State v. Rosario (concurring)

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****************************************************** 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. ****************************************************** State v. Rosario CONCURRENCE SCHALLER, J., concurring. Although I concur in the result reached by the majority, I write separately to express my disagreement with several aspects of the analysis. First, the legislative history analysis in its present form is unnecessary. State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc), which applies here, explicitly recognized that the text of a statute is the most important factor to be considered. Because we agree that, in this case, the statutory language is clear, much of the majority s legislative history analysis is unnecessary. Under the circumstances of this case, I suggest that the following statement would comply with the requirements of State v. Courchesne, supra, 537: The legislative history, when read with the language of the statute, establishes that the failure to stop immediately cannot be cured at some later time by an operator reporting the incident to police. The purpose of the statute on evading responsibility is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself. The essence of the offense of evading responsibility is the failure of the driver to stop and render aid. (Emphasis added.) State v. Johnson, 227 Conn. 534, 544, 630 A.2d 1059 (1993). Second, I believe that the portion of the majority opinion discussing the failure of courts in State v. Jordan, 5 Conn. Cir. Ct. 561, 564, 258 A.2d 552 (1969), State v. Richter, 3 Conn. Cir. Ct. 99, 101, 208 A.2d 359 (1964), State v. LeTourneau, 23 Conn. Sup. 420, 424, 184 A.2d 180 (1962), and State v. LaRiviere, 22 Conn. Sup. 385, 389, 173 A.2d 900 (1961), to decide the elements of the statute and the conclusions drawn therefrom is unnecessary. In addition, the reliance on People v. Scofield, 203 Cal. 703, 710, 265 P. 914 (1928), State v. Severance, 120 Vt. 268, 272, 138 A.2d 425 (1958), and State v. Mann, 135 Wis. 2d 420, 429, 400 N.W.2d 489 (Wis. App. 1986), cases from other jurisdictions, without analysis, does nothing to support the result in this case. The majority s application of Scofield does not make sense, as Scofield was not interpreting General Statutes § 14224. Further, we risk incorrect use of other jurisdictions case law when we cite to Severance and to Mann without interpreting their respective underlying statutes. Finally, the analysis of the jury instructions is unnecessary and, in fact, gratuitous, as neither party has raised any issue pertaining to the jury instructions. The majority concludes that any impropriety was harmless. That conclusion is advisory and should not be part of our opinion. Advisory opinions are created when courts address issues that are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests . . . . United States v. Fruehauf, 365 U.S. 146, 157, 81 S. Ct. 547, 5 L. Ed. 2d 476 (1961). The generic problems with advisory opinions stem from the fact that they are usually issued without briefs and arguments of counsel . . . . L. Tribe, American Constitutional Law (2d Ed. 1988) § 39 p. 74 n.7. Our Supreme Court does not approve of this court reaching and deciding issues that were not raised or briefed by the parties. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 522, 815 A.2d 1188 (2003); Lynch v. Granby Holdings, 230 Conn. 95, 98 99, 644 A.2d 325 (1994). We should not, and indeed are without authority, to render advisory opinions. Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 582, 589 90 n.5, 828 A.2d 676 (2003); see also Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 490 91, 754 A.2d 128 (2000). In light of those policies, and in danger of misinterpreting the issue, as we have neither argument nor briefs from the parties, I believe that this portion of the opinion should be eliminated.1 For the foregoing reasons, I respectfully concur in the result. 1 Indeed, the majority opinion seems explicitly to recognize the danger of its undertaking in footnote 14 of its opinion. As Professor Tribe suggests, problems such as this can be avoided if the issue had been raised, briefed and argued. We would then be dealing with a focused claim.

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