Stolberg v. Caldwell
| Decision Date | 08 August 1978 |
| Court | Connecticut Supreme Court |
| Parties | Irving STOLBERG v. J. Edward CALDWELL. Irving STOLBERG v. Lawrence J. DAVIDSON et al. |
Louis M. Winer, New Haven, with whom, on the brief, was J. Michael Sulzbach, New Haven, for the appellant (plaintiff in each case).
Bernard F. McGovern, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for the appellees (defendants).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.
These cases were consolidated and come to the Supreme Court upon a reservation of facts and questions of law pursuant to section 52-406 of the General Statutes as an agreed case in which the parties agree upon the facts on which the controversy depends and submit the same to this court. The plaintiff has been and continues to serve as a member of the faculty and professional staff at Southern Connecticut State College. In the fall of 1970, he was elected a member of the House of Representatives of the General Assembly and has been reelected in each subsequent biennial election.
The defendant in the first action is the comptroller of the state of Connecticut. In the second action, the defendants are the chairman of the board of trustees for the state colleges of the state of Connecticut, the members of the board of trustees of such colleges, the state comptroller, and the auditors of public accounts of the state of Connecticut.
Pursuant to the statute the parties have submitted, inter alia, the following facts upon which the controversy depends: The plaintiff served as a member of the faculty and professional staff at Southern Connecticut State College (Southern Connecticut) during the academic years 1966-1967 through 1968-1969, inclusive. Effective at the end of the academic year 1968-1969, he was dismissed from his position at Southern Connecticut and during the academic years 1969-1970 through 1973-1974, inclusive, he served as a member of the faculty at Quinnipiac College in Hamden. In 1969, he commenced a federal civil rights action seeking reinstatement with tenure and other relief, claiming that the termination of his position at Southern Connecticut was violative of his rights under the first and fourteenth amendments of the United States constitution. In the fall of 1970, the plaintiff ran for and was elected to a seat in the House of Representatives of the General Assembly, representing the 93rd assembly district. He has been reelected to that seat in each subsequent biennial election and has held that seat pursuant to such election.
In March of 1972, the United States District Court for the district of Connecticut rendered judgment in the federal civil rights action referred to above, ordering that the board of trustees for the state colleges of the state of Connecticut (board of trustees) reinstate the plaintiff with tenure. Pursuant to that judgment, he was reinstated by the board of trustees, and at the commencement of the 1974-1975 academic year he returned to his faculty position at Southern Connecticut with tenure, as provided for under the rules and regulations adopted and promulgated by the board of trustees. He has served and continues to serve in that position. He was paid for his faculty services through part of November, 1974, at which time salary payments were discontinued, although the board of trustees continued to maintain his position at Southern Connecticut and to submit his name regularly on the biweekly certified payrolls for Southern Connecticut. Each of these payrolls certified that "(a)ll employees listed herein have been regularly appointed to authorized positions and have rendered the services for which payment is to be made."
The plaintiff has rendered his services with the intention and expectation that he would receive salary payments therefor. He claims that he is entitled to such payments, and he has made demand for them. The defendant comptroller of the state of Connecticut and his predecessor in office have withheld and refused to deliver the plaintiff's faculty salary payments since November of 1974, solely upon the assertion that Southern Connecticut is within the executive department of state government; that the plaintiff's simultaneous service as a member of the General Assembly and as a member of the faculty and professional staff of Southern Connecticut is therefore violative of section 11 of article third of the constitution of the state of Connecticut and section 2-5 of the General Statutes; and that the plaintiff has therefore impliedly relinquished his faculty position.
