Adams v. Rubinow

Decision Date20 November 1968
Citation157 Conn. 150,251 A.2d 49
CourtConnecticut Supreme Court
PartiesRaymond K. ADAMS et al. v. Jay E. RUBINOW et al.

John S. Murtha, Hartford, with whom were James P. Sandler, John E. Silliman, Hartford, and, on the brief, Arthur B. Locke, Hartford, for plaintiffs.

Raymond J. Cannon, Asst. Atty. Gen., with whom were Edward J. Peters, Jr., Asst. Atty. Gen., and, on the brief, Robert K. Killian, Atty. Gen., for defendants.

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

The plaintiffs comprise thirty of the judges of probate of Connecticut, each of whom was elected for a four-year term commencing on January 4, 1967. Each of ten Probate Court clerks, as listed in the stipulation of facts, authorized the plaintiff employing him to prosecute this action in his behalf. The named parties defendant are the Probate Court Administrator, the Chief Court Administrator, the Commissioner of Public Works, the Treasurer of Connecticut, the Commissioner of Finance and Control of Connecticut and the Comptroller of Connecticut.

The plaintiffs claim that No. 558 of the Public Acts of 1967, entitled 'An Act Concerning Administration of the Probate Court', and hereinafter referred to as the Act, is in large part unconstitutional, and they seek answers, upon a stipulation of facts, to certain stated questions.


Before answering the specific questions asked, it is desirable, if not essential, to set forth certain general rules applicable in testing claims that a statute is unconstitutional and also to set forth certain fundamental principles as to the respective powers of the legislative and judicial departments of our government which are of controlling force in the determination of claims made by the plaintiffs in their discussion of the specific questions.

Relevant applicable principles of constitutional law will first be considered. Because of the separation of powers, one claiming that a legislative enactment is invalid on the ground that it is unconstitutional must establish its invalidity on that ground beyond a reasonable doubt. Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 470, 217 A.2d 698. A corollary of this rule is that a plaintiff, in challenging the constitutionality of a statute, must sustain the burden of proving that the effect or impact of the challenged statute on him adversely affects a constitutionally protected right which he has. 'This means a right which he proves that he has under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.' Hardware Mutual Casualty Co. v. Premo, supra, 471, 217 A.2d 702, and cases cited. A further corollary is that, where a statute reasonably admits of two constructions, one valid and the other invalid on the ground of unconstitutionality, courts should adopt the construction which will uphold the statute even though that construction may not be the most obvious one. Carilli v. Pension Commission of City of Hartford, 154 Conn. 1, 8, 220 A.2d 439; Ferguson v. Borough of Stamford, 60 Conn. 432, 447, 22 A. 782; Town of Wilton v. Town of Weston, 48 Conn. 325, 338. Of course, the fact that the plaintiffs chose to request a declaratory judgment, upon a stipulation of facts, in nowise changes or relieves them of the burden of proof resting on them. Hardware Mutual Casualty Co. v. Premo, supra, 153 Conn. 472, 473, 217 A.2d 698.

We now turn to certain fundamental principles as to the respective powers of the judicial and legislative departments under the Connecticut constitution as involved in certain basic claims of the plaintiffs. Prior to the adoption of our first constitution in 1818, legislative, executive and judicial powers had been centered in, and exercised by, the General Assembly and its predecessor, the General Court. One of the great achievements, if not the greatest achievement, of the constitution of 1818 was the division of the powers of government into three distinct departments, legislative, executive and judicial, each confided to a separate magistracy. Statutes, 1821, preface, p. VII and p. 149 n. 1; State Bar Ass'n. of Connecticut v. Connecticut Bank & Trust Co., 145 Conn. 222, 231, 140 A.2d 863, 69 A.L.R.2d 394. This separation was accomplished by article 2 of the constitution of 1818 entitled 'Of the Distribution of Powers', which read as follows: 'The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy-to wit-those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.' This provision, unchanged except for insignificant variations in punctuation, was carried into the constitutions of 1955 (article 2) and 1965 (article 2).

