text:
    MARVIN BEASLEY v. COMMISSIONER OF CORRECTION JOHN W. NARDUCCI, JR. v. COMMISSIONER OF CORRECTION
    (AC 17295)
    (AC 17296)
    O’Connell, C. X, and Schaller and Sullivan, Js.
    Argued May 28
    officially released September 22, 1998

      Timothy H. Everett, with whom were Jason Lipsky and, on the brief, Audrey Felsen, certified legal intern, for the appellants (petitioners).

      Steven R. Strom, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Gregory T. D’Auria, assistant attorney general, for the appellee (respondent).
   Opinion

O’CONNELL, C. J.

The petitioners, Marvin Beasley and John W. Narducci, Jr., separately petitioned for writs of habeas corpus challenging the respondent commissioner of correction’s Administrative Directive 9.4, paragraph five (July 6, 1994 amendment), which operates to restrict statutory good time eligibility for inmates classified in administrative segregation. The habeas court consolidated the petitions for trial and subsequently dismissed them. The petitioners’ separate appeals from the dismissals were consolidated by this court because they raise identical appellate claims.

The petitioners claim that the habeas court improperly concluded that (1) the directive does not violate the ex post facto clause of the United States constitution by retrospectively increasing the length of the petitioners’ sentence, (2) the commissioner did not deprive the petitioners of earned statutory good time credits without first according them hearings as required by General Statutes (Rev. to 1993) § 18-7a (c), (3) the commissioner has statutory authority to adopt and enforce the directive, which precludes the petitioners from being eligible to earn statutory good time while classified in administrative segregation, (4) the commissioner’s refusal to credit the petitioners with statutory good time pursuant to § 18-7a (c) does not violate the guarantee of equal protection under the law and (5) denial of statutory good time credit to the petitioners does not violate the guarantee of due process of law. We affirm the judgments of the habeas court.

The habeas court found the following facts. The petitioner Narducci is confined to the custody of the commissioner pursuant to eleven mittimuses the Superior Court issued on sentencing dates from 1989 through 1993. On April 12, 1994, Narducci was classified in administrative segregation because of past and recent assaultive behavior. At the hearing that resulted in his administrative segregation classification, Narducci, who was assisted by a staff advocate, stated that he understood the reasons for the administrative segregation recommendation. Although Narducci has not been given subsequent administrative segregation placement hearings, his status as an administrative segregation inmate has been subject to periodic review by unit and facility classification staff, including the warden.

On December 12, 1990, the petitioner Beasley was confined to the custody of the commissioner pursuant to two mittimuses issued by the Superior Court. On July 13, 1995, while serving a twenty year sentence for first degree manslaughter, Beasley was further sentenced to two years, consecutive to the manslaughter sentence, for second degree assault and possession of a weapon in a correctional institution, after stabbing and seriously injuring another inmate.

On March 15, 1995, Beasley was informed that he would be the subject of an administrative segregation classification hearing because of the near fatal assault in the institution. During the hearing, Beasley gave a statement to the hearing officer, saying that he understood the purpose of the hearing. Following the hearing, Beasley was classified in administrative segregation, subject to periodic review by unit and facility staff. Pursuant to Administrative Directive 9.4, each petitioner became ineligible to earn statutory good time upon being classified in administrative segregation.

During the habeas proceeding, the commissioner testified, and the court found, that his authority is established pursuant to General Statutes § 18-81. Pursuant to this authority, the commissioner has promulgated a set of directives, which are written guidelines pertaining to several correctional facilities. These directives were not promulgated in accordance with the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and are utilized to establish the parameters for the operation of the facilities. These directives set forth procedures for dealing with inmates, define inmate classifications and are used as guidelines to adhere to the department’s mission to maintain secure, safe and humane correctional facilities.

Administrative Directive 9.4 defines administrative segregation as “[placement of an inmate on a Restrictive Housing Status that results in segregation of the inmate whose behavior, while incarcerated, poses a threat to the security of the facility or a risk to the safety of staff or other inmates, and that the inmate can no longer be safely managed in general population.” Inmates being considered for administrative segregation are entitled to a classification hearing and to notification of the reasons forming the basis of the consideration. Once placed in administrative segregation, an inmate’s classification status is subject to periodic review. The habeas court found that this procedure was followed with respect to both inmates.

On July 6, 1994, Administrative Directive 9.4 was amended to state that for the duration of time that an inmate is classified in administrative segregation, that inmate is ineligible to earn statutory good time. Notice of this change was provided to the inmate population via postings throughout the correctional facilities and the directives handbook, which is made available to all inmates.

For each inmate, the department maintains a document commonly referred to as a time sheet. This document reflects an inmate’s total sentence, earned and forfeited statutory good time and an anticipated release date. Because of difficulties in adjusting the computer program that generates this document, the time sheets for inmates classified in administrative segregation continue to show earned statutory good time since July 6, 1994, and the subsequent forfeiture thereof.

During the period of time that the petitioners were classified in administrative segregation, they were ineligible to earn statutory good time. Narducci, who was classified in administrative segregation prior to July 6, 1994, was credited with statutory good time until the directive took effect.

It is well settled that the courts afford great deference to prison administrators in their operation and management of correctional facilities. “Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.” (Internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 733-34, 680 A.2d 262 (1996).

I

The petitioners first claim that because Administrative Directive 9.4, paragraph five, restricts their eligibility to earn statutory good time while classified in administrative segregation, it violates the ex post facto clause of the United States constitution by retrospectively increasing the length of their individual sentences.

The petitioners concede not only that our recent decision in Abed v. Commissioner of Correction, 43 Conn. App. 176, 682 A.2d 558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996), controls this issue, but that if it is applied to the facts of this case, their argument must fail. They argue, however, that in light of the United States Supreme Court’s decision in Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997), we must reverse Abed and find in their favor. We do not agree, and we conclude that Abed remains good law in Connecticut.

In Abed v. Commissioner of Correction, supra, 43 Conn. App. 178, the commissioner had adopted a new directive that authorized a segregated classification for prison gang inmates who were considered a safety threat to other inmates and to prison staff. Once classified in this manner, the inmate became ineligible to earn statutory good time pursuant to the directive. Id. The petitioner in Abed, who had been incarcerated prior to the adoption of this directive, challenged the directive on ex post facto grounds. Id., 182.

Our Supreme Court has held that an “ ‘act ex post facto relates to crimes only; it is, emphatically, the making of an innocent action criminal. . . .’(Emphasis in original) Bridgeport v. Hubbell, 5 Conn. 237, 240 (1824); see also Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990). There is nothing in [the Abed] directive . . . that attempts to criminalize an otherwise lawful act. . . . The ex post facto clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with prison administration, safety and efficiency.” (Citations omitted; internal quotation marks omitted.) Abed v. Commissioner of Correction, supra, 43 Conn. App. 182-83.

The petitioners in the present case do not argue that the adoption and enforcement of the directive result in the making of an innocent act criminal, but rather that the prospective denial of good time credits effectively increases the punishment that is attached to the crimes for which the petitioners are already serving a sentence.

In Lynce v. Mathis, supra, 519 U.S. 433, the United States Supreme Court reviewed a 1992 Florida statute that retrospectively canceled early release credits that had been awarded to prison inmates when the population of the state prison system exceeded predetermined levels. In Lynce, the petitioner was initially awarded such credits, which resulted in his early release from custody. Shortly after his release, the 1992 statute was interpreted as having canceled all provisional credits awarded to inmates convicted of murder or attempted murder. Because the petitioner originally had been convicted of attempted murder, the 1992 statute retrospectively canceled the credits that had led to his early release, resulting in his rearrest and return to custody.

