendment privilege against self-incrimination. Id. Notwithstanding both Jamele's unavailability as a witness and the trial court's earlier ruling that had barred the state from implying an unsavory connection between the defendant and Jamele, the prosecutor commented during closing argument on the defendant's failure to call Jamele as a witness, thus reviving the court prohibited suggestion that the defendant had paid off gambling debts to Jamele with city funds. Id.
This court characterized the prosecutor's conduct as deliberate, and undertaken in “total disregard” of the intent of the trial court's rulings, which was to protect the defendant “against consideration by the jury of irrelevant and prejudicial matters.” Id., at 567, 462 A.2d 1001. The court's ability to deter such conduct, the court explained, is essential to “ ‘the integrity of the judicial system.’ ” Id., at 572, 462 A.2d 1001. Accordingly, the court rejected the state's claim that it should prevail on appeal because the defendant had not been deprived of a fair trial by the improper remarks, and announced that “[a]n appellate court has a certain inherent supervisory authority over the administration of justice ... in the trial courts below that permits action to deter prosecutorial misconduct which is unduly offensive to the maintenance of a sound judicial process.” (Citation omitted; internal quotation marks omitted.) Id., at 570, 462 A.2d 1001. Because of the flagrant nature of the impropriety, the court reasoned, a mere rebuke without the concrete sanction of reversal would not deter counsel from repeating the offense. “Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.” (Internal quotation marks omitted.) Id., at 571, 462 A.2d 1001. Thus, because the conduct at issue would not constitutionally mandate a new trial, the court viewed its reliance on its supervisory authority as necessary under the extraordinary circumstances of the case. Id., at 571–72, 462 A.2d 1001.
Significantly, the court in Ubaldi established several prerequisites that justified the use of its new power. As I have already indicated, the court viewed its resort to the power to be driven by necessity. The court understood the case to implicate an important issue, nothing less than the integrity of the judicial system itself. Id., at 568, 462 A.2d 1001. In addition, the court emphasized that the case presented extraordinary circumstances that justified the invocation of its supervisory authority. The prosecutor's behavior was extreme—the court stressed the flagrant and deliberate nature of the impropriety; id., at 571, 462 A.2d 1001 ; which “undermine[d] the authority of the trial court's ruling....” Id., at 574, 462 A.2d 1001. And the circumstances of the case were sui generis, prompting the court to observe that it had never been presented with “a situation precisely like the one before us.” Id., at 566, 462 A.2d 1001. The court also recognized that its new authority “must not be undertaken without balancing other interests which may be involved.” Id., at 572, 462 A.2d 1001. For instance, “[t]he trauma which the victim of a heinous crime might undergo by being forced to relive a harrowing experience or the practical problems to be encountered in retrying a case several years after the event require a cautious approach.” Id. Because, however, there were no “highly significant competing social interests [to] outweigh the important judicial consideration of restraining serious prosecutorial misconduct,” the court deemed it an appropriate circumstance in which to exercise its supervisory authority. Id., at 573, 462 A.2d 1001.
The court made clear, therefore, that it viewed its new supervisory authority as a power only to be used in limited, exceptional circumstances, invoked only when its exercise is necessary and the interests involved are of the utmost importance, and when an evaluation of the interests involved reveals that the balance weighs in favor of invoking the authority. Applied properly, these considerations should yield the result that our supervisory power is reserved for the rare instance in which this court's reliance on it is appropriate.2 The court looked to federal authority to justify its claim to this new power. Given the “inherent” nature of the supervisory power, one would expect the federal decisions on which the court in Ubaldi relied to stem from some incipient authority—constitutional provisions, a very early decision of the United States Supreme Court, colonial law, or perhaps even English common law. Such expectations are doomed to disappoint. “Inherent” supervisory authority is a twentieth century concept. A. Barrett, “The Supervisory Power of the Supreme Court,” 106 Colum. L.Rev. 324, 387 (2006). Like the court in Ubaldi, when the United States Supreme Court first invoked its supervisory power in McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the court did so in response to governmental misconduct. Specifically, the facts of McNabb suggested that the petitioners had been held without bail and questioned for two days by law enforcement officials, without having been brought before a United States commissioner or a judge. Id., at 334–38, 63 S.Ct. 608. In analyzing the petitioners' claim that the foregoing facts warranted reversal of their convictions, the court eschewed any discussion of constitutional issues, deeming such discussion “unnecessary.” Id., at 340, 63 S.Ct. 608. Instead, the court announced that “[j]udicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.” Id. The court claimed in McNabb that it had been exercising this authority all along, on the basis that “this [c]ourt has, from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions.” Id., at 341, 63 S.Ct. 608.
None of the authorities cited by McNabb, however, purported to invoke the court's supervisory authority, nor did they provide support, either for the proposition that the court has the authority to engage in rule making by way of adjudication, or, as happened in McNabb, to apply a new rule to the case at hand. Instead, the cases cited in McNabb merely applied established legal principles to the facts of the particular case in order to determine the proper evidentiary rule. See, e.g., United States v. Gooding, 25 U.S. (12 Wheat.) 460, 469, 6 L.Ed. 693 (1827) (The court rejected the defendant's claim that the witness' testimony regarding certain admissions made by the defendant's agent was inadmissible, on the basis that “[i]n general the rules of evidence in criminal and civil cases are the same. Whatever the agent does, within the scope of his authority, binds his principal, and is deemed his act.”); United States v. Furlong, 18 U.S. (5 Wheat.) 184, 199, 5 L.Ed. 64 (1820) (rejecting proposition that only admissible testimony as to character of ships plundered by pirates was limited to documentary papers, and citing to various legal principles in support of conclusion, including fact that laws requiring such papers to be on vessels are not for purposes of criminal prosecution, but, rather, purposes of finance and commerce); see also S. Beale, “Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts,” 84 Colum. L.Rev. 1433, 1435 (1984) (“McNabb represented a substantial departure from the role played by the [United States] Supreme Court during the first 140 years of its existence. The [c]ourt's assertion of supervisory authority rested on the assumptions that the federal courts would follow federal procedure and that the [c]ourt was the appropriate body to exercise overall responsibility for developing and supervising the implementation of this procedure, particularly in criminal cases. Prior to 1930 neither of these assumptions was valid.”).3 Nor did the court in McNabb offer any constitutional or statutory authority to justify its claim to supervisory authority. The power, therefore, is untethered to any external authority. The trail of its common-law roots ends with McNabb, and it is not derived from any legislative or constitutional grant of power, but rather is a power that the court conferred upon itself.
