author: Lavery, J.

text:
    Frank L. Miller III v. Zoning Board of Appeals of the Town of Westport
    (12575)
    O’Connell, Foti and La very, Js.
    Argued March 31
    decision released September 20, 1994

      John F. Fallon, with whom was Matthew M. Hausman, for the appellant (plaintiff).

      Patricia E. Curtin, for the appellee (defendant).
   Lavery, J.

The plaintiff appealed to the trial court from the denial by the Westport zoning board of appeals (board) of his request for a variance. On appeal to this court, the plaintiff claims that the trial court improperly found that the board had not abused its discretion in denying the variance. The dispositive issue is whether the board and the trial court correctly concluded that the plaintiffs property had merged with an adjoining property that the plaintiff once owned. We reverse the judgment.

The plaintiff owns an undeveloped lot at 5 Winding Lane in Westport. The plaintiff bought the property in 1980 from Buddy B., Inc. At the same time, the plaintiff bought an adjoining lot that had been conveyed with the first lot since 1965. The sole access to the plaintiffs property is a twenty-one foot wide right-of-way from the west side of Winding Lane, known as Winding Lane West, that also serves two lots to the north of the plaintiffs property. This right-of-way was first mapped when the plaintiffs property was conveyed in 1942. It was recorded on August 15, 1958. The plaintiffs property is located in an area zoned for residential use, in which lots are required to be no smaller than one acre and shaped so that a 150 foot square can be inscribed within the property. The plaintiffs lot is one acre in area but is shaped in such a way that the largest square that can be inscribed on the property measures 144.47 feet.

In 1982, the plaintiff sold the adjoining lot and its residence to the Johnsons (Johnson lot). When the plaintiff attempted to sell the property in question in 1991, the Westport director of planning and zoning informed the prospective purchaser that the lot did not comply with the zoning regulations because it could not accommodate a 150 foot square. The planning director also stated that the parcel was not in compliance with the right-of-way width requirements because more than one lot was being served by Winding Lane West. The sale was not completed.

The plaintiff then applied to the board for a variance of both the shape requirement and the access requirement. After a public hearing, the board denied the plaintiffs application because the board found that there was insufficient hardship and that any hardship that may have existed was self-created. The plaintiff appealed that decision to the Superior Court, which upheld the board’s finding that the hardship was self-created. The trial court also found that the merger doctrine applied and that the plaintiff failed to prove that the board’s denial effected an unconstitutional taking. This appeal followed.

The record reveals that the trial court and the board believed that the plaintiff’s property had merged with the Johnson lot in 1956. The planning director based her opinion that the plaintiff’s property was not a conforming lot, at least in part, on her belief that the two properties had merged. The transcript of the public hearing reveals that the board operated on the assumption that the two properties had merged. Finally, the trial court specifically found that merger had occurred and based its analysis of hardship on that belief.

Building lots in Westport must be no smaller than one acre, and must be shaped in such a way that a square with 150 foot sides could be drawn within some portion of the property. The record reveals that the plaintiffs property satisfies the size requirement, but fails to satisfy the shape requirement. The largest square that could be inscribed within the plaintiffs property measures 144.47 feet per side. Thus, the plaintiffs property is nonconforming.

Merger in Westport is governed by § 6-3.2 of the zoning regulations. That section provides that adjoining lots merge if (1) they were owned by the same person on or after March 24, 1952, (2) one or both lots are undeveloped, (3) one or both lots do not conform to the area and shape requirements of the zoning regulations, and (4) if “taken together [the resulting combined lot] would . . . more nearly [meet] the requirements of [the] regulations with regard to lot ... shape . . . .” The plaintiffs property was owned by the owner of the Johnson lot on March 24, 1956. It remains undeveloped, and fails to conform with the shape requirements of the zoning regulations. Thus, the trial court concluded that the plaintiffs property satisfied the first three requirements for merger.

The board appears to have assumed that the plaintiffs property also satisfied the fourth requirement; the trial court explicitly found so. The trial court based its ruling on the fact that if the two properties were considered together, two 150 foot sides of a “square” could be inscribed in the lot. The trial court appears to have believed that a “square” with two 150 foot sides and other shorter sides more nearly approximates a 150 foot square. The trial court concluded that the result of combining the plaintiffs property and the Johnson lot would more nearly conform to the shape requirement. Therefore, the merger provision was invoked and the two properties merged.

Our review of the record and the applicable regulations, however, convinces us that the two properties never merged, thus undermining the basis for the trial court’s hardship analysis. In order for the merger provision to apply, the result of the combined lots must “more nearly” permit a 150 foot square to be inscribed within it. In considering whether the combination of the plaintiff’s property and the Johnson lot would more nearly conform to that regulation, we must interpret the 150 foot square requirement. We interpret and construe local ordinances according to the principles of statutory construction. Czajkowski v. Planning & Zoning Board, 14 Conn. App. 283, 288, 540 A.2d 716 (1988). We construe words and phrases according to the commonly approved usage of the language. General Statutes § 1-1 (a). Where an ordinance does not define a term, we look to the common understanding expressed in dictionaries. See Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989).

A square is defined as “a rectangle with all four sides equal.” Webster’s Third New International Dictionary. A rectangle is defined as “a parallelogram all of whose angles are right angles.” Id. A parallelogram is defined as “a quadrilateral with opposite sides parallel.” Id. Finally, a quadrilateral is defined as “a plane figure of four sides and consequently four angles.” Id. These definitions lead us to the following conclusion: a square is a plane figure of four equal sides and four right angles.

Thus, the combination of the plaintiffs property and the Johnson lot would invoke the merger provision if the resulting combined lot could accommodate a figure of four sides and four right angles larger than 144.47 feet. The trial court ruled that a figure with two 150 foot sides more nearly conformed to the requirement of four 150 foot sides with right angles. We do not agree. What the trial court actually described is a hexagon with two sides 150 feet long, one side 144.47 feet long, and three shorter sides. We conclude that a hexagon that encompasses more area than a square does not more nearly conform to a regulation that requires a square. The regulation at issue does not merely concern size; lots must be at least one acre and shaped a certain way. A five acre lot would satisfy the size requirement but would still not comply with the shape requirement if it was not wider than 149 feet.

There was no evidence in the record before the trial court, nor any evidence before the board, that the combination of the plaintiff’s property and the Johnson lot could accommodate a square larger than 144.47 feet. Because a combination of the plaintiff’s property and the Johnson lot would not have conformed more nearly to the square requirement, the merger provision was never invoked.

The defendant argues for the first time on appeal that the combination of the plaintiff’s lot and the Johnson lot did more nearly conform to the square requirement because a square with 149 foot sides can be inscribed entirely within the Johnson property. Thus, the board asserts that, when the lots are combined, a square measuring 149 feet can be inscribed in the resulting combined lot and, because a 149 foot square more nearly conforms to the 150 square requirement, the merger provision is invoked. The board’s assertion, however, is without basis in the record. There was no evidence presented to the board regarding the size of the Johnson lot. Likewise, there was no evidence in the record on which the trial court could have based a ruling that the Johnson lot could accommodate a 149 foot square. The function of an appellate court is to review a case on the theory on which it was tried and decided. Archambault v. Wadlow, 25 Conn. App. 375, 378-79, 594 A.2d 1015 (1991). Since the record provides no support for the board’s claim, and since it was not raised below, we cannot entertain that claim. See id.

Because the merger provision was never invoked, the lots did not merge. Thus, the plaintiff owned a separate, nonconforming lot. If it had been in use prior to the adoption of the shape requirement, the nonconforming use would be protected from later zoning regulations by General Statutes § 8-2. Because the property has not yet been developed, however, the plaintiffs property was not in use and is not exempt from the shape requirement. Sherman-Colonial Realty Corp. v. Goldsmith, 155 Conn. 175, 183, 230 A.2d 568 (1967); Johnson v. Zoning Board of Appeals, 35 Conn. App. 820, 825, 646 A.2d 953 (1994). If the plaintiffs property was part of a valid subdivision approved prior to adoption of the lot shape requirement, the plaintiffs property would be exempt from the shape regulation. General Statutes § 8-26a (b); see Johnson v. Zoning Board of Appeals, supra, 824. The plaintiffs property, however, was never part of a subdivision. The chain of title reveals that the plaintiffs property was always a separate and distinct parcel and was not a part of any subdivision. Thus, the shape requirement applies to the plaintiff’s property, and the property is not a legal nonconforming lot.

Therefore, the only way the plaintiff could avoid application of the shape requirement would be by a variance, which the plaintiff sought. The board denied the plaintiff’s application on the ground that his property had been merged with the Johnson lot. The board concluded, in light of that presumption, that the plaintiff had created his own hardship by selling the Johnson lot. The trial court agreed with this assessment.

Because the board and the trial court based their rulings on an incorrect application of law, the plaintiff has never received a hearing on his application for a variance without reference to the Johnson lot. The properties never merged; the plaintiff has the right to an opportunity to attempt to demonstrate hardship on the basis of his property alone, without reference to the Johnson lot.

