Attorney General: The Honorable Kevin B. Sullivan, Connecticut General Assembly, 2004-003 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 22, 2004

The Honorable Kevin B. Sullivan
President Pro Tempore
Senate
Connecticut General Assembly
Hartford, CT 06106

Dear Senator Sullivan:

You have asked for a formal legal opinion regarding the recommendation by the Judicial Selection Commission of Joseph Mengacci for nomination as a judge. You ask specifically what actions constitute "consideration" of a candidate's application by the Judicial Selection Commission (hereinafter "Commission"). As you set forth in your letter, Conn. Gen. Stat. § 51-44a(l) prohibits a former Commission member from being "considered for recommendation to the governor for nomination as a judge" for two years after termination of his tenure on the Commission.

The key questions raised in your letter are what actions constitute "consideration" by the Commission and what the consequences are if a judicial nominee was improperly seated in violation of this revolving door provision.

For the reasons set forth below, we conclude that, in the absence of statutory or regulatory definition, "consideration" of a candidate begins within the meaning of § 51-44a(l) when the candidate's application is filed with the Commission. In this specific instance concerning Judge Mengacci, he applied to the Commission on July 9, 2003. His tenure on the Commission ended on August 31, 2001, the date his successor Attorney Michael G. Tansley was appointed to replace him. See Conn. Gen. Stat. § 4-1. Accordingly, Judge Mengacci's application to the Commission on July 9, 2003 for consideration for a judgeship violated Conn. Gen. Stat. § 51-44a(l).

As to your other question, we conclude that the statute provides no sanction for violation of its provisions. The legislature may refuse to confirm a nominee if it determines that the nominee's application was prematurely considered by the Commission in violation of § 51-44a(l), but there is no statutory requirement that it do so, or that the Governor withdraw the nomination. Because Judge Mengacci's nomination was confirmed on an interim basis, we conclude that any action taken by him as a judge is valid. Even if his interim appointment were not valid, his judicial acts are entitled to de facto validity.

The relevant statute, Conn. Gen. Stat. § 51-44a(l), provides that "[n]o member of the commission who is an attorney-at-law shall be considered for recommendation to the governor for nomination as a judge during his tenure on the commission or for a period of two years following the termination of his tenure on the commission." Your first question asks what action constitutes being "considered" by the Commission.

A brief overview of the judicial selection process is instructive in resolving this question. The Judicial Selection Commission is required to seek "qualified candidates for consideration by the Governor for nomination as judges for the Superior Court." Conn. Gen. Stat. § 51-44a(f). Each candidate seeking consideration for appointment to a judicial office "shall complete the appropriate application forms promulgated by the commission." Regs., Conn. State Agencies § 51-44a-8 (b).

The statutes and regulations are silent as to when an application is deemed considered. Nor does the legislative history of § 51-44a(l) shed additional light on this ambiguity. In light of the ambiguity created by this silence, we interpret this provision in a manner consistent with the fundamental policy reasons underlying the revolving door statute, namely, to ensure and enhance public confidence in the process used by the Commission to consider candidates by reducing the appearance of favoritism that might arise when a former Commission member applies to the Commission shortly after his tenure on the Commission has ended.

In light of this purpose, and in the absence of statutes or regulations that clearly set forth the point at which consideration begins, we conclude that it must be measured by the date the application is filed with the Commission—a date that should be precisely ascertainable and consistently applicable, not uncertain or variable with changes made in the Commission's informal procedures in processing applications or scheduling a candidate's interview.

The Commission has indicated that it believes that a candidate is "considered" at a later point in the process--when it interviews the candidate at the completion of its investigation of the candidate's application and decides whether to recommend the candidate to the Governor. The Commission bases its view on the fact that the legislature could have clearly stated in the statute, but chose not to do so, that the two year period is to be measured from the end of the Commission member's tenure to the date when he or she applies to the Commission.

Although that interpretation is superficially plausible, we believe that it is incorrect. The better view is that the Commission's consideration begins when the application is filed, because it best serves the legislature's implicit goal to protect the credibility and integrity of the judicial selection process. Although the legislature chose to use the term "consider" rather than "apply", it gave that term no statutory definition, so the law should be construed and given meaning that advances the statute's purposes. Paige v. Town Plan and Zoning Com'n, 235 Conn. 449, 454-55, 668 A.2d 340 (1995). As discussed below, the term "considered" denotes a process that may begin as early as the date the application is filed and sets in motion the process of review and evaluation leading to a decision by the Commission whether to recommend the candidate for appointment.