For an excellent discussion of the lack of statutory and constitutional underpinnings for the “inherent supervisory authority” of the Supreme Court, see A. Barrett, supra, 106 Colum. L.Rev. at 344–52. Barrett reviews several theories of constitutional sources of supervisory authority, and explains why each is inconsistent with the historical context at the time that the constitution was ratified.
In Ubaldi, therefore, this court moored itself to a ship that had no anchor. Our supervisory authority is inherent only in the sense that it is a power that we ourselves created by stating that we have it. Its strength and authenticity stem only from the confidence with which we assert that we are entitled to use it. This recognition is critical toward understanding why we must exercise that power with great caution. I previously have observed that when this court exercises its supervisory authority, “our use of it is virtually unreviewable....” Lapointe v. Commissioner of Correction, supra, 316 Conn. at 455–56, 112 A.3d 1 (Espinosa, J., dissenting). The origin of our authority, which reveals that the power is a self-proclaimed one, explains why our use of the power is virtually unreviewable and can only be limited by this court. Only by doing so can we protect the predictability of the rule of law. We often have stated that our supervisory authority is not “a form of free-floating justice, untethered to legal principle....” (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 768, 91 A.3d 862 (2014), quoting State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 1997 ). That statement is only true as long as we hold ourselves to it. And we have not been doing that.
B
Evolution of the Doctrine
A review of the history of this court's reliance on its supervisory authority since Ubaldi reveals a gradual and steady increase in reliance on the authority for the first twenty-five years, then a sharp spike in the past five years, both in the frequency with which the court invokes the power and the breadth of its application. As an overview, since and including Ubaldi, this court has invoked its supervisory authority approximately forty-four times. In the 1980s, the court relied on its supervisory authority only four times. Between 1990 and 1999, the court used its supervisory power fourteen times; between 2000 and 2009, the court invoked its power twelve times. Astonishingly, in the past five years, the court already has relied on its supervisory authority, including the exercise by the majority in the present case, fourteen times, and we are not quite half-way through the decade. To put that number in perspective, approximately one third of this court's decisions invoking supervisory authority have been issued within the past five years.
Providing a definitive number of decisions in which we have invoked our supervisory power is complicated by several factors. Sometimes, for example, the majority decision has not expressly invoked the court's supervisory power, but a dissenting opinion nonetheless claims that the majority relied on it. See, e.g., State v. Couture, 194 Conn. 530, 568, 482 A.2d 300 (1984) (Healey, J., dissenting), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985). In other instances, a subsequent decision characterizes an earlier holding as having implicitly rested on the court's supervisory authority. See, e.g., State v. Elson, supra, 311 Conn. at 771 n. 31, 91 A.3d 862 (characterizing decision in State v. Cohane, 193 Conn. 474, 499–500, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984), as exercise of supervisory authority, despite fact that Cohane purported to discuss supervisory authority only in dicta); Tanzman v. Meurer, 309 Conn. 105, 116, 70 A.3d 13 (2013) (characterizing decision in Krafick v. Krafick, 234 Conn. 783, 804, 663 A.2d 365 (1995), as invocation of court's supervisory authority). Additionally, as I explain in footnote 2 of this concurring and dissenting opinion, this court increasingly has conflated its supervisory authority over the appellate process pursuant to Practice Book § 60–2 with the supervisory authority over the lower courts that it announced in Ubaldi. I have not included, in my summary of this court's invocation of its supervisory authority, the decisions in which the court invoked its supervisory authority over the appellate proceedings. I observe, however, that the line between the two types of authority is not always clear. For example, it could be argued that exercises of supervisory authority pursuant to Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 123, 84 A.3d 840, pertain to this court's supervision over the appellate proceedings, and, therefore, could be characterized as an exercise of authority pursuant to § 60–2. My view, however, is that, although reviewing issues pursuant to Blumberg Associates Worldwide, Inc., pertains to this court's supervision of the appellate proceedings, the exercise of authority goes beyond that which is contemplated by the rules of practice, and, therefore, I treat those decisions as an exercise of this court's supervisory authority announced in State v. Ubaldi, supra, 190 Conn. at 570, 462 A.2d 1001.
See State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989) ; State v. Smith, 207 Conn. 152, 162, 540 A.2d 679 (1988) ; State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987) ; State v. Ubaldi, supra, 190 Conn. at 570, 462 A.2d 1001.
See State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999) ; State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (1998), cert. denied, 528 U.S. 862, 120 S.Ct. 152, 145 L.Ed.2d 129 (1999) ; Ireland v. Ireland, 246 Conn. 413, 420–21, 717 A.2d 676 (1998) ; State v. Santiago, supra, 245 Conn. 301, 715 A.2d 1 ; State v. Coleman, 242 Conn. 523, 534, 700 A.2d 14 (1997) ; State v. Gould, 241 Conn. 1, 9, 695 A.2d 1022 (1997) ; State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997) ; State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) ; State v. Breton, 235 Conn. 206, 250, 663 A.2d 1026 (1995) ; State v. Jones, 234 Conn. 324, 346–47, 662 A.2d 1199 (1995) ; State v. Garcia, 233 Conn. 44, 91, 658 A.2d 947 (1995) ; Kaufman v. Zoning Commission, 232 Conn. 122, 149, 653 A.2d 798 (1995) ; Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 806, 646 A.2d 806 (1994) ; State v. Patterson, 230 Conn. 385, 390, 397–98, 400, 645 A.2d 535 (1994).
See State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989) ; State v. Smith, 207 Conn. 152, 162, 540 A.2d 679 (1988) ; State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987) ; State v. Ubaldi, supra, 190 Conn. at 570, 462 A.2d 1001.
See State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999) ; State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (1998), cert. denied, 528 U.S. 862, 120 S.Ct. 152, 145 L.Ed.2d 129 (1999) ; Ireland v. Ireland, 246 Conn. 413, 420–21, 717 A.2d 676 (1998) ; State v. Santiago, supra, 245 Conn. 301, 715 A.2d 1 ; State v. Coleman, 242 Conn. 523, 534, 700 A.2d 14 (1997) ; State v. Gould, 241 Conn. 1, 9, 695 A.2d 1022 (1997) ; State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997) ; State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) ; State v. Breton, 235 Conn. 206, 250, 663 A.2d 1026 (1995) ; State v. Jones, 234 Conn. 324, 346–47, 662 A.2d 1199 (1995) ; State v. Garcia, 233 Conn. 44, 91, 658 A.2d 947 (1995) ; Kaufman v. Zoning Commission, 232 Conn. 122, 149, 653 A.2d 798 (1995) ; Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 806, 646 A.2d 806 (1994) ; State v. Patterson, 230 Conn. 385, 390, 397–98, 400, 645 A.2d 535 (1994).
