On February 18, 2002, pursuant to a proposal by Professor Colin Tait, the Law Revision Commission undertook a review of Connecticut procedure concerning writs of error.

The Law Revision Commission committee on writs of error has now reviewed that procedure and recommends that the process for bringing writs of error be primarily governed by the rules of practice adopted by the judges of the Connecticut Supreme Court. The committee recommends that:

the legislature repeal its current statutory rules concerning writs of error, sections 52-272 to 52-278, in deference to the existing rules of practice set out in Chapter 72 of the Rules of Appellate Procedure; and

the legislature enact an "all writs" provision for the Connecticut Supreme Court, parallel to that already applicable to the Connecticut Appellate Court under section 51-197a(b), thereby explicitly recognizing by statute the Supreme Court authority to issue appropriate writs.

The writ of error is an ancient prerogative writ under which a higher court may review and supervise actions of its lower courts. It fills procedural gaps that occasionally arise in circumstances where a person affected by a lower court ruling lacks a statutory right of appeal.

The writ of error derives from the common law and is intimately entwined with the Supreme Court’s inherent authority. See, in particular, Banks v. Thomas, 241 Conn. 569 (1997), in which the Supreme Court notes that "it is clear that the writ of error … is deeply rooted in our common law". The court refused to construe the statutory limitation period for filing set by section 52-273 as relevant to the court’s subject matter jurisdiction, writing that such a construction "would constitute a dramatic departure from the authority invested in this court under common law." at pps 584 and 585. Similarly, in Bergeron v. Mackler, 225 Conn. 391 (1993), the Supreme Court determined that the scope of review is no longer confined to errors of record. In cases where there is no right of appeal, the writ of error provides a necessary process for Supreme Court review and access to its supervisory functions. That authority is expressly asserted and exercised by the Supreme Court.

Given that function, the committee finds that the Supreme Court’s rules-making committee is the proper forum for setting the governing process. Section 52-264 expressly recognizes the rule making authority of the Supreme Court "concerning the practice and procedure in the taking of appeals and writs of error to the supreme court" and section 51-14 recognizes the rule-making authority of the Supreme Court with respect to "rules and forms regulating pleading, practice and procedure in judicial proceeding in courts in which they have the constitutional authority to make rules…." The writ of error is a judicial procedure that is intimately connected with the courts and their internal supervisory processes. Seen in that light, the existing statutory rules concerning writs are unnecessary. Moreover, as is apparent from the decisions in the Banks and Bergeron cases, those statutory rules are not controlling and can potentially mislead a litigant. As such, they should be repealed.

In reviewing this issue, the committee further noted the anomaly that the legislature has expressly recognized the power of the Appellate Court to issue appropriate writs through an "all writs" act, section 51-197a(b), but has never expressly recognized that inherent power in the higher Supreme Court. Subsection (b) of section 51-197a provides that "The Appellate Court may issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law." In the committee’s judgment, such a power to issue necessary or appropriate writs similarly does, and should, lie in the Supreme Court and should be recognized by parallel statutory language.

The committee does not recommend changes to incidental statutory references to the writ of error where repeal of that language could itself be misinterpreted. See, for example, references in section 52-265, concerning costs, section 52-328, concerning stays of execution due to the pendency of a writ, and section 52-592, concerning accidental failure of suit.

Draft language incorporating the proposed revisions is attached.