author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. DUANE LOCKHART
    (AC 18184)
    Landau, Hennessy and Dupont, Js.

      Argued April 26
    officially released September 26, 2000

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

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Michael D. Glowa, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Duane Lockhart, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes (Rev. to 1993) § 53a-32 and committing him to the custody of the commissioner of correction for a period of six months. On appeal, the defendant claims (1) that the revocation court improperly revoked his probation because (a) the procedures employed at the revocation hearing were inadequate and violated his due process rights, (b) it improperly found that the conditions of his probation were not ambiguous and (c) article first, § 8, of the constitution of Connecticut provides a higher standard of protection for probationers than the United States constitution and therefore a revocation of probation is proper only if the violation is found to have been wilful, and (2) he was deprived of his sixth amendment right to effective assistance of counsel. We affirm the judgment of the trial court.

Certain facts adduced at the probation revocation hearing are relevant to this appeal. On May 24,1994, the defendant pleaded guilty to misconduct with a motor vehicle in violation of General Statutes § 53a-57. The sentencing court, on July 14, 1994, imposed a three year sentence, execution suspended, and three years of probation. The sentencing court also imposed a number of special conditions, including an order that the defendant not operate a motor vehicle for a period of at least one year. On August 9, 1994, the defendant was arrested and charged with speeding in violation of General Statutes § 14-219 (c). He advised his probation officer of the speeding incident, but no arrest warrant was issued until February 1, 1996. A probation revocation hearing was held on February 11, 19 and 20, 1998, and the court found that the defendant violated the conditions of his probation by operating a motor vehicle within one year of sentencing. The court revoked the defendant’s probation on February 20, 1998, and committed him to the custody of the commissioner of correction for a period of six months. This appeal followed.

I

The defendant first claims that the court’s revocation of his probation was improper. He argues that (1) the procedures employed at the revocation hearing were inadequate and violated his due process rights, (2) the court improperly found that the conditions of his probation were not ambiguous and (3) article first, § 8, of the constitution of Connecticut provides a higher standard of protection for probationers than the United States constitution and therefore a revocation of probation is proper only if the violation is found to have been wilful.

Under § 53a-32, “a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation.” (Internal quotation marks omitted.) State v. Treat, 38 Conn. App. 762, 766, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995). When deciding whether a violation has occurred, the court is “entitled to draw reasonable and logical inferences from the evidence.” Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). The court’s finding of a violation of probation will be supported if the evidence would “induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Citation omitted; internal quotation marks omitted.) State v. Treat, supra, 38 Conn. App. 766-67.

“This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. ...” (Citations omitted; internal quotation marks omitted.) Id., 769-70.

A

Citing the court’s failure to inform him in writing of (1) his specific behavior that the state alleged violated a condition of his probation, (2) the evidence that the court relied on in finding that he violated his probation and (3) the court’s reasons for revocation of his probation, the defendant argues that his due process rights under the fourteenth amendment to the United States constitution were violated. The defendant concedes that this claim is unpreserved. He maintains, however, that he is entitled to review pursuant to the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine set forth in Practice Book § 4061, now § 60-5. Beyond his mere assertion that the court did not employ in the revocation hearing procedures required by due process, the defendant has not presented any legal analysis to support his request for relief under either Evans-Golding review or plain error review. Because the defendant has failed to brief his claim adequately, we do not reach the issue of whether he could prevail under the third or fourth prongs of Golding. See State v. Ramos, 36 Conn. App. 831, 836, 661 A.2d 606, cert. denied, 235 Conn. 902, 665 A.2d 905 (1995) (declining to review underlying claim for relief where request for Golding relief not adequately briefed); State v. Cain, 25 Conn. App. 503, 524, 596 A.2d 449 (1991), aff'd 223 Conn. 731, 613 A.2d 804 (1992) (same); see also State v. Sewell, 38 Conn. App. 20, 28, 658 A.2d 598, cert. denied, 234 Conn. 918, 661 A. 2d 98 (1995) (declining to review underlying claim where request for relief under plain error doctrine not adequately briefed).

B

The defendant next claims that the revocation court improperly found that the circumstances surrounding the sentencing for his underlying conviction did not lead to ambiguity in the conditions of his probation. The defendant contends that the date and mechanism by which he was to lose his privilege to drive were ambiguous. In support of his argument, the defendant relies on the circumstances surrounding his sentencing. At sentencing, the prosecutor submitted a written sentencing recommendation to which the prosecutor, defense counsel and counsel for the estate and family of the victim had agreed. Among the suggested conditions of probation was a recommendation for a minimum one year suspension of the defendant’s operator’s license “as per statute.” The sentencing court, however, ordered the defendant “not to operate a motor vehicle for a period of at least one year and that’s to include any suspension of your right to operate by the motor vehicle department, which may be a consequence of this plea.” (Emphasis added.) Pointing to the disposition recommended by the parties, the defendant asserts that he understood the court’s order not to drive to be simply an acknowledgment that he would lose his license at some later date by operation of statute, not immediately by order of the sentencing court. The defendant further argues that had the revocation court properly found that the conditions of his probation were ambiguous, he would have been entitled to have the ambiguity construed in his favor.

This claim concerns the revocation court’s role as fact finder. As such, this court may reverse the revocation court’s finding only if that finding was clearly erroneous. See State v. Treat, supra, 38 Conn. App. 769. While the defendant is correct in asserting that any ambiguities concerning conditions of his probation must be resolved in his favor; see State v. Mobley, 42 Conn. Sup. 574, 580-82, 634 A.2d 305, aff'd, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994); the revocation court found that the probation conditions were not ambiguous. That finding is supported by a plain reading of the language used by the sentencing court. Therefore, the finding was not clearly erroneous and it will not be disturbed.

C

The defendant also claims that article first, § 8, of the constitution of Connecticut provides a higher standard of protection for probationers than the United States constitution and, among other things, that revocation of probation is proper only if the violation is found to have been wilful. The defendant again invokes Evans-Golding to induce this court to review his unpreserved claim. Because the defendant again failed to brief the issue adequately, we will not afford review. See State v. Ramos, supra, 36 Conn. App. 836.

II

In his final claim, the defendant argues that he was denied effective assistance of counsel at sentencing and at the revocation hearing. The defendant asserts that his counsel failed (1) to explain the conditions of probation to him, (2) to question the sentencing court about the conditions of probation and (3) to argue that his probation should have been modified instead of revoked. “We have long held that the proper forum in which to address claims of ineffective representation of counsel is in the habeas forum . . . rather than [a] direct appeal. See State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).” State v. Jones, 46 Conn. App. 640, 660, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). “As our Supreme Court has stated, an ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” Id., 661. We conclude, in accordance with precedent, that this claim must be resolved in a habeas corpus proceeding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The state argues that under the first prong of Golding we should decline to review this claim because the record is inadequate for review. See State v. Golding, supra, 213 Conn. 239-40. The state points to two reasons for concluding that the claim is unpreserved. First, the defendant, at the revocation hearing, failed to argue that the wording of the sentencing court’s order was ambiguous. Second, the defendant conceded that the sentencing court ordered him not to drive for one year. The defendant requests review under Euans-Golding or the plain error doctrine.
      Our review of the record reveals that the defendant properly preserved 1he issue raised on appeal. At the revocation hearing, the defendant made it clear that he did not understand the sentencing court’s order because of the circumstances surrounding his sentencing. Despite the state’s observations about what the defendant did not argue, the claim is preserved.
      We note that the extraordinary relief provided by Golding is sought only when a claim is not preserved. Here, because the claim was preserved, we need not invoke Golding.

       The defendant’s conviction resulted from an incident in which a woman died as a result of his reckless operation of a motorcycle.

       The defendant has requested this court to review his state constitutional claim without providing the state constitutional analysis required by State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992). Under Geisler, the state constitutional analysis should include a discussion of: (1) the text of constitutional provisions, (2) state case law, (3) federal precedent, (4) precedent of other states, (5) historical considerations and (6) economic and sociological considerations. Id.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    IN RE MATTHEW S.

