author: LAYINE, J.

text:
    CONSERVATION COMMISSION OF THE TOWN OF FAIRFIELD v. RED 11, LLC
    (AC 32720)
    Lavine, Espinosa and Flynn, Js.

      Argued January 9 —
    officially released May 29, 2012

      J. Christopher Rooney, with whom, on the brief, was Anne D. Peterson, for the appellant (defendant).

      Edward V. O’Hanlan, with whom was Thomas J. Donlon, for the appellee (intervening plaintiff Wilmington Trust Company).
   Opinion

LAYINE, J.

The principal issue in this appeal is whether the intervening plaintiff, Wilmington Trust Company (Wilmington), properly was awarded attorney’s fees under General Statutes § 22a-44 (b) of the Inland Wetlands and Watercourses Act (wetlands act), which provides in relevant part that reasonable attorney’s fees may be awarded to the “person which brought such action. . . .” The defendant, Red 11, LLC, doing business as Twin Oak Farms, appeals from the judgment of the trial court awarding Wilmington attorney’s fees. On appeal, the defendant claims that the trial court (1) improperly concluded that § 22a-44 (b) authorizes the award of attorney’s fees to Wilmington and (2) abused its discretion in awarding Wilmington $391,967.80 in attorney’s fees. We conclude that under the circumstances of this case, Wilmington “brought the action” and, thus, properly was awarded attorney’s fees. We also conclude that the amount of attorney’s fees awarded was not an abuse of discretion. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On May 11, 2001, Salvatore K. DiNardo purchased an eighteen acre parcel of land (parcel) located at 1159 Redding Road in Fairfield. DiNardo subsequently conveyed title to the defendant, a limited liability company of which he is the managing member. In connection with an application for a proposed subdivision submitted by a previous owner of the parcel, the conservation commission of the town of Fairfield (commission) discovered that the parcel contained three distinct wetlands and watercourse areas. Shortly after the defendant obtained title to the parcel, it “began the systematic elimination of all . . . the protected wetlands . . . .”

Wilmington serves as trustee of the Henry D. Dupont III Marital Trust and, in that capacity, owns approximately 100 acres of land (property) downstream from the defendant’s parcel. In 2002, a Wilmington property manager noticed intermittent flooding and sedimentation, which was eroding the creeks located on the property and damaging wooden bridges. Consequently, Wilmington had to close parts of the property to the public.

On July 2, 2003, the commission issued a cease and desist order to the defendant, alleging that it had violated Fairfield regulations by filling, piping, draining and excavating regulated wetlands and watercourses without obtaining a permit. Red 11, LLC v. Conservation Commission, 117 Conn. App. 630, 635, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009). The order also alleged that the defendant, contrary to an earlier agreement between the defendant and the commission, had denied the commission access to the parcel and, as a result, the commission was forced to observe the parcel from adjacent properties and by helicopter surveillance. Id. On August 7, 2003, Wilmington filed a petition, pursuant to General Statutes § 22a-19 (a) of the Connecticut Environmental Protection Act (CEPA), to intervene in the administrative proceedings regarding the order. The commission granted Wilmington’s petition.

On June 16, 2004, the commission issued another cease and desist order alleging violations in addition to those listed in its previous order. Id., 636. The commission again permitted Wilmington to intervene in the administrative proceedings regarding this order. The defendant appealed to the Superior Court from the cease and desist orders. Id., 636-37. Wilmington also successfully intervened in the appeals.

On August 5, 2004, the commission filed a verified complaint seeking a temporary and permanent injunction prohibiting the defendant from undertaking further construction activities and engaging in further violations of regulations. Conservation Commission v. Red 11, LLC, 119 Conn. App. 377, 383, 987 A.2d 398, cert. denied, 295 Conn. 924, 991 A.2d 566 (2010). Twenty-one days later, on August 26, 2004, Wilmington filed a “Motion to Intervene as a Party-Plaintiff,” which stated that it sought to be “named a party-plaintiff’ pursuant to Practice Book § 9-18. The motion additionally stated that Wilmington’s “interest is particularly significant because of its status as a downstream property owner, which property has already been affected and will continue to be affected if [the defendant] is allowed to continue the predations that are the subject of this civil action”; that the controversy “cannot be heard in fairness to all interested parties, unless [Wilmington] is allowed to participate as a party-plaintiff’; that Practice Book § 9-18 “clearly gives the [c]ourt the discretion to bring into the case a party which has an interest that would be affected by the action”; and that “there will be no prejudice to [the defendant] by the fact that [Wilmington] has been joined as a party-plaintiff.” Wilmington also attached, as an exhibit to this motion, its petition to intervene in administrative proceedings pursuant to CEPA, filed on August 7, 2003. The defendant did not object to Wilmington’s motion, and the trial court granted it on August 30, 2004.

On August 15, 2006, the commission and Wilmington jointly filed an amended complaint containing four counts. Conservation Commission v. Red 11, LLC, supra, 119 Conn. App. 383. The first count was alleged by the commission alone and repeated the allegations contained in the original complaint, namely, that the defendant had been conducting activities on the parcel that disrupted and destroyed wetlands and continually violated the cease and desist orders. The remaining counts were alleged by Wilmington alone. Id. Count two alleged violations of the wetlands act, count three alleged violations of CEPA and count four alleged a common-law trespass claim. Id., 383 n.1.

The trial court consolidated the appeals from the cease and desist orders with the injunction action and issued four memoranda of decision on April 4,2007. The court dismissed the defendant’s administrative appeals, concluding that “regulated activities, such as the filling, draining and piping of the wetlands and watercourses had occurred on the [parcel] without a required permit” and that “these activities did not fall within the farming exception set forth in [General Statutes] § 22a-40 and § 4.1 of the Fairfield regulations.” Red 11, LLC v. Conservation Commission, supra, 117 Conn. App. 637. Regarding the injunction action, the court “imposed a temporary injunction prohibiting the defendant from any further construction activities at 1159 Redding Road and from any further violations of the General Statutes or the Fairfield regulations. It also ordered that a subsequent evidentiary hearing would be held to determine the restoration of the site, civil penalties, costs, fees, expenses and attorney’s fees.” Conservation Commission v. Red 11, LLC, supra, 119 Conn. App. 383-84.

On July 25,2008, following a hearing, the court issued another memorandum of decision imposing a permanent injunction, ordering restoration of the parcel and awarding civil penalties of $25,000. Id., 384. The court additionally stated that it would award the commission and Wilmington reasonable attorney’s fees under § 22a-44 (b) of the wetlands act in an amount to be determined following a hearing. Id. On July 24, 2009, Wilmington filed a motion for attorney’s fees and costs seeking $426,437.79 along with an affidavit from its lead counsel explaining the amount requested. The court held hearings on March 26, 2010, and April 30, 2010. On August 27, 2010, the court issued a detailed memorandum of decision awarding Wilmington the $426,437.79 in fees and costs it requested under § 22a-44 (b), of which $391,967.80 are attorney’s fees. See footnote 2 of this opinion. This appeal followed.

I

The defendant first claims that the court improperly awarded Wilmington attorney’s fees under the wetlands act because (1) Wilmington intervened pursuant to CEPA, not the wetlands act, and (2) the commission, rather than Wilmington, filed the original complaint, and, thus, Wilmington was not the entity that “brought such action” under § 22a-44 (b). We disagree.

A

Preliminarily, we address whether Wilmington intervened in the injunction action pursuant to CEPA. The defendant argues that Wilmington intervened pursuant to § 22a-19 (a) of CEPA and, as such, any attorney’s fees award should have been under General Statutes § 22a-18 (e). The defendant contends that because the court awarded Wilmington attorney’s fees under the wetlands act, the award was in error. Wilmington argues that it did not intervene pursuant to CEPA; rather, as demonstrated by the text of the motion, it intervened “as a party-plaintiff’ pursuant to Practice Book § 9-18. Wilmington explains that it merely attached, as an exhibit, its earlier petition to intervene in administrative proceedings pursuant to CEPA “[a]s an indication of its long-standing interest in the dispute over [the defendant’s] destruction of wetlands . . . .” The defendant’s argument is not persuasive.

