author: DUPONT, J. HENNESSY, J.

text:
    GONZALO COTTO v. UNITED TECHNOLOGIES CORPORATION, SIKORSKY AIRCRAFT DIVISION
    (AC 16670)
    Hennessy, Dupont and Daly, Js.

      Argued January 12
    officially released May 12, 1998

      Karen Lee Torre, for the appellant (plaintiff).

      Edward J. Dempsey, for the appellee (defendant).

      Martin B. Margulies, Philip D. Tegeler and Rebecca Locketz filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.
   Opinion

DUPONT, J.

The plaintiff appeals from the judgment of the trial court rendered in favor of the defendant on the granting of the defendant’s motion to strike the plaintiffs two count complaint. The sole issue to be resolved is whether General Statutes § 31-51q provides the plaintiff employee with a cause of action for monetary damages against the defendant, his private employer, after discharge from his employment resulting from an alleged exercise by the plaintiff of his federal or state constitutional right of free speech, when the speech took place at the site of the workplace. The defendant, in its motion to strike, claimed that (1) a cause of action based on § 31-51q is unavailable to an employee whose alleged expressive activity occurs exclusively on the private property of his employer, and (2) the plaintiff employee’s words and actions, as alleged in his complaint, were not constitutionally protected.

The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years. The relevant portions of other allegations of the plaintiffs complaint áre quoted as follows: “On or about April 22, 1991, the defendant, acting through [its] management personnel, distributed American flags to employees in the plaintiffs department and it was expected that all employees would display American flags at their workstations. The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag. As a result of the plaintiffs refusal to display the American flag and as a direct and proximate result of his comments with respect to displaying the flag, he was subjected to threats and harassment from his coworkers. Said threats and harassment were directed toward him by his coworkers with the full support and encouragement of the defendant. The plaintiffs refusal to display the American flag and his expression of his opinion regarding the company’s policy that employees must display the American flag at their workstations were absolutely protected by the First Amendment of the United States Constitution and Article First of the Constitution of the State of Connecticut. Subsequent to the plaintiffs suspension from employment, he was permanently discharged from employment on or about May 16, 1992, on account of the plaintiffs aforementioned behavior and expression of opinion, all of which were constitutionally protected. The defendant’s act of discharging the plaintiff from employment violated the plaintiffs rights pursuant to Connecticut General Statutes § 31-51q, as the plaintiffs refusal to display the American flag and his expression of opinion regarding the same did not substantially or materially interfere with his bona fide job performance or the working relationship between him and the defendant.”

It is clear from the facts alleged in the complaint that the expressive conduct alleged by the plaintiff occurred exclusively in the workplace, on the private property of the defendant. The trial court held that the “[pjlaintiff s speech at his workplace is not protected by the first amendment to the United States constitution or §§ 3, 4 or 14 of article first of the Connecticut constitution” and, therefore, § 31-51q cannot afford relief.

The trial court determined that § 31-51q did not protect the plaintiffs expressive activities occurring on his employer’s private property because such on-site activities are not “guaranteed by” either the United States constitution or the constitution of this state. In so holding, the trial court primarily relied on Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984). In Cologne, the question was whether the rights of free speech and petition guaranteed by the Connecticut constitution may be exercised on the private property of the defendants, which property consisted of a large regional shopping center.

No statute was involved in Cologne and no relationship, such as employer and employee, existed between the plaintiffs and the defendants, nor was any claim made that the speech was not otherwise constitutionally protected. The plaintiffs, relying on §§ 4 and 14 of article first of the state constitution, did not take the position that individuals may exercise their rights of free speech on any private property, but instead, limited their claim to speech activities occurring on private properties with a “uniquely public character.” Id., 64. In analyzing this claim, the Cologne court reviewed the history of the adoption of the Connecticut bill of rights and found “no evidence of any intention to vest in those seeking to exercise such rights as free speech and petition the privilege of doing so upon property of others.” Id., 62. Accordingly, the court concluded that the free speech and petition rights of the state constitution do not extend to expressive activities exercised on private property against the wishes of the owner, even where the private property is vested with a public character. Id., 65-66.

The present case involves the determination of an issue not yet decided by an appellate court of this state.* ***** Unlike Cologne, which was based entirely on a constitutional analysis, we are here determining whether § 31-51q provides a cause of action, under the circumstances alleged by the plaintiff, to an employee who is discharged for the exercise of an alleged constitutional right when, without the statute, no remedy or cause of action would be available. In other words, the question is whether § 31-51q protects particular speech occurring on the private property of an employer when, pursuant to Cologne, such speech would not otherwise have been protected.

The defendant’s motion to strike in the present case was based on two grounds. The defendant claimed, first, that the rights protected by § 31-51q do not apply when exercised on private property and, second, that even if they do apply, the plaintiffs words and actions were not constitutionally protected free speech. Attached to the defendant’s motion to strike were a memorandum of law and a decision of arbitrators who had determined that the plaintiff was properly discharged. The plaintiffs cause of action pursuant to § 31-51q does not, nor could it, seek reinstatement of employment but, rather, seeks money damages.

“It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them.” Schmidt v. Yardney Electric Corp., 4 Conn. App. 69, 74, 492 A.2d 512 (1985).

The trial court concluded that the plaintiffs speech was not protected because it occurred on private property. It did not consider the second ground for the defendant’s motion, namely, that the particular words and actions of the plaintiff were not constitutionally protected. The basis for the latter claim, according to the memorandum of law filed with the motion to strike, was that the speech did not involve a matter of public concern, but instead involved a matter concerning a condition of private employment. Although the trial court did not consider this second ground, we may do so because on appeal an appellate court may conduct a de novo review of an issue of law, such as the interpretation of a statute. Squeglia v. Squeglia, 234 Conn. 259, 262-63, 661 A.2d 1007 (1995); Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 395-96, 655 A.2d 759 (1995); see also Emerick v. United Technologies Corp., 1996 WL680759 (2d Cir. 1996). In this case, both grounds for the defendant’s motion to strike must be discussed.

Statutory analysis is a search for the intention of the legislature. “[W]e look to the words of the statute itself, to the legislative history ... to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . governing the same general subject matter.” (Internal quotation marks omitted.) Carriero v. Naugatuck, 243 Conn. 747, 753, 707 A.2d 706 (1998).

We begin our analysis of whether a cause of action pursuant to § 31-51q has been alleged with the words of the statute. First, a private employer is placed in the same category as a state employer because of the words “[a\ny employer, including the state . . . .” (Emphasis added.) General Statutes § 31-51q. The statute next prohibits the discharge of an employee who exercises those rights that are guaranteed by particular' sections of the state and federal constitutions, provided that the exercise of those rights do not interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer. The question is whether the words of the statute were intended to extend constitutional protections of speech to the workplace. Nothing in the statute’s legislative histoiy answers that question, and the statute itself is silent. It is instructive, however, to review related state legislation governing the same general subject matter.

A state may adopt, in its own constitution, individual liberties more expansive than those conferred by the federal constitution and a state statute is, for that purpose, in the same category as a state constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 79, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980). Thus, the legislature, if it so chooses, may enlarge a constitutional right; see Cologne v. Westfarms Associates, supra, 192 Conn. 72 (Peters, J., dissenting); and may enact a statute to protect speech or expressive activity beyond that guaranteed by either the state or federal constitutions; Pruneyard Shopping Center v. Robins, supra, 78, 81, and, until such time as that legislation is successfully attacked as unconstitutional or is repealed, the subject activity of the legislation is protected.

