ROGERS, C. J., with whom ZARELLA and ESPINOSA, Js., join, dissenting from the denial of the state's motion for argument and reconsideration.
The motion of the state of Connecticut, filed September 4, 2015, for argument, having been presented to the court, it is hereby ordered denied.
ROGERS, C. J., with whom ZARELLA and ESPINOSA, Js., join, dissenting from the denial of the state's motion for argument and reconsideration. In State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), a majority of this court concluded that the death penalty is unconstitutional under the due process provisions of our state constitution after the legislature's prospective repeal of the death penalty in No. 12-5 of the 2012 Public Acts (P.A. 12-5). In reaching this conclusion, the majority, over the repeated objections of the dissenting justices, addressed numerous issues that the defendant, Eduardo Santiago, had not raised, and it relied on extra-record materials that the state had not had an opportunity to review or to respond to. In addition, the majority [319 Conn. 913] relied heavily on testimony by Chief State's Attorney Kevin T. Kane that, in the majority's opinion, demonstrated that he believed that a prospective repeal would constitutionally invalidate the death penalty for any defendant who had not already been executed. See id., 8 n.1. This purported reliance was
nothing more than a facade: the courts alone decide the constitutionality of a law, not the state's attorneys. See Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803) (" [i]t is emphatically the province and duty of the judicial department to say what the law is" [emphasis added]). Thus, the majority has overturned a democratically enacted law of great significance to the people of this state on the basis of claims that the defendant did not raise and extra-record materials that the state did not have an opportunity to review or to respond to, and on the basis of statements by state officials on a constitutional issue that this court had the exclusive constitutional duty to resolve. In addition, the majority, without any notice to the parties that it was considering such an action, and after having just reaffirmed this court's jurisprudence regarding the constitutionality of the death penalty under the state constitution in this very case, effectively overruled that jurisprudence.
[319 Conn. 914] After the decision in Santiago was published, the state filed a motion for argument and for reconsideration, signed by the very official on whose statements the majority so heavily relied, in which the state requested permission to file supplemental briefing and to present oral argument on the issues that it had not previously had an opportunity to address. In that motion, the state identified specific arguments and information that it would have provided to this court if it had been on notice that the court would consider those issues in making its determination as to the constitutionality of the death penalty.  Thus, the state has emphatically [319 Conn. 915] confirmed the validity of the dissents' repeated warnings that the majority was going far beyond the narrow issues raised by the defendant in reaching its ultimate conclusion. In a final effort to conceal the embarrassing and now undeniable fact that the emperor has no clothes, the majority has denied the state's motion. I emphatically disagree. It is crystal clear to me that the most basic requirement of due process--the requirement for notice and a hearing--entitles the state to an opportunity to be heard on these matters. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162-63, 84 A.3d 840 (2014) (reviewing " court may raise [a] claim sua sponte, as long as it provides an opportunity for all parties to be heard on the issue" ); Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995) (" [a] fundamental [319 Conn. 916] premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved" ). At a bare minimum, the state is entitled to an explanation as to why the majority finds it unnecessary even to consider its arguments.
To the extent that the majority believes that it has already adequately explained in its opinion why it addressed issues that the defendant did not raise and relied on extra-record materials that the state had no opportunity to review, any such contention does not withstand scrutiny. The majority stated in its opinion that it could " only assume that this choice [not to brief these issues] represented a calculated decision, by both parties, that, with their briefs already taking up more than a ream of paper, resources--both natural and judicial--would be better addressed to the novel issues presented by the defendant's case, and that we had more than sufficient resources at our disposal to allow us to fully review the present constitutionality of capital punishment in a thorough and comprehensive manner." State v. Santiago, supra, 318 Conn. 122.
First, I begin with the obvious: the state has unequivocally represented in its motion that it had no idea that the majority would address issues that the defendant had not expressly raised or extra-record
materials that neither party had cited, and that it would like the opportunity to address these issues for the first time now. We must, of course, assume that these representations are true. See Rules of Professional Conduct 3.3 (a) (" [a] lawyer shall not knowingly . . .  [m]ake a false statement of fact or law to a tribunal" ).
Second, there was absolutely nothing in the defendant's or the state's supplemental brief to suggest that the parties contemplated that the court would review anything except the defendant's narrow claims that the enactment of P.A. 12-5 evinced a newly emerged [319 Conn. 917] societal consensus that the death penalty is no longer an appropriate punishment for the most egregious murders, that the death penalty no longer had any penological value after its prospective repeal, and that the effective date provision of P.A. 12-5 was arbitrary. The parties assumed that, if this court agreed with any of those narrow claims, the defendant would prevail and, if the court disagreed, the state would prevail. The parties did not assume, indeed, they could not have known, that this court would revisit and effectively overrule its entire jurisprudence regarding the constitutionality of the death penalty under the state constitution--which it had just reaffirmed in this very case --and that it would do so largely on the basis of claims that the defendant had not raised and extra-record materials that the parties had never seen. Thus, the majority's contention that the state made a calculated decision not to address issues that the defendant had not raised has absolutely no basis in fact.
Finally, the majority's statement that the state declined to brief these issues in its supplemental brief because it believed that this court " had more than sufficient resources at [its] disposal to allow [it] to fully review the present constitutionality of capital punishment in a thorough and comprehensive manner"; State v. Santiago, supra, 318 Conn. 122; without any input from the state suggests a lack ...