    (AC 20450)
    Schaller, Spear and Mihalakos, Js.

      Argued June 12
    officially released September 26, 2000

      Raymond J. Rigat, for the appellant (respondent father).

      Paula D. Sullivan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and «Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, 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.

   Opinion

SPEAR, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his son. The respondent claims that he was denied (1) his right to effective assistance of counsel and (2) his right to equal protection under the state constitution because he was not provided with the same residential treatment services that were made available to the respondent mother. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent and the child’s mother are the parents of a child born on April 11,1996. The department of children and families (department) became involved in the child’s life immediately after his birth. While the child and his mother were in the hospital, hospital staff contacted the department because of their concern over the mother’s ability to care for the child. The department’s investigation revealed that the mother had psychiatric problems and was believed to have a substance abuse problem. She also did not know how to care for a newborn. The department discovered that the respondent had an alcohol abuse problem and that he and the child’s mother-had a relationship that was described as violent, volatile and unstable.

After the mother’s discharge from the hospital, the department provided her with a pediatric nurse for eight hours during the day and a psychiatric nurse for eight hours at night. As a result of its increasing concerns about the respondents’ abilities to care for the child, the department, on May 14,1996, requested and obtained an order of temporary custody, and the child was placed in foster care. On the following day, the respondent informed the department that he intended to enter the Stonington Institute, an in-patient treatment facility for substance abusers. Although he was seen at the institute for an intake interview, he later chose not to enter the program.

On June 6, 1996, the respondent was arrested for risk of injury to a child, sexual assault and violation of probation for his involvement with a fifteen year old girl. On January 22, 1997, the respondent was sentenced to six years imprisonment, all of which were suspended, and five years probation. As part of his probation, the respondent was placed in an alternative incarceration program for six months. Thereafter, he began living at Seaview, a supervised residential facility operated by the department of mental retardation.

As a resident of Seaview, the respondent received services such as therapy and vocational training. The respondent also received other services through the office of adult probation. The department transported the child to Seaview for weekly visits with the respondent. According to a social worker for the department, the respondent “canceled quite a few visits from September [1997] until the beginning of November, either canceled or would just not be in at least every other week. At times we’d bring [the child] and [the respondent] wasn’t there. Or sometimes he would be there and say he can’t visit because he has an appointment and just leave. . . . We requested a phone call the day before or that morning to let us know whether he was going to be able to visit. For the most part he did not do that.”

In December, 1997, the respondent was admitted to the Stonington Institute for treatment of his alcohol abuse problem. He remained there for about two to three weeks and then returned to Seaview. Upon his return, the respondent was uncooperative with the requirements of the Seaview program. He refused to work, was absent from the program on the weekends, missed therapy appointments, failed to attend Alcoholics Anonymous meetings and failed to visit his son.

The respondent continued to live at Seaview until the summer of 1998. On June 11, 1998, he was arrested after a domestic dispute with the mother. On August 14, 1998, the commissioner of children and families filed a petition for the termination of parental rights with respect to the child. The court subsequently granted the termination petition because neither parent had “achieve [d] such degree of personal rehabilitation as would encourage the belief that within a reasonable time . . . [they] could assume a responsible position in the life of the child.” The respondent has filed this appeal.

I

The respondent first claims that he was denied his statutory right to the effective assistance of counsel. He claims that counsel’s representation was ineffective on the grounds that he “(a) failed to proffer an alternative dispositional plan to counter the department’s request for termination as the only viable disposition; (b) failed to present expert testimony that the [respondent] had in fact made significant progress in rehabilitation while in prison; (c) . . . failed to pursue the department’s statutory and constitutional obligation to make a greater level of services [specific to parenting] for the respondent than those offered to parents without a mental disability; and (d) . . . failed to pursue the denial of equal protection to the respondent father as guaranteed under the state constitution.” These claims are baseless.

“In determining whether counsel has been ineffective in a termination proceeding, we have enunciated the following standard: The range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law. . . . [State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979)]. The respondent must prove that [counsel’s performance] fell below this standard of competency and also that the lack of competency contributed to the termination of parental rights. Id.” (Internal quotation marks omitted.) In re Alexander V., 223 Conn. 557, 569-70, 613 A.2d 780 (1992). A showing of incompetency “without a showing of resulting prejudice . . . does not amount to ineffective assistance of counsel.” State v. Anonymous, supra, 161.

We do not address whether trial counsel’s representation of the respondent was deficient because the record on its face reveals that any alleged deficiencies did not result in prejudice. The record reveals overwhelming evidence that supported the court’s judgment on numerous grounds. First, the evidence amply supported the court’s finding that the respondent failed to achieve rehabilitation. Throughout the child’s three years in foster care, the department offered the respondent visitation with the child and psychiatric treatment to encourage reunification. The court found that despite the department’s efforts at reunification, the respondent visited his son only minimally during the three years that the child has been in foster care and has not requested any visits since the respondent’s incarceration in 1998. The respondent also failed to cooperate with the department of mental retardation and the office of adult probation, and is currently serving a three year prison sentence.

Second, the evidence sufficiently supported the court’s finding that the continuation of the respondent’s parental rights is not in the child’s best interest. In arriving at this decision, the court made specific findings regarding the seven statutory factors enumerated in General Statutes § 17a-112 (d). The court found, inter alia, that the child has bonded with his foster family and no emotional bond would be broken by terminating the respondent’s parental rights, and the respondent, by his criminal conduct and refusal to participate in his rehabilitative programs, prevented himself from maintaining a relationship with the child.

In view of the evidence in this case, we conclude that the respondent has failed to meet his burden of proving that any alleged inadequacy of trial counsel affected the outcome of the termination proceedings.

II

The respondent next claims that his right to equal protection under the state constitution was violated because he was not provided with the same residential treatment services that were made available to the child’s mother. This claim requires little discussion.

The respondent does not directly challenge the merits of the court’s decision to terminate his parental rights. He merely asserts without analysis that the state “has clearly manifested a bias in favor of providing more intensive rehabilitation services to the mother . . . .” “We are not required to review issues that have been improperly presented to this court through an inadequate brief. Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). The respondent’s analysis is inadequate, and we therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent mother has not appealed from the judgment terminating her parental rights. We refer in this opinion to the respondent father as the respondent.

       The sexual assault charge was later disposed oí by a nolle.

       In March, 1999, the respondent began serving a three year sentence for violation of his probation. While in prison, the respondent has not requested visits with his son. His release date from prison is July 21, 2001. The child has been in the same foster home for almost four years and his foster parents have indicated that they would like to adopt him.

       The respondent also claims that his right to effective assistance of counsel derives from both our state and the federal constitutions. We need not address this claim because even if the respondent had a constitutional right to effective assistance of counsel in a parental termination proceeding, such a right would not affect our analysis today or the outcome of this appeal.


author: DUPONT, J.

text:
    GEORGE L. ROSADO ET AL. v. BRIDGEPORT ROMAN CATHOLIC DIOCESAN CORPORATION ET AL.
    (AC 18669)
    Mihalakos, Zarella and Dupont, Js.
    Argued April 24
    officially released October 3, 2000

      Mark R. Kravitz, with whom were Eileen R. Becker and, on the brief, Suzanne E. Wachsstock, for the appellants (proposed intervenors John Doe et al.).

      William F. Gallagher, with whom were Cindy L. Robinson and, on the brief, Barbara L. Cox and Frank A. Bailey, for the appellees (plaintiffs).
   Opinion

DUPONT, J.