Similarly, the plaintiff never received a hearing on his application for a variance from the access requirement without reference to the Johnson lot. The board based its ruling on the application for access variance at least in part on its assumption that the hardship was self-created due to the merger of the plaintiff’s lot and the Johnson lot. Again, the plaintiff is entitled to an opportunity to demonstrate that he will suffer hardship by the application of the access requirements to his property alone.

The judgment is reversed and the case is remanded with direction to render judgment remanding the case to the Westport zoning board of appeals for a hearing on whether the plaintiff’s lot, standing alone, warrants a variance from the application of the shape and access requirements.

In this opinion the other judges concurred.

       Because our resolution of this issue requires a remand for a new hearing, we need not consider the plaintiff’s other claims.

       Westport zoning regulations § 12-3 provides: “Each lot shall have a minimum of one (1) acre (43,560 square feet) and shall be of such shape that a square with one hundred fifty (150) feet on each side will fit on the lot.”

       The Westport planning and zoning director issued her opinion in a letter to the buyer in which she explained her reasoning as follows:

        “This lot is not in compliance with the Westport zoning regulations, therefore no zoning certificate of compliance can be issued for the following reasons:
      “1. The lot shape is non-conforming, since a 150’ x 150’ square will not fit on to this lot.
      “2. The lot did not meet the zoning standards in existence at the time it was created.
      “According to Section 2 (k) of the September 8,1930 (including amendments to 12/8/42) Westport zoning regulations there shall not be more than one house for a 20' wide easement or right-of-way. The right-of-way leading to [the plaintiff’s property] also serves as an accessway to Lot 78.
      “3. In 1971 [the plaintiff’s property] was under the same ownership as an adjacent lot [the Johnson lot]. Both lots were owned by Buddy B. Inc. Since [the plaintiff’s lot] was nonconforming as to lot shape and undeveloped it merged with [the Johnson lot].”

       Westport zoning regulations § 6-3.2 provides in pertinent part: “If two or more adjoining lots of record, one or more of which are undeveloped and fail to meet the requirements of these regulations with regard to lot area and/or lot shape, were in the same ownership on March 24, 1956 or subsequent date, and if such lots taken together would form one or more lots, each more nearly meeting the requirements of these regulations with regard to lot area and lot shape, such lot or lots shall merge and shall no longer be considered legally existing as separate lots . . . .”

       A hexagon is defined as a “plane polygon of six angles and therefore six sides.” Webster’s Third New International Dictionary.

       General Statutes § 8-2 (a) provides in relevant part: “Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.”

       General Statutes § 8-26a (b) provides: “Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.”


source: Caselaw Access Project

author: Landau, J.,

license: Public Domain

text:
    State of Connecticut v. Lake Spears
    (12908)
    Landau, Spear and Cretella, Js.

      Argued March 28
    decision released September 20, 1994

      Richard D. Haviland, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom was Sarah E. Steere, certified legal intern, for the appellee (state).
   Landau, J.,

The principal issue in this appeal is whether the state of Connecticut has acquired criminal jurisdiction over the Mashantucket Pequot Indian reservation in Ledyard. The defendant, Lake Spears, was charged by a substitute information with committing various crimes while on the Mashantucket Pequot reservation. The defendant moved to dismiss the charges, claiming that the court lacked subject matter jurisdiction because the charged offenses were allegedly committed on the Mashantucket Pequot reservation. The trial court denied that motion, and rendered a judgment of conviction following the defendant’s plea of nolo contendere to the charges of interfering with a peace officer in violation of General Statutes § 53a-167a, assault in the third degree in violation of General Statutes § 53a-61, and disorderly conduct in violation of General Statutes § 53a-182. The defendant’s plea was entered conditional on his right to appeal the denial of his motion to dismiss.

The following facts are not in dispute. The Mashantucket Pequot Indian tribe is a federally recognized tribe that owns and occupies a tribal reservation containing approximately 1800 acres in Ledyard. The defendant is a member of the Narragansett Indian tribe, and not a member of the Mashantucket Pequot tribe. On November 29, 1991, in response to a telephone call, State Trooper Robert Maynard was dispatched to investigate a disturbance at 8 Elizabeth George Drive, a residential address on the Mashantucket Pequot reservation. Maynard was assisted by Ledyard town constables Sergeant David Guiher and Officers John Craig and William Blanchette. As a result of actions by the defendant, he was arrested by Maynard and Craig, charged, and ultimately presented before the Superior Court. At the time of the defendant’s arrest and presentment, he was “an Indian in Indian territory.” After the trial court found the defendant guilty on the plea of nolo contendere, the defendant appealed.

The defendant claims that the trial court improperly concluded that the Connecticut Indian Land Claims Settlement Act of 1983 (Settlement Act) effected a complete grant of criminal jurisdiction over the Mashantucket Pequot reservation to the state in that it (1) found that the plain meaning of § 6 of the Settlement Act, 25 U.S.C. § 1755, fully subjects the reservation to state criminal jurisdiction, and (2) found that the Mashantucket Pequot tribe has consented to state criminal jurisdiction.

The state asserts that it possesses criminal jurisdiction over the Mashantucket Pequot reservation pursuant to an express grant by Congress in § 6 of the Settlement Act. The state does not claim that the tribe is divested of self-government, or that the tribe cannot enact tribal laws that govern the conduct of tribal members, or that the tribe lacks power to enforce such laws.

The parties in this matter are in the curious position of agreeing on the issue, the general principles of law, the relevant authorities and the primary facts. Where the parties differ is on the result that is rendered after the facts are applied to the law.

The defendant claims that the state lacks jurisdiction over criminal offenses committed by Indians while on the Mashantucket Pequot reservation. The state and the defendant agree that states do not have jurisdiction over Indian country unless Congress has specifically authorized such jurisdiction. Worcester v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832). They disagree, however, in regard to the application of § 6 of the Settlement Act. Specifically, they disagree on the issue of whether § 6 vests the state with jurisdiction over crimes committed by Indians on the Mashantucket Pequot tribe’s reservation.

We agree with the defendant, and we arrive at our conclusion by way of the following statutory path. Section 6 of the Settlement Act, codified at 25 U.S.C. § 1755, addresses the issue of the state’s jurisdiction over the Mashantucket Pequot tribe. This statute refers to portions of Title IY of the Indian Civil Rights Act of 1968, codified at 25 U.S.C. §§ 1321 through 1326. The dispute in the present case concerns the impact of 25 U.S.C. § 1755 on §§ 401 and 406 of the Indian Civil Rights Act of 1968, codified at 25 U.S.C. §§ 1321 (a) and 1326, respectively. Specifically, the issue before us is whether 25 U.S.C. § 1755 vests the state with criminal jurisdiction over the Mashantucket Pequot tribe notwithstanding the provision contained in 25 U.S.C. § 1321 (a), which otherwise requires that a tribe manifest its consent to jurisdiction prior to a state’s assumption of jurisdiction.

We begin our analysis by examining the well established principles that govern state jurisdiction over Indians in Indian country. “Criminal jurisdiction over offenses committed in ‘Indian country’ ... is governed by a complex patchwork of federal, state, and tribal law.” (Citation omitted; internal quotation marks omitted.) Negonsott v. Samuels, 507 U.S. 99, 102, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993). “As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws . . . except where Congress in the exercise of its plenary and exclusive power over Indian affairs has ‘expressly provided that State laws shall apply.’ ” (Citation omitted.) Washington v. Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979). “When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the state’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” White Mountain Apache Tribe v. Bracken, 448 U.S. 136, 144, 100 S. Ct. 2578, 65 L. Ed. 2d 655 (1980).

In 1953, pursuant to its plenary authority over Indian affairs, Congress enacted Public Law 83-280, the first federal jurisdictional statute of general applicability to Indian reservation lands; Bryan v. Itasca County, 426 U.S. 373, 379, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976), and “the primary expression of federal policy governing the assumption by States of civil and criminal jurisdiction over the Indian Nations.” Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 884, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986) (Three Tribes II). The primary purpose of that legislation was to address the “problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.” Id.; Washington v. Yakima Indian Nation, supra, 439 U.S. 471; H.R. Rep. No. 848, 83d Cong., 1st Sess., pp. 5-6 (1953). Other purposes of the act were “to [promote] the gradual assimilation of Indians into the dominant American culture and [ease] the fiscal and administrative burden borne by the Federal Government by virtue of its control over Indian affairs.” Three Tribes II, supra, 886; Bryan v. Itasca County, supra, 387-88; H.R. Rep. No. 848, supra, pp. 3, 6.

Public Law 83-280, § 2, embodied the provision for state criminal jurisdiction over offenses committed by or against Indians on reservations. Bryan v. Itasca County, supra, 426 U.S. 380. It effected an immediate grant of criminal jurisdiction over Indian country to five states. To the remaining states, it provided an option to assume jurisdiction over criminal offenses in Indian country “without consulting with or securing the consent of the tribes that would be affected.” Washington v. Yakima Indian Nation, supra, 439 U.S. 473-74. Section 7 of Public Law 83-280 established a procedure by which all other states could obtain civil or criminal jurisdiction over Indian tribes: “The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” See Washington v. Yakima Indian Nation, supra, 474 n.9; Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 622, 587 A.2d 139 (1991).

