Does a former Connecticut Superior Court judge who resigned have to reapply to the Judicial Selection Commission to be considered for a new judicial appointment?

Formal Opinion 2014-2: Reapplication rules for former Superior Court judges seeking new judicial appointments

Plain-English summary

Chairperson Bello asked the Attorney General how the Judicial Selection Commission should handle two kinds of returning applicants. The first scenario: a former Superior Court judge who had resigned, then submitted a new application for the Superior Court. The AG agreed with the Commission's existing practice of treating that person as a new candidate requiring full investigation, interview, and a vote. The second scenario: a former Superior Court judge who had previously been placed on the Commission's separate Appellate Court candidate list before resigning, then submitted a new Appellate Court application even though his name was still on that list. The AG concluded he did not need to reapply, and that the Commission's later negative vote on the redundant application did not remove him from the existing list. The opinion rested on the Commission's longstanding practice (a candidate remains on the list until appointed or until the candidate requests removal) plus the statutory absence of any review or removal procedure, citing Tuxis Ohr's Fuel for the principle that longstanding agency interpretations deserve deference.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Connecticut's judicial-selection structure is constitutional. Article V, § 2 of the Connecticut Constitution requires the Governor to nominate judges (other than those elected) "exclusively from candidates submitted by the judicial selection commission." The Commission seeks and recommends qualified candidates in the numbers set by law.

The General Assembly has implemented the constitutional command in Conn. Gen. Stat. § 51-44a. Subsection (f) tells the Commission to seek qualified candidates for the Superior, Appellate, and Supreme Courts, adopt regulations for evaluation criteria, investigate and interview candidates (including incumbent judges seeking appointment to a different court), and compile a list of qualified candidates. Subsection (h)(1) restates the constitutional command: the Governor may nominate only from the Commission's list. Subsection (j) makes the Commission's investigation, deliberations, files, and records confidential.

Although the statutes do not require it, the Commission's practice was to maintain separate lists for Superior, Appellate, and Supreme Courts; to leave a candidate on a list until appointed or removed at the candidate's request; and to inform applicants in writing of vote outcomes (only forwarding recommended names to the Governor).

What the AG concluded at the time

Scenario 1: prior Superior Court service did not preserve eligibility

The first applicant had served briefly on the Superior Court, resigned, then years later applied again for the Superior Court. The AG confirmed the Commission's procedure: appointment to a court removes a candidate from the candidate list, so seeking a new appointment requires a fresh application, investigation, interview, and vote. The opinion did not interpret this as a substantive bar; it was simply the operational consequence of the list-management rule.

Scenario 2: a separate Appellate Court listing survives Superior Court resignation

The second applicant had been placed on the Appellate Court list before resigning from the Superior Court. The Commission's practice did not contemplate removing a candidate from a list other than upon appointment or candidate request. Because resignation from the Superior Court was neither, the AG concluded the candidate stayed on the Appellate Court list. He did not need to apply anew.

A redundant new application does not undo a prior placement

The applicant nonetheless filed a new Appellate Court application. The Commission interviewed him, voted, and did not recommend him. The AG concluded that the negative vote did not remove him from the list on which he had already been validly placed. The applicant was, in effect, asking to be put on a list he was already on; the vote was a vote on the redundant request, not on his existing status. The AG cited Tuxis Ohr's Fuel for the principle that longstanding agency interpretations of an ambiguous statute deserve deference, and noted that the statutes and Commission regulations contained no general procedure for removing candidates from the list.

Common questions

Were the lists for the three courts kept separately?

According to the Chairperson's description, yes, by Commission practice rather than statutory command. The opinion accepted that practice without questioning it.

Could a candidate ever ask to be removed?

Yes. The Commission's practice (which the AG endorsed) treated removal as occurring upon appointment or upon the candidate's own request.

Did the AG opine on what the Commission should do if it wanted to remove someone for cause?

No. The opinion noted the absence of any statutory or regulatory removal mechanism but did not propose one. The implicit message was that policy gaps belong to the legislature and the Commission's rulemaking, not the AG.

Could the Commission re-vote on a candidate already on the list?

The opinion treated the negative vote on the redundant application as having no effect on the existing listing. It did not address whether the Commission could affirmatively remove a candidate by some other vote.

Citations

• Conn. Const. art. V, § 2 — judicial nominations confined to Commission's list.
• Conn. Gen. Stat. § 51-44a(f) — Commission's duty to investigate, interview, and compile candidate lists.
• Conn. Gen. Stat. § 51-44a(h)(1) — Governor's nominating authority limited to Commission's list.
• Conn. Gen. Stat. § 51-44a(j) — confidentiality of Commission deliberations and records.
• Tuxis Ohr's Fuel, Inc. v. Administrator, 309 Conn. 412 (2013) — longstanding agency interpretation of an ambiguous statute deserves deference.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2014/2014-002_bello_robert_jsc_opinion_2014-03-05-pdf.pdf?rev=c3a5314162d0473aafac9cf0f2abc859

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

State of Connecticut

GEORGE JEPSEN
ATTORNEY GENERAL

Hartford

March 5, 2014

Robert S. Bello, Chairperson
Judicial Selection Commission
18-20 Trinity Street
Hartford, CT 06106

Dear Chairperson Bello:

You have requested a formal opinion regarding the proper treatment of applications to the Judicial Selection Commission (Commission) for consideration for judicial nomination by candidates who have previously served as Superior Court judges but resigned. We conclude that a candidate who has resigned from his position as a Superior Court judge and now seeks to be considered for nomination to the Superior Court must apply as a new candidate for consideration to the Commission. We also conclude that a candidate who has resigned from the Superior Court but who had been and continued to be on the list of candidates for the Appellate Court need not apply again for consideration for the Appellate Court but remains on the list of candidates for that court.