This is an appeal from the denial of the motion of seven priests to intervene in an action brought by the plaintiffs against the Bridgeport Roman Catholic Diocesan Coiporation (Diocese) and others for damages for alleged sexual abuse by a particular priest when he was assigned to various churches within the Diocese. The seven priests seek to intervene as of right or permissively for the limited purpose of arguing motions to quash, for a protective order and to prevent disclosure of private, confidential material contained in their personnel records. The disclosure that the seven priests seek to protect relates to information about them contained in records in the possession of the defendants about “all complaints, accusations, allegations, reports and rumors concerning sexual misconduct, sexual abuse, sexual assault, inappropriate touching, inappropriate fondling, sexual overtures or any sexual impropriety or alleged impropriety. . . .” The information was sought by subpoena, interrogatory and production requests directed to the Diocese.

The issue is whether the seven priests should be allowed to intervene to protest the production of the records on the alleged grounds that the records are protected from disclosure by the United States constitution, the constitution of Connecticut, Connecticut statutes and the common law. The plaintiffs and the seven priests present compelling arguments for their different answers to this question.

The court denied the motion of the seven priests because “[i]t is not necessary for the movants to intervene, thereby becoming parties in the underlying action, in order to obtain the relief they seek. As nonparty persons to be deposed, they may be entitled to this relief under . . . Practice Book § 13-27 and Practice Book ... § 13-28.” Although it denied the motion, the court stated that it would “afford counsel a full hearing on the substantive issues” raised in the motions. A motion to quash was subsequently denied, but a motion to reargue that denial is still pending. The court also obtained the personnel files for review in camera, but has not yet reviewed them or decided what information, if any, should be disclosed to the plaintiffs. The court decided that it would take no action as to these matters while this appeal is pending. In addition, pursuant to a motion for review filed in this court, the plaintiffs are precluded from questioning the former bishop of Bridgeport about the seven priests. In other words, all discovery involving the seven priests has been stayed until this appeal has been decided.

The stated purpose of the discovery requests was to determine whether or when the Diocese knew or should have known that some priests within the Diocese were engaging in improper sexual behavior. The amended complaint contains thirteen counts and seeks damages by twelve plaintiffs who allege that they were sexually harmed by one particular priest when they were minors. The amended complaint alleges negligent supervision of that priest and other priests by a bishop, a monsignor and the Diocese, and alleges harm arising from their failure to supervise the priests in the Diocese in a proper manner when they knew that priests within the Diocese were sexually abusing children.

The plaintiffs’ principal argument is that the word “judgment” in Practice Book § 9-18 should be read strictly to allow intervention only if a movant for intervention has an interest or title that the final judgment, as between the original litigants, will affect. The seven priests argue that Practice Book § 9-18 should not be read literally and that intervention should be allowed when there is a direct interest of a person at stake, not necessarily an interest in the final judgment to be rendered in the case. The seven priests rely on rule 24 of the Federal Rules of Civil Procedure for their argument that they should have been allowed to intervene as of right or, at the very least, permissively.

Connecticut procedure has not always clearly defined the distinction between permissive intervention and intervention as of right; Horton v. Meskill, 187 Conn. 187, 191-92, 445 A.2d 579 (1982); although rule 24 (a) and (b) of the Federal Rules of Civil Procedure has delineated the distinction. Practice Book § 9-18, formerly § 99, applies to intervention as of right, but the nature of that right has not always been fully articulated. “Where state precedent is lacking, it is appropriate to look to authorities under the comparable federal rule, in this case Rule 24 of the Federal Rules of Civil Procedure.” Horton v. Meskill, supra, 192; see Washington Trust Co. v. Smith, 241 Conn. 734, 746, 699 A.2d 73 (1997).

The plaintiffs take the position that Practice Book § 9-18, if its exact wording is followed, would prohibit intervention as of right because it provides that an inter-venor must have an “interest or title which the judgment will affect . . . .” Because the eventual judgment in this case can directly affect only the plaintiffs and the defendants, the plaintiffs argue that the seven priests cannot intervene as of right. The seven priests contend that the word “judgment” should be more liberally construed as including those interlocutory decisions that are appealable as final judgments and that rule 24 is analogous to Practice Book § 9-18, with Connecticut cases approving the rule’s use when Connecticut cases on point are lacking. We agree with the seven priests and conclude that General Statutes § 52-107, as tempered by rule 24 of the Federal Rules of Civil Procedure, is operative here.

The precise issue to be resolved is whether intervention as of right to join a case in order to prevent an interlocutory discovery or production of documents that would directly affect a would-be intervenor exists when the final judgment in the case, resolving the dispute as between the primary litigants, would not affect the intervenor. This exact question has not been considered by an appellate court of Connecticut, although it has been considered and decided by at least one superior court, and frequently decided by federal district and federal circuit courts. Closely related questions have also been considered by Connecticut appellate courts.

Washington Trust Co. and other Connecticut appellate cases have often relied on rule 24 of the Federal Rules of Civil Procedure and have spoken approvingly of the rule. See Milford v. Local 1566, 200 Conn. 91, 94, 510 A.2d 177 (1986); Horton v. Meskill, supra, 187 Conn. 192; State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990).

Cases involving rule 24 (a) establish four requirements that an intervenor must show to obtain intervention as of right. The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation. Washington Trust Co. v. Smith, 42 Conn. App. 330, 336-37, 680 A.2d 988 (1996), rev’d on other grounds, 241 Conn. 734, 699 A.2d 73 (1997); see also Edwards v. Houston, 78 F.3d 983, 999 (5th Cir. 1996) (en banc).

Before beginning our analysis of the four prongs of rule 24 (a), we discuss some general principles applicable to intervention as of right. If a would-be intervenor has a colorable claim to intervene as of right, the denial of the motion to intervene is appealable and is treated as a final judgment for purposes of an appeal. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990); Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.l, 435 A.2d 352 (1980); AIU Ins. Co. v. Brown, 42 Conn. App. 363, 367, 679 A.2d 983 (1996); Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985); see also Horton v. Meskill, supra, 187 Conn. 191-96.

In the present case, this court, prior to argument, determined that the seven priests had a colorable claim to intervene as of right. This court, therefore, denied the plaintiffs’ motion to dismiss the appeal from that denial. The fact that a colorable claim exists does not ensure that upon a full scale, plenary review, it will be determined that the motion to intervene as of right should have been granted by the trial court. See Common Condominium Assns., Inc. v. Common Associates, supra, 5 Conn. App. 291. It does, however, lend support to the argument that Practice Book § 9-18 and General Statutes § 52-107, in providing that a person with an interest that the “judgment” will affect, intended to include an appealable interlocutory judgment in the word “judgment,” not only the “end of the line judgment” disposing of the entire case.

If an interlocutory decision so concludes the rights of a party or a person as described in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), there has been an appealable judgment. McClendon v. Soos, 18 Conn. App. 614, 616, 559 A.2d 1163, cert. denied, 212 Conn. 808, 563 A.2d 1356 (1989). Our Supreme Court held in King v. Sultar, 253 Conn. 429, 435-36, 754 A.2d 782 (2000), that the denial of a motion to intervene filed by a person with a colorable claim to inteivention as a matter of right is a final judgment for purposes of appeal and that the proposed intervenor is a “party” for purposes of General Statutes § 52-263. In the present case, the seven priests did establish a colorable claim to intervention as of right. If denied intervention and denied an appeal, any of their rights to object to the disclosure of records about them would have been terminated.

In both federal and Connecticut decisions, in reviewing the denial of a motion to intervene, the pleadings are accepted as correct, and the interest of an intervenor does not have to be proved by testimony or evidence. Washington Trust Co. v. Smith, supra, 241 Conn. 746-47; see also United States v. American Telephone & Telegraph Co., 642 F.2d 1285, 1291 (D.C. Cir. 1980). The right to intervene is based on the allegations of the would-be intervenor, without regard to their actual validity. Nizzardo v. State Traffic Commission, 55 Conn. App. 679, 685, 739 A.2d 744 (1999), cert. granted on other grounds, 252 Conn. 943, 747 A.2d 520 (2000). Further, the rules for intervention should be construed liberally to avoid multiplicity of suits. Washington Trust Co. v. Smith, supra, 747. The denial of a motion to intervene as of right raises a question of law and warrants plenary review, whereas a denial for permissive intervention is reviewed with an abuse of discretion standard. See Edwards v. Houston, supra, 78 F.3d 1000.