For example, the legislature has enacted other statutes to protect employee speech or activity that would not otherwise be protected by the federal or state constitutions. These statutes govern situations where there is no state action and where the activity relates to a private employer. Such statutes include General Statutes § 2-3a, which prohibits retaliatory action by a private employer against an employee who runs for or serves in the state legislature; General Statutes § 31-51m, which prohibits retaliatory action by a private employer against an employee who reports a violation or suspected violation of laws or regulations (employee “whistle-blowing” protection); General Statutes §§ 31-40k and 31-40o, which prohibit retaliatory action by a private employer against an employee for seeking information about toxic substances used at the workplace; General Statutes § 31-48b, which provides criminal sanctions against a private employer who records or monitors activities of employees in areas designed for the personal health or comfort of the employees, or in areas for the safeguarding of employee possessions such as restrooms, lockers and lounges; General Statutes § 31-51, which provides for a fine against a private employer who acts to prevent an employee from securing employment elsewhere; General Statutes § 31-51g, which provides for a fine against a private employer for requiring an employee to take a polygraph test; General Statutes §§ 31-104 and 31-105, which make it an unfair labor practice for private employers to prevent employees from bargaining collectively; General Statutes § 31-290a, which prevents private employers from using retaliatory measures against an employee who files a claim for workers’ compensation benefits; General Statutes § 31-379, which prevents private employers from using retaliatory measures against an employee who files a complaint concerning a violation of the Occupational Safety and Health Act; General Statutes § 51-247a, which prohibits retaliatory measures by a private employer against an employee for responding to a summons to act as a juror or for serving as a juror; General Statutes § 52-361a (j), which prohibits a private employer from using retaliatory measures against an employee because of a wage execution; General Statutes § 53-303e (b), which prohibits a private employer from taking retaliatory measures against an employee for not working on his or her Sabbath because of religious observance; General Statutes § 27-33, which prohibits retaliatory action by a private employer against an employee who absents himself from his work duties while engaging in military or naval duty; General Statutes § 28-17, which prohibits the discharge of an employee because of membership in an organization engaged in civil preparedness or because of eligibility for induction into the armed services of the United States; and General Statutes § 9-365, which provides for a fine of “[a]ny person” who threatens a person in his employ or who discharges an employee because of any vote of the employee at any election.

Clearly, some of the protected activities described in these statutes involve speech or expressive activity that either of necessity or in all probability will occur at the work site of a private employer and involve prohibition of speech unrelated to state action.

We conclude that § 31-51q applies to some activities and speech that occur at the workplace because there are no words in the statute limiting the place at which the constitutionally protected activity occurs, there is no prohibition that prevents a legislature from protecting employee speech wherever it occurs and other legislation governing the same general subject matter includes speech occurring at the workplace. The real question in this case, however, is not governed by where the activity occurred but of what the activity consisted. Section 31-51q protects only that activity guaranteed safe from private employer interference by either certain sections of our constitution or by the federal constitution. If the rights exercised by the employee do not fall into the specified constitutional category, the statute cannot apply. Not all speech is guaranteed to be “free.” “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919). It is the combination, in this case, of where the speech occurred at the workplace and its particular content that determines if the speech is protected by the statute.

In deciding whether the allegations of the plaintiffs complaint state a cause of action for the deprivation of a constitutionally protected right, it is instructive to review federal and state cases arising under 42 U.S.C. § 1983 because § 31-51q is analogous. See D'Angelo v. McGoldrick, 239 Conn. 356, 367, 685 A.2d 319 (1996) (Berdon, J., dissenting). If an employee’s activity or speech can be the basis of a discharge from employment, without violating 42 U.S.C. § 1983, when the federal, state or municipal government is the employer, then it is logical to conclude that an employee’s activity can also be the basis of a discharge by a private employer, without violating § 31-51q. Three cases, two federal and one state, are relevant to this inquiry.

Conduct at a governmental employer’s workplace is not constitutionally protected unless the expressive activity concerns a matter of public, social or other concern to the country. Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). In Connick, a state assistant district attorney circulated a questionnaire at work among fifteen other assistant district attorneys, creating a “mini-insurrection” at the office of the district attorney. After the assistant district attorney was discharged, she brought a § 1983 action, alleging that she had been wrongfully terminated because the discharge was due to the exercise of her constitutionally protected right of free speech. Speech on matters of public interest is protected, whereas other speech may not be protected. The Connick court reviewed a number of prior United States Supreme Court decisions that concerned the line to be drawn between nonconstitutional speech involving employment conditions and practices and constitutional speech involving public issues. Identifying the difference requires a case-by-case analysis, and the court refused to lay down a general standard against which speech may be judged. Such a review of each case requires an evaluation of the manner, time and place involved in the expressive activity, as well as an analysis of the content of the expression itself. The Connick court held that while the questionnaire may have touched on matters of public concern in a limited sense, the questionnaire was more accurately characterized as an employee grievance concerning office policy. Id., 154. “The limited First Amendment interest involved . . . does not require that [the district attorney] tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. [The] discharge therefore did not offend the First Amendment.” Id.

To be protected by the first amendment, “the speech must be on a matter of public concern, and the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause” to employee relationships. Waters v. Churchill, 511 U.S. 661, 668, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). Restrictions on employee-employer speech are more justified than restrictions on the speech of the public at large. Id., 672. Both Connick and Waters were § 1983 cases, and both involved expressive activity at the workplace.

In a § 1983 case brought in the Connecticut state courts, a police officer sought damages for violations of his federal civil rights, namely, his constitutional rights to freedom of speech and equal protection of the law. Schnabel v. Tyler, 230 Conn. 735, 748, 646 A.2d 152 (1994). A public employer violates the first amendment if it takes an adverse employment action against an employee to punish the employee for his “constitutionally protected speech of public concern.” Id., 748. An employee has an interest in commenting on matters of public concern, and an employer has an interest in regulating some of the speech of its employees. Whether speech may fairly be characterized as constituting speech on a matter of public concern must be determined by the content, form and context of the speech. There is a constitutionally permissible justification for an employee’s discharge if the speech is not of public concern.

An example of an issue of public concern is one involving the expenditure of public funds; Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 137-38, 544 A.2d 655 (1988); or involving the safety of the public. Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). In the present case, the plaintiff alleged that “it was expected” that all employees display American flags at their workstations, and that he declined to do so and gave an opinion on the propriety of coercing or exerting pressure on employees to do so. It can fairly be inferred from these allegations and other allegations of his complaint that his opinion was that employees should not be pressured into displaying the flag, and that this opinion caused a disturbance among his coworkers during working hours at the workstations of the employees.

The issue of whether the employer should have “expected” the plaintiff to display a flag may be the subject of a grievance involving a condition of employment, but it is not a matter of public interest. An employee’s right as a citizen to participate in discussions concerning matters of public importance on or off the work site of the employer cannot be converted into a right guaranteed by the federal or state constitution to express a grievance about the working conditions of employment. There is a difference between allegations regarding a dispute between an employer and employee over working conditions, and allegations regarding a disagreement about matters of public concern. Girgenti v. Cali-Con, Inc., supra, 15 Conn. App. 137.

If the plaintiff had been an employee of the federal government or of the state government, and if § 1983 had been applied, the plaintiffs expression at the workplace would not have been constitutionally protected, and we here hold that on the facts as alleged, the plaintiff has no cause of action.

The judgment is affirmed.

In this opinion DALY, J., concurred.

HENNESSY, J.

concurring. While I agree with the result reached by the majority, I disagree with the conclusion that General Statutes § 31-51q is applicable to speech on private property. I believe that the trial court properly held that § 31-51q does not apply and dismissed the plaintiffs complaint. Therefore, I respectfully concur in the judgment.

“[I]t is fundamental that the First Amendment [to the United States constitution] prohibits governmental infringement on the right of free speech. Similarly, the Fourteenth Amendment [to the United States constitution], which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities. Civil Rights Cases, 109 U.S. 3, 11 [3 S. Ct. 18, 27 L. Ed. 835] (1883); Shelley v. Kraemer, 334 U.S. 1, 13 [68 S. Ct. 836, 92 L. Ed. 1161] (1948).” Rendell-Baker v. Kohn, 457 U.S. 830, 837-38, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982). In interpreting the state constitutional free speech provision in the area of private speech on private property, our Supreme Court has refused to find any meaningful distinction between the federal and state constitutional free speech provisions. See Dydyn v. Dept. of Liquor Control, 12 Conn. App. 455, 463, 531 A.2d 170, cert. denied, 205 Conn. 812, 532 A.2d 586 (1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1272, 99 L. Ed. 2d 483 (1988). In the present case, it is undisputed that the speech occurred on private property and is, therefore, not speech protected by the federal or state constitution. See Cologne v. Westfarms Associates, 192 Conn. 48, 62-63, 469 A.2d 1201 (1984).

Statutory provisions or common law, however, “may in some situations extend protection or provide redress against a private coiporation or person who seeks to abridge the free expression of others.” Hudgens v. National Labor Relations Board, 424 U.S. 507, 513, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976). We must first determine, therefore, whether the legislature enacted § 31-51q to protect speech that occurs on a private employer’s property.

