You asked about the origin of the current system for selecting the chief state’s attorney and the state’s attorneys, and whether the system was established because of constitutional problems with the previous system.

SUMMARY

The current system for selecting the chief state’s attorney and the state’s attorneys originated with a constitutional amendment adopted in 1984, and implementing legislation that was enacted that year and the following year (HJR 35; PA 84-406; PA 85-440).

The amendment (Article 23^rd of the Amendments to the Connecticut Constitution) constitutionally established within the executive department a Division of Criminal Justice and authorized it to be in charge of the investigation and prosecution of all criminal matters. The division includes the chief state's attorney as its administrative head, and the state's attorneys for each judicial district. The amendment vests the prosecutorial power of the state in a chief state's attorney and the state's attorney for each judicial district. It requires that the chief state's attorney be appointed as prescribed by law.

Section 51-278 of the General Statutes authorizes the Criminal Justice Commission to appoint as administrative head of the Division of Criminal Justice a chief state's attorney for a five-year term. The appointment must be by an affirmative vote of a majority of the commission members.

Under the previous system, the chief justice of the Supreme Court selected the chief state’s attorney, and the Superior Court judges selected the state’s attorneys (CGS § 51-278 Rev. to 1981). Apparently, this was the system that had always existed in Connecticut (See Adams v Rubinow, 157 Conn. 150, 163, footnote 4 (1968)).

The constitutionality of the previous system was challenged unsuccessfully at least four times as a violation of a defendant’s due process rights or the separation of powers clause of the state constitution. One case was decided by the federal district court; three were Superior Court decisions.

It does not appear that the legisalture approved the amendment because of constitutional problems with the previous system. But the underlying issues of fairness to criminal defendants and the appearance of a conflict of interest that were the arguments underlying the constitutional challenges appear to have been motivating factors.

The legislature can enact legislation to change the method of appointing the chief state’s attorney and all prosecutors other than state’s attorneys. The constitution would have to be amended to change the method of appointing state’s attorneys.

CONSTITUTIONAL AMENDMENT

The amendment that is the origin of the current system for selecting the chief state’s attorney and state’s attorneys became effective in 1984 (Article 23^rd of the Amendments to the Connecticut Constitution, HJR 35). It established within the executive department a Division of Criminal Justice and authorized it to be in charge of the investigation and prosecution of all criminal matters. The division includes the chief state's attorney as its administrative head, and the state's attorneys for each judicial district. The amendment vests the prosecutorial power of the state in a chief state's attorney and the state's attorney for each judicial district. The amendment requires that the chief state's attorney be appointed as prescribed by law.

IMPLEMENTING STATUTES (CGS §§ 51-278 – 51-288)

The law requires the Criminal Justice Commission to appoint two deputy chief state's attorneys as assistant administrative heads of the Division of Criminal Justice to assist the Chief State's Attorney in his duties. One is deputy chief state's attorney for operations and one is deputy chief state's attorney for personnel, finance, and administration. The term of office of a deputy chief state's attorney is four years from July first in the year of appointment and until the appointment and qualification of a successor, unless he is removed by the Criminal Justice Commission.

The law requires the commission to appoint a state's attorney for each judicial district to act as attorney on behalf of the state. It also requires the commission to appoint, from candidates recommended by the appropriate state's attorney and deemed qualified by the commission, as many assistant state's attorneys and deputy assistant state's attorneys on a full-time or part-time basis for each judicial district as the criminal business of the court, in the opinion of the chief state's attorney, may require.

It also requires the commission to appoint, from candidates recommended by the chief state's attorney and deemed qualified by the commission, as many assistant state's attorneys and deputy assistant state's attorneys as are necessary, in the opinion of the chief state's attorney, to assist him.

By law, the chief state's attorney must designate at least three assistant state's attorneys or deputy assistant state's attorneys to handle all prosecutions of housing matters deemed to be criminal. He must designate at least one assistant state's attorney to handle all prosecutions of environmental matters deemed to be criminal.

The law empowers the chief state's attorney to promote any assistant state's attorney or deputy assistant state's attorney who assists him, and the appropriate state's attorney may promote any assistant state's attorney or deputy assistant state's attorney who assists him.

State's Attorneys hold office for eight years from July first and until the appointment and qualification of a successor, unless removed for just cause by the Criminal Justice Commission.

When any vacancy in the office of the chief state's attorney or the office of a state's attorney is to be filled, the commission must make its appointment from the various recommendations of the chief state's attorney or the appropriate state's attorney.

The chief state's attorney and each deputy chief state's attorney, state's attorney, assistant state's attorney, and deputy assistant state's attorney are qualified to act in any judicial district in the state and in connection with any matter regardless of the judicial district where the offense took place, and may be assigned to act in any judicial district at any time on designation by the chief state's attorney (CGS § 51-281).

