Attorney General: Honorable John G. Rowland, State Capitol, 1995-028 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 20, 1995

Honorable John G. Rowland
Executive Chambers
State Capitol
Hartford, Connecticut 06106

Dear Governor Rowland:

This advisory opinion responds to your letter of September 25, 1995. That letter asks whether you may "nominate a sitting associate justice of the [Supreme] Court to succeed Chief Justice Peters if the associate justice in question's name is not on the list of eligible candidates for the position provided ... by the Judicial Selection Commission?" Our opinion is that your nominee for the office of Chief Justice of the Connecticut Supreme Court must come from the list of qualified candidates compiled and provided to you by the Commission.

Article V, 1 of our State Constitution provides: "The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall ... ordain and establish." Conn. Gen. Stat. 51-198 defines the composition of the Supreme Court: "The supreme court shall consist of one chief justice and six associate judges, who shall, at the time of their appointment, also be appointed judges of the superior court." Clearly then the General Assembly intended to create seven distinct positions on the Supreme Court in two distinct categories: the Chief Justice and six associate judges (or Justices). See also Conn. Gen. Stat. 51-207 ("A full court shall consist of five associate judges or the chief justice and four associate judges or ... six associate judges or the chief justice and five or six associate judges.").

Article V, 2 of our Constitution provides: "Judges of all courts ... shall be nominated by the governor exclusively from candidates submitted by the judicial selection commission. The commission shall seek and recommend qualified candidates in such numbers as shall by law be prescribed. Judges so nominated shall be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years ...." (emphasis supplied) The general assembly has implemented this provision by Conn. Gen. Stat. 51-44a(h), which provides: "Judges of all courts ... shall be nominated by the governor exclusively from the list of candidates or incumbent judges submitted by the Judicial Selection Commission. The governor shall nominate a candidate for a vacancy in a judicial position within forty-five days of the date he receives the recommendations of the commission." (emphasis added). More specifically, Conn. Gen. Stat. 51-44a(f), provides: "Except as provided in subsection (e),1 the commission shall seek qualified candidates for consideration by the governor for nomination as judges for the ... supreme court.... A list of such qualified candidates shall be compiled by the commission."

While both the Constitution and the statute refer to "judges, "Black's Law Dictionary defines the term "Justice" as the "[t]itle given to judges, particularly to judges of U.S. and state supreme courts, and as well to judges of the appellate courts." See Strauss v. Maddox, 109 Ga. 223, 34 S.E. 355 (1899) (the word "justice" is used interchangeably with "judge"). See also Conn. Gen. Stat. 51-201 (referring to "justices of the supreme court") and 51-198 (referring to "associate judges"). Further, an appointment as Chief Justice constitutes a simultaneous appointment as a judge of the Superior Court. Conn. Gen. Stat. 51-198. Thus, the Chief Justice is clearly a "judge" subject to recommendation by the Commission, nomination by the Governor and appointment by the General Assembly.

This is the only construction that is consistent with the language and purpose of our Constitution and statutes. Other possible constructions run afoul of the provisions themselves or the policy they reflect.

Reading the provisions to mean that a sitting Associate Justice could fill out the departing Chief Justice's eight-year term could result in a term of office shorter or longer than the eight years prescribed by Conn. Const. Art. V, 2. Reading the provisions to mean that a sitting Associate Justice could serve out his or her own eight year term as Chief Justice would conflict with Conn. Gen. Stat. 51-198, which describes the office of the Chief Justice as a separate office, one to which the sitting Associate Justice was not recommended, nominated and appointed. This construction would also mean that a sitting Associate Justice, to be elevated to Chief Justice, not only would not need to be recommended by the Commission, but also would not need to be appointed by the General Assembly. This is contrary to Art. V, 2, as amended, which requires that "Judges of all courts" shall be nominated "from candidates submitted by the judicial selection commission" and "shall be appointed by the general assembly." It is also contrary to practice. See Judiciary Committee Proceedings, January 21, 1985, Pt. 1, pp. 1-8 (Ellen A. Peters, having served six years as Associate Justice, is nominated for an eight year term as Chief Justice, requiring General Assembly's confirmation).2

Finally, any of the above constructions would mean that the only judicial nominee not requiring Commission approval would be the nomination of a sitting Associate Justice to the office of Chief Justice. A sitting judge of the Superior or Appellate Court nominated to the Supreme Court would require Commission recommendation. Conn. Gen. Stat. 51-44a(f) ("different court"). A non-judge nominated to the Supreme Court would require Commission recommendation. Id. A sitting Chief Justice seeking reappointment as Chief Justice would require Commission recommendation. Conn. Gen. Stat. 51-44a(e). See Judiciary Committee, January 22, 1993, Pt. 1, pp. 1-58 (Chief Justice Ellen A. Peters appears seeking reappointment as Chief Justice).

A construction that would exempt a sitting Associate Justice seeking appointment as Chief Justice would be illogical, especially since the Chief Justice is the head of the judicial department; Conn. Gen. Stat. 51-1b; receives a statutorily prescribed salary different than any other judge; Conn. Gen. Stat. 51-47(a); and has many important duties delegated specifically to him or her. See Conn. Gen. Stat. 3-1(a) (member of council on gubernatorial incapacity); 52-265a (determines whether Supreme Court will hear certain interlocutory appeals); 52-434(a)(4) (appoints referees).

We therefore conclude that any person you choose to nominate for the office of Chief Justice of the Connecticut Supreme Court, including sitting Associate Justices, must come from the list of qualified candidates the Commission has compiled and provided to you.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Carolyn K. Querijero
Gregory T. D'Auria
Assistant Attorneys General


1 Conn. Gen. Stat. 51-44a(e) provides: "The commission shall evaluate incumbent judges who seek reappointment to the same court and shall forward to the governor for consideration the names of incumbent judges who are recommended for reappointment as provided in this subsection." This subsection has no application in this context. While a sitting Associate Justice is certainly an "incumbent judge," in seeking the office of Chief Justice, he or she is not seeking "reappointment to the same court," but rather a new appointment to a different office, albeit on the same court. See Conn. Gen. Stat. 51-198.

2 Since Justice Peters' 1985 nomination as Chief Justice predated the creation of the Judicial Selection Commission, of course there was no Commission involvement. In 1993, however, when renominated as Chief Justice, she did in fact appear before the Commission.


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