Section 31-51q provides in relevant part that “[a]ny employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state. . . .” (Emphasis added.) “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.. . . Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995). We look to the legislative history of a statute only if it is ambiguous. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). A statute does not become ambiguous because the parties argue its meaning differently. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 63, 578 A.2d 1054 (1990). The legislative intent is to be found, not in what the legislature intended to say, but in the meaning of what it did say. Lees v. Middlesex Ins. Co., 219 Conn. 644, 652, 594 A.2d 952 (1991). We must construe a statute without reference to whether we feel that it might be improved by adding to it or interpreting it differently. See Emergency Medical Services Commission v. Freedom Of Information Commission, 19 Conn. App. 352, 355, 561 A.2d 981 (1989). It is our duty to apply the law, not to make it. Murray v. Lopes, 205 Conn. 27, 34, 529 A.2d 1302 (1987). . . . Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 832-33, 673 A.2d 1172 [1996], appeal dismissed, 239 Conn. 791, 686 A.2d 993 (1997) (certification improvidently granted).” (Internal quotation marks omitted.) State v. Gordon, 45 Conn. App. 490, 497-98, 696 A.2d 1034, cert. granted, 243 Conn. 911, 701 A.2d 336 (1997).

The language used by the legislature in § 31-51q, namely, “rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state,” is plain and unambiguous. We need not, therefore, turn to the legislative history of the statute in order to discern legislative intent. The intent clearly manifests itself in the language used. The statute applies only to violations of constitutional rights. The right to free speech on private property is not guaranteed by any of the enumerated constitutional provisions, either state or federal. Any purported restriction on the plaintiffs free speech, is not a violation of any constitutionally protected right to free speech and, therefore, § 31-51q does not apply. Accordingly, I would affirm the judgment of the trial court.

       The plaintiff does not challenge on appeal the trial court’s granting of the defendant’s motion to strike count two of the complaint.

       General Statutes § 31-51q provides: “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.”

       In response to the defendant’s requests for admission, the plaintiff stated that the employees were called to the desk of a supervisor where they were handed small American Hags with a letter from the company president thanking the employees for their efforts in supporting the United States during the Persian Gulf war.

       The first amendment to the United States constitution provides in part: “Congress shall make no law . . . abridging the freedom of speech . . . .”

       Article first, § 3, of the Connecticut constitution, titled “Right of religious liberty,” is not involved in the allegations of the plaintiffs complaint.
      Article first, § 4, of the Connecticut constitution provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
      Article first, § 14, of the Connecticut constitution provides: “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress or grievances, or other proper purposes, by petition, address or remonstrance.”

       The trial court did not hold, nor does the defendant claim, that § 31-51q does not provide a cause of action by an employee against a private employer for speech uttered away from the workplace, under some circumstances. Also, the defendant does not argue that a state legislature cannot, if it chooses to do so, protect some speech that would otherwise not be protected, such as speech that does not involve state action or speech that occurs on private property. The defendant argues instead that the plain words of the statute do not give to the plaintiff employee a cause of action for speech occurring at the private employer’s workplace.

       Although the plaintiffs in Cologne relied exclusively on the state constitution for their claim, the court noted and it is well settled that “if the plaintiffs’ asserted right to conduct their activities on the defendants’ property depended entirely on federal constitutional provisions, they could not prevail.” Cologne v. Westfarms Associates, supra, 192 Conn. 57; see also
        Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (federal constitutional protections to expressive activity do not extend to activity occurring on private property). Pruneyard held, however, that the California Supreme Court was correct in interpreting the California constitution to allow the protection of speech at a privately owned shopping center.

       General Statutes § 31-51q has been interpreted by the Connecticut Supreme Court to resolve other issues. In actions based on the statute, there must be a causal connection between the disciplinary action against an employee and the exercise of a constitutional right of the employee. D ’Angelo v. McGoldrick, 239 Conn. 356, 685 A.2d 319 (1996). There is no right to a jury in an action brought by an employee pursuant to § 31-51q against a state employer, nor may such an action be dismissed on the ground of sovereign immunity. Skinner v. Angliker, 211 Conn. 370, 373, 559 A.2d 701 (1989).

       Employment may be terminated at the will of the employer unless it comes within a statutory, contractual or decisional exception. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980).

       The allegations of the plaintiff’s complaint that his actions and expression of opinion did not interfere with his working relationship with the defendant is contradicted by his allegations that he was subjected to threats and harassment from his coworkers, which were directed toward him with the full support and encouragement of the defendant. It is necessarily implied by his allegations that his actions and expressions of opinion did interfere with his relationship with his employer.

       State statutes, such as General Statutes § 31-51m, the “whistle-blower” protection statute, as opposed to the state constitution, may give an employee such a limited right.

       The parties have made no claim of state action.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    ROLAND DUMONT v. COMMISSIONER OF MOTOR VEHICLES
    (AC 16761)
    Foti, Ilennessy and Stoughton, Js.
    Argued February 19
    officially released May 12, 1998

      Jeffrey D. Brownstein, with whom, on the brief, was Gregory A. Thompson, for the appellant (plaintiff).

      Alan N. Ponanski, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

STOUGHTON, J.

This is an appeal from the judgment dismissing the appeal by the plaintiff, Roland Dumont, from the decision of the commissioner of motor vehicles suspending Dumont’s license to operate a motor vehicle. Dumont claims that (1) there was no probable cause for his arrest, (2) the commissioner’s decision was not supported by substantial evidence, and his expert evidence rebutted the statutory presumption, (3) General Statutes §§ 14-227a (a) and 14-227b are unconstitutional in various respects, (4) his rights were substantially prejudiced because the hearing officer acted as judge and state advocate and (5) his due process rights were violated by the denial of his request for a continuance.

The hearing officer reasonably could have found the following facts. On April 11, 1996, a state trooper on Interstate 84 observed Dumont’s car swerve from the left exit lane back onto the highway, causing other vehicles to brake quickly. The trooper stopped Dumont for operating his vehicle erratically and found that Dumont’s breath had an odor of alcohol. Dumont said that he had been drinking beer. When Dumont got out of his car, he steadied himself on the car and walked with a limp. He told the trooper that he had injured his left ankle and right heel the previous year, and the trooper, therefore, did not ask Dumont to perform all of the standard field sobriety tests. In the opinion of the trooper, Dumont failed the tests that were administered. On the basis of the test results and his other observations, the trooper arrested Dumont for operating a motor vehicle while under the influence of intoxicating liquor and took him to the Southington police station. After advising Dumont of his rights, the trooper administered two breath tests using an Intoxilyzer 5000 machine. The results of the tests showed blood alcohol levels of 0.132 percent and 0.118 percent. Thereafter, the commissioner notified Dumont that his operator’s license was to be suspended for a period of ninety days.

Pursuant to § 14-227b, Dumont requested a hearing on the suspension of his license. His counsel issued a subpoena ordering the trooper to appear at the hearing with the machine and a number of documents. The trooper appeared and testified, but brought only a log book with him. He testified that the machine was functioning properly at the time of the tests and that it was certified by the state department of public health and addiction services (health department). He testified further, however, that the machine and the other items requested were not within the custody or control of the state police, but were the property of and in the custody of either the Southington police department, the health department or some other agency. Dumont requested a continuance to obtain the evidence sought. The hearing officer denied the request.

At the hearing, Dumont submitted a report signed by a toxicologist, Brian Pape, in which Pape expressed the opinion that the machine used to measure the alcohol content of Dumont’s blood was not rehable. Pape concluded that there was a reasonable likelihood that Dumont’s true blood alcohol content was less than 0.10 percent at the time of his breath tests.

The hearing officer concluded that the police had probable cause to arrest Dumont, that they did arrest him for operating a motor vehicle while under the influence of intoxicating liquor, that he had been operating a motor vehicle and that within two hours alter operating the vehicle, he had submitted to a breath test that showed the alcohol content of his blood to be above the legal limit. On the basis of those findings, the hearing officer suspended Dumont’s license. Dumont appealed to the Superior Court, which upheld the license suspension. We affirm the decision of the Superior Court.

I

Dumont claims first that because the trooper failed to administer two particular field sobriety tests, and because two of the tests administered were nonstandard, there was not probable cause for an arrest.1 **

“It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . In determining whether there was probable cause to arrest for operating a motor vehicle while under the influence of liquor, the court may consider, just as in an arrest for any other criminal offense, circumstantial as well as direct evidence. . . .

