Honulik v. Town of Greenwich

The plaintiff timely filed a motion to vacate, for reconsideration and/or for reconsideration en banc on March 6, 2009. See Practice Book § 71-5. The defendants thereafter filed a joint motion in opposition to the plaintiff’s motion. On May 6, 2009, we granted the motion for reconsideration en banc and ordered counsel for the parties to submit supplemental briefs addressing the jurisdictional question raised by the plaintiffs motion. Upon this court’s invitation, the attorney general has filed an amicus brief addressing the question raised by the plaintiffs motion.

The plaintiff argues, and we agree, that the issues raised by the motion are matters of substantial public interest warranting en banc consideration. Accordingly, Chief Justice Rogers, Justice McLachlan and Judge Beach have been added to the panel. See General Statutes § 51-207 (a). Justices Palmer and Schaller did not participate in the decision to grant reconsideration, nor did they participate in the resolution of the jurisdictional claim addressed in this opinion. In light of the ultimate conclusion reached herein, however, Justice Schaller then participated in the reconsideration of the merits of the underlying appeal, and Judge Beach did not remain on the panel. A revised opinion on the merits of the appeal is being released simultaneously with the present opinion on the plaintiffs motion. See Honulik v. Greenwich, 293 Conn. 698, 980 A.2d 880 (2009). The revised opinion supersedes Honulik v. Greenwich, supra, 290 Conn. 421, which was released on February 24, 2009.

Justice Schaller reached the age of seventy on November 23, 2008.

General Statutes § 51-198 (c) provides: “A judge of the Supreme Court who has attained the age of seventy years may continue to deliberate and participate in aU 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 officiaUy released. The judge may also participate in the deUberation of a motion for reconsideration in such case if such motion is filed within ten days of the official release of such decision.”

Article fifth, § 6, of the constitution of Connecticut, as amended by article eight, § 2, of the amendments provides: “No judge shall be ellgible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee.”

Dicta are “[o]pinions of a [court] which do not embody the resolution or determination of the specific case before the court [and] [ejxpressions in [the] court’s opinion which go beyond the facts before [the] court and therefore are individual views of [the] author[s] of [the] opinion and [are] not binding in subsequent cases as legal precedent.” Black’s Law Dictionary (6th Ed. 1990); see also St. George v. Gordon, 264 Conn. 538, 547 n.10, 825 A.2d 90 (2003), superseded by statute on other grounds as stated in Flanagan v. Blumenthal, 100 Conn. App. 255, 260, 917 A.2d 1047 (2007). The per curiam opinion in Doyle was issued in response to a former panel member’s published objection to the court’s sua sponte order for en banc consideration of an already argued but still pending appeal. Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 914B; see also Practice Book § 70-7 (b). Because the per curiam opinion addressed only issues raised by that sua sponte order and not the merits of the case as argued by the parties, it is dicta in its entirety and, therefore, nonbinding.

The opinion in Doyle stated, without supporting citation, that “[t]he notion that one who, by virtue of the constitution is no longer a member of this court, may not participate in its decisions, is not, however, simply the view of a majority of this court as currently constituted. It has been the uniformly held and followed view of this court long before the dissenting justice or any current member of this court was appointed to it, and that view has never been questioned before.” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 914E; see also id. (“this court’s decisions, in cases on which justices reaching the age of seventy have sat, uniformly have been published before the particular justice’s seventieth birthday”). Our current research reveals, however, that the accuracy of this assertion is suspect. For example, the official reports of this court indicate that Justice Elisha Caipenter, who was bom on January 14, 1824, and turned seventy on January 14, 1894; see Appendix, 69 Conn. 731-36; remained a member of the panel on several cases that were heard prior to his seventieth birthday but not decided until thereafter. See Bissell v. Dickerson, 64 Conn. 61, 29 A. 226 (1894) (argued January 4, 1894, decided February 19, 1894); Park Bros. & Co., Ltd. v. Blodgett & Clapp Co., 64 Conn. 28, 29 A. 133 (1894) (argued January 4, 1894, decided February 8, 1894); Mills v. Britton, 64 Conn. 4, 29 A. 131 (1894) (argued January 3, 1894, decided February 8, 1894); Downing v. Sullivan, 64 Conn. 1, 29 A. 132 (1894) (argued January 3, 1894, decided February 8, 1894).

