Chapter II
History
Connecticut adopted its first constitution in 1818. From 1818 until 1880, the constitution gave exclusive judicial appointment power to the general assembly for supreme and superior court judges. From 1818 to 1856, these judges held their offices for good behavior, until age 70. In 1856, the constitution was amended to provide for eight-year terms of office. In 1880, the constitution was again amended by adding the governor to the process - now the legislature appointed judges upon nomination by the governor.
By all accounts, legislative action on gubernatorial nominations traditionally has been generally uneventful, with no incumbent judge denied reappointment in modern memory until 1986, when three were. The 1985 and 1986 General Assembly sessions brought many changes affecting, directly or indirectly, the judicial appointment process.
1985-1986 legislative sessions. In 1985, legislation establishing the Judicial Selection Commission (JSC) was enacted, pending the passage of a constitutional amendment that would be on the ballot in November 1986. Establishing a separate commission responsible for screening candidates from which the governor could only nominate was intended to ensure only qualified persons became judges, regardless or in spite of political connections. It was a segment of the judicial selection model called merit selection or the so-called Missouri Plan, because it was first adopted in Missouri. (The merit selection model involves other components, such as retention elections, and is discussed in Chapter IV). Also in 1985, the Judiciary Committee received statutory authority to hire investigators to assist in its judicial appointment process.
Looking forward to the 1986 session, it was going to be very busy with judicial nominations. Over seventy judges, almost half of the entire judiciary, were going before the 1986 legislature. The large number was due to the 1978 reorganization of Connecticut courts that effectively created many new Superior Court judgeships. An unusual number of judges started their eight-year terms in 1978, coming from the merged courts, and were up for reappointment in 1986.
Between the 1985 and 1986 legislative sessions, then-House Speaker Richard Van Norstrand commissioned a survey of 8000 lawyers who were asked to rate all judges in 11 categories. Approximately 1,300 responded. Explaining his rationale for the survey, Speaker Van Norstand was quoted in January 1986: "We've never known enough about judges. Usually, we just heard from one or two disgruntled litigants."1 According to press reports, Speaker Van Norstrand intended to keep the poll results private, but they were made public after a freedom of information request.
This was not the first lawyer's poll about judges, but it had been 10 years since the last one. And it was the first one conducted directly for the legislature. The Connecticut Bar Association had been polling Connecticut lawyers on the qualifications of judges since 1948. Until 1976, the survey results were only made available to the judges, judicial branch administrators, and the Judiciary Committee chairs. In 1976, the survey was revamped to provide a more accurate assessment of the judges, and it was made public.
In 1986, then-Governor William O'Neill nominated all eligible incumbent judges, noting neither the Judicial Branch nor the Judicial Review Council cited any reasons not to.2 Legislative leaders, citing the lawyer survey results, raised questions about some of the nominees. In addition to the survey, the Hartford Courant reported the Judiciary Committee investigators, newly authorized by 1985 legislation, were "reviewing the records of some 20 judges about whom there appeared to be questions..." and had "narrowed their focus to four or five." The concerns about the judges "were largely related to their demeanor - being flip or brash, for example - rather than lack of knowledge of the law." 3
By the end of the 1986 session, four incumbent judges and one new nominee had not survived the legislative review process:
People could and did differ on the issues that caused these particular nominees trouble. However, out of a belief the system lacked ways to address judicial temperament and other concerns, certain legislative actions were taken to:
Also in 1986, administratively, the judicial branch instituted an orientation and mentor program for new judges.
Finally, in November 1986, the Judicial Selection Commission was established as an amendment to the state constitution. Thus, all judges were now to be nominated by the governor exclusively from candidates submitted by the Judicial Selection Commission. The commission made its first recommendations to the governor in 1987.
Judicial Selection Commission. In anticipation of the passage of the 1986 amendment, legislation was enacted in 1985 establishing the Judicial Selection Commission's structure, responsibilities, and procedures. Much of that original act is in place today, but with significant additions and changes in 1989. These changes came on the heels of the one and only time the commission denied a recommendation for renomination to an incumbent judge (his term expired in March 1989).
The 12-member makeup of the commission, with one attorney and one nonattorney appointed from each congressional district, was established in 1985. From the beginning, the governor appointed the attorney members, while legislative leaders appointed the non-attorney members. Originally, the term of office was six years. That was reduced to three in 1989, along with a provision for staggered terms.
The original bill contained no standards to guide the commission's work, but directed the commission to "establish criteria by which to evaluate the qualifications of candidates." However, 1989 legislation changed that, specifically identifying and distinguishing between incumbent judges and new candidates for judgeships for purposes of commission evaluation. Thus, for incumbent judges, the commission was directed by statute to "consider the legal ability, competence, integrity, character, and temperament..." when evaluating the judge for reappointment. The commission was now required to adopt regulations concerning criteria by which to evaluate incumbent judges. A statutory presumption for retention of incumbent judges was established, with the burden of rebutting the presumption on the commission. (The commission was also to adopt regulations concerning criteria to evaluate new candidates).