In 1994, the petitioner challenged the cancellation of his early release credits on the ground that it violated the ex post facto clause of the United States constitution. The District Court dismissed the petition, stating that early release credits were an effort to alleviate prison overcrowding and were not an integral part of the petitioner’s punishment. Because of conflict among several federal circuit courts of appeal, the United States Supreme Court granted certiorari on this issue. Id., 436.

The United States Supreme Court held that “[t]o fall within the ex post facto prohibition, a law must be retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected by it’ . . . by altering the definition of criminal conduct or increasing the punishment for the crime .... The narrow issue that we must decide is . . . whether those consequences disadvantaged petitioner by increasing his punishment.” (Citations omitted.) Id., 441.

In concluding that the legislative act revoking the early release credits was an improper ex post facto law, the Lynce court held that the essential inquiry in an ex post facto analysis is whether the law “had the effect of lengthening petitioner’s period of incarceration.” Id., 443. The Lynce court recognized, however, that a consideration of legislative purpose, at times, may be relevant, and that the “ ‘speculative and attenuated possibilities]’ of increasing the measure of punishment do not implicate the Ex Post Facto Clause . . . .” Id., 444, quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995).

The Lynce court ultimately concluded that “[i]n this case, unlike in Morales, the actual course of events makes it unnecessary to speculate about what might have happened. The 1992 statute has unquestionably disadvantaged petitioner because it resulted in his rearrest and prolonged his imprisonment. Unlike the California amendment at issue in Morales, the 1992 Florida statute did more than simply remove a mechanism that created an opportunity for early release for a class of prisoners whose release was unlikely; rather, it made ineligible for early release a class of prisoners who were previously eligible—including some, like petitioner, who had actually been released.” (Emphasis in original.) Lynce v. Mathis, supra, 519 U.S. 446-47.

Although the petitioners in the present case rely almost entirely on Lynce to support their position, the more recent United States Supreme Court decision in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), must also be considered when an ex post facto claim is made. In Hendricks, the court granted certiorari to review the Kansas 1994 Sexually Violent Predator Act, which established procedures for the involuntary civil commitment of persons determined to be likely to engage in predatory acts of sexual violence. That act was invoked for the first time to effect the involuntary commitment of the petitioner, who had been scheduled for release from prison shortly after the act became law. Id., 350.

The United States Supreme Court held that the act was not a violation of the ex post facto clause because that clause, “which forbids the application of any new punitive measure to a crime already consummated, has been interpreted to pertain exclusively to penal statutes. California Dept. of Corrections v. Morales, [supra, 514 U.S. 505, quoting Lindsey v. Washington, 301 U.S. 397, 401, 57 S. Ct. 797, 81 L. Ed. 1182 (1937)]. As we have previously determined, the Act does not impose punishment; thus, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. Rather, the Act permits involuntary confinement based upon a determination that the person currently both suffers from a mental abnormality or personality disorder and is likely to pose a future danger to the public. To the extent that past behavior is taken into account, it is used, as noted above, solely for evidentiary purposes. Because the Act does not criminalize conduct legal before its enactment, nor deprive [the petitioner] of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post Facto Clause.” (Emphasis in original; internal quotation marks omitted.) Kansas v. Hendricks, supra, 521 U.S. 370-71.

Our review of both Lynce and Hendricks leads us to the conclusion that in an ex post facto analysis, a court must first determine whether the challenged law is a penal statute and, if not, whether the law is so punitive in fact as to render it penal despite its intent. “[T]he fact that the Act may be ‘tied to criminal activity’ is ‘insufficient to render the [statute] punitive.’ ” Id., 362. Only “unmistakable evidence of punitive intent” will suffice to render a statute punitive. Flemming v. Nestor, 363 U.S. 603, 619, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960). “[W]hether a sanction intended as regulatory or nonpunitive is ‘so punitive in fact’ as to violate the ex post facto prohibition is a highly context specific matter.” Doe v. Pataki, 120 F.3d 1263, 1275 (2d Cir. 1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126 (1998). Further, “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” (Internal quotation marks omitted.) Hudson v. United States, 522 U.S. 93, 100, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).

In the present case, as in Abed, the challenged directive was not a penal statute and cannot be said to be punitive in nature. The habeas court found, and we agree, that the purpose for the rule precluding inmates from being eligible to earn statutory good time while classified in administrative segregation was not to punish but to aid in controlling the inmate population. Pursuant to the commissioner’s authority, such administrative rules are explicitly permitted. See Abed v. Commissioner of Correction, supra, 43 Conn. App. 183.

Second, if the law is determined to be punitive in nature, it must then be found to apply to events occurring before its enactment. Lynce v. Mathis, supra, 519 U.S. 441. In the present case, Beasley was classified in administrative segregation on March 23, 1995, and the policy change implementing paragraph five of Administrative Directive 9.4 became effective on July 6, 1994. Beasley was classified in administrative segregation because of his ongoing failure to comply with the prison’s rules of good conduct, not because of the crime for which he was serving a sentence. Therefore, as to Beasley, the directive applied to events occurring subsequent to its promulgation, resulting in Beasley’s failure to remain eligible for statutory good time.

The final step in an ex post facto analysis is to determine whether the effect of the newly enacted law increases the amount of the punishment imposed for the crime’s commission. See Lynce v. Mathis, supra, 519 U.S. 443. Unlike in Lynce, where it was undisputed that the new statute increased the petitioner’s penalty by virtue of his rearrest, in this case the effect of the directive on the length of the petitioners’ sentences is purely speculative. California Dept. of Corrections v. Morales, supra, 514 U.S. 508-509. In Connecticut, the awarding of statutory good time is within the commissioner’s discretion. See General Statutes § 18-7a (c) (inmates may, by good conduct and obedience to rules, earn statutory good time subject to reduction by commissioner). It is therefore impossible to know whether the petitioners will forfeit good time credits that they may later earn and, thus, the establishment of an actual release date for either petitioner is speculative, at best.

We conclude that the habeas court properly found that the directive was not in violation of the ex post facto clause of the United States constitution.

II

The petitioners next claim that the commissioner deprived them of statutory good time without according each of them a hearing. The petitioners argue that while classified in administrative segregation, they earned 195 and 296 days of statutory good time, respectively, of which they were deprived without a proper hearing. We do not agree.

As determined in part I of this opinion, the adoption of Administrative Directive 9.4 was a proper exercise of the commissioner’s authority. Pursuant to the directive, once classified in administrative segregation, the petitioners became ineligible to earn statutory good time. The specific number of days of which the petitioners claim they were deprived was listed on each petitioner’s time sheet, which the habeas court found to be simply “an unartful and inaccurate attempt to accommodate the new directive to an unnecessarily rigid computer program.” We conclude that the habeas court properly found the directive itself to be the operative rule and that the petitioners never earned the statutory good time of which they claim they were denied. The petitioners’ contention, therefore, that such good time credits were refused without a hearing is without merit.

Ill

The petitioners next claim that the commissioner lacked the statutory authority to adopt and enforce Administrative Directive 9.4, paragraph five, which precluded them from being eligible to earn statutory good time. The petitioners contend that such adoption and enforcement was an ultra vires act by the commissioner because (1) he does not have statutory power under §§ 18-81 and 18-7a (c) to make an inmate ineligible to earn statutory good time and (2) the directive was not promulgated in accordance with the UAPA. We do not agree.

