When the Connecticut General Assembly considers rejecting a state-paid settlement agreement under Conn. Gen. Stat. § 3-125a, is the required 'three-fifths vote of each house' calculated on members present and voting or on the entire membership?

Plain-English summary

Senate Republican leader Leonard Fasano asked the AG how to count the three-fifths supermajority needed under Conn. Gen. Stat. § 3-125a to reject a state settlement agreement that would require more than $2.5 million from the General Fund. The specific occasion was the proposed Revised Exit Plan in the long-running federal foster care case Juan F. v. Malloy. The question: does "three-fifths vote of each house" mean three-fifths of the entire membership or just three-fifths of the legislators actually present and voting?

The AG concluded it means three-fifths of those present and voting, assuming a quorum. The Connecticut Constitution and many statutes draw a clear distinction between two phrasings. When the legislature wants a supermajority of the whole body, it says so expressly: "vote of three-fifths of the members of each house" (constitutional spending cap), "two-thirds vote of the members of each house" (gubernatorial veto override), "vote of at least three-fourths of the total membership of each house" (constitutional amendments), and similar formulas. When it uses just "vote of each house" or "vote of either house," it means the vote of those present and voting at a properly convened session.

The AG drew on legislative precedent (a 1994 Senate president's ruling on the parallel union arbitration award statute, § 5-278, that "two-thirds vote of either house" meant present and voting), Mason's Manual of Legislative Procedure § 512(3), and a long line of U.S. Supreme Court and state cases. Missouri Pacific Railway Co. v. Kansas (1919) and Rhode Island v. Palmer (1920) held that the constitutional supermajority requirements for veto override and constitutional amendments mean two-thirds of the members present, not two-thirds of the entire membership. The AG also looked at the legislative history of § 3-125a (enacted in 1991 alongside the spending cap statute) and found nothing requiring a different result. The fact that the statute used "three-fifths vote of each house" rather than "three-fifths of the members of each house," when the legislature was simultaneously using the latter phrase in the spending cap, was strong evidence the difference was deliberate.

Currency note

This opinion was issued in 2017. 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

Conn. Gen. Stat. § 3-125a requires the Attorney General not to enter into any settlement that requires more than $2.5 million in General Fund expenditures over the agreement's term unless the General Assembly accepts the terms by resolution. The General Assembly has 30 days to act, and "may reject such provision by a three-fifths vote of each house." If the legislature does not vote within 30 days, the settlement is deemed approved. The statute was enacted in 1991, in the same special session that produced the statutory spending cap (§ 2-33a) and the constitutional spending cap amendment (article III, § 18). Representative Tulisano's floor remarks tied the three-fifths threshold to the spending cap structure, on the theory that consent decrees and settlement-driven costs could otherwise be used to skirt the spending cap.

Connecticut's framers and General Assembly have used at least two distinct phrasings for legislative supermajorities. Phrasings that count present-and-voting votes include "two-thirds vote of each house" (gubernatorial incapacity, art. IV, § 18), "address of two-thirds of each house" (judicial removal, art. V, § 2), and "two-thirds vote of either house" (rejection of arbitration awards, § 5-278). Phrasings that count the entire membership include "vote of at least two-thirds of the membership of each house" (reapportionment, art. III, § 6), "vote of three-fifths of the members of each house" (constitutional spending cap, art. III, § 18), "two-thirds vote of the members of each house" (veto override, art. IV, § 15), "vote of at least three-fourths of the total membership of each house" (constitutional amendments, art. XII), "two-thirds of the membership of each chamber" (U.S. senator vacancy, § 9-211), "at least three-fifths of the members of each house" (statutory spending cap, § 2-33a), and "at least three-fifths of the members of each chamber" (bond appropriations, § 3-20i).

Section 3-125a uses the first kind of phrasing ("three-fifths vote of each house"), placing it in the present-and-voting category. The 1994 Senate president's ruling on § 5-278 reached the same conclusion for that statute's "two-thirds vote of either house" language, citing Mason's Manual § 512(3). The U.S. Supreme Court applied the same canon to the federal Constitution's "two-thirds of each House" veto override and amendment provisions in Missouri Pacific Railway Co. v. Kansas and Rhode Island v. Palmer, holding the requirement was satisfied by two-thirds of the members present at a quorum.