In 1968, Congress enacted Title IV of the Indian Civil Rights Act, which repealed § 7 of Public Law 83-280. Title IV requires that all subsequent assertions of jurisdiction be preceded by tribal consent. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 467 U.S. 138, 144, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984) (Three Tribes I). “The impetus for the addition of a consent requirement in the 1968 amendments was congressional dissatisfaction with the involuntary extension of state jurisdiction over Indians who did not feel they were ready to accept such jurisdiction, or who felt threatened by it.” Three Tribes II, supra, 476 U.S. 892, citing S. Rep. No. 721, 90th Cong., 1st Sess., p. 32 (1967). Section 401 of Title IV, which addresses the subject of criminal jurisdiction over Indian country, provides: “The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.” (Emphasis added.) 25 U.S.C. § 1321 (a). “The method of a state’s assumption of criminal jurisdiction is not specified by § 401 [25 U.S.C. § 1321 (a)], but is found in § 406 codified in 25 U.S.C. § 1326 . . . Mashantucket Pequot Tribe v. McGuigan, 626 F. Sup. 245, 247 (D. Conn. 1986).

In 1983, Congress enacted the Settlement Act for the purpose of settling tribal claims to much of the private and public lands located in Ledyard. Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 246-47. Section 6 of the act, codified at 25 U.S.C. § 1755, which addresses the subject of state jurisdiction over the Mashantucket Pequot tribe’s reservation, provides: “Notwithstanding the provision relating to a special election in section 4-06 [of the Indian Civil Rights Act], the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in title IV of such Act. ” (Emphasis added.)

In the present case, the defendant claims that even if the Settlement Act eliminates the requirement for a special election pursuant to 25 U.S.C. § 1326, it does not eliminate the general consent requirement contained in 25 U.S.C. § 1321 (a). The defendant also claims that since the tribe has never consented to the state’s assumption of jurisdiction over offenses committed by Indians on the Mashantucket Pequot reservation, the state lacks such jurisdiction and, therefore, the defendant’s motion to dismiss must be granted.

I

We first address the issue of whether the Settlement Act dispenses with the special election requirement contained in 25 U.S.C. § 1326. The trial court concluded that the plain meaning of 25 U.S.C. § 1755 “clearly indicates the intent of Congress to dispense with the special election requirement of § 406 [of Title IV of the Indian Civil Rights Act, codified at 25 U.S.C. § 1326].”

“It is the duty of the court to ‘interpret statutes as they are written’; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and not ‘by construction read into statutes provisions which are not clearly stated.’ Glastonbury Co. v. Gillies, 209 Conn. 175, 179, 550 A.2d 8 (1988).” State v. Johnson, 227 Conn. 534, 542, 630 A.2d 1059 (1993). Where the “ ‘will of Congress . . . has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.’ ” Negonsott v. Samuels, supra, 507 U.S. 104, citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S. Ct. 3245, 73 L. Ed. 2d 973 (1982).

Section 1755 of title 25 of the United States Code provides: “Notwithstanding the provision relating to a special election in section 406 of the [Indian Civil Rights Act] . . . .” The plain language of this statute clearly indicates that Congress intended to dispense with the special election requirement that is otherwise required in order for a state to assume criminal jurisdiction over crimes committed by Indians in Indian country. We conclude, therefore, that the trial court properly determined that 25 U.S.C. § 1755 dispenses with the special election requirement contained in 25 U.S.C. § 1326.

II

We next address the issue of whether the Settlement Act dispenses with the general consent requirement contained in 25 U.S.C. § 1321 (a). The trial court stated that “ ‘[t]he primary concern of Congress in enacting Public Law [83-280] that emerges from its sparse legislative history, was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institution for law enforcement.’ . . . Since the Settlement Act dispenses with this special election and grants criminal jurisdiction in the State of Connecticut without the requirements of any such vote, it must be concluded that criminal jurisdiction has been fully vested in the State of Connecticut.” Initially, we note that the language contained in 25 U.S.C. § 1755 is ambiguous because, although it “eliminates the consent election provided in 25 U.S.C. § 1326, it may have created an anomaly by the fact that it does not eliminate the consent requirement of 25 U.S.C. § 1321 [a].” Mashantucket Pequot Tribe v. McGuigan, supra, 626 P. Sup. 248. Since the statutory language is unclear, we must determine whether Congress intended to eliminate the general consent requirement contained in § 401 of Title IV, codified at 25 U.S.C. § 1321 (a).

“It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent.” State v. Johnson, supra, 227 Conn. 541. “If the statutory language is unclear, the intent of the legislature may be ascertained by looking to the legislative history and to the purpose that the statute was intended to serve.” Id., 542. “Furthermore, it is a well established rule of statutory construction that repeal of the provisions of a statute by implication is not favored and will not be presumed where the old and the new statutes, in this case [25 U.S.C. § 1321 (a) and 25 U.S.C. § 1755], can peacefully coexist.” McCarthy v. Commissioner of Correction, 217 Conn. 568, 578, 587 A.2d 116 (1991). “ ‘In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.’ ” Id. “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988).

As we noted previously, Congress enacted Title IV of the Indian Civil Rights Act in response to “congressional dissatisfaction with the involuntary extension of state jurisdiction over Indians who did not feel they were ready to accept such jurisdiction, or who felt threatened by it.” Three Tribes II, supra, 476 U.S. 892, citing S. Rep. No. 721, 90th Cong., 1st Sess., p. 32 (1967). Congress concluded that tribes were critical of Public Law 83-280 “because it authoriz[ed] the unilateral application of State law to all tribes without their consent and regardless of their needs or special circumstances.” Id. (views of Senator Sam Ervin). The Indian Civil Rights Act amended Public Law 83-280 so that any State not presently having civil and criminal jurisdiction over Indian tribes would be required to obtain the consent of the tribes before assuming such jurisdiction. In order to verify that tribal members were in fact “ready to accept such jurisdiction,” Congress enacted § 406 of Title IV, 25 U.S.C. § 1326. Section 406 provides that tribal consent may be manifested only by a majority vote of the tribe’s enrolled adult Indians, voting in a special election held for that purpose. Kennerly v. District Court of Montana, 400 U.S. 423, 429, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971).

Essentially, Congress enacted only one tribal consent requirement, embodied in § 401, codified at 25 U.S.C. § 1321 (a), and one method by which consent must be demonstrated, embodied in § 406, codified at 25 U.S.C. § 1326. “The method of a state’s assumption of criminal jurisdiction is not specified by § 401 [25 U.S.C. § 1321 (a)], but is found in § 406 [25 U.S.C. § 1326] . . . wherein the election to effectuate consent is set forth and is mandatory.” Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 247. After tribal consent is manifested by the method prescribed in § 406, “the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.” Id.; see 25 U.S.C. § 1321 (a).

In light of the legislative history of the Indian Civil Rights Act and the case law interpreting § 401 of the Indian Civil Rights Act, we conclude that Congress, by enacting 25 U.S.C. § 1755, did not intend to dispense with the general consent requirement embodied in 25 U.S.C. § 1321 (a). “If the legislature had intended by enacting [25 U.S.C. § 1755] to do away with the longstanding policy of [the general consent requirement], it could easily have said so.” See McCarthy v. Commissioner of Correction, supra, 217 Conn. 578. In fact, Congress did not do so; it merely removed the specific procedure by which tribal consent must be manifested.

Ill

Finally, we address the issue of whether the Mashantucket Pequot tribe has consented to the state’s assumption of criminal jurisdiction over offenses committed by Indians on the Mashantucket Pequot reservation. Both the state and the defendant cite portions of the Mashantucket Pequot Tribal Ordinance (M.P.T.O.) No. 112091-01 to support their argument. As we stated earlier, it is our duty to “interpret statutes as they are written.” Muha v. United Oil Co., supra, 180 Conn. 730. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” (Internal quotation marks omitted.) Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988).

The plain language of M.P.T.O No. 112091-01 does not amount to an “unequivocal expression” of tribal consent. On its face, the ordinance merely appears to •acknowledge and address the well established principle that tribal courts lack inherent authority to punish a person who is not Indian on the reservation, and may not exercise such jurisdiction without the consent of Congress. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978). Absent an unequivocal expression of consent by the tribe, we are unwilling to imply such consent. Our conclusion that the tribe has not consented to such jurisdiction is also supported by the language contained in subsequent tribal ordinances.

We conclude, therefore, that the plain language of the Mashantucket Pequot Tribal Ordinances does not unequivocally express the tribe’s consent to the assumption by the state of jurisdiction over offenses committed on the reservation by Indians. Indeed, the plain language of the ordinances expressly denies such consent.

In sum, we conclude that although § 6 of the Settlement Act, codified at 25 U.S.C. § 1755, dispenses with the special election requirement of 25 U.S.C. § 1326, it does not dispense with the general consent requirement of 25 U.S.C. § 1321 (a). Since 25 U.S.C. § 1321 (a) requires that tribal consent be manifested prior to “the criminal laws of the state having the same force and effect within Indian country as they have elsewhere within the state,” and the Mashantucket Pequot Tribe has never consented to the state’s assumption of criminal jurisdiction, we hold that 25 U.S.C. § 1755 does not vest the state with criminal jurisdiction over criminal offenses committed by Indians on the Mashantucket Pequot reservation.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss.

