(dissenting). I concur in the scholarly dissent of my colleague. I would, however, add other compelling reasons for dissenting. General Statutes § 54-86b entitles defendants in criminal prosecutions to examine relevant statements made to the prosecution by the witnesses against them. By enacting § 54-86b, the General Assembly simply granted another right to defendants to enable them more effectively to exercise their constitutional right of confrontation through cross- examination. Conn. Const., art. I § 8. The creation of new rights to ensure a fair trial is an appropriate exercise of legislative power. That $ 54-86b may also be a procedural directive to the trial court does not detract from the power of the General Assembly to enact it. For whether viewed historically or analytically, the General Assembly has the constitutional authority to enact rules of practice and procedure.1
Article second of the Connecticut constitution distributes the judicial, legislative and executive *539powers “each. ... to a separate magistracy.” As the majority recognize, article second is not a prescription for a rigid functional classification.2 In re Application of Clark, 65 Conn. 17, 38, 31 A. 522. Unlike the constitutions of some other states,3 our constitution does not explicitly allocate the power to make rules of practice and procedure to a particular branch of government. But article fifth implies that the power resides in the General Assembly. That article, which establishes the Supreme Court and the Superior Court, states that “[t]he powers and jurisdiction of these courts shall be defined by law.”4 Conn. Const., art. V § 1.
*540As Justice Cotter observes in his dissent, “‘[a] practical construction placed upon a [doubtful] constitutional provision immediately after its adoption and consistently and repeatedly followed by the legislature for over a century thereafter is most persuasive’ ” evidence of its meaning. Snyder v. Newtown, 147 Conn. 374, 386, 161 A.2d 770, appeal dismissed, 365 U.S. 299, 81 S. Ct. 692, 5 L. Ed. 2d 688; State v. Moynahan, 165 Conn. 560, 570, 325 A.2d 199 (applying this principle to construe the separation of powers provision). From the first days under our first constitution the General Assembly has been deemed to possess the power to enact rules of procedure for the courts. As Chief Justice Maltbie pointed out, when the General Assembly first constituted the Supreme Court of Errors under the constitution of 1818, it empowered that court by enabling legislation to institute rules of practice. Statutes, 1821, p. 137, § 5. That legislative delegation of rule-making power to the judiciary has continued in effect in various forms to the present day. See General Statutes §§ 51-14,5 52-264; In re Appeal of Dattilo, 136 Conn. 488, 490-91, 72 A.2d 50; Maltbie, “The Rule-Making Powers of the Judges,” Practice Book 1951, p. XI. Moreover, the specific rules of practice and procedure, including discovery rules, which the General Assembly has itself enacted are legion. They form the bulk of *541titles 51, 52, and 54 of the General Statutes.6 The single most important procedural reform in this state’s history, the transition from “common-law” to “code” pleading, was effected by statute. The Practice Act of 1879 abolished the procedural differences between law and equity, instituted the unitary form of civil action and approved the simplified system of fact pleading. Public Acts 1879, c. 83. See Dunnett v. Thornton, 73 Conn. 1, 6, 46 A. 158; 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 75 (a); Loomis & Calhoun, The Judicial and Civil History of Connecticut, pp. 89-90.
So numerous are the opinions of this court expressly recognizing the authority of the General Assembly over practice and procedure, including discovery, that they must be relegated to a footnote.7 The very case which revitalized the doctrine *542of separation of powers in this state, Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 37 A. 1080, explicitly acknowledged the validity of procedural legislation: “ ‘The Superior Court,’ in which judicial power is vested by the Constitution, is .a magistracy consisting of the judges. The manner in which they shall exercise that power must to a large extent be governed by legislation in respect to procedure.”8
Historically, the real controversy has centered on the existence of judicial power to adopt rules of practice and procedure without an enabling statute.9 The inherent power of courts to promulgate such rules without an enabling statute was eventually recognized, for sound practical reasons and because it was necessary if the courts were to function at *543all.10 Not until 1950 did this court announce the existence of its inherent rule-making power, in In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50. The statement in that case was dictum, however, since the court actually grounded its decision on the broad scope of the enabling statute then in effect. Nowhere in Dattilo was it said, and nothing in that case implied, that the General Assembly is without power to enact procedural statutes. See for confirmation, Stanley v. Hartford, 140 Conn. 643 646-48, 103 A.2d 147. That the courts have inherent power to make rules of procedure, including discovery, does not imply that the General Assembly does not also have that power.