“The constitutions of 1818 (art. [fifth], § 3) and 1955 (art. [fifth], § 8) provided that ‘[n]o judge or justice of the peace shall be capable of holding his office, after he shall arrive at the age of seventy years.’ The constitution of 1965, in article fifth, § 6, retained the same restriction but changed the word ‘capable’ to ‘eligible’ and added the [exception allowing for prospective work by state referees] . . . .” Florida Hill Road Corp. v. Commissioner of Agriculture, 164 Conn. 360, 363, 321 A.2d 856 (1973).

We conclude at the outset that the activities at issue here clearly do not fall within the exception contained in article fifth, § 6, of the state constitution that permits state referees to exercise, as prescribed by law, the powers of the Superior Court on matters that have been referred to them as state referees. See footnote 4 of this opinion. Although a Supreme Court justice, by operation of statute, becomes a state referee upon retirement for the remainder of his or her term in office as a judge; see General Statutes § 52-434 (a) (1); the completion of that justice’s pending Supreme Court caseload cannot reasonably be cast as exercising a power of the Superior Court. Moreover, the statutes defining the powers of state referees do not include sitting on cases at the Supreme Court; see General Statutes § 51-50f (granting retired judges acting as state referees, after attaining age seventy, powers of Superior Court on matters referred by that court); General Statutes § 52-434 (a) (1) (authorizing Superior Court to refer civil, nopjury cases to state referees who have been designated judge trial referees by Chief Justice, as well as civil jury cases if parties consent); General Statutes § 52-434 (b) (authorizing Chief Justice to designate state referees as judge trial referees to whom criminal and civil cases and juvenile matters may be referred); General Statutes § 52-434a (a) (giving judge trial referees same powers and jurisdiction as judges of court from which proceedings have been referred); General Statutes § 52-434c (authorizing retired Supreme Court justices and Appellate Court judges who have become state referees to be designated *647by Chief Justice as eligible to be assigned to Appellate Court panels by Chief Judge of that court); nor do the powers of the Superior Court include deciding Supreme Court cases. See General Statutes § 51-164s; see generally chapter 882 of the General Statutes; see also Szarwak v. Warden, 167 Conn. 10, 32-33, 355 A.2d 49 (1974) (distinguishing jurisdictions of Supreme Court and Superior Court). Although Superior Court judges may be summoned to sit on panels of the Supreme Court; see General Statutes § 51-207 (b); our jurisprudence counsels that state referees are not Superior Court judges, but rather, are a sui generis type of tribunal. See Florida Hill Road Corp. v. Commissioner of Agriculture, 164 Conn. 360, 362, 321 A.2d 856 (1973).

Although we typically employ a Geisler analysis to determine whether a provision of our constitution affords broader individual rights than an analogous provision of the United States constitution; see, e.g., Perricone v. Perricone, 292 Conn. 187, 212-13, 972 A.2d 666 (2009) (freedom of speech); Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 155-57 (equal protection); we have at times considered the Geisler factors in interpreting language in our constitution that does not have a similar federal counterpart. See, e.g., Moorev. Ganim, 233 Conn. 557, 581, 660 A.2d 742 (1995) (addressing claim of unenumerated state constitutional obligation to provide subsistence benefits to needy citizens). We consider a structured and comprehensive approach to be helpful in either context.

We also strive to achieve a workable, commonsense construction that does not frustrate effective governmental functioning, at least where such is not clearly contraindicated by application of the factors enumerated in Geisler. See, e.g., Palka v. Walker, 124 Conn. 121, 125-26, 198 A. 265 (1938) (construing provision empowering governor to grant reprieves after conviction until end of next session of General Assembly, and no longer, to mean that limitation upon period during which reprieve may operate runs, not *649from day of conviction, but from time reprieve is issued, because otherwise opportunity to pursue appeal or seek pardon from legislature could be defeated); State v. South Norwalk, 77 Conn. 257, 263, 265, 58 A. 759 (1904) (interpreting constitutional requirement that bills shall become laws unless governor returns them to legislature within “three days” for reconsideration to mean three days that legislature is in session, not three calendar days, because legislative session is only time in which it is possible to return bills and literal interpretation would infringe governor’s prerogatives).