“To establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the commissioner if there is evidence that reasonably supports his decision.” (Citations omitted; internal quotation marks omitted.) Kirei v. Hadley, 47 Conn. App. 451, 456-57, 705 A.2d 205 (1998).

As in Kirei, the record here shows that the testimony of the trooper, the trooper’s report that was admitted into evidence and the totality of the circumstances at the time of Dumont’s arrest support the hearing officer’s finding that there was probable cause to arrest Dumont for operating a motor vehicle while under the influence of liquor. See id., 457.

The trial court properly found that there was ample evidence to support the hearing officer’s determination that there was probable cause to arrest Dumont.

II

Dumont next claims (1) that the hearing officer’s finding that Dumont was operating a motor vehicle while under the influence of intoxicating liquor was not supported by substantial evidence because the breath test machine was not functioning properly, (2) that the hearing officer improperly disregarded Pape’s report, which was the only expert evidence offered, and (3) that Pape’s report rebutted the statutory presumption that the results of the tests indicated Dumont’s blood alcohol content at the time of operation.

Given the trooper’s testimony and the certification of the machine by the health department, the court had ample evidence to conclude that the machine was functioning properly.

Our recent decision in Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 710 A.2d 807 (1998), directly addresses Dumont’s arguments regarding his expert evidence. The hearing officer “is not required to believe unrebutted expert testimony, but may believe all, part or none of such unrebutted expert evidence.” Id., 405. Moreover, Dumont has not demonstrated that the hearing officer disregarded Pape’s report. As to the argument that Pape’s report rebutted the statutory presumption, we stated in Bancroft that the statutory presumption is “sufficient to withstand expert evidence to the contrary and support a conviction without further evidence, if the jury disbelieves the contrary evidence. . . . [T]his principle appliejs] equally to an administrative hearing under § 14-227b, [where a] hearing officer may rely on the presumption created by the statute if he or she disbelieves expert evidence to the contrary. Additional expert evidence to rebut the plaintiffs evidence is not required in such a case.” (Citation omitted; internal quotation marks omitted.) Id., 407.

We affirm the trial court’s finding that the hearing officer’s reliance on the statutory presumption to suspend Dumont’s license was proper.

Ill

A

Dumont maintains that §§ 14-227a (a) and 14-227b are void for vagueness because he had no way of measuring whether his blood alcohol content was 0.10 percent or higher when he operated his motor vehicle. “The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. . . .

“Furthermore, [a]s a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue.” (Citations omitted; internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 777, 695 A.2d 525 (1997).

Dumont claims that the statutes do not give fair warning because an ordinary person has no ascertainable means of measuring his or her own blood alcohol content. This claim has been rejected in all of our sister states in which it has been raised. We join those states on the basis of the reasoning stated by the California Supreme Court in Burg v. Municipal Court for Santa Clara County Judicial District, 35 Cal. 3d 257, 271-72, 673 P.2d 732, 198 Cal. Rptr. 145 (1983), cert. denied and appeal dismissed, 466 U.S. 967, 104 S. Ct. 2337, 80 L. Ed. 2d 812 (1984): “[I]t requires more than asmall amount of alcohol to produce a [0].10 [percent] BAC [blood alcohol content]. Those who drink a substantial amount of alcohol within a relatively short period of time are given clear warning that to avoid possible criminal behavior they must refrain from driving. . . . Considering also today’s heightened level of public awareness regarding the problem, we cannot believe that any person who drives after drinking would be unaware of the possibility that his blood-alcohol level might equal or exceed the statutory standard. . . . Charts are readily available to the public that show with reasonable certainty the number of different alcoholic beverages necessary for a particular individual to reach a blood-alcohol level of 0.10 percent.” (Citations omitted; internal quotation marks omitted.)

We conclude that §§ 14-227a (a) and 14-227b are not unconstitutionally vague as applied to Dumont.

B

Dumont also maintains that § 14-227b (f) is unconstitutional because it is limited to four issues and, thus, denies him due process. He cites no authority in support of this claim and offers no analysis beyond his argument that he was thus prevented from explaining that his performance and test results were not related to his being under the influence of alcohol. “One who challenges the constitutionality of a statute bears the heavy burden of overcoming the presumption of its constitutional validity and of establishing the statute’s invalidity beyond a reasonable doubt.” Ecker v. West Hartford, 205 Conn. 219, 237, 530 A.2d 1056 (1987). Dumont has failed even to come close to satisfying this heavy burden.

C

Dumont also claims that § 14-227b is unconstitutional because it mandates that the hearing officer find that the blood alcohol content was 0.10 percent or higher if the test, commenced within two hours of the time of operation, indicates the same. He argues that under the terms of § 14-227b (f) the result of the test is sufficient to indicate the content of alcohol in the blood at the time of operation, and that this amounts to a conclusive and unconstitutional presumption. We consider and reject the claim as being without merit. One of the four issues to be determined by the hearing officer is whether the operator submitted to a test commenced within two hours of the time of operation and, if so, whether the result of the test indicated a blood alcohol content of 0.10 percent or higher. Pursuant to § 14-227b (f), the test result is sufficient only to indicate blood alcohol content at the time of operation if the result of the second required test is not 0.12 percent or less and is higher than the result of the first test. If such results do occur, there must be additional evidence demonstrating that the results accurately indicate the blood alcohol content at the time of operation. Thus, the statute creates a rebuttable, as opposed to a conclusive, presumption. See State v. Korhn, 41 Conn. App. 874, 880-81, 678 A.2d 492, cert. denied, 239 Conn. 910, 682 A.2d 1010 (1996).

IV

Dumont claims that the dual role of the hearing officer as judge and state advocate substantially prejudiced his rights. He claims that the hearing officer presented the evidence, ruled on its admissibility and rendered a decision, thus substantially prejudicing his rights. Dumont cites no authority in support of this claim. The hearing officer received the reports from the police officer and the evidence Dumont adduced. There is no reference in the brief to any specific ruling on admissibility that called into question the hearing officer’s impartiality. The hearing officer was called upon merely to decide four statutory issues, and he did so. “It is not violative of due process for the same authority which initiated the subject of the hearing to listen to and determine its outcome as long as that authority gives the person appearing before it a fair, open and impartial hearing.” (Internal quotation marks omitted.) New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 151, 627 A.2d 1257 (1993).

Dumont also claims that the fact that the hearing officer is compensated by the department that seeks to suspend his license presents too high a risk that he will be biased. Dumont does not assert that the hearing officer was in fact biased, and this claim too lacks merit.

V

Finally, Dumont claims that his due process rights were violated when the hearing officer denied his request for a continuance to permit him properly to subpoena the persons or agencies having custody of the Intoxilyzer 5000 and various documents. The trial court, in its discretion, reasonably found that Dumont and his counsel knew that the breath tests were given at the Southington police department with that department’s machine. Also, there is nothing in the record to indicate that a subpoena could not have been issued to the more likely repositories of the documents sought.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor . . . if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor ... or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes (Rev. to 1995) § 14-227b, as amended by Public Acts 1995, No. 95-279, § 1, provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor ... or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license . . . may be suspended in accordance with the provisions of this section if ... he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight ....
      “(f) If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. . . . The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor ... or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person . . . submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except, that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. . . .”

       Pape did not testify at the hearing.

       This claim challenges the hearing officer’s determination of the first of the four hearing issues set forth in § 14-227b: “Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor ... or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor . . . .”

       See, e.g., Roberts v. State, 329 So. 2d 296 (Fla. 1976); State v. Bock, 357 N.W.2d 29 (Iowa 1984); People v. Schmidt, 124 Misc. 2d 102, 478 N.Y.S.2d 482 (N.Y. City Crim. Ct 1984); State v. Tanner, 15 Ohio St. 3d 1, 472 N.E.2d 689 (1984); Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Greaves v. State, 528 P.2d 805 (Utah 1974); State v. Franco, 96 Wash. 2d 816, 639 P.2d 1320 (1982).


author: FOTI, J. LAVERY, J.,

text:
    FAY HUMERLINE LINDO v. HERSELL O. LINDO
    (AC 15983)
    (AC 16783)
    Foti, Lavery and Landau, Js.

      Argued January 13
    officially released May 12, 1998

      George C. Springer, Jr., for the appellant (defendant).

      Lori Welch-Rubin, for the appellee (plaintiff).
   Opinion

FOTI, J.

