author: GRUENDEL, J. FLYNN, J.,

text:
    ARTHUR J. DAVIS v. COMMISSIONER OF CORRECTION
    (AC 32827)
    Gruendel, Beach and Flynn, Js.

      Argued October 25, 2011
    officially released February 14, 2012

      John R. Williams, for the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and TerrenceM. O’Neill, assistant attorney general, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, Arthur J. Davis, appeals following the habeas court’s grant of summary judgment in favor of the respondent, the commissioner of correction. On appeal, the petitioner argues that the court improperly concluded that he was not entitled to be resentenced in accordance with General Statutes § 53a-35. We affirm the judgment of the habeas court.

To provide context for our discussion of the facts of the present case, we first review the relevant statutes. The petitioner originally was sentenced under General Statutes (Rev. to 1968) § 53-10, which provides, in relevant part, that “[a]ny person who commits murder in the first degree . . . shall suffer death unless the jury recommends imprisonment in the State Prison for life. If the person accused elects to be tried by the court and is found guilty . . . the court may, in its discretion, imprison such person in the State Prison for life. . . .” General Statutes (Rev. to 1968) § 54-125 provides that individuals sentenced to life imprisonment would be eligible for parole after serving twenty-five years, less any good time credits, not to exceed a total of five years.

“[A]s part of the Penal Code that became effective on October 1, 1971, the legislature adopted Public Acts 1969, No. 828, § 35, codified at General Statutes (Rev. to 1972) § 53a-35, which provides in relevant part that, ‘(a) [a] sentence of imprisonment for a felony shall be an indeterminate sentence . . . .’ The statute also sets a maximum term of life imprisonment and a minimum term of not less than ten nor more than twenty-five years for a class A felony. . . .

“In 1980, as part of the legislature’s comprehensive revision of the state’s sentencing structure abolishing indeterminate sentencing and creating definite sentencing, the legislature enacted [General Statutes] § 53a-35b and amended § 53a-35 (a) to provide in relevant part: ‘For any felony committed prior to July 1, 1981, the sentence of imprisonment shall be an indeterminate sentence . . . .’ Public Acts 1980, No. 80-442, § 9, now codified at General Statutes § 53a-35 (a).” (Citation omitted; emphasis added.) Mead v. Commissioner of Correction, 282 Conn. 317, 319, 920 A.2d 301 (2007).

With this background in mind, we review the undisputed facts and procedural history of the present case. On November 16, 1966, the petitioner was found guilty by a three judge panel of six counts of murder committed on August 25, 1966. On November 17, 1966, the three judge panel sentenced him to death pursuant to General Statutes (Rev. to 1968) § 53-10. On November 22, 1966, the same panel stayed the imposition of the death penalty pending his appeal. The conviction and sentence were affirmed after direct appeal to our Supreme Court. State v. Davis, 158 Conn. 341, 260 A.2d 587 (1969), vacated in part and remanded, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972).

On June 29, 1972, pursuant to Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the United States Supreme Court vacated the petitioner’s death sentence and remanded the case for further proceedings. Davis v. Connecticut, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972). On November 16, 1972, in compliance with the Supreme Court’s order, the petitioner was sentenced by a different three judge panel to life imprisonment, on each of the six counts of murder, with the sentences to run consecutively, pursuant to General Statutes (Rev. to 1971) § 53-10.

On January 25, 1985, the petitioner received a notice from Kay Bryan, a records supervisor at the Connecticut Correctional Institution at Somers, informing the petitioner that she had recalculated the petitioner’s sentence time pursuant to a 1980 statutory amendment and subsequent judicial decision that removed the statutory cap of five years of good time for all prisoners. In calculating the petitioner’s parole eligibility, Bryan treated the minimum term of imprisonment on each of the petitioner’s life sentences as twenty-five years, for a total minimum sentence of 150 years and a maximum sentence of life. The respondent thereafter reduced the 150 year minimum sentence by crediting the petitioner with 13,350 days of statutory good time, 492 days of jail credit, 6725 days of meritorious good time, 120 days of outstanding meritorious credit, and some seven day-job credits.

On June 28, 2007, the petitioner filed a petition for a writ of habeas corpus, alleging that his confinement was illegal because no court has ever set the minimum term of his confinement. The petition alleged that, pursuant to § 53a-35, the sentence for any felony committed prior to July 1, 1981, shall be indeterminate, and for any felony for which the maximum term of imprisonment is life, the minimum must be not less than ten or more than twenty-five years. The petitioner therefore argued that it was arbitrary and illegal for the respondent to calculate his parole eligibility based on a minimum term of twenty-five years per life sentence.