In Abed v. Commissioner of Correction, supra, 43 Conn. App. 180, we held that pursuant to the plain language of § 18-7a (c), the commissioner may award good time credits at his discretion. Section 18-81 expressly permits the commissioner to promulgate the prison’s administrative rules. In Abed, we stated that “Nichols [v. Warren, 209 Conn. 191, 550 A. 2d 309 (1988)] does not conclude that § 18-7a (c) compels the automatic award of good time credits, but rather concludes that once an inmate has become eligible to earn statutory credits, such credits cannot be surrendered before they are earned.” Abed v. Commissioner of Correction, supra, 181. Thus, it is within the authority of the commissioner to promulgate rules that make an inmate ineligible to earn statutory good time. To conclude otherwise would render the discretionary nature of § 18-7a (c) superfluous. The habeas court, therefore, appropriately found the directive to be a proper method by which the commissioner may execute his statutory authority.

The petitioners’ next contention, that the commissioner adopted and enforced the directive in contravention of the UAPA, is equally without merit. General Statutes § 18-78a, which provides exceptions to the applicability of the UAPA on the department of correction, has been amended by No. 97-168 of the 1997 Public Acts. That public act provides in relevant part: “(a) (1) The provisions of chapter 54 shall apply to the Department of Correction, except that in adopting regulations in regard to riot control procedures, security and emergency procedures, disciplinary action or classification the Department of Correction shall not be required to follow the procedures in sections 4-168, 4-168a, 4-168b, 4-172, 4-173, 4-174 and 4-176. ... (4) Any regulation, as defined in section 4-166, concerning riot control, security and emergency procedures, disciplinary action, classification or out-of-state transfers which was adopted by the Department of Correction prior to the effective date of this act and which is otherwise valid except that such regulation was not adopted in accordance with chapter 54, is validated, and shall be deemed to have been adopted in compliance with chapter 54.”

Those subsections work together to eliminate certain categories of regulations from the UAPA’s procedural requirements. In 1997, classification regulations were added to this list, not only prospectively but also retroactively, to validate any procedural defect that may have occurred during the pre-1997 adoption and enforcement of regulations such as Administrative Directive 9.4. Thus, the habeas court properly found that the commissioner’s actions were not in violation of the UAPA.

IV

The petitioners next claim that the commissioner’s refusal to credit them with statutory good time pursuant to § 18-7a (c) violates their right to equal protection under the law. The petitioners argue that this guarantee was violated by the commissioner’s refusal to calculate the duration of the petitioners’ terms of incarceration by the same statutory formula that applies to other inmates serving sentences for offenses committed on or after July 1, 1983. See General Statutes § 18-7a (c). The essence of the petitioners’ claim is that they have been singled out as a class and, as a result, are being treated differently from inmates remaining in the general population in violation of their right to equal protection under the law.

“It is established that the equal protection provisions of the federal and state constitutions have the same meaning and limitations. . . . When a statutory classification impinges upon an inherently suspect class or affects a fundamental personal right, the statute is subject to strict scrutiny and is justified only by a compelling state interest. . . . Otherwise, a statute will stand if the classification bears a reasonable relation to a legitimate state interest.” (Citations omitted; internal quotation marks omitted). State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 750, 529 A.2d 1276 (1987); see Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 755-56, 687 A.2d 506 (1997).

Inmates given administrative segregation classification are not considered part of a suspect class for the purposes of an equal protection claim and, in distinguishing between classes to award statutory good time, the directive at issue does not intrude upon a fundamental right. “[T]he decision to deny inmates classified as safety threats the opportunity to earn the good time credits specified in § 18-7a (c) does not rise to the level of a constitutionally protected liberty interest.” Abed v. Commissioner of Correction, supra, 43 Conn. App. 181-82. Thus, as long as the administrative segregation classification is rationally related to a legitimate state interest, the petitioners’ equal protection claim must fail.

The habeas court found that “[t]he distinction between inmates in administrative segregation and those who are not is founded on an assessment that the former have behaved so poorly in general population that their continued presence in the less restrictive inmate population constitutes a threat to safety and security.” We conclude that this distinction between inmates is predicated on a rational basis and that the habeas court properly found no violation of equal protection under the law.

V

The petitioners finally claim that the denial of their statutory good time violated the guarantee of due process of law because they were not given notice and a hearing to determine whether and for how long they would remain ineligible to earn such good time. The petitioners’ claim attempts to distinguish between proceedings held to determine inmate classification and those to determine good time eligibility. It is undisputed that proper administrative segregation classification hearings took place, and the petitioners now challenge the fact that no independent hearing was held to make a determination of good time eligibility in which they claim to have a liberty interest.

Classification in administrative segregation and the loss of eligibility to earn statutory good time are inextricably connected; to lose eligibility to earn good time, an inmate must first be classified in administrative segregation. A proper hearing as to classification necessarily means a proper hearing as to eligibility, as long as the inmate is properly notified of this nexus. Because it is undisputed that the hearing comported with due process as to classification, the petitioners’ claim thus becomes: During the classification hearings and the subsequent review of their outcomes, did the petitioners have adequate notice as to whether and for how long they would remain ineligible to earn statutory good time?

We have held that the opportunity to earn statutory good time is not a constitutionally protected liberty interest; id.; therefore, only minimal procedural protections are necessary to satisfy the notice requirement of due process. Id.

We conclude that the petitioners were adequately notified as to whether and for how long they would remain ineligible to earn statutory good time. This notification was accomplished through postings noting the change in the directive, through the directives handbook and through the periodic review of the classification determination, which provided notice as to the duration of the administrative segregation classification. The petitioners knew that an administrative segregation classification would result in the ineligibility to earn statutory good time and that once classified in administrative segregation, only good conduct and obedience to the prison rules would result in a transfer back to the general population.

The judgments are affirmed.

In this opinion the other judges concurred.

       The constitution of the United States, article one, § 10, provides in relevant part: “No State shall . . . pass any ... ex post facto Law . . . .”

       General Statutes (Rev. to 1993) § 18-7a (c) provides in relevant part: “Any person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983, may . . . by good conduct and obedience to the i-ules which have been established for the service of his sentence, earn a reduction of his sentence .... Misconduct or refusal to obey the rules which have been established lor the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.” (Emphasis added.)

       Administrative segregation is a level five confinement, which is reserved for inmates who are assessed to have violent tendencies, and who pose a safety threat to other inmates and to prison staff. Inmates assigned to administrative segregation are given a handbook providing information on the rules and procedures applicable to their confinement. The habeas court found that the purpose of administrative segregation is not to punish inmates, but to manage and control violent offenders.

       General Statutes § 18-81 provides in relevant part: “The Commissioner of Correction shall administer, coordinate and control the operations of the department and shall be responsible for the overall supervision and direction of all institutions, facilities and activities of the department. He shall establish rules for the administrative practices and custodial and rehabilitative methods of said institutions and facilities in accordance with recognized correctional standards. ... He shall be responsible for establishing disciplinary, diagnostic, classification, treatment . . . programs throughout the department. . . .”

       The habeas court agreed with the petitioners that if the time sheets are read in isolation, it appears as if inmates are receiving and then forfeiting good time during each month of confinement in administrative segregation. The court concluded, however, that the form has to be viewed in the larger context of information provided to the inmate population. The habeas court found that Administrative Directive 9.4 itself was the operative rule, and the “maintenance and dissemination to inmates of flawed time sheets purporting to show a grant coupled with a forfeiture was an unartful and inaccurate attempt to accommodate the new directive to an unnecessarily rigid computer program.”

       There are four types of ex post facto laws. The first is “ ‘[e]very law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. [Second.] Every law that aggravates a crime, or makes it greater than it was, when committed. [Third.] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. [Fourth.] Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.’ ” Lynce v. Mathis, supra, 519 U.S. 441 n.13.

