Nielsen v. State

BERDON, J.,

concurring. I am unable to distinguish this case from Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977). In both cases the constitution directs the legislature to act in order to implement the respec*14tive constitutional provisions.1 Yet, in Horton, the court saw no impediment to its jurisdiction even though the constitutional provision providing for free public education was required to be implemented by the legislature. Likewise, there should be no impediment to this court’s jurisdiction with respect to article third, § 18, as adopted by article twenty-eight of the amendments to the state constitution. The only distinction that can be made between Horton and this case is that in Horton the legislature acted, but its action was constitutionally deficient, while in the present case, the General Assembly has, as of this day, failed to define the operative terms of the constitutional provision. From this distinction, the majority concludes that when the General Assembly acts we have jurisdiction and no political question exists, but when the General Assembly fails to act in accordance with its constitutional mandate, a political question exists and we are without jurisdiction. This is simply a distinction without a difference.

It appears that the majority holds that this court will never have jurisdiction unless the legislature defines the *15terms for article third, § 18 (b), which, as the attorney general in his brief for the defendants correctly notes, may never occur. Thus, under the majority’s analysis, we would be forever powerless to hold the General Assembly to its constitutional responsibilities. I disagree.

The rights of the public to the implementation of article third, § 18 (b), cannot be frustrated by legislative nonfeasance any more than it can by legislative misfeasance. More than 100 years ago, this court recognized that, like misfeasance, nonfeasance may constitute a jurisdictional basis for this court. When confronted with a contested gubernatorial election case, the court held: “If, however, the General Assembly refuses to act, or if it be so that the General Assembly has jurisdiction of the election of a governor only in the manner and at the time pointed out by the constitution, then the relator is remediless unless the court may intervene. When the time is past within which the General Assembly may act its jurisdiction is gone. To hold that the Assembly has such exclusive jurisdiction, and that the court in no case can have the right to act, would be to afford an instance where a flagrant wrong was without a remedy.” State ex rel. Morris v. Bulkeley, 61 Conn. 287, 374, 23 A. 186 (1892). The Bulkeley court concluded that if the legislature fails to act in accordance with its constitutional mandate, this court has jurisdiction to fill the void. Id., 376. More recently, with respect to legislation necessary to implement the constitutional probable cause procedure, this court said of legislative inaction: “ [I]f both the General Assembly and the judges of the Superior Court failed to establish procedures [for probable cause hearings], thereby leaving the constitutional provision in limbo for an unreasonable period, this court could have imposed such procedures in order *16to effectuate the amendment. Because the legislature did act within a reasonable period, it was not necessary for us to do so.” State v. Sanabria, 192 Conn. 671, 691-92 n.16, 474 A.2d 760 (1984). I agree with the Sanabria court, which included Chief Justice Peters, but I do not agree with the court’s present analytical flip-flop.

We have a constitutional obligation to keep the doors of this court open in order to enforce our laws. The people of the state approved a constitutional amendment that would require both a balanced budget and a spending cap. We cannot excuse the legislature’s default by merely labeling it a political question and thereby rendering the issue nonjusticiable. Nor is it appropriate for us to conclude that the only remedy available to the people is at the polling booth by “kicking the rascals out.” Our democracy depends in part on the willingness of the courts to enforce uniformly our constitutional law. We cannot be selective and choose to enforce some provisions, while turning our backs on others. Indeed, as Chief Justice Peters wrote in dissent, “[w]hatever the reasons may be, legislative inaction does not, to my mind, reheve this court of its independent duty to vindicate the constitutional rights of those who appear before us.” Pellegrino v. O’Neill, 193 Conn. 670, 695, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).

I concur in the result, not because I believe that this is a political question, but because insufficient time has elapsed between the effective date of article third, § 18 (b), and this date. The doctrine of ripeness prudentially requires sufficient deference to the legislature in order to allow that separate and coordinate branch of government a reasonable time in which to act. “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949). This court *17has implicitly recognized this doctrine by previously deferring to the legislature for a reasonable length of time. State v. Sanabria, supra, 192 Conn. 691-92 n.16. A little more than three years have elapsed since the effective date of article third, § 18 (b). This is simply an insufficient period for the issue to ripen, especially in view of the fact that a super-majority vote is required for the definitions to be adopted by the General Assembly.

By suggesting that we merely render a declaratory judgment, the plaintiffs themselves appear to have recognized that the legislature has not had a reasonable period in which to accomplish this task, which requires debate and compromise. I would decline the plaintiffs invitation, for the legislature does not need a declaratory judgement to define its responsibilities as it did in Horton. The legislature’s responsibilities are already clearly stated in the language of article third, § 18 (b): “The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths of the members of each house of the general assembly.” If the legislature fails to perform its duty within a reasonable time period, the question will, in my view, ripen, and thereby allow us to define the terms, at least in the first instance, in order to implement article third, § 18 (b).

Although I disagree with the majority’s reasoning, I concur in the result. The action should be dismissed on the ground that the issue is presently not ripe for adjudication.

The constitution of Connecticut, article eighth, § 1, provides: “There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.” (Emphasis added.)

The constitution of Connecticut, article third, § 18, as adopted by article twenty-eight of the amendments, provides in relevant part: “(a) The amount of general budget expenditures authorized for any fiscal year shall not exceed the estimated amount of revenue for such fiscal year.

“(b) The general assembly shall not authorize an increase in general budget expenditures for any fiscal year above the amount of general budget expenditures authorized for the previous fiscal year by a percentage which exceeds the greater of the percentage increase in personal income or the percentage increase in inflation, unless the governor declares an emergency .... The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths *15of the members of each house of the general assembly. ...” (Emphasis added.)