Golding Clarified

By Wesley W. Horton

The Golding rule concerns whether a constitutional issue can be raised on appeal that was not raised or not properly raised in the trial court. Generally, (1) if the trial court record is adequate (which often it is not), (2) if the claim concerns a fundamental constitutional right (Pop quiz: Can anyone name a nonfundamental constitutional right?), and (3) and (4) if the violation is clear and not harmless, it will be reviewed on the merits. But there is a huge exception in habeas corpus cases. The exception is now clarified in Moye v. Commissioner of Correction, 316 Conn. 779, decided on May 12.

In Moye the petitioner raised on appeal a constitutional argument that he did not make to the habeas trial court. The Supreme Court unanimously held that Golding was limited in habeas appeals to issues arising out of the actions of the habeas court itself. This of course pretty much eliminates Golding for use in habeas appeals because most habeas petitions arise out of what happened in the original trial court.

The evisceration of Golding in habeas appeals is based on the principle that the whole point of most habeas petitions is to raise issues that were not raised in the original trial. Not to require issues to be raised in the habeas petition would undermine that principle.