On December 10, 2008, the respondent filed a motion for summary judgment, pursuant to Practice Book § 23-37, arguing that the petition was barred by res judicata because the United States Court of Appeals for the Second Circuit addressed an identical claim from the petitioner in Davis v. Bryan, 889 F.2d 445 (2d Cir. 1989). The respondent also argued that summary judgment was appropriate because the petitioner was resentenced, in 1972, pursuant to General Statutes (Rev. to 1968) § 53-10, and the respondent properly calculated his parole eligibility pursuant to General Statutes (Rev. to 1968) § 54-125.

After hearing argument from the parties, the habeas court rendered summary judgment in favor of the respondent on October 18, 2010. The court first determined that the Second Circuit case did not have res judicata effect in the present case. The court next concluded that the respondent had not usurped any judicial function in calculating that the petitioner would be eligible for parole after he served twenty-five years for each count pursuant to General Statutes (Rev. 1968) § 54-125. The court also determined that § 53a-35 did not apply to crimes committed before October 1,1971, and that the petitioner was properly sentenced under § 53-10. The court subsequently granted the petition for certification, and this appeal followed.

The petitioner claims that the court incorrectly concluded that he was properly resentenced under General Statutes § 53-10 in 1972. The petitioner argues additionally that the respondent’s 1985 recalculation of his sentence to a minimum term of twenty-five years per count was violative of the provisions of § 53a-35 because § 53a-35 was amended by Public Act 80-442, § 9, to make the statute applicable to the sentencing of any person convicted of any felony committed prior to July 1,1981. We disagree, and conclude that the petitioner was properly resentenced under § 53-10 and that the respondent properly calculated the petitioner’s parole ehgibility under the statute applicable at the time of his offense.

“As a preliminary matter, we set forth the appropriate standard of review. Although a habeas court’s findings of fact are reviewed under a clearly erroneous standard of review, questions of law are subject to plenary review. . . . Whether a legislative act applies retroactively is a question of law over which this court has plenary review.” (Citation omitted; internal quotation marks omitted.) Mead v. Commissioner of Correction, supra, 282 Conn. 322-23.

We begin with the general rule that a defendant is prosecuted and sentenced under the statutes in effect at the time of the offense. The legislature has enacted “savings statutes as reflected in General Statutes § 54-194, which provides that ‘[t]he repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect’; and in General Statutes § 1-1 (t), which provides that ‘[t]he repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.’

“It is obvious from the clear, unambiguous, plain language of the savings statutes that the legislature intended that the defendant be prosecuted and sentenced in accordance with and pursuant to the statutes in effect at the timé of the commission of the crime. Our courts have repeatedly held that these savings statutes preserve all prior offenses and liability therefor so that when a crime is committed and the statute violated is later amended or repealed, defendants remain liable under the revision of the statute existing at the time of the commission of the crime.” State v. Graham, 56 Conn. App. 507, 510-11, 743 A.2d 1158 (2000) (holding that defendant was properly sentenced under statute in effect at time of commission of crime, notwithstanding amendment to statute passed before he was resentenced following remand).

It is clear that, in 1972, it was proper for the sentencing court to resentence the petitioner to a sentence of natural life, pursuant to General Statutes § 53-10, the statute in effect at the time of the offense and the statute the petitioner was originally sentenced under in 1966. While General Statutes § 53a-35 was in effect in 1972, nothing in the language of the statute expressed the intent of the legislature for the statute to be applied retroactively. Indeed, General Statutes § 53a-2 provides that the “provisions of this title shall apply to any offense . . . committed on or after October 1, 1971 . . . .” This plainly demonstrates a legislative intent that the 1971 revisions to the Penal Code be applied only prospectively. We therefore agree with the habeas court that the petitioner was properly resentenced under the statute in effect at the time of the offense, namely, General Statutes (Rev. to 1968) § 53-10.

The petitioner also claims that when the respondent recalculated the petitioner’s parole eligibility in 1985, the respondent should have calculated it pursuant to the minimum sentences provided for in § 53a-35 as amended in 1980. The petitioner argues that § 9 of No. 80-442 of the 1980 Public Acts requires that § 53a-35 be applied to all crimes committed before July 1, 1981, including those committed before the effective date of the revised Penal Code, October 1, 1971. We disagree and conclude that § 53a-35, as amended by Public Act No. 80-442, does not apply to crimes committed before October 1, 1971.