Since 1945 a number of states have adopted new constitutions which specifically allocated procedural rule-making power.11 Despite that trend, when this state adopted its new constitution in 1965, no such allocation was made. Instead, the drafters kept article second and article fifth, § 1, substantially as they were in the constitution of 1818. It is a fair presumption that by their nonaction the drafters of our present constitution approved the enduring practice of legislative control over procedure. Cf. Hurlbutt v. Hatheway, 139 Conn. 258, 262-63, 93 A.2d 161.
*544The majority opinion approves the bald assertion in two recent cases that “the General Assembly has no power to make rules of administration, practice or procedure which are binding on either of the two constitutional courts.” Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49; State ex rel. Kelman v. Schaffer, 161 Conn. 522, 529, 290 A.2d 327. In both opinions that statement was dictum.12 In neither opinion was it supported by argument or explanation. And in both opinions the cases cited to support the statement do not support it.13 Approximately 150 years of comprehensive and judicially approved legislative authority over practice and procedure cannot be repudiated by unsupported dicta. Never before the present cases has an act *545of the General Assembly governing practice or procedure been held by this court to trespass on the prerogatives of the judiciary in violation of article second of the Connecticut constitution.
The right of the General Assembly to regulate practice and procedure in the courts, including discovery, is confirmed by analysis of the doctrine of separation of powers and the extent of legislative power. For separation of powers purposes, the distinction between “substance” and “procedure” is illusory. The problem is not that the line between the two is imprecise. Rather, questions of “procedure” may and often do present basic issues of public policy above and beyond the subject of efficient judicial administration. “Procedure conditions and determines legal relations. The substantive importance of judicial procedure to society lies in the fact that it conditions and determines the way in which judicial power is made operational. This is a matter of great popular concern.” 1 Sutherland, Statutory Construction (4th Ed.) § 3.27. As Mr. Justice Frankfurter succinctly put it, “[t]he history of American freedom is, in no small measure, the history of procedure.” Malinski v. New York, 324 U.S. 401, 414, 65 S. Ct. 781, 89 L. Ed. 1029.
“Under our constitution the General Assembly is vested with full authority to order the affairs of the state except as it is limited by provisions in the constitution of the United States or those of our constitution.” Walkinshaw v. O’Brien, 130 Conn. 122, 133, 32 A.2d 547. “1't is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, *546and apply the remedies prescribed. . . . ‘To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.’ ” Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616. Because its members are popularly elected, the legislature bears primary responsibility for weighing competing public policy considerations. As the branch of government whose members are least subject to control by the electorate, the judiciary is not charged with the formulation of public policy, except as that is a necessary concomitant to adjudication.