The AG distinguished cases from other states (Alabama, South Dakota, Nebraska) that count entire membership, on the ground that those states either limit lawmaking to a majority of all elected members or use "of all members" language. Connecticut's constitution lets the legislature act by majority of a quorum, and § 3-125a tracks the present-and-voting phrasing.

Common questions

How is a three-fifths vote of "each house" calculated under § 3-125a?

On the members present and voting at the session, assuming a quorum is present. So if 30 senators are present and voting, three-fifths means 18 senators. It does not mean three-fifths of all 36 senators or all 151 House members.

Why does it matter how the AG counts the threshold?

Because the threshold determines how easy or hard it is to reject a state settlement. With a smaller denominator (just present-and-voting), fewer "yes" votes are needed to reach three-fifths. With a larger denominator (entire membership), supporters of rejection need a much higher absolute number. The AG's reading makes legislative rejection easier than under the entire-membership reading.

Was the AG worried about the $2.5 million floor being used to dodge the spending cap?

That was Representative Tulisano's concern when § 3-125a was enacted in 1991. Court orders and consent decrees were exempted from the constitutional spending cap's definition of general budgetary expenditures, so settlements could become a backdoor around the cap. The supermajority requirement was a check on that. The AG concluded the floor remarks did not specify how to count the supermajority, and the textual difference between § 3-125a ("each house") and the spending cap statute ("members of each house") was deliberate.

Why did the AG cite federal cases like Missouri Pacific Railway and Rhode Island v. Palmer?

Because those cases construe the U.S. Constitution's "two-thirds of each House" supermajority requirements (for veto override and constitutional amendments) and apply the same drafting canon. The Connecticut General Assembly is presumed to know how courts interpret similarly worded supermajority requirements, and the AG saw no reason to depart from that interpretive convention.

What about the Senate president's 1994 ruling under § 5-278?

That ruling, by the Senate president, held that "two-thirds vote of either house" in the union arbitration award statute meant two-thirds of senators present and voting. The General Assembly's Rules and Precedents include it (No. 35-1.13). The AG treated it as legislative precedent and found it directly supported the same reading of § 3-125a.

Could a court read § 3-125a differently?

The AG acknowledged that a court could find the language ambiguous when read against the related spending cap statutes, which were enacted at the same time and use the entire-membership phrasing. But the legislative history did not clearly support a different result, and the statute's drafters chose different language than they used for the spending cap, which the AG read as purposeful under State v. Kevalis and Marchesi v. Board of Selectmen.

Citations

Statutes and constitutional provisions

• Conn. Gen. Stat. § 3-125a (settlement approval / rejection)
• Conn. Gen. Stat. § 3-125a(a) (text of three-fifths rejection provision)
• Conn. Gen. Stat. § 4-160(h) (claims commissioner / reservation)
• Conn. Gen. Stat. § 5-278 (collective bargaining and arbitration awards)
• Conn. Gen. Stat. § 2-33a (statutory spending cap)
• Conn. Gen. Stat. § 3-20i (bond appropriations)
• Conn. Gen. Stat. § 9-211 (U.S. senator vacancy)
• Conn. Const. art. III, § 6 (reapportionment)
• Conn. Const. art. III, § 18 (constitutional spending cap)
• Conn. Const. art. IV, § 15 (gubernatorial veto)
• Conn. Const. art. IV, § 18 (gubernatorial incapacity)
• Conn. Const. art. V, § 2 (removal of judges)
• Conn. Const. art. IX, § 2 (impeachment trials)
• Conn. Const. art. XII (constitutional amendments)
• Conn. Const. art. XIII, § 1 (constitutional conventions)
• U.S. Const. art. I, § 7 (presidential veto)
• U.S. Const. art. V (constitutional amendments)
• Public Act 91-3, § 30 (June 1991 Spec. Sess.) (enacted § 3-125a)
• House Joint Resolution 205 (June 1991 Spec. Sess.)