In this opinion the other judges concurred.

       The defendant was arrested initially on a charge of disorderly conduct involving Keri Spears, his wife, a resident of the reservation.

       Although the defendant’s motion to dismiss advances two separate grounds for dismissal, the defendant acknowledged at oral argument before the trial court that the second claim in the motion, that the alleged conduct needed to have occurred in a public place, was abandoned.

       General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the . . . motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” See also Practice Book § 4003.

       All parties agree that the fact that the defendant is not a member of the Mashantucket Pequot tribe has no legal significance in this appeal.

       On December 15, 1992, the court granted the Mashantucket Pequot tribe’s motion to intervene as amicus curiae. The tribe supports the defendant’s position that the state lacks subject matter jurisdiction. On February 17, 1993, the court granted the motion filed by the United States government to intervene as amicus curiae. The United States government supports the state’s position that the state, and not the federal government, has jurisdiction to prosecute the defendant for state crimes committed on the Mashantucket Pequot reservation.

       Public Law 98-134, 97 Stat. 851 (1983), codified at 25 U.S.C. §§ 1751 through 1760. The act is also known as the Mashantucket Pequot Indian Claims Settlement Act. Id. Under the terms of the act, the state contributed twenty acres of public land in Ledyard to establish initially the Mashantucket Pequot reservation. 25 U.S.C. § 1751 (f). Congress identified an additional 800 acres of private land surrounding the initial twenty acres as “settlement lands” to be purchased for the tribe and incorporated into the reservation. 25 U.S.C. §§ 1752 and 1754. Reservation land is held in trust for the tribe by the federal government. 25 U.S.C. § 1757.

       Section 6 of the Settlement Act, codified at 25 U.S.C. § 1755, provides: “Notwithstanding the provision relating to a special election in section 406 of the Act of April 11,1968 [codified at 25 U.S.C. § 1326], the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in title IV of such Act [codified at 25 U.S.C. § 1321 et seq.].”

       In its amicus brief, the United States government claims that it has two interests to protect. The first is in maintaining a correct interpretation of the federal statutes at issue here. It claims that the defendant and the tribe’s position is simply an incorrect interpretation of the law. The United States government also claims a strong administrative interest in the outcome of this case because it claims that the logical consequence of the defendant’s position is that the state courts also lack jurisdiction over many criminal prosecutions for crimes committed on the reservation by persons who are not Indians; the corollary being that the federal courts and the federal government must assume the burden of these prosecutions. The government asserts that “the issue before the [Appellate Court] has large consequences for the United States. Adoption of the defendant’s position would impose a significant burden on the federal judiciary, the federal courts, the United States Attorney’s office, the United States Marshals’ Service and all other federal law enforcement agencies. Without in any way minimizing the enormous caseload in the state courts, the United States must point out that, based on a system that calculates the weight of each case, the United States District Court for the District of Connecticut had one of the heaviest caseloads per judgeship in the federal judicial system. See, 1991 Federal Court Management Statistics, Administrative Office of the United States Courts, p. 45. Our District Court and its associated personnel cannot easily absorb new area of jurisdiction, especially in criminal cases subject to the Speedy Trial Act. See, 18 U.S.C. § 3161 et seq.”

       “Indian country” is defined in 18 U.S.C. § 1151, which provides in pertinent part: “Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’ . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . .’’Asa threshold matter, we note that the Mashantucket Pequot tribe is a federally recognized Indian tribe; 25 U.S.C. § 1758; and occupies a reservation of land in Ledyard pursuant to General Statutes § 47-63. The Mashantucket Pequot reservation is, therefore, Indian country to which federal law applies. See 25 U.S.C. § 1152.

       For example, the Indian Country Crimes Act, codified at 18 U.S.C. § 1152, extends “the general laws of the United States ... to the Indian country,” except to “offenses committed by one Indian against the person or property of another Indian . . . .” “These latter offenses typically are subject to the jurisdiction of the concerned Indian tribe, unless they are among those enumerated in the Indian Major Crimes Act [codified at 18 U.S.C. § 1153].” Negonsott v. Samuels, 507 U.S. 99, 102, 113 S. Ct. 1119, 122 L. Ed. 2d 457 (1993). “Federal jurisdiction over the offenses covered by the Indian Major Crimes Act is exclusive of state jurisdiction.” Id.
      The Indian Major Crimes Act, codified at 18 U.S.C. § 1153, provides:
      “(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A . . . incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
      “(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.”

       See, e.g., Mashantucket Pequot Tribal Ordinance (M.P.T.O.) No. 112091-01, M.P.T.O. No. 011092-02, M.P.T.O. No. 113093-03.

       Public Law 83-280, 67 Stat. 588-90 (1953), codified, as amended, at 18 U.S.C. § 1162 and 28 U.S.C. § 1360.

       Section 2 of Public Law 83-280 provides in pertinent part: “Each of the States listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within the State . . . See Washington v. Yakima Indian Nation, supra, 439 U.S. 471-72 n.9; see also 18 U.S.C. § 1162 and 28 U.S.C. § 1360.

       Public Law 83-280 granted criminal jurisdiction to California, Minnesota, Nebraska, Oregon and Wisconsin, with an express exception for the reservations of three tribes. See Washington v. Yakima Indian Nation, supra, 439 U.S. 471-72 n.9. Alaska was added to this group in 1958. See 18 U.S.C. § 1162 and 28 U.S.C. § 1360.

       Public Law 90-284, 82 Stat. 79 (1968), codified at 25 U.S.C. §§ 1321 through 1326.

       25 U.S.C. § 1321 (a).

       Section 406, codified as amended at 25 U.S.C. § 1326, provides: “Special election. State jurisdiction acquired pursuant to this [subchapter] with respect to criminal offenses or civil causes of action, or with respect to both, shall be applicable in Indian country only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the Interior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults.”

       In Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 245, the plaintiff, an Indian tribe, sought a declaratory judgment and injunctive relief to preclude enforcement of state statutes pertaining to the conduct of bingo games on the plaintiff’s reservation. The court held that the state’s bingo statutes were regulatory and civil in nature and, therefore, unenforceable under a grant of jurisdiction over criminal law. Id., 249. The court did not resolve the issue of whether Connecticut possessed criminal jurisdiction over the reservation; the court expressly reserved the issue of whether the Connecticut Indian Claims Settlement Act, 25 U.S.C. § 1751 et seq., eliminates the consent election requirement provided for in 25 U.S.C. § 1326. Mashantucket Pequot Tribe v. McGuigan, supra, 246.
      We also take notice of the dicta in Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, supra, 217 Conn. 615 n.3: “[A] federal district court sitting in Connecticut has held recently that Connecticut has acquired criminal, but no civil, jurisdiction over state Indian tribes [citing Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 249].” Respectfully and regretfully, we do not read the holding in McGuigan as does our Supreme Court.
      The District Court, Dorsey, J., after opining that “[tjhere is a difference between a criminal law which prohibits conduct and imposes penal sanctions if the prohibition is disobeyed, and a law which regulates, controls and/or limits conduct”; id., 248; stated that, “[t]he dominant character of the nature and purpose of Connecticut’s bingo laws is regulatory and the single penal statute included therein is not to be considered in isolation. ... As a regulatory action, Connecticut’s bingo laws . . . are found not to be enforceable under a grant of jurisdiction over criminal law.” (Citation omitted.) Id., 249. The McGuigan court did not reach the issue of criminal jurisdiction because, even assuming that the court did do so, the statutes in question were found to be regulatory rather than criminal.

       In Kennerly v. District Court of Montana, supra, 400 U.S. 425, the United States Supreme Court analyzed the procedures by which “tribal consent” must be manifested under Title IV of the Indian Civil Rights Act; the court held that unilateral legislative action by a tribal counsel “does not comport with the explicit requirements of the Act.” In that case, a person who is not Indian brought an action in a Montana state court against two Indians to collect a debt. The Montana Supreme Court ruled that the state court possessed jurisdiction based on a 1967 unilateral act of the tribal counsel. The act of the tribal counsel provides in part: “The Tribal Court and the State shall have concurrent and not exclusive jurisdiction of all suits wherein the defendant is a member of the Tribe which is brought before the Courts.” The United States Supreme Court reversed, concluding that the tribe’s unilateral act did not comport with the explicit requirements of Title IV of the Indian Civil Rights Act because the “plain meaning” of the statute requires that tribal consent “must be manifested by [a] majority vote of the enrolled Indians within the affected area of Indian country.” Id., 427-29.

       In Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 247, the court noted the significance of this quoted phrase: “As thus incorporated in § 401 [25 U.S.C. § 1321 (a)], not in a separate sentence, and as unlikely to have a separate effect, independent of the prior provisions of § 401 (a), [this] phrase is construed to describe the force and effect of state law upon fulfillment of the conditions [contained in § 401 (a)].” Id. “This would perhaps be clearer if the word ‘then’ were inserted such that the quoted phrase read: ‘. . . and the criminal laws of such state shall then have ....’” (Emphasis added.) Id.

