You asked about the process for the interim appointment of judges. You also asked whether the legislature must approve the interim appointee during the next regular session and what the interim appointee’s status would be if the legislature did not take up the nomination. Our office is not authorized to give legal opinions, and this report should not be considered one.

SUMMARY

The law requires the governor to submit the name of an interim judicial nominee to the Judiciary Committee when the legislature is not in session and authorizes the committee to approve or disapprove the nomination (CGS § 2-40(b)). Neither this, nor any other, law explicitly creates procedures and deadlines that the next regular session of the General Assembly must follow regarding a judge who was appointed during the interim.

But two other statutes appear to be relevant to your question. CGS § 2-42 requires that each appointment of a Superior Court judge must be by the concurrent resolution of the House and Senate. CGS § 4-19 specifies that interim appointments serve until the sixth Wednesday of the next regular session of the General Assembly and until a successor is elected or appointed or has qualified.

By reading these three statutes together, it appears that an interim judicial appointee should normally be considered and approved by the House and Senate by the sixth Wednesday of the next regular General Assembly. It also appears that the interim appointee continues to serve as a judge even if the legislature misses this deadline because CGS § 4-19 specifies that interim appointees continue to serve until a successor is nominated and appointed. This would also appear to be the case if the General Assembly does not act on the nomination at all during the next regular session.

But because of the precise language in CGS §§ 2-40(b) and 4-19, it is not clear whether, or to what extent, § 4-19 controls an interim appointment of a judge. If CGS § 4-19 does not control, it is unclear what deadline, if any, the legislature must meet during next regular session Nor is it clear whether, or to what extent, it would affect the interim appointee’s status as a judge if the legislature failed to act on the nomination at all during the next regular session.

The courts have not been asked to decide these precise questions and until they do we cannot provide a definitive answer.

CONSTITUTION

Article Fifth, Section 2 of the Connecticut constitution specifies that judges of all courts, except those courts to which judges are elected, must be nominated by the governor exclusively from candidates submitted by the Judicial Selection Commission. The governor’s nominees are appointed by the General Assembly in whatever manner the law prescribes. The constitution does not require legislative approval in any specific manner. Rather it leaves it up to the legislature to determine the manner by which it appoints nominees.

WHEN GOVERNOR MUST MAKE NOMINATIONS

The governor must nominate a candidate for a judicial vacancy within 45 days of the date he receives the Judicial Selection Commission’s recommendations (CGS § 51-44a(h)). The governor sends the nomination to the legislature which must refer it, without debate, to the Judiciary Committee (CGS § 2-40(a)).

In general, the governor’s nominations must be made on or before May first. But if a vacancy results from a death occurring on or after May 1^st but before the session adjourns, he may make a nomination as soon as possible thereafter and the nomination must be referred immediately to the Judiciary Committee (CGS § 4-2).

APPOINTMENTS WHEN GENERAL ASSEMBLY NOT IN SESSION

The governor may not fill a vacancy when the General Assembly is not in session unless he first submits the proposed appointee’s name to the Judiciary Committee. Within 45 days, the committee may hold a special meeting to approve or disapprove the proposed appointee by majority vote. The governor may not administer the oath of office to the interim appointee until the committee approves the appointment. If the committee cannot complete its investigation and act on the appointment within the 45-day period, it may extend the period by 15 days, but it must notify the governor in writing of the extension. The committee is deemed to have approved the appointment if it fails to act within the 45-day or 15-day extension period (CGS § 2-40(b)).

STATUS OF INTERIM JUDICIAL APPOINTMENT

It is not clear what would happen to the status of an interim Superior Court appointee if the General Assembly failed to act on the nomination by the sixth Wednesday of the next regular General Assembly, or failed to act at all on the nomination.

The law requires the Judiciary Committee to act on a judicial nomination within 30 legislative days (CGS § 2-40(a)). But this law does not specify a time frame for the House or Senate to act.