In the period from 1818 until the decision in Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 586, 37 A. 1080, 38 A. 708, in 1897, and in spite of the decision in Brown v. O'Connell, 36 Conn. 432, 446, there was a failure to appreciate the full import and application of article 2. See, for instance, Wheeler's Appeal, 45 Conn. 306, 315. But in the Norwalk case it was finally clearly determined that (1) the constitution represented a grant of power from the people, in whom all power originally resided, and (2) the powers granted to the General Assembly are legislative only and those granted to the judiciary are judicial only. Id., 69 Conn. 592, 37 A. 1080. But the legislative powers granted the General Assembly are complete except as restricted by the state or federal constitution, just as the judicial powers granted the judicial department are complete except as restricted by the state or federal constitution. Patterson v. Dempsey, 152 Conn. 431, 444, 207 A.2d 739. Any doubt as to the authority of the Norwalk case was set at rest in 1912 in Bridgeport Public Library & Reading Room v. Burroughs Home, 85 Conn. 309, 319, 82 A. 582, and its construction of article 2 has been followed consistently up to, and including, the present time, two of the more recent cases being State Bar Ass'n v. Connecticut Bank & Trust Co., supra, and Heiberger v. Clark, 148 Conn. 177, 185, 189, 169 A.2d 652.

The plaintiffs make the basic claim that this construction precludes the legislature from making any rules for the administration of, or the practice or procedure in, the probate courts, either directly or through delegation to another person such as the probate court administrator, as is purportedly done in § 8 of the Act.

Indeed, the plaintiffs claim that the General Assembly can make no rule regarding the administration of, or practice or procedure in, any court, unless expressly authorized by the constitution, that no such authority has been conferred, and thus that the legislature has itself no rule-making power and consequently could confer none on a probate court administrator or on anyone else. Although the simplicity of this reasoning is appealing, it must be rejected as an incorrect statement of our law. Unfortunately, perhaps, grave constitutional questions cannot be so easily solved. 'The rule of separation of governmental powers cannot always be rigidly applied.' Matter of Rosenthal v. McGoldrick, 280 N.Y. 11, 14, 19 N.E.2d 660, 661; 20 Am.Jur.2d 432, Courts, § 65. The rulemaking power of the courts is the subject of an annotation in 110 A.L.R. 22, supplemented in 158 A.L.R. 705.

The courts of this state fall into two groups, those established by the constitution itself and those created by the General Assembly under authority granted in the constitution. Section 1 of article 5 of the constitution of 1818, carried over, virtually unchanged, into the constitutions of 1955 and 1965, provided as follows: 'The judicial power of the state shall be vested in a Supreme Court of Errors, a Superior Court, and such inferior courts as the General Assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.' 1 Thus, the Supreme Court and the Superior Court are established by the constitution and may be referred to as constitutional courts, while all other courts, including, of course, the probate courts, are established by the legislature and fall within the designation of 'lower courts'. An elaborate discussion of the historical development of our judicial system may be found in Styles v. Tyler, 64 Conn. 432, 442, 30 A. 165.

The effect of the development in the understanding of the true meaning of the constitutional provision for separation of powers, in the intervening years since 1818, as far as rule making is concerned, is that the General Assembly has no power to make rules of administration, practice or procedure which are binding on either of the two 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. In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50. Manifestation of such acquiescence may, although it need, not, take the form of the adoption of the statutory rule as a rule of court in the exercise of the court's inherent rule-making power. Heiberger v. Clark, supra; State Bar Ass'n. v. Connecticut Bank & Trust Co., supra, 145 Conn. 231, 140 A.2d 863, 69 A.L.R.2d 394.

But, in the case of the lower courts, including, of course, the probate courts, which the General Assembly, under § 1 of article 5, is given the constitutional power to create, 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 power of the General Assembly with respect to the lower courts can, and preferably should be delegated to the Supreme Court as it...

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