       The Lynce court further stated that '‘[wjhether such a [legislative] purpose alone would be a sufficient basis for concluding that a law violated the Ex Post Facto Clause when it actually had no such effect is a question the Court has never addressed.” Lynce v. Mathis, supra, 519 U.S. 444. The court went on to conclude that the purpose behind the 1992 enactment of the offense based exclusion, namely, to prevent the early release of prisoners convicted of murder related offenses, was insufficient to withstand an ex post facto challenge.

       Because we concluded that the directive at issue in Abed v. Commissioner of Correction, supra, 43 Conn. App. 176, was nonpunitive, our ex post facto inquiry properly ended there. Although we could end our analysis in this case with the conclusion that Administrative Directive 9.4 is nonpunitive, it is necessary to complete a thorough review to distinguish Lynce adequately from the present case.

       Because the inmates were ineligible to earn statutory good time, the holding in Nichols v. Warren, 209 Conn. 191, 550 A.2d 309 (1988), which states that an eligible inmate cannot forfeit good time credits not yet earned, does not apply. Abed v. Commissioner of Correction, supra, 43 Conn. App. 181.

       See footnote 5.

       The petitioners originally stated this claim as follows: “[T]he commissioner does not have the statutory power under § 18-81 and § 18-7a (c) to abolish statutory good time for an eligible inmate.” Although initially articulated this way, the petitioners’ argument addresses the issue as presented in the body of this opinion. Consequently, we have decided this claim as briefed and argued by the parties.

       U.S. Const., amend. XIV; Conn. Const., amend. XXI.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    JACQUELINE WRIGHT ET AL. v. PHILIP HUTT
    (AC 17063)
    Landau, Spear and Sullivan, Js.

      Argued March 31
    officially released September 22, 1998

      Steven D. Jacobs, for the appellants (plaintiffs).

      Paul T. Edwards, with whom, on the brief, was Craig A. Fontaine, for the appellee (defendant).
   Opinion

SULLIVAN, J.

The plaintiffs in this medical malpractice action, Jacqueline Wright and William Wright, appeal from the judgment in favor of the defendant. The plaintiffs claim that the trial court improperly refused to permit them to exercise a peremptory challenge to excuse a juror after the jury was impaneled but prior to its swearing in, and improperly ruled on the admissibility of certain documentary and testimonial evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1986, the plaintiff Jacqueline Wright sought medical treatment from the defendant for jaw pain associated with injuries she suffered in an automobile accident in 1984. Jacqueline Wright had been referred to the defendant by her treating oral surgeon and employer, Stanton Wolfe. The defendant recommended that she undergo surgery to replace her temporomandibular joints with an implant device manufactured by Vitek, Inc. In August, 1986, the defendant performed the recommended surgery on Jacqueline Wright’s right jaw and performed the same surgical procedure on her left jaw in February, 1987. Thereafter, in 1989, after receiving complaints from her of pain in her jaw, the defendant discovered that the Vitek implant device in her left jaw had fractured. The defendant removed both implant devices in 1990 and replaced them with grafts made from cartilage taken from her ears. By that time, she had lost confidence in the defendant’s ability to treat her and discontinued their relationship. After the surgeries, Jacqueline Wright experienced bone loss in her tempo-romandibular joints and underwent further surgeries and therapies to reconstruct the joints and to inhibit further bone loss. In 1992, the plaintiffs instituted this medical malpractice action against the defendant. The first count of the complaint alleged that the defendant was negligent in failing to obtain Jacqueline Wright’s informed consent to the implant surgery, and the second count asserted a claim of loss of consortium on behalf of William Wright.

I

The plaintiffs’ first claim is that the trial court’s refusal to permit them to exercise a peremptory challenge to excuse a juror violated their right under the constitution of Connecticut, article first, § 19, to challenge jurors peremptorily and, in the alternative, that it constituted an abuse of discretion.

On the day prior to the commencement of trial, after the conclusion of the jury selection process, one of the venirepersons selected as a juror informed the court that he and his wife had lost their jobs a few days after he was selected and that, as a result, it would be difficult for him to concentrate on the trial and to fulfill his obligations as a juror. The trial court explained that it did not consider his loss of employment to be a sufficient reason for disqualification. The court then permitted the parties to ask the juror questions. Under questioning by counsel for the plaintiffs, the juror stated that he believed that his personal concerns would impair his ability to sit fairly as a juror. The trial court then stated: “Well, the last comment you made troubles me. Most of all that you don’t think you could sit fairly because, I think if it’s a matter of concentration, I’m almost willing to give it a try and start the process and see how it works for you. If there is a problem that develops during the trial you could always possibly be excused at a later time, although I’m not really keen on doing that. So, if it’s a concentration matter, that’s one thing. But if you’re saying that you don’t think you can hear the matter fairly—” The juror interrupted, stating: “No, that’s not what I meant. But if my full concentration is not in it, I don’t think I’m being fair to either party nor the jury, nor yourself.”

In response to questions by the defendant, the juror stated: “I—that’s really something—as far as being fair, as I explained to [His] Honor before, I really don’t see a problem being fair and impartial as much as just on the whole not being able to devote my complete attention to the situation, and whether that be at the beginning, middle, or end [of the trial] I could not tell you.” The court told the juror: “I get the sense from what you’re saying that you will be fair. I don’t think that’s an issue here. I think you have a fear that your personal problems may get in your way of concentration, and we don’t know if that’s going to happen or not. ... If things develop where you really find that it’s a problem as we go along, then I will hear further at that point and consider the matter at another time.” At that point, counsel for the plaintiff requested permission to exercise a peremptory challenge, which the court denied.

The provision of the Connecticut constitution invoked by the plaintiffs to support their claim of a constitutional violation is not conclusive of the merits of that claim. The constitution does not address the time and manner in which the right may be exercised, although it is well settled that “ ‘[o]nce a juror has been accepted by both parties, the absolute right to exercise a peremptory challenge is lost. Walczak v. Daniel, 148 Conn. 592, 596-97, 172 A.2d 915 (1961); DeCarlo v. Frame, 134 Conn. 530, 535, 58 A.2d 846 (1948); State v. Potter, 18 Conn. 166, 176 (1846). The trial court may, however, “in its discretion permit such a challenge to be made at any time before the jury is sworn.” Walczak v. Daniel, supra, 597, quoting DeCarlo v. Frame, supra [535].’ ” State v. Daniels, 42 Conn. App. 445, 452-53, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996).

In Connecticut, after the parties accept a venire-person as a juror, the right to exercise a peremptory challenge is within the discretion of the trial court. Id., 453-54. This conclusion is supported by DeCarlo v. Frame, supra, 134 Conn. 535. In that case, the defense sought to exercise a peremptory challenge after the conclusion of the examination of all jurors, but prior to their being sworn in. Our Supreme Court concluded that the trial court acted improperly in granting the defendant’s request because the trial court “did not permit the challenge in the exercise of its discretion but in effect ruled that the defendant was entitled to make it as a matter of right . . . .” Id., 535-36.

We find that the trial court appropriately exercised its discretion in this case. The record indicates that the trial court was satisfied that the juror’s concern about his ability to concentrate on the trial would not affect his duty to be fair and impartial. Indeed, the juror informed the court that his personal problems would not prevent him from being fair and impartial. Although “a prospective juror’s assessment of his or her own partiality must be carefully scrutinized on appeal and considered in the context in which it was uttered”; State v. Esposito, 223 Conn. 299, 311, 613 A.2d 242 (1992); the trial court reasonably credited the juror’s assurance of fairness. Indeed, counsel for the plaintiff, when asked for his position on the matter by the trial court, stated: “I think that this gentleman is bending over backward to be fair to everyone, to the court, to the attorneys, to the parties and to himself. And he strikes me as being a completely honest and fair-minded guy . . . .” (Emphasis added.)

