******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
IN RE YASIEL R.—FIRST CONCURRENCE AND DISSENT

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 overthe 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. 764, 784–85 (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).1 Thus, there has been no rhyme or reason as

to when the court has applied a new rule prospectively

or retroactively.

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, 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 notreceive 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, p. 57; J. Fisch, supra,

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 underthe authority, and within a

constraining framework, of public norms (laws) rather

than on the basis of their own preferences or ideology

. . . .’’ Id., 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.

498; 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. 852. 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. 857 (Scalia,

J., concurring)(‘‘Manifest injustice, Ifear, 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. 710. 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. 854 (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. 771 (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. 498. 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 whethertheirlegal 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 oppos-
ing 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. 506 (exercising supervisory authority afterrejecting 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.2 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. 7.

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. 773; 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. 854 (Zarella, J., concurring); State v. Rose, supra, 305Conn. 629–33 (Zarella,

J., dissenting); State v. Santiago, supra, 245 Conn. 341,
351 (Callahan, C. J., concurring in part and dissenting

in part); State v. Coleman, supra, 242 Conn. 549–50

(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.3 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.

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.

1 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).

2 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.

3

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, 572–73. 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., 561. 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 a new trial. See id., 565. The court rejected this argument

and ordered a new trial pursuant to its supervisory authority; id., 575; without
determining whether the trial court had abused its discretion or whether

Ubaldi had been deprived of a fair trial. See id., 564–75. 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. 571. 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.