See State v. Arroyo, 292 Conn. 558, 575, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010) ; State v. Connor, 292 Conn. 483, 506, 973 A.2d 627 (2009) ; State v. Gore, 288 Conn. 770, 786–87, 955 A.2d 1 (2008) ; State v. Ledbetter, 275 Conn. 534, 547, 570, 575, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006) ; State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005) ; Duperry v. Solnit, 261 Conn. 309, 312, 326–27, 329, 803 A.2d 287 (2002) ; State v. O'Neil, 261 Conn. 49, 74, 801 A.2d 730 (2002) ; State v. Payne, 260 Conn. 446, 450–53, 797 A.2d 1088 (2002) ; State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) ; Roth v. Weston, 259 Conn. 202, 232, 789 A.2d 431 (2002) ; State v. Revelo, 256 Conn. 494, 502–504, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001) ; State v. Griffin, 253 Conn. 195, 209–10, 749 A.2d 1192 (2000).
In addition to today's decision, see Lapointe v. Commissioner of Correction, supra, 316 Conn. at 268–72, 112 A.3d 1 ; State v. Carrion, 313 Conn. 823, 851–53, 100 A.3d 361 (2014) ; State v. Elson, supra, 311 Conn. at 730, 777, 91 A.3d 862 ; Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. at 169, 84 A.3d 840 ; Kervick v. Silver Hill Hospital, 309 Conn. 688, 710, 72 A.3d 1044 (2013) ; Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013) ; State v. Medrano, 308 Conn. 604, 606–607, 631, 65 A.3d 503 (2013) ; State v. Polanco, 308 Conn. 242, 245, 248, 255, 260, 61 A.3d 1084 (2013) ; State v. Rose, 305 Conn. 594, 605–606, 46 A.3d 146 (2012) ; Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 283, 32 A.3d 318 (2011) ; State v. Pena, 301 Conn. 669, 683–84, 22 A.3d 611 (2011) ; In re Joseph W., 301 Conn. 245, 268, 21 A.3d 723 (2011) ; State v. Ouellette, 295 Conn. 173, 191, 989 A.2d 1048 (2010).
Although the drastically increased frequency of this court's reliance on supervisory authority suggests that there may be a problem, the numbers alone are not conclusive. For instance, it could be possible that within the past five years there simply have been many more extraordinary circumstances that have justified a more frequent invocation of our supervisory power. On the other hand, perhaps the court's decisions initially adhered to the limitations set forth in Ubaldi, and then gradually abandoned those limits. Although it may be argued that the latter is somewhat closer to the truth, it does not give a complete picture of the problem, which is a complex one. This court's supervisory decisions have never treated the limitations set forth in Ubaldi as binding in any sense of the word—from the beginning, we have sometimes adhered to those limits, but in the majority of cases, we have not given any indication that we have even considered them prior to invoking our authority.
Two principles might explain both the inconsistency in this court's consideration of the limits on its supervisory authority, as well as the substantial, recent increase in the exercise of that authority. First, and most fundamentally, despite the oft repeated refrain that this court's supervisory power is not a form of “free-floating justice”; State v. Santiago, supra, 245 Conn. at 333, 715 A.2d 1 ; it is the inherent nature of a self-conferred power that it lacks limits unless those are self-imposed. Second, after the court announced the existence of its supervisory authority in 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 exercise. With the passing of time, absent any consistent adherence to self-imposed limitations on the power, the court has become less and less capable of disciplining itself to view its supervisory authority as extraordinary. The court has become habituated to its use, and now treats its supervisory power as a panacea for any difficult problem confronting it.
It is neither possible, nor helpful, to discuss all forty-four decisions in illustrating the course that our law on supervisory authority has taken over the past thirty years. I restrict my discussion to some of the earlier decisions, general remarks regarding trends in the intervening years, and a closer look at a few recent decisions. I also have limited my discussion to the two types of exercise of supervisory authority that are at issue in the present case: applying a newly announced rule to reverse the judgment that is the subject of the appeal; and announcing a new rule with prospective application. See State v. Elson, supra, 311 Conn. at 768–71 n. 30, 91 A.3d 862 (collecting cases). I first consider the evolution of our supervisory power in cases in which we have applied a new rule to the pending appeal, then turn to decisions that have announced a new rule that is to be applied prospectively. I conclude that both lines of cases demonstrate a lack of focus on the importance of self-restraint in invoking our supervisory powers.
In addition to those two categories, there are two decisions in which we have relied on our authority to deter prosecutorial misconduct. See State v. Payne, 260 Conn. 446, 450–53, 797 A.2d 1088 (2002) ; State v. Ubaldi, supra, 190 Conn. at 570–75, 462 A.2d 1001. Finally, in a small number of cases, we have relied on our supervisory authority to address claims that would otherwise be unreviewable. See, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. at 169, 84 A.3d 840 ; State v. Revelo, 256 Conn. 494, 503, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001) ; State v. Smith, 207 Conn. 152, 162–63, 540 A.2d 679 (1988) ; State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987).
After Ubaldi, the court did not rely on its supervisory authority to reverse the judgment at issue in an appeal for twelve years. Viewed in context, State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995), represented a modest exercise of the court's supervisory authority, and appears to have been mindful of the guidelines that the court established in Ubaldi. The court resolved the appeal on the merits, applying the laws of severance and joinder, together with principles of statutory construction, to hold that, when a defendant is charged with capital felony in violation of General Statutes (Rev. to 1995) § 53a–54b (3), he is entitled to be tried in a bifurcated proceeding. Id., at 343–44, 662 A.2d 1199. The standard of review of the trial court's denial of the defendant's motion to bifurcate was whether the trial court abused its discretion and the court was loath to reverse the judgment on the merits. Id., at 343, 662 A.2d 1199. The court explained: “We do not demand or necessarily expect our trial courts to create new roads of practice and procedure never before traveled in our jurisdiction.” Id., at 346, 662 A.2d 1199. Accordingly, the court relied on its supervisory authority to reverse the judgment. Id., at 346–47, 662 A.2d 1199. A reasonable way to read Jones is that the court viewed the exercise of supervisory authority as necessary because the alternative would have been absurd—to hold that the trial court abused its discretion by failing to adhere to a rule that had not yet been articulated by this court. In addition to finding necessity, the court also relied on extraordinary circumstances presented in Jones, citing to the “high risk of prejudice to the defendant on the present record....” Id., at 346, 662 A.2d 1199. The court also considered the countervailing interests, concluding that the high risk of prejudice, at least in Jones, outweighed the state's interest in judicial economy. Id.