In addition, the trial court properly observed that the juror exhibited merely a fear of losing concentration. For example, in response to a question by the plaintiffs counsel regarding whether the juror could devote his full attention to the case, the juror stated: “I feel at this point that I don’t think I could, no.” (Emphasis added.) The court concluded that this fear was unrealized and, therefore, it did not, as of that time, present a ground for removal. In addition, the juror informed the court that he had already started another job.

On this record, we cannot conclude that the trial court abused its discretion in denying the plaintiffs’ request to exercise a peremptory challenge after the conclusion of the voir dire process.

II

The remaining issues raised by the plaintiffs on appeal are founded on claims of evidentiary error. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998).

A

The plaintiffs first claim that the trial court improperly excluded from evidence a letter from the Food and Drug Administration to Vitek, Inc., regarding that agency’s approval of the Vitek implant device. The defendant objected to introduction of the letter on the grounds that it was not relevant to any issue regarding the approval of the device at the time it was used to treat the plaintiff, that the letter was hearsay and that its prejudicial effect outweighed its probative value. The plaintiffs argued that the document was admissible as an exception to the hearsay rule because it was an “official document.” They also argued that the document was relevant to the issue of the agency’s approval of the device, to which the defendant “opened the door” in his direct examination of Jacqueline Wright, and that the letter was necessary to impeach the defendant’s testimony. The trial court sustained the defendant’s objection, but did not state the basis for its ruling.

The record reveals that the letter was written by an associate director for device evaluation, bureau of medical devices of the Food and Drug Administration, Department of Health and Human Services. The plaintiffs obtained the letter through a request under the Freedom of Information Act, General Statutes § l-18a et seq. The letter was accompanied by an affidavit of an employee from the Department of Health and Human Services attesting to the fact that the letter was produced in compliance with the act, and the letter bears a certification from the freedom of information commission. As noted earlier, in response to the defendant’s assertion that the letter was inadmissible hearsay, the plaintiffs argued that it was admissible as an exception to the hearsay rule because it was an “official document.”

“An official certificate simply authenticates a document, that is, it proves that it is what it purports to be. It is not a hearsay exception that permits the contents of a certified document to be used to prove the truth of the matter asserted. Any and all assertions of fact contained within a certified document must be proven by the usual rules of evidence and must satisfy the hearsay rule or its exceptions.” C. Tait & J. LaPlante, Connecticut Evidence (1993 Sup.) § 10.5.1, p. 120. Here, the plaintiffs did not attempt to introduce the letter under one of the exceptions to the hearsay rule, such as the business records exception; see General Statutes § 52-180; but rather relied on the rules for authentication of documents to support its admission into evidence. Accordingly, the plaintiffs failed to establish that the letter was admissible as an exception to the hearsay rule. Furthermore, the plaintiffs’ argument that the letter was relevant to impeach the defendant’s testimony that the device had been approved by the Food and Drug Administration is equally unavailing. The letter bears a date from 1980, approximately seven years prior to the date the Vitek implants were used to treat the plaintiff. Thus, any evidence that the implants were not approved in 1980 is not necessarily relevant to the status of the approval in 1986 and 1987. We conclude that the trial court did not abuse its discretion in sustaining the defendant’s objection to the introduction of this letter.

B

The plaintiffs next assert that the court abused its discretion in refusing to allow the plaintiffs’ medical witnesses to testify about surgical and nonsurgical alternatives to the Vitek implants that were available to the plaintiffs. The plaintiffs contend that this testimony was relevant to their claim that the defendant was negligent in failing to obtain Jacqueline Wright’s informed consent. The defendant asserts that the trial court properly excluded such testimony because the plaintiffs’ negligence claim was not based on the defendant’s failure to inform Jacqueline Wright of alternative procedures.

In Logan v. Greenwich Hospital Assn., 191 Conn. 282, 465 A.2d 294 (1983), our Supreme Court had occasion to consider the doctrine of informed consent as the basis for medical malpractice liability. In considering a physician’s duty to disclose information about alternative treatments, the court adopted the lay standard, namely, that a physician has “a duty to disclose such information as a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis.” (Internal quotation marks omitted.) Id., 292. The court noted that “[t]he standard has been further delineated by specifying various elements which the physician’s disclosure should include: (1) the nature of the procedure, (2) the risks and hazards of the procedure, (3) the alternatives to the procedure, and (4) the anticipated benefits of the procedure.” (Internal quotation marks omitted.) Id. Under Logan, the elements of a physician’s duty of disclosure under the doctrine of informed consent include the duty to disclose alternative medical procedures.

The plaintiffs based their negligence claim on a breach of the duty to inform the plaintiff of the risks associated with the Vitek implants and not on a breach of the duty to inform the plaintiff of medical alternatives. The procedural history of this case reveals that on February 26, 1996, the trial court denied the plaintiffs’ request to revise the complaint to include allegations that the defendant failed to inform Jacqueline Wright of surgical and nonsurgical alternatives to the implants. The defendant objected to the requested amendment on the ground that the claim was time barred and that inclusion of the claim in the case immediately prior to trial would be unfairly prejudicial. The court sustained the defendant’s objection. Thereafter, on March 12, 1996, the defendant filed a motion in limine seeking to preclude the plaintiffs from introducing expert opinion testimony concerning surgical and nonsurgical alternatives to the Vitek implants. This motion was granted on March 15, 1996, and it served as the basis of the trial court’s rulings sustaining the defendant’s objections to introduction of evidence relating to surgical and nonsurgical alternatives.

“The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. (Citations omitted.) Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). What is in issue is determined by the pleadings and these must be in writing. Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982). Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein. Arey v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982). . . . A judgment upon an issue not pleaded would not merely be erroneous, but it would be void. See Telesco v. Tel-esco, supra [720].” Tehrani v. Century Medical Center, P.C., 7 Conn. App. 301, 308, 508 A.2d 814 (1986).

We conclude, on the basis of the foregoing principles, that the trial court did not abuse its discretion in excluding evidence of alternatives to the Vitek implants because the plaintiffs failed to allege a breach of duty on this ground.

C

The plaintiffs next claim that the trial court improperly precluded the testimony of two medical witnesses, Stanton Wolfe, the director of mental health for the state of Connecticut, department of public health, and Norman Cavanagh, an oral and maxillofacial surgeon, from testifying about facts within their personal knowledge. The plaintiffs contend that the trial court mistook fact testimony for opinion testimony in restricting the plaintiffs’ examination of those witnesses.

The procedural history of the case reveals that on March 15, 1996, the trial court granted the defendant’s motion to preclude expert testimony from both physicians because the plaintiffs failed to comply with the provisions of Practice Book § 220 (D), now § 13-4 (4). See Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986) (upholding directed verdict where trial court excluded expert testimony of plaintiffs treating physician because plaintiff failed to respond to interrogatories requesting disclosure of identity of expert witnesses under § 220 [A]). “The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. Sturdivant v. Yale-New Haven Hospital, [2 Conn. App. 103, 107, 476 A.2d 1074 (1984)]. On appeal, that decision is subject only to the test of abuse of discretion. Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 405, 519 A.2d 95 (1986). The salient inquiry is whether the court could have reasonably concluded as it did. Sturdivant v. Yale-New Haven Hospital, supra, 108.” Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500-501, 602 A.2d 1040 (1992). “We have previously held and continue to hold that the disclosure requirements of Practice Book § 220 (D) apply with equal force to treating physicians as well as to independent experts.” (Internal quotation marks omitted.) Sung v. Butterworth, 35 Conn. App. 154, 158, 644 A.2d 395 (1994) , appeal dismissed, 235 Conn. 400, 665 A.2d 893 (1995) . The trial court properly precluded these witnesses from testifying about the applicable standard of care in this case and about their opinions regarding the defendant’s breach thereof.

