Honulik v. Town of Greenwich

980 A.2d 845

293 Conn. 641

F. Gary HONULIK v. TOWN OF GREENWICH et al.

No. 18046.

Supreme Court of Connecticut.

Submitted on Briefs May 28, 2009.

Decided October 13, 2009.

John Wayne Fox, town attorney, Fernando F. de Arango, assistant town attorney, Sheila A. Huddleston, Hartford, Laurie A. Sullivan, Robin G. Frederick, Stamford and William J. Kupinse, Jr., Bridgeport, for the appellants-appellees (named defendant et al.).

Kathryn Emmett and Christine Caulfield, Stamford, for the appellee-appellant (plaintiff).

Kevin M. Greco, Stamford, filed a brief for the Silver Shield Association as amicus curiae.

Richard Blumenthal, attorney general, Gregory T. D'Auria, associate attorney general, and Robert Deichert and Jane R. Rosenberg, assistant attorneys general, filed a brief for the state of Connecticut as amicus curiae.

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE, ZARELLA, McLACHLAN and BEACH, Js.

ROGERS, C.J.

The plaintiff, F. Gary Honulik, has filed a motion requesting that we reconsider the judgment previously rendered in this appeal; see Honulik v. Greenwich, 290 Conn. 421, 963 A.2d 979 (2009); to determine whether the panel of this court that decided the appeal lacked jurisdiction over it. The appeal was argued on April 15, 2008, and the opinion disposing of it was officially released on February 24, 2009.¹ In his motion, the plaintiff claims that the judgment was rendered without subject matter jurisdiction because Justice Schaller, a member of the panel and the author of the majority opinion, reached the age of seventy, the constitutionally mandated age of retirement,² prior to the release of the opinion, thereby rendering him ineligible to continue to deliberate or to otherwise participate in the disposition of the appeal. More specifically, the plaintiff argues that General Statutes § 51-198(c),³ which authorizes Supreme Court justices who have reached the mandatory age of retirement to complete work on appeals they heard prior to retiring, is unconstitutional because it contravenes article fifth, § 6, of the constitution of Connecticut, as amended by article eight, § 2, of the amendments.⁴ We disagree and, accordingly, deny the relief requested in the motion insofar as it is based on the plaintiff's jurisdictional claim.

Section 51-198(c) provides in relevant part that "[a] judge of the Supreme Court who has attained the age of seventy years may continue to deliberate and participate in all matters concerning the disposition of any case which the judge heard prior to attaining said age, until such time as the decision in any such case is officially released." This provision was adopted by the legislature in the wake of this court's opinion in Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 912, 914E, 746 A.2d 1257 (1999), wherein some members of the court expressed, in dicta,⁵ a belief that Supreme Court justices constitutionally were required to cease all work on matters pending before them once they reached the age of seventy.⁶ The state constitutional provision at issue, article fifth, § 6, as amended by article eight, § 2 of the amendments, provides in relevant part that "[n]o judge shall be eligible to hold his office after he shall arrive at the age of seventy years...." The provision is of long-standing pedigree, dating to the constitution of 1818.⁷ The plaintiff argues that the legislative authorization for a retired justice to complete work he or she commenced preretirement conflicts with this provision. The resolution of the plaintiff's claim requires us to determine whether a justice who turns seventy and continues to work on appeals on which he or she sat prior to turning seventy, until those appeals are resolved fully, is "hold[ing] his office" within the meaning of article fifth, § 6, of the state constitution.⁸

