The Scope of Procedural Rule-making in Connecticut: Further Confusion in State v. James and Bartholomew v. Schweizer

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 65 Pg. 411
Connecticut Bar Journal
Volume 65.




It is commonly believed that the separation of powers doctrine requires that the legislature make law, and that the judiciary interpret and apply the law.(fn1) While this basic distinction may yield an understanding of what lies at the core of the legislative and the judicial functions, it also is commonly understood that the separation of powers doctrine does not require a hermetic sealing of the branches of government.(fn2) The separation of powers principle implies that interdependence is as necessary as independence so that each branch of government can serve as a check on the others.(fn3) That some blending of powers between the branches of government is necessary is evident in the making of rules of court procedure. Rules of procedure often are regarded as a judicial function because they bear on the administration of justice.(fn4) On the other hand, such rules seem properly a legislative responsibility because they are statements of general applicability that are prospective in nature and often affect substantive matters.(fn5)

In 1974, the Connecticut Supreme Court, in State v. Clemente,(fn6) held that the legislature was unable constitutionally to enact rules pertaining to the administration, practice and procedure of Connecticut's constitutional courts.(fn7) Rather, the authority to make such rules was held to belong entirely to the judiciary. The court's assertion of judicial power in Clemente has generated many questions regarding the scope of the court's procedural rule-making power. Subsequent cases have provided few answers.(fn8)

This article addresses the separation of powers issue in the context of procedural rule-making in Connecticut. The historical context of rule-making is first presented and built upon by an examination of the Clemente decision and the uncertainty it created as to the scope of procedural rule-making. Cases subsequent to Clemente will then be examined with particular emphasis placed on State v. James(fn9) and Bartholomew v. Schweizer.(fn10) In James, the Connecticut Supreme Court, while reserving the power to invalidate evidentiary statutes in some circumstances, held that the rules of witness competency are not within the exclusive control of the judiciary. In Bartholomew, the supreme court upheld as within the General Assembly's proper authority a statute that allows counsel to argue to the jury a lump sum or mathematical formula during closing argument in an action to recover damages for personal injuries or wrongful death.

Against this backdrop, this article next analyzes the scope of the legislature's and the judiciary's currently recognized procedural rulemaking power. Ultimately, it will be argued that the Connecticut Supreme Court has failed to formulate a clear and predictable direction as to the extent and limitation of any legislative procedural rule-making. By adopting a policy of "acquiescence" to legislative procedural enactments and accepting such enactments on an ad hoc basis, the Connecticut Supreme Court leaves the scope and legitimacy of court and legislative procedural rule-making uncertain and problematic.


During most of Connecticut's constitutional history, the General Assembly was assumed to have either final, or at least concurrent, court rule-making authority.(fn11) Prior to the adoption of the Connecticut Constitution in 1818, the General Assembly possessed virtually all governmental power and was restricted only by the command to make "whatever laws the public good and the people's wishes require."(fn12) As a result, before 1818, "neither the principle nor the practice of the separation of powers played any part in Connecticut government."(fn13) The legislature at this time actually exercised certain judicial powers itself.(fn14) Moreover, the legislature could alter the judiciary and make rules of judicial procedure.(fn15)

In 1815, in Lung's Case,(fn16) the General Assembly accepted an appeal from a murder conviction and ordered a new trial. Zephaniah Swift, the chief judge of the superior court and the most avid spokesman of judicial independence, was outraged at this intrusion and published a pamphlet complaining that the General Assembly had made judges the"laughing stock of legislators."(fn17) This incident helped to make judicial independence one impetus for the 1818 Constitutional Convention.

Judicial independence was dealt with at the convention through the concept of separation of powers - an idea that had been and was being introduced in other states.(fn18) The notion of separation of powers seemed to offer a solution to the unbridled use of legislative power at the expense of judicial independence.(fn19) Nevertheless, many saw application of the separation of powers to Connecticut as an undesirable break from tradition.(fn20) Thus, within the convention, some compromise had to be made on how the separation of powers notion was to be expressed in the constitution.

To address the separation of powers issue, the Constitutional Convention considered including two separation of powers provisions in the constitution: a prefatory clause and an explaining clause. The prefatory clause outlined the basic separation of powers: "The powers of the 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."(fn21) And the explaining clause, borrowed from many other state constitutions, called for a strict division between the branches of the government: "No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted."(fn22) The Convention of 1818 adopted the prefatory clause but rejected the explaining clause, thereby signifying that the convention feared a strict separation of powers that would alter dramatically the prevailing governmental structure under which the General Assembly exercised a broad and flexible range of powers.(fn23)

At the time of the ratification of the constitution, the Connecticut Supreme Court of Errors and the Connecticut Superior Court were already in existence. As a result, later cases inferred that it was the intent of the constitution that these courts continue to possess whatever essential characteristics they had at or before 1818, insofar as the judicial article mentioned them by name.(fn24) However, there is no evidence from subsequent supreme court of errors cases that one of these "characteristics" was court rule-making power. Nor is there evidence of discussion at the Constitutional Convention regarding the power to make rules of judicial practice and procedure. In fact, judge Swift's behavior with respect to court rule-making indicated that even he, one of the strongest advocates for judicial independence, assumed that this power was legislative.(fn25)

For the next sixty years the court never challenged the legislature's judicial rule-making authority.(fn26) In 1879, a shift in judicial rule-making responsibility commenced with the legislative enactment of a comprehensive Practice Act(fn27) that delegated some rule-making authority to the court. This act of delegation itself presupposed that the legislature had final rule-making authority and the preface to the 1879 Practice Book explicitly acknowledged the legislature's statutory authority for rule-making. Citing the Practice Act, the Practice Book stated: "The judges of the Superior Court shall have the power ... to make all such orders and rules as shall be necessary and proper to give full effect to the provisions in this act, including the forms of procedure under the same."(fn28) Later editions of the Practice Book confirmed this perceived authority.(fn29)

The real impetus for change in the allocation of rule-making power, however, occurred in areas not explicitly concerning the rules of practice and procedure, but in cases where the court reinterpreted the separation of powers clause and the general meaning of the Connecticut Constitution itself.(fn30) In the watershed cases of Styles v. Tyler(fn31) and Norwalk Street Railway Co.'s Appeal,(fn32) the Connecticut judiciary initiated a constitutional revolution. Previously, the constitution was thought to be a limitation on pre-existing legislative powers.(fn33) That is, the General Assembly was deemed to have all the power not expressly given to another branch of government, even if the powers were not expressly defined in the constitution. After these decisions, however, the constitution was viewed in a manner similar to our federal Constitution, namely, as a grant of certain enumerated powers rather than a mere limitation on existing legislative powers.

Both Styles and Norwalk Street Railway considered the powers that the legislature attempted to extend to the court, but which the court itself determined were not powers properly within the jurisdiction of the judiciary.(fn34) In Styles, the court held that it could not grant review to "questions of pure fact,"(fn35) and in Norwalk Street Railway, the court held that it could not decide appeals from matters previously determined by a municipal authority.(fn36) The rulings in these cases forged a new meaning to the separation of powers doctrine because both decisions sought to define the division of authority among the three branches more strictly than had previously been the case in...

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