Attorney General: Honorable Ralph D. Lukens, Probate Court Administrator, 1993-033 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 15, 1993

Honorable Ralph D. Lukens
Probate Court Administrator
186 Newington Road
West Hartford, CT 06110

Dear Judge Lukens:

The 1993 General Assembly enacted the following provision with regard to the issuance of regulations by your office:

(b)(1) The probate court administrator may issue regulations, provided such regulations are approved in accordance with this subsection. Such regulations shall be binding on all courts of probate and shall concern the auditing, accounting, statistical, billing, recording, filing and other court procedures. (2) The probate court administrator may adopt regulations, in accordance with chapter 54, provided such regulations are approved in accordance with this subsection. Such regulations shall be binding on all courts of probate and shall concern the availability of judges, court facilities, court personnel and records, hours of court operation and telephone service. (3) Either the probate court administrator or the executive committee of the probate assembly may propose such regulations. Any regulation proposed by the probate court administrator shall be submitted to the executive committee of the probate assembly for approval. Any regulation proposed by the executive committee of the probate assembly shall be submitted to the probate court administrator for approval. If either the probate court administrator or the executive committee of the probate assembly fails to approve a proposed regulation, such proposed regulation may be submitted to a panel of three superior court judges appointed by the chief justice of the supreme court. The panel of judges, after consideration of the positions of the probate court administrator and the executive committee of the probate assembly, shall either approve the proposed regulation or reject the proposed regulation.

1993 Conn.Pub.Act No. 93-435, 87(b).

In your letter of July 13, 1993, you point out that Conn.Pub.Act No. 93-435, 87(b)(2) requires that in the issuance of regulations concerning availability of judges, facilities, personnel, hours of court and telephone service, in addition to meeting the procedure set forth in subsection 3 of 87(b), you must comply with chapter 54, Conn.Gen.Stat. This chapter sets forth the procedure under the Uniform Administrative Procedure Act (UAPA) for agencies to follow in adopting regulations.1

You ask in your letter to this office whether Conn.Pub.Act No. 93-435, 87(b) violates Art. II, Conn. Const., relating to the separation of powers. You suggest that this question arises because the legislature would be imposing the UAPA rule-making procedure of the executive branch upon the probate courts.

It is true that "the General Assembly has no power to make rules of administration, practice or procedure which are binding on ... constitutional courts and that any attempt on its part to exercise such power is dependent, for its efficacy, upon the acquiescence of the constitutional court involved." Adams v. Rubinow, 157 Conn. 150, 156 (1968). See also State v. Clemente, 166 Conn. 501, 507 (1974); State v. Darden, 171 Conn. 677, 678 (1976); State v. Campbell, 224 Conn. 168, 177 (1992). Probate courts are not, however, constitutional courts. The Supreme Court in Adams, supra, at 156, specifically recognized that the probate courts are not classed among the constitutional courts.2

With regard to the "lower courts, including, of course, the probate courts," the Supreme Court in Adams stated that "the General Assembly has the power to make reasonable rules of administration, practice and procedure provided that they do not significantly interfere with the orderly operation of the court while it remains in existence as a court. The limiting proviso flows from article 2 of the constitution requiring a separation of powers. The rule-making process of the General Assembly with respect to the lower courts can, and preferably should, be delegated to the Supreme Court as it has been, at least as to practice and procedure...." Adams, 157 Conn. at 156-157 (emphasis added).

In Council on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 205 (1984) the Supreme Court commented on its decision in Adams as follows:

[I]n upholding [in Adams] the rule-making and the administrative provisions of the statute regulating the probate courts, we held that these statutes did not unconstitutionally intrude on the judicial authority of the probate courts so as to violate the constitutional separation of powers.... In that regard, we recognized that there is fundamentally greater legislative authority over legislative courts, created pursuant to article V, 1 of the Connecticut constitution, than over constitutional courts.

Thus to find 87(b) unconstitutional we would be forced to conclude that the imposition of chapter 54 in 87(b)(2) "significantly interferes with the orderly operation" of the probate courts. Adams, 157 Conn. at 156.

It is the policy of this office that we will not provide advisory opinions to resolve the issue of the constitutionally of a state statute, except where the statute is unquestionably unconstitutional on its face. See 1993 Conn.Op.Atty.Gen. September 10, 1993; Attorney General Directive No. 9 (revised March, 1990) 3.a. Also, we are cognizant of the rule that a state statute should not be held unconstitutional unless its invalidity is beyond a reasonable doubt. Caldor, Inc. v. Thorton, 191 Conn. 336, 346, 464 A.2d 785 (1983). In view of the Supreme Court's pronouncements in Adams and Council on Probate Judicial Conduct re: James H. Kinsella, we do not find the act before us to be unconstitutional on its face. We are plainly not in a position to assess prospectively whether 87(b)(2) "significantly interferes with the orderly operation" of the probate courts. We therefore decline to provide an opinion on the constitutionality of the act.

We trust that we replied to the questions you have raised.

Very truly yours,

Richard Blumenthal
Attorney General

Henry S. Cohn
Assistant Attorney General

RB/HSC/js


1 The legislative history shows that the legislature placed these regulations in this special category because these were significant matters which "our regulation review committee ought to look at...." House Proc. June 1, 1993 at 258, Rep. Ward.

2 Historically the probate courts developed from the county court, a legislatively-created court. See Locke & Kohn, Connecticut Probate Practice at 2. See also Horton, The Connecticut State Constitution (1993) at 129.

Your office is itself a creation of the General Assembly. Thus, the legislature has the right to impose the chapter 54 requirement upon your regulatory powers. The issue raised in Adams v. Rubinow, 157 Conn. 150 (1968) was a conflict (over the promulgation of regulations) between certain probate judges and the General Assembly.


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