       M.P.T.O. No. 112091-01 provides in pertinent part: “Section 1(a). Violations of State criminal laws: Every offense against those criminal laws of the State of Connecticut which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Claims Settlement Act [25 U.S.C. § 1755] and 25 U.S.C. § 1321, shall be an offense against the law of the Mashantucket Pequot Tribe and the Mashantucket Pequot Tribe hereby adopts and incorporates by reference, as the law of the Mashantucket Pequot Tribe, all provisions of such criminal laws of the State of Connecticut which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Claims Settlement Act.”

        “Section 5: Concurrent jurisdiction over State offenses. The Mashantucket Pequot Tribal Police Department shall exercise concurrent authority with law enforcement officers of the State of Connecticut to make arrests for violations of criminal laws of the State which are made applicable to the Mashantucket Pequot Reservation by Section 6 of the Mashantucket Pequot Indian Land Claim Settlement Act [25 U.S.C. § 1755] and 25 U.S.C. § 1321; provided: however, that persons arrested by officers of the Mashantucket Pequot Tribal Police Department for such violations of criminal laws of the State of Connecticut shall be transferred as promptly as may be feasible to the jurisdiction of State law enforcement officers and the Mashantucket Pequot Tribal Police Department shall comply with all reasonable requirements of State law enforcement officers and agencies in order to assist in the prosecution of such offenders under the laws of the State of Connecticut.”

       “[T]he tribe . . . has criminal jurisdiction over Indians who commit crimes on the reservation . . . . ” M.P.T.O. No. 011092-02. “[T]he Mashantucket Pequot tribe has inherent authority to exercise jurisdiction over criminal matters that arise on the Mashantucket Pequot Tribal Nation Lands ... the tribe has determined that it will exercise its jurisdiction to the maximum extent permitted by federal law . . . the tribe has never intended that the State of Connecticut shall exercise criminal jurisdiction within the Nation Lands nor has the tribe by any act consented to the exercise by the state of criminal jurisdiction within the Nation Lands . . . .’’(Emphasis added.) M.P.T.O. No. 113093-03.


author: Schaller, J.

text:
    Dutch Point Credit Union, Inc. v. Caron Auto Works, Inc., et al.
    (12322)
    O’Connell, Freedman and Schaller, Js.

      Argued April 29
    decision released September 27, 1994

      Robert C. Lubas, Jr., with whom, on the brief, were David M. Kutzner and Charles M. Stango, law student intern, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant commissioner of motor vehicles).
   Schaller, J.

The plaintiff appeals from the trial court’s judgment for the defendants regarding the sale of a motor vehicle pursuant to General Statutes § 14-150. The plaintiff claims on appeal that the trial court improperly (1) determined that § 14-150 satisfies constitutional guarantees of due process of law, and (2) denied its claim for damages.

The plaintiff was the first lienholder of record on an automobile owned by Elizabeth Oree. After the vehicle was involved in an accident in Manchester and at the request of the Manchester police department, the defendant Caron Motors, Inc. (Caron Motors), towed the vehicle to its place of business. The named defendant, Caron Auto Works, Inc. (Caron Auto), then took possession of the vehicle after Oree asked Caron Auto to repair it. Several weeks after this discussion, however, Oree had neither paid the deposit requested by Caron Auto before it would commence work on the vehicle nor removed the vehicle from Caron Auto’s premises.

Believing that Oree had abandoned the automobile and seeking to recover towing and storage expenses, Caron Auto filed with the department of motor vehicles (department) a notice of intent to sell an abandoned vehicle pursuant to General Statutes § 14-150. Caron Auto published notice of its intent to sell in the Hartford Courant, but did not notify the plaintiff of its intent to sell the vehicle. The plaintiff’s lien was readily ascertainable from the vehicle’s certificate of title on file at the department. At a public auction, Caron Auto sold the vehicle to Caron Motors. Caron Motors, in turn, sold the vehicle to a bona fide purchaser. Both sales were made free of the plaintiff’s lien on the vehicle, and the plaintiff was not notified of the vehicle’s sale.

The plaintiff then commenced an action against Caron Auto, Caron Motors and the defendant commissioner of motor vehicles seeking to recover damages from Caron Auto and Caron Motors on the ground that the sale of the vehicle should have been made subject to the plaintiffs lien. The plaintiff also sought a declaratory judgment with respect to the constitutionality of § 14-150.

The trial court ruled that the plaintiff was not entitled to damages and that the provisions of § 14-150 did not deprive the plaintiff of due process protection. In its memorandum of decision, the court determined that the department receives approximately 25,000 requests per year from garage owners for permission to sell abandoned vehicles, and, in order to enable a garage owner to provide actual notice to a lienholder in each case, the department would have to send the garage owner a copy of the vehicle’s certificate of title. The court stated that it believed that furnishing a copy for each request would unduly burden the department.

The plaintiff claims on appeal that the trial court improperly concluded that the sale of the vehicle pursuant to § 14-150 was constitutional. The plaintiff also contends that because the sale of the vehicle was improper, it is entitled to damages for Caron Auto’s conversion of its property interest. Before reaching the plaintiff’s claims, we consider, sua sponte, whether the circumstances of this case have rendered the appeal moot. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Grace Community Church v. Bethel, 30 Conn. App. 765, 769, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S. Ct. 83, 126 L. Ed. 2d 332 (1993).

In this case, the plaintiff obtained a judgment against Oree in an effort to collect the amount owed on the lien. The plaintiff, however, did not recover the full amount of the debt. As a result, we conclude that the plaintiffs claim for damages is not moot, as the plaintiff is entitled to attempt to recover the full amount secured by its lien. Because the plaintiffs claim for damages is based on a determination that the sale of the vehicle violated principles of due process, the plaintiffs claim for declaratory relief is also not moot, and we now address the constitutionality of § 14-150.

Pursuant to § 14-150, an abandoned vehicle that presents a menace to traffic or public safety will be towed and stored at the command of a public officer. The statute creates a lien on the vehicle for storage charges, and provides for the sale of the vehicle after a certain period of storage in order to pay for certain charges, including those for towing and storage. A garage owner who stores a vehicle valued at $500 or less may sell the vehicle, provided the garage owner notifies the owner of the vehicle, if known, and the department of his or her intent to sell. A garage owner who stores a vehicle valued at more than $500 must sell the vehicle at a public auction, provided the garage owner sends notice by mail of the date and place of the sale to the last place of abode of the vehicle owner, if known, and provided the garage owner advertises the sale “in a newspaper published or having a circulation in the town where such garage ... is located three times, commencing at least five days before such sale . . . .” General Statutes § 14-150 (g). The statute does not, however, provide for actual notice to lienholders of the vehicle.

Section 14-150 effectuates the state's interest in enforcing traffic laws and in protecting the public from hazardous street conditions. The statute provides a means for those assisting the state in the towing and storage of abandoned vehicles to recover the costs of their services. The plaintiff claims, however, that the statute deprives lienholders of procedural due process of law as guaranteed by the fourteenth amendment to the federal constitution and article first, § 8, of the state constitution. The plaintiff contends that the sale of a vehicle subject to a lien without actual notice to the lien-holder deprives the lienholder of property without due process of law.

The due process clauses of the federal and state constitutions can be violated only by conduct of the state, as they do not restrict the actions of private persons or entities. State v. Holliman, 214 Conn. 38, 43, 570 A.2d 680 (1990). Here, pursuant to § 14-150, a public officer makes the determination that a vehicle should be towed and summons a towing company to tow the vehicle. The towing company removes the vehicle only at the direction of the officer, who designates the garage where the vehicle is to be stored. The garage owner obtains a lien and may sell the vehicle to recover costs pursuant to the statutory scheme designed to effectuate the state’s interest in enforcing traffic laws and maintaining public safety. The state monitors the sale of an abandoned vehicle by requiring notice of intent to sell and by establishing the procedures for the transfer of title of the vehicle. Because the state is prominently involved in the towing, storage and sale of an abandoned vehicle, we conclude that state action exists to trigger the constitutional requirements of due process. See Stypmann v. City & County of San Francisco, 557 F.2d 1338, 1341-42 (9th Cir. 1977).

In order to prevail on its procedural due process claim, the plaintiff must show that (1) its property interest is cognizable under the due process clause, (2) it has been deprived of its property interest, and (3) the deprivation of the property interest has occurred without due process of law. Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 76, 588 A.2d 624 (1991). Here, the plaintiff, as a lienholder, possesses a substantial property interest in the vehicle that is significantly affected by the sale of the vehicle pursuant to § 14-150. Because the purchase of the vehicle results in the passage of title free of all liens on the vehicle, the sale nullifies the plaintiff’s property interest. The plaintiff’s interest, therefore, is entitled to due process protection.

