Attorney General: Secretary Kezer and Speaker Ritter, State Capitol, 1994-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

September 2, 1994

Honorable Pauline R. Kezer
Secretary of the State
State Capitol
210 Capitol Avenue
Hartford, CT 06106

Honorable Thomas D. Ritter
Speaker of the House
State Capitol
210 Capitol Avenue
Hartford, CT 06106

Dear Secretary Kezer and Speaker Ritter:

We have received an inquiry from each of you relating to persons currently serving as justice of the peace. We first answer the Secretary's question and then that raised by the Speaker.

1. In a May 24, 1994, letter from Secretary Kezer, the Secretary inquires as to the validity of legislation providing for the extension of terms of current justices of the peace in light of Judge Dorsey's ruling in ACP v. Kezer, 2:92CV00550 (PCD) prohibiting holdover-terms after June 30, 1994. We answer that the legislation extending these terms is valid. On July 21, 1992, the federal district court in ACP v. Kezer, 2:92CV00550(PCD) held Conn. Gen. Stat.  9-252, regarding selection of justices of the peace, to be unconstitutional. The nomination process about to take place under  9-252 for terms commencing in 1993 was halted by this court decision. The Court, in its judgment filed August 28, 1992, held instead that the then-serving justices would hold over indefinitely while the state legislature adopted an "alternative statutory framework." The Court recognized that correcting the defects it had pointed out in the current selection process was "purely a legislative determination." In entering this judgment the Court rejected plaintiffs' requests for the Court to develop a remedial scheme itself. The General Assembly enacted legislation in the 1993 legislative session, but it was vetoed and the veto was not overridden. The plaintiffs returned to court on February 16, 1994, reciting that the 1993 legislative session had failed to enact legislation and asking the Court to intervene in the process. On March 16, 1994, the Court, in response to plaintiffs' motion, ruled that the process of enactment of legislation should continue in the General Assembly alone. The Court was aware that the legislature had pending before it another proposed bill which attempted to meet its ruling. The Court concluded its March 16, 1994, ruling by placing an ending date (June 30, 1994) on the holding-over of justices currently serving in the office which the Court had previously allowed. Subsequently, the 1994 General Assembly passed 1994 Conn. Pub. Act 94-230. On June 10, 1994, the governor announced that he was permitting this Public Act to become law without his signature. Section 9 of 1994 Conn. Pub. Act 94-230 extends the terms of current justices of the peace to the first Monday in January, 1995.1 Secretary Kezer now asks whether 1994 Conn. Pub. Act 94-230,  9 may properly, in light of Judge Dorsey's March 16, 1994, ruling so extend the terms of the current justices. As indicated, we answer that subsection 9 is valid legislation. Commencing in January 1995, 1994 Conn. Pub. Act 94-230 revises the justice of the peace selection process to meet the District Court's mandate. Until the new justices' terms commence in January, 1995, the General Assembly also designated in  9 of the Public Act the current justices to remain as justices of the peace. Since 1994 Conn. Pub. Act 94-230 has now been adopted, the hold-over provision of  9 of 1994 Conn. Pub. Act 94-230 is valid. Had the General Assembly failed to act by the conclusion of this legislative session, the June 30, 1994, deadline established by the Court would have become significant. There is, however, new legislation, adopted within the Court ordered time limit, which contains a brief transitional period extending current terms until the new justices' terms become effective in January 1995.2 Although the District Court did not have 1994 Conn. Pub. Act 94-230 before it when that Court concluded that no hold-overs were to be permitted after June 30, 1994, in our opinion Public Act 94-230 is consistent with the Court's decision and is a valid exercise of legislative authority. See Calfee v. Usman, 224 Conn. 29, 33 (1992) ("In the absence of weighty countervailing circumstances, it is improper for the court to invalidate a statute on its face."); Lechner v. Holmberg, 165 Conn. 152, 159 (1973)(should interpret legislation to reach effective and logical conclusion).

2. In an August 1, 1994, letter from Speaker Ritter, the Speaker asks whether "it is proper to fill vacancies which now exist" in the office of justice of the peace. We answer that the current vacancies may not be filled until January 1, 1995 when the new law permits them to be filled using the new procedures specified. By way of background, as discussed above, on July 21, 1992, the federal district court held Conn. Gen. Stat.  9-252, regarding selection of justices of the peace, to be unconstitutional. The Court did not rule, however, on Conn. Gen. Stat.  9-184, which provided for both the length of terms of justices of the peace as well as the mechanism for filling vacancies in the position of justice of the peace chosen under  9-252: Sec. 9-184. Term of justices. Vacancies. The term of justices of the peace shall begin on the first Monday of January succeeding their nomination and continue until the first Monday of January four years thereafter. Any vacancy in the office of a justice of the peace shall be filled by appointment by the town committee of the political party of the vacating justice until the day on which the term of office of such vacating justice would have terminated. The town chairman or the secretary of the appointing town committee shall file with the town clerk a certificate of each such appointment and the town clerk shall record the certificate with the records of the town meeting. The town clerk shall notify the secretary of the state and the clerk of the superior court for the judicial district in which such town is located of any such vacancy.