Since the term "considered" is not defined by statute, resolving the ambiguity requires us to first review commonly understood meanings of the word. See Conn. Gen. Stat. § 1-1(a) ("In the construction of the statues, words and phases shall be construed according to the commonly approved usage of the language."); State v. Indrisano, 228 Conn. 795, 809, 640, A.2d 986 (1994) ("If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary."). Standard definitions of the phrase typically refer to the act of consideration as involving a process that includes study, examination and deliberation. See, e.g., The American Heritage Dictionary, New College Edition, 284 (1976)("Consider: "1. To deliberate upon; examine; study . . . "). As a practical matter, this process necessarily begins when the application is filed. At that time, there is no legal prohibition that would prevent Commission members from beginning to study, examine and deliberate on the candidate's qualifications, experience, references, and other relevant information even though there may be an informal Commission practice to distribute an application only after it is deemed complete.

Second, our construction of "considered" as a process beginning with the filing of the application finds support in the regulations of the Commission, which specifically establish a number of procedural steps for considering a candidate. Article II of the Commission's regulations, titled "Procedure for Consideration of the Candidates for Judicial Office," sets forth, as a part of the consideration of a candidate, a comprehensive procedure for the various methods of information gathering and evaluation of the candidate that is not limited solely to the interview. The regulations define the "preliminary examination" of a candidate to include an investigation, a review of the application and related documents submitted to the Commission and an interview. Regs., Conn. Stat. Agency § 51-44a-6(6). The regulatory term "examination," like the word "considered," contemplates a process of careful analysis and scrutiny. American Heritage Dictionary, New College Edition, 456 (1976). For these reasons, we conclude that this consideration process necessarily begins well before the Commission conducts an interview of the candidate and votes to recommend or not recommend the candidate. In fact, consideration of an applicant is a continuum -- a series of steps, not a single action or moment in time.

A more lenient construction of the statute might suggest that consideration begins when the application is deemed complete by the Commission's staff. Under regulations and practices of other agencies, consideration commonly begins only when the submission of required information and documents is complete and the matter is ready for review. Cf. Conn. Gen. Stat. §§ 19a-486a(d) and 19a-486b (statutory review of hospital conversion application begins when the application is deemed complete). As a practical and informal matter, we understand the Commission typically deems an application complete when it has received letters of reference from the six individuals designated by the candidate to write a letter supporting the application, and other information and documents typically gathered during this process. However, none of the Commission's regulations specify – or even generally indicate – the point in the process when an application is deemed complete.

We reject as unworkable this construction of the statute. Kim v. Magnotta, 249 Conn. 94, 102 (1999). In light of our conclusion that consideration begins by the Commission before it conducts an interview of the candidate, and the absence of a specific statutory or regulatory delineation of the precise point at which consideration begins, the commonly understood meaning of the term and the fundamental purposes of the revolving door provision require us to construe the term "considered" to mean the date the candidate files an application with the Commission. If we were to select another date within the process arbitrarily--one that is not based in either statute or regulation--then the statutory prohibition would depend upon the vagaries of the Commission's actions in processing a particular candidate's application, rather than on a mandated procedure made knowable and applicable to all candidates. Our interpretation makes the process transparent and definite. It sets a bright line—powerfully supported by the legislature's stated goals. The legislature may readily set forth its own definition if it disagrees with ours.1

Your second question is whether Judge Mengacci was impermissibly considered by the Judicial Selection Commission in violation of Conn. Gen. Stat. § 51-44a(l). Based upon the dates provided to us in your letter and confirmed by the Commission, we conclude that Judge Mengacci was considered by the Commission in violation of § 51-44a(l). We understand from the Commission that the last document necessary to complete Judge Mengacci's application was received by the Commission on August 6, 2003. Thus, even if we were to adopt the more lenient approach of interpreting the date of consideration as the date the application was deemed complete, Judge Mengacci would have been "considered" by the Commission in violation of Conn. Gen. Stat. § 51-44a(l).