“[P]rior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause ... a State must provide 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983). We conclude that the circumstances of this case are analogous to those of the United States Supreme Court case of Mennonite Board of Missions, where the court found that the notice requirements of a statute allowing for the sale of property were insufficient to provide due process of law. In that case, the state statute allowed for the sale of real property where the payment of property taxes had been delinquent for a specified period of time. The statute required notice by publication to advertise the sale and notice by mail to the owner of the property subject to sale. The statute, however, did not provide for actual notice to a mortgagee of the property. As a result, property could be sold free of all liens and encumbrances without actual notice being provided to a mortgagee. The United States Supreme Court found that notice by publication did not adequately protect the property interests of a mortgagee for the purposes of due process.

In this case, § 14-150 allows for the sale of personal property that is deemed abandoned. Although the statute provides for notice by mail to the owner of the property and notice by publication to advertise the sale, the statute does not provide for actual notice to a lienholder on the property. Under the statute, the property can be sold free of all liens without notice being accorded to a lienholder. Thus, the lienholder in this case and the mortgagee in Mennonite Board of Missions v. Adams, supra, 462 U.S. 791, as holders of security-interests in property subject to public sale pursuant to state statute, occupy similar positions. Because the plaintiff in this case, as did the mortgagee in Mennonite Board of Missions, faces the extinguishment of its property interest without actual notice of the proceedings that may nullify that interest, we conclude that notice by publication pursuant to § 14-150 is not reasonably calculated to inform the plaintiff of the sale of the vehicle and does not satisfy the requirements of due process.

Notice by publication is “designed primarily to attract prospective purchasers to the [public] sale, [and is] unlikely to reach those who, although they have an interest in the property, do not make special efforts to keep abreast of such notices.” Id., 799. “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party ... if its name and address are reasonably ascertainable.” Id., 800. In this case, because the plaintiffs lien and identity are readily determinable from the department’s records, constructive notice alone would not satisfy the requirements of due process.

Furthermore, because notice by publication is a less reliable method of informing lienholders, such notice is not reasonable where inexpensive and efficient mechanisms exist for providing actual notice. See id., 799. Even where a party has the “ability to take steps to safeguard its interests . . . the State may [not] forgo . . . relatively modest administrative burden[s]. . . .” Id., 799-800. In this case, the administrative burden to the department would not be so great. The department could provide a certificate of title to a garage owner where a lien existed on the vehicle, and any cost for providing the certificate could be borne by the garage owner. The garage owner could then be required under the statute to provide notice by mail to the lienholder. Because we determine that the notice requirements of § 14-150 are insufficient to protect the property interests of a lienholder for the purposes of procedural due process, we conclude that § 14-150 is unconstitutional.

Because we conclude that § 14-150 is unconstitutional, we address the plaintiff’s claim for damages. The plaintiff contends that Caron Auto’s sale of the vehicle constituted a conversion of its lien interest. Before we can consider the merits of this claim, however, we must determine whether a person who acts pursuant to a statute that is subsequently declared unconstitutional can face personal liability for its actions.

Under the historic “void ab initio” rule, a statute declared to be unconstitutional was, “in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425, 442, 6 S. Ct. 1121, 30 L. Ed. 178 (1886); see 1 J. Sutherland, Statutes and Statutory Construction (5th Ed. 1994 Rev.) § 2.07. Such a statute was deemed to have no legal effect and, in turn, offered no retroactive protection from civil liability for actions taken in reliance on it. See 1 J. Sutherland, supra, § 2.07; see, e.g., Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955). The United States Supreme Court, however, in an effort to address equitable and practical concerns, has moved away from the principle of void ab initio. According to the court, “[t]he actual existence of a statute, prior to [a constitutional] determination, is an operative fact and may have consequences which cannot justly be ignored. . . . The effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with respect to particular relations . . . and particular conduct .... [A]n all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S. Ct. 317, 84 L. Ed. 329 (1940). The court also stated that “[hjowever appealing the logic of [void ab initio] may have been in the abstract, its abandonment reflected our recognition that statutory . . . rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity.” Lemon v. Kurtzman, 411 U.S. 192, 199, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973).

In response to the abandonment of the principle of void ab initio, a number of jurisdictions have adopted tests of reasonableness and good faith to determine the consequences of conduct undertaken pursuant to a statute subsequently deemed invalid. See 1J. Sutherland, supra, § 2.05; see, e.g., Shreve v. Western Coach Corp., 112 Ariz. 215, 216-17, 540 P.2d 687 (1975); Downs v. Jacobs, 272 A.2d 706, 708 (Del. 1970); Wagshal v. Selig, 403 A.2d 338, 341-42 (D.C. App. 1979); Perkins v. Eskridge, 278 Md. 619, 634-35, 366 A.2d 21 (1976), overruled on other grounds in Parrott v. State, 301 Md. 411, 483 A.2d 75 (1984); Yekhtikian v. Blessing, 90 R.I. 287, 290-91, 157 A.2d 669 (1960). Those jurisdictions have concluded that, generally, it would be an injustice to penalize a person for actions taken under a statute that was valid at the time of the conduct. We join those jurisdictions, and recognize that citizens have the right to accept statutory law as written until it is repealed or invalidated; citizens are not required to speculate on the constitutionality of a statute before acting under it. We, therefore, hold that citizens will not face personal liability for acting reasonably and in good faith reliance on the provisions of a statute that is later declared unconstitutional. In this case, there is no evidence to suggest that Caron Auto acted unreasonably or in bad faith when it sold the vehicle pursuant to the terms of § 14-150. As a result, the plaintiff may not recover on its claim for damages.

The judgment is reversed in part and the case is remanded with direction to render judgment as on file except as modified to declare General Statutes § 14-150 unconstitutional in accordance with this opinion.

In this opinion the other judges concurred.

       The defendants in this case are Caron Auto Works, Inc., Caron Motors, Inc., and Lawrence DelPonte, the commissioner of motor vehicles.

       The trial court found that the vehicle was worth approximately $300 following the accident, but was sold for approximately $2800 because Caron Auto and Caron Motors had repaired and painted it. The court concluded that Caron Auto and Caron Motors were entitled to deduct towing, storage and repair expenses from the amount received from the sale.

       We cannot determine from the record in this case whether the judgment against Oree was for the full amount of the debt. The record does disclose that Oree did not pay the full amount of the judgment or the debt.

       The United States District Court for the district of Connecticut found a previous version of General Statutes § 14-150 unconstitutional in Tedesehi v. Blackwood, 410 F. Sup. 34 (D. Conn. 1976). In that case, the court concluded that towing, storage and sale pursuant to the statute deprived vehicle owners of property without due process of law in violation of the fourteenth amendment to the federal constitution. The court held that the statute did not grant affected parties the right to a hearing regarding the appropriateness of towing, storage or sale of a vehicle. The legislature has amended the statute to provide for a hearing process. See General Statutes § 14-150 (f) (1). In this case, we are considering whether the current provisions of § 14-150 deprive lienholders of property interests without sufficient notice to satisfy the mandates of due process.
      As did the District Court in Tedesehi, other courts have considered whether the recognition of a lien for towing or storage charges with regard to a vehicle that has been towed or stored at the direction of a public officer violates the vehicle owner’s constitutional rights. See, e.g., Stypmann v. City & County of San Francisco, 557 F.2d 1338 (9th Cir. 1977); see generally annot., 85 A.L.R.3d 199, Lien for Towing or Storage, Ordered by Public Officer, of Motor Vehicle (1978); annot., 64 A.L.R.3d 814, Garage-man’s Lien: Modem View as to Validity of Statute Permitting Sale of Vehicle Without Hearing (1975).

       General Statutes § 14-150 provides in pertinent part: “(b) Any inspector of the motor vehicle department, any officer attached to an organized police department or any state police officer upon discovery of any motor vehicle, whether situated within or without any highway of this state, which is a menace to traffic or public health or safety, shall take such motor vehicle into his custody and cause the same to be taken to and stored in a suitable place.
      * ** *
      “(g) The owner or keeper of any garage or other place where such motor vehicle is stored shall have a lien upon the same for his storage charges. . . . [I]f the current market value of such motor vehicle as determined in good faith by such owner or keeper does not exceed five hundred dollars and such motor vehicle has been stored for a period of not less than fifteen days, such owner or keeper may . . . sell the same for storage and towing charges owed thereon, provided a notice of intent to sell shall be sent to the commissioner [of the department of motor vehicles] and the owner of such motor vehicle, if known, five days before the sale of such vehicle. If the current market value of the such motor vehicle as determined in good faith by such owner or keeper exceeds five hundred dollars and if such motor vehicle has been so stored for a period of ninety days, such owner or keeper shall . . . sell the same at public auction for cash, at his place of business, and apply the avails of such sale toward the payment of his charges and the payment of any debt or obligation incurred by the officer who placed the same in storage, provided such sale shall be advertised in a newspaper published or having a circulation in the town where such garage or other place is located three times, commencing at least five days before such sale; and, if the last place of abode of the owner of such motor vehicle is known to or may be ascertained by such garage owner or keeper by exercise of reasonable diligence, notice of the time and place of sale shall be given him by mailing such notice to him in a registered or certified letter, postage paid, at such last usual place of abode, at least five days before the time of sale.
      * * *
      “(j) The commissioner of motor vehicles shall adopt regulations . . . (1) specifying the circumstances under which title to any motor vehicle abandoned within the limits of any highway may be transferred to any person, firm or corporation towing such vehicle, and (2) establishing the procedure whereby such person, firm or corporation may obtain title to such motor vehicle.”