It is instructive to review Connecticut cases about intervention with particular emphasis on the facts. In State v. Figueroa, 22 Conn. App. 73, 75, 576 A.2d 553, cert. denied, 215 Conn. 814, 576 A.2d 544 (1990), the trial court granted the Hartford Courant’s motion to intervene and then granted its motion to vacate the court’s order to seal the file. An appeal was taken from that order and from the granting of the motion to intervene. The appeal from the granting of intervention was withdrawn and was not considered because the court concluded that it had no jurisdiction to hear the appeal at all. Thus, the Appellate Court did not review the granting of the motion to intervene.

A successful bidder at a foreclosure sale was allowed to intervene as of right in a foreclosure action approving the committee’s sale of the foreclosed property. New Milford Savings Bank v. Mulville, 56 Conn. App. 521, 524, 744 A.2d 447 (2000). Various towns and boards of education had no right to intervene in an action to test the constitutionality of statutory provisions relating to the financing of secondary schools. Horton v. Meskill, supra, 187 Conn. 198. In that case, timeliness was in question, the would-be intervenors had a limited interest in the litigation, the intervention would cause a delay in the proceedings, and numerous parties, town, cities, boards of education and amici were in the case already, representing the same spectrum of interests. Id. A lessee of property being foreclosed and a successor in interest to the mortgagee can intervene as of right to protect their right of redemption in proceedings to confirm a foreclosure sale. Washington Trust Co. v. Smith, supra, 241 Conn. 748. Parents and a parent teachers organization were allowed to intervene in a mandamus action brought by the state board of education and the commissioner of education against the city of Waterbuiy to eliminate school racial imbalance. State Board of Education v. Waterbury, supra, 21 Conn. App. 76.

In Hennessey v. Bristol Hospital, 225 Conn. 700, 626 A.2d 702 (1993), the commissioner of health services sought to intervene in a case brought by the plaintiff physician against the defendant hospital. The plaintiff brought an action for an injunction to restrain the defendant from complying with a subpoena issued by the commissioner for records involving the plaintiff pursuant to an investigation of the physician. The plaintiff got a temporary injunction without notifying the commissioner, the would-be intervenor. The commissioner claimed that she was a necessary party, had a direct interest in the production that was adverse to the plaintiff and that she would be affected by a judgment restraining the disclosure. The court held that the motion to intervene should have been granted because the intervenor had an interest that the judgment affected. The court reasoned that although the commissioner had brought a separate action for enforcement of her subpoena, that action was not necessarily sufficient to protect her interest because if she prevailed in that action and could therefore enforce the subpoena, there could be a conflicting injunction issued by another court from which she could not appeal. Id., 704. Similarly, in the present case, if the seven priests could not intervene and successfully brought a separate action to enjoin the production of their records, that injunction would conflict with any order of disclosure issued in this case, from which order they could not appeal.

A significant case in which the intervenor had no direct interest in the judgment as between the two parties to the litigation and was allowed to intervene is Milford v. Local 1566, supra, 200 Conn. 98. The interve-nor was the state board of mediation and arbitration, and the case involved the vacation of an arbitration award in an employment dispute, the outcome of which was of no interest to the board. The intervention was granted to allow the board to defend the validity of its arbitration procedures. The motion of the board in the trial court did not indicate whether it sought intervention as of right or permissively, and our Supreme Court upheld the action as a permissive intervention, pursuant to rule 24 (b). It used, however, the same four criteria as federal and state cases use for intervention as of right pursuant to rule 24 (a). Id., 94. It also used the criteria of prejudice to the existing parties and the necessity or value of the intervention in terms of resolving the controversy.

The court, in its reasoning to establish standing of the board to intervene, used an aggrievement test, that is, whether the board had a specific personal and legal interest that would be specially and injuriously affected by the decision. Id., 96; see also United States v. American Telephone & Telegraph Co., supra, 642 F.2d 1285. Two of the four criteria for the application of rule 24, namely the direct and substantial interest in the subject matter, and the impairment to the movant’s interest if he or she is not involved in the case are, in essence, equivalent to the test for aggrievement. Thus, the case openly subscribes to the use of federal rule 24 and sub silentio approves the use of the same criteria in both federal and state cases involving intervention as of l ight. It also establishes that an intervenor need not have a direct interest in the judgment as between the existing parties to the litigation.

A review of the facts involved in some federal cases interpreting rule 24 (a) is also instructive in resolving the issue raised in this appeal. Groups representing white, female and Asian-American police officers, members of a city airport and parks police were allowed to intervene as of right to contest a consent decree negotiated in settlement of racial discrimination claims in a Title VII action brought by African-American and Hispanic-American police officers. Edwards v. Houston, supra, 78 F.3d 1006. A newspaper and a reporter of that newspaper demonstrated a sufficient interest to allow inteivention for the purpose of objecting to the sealing of a file on constitutional grounds in a breach of contract claim brought by a city against a real estate developer even though the intervenors asserted no personal right or interest in the outcome of the case. Hartford v. Chase, 733 F. Sup. 533 (D. Conn. 1990), rev’d on other grounds, 942 F.2d 130 (2d Cir. 1991).

Intervention as of right was granted to a corporation that asserted a direct interest in the outcome of an interlocutory discovery order. United States v. American Telephone & Telegraph Co., supra, 642 F.2d 1295. The court reasoned that the word “action” as used in rule 24 (a) requires a flexible interpretation in order to favor intervention for individual collateral issues when appropriate to protect the limited nature of an interve-nor’s interest. Id., 1291. “To bar intervention for collateral discovery issues merely because they do not concern the subject matter of the overall action would in many cases defeat the general purpose of intervention.” Id., 1292.

Even before rule 24 (a) was amended, intervention was allowed in the discovery phase of a case to protect the divulging of trade secrets. Formulabs, Inc. v. Hartley Pen Co., 275 F.2d 52 (9th Cir.), cert. denied, 363 U.S. 830, 80 S. Ct. 1600, 4 L. Ed. 2d 1524 (1960).

A client whose lawyer has been served with a subpoena to produce documents relating to the client should be allowed to intervene as of right in a proceeding. In re Katz, 623 F.2d 122,125 (2d Cir. 1980). Vietnam veterans have been allowed to intervene in a class action between the Agent Orange Plaintiffs’ Management Committee and multiple chemical companies to challenge discovery orders to unseal documents. In re Agent Orange Product Liability Litigation, 821 F.2d 139, 141 (2d Cir.), cert. denied sub nom. Dow Chemical Co. v. Ryan, 484 U.S. 953, 108 S. Ct. 344, 98 L. Ed. 2d 370 (1987).

We now briefly review federal and Connecticut decisions to determine whether the oft-cited four prongs for intervention are present in this case. If any one of the four prongs is missing, the motion to intervene as of right should be denied. Edwards v. Houston, supra, 78 F.3d 999; State Board of Education v. Waterbury, supra, 21 Conn. App. 72.

The necessity for showing that a would-be intervenor made a timely request for intervention involves a determination of how long the intervenor was aware of an interest before he or she tried to intervene, any prejudicial effect of intervention on the existing parties, any prejudicial effect of a denial on the applicant and consideration of any unusual circumstances either for or against timeliness. Edwards v. Houston, supra, 78 F.3d 1000. There are no absolute ways to measure timeliness. Id. The requirement that the request to inteivene be prompt is applied more leniently if intervention as of right is sought, rather than permissively. Horton v. Meskill, supra, 187 Conn. 194. A trial court’s finding that timeliness exists or does not is a question of fact and is described as a discretionary action. See Washington Trust Co. v. Smith, supra, 241 Conn. 744.