In the first of these consolidated appeals, the defendant, Hersell O. Lindo, appeals from the judgment of the trial court dismissing his motion to modify a foreign matrimonial judgment for lack of subject matter jurisdiction. The second appeal is the defendant’s appeal from the judgment of the trial court granting the motion filed by the plaintiff, Fay Humerline Lindo, for counsel fees to defend the first appeal.

The relevant facts are as follows. The parties were married in Jamaica in 1977. The plaintiff presently lives in West Haven and attends law school. The plaintiff maintains her permanent residence in Michigan. The defendant is a resident of Maine and owns no property in Connecticut. The parties were divorced in New York in 1982. The defendant did not enter an appearance in the New York dissolution action. In 1985, the plaintiff petitioned a Michigan court to modify the New York decree. On February 24, 1986, the Michigan court rendered judgment modifying the New York decree. Pursuant to the modification, the defendant’s child support obligation was increased from $750 per month to $500 per week. At the time the Michigan court rendered judgment modifying the New York decree, the defendant again failed to enter an appearance. Some time thereafter, the defendant appeared through counsel in the Michigan court and filed a motion to set aside the judgment, which was denied on September 12, 1986. Four years later, in 1990, the defendant again appeared through counsel in the Michigan court and filed a petition for reduction of child support and elimination of alimony. The defendant’s petition was dismissed on July 31, 1992, at which time the court stated that the defendant should not approach the court for relief until such time as his substantial arrearages were paid.

On May 15,1995, pursuant to General Statutes § 46b-71, the defendant filed the Michigan judgment as a foreign matrimonial judgment. On July 17, 1995, the defendant moved for modification of the Michigan court orders regarding support, alimony and visitation. On March 12,1996, the plaintiff moved to dismiss the defendant’s motion for forum non conveniens. At the hearing on the plaintiffs motion to dismiss, the trial court directed the parties to address the issue of whether the court had subject matter jurisdiction. On April 3, 1996, the plaintiff filed a motion to dismiss for lack of subject matter jurisdiction pursuant to General Statutes § 46b-70. The court, Munro, J., granted the motion on April 29, 1996. The first appeal followed.

On June 5, 1996, the plaintiff filed a motion for counsel fees to defend the first appeal. Following a hearing on December 2, 1996, the trial court, Alander, J., awarded the plaintiff attorney’s fees in the amount of $5000, to be paid by the defendant at the rate of $1000 per month. The second appeal followed.

I

“Foreign matrimonial judgments may be enforced, modified or otherwise dealt with in Connecticut pursuant to the provisions of General Statutes §§ 46b-70 through 46b-75. Section 46b-71 requires the filing of a certified copy of a foreign matrimonial judgment in the courts of this state where enforcement is sought and empowers the courts of this state to treat such a judgment in the same manner as any like judgment of a court of this state.” Vitale v. Krieger, 47 Conn. App. 146, 148, 702 A.2d 148 (1997). The power of the courts of this state to modify a foreign matrimonial judgment is circumscribed by § 46b-70, which defines a foreign matrimonial judgment as a judgment in which both parties have entered an appearance. Mirabal v. Mirabal, 30 Conn. App. 821, 825, 622 A.2d 1037 (1993); see Morabito v. Wachsman, 191 Conn. 92, 101, 463 A.2d 593 (1983). “Atrial court has no competency to exercise power over an out-of-state matrimonial judgment that does not satisfy the requirements of § 46b-70.” Mirabal v. Mirabal, supra, 826. A foreign judgment obtained by a default in appearance does not satisfy the requirements of § 46b-70. See Rule v. Rule, 6 Conn. App. 541, 544, 506 A.2d 1061, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986).

When modifying a foreign matrimonial judgment, a Connecticut court must apply the substantive law of the foreign jurisdiction. General Statutes § 46b-71 (b). Under the particular circumstances of this matter, however, whether the Michigan judgment is a “foreign matrimonial judgment” that may be modified by a Connecticut court depends on whether it falls within the purview of § 46b-70. It is clear that the defendant never filed an appearance in the proceedings leading to the February 24, 1986 judgment modifying the New York decree. The defendant argues, however, that his appearances in the Michigan court, subsequent to its February 24, 1986 modification order, are sufficient, as a matter of law, to satisfy the requirements of § 46b-70. We do not agree.

While the defendant’s “appearances” may have been filed in accordance with the Michigan rules of civil procedure, they cannot cure the jurisdictional defect created when the defendant failed to enter an appearance at the February 24, 1986 proceeding in which the order sought to be modified was entered. The status of this initial judgment cannot change unless and until it is opened or set aside. Because the Michigan court’s February 24, 1986 judgment modifying the New York decree was never opened or set aside, it remains as a foreign matrimonial judgment in which one party did not enter an appearance. Therefore, no subsequent appearance by the defendant or his counsel, unless filed after the initial judgment has been opened or set aside, can satisfy the requirements of § 46b-70. See Mirabal v. Mirabal, supra, 30 Conn. App. 825-26.

We conclude that because the defendant failed to enter an appearance at the February 24, 1986 proceeding in which the order sought to be modified was entered, the trial court lacked subject matter jurisdiction to consider the defendant’s motion and properly dismissed the matter.

II

The defendant claims that the trial court improperly awarded attorney’s fees because (1) General Statutes § 46b-62 does not apply to proceedings commenced under § 46b-71, and (2) the trial court lacked authority to award attorney’s fees, having dismissed the matter for lack of subject matter jurisdiction.

The defendant first claims that § 46b-62, which precedes § 46b-71, applies to proceedings seeking relief under the provisions of chapter 815j and certain other sections of the General Statutes. The defendant contends that the language of § 46b-62 is plain and that if the legislature had intended § 46b-62 to apply to proceedings brought pursuant to § 46b-71, it would have expressly referenced § 46b-71 in the text of § 46b-62. We do not agree.

General Statutes (Rev. to 1995) § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter and sections 17b-743, 17b~744, 45a-257, 46b-l, 46b-6, 46b-204, 47-14g, 51-348a and 52-362, the court may order either spouse or . . . either parent to pay the reasonable attorney’s fees of the other . . . .” (Emphasis added.) Section 46b-62 is included within chapter 815j of the General Statutes. A plain reading of § 46b-62 indicates that it applies to any proceeding seeking relief under the provisions of chapter 815j. We conclude, therefore, that because § 46b-71 falls clearly within chapter 815j, the trial court had authority to award attorney’s fees pursuant to § 46b-62.

The defendant next argues that once the trial court dismissed the matter for lack of subject matter jurisdiction, it lacked the authority to adjudicate the plaintiffs motion for attorney’s fees.

“Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the [matter], any further discussion of the merits is pure dicta.” Doe v. Heintz, 204 Conn. 17, 38, 526 A.2d 1318 (1987) (Peters, C. concurring). If subject matter jurisdiction is lacking, a trial court’s rulings on the merits are merely advisory. See Statewide Grievance Committee v. Roz-bicki, 211 Conn. 232, 246, 558 A.2d 986 (1989).

A court always has jurisdiction to determine its own jurisdiction. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570-71, 651 A.2d 1246 (1995); Castro v. Viera, 207 Conn. 420, 430, 541 A.2d 1216 (1988). Moreover, “[i]t is well established that a trial court maintains jurisdiction over an action subsequent to the filing of an appeal.” Ahneman v. Ahneman, 243 Conn. 471, 482, 706 A.2d 960 (1998).

A trial court’s award of attorney’s fees pursuant to § 46b-62, given when the interests of justice so require, is not a ruling on the “merits” of the underlying action. See White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451-52, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982) (court’s decision of entitlement to attorney’s fees requires inquiry separate from decision on merits); Oakley v. Commission on Human Rights & Opportunities, 38 Conn. App. 506, 517, 662 A.2d 137 (1995), aff'd, 237 Conn. 28, 675 A.2d 851 (1996) (same). We conclude, therefore, that because the trial court (1) maintained continuing jurisdiction during the pendency of the appeal, (2) was statutorily authorized to award attorney’s fees, and (3) did not rule on the merits of the case, it did not act improperly in awarding attorney’s fees to the plaintiff.

The judgments are affirmed.

In this opinion LANDAU, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from part I of the majority opinion. I disagree with the majority’s conclusion that the trial court lacked subject matter jurisdiction to consider the defendant’s motion and properly dismissed the matter. I would conclude that the trial court did have subject matter jurisdiction pursuant to General Statutes § 46b-70 and, therefore, should have denied the plaintiffs motion to dismiss for lack of subject matter jurisdiction, but should have heard the plaintiffs motion to dismiss for forum non conveniens.

