Florida Hill Road Corp. v. Commissioner of Agriculture and Natural Resources

• Decision Date: 21 February 1973
• Citation: 164 Conn. 360,321 A.2d 856
• Court: Connecticut Supreme Court
• Parties: FLORIDA HILL BOAD CORPORATION v. COMMISSIONER OF AGRICULTURE AND NATURAL RESOURCES of the State of Connecticut.

Page 856

321 A.2d 856

164 Conn. 360

FLORIDA HILL BOAD CORPORATION v. COMMISSIONER OF AGRICULTURE AND NATURAL RESOURCES of the

State of Connecticut.

Supreme Court of Connecticut.

Feb. 21, 1973.

Frank W. Murphy, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for appellant (plaintiff).

Brian E. O'Neill, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and James J. Grady, Asst. Atty. Gen., for appellee (defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ. HOUSE, Chief Justice.

The decisive question on this appeal is whether § 51-29 of the General Statutes ¹ is applicable to proceedings before a state trial referee. By its relevant terms the statute limits the time within which a judgment must be rendered by '(a)ny judge of the superior court or the court of common pleas' but makes no reference to judgments rendered by state trial referees. The plaintiff, however, contends that the provisions of the statute are, nevertheless, applicable to them.

The appeal to this court arose out of an appeal from the assessment of damages in a condemnation case brought to the Superior Court in Fairfield County. Pursuant to § 48-10 of the General Statutes, the court, on March 17, 1970, referred the matter to a state trial referee for adjudication. The case was tried by the referee on June 9, 1970, and 'informally opened' on August 8, 1970, at which time, by correspondence and over the objection of the defendant, an exhibit which had been marked as one for identification was admitted as a full exhibit. The referee announced his decision and rendered judgment on November 13, 1970. On November 18, 1970, the plaintiff filed in the Superior Court motions to 're-open' and to vacate the judgment, claiming that it was 'erroneous, null and void' because it was 'not rendered before the close of the next term or session of the court after the trial of this matter as specified by Section 51-29.' From the denial of these motions the plaintiff has taken this appeal. The only assignment of error pressed by the plaintiff is that the court erred in concluding that the requirements of § 51-29 are not applicable to judgments rendered by a state trial referee.

It is well settled that despite the use of the phrase 'term or session,' properly interpreted, § 51-29 requires that a judge of the Superior Court or the Court of Common Pleas who has commenced the trial of a civil case must decide it before the end of the session of the court next succeeding the seeion at which it was commenced and any decision rendered after that time is erroneous unless there is a waiver or consent by the parties. Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 536, 294 A.2d 573; Hurlbutt v. Hatheway, 139 Conn. 258, 623, 93 A.2d 161; Spelke v. Shaw, 117 Conn. 639, 644, 169 A. 787. While the parties havae also briefed and argued the effect of the action during August of the referee in admitting as a full exhibit an exhibit which had been admitted as one for identification during the hearing of the case, it is unnecessary to base our decision on such a narrow and technical ground. Rather, we conclude that a state trial referee is not a 'judge of the superior court or the court of common pleas' but is sui generis, sits as a special tribunal, and is not restricted by the terms of § 51-29.

Each of our state constitutions has contained an express provision prohibiting a judge from continuing to hold his office after he has arrived at the age of seventy years. The constitutions of 1818 (Article V, § 3) and 1955 (Article V, § 8) provided that '(n)o judge or justice of the peace shall be capable of holding his office, after he shall arrive at the agae of seventy years.' The constitution of 1965, in Article V, § 6, retained the same restriction but changed the word 'capable' to 'eligible' and added the following significant provision: '(E)xcept that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee.'

The plaintiff concedes, as indeed it must, that in light of the constitutional prohibition against any judge holding his office after he has attained the age of seventy years, when a judge attains that age and becomes a state referee, 'it is clear that as a constitutional matter he is not a judge of the superior court.' The plaintiff contends, nevertheless, that since 'as a matter of statute, the trial referee exercises the same powers as the Superior Court, and the same jurisdiction, . . . (he) thus is bound by the provisions of Section 51-29.' With this contention we cannot agree. Not only is such a construction of the statute not in accord with 'the commonly approved usage of the language'; General Statutes § 1-1; but the legislative history of the office of state trial referee does not support such a conclusion.

It is to be noted that there presently exist three categories of state referees. (1) General Statutes §§ 51-50a to 51-50a provide that a judge may retire at age sixty-five or after twenty-five years of judicial service and until he attains the age of seventy be assigned by the chief court administrator to perform in the court from which he has retired such judicial duties as he is willing to undertake and while so assigned '(h)e may be required to perform any duty which might be required of a justice or judge of the court to which he is designated and assigned. Such justice or judge shall have all the powers of a judge of the court to which he is designated and assigned.' § 51-50d. Section 51-50c also provides: '(e) No retired chief justice or judge who has not arrived at the age of seventy shall perform judicial duties except when so designated and assigned except as a state referee in the manner prescribed by law.' Section 51-50f further provides that a retired judge acting as a state referee after attaining the age of seventy years 'shall have the power of a judge of the superior court or court of common pleas on matters referred to him from such court.' (2) Section 52-434 as it read at the time of the judgment in this case ² provided that each judge of the supreme, Superior and Common Pleas Courts who ceases or has ceased to hold office because of retirement for reasons other than disability 'shall be a state referee during the remainder of his life.' (3) The same section provides that the chief justice 'may designate as trial referees, from among the state referees, those to whom cases may be referred, and no case of an adversary nature shall be referred to any referee other than one so designated.' Section 52-434a further provides that in addition to the powers granted to state referees by § 52-434, a Supreme, Superior or Common Pleas Court judge 'who has ceased to hold office as justice or judge because of having retired and who has become a state referee and has been designated as a trial referee by the chief justice of the supreme court shall have and may exercise, with respect to any civil matter referred by the superior court or the court of common pleas, the same powers and jurisdiction as does the referring court.'

In the present matter, the case was tried and judgment rendered by a state trial referee who belongs within the third category-a justice of the Supreme Court who became a referee when he retired at age seventy and was designated as a trial referee by the chief justice. We limit our decision to a consideration of the status of such a state trial referee in that category and conclude that while acting in that capacity such a state trial referee is not a judge of the Superior Court and not limited by the provisions of § 51-29 of the General Statutes.

It appears that the position of state referee was first created by the General Assembly in 1889, when retiring Chief Justice John D. Park was appointed a state referee to hear and report the facts of any case referred to him. Public Acts 1889, c. 249, § 1. Various other individuals were appointed referees by public and special act, in the years following, but it was not until 1919 that the General Assembly generalized the office....