The plaintiffs argue on appeal that the motion to intervene was untimely, but that the trial court did not deny the motion to intervene because the seven priests were untimely in bringing it. We have no way, therefore, to review whether the court properly exercised its discretion to deny intervention on the basis of untimeliness. Furthermore, the record does not reveal that the plaintiffs argued to the court that the seven priests made an untimely motion. The motion to intervene is dated April 29, 1998. At the time, a motion by the Diocese for summary judgment dated January 21, 1998, had not yet been decided. In the event that summary judgment had been granted, there would be no necessity to intervene to protest any discovery orders.

The timeliness prong also considers any prejudice caused to the seven priests if the court denies intervention. In the present case, if the seven priests had no right to challenge a disclosure order, the order would thus become unassailable. The plaintiffs argue that the seven priests have not identified any greater right or protection that intervention would confer than what the trial court has already permitted. The court allowed the seven priests to file a motion to quash and offered them a full hearing on their motion. According to the plaintiffs, intervention is unnecessary because “[t]he court allowed them all the relief they sought except for party status.” This contention, however, “ ‘ignores the legal rights associated with formal intervention, namely the briefing of issues, presentation of evidence, and ability to appeal.’ ” Edwards v. Houston, supra, 78 F.3d 1003. The grace of the court is not a substitute for formal intervention with its concomitant rights.

The second and third tests for intervention as of right have been satisfied here. The seven priests have a direct and personal interest in arguing to protect the release of personnel files relating to them. General Statutes § 31-128f (2) establishes that interest. We rely on the many cases, Connecticut and federal, previously cited, on which to base our conclusion that the seven priests have a direct and substantial interest in the proceedings relating to discovery and production of records involving them, and that their interest would be impaired without their involvement at this stage of the proceedings. See United States v. American Telephone & Telegraph Co., supra, 642 F.2d 1295. Whether the documents should in fact be released is not the issue. Hennessey v. Bristol Hospital, supra, 225 Conn. 704.

Because the test for intervention as of right is conjunctive, the seven priests must satisfy the fourth and final prong, a demonstration that no existing party adequately represents their interests. The seven priests have met this showing.

The would-be intervenor bears the burden of demonstrating inadequate representation by an existing party. Edwards v. Houston, supra, 78 F.3d 1005. The most significant factor in assessing the adequacy of representation is how the interests of the absentees compare with the interests of the present parties; the weight of the would-be intervenors’ burden varies accordingly. If, for instance, the interests are identical or there is a party charged by law with representing a proposed intervenor’s interest, a presumption of adequate representation arises that the would-be intervenor can overcome only through a compelling showing of why this representation is not adequate. Id. At the other end of the spectrum, a presumption of inadequacy arises when an absentee must rely on his opponent or one whose interests are adverse to his.

The facts of the present case give rise neither to a presumption of adequacy nor inadequacy. The seven priests have not asserted that their interests are directly adverse to those of the defendants, and there is clearly no party charged by law with representing their interests. Moreover, the defendants’ interests are similar, but not identical to those of the seven priests. The defendants’ primary interest necessarily entails the defense of the liability claims, not necessarily the disclosure of the documents. S ee LaRouche v. Federal Bureau of Investigation, 677 F.2d 256, 258 (2d Cir. 1982).

The burden for establishing inadequate representation of similar interests is minimal. Indeed, the United States Supreme Court has acknowledged that one successfully establishes inadequate representation “if the applicant shows that representation of his interest ‘may be’ inadequate . . . .” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972). The particular circumstances of each case will dictate whether the absentee has an interest different from that of an existing party, and doubts should be resolved in favor of intervention. United States v. American Telephone & Telegraph Co., supra, 642 F.2d 1293.

A brief examination of similar cases proves illustrative for resolution of the issue of adequate representation in this case. Inadequate representation was recognized where an intervenor asserted that his fifth amendment interests were threatened, “and that his attorney cannot be expected to protect those interests by being held in contempt, [which] presents a paradigmatic case of entitlement to intervention as of right.” In re Katz, supra, 623 F.2d 125. Differences in possible harm constitute a legitimate factor in assessing whether interests are identical for purposes of adequate representation. United States v. American Telephone & Telegraph Co., supra, 642 F.2d 1293.

In Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357 (1994), a teacher sought intervention as of right in a mandamus action brought by a broadcaster directing the school district and district administrator to provide for inspection of a report on sexual harassment and the teacher’s grievance against the district. The Supreme Court of Wisconsin allowed the teacher to intervene as of right because “[one] cannot expect the District to defend the mandamus action with the vehemence of someone who is directly affected by public disclosure of the report. The personal nature of the interests at stake in the . . . report make [the teacher] the best person to protect those interests.” Id., 476.

Inadequate representation was demonstrated where a party could have argued the intervenor’s position, but the inteivenor “was in a better position to defend its own procedures.” Milford v. Local 1566, supra, 200 Conn. 95. Likewise, representation was deemed inadequate where the applicants’ “direct and limited interest” was “quite distinguishable” from broad, general concerns of the plaintiffs in that case. State Board of Education v. Waterbury, supra, 21 Conn. App. 74.

In the present case, the interests of the seven priests and the defendants are not in sharp disalignment nor are they identical. The seven priests have persuasively argued that the defendants may not adequately represent their interest in preventing the disclosure of their personnel records, noting that the Diocese is unlikely to “undergo the penalties of contempt in order to preserve someone else’s privilege.” Like the teacher in Armada Broadcasting, Inc., who was uniquely capable of vehemently defending against disclosure of private files, the seven priests in this case are undoubtedly in the best position to protect their interest in nondisclosure. Moreover, the seven priests’ limited and discrete purpose of preventing disclosure is distinguishable from the defendants’ general concern in defending the liability claims, and the defendants and the seven priests do not face identical harm. The possibility of divergence of interests need not be great. See Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission, 578 F.2d 1341, 1346 (10th Cir. 1978). The seven priests have met a minimal showing of inadequate representation of their interest by an existing party.

We conclude that the seven priests should have been permitted to intervene as of right in the case.

A successful intervenor is typically granted status as a party plaintiff or aparty defendant. In the present case, however, the seven priests did not seek such status. In their motion to intervene, they sought to intervene as of right “for the well-defined, limited purpose of filing a motion to quash and for a protective order, and otherwise to prevent disclosure of private, confidential information from their respective personnel file records.” It is for this discrete purpose that the seven priests, on remand, are to be granted intervention as of right.

A court has the authority to grant intervention limited to particular issues, and such limited intervention is not intended to allow enjoyment of all the prerogatives of a party litigant. See, e.g., United States v. American Telephone & Telegraph Co., supra, 642 F.2d 1295 (allowing telecommunications company to intervene for limited purpose of appealing District Court’s discovery order); Bradley v. Milliken, 620 F.2d 1141, 1143 (6th Cir. 1980) (permitting intervention for limited purpose of presenting evidence on question of de jure segregation); Smuck v. Hobson, 408 F.2d 175, 182 (D.C. Cir. 1969) (en banc) (limiting intervention to issues of order that relate to intervenors’ interests). Furthermore, the advisory committee note to the 1966 amendment of rule 24 (a) contained the following significant statement: “ ‘An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.’ ” C. Wright, A. Miller & M. Kane, Federal Practice & Procedure (2d Ed. 1986) § 1922, p. 505. In light of these cases and the committee note, the seven priests on remand are to be granted intervention for the unique purpose of contesting the disclosure of private, confidential files and issues relating to this interest.

The judgment denying the motion to intervene as of right is reversed and the case is remanded with direction to grant intervention as of right for the limited purpose of filing a motion to quash and for a protective order, and otherwise to prevent disclosure of private, confidential information from the intervenors’ respective personnel files.

In this opinion the other judges concurred.