In considering this question, we are guided by well established principles. This court has a "duty to construe statutes, whenever possible, to avoid constitutional infirmities...." Denardo v. Bergamo, 272 Conn. 500, 506 n. 6, 863 A.2d 686 (2005). Accordingly, we begin with a strong presumption of constitutionality. "[I]n evaluating [a] ... challenge to the constitutionality of [a] statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. We will indulge in every presumption in favor of the statute's constitutionality...." (Internal quotation marks omitted.) State v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994). Consistent with this presumption, "when called upon to interpret a statute, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." (Internal quotation marks omitted.) State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991). "It is an extreme act of judicial power to declare a statute unconstitutional. It should be done with great caution and only when the case for invalidity is established beyond a reasonable doubt." Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 300, 957 A.2d 407 (2008) (Borden, J., concurring). "It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt a law must be sustained." (Internal quotation marks omitted.) Snyder v. Newtown, 147 Conn. 374, 390, 161 A.2d 770 (1960) appeal dismissed, 365 U.S. 299, 81 S.Ct. 692, 5 L.Ed.2d 688 (1961). Accordingly, "where a statute reasonably admits of two constructions, one valid and the other invalid on the ground of unconstitutionality, courts should adopt the construction which will uphold the statute even though that construction may not be the most obvious one." Adams v. Rubinow, 157 Conn. 150, 153, 251 A.2d 49 (1968).

The plaintiff's claim mainly requires us to interpret article fifth, § 6, of the state constitution. "[I]n State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), we set forth six factors that, to the extent applicable, are to be considered in construing the contours of our state constitution so that we may reach reasoned and principled results as to its meaning.⁹ These factors are: (1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.¹⁰ Id. Although, in Geisler, we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven.... [Moreover], not every Geisler factor is relevant in all cases." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, supra, 289 Conn. at 157, 957 A.2d 407. Accordingly, our analysis of article fifth, § 6, of the state constitution is informed by those Geisler factors that are relevant to the analysis, which are to some degree intertwined.

Because the text of article fifth, § 6, of the state constitution does not elaborate as to what, precisely, constitutes "hold[ing] ... office," we turn first to our own jurisprudence for guidance in interpreting that phrase. Although this case presents us with the first challenge to the constitutionality of § 51-198(c), this court, on multiple occasions, has been asked to consider whether a very similar statute, General Statutes § 51-183g, which authorizes postretirement and postresignation actions of Superior Court judges, is constitutionally infirm. Section 51-183g provides: "Any judge of the Superior Court may, after ceasing to hold office as such judge, settle and dispose of all matters relating to appeal cases, as well as any other unfinished matters pertaining to causes theretofore tried by him, as if he were still such judge."

Section 51-183g, in various incarnations whose differences are of no import here, has been part of our statutory law since 1885. See Public Acts 1885, c. VIII. Shortly after the provision's passage, its constitutionality was challenged as being "beyond the power of the legislature...."¹¹ Johnson v. Higgins, 53 Conn. 236, 237, 1 A. 616 (1885). This court disagreed. In Johnson, a trial judge, subsequent to resigning his office,¹² had acted pursuant to § 51-183g by signing a finding and statement of rulings for purposes of appeal. We concluded that the trial judge's action properly was authorized by the new statutory provision. Id. The court emphasized that it was not aware of authority denying the legislature the power to authorize the actions contemplated by the statute, and relied further on the fact "that [s]imilar legislation, and of more embracing scope, has for many years been operative, unchallenged, in reference to the judicial power of justices of the peace."¹³ Id.

The holding of Johnson later was extended in Todd v. Bradley, 97 Conn. 563, 117 A. 808 (1922). In that case, it was claimed that, in light of article fifth, § 6, of the state constitution, a trial judge who had ceased to hold office by virtue of turning seventy lacked the power to make a finding for purposes of appeal. Id., at 564, 117 A. 808. Relying on Johnson, this court concluded that the precursor to § 51-183g properly authorized the trial judge's act. Id., at 566-71, 117 A. 808. Together, Johnson and Todd established that the legislature may permit a resigned or retired judge to complete unfinished matters "after ceasing to hold office as such judge"; General Statutes § 51-183g; without offense to the constitution. More specifically, a retired judge, in completing unfinished matters, is not by virtue of those acts holding office as contemplated by article fifth, § 6, of the state constitution.¹⁴

We turn next to relevant...