Presumably, the appellant was raising a separation of powers challenge. Article second of the Connecticut constitution provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

There is no indication from the opinion in Johnson that the judge had resigned his office due to age.

See, e.g., Public Statute Laws of Connecticut (1833), c. XXVI, § 1 (“in case of the failure to reappoint any justice of the peace, by the General Assembly, all process, suits, matters and business, which shall have been begun or been made returnable to or before such justice of the peace, before the time of the expiration of his office, may be continued and proceeded with, by and before said justice, to final judgment and execution, and be completed in the same way as if the said justice had been re-appointed and continued in office”). When this provision was operative, justices of the peace were constitutional officers having jurisdiction over civil and criminal matters. Conn. Const. (1818), art. V, § 2. When the constitution subsequently was amended to provide for election of justices of the peace, a similar statutory provision was passed to authorize completion of work by those who failed to be reelected. See Public Acts 1851, c. XIV.

The existence of the foregoing provisions provides strong support for the court’s conclusion in Johnson that the passage of § 51-183g did not offend the principle of separation of powers embodied in our constitution. Specifically, “a practical [contemporaneous] construction of the [constitution] given by the General Assemblies of the years immediately following 1818, in the forms which their legislation assumed . . . fumish[es] substantial aid to [our] interpretation.” Board of Water Commissioners v. Curtis, 87 *651Conn. 506, 510, 89 A. 189 (1913). Because many members of those General Assemblies also had been members of the constitutional convention, they were unlikely, when they enacted the legislation concerning justices of the peace, to have misunderstood or wilfully ignored the constitutional mandate that they recently had helped to frame. See id., 510-11. In light of the holding in Johnson, which is based on the foregoing rationale, the plaintiffs argument that a statute authorizing limited judicial acts by those who recently have left judicial office derogates the principle of separation of powers is not persuasive.

Additionally, the basic principles underlying the separation of powers doctrine do not support the plaintiffs claim that § 51-198 (c) constitutes a legislative encroachment on judicial powers. “A statute will be declared unconstitutional if it (1) confers on one branch of government the duties which belong exclusively to another branch ... or (2) if it confers the duties of one branch of government on another branch which duties significantly interfere with the orderly performance of the latter’s essential functions.” (Citation omitted.) University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 394-95, 512 A.2d 152 (1986). Thus, “[i]n the context of challenges to statutes whose constitutional infirmity is claimed to flow from impermissible intrusion upon the judicial power, we have refused to find constitutional impropriety in a statute simply because it affects the judicial function .... A statute violates the constitutional mandate for a separate judicial magistracy only if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts ... or if it establishes a significant interference with the orderly conduct of the [courts’] judicial functions.” (Internal quotation marks omitted.) State v. McCahill, 261 Conn. 492, 505, 811 A.2d 667 (2002).

Here, § 51-198 (c) does not purport to remove power from the judicial branch, specifically, the Supreme Court, and to confer it upon another branch; see, e.g., Bridgeport Public Library & Reading Room v. Burroughs Home, 85 Conn. 309, 320-21, 82 A. 582 (1912) (legislative encroachment on courts’ jurisdiction over charitable trusts held unconstitutional); or even upon another court, nor does the statute direct judgments to be rendered in any particular manner. Compare State v. McCahill, supra, 261 Conn. 503-504 (statute prohibiting courts from releasing certain offenders on post-conviction bail held unconstitutional), with Macy v. Cunningham, 140 Conn. 124, 131-32, 98 A.2d 800 (1953) (statute directing courts whom to appoint as successor trustees held unconstitutional). Rather, it authorizes specific individuals within the judicial branch to exercise particular judicial powers. Cf. State v. Nardini, 187 Conn. 109, 124, 445 A.2d 304 (1982) (observing, in upholding constitutionality of Sentence Review Act, that “[t]he claim that the separation of powers provisions of the state constitution preclude the legislature from authorizing action by the judicial department which could vacate its [own] judgments is without substance”). That authorization does not encroach upon a judicial prerogative. Cf. Conn. Const., art. V, §§ 2 and *6523 (granting authority to confer judicial power on individuals to executive, legislative branches). Moreover, it cannot seriously be argued that § 51-198 (c) interferes with the orderly performance of this court’s essential functions by assigning it additional, nonjudicial duties. Cf. Norwalk Street Railway Co.’s Appeal, 69 Conn. 576, 600-603, 37 A. 1080 (1897) (statute conferring on judiciary power to regulate location, construction and operation of street railways, a legislative function, held unconstitutional). To the contrary, as we discuss subsequently in this opinion, it promotes orderly performance by permitting us to exercise our core function in the most efficient manner.