       The motion to intervene was denied by the trial court, Skolnick, ./. A motion of the plaintiffs to dismiss this appeal for lack of an appealable final judgment was denied by this court on January 13, 1999.

       The personnel records were previously ruled to be personnel files for the purpose of General Statutes § 31-128f by another trial judge, Levin, J. Section 31-128f provides in relevant part: “No individually identifiable information contained in the personnel file ... of any employee shall be disclosed by an employer . . . without the written authorization of such employee except ... (2) pursuant to a lawfully issued administrative summons or judicial order, including a search warrant or subpoena ... or the investigation or defense of personnel-related complaints against the employer

       The proposed intervenors were granted permission to use the fictitious names of Reverend John Doe 1 through 7.

         Whether the records are in fact subject to disclosure is not the question of this appeal. Our question is whether, based on the allegation that the appellants do have an interest in part or in all of the records that would protect the records from disclosure, they should be allowed to intervene either as of right or permissively. The granting of the motion to intervene is not a determination of whether any material should be produced in part, in toto or not at all. See Washington Trust Co. v. Smith, 241 Conn. 734, 746, 699 A.2d 73 (1997); Hennessey v. Bristol Hospital, 225 Conn. 700, 704, 626 A.2d 702 (1993); see also Northern States Power Co. v. Westinghouse Electric Corp., 156 F.R.D. 168, 172 (D. Minn. 1994).

       Practice Book § 9-18 is modeled after General Statutes § 52-107. Section 9-18 provides: “The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest, or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party.”
      General Statutes § 52-107 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought, in. If a person not a party has an interest or title which the judgment will affect, the courl, on his application, shall direct him to be made a party.”
      Practice Book § 99, now § 9-18, used the word “his” and not “its” in the second sentence of the rule as it is now printed. Notably, § 52-107 uses the word “his" in the second sentence of the statute.

       Rule 24 of the Federal Rules of Civil Procedure provides: “(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
      (b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
      (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C. § 2403. . . .”

       Practice Book § 9-18 “is virtually identical to C.G.S.A. § 52-107, which has been in existence since it was adopted as § 15 of the 1879 Practice Act. The recent tendency of the Supreme Court is to ignore the specific embarrassing language of these sections and follow the most analogous Federal Rule.” W. Horton & K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (4th Ed. 1998) § 9-18, comments, p. 310.

       Rule 24 (a) was amended in 1966 to make it clear that an intervenor does not need to show that he will be bound by the disposition of the action and to liberalize the prerequisites to intervention. Edwards v. Houston, supra, 78 F.3d 1004-1005.

       It is not clear whether the motion to intervene was sought permissively or as of right.

       See footnote 8.

       Courts have denied intervention to shareholders in derivative suits; see In re General Tire & Rubber Co. Securities Litigation, 726 F.2d 1075, 1087 (6th Cir.), cert. denied sub nom. Schreiber v. Gencorp, Inc., 469 U.S. 858, 105 S. Ct. 187, 83 L. Ed. 2d 120 (1984); to insurance agents in actions between insurer and insured; see Continental Graphic Services, Inc. v. Continental Casualty Co., 681 F.2d 743, 745 (11th Cir. 1982); and to remaindermen under a 1 rust and heirs of an estate in an action brought by fiduciaries; see Peterson v. United States, 41 F.R.D. 131, 134-35 (D. Minn. 1966); all on the basis of identical interests.

       Absent a compelling showing otherwise, a court will assume that the United States adequately represents the public interest in antitrust actions; see Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S. Ct. 1309, 6 L. Ed. 2d 604 (1961); in school desegregation cases; see United States v. South Bend Community School Corp., 692 F.2d 623 (7th Cir. 1982); and in other similar causes of action.

       This flexible, liberal approach to determining whether present parties adequately represent an absentee’s interest is wholly consistent with the purpose of the amendment to rule 24 (a). During the amendment procedure, the advisory committee on civil rules was urged to abandon any consideration of adequacy of representation and allow the applicant to be the sole judge as to whether his interests were adequately represented. The committee ultimately rejected the elimination of this factor for fear that it would “ ‘break in rudely on ideas of fiduciary representation.’ ” 7C C. Wright, A. Miller & M. Kane, Federal Practice & Procedure, (2d Ed. 1986) § 1909, p. 316. Nonetheless, the postamendment cases illustrate that courts are liberal in finding that where one is willing to bear the cost of separate representation, he may not be adequately represented.

       The seven priests argued in the alternative that the trial court abused its discretion in denying their motion for permissive intervention. Because we conclude that the seven priests are entitled to intervention as of right, we need not address the merits of this issue.

       A court also has the authority to dismiss intervenors once their interest in the matter has expired. Federal cases illustrate that intervention as of right does no t grant absolute entitlement to continue as a party until termination of the suit. See, e.g., Morgan v. McDonough, 726 F.2d 11 (1st Cir. 1984).


author: FOTI, J.

text:
    ALFRED S. DIETZEL ET AL. v. PLANNING COMMISSION OF THE TOWN OF REDDING
    (AC 19063)
    Foti, Pellegrino and Peters, Js.

      Argued April 25
    officially released October 3, 2000

      Candace D. Paige, for the appellants (William A. Oppenheimer et al.).

      Neil R. Marcus, with whom, on the brief, was Patricia Curtin Sullivan, for the appellees (plaintiffs).

      Linda L. Morkan, with whom, on the brief, was Michael N. LaVelle, for the appellee (defendant).
   Opinion

FOTI, J.

In this land use appeal, the intervenors, Kathleen Oppenheimer and William Oppenheimer (Oppen-heimers), appeal from the denial by the trial court of their motion to open the judgment approving a settlement agreement entered into between the plaintiffs, Alfred S. Dietzel and Sharon L. Dietzel (Dietzels), and the defendant, the planning commission of the town of Redding (commission). On appeal, the Oppenheimers claim that the court improperly (1) concluded that they lacked standing to participate in the settlement agreement between the Dietzels and the commission under General Statutes §§ 8-8 (n) and 22a-19, and (2) denied their motion to open the judgment after determining that they were parties to the action as intervenors pursuant to § 22a-19. We agree and reverse the decision of the trial court.

The record reveals the following facts that are relevant to our resolution of this appeal. On March 11,1997, the Dietzels applied to the commission for approval of a four lot subdivision consisting of 14.84 acres of their property located at 9 and 11 Putnam Park Road, in Redding. The commission held public hearings on May 13, 1997, June 10, 1997, June 24, 1997, and July 8, 1997. On August 26,1997, the commission rendered a decision on the application in which it denied approval of the proposed development of lots one and three, but approved the proposed development of lots two and four, subject to certain modifications and conditions. The commission published notice of that decision in the Redding Pilot on September 4, 1997.

On September 18, 1997, the Dietzels commenced a timely appeal to the Superior Court from the commission’s decision. The Dietzels also commenced an action in federal court against the commission and its individual members for violation of their rights under 42 U.S.C. § 1983, claiming damages for an unconstitutional taking of their property. On February 5, 1998, the Oppenhei-mers filed a motion to intervene in the Superior Court action pursuant to Practice Book § 9-22 and General Statutes § 22a-19. On February 10, 1998, the Dietzels filed an objection to the Oppenheimers’ motion to intervene.

Although the motion to intervene was scheduled to be heard at short calendar on April 20, 1998, the court decided it on April 15, 1998, when the Dietzels and the commission entered into a settlement agreement, which the court, Radcliffe, J., approved on that same day. Prior to the trial court’s approval of the judgment for settlement, it denied the Oppenheimers’ motion to intervene. Essentially, the settlement agreement between the Dietzels and the commission provided for approval, subject to certain conditions, of the Dietzels’ development plans for their property in exchange for their withdrawal of the two pending actions against the commission in state and federal court. On May 15, 1998, the Oppenheimers filed a motion to open the judgment that approved the settlement agreement. Although the trial court reversed its earlier finding that the Oppenheimers were not intervenors and found that the Oppenheimers had status as intervening parties, the court found that they should not be allowed to participate in the proceedings relating to the court’s approval of the settlement agreement because the agreement did not contain any environmental issues. Thus, on July 6, 1998, the court denied the Oppenheimers’ motion to open. The Oppenheimers now appeal from the court’s denial of their motion to open.