The defendant argues that as a result of the trial court’s ruling, any testimony by those witnesses, factual or otherwise, necessarily would be unrelated to the issue of liability and, therefore, its preclusion could not have affected the result in this case. A review of the trial transcript reveals that the plaintiffs asked Wolfe to define specific medical terms, so as to illustrate the difference between certain medical conditions, and to explain the meaning of terminology and notations on his medical records. The plaintiffs asked Cavanagh to explain the difference between certain medical conditions, why bone is harvested from one area of the body as opposed to another, why he recommended certain treatment for Jacqueline Wright, why a certain blood test was administered to her and what he knew about certain drugs.

The effect of the trial court’s evidentiary rulings was to limit the scope of the direct examination of the witnesses to their observations of Jacqueline Wright’s medical condition. As treating physicians, they could testify to their care and treatment of the plaintiff. See Sung v. Butterworth, supra, 35 Conn. App. 158. The trial court limited their testimony to facts within their personal knowledge as treating physicians, such as their observations of Jacqueline Wright’s medical condition, in an effort to prevent them from testifying to their opinions on such facts. The questions the plaintiffs sought to ask of Wolfe and Cavanagh, however, were based on their special skills or knowledge as medical doctors and were matters outside the ordinary knowledge of the jurors. The trial court properly excluded the testimony, and we find no abuse of discretion in this regard.

D

The plaintiffs next contend that the trial court improperly precluded Jacqueline Wright’s psychotherapist from testifying about her anxieties concerning her medical condition and improperly precluded the plaintiffs’ medical expert from testifying about her future medical treatment.

The testimony that the plaintiffs sought to introduce through these witnesses was relevant to Jacqueline Wright’s claims for pain and suffering, mental distress and future medical expenses, all of which are components of the damages element of the plaintiffs’ negligence claim. The jury found for the defendant, however, on the issue of liability. Accordingly, even assuming that the trial court improperly excluded this evidence, the plaintiffs cannot demonstrate that the court’s rulings were harmful. “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 506, 706 A.2d 1 (1998). “In the absence of a showing that the evidence would have affected the final result, its exclusion is harmless.” Id. Accordingly, we find the plaintiffs’ claim on this evidentiary issue to be without merit.

E

The plaintiffs next claim that the trial court improperly permitted the defendant to ask Jacqueline Wright whether Wolfe ever advised her against the implant surgery or any other procedures employed by the defendant. The plaintiffs argue that this testimony was irrelevant and that it improperly suggested to the jury that the duty to obtain informed consent was shared by persons other than the defendant.

We fail to find that the trial court abused its discretion in permitting this testimony, and the plaintiffs have provided no authority that would lead us to conclude otherwise. We note that the defendant’s inquiry of Wolfe consisted of a single question and answer in a trial that occurred over a period of two months. Furthermore, as argued by the defendant, if the trial court improperly permitted this inquiry, the court remedied any possible confusion it caused by clearly instructing the jury that the duty to obtain informed consent rested solely with the defendant. The court instructed the jury that “[a]s to informed consent . . . [i]t is a duty of every doctor or surgeon to give a patient all the information that is material to the decision that the patient will make in undergoing the proposed procedure. Under this duty the plaintiff must prove that Dr. Hutt did not disclose all known material risks peculiar to that proposed procedure . . . .” (Emphasis added.) “A jury is presumed to follow the trial court’s instructions. State v. Richardson, 214 Conn. 752, 757, 574 A.2d 182 (1990).” Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 707, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). Accordingly, we find no merit to the plaintiffs’ claim.

F

The plaintiffs next claim that the trial court improperly permitted defense counsel to ask Jacqueline Wright about the substance of her discussions with Cavanagh that took place prior to her consenting to undergo a surgical procedure subsequent to those performed by the defendant. The plaintiffs claim that this testimony related to whether Cavanagh received the plaintiffs informed consent and was, therefore, irrelevant and served to distract the jury from the issues in the case. The defendant contends that the questions were proper because the plaintiff testified at length on direct examination regarding the surgical procedures performed by Cavanagh and the substance of Jacqueline Wright and Cavanagh’s conversations with respect to that surgery. According to the defendant, the plaintiffs claimed as damages the costs associated with Cavanagh’s treatment, and the questions asked were relevant to disprove the plaintiffs’ contention that the medical treatment rendered by Cavanagh was causally related to Jacqueline Wright’s treatment with the defendant.

“The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court.” State v. Carmon, 47 Conn. App. 813, 817, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997).

After a review of the record and transcripts in this case, we conclude that the trial court did not abuse its discretion in its rulings with regard to the scope of the defendant’s cross-examination of Jacqueline Wright. She testified on direct examination regarding her course of treatment with Cavanagh, and about the pain and suffering she endured as a result of that treatment. On cross-examination, the defendant asked her whether Cavanagh informed her that the surgical procedure and treatment plan he recommended were controversial. To the extent the plaintiffs testimony on direct examination related to a claim that her treatment with Cava-nagh was necessary to remedy injuries resulting from the Vitek implants and to a claim of damages therefor, the defendant’s questions regarding her discussions with Cavanagh appear to be relevant. “A question is within the scope of the direct examination if it is intended to ‘rebut, impeach, modify or explain any of the [witness’] direct testimony . . . .’ State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977).” (Emphasis added.) State v. Morales, 45 Conn. App. 116, 126, 694 A.2d 1356 (1997), appeal and cross appeal dismissed, 246 Conn. 249, 714 A.2d 677 (1998). Accordingly, we find no merit in the plaintiffs’ claim.

G

The plaintiffs’ final argument consists of a generalized contention that the trial court improperly prevented them from asking several medical witnesses questions on issues to which the defendant had “opened the door.” The plaintiffs refer to six questions asked of three medical witnesses. We decline to review these claims because the plaintiffs have failed to brief them properly.

The plaintiffs do not specify the grounds for their claims of evidentiary error, nor do they offer any analysis or legal authority to support their claims. “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). Accordingly, we decline to review these claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily . . .

       The plaintiffs argue for the first time on appeal that the letter was relevant to the issue of informed consent. They claim that the defendant misled Jacqueline Wright on the issue of the device’s approval, thereby breaching the standard of care owed to her. We decline to review the court’s ruling on the admissibility of the letter for this reason because appellate review of evidentiary rulings is limited to the specific grounds raised by a party at trial. Pajor v. Wallingford, 47 Conn. App. 365, 371, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 7 (1998). Thus, whatever the merit of the plaintiffs’ argument with respect to the relevance of the letter to the issue of informed consent, it cannot serve as a basis for reversing the judgment. Id., 372.

       The plaintiffs’ operative complaint contains the following relevant allegations:
      “13. At the time of the August, 1986, and February, 1987 surgeries, the customary standard of care of physicians in the same practice as that of the defendant was to obtain the patient’s consent prior to performing the operations which the defendant performed.
      “14. Dr. Hutt did not inform Mrs. Wright prior to the August, 1986, and February, 1987 surgeries that the use of the Teflon proplast temporomandib-ular joint implants in those procedures might cause injury to Mrs. Wright; or of defects inherent in the Teflon proplast two implants and/or complications known about the Teflon proplast two implant or what the consequences of such injuries would be involving the Teflon proplast temporomandibular joint implant.
      “15. Because of that negligence, Mrs. Wright’s consent to have the operations performed was not an informed consent, and she was subjected to the risk of an injury to her temporomandibular joints and connected anatomy, which injuries she did suffer.
      “16. Mrs. Wright’s injuries and losses were caused by the failure of the defendant to inform her of the risks involved in that surgery.
      “17. The defendant was negligent in one or more of the following ways, in that: “a. He failed to inform Mrs. Wright of the possibility of injury resulting from the surgical implant ation of the Teflon proplast temporomandibular joint implants and in failing to explain to her what the consequences of such injuries would be;
      “b. He used the Vitek Proplast II temporomandibular joint implant when he knew or in the exercise of reasonable care should have known that it was not reasonably safe to do so;
      “c. He failed to timely remove the Vitek Proplast II temporomandibular joint implant.” (Emphasis added.)

