Seal Audio, Inc. v. Bozak, Inc.

Decision Date29 April 1986
Citation199 Conn. 496,508 A.2d 415
CourtConnecticut Supreme Court

Dwight O. Schweitzer, with whom, on brief, was Edward Morelli, Hartford, for appellant (defendant).

Anthony M. Fitzgerald, with whom was Wick R. Chambers, Waterbury, for appellee (plaintiff).


SHEA, Associate Justice.

The principal issue presented by this appeal is whether General Statutes § 52-434(a)(4), which provides for the appointment by the chief justice of qualified members of the bar of the state as state referees, violates provisions of our state and federal constitutions.

The plaintiff brought this action upon a note for $75,000 received as part of the consideration in a sale to the defendant of certain business assets. The defendant pleaded a special defense and also a cross complaint for damages, both of which claimed fraudulent representations by the plaintiff that had induced the defendant to make the purchase and to execute the note. After the case had been placed on the trial list, it was referred, suo motu, by the court, Stoughton, J., to attorney Frederick W. Krug as a state referee appointed pursuant to § 52-434(a)(4). It is undisputed that this reference was made without prior notice to the parties and that their express consent to the reference was never obtained. The parties, nevertheless, appeared for trial before the designated state referee, who conducted the trial and filed a report setting forth the facts found, the conclusions of law reached and a recommendation that judgment enter for the plaintiff to recover the amount due upon the note plus attorney's fees, a total of $90,480. The state referee also filed a "memorandum of decision" explaining some of the findings and conclusions in the report. No motion to correct the report or objections to its acceptance having been filed pursuant to Practice Book §§ 438 and 440, the plaintiff moved for judgment thereon. At the hearing upon the motion, of which notice had been duly given, the defendant did not appear in order to raise its objections to the report. The court ordered that judgment enter in accordance with the report of the state referee.

It was not until the defendant filed its preliminary statement of issues in conjunction with its appeal from the judgment that any objection was raised to consideration of the case by attorney Krug as a state referee. The preliminary statement, as later amended, claimed that the appointment of attorneys as state trial referees pursuant to § 52-434 violates the provisions of our state constitution, article fifth, § 2, requiring that judges of the Superior Court be nominated by the Governor and appointed by the General Assembly, and § 6, prescribing that justices of the Supreme Court and judges of the Superior Court and Court of Common Pleas who have attained the age of seventy years and have become state referees may exercise judicial powers upon matters referred to them as state referees. The statement of issues also alleged violations of the "due process" clause of the fourteenth amendment to our federal constitution and of the analogous "remedy by due course of law" provision of article first, § 10, of our state constitution. In addition, the statement raised numerous claims of error in respect to the findings and conclusions of the referee. Essentially the same claims have been pursued by the defendant in its brief. We find no error.


Before discussing the merits of the defendant's claim that § 52-434(a)(4) is unconstitutional, we must first decide whether the failure to raise this contention in the trial court bars its consideration on appeal. "The supreme court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial." Practice Book § 3063. A recognized exception to this rule is that a challenge to the jurisdiction of a court to render a judgment may be raised at any time, because the lack of subject matter jurisdiction cannot be waived. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974). In Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979), we regarded a collateral attack upon the authority of a state constitutional referee 1 to exercise the powers of the Superior Court in rendering a divorce decree as a challenge to "the power of the tribunal that adjudicated [the] case to hear and to determine the cause of action presented to it." The constitutional issues belatedly raised by the defendant in this appeal similarly implicate the authority of the adjudicative agency whose action was essential to rendition of the judgment. Accordingly, the failure to present these constitutional claims first to the trial court does not bar their consideration in this appeal.


The first ground advanced by the plaintiff to invalidate the appointment of attorneys as state referees pursuant to § 52-434(a)(4) 2 is the requirement of article fifth, § 2, 3 of our state constitution that judges of the Supreme Court and of the Superior Court be nominated by the Governor and appointed by the General Assembly. There is no such requirement for attorney referees, who are appointed solely by the chief justice in accordance with § 52-434(a)(4).

The obvious response to this claim is that attorney referees are not judges of the Supreme or the Superior Courts, to whom the requirements of article fifth, § 2, are made applicable. More precisely, they are not judges at all. Even state constitutional referees, who are expressly authorized by article fifth, § 6, of our state constitution as well as by § 52-434(a)(1) to exercise the powers of the Superior Court on matters referred to them, have been held not to be judges. Florida Hill Road Corporation v. Commissioner of Agriculture, 164 Conn. 360, 365, 321 A.2d 856 (1973). Such a state trial referee "is sui generis" and "sits as a special tribunal." Id., 362. "The state referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts." Monroe v. Monroe, supra, 177 Conn. at 180, 413 A.2d 819.

The defendant claims, however, that, because state constitutional referees, as former judges, were nominated and appointed in accordance with article fifth, § 2, at the time they assumed judicial office, the constitutional requirement has been fulfilled with respect to state referees within this category. No similar function is performed by the executive and legislative branches with respect to the selection of attorney state referees, who are appointed by the chief justice alone pursuant to § 52-434(a)(4). The defendant also points to the enactment of two amendments to the statute following our decision in Monroe v. Monroe, supra, upholding the validity of a judgment rendered by a state constitutional referee. These amendments limited the duration of the appointment of a state constitutional referee to "the remainder of his term of office as a judge"; Public Acts 1980, No. 80-222, § 1; but also made him "eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member." Public Acts 1979, No. 79-426, § 3. By thus imposing the requirement of reappointment by the General Assembly to successive terms of office for a state constitutional referee, the defendant maintains, the legislature has indicated its intention to retain its constitutional authority over the appointment of all those who act as judges under the title of state referee.

The defendant implicitly assumes that an attorney state referee performs the same function as a judge, but this assumption is wholly unfounded. Subdivision (4) of § 52-434(a) does not vest such a referee with the authority to exercise the powers of a court, which is given only to state constitutional referees on matters referred to them by subdivision (1) as well as by article fifth, § 6, of the constitution. Having no power to render a judgment, an attorney referee is simply a fact-finder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445. The rules of practice governing procedure in matters referred to committees are also applicable to "state referees." 4 Practice Book § 428. A committee is obliged to report to the court "the facts found and the conclusions drawn therefrom," but the report may be supplemented with a "memorandum of decision including such matters as [the committee] may deem helpful in the decision of the case...." Practice Book § 434. The attorney referee who heard this case filed such a report and memorandum of decision. A party may seek additions or corrections in the facts contained in the committee's report by filing a motion for that purpose. Practice Book § 438. The reviewing court must correct the finding where material facts have been found without evidence or in ambiguous language and also where undisputed facts have been omitted. Practice Book § 439. Before judgment is rendered upon the report, an opportunity for a hearing before the court is provided for the purpose of considering any objections or exceptions to the report. Practice Book § 442. The function of the court is ordinarily to "render such judgment as the law requires upon the facts in the report as it may be corrected." Practice Book § 443. The court, however, may resort to another procedure. "If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of his report is subverted or that there are other sufficient reasons why the report...

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