I disagree with the majority’s conclusion that the Michigan judgment is not a “foreign matrimonial judgment” within the purview of § 46b-70. I agree that the defendant did not file an appearance in the proceedings leading to the judgment in New York. I would agree with the defendant, however, that his appearances in the Michigan court subsequent to its February 24, 1986 modification order are sufficient to satisfy the requirements of § 46b-70. The defendant appeared through counsel in Michigan in 1986, answered the plaintiffs complaint and filed a motion to set aside the Michigan judgment, which was denied. Then in 1990, the defendant again appeared through counsel and filed a petition for reduction of child support and alimony, which was dismissed.

“General Statutes § 46b-70 defines a foreign matrimonial judgment as ‘any judgment, decree or order of a court of any state in the United States in an action for [divorce or child custody and support] in which both parties have entered an appearance.’ . . . Even a one time special appearance in another state to contest jurisdiction is sufficient to allow enforcement in Connecticut of a judgment subsequently rendered for support arrearages obtained in the other state. . . . The statutory language reflects the intent of the legislature to ensure that both parties have actual notice of an out of state proceeding, and to preclude adoption of foreign judgments obtained by a default in appearance.” (Citations omitted.) Rule v. Rule, 6 Conn. App. 541, 543-44, 506 A.2d 1061, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986). “The term appearance is used [to] designate the overt act by which one against whom suit has been commenced submits himself to the court’s jurisdiction . . . .” (Internal quotation marks omitted.) Id., 544.

In this case, both parties had notice of the Michigan judgment. The defendant submitted himself to the jurisdiction of the Michigan court when he appeared through counsel in connection with the Michigan judgment and sought to vacate that judgment. The defendant in this case clearly intended to submit himself to the court’s jurisdiction by filing a formal appearance in accordance with the Michigan rules of civil procedure and by actively seeking to have the Michigan judgment vacated. I would conclude that the defendant satisfied the requirements of § 46b-70.

The trial court should have heard the plaintiffs motion to dismiss for forum non conveniens. If it is true that the plaintiff is only a temporary resident of Connecticut while she attends law school, and that she maintains a domicile and a permanent residence in Michigan, then I would conclude that Connecticut is an improper forum for this matter. The state of Michigan is the proper forum for the defendant’s motion to modify the Michigan alimony and support orders because that is where the judgment was entered and where the defendant’s child support and alimony arrearages of over $114,000 are due.

I would reverse the judgment of the trial court and remand the case to the trial court to hear the plaintiffs motion for forum non conveniens and for any other action it might deem necessary.

       Pursuant to the New York decree, the plaintiff was awarded $750 per month in alimony. In addition, the defendant was required to pay $750 per month as child support for Monifa Elizabeth Lindo, a child of the marriage, who was born on January 11, 1979.

       While the record discloses no findings of contempt against the defendant, his arrearages as of December 28, 1995, are reported by the Michigan court as being $114,637.15. This figure represents child support arrearages of $73,944.15 and alimony arrearages of $40,693.

       General Statutes § 46b-71 provides: “(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment.
      “(b) Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.”

       General Statutes § 46b-70 provides: “As used in sections 46b-70 to 46b-75, inclusive, ‘foreign matrimonial judgment’ means any judgment, decree or order of a court of any state in the United States in an action for divorce, legal separation, annulment or dissolution of marriage, for the custody, care, education, visitation, maintenance or support of children or for alimony, support or the disposition of property of the parties to an existing or terminated marriage, in which both parties have entered an appearance.”


author: LAVERY, J.

text:
    ROBERT CONSIGLIO v. CAROL CONSIGLIO
    (AC 16704)
    O’Connell, C. J., and Lavery and Landau, Js.

      Submitted on briefs January 27
    officially released May 12, 1998

      Joseph Chiarelli filed a brief for the appellant (plaintiff).

      Marcy Kossar filed a brief for the appellee (defendant).
   Opinion

LAVERY, J.

This is an appeal from a judgment dissolv-

ing the marriage of the parties. The dispositive issue on appeal arises from the trial court’s decision not to recuse himself in this matter. The plaintiff claims that the trial court improperly (1) exercised its discretion and prejudiced him by presiding over the present case when the judge had previously recused himself from all future matters in which the plaintiffs attorney appeared, and (2) admitted hearsay testimony from the defendant. Because our resolution of the first issue is dispositive, it is unnecessary to consider the second issue related to the merits of the dissolution action.

On September 10, 1996, the plaintiffs attorney, Joseph Chiarelli, was at a motions calendar in an unrelated matter. After an exchange with the trial court, Chiarelli orally moved for the judge to recuse himself from hearing any case in which Chiarelli was involved. The trial court granted Chiarelli’s motion and recused himself from all of Chiarelli’s matters “[b]ecause I do not approve of the way you handle yourself.”

On September 30, 1996, the first day of trial in this case, Chiarelli represented the plaintiff before the same court who had recused himself less than three weeks before from hearing any cases involving Chiarelli. At that time, the trial judge informed both parties and counsel that he was hearing this case because he had been instructed to do so by the presiding judge.* Chiarelli reminded the court of the reason he had recused himself and that the court was imposing on his client the needless expense of filing an appeal in this matter before it had even started. The trial judge repeated that he was instructed to proceed with the case and that if Chiarelli had a problem to take it up with the presiding judge.* * Chiarelli went before the presiding judge and requested that she reassign this case to another judge. She denied his request. The trial proceeded and this appeal followed.

The plaintiff claims on appeal that the trial court abused its discretion and prejudiced him by hearing the trial of his case when the trial court previously had recused itself from hearing any case in which the plaintiffs counsel of record had an interest. We agree with the plaintiff.

“No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter. . . . He is a minister of justice. ... He may, of course, take all reasonable steps necessary for the orderly progress of the trial. ... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. A judge should be scrupulous to refrain from hear ing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him. . . . Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982). Moreover, disqualification of a trial judge is not dependent upon proof of actual bias. The appearance and the existence of impartiality are both essential elements of a fair trial. Id. Canon 3 (c) (1) of the Code of Judicial Conduct requires a judge to disqualify himself in any proceeding in which judicial impartiality might reasonably be doubted. Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification.” (Internal quotation marte omitted.) Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986).

“It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’ State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975), quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942).” (Internal quotation marks omitted.) Cameron v. Cameron, supra, 187 Conn. 169.

“[E]very litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of [c]ourts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice. It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, .his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies—purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.” Hayslip v. Douglas, 400 So. 2d 553, 557 (Fla. App. 1981), quoting State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613 (1939).

On the basis of our review of the record, we conclude that a reasonable person who is aware of all the circumstances surrounding this judicial proceeding would question the trial judge’s impartiality in hearing a case in which Chiarelli represented one of the parties. On the first day of trial, the first words from the trial judge were that he had been instructed to hear this case. The subsequent discussion concerning the trial judge’s recusal on matters involving Chiarelli, as well as the discussion on the record with the presiding judge, all created an atmosphere in which the plaintiff could reasonably believe that he was unable to receive a fair trial before the trial judge. Further, the trial judge’s decision to recuse himself from all matters involving Chiarelli was made on September 10, 1996. Three weeks later, the judge sat before the plaintiff, stated that he had been instructed to hear the plaintiffs case, and that he “[does] not allow any feelings that [he] may have for any litigant or for any attorney to affect [his] judicial rulings or decisions, and you arc going to have to accept that.” This can hardly be said to have assuaged the plaintiffs concerns that he is now facing a judge who dislikes his attorney and, therefore, is not impartial.

“Though a client and his counsel are separate entities, they share a common bond forged by the attorney-client relationship and tempered in the rigors of litigation. Most clients find the courtroom to be an unfamiliar and, in some instances, uncomfortable atmosphere and so it is not unusual that they entrust themselves into their counsel’s care and view their interests as one. Thus, it is understandable that a client would become concerned and fearful upon learning that the trial judge has an antipathy toward his lawyer and has expressed the opinion that [he does not approve of the way the client’s counsel handles himself].” Hayslip v. Douglas, supra, 400 So. 2d 557.