The Commission plays an important constitutional role in the selection of candidates that the Governor may consider for nomination as judges. Article Fifth, § 2 of the Connecticut Constitution establishes the Commission's authority relating to judicial nominations. It provides:

Judges of all courts, except those courts to which judges are elected, shall be nominated by the governor exclusively from candidates submitted by the judicial selection commission. The commission shall seek and recommend qualified candidates in such numbers as shall by law be prescribed.

The General Assembly has enacted legislation to carry out the Commission's constitutional role. Section 51-44a(f) of the General Statutes provides, in pertinent part:

[T]he commission shall seek qualified candidates for consideration by the Governor for nomination as judges of the Superior Court, Appellate Court and Supreme Court. The commission shall adopt regulations, in accordance with the provisions of chapter 54, concerning criteria by which to evaluate the qualifications of candidates, including incumbent judges who seek appointment to a different court. The commission shall investigate and interview the candidates, including judges seeking appointment to a different court. A list of such qualified candidates shall be compiled by the commission.

Conn. Gen. Stat. § 51-44a(f). Section 51-44a(h)(1) of the General Statutes provides, in pertinent part:

Judges of all courts, except those courts to which judges are elected, shall be nominated by the Governor exclusively from the list of candidates or incumbent judges submitted by the Judicial Selection Commission.

Conn. Gen. Stat. § 51-44a(h)(1). Thus, the Governor may nominate persons for the Superior, Appellate and Supreme Courts only from the list of candidates compiled by the Commission after it has investigated and interviewed candidates seeking appointment.

Although not expressly mandated by the governing statutes or the Commission's regulations, you indicate the Commission's practice has been to compile separate lists for candidates for the Superior Court, Appellate Court and Supreme Court. You further indicate that it has been the Commission's practice that a candidate's name remains on the list for each respective court until the candidate has been appointed to that court or the candidate requests his or her name be removed. The statutes and regulations do not provide a procedure or mechanism for the review or removal of candidates that have been placed on the lists. Finally, you indicate that it is the Commission's practice that, after voting in executive session on whether to recommend an applicant, the Commission sends a letter to the applicant informing the applicant of the results of the vote, but only notifies the Governor as to those applicants that are recommended for nomination.

You present two scenarios concerning persons that have submitted applications for the Commission's consideration. The first involves an applicant who had previously served as a Superior Court judge but who had resigned after serving a few years. The applicant recently submitted an application for qualification for appointment to the Superior Court, and the Commission investigated and interviewed the applicant and voted on the application.

We confirm that this was the proper procedure for this applicant. Once appointed to the Superior Court, the individual was removed from the list of Superior Court candidates. To be considered for a new appointment to the Superior Court, a new application and evaluation by the Commission was required.

The second scenario involves an applicant who also had previously served as a Superior Court judge and had resigned from that judicial office. However, this applicant, prior to his resignation from the Superior Court, had previously applied for and was placed by the Commission on the list of recommended candidates for the Appellate Court. Although, consistent with the Commission's practice, the applicant remained on the Appellate Court list, the applicant had nonetheless applied again for consideration for the Appellate Court. The Commission conducted its investigation and interview of the applicant, but voted not to recommend the applicant to the Governor for nomination to the Appellate Court.

You ask several questions about this second scenario, including: (1) Did the applicant need to apply or was the applicant still validly on the list of qualified Appellate Court candidates? and (2) What effect did the new application and the Commission's subsequent evaluation and vote have on the applicant's inclusion on the Appellate Court list?

First, the applicant had previously been recommended for the Appellate Court, and consistent with the Commission's practice, he remained on the list of recommended candidates for that court when he submitted his application. Whatever his reasoning for doing so, he did not need to apply anew.

Second, we conclude that the applicant should remain on the list of candidates despite his submission of a new application and the Commission's subsequent interview and evaluation of the applicant. In the absence of any provision in the statutes or the Commission's regulations about removal from the list of candidates generally or about the effect of a new application specifically, we see no reason that the Commission's longstanding practice, that a candidate remains on the list of qualified candidates unless the candidate is appointed or requests removal from the list, should not control in the circumstances presented here. See Tuxis Ohr's Fuel, Inc. v. Administrator, 309 Conn. 412, 422-23 (2013) (longstanding agency interpretation of statute should be afforded deference). In effect, the applicant was requesting that he be included on a list of recommended candidates on which he had already been placed. The Commission's negative vote did not have the effect of removing him from the list on which he otherwise validly remained.

We trust this is responsive to your request.

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL