I. Milton Widem, Chairman
William R. Breetz
Judge H. Maria Cone
Representative Robert Farr
Jon P. Fitzgerald
Robert W. Grant
Representative Michael P. Lawlor
Michael W. Lyons
Representative Arthur J. O'Neill
Mary Anne O'Neill
Joel I. Rudikoff
Edmund F. Schmidt
Joseph J. Selinger, Jr.
Judge Elliot N. Solomon
Professor Colin C. Tait
Professor Terry J. Tondro
Senator Donald E. Williams, Jr.

Seal-blue4.jpg (4041 bytes)

David D. Biklen
Executive Director

David L. Hemond
Chief Attorney

Jo A. Roberts
Senior Attorney

Connecticut Law Revision Commission
State Capitol
Room 509A
Hartford, Connecticut 06106-1591
(860) 240-0220
FAX (860) 240-0322
Email: lrc@po.state.ct.us

To: Judiciary Committee of the Connecticut General Assembly
From: David L. Hemond
Date: December 18, 1998
Re: Law Revision Commission Legislative Recommendations Concerning the Validating Acts

The Law Revision Commission recommends enactment in the 1999 legislative session of a proposed bill concerning the validating acts. The proposed bill would be enacted as part of the General Statutes in lieu of the periodic adoption of a retroactively applied validating act.

Judiciary Committee Co-Chairmen Donald E. Williams, Jr. and Michael P. Lawlor requested that the Law Revision Commission report to the Judiciary Committee by February 1, 1999 concerning the Validating Acts and further specified that:

"The study should examine current validating acts and should review the items covered by them to see if there are any additional items to be covered and whether some of the items included are appropriately included. Secondly, the review should examine the feasibility of having the Validating Act as part of the General Statutes, so that the acts are validated with the passage of time without having to require the passage of a new Validating Act. Thirdly, the Law Revision Commission should compare Connecticut’s Validating Act with other states to see what procedures are used in other states."

Brief history of the Connecticut Validating Acts

In legislative sessions prior to 1933, the General Assembly periodically passed a number of Special Acts each of which validated some specific action notwithstanding a failure to comply with a requirement of the General Statutes. Each of those Special Acts was directed to single instances, involving specific circumstances. Where an assessor in a particular town failed to file a timely assessment list, the assessment list was legislatively validated. A specific deed recorded with an improper acknowledgment was validated. When a fiduciary failed to give a required notice in a probate case, his subsequent actions were validated. During the 1933 legislative session, a decision was apparently made to pass a consolidated Special Act validating in general many of the typical failings that in prior years were validated individually.

The 1933 act, Special Act 33-453, An Act Validating Acts and Deeds Valid Except for Certain Irregularities and Omissions, is the prototype for later Connecticut validating acts. No legislative history is available for that act. (Given the loose state of indexing of records from that era, it is possible that an earlier general validating act exists. However, earlier indices and collections of the annual Special Acts were reviewed and no such omnibus act was found. Whether an earlier act exists is, in any case, not critical to this analysis.)

The general provisions of the 1933 act validated irregularities involving the duties of assessors, in the levying of taxes, in tax liens, in deeds conveying real property, and in actions by fiduciaries. Many of the provisions of the most recent 1997 Validating Act, Special Act 97-6, trace directly back to the general validating provisions of the1933 prototype. The legislature continued to pass such a general validating act (referred to as the "Omnibus Validating Act" in many indices) every odd numbered year with occasional updates. The various acts are set out in the appendices. (There is apparently no 1955 act. This also reflects either a historical or indexing anomaly with no particular importance for the current analysis.) The 1933 act also included a number of specific validations with respect to individual cases in the manner enacted in prior years. Such validations of individual cases continued in separate sections at the end of the validating acts through the enactment of the 1957 act, Special Act 57-678.

The validating acts have evolved through several phases. During the earliest period, 1933 to 1957, the acts followed the format of the 1933 act. The early 1960 acts continued the older form but added a number new provisions. In 1973, and in acts through 1983, language of this earlier period was significantly redrafted and reorganized. In 1985, the provisions were again significantly redrafted and additional subsectioning was added. The latest 1997 act follows the form of the 1985 act. Of course, discrete provisions were added or revised many times during these years. Despite all of these changes, the underlying premise of enacting a validating act does not appear to have been seriously reviewed or questioned since 1933.

 Legal issues concerning validating acts

Legislative validating acts can be enacted to cure defects arising from a failure to comply with statutory requirements, provided that vested rights have not arisen in the interval between the failure to comply and the legislative validation. The basic rule is set out in Sanger v. Bridgeport, 124 Conn. 183 (1938), and Dennen v. Searle, 149 Conn. 126 (1961) as follows:

"What the Legislature may prescribe it may dispense with, and it may cure by subsequent act an irregularity of nonobservance of a requirement which it originally might have dispensed with, provided that vested rights have not intervened." Sanger, at 186.