When the trial judge decided to recuse himself from all future; matters involving Chiarelli, this should have ended any concern for either Chiarelli or the trial judge over his hearing of cases involving Chiarelli. It was inappropriate for the presiding judge to instruct the trial judge to hear this case. The presiding judge does not have the power to tell a trial judge when he or she may or may not recuse himself or herself. The matter of a judge’s recusal is in the reasonable discretion of that judge and is not to be overruled by a presiding judge. The decision to recuse oneself is an intrinsic part of the independence of a judge. Any attempt to instruct or order a judge to hear a matter after recusal violates the independence of judges individually and the judiciary as a whole.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The following colloquy occurred:
      “[Chiarelli]: Okay, Judge, as I’m sitting here it occurs to me that I should make a motion to disqualify you in the hearing of any case that I’m involved in. You are—
      “The Court: Well, if it occurs to you, are you making that—
      “[Chiarelli]: Well, I’d like to address to you—
      “The Court: Are you malting that motion?
      “[Chiarelli]: I’m malting that motion now, Judge. And the reason is that we had very hard feelings against one another in my recollection while you were practicing law. And I thought that when you got on the bench that your attitude toward me changed. But, now I—
      “The Court: Mr. Chiarelli, from my own—
      “[Chiarelli]: Can I finish, Judge?
      “The Court: Yeah. [For my] own curiosity, would you refer to when that was because you and I didn’t practice the same type of law and unless you were defending malpractice cases I can’t imagine ever having a case with you—
      “[Chiarelli]: No, no, no. No, that isn’t how.
      “The Court: Oh.
      “[Chiarelli]: It was our reaction to one another when we saw one another. And you were associated with Miss Daskal Rubin. Am I correct, Judge? “The Court: That’s correct.
      “[Chiarelli]: Yes. Okay. And I think because of the way you have been so critical of me for nothing here. This woman has come here and complained about nothing. You picked up on it right away. And you started letting me have it for what I think is no cause. So, I think that these hard feelings that you have against me for when I practiced law and when you practiced law at the same time have carried over to while you’re a judge—•
      “The Court: Mr. Chiarelli—
      “[Chiarelli]: Yes, sir.
      “The Court: Did you and I ever have a matter together in all the years that I practiced?
      “[Chiarelli]: I can’t think of one off the top of my head, Judge.
      “The Court: And the reason you can’t is I don’t think we ever did. “[Chiarelli]: Yeah. But, you have a dislike for me and I had a dislike for you. But, I got over my dislike for you. It’s obvious to me that you didn’t get over your dislike for me, making these comments to me. Being critical of what I said to this woman on a telephone answering machine—
      “The Court: Mr.—
      “[Chiarelli]: It seems that you seize on every opportunity to insult me. And I don’t like it and I don’t want to practice law—
      “The Court: And I don’t want you raising your voice in my courtroom, Mr. Chiarelli—
      “[Chiarelli]: Oh, I’m sorry. I’m sorry if I raised my voice. I apologize to you, Judge—

        “The Court: Because in one second I’m going to tell the sheriff to escort you right through that door.
      “[Chiarelli]: Okay—
      “The Court: Now, sit down.
      “[Chiarelli]: Sure, Judge.
      “The Court: And I will tell you that the only thing that is keeping me from doing exactly what you said was that I have some feeling for my brethren.
      “[Chiarelli]: Yes, thank you.
      “The Court: But, I’m going to grant your request.
      “[Chiarelli]: Thank you, Judge.
      “The Court: And I’m going to recuse myself from all of your matters.
      “[Chiarelli]: Okay, thank you very much, Your Honor.
      “The Court: Because I do not approve of the way you handle yourself.”

       The following colloquy occurred:
      “The Court: Are both counsel here?
      “[Counsel for the Defendant]: Yes, Your Honor.
      “The Court: All right. Will both counsel approach the bench. ... I have told you that I am hearing this case because the chief judge has instructed me to hear this case. And the chief judge has further said that she will allow no attorney to dictate who will or will not hear their cases. You and I had a discussion on the record in the Gordon versus Gordon case, the transcript is before me, and in that transcript you made the claim that I was treating you unfairly. At that time I said to you, if you felt that way that I would recuse myself from your cases, and that was the way it was left. I did not hear this case.
      “[Chiarelli]: Can I address what you just said?
      “The Court: Yes.
      “[Chiarelli]: Okay. You said that you didn’t like the way I handled myself and that’s why you disqualified yourself.
      “The Court: Well—
      “[Chiarelli]: It’s on page 19 of the transcript.
      “The Court: On page 19 of the transcript it says—
      “[Chiarelli]: Oh, it’s page 18 then. And then on [page] 19 you say that you will recuse yourself from all my cases.

        “The Court: I did say that. You are absolutely right, I did say that.
      “[Chiarelli]: Thank you, Judge.
      “The Court: I am not contesting the fact that I did say that. But I am telling you now that my instructions are to proceed with this case. And on the record I’m saying to you that I take my judicial responsibilities very seriously, and I do not allow any feelings that I may have for any litigant or for any attorney to affect my judicial rulings or decisions, and you are going to have to accept that.”

       The trial judge stated: “Mr. Chiarelli, the only thing that I would suggest to you is that if you are unhappy and refuse to go along with what I have just told you, that you go down to the [presiding judge] and you see [the presiding judge] and tell her exactly that.”

       “[Presiding Judge]: On the Consiglio matter, the question is the assignment of the case, and whether [the trial judge] is—well, first of all whether the parties are ready to proceed, and I gather they are, and whether [the trial judge] has determined that he can hear this case, and he, as I understand it, has determined he can hear this case, that he can be fair to both counsel, to all parties involved. He has no particular knowledge of the case, and there’s no other judge available, and the matter’s referred to [the trial judge].
      “[Chiarelli]: Judge—Excuse me, Judge. I didn’t mean to interrupt you.
      “[Presiding Judge]: That’s okay.
      “[Chiarelli]: Did you read the transcript where he disqualified himself?
      “[Presiding Judge]: I did, and I understand he has rethought that, and he does not consider himself a candidate for recusal, and the matter’s going to proceed in front of [the trial judge]. So, go try the case in front of [the trial judge].
      “[Chiarelli]: Can I present my argument to you that I presented to [the trial judge] about—
      “[Presiding Judge]: No. No. You cannot. The matter’s assigned. We don’t allow lawyers or clients or anybody else to choose what judge they’re going to try cases in front of. The matter’s referred to [the trial judge].”

       Canon 3 (c) (1) ol' the Code of Judicial Conduct provides: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
      “(A) the judge has a personal bias or prejudice concerning a party . . . .”


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. HOPETON LEE MEDLEY
    (AC 16456)
    Spear, Dupont and Spallone, Js.
    Argued February 20
    officially released May 12, 1998

      Brian S. Carlow, senior assistant public defender, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecilia Wiederhold, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant appeals from the trial court’s judgment modifying the terms of his probation. The sole question in this appeal is whether the trial court properly exercised its discretionary power when it enlarged the defendant’s conditions of probation to prohibit all contact between the defendant and the victim. We affirm the judgment of the trial court.

In October, 1994, the defendant and the victim had been involved with each other for about nine months. On October 24, 1994, during a domestic dispute that occurred at the victim’s residence, the defendant struck the victim in the face, head and side with a hammer and a knife. The victim sustained serious injuries to her head requiring the insertion of five surgical staples in her scalp to close the wound. The defendant raped her during the attack and attempted to force her to perform fellatio. The defendant was arrested and, after a full protective order was issued, was released on bond.

On December 27, 1994, while the October charges were pending, the defendant broke into the victim’s home while she was out with a female friend. When the victim and her friend arrived home with their four children, the defendant confronted the victim and threatened her with a gun in the presence of her friend and their children. When the victim attempted to leave the apartment, the defendant prevented her. He threatened the victim again when she stated that she would call the police. Meanwhile, the victim’s friend was able to leave the apartment and call the police. The police arrived as the defendant, still threatening the victim with a gun, attempted to pull her into another room.

On December 14, 1995, the defendant pleaded guilty under the Alford doctrine to charges of assault in the first degree and burglary in the first degree and was sentenced on February 2,1996, to a total term of imprisonment of eight years, suspended after thirteen months, followed by three years of probation. The defendant was given credit for presentence incarceration and released. The terms of his probation were as follows: “(1) domestic violence counseling—nonviolence program or similar—cooperation with program; (2) substance abuse counseling; (3) graduate equivalency diploma or efforts thereto; (4) nonviolence with the victim; and (5) no weapons of any kind that would require a permit.”