“It is the substance of a motion . . . that governs its outcome . . . .” State v. Taylor, 91 Conn. App. 788, 792, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). Therefore, in order to determine the effect of the court’s granting of Wilmington’s motion to intervene, we briefly explain the differences between full intervention pursuant to Practice Book § 9-18 and limited intervention pursuant to CEPA. Practice Book § 9-18 provides: “The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority on its motion, shall direct that person to be made aparty.” Section 9-18, which contains virtually the same language as General Statutes § 52-107; Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 137 n.5, 139 n.7, 758 A.2d 916 (2000); “applies to intervention as of right . . . .” Id., 138. “Two of the four criteria” for intervention as of right, “namely the direct and substantial interest in the subject matter, and the impairment to the movant’s interest if he or she is not involved in the case are, in essence, equivalent to the test for aggrievement.” Id., 145; see also Horton v. Meskill, 187 Conn. 187, 195, 445 A.2d 579 (1982). Thus, “[i]mplicit in the granting of a motion to intervene is the determination that the party has a right which could be adversely affected and that his interest is presently not adequately protected.” Johnson v. Ivimey, 3 Conn. App. 392, 395, 488 A. 2d 1275, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985).

Moreover, “[a] successful intervenor is typically granted status as a party plaintiff or a party defendant.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 152. A court also “has the authority [however] to grant intervention limited to particular issues, and such limited intervention is not intended to allow enjoyment of all the prerogatives of a party litigant.” Id. Intervention pursuant to § 22a-19 (a) of CEPA is one example of such limited intervention. Unlike intervention pursuant to Practice Book § 9-18, § 22a-19 “authorizes any citizen or other entity, without having to first establish aggrievement, to intervene in an existing proceeding”; Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 593, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000); “for the limited purpose of raising environmental issues”; (internal quotation marks omitted) Pathways, Inc. v. Planning & Zoning Commission, 259 Conn. 619, 624, 793 A.2d 222 (2002); see also Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 714-15, 563 A.2d 1339 (1989).

We conclude that the court granted Wilmington intervention as a full party plaintiff pursuant to Practice Book § 9-18 and not CEPA because Wilmington’s motion explicitly relied on Practice Book § 9-18 and addressed the requirements of intervention as of right. We agree with Wilmington that attaching its previous petition to intervene in administrative proceedings pursuant to § 22a-19 did not somehow transmogrify the motion into one seeking limited intervention pursuant to CEPA.

B

We next address the defendant’s claim that Wilmington was not the entity that “brought” the action and, thus, the court was not authorized to award it attorney’s fees under § 22a-44 (b) of the wetlands act. We reject the defendant’s inteipretation of the relevant statutory language.

Section 22a-44 (b) of the wetlands act provides in relevant part: “The Superior Court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of . . . sections [22a-36 to 22a-45], to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. . . .” (Emphasis added.)

The defendant argues that § 22a-44 (b) authorizes the award of attorney’s fees only to the entity that originally initiated the action, and that because Wilmington intervened three weeks after the commission commenced the action on August 5, 2004, Wilmington may not be awarded attorney’s fees. We reject the contention that the phrase “person which brought such action” in § 22a-44 (b) is synonymous with the phrase “person which initiated such action.” Rather, we conclude that Wilmington “brought such action” in accordance with § 22a-44 (b) because it intervened as of right as a full party to the action.

Whether § 22a-44 (b) authorizes the award of attorney’s fees to Wilmington presents a question of statutory construction, over which our review is plenary. See Fennelly v. Norton, 294 Conn. 484, 492, 985 A.2d 1026 (2010). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. ... In addition, common sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Citation omitted; internal quotation marks omitted.) Komondy v. Zoning Board of Appeals, 127 Conn. App. 669, 676, 16 A.3d 741 (2011). “When a statute is not plain and unambiguous, we also look for interpretative guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 301 Conn. 323, 338, 21 A.3d 737 (2011).

“[T]he common law rule in Connecticut, also known as the American Rule, is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . Because we must respect the legislative prerogative of choosing the special circumstances under which [attorney’s fees] awards may be made . . . we require a clear expression of the legislature’s intent to create a statutory exception [to the rule].” (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 695, 945 A.2d 464 (2008). This clear statement rule applies not only to the question of whether a statute authorizes attorney’s fees in general, but “it also applies when the legislature clearly has authorized the court to award attorney’s fees but . . . the statute is ambiguous as to whether a particular entity is entitled to such an award.” Id.

As directed by § l-2z, we first conclude that § 22a-44 (b) is not plain and unambiguous. Although in some contexts the phrase “brought an action” is used to mean “commenced” an action; see, e.g., Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004) (“there is no substantive distinction between the terms ‘bringing’ an action and ‘commencing’ an action” for purposes of statutes of limitation and accidental failure of suit statute); it also has been used in other contexts to mean “prosecute” or “continue” an action; see, e.g., Curtis v. County of Los Angeles, 172 Cal. App. 3d 1243, 1247-52, 218 Cal. Rptr. 772 (1985); id., 1252 (“the word ‘brought’ encompasses not only the filing of an action, but also its continued maintenance” for purposes of statute providing attorney’s fees if an entity “brought aproceed-ing” without reasonable cause and not in good faith [emphasis in original]). Connecticut appellate courts have recognized that the same statutory term may have different meanings in different contexts. See, e.g., Gipson v. Commissioner of Correction, 257 Conn. 632, 641, 778 A.2d 121 (2001) (“the word action may have different meanings in different contexts” [internal quotation marks omitted]); Mac’s Car City, Inc. v. DiLoreto, 238 Conn. 172, 177, 679 A.2d 340 (1996) (“[o]ur case law has repeatedly recognized that the term final judgment may have different meanings in different contexts” [internal quotation marks omitted]). We therefore conclude that the phrase “brought such action” is susceptible to more than one reasonable interpretation and that, accordingly, we may consider the legislative history and policy of the statute in seeking to understand its meaning. See Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 15, 12 A.3d 865 (2011) (noting “the relatively low threshold necessary to establish ambiguity for purposes of statutory interpretation, namely, the existence of more than one ‘reasonable’ reading for the statute”).

Having concluded that the statute is not plain and unambiguous, we next address the parties’ arguments in support of their interpretations with the aid of the full array of statutory construction tools. The defendant argues that the phrase “brought such action” in § 22a-44 (b) should be interpreted to mean “initiated the action” in light of the comparable attorney’s fees provision of CEPA, § 22a-18 (e), which provides that a court may award attorney’s fees to a person who “maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19 . . . .” (Emphasis added.) See State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009) (“[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed” [internal quotation marks omitted]). Just as the phrase “brought an action” sometimes is deemed to be the equivalent of the phrase “commenced an action,” so, too, is the phrase “maintain an action.” For example, General Statutes § 22a-16 of CEPA, upon which the attorney’s fees provision of CEPA, § 22a-18 (e), is based, provides in relevant part that “any person . . . may maintain an action . . . for declaratory and equitable relief . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . .” This court has explained that § 22a-16 provides a private right of action that “authorizes any citizen or organization . . . to initiate a declaratory or injunctive action to protect the public trust. . . . Section 22a-16 allows the initiation of declaratory or injunctive actions to challenge an environmental harm . . . .” (Citation omitted; emphasis added.) Hyllen-Davey v. Plan & Zoning Commission, supra, 57 Conn. App. 593-94; see also PolyPak Corp. of America v. Barrett, 1 Conn. App. 99, 103, 468 A.2d 1260 (1983) (“[plaintiff] ... is barred by [General Statutes § 33-412, now § 33-921] from maintaining this action and is thus not entitled ‘to set the machinery of the courts in operation’ ”). The attorney’s fees provisions of both CEPA and the wetlands act simply track the statutory language providing the private rights of action, which language generally is treated the same as “commence” or “initiate” an action. Therefore, we do not find that the difference between “maintain an action” and “brought such action” supports the defendant’s construction.

Section 22a-18 (e) additionally provides that courts may award an entity that “intervenes as a party in an action for judicial review under section 22a-19” attorney’s fees. We also do not find the absence of similar language in § 22a-44 to be dispositive in fight of the difference between full party intervenors and limited intervenors pursuant to CEPA. See part IA of this opinion. The limited status of environmental intervenors pursuant to CEPA — intervenors who are not entitled to enjoy “all the prerogatives of a party litigant”; Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 152; but, rather, are “strictly limited to the raising of environmental issues” and may not recover damages; Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 45, 526 A.2d 1329 (1987) — may explain why the legislature specifically included them in § 22a-18 as an entity that may be awarded attorney’s fees. Additionally, CEPA itself grants a special form of intervention, whereas the wetlands act does not. Thus, it is reasonable that the legislature would track the CEPA intervention language in the CEPA attorney’s fees provision but not include general intervention language in the wetlands act attorney’s fees provision.