The court's very next exercise of its supervisory authority in which it applied a new rule to a pending appeal, however, evidenced none of the restraint shown in Jones. In State v. Coleman, 242 Conn. 523, 700 A.2d 14 (1997), not only did the court fail to offer any explanation as to why it was appropriate to resolve the case on its supervisory authority, the court expressly stated that it did not need to resolve the state constitutional issue raised by the defendant because the issue could be resolved by invoking the court's supervisory authority. Id., at 534, 700 A.2d 14. Coleman, accordingly, presented a radical departure from the principles espoused in Ubaldi and adhered to carefully in Jones —without even indicating any awareness that the court was departing from anything at all. What makes the majority's exercise of the court's supervisory power even more astonishing is that the concurrence in Coleman expressly stated that the court's supervisory authority should be reserved “for addressing serious concerns that affect the integrity of the defendant's trial in particular and the perceived fairness of the judicial system as a whole.” Id., at 550, 700 A.2d 14 (Norcott, J., concurring).
Subsequent decisions applying new rules to pending appeals pursuant to our supervisory authority have seemed to follow Coleman more than Ubaldi and Jones. One example is State v. Santiago, supra, 245 Conn. at 331–32, 715 A.2d 1, in which the court concluded that the trial court did not abuse its discretion in finding that allegations of a juror's racial bias lacked credibility, following a preliminary inquiry into the allegations as required by State v. Brown, 235 Conn. 502, 530–31, 668 A.2d 1288 (1995). Notwithstanding that conclusion, the court relied on its supervisory authority to reverse the judgment of the trial court, and to announce a rule requiring that, when there have been allegations that a juror has made racial epithets, the trial court must conduct a more extensive inquiry than required by State v. Brown, supra, at 530–31, 668 A.2d 1288. State v. Santiago, supra, at 340, 715 A.2d 1.
Although the court properly placed great emphasis on the importance of the issue implicated by the appeal, the court did not claim, and indeed it could not, that extraordinary circumstances justified reversal. The trial court expressly had found that the witness who had alleged the misconduct was biased—prior to making her allegations, she had sent the court a letter indicating that she regretted her vote to convict the defendant and questioned his guilt, and also opined that, even if he was guilty, his act of killing a drug dealer had saved many from “ ‘the heartbreak of drug abuse....’ ” Id., at 324 n. 14, 715 A.2d 1. There were also serious inconsistencies in her allegations, and when questioned by the trial court during the Brown inquiry, she was not able to offer any explanation for those inconsistencies. Id., at 326–27 n. 16, 715 A.2d 1. By apparently second-guessing the trial court's credibility finding, the majority in Santiago seemingly usurped the properly exercised discretion of the court and substituted its own judgment. The concurring and dissenting opinion accurately characterized the court's exercise of supervisory authority in the case to be irreconcilable with the “long settled distinction between the unique roles of appellate and trial courts.” Id., at 342, 715 A.2d 1 Callahan, C.J., concurring in part and dissenting in part).
Another, more recent example follows the Coleman model quite closely. In State v. Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013), the court stated that it did not need to reach the constitutional claim because the appeal could be resolved by invoking the court's supervisory authority. What is particularly troubling about the exercise of supervisory authority in Polanco is the suggestion by the court that it was not resolving the claim on the constitutional issue raised by the defendant because doing so would have been difficult. Specifically, in justifying its reliance on its supervisory authority, the court stated: “We find Rutledge [v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) ] to be less than a model of clarity as to what extent its holding was constitutionally based rather than jurisprudentially based or a matter of statutory construction.” State v. Polanco, supra, at 256, 61 A.3d 1084. A fair reading of Polanco is that the court exercised its supervisory authority in order to avoid deciding a tricky issue.
The last case that I discuss in this part is State v. Elson, supra, 311 Conn. 726, 91 A.3d 862. I recognize that I participated in the panel in Elson, and I joined the unanimous decision. I have reconsidered, and now believe that the court improperly exercised its supervisory authority in that case to reverse the judgment of the Appellate Court with respect to the defendant's sentencing. In doing so, this court substituted its judgment for the properly exercised discretion of the trial court. Elson involved the trial court's remarks, during the defendant's sentencing hearing, that: “We've all heard the defendant's apology. I don't know how sincere it is, but it is certainly unfortunate that it comes so late in the process. If the defendant had been truly apologetic, he wouldn't have put the victim through the trial. To a large extent, it seems to me that the defendant's apology represents thinking of himself rather than the victim.” (Emphasis omitted; internal quotation marks omitted.) Id., at 733, 91 A.3d 862. The court in Elson concluded that the defendant had failed to demonstrate that, viewed in the totality of the circumstances, the trial judge's remark demonstrated that the judge had augmented the defendant's sentence in retaliation for the exercise of his right to trial. Id., at 762, 91 A.3d 862. The record demonstrated that the trial court considered many factors in sentencing the defendant, including the severity of the assault that gave rise to the defendant's conviction, the probation report's recommendation of a lengthy term of incarceration, the defendant's lack of truthfulness, and the fact that the attack was part of a pattern of behavior that justified the court's conclusion that the defendant was a dangerous person from whom the victim and society deserved protection. Id., at 761–62, 91 A.3d 862.