It is true that in the area of practice and procedure in the courts, an inherent rule-making power in the judiciary must be acknowledged as a practical necessity. But as the branch of government charged with the determination of public policy, the legislature must have the power to enact binding rules of practice and procedure which do not jeopardize the judicial administration of justice. “A main purpose of the division of powers between legislature and judicature, is to prevent the same magistracy from exercising in respect to the same subject the functions of judge and legislator. This union of functions is a menace to civil liberty, and is forbidden by the Constitution.” Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 594, 37 A. 1080. If the power to make and the power to apply rules of procedure and practice are united in the judicial branch, without any check in the form of legislative control, then the safeguard of separation of powers is lost.14
*547No procedural statute so well illustrates the propriety of legislative action as does General Statutes § 54-86b itself. That section was enacted to implement the constitutional right of confrontation through cross-examination by entitling defendants in criminal prosecutions to examine relevant statements made to the prosecution by the witnesses against them.15 Formerly, the rule in this state was that it was “within the discretion of the court to grant or deny a defendant the right to inspect statements of the state’s witnesses in the possession of the state’s attorney.” State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442. That rule was based on a view of public policy first expressed in 1787 in State v. Phelps, Kirby 282, and subsequently reaffirmed in State v. Zimnaruk, 128 Conn. 124, 127, 20 A.2d 613: “Disclosures, under such circum*548stances, to the attorney, ought to be considered as confidential, and it would tend to defeat the benefits the public may derive from them, should they be made use of to the prejudice of those from whom they come.” But the decision to grant or deny a right of discovery of statements of prosecution witnesses also involves other policy considerations. It has been feared that such discovery would enable defendants “to prepare their own perjury, to suborn the perjury of others, or otherwise to fabricate evidence in order to shape a defense to the contours of the prosecution’s disclosed evidence.” But it has been urged in favor of such discovery that “the integrity of the fact-finding process in the criminal trial” is at stake, as well as the effectiveness of the defendant’s constitutional right of confrontation. Nakell, “Criminal Discovery for the Defense and the Prosecution—The Developing Constitutional Considerations,” 50 N.C.L. Bev. 437, 437-38, 442-43; note, “The Jeneks Bight: Judicial and Legislative Modifications, The States .and the Future,” 50 Ya. L. Bev. 535, 552-53. The choice between those competing policy considerations is a legislative prerogative. Indeed, when the United States Supreme Court presumed to make the choice for the federal system in Jeneks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103, many expressions of public and Congressional outrage resulted. See comment, “The Jeneks Legislation: Problems in Prospect,” 67 Yale L.J., 674, 680-82. Under our system of government, a decision of such importance is one for the people’s elected representatives to make. Walkinshaw v. O’Brien, supra; Atwood v. Buckingham, supra.
The constitutional provision for separation of powers does indeed impose a limitation on the power *549of the General Assembly to enact rules of practice .and procedure for the courts. A procedural statute is invalid if it is so burdensome or unreasonable as to interfere with the administration of justice or the functioning of the courts.16 Adams v. Rubinow, supra, 158; Maltbie, “The Rule-Making Powers of the Judges,” Practice Book 1951, pp. XT, XVII; 1 Sutherland, Statutory Construction (4th Ed.) § 3.27; Levin & Amsterdam, “Legislative Control Over-Judicial Rule-Making: A Problem in Constitutional Revision,” 107 U. Pa. L. Rev. 1, 30-32.
General Statutes § 54-86b does not fail that test. It does not impose a nonjudicial duty on the court. Cf. Adams v. Rubinow, supra; Norwalk Street Ry. Co.’s Appeal, supra. Nor does it deprive the trial court of that discretion to control criminal discovery which it must have if it is to fulfill its judicial functions. Indeed, in view of the incorporation of § 54-86b in our Practice Book in 1972, with elaboration, it would seem impossible to make that .argument. See Practice Book (A 533M-533S. If the state’s attorney denies that a statement in his possession “relates to the subject matter as to which the witness has testified” (in the words of the statute), nothing in § 54-86b prevents the court from itself examining the statement to rule on the motion to produce.
The defendants in these cases were convicted of serious crimes. But their convictions are tainted by the denial of rights which the General Assembly granted defendants to ensure fairness in criminal prosecutions. In my view, the majority upholds their convictions by misinterpreting a fundamental constitutional principle. I must respectfully dissent.
In their arguments before us the parties have framed the issue in terms of whether § 54-86b is substantive or procedural. In my view that distinction is not germane to the separation of powers question, because rules of procedure affect substantive rights and reflect public policy considerations.- See infra. The majority opinion *539affirms the validity of the substance-procedure distinction for separation of powers purposes, but asserts without explanation that § 54-86b cannot be neatly categorized as substantive or procedural. If the majority mean that although § 54-86b governs an aspect of procedure it may vitally affect substantive rights, I wholeheartedly agree. See infra. In that respect it is no different from a great many other procedural enactments. The majority opinion concludes that § 54-86b is unconstitutional because historically the courts have had inherent power to regulate discovery and the discretion to grant or deny the particular kind of criminal discovery controlled by § 54-86b. Those grounds are dealt with in the body of this dissent.