Finally, we reject Justice Katz’ assertion that if this court holds that the legislature properly may authorize judicial acts by those who no longer occupy their judicial office, then, by logical extension, the legislature may authorize anyone to perform judicial acts. Such legislation—specifically, the provision pertaining to former justices of the peace and, later, the provision applicable to former Superior Court judges—has been part of Connecticut’s statutory law for the better part of two centuries, and, in Johnson, more than one century ago, this court sustained its constitutionality. Johnson v. Higgins, supra, 53 Conn. 237. Nevertheless, the legislature never has sought to extend that holding by enacting provisions purporting to confer judicial powers on laypersons. Common to the older statutes and § 51-198 (c) is a legislative grant of authority to an individual who recently held a particular judicial office and, in the case of a recent retiree, one who remains a judicial officer. This court’s holdings necessarily are constrained by those circumstances. Cf. Perry v. Perry, 222 Conn. 799, 815, 611 A.2d 400 (1992) (legislature’s conferring to family support magistrates authority to imprison for contempt held constitutional because magistrates constitute highly trained, quasi-judicial authority subject to Code of Judicial Conduct and supervision of Judicial Review Council).

We disagree with the plaintiffs argument, embraced by both dissents, that, because the actions of the trial judges at issue in Johnson and Todd were observed to be “rather clerical than judicial”; Johnson v. Higgins, supra, 53 Conn. 237; see also Todd v. Bradley, supra, 97 Conn. 567; the holdings of those cases as to the constitutionality of § 51-183g are limited to such circumstances. The language in Johnson indicates clearly that the court did not intend to limit its holding to clerical acts performed pursuant to the statute. The decision states specifically: “Even if it be admitted that the act of the judge in signing the finding on appeal is a judicial act . . . and that the act was done after he had ceased to be such judge, no authority has been brought to our attention denying the legislature the power implied in the law in question.” (Emphasis added.) Johnson v. Higgins, supra, 237. Additionally, three members of this court recently declined to read Johnson so restrictively, relying on its holding to conclude that § 51-183g authorized a retired Superior Court judge to resentence a criminal defendant upon remand of his case following an appeal, plainly a judicial act. See State v. Miranda, 274 Conn. 727, 744-45, 878 A.2d 1118 (2005) (Borden, J, concurring).

