OLR Research Report

February 16, 2005




By: Sandra Norman-Eady, Chief Attorney

You asked if the legislature could require judge trial referees to make probable cause determinations and final rulings on ethics matters filed with the State Ethics Commission. We understand the issue to be whether this act would violate the separation of powers provision of the state constitution. The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered as one.


Although no Connecticut court has decided this precise issue, it appears that the legislature could require judge trial referees to decide ethics complaints because the requirement neither encroaches on a purely judicial function nor significantly interferes with the orderly functions of the Superior Court's judicial role. The state Supreme Court has held that the legislature unconstituionally infringes on judicial powers only if it enacts a law that does one of these two things.

Judge trial referees are state referees designated by the chief justice of the state Supreme Court to hear criminal, civil, or juvenile cases. “State referees” are (1) retired judges who are electors and Connecticut residents or (2) qualified members of the bar. The former serve in this capacity for the remainder of their terms and are eligibile for reappointment for the remainder of their lives in the same manner that judges are reappointed. The chief justice appoints the latter for three years (CGS 52-434).


Article Second of the Connecticut Constitution provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate majesty, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial to another. ”

The primary purpose of this separation of powers provision is to prevent the commingling of different powers of government in the same hands. The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to its independence and performance of assigned powers (State v. Kinchen, 243 Conn. 690 (1998)).

The separation of powers doctrine, however, cannot be rigidly applied always to render mutually exclusive the role of each branch of government (Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995)). The powers granted to departments of government necessarily overlap to some extent and the concept of separation of powers is not one that is capable of precise legal definition yielding clear solutions to intergovernmental disputes (Stolberg v. Caldwell, 175 Conn. 586 (1978)).

A state statute is unconstitutional under the separation of powers doctrine if it confers on one branch the duties that exclusively belong to another branch or if it confers the duties of one branch on another and these duties significantly interfere with the orderly performance of the latter's essential functions (State v. Kinchen, supra). A validly enacted statute carries with it a strong presumption of constitutionality and anyone challenging it must prove its unconstitutionality beyond a reasonable doubt (Bartholomew v. Schweizer, 217 Conn. 671 (1991)).

A legislative requirement for trial judge referees to decide ethics complaints does not appear to encroach on a purely judicial power for a number of different reasons. First, the state constitution vests the judicial department's powers in the courts but requires the legislature to define the courts' powers and jurisdiction (CT. Constitution Article V, Section 1). Second, judge trial referee is a position created by statute, not by the judicial department as an exercise of its judicial powers. Third, the legislature (1) designates the categories of people who may

serve as state referees; (2) establishes the powers and duties of certain state referees; and (3) confirms judicial nominations. Thus, a court would not likely find the assignment of ethics matters to judge trial referees an unconstitutional effort by the legislature to exercise a power that lies exclusively under the control of the court.

A court would also likely find that the requirement does not significantly interfere with the orderly functions of the Superior Court's judicial role. State statutes specify the chief court administrator's duties and powers, which include the power to assign, reassign, and modify the assignment of judges (CGS 51-5a). No court has decided that this law violates the separation of powers doctrine. Thus, it appears that the legislature could amend this statute to require the chief court administrator to assign trial judge referees to hear ethics complaints without violating it.