Dean Boscoe Pound admonished that “the regime of separation of powers . . . does not require a rigid analytical classification in which every conceivable activity of government is assigned once for all exclusively to one of the three departments. There are many powers which are of doubtful classification both analytically and historically. . . . {An] example is the making of rules of procedure for the courts which according to whether it is looked at historically or analytically might be regarded as a judicial or as a legislative function. . . . Chief Justice Marshall pointed out the solution long ago. It is a proper legislative function to assign powers of doubtful classification to an appropriate department.” Pound, “The Place of the Judiciary in a Democratic Polity,” 27 A.B.A.J. 133, 136.
See, for example, the New Jersey constitution, art. VI, §2, If 3.
The words “these courts” include the Supreme Court and the Superior Court, and the word “law” means statutory law. See Walkinshaw v. O’Brien, 130 Conn. 122, 134, 32 A.2d 547; see also Heiberger v. Clark, 148 Conn. 177, 190, 169 A.2d 652.
General Statutes §51-14 provides, in pertinent part: “(a) The judges of the supreme court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in all courts of the state for the purpose of simplifying the same and of promoting the speedy and efficient determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify any substantive right .... (b) Any rule or any part thereof disapproved by the general assembly by resolution shall be void and of no effect . ” (Emphasis added.)
Specific examples of procedural legislation are contained in the separate dissent of Justice Cotter, and both his opinion and that of the majority refer to the numerous discovery statutes which have been enacted since 1818. See footnote 2 of Justice Cotter’s opinion, with accompanying text.
In at least throe cases this court firmly rejected arguments that procedural statutes which imposed judicial duties contravened the separation of powers provision of our constitution. In the Matter of Gilhuly’s Petition, 124 Conn. 271, 280, 199 A. 436 (special statutory proceeding in the nature of mandamus); Braman v. Babcock, 98 Conn. 549, 551-58, 120 A. 150 (Declaratory Judgment Act); Johnson County Savings Bank v. Walker, 79 Conn. 348, 351-52, 65 A. 132 (statute shifting burden of proof). See also Ackerman v. Union & New Haven Trust Co., 91 Conn. 500, 505, 100 A. 22 (judicial rule-making under the Practice Act), quoted by Justice Cotter in his dissent. Other cases include: State v. Bitting, 162 Conn. 1, 8-10, 291 A.2d 240 (evidence of prior convictions admissible for impeachment purposes); Testa v. Carrolls Hamburger System, Inc., 154 Conn. 294, 295-97, 224 A.2d 739 (statutory expansion of authority to open judgments); Mendez v. Dorman, 151 Conn. 193, 196-99, 195 A.2d 561 (compelling adverse party to testify; cross-examination) ; Black v. Universal C.I.T. Credit Corporation, 150 Conn. 188, 392-94, 187 A.2d 243 (new trial) ; Pottetti v. Clifford, 146 Conn. 252, 262, 150 A.2d 207 (discovery); Kelsall v. Kelsall, 139 Conn. 163, 166-68, 90 A.2d *542878 (amendments in divorce actions); State v. English, 132 Conn. 573, 580, 46 A.2d 121 (removal of common-law disqualification of witness); Peyton v. Werhane, 126 Conn. 382, 387, 11 A.2d 800 (discovery) ; May v. Young, 125 Conn. 1, 9, 2 A.2d 385 (discovery) ; Wilcox v. Madison, 106 Conn. 223, 231, 137 A. 742, appeal dismissed, 276 U.S. 606, 48 S. Ct. 337, 72 L. Ed. 728 (statutory tax warrant); State v. Torello, 103 Conn. 511, 519-20, 131 A. 429 (statutory exceptions to the hearsay rule); State v. Caplan, 85 Conn. 618, 621-24, 84 A. 280 (appeals to the Supreme Court); Lew v. Bray, 81 Conn. 213, 217, 70 A. 628 (costs); Dawson v. Orange, 78 Conn. 96, 100, 61 A. 101 (declaratory judgment statute) ; Dunnett v. Thornton, 73 Conn. 1, 6, 46 A. 158 (Practice Act of 1879).
Legislative control over practice and procedure in the courts is not unique to Connecticut. It is the general rule throughout the United States. See Sibbach v. Wilson & Co., 312 U.S. 1, 9, 61 S. Ct. 422, 85 L. Ed. 479; Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L. Ed. 253 (power of Congress to regulate the practice and procedure of federal courts); 1 Sutherland, Statutory Construction (4th Ed.) § 3.27; Levin & Amsterdam, “Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Bevision,” 107 U. Pa. L. Bev. 1, 3; Pound, “The Bule-Making Power of the Courts.”