Removal of Prosecutorial Officials (CGS § 51-278b)

Whenever the Criminal Justice Commission has reason to believe or is of the opinion that the chief state's attorney is guilty of misconduct, material neglect of duty, or incompetence in the conduct of his office, it must investigate and prepare a statement in writing of the charges. The chief state’s attorney has the right to appear with counsel and witnesses and be fully heard. If after full hearing of all evidence, the commission finds that the evidence warrants his removal it must make a written order to that effect, give him a copy, and file a copy with the secretary of the state. Upon the filing with the secretary of the state, the office becomes vacant, and the commission may fill the vacancy in the manner provided by law.

No deputy chief state's attorney, state's attorney, assistant state's attorney, or deputy assistant state's attorney may be removed from office except by order of the commission after due notice and hearing.

The commission may discipline for just cause a deputy chief state's attorney or state's attorney after due notice and hearing by reprimand, demotion, or suspension with or without pay from his office for up to fifteen days. The chief state's attorney may discipline any assistant state's attorney or deputy assistant state's attorney who assists him, or the appropriate state's attorney may discipline any assistant state's attorney or deputy assistant state's attorney who assists him, for just cause after due notice and hearing by reprimand, demotion, or suspension with or without pay from his office for up to 15 days.

The amendment establishes a commission composed of the chief state's attorney and six members appointed by the governor and confirmed by the General Assembly. It mandates that two members be

judges of the Superior Court. It authorizes the commission to appoint a state's attorney for each judicial district and whatever other attorneys the law prescribes.

LEGISLATIVE HISTORY OF AMENDMENT AND IMPLEMENTING STATUTES

The 1984 Changes

In 1984, the General Assembly passed a resolution to amend the constitution concerning the appointment of state’s attorneys and the chief state’s attorney, HJR 35. It went on the ballot and was adopted by the voters. The resolution removed from the chief justice of the Supreme Court the power to appoint the chief state’s attorney. Under the amended constitution, the chief state’s attorney “shall be appointed as prescribed by law,” i. e. , by statute. An existing statute, which was not changed at that time, gave the chief justice the authority to appoint the chief state’s attorney. The statute enacted to implement the amendment was PA 84-405, which created the Criminal Justice Commission as an autonomous body within the Executive department for budgetary purposes. A summary of the act is enclosed.

In testimony before the Judiciary Committee in support of the amendment, Attorney General Joseph Lieberman stated:

“In my opinion as you know, the power to appoint state prosecutors should not be vested in the same judges before whom those prosecutors practice. That system has created the appearance of a conflict of interest. By establishing the commission authorized in this resolution which would appoint state prosecutors, we would be separating the power to appoint from the power to preside over cases brought by the state’s attorney. ” (Jud. Comm. March 5, 1884, pages 361 and 362).

Austin McGuigan, the chief state’s attorney, spoke on the amendment. In his remarks he noted that “Connecticut stands alone where there is judicial appointment of state’s attorneys. ” He also noted that “some critics suggest that there are potentials for conflicts of interest or undue influence between prosecutors and judges” (Jud. Comm. Public Hearing, page 383).

McGuigan also testified:

“. . . The state’s attorneys and the chief state’s attorney and the chief justice have supported a constitutional amendment which would create an independent commission to appoint state’s attorneys. We supported this because we believed that we could to some degree ameliorate any potential conflict or appearance of conflict while at the same time still preserving impartiality, still preserving a lack of influence from political influence in the prosecution decision, and we felt that we could alleviate public concern without in effect creating a radical system . . . “ (Jud. Comm. Public Hearing, page 384).

Representative Richard Tulisano introduced the resolution in the House. He said its purpose was to create a commission to appoint the state’s attorney, taking it out of the hands of the Judicial Department (H. R. Proc. , 1984 Sess. P. 4309). He discussed the appearance of impropriety of having judges appoint those who must then appear before them. Id. at 4312.

In his remarks, Tulisano stated,

“There has been over the years, some thought of an appearance of impropriety when an individual who appoints judges, must judge cases before them. The judges appoint prosecutors, that have to judge the cases being presented to them.

“There has been some question whether or not prosecutors feel sufficiently independent from the judicial department, in order to make valid prosecutorial decisions. The public has often looked at this situation and said, what kind of shot do I have with that judge, of being treated fairly, these two guys are working together, they’re in cahoots with each other, because of our process.

“Again, Mr. Speaker, I really don’t think that has been the case. However, it is important that we reflect on these questions that have been raised.

“Secondly, the Judicial Department itself, is beginning, I think, the judges themselves, are beginning to think and get uneasy about the potential conflict that exists out there and the way it looks. It is a function which they are not good at. They are, for a long time, in fact, just accepted recommendations from the various state’s attorneys with regard to these things.

