Connecticut Advisory Opinions February 05, 2003: AGO 2003-002 (February 5, 2003)

AGO 2003-002.

Dear Representative Amann:

This letter is in response to your request for a formal legal opinion as to the proper construction of Conn. Gen. Stat. § 51-44a, which governs the appointment of the Judicial Selection Commission, given an internal inconsistency in the statute created by the recent reapportionment of Connecticut's congressional districts. As you point out in your letter, Conn. Gen. Stat. § 51-44a states that the Judicial Selection Commission shall consist of twelve (12) members, two of whom shall be appointed from each congressional district in the state.(fn1) Because, as a result of the 2000 census, Connecticut now has five congressional districts rather than the six that it had in 1985 when § 51-44a was adopted, it is no longer possible to appoint two Commission members from each district and end up with a twelve member Commission. You have asked whether, given this inconsistency, it would be permissible to make the appointments based on the six congressional districts that existed prior to the 2001 reapportionment.

We conclude that Conn. Gen. Stat. § 51-44a should be construed to permit members of the Judicial Selection Commission to be appointed based on the six congressional districts that existed prior to the 2001 reapportionment. In reaching this conclusion, we rely on several well-established rules of statutory construction. First, it is fundamental that "[t]he process of statutory interpretation involves a reasoned search for the intention of the legislature." Bender v. Bender , 258 Conn. 733, 741 (2001). In seeking to discern that intent, "we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Id .

When, as in the present case, parts of a statute are inconsistent, "courts are required to reconcile [the] apparently inconsistent provisions so far as that can be done." McKinley v. Musshorn , 185 Conn. 616, 620 (1981). This means that "when an ambiguity exists, manifest legislative intention must prevail over the literal meaning of the words used." Spring v. Constantino , 168 Conn. 563, 572 (1975). In other words, when construing a "law containing provisions hopelessly inconsistent, effect must be given to those provisions most consistent with the context and clear intent of the legislature." O'Flaherty v. City of Bridgeport , 64 Conn. 159 (1894). The result should "make every part operative and harmonious with every other part insofar as is possible." Schiano v. Bliss Exterminating Co. , 260 Conn. 21, 42 (2002).

In the present case, the entire structure of the Judicial Selection Commission is based on the number twelve. The statute provides that there shall be twelve Commission members, six of whom must be appointed by the Governor and six of whom must be appointed by specific state legislative leaders. Of the six members appointed by the Governor, one must come from each of the congressional districts and all six must be lawyers. The remaining six members must be lay individuals, each of whom must come from a different congressional district. No more than six of the Commission members may belong to the same political party.

As is obvious from the legislative history of Conn. Gen. Stat. § 51-44a, the legislative intent behind this structure was to convert the judicial selection process from a highly politicized process to a system in which no one political party, special interest, or geographical area of the state could dominate the selection of judges. According to Senator Richard Johnson, Connecticut's prior "system of selection of judges [was] especially vulnerable to the charge that such selections [were] made according to the political affiliation of the candidate." 28 Conn. S. Proc., pt. 10, 1985 Sess, 3465 (May 23, 1985) (remarks of Sen. Johnson). During legislative hearings on the Act, the Connecticut Bar Association supported the proposed revision of the system and recommended that the Commission membership "should be bipartisan, geographically distributed and contain an equal number of lawyers and non-lawyers who would serve staggered terms." Joint Standing Committee Hearings, Judiciary Committee, pt. 5, 1581 (April 1, 1985) (testimony of the Connecticut Bar Association). The Citizens Crime Commission of Connecticut, Inc. similarly recommended, based on experiences in other states, that "Commission membership should be geographically representative of the State" and bi-partisan. Id . at 1572 (testimony of Citizens Crime Commission, Inc). The legislation that was adopted incorporated these recommendations. As stated by Senator Johnson, "[i]t is important that the people of Connecticut believe that those selected to judge are judges because they are the most qualified to judge, and judge based on their own consciences, on their qualifications, and without regard to political affiliation." 28 Conn. S. Proc., pt. 10, 1985 Sess, 3466 (May 23, 1985) (remarks of Sen. Johnson).

Given this legislative intent to create a system that carefully balanced the respective influence of the Governor, the legislature, the political parties, the bar, and the various geographical areas of the state, it is clear that the statute must be construed so as to preserve this structure. If the statute were construed to require a twelve member Commission in which "two persons shall be appointed from each [of the current five ] congressional districts, one of whom shall be an attorney-at-law and one of whom shall not be an attorney at law," much of the current symmetry of the statute would be lost. The result would be that the eleventh and twelfth members of the Commission could come from any area of the state and could both be lawyers or non-lawyers, thus enabling one group or another to potentially dominate the judicial selection process.

Under the circumstances, the only construction of the statute preserving the legislative intent to create a non-partisan Commission in which all interests are equally represented is that two Commission members must be appointed from each of the six congressional districts that existed prior to the 2001 reapportionment. In our opinion, this is the only construction of the statute that reconciles its various parts, "make[s] every part operative and harmonious with every other part insofar as is possible," Schiano v. Bliss Exterminating Co. , 260 Conn. 21, 42 (2002) , and preserves the legislative intent. In so concluding, however, we urge the General Assembly to review the language of Conn. Gen. Stat. § 51-44a and make appropriate amendments promptly in order to avoid future controversy concerning the interpretation of this statute.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Jane R. Rosenberg

Assistant Attorney General

fn1 Conn. Gen. Stat. § 51-44a provides in pertinent part that:

(a) There is established a Judicial Selection Commission comprised of twelve members. Two persons shall be appointed from each congressional district, one of whom shall be an attorney-at-law and one of whom shall not be an attorney-at-law. Not more than six of the members shall belong to the same political party. None of the members shall be an elected or appointed official of the state or hold state-wide public office in a political party.

(b) The members of the commission shall be appointed as follows: The Governor shall appoint six members, one from each congressional district, who shall be attorneys-at-law; the president pro tempore of the Senate and the speaker of the House of Representatives shall each appoint one member who shall not be an attorney-at-law; the majority leader of the Senate and the majority leader of the House of Representatives shall each appoint one member who shall not be an attorney-at-law; and the minority leader of the Senate and the minority leader of the House of Representatives shall each appoint one member, who shall not be an attorney-at-law.