       The plaintiffs do not raise on appeal the propriety of the trial court’s ruling granting the defendant’s motion in limine and did not request an articulation of it. In any event, we note that “[a] trial court has wide discretion in granting or denying amendments to tire pleadings and rarely will [a reviewing] court overturn the decision of the trial court.” (Internal quotation marks omitted.) Capitol Restorations Corp. v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 685, 596 A.2d 927 (1991).

       Practice Book § 13-4 provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. ...”

       Wolfe was Jacqueline Wright’s treating physician and employer. He referred her to the defendant for the joint surgery at issue in this case.


author: HEALEY, J.

text:
    CHARLES HAIGH, JR. v. VICTORIA HAIGH
    (AC 17378)
    Landau, Spear and Healey, Js.
    Argued March 30
    officially released September 22, 1998

      Nancy E. Wildes, for the appellant (plaintiff).

      Susan M. Connolly, for the appellee (defendant).
   Opinion

HEALEY, J.

The plaintiff, Charles Haigh, Jr., appeals from the trial court’s judgment dismissing his appeal from a Probate Court decree terminating his parental rights in his minor son. On appeal, the plaintiff claims that the trial court improperly dismissed the appeal on the grounds of (1) insufficient process because the appeal from probate was made returnable to the Superior Court on Monday, July 1, 1996, instead of on a Tuesday in violation of General Statutes § 52-48, and (2) improper venue because although the appeal was actually returned to the Superior Court in the judicial district of New London, certain appeal documents with which the defendant, Victoria Haigh, was “served” directed her to appear at the Superior Court, Juvenile Matters at Montville.

On April 30,1996, the Probate Court for the district of New London issued a decree terminating the plaintiffs parental rights in his son. On May 29, 1996, the plaintiff moved the Probate Court for permission to appeal that decree, and that court granted its approval to do so. Thereafter, the plaintiffs appeal, which bore the return date of July 1, 1996, was served on the defendant, the plaintiffs former wife and mother of the child, and returned to the Superior Court in the judicial district of New London at New London. On July 1,1996, which was a Monday, the defendant appeared in person in the Superior Court for Juvenile Matters at Montville because the plaintiffs appeal indicated that it was to be heard in Montville. The court at Montville, Driscoll, J., dismissed the plaintiffs appeal on that day for the plaintiffs failure to appear. Upon learning of the dismissal, the plaintiff filed a motion on July 12, 1996, to vacate the dismissal of July 1, 1996. In October, 1996, after a hearing, the Juvenile Court vacated the dismissal.

On November 4,1996, the defendant filed her appearance in the Superior Court in the judicial district of New London. On January 21,1997, the defendant moved that court to dismiss the plaintiffs appeal “on the grounds that defective process renders this court without jurisdiction over the subject matter of the action.” On February 10,1997, the court, Hurley, J., granted the motion to dismiss. During the hearing on that motion, the plaintiff requested that the court consider his motion to amend the return date, and the court declined to decide that motion and recommended it be claimed for a hearing at a later date. On February 14, 1997, the plaintiff filed his “Motion to Open Dismissal [and] Motion to Waive Fees.” On May 5, 1997, the court denied that motion. This appeal followed.

Before we address the issues articulated by the plaintiff, we must confront the issue of subject matter jurisdiction raised by the defendant in her brief. She claims that the issue on appeal is “whether subject matter jurisdiction is a waivable defect” pursuant to Practice Book §§ 142 through 144, now §§ 10-30 through 10-32.

“[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997), quoting Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995); accord Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989); Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 188 Conn. 253, 258, 449 A.2d 162 (1982); Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 639, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993); Vincenzo v. Warden, 26 Conn. App. 132, 135, 599 A.2d 31 (1991). “Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver.” Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988), and cases cited therein. Jurisdiction over the subject matter is the court’s power to hear and decide cases of the general class to which the proceedings at issue belong. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991); Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 288, 439 A.2d 997 (1981). “Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).

In making her claim that the trial court properly granted her motion to dismiss, the defendant argues that the “combination of [the] two defects,” the improper return date and improper venue, “are fatal to the plaintiff in sustaining his appeal” and deprive the court of subject matter jurisdiction. In that regard, she refers to the provision in § 52-48 that “[p]rocess in civil actions . . . brought to the Superior Court may be made returnable on any Tuesday in any month” and “shall designate the place where court is to be held.” The defendant argues that the return day of July 1,1996, which was a Monday, was a fatal defect. She claims that it is well settled that an improper return date “affects” the court’s jurisdiction over the subject matter. The defendant maintains that until a proper return is made to the court, the court is unable to consider the matter since there is nothing before the court to consider. For this proposition she cites Danziger v. Shaknaitis, 33 Conn. App. 6,11-12,632 A.2d 1130, rev’d, 228 Conn. 914, 636 A.2d 846 (1994). The defendant contends that the plaintiff should not prevail on his argument that her motion to dismiss was untimely because subject matter jurisdiction is not waivable and can be raised at any time.

The defendant also claims that the court “similarly lacked jurisdiction” because the process directed her to Montville. She maintains that the incorrect Montville reference violates “fundamental notions of fairness and due process,” which demand at least that she be informed of the geographical location of the court to which the papers have been returned. She claims that this is also a fatal defect implicating the court’s subject matter jurisdiction and, therefore, the case was properly dismissed.

In response, the plaintiff claims that the defendant improperly relies on Danziger v. Shaknaitis, supra, 33 Conn. App. 12, to change the issue on appeal to a question of subject matter jurisdiction. The plaintiff stresses that he is not making any argument that the defendant ever waived subj ect matter jurisdiction, as he recognizes that it cannot be waived. Rather, what he does claim is that an improper return date is not a subj ect matter jurisdiction defect. The plaintiff in effect maintains that the incorrect Monday return date is an “insufficiency of process” defect that is curable and that the procedure provided by General Statutes § 52-72 supports his position. In explicating his claim, the plaintiff relies heavily on Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 621-22, 642 A.2d 1186 (1994). The plaintiff contends that the trial court should have granted his motion to amend the return date and that doing so would not have prejudiced the defendant. With regard to the Montville reference, the plaintiff claims that the defendant, by untimely filing her motion to dismiss, waived her claims of defects of insufficiency of process, including venue pursuant to Practice Book § 10-32.

We first take up the claimed lack of subject matter jurisdiction because of the incorrect return date. “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessaiy rules of procedure. Greco v. Keenan, 115 Conn. 704, 705, 161 A. 100 [1932].” Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974); see Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 400, 655 A.2d 759 (1995) (claim of lack of subject matter jurisdiction). “A trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal. ” Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991) (claim of lack of subject matter jurisdiction).

Section 52-72, as construed by our Supreme Court in Concept Associates, Ltd., not only furthers this policy but illuminates our analysis in the present case. In Concept Associates, Ltd., the Supreme Court not only stated that “it appears that [§ 52-72] was enacted in response to decisions of this court holding that an improper return date was a jurisdictional defect that could not be corrected,” but also pointed out that “[i]ndeed, this court has stated that the purpose of § 52-72 ‘is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction.’ Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478-79, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980).” Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623; see Coppola v. Coppola, 243 Conn. 657, 663, 707 A.2d 281 (1998). It determined that “[t]he apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.” Concept Associates, Ltd. v. Board of Tax Review, supra, 623. That court also rejected the claim that § 52-72 applied only to amendments to correct a defective return date sought before the correct return date has passed. The court disagreed with the defendant’s claim “that such a limitation is implicit in the words ‘a proper amendment’ [in § 52-72] because there is no longer a case before the court once the return date has passed.” Id. In eschewing such a strict construction, the Concept Associates, Ltd., court stated that “[a]s a remedial statute, § 52-72 must be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.) Id. Recently, our Supreme Court pointedly stated: “The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiffs cause of action because of a defect involving the return date.” Coppola v. Coppola, supra, 665.