I

The Oppenheimers first claim that the court improperly concluded that they lacked standing to participate in the settlement agreement entered into between the Dietzels and the commission under §§ 8-8 (n) and 22a-19. We agree.

“Where a claimed error of a nonconstitutional nature is not brought, to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. . . . Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . .

“We have consistently held that plain error review is necessary where the trial court, in its instruction, overlooks a clearly applicable statute ... or where the trial court fails to comply with a relevant statute.” (Citations omitted; emphasis added; internal quotation marks omitted.) Dionne v. Markie, 38 Conn. App. 852, 856-57, 663 A.2d 420 (1995); see also Practice Book § 60-5. In the present case, the court failed to comply with §§ 8-8 (n) and 22a-19.

“Section 22a-19 (a) makes intervention a matter of right once a verified pleading is filed complying with the statute, whether or not those allegations ultimately prove to be unfounded. [Our Supreme Court has] declared that the statute ‘permits any person, on the filing of a verified pleading, to intervene in any administrative proceeding for the limited purpose of raising environmental issues.’ Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 248 n.2, 470 A.2d 1214 (1984). In Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978), [the Supreme Court] concluded that one who filed a verified pleading under § 22a-19 (a) became a party to an administrative proceeding upon doing so and had ‘statutory standing to appeal for the limited purpose of raising environmental issues.’ ‘It is clear that one basic purpose of the act is to give persons standing to bring actions to protect the environment.’ Belford v. New Haven, 170 Conn. 46, 53-54, 364 A.2d 194 (1975).” Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989).

“Section 22a-19 does not create an independent right of appeal, but only allows intervention in an appeal otherwise allowed by statute.” R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 27.13, p. 62. “All of the parties must consent to a stipulated judgment in a land use appeal made pursuant to section 8-8 [n] or 22a-43 (c) of the General Statutes. The same statutes may also be construed as preventing settlement of appeals without the consent of persons who intervene under section 22a-19 for the limited purpose of raising environmental issues.” Id., 131; see also Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 743, 724 A.2d 1108 (1999) (hearing mandated by § 8-8 (n) inadequate because, among other things, one party not present at hearing); Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 60-61, 594 A.2d 981 (1991) (construing § 22a-43 (c), which contains same language as § 8-8 (n), to mean that all parties must consent before settlement can be reached between parties).

“Section 8-8 (n) does not specify the nature of the hearing that it requires. We begin, therefore, by considering the term ‘hearing’ according to its common, generally understood meaning. See General Statutes § 1-1 (a). We consistently have acknowledged the definition of a hearing provided in Black’s Law Dictionary, as ‘[a] proceeding of relative formality . . . generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented,’ and in which parties to a dispute have a right to be heard. Black’s Law Dictionary (6th Ed. 1990); see Herman v. Division of Special Revenue, 193 Conn. 379, 383, 477 A.2d 119 (1984); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 469-70, 378 A.2d 547 (1977); see also Trost v. Conservation Commission, 242 Conn. 335, 336, 340, 698 A.2d 832 (1997) (construing same language of § 8-8 [n] in General Statutes § 22a-43 [c]).

“At the same time, the term ‘hearing’ leaves room for flexibility in responding to variations in the required due process. Not all situations call for the same level of procedural safeguards. Bartlett v. Krause, 209 Conn. 352, 376, 551 A.2d 710 (1988), quoting H. Friendly, ‘Some Kind of Hearing,’ 123 U. Pa. L. Rev. 1267, 1270 (1975), observing that the term ‘hearing,’ is ‘a verbal coat of many colors.’ The role of the hearing required in the present circumstances is to respect and enforce the overall statutory scheme governing the zoning and planning process.

“Llearings feature prominently in the zoning process because land use decisions are quintessentially decisions impacting the public. See Couch v. Zoning Commission, 141 Conn. 349, 356-57, 106 A.2d 173 (1954) (observing that ‘the alteration of zonal boundaries may seriously affect the property rights of those owning land within or near the area involved’). Zoning regulation represents the common decision of the people ‘to serve the common social and economic needs . . . for their mutual advantage and welfare . . . .’ 1 E. Yokley, Zoning Law and Practice (4th Ed. 1978) § 2-1, p. 15. The statute authorizing local zoning regulation, the gist of which is that zoning regulations must promote the public welfare and be expressive of a comprehensive plan, reflects this community of purpose. See Couch v. Zoning Commission, supra, 353-54; Fairlawns Cemetery Assn., Inc. v. Zoning Commission, 138 Conn. 434, 439, 86 A.2d 74 (1952).

“Because of the public impact of land use decisions, Connecticut’s governing statutory scheme promotes public participation in such decision making, and particularly provides for public hearings with substantial procedural safeguards. We have recognized that, ‘[h]earings play an essential role in the scheme of zoning and in its development. 1 Yokley, Zoning Law & Practice (2d Ed.) p. 267. They furnish a method of showing to the commission the real effect of the proposed change upon the social and economic life of the community. Id., p. 268. Hearings likewise provide the necessary forum for those whose properties will be affected by a change to register their approval or disapproval and to state the reasons therefor.’ Couch v. Zoning Commission, supra, 141 Conn. 357. Thus, a municipality must hold a public hearing with specified procedural protections before establishing zoning regulations authorized by General Statutes § 8-2; and a local zoning board of appeals reviewing the decision of a municipal zoning officer must hold an open hearing, in order to ‘afford an opportunity to interested parties to make known their views and to enable the board to be guided by them.’ Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 311, 254 A.2d 486 (1968); see General Statutes § 8-7. The statutory scheme provides for substantial procedural protections at the latter hearing, including notice requirements, time limits for commencing the hearing and for rendering all decisions, and requirements that a record be made. Zoning decisions made by local entities without holding a required hearing have been held to be void. See Vose v. Planning & Zoning Commission, 171 Conn. 480, 486, 370 A.2d 1026 (1976) (plan of resubdivision); State ex rel. Brodie v. Powers, 168 Conn. 512, 514, 362 A.2d 884 (1975) (amendment of zoning regulations).

“The Appellate Court has recognized the policy of protecting the public interest by holding open hearings prior to Superior Court approval of a settlement of a land use appeal. Levine v. Plan & Zoning Commission, 25 Conn. App. 199, 203, 594 A.2d 9 (1991); Sendak v. Planning & Zoning Commission, 7 Conn. App. 238, 243 & n. 1, 508 A.2d 781 (1986). The court has explained: ‘The purpose of the statute is to ensure that zoning matters can be scrutinized by the public by means of a public record.’ Levine v. Plan & Zoning Commission, supra, 203. The requirements of a hearing and of court approval serve to protect the integrity of the land use planning process by prohibiting side or secret settlements by parties once there has been an appeal to the Superior Court. Id.; Sendak v. Planning & Zoning Commission, supra, 243 & n.l. If, after appealing to the Superior Court, the parties could settle their dispute without the participation of the board and without a public hearing with formal procedural protections, the underlying statutory policy of protecting the public interest would be at risk.” Willimantic Car Wash, Inc. v. Zoning Board of Appeals, supra, 247 Conn. 737-42.