Cases and prior opinions

• Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276 (1919) (two-thirds of each House means two-thirds of a quorum)
• Rhode Island v. Palmer, 253 U.S. 350 (1920) (two-thirds for amendments based on members present)
• Warburton v. Thomas, 616 A.2d 495 (N.H. 1992)
• Kay Jewelry Co. v. Board of Registration in Optometry, 27 N.E.2d 1 (Mass. 1940)
• State ex rel. Eastland v. Gould, 17 N.W. 276 (Minn. 1883)
• Opinion of the Justices, 756 So. 2d 23 (Ala. 1999)
• Duxbury v. Harding, 490 N.W.2d 740 (S.D. 1992)
• Center Bank v. Dept. of Banking & Finance, 313 N.W.2d 661 (Neb. 1981)
• Tine v. Zoning Bd. of Appeals, 308 Conn. 300 (2013) (use of different words reveals different meanings)
• Steiner, Inc. v. Town Plan & Zoning Comm'n, 149 Conn. 74 (1961) (statute's "all members" language taken seriously)
• State v. Kevalis, 313 Conn. 590 (2014)
• Marchesi v. Board of Selectmen, 309 Conn. 608 (2013)
• Rules and Precedents of the General Assembly of Connecticut, No. 35-1.13 (rev. Jan. 4, 2017) (1994 Senate president ruling on § 5-278)
• Mason's Manual of Legislative Procedure § 512(3)

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Original PDF: https://portal.ct.gov/-/media/ag/opinions/2017/2017-01_3-125a_opinion_response_fasano-pdf.pdf?rev=08d52bc3c2e24fd582f110e4098fed53

Original opinion text

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

GEORGE JEPSEN
ATTORNEY GENERAL

Office of the Attorney General
State of Connecticut

January 31, 2017

Hon. Leonard A. Fasano
Senate Republican President Pro Tempore
Legislative Office Building
300 Capitol Avenue, Suite 3400
Hartford, CT 06106-1591

55 ELM STREET
P.O. BOX 120
HARTFORD, CT 06141-0120

(860) 808-5314

Dear Senator Fasano:

You have requested an opinion on the requirements of Conn. Gen. Stat. § 3-125a, which provides that the General Assembly may reject a settlement agreement by a "three-fifths vote of each house." Specifically, you inquire whether, in considering the proposed Revised Exit Plan for the Juan F. v. Malloy federal litigation, the supermajority requirement of § 3-125a is calculated on the basis of members present and voting. We conclude that the answer is "yes."

Section 3-125a provides:

Notwithstanding the provisions of subsection (h) of section 4-160, the Attorney General shall not enter into any agreement or stipulation in connection with a lawsuit to which the state is a party that contains any provision which requires an expenditure from the General Fund budget in an amount in excess of two million five hundred thousand dollars over the term of the agreement or stipulation, unless the General Assembly, by resolution, accepts the terms of such provision. The General Assembly may reject such provision by a three-fifths vote of each house. Such provision shall be deemed approved if the General Assembly fails to vote to approve or reject such provision within thirty days of the date of submittal pursuant to subsection (b) of this section.

Conn. Gen. Stat. § 3-125a(a) (emphasis added).

Both the Connecticut Constitution and various other statutes include supermajority voting requirements for legislative actions. These requirements generally are expressed in one of two ways: first, provisions that require a supermajority vote "of each house;" e.g. Conn. Const. art. Fourth, § 18 (gubernatorial incapacity, "two-thirds vote of each house"); Conn. Const. art. Fifth, § 2 (removal of judges, "on the address of two-thirds of each house"); Conn. Gen. Stat. § 5-278 (collective bargaining agreements and arbitration awards, rejected by "two-thirds vote of either house"); and second, provisions that require a supermajority vote of the "members" or "membership" of each house. E.g., Conn. Const. art. Third, § 6 (reapportionment, "vote of at least two-thirds of the membership of each house"); Conn. Const. art. Third, § 18 (spending cap, "vote of three-fifths of the members of each house"); Conn. Const. art. Fourth, § 15 (veto, "two-thirds vote of the members of each house"); Conn. Const. art. Twelfth (constitutional amendments, "vote of at least three-fourths of the total membership of each house," and "vote of at least a majority of the total membership of the house"); Conn. Const. art. Thirteenth, § 1 (constitutional conventions, "vote of at least two-thirds of the total membership of each house"); Conn. Gen. Stat. § 2-33a (statutory spending cap, "at least three-fifths of the members of each house"); Conn. Gen. Stat. § 3-20i (bond appropriations, "at least three-fifths of the members of each chamber"); Conn. Gen. Stat. § 9-211 (U.S. senator vacancy, "two-thirds of the membership of each chamber"). The provision in § 3-125a falls into the first category, "three-fifths vote of each house."