In addition to standards, the 1989 legislation also was more definitive about the process by which incumbent judges would be evaluated by the commission. The commission was to "investigate and interview" each incumbent judge. If a "preliminary examination" indicated further inquiry was needed before the judge could be recommended, the commission was required to hold a formal hearing. The hearing was subject to timing and procedural requirements, such as the judge's rights to counsel, to present evidence and to cross-examine witnesses. The hearing could be open if the judge desired.
Finally, specific voting rules were established by the 1989 legislation. An affirmative vote of at least a majority plus one of the members present and voting was now required for two actions: 1) recommending a new candidate for nomination by the governor or judge to another court; and 2) denying recommendation for nomination of an incumbent judge to the same court. A simple affirmative majority vote was required to recommend to nominate an incumbent judge. Votes for incumbent judge could be by secret ballot, but votes for new nominees could not.
Finally, the 1989 legislation also expanded the information available to the commission. First, the Judicial Selection Commission was added with the governor and the Judiciary Committee to receive the Judicial Review Council's recommendations concerning nominations of incumbent judges, as well as any complaint or investigation reports about any judge by the review council. (Along with this addition was a requirement that the Judicial Selection Commission not consider any investigation in which the judge was exonerated.) Second, the commission was also added with the Judiciary Committee to receive any performance evaluations of judges made by the judicial branch.
Finally, the 1989 legislation required the commission to annually report certain operational statistics, as well as statistics regarding the race, gender, national origin, religion, and years of experience as members of the bar of all the candidates.
In December 1994, the commission adopted regulations related to evaluation criteria and the process that had been required in 1989. The regulations have two different sections including criteria for new candidates and incumbent judges. (Chapter III discusses the criteria).
1986 Citizens Committee. In December 1986, a group called the Citizens Committee on Standards and Procedures for Reappointment of Judges issued a report and recommendations about judicial reappointments. The committee was formed at the request of the Connecticut Judges Association (a voluntary organization of Connecticut judges). Apparently apprehensive about the lack of detail as to how the new Judicial Selection Commission would operate, the judges' association chose to provide input. The committee members were leaders in business, government, education, and law.
As noted above, the original enabling legislation for the JSC contained few if any standards and procedures. Many of the recommendations the citizens committee made for the JSC were enacted in the 1989 legislation described above. The committee also made recommendations for the governor and the legislature, including the following:
Judiciary Committee. Since at least 1911, the statutes have required judicial nominations made by the governor to the General Assembly be referred, without debate, to the Judiciary Committee. The committee was to report on the nominations within 30 legislative days from the time of reference, but no later than seven legislative days before the General Assembly adjourns.
In 1983, statutory provisions were enacted for between-session appointments. When the General Assembly was not in session, to fill a judicial vacancy, the governor had to submit the name of the proposed appointee to the Judiciary Committee. Within 10 days the committee "might" hold a special meeting for the purpose of approving or disapproving the proposed vacancy appointment by majority vote. The governor was not to administer the oath of office until the committee had approved the appointee. In 1988, the time periods were lengthened; the committee now has 45 days instead of 10 and can extend the time by an additional 15 days, if necessary. (Failure to act is considered approval.)
In 1985, the statute was amended to provide that prior to a public hearing on the nomination, the Judiciary Committee could employ a person to investigate, at the request of the chairpersons, any judicial nominee with respect to the suitability of such nominee for judicial office. The investigator reports his/her findings to the committee, and any report is confidential and not subject to public disclosure. The investigator receives per diem compensation.
As noted earlier, 1986 legislation required that any performance evaluation of any judge made by the judicial branch be made available to Judiciary Committee members prior to any public hearing on the nomination of the judge. The evaluation material is not to be disclosed to any other person.
Finally, as a note of interest, during the 2000 legislative session, a bill was introduced that would have, among other items, established statutory standards for the Judiciary Committee to consider in evaluating new judges. The bill, not reported out of the Judiciary Committee, contained the following provisions:
In evaluating the appointment of an incumbent judge, the committee shall consider the past performance of a judge in the following areas:
The bill further provided: 1) a presumption that each incumbent judge who seeks reappointment to the same court qualifies for retention in that office; and 2) that the judge's entire career should be considered and a reappointment decision should not be based upon one case, one incident, or the making of an unpopular or erroneous decision.
Finally, the bill allowed for rejection of a reappointment nominee only if the committee found:
1 Hartford Courant, January 31, 1986.
2 Hartford Courant, February 22, 1986
3 Hartford Courant, January 31, 1986