We agree with the plaintiff that the defendant on appeal is attempting to frame the issue strictly in terms of subject matter jurisdiction and her alleged “waiver” of that, when the issue to be resolved is whether an incorrect return date is a fatal subject matter jurisdictional defect. The plaintiffs analysis invoking § 52-72 and the interpretation of that statute by Concept Associates, Ltd., controls the resolution of the issue. Concept Associates, Ltd., is directly applicable and presents a scenario similar to what exists in this case, in which the plaintiff attempted to cure the incorrect return date. We note that the defendant does not even mention § 52-72, but rather elects to rest on § 52-48 for her argument that the trial court was left with nothing before it. This is a case where the remedial statute, § 52-72, “must be liberally construed in favor of [one] whom the legislature intended to benefit.” (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623.

Next, we address the improper Montville reference, which is basically a claim of improper venue. The terms “jurisdiction” and “venue” are not synonymous. Jurisdiction has to do with the authority or power of a court to hear and decide “the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 343, 695 A.2d 1072 (1997). Venue, on the other hand, concerns only the place where the case may be tried, and venue requirements are created for the convenience of the parties. See State v. Evans, 9 Conn. App. 349, 354-55, 519 A.2d 73 (1986); 77 Am. Jur. 2d 608, Venue § 1 (1997). Our Supreme Court has said that “[i]t is a well established rule that, outside the area of administrative appeals, venue is not a jurisdictional but a procedural question; consequently, venue, unlike subject matter jurisdiction, can be waived by the parties.” State v. Kelley, 206 Conn. 323, 332, 537 A.2d 483 (1988); see generally State v. Evans, supra, 354-55; 77 Am. Jur. 2d 654-55, supra, §§ 1, 47; 92 C.J.S. 773-75, Venue §§ 75-78 (1955). “[V]enue is a matter that goes to process rather than substantive rights . . . .” American Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994). By filing her motion to dismiss seventy-eight days after filing her appearance, the defendant waived any claim of improper venue.

The question remains as to the nature of our remand. When the trial court granted the defendant’s motion to dismiss on February 10, 1997, it remarked: “I think the motion to amend the return date may be filed, but it should not be decided at this time. I think that should be claimed for a hearing at a later date.” On February 14,1997, the plaintiff filed a “Motion to Open Dismissal [and] Motion to Waive Fees.” The plaintiffs purpose in filing that motion was to seek an opening of the trial court’s February 10, 1997 decision granting the defendant’s motion to dismiss so that the plaintiff could argue his motion to amend the incorrect return date. On May 5, 1997, the trial court heard and denied the plaintiffs “Motion to Open Dismissal [and] Motion to Waive Fees.” In doing so, the trial court stated: “Well, I think the law seems clear that you can’t correct the jurisdiction, that is, the Montville versus New London. I think I have to follow that law. So I’ll have to deny [the plaintiffs] motion to open the judgment.”

The analytical distillate of what we have concluded is that the trial court improperly granted the defendant’s motion to dismiss on February 10, 1997, and that it should have reached and granted the plaintiff’s motion to correct the incorrect return date.

The judgment of dismissal is reversed and the case is remanded with direction to grant the plaintiffs motion to correct the return date and, thereafter, to proceed according to law.

In this opinion the other judges concurred.

       General Statutes § 45a-186 (b) provides in relevant part: “Any [appeal from an order of a court of probate] shall be filed in the superior court for the judicial district in which such court of probate is located except that ... (2) any appeal in a matter concerning . . . termination of parental rights . . . shall be filed in the superior court for juvenile matters having jurisdiction over matters arising in such probate district.”
      The plaintiffs appeal to the Superior Court for the judicial district of New London at New London did not comply with the requirements of this statute. This failure to comply, however, does not render the Superior Court without subject matter jurisdiction. Our Supreme Court considered the issue of “whether provision for a separate juvenile docket reflects a legislative judgment that the juvenile docket is vested with subject matter jurisdiction over juvenile cases that is separate and distinct from the subject matter jurisdiction otherwise vested in the Superior Court.” State v. Kelley, 206 Conn. 323, 331, 537 A.2d 483 (1988). The court in Kelley concluded that the juvenile court does not have subject matter jurisdiction separate and distinct from the Superior Court. Id. The court stated, “The only statutory pronouncement that directly addresses jurisdiction is [General Statutes] § 51-164s, and that section expressly confers the former jurisdiction of the juvenile court on ‘the superior court.’ ” State v. Kelley, supra, 331-32. The Supreme Court indicated that statutes promulgating rules for a “separate system” in the juvenile court; id., 329; such as § 45a-186 (b), involve considerations that are analogous to those of the law of venue and venue can be waived by the parties. See id., 332 and n.12. We find that the parties here waived venue and that the Superior Court in New London had subject matter jurisdiction to consider the case.

       It was not necessary for the defendant to appear in person on July 1, 1996, in the Superior Court in Montville. Rather, the defendant or her attorney should have filed an appearance in writing. See Practice Book §§ 3-1 and 3-2.

       Although the defendant’s motion of January 21, 1997, does not so state, the defendant’s brief in this court maintains that the plaintiffs appeal was ‘'defective” because of (1) failure to assign a proper return date, (2) insufficiency of process and (3) improper venue. The plaintiff in his brief argues that those are the three claims made in the trial court as to why the defendant claims that his appeal was “defective.” In fact, the defendant made only two claims before the trial court. At a hearing on February 10, 1997, the defendant argued: “I think the fatal defect, Your Honor, is the combined defect of the wrongful return date and also the defect directing my client to go to Montville when the papers are being returned to New London.” “We review this case on the theory upon which it was decided below.” Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987); Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985).

       The plaintiff argued in that motion that the procedural effect of granting the motion to dismiss was that there was no pending case. As such, the plaintiff was unable to claim the motion to amend the return date for later argument as the trial court had suggested.

       Practice Book § 142, now § 10-30, titled, “Motion to Dismiss,” provides: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the court otherwise directs.”
      Practice Book § 143, now § 10-31, titled, “[Motion to Dismiss]—Grounds,” provides: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”
      Practice Book § 144, now § 10-32, titled, “[Motion to Dismiss]—Waiver Based on Certain Grounds” provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Secs. 112 and 113 and within the time provided by Sec. 142.”

       General Statutes § 52-48, titled, “Return day of process,” provides: “(a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday.
      “(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”

       The defendant argues that although the defect of the improper return date is a curable one, the plaintiff never cured it.

        Danziger v. Shaknaitis, supra, 33 Conn. App. 6, was summarily reversed by our Supreme Court in light of its decision in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 621, 642 A.2d 1186 (1994). In Danziger, the “principal issue on appeal [was] whether an amended complaint, served after the return date of the original writ of summons attached to the complaint and changing the return date from an improper day to an appropriate day, relates back to the date of original service so as to survive a motion for summary judgment under General Statutes § 52-584 [the relevant statute of limitations].” Danziger v. Shaknaitis, supra, 7.

       General Statutes § 52-72 provides in relevant part: “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. . . .
      “(c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process.”

       See footnote 5.

       See footnote 2.