In re Yasiel R., SC19372

CourtSupreme Court of Connecticut
Decision Date18 August 2015
Docket NumberSC19372

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 therespondent 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., 268-72; 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. 268-72; Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 144-66. 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.




AOrigin of the Authority

The origin of this court's supervisory authority tells the entire story—our power is self-conferred, unan-chored, 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., 560. 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., 561. The court sustained the defendant's objection to the question and instructed the jury to disregard it. Id., 561-62 n.2. The state subsequently attempted to call Jamele as a witness. Id., 564. During the state's proffer to the court outside the presence of the jury, however, Jamele successfully invoked his fifth amendment privilege against...

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