On April 24,1996, the defendant reported to his probation officer. At that meeting, the probation officer observed deep scratches on the defendant’s head and face, which the defendant alleged were inflicted by the victim. The defendant further stated that he did not retaliate against the victim for these injuries. There is no indication in the record that the victim was arrested or prosecuted for the alleged assault on the defendant.

On July 5, 1996, because of the “ongoing violence” in the relationship between the victim and the defendant, the office of adult probation filed a motion to modify the special conditions of the defendant’s probation to include a condition of no contact between the defendant and the victim. On July 25,1996, after hearing the motion, the court expanded the special conditions of probation by including a restriction from any contact with the victim. The condition of probation of “nonviolence with the victim” remained as a condition.

By memorandum of decision dated July 11, 1997, the court articulated its July 25, 1996 decision, finding that good cause existed for granting the requested modification. The court referred to the transcript of the July 25, 1996 hearing as the basis of its decision. The court also expressly stated that it relied on General Statutes § 53a-30 (c) and State v. Smith, 207 Conn. 152, 168-70, 540 A.2d 679 (1988), in arriving at its decision. The court clearly has the power to modify and enlarge the conditions of probation originally imposed on the defendant.

In State v. Smith, supra, 207 Conn. 152, our Supreme Court held that in modifying or expanding the conditions of probation to serve the ends of justice, the court’s objective must be to impose special conditions that foster the offender’s reformation as well as preserve the public’s safety. “The broad power to impose conditions ‘permits insulating the individual from the conditions that led him into trouble.’ United States v. Moore, 486 F.2d 1139, 1174 (D.C. Cir.), cert. denied, 414 U.S. 980, 94 S. Ct. 298, 38 L. Ed. 2d 224 (1973).” State v. Smith, supra, 175. The trial court therefore has broad discretion to modify or enlarge the conditions of probation, for good cause shown, at any time during the period of probation.

The appropriate standard of review of a trial court’s actions is whether the trial court abused its discretion. State v. Smith, 200 Conn. 544, 548, 512 A.2d 884 (1986). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Vil-lano, 33 Conn. App. 162, 170, 634 A.2d 907 (1993), remanded for reconsideration, 229 Conn. 916, 642 A.2d 1212, reversed on other grounds, 35 Conn. App 520, 646 A.2d 915 (1994). There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice. See 5 Am. Jur. 2d, Appellate Review § 695 (1995).

In this case, the contacts between the parties have, on more than one occasion, resulted in felonious violence. Whether the violence was initiated by the defendant is not the controlling factor in restricting a probationer from any contact with a potential victim. Restrictions on association with a particular individual have been routinely upheld in other jurisdictions as reasonable where a victim or potential victim of the defendant was involved. See annot., Probation Conditions — Personal Associations, 99 A.L.R.3d 967 (1980). In this case, the long history of violence and the manifest propensity of the defendant to commit violence fully justifies the imposition of the added condition of probation ordering no contact between the defendant and the victim.

Accordingly, after a review of the record, transcripts and briefs, we hold that the trial court, under the facts and circumstances of this case, exercised its discretion properly, lawfully and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 53a-30 (c) provides in relevant part: “At any time during Hie period of probation . . . after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court ... or otherwise . . . .”


author: DALY, J.

text:
    BRIDGEPORT FIREFIGHTERS ASSOCIATION, IAFF, LOCAL 834 v. CITY OF BRIDGEPORT ET AL.
    (AC 16765)
    Lavery, Dupont and Daly, Js.
    Argued January 23
    officially released May 12, 1998

      J. William Gagne, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellant (plaintiff).

      John P. Bohannon, Jr., associate city attorney, for the appellees (defendants).
   Opinion

DALY, J.

The plaintiff, Bridgeport Firefighters Association, IAFF, Local 834 (union), appeals from the decision of the trial court denying the union’s application to vacate the second arbitration panel’s award. The union claims that the trial court improperly refused to vacate the award on the ground that the second panel failed to conform to the requirements of General Statutes § 7-473c (d) (l). The sole issue in this appeal is whether each member of the second panel failed to state the specific reasons and standards used in making his choice on each unresolved issue, thereby exceeding the second panel’s powers or so imperfectly executing them that a final and definite award was not made.

The following relevant facts are not in dispute. The union and the city of Bridgeport were parties to a collective bargaining agreement that expired on June 30,1992. The parties’ efforts to negotiate a new agreement were unsuccessful and binding arbitration was imposed. See General Statutes § 7-473c (b).

On December 30,1994, a first arbitration panel issued a written award that was rejected by the city on January 25, 1995. Subsequently, a second arbitration panel was appointed, which issued a second award on March 11, 1995.

Thirty issues were presented to the panel, which stated in its report: “Each member of the panel has reviewed the record of the evidence presented to the first panel, the City’s statement of reasons for rejection of the award and the Union’s response. . . . The panel discussed the record and written responses and arrived at the hereafter set out Award, applying the criteria of subdivision (2) of Section 7-473c (d) of the Connecticut General Statutes, which reads as follows: ‘In arriving at a decision the arbitration panel shall give priority to the public interest and the financial capability of the municipal employer, including consideration of other demands on the financial capability of the municipal employer. The panel shall further consider the following factors in light of such financial capability: (A) The negotiations between the parties prior to arbitration; (B) the interests and welfare of the employee group; (C) changes in the cost of living; (D) the existing conditions of employment of the employee group and those of similar groups; and (E) the wages, salaries, fringe benefits, and other conditions of employment prevailing in the labor market, including developments in private sector wages and benefits.’

uThe decisions on the individual issues hereinafter set out are the decisions agreed to by all members of the panel. The specific reasons given and standards used in said decisions are adopted, by all members of the panel.” (Emphasis added.)

Each issue determination concluded with a statement in the report: “Based on a preponderance of the evidence submitted by the parties and giving priority to the public interest and financial capability of the City, and considering the other statutory factors in light of the financial capability of the City of Bridgeport and the public interest, the offer of the [city or union] is awarded by the arbitration panel.”

On April 10, 1995, the union filed an application to vacate the second award on the ground that the second panel failed to comply with the mandates of § 7-473c (d) (1). The union claimed that the second panel exceeded its powers or so imperfectly executed them that it did not conform to the statutory requirements and that one panel member was partial. The trial court denied the union’s application and this appeal followed.

“Arbitration is favored by courts as a means of settling differences and expediting the resolution of disputes. . . . There is no question that arbitration awards are generally upheld and that we give great deference to an arbitrator’s decision since arbitration is favored as a means of settling disputes. . . . The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties’ agreement will the determination of an arbitrator be subject to judicial inquiry.” (Citations omitted; internal quotation marks omitted.) Vincent Builders, Inc. v. American Application Systems, Inc., 16 Conn. App. 486, 488, 547 A.2d 1381 (1988), cert. denied, 210 Conn. 809, 556 A.2d 608 (1989).

“A fundamental tenet of statutory construction is that statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature’s intent and there is no need to look further for interpretive guidance. . . . Where there is ambiguity in the statute, however, we ascertain the actual intent by looking to the language of the statute itself, its legislative history, the circumstances surrounding its enactment and its purpose.” (Citations omitted; internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 309-10, 592 A.2d 953 (1991). “ ‘The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise.’ ” Chavez v. Administrator, Unemployment Compensation Act, 39 Conn. App. 441, 443, 664 A.2d 825 (1995).

“Other equally compelling principles of statutory construction, however, require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. ... If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable.” (Citations omitted.) Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991).

In the present case, it is not a rational interpretation of the statute to require each panel member to set forth the specific reasons and standards used in making his choice on all thirty issues where the report from the panel indicates that the specific reasons given and standards used were agreed to by all members of the panel. To have each member set forth his views individually is not a rational requirement if the same result can be accomplished by reporting what all the members agreed to, rather than setting them forth individually. It would be unreasonable to require each panel member to set forth his views even when his views are consistent with those of his colleagues. We hold that the award complied with § 7-473c (d) (1).

We conclude that the trial court properly refused to vacate the arbitration award.

The judgment is affirmed.

In this opinion the other judges concurred.

       A first arbitration panel issued a written award that was rejected by the city. Subsequently, a second arbitration panel was appointed, which issued a second award.

       General Statutes § 7-473c (d) (1) provides in relevant part: “[E]ach member shall state the specific reasons and standards used in making his choice on each unresolved issue. . . .”

       General Statutes § 52-418 (a) provides in relevantpart: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”