The other authority cited by Justices Katz and Zarella in their dissenting opinions in support of a distinction between clerical and judicial acts is no more compelling. In Griffing v. Danbury, 41 Conn. 96 (1874), this court held that a Superior Court judge lacked the power to rule on a motion for a new trial, clearly a judicial act, the day after his resignation became effective, and, in DeLucia v. Home Owners’ Loan Corp., 130 Conn. 467, 473, 35 A.2d 868 (1944), we concluded that a judge of a town court who ceased to hold office after hearing a case was not authorized to grant a motion for extension of time in which to appeal, also a judicial act. When Griffing was decided in 1874, however, § 51-183g was yet to be enacted, and in DeLucia, we held, preliminarily, that the statute, then codified at General Statutes (1930 Rev.) § 5698, did not apply to town court judges. Id., 471-72. Read together, then, the foregoing cases establish only that, in the absence of a grant of authority from the legislature, those no longer holding judicial office may perform only clerical, and not judicial, acts. Indeed, that point was made explicitly in DeLucia: “[A]side from statutory authority we have held that, as the making of a finding for an appeal is a clerical act, one might properly be made by a judge who, after hearing and deciding a case, has ceased to hold office ....’’ (Emphasis added.) Id., citing Todd v. Bradley, supra, 97 Conn. 567. Case law from other jurisdictions is in accord. See, e.g., Goodman Investment, Inc. v. Swanston Equipment Co., 299 N.W.2d 786 (N.D. 1980) (“general conclusion is that, absent statutory authorization, a judge has no authority to perform judicial functions after expiration of his term of office” [emphasis added]); see also Reimer v. Firpo, 94 Cal. App. 2d 798, 800, 212 P.2d 23 (1949) (when Superior Court judge “became a member of the appellate court, his term as Superior Court judge terminated, and . . . thereafter he had no power, except where specifically permitted to do so by statute, to perform any judicial act as a trial *654judge” [emphasis added]); Olmstead v. District Court, 403 P.2d 442 (Colo. 1965) (“[g]enerally speaking, except as it may be otherwise provided by law, a judge’s power to exercise judicial functions ceases with the expiration of his term of office” [emphasis added; internal quotation marks omitted]), superseded by statute as stated in People v. Sherrod, 204 P.3d 466, 470 (Colo. 2009).

In short, then, the foregoing case law establishes that a judge may perform judicial acts either (1) when holding office or (2) after ceasing to hold office, for a limited time, if authorized by statute. Thus, Justice Katz’ characterization of the Griffing-Johnson-Todd-DeLucia line of cases as this court “consistently . . . inteipret[mg] holding office to mean the exercise of judicial powers” is entirely inapt. We further disagree with Justice Katz’ assertion that we implicitly have reasoned that “the very statute that [we declare] constitutional today was wholly unnecessary for the legislature to enact because such acts could be performed irrespective of whether an individual holds office.” As we have acknowledged, this court in Griffing and DeLucia rejected that notion.

Contrary to Justice Zarella’s assertion, the discussion that follows clearly is not dedicated to the “nonissue” of whether, “a Supreme Court justice, upon turning seventy, no longer is permitted, by virtue of article fifth, § 6, to hold his or her office,” but rather, whether a retired justice, by virtue of performing limited judicial acts, necessarily is holding that office.

Similarly, in an advisory decision, the Supreme Judicial Court of Massachusetts opined that proposed legislation recalling retired justices for temporary judicial service would not contravene a proposed constitutional amendment providing that “upon attaining seventy years of age . . . judges shall be retired.” Opinion of the Justices to the Senate, 362 Mass. 895, 900, 905, 284 N.E.2d 908 (1972). We consider this holding instructive, even though that court noted the different language in article fifth, § 6, of the constitution of Connecticut, namely, the bar against a judge “hold[ing] his office,” and concluded that the distinction in the terms used was compelling. Id., 903. The Supreme Judicial Court’s reasoning is unclear, however, given that its opinion also acknowledges that “ ‘[r]etire’ ” means “ ‘to withdraw from office’ and ‘to withdraw from active service.’ ” Id. In short, we see no meaningful distinction between article fifth, § 6, of our state constitution and the provision at issue in Opinion of the Justices to the Senate.

Connecticut’s statutory scheme authorizing cross court participation also is consistent with this notion. A state referee, although exercising the powers of the Superior Court, does not hold the office of Superior Court judge. Florida Hill Road Corp. v. Commissioner of Agriculture, 164 Conn. 360, 362, 321 A.2d 856 (1973). Moreover, a Superior Court judge, although authorized to sit on a panel of the Supreme Court or the Appellate Court, does not, by virtue of that assignment, hold the office of Supreme Court justice or Appellate Court judge. See General Statutes §§ 51-197c and 51-198 (specifying fixed numbers of judges and justices that constitute, respectively, Appellate Court and Supreme Court).

An emolument is defined as “that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites [or] [a]ny perquisite, advantage, profit, or gain arising from the possession of an office.” Black’s Law Dictionary (6th Ed. 1990).