The plaintiff has framed the issues as presented in his brief as follows: that Connecticut's state colleges are independent and autonomous state institutions, the faculties and professional staffs of which are not within the judicial, legislative, or executive department of the state government, and consequently neither the constitutional nor the statutory dual-job ban applies; that if his faculty position is in any of the three constitutional departments, it is in the legislative department, and, in the circumstances of this case, he is not violating either ban; that he has not impliedly relinquished his state college faculty position; that the dual-job bans are constitutionally invalid because (a) they do not survive applicable strict equal protection scrutiny; (b) they are void for vagueness; and (c) they do not survive applicable first amendment overbreadth scrutiny; and that Connecticut's comptroller is under a ministerial duty to pay the plaintiff's state college faculty salary. 1
Article third, section 11, of the Connecticut constitution, which prohibits a legislator from holding an appointive position in the executive or judicial departments of state government, provides in pertinent part: "No member of the general assembly shall, during the term for which he is elected, hold or accept any appointive position or office in the judicial or executive department of the state government, or in the courts of the political subdivisions of the state, or in the government of any county." 2 The statutory dual-job ban, General Statutes § 2-5, provides: 3
Since the statutory provision contained in section 2-5 only prohibits the appointment of one already a state legislator to a position in one of the three departments of our government, it has no application to the plaintiff in the present case, since his employment as a teacher at Southern Connecticut commenced during the 1966-1967 academic year, i. e., prior to his election. Although the plaintiff's position was terminated in 1969, the United States District Court for the district of Connecticut, in a judgment rendered in 1972, declared his discharge unconstitutional and ordered him reinstated with tenure and back pay in order to " 'put him in as good a position as he would have occupied but for the unconstitutional infringement of his first amendment rights.' " Stolberg v. Members of Board of Trustees, 541 F.2d 890, 892 (2d Cir.). The plaintiff ran for, and was elected to, a term of office in the General Assembly beginning in 1971. Because the termination of the plaintiff's employment as a teacher was adjudged by the court to have been invalid, his reinstatement pursuant to the 1972 judgment cannot be considered an appointment of one who is already a state legislator.
The constitutional provision may, however, be applicable since the plaintiff's status as a teacher is an "appointive position" within the meaning of the constitutional provision. While the common meaning of the word "appoint" is "(t)o assign, designate"; Webster, New International Dictionary (2d Ed.); the word also connotes authority to place in office. The fact that the position to which the plaintiff was appointed was not, in the legal sense, an office but merely an employment does not render the dual-job ban inapplicable under the facts presented since an employee can be said to have been assigned or designated to do a certain job. McAdams v. Barbieri,143 Conn. 405, 417, 123 A.2d 182. Moreover, the term "position" as used in § 5-196(u) of the General Statutes, dealing with state employees, is defined as " a group of duties and responsibilities currently assigned or designated by competent authority to require the services of one employee." Hence, article third, § 11, in its reference to a "position or office," cannot be said to be limited to office-holding alone it was clearly intended to encompass state employment generally. Further, since the board of trustees of the state colleges is authorized under § 10-109b of the General Statutes to appoint executive officers and to employ faculty members of the state colleges, the plaintiff's status as a teacher is an "appointive position" within the meaning of the constitutional provision.
Initially we consider article second of the Connecticut constitution since the basic claims of the plaintiff involve certain historic and fundamental principles as to the respective powers of the legislative, judicial and executive departments under the state constitution. The provisions of article second, which were carried from the constitutions of 1818 and 1955, separate the powers of government into three distinct departments as follows: "The powers of government shall be divided into three distinct...
To continue reading
Request your trial
-
State v. Gethers
...is some clear reason for not doing so, effect must be given to every part of and each word in the constitution." Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub. nom. Stolberg v. Davidson, 454 U.S. 958, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981). Although th......
-
Murach v. Planning and Zoning Com'n of City of New London
...1959 Sess., pp. 5644-45. At common law, a public officer could not simultaneously hold two incompatible offices. Stolberg v. Caldwell, 175 Conn. 586, 605, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981); 63A Am.Jur.2d, ......
-
State v. Glenn
...following tools of analysis should be considered to the extent applicable: (1) the textual approach; see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (Unless the......
-
State v. Sanabria
...138 Conn. 153, 158, 83 A.2d 169 (1951); see Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249 (1900); Stolberg v. Caldwell, 175 Conn. 586, 603, 402 A.2d 763 (1978), appeal dismissed, 454 U.S. 958, 102 S.Ct. 496, 70 L.Ed.2d 374 (1981); Wann v. Reorganized School District No. 6, 293 S.......
-
Connecticut: Post Casey and White
...of defendant stopped for driving without headlights at night.) 14 216 Conn. at 177-78,579 A.2d at 487 quoting Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763, 770 (1978), appeal dismissed sub nom., Stolberg v. Davidson 454 U.S. 958 (1981). But see infra, notes 58-60 and accompanyi......
-
State v. Ross: New Life for Connecticut's Death Penalty?
...except in cases clearly warranted by law." 43. See, e.g., State v. Castonguay, 194 Conn. 416, 420 (1984). 44. Stolberg v. Caldwell, 175 Conn. 586, 591798 45. "Read in its entirety, the text indicates that the specific content appropriately to be assigned to the phrase 'clearly warranted by ......