2011 Appellate Review
| Pages | 1 |
| Publication year | 2021 |
86 CBJ 1. 2011 APPELLATE REVIEW
Volume 86, No. 1, Pg. 1
March 2012
Usually, appellate procedure is the supporting actor of our annual review, making a cameo appearance after the stars have finished strutting and fretting their hour upon the stage. But this year appellate procedure is the star attraction, thanks to State v. Kitchens.(fn1)
Kitchens was issued as a slip opinion on the morning of January 5, 2011, only hours before Justice Joette Katz resigned from the Connecticut Supreme Court to become the commissioner of a state agency, a first in state history. In a 4-3 decision written by Justice Peter Zarella, with a blistering dissent by Justice Katz, the Supreme Court cut back on the reviewability of unpreserved constitutional issues concerning the charge to the jury. The majority held that, if the trial judge gives the parties an advance copy of the charge and sufficient time to review it, a failure to raise a constitutional issue concerning the charge while there is time to correct it will implicitly waive appellate review of that issue.
Prior to Kitchens, the Golding rule(fn2)-possibly unique to Connecticut-would have allowed review of such an issue if four prongs were met: (1) the record is adequate for review; (2) the claim is of constitutional magnitude; (3) the violation clearly exists; and (4) the state has failed to establish harm-lessness beyond a reasonable doubt. Since prongs (3) and (4) concern the merits of the issue and prong (2) concerns whether it is in fact a constitutional issue, only prong (1) realistically affects whether the constitutional issue was waived at trial. Since by definition the issue was not raised at trial, whether the record is adequate for appellate review is a matter of luck.
The problem with Golding is that, if the defendant meets the first two prongs of the Golding test, he automatically gets review. If he doesn't meet them, he doesn't get it. There is no discretion to consider the importance of the constitutional right in achieving a fair trial-the denial of the right ipso facto proves unfairness. There is no discretion to consider how experienced the defendant's trial counsel was, or how rushed he was to make a decision. In short, Golding tolerates no shades of grey.
The problem with Kitchens is that it goes to the other extreme. If the trial judge says the magic words "here's my draft charge; look it over closely tonight," there is no review if the lawyer is silent when the charge could have been corrected. Never mind the importance of the constitutional right to achieving a fair trial-it's implicitly waived. Never mind if the state has a very weak case-it's waived. Never mind if the trial transcript clearly shows the defendant's lawyer to be an idiot-it's waived; wait for habeas relief. So, like Golding, Kitchens tolerates no shades of grey.
It is easy to sympathize with Golding and the Kitchens dissent-why should a defendant rot in jail just because his lawyer failed to raise a possibly winning constitutional issue? It is also easy to sympathize with the Kitchens majority-there is something wrong with a rule that allows appellate lawyers to raise unpreserved issues so often that Golding claims are about as numerous as dandelions in an untended lawn.
There is a solution for these competing interests; a clue is found in footnote 20 of the Kitchens majority opinion. Footnote 20 discusses federal procedural law distinguishing between waiver and forfeiture. Waiver comes from making a deliberate decision not to raise an issue and will defeat even plain error review; forfeiture comes from not raising an issue for any reason short of a deliberate decision not to do so and will not defeat plain error review.
So here is the answer: abandon the concept of implicit waiver, an oxymoron if there ever was one, and put more bite in the plain error rule.
The plain error rule, a part of Practice Book Section 605, was adopted in 1979, and accompanied abolition of the finding system. These changes gave the Supreme Court much more flexibility to review both issues of fact for clear error and issues of law for plain error. Both of these changes were based on the Federal Rules of Civil Procedure. Unlike the federal appellate courts, the Connecticut appellate courts rarely find plain error. Since the quality of representation is not likely to explain this discrepancy, experienced appellate litigants in Connecticut state courts have generally concluded that raising a plain error claim is likely to be futile.