The Hartwell formulation has been invoked in myriad contexts. See, e.g., Kennedy v. United States, 146 F.2d 26, 28 (5th Cir. 1944) (to determine whether case fell within statutory bar to actions brought by officers of United States to recover fees, salary or compensation); Thompson v. Whitefish Bay, 257 Wis. 151, 159, 42 N.W.2d 462 (1950) (to determine whether municipal ordinance providing for hiring of village attorney conflicted with constitutional provision governing appointment of village officers); see also In re Advisory Opinion in re Phillips, 226 N.C. 772, 777, 39 S.E.2d 217 (1946) (to interpret constitutional provision against dual office holding); J. O’Connor, supra, 24 Hofstra L. Rev. 106-109 (discussing use of formula by federal administrations and Congress to determine whether proposed appointments would violate emoluments clause of United States constitution).

Because we conclude herein that temporary performance of the actions contemplated by § 51-198 (c) does not amount to holding the office of Supreme Court justice, we reject the plaintiffs argument that the statute provides for an unlawful legislative alteration of a constitutionally set term of judicial office. See, e.g., Adams v. Rubinow, supra, 157 Conn. 164-66 (public act authorizing chief court administrator to suspend probate judges indefinitely conflicted with constitutional provision of four year terms for those judges because it effectively granted power to remove judge prematurely); State ex rel. Eberle v. Clark, 87 Conn. 537, 539, 541, 89 A. 172 (1913) (appointment of police court judge by General Assembly for two years from certain date “and until his successor is duly appointed and qualified” conflicted with constitutional provision of two year terms for those judges [internal quotation marks omitted]). In short, if a retired justice temporarily exercising the limited powers authorized by § 51-198 (c) is not, by virtue of that exercise, holding office, it follows that there has been no improper extension of that justice’s constitutional term of office. The cited cases clearly are distinguishable in that the statutes at issue provided for indefinite suspension or extension, respectively, of the entirety of a sitting judge’s official duties.

The limited role of a retired justice in completing unfinished Supreme Court matters stands in sharp contrast to the broad range of judicial duties that a state referee may perform prospectively under the enabling statutes, particularly, trying new cases on an ongoing basis, rendering judgments in those cases and exercising all of the powers and jurisdiction of the court from which the cases have been referred. See footnote 8 of this opinion. Because the position of state referee unquestionably constitutes an office, *660which a retired justice may hold indefinitely subject only to periodic reappointment, we agree with Justice Zarella that it was necessary to add an exception to the constitutional prohibition against judges over the age of seventy holding office before the statutes granting such broad powers to referees could be enacted. It is clear, however, that a retired justice completing his remaining work at this court is not serving in his capacity as referee, but rather, simultaneously with holding that new office, is performing the limited remaining duties associated with his former office. See Lowell v. United States, supra, 158 F. Sup. 707-708 (individual may “hold” one permanent rank while performing temporary duty in another).

Thus, the arguments by Justices Katz and Zarella that the powers of the Superior Court do not include working on Supreme Court cases and, therefore, that the legislature may not, consistent with the authority implicit in article fifth, § 6, of the state constitution, confer to state referees the power to perform such duties, are not persuasive. Article fifth, § 6, of the constitution of Connecticut begins with a general prohibition against a judge “hold[ing] . . . office” beyond age seventy, and then provides an exception to that prohibition, which the legislature may effect through appropriate legislation. Because, as we have determined, a retired justice completing his remaining work at this court is not holding the office of Supreme Court justice, it is not necessary for the statute authorizing that work to fall within the strictures of the exception contained in article fifth, § 6. Indeed, as we state explicitly in footnote 8 of this opinion, “the activities [permitted by § 51-198 (c)] clearly do not fall within the exception contained in article fifth, § 6, of the state constitution that permits state referees to exercise, as prescribed by law, the powers of the Superior Court on matters that have been referred to them as state referees.” Notably, article fifth, § 6, of the state constitution contains no prohibition against a judge over age seventy performing limited, temporary judicial duties associated with his former office.

At the 3818 constitutional convention, there was no debate on article fifth, § 3, the predecessor to the current article filth, § 6, of the state constitution. See W. Horton, The Connecticut State Constitution: A Reference Guide (1993) p. 131.

