Practice
Book § 60-2 sets forth the kind of supervisory control that
the Appellate Court has over its cases. Section 60-2 provides
in relevant part: "The supervision and control of the
proceedings shall be in the court having appellate
jurisdiction from the time the appellate matter is filed, or
earlier, if appropriate, and, except as otherwise provided in
these rules, any motion the purpose of which is to complete
or perfect the record of the proceedings below for
presentation on appeal shall be made to the court in which
the appeal is pending. The court may, on its own motion or
upon motion of any party, modify or vacate any order made by
the trial court, or a judge thereof, in relation to the
prosecution of an appeal. It may also, for example, on its
own motion or upon motion of any party: (1) order a judge to
take any action necessary to complete the trial court record
for the proper presentation of the appeal; (2) consider any
matter in the record of the proceedings below necessary for
the review of the issues presented by any appeal, regardless
of whether the matter has been included in the appendix of
any party; (3) order improper matter stricken from a brief or
appendix; [or] ... (8) remand any pending matter to the trial
court for the resolution of factual issues where necessary
..."
Practice
Book § 60-5 states in relevant part that "[i]t is the
responsibility of the appellant to provide an adequate record
for review as provided in Section 61-10," and indicates
that the appellate court may, if it "deems it necessary
to the proper disposition of the cause ... order a further
articulation of the basis of the trial court’s factual
findings or decision." Practice Book § 60-5.
Practice
Book § 61-10 reinforces the rule that it is the
responsibility of the appellant to ensure that the Appellate
Court has a complete record for its review, and posits
circumstances in which the Appellate Court may order
articulation. Specifically, this section states in relevant
part that it "is the responsibility of the appellant to
provide an adequate record for review. The appellant shall
determine whether the entire record is complete, correct and
otherwise perfected for presentation on appeal."
Practice Book § 61-10(a). This section further explains in
relevant part that ii the Appellate Court "determines
that articulation of the trial court decision is appropriate
it may, pursuant to Section 60-5, order articulation by the
trial court within a specified time period." Practice
Book § 61-10(b).
Practice Book § 66-5 governs motions for articulation and
rectification filed by parties to the appeal. It provides in
relevant part: "A motion seeking ... an articulation or
further articulation of the decision of the trial court shall
be called a motion for rectification or motion for
articulation, whichever is applicable. Any motion filed
pursuant to this section shall state with particularity the
relief sought and shall be filed with the appellate clerk.
Any other party may oppose the motion by filing an opposition
with the appellate clerk within ten days of the filing of the
motion for rectification or articulation. The trial court
may, in its discretion, require assistance from the parties
in providing an articulation. Such assistance may include,
but is not limited to, provision of copies of transcripts and
exhibits.
"The
appellate clerk shall forward the motion for rectification or
articulation and the opposition, if any, to the trial judge
who decided, or presided over, the subject matter of the
motion for rectification or articulation for a decision on
the motion. If any party requests it and it is deemed
necessary by the trial court, the trial court shall hold a
hearing at which arguments may be heard, evidence taken or a
stipulation of counsel received and approved. The trial court
may make such corrections or additions as are necessary for
the proper presentation of the issues. The clerk of the trial
court shall list the decision on the trial court docket and
shall send notice of the court’s decision on the motion to
the appellate clerk, and the appellate clerk shall issue
notice of the decision to all counsel of record,"
Practice Book § 66-5.
A
relatively recent Supreme Court decision both discusses when
articulation and rectification are appropriate and also
differentiates between the two. See State v. Walker,
319 Conn. 668, 126 A.3d 1087 (2015). "Practice Book §
61-10(b), which took effect on January 1, 2013, provides:
‘The failure of any party on appeal to seek articulation
pursuant to [Practice Book § ]66-5 shall not be the sole
ground upon which the court declines to review any issue or
claim on appeal. If the court determines that articulation of
the trial court decision is appropriate, it may remand the
case pursuant to [Practice Book § ]60-5 for articulation by
the trial court within a specified time period. After remand
to the trial court for articulation, the trial court may, in
its discretion, require assistance from the parties in order
to provide the articulation. Such assistance may include, but
is not limited to, supplemental briefs, oral argument and
provision of copies of transcripts and exhibits.’ The
commentary to § 61-10 explains that this subsection ‘was
adopted to effect a change in appellate procedure by limiting
the use of the forfeiture sanction imposed when an appellant
fails to seek an articulation from the trial court pursuant
to [Practice Book § ]66-5 with regard to an issue on appeal
... The adoption of subsection (b) is not intended to
preclude the court from declining to review an issue where
the record is inadequate for reasons other than solely the
failure to seek an articulation, such as, for example, the
failure to procure the trial court’s decision pursuant to
[Practice Book § ]64-1(b) or the failure to provide a
transcript, exhibits or other documents necessary for
appellate review.’ Practice Book § 61-10, commentary.
"It
is self-evident that Practice Book § 61-10(b) refers only to
articulations. Our rules of practice, however, recognize two
mechanisms for remedying deficiencies in a record for
appellate review: articulation and rectification. See
Practice Book § 66-5; see also Practice Book § 66-7 (review
of such motions). Admittedly, prior to the enactment of
Practice Book § 61-10(b), our case law occasionally has
failed to properly distinguish the two. See, e.g., State
v. Chambers ... 296 Conn. [397, ] 413-14[, 994 A.2d 1248
(2010) ] (deeming record inadequate to determine whether
meeting in chambers was critical stage of prosecution in
absence of articulation or rectification because only
evidence in record concerning what transpired in chambers
consisted of two passing references by trial court indicating
merely that there had been such meeting); State v
Stewart, 255 Conn. 913, 763 A.2d 1039 (2000) (sua sponte
order, in connection with grant of certification, ‘that the
trial court articulate the facts concerning discussions, if
any, among the state’s attorney, defense counsel and the
court during a charging conference, relative to the court’s
giving a "no unfavorable inference" instruction to
the jury in this matter’). Nonetheless, as we explain
subsequently in this opinion, there is ample authority
explaining the distinct function that each mechanism serves.
Therefore, the threshold issue is whether an articulation or
a rectification would be necessary to remedy the particular
deficiency in the present case.
"
‘It is well established that [a]n articulation is appropriate
where the trial court’s decision contains some ambiguity or
deficiency reasonably susceptible of clarification ...
[P]roper utilization of the motion for articulation serves to
dispel any . ambiguity by clarifying the factual and legal
basis upon which the trial court rendered its decision,
thereby sharpening the issues on appeal.’ (Internal quotation
marks omitted.) Priest v. Edmonds, 295 Conn. 132,
140, 989 A.2d 588 (2010); accord Barnes v. Barnes,
190 Conn. 491, 494, 460 A.2d 1302 (1983). In other words, an
articulation elaborates upon, or explains, a matter that the
trial court decided. A motion for articulation ‘may not ...
be used to modify or to alter the substantive terms of a
prior judgment ...’(Internal quotation marks omitted.)
Bauer v. Bauer, 308 Conn. 124, 131, 60 A.3d 950
(2013).
"A
motion for rectification, by contrast, is appropriate when
the record must be modified or augmented in some fashion. ‘A
motion for rectification can be used to make (1) additions to
the record, (2) corrections to...