For a general discussion of validating acts, see 16B Am Jur 2d, Constitutional Law, sections 690-706, and 23 Am Jur 2d, Deeds, section 191. The underlying consideration is that while a legislature may, within limits, legislate retroactively – determining the legal significance of acts or events that occurred prior to the statute’s effective date, such provisions run the risk of denying parties who acted in reliance on the prior law of due process, or of depriving such a party of vested property rights obtained in reliance on the prior law. If the validation deprives a person of substantive rights based on prior law, the act may violate constitutional prohibitions concerning the deprivation of property without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution. Thus while the various validating provisions are presumptively effective prospectively, their retroactive effect is in doubt where relied on to determine conflicting claims that arose prior to the validation.

Validating acts in Connecticut also run the risk of violating section 1 of Article First of the Connecticut Constitution, which prohibits public emoluments. The gist of that provision is that the legislature cannot enact provisions expressly for the benefit of private individuals. As the Connecticut Supreme Court noted in Merly v. State, 211 Conn. 199 (1989),

"We have construed the provision of article first, 1 prohibiting ‘exclusive public emoluments or privileges’ to apply to legislation preferring certain individuals over others when wholly unrelated to the public interest. ‘No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual. Its validity is contingent, at least in part, upon its furthering a public purpose; if sustained with that end in view, legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or a class.’ State ex rel. Higgins v. Civil Service commission, 139 Conn. 102, 106, 90 A.2d 862 (1952)…"

The Connecticut practice, particularly through the 1957 act, of validating individual defects, has the appearance of awarding emoluments in violation of that policy. Any such individual validations do not apply to all individuals affected by a like defect and therefore give preference to the individual benefiting from the validation. While some public purpose might be found in those cases to sustain particular awards, any such act is inherently suspect. However, by resorting in 1933 to adoption of general validating provisions for many defects, the legislature skirted the problems with emoluments for those provisions. Any such general validating act applies generally to the class of all persons subject to the particular defect validated. As long as the class of application is large enough and the public purpose is evident, such a provision should survive an emolument challenge. However, some of the general validations may be so tightly drawn as to address a discrete, relatively unique circumstance and benefit a limited class. Such a general provision that, in fact, benefits only a specific person or limited class might violate the emolument prohibition if no "public" purpose can be ascertained. That problem is a particular danger if a retroactive validation is passed that is intended to resolve some specific case since the legislature is, in fact, acting to benefit specific individuals affected by that specific defect.

The periodic use of validating acts also creates other problems. Some of the errors that are validated in the Connecticut act are not so serious that the underlying transaction should be voidable based on the error. Where that is the case, the defect is insubstantial and would be more properly addressed by a provision in the General Statutes that indicates that such an error is of no effect. The Connecticut practice of validating such errors runs the risk that a new occurrence of the error will be considered to be substantive and will become the basis of litigation in the interval before a new validating act is passed.

Moreover, if a failure to comply with a statute is substantive and ought to give a party rights to contest the transaction, the periodic enactment of a validating provision runs the risk of prematurely terminating (or attempting to terminate) that right to contest. Connecticut addresses this problem by providing that the act has no effect if litigation is pending. See section 9 of the 1997 act. However, the party holding such a substantive right to contest a transaction based on an error or defect may be unaware that his right is about to be foreclosed by the validating act or may be unable to litigate promptly for other reasons. The legislature’s notice of public hearing on the proposed validating act does not reasonably apprise such a party that his right to litigate is about to be foreclosed. Thus the impact of the validating act with respect to persons holding such rights is potentially arbitrary.

Validating acts, then, face problems with their retroactive application, with the danger that they will be construed to be emoluments benefiting individuals rather than the public, with the fact that they cast doubt on insubstantial errors, and because they may arbitrarily foreclose rights of parties holding substantive rights based on the defect that is validated. Because of these problems, the legislature would be prudent to avoid using a validating act where another approach would suffice.

The Law Revision Commission finds that periodic enactment of such an act is no longer necessary nor viable. Specific errors that are currently addressed in the act, where necessary, should be addressed in advance by provisions of general application. Moreover, large portions of the existing act are out of date or ill conceived. Indeed, some failings of recent validation acts such as failures to recognize major changes in the underlying laws that are being addressed undermine the integrity of the validating process. Recent acts appear to have been enacted largely by rote, rather than with consideration of many of the specific errors being addressed.

Moreover, Connecticut is virtually unique in passing such an omnibus bill. Many other states, in accord with this analysis, have self-validating provisions for many of these matters. The way in which Connecticut addresses these defects should be revised.

A proposed bill that the Commission recommends be enacted in lieu of a periodic validating act is attached. That bill adopts provisions necessary to ensure that, where appropriate, instruments that are subject to substantive defects are validated after a period of limitations within which interested parties may challenge the instrument. Comments follow each section to assist in following the derivation of the validating provision.

A more specific report on the validating acts is also attached. The Commission reviewed the different dynamics that apply with respect to each of the various provisions in the latest validating act. The supplementary report reviews the history of each provision, what specifically is intended to be validated, why the current approach is no longer viable, and whether additional legislation is necessary to preserve public policy. Where new legislation is necessary, the report references where the proposed revision is set out in the proposed bill.

Proposed Bill        Specific Report on the Validating Acts