The defendant also suggests that its construction is reasonable because the legislature likely intended that attorney’s fees be awardable only to municipalities, which are tasked with enforcement of the wetlands act. The defendant, however, fails to provide any support for this contention. Contrary to the defendant’s contention, our Supreme Court, in Windels v. Environmental Protection Commission, 284 Conn. 268, 297, 933 A.2d 256 (2007), held that § 22a-44 (b) confers a private right of action. Moreover, the public interest in protecting wetlands and watercourses; see General Statutes § 22a-36; coupled with the attorney’s fees provision, is consistent with the concept of the “private attorney general” who pursues litigation that has the effect of vindicating the public interest. See Hernandez v. Monterey Village Associates Ltd. Partnership, 17 Conn. App. 421, 425-26, 553 A.2d 617 (1989). Attorney’s fees provisions “provide an incentive for these ‘private attorney generals’ to take on the burden of vindicating the public interest . . . by providing a mechanism to compensate them for the costs of doing so.” Commissioner of Environmental Protection v. Mellon, supra, 286 Conn. 696.

The defendant next argues that because private entities already are entitled to intervene and seek attorney’s fees pursuant to CEPA, the legislature did not “need to give intervenors rights under § 22a-44 (b).” This argument is unavailing. First, as discussed, full party interve-nors are in a posture fundamentally different from that of environmental intervenors pursuant to CEPA. Second, CEPA and the wetlands act provide different forms of relief. See Windels v. Environmental Protection Commission, supra, 284 Conn. 299 (“§ 22a-44 (b) provides for specific remedies, such as . . . the imposition of civil penalties that are not available under CEPA”); see also id., 301 (‘“permitting claims’ ” available to private parties under the wetlands act); Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 134-38, 836 A.2d 414 (2003) (permitting claims not available to private parties under CEPA). The fact that attorney’s fees are available to environmental intervenors under CEPA in no way supports the argument that attorney’s fees are unnecessary for full party intervenors like Wilmington under the wetlands act.

Finally, the defendant argues that awarding interve-nors attorney’s fees would encourage “frivolous intervention” by unscrupulous attorneys who would run up litigation costs and “turn [intervenor status] into a means of profiting.” The wetlands act, however, does not grant a special form of intervention. Thus, unlike intervention pursuant to CEPA, any entity seeking to intervene and recover attorney’s fees under the wetlands act would have to satisfy the requirements of either permissive or as of right intervention, both of which take into account the entity’s interest in the controversy and necessarily limit the types of entities that may successfully intervene. See Horton v. Meskill, supra, 187 Conn. 195-97. Stated simply, a trial court retains the right to deny a motion to intervene if it sees fit. Additionally, as discussed in part II of this opinion, a trial court has considerable discretion in fixing the amount of attorney’s fees and weighs a number of factors intended to limit the fees to an amount that is reasonable. If a court suspects that counsel have run up unreasonable or unjustifiable fees, it can refuse to award them. The defendant’s argument that attorneys would gratuitously intrude themselves into ongoing wetlands cases to amass large sums of undeserved legal fees is therefore unfounded.

For a number of reasons, we agree with Wilmington that because it was made a full party to the action by intervening pursuant to Practice Book § 9-18; see part I A of this opinion; at that point it became “a person who brought such action.” First, although the legislative history provides little guidance, the general purpose of the wetlands act and the attorney’s fees provision comports with our approach. As this court noted in Red 11, LLC v. Conservation Commission, supra, 117 Conn. App. 639, “the broad legislative objectives underlying the [act] are in part to protect the citizens of the state by making provisions for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . .” (Internal quotation marks omitted.) See General Statutes § 22a-36 (legislative findings explaining importance of protecting wetlands and watercourses). “Our Supreme Court has described the purpose underlying the act as remedial. Windels v. Environmental Protection Commission, [supra, 284 Conn. 297-98]; see also R. Fuller, 9 Connecticut Practice Series: Land Use Law arid Practice (3d Ed. 2007) § 11:1, p. 331 (‘[t]he net effect . . . has been that the wetlands statutes have been liberally construed’).” Red 11, LLC v. Conservation Commission, supra, 639. This court also has explained that the wetlands act attorney’s fees provision has “ameliorative purposes”; Conservation Commission v. Price, 5 Conn. App. 70, 74, 496 A.2d 982 (1985); and that, in permitting courts to award costs and fees, the legislature intended “to place the financial burden of restoration upon the violator.” Id., 75.

Second, this approach encourages judicial economy. Because Wilmington personally was aggrieved by the defendant’s actions, it presumably could have filed a separate action under § 22a-44 (b) of the wetlands act. See Windels v. Environmental Protection Commission, supra, 284 Conn. 297, 302-303. Under the defendant’s reasoning, Wilmington could have been awarded attorney’s fees in this scenario even if the two actions were consolidated; see Practice Book § 9-5; because each entity filed an original complaint. Therefore, denying Wilmington attorney’s fees because it decided to intervene as a full party rather than commence a separate action exalts form over substance and would result in additional work for the judiciary and needless delay. Prospective intervenors would forgo intervening in existing actions and opt instead to commence separate actions in the hope of obtaining attorney’s fees. See Wilder v. Bernstein, 965 F.2d 1196, 1202 (2d Cir.), cert. denied sub nom. Administrator, New York City Dept. of Human Resources v. Abbott House, 506 U.S. 954, 113 S. Ct. 410, 121 L. Ed. 2d 335 (1992). Encouraging such conduct makes little sense.

Third, but by no means last, an unduly strict interpretation of the phrase “brought such action” would lead to absurd results. Under the defendant’s construction, if a town initiates an action on day one, an entity like Wilmington intervenes as of right on day two, the town withdraws from the case on day three and for the next ten years the intervenor pursues the litigation alone, the trial court would be forbidden from awarding the intervenor any attorney’s fees. Such an approach would be contrary to the principle that “statutes should be interpreted so as to conform to common sense, rather than so as to violate it.” Commission on Human Rights & Opportunities v. Housing Authority, 117 Conn. App. 30, 46, 978 A.2d 136 (2009), appeal dismissed, 302 Conn. 158, 24 A.3d 596 (2011). The legislature could not have intended such a result.

In light of the foregoing, we conclude that the legislature intended to authorize trial courts to award attorney’s fees to entities such as Wilmington and that § 22a-44 (b) satisfies the requirement that the legislature clearly express its intent in this regard. We reach this conclusion because Wilmington intervened as of right and became a full party plaintiff with “all the prerogatives of a party litigant.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 152. Therefore, we conclude that it “brought such action” in accordance with § 22a-44 (b) and that the court was authorized to award it attorney’s fees.

II

The defendant’s second claim is that the court abused its discretion in awarding Wilmington the $391,967.80 in attorney’s fees that it requested. Specifically, the defendant contends that the court’s award of fees approximately six times larger than the fees awarded to the commission “is on its face unreasonable.” The defendant also argues that the court failed to analyze properly the fees requested in accordance with the required reasonableness factors. We disagree.

We review the reasonableness of the court’s award of attorney’s fees under the abuse of discretion standard. See Conservation Commission v. Price, supra, 5 Conn. App. 75. “Under the abuse of discretion standard of review, [w] e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of [the amount of attorney’s fees awarded] is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion it did.” (Internal quotation marks omitted.) Land Group, Inc. v. Palmieri, 123 Conn. App. 84, 98, 1 A.3d 234 (2010). “A court has few duties of a more delicate nature than that of fixing counsel fees. The issue grows even more delicate on appeal . . . for the trial court is in the best position to evaluate the circumstances of each case.” (Internal quotation marks omitted.) LaMontagne v. Musano, Inc., 61 Conn. App. 60, 64, 762 A.2d 508 (2000).

“[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. . . . The courts may then adjust this lodestar calculation by other factors. . . . For guidance in adjusting attorney’s fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 715, 717-19 (5th Cir. 1974). The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.” (Citation omitted; internal quotation marks omitted.) Ernst v. Deere & Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005).

Following the Johnson framework, the court in this case, in its detailed memorandum of decision, made an initial estimate that both the hourly rate paid to Wilmington’s counsel and the hours submitted “were reasonable based on the complexity of the litigation involved.” The court relied on the expert testimony of Frederick S. Ury, a former president of the Connecticut Bar Association and an attorney “familiar with the hourly rates that are charged in Fairfield County for the present type of litigation.” Ury reviewed the hourly rates submitted by Wilmington’s counsel and “found them to be reasonable and within the hourly rates normally charged by other larger firms in the county who could have been hired by [Wilmington] to handle this type of litigation.” The court also relied on its “general knowledge of what would be reasonable compensation for services ... in this case” and its “having had the opportunity of presiding over this litigation for seven years . . . .” See Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004) (“[c]ourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees” [internal quotation marks omitted]). The court then analyzed all of the Johnson factors and determined that the factors did not justify a reduction of its initial lodestar calculation. In particular, regarding the magnitude of the case and the results obtained, the court stated that “[t]he plaintiffs were able to successfully obtain a permanent injunction prohibiting the defendant from any further damage” and “will be reimbursed the extensive economic costs of this litigation, which has resulted in the restoration of a functional and valuable natural resource for the state of Connecticut and the citizens of Fairfield.” See Conservation Commission v. Price, supra, 5 Conn. App. 74. Moreover, contrary to the defendant’s argument that the court ignored its analysis of Wilmington’s fees request, the court specifically stated that it reviewed “the defendant’s objections.”