See Pound, op. cit., footnote 8, supra; 1 Sutherland, op. eit., footnote 8, supra.
In the absence of governing statutes, the inability of the courts to adopt their own rules of practice and procedure could stymie their performance of their adjudicative duties. Moreover, courts, it is said, are more able than legislatures to make timely procedural changes and more aware of the changes which need to be made. Courts are also said to have greater expertise than legislatures in matters of procedure and to be less prone to be swayed by extraneous political considerations. See Joiner & Miller, “Buies of Practice and Procedure: A Study of Judicial Buie Making,” 55 Mich. L. Bev. 623, 642-44.
Levin & Amsterdam, “Legislative Control Over Judicial BuleMaking: A Problem in Constitutional Bevision,” 107 U. Pa. L. Bev.
In Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49, the question was the constitutionality of the imposition by statute of nonjudieial duties on a Superior Court judge. The statute was upheld. Ur State ex rel. Kelman v. Schaffer, 161 Conn. 522, 290 A.2d 327, the appellant took an expedited appeal under both a court rule and a statute which provided an alternative procedure. The court took the appeal under the rule and warned that an appeal taken under the statute alone might not be entertained.
Four cases were cited. In re Appeal of Dattilo, 136 Conn. 488, 72 A.2d 50, does not support the assertion of legislative impotence for the reasons stated in the body of this dissent. Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652, held, and State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, stated in dictum, that the General Assembly has no power to enact a statute fixing qualifications for admission of persons to practice law. The holding of Belberger v. Clark was based on the long history of judicial authority over the admission of attorneys and the fact that “attorneys are officers of the court appointed to assist the court in the administration of justice.” Heiberger v. Clark, supra, 186. Heiberger v. Clark is notable in the present context because the court did not ground its holding of unconstitutionality on the unconstitutionality of statutes governing practice and procedure generally. Brown v. O’Connell, 36 Conn. 432, the fourth ease relied upon, held unconstitutional an act providing for the appointment of a police court judge by a city council, on the ground that only the General Assembly could appoint a judge. The case had nothing to do with rules of practice and procedure.
"[I]t seems doubtful wisdom for a court to place itself beyond legislative control when it pronounces general rules. Even those who think that there is no need to guard against an abuse of power by the court may still sense that, in the very act of abjuring *547immunity from correction when it lays down a general rule, the court strengthens its moral foree as an instrument of adjudication.” Kaplan & Greene, “The Legislature’s Belation to Judicial BuleMaking: An Appraisal of Winberry v. Salisbury,” 65 Harv. L. Rev. 234, 254. Accord, Maltbie, “The Bule-Making Powers of the Judges,” Practice Book 1951, pp. XI, XVI-XVIII; Levin & Amsterdam, “Legislative Control Over Judicial Bule-Making: A Problem in Constitutional Bevision,” 107 IT. Pa. L. Bev. 1, 18-20; 1 Sutherland, Statutory Construction (4th Ed.) § 3.27; Pound, “The Place of the Judiciary in a Democratic Polity,” 27 A.B.A.J. 133, 136.
General Statutes § 54-86b is, the statutory enactment of the rule of Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103, in which the United States Supreme Court held that in federal prosecutions defendants were entitled to statements made by prosecution witnesses and in the possession of the prosecution. The right was subsequently restricted by Congress in legislation known as the Jencks Act, 71 Stat. 595, 18 U.S.C. § 3500. The constitutionality of the Jencks Act was confirmed in Palermo v. United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L. Ed. 2d 1287. In State v. Pikul, 150 Conn. 195, 187 A.2d 442, this court refused to adopt the Jencks rule. The General Assembly did adopt it in 1969. General Statutes §54-86b; Public Acts 1969, No. 680. Thereafter, the requirements of $ 54-86b were added to the Practice Book. Practice Book $$ 533M-533S.
The majority opinion concedes that that is the test of constitutionality, but does not proceed to apply it.