Despite acknowledging all of this, and also concluding that the trial court considered the defendant's expression of remorse relevant only to whether the defendant was entitled to leniency; id., at 762, 91 A.3d 862 ; the court in Elson issued a prophylactic rule precluding trial courts from commenting negatively on the defendant's election to proceed to trial during sentencing; id., at 777, 91 A.3d 862 ; and remanded the case for a new sentencing hearing, concluding that the trial court's remarks “created an appearance of impropriety....” Id., at 784, 91 A.3d 862. Certainly, if one ignored the context of the remarks, and evaluated them in isolation, the remarks might have that effect. But we have specifically rejected a test that would evaluate a trial court's sentencing remarks in isolation, instead adopting the totality of the circumstances test. State v. Kelly, 256 Conn. 23, 82–83, 770 A.2d 908 (2001). Viewed in the totality of the circumstances, therefore, the remarks do not create the appearance of impropriety at all. One is left with the impression that the court in Elson was motivated to use its supervisory authority to accomplish what the law precluded, merely because the trial court's awkwardly worded comment, if viewed in isolation, could be misconstrued to mean that the court was penalizing the defendant for exercising his right to a jury trial. It is difficult to see how the theoretical possibility that a trial judge's sentencing remarks, if construed in a manner that is expressly prohibited by our law, could give rise to the conclusion that the court violated a defendant's rights, justifies the invocation of this court's supervisory authority.
The progression in our decisions that have exercised the court's supervisory authority to apply a newly announced rule to the case on appeal is therefore clear. The court has consistently and steadily moved toward more extreme exercises of the power, and has abandoned the guidelines enunciated in Ubaldi. As I will explain in part II of this concurring and dissenting opinion, the present case fits this pattern precisely.
Our decisions that have announced new rules prospectively follow a somewhat similar pattern. The court first relied on its supervisory power to impose a new rule on the trial courts in State v. Holloway, 209 Conn. 636, 645–46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989), a case in which the defendant claimed that the state had excluded a potential juror on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The court restricted its exercise of supervisory authority to announcing the new rule prospectively, resolving the merits of the appeal on constitutional principles. Specifically, the court affirmed the defendant's conviction on the basis of its conclusion that he had failed to establish that the state's use of a peremptory challenge was racially motivated. State v. Holloway, supra, at 644–45, 553 A.2d 166. After resolving the merits, however, the court stated that it was appropriate to use its supervisory authority to announce a new rule for future cases because the issue of purposeful racial discrimination “is a matter of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. ” (Emphasis added; internal quotation marks omitted.) Id., at 645, 553 A.2d 166. Put another way, the court stated, the invocation of its authority was justified because “this issue is of such vital importance to our real and perceived adherence to the rule of law....” Id. Going forward, the court stated, when a defendant claimed pursuant to Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, that the state's exercise of a peremptory challenge to exclude a potential juror was based on purposeful racial discrimination, the state would be obligated to provide a race neutral explanation for the challenge without the requirement that the defendant make the prima facie showing required pursuant to Batson. State v. Holloway, supra, at 645–46 and 646 n. 4, 553 A.2d 166.
The decision in Holloway did not rest the court's exercise of supervisory authority on any exceptional circumstances presented in the case. Nor could the court have done so, given the different use it made of its authority in Holloway. That is, because the court deemed its authority appropriately limited to announcing a prospective rule, it could not justify the exercise of supervisory authority on the exceptional circumstances of the case—if the circumstances were that exceptional, the court would have relied on its authority to reverse the judgment. Nor did the court offer any explanation as to why the rule that it announced in Holloway was necessary in order to ensure the perceived fairness of the judicial system, or why it was necessary to announce the rule by way of adjudication rather than allowing the proposed rule to go to the Rules Committee of the Superior Court, a process that would have ensured transparency and allowed the participation of stakeholders and the public.The court's entire focus in Holloway was on the importance of the interest involved—the prevention of purposeful racial discrimination in seating a jury for a criminal trial—to the integrity of the judicial system. In fact, without expressly stating so, Holloway established slightly different parameters for the court's exercise of supervisory authority to announce a rule prospectively. That is, the relevant inquiry when the court determines whether to announce a new rule is whether the issue is of vital importance to the perception that the judicial system is fair. It makes sense to apply a different standard when determining whether to announce a rule prospectively—inquiries regarding exceptional circumstances presented in the case at issue are not particularly helpful in determining whether to apply a new rule going forward. A focus on the nature of the issue implicated by the proposed rule, and its importance to the integrity of the judicial system, is more appropriate. A fair question to ask, however, is whether that broad guideline is sufficient to assist the court in exercising any restraint in using its supervisory power to announce new rules. Every criminal trial involves issues that are central to the perceived fairness of the judicial system—does this mean that the court is free to announce a new rule restricting the discretion of trial judges in criminal trials whenever the court believes that it would be a “good idea” to do so?
The court's next exercise of its supervisory authority provides a helpful additional guiding principle for the invocation of the court's supervisory power. In State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994), the court first resolved the merits of the appeal under the applicable constitutional and legal principles. The court concluded that the defendant had waived his claim that the trial judge had improperly been absent during voir dire. Id., at 396–97, 645 A.2d 535. The court then stated that it would exercise its supervisory authority to require trial judges “to remain on the bench throughout the voir dire of a criminal trial.” Id., at 397, 645 A.2d 535. The court began its explanation as to why supervisory authority was appropriate in the case by emphasizing generally the high stakes at issue in a criminal trial. Id., at 398, 645 A.2d 535. The court also explained the centrality of its new rule to safeguarding the interests implicated by the important issue: “The uninterrupted supervision of the proceedings by the judicial authority, mindful of everything that transpires in the courtroom, is an important part of the appearance that justice is being done in a criminal case.” Id. Finally, although, like Holloway, the court engaged in no discussion of the necessity of resorting to the court's supervisory authority, it did weigh the various interests involved, and ultimately determined that the balance favored the exercise of the authority. Id., at 400, 645 A.2d 535.
Patterson provides helpful guidance for the appropriate exercise of our supervisory authority to announce a new rule prospectively. In subsequent decisions, if the court had followed Patterson as a model, it would have limited its invocation of supervisory authority to announce a prophylactic rule to those instances when the proposed rule was central to safeguarding the interests implicated by an issue of vital importance to the perceived fairness of the judicial system, after considering any countervailing interests and concluding that the balance weighed in favor of exercising the court's authority.