Futility is not even the worst of it. The Supreme Court requires litigants to raise plain error in their initial brief. The reply brief is too late. The Supreme Court created this procedural requirement in a footnote in a 1998 case,(fn3) citing as its authority two cases that have nothing to do with raising plain error in the initial brief. Indeed, the federal courts have imposed no such requirement under Federal Rule 52. Many times, whether the issue has been properly raised below is not obvious and the appellee might not have mentioned the point if the appellant had not waved a red flag in the initial brief. There is nothing inherently unfair in looking to the appellee to point out without prior briefing by the appellant that the issue was not properly preserved below and that the result was not a miscarriage of justice.
The plain error rule is there to be used. The federal courts do not need a Golding or a Kitchens rule because they have not allowed the plain error rule to atrophy. Because the federal courts use their discretion in applying the plain error rule, they might in an appropriate case review an issue considered automatically waived under Kitchens. They also might not review an issue considered automatically reviewable under Golding. While the federal courts are not the fount of all wisdom, Mr. Horton believes they strike the right balance in focusing on the discretion of the appellate court to see that justice is done.(fn4)
Kitchens has already produced progeny, including four decisions issued simultaneously with Kitchens on January 5, 2011. The court reviewed two on the merits because no advance charge was given to counsel,(fn5) and denied two because it was.(fn6) The three Kitchens dissenters (Justices Katz, Norcott, and Palmer), immediately dwindled to two within hours of the decision due to Katz's resignation. By August 2011, the seven regular justices included Justices Dennis Eveleigh and Lubbie Harper, who were appointed to the Supreme Court after Kitchens was argued in March 2010 (Justice Eveleigh in mid-2010 to replace Justice Christine Vertefeuille, who had taken senior status; Justice Harper in early 2011 to replace Justice Katz). In August they held in State v. Thomas W.(fn7) that inadvertently overlooking an issue is a form of implicit waiver. The defendant's claim to the contrary was a rather obvious attack on Kitchens. What is interesting is that the decision was 6-1. Justice Norcott joined the majority; only Justice Palmer continued to dissent. So Kitchens is apparently here to stay. Finally, in State v. Baptiste(fn8) the court reviewed an unpre-served issue when the trial court conducted a brief off-the-record charging conference, and it was not clear the defendant had an adequate opportunity to review the charge.
So far, all of Kitchens's progeny involve criminal cases. Since it appears to be the case that Golding applies in civil cases,(fn9) it will be interesting to see if Kitchens does too. Because Kitchens limits review of the jury charge in criminal appeals, a fortiori it should do so in civil appeals.
That is enough about Kitchens. But the topic of appellate procedure keeps the stage for a bit longer. The articulation battle, which could fairly be entitled Appellate Lawyers v. Appellate Jurists, moved closer to resolution in 2011. The Connecticut Bar Association's Appellate Advocacy Committee prepared a report in January 2011 which stated that the current articulation rules resulted in far too many forfeitures (or is it waivers?) of appellate issues whenever appellants concluded that articulation was unnecessary but an appellate court concluded otherwise. In response, in May 2011, the Supreme Court Advisory Committee on Appellate Rules proposed amendments to the articulation rule.
As 2011 ends, it appears likely that the Supreme Court and the Appellate Court will approve a revision of the articulation rule that addresses this problem but leaves open the possibility of forfeiture when the appellant has totally failed to present the appellate court with an adequate record. The authors look with hope for adoption of changes in 2012.
Appellate procedure may now exit the stage to make way for the Episcopal Church. Resolving religious disputes in civil courts has been a challenge since the Constitutional Convention of 1818. (It was less of a problem-or at least a different type of problem-before 1818 because the Congregational Church was the established church and one of the main purposes of the Convention was to disestablish it.)(fn10) The Episcopal Church has had problems of late with dissident parishes that disagree with the hierarchy's approval of religious leaders in committed same-sex relationships. Many of the dissidents have left the Episcopal Church-which is obviously their right-and in some instances have attempted to take the parish real estate with them-which we now know is not their right. The Diocese (the statewide organization) sued and won one such case in Episcopal Church v. Gauss.(fn11) What is particularly interesting about Justice Zarella's carefully written unanimous opinion in Gauss is the discussion of the test to be used to decide ownership. Remarkably, the United States Supreme Court has taken a...
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