Your third question asks about the legal consequences if Judge Mengacci was in fact considered by the Commission prior to the expiration of the two year revolving door period. Specifically, assuming a violation of § 51-44a(l), you ask whether the General Assembly is prohibited from acting on his nomination until and unless he is reconsidered and re-approved by the Commission, and nominated again by the Governor.

In addressing this issue, we note that the legislature specified no sanction or specific consequence for a violation of § 51-44a(l). Compare Conn. Gen. Stat. §§ 1-84b(b) and 1-88 (imposing civil penalties for violations of Ethics Code's revolving door provisions). The legislature did not provide in § 51-44a(l) that it was barred from acting on the nomination of any candidate who was recommended to the Governor by the Commission in violation of the statute. (Indeed, there is no prohibition against the Commission voting on the application). We cannot read into the statute a sanction that it does not contain. See Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441-42 (1993) (refusing to impose the sanction of "automatic approval" of land use application where the legislature did not impose a specific sanction for failure to meet the statutory deadline for conducting a public hearing and distinguishing other land use statutes that do provide for automatic approval for failure to comply with statutory mandates).

Thus, we conclude that the prohibition is directory, rather than mandatory, and it is for the political branches to enforce, if they choose. Generally, in the absence of a specific legislatively imposed sanction, if the Governor believes that a candidate has been improperly or prematurely considered by the Commission in violation of § 51-44a(l), the Governor may refuse to nominate such person or withdraw the nomination for a judgeship. Similarly, if the legislature concludes that a candidate was prematurely considered, it may refuse to confirm the nomination. It is not required to do so. By declining to specify a consequence for such violation of law, the legislature reserved for itself or the Governor the full discretion to assess each case based on all the circumstances, qualifications of the individual and other relevant factors.

Lastly, you ask about the legal validity of decisions of a nominee who was seated as an interim judge after the nominee was recommended by the Commission in violation of § 51-44(a)(1). As noted above, the legislature is free to reject the nomination of any person if it believes that he or she was considered by the Commission in violation of § 51-44a(l). Because the legislature approved Judge Mengacci's nomination on an interim basis, we conclude that he was not improperly seated as an interim judge. Consequently, any decisions he made as an interim judge are valid and legally binding. Even if we were to conclude that he was improperly seated, his actions would still be entitled to de facto validity. Buckley v. Valeo, 424 U.S. 1, 142, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (prior acts of Federal Elections Commission were entitled to validity, despite the fact that the Commission, as constituted, violated the appointments clause of the federal constitution); State v. Carroll, 38 Conn. 449, 477-79 (1871) (once a judge enters into the official duties of the office, he is a de facto judge, and his acts are valid, and not open to collateral attacks concerning his alleged ineligibility to hold office); see also Furtney v. Simsbury Zoning Commission, 159 Conn. 585, 595-96 (1970). The legislature, of course, has unrestricted power to approve or reject Judge Mengacci's nomination for a full eight year term if it concludes, as a factual matter, that he was considered by the Commission in violation of Conn. Gen. Stat. § 51-44a(l), or for any other reasons it deems appropriate.

I trust this answers your inquiry.

Very truly yours,



RICHARD BLUMENTHAL

RB/mdr


1We also reject as unworkable a more recent potential definition of "considered"—suggested but not advocated by the Commission in a letter dated March 18, 2004-- that the earliest point at which a completed application may be "considered" is the date on which the application package is mailed to the Commission members. In the case of Judge Mengacci, the Commission has advised us that his application package was completed on August 6, 2003, but was not mailed to Commission members until sometime after Labor Day, which fell on September 1, 2003. The Commission has no rules or procedures—and indeed maintains no record—detailing when the application materials are distributed to members after the application has been deemed complete in particular cases. In fact, in Judge Mengacci's case, the Commission is unable to provide the precise date on which the materials were mailed to members, but relies on individual recollections that the distribution occurred sometime “after the Labor Day weekend.” Nor are we aware of any rule or procedure that would prevent Commission members access to application materials before they have been mailed to them by the Commission staff. We cannot conclude that the legislature intended compliance with the statute to rest on the date of an event—the mailing of the application-- that is unpredictable, perhaps arbitrary, and dependent on such variables as convenience, weather, or whim.


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