The defendant provides no legal support for the assertion that the discrepancy between the amount of fees awarded to Wilmington and the lesser amount awarded to the commission renders the award to Wilmington “on its face unreasonable.” The court, relying on the testimony of Ury, explained that often “an attorney representing his community does so at a discounted fee arrangement and also does so with limited resources.” Additionally, responding to the argument of Wilmington’s counsel that Wilmington played the lead role in the litigation, the trial court found that Wilmington was “a major contributor] to the effort . . . .” The court also found that Wilmington “was well served by skilled and experienced attorneys throughout this litigation.”

On the basis of our review of the record, we cannot conclude that the court abused its discretion in awarding Wilmington $391,967.80 in attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The conservation commission of the town of Fairfield (commission) also was awarded attorney’s fees and was a party to this appeal. The defendant, however, did not contest the trial court’s award of attorney’s fees to the commission, and thereafter withdrew the appeal as against the commission.

       Although the defendant states that it is contesting the $426,437.79 in attorney’s fees awarded to Wilmington, the court actually awarded Wilmington $391,967.80 in counsel fees, $29,654.50 in fees for two outside consultants, an engineer and a wetlands scientist, and $4815.49 in costs. A review of the defendant’s briefs and argument to this court indicates that the defendant does not contest the court’s award of costs or consultant fees to Wilmington. We therefore address only whether the court abused its discretion in awarding Wilmington $391,967.80 in attorney’s fees. See part n of this opinion.

       See Conservation Commission v. Red 11, LLC, 119 Conn. App. 377, 379-84, 987 A.2d 398, cert. denied, 295 Conn. 924, 991 A.2d 566 (2010), for a more detailed recitation of the underlying facts.

       As a result, the commission attached extensive conditions for approval of the proposed subdivision, which subdivision the previous owner ultimately did not pursue.

       Pursuant to the trust, the property is to remain undeveloped and available for public use. It contains hiking and horseback riding trails.

       Wilmington ■withdrew count four on October 19, 2006.

       The defendant appealed to this court from the trial court’s dismissals, and this court affirmed the judgments of the trial court. Red 11, LLC v. Conservation Commission, supra, 117 Conn. App. 632-33.

       The defendant also appealed from that judgment, and this court again affirmed the judgment of the trial court. Conservation Commission v. Red 11, LLC, supra, 119 Conn. App. 378.

       The court also awarded the commission the $69,569.80 in attorney’s fees and costs it requested, which the defendant did not contest at trial and does not contest in this appeal. See footnote 1 of this opinion.

       Wilmington’s “Motion to Intervene as a Party-Plaintiff’ states in relevant part: “[PJursuant to Practice Book Section 9-18 . . . [Wilmington] moves to be named a party-plaintiff’; Wilmington’s “interest is particularly significant because of its status as a downstream property owner, which property has already been affected and will continue to be affected if [the defendant] is allowed to continue the predations that are the subject of this civil action”; Wilmington “has identified an expert in hydrology and civil engineering . . . whose testimony is anticipated will be presented in support of [its] claim that its property has been damaged at any hearing in this action”; the controversy “cannot be heard in fairness to all interested parties, unless [Wilmington] is allowed to participate as a party-plaintiff’; Practice Book § 9-18 “clearly gives the [c]ourt the discretion to bring into the case a party which has an interest that would be affected by the action”; and “there will be no prejudice to [the defendant] by the fact that [Wilmington] has been joined as a party-plaintiff.”
      The motion also states that pursuant to its “ ‘Petition for Intervention Under General Statutes Section 22a-19 (a),’ dated August 7, 2003,” Wilmington intervened in an administrative enforcement action against the defendant; that it “has maintained an interest in the enforcement action, has consulted on numerous occasions with the Commission, and has a very strong interest in ensuring that the Inland Wetlands Regulations of the Town of Fairfield and the environmental statutes of the State of Connecticut are adhered to by [the defendant]”; and that Wilmington is “seeking to be named aparty to the administrative appeals that [the defendant] has filed from the Cease and Desist Orders that have been issued to date, and [it] fully intends to work with the Town in defense of those orders.” Wilmington also attached its “Petition for Intervention under General Statutes Section 22a-19 (a)” to the motion as an exhibit.

       General Statutes § 52-107 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

       General Statutes § 22a-19 (a) provides in relevant part: “In any administrative, licensing or other proceeding, and in any judicial review thereof . . . any person ... or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       General Statutes § 22a-18 (e) provides: “The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorney’s fee.”

       Wilmington’s lead counsel filed an affidavit in which he explained that Wilmington submitted a total of 1026.7 hours worked by seven attorneys and two nonattomeys who assist the law firm’s land use practice group— a planning specialist and a certified wetlands scientist. Their hourly rates ranged from $190 to $575 and changed from time to time. The hours submitted represent only the work done after the institution of the injunction action in August, 2004, although the firm billed Wilmington a considerable amount, $75,379.43, in legal fees in connection with the administrative enforcement actions and appeals prior to the injunction action. In addition to the affidavit, Wilmington attached to its motion for attorney’s fees approximately 100 pages of detailed invoices setting forth the nature of counsel's work, the amount of time spent on each task and the corresponding hourly rates.

       The court also explained that the litigation had been overly time consuming because of the various delays caused by the defendant. See Ernst v. Deere & Co., supra, 92 Conn. App. 576 n.3 (Johnson factors not exclusive; courts “may assess the reasonableness of the fees requested using any number of factors” [internal quotation marks omitted]).

       We see merit in Wilmington’s contention that, because the court did not reduce the fee on the basis of the defendant’s argument that Wilmington failed to obtain relief on all its claims, the court implicitly concluded that the claims on which Wilmington did not obtain relief were “ ‘inexplicitly intertwined’ ” with the claims on which Wilmington succeeded. See Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 704 n.19, 981 A.2d 497 (2009) (citing with approval Chopra v. General Electric Co., 527 F. Sup. 2d 230, 251-52 [D. Conn. 2007]), which states that aparty may recover attorney’s fees for unsuccessful claims if they are “inexplicably intertwined and involve a common basis in fact or legal theory” [internal quotation marks omitted]), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010); Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 735-36, 890 A.2d 113 (2006) (because “plaintiffs’ breach of contract and negligence claims were related to their [unfair trade practices] claim [in that] they depended on the same facts,” trial court should not have ordered plaintiffs to apportion attorney’s fees among their claims); see also Perez v. D & L Tractor Trailer School, supra, 707 (“we read an ambiguous trial record to support, rather than to undermine, the judgment” [internal quotation marks omitted]).

       Counsel for the commission stated that he normally would charge “[m]ore than double” what he charged the commission in this case.


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARQUIS JONES
    (AC 33522)
    Bear, Espinosa and Laveiy, Js.

      Argued January 4 —
    officially released May 29, 2012

      Glenn W. Falk, special public defender, for the appellant (defendant).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Howard S. Stein, senior assistant state’s attorney, for the appellee (state).
   Opinion

ESPINOSA, J.

The defendant, Marquis Jones, appeals from the judgment of conviction, following a jury trial, of felony murder in connection with the death of the victim, Horace Cheatham. The defendant claims that (1) prosecutorial impropriety during closing argument deprived him of his due process right to a fair trial and (2) this court should exercise its supervisory authority and grant him a new trial as a result of the prosecutor’s improper closing argument. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of December 26, 2002, the eighteen year old victim, accompanied by his cousin, Sam Moore, attended a party at a club in Bridgeport. The defendant was at the club at the same time as the victim and Moore. After leaving the club, the victim and Moore went to a nearby restaurant. The defendant, who was armed with a gun, arrived at the same restaurant at approximately 1 a.m. While there, the defendant learned that the victim and Moore were interested in purchasing marijuana. The defendant told an acquaintance, Gary Browning, that the victim and Moore had money and that he wanted to rob them. Browning arranged to sell marijuana to the victim and led him to a nearby backyard to complete the sale. Thereafter, the defendant approached the victim from behind and stated: “You know what time it is, run that shit.” As Browning walked away from the victim, the defendant shot the victim in the back of the head and took money and drugs from him. The gunshot caused the victim’s death. The victim’s body was found on the snow coated ground the next morning.