The current language of article fifth, § 6, of the state constitution “derives from the last sentence of [a]rticle [f]ifth, § 3, of the 1818 [constitution, which stated, ‘No judge or justice of the peace shall be capable of holding his office, after he shall arrive at the age of seventy years.’ This provision was unchanged until 1965, when the present section [allowing for ongoing employment of retired judges as state referees] was adopted.” W. Horton, The Connecticut State Constitution: A Reference Guide (1993) p. 131.

In Wolfe v. Yudichak, 153 Vt. 235, 571 A.2d 592 (1989), the Vermont Supreme Court addressed an issue similar to that presented by this case, also in the context of a motion for reargument. The question presented was whether an opinion had been validly issued where the panel included a justice who had been appointed on an interim basis and had resigned before being confirmed and before the opinion was issued. Id., 252. The Vermont Supreme Court stated: “It has long been the practice of this [c]ourt that a justice who resigns or retires from this [c]ourt after hearing a matter may participate fully in consideration of the case thereafter. This practice is grounded in the [c]ourt’s inherent judicial and administrative powers as found in the Vermont [c]onstitution, [c]hapter II, § 30. It conflicts neither with the [g]ovemor’s power to appoint nor with the Senate’s power to confirm, and relates strictly and narrowly to the [c]ourt’s inherent power to complete in succeeding terms what was begun in earlier ones. . . . This power is critical to a [c]ourtwith such a high caseload that cases sometimes take a year or more for an opinion to be written. The consequence of [the] petitioner’s argument is that the most difficult cases presented to this [c]ourt—those on which members of the [c]ourt have differing views—are always at risk of continuous indecision and reargument. We do not believe that we canfunction effectively to discharge our constitutional responsibilities under such circumstances.” (Citation omitted; emphasis added.) Id., *663253. Although the Vermont Supreme Court relied on inherent judicial power rather than statutory authorization to determine that the resigned justice’s continued participation was lawful, the public policy rationale and considerations underlying the court’s decision are equally applicable to Connecticut.

In testifying before the judiciary committee in favor of the bill that would become § 51-198 (c), then Chief Court Administrator Robert C. Leuba explained: “This proposal would allow the Supreme Court justices who have heard cases prior to attaining the age of [seventy] to deliberate and participate in the final disposition of those cases after turning age [seventy].

“As you know, the period of time between argument of a case in the Supreme Court and the final decision on that case can be fairly lengthy. . . .

“Allowing justices who heard a case prior to attaining the age of [seventy] to participate in the decision phase after age [seventy] will allow those justices to work to full capacity as they near the mandatory retirement age.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 2000 Sess., pp. 6-7. In moving for passage of the bill, Representative Paul R. Doyle described it as “an issue of judicial efficiency and judicial branch efficiency”; 43 H.R. Proc., Pt. 15, 2000 Sess., p. 4983; and explained that “[t]he bottom line is here we’re dealing with a Justice of the Supreme Court who has cases before him pending prior to his [seventieth] birthday. It’s our interpretation to keep it very limited to . . . the cases pending before him before [seventy]. After [seventy], he simply can deal with the few matters that he may have before him and it’s really judicial efficiency . . . .” Id., p. 4988.

We note in closing that, even if Justices Katz and Zarella are correct that the legislature is not constitutionally authorized to confer limited judicial power, short of holding office, to recently retired justices, then it necessarily follows that the power to do so remains with the judiciary. Conn. Const., art. V, § 1; see also footnote 19 of Justice Katz’ dissenting opinion. In that circumstance, this court, like the Vermont Supreme Court, could effect the same result as the legislature has through § 51-198 (c) by exercising our inherent judicial power, specifically, “to complete in succeeding terms what was begun in earlier ones.” Wolfe v. Yudichak, 153 Vt. 235, 253, 571 A.2d 592 (1989). Viewed this way, we still would uphold the constitutionality of § 51-198 (c) as a mere legislative recognition of an existing judicial power rather than an illegal encroachment on such. See State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 231, 140 A.2d 863 (1958).