As we have discussed, legislation was enacted in 1994 to revise the selection, length of term, and vacancy-replacement provisions of both  9-252 and  9-184. The new statute specifically repealed  9-184, (See 1994 Conn. Pub. Act 94-230  3.) In its place, 1994 Conn. Pub. Act 94-230 sets forth three methods of appointment of justices, whose terms become effective in January, 1995.3 See 1994 Conn. Pub. Act 94-230  2, 5 and 6. Vacancies thus can only be filled under these provisions of the new Act, with terms of the justices of the peace not beginning until January, 1995.4 As noted above,  9, as a temporary, transitional measure, provides those currently holding office will continue in office until January, 1995.5

On June 27, 1994, staff attorney Mary S. Young, of the Secretary of the State's office, on behalf of the Secretary, wrote to town clerks and registrars, giving instructions regarding the 1994 State elections. A paragraph of this communication provides:

We strongly recommend that no vacancies be filled before January 1995 because the language of Section 3 of 1994 Conn. Pub. Act 94-230, which amended Conn. Gen. Stat.  9-184 effective June 11, 1994, and Section 118 of 1994 Conn. Pub. Act 94-1 of the May 25 Special Session raise a very serious question as to the power of town committees to fill vacancies in justices of the peace selected prior to those being selected to take office in January 1995.

The Secretary's recommendation was correct. On June 11, 1994, the effective date of Public Act 94-230, the provisions of Conn. Gen. Stat.  9-184 were immediately and totally repealed. See State ex rel Moran v. Washburn, 19 Conn. Supp. 316, 319-320, 112 A.2d 897 (1955):

It is a well-established principle that a valid legislative enactment which contains an express provision repealing a particular act or a part of an act is effectual to establish a repeal of the law it describes. The chief value of an express repeal is the fact that it generally leaves no uncertainty as to whether the statutes or parts of statutes designated have been repealed. 1 Sutherland, Statutory Construction (3d Ed.)  2008. . . .

See also 91 Conn. Op. Atty. Gen., December 4, 1991 (statutory provisions eliminated by repeal); Parsippany Hills Assoc. v. Rent Leveling Bd., 194 NJ. Super. 34, 476 A.2d 271, 275 (1984):

. . . . In this State it is the general rule that where a statute is repealed and there is no saving clause or a general statute limiting the effect of the repeal, the repealed statute, in regard to its operative effect, is considered as though it had never existed, except as to matters and transactions passed and closed.

The provisions on filling vacancies in the office of justice of the peace as set forth in Conn. Gen. Stat.  9-184, repealed on June 11, 1994, are no longer in effect. The provisions on filling vacancies in 1994 Conn. Pub. Act 94-230 are currently in effect, but do not permit justices to take office until January, 1995. No provision was made in 1994 Conn. Pub. Act 94-230 to allow the filling of vacancies during the transitional June to January period established by 1994 Conn. Pub. Act 94-230,  9. We cannot through statutory interpretation supply what the legislature apparently chose to omit. See Federal Aviation Administration v. Administrator, 196 Conn. 546, 550 (1985).

We hope that the above responses are helpful.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Henry S. Cohn
Assistant Attorney General

RB/HSC/js


Footnote:

1 P.A. 94-230,  9 provides as follows:

Notwithstanding any provision of the general statutes to the contrary, the term of any person who is serving in the office of justice of the peace on the effective date of this act shall expire on the day preceding the first Monday of January, 1995.

2 See remarks of Rep. Miles Rapoport, summarizing the bill which became P.A. 94-230, on April 27, 1994, page 4827:

I think that we can reassure those justices of the peace or other members of our community have called, that we are responding to Judge Dorsey's two rulings that we are doing a system that we believe will meet this constitutional test and that justices of the peace will be able to continue to serve and new ones will be appointed some next year and some will be able to go in and simply apply.

3 Section 2 provides for appointment of justices by certain major parties who qualify as a "major party" by enrollment; Section 5 provides for appointment of justices by major parties who qualify as "major parties" by the vote cast for their candidate for governor in the last statewide election; Section 6 provides for appointment by the town clerk of a certain number of unaffiliated voters as justices.

4 The vacancy provisions for justices of the peace under the current legislative scheme are now found in P.A. 94-230,  3, as amended by P.A. 94-1,  118 (May Special Session) and  6(d). Vacancies in the office of justice selected under P.A. 94-230,  2 and 5 are filled by appointment of the town committee of the party of the vacating justice. Vacancies in the office of justice selected under P.A. 94-270,  6 are filled by the town clerk pursuant to the procedures set forth in P.A. 94-230,  6(d).

5 1994 Conn. Pub. Act 94-230,  10 provides that the act "shall take effect from its passage." The Secretary has informed this office that the effective date of 1994 Conn. Pub. Act 94-230 is June 11, 1994.


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