One constitutional provision does not fit neatly into these two main categories: Article Ninth, § 2 provides that, in impeachment proceedings tried in the Senate, a conviction requires "the concurrence of at least two-thirds of the members present." (emphasis added).

We have found no Connecticut case law that construes the supermajority requirement of § 3-125a or similar provisions. There is, however, legislative precedent. In 1994, the president of the senate was called on to rule whether the provision in Conn. Gen. Stat. § 5-278, relating to the approval or disapproval of union arbitration awards, required a two-thirds vote of the senators present and voting or two-thirds of the entire Senate membership. Similar to § 3-125a, § 5-278 uses the phrase "vote of either house." The president ruled that the proper calculation was based on the senators present and voting. Rules and Precedents of the General Assembly of Connecticut, No. 35-1.13 (rev. Jan. 4, 2017) (citing Mason's Manual of Legislative Procedure § 512(3)).

The Senate and House rules provide that the rules of parliamentary procedure provided in Mason's Manual of Legislative Procedure will govern where not inconsistent with the adopted rules of the Senate and House. Senate Rule 32 (2017); House Rule 22 (2017). Mason's provides that "[t]he requirement of a two-thirds vote, unless otherwise specified, means two-thirds of the legal votes cast, not two-thirds of the members present, or two-thirds of all the members." Mason's Manual of Legislative Procedure § 512(3).

This is consistent with the approach of other jurisdictions. In construing the two-thirds majority requirement to overcome a presidential veto in the federal Constitution, the U.S. Supreme Court held that, in the absence of some other qualifying language, a two-thirds vote of each house means "the two-thirds of a quorum of the body as empowered to perform other legislative duties." Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276, 285 (1919). As the Court reaffirmed with regard to the supermajority requirement for constitutional amendments,

[t]he two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present, assuming the presence of a quorum, and not a vote of two-thirds of the entire membership, present and absent.

Rhode Island v. Palmer, 253 U.S. 350, 386 (1920). In both instances, the constitutional provision used the language "of that House" or "of both Houses." U.S. Const. art. I, § 7; art. V. Thus, when a supermajority requirement is imposed on legislative action that refers only to a vote of each or either house, the rule is that the vote is calculated on the basis of the members present and voting, not the entire membership of the body. Warburton v. Thomas, 616 A.2d 495, 501-02 (N.H. 1992); Kay Jewelry Co. v. Board of Registration in Optometry, 27 N.E.2d 1, 5 (Mass. 1940).

This rule is contrasted to supermajority provisions of other states where under their constitutions, unlike Connecticut's, the legislature may only act by a majority vote of all elected members, and not just a majority of a quorum. In those states, which the U.S. Supreme Court expressly distinguished, see Missouri Pac. Ry., 248 U.S. at 285, courts have concluded that a supermajority provision is calculated on the basis of all elected members. See State ex rel. Eastland v. Gould, 17 N.W. 276, 277-78 (Minn. 1883). Similarly, in other states, supermajority provisions expressly refer to a vote of all members, and not, as the language of § 3-125a provides, to a vote of each house. E.g., Opinion of the Justices, 756 So. 2d 23, 24 (Ala. 1999); Duxbury v. Harding, 490 N.W.2d 740, 744-45 (S.D. 1992); Center Bank v. Dept. of Banking & Finance, 313 N.W.2d 661, 663 (Neb. 1981).

