Lublin v. Brown

• Decision Date: 25 March 1975
• Citation: 362 A.2d 769,168 Conn. 212
• Court: Connecticut Supreme Court
• Parties: Gerald R. LUBLIN v. F. George BROWN, Tax Commissioner of State of Connecticut.

Page 769

362 A.2d 769

168 Conn. 212

Gerald R. LUBLIN v. F. George BROWN, Tax Commissioner of State of Connecticut.

Supreme Court of Connecticut.

March 25, 1975.

Richard K. Lublin, East Hartford, with whom, on the brief, was Dennis N. Kantor, East Hartford, for appellant (plaintiff).

Richard K. Greenberg, Asst. Atty. Gen., with whom, on the brief, were Robert K. Killian, Atty. Gen., and Ralph G. Murphy, Asst. Atty. Gen., for appellee (defendant).

Before HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and LONGO, JJ.

HOUSE, Chief Justice.

The plaintiff brought this action seeking a declaratory judgment that §§ 30 and 31 of Public Act No. 223 enacted by the 1972 session of the General Assembly are unconstitutional, null, void and unenforceable and a refund of all monies collected by the defendant pursuant to the provisions of those sections. Section 31 of the act is simply a repealer of an earlier statute and the plaintiff's attack is entirely directed to the provisions of § 30 which is now printed as § 51-81b of the General Statutes entitled 'Occupational tax on attorneys.' ¹

Public notice of the pendency of the action was published in several newspapers in the state and subsequently, on motion of the plaintiff, the Superior Court entered an order pursuant to the provisions of § 52 of the Practice Book and § 52-105 of the General Statutes authorizing the plaintiff 'to prosecute this action on behalf of all persons admitted as attorneys by the judges of the Superior Court for the State of Connecticut and who are engaged in the practice of law, including the performance of judicial duties in the State of Connecticut and who are similarly situated,' and authorizing the attorney general to defend the action on behalf of all such persons who are seeking to uphold the act.

The case was not tried in the Superior Court and the parties, instead of a trial, stipulated to the facts and requested a reservation to this court, submitting five questions for the consideration and advice of this court. ² The court made the reservation in accordance with the stipulation of the parties.

The stipulated facts include a recital that the plaintiff has been admitted as an attorney by the judges of the Superior Court and is actively engaged in the practice of law. The defendant is the tax commissioner of the state of Connecticut and is charged by § 51-81b with the collection of the occupational tax prescribed by that section.

Before discussing the questions which have been reserved for the advice of this court, we deem it necessary to clarify one ambiguity in the plaintiff's motion made pursuant to the provisions of § 52 of the Practice Book and the court's order thereon. Section 52 of the Practice Book, entitled 'Numerous Parties,' provides that when the persons who might be made parties are very numerous so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all. As we have noted, the general class which is subject to the tax in question is composed of '(a)ny person who has been admitted as an attorney by the judges of the superior court, and who was engaged in the practice of law, including the performance of judicial duties,' during the preceding year. Paragraph one of the plaintiff's complaint alleges that he is an attorney at law admitted by the judges of the Superior Court and 'engaged in the practice of law.' There is no stipulation that his practice of law includes the performance of any judicial duties. Paragraph two of the complaint alleges that he brings the action 'on behalf of himself and all other attorneys practicing in the State of Connecticut, including the performance of judicial duties, similarly situated.' It is apparent that the plaintiff is not 'similarly situated' as are those persons who are engaged in the performance of judicial duties, and the plaintiff has not asserted such a claim.

In his motion pursuant to the provisions of § 52 of the Practice Book, the plaintiff represented that his individual situation in relation to the statute in question 'is typical of all other persons admitted as attorneys by the judges of the Superior Court for the State of Connecticut and who are engaged in the practice of law throughout the State of Connecticut' and that '(h)e is competent to prosecute this action on behalf of such taxpayers.' His motion, however, was for an order allowing him to sue 'on behalf of all persons admitted as attorneys . . . and who are engaged in the practice of law, including the performance of judicial duties, who are similarly situated.' The order of the court was in the same language, authorizing the plaintiff to prosecute the action on behalf of all admitted attorneys 'who are engaged in the practice of law, including the performance of judicial duties . . . and who are similarly situated' and the attorney general to defend the same described persons who seek to uphold the constitutionality of the legislation.

The problem is more than one of semantics. The ambiguity arises from the authorization to the plaintiff, on the one hand, to represent all attorneys who are engaged in the practice of law, including the performance of judicial duties, but, on the other, limited to representation of those 'who are similarly situated,' and the plaintiff, although engaged in the general practice of law, is not engaged in the performance of judicial duties.

It is obvious that members of the bar who are engaged in the performance of judicial duties and particularly those who are constitutional officers in the judicial department of the state are in a different status than attorneys engaged in the general practice of law. They are also the only salaried constitutional officers of the state on whom a tax is levied because of the performance of the official duties which they perform for the state in the judicial magistracy. Under these circumstances, it can hardly be said with accuracy that the plaintiff's situation was typical of that of all persons on whom the tax is levied. The record and briefs disclose that no consideration whatsoever was given in these proceedings to the difference in status between a practicing attorney and a judicial officer and the case was briefed and argued solely on the constitutionality of the tax as applied to those 'who are similarly situated' as is the plaintiff as an attorney engaged in the general practice of the law. In these circumstances, we treat the case as did the parties and answer the reserved questions only so far as they are applicable to persons 'who are similarly situated' as is the plaintiff.

Our foregoing observations are in no way intended to imply that the difference in status would require a difference in result or an invitation to seek such a determination. They are simply a recognition of the established legal principle that '(w)here the only common interest of members of a class is a common interest in some of the questions of law or fact involved in a suit relating to rights which are several, the judgment cannot, consistently with due process, be binding upon or affect the rights of any persons other than those who are or may become actual parties to or participants in the litigation.' 59 Am.Jur.2d 420, Parties, § 53. '(A) selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires.' Id. § 60, p. 432; see Hansberry v. Lee, 311 U.S. 32, 40-43, 61 S.Ct. 115, 85 L.Ed. 22.

The plaintiff challenges the constitutionality of the tax on two grounds. The first is that is violates the equal protection clauses of both § 1, of the fourteenth amendment to the constitution of the United States and article first, § 1, of the constitution of Connecticut. The second is that it violates the provisions of article second of the constitution of Connecticut in that, in enacting the statute, the General Assembly 'overreached its bounds and infringed upon the magistracy of the coequal judicial branch of government in attempting to regulate and tax it.'

In considering the plaintiff's first claim of unconstitutionality, we again note that the equal protection clause provision of article first, § 1, of the constitution of Connecticut has a meaning equivalent to the similar provision in the fourteenth amendment to the constitution of the United States upon which the plaintiff relies. State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 105, 90 A.2d 862; Franco v. New Haven, 133 Conn. 544, 548, 52 A.2d 866; Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702. The basis for the plaintiff's argument in support of his first claim is that attorneys have been singled out as a class, have had a tax imposed upon them, the sole purpose of which is to raise revenue, that such a tax is imposed upon no other group and, therefore, is unreasonable, arbitrary and bears no fair and substantial relation or relevance to the object of the legislation.

It is well settled that a plaintiff who attacks a statute on constitutional grounds has no easy burden. As this court said in Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49, 55: '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. Hardward Mutual Casualty Co. v. Premo, 153 Conn. 465, 470, 217 A.2d 698. . . . (W)here 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 obvious one. Carilli v. Pension Commission, 154 Conn. 1, 8, 220 A.2d 439; Ferguson v. Stamford, 60 Conn. 432,...