In the present case, the court denied the Oppenheimers the right to intervene on April 15, 1998. See footnote 4. Although the court reversed itself at the July 6, 1998 hearing on the Oppenheimers’ motion to open, it nevertheless did not allow the Oppenheimers to participate in the proceedings regarding the settlement agreement as required by General Statutes § 8-8 (n). See Trost v. Conservation Commission, supra, 242 Conn. 345 (consent of all parties required prior to trial court’s approval of stipulation of judgment that settles land use appeal); Ralto Developers, Inc. v. Environmental Impact Commission, supra, 220 Conn. 60-61 (same). Indeed, the trial court, contrary to a previous finding by the commission, concluded that the settlement agreement did not include any environmental concerns, and, therefore, the Oppenheimers had no standing to contest the settlement agreement. Specifically, the court stated: “Because the agreement did not raise environmental issues, there was no standing on behalf of the intervenors to object to the particular settlement which was presented to the court . . . We conclude that the court committed plain error because it failed to comply with §§ 8-8 (n) and 22a-19.

The court failed to apply those statutes properly despite the commission’s prior finding that the Dietzels’ proposed development would have an environmental impact on the surrounding wetlands and watercourses. Indeed, as a threshold matter, we note that a trial court must uphold findings by an administrative agency if those findings are supported by substantial evidence in the record. See Rogers v. Board of Education, 252 Conn. 753, 768, 749 A.2d 1173 (2000); Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 539, 738 A.2d 1157 (1999).

Here, the record does not establish that the court considered the commission’s previous findings. Moreover, nothing in the record establishes that the commission reversed its earlier finding of environmental impact prior to its approval of the settlement agreement. Thus, because the settlement agreement included approval of the development of the same tract of land that was previously the subject of the commission’s findings of environmental impact, the Oppenheimers had standing as parties to raise environmental concerns regarding the settlement agreement. See General Statutes §§ 8-8 (n) and 22a-19; Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 727. Accordingly, we conclude that the court committed plain error when it found that the Oppenheimers lacked standing to participate in the settlement agreement and the stipulation of judgment that followed.

II

The Oppenheimers next claim that the court improperly denied their motion to open the judgment after it determined that they were parties to the action as intervenors pursuant to § 22a-19. We agree.

“A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Citations omitted; internal quotation marks omitted.) Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985).

Here, our review of the record leads us to conclude that the court’s denial of the Oppenheimers’ motion to open was based on reasoning that amounts to plain error. Thus, we conclude that the Oppenheimers have sustained their burden of demonstrating that the court abused its discretion in denying their motion to open. Accordingly, we reverse the decision of the trial court denying the Oppenheimers’ motion to open, and direct that the Oppenheimers be afforded the opportunity to participate in any proceedings, and no settlement agreement shall be approved without the consent of all of the parties. In the event that the judgment is reinstated as the result of the pending appeal (AC 20799), the Oppenheimers’ motion to open shall be granted.

The denial of the motion to open is reversed and the case is remanded for further proceedings consistent with the preceding paragraph.

In this opinion the other judges concurred.

       Practice Book § 9-22 provides: “Any motion to cite in or admit new parties must comply with Section 11-1 and state briefly the grounds upon which it is made.”

       General Statutes § 22a-19 provides: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
      “(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors', there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       General Statutes § 8-8 (n) provides: “No appeal under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.”

       In granting the motion for judgment in accordance with the settlement agreement entered into between the Dietzels and the commission, the court, Radcliffe, J., stated: “The court also finds that the Oppenheimers are not a party to the action; that they have no standing in this court. The only parties are the Dietzels and the town of Redding; that the commission approved the agreement; that the motion for judgment is granted by agreement; that said matter is withdrawn and filed in the land records.”
      We note, parenthetically, that the Oppenheimers had requested oral argument on the motion to intervene. Pursuant to Practice Book § 11-18, however,

        oral argument is at the discretion of the trial court for that type of motion, and, therefore, the court was not obligated to provide them with an opportunity for oral argument.

       The agreement provides in relevant part: '“Based on the report by Stuart Reeve of his archeological study and survey of March 10, 1998, (the ‘Reeve Report’) and subject to the provisions of this Agreement set forth below, the Planning Commission approves a resubdivision of four lots as shown on the PROPOSED ALTERNATIVE 2, SHEET 4 OF 5, Revised 6/13/97 as Approved by The Conservation Commission. Since the Report Showed no archaeological significance in the rear of the proposed lot 1, this lot of 6.100 acres, is approved. Proposed lot 2, consisting of 4.207 acres is approved subject to #1 below. Proposed lot 3 consisting of 2.056 acres is approved. Proposed lot 4 consisting of 2.478 acres, is approved. This application complies with the Redding Subdivision and Inland Wetland Regulations and the Conservation Commission decision in granting the Inland Wetland license. . .
      We are aware that the trial court, Radclijfe, J., has subsequently found the settlement agreement to be null and void due to the commission’s failure to publish notice of its April 14, 1998 decision changing its approval of the Dietzels’ subdivision from two lots to four. See Oppenheimer v. Planning Commission, Superior Court, judicial district of Danbury, Docket No. 334095 (February 2, 2000). In that case, the trial court further ordered that the commission reconsider the settlement agreement and give proper notice of its decision. Whereupon, if the agreement is properly approved, it must again be presented to the trial court for approval pursuant to § 8-8 (n). The court also noted that the Oppenheimers would be given an opportunity to be heard as intervenors pursuant to § 22a-19 when and if another settlement agreement is presented to the court for approval.
      Although we recognize that the trial court’s judgment finding the agreement null and void might make the relief granted in the present case unnecessary, we are not prepared to make a finding of mootness at this time. This is due, in part, to the fact that that judgment is currently on appeal (AC 20799) before this court.

       The court stated in relevant part: “All right. I’ve—I’ve heard the—the arguments of the parties and I did have an opportunity to review the motion to open—open judgment in this matter and as well as reviewing the agreement between the Dietzels and the Redding planning commission which as [counsel for the Dietzels] pointed out, was signed off on by the planning commission and there was a representative of the planning commission in court that morning.
      “Certainly, I’m not questioning the intervenor status of the—the Oppenhei-mers and any suggestion that they were not parties to the action itself I— I think was incorrect. I’ll make a finding that they were parties to the action itself.
      “There was also a finding at that time, however, that it was not necessary for them to be a party to the particular agreement involved because under § 22a-19 [b], the standing of an intervening party is strictly limited to raising issues of environmental concern or environmental issues and while those can include not only what we would consider the standard environmental issues but also some issues regarding historic structures and landmarks, there was nothing of that nature impacted by the—the agreement or raised in this—in this particular case.
      “Because the agreement did not raise environmental issues there was no standing on behalf of the intervenors to object to the particular settlement which was presented to the court under § 8-8, subsection n, of the General Statutes.
      :|: * *
      “The intervention being limited specifically to that purpose, the interve-nors should have no standing to object to a—an agreement reasonably entered into between the parties after hearing to resolve a particular case because it’s always in the interest of the court as well as the interest of the parties to resolve this—these issues among themselves.
      “So, I’ll—I’ll make a finding that because the intervenors have a—have a derivative role and because environmental issues as they’re defined in the—in the statute are not impacted by—by the settlement although they were clearly raised in the—in another appeal, that being Oppenheimer versus the conservation commission of the town of Redding, which is pending today, that the—that there is no basis for the motion to open judgment dated May 5th and that motion—is denied.”

       At its August 26, 1997 meeting, the commission made the following findings regarding the Dietzels’ application: “From its review of the complete record before it, including testimony at the public hearings, application documentation and reports by its consultants, the planning commission hereby finds as follows: (1) The site which is the subject of this application has documented natural, historical, and archeological features of significance which require protection; (2) The site has extensive wetlands and watercourses which also require protection; (3) Additional data and documentation are required in order to assess the extent and significance of historical and archeological remains on the site which have not yet been investigated, and to determine the impact (if any) of requested additional building sites; and (4) At present the site contains two independent single-family dwellings, as well as established driveways, utilities and outbuildings, all so arranged that a separate lot in full conformity with all town regulations is possible of the dwellings.”

       Intervention is allowed as “a matter of right once a verified pleading is filed complying with the statute, whether or not those allegations ultimately prove to be unfounded.” Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 734. Here, it is not disputed that the Oppenheimers complied with the statute.