A jury found the defendant guilty of felony minder in connection with the victim’s death. The defendant filed various postverdict motions. One of these motions was a motion for a new trial on the ground of prosecu-torial impropriety, which the court denied. This appeal followed the defendant’s sentencing.

I

First, we address the defendant’s claim that he is entitled to a new trial because prosecutorial impropriety during closing argument deprived him of his due process right to a fair trial. The defendant’s claim focuses on several arguments made by the prosecutor, which we will address in turn. Prior to reaching the merits of the claim, however, we set forth the principles that guide our analysis.

“In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and caused or contributed to a due process violation involves a separate and distinct inquiry. . . .

“[0]ur determination of whether any [impropriety] by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial. . . . These factors include: [T]he extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . .

“[W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 560-63, 34 A.3d 370 (2012).

A

The defendant’s primary claim concerns an argument made by the prosecutor during rebuttal closing argument. The argument was related to photographic exhibits that depicted the crime scene shortly after the victim’s body was discovered on December 27, 2002. The photographs depict, among other things, the victim’s body as well as footprints in the snow surrounding the body. The photographs reflected that the victim’s clothing was disheveled.

Our analysis of the prosecutor’s argument requires that we review the evidence related to footprints at the crime scene. Browning testified on the state’s behalf at trial, relating the following version of events. Browning illegally sold drugs at the time of the events at issue. After meeting the victim at the restaurant, he agreed to sell him one-half ounce of marijuana. Browning knew the defendant, who remarked to him that the victim and Moore “had money” and that he wanted to rob them. The defendant was armed with a revolver at the restaurant. Browning led the victim from the restaurant to a nearby backyard, at which time he left the victim alone so that he could retrieve the marijuana from a trash can on his back porch. When he returned, he completed the sale of the marijuana.

Then, Browning observed the defendant approaching the victim on foot from an area between two houses, from the direction of Central Avenue. Browning believed that the defendant was going to rob the victim “[b]ecause that was the plan.” Browning turned and walked away from the victim, at which time he heard the defendant say, “[y]ou know what time it is, run that shit.” Shortly thereafter, Browning heard a single gunshot. When he turned around, he saw the victim lying on the ground. The defendant was alone when he approached the victim and was the only person in the vicinity of the victim’s body when Browning turned back and observed the victim lying on the ground. Browning testified that he was wearing Converse sneakers at the time of the victim’s shooting and that he believed that the defendant was wearing Nike Air Force One sneakers.

During his trial testimony, Browning was shown photographic exhibits that depicted the crime scene, and he described the area where he left the victim, as well as where he walked to his backyard in order to obtain the marijuana that he sold to the victim. To this end, he identified a trail in the snow as a path that he frequently traveled between houses in order to obtain drugs for buyers. The state introduced the photographic exhibits depicting the crime scene during the testimony of Bryant Davis, a bystander who resided near the crime scene and observed the victim’s body in a neighboring yard at approximately 7:20 a.m. on December 27, 2002.

Kimberly Biehn, a Bridgeport police detective, testified that she processed the crime scene as a member of the major crimes unit. She testified that when she arrived on the scene there was snow on the ground. She was unable to recall when the snowfall began or how long the snow had existed at the scene. She testified that the police cordoned off the crime scene and walked through the scene to identify potential evidence. She observed more than one type of footprint in the snow at the crime scene. She recalled that one type of footprint that appeared around the victim’s body numerous times was unique in that it featured a star shaped pattern, consistent with Converse brand sneakers. Also, Biehn testified that she observed footprints in the area of the victim’s body that appeared to have been made with boots.

A police investigation report prepared by Detective Joette Devan of the Bridgeport police department was admitted into evidence. In relevant part, the report stated: “In my initial survey of the scene, I noticed 2 shoeprints in the driveway between 58 and 72 Bunnell Street. The shoeprints were going down the driveway toward Bunnell Street. The same shoeprints were abundant in the immediate vicinity of the victim’s body. Closer inspection of one of the shoeprints to the right of the victim’s body (when facing Central Ave.) revealed a small star in the center of the print which is the symbol commonly used by Converse. There were also several of these same shoeprints toward Central Ave. (rear yard of 863 Central Ave.) Det. Kaiagian stated that he followed the shoeprints to the rear yard of 386 Central Ave. and down that driveway toward Central Ave.”

Bridgeport police Detective Robert Winkler testified that the police determined, as a result of their investigation, that Browning was wearing Converse All Star sneakers on the night of the shooting. Additionally, he stated that the defendant told the police that he was wearing Nike Air Force One sneakers on the night of the shooting.

During the state’s initial closing argument, the prosecutor referred to footprint evidence only once, in the context of suggesting to the jury that the defendant’s attorney likely would argue that it was Browning, not the defendant, who killed the victim. In this vein, the prosecutor observed that Browning’s footprints were found “all over the crime scene.” During closing argument, the defendant’s attorney argued that the evidence supported a finding that Browning killed the victim. The defendant’s attorney argued that Browning’s testimony was not credible. He argued in relevant part: “The problem with that is, where’s [the defendant’s] footprints, the Nike Air Force Ones? Whose footprints are around the body? Whose footprints lead out to Bunnell Street?” After reading from Devan’s police report, the defendant’s attorney reminded the jury that the footprints that led out to Bunnell Street from the crime scene likewise led to Browning’s residence.

The defendant’s attorney then stated: “If someone’s committing a robbery and they’re messing with the body pulling his pants off, [the defendant’s] supposedly doing that, where’s his print? Where’s another print other than boots like Detective Biehn said, and the Converse?

“These Converse prints — they weren’t disturbed, they weren’t disturbed. There was no other shoe prints between them, on them, around them, that’s the first print that the cops noticed, those prints. I know the pictures [of the Converse shoe prints] are a little cockeyed, but take a look at them when you see them. . . . If . . . Browning leaves the scene and goes away, and then [the defendant] shows up, how come his prints aren’t there? How come they’re not . . . around the body? . . . Where’s [the defendant’s] prints? He’s walking through the snow, where are they? Did he float in? How did he get to the crime scene? Because remember, if you don’t believe . . . Browning, okay, this case is over with. ” Later during his argument, the defendant’s attorney reiterated that Browning’s footprints, and not the defendant’s footprints, surrounded the victim’s body.

During the state’s rebuttal argument, the prosecutor argued in relevant part as follows: “Footprints, things around the body? I mean, let’s face it, I mean we almost had a marching band going through this area. What is necessarily there? [What is] there [are] the footprints around the perimeter [of the crime scene], not up close. It’s around the perimeter. The ones that [the defendant’s attorney] showed you, which he wanted you to believe [were] around the body, but it was much further away. Down the driveway, around the periphery. Then to that extent, that’s what is there.”

Thereafter, the prosecutor discussed Browning’s version of events, including the manner in which Browning completed his sale of marijuana to the victim and walked away. Additionally, the prosecutor discussed Browning’s testimony that the defendant approached the victim from the area of Central Avenue. Calling the jury’s attention to state’s exhibit six, a photograph of the crime scene, the prosecutor argued that it depicted Browning’s footprints to and from his residence. The prosecutor implicitly argued that the exhibit also depicted the defendant’s footprints: “But look over here along the tree line on that direct shot. There are footprints over here that seem to be coming through the snow leading directly up to where the body is, right over here. Not the pathway here to Browning’s yard, but in over here, coming along that tree line. There is what appears to be footprints in the snow that lead directly up to the victim from behind.

“Where — if those are Browning’s footprints, if you find that to be credible, coming up behind. Browning— coming up behind the victim. And you can see those in state’s [exhibit] six.

“You can also see them in state’s [exhibit] eight where from where the victim is laying, if you look directly behind where the victim’s body is, you will see a set of prints that are coming up directly behind the victim in back there, walking right up. Not these prints out here by the dumpster, not these Browning’s, but they’re coming from this direction.”

The defendant’s attorney did not object to this argument during closing argument or immediately thereafter. Following the jury’s verdict, in a motion for a new trial, the defendant claimed that the prosecutor’s argument, insofar as it suggested that the defendant’s footprints were visible in the photographic exhibits of the crime scene, was improper because it was not supported by the evidence and was purely speculative.