“Now, there have been times, people allege, that they do get involved in the process. That should be separated. It is proper and appropriate that the prosecution of crimes, should in fact, be in the Executive Branch of government. It is wrong that both the prosecution and the adjudication of crime should be in one branch of government. It violates our concepts of separation of powers. We are the only state that has this system. ”

Representative Emmons questioned whether state’s attorneys appointed by the governor would be very assiduous in going after government corruption. Id. at 4317-18.

The resolution passed 128 to 14.

In the Senate, the resolution was introduced by Senator Owens: “This resolution would constitutionally authorize the existing Division of Criminal Justice to be placed within the Executive Branch and name the chief state’s attorney as the administrative head” (Sen. Proc. , 1984 Sess. , p. 3280). Senator Skrowronski spoke in opposition, saying the old system worked well (Id. at 3284).

The resolution passed the Senate 34 to 2.

Representative Tulisano also introduced the bill (HB 5893) implementing the constitutional amendment. The discussion was primarily on the structure of the new division and on a provision giving the attorney general jurisdiction over certain regulatory offenses (see, House Proc. , supra, at 4322-46).

The bill passed the House 137 to 3 (Id. at 4346).

Senator Owens introduced the bill (HB 5893) in the Senate, where it passed on consent (Sen. Proc. , supra, at 2862-66).

The 1985 Changes

Public Act 85-440 (HB 7488) further implemented the 1984 constitutional amendment. Primarily, it shifted from the chief justice to the new Criminal Justice Commission the power to appoint the chief state’s attorney. A summary of the act is enclosed.

Representative Wollenberg introduced the bill in the House, which passed 135 to 1 with House amendments “A” and “B” (H. R. Proc. , 1985 Sess. pp. 5293-04).

House “A” removed the requirement that the chief state’s attorney be appointed with the advice and consent of the General Assembly. House “B” provided for two, rather than one, deputy chief state’s attorneys.

Senator Johnston introduced it in the Senate, which passed House “A” and “B” and added Senate “A”. Senate “A” provided for a one-year interim appointment of a chief state’s attorney.

When it went back to the House, it passed 109 to 31 with House “A” and “B,” and Senate “A” (Id. at 10771).

CONSTITUTIONAL CHALLENGES TO FORMER SYSTEM OF SELECTING PROSECUTORS

In the years preceding the adoption of the constitutional amendment that established our current method of selecting prosecutors, there were at least four cases that involved constitutional challenges to the appointment of prosecutors by judges. One challenge occurred in federal district court, the other three in Superior Court. None of these cases were appealed to higher courts.

Federal Case

In 1976, the federal district court held that the appointment of prosecutors by the courts did not violate a criminal defendant’s due process rights (Moynahan v. Manson, 419 F. Supp. 1139, 1150). The court did not articulate its reasoning, but it cited two cases to support its holding (United States v. Richmond, 277 F. 2d 702, 703 (2d Cir. 1960); United States v. Solomon, 216 F. Supp. 835, 838-43 (S. D. N. Y. 1963)).

In United States v. Richmond, the court held that the method of appointing public defenders in Connecticut does not violate the due process requirements of the constitution. Under the challenged system, the judges who hear cases in which public defenders participate, appoint them and set their salaries and term of office. The court noted that a constitutional problem may have existed if there had been a delay in assigning counsel.

In United States v. Solomon, the federal district court for the Southern District of New York held that the appointment of the United States Attorney by federal district court judges did not violate the separation of powers doctrine under the federal constitution. It also held that the appointment power did not violate a criminal defendant’s due process rights. The court noted that the challenged statutory appointment power was only of a temporary nature, and that the Executive Branch was authorized to choose another prosecutor or to remove the prosecutor the court appointed (at 842 and 843).

Superior Court Cases

In 1969, Superior Court Judge Barber held that the appointment of state’s attorneys by judges did not violate the separation of powers doctrine of the state constitution (State v. Dileo, 28 Conn. Supp. 354). In reaching its decision, the court pointed to pronouncements in two Supreme Court cases that personnel in constitutionally established courts have always been appointed by the judges of those courts and that it was not within the legislature’s power to remove that appointment process (citing Norwalk Street Ry. Co’s Appeal, 69 Conn. 576 (1897) and Adams v. Rubinaw, 157 Conn. 150, 163, Note 4 (1968)). Neither case dealt with the appointment of prosecutors.

In 1969, Judge Palmer held that (1) prosecution by a state’s attorney appointed by the judges of the Superior Court did not violate the separation of powers doctrine; and (2) a criminal defendant is not deprived of his due process right to have his case determined in an adversary, accusatorial proceeding merely because state’s attorneys are appointed by Superior Court judges (State v. Mazzadra, 28 Conn. Supp. 252).

In 1970, Judge Shapiro held that the appointment of state’s attorneys by Superior Court judges could not be classified as an administrative function that would belong to the executive branch (State v. Lubon, 28 Conn. Supp. 366).

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