       In this case, we need not engage in an independent analysis of our constitution. Although the plaintiff invokes the due process clause of the Connecticut constitution, it has not provided a separate analysis of its claim. See Orsi v. Senatore, 31 Conn. App. 400, 427 n.19, 626 A.2d 750, cert. granted, 228 Conn. 908, 635 A.2d 1228 (1993). Furthermore, “[o]ur Supreme Court has repeatedly held that, as a general rule, the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations. . . .” (Citations omitted; internal quotation marks omitted.) State v. Morales, 33 Conn. App. 184, 193, 634 A.2d 1193, cert. granted, 228 Conn. 928, 640 A.2d 116 (1993). We also conclude that federal principles of due process are dispositive of the plaintiffs claim.

       The statute in question in Mermonite Board of Missions v. Adams, supra, 462 U.S. 791, allowed for a period of redemption whereby a party with an interest in the property could redeem it. Although the statute provided for notice by mail to the owner of the right to redeem, no such notice to a mortgagee was required.

       Although the state requires the garage owner to notify the owner of the vehicle, such notice does not translate into notice for the lienholder. “Notice to the property owner, who is not in privity with his creditor and who has failed to take steps necessary to preserve his own property interest .. . cannot be expected to lead to actual notice to the [lienholder].” Mennonite Board of Missions v. Adams, supra, 462 U.S. 799.

       Testimony at trial revealed that, in the past, the department had charged a nominal fee for providing a copy of a certificate of title.


author: Per Curiam.

text:
    State of Connecticut v. William O’Connell
    (13680)
    Dupont, C. J., and O’Connell, Foti, Laveey, Schallee, Speae and Hennessy, Js.
    Considered September 15
    decision released October 4, 1994

      Michael J. Weber, Jr., supervisory assistant state’s attorney, in support of the motion.

      William O’Connell, pro se, in opposition to the motion.
   Per Curiam.

The defendant appeals from the order of the trial court ordering him to submit to an examination to determine his competency to stand trial pursuant to General Statutes § 54-56d (c). The state asserts in its motion to dismiss the appeal that this court lacks subject matter jurisdiction because the order from which the defendant appeals is not a final judgment for purposes of appeal. We agree.

The defendant was arrested on February 26, 1994, and charged with breach of the peace in violation of General Statutes § 53a-181. He was granted accelerated rehabilitation but, on May 6,1994, the trial court terminated it and ordered him, pursuant to § 54-56d (c), to submit to an examination to determine his competency to stand trial. The defendant has appealed from the court’s ruling ordering him to submit to an examination.

Absent a final judgment, we cannot reach the merits of the appeal. General Statutes § 52-263; Practice Book § 4000; Smith v. Otis Elevator Co., 33 Conn. App. 99, 102, 633 A.2d 731 (1993). An interlocutory order is a final judgment for purposes of appeal “ ‘(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.’ ” Ackerson v. Stramaglia, 225 Conn. 102, 104, 621 A.2d 1315 (1993), quoting State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Because the order requiring the defendant to submit to an examination is an integral part of the criminal proceeding against the defendant, the final judgment issue in this case implicates only the second prong of the Curdo test.

The issue of whether the order so concludes the rights of the parties that further proceedings cannot affect them focuses on the potential harm to the appellant’s rights. “A presentence order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial.” State v. Neron, 35 Conn. App. 236, 238, 644 A.2d 970 (1994), citing State v. Curcio, supra, 191 Conn. 33-34. “One must make at least a colorable claim that some recognized statutory or constitutional right is at risk.” State v. Curcio, supra, 34.

The defendant does not assert that a particular claimed right is at risk in this proceeding, nor can we identify any such right. The purpose of the examination that the defendant opposes is to determine whether he is capable of understanding the proceedings against him and assisting in his own defense. See General Statutes § 54-56d (a). The examination is for the defendant’s own benefit and there is no claimed right in this case that would be destroyed if not vindicated before trial. In fact, if he is found incompetent to stand trial under the statute, there will be no trial.

The trial court’s order requiring the defendant to submit to an examination under General Statutes § 54-56d (c) satisfies neither prong of the Curcio test.

The appeal is dismissed.

       General Statutes § 54-56d (c) provides: “If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”

       The defendant has not attempted to appeal from the order terminating his participation in the accelerated rehabilitation program. This is proper because such an order is not an appealable final judgment. State v. Parker, 194 Conn. 650, 659 n.8, 485 A.2d 139 (1984).


author: Heiman, J.

text:
    Dawn Wann v. Michael Lemieux
    (13746)
    Dupont, C. J., and O’Connell, Foti, Lavery, Landau, Heiman, Schaller and Spear, Js.
    Considered September 8
    decision released October 18, 1994

      Richard Blumenthal, attorney general, and Kenneth A. Graham, assistant attorney general, in support of the motion to dismiss.

      Richard G. Kent, in opposition to the motion to dismiss.
   Heiman, J.

The respondent appeals from the decision of the trial court setting aside an order of a family support magistrate and remanding the matter for further proceedings. The petitioner has moved to dismiss the appeal claiming that we lack subject matter jurisdiction because the order from which the respondent appealed is not a final judgment. We agree.

The petitioner, a Pennsylvania resident, filed an action under the Uniform Reciprocal Enforcement of Support Act, General Statutes § 46b-180 et seq., seeking both an adjudication of paternity and support for her minor child born August 6, 1987. At trial before the family support magistrate, the magistrate excluded from evidence human leukocyte antigen (HLA) genetic test results that the petitioner sought to introduce to establish paternity. The magistrate determined that the petitioner had failed to establish a prima facie case and granted the respondent’s motion for nonsuit. The petitioner filed a motion to set aside the judgment of non-suit, which was denied.

On February 22,1991, the petitioner filed an appeal in the Superior Court pursuant to General Statutes § 46b-231 (n) from the decision of the family support magistrate. On May 31,1994, the court held that the family support magistrate should have admitted the result of the HLA test into evidence under General Statutes § 46b-168, and that the erroneous ruling prejudiced substantial rights of the petitioner. The court set aside the family support magistrate’s decision and remanded the case to the magistrate for further proceedings consistent with the decision.

Section 46b-231 (n) (7) provides: “The superior court may affirm the decision of the family support magistrate or remand the case for further proceedings. The superior court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” Under General Statutes § 46b-231 (o), upon final determination of any appeal from a decision of a family support magistrate by the Superior Court, there is no further right of review except to the Appellate Court. “The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court.” General Statutes § 46b-231 (o).

“The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court.” Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). If there is no final judgment, we cannot reach the merits of the appeal. General Statutes §§ 51-197a and 52-263; Practice Book § 4000.

An interlocutory order is a final judgment for purposes of appeal “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The Superior Court order setting aside the nonsuit, finding that the HL A evidence should have been admitted and remanding the matter to the magistrate for further proceedings in the paternity and support matter, did not terminate a separate and distinct proceeding, nor did it conclude the rights of the parties so that further proceedings cannot affect them. See id.

The underlying paternity action is still pending, there has been no adjudication of paternity, and further proceedings before the magistrate could affect the rights of the parties. The Superior Court’s order has the practical effect of opening the paternity action and continuing that proceeding. The court ordered the magistrate to admit the HLA evidence, but it did not dictate the outcome of the paternity and support action itself. The Superior Court decision does not satisfy either prong of the Curcio test.

The appeal is dismissed.

In this opinion the other judges concurred.

       The attorney general is representing the petitioner in this action pursuant to General Statutes §§ 46b-186 and 46b-231 (t) (2).

       General Statutes § 46b-231 (n) (1) provides: “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.”


text:
    Carlene E. Kulisch v. Aetna Casualty and Surety Company
    (13620)
    Dupont, C. J., and Foti, Lavery, Landau and Heiman, Js.
    Considered September 21
    decision released October 18, 1994

      Frank S. Marcucci, for the appellant (plaintiff).

      Rodd J. Mantell, for the appellee (defendant).
   Per Curiam.

This appeal comes to us on a reservation by the trial court of three questions relating to the interpretation and constitutionality of Public Acts 1993, No. 93-77 (P.A. 93-77), which amended General Statutes §§ 38a-290 and 38a-336. The pertinent facts are the subject of a stipulation and are undisputed. On September 29, 1987, the plaintiff was injured in a motor vehicle accident caused by the negligence of Joselyn Prishwalko, the operator of a second vehicle. The parties agreed that the plaintiff suffered injuries and damages of $43,000 as a result of the accident. At the time of the accident, the plaintiff was the insured and a covered person, pursuant to an automobile liability insurance policy issued by the defendant. The policy provided uninsured, underinsured motorist benefits with a $300,000 limit. By letter dated December 18, 1989, the plaintiff demanded underinsured motorist benefits from the defendant. The automobile liability insurance policy issued by the defendant states in pertinent part: “All claims or suits under part C must be brought within two years of the date of the accident.”