The court denied the defendant’s motion for a new trial. The court concluded that the prosecutor’s argument concerning footprints was improper: “The problem with this argument is that there was no evidence offered during the trial concerning the footprints pointed out on the photographs by the prosecutor. Moreover, it is apparent from the crime scene tape and police vehicles shown in the photographs that they were taken after police personnel had been on the scene. The footprints could have been those of police personnel, emergency medical personnel, unknown third parties or (as argued by the prosecutor) the defendant.

“The state asserts that because these photographs [of the crime scene] were admitted as full exhibits without limitation, the argument was proper. This position goes too far. The photographs were offered only as general views of the crime scene as observed by the crime unit Detective Biehn. No testimony or other evidence identified the footprints highlighted in the prosecutor’s argument as being relevant to the investigation. To the contrary, the only footprints mentioned in the evidence were the Timberland boot prints and Converse All Star sneaker prints. . . . Evidence admitted for one purpose at trial . . . cannot be used after the close of evidence for a different purpose. To do so would deprive an opponent from submitting rebuttal evidence, meaningful cross-examination or impeachment. . . .

“In the present case, because the claim that the footprints in exhibits six and eight were those of the defendant first came into the case during the state’s rebuttal argument, the defense was deprived of any meaningful opportunity to meet this assertion. On the record of the trial as it existed, the prosecutor’s argument asked the jury to speculate, or worse, amounted to a form of unsworn testimony. The argument was improper.” (Citation omitted; internal quotation marks omitted.)

Thereafter, the court concluded that the impropriety did not deprive the defendant of a fair trial. The court focused on the fact that the defendant did not object to the argument and, thus, deprived the court of an opportunity to deliver a curative instruction to the jury. The court also determined that it was “highly likely that the jury did not fully accept Browning’s version of the crime as shown by [its] verdict of not guilty on [the] murder [count of the information].” The court reasoned that the footprint argument was merely an attempt to corroborate Browning’s version of how the shooting occurred. Finally, the court determined that the impropriety was “not so blatantly egregious or inexcusable as to require the invalidation of the jury’s verdict and an order for a new trial.”

On appeal, the defendant, citing the court’s memorandum of decision, argues that the prosecutor’s argument was improper in that it was not based on evidence and was made for the first time during the state’s rebuttal argument, when the defense lacked an opportunity to rebut it. Relying on the court’s determination that the argument was improper, the defendant devotes the majority of his argument to a due process analysis. He argues that a proper consideration of the factors set forth in State v. Williams, supra, 204 Conn. 535-40, should have led the court to conclude that he was deprived of a fair trial and, thus, was entitled to a new trial. The state urges us to conclude that the prosecutor’s argument was not improper and that, even if it was, it did not deprive the defendant of a fair trial.

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the juiy’s attention from the facts of the casé. . . . This heightened duty derives from our long recognition of the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider. . . .

“Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows. . . .

“It is well established, furthermore, that a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.

“A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 744-46, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

In the present case, the court’s conclusion that prose-cutorial impropriety occurred was a conclusion of law based on its review of the evidence and the closing arguments and was not based on any findings of fact. Accordingly, we afford the issue plenary review. As a preliminary matter, we observe that the photographic exhibits of the crime scene, state’s exhibits six and eight, were admitted during the state’s direct examination of Davis. Davis testified that on the morning of December 27, 2002, he discovered the victim’s body in a yard near his residence and called 911. Davis referred to the exhibits during his testimony as representing his residence and the victim’s body, as they appeared on the morning of December 27, 2002. Absent objection, these photographs of the crime scene were admitted as full exhibits, and the court did not deliver a limiting instruction as to their use by the jury. Later, Detective Biehn referred to photographic exhibits of the crime scene, including state’s exhibit eight, as depicting the victim’s appearance when the police arrived on the scene.

We disagree with the argument advanced by the defendant and accepted by the court that the state’s argument invited the jury to consider the evidence for a purpose other than that for which it was admitted. The photographic exhibits at issue were admitted as full exhibits, not for a particular purpose. This is not a case in which the prosecutor invited the jury to disregard a limiting instruction. As our Supreme Court has observed, the rule annunciated in our case law is that “[a]n exhibit offered and received as a full exhibit is in the case for all purposes.” (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 377, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007).

We disagree that the state’s argument was not based on the evidence or reasonable inferences drawn therefrom. The photographic exhibits at issue were admitted as accurate representations of the crime scene after the police arrived at the scene. The defendant does not argue that the photographs failed to reflect footprints in the area of the victim’s body or that the photographs did not depict the specific footprints referred to in the prosecutor’s argument. Rather, the defendant appears to argue, as the court found, that the argument was improper because no witness testified about the existence or source of these footprints.

Although there was no testimony, expert or otherwise, concerning the specific footprints at issue, that fact does not lead us to conclude that it was improper for the prosecutor to suggest that the footprints were those of the defendant. There was ample testimony from Browning concerning the defendant’s conduct at the crime scene at the time of the shooting. Specifically, Browning testified as to the route taken by the defendant as he approached the victim prior to the shooting; he testified that the defendant approached the victim from an area between two houses, from the direction of Central Avenue. This area was depicted in the photographic exhibits. On the basis of this testimony, as well as the footprints depicted in the photographs, we conclude that there was an ample basis in the evidence to suggest that the footprints were those of the defendant.

Certainly, as the court observed, the jury reasonably could have concluded that the footprints in the photographs, which were taken after emergency personnel had arrived on the scene, were not those of the defendant. That the evidence was susceptible to different interpretations, however, does not render the argument improper. The prosecutor’s argument was made in response to the argument of the defendant’s attorney that Browning’s version of events was not credible, perhaps even impossible, because there was no evidence of the defendant’s footprints in the snow. The prosecutor’s argument did not suggest that the footprints were proven to be those of the defendant, but it invited the jury to consider the fact that there were footprints in the snow that were consistent with Browning’s testimony.

The argument invited the jury to draw a reasonable inference from the evidence. The inference was reasonable because the photographs undeniably depicted the crime scene, the photographs depicted footprints around the victim’s body and the state elicited testimony from Browning that was entirely consistent with footprints that appeared in the photographs of the crime scene. The prosecutor was not precluded from inteipre-ting the evidence elicited consistent with a finding of guilt. See State v. David O., 104 Conn. App. 722, 734 n.5, 937 A.2d 56 (2007), cert. denied, 285 Conn. 915, 943 A.2d 473 (2008). Moreover, in making the challenged argument, the prosecutor referred to Browning’s testimony concerning the events at issue as well as to specific exhibits, namely, state’s exhibits six and eight. For this reason, we conclude that the argument was not a form of unsworn testimony, for it did not appear to be based on the prosecutor’s personal knowledge or facts that were not in evidence, but on the evidence itself.

Finally, we disagree with the court’s rationale that the prosecutor’s argument was improper because it was made for the first time during rebuttal argument. As the court observed, during his initial argument, the prosecutor did not suggest to the jury that there was evidence of the defendant’s footprints at the crime scene. Discussion of the defendant’s footprints, or lack thereof, first arose during the defense’s closing argument, when the defendant’s attorney undeniably suggested that the defendant’s footprints were not in the vicinity of the victim’s body. We conclude that it was not unfair for the prosecutor, during his rebuttal argument, to respond to this argument. In so doing, he did not inject a new theory of liability into the case at a time when the defendant was unable to respond to it. Rather, within the proper scope of rebuttal argument, the prosecutor merely confronted the inference drawn for the first time by the defendant’s attorney during his closing argument. In so doing, the prosecutor did nothing more than interpret the evidence in a manner consistent with Browning’s testimony and the theory of liability that the state had advanced throughout the trial.

On the basis of the foregoing analysis, we conclude that prosecutorial impropriety did not occur. Accordingly, we need not consider whether the prosecutor’s conduct deprived the defendant of a fair trial.

B

In addition to the argument concerning footprints analyzed previously, the defendant draws our attention to ten other arguments of the prosecutor that he labels as instances of prosecutorial impropriety. He invites this court to consider these arguments in resolving his claim that prosecutorial impropriety deprived him of a fair trial. Our review of the defendant’s analysis of his claim reveals that the defendant, in summary fashion, merely has listed these portions of closing argument as well as relevant defense objections and rulings related thereto. He has not provided this court with a separate and thorough analysis, supported by reference to the evidence presented at trial and to legal authority, in an attempt to demonstrate why each argument was improper and why it deprived him of a fair trial. For this reason, we decline to review this aspect of the claim. See, e.g., State v. Monahan, 125 Conn. App. 113, 122-23, 7 A.3d 404 (2010), cert. denied, 299 Conn. 926, 11 A.3d 152 (2011).