Because this court's decisions routinely announce rules prospectively pursuant to our supervisory authority with little or no explanation as to why reliance on the power is appropriate, there is no evidence that the court has followed the principles adhered to in Patterson, or that it was aware of any need to apply principles consistently when invoking its supervisory power to announce a new rule. For example, within one month after the decision in Patterson was issued, the court's decision in Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 646 A.2d 806 (1994), did not discuss any limits on the exercise of the power. In Bennett, in the context of an uninsured motorist claim appeal that challenged the trial court's order of remittitur, this court relied on its supervisory authority to announce a prospective rule requiring insurers to “raise issues of policy limitation, even when undisputed, by special defense.” Id., at 806, 646 A.2d 806. The opinion offered no justification whatsoever for the reliance on the authority, merely stating vaguely that it exercised its authority “[i]n view of the issues raised by this appeal....” Id.The court's subsequent decisions announcing new rules that apply prospectively have taken a path that is largely rudderless, so lacking in direction that it is difficult to characterize them with any conciseness. In some cases, the court has adhered to the principle that our power to announce prospective rules should be reserved for issues that are of vital importance to the perceived fairness of the judicial system. See, e.g., State v. Brown, supra, 235 Conn. at 525–28, 668 A.2d 1288 (requiring trial courts to conduct preliminary inquiry into facially credible allegations of juror misconduct in criminal case, and justifying invocation of supervisory power on importance of right to trial by jury in criminal case and responsibility of trial judge to ensure that criminal defendant receives fair trial). In other instances, the court appears to have relied on the “disturbing” facts of the particular case to announce the prophylactic rule. See, e.g., State v. Ouellette, 295 Conn. 173, 189–92, 989 A.2d 1048 (2010) (relying on “disturbing” discrepancies between state's representations at trial regarding deal offered to state's witness and state's conduct during witness' sentencing hearing, to invoke supervisory authority to require sentencing courts to inquire regarding nature of plea agreements when state attests to cooperation, and representations made about agreements during trials at which witness testified).
In State v. Elson, supra, 311 Conn. at 770 n. 30, 91 A.3d 862, this court incorrectly categorized the decision in State v. Brown, supra, 235 Conn. 502, 668 A.2d 1288, as one in which we applied a newly announced rule to reverse the judgment at issue in the appeal. Actually, in Brown, the court reversed the judgment on the basis of its conclusion that the trial court abused its discretion in failing to conduct a sua sponte preliminary inquiry.Id., at 525–26, 668 A.2d 1288. The court reserved its reliance on its supervisory authority for announcing the new rule. As in other cases in which the court had remanded a case on other grounds at the same time that it adopted a new rule, however, the court directed that on remand to the trial court, the new rule must be applied. Id., at 532, 668 A.2d 1288 ; see, e.g., State v. Breton, 235 Conn. 206, 249–50, 663 A.2d 1026 (1995) (in decision reversing death sentence on other grounds, announcing new rule requiring special verdict form in death penalty cases, and instructing that new rule should be applied on remand).
Many decisions have offered no explanation as to why it is appropriate to rely on the court's supervisory authority. See, e.g., Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 283, 32 A.3d 318 (2011) (relying on supervisory authority to require trial judges to expressly set forth in memorandum of decision “clear, definite and satisfactory” reasons to justify remittitur [internal quotation marks omitted] ). Other decisions have vaguely alluded to broad principles, without providing a more specific explanation as to why it was appropriate to invoke our supervisory power in the given context. See, e.g., Duperry v. Solnit, 261 Conn. 309, 326, 329, 803 A.2d 287 (2002) (requiring trial court to canvass defendant, when defendant has entered plea of not guilty by reason of mental disease or defect and state agrees with defendant's claim, explaining that invocation of supervisory power is “appropriate, in light of concerns of fundamental fairness”).
Among the decisions that have announced new rules, those that have announced prospective changes to jury instructions appear to form a particular subset, in which the court routinely and consistently has required little to no justification for the exercise of supervisory authority. See, e.g., State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) (directing trial courts “to refrain from instructing jurors that one who uses a deadly
weapon on the vital part of another will be deemed to have intended the probable result of that act and that from such a circumstance the intent to kill properly may be inferred” [internal quotation marks omitted] ); State v. Griffin, 253 Conn. 195, 205, 209–10, 749 A.2d 1192 (2000) (barring use of charge providing that, “[i]f two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, you must adopt the one of innocence”). Although one certainly can imagine reasons why a lower barrier may be appropriate in this context, the court has never offered any indication that it has intentionally adhered to a different standard when announcing rules governing jury instructions.
Only recently, in State v. Carrion, 313 Conn. 823, 100 A.3d 361 (2014), the court expressly articulated a new standard for the invocation of our supervisory authority to announce new rules. According to the decision in Carrion, the only requirement is that the court deem such exercise of its authority to be “appropriate” or, in other words, dictated by “prudence and good sense....” Id., at 852, 100 A.3d 361. The court specifically rejected the suggestion that supervisory authority may be used to announce a new rule only when its use is rendered “necessary.” Id., at 851, 100 A.3d 361. Additionally, the court stated that in this context, “there is no need for this court to justify the use of extraordinary measures prior to exercising its supervisory authority.” Id., at 852, 100 A.3d 361. As support, the court looked primarily to decisions in which we have announced prospective changes to jury instructions. Id., at 852–53, 100 A.3d 361. As I already have explained, however, those decisions are not representative of the entirety of this court's decisions announcing new rules prospectively. The standard announced in Carrion, if followed by the court, would further threaten the predictability that is essential to the rule of law, because it sets the bar too low. When we first invoked our supervisory authority in Ubaldi, we made it clear that the power should be used in the rare instance. If we rely on mere prudence and good sense as the trigger, we have abandoned the guidelines that we set for ourselves thirty years ago.