The plaintiff filed suit seeking payment of underinsured motorist benefits. While this action was pending in Superior Court, the legislature enacted P.A. 93-77, which provided that no insurance company may limit the time within which any suit or demand for uninsured or underinsured benefits may be brought to a period of less than three years from the date of the accident. The parties stipulated that if “said Public Act is constitutional, the plaintiff has a valid claim for benefits and judgment can enter for the plaintiff in accordance with the stipulation of facts. If the act is unconstitutional, the plaintiff does not have a valid claim and judgment may enter for the defendant.”

In accordance with the stipulation of the parties and our recent decision in Aetna Life & Casualty v. Braccidiferro, 34 Conn. App. 833, 643 A.2d 1305, cert. granted, 231 Conn. 918, 919, 661 A.2d 98 (1994), the questions reserved for this court’s consideration are answered as follows:

To the first reserved question — Is Public Act 93-77 constitutional as applied to the facts of this case? — we answer “Yes.” To the second reserved question — Does retroactive application of Public Act 93-77 violate the contract clause of the United States constitution as applied to the facts of this case? — we answer “No.” To the third reserved question — Does retroactive application of Public Act 93-77 violate the due process clause of the United States constitution, as applied to the facts of this case? — we answer “No.”

No costs will be taxed to either party.

       The parties also stipulated that the plaintiff received the sum of $20,000 from the tortfeasor, Joselyn Prishwalko, which exhausted any and all liability insurance issued for the benefit of the tortfeasor. The parties further stipulated that this sum should be set off against amounts, if any, recovered from the defendant Aetna Casualty and Surety Company.


author: Landau, J.

text:
    Paul Zanoni et al. v. Richard E. Pikor et al.
    (12722)
    Lavery, Landau and Hennessy, Js.
    Argued September 20
    decision released October 25, 1994

      Paul Zanoni, pro se, the appellant (named plaintiff).

      Paul M. Cramer, with whom, on the brief, was Vincent F. Sabatini, for the appellees (defendants).
   Landau, J.

This is an appeal from the judgment of the Superior Court that followed the granting of a motion to strike Paul Zanoni as a party plaintiff from the appeal to that court from two decrees entered by the Probate Court in the district of Newington.

A walk down the somewhat worn factual and procedural path is helpful. Rosalie Zanoni and Paul Zanoni appealed from two decrees of the Probate Court with regard to the estate of Helen Benny. Rosalie Zanoni, daughter of the decedent, is the devisee of the estate’s only assets. Paul Zanoni is not a relative, beneficiary, devisee, or creditor of the Benny estate. On March 27, 1991, Rosalie Zanoni was removed as executrix of the estate and Richard Pikor was appointed administrator de bonis non cum testamento annexo (d.b.n.c.t.a.) of the Benny estate. Pikor served in that capacity continuously until December 1, 1992, when the Probate Court accepted his resignation. On that date, the Probate Court appointed Karen Renzulli Lynch as successor administratrix d.b.n.c.t.a. of the estate and denied the plaintiffs’ application for removal of Pikor for cause.

In December, 1992, Rosalie Zanoni and Paul Zanoni filed an appeal in the Superior Court contesting the actions of the Probate Court. On April 26,1993, Lynch filed a motion to strike Paul Zanoni as a party plaintiff on the ground of misjoinder. That court found, after a hearing in which Paul Zanoni acknowledged that he did not file a claim against the estate, that Paul Zanoni was not a creditor of the estate. It further found that Paul Zanoni had no legal interest in the appeal, that he was not aggrieved within the meaning of General Statutes § 45a-186, and therefore was not a proper party to the appeal. On August 5, 1993, Paul Zanoni appealed that judgment of the Superior Court. Subsequently, while the appeal was pending in this court, judgment was rendered for the defendants in the underlying action.

The remedy for misjoinder of parties is by motion to strike and the trial court appropriately considered it. Practice Book § 198. Because, however, the underlying action no longer is pending, the appeal has been rendered moot. The relief sought in that action was denied by the judgment for the defendants. No appeal was taken from that judgment. “ ‘[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” Jones v. Ricker, 172 Conn. 572, 576, 375 A.2d 1034 (1977), quoting Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); Gormley v. Panuzio, 166 Conn. 1, 3, 347 A.2d 78 (1974). Because no practical relief can follow the determination of the issue raised, we will not decide it.

The appeal is dismissed.

In this opinion the other judges concurred.

       Lynch also challenged the probate appeal on the ground that the appeal was legally deficient because it appealed two separate Probate Court decrees. The Superior Court denied that part of the motion to strike. That ruling is not challenged in this appeal.

       General Statutes § 46a-186 provides in pertinent part: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom . . . .”


author: Foti, J.

text:
    In re Robin M.

    (12990)
    O’Connell, Foti and Heiman, Js.
    Argued September 20
    decision released November 1, 1994

      Albert J. Oneto III, for the appellant (respondent).

      Cathleen Mulligan Edwards, state’s advocate, for the appellee (petitioner).

      Mary-Anne Ziewacz Mulholland, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the third party appellee (commissioner of children and families).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Foti, J.

The respondent appeals from only that part of the judgment that consists of a warning issued pursuant to General Statutes § 46b-149 (h). The respondent claims that the trial court improperly issued the “Long Lane Warning” concerning future possible behavior because (1) the respondent had attained the age of sixteen, and (2) it was not part of the previous agreement of the parties.

On June 10,1993, the respondent, a fifteen year old girl, was adjudicated a child from a family with service needs pursuant to General Statutes § 46b-120. The respondent had admitted, in the presence of her attorney and her mother, to being a runaway. At the request of the parties, the court postponed the dispositional hearing until October 21,1993, to allow for the preparation of both psychiatric and probation reports. The respondent became sixteen years of age on August 1, 1993.

At the dispositional hearing held in accordance with Practice Book § 1034.1, the parties agreed to an order of commitment to the department of children and families (DCF) for an indeterminate period not to exceed eighteen months, pursuant to General Statutes § 46b-149 (h) (2). The respondent was directly placed at New Hope Manor, a residential, nonsecure group home and treatment facility for girls. The respondent was ordered by the court to cooperate with treatment and to remain at that facility until she was successfully discharged. At the request of the state’s advocate, the court then warned the respondent that if she did not abide by the rules at New Hope Manor, she could be sent to Long Lane School, a secure facility primarily for children who have been adjudged delinquent. The respondent objected to the warning and appealed. Because she does not challenge the order of commitment, but rather only the court’s issuance of the warning, and because she cannot demonstrate a specific injury as a result of that warning, we must conclude that the respondent lacks aggrievement. We therefore dismiss her appeal.

“A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction . . . [and a] requisite element of appealability is that the party claiming error in the decision of the trial court be aggrieved . . . .” (Citations omitted; internal quotation marks omitted.) Scarsdale National Bank & Trust Co. v. Schmitz, 24 Conn. App. 230, 232, 587 A.2d 164 (1991). “The test for demonstrating aggrievement is well settled: ‘First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991).” First Charter National Bank v. Ross, 29 Conn. App. 667, 674, 617 A.2d 909 (1992), appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994).

The respondent can point to no actual injury that results from the action of the court. There is no challenge to the finding of the court or to the order of commitment to the commissioner of DCF. The only challenge here is to the issuance of the “Long Lane Warning.” The respondent acknowledges that under certain circumstances the court does have authority to issue an appropriate warning under General Statutes § 46b-149 (h). She argues, however, that there is a lack of enforceability of the “Long Lane Warning” in this case. The argument is essentially that, should a future violation occur, the juvenile court could not entertain a new petition of delinquency because the respondent is no longer a child. General Statutes § 46b-149 refers specifically to a “child,” which is defined by § 46b-120 as “any person under sixteen years of age.” The respondent’s claim is based on a contingency that is far too remote to satisfy the injury requirement of aggrievement.

The parties agree that no measures have been taken to implement the warning and no sanction was imposed on the respondent in conjunction with the warning. We cannot speculate as to the result of a future violation. The respondent can suffer no harm as a result of the warning of a future violation of a court order that maybe unenforceable and ineffective.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 46b-149 (h) provides in relevant part: “If the court issues any order which regulates future conduct of the child, the child shall receive adequate and fair warning of the consequences of violation of the order at the time it is issued, and such warning shall be provided to the child, to his attorney and to his legal guardian in writing and shall be reflected in the court record and proceedings.”

       Because we conclude as we do, we find it unnecessary to address the claim raised by the commissioner of DCF that the respondent fails to satisfy the criteria for justiciability. Justiciability requires that (1) there be an actual controversy between or among the parties to the dispute, (2) the interest of the parties be adverse, (3) the matter in controversy be capable of being adjudicated by judicial power, and (4) the determination of the controversy will result in practical relief to the complainant. Zarembski v. Warren, 28 Conn. App. 1, 6-7, 609 A.2d 1039, cert. denied, 223 Conn. 918, 614 A.2d 831 (1992).

       The parties agree that the warning as given does not comply with the statute in that no writing was ever presented to the respondent, her attorney or her legal guardian. The parties also agree that an order committing the respondent to Long Lane would not be enforceable under the existing circumstances.