II

Next, the defendant claims that this court should exercise its supervisory authority and grant him a new trial as a result of the prosecutor’s allegedly improper closing argument. “[An appellate court] may invoke [its] inherent supervisory authority in cases in which prose-cutorial [impropriety] is not so egregious as to implicate the defendant’s . . . right to a fair trial . . . [but] when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . [S]uch a sanction generally is appropriate . . . only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. . . . Accordingly, in cases in which prosecutorial [impropriety] does not rise to the level of a constitutional violation, we will exercise our supervisory authority to reverse an otherwise lawful conviction only when the drastic remedy of a new trial is clearly necessary to deter the alleged prosecutorial [impropriety] in the future.” (Citations omitted; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 422-23, 844 A.2d 810 (2004). Because we conclude that the argument concerning footprints addressed in part I A of this opinion was not improper and we do not consider the other claimed instances of improper argument addressed in part I B of this opinion, we decline the invitation to exercise our inherent supervisory authority over the administration of justice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The juiy found the defendant not guilty of murder. The court sentenced the defendant to serve a term of imprisonment of forty years, to run consecutively to another sentence imposed in a different criminal proceeding.

       Browning testified that this statement meant that a robbery was taking place.

       Browning testified that he was arrested in connection with the victim’s death and, like the defendant, was charged with murder and felony murder. At the time of his own trial, Browning reached an agreement with the state; he agreed to testify for the state in the defendant’s case in exchange for a reduction in the severity of the charges against him. In exchange for his cooperation and testimony against the defendant, he was permitted to plead guilty to conspiracy to commit robbery in the first degree and would receive a sentence of two years incarceration, to be served concurrently with a sentence already imposed in another proceeding, as well as five years of special parole. Browning stated that, although he “set up” the victim for a robbery, he did not want to go to jail for killing the victim.

       For this reason, the argument under review is distinguishable from the improper conduct at issue in State v. Therrien, 117 Conn. App. 256, 273, 978 A.2d 556, cert. denied, 294 Conn. 913, 983 A.2d 275 (2009), on which the defendant relies heavily. In Therrien, this court held that prosecutorial impropriety occurred during the state’s final argument when the prosecutor referred to facts that were unrelated to the evidence and introduced a theory ofprosecution that was contrary to that advanced during the trial. Id., 273-74.


author: BEACH, J.

text:
    LAMBERTO LUCARELLI v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 33336)
    Lavine, Beach and Dupont, Js.

      Argued February 2 —
    officially released May 29, 2012

      Lamberto Lucarelli, pro se, the appellant (plaintiff).

      Trade C. Brown, principal attorney, for the appellee (named defendant).
   Opinion

BEACH, J.

The self-represented plaintiff, Lamberto Lucarelli, appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant freedom of information commission (commission) ordering the defendant Old Saybrook police department (department) to produce certain records. The plaintiff claims that the court erred in concluding that (1) the commission properly determined that the department was not required to transcribe or to tape voice mail messages pursuant to General Statutes § 1-213 (b) (3), (2) the commission’s failure to rule on his request for subpoenas was not reversible error and (3) the commission properly declined to enforce the penalty provision of General Statutes § 1-240 (a). We affirm the judgment of the trial court.

The following facts, as found by the commission, and procedural history are relevant. In a letter dated June 29, 2009, the plaintiff requested from the department copies of four police reports, as well as “any and all other information regarding me or my affairs which may be in the possession of the [department] and which has not already been provided.” On July 9,2009, Michael A. Spera, the chief of police, met with the plaintiff and provided copies of the four incident reports requested by the plaintiff. In an effort to understand the plaintiffs request, Spera showed the plaintiff how the department’s computer system worked and printed a list from the computer showing each instance since 1997 in which the plaintiffs name appeared in the department’s records. Spera then gave the plaintiff a copy of the printout free of charge.

Following the July 9, 2009 meeting, the plaintiff reviewed the four incident reports and believed that the department still retained additional records responsive to his request that had not been provided to him. By letter dated July 14, 2009, the plaintiff described the records he believed the department to have withheld from him. The letter consisted of forty-six numbered paragraphs in which the plaintiff asked questions regarding the existence of certain records. In a telephone conversation, Spera explained to the plaintiff that the department did not maintain the records that he was seeking.

By a letter of complaint filed July 31,2009, the plaintiff appealed to the commission, alleging that the department had violated the Freedom of Information Act (act), General Statutes § 1-200 et seq., by failing to respond to his June 29, 2009 request. At an evidentiary hearing on November 10, 2009, the plaintiff testified that, by way of his June 29, 2009 letter, he sought not just the incident reports, but also all records related to the incident reports that might be kept in the case files associated with such incident reports. Spera testified at the hearing that he interpreted the June 29, 2009 request as a request for the police incident reports only and that he did not search for the related case files for additional records. The hearing officer found that there was a genuine misunderstanding as to the scope of the plaintiffs request. The hearing officer ordered the department to conduct an additional search for records in light of the plaintiffs testimony and further ordered that if such search revealed additional records responsive to the plaintiffs June 29 or July 14, 2009 requests, the department was to provide a copy of such records to the plaintiff and to the commission, along with an affidavit detailing the nature of the search, on or before December 4, 2009.

By letter dated December 4, 2009, the department provided the plaintiff and the commission with (1) an affidavit from Spera attesting that an additional search for records had been conducted and that all responsive records had been provided to the plaintiff, (2) a written response to each of the forty-six numbered requests made by the plaintiff in his July 14, 2009 letter and (3) copies of additional records found in the search, specifically, the contents of case files corresponding to the four incident reports.

By letter dated December 23, 2009, the plaintiff objected to the department’s December 4, 2009 letter. In the letter, the plaintiff observed that the records search was conducted by Spera, not by the individual police officers who created the reports at issue, and that the individual officers did not attest to the information contained in the reports. He argued further that the department had acted in bad faith because it failed to acknowledge a written statement by David Perrotti, a police officer with the department, in an incident report dated April 22, 2009, that Perrotti had “taped [the plaintiffs] voice mail message he had left for [him] on April 20, 2009,” and failed to disclose such tape recording.

In its final decision dated April 14, 2010, the commission found that the department’s additional search for records was a diligent, good faith effort to comply fully with the plaintiffs June 29 and July 9, 2009 letters. The commission further found that the department had provided the plaintiff with all the requested records, except for the copy of the tape recording of the plaintiffs voice mail message that had been created by Per-rotti. The commission concluded that the department’s failure to disclose to the plaintiff that voice mail message recording violated General Statutes §§ 1-210 (a) and 1-212 (a). The commission found, however, that the department’s failure to disclose the record was not intentional. The commission further concluded that the department did not violate the act in failing to transcribe, to tape or to record voice mail messages that may have existed on the department’s voice mail system. The commission ordered the department to provide the plaintiff with a copy of the tape recording created by Perrotti, free of charge, if such tape still existed and, in the alternative, if the department no longer maintained that tape recording, to inform the plaintiff of such by letter. Additionally, the commission ordered the department to make a diligent search for tape recordings of any additional voice mail messages, to provide an affidavit to the plaintiff indicating the results of such search and to provide the plaintiff with a copy of any additional tape recordings it may find. The plaintiff filed a motion for reconsideration of the commission’s decision, which was denied.

The plaintiff appealed to the Superior Court, alleging that the commission erred in (1) stating that the department did not have a statutory obligation to preserve voice mail communications, (2) not granting the plaintiffs request for subpoenas and (3) not assessing a penalty against the department in its order. The court rejected the plaintiffs arguments and dismissed the appeal. This appeal followed.

We first set forth our standard of review. “Our review of an agency’s factual determination is constrained by General Statutes § 4-183 (j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record .... This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. ... An agency’s factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole. . . . With respect to questions of law, [w]e have said that [cjonclu-sions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citation omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities, 266 Conn. 492, 503-504, 832 A.2d 660 (2003).

I

The plaintiff first claims that the court erred in concluding that the commission properly determined that an exception to the general rule requiring record retention, § 1-213 (b) (3), applied to the department’s voice mail messages. We disagree.

The commission concluded that the department did not violate the act in failing to transcribe, to tape or otherwise to record voice mail messages that may have existed on the department’s voice mail system. The commission found, however, that the department violated §§ 1-210 (a) and 1-212 (a) by failing, albeit unintentionally, to disclose to the plaintiff the voice mail message recording created by Perrotti and ordered the department to provide a copy of the tape if it still existed and to search for any additional tape recordings of voice mail messages.