The history of the court's exercise of supervisory authority, both in announcing new rules to be applied prospectively and in announcing new rules to be applied to the pending appeal, demonstrates that the court has not engaged in any meaningful consideration of what the appropriate guidelines governing our exercise of that power should be. The result is the current explosion of decisions by this court invoking the exercise of its supervisory authority, without any consensus as to appropriate guidelines for restraint. The history of this court's decisions that invoked its supervisory authority supports the conclusion that this court should be guided in its exercise of that authority by State v. Patterson, supra, 230 Conn. at 397–400, 645 A.2d 535, and State v. Ubaldi, supra, 190 Conn. at 572–73, 462 A.2d 1001. That is, the court should announce new rules with prospective application only when the proposed rule is central to safeguarding the interests implicated by an issue of vital importance to the perceived fairness of the judicial system, after considering any countervailing interests and concluding that the balance weighed in favor of exercising the court's authority. State v. Patterson, supra, at 397–400, 645 A.2d 535. As for the application of new rules to pending appeals, the court should apply a newly announced rule to the pending appeal only when its exercise is necessary because traditional protections are inadequate, when the interests involved are of the utmost importance to the perceived fairness of the judicial system as a whole, when retroactive application of the rule is justified by exceptional circumstances presented in the pending case, and an evaluation of the interests involved reveals that the balance weighs in favor of invoking the authority. State v. Ubaldi, supra, at 572–73, 462 A.2d 1001.II
APPLICATION TO THE PRESENT CASE
Applying the standard established in State v. Ubaldi, supra, 190 Conn. at 572–73, 462 A.2d 1001, to the present case leads to the conclusion that this court should decline to exercise its supervisory authority. Although the interests involved are of the utmost importance, there are no exceptional circumstances in the present case, and traditional protections were adequate to safeguard the respondent's rights. Additionally, the countervailing interests involved in the present case are powerful—the interest that the children have in a permanent placement without any additional delay counsels against invocation of the court's supervisory authority. Accordingly, the exercise of that authority in the present case is inappropriate.
It is significant that in the present case the majority's unequivocal conclusion, that the respondent's right to due process was not violated by the trial court's failure to personally canvass her before taking the case on the papers, is grounded on a logical, objective constitutional analysis. The majority properly weighs the three factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and concludes that due process does not require the trial court to conduct a personal canvass prior to accepting a parent's waiver of the right to present evidence and testimony in opposition to a termination petition, and to object to the admission of exhibits in support of the termination petition. The United States Supreme Court crafted the three-pronged Mathews test in light of its recognition that “due process is flexible and calls for such procedural protections as the particular situation demands.” (Internal quotation marks omitted.) Id., at 334, 96 S.Ct. 893. Accordingly, the court's test was formulated to allow courts to consider the particular circumstances presented in a case in determining the process that is constitutionally due under those circumstances. The rule is designed to adapt to individual circumstances. The three Mathews factors are: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., at 335, 96 S.Ct. 893.
The record in the present case reveals that the majority properly evaluated the three Mathews factors in reaching its conclusion that the respondent received all of the process that was constitutionally due to her. The process afforded to the respondent in the present case ensured that, when she waived her right to proceed to trial and to contest the exhibits presented by the petitioner, she did so knowingly, intelligently and voluntarily. In fact, that decision is perfectly consistent with the strategy employed throughout the extensive and lengthy course of proceedings provided to the respondent. Additionally, beside the lack of any allegation that her counsel was ineffective, there is no indication in the record that at any point in time the respondent experienced any difficulty communicating with counsel or expressed any dissatisfaction with her representation.
The majority accurately describes the importance of the private interest at issue in the present case. This court has recognized that parents have a fundamental right to rear their children. Roth v. Weston, 259 Conn. 202, 213, 789 A.2d 431 (2002). The United States Supreme Court has stated that “[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). That court has emphasized that even when familial “relationships are strained,” the importance of the parents' fundamental right to raise their children is not diminished: “If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the [s]tate moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, 455 U.S. 745, 753–54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
Although I agree with the majority that the second Mathews factor, which requires the court to consider “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. 893 ; favors the petitioner, I observe that the majority only generally identifies the current procedural protections in place. Because I believe that the extensive nature of the existing procedural protections available to a parent during the termination process is relevant to the question of whether it is necessary in the present case to exercise our supervisory authority, I discuss those existing protections in greater detail than does the majority.
As happens in the vast majority of termination cases, the route that the present case followed prior to the termination of the respondent's parental rights was not a quick one. Along the way, the respondent participated in numerous proceedings designed to achieve a balance between the respondent's fundamental right to parent her children and society's duty to protect the best interests of children. It is significant that the two years during which the respondent was involved in the proceedings to determine whether she would retain her right to parent her two children did not mark the first time that she traveled this route. In 2007, with her consent, her parental rights with respect to her older three children already had been terminated. Those children subsequently were adopted by the their maternal great-grandmother.
The record reflects that on September 21, 2011, the petitioner invoked a ninety-six hour hold on behalf of the children, Yasiel R. and Sky R., and removed them from the respondent's care, on the basis of a petition of neglect. See General Statutes § 17a–101g (e) and (f). Immediately upon the removal of the children from the respondent's custody, the procedures designed to protect her rights were triggered. On the day that the children were removed, Rosiris Espejo, the social worker for the department who was assigned to the case, provided the respondent with a copy of the petitioner's ninety-six hour hold. Espejo attempted to discuss other relative resources with whom the children could be placed, but the respondent refused to speak to her.
On September 23, 2011, the respondent was served with copies of the notice of temporary custody and order to appear, the petitioner's motion seeking an ex parte order of temporary custody pursuant to § 17a–101g (e) and (f) (ninety-six hour hold), Espejo's supporting affidavit, the neglect petition and the summary of facts substantiating the neglect petition, and specific steps. The notice of temporary custody and order to appear informed the respondent of the basis for the children's removal, and notified her of the date of the preliminary hearing on the neglect petition and motion for temporary custody. The notice also informed the respondent that she would have the opportunity to present her position to the court, that she had the right to remain silent, and the right to counsel, which would be appointed for her if she could not afford an attorney.
The neglect petition represented that the children were neglected on the basis that they were “being denied proper care and attention, physically, educationally, emotionally or morally,” and that they were being “permitted to live under conditions, circumstances or associations injurious to their well-being.” The petition informed the respondent that a hearing would be held on the petition, and it provided a date, time and place of the hearing. It also informed the respondent that if she failed to appear, the court could find the children neglected, uncared-for or abused. The preliminary specific steps provided to the respondent in order for her to regain custody of the children required her to keep all appointments set by or with the department, to successfully complete a parenting program, to accept in-home services referred by the department and to cooperate with the service providers, to submit to a substance abuse evaluation and follow recommended treatment, to submit to random drug testing, to refrain from using illegal drugs or abusing alcohol or medicine, to cooperate with court-ordered evaluations or testing, to sign releases allowing the department to communicate with service providers and with the children's attorney or guardian ad litem, to obtain or maintain adequate housing and a legal income, to notify the department of changes in the make-up of the household, to not become involved with the criminal justice system, and to take care of the children's physical, educational, medical or emotional needs. The specific steps provided for the respondent to have supervised visitation with the children.