We can discern no reason not to follow the view of the U.S. Supreme Court and other state courts that when the legislature uses the phrase "of each house," rather than a phrase such as "of the members of each house," it intends the supermajority calculation be based on members voting, not all members. Indeed, as discussed above, the General Assembly has in many instances chosen to use the latter language. See Tine v. Zoning Bd. of Appeals, 308 Conn. 300, 308 (2013) (use of different sets of words reveals that legislature knows how to express different ideas). It thus can, when it chooses to, indicate its intention not to follow the general rule that members present and voting controls. See Steiner, Inc. v. Town Plan & Zoning Comm'n, 149 Conn. 74, 77 (1961) (construing statutory requirement that zoning commission act by "a vote of two-thirds of all members of the zoning commission" to be based on all members including vacancies, and not just members present).

Assuming that a court could conclude that the language of § 3-125a is nonetheless ambiguous when considered in the context of the related constitutional and statutory provisions, legislative precedent, and the case law of other jurisdictions, a review of the legislative history of § 3-125a offers no clear contrary guidance. Section 3-125a was enacted as part of the budget act in 1991, which also included the statutory spending cap (codified in Conn. Gen. Stat. § 2-33a), in the same special session that the legislature proposed the constitutional amendment for the spending cap. Public Act. 91-3, § 30, 165 (June 1991 Spec. Sess.); House Jt. Res. 205 (June 1991 Spec. Sess.). In the legislative debates in the House, Representative Tulisano discussed the rationale for the three-fifths supermajority requirement in what became § 3-125a. He noted that the spending cap uses a three-fifths vote for exceeding the spending limit imposed. 34 House Proc. 1327 (Aug. 21, 1991). Also, the statutory spending cap exempts expenditures for the implementation of court orders from the definition of general budgetary expenditures. Conn. Gen. Stat. § 2-33a. Representative Tulisano therefore expressed concern that consent decrees and court settlements could be used to skirt the limits imposed by the spending cap. For this reason, he stated that a three-fifths supermajority requirement was chosen for the review of consent orders to avoid that possibility. 34 House Proc. 1327. Nothing in his remarks addressed directly the issue of how to calculate the three-fifths vote requirement.

Representative Tulisano remarked:

The three-fourths rejection [for] provision is designed to reflect that which was just in the constitutional caps we established about a month ago. Sixty percent is the figure used to get outside of the constitutional cap. This follows that same figure, 60 percent, and the reason was when we were reviewing this legislation it also could be a way of getting around the constitutional cap because there is an exception in the constitutional [sic] cap for judicial judgments and if we start to get some control over there, then we could also get caught in another bind. They could just go around us all the time to avoid the constitutional caps and it gets again, some playing — if we want to knock it out, use the same number for which we get out of the constitutional cap.

34 House Proc. 1327.

In light of this connection to the constitutional and statutory spending cap provisions referenced in the legislative history, an argument perhaps could be made that § 3-125a's supermajority requirement was implicitly intended to be based on all members. Both of the spending cap provisions use the phrase "three-fifths of the members of each house." Conn. Const. art. Third, § 18; Conn. Gen. Stat. § 2-33a (emphasis added). This is not a reasonable implication. The language chosen in enacting § 3-125a was not the same as that in either the constitutional amendment or the statutory spending cap. The choice to use the phrase "three-fifths vote of each house" in § 3-125a, rather than "of the members of each house," particularly when these provisions were all enacted contemporaneously, must be presumed to be purposeful and to have different meanings despite the connection to the spending cap provisions for imposing a supermajority requirement. See State v. Kevalis, 313 Conn. 590, 603 (2014) ("Where a statute, with reference to one subject contains a given provision, the omission of such provision in a similar statute concerning a related subject . . . is significant to show that a different intention existed." (citations omitted)); Marchesi v. Board of Selectmen, 309 Conn. 608, 618 (2013) (same). Therefore, we do not find that the references to the constitutional and statutory spending cap provisions in the legislative history provide evidence of an intent to impose a supermajority vote of all members, rather than just those present and voting.

Accordingly, we conclude that a court presented with this issue would interpret the supermajority requirement of § 3-125a as requiring a three-fifths vote of members present and voting to reject.

We trust this is responsive to your question.

Very truly yours,

GEORGE JEPSEN
ATTORNEY GENERAL