Prior to 1983, the law appeared to be well settled on the effect of legislative delay or inaction. The interim appointment of judges was controlled by CGS § 4-19. Under this statute, the governor is authorized to fill an interim vacancy “until the sixth Wednesday of the next regular session of the General Assembly, and until a successor is elected or appointed or is qualified. ”

The Supreme Court interpreted this language to mean that an interim appointee continues to hold office until he is officially replaced, which only occurs if a successor is nominated by the governor and appointed by the General Assembly (State ex rel. McCarthy v. Watson, 132 Conn. 518 (1946)). (OLR report 84-R-0816 discusses this issue in some detail. )

It is unclear whether this case continues to control in light of the 1983 passage of PA 83-353, which became CGS § 2-40(b). This act requires the governor to submit the name of an interim judicial nominee to the Judiciary Committee when the legislature is not in session and authorizes the committee to approve or disapprove the nomination. Prior to this act, the governor was authorized to make an interim appointment without legislative involvement.

Section 2-40 (b) begins with these words: “Notwithstanding the provisions of section 4-19. ” A court could construe this phrase to mean that CGS § 4-19 no longer controls interim judicial nominations and appointments. If it does so, the status of an interim appointment becomes unclear if the next regular session of the General Assembly fails to take action.

Unlike CGS § 4-19, § 2-40(b) does not specify a time frame for legislative action during the next regular legislative session, nor does it specify that an interim appointment continue until a successor is appointed and has qualified. Instead, it merely states that the governor can “administer the oath of office” to the appointee if the Judiciary Committee approves him by action or inaction.

Since the McCarthy case seemed to turn on the precise statutory language in CGS § 4-19 regarding the continuation of the appointment until a successor is appointed and qualified, it is not clear how the court would deal with the absence of identical or even similar language in § 2-40 (b). (The courts have labeled this type of statutory language a “hold-over-provision. ”)

In the absence of a “hold-over provision” in CGS § 2-40(b), a court might conclude that there remains a vacancy in the position, which could be filled by another nomination by the governor and appointment by the General Assembly. (See State ex rel. Hendrick v. Neating, 120 Conn. 427 (1935), relating to an appointment to the Board of Finance and Control. (Also see OLR 84-R-0816. )

The language in the beginning of CGS § 4-19 presents an additional hurdle for arguing that § 4-19 applies to interim judicial appointees. This language limits the applicability of § 4-19 to situations where no other provision has been made for filling any vacancy in an office. It can be argued that CGS § 2-40(b) is such a provision, and thus, § 4-19 does not apply.

On the other hand, a court could conclude that CGS §§ 2-40(b) and § 4-19 should be read together and that the notwithstanding clause was not meant to eliminate all the provisions of § 4-19 but only those that allow the governor to make an interim appointment on his own. It could also try to harmonize these two sections by reasoning that since § 2-40(b) does not explicitly address the process of appointment by the full General Assembly during the next regular session and CGS § 2-42 requires that appointments be by concurrent resolution of each chamber, portions of §4-19 continue to govern the final appointment of interim judicial appointees. With this interpretation, a court could conclude that the holdover language in CGS § 4-19 continues to control the interim appointment of judges and continue to follow the McCarthy holding.

HISTORICAL PRECEDENT

Attorney Rick Taff of the Legislative Commissioners Office (LCO) found the following examples where the legislature acted on interim judicial appointees after the sixth Wednesday of the next regular legislative session.

In July 1993, Governor Weicker appointed Jon Alander and Christine Keller to be Superior Court judges. The Judiciary Committee held a public hearing and approved the appointments on August 19, 1993. On the first day of the 1994 regular session (February 9), Governor Weicker submitted his nominating letters for these two interim judges to the General Assembly. The Judiciary Committee held a public hearing on March 14, 1994 and reported favorably on both nominations. The House confirmed the nominations (HJ 51 and HJ 52) on Wednesday, March 23, 1994, the seventh Wednesday of that session, and the Senate confirmed the nominations a week later on Wednesday, March 30, 1994, the eighth Wednesday of that session.

In 1985, Governor O'Neill appointed George Brodigan as a judge during the interim. In the 1986 regular session, the Judiciary Committee gave his nomination an unfavorable report. The Senate accepted the unfavorable report (thereby in effect rejecting the nomination) on March 19, 1986, the seventh Wednesday of that session.

In both cases, according to Attorney Taff, it appears that these interim-appointed judges were still sitting as judges on and after the sixth Wednesday of the next regular session.

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