On September 27, 2011, the court held a hearing to determine whether to order temporary custody to the petitioner. At that hearing, the court appointed counsel for the respondent. The court found that the respondent had been served with notice of the petition of neglect, and had been advised of her rights. The court canvassed the respondent, who agreed to sustain the order committing the children to the temporary custody of the petitioner, and indicated that she wished to participate in the Recovery Specialist Voluntary Program, a program for parents for whom substance abuse is identified as one of the factors in the removal of their children. The court issued an order granting temporary custody to the petitioner and allowing the respondent supervised visitation.
The hearing on the petition for neglect took place on February 8, 2012, at which time the respondent, who was represented by counsel, entered a plea of nolo contendere. In her plea, the respondent alleged that the neglect petition had been read to her and that she had been advised of her rights, including her rights to a trial, to an attorney, and to disagree with any claims in the petition. She further stated that she voluntarily exercised her right not to contest the claims in the petition, and elected to exercise her right to remain silent without any admission of responsibility under the petition as to its allegation that the children had been permitted by the respondent to live under conditions, circumstances or associations injurious to their wellbeing. The court accepted the respondent's plea and the children were adjudicated neglected and committed to the custody and care of the petitioner. At that time, the court provided specific steps to the respondent that were substantially similar to the initial specific steps that had been provided to her on September 23, 2011. An additional specific step provided to the respondent was that she was required to take part in individual counseling with Generations Behavioral Health. The court also ordered the petitioner to file a motion for review of a permanency plan.On June 6, 2012, the petitioner filed a motion to review the permanency plan, which had a stated goal of the termination of the parental rights of both the respondent and the father, and the adoption of the children. The respondent did not file an objection to the motion, and did not oppose it at the hearing on the motion on September 5, 2012. At that hearing, the court approved the permanency plan goal of termination of parental rights and adoption.
The father filed an objection to the proposed permanency plan, which he subsequently withdrew.
On November 21, 2012, the petitioner filed this petition for termination of the respondent's parental rights, and, on May 23, 2013, filed another motion to review the permanency plan, which was again approved by the court. The respondent filed an objection to the permanency plan on June 19, 2013, claiming that she was complying with the specific steps ordered by the court, and arguing that termination of her parental rights was not in the best interests of the children. She subsequently withdrew her objection, and moved for an individual psychological evaluation, which request was approved by the court.
The hearing on the petitioner's motion for termination of parental rights was set for November 12, 2013. The original summons that was sent to the respondent for the hearing on the termination of parental rights explained the effect of a termination decree: “The termination decree will be the complete end of the legal relationship between the child ... and the person(s) whose parental rights have been terminated so that the child ... is free for adoption.... The parent will have no legal right or responsibility to care for the child ... or make any decisions on behalf of the child ... to obtain the child's ... birth certificate or any state or federal benefit. The parent will have no legal responsibility to support or to pay for the child's ... expenses after the effective date of the termination. The child ... will be legally free for adoption after the termination and the parent will have no right to notice of the adoption proceedings nor any right to participate in the proceedings.”
The extensive process provided to the respondent demonstrates that she was notified of her rights at every opportunity, and given every protection under the law. Given the repeated notice provided to the respondent of the effect of a judgment of termination, the respondent's active participation in the proceedings, and the fact that she was represented by counsel, I agree with the majority that the record does not demonstrate that the existing procedures create a risk of an erroneous deprivation of parental rights. Additionally, because the record demonstrates that the respondent was repeatedly advised of her rights, it would be unreasonable to conclude that a personal canvass by the trial court likely would have reduced the risk of erroneous deprivation of her rights. The second factor of the Mathews test is determinative in the present case—the respondent received the process that she was due. See Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. 893.
I agree with the majority that the third Mathews factor, which considers the government's interest in the proceeding and the fiscal and administrative burdens attendant to increasing procedural requirements, is neutral. See Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. 893.
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Applying the guidelines that this court established in State v. Ubaldi, supra, 190 Conn. at 572–73, 462 A.2d 1001, I conclude that the only factor supporting the exercise of our supervisory authority is that the issue involved is an important one. None of the remaining factors, however, support the invocation of the court's supervisory authority. Under these facts, it is not surprising that the majority fails to rest its decision to exercise its supervisory authority to reverse the Appellate Court's judgment on any extraordinary circumstances presented in the case—there are none. There is no indication that the respondent was deprived of her rights, or that the termination of her parental rights involved any fundamental unfairness. There is also no indication that it is in any way necessary to resort to the court's supervisory authority. In fact, the record suggests precisely the opposite. Traditional remedies provided the respondent with adequate protection. It is also quite telling that the majority fails to give any consideration to the countervailing interests in the present case, which are particularly compelling and counsel against reversing the judgment. The interest of the children in being permanently placed without additional delay clearly outweighs the majority's theoretical concerns regarding fairness to the respondent. Viewed under the guidelines that this court first set forth in Ubaldi, this appeal presents a particularly inappropriate circumstance in which to exercise the court's authority to reverse the judgment.
Finally, even if the majority had restricted its supervisory authority to an announcement of a new prospective rule, that exercise of authority would still be improper under the circumstances of this case. As I explained earlier in this concurring and dissenting opinion, the court should exercise its supervisory authority to announce a new rule only when the proposed rule is central to safeguarding the interests implicated by an issue of vital importance to the perceived fairness of the judicial system, after considering any countervailing interests and concluding that the balance weighed in favor of exercising the court's authority. See State v. Patterson, supra, 230 Conn. 385, 645 A.2d 535. Although the issue is important, there is no indication that the majority's proposed rule is central to safeguarding the interests implicated by the issue or that the exercise is appropriate when weighed against countervailing interests. Specifically, there has been no showing that parents who are represented by counsel in termination proceedings are likely to unknowingly, unintelligently or involuntarily waive their right to trial or their right to contest exhibits offered by the department in favor of termination. As the present case demonstrates, the proceedings available to parents are designed to protect their right to retain custody of their children and to inform them of the services and proceedings available to them to enable them to do so. Without some indication in the record of conflict, lack of communication or dissatisfaction with the representation provided by counsel to parents in termination proceedings, there is simply no need for a personal canvass. The issue of whether to require a canvass properly should have been left to the Rules Committee of the Superior Court. The majority's rule, therefore, is unnecessary, and improperly substitutes its judgment for the discretion of trial judges.
Although I concur with and join parts I and II of the majority opinion, for the foregoing reasons, I respectfully dissent from part III of that opinion.