The court rejected the plaintiffs argument that the department was required to transcribe voice mail messages and instead concluded that the commission did not err in its determination that the department did not violate the act in failing to transcribe, to tape or to record voice mail messages that may have existed on the department’s voice mail system. In making this determination, the court relied on the exemption in § 1-213 (b) (3) that provides that nothing in the act shall be deemed to require a public agency to transcribe the content of any voice mail message or to retain such record.

The plaintiff argues that the original voice mail messages that were temporarily recorded on the department’s answering machine system were public records that should have been retained and destroyed only pursuant to an approved retention schedule. He further seems to argue that, at minimum, voice mail messages that may potentially be used as evidence in trials should be considered to be excepted from § 1-213 (b) (3). We do not agree.

Section 1-213 (b) provides in relevant part that “[njothing in the Freedom of Information Act shall be deemed in any manner to . . . (3) [rjequire any public agency to transcribe the content of any voice mail message and retain such record for any period of time. As used in this subdivision, ‘voice mail’ means all information transmitted by voice for the sole purpose of its electronic receipt, storage and playback by a public agency.” Spera testified at the November 10, 2009 hearing that voice mail messages left on the department’s answering system were not subsequently recorded, retained or transcribed. According to the plain language of the statute, these messages left on the department’s answering machine system constitute “voice mail message^],” and the department was not required to transcribe or to retain any type of voice mail message. The statute clearly and unequivocally authorizes the defendant’s position.

To the extent that the department recorded and retained the voice mail messages left on its answering machine system, the commission ordered the department to give the plaintiff copies of such messages because the subsequent recordings became public records subject to disclosure. It specifically determined that the plaintiff was entitled to a voice mail message that had been tape recorded by Perrotti and ordered the department to provide the plaintiff with a copy of that message and to make a diligent search for tape recordings of any additional voice mail messages. See General Statutes § 1-210 (a) (“[ejxcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records”).

n

The plaintiff next claims that the court improperly rejected his challenge to the commission’s failure to rule on his request for subpoenas. We disagree.

The following additional undisputed facts are relevant to this claim. A show cause hearing regarding the plaintiffs first letter of complaint was scheduled for November 10, 2009. Prior to the hearing, the plaintiff requested that the commission subpoena anyone in the department who may have been involved in responding to his request under the act, specifically, Spera, Officers Christopher DeMarco and Perrotti, Detective Kevin Roche, Ms. Klingerman and Adam Laverty. He also requested that the commission issue a subpoena duces tecum for the department to bring to the hearing “all information whatsoever regarding” him, including “all possible audio recordings that may pertain to this . . . matter.” The commission took no action regarding this request.

The court rejected the plaintiffs claim regarding the commission’s failure to rule on subpoenas. The court determined that the plaintiff had stated that his purpose in seeking subpoenas was to probe each individual regarding his or her retention of audio recordings. Although the court mentioned that in order to prevail, the plaintiff must show that the commission abused its discretion in denying the request and that the denial prejudiced the plaintiff, the court expressly stated only that the failure of the hearing officer to honor the plaintiffs request for subpoenas was not prejudicial.

Our statutes and agency regulations confer discretionary authority to the commission to issue subpoenas. General Statutes § 4-177b provides in relevant part that “[i]n a contested case, the presiding officer may . . . subpoena witnesses and require the production of records, physical evidence, papers and documents to any hearing held in the case. . . .” (Emphasis added.) Section 1-2 lj-36 (b) of the Regulations of Connecticut State Agencies similarly provides in relevant part that “[a]t any hearing, the commission or the presiding officer may subpoena witnesses and require the production of records, documents and other evidence pertinent to such inquiry. Any party may request that such process be issued. ...” (Emphasis added.); see also 2 Am. Jim. 2d, Administrative Law § 337 (2004) (“Reasonable limitations may be placed on the number and scope of witnesses that may be compelled to testify at an administrative hearing. Procedural due process does not require that parties to a hearing must be provided with an absolute or independent right to subpoena witnesses.”).

Our rules of practice confer on courts discretionary authority to issue subpoenas on behalf of self-represented parties. Practice Book § 7-19 provides: “Self-represented litigants seeking to compel the attendance of necessary witnesses in connection with the hearing of any civil matter, including matters scheduled on short calendar or special proceeding lists or for trial, shall file an application to have the clerk of the court issue subpoenas for that purpose. The clerk, after verifying the scheduling of the short calendar hearing, special proceeding or trial, shall present the application to the judge before whom the matter is scheduled for hearing, or the administrative judge or any judge designated by the administrative judge if the matter has not been scheduled before a specific judge, which judge shall conduct an ex parte review of the application and may direct or deny the issuance of subpoenas as such judge deems warranted under the circumstances, keeping in mind the nature of the scheduled hearing and future opportunities for examination of witnesses, as may be appropriate.”

We similarly recognize the discretion accorded administrative agencies. “[A]dministrative tribunals are not strictly bound by the rules of evidence .... Thus, on appeal, [t]he plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn. App. 212, 228-29, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002); see also General Statutes § 4-183 (j) (agency’s decision shall be affirmed unless appellant’s substantial rights are prejudiced by agency’s abuse of discretion). “[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown.” (Internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 828, 955 A.2d 15 (2008).

The plaintiff has not demonstrated that the commission abused its discretion in failing to rule on his request for subpoenas or that the failure so to rule caused him material prejudice. Section l-21j-36 (b) of the Regulations of Connecticut State Agencies gives the commission broad discretion in deciding whether to grant subpoenas. The plaintiff requested that the commission issue subpoenas for department personnel who “may have” carried out the searches and also requested that the commission subpoena from the department “all information whatsoever” regarding him. The plaintiffs stated purpose in seeking subpoenas was to probe each individual regarding his or her retention of audio recordings. At the November 10, 2009 hearing, Spera testified as to the efforts made by the department to ensure compliance with the plaintiffs request. Under § l-21j-35 (c) of the Regulations of Connecticut State Agencies, the presiding officer may limit the number of witnesses to avoid unnecessary cumulative evidence.

The plaintiff has not shown material prejudice. The plaintiff prevailed at the November 10, 2009 hearing, and the hearing officer ordered the department to conduct an additional search for records. The commission later determined that the additional search conducted by the department was diligent but ordered the department to provide the plaintiff with a copy of the voice mail recording created by Perrotti if it still existed and to make a diligent search for additional tape recordings of any voice mail messages. Accordingly, we do not conclude that the hearing officer’s failure to rule on the subpoenas either constituted an abuse of discretion or substantially prejudiced the plaintiff.

m

The plaintiff last claims that the court erred in concluding that the commission had not erroneously failed to enforce the penalty provision of § 1-240 (a) in its order. He essentially argues that the commission should have found the department guilty of violating § 1-240 (a) for deleting his voice mail messages. The conduct found by the commission is far removed from that proscribed by § 1-240 (a), and, in any event, the commission does not exercise criminal jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The police department of the town of Old Saybrook was named as a defendant at trial. On September 23, 2011, this court granted the police department’s motion to be excused from participation in this appeal. We therefore refer in this opinion to the commission as the defendant.

       We have considered the plaintiffs argument that his constitutional rights under the ninth and fourteenth amendments to the United States constitution and article first, §§ 10 and 20, of the Connecticut constitution were violated by not requiring preservation of the voice mail messages, and we conclude that it has no merit.

       Apparently, Perrotti had listened to a voice mail message from the plaintiff, had used a tape recorder to create a tape recording of the message and had kept the tape recording in a file.

         We have considered the plaintiff’s arguments that it is a “fundamental right” to have administrative agencies grant subpoenas and that the failure of the commission to grant his requests for subpoenas violated his constitutional rights to due process or equal protection. We conclude that the arguments are without merit. We further conclude that, contrary to the plaintiffs argument, Fromer v. Freedom of Information Commission, 90 Conn. App. 101, 110, 875 A.2d 590 (2005), is not applicable to the present case.

       We treat the lack of a ruling, for purposes of this discussion, as a denial of the request for subpoenas. We by no means encourage rulings through inaction.

       General Statutes § 1-240 (a) provides: “Any person who wilfully, knowingly and with intent to do so, destroys, mutilates or otherwise disposes of any public record without the approval required under section 1-18 or unless pursuant to chapter 47 or 871, or who alters any public record, shall be guilty of a class A misdemeanor and each such occurrence shall constitute a separate offense.”

       We have considered the plaintiffs argument that, by failing to apply § 1-240 (a), the commission violated the plaintiffs constitutional rights under the ninth and fourteenth amendments to the United States constitution and article first, § § 10 and 20, of the constitution of Connecticut, and we conclude that it is without merit.