There is a presumption that “statutes affecting substantive rights shall apply prospectively only.” (Internal quotation marks omitted.) Mead v. Commissioner of Correction, supra, 282 Conn. 323. Section 53a-35 is unquestionably a substantive statute because it “defines and regulates the length of time that a prisoner is deprived of his liberty. The statute does not merely tell the commissioner [of correction] how to administer an existing right, but, instead, governs the right that the commissioner must administer.” Id., 324-25 (determining that § 53a-35b is a substantive statute). The “presumption that [a statute] has only prospective effect can be overcome only by a clear and unequivocal expression of legislative intent that the statute shall apply retrospectively.” Id., 325.

No. 80-442 of the 1980 Public Acts was part of the legislature’s comprehensive revision of the state’s sentencing structure to eliminate indeterminate sentencing, created by the 1971 revision to the Penal Code, and create definite sentencing. Id., 319. No. 80-442 of the 1980 Public Acts ended indeterminate sentencing with the purpose of increasing the amount of time that defendants who are convicted of murder would spend in prison. See Castonguay v. Commissioner of Correction, 300 Conn. 649, 664 n.15, 16 A.3d 676 (2011) (compiling legislative history of 1980 revisions). To accomplish this, No. 80-442 of the 1980 Public Acts restricted § 53a-35 to felonies committed before July 1, 1981, and enacted § 53a-35a to provide for definite sentencing for felonies committed on or after July 1, 1981. Prior to this amendment, indisputably § 53a-35 applied only to felonies committed after October 1, 1971, the effective date of the statute.

The legislature evinced no clear and unequivocal intent, while ending indeterminate sentencing going forward, to simultaneously extend it to a class of persons never before entitled to it. While the statutory provision itself does not limit its application to felonies committed after October 1, 1971, this limitation is found in § 53a-2, which, as noted previously, restricts the application of the provisions of title 53a to offenses committed on or after October 1, 1971. We decline to hold that an amendment restricting the application of indeterminate sentencing to felonies committed before July 1, 1981, also serves to entitle those who committed felonies before October 1, 1971, to be resentenced under an indeterminate sentencing scheme that did not exist at the time of their offenses.

Because § 53a-35 does not apply to crimes committed before October 1, 1971, the respondent properly calculated the petitioner’s parole eligibility in accordance with General Statutes (Rev. to 1968) § 54-125, providing for a minimum sentence of twenty-five years, less earned time, for each life sentence. This calculation did not change the sentence that the petitioner received in 1972 of six consecutive life sentences pursuant to General Statutes (Rev. to 1968) § 53-10, but merely calculated parole eligibility pursuant to statute.

We conclude that the court properly determined that the petitioner was correctly resentenced in 1972 pursuant to General Statutes (Rev. to 1968) § 53-10, and that the respondent properly recalculated the petitioner’s parole eligibility under General Statutes (Rev. to 1968) § 54-125 because § 53a-35 does not apply to crimes committed before October 1, 1971. Summary judgment in favor of the respondent, therefore, was appropriate.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

FLYNN, J.,

concurring. If it were proper for us to reach the merits in this case, I would agree with the result reached and the reasoning of the majority. I write separately because I would not reach the merits. The respondent, the commissioner of correction, has asserted that the doctrine of res judicata applies in this case to bar relitigation of a legal dispute between the same parties that already has resulted in a final judgment from the United States District Court for the District of Connecticut, later affirmed by the United States Court of Appeals for the Second Circuit in Davis v. Bryan, 889 F.2d 445, 448-51 (2d Cir. 1989). Both are courts of competent jurisdiction over both the subject matter and the parties in this case. The petitioner, Arthur J. Davis, first chose the federal forum. It ruled against him. After litigating the issue, and losing, he seeks to have the state courts of Connecticut enter an inconsistent judgment. That would be contrary to one of the principal public policy justifications for the res judicata doctrine, namely, “preventing inconsistent judgments . . . .” Weiss v. Weiss, 297 Conn. 446, 465, 998 A.2d 766 (2010). I would address the res judicata bar because, if applicable, consideration of the merits of the petitioner’s claim would be barred. I agree with the respondent that res judicata bars the petitioner’s claim.

“[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim ... [or any claim based on the same operative facts that] might have been made. ... A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Osuch, 124 Conn. App. 572, 581, 5 A.3d 976, cert. denied, 299 Conn. 918, 10 A.3d 1052 (2010).

In both the prior federal action and the case before us, the petitioner alleges that he is entitled, under Connecticut law, to be sentenced to a minimum term of imprisonment from ten to twenty-five years for each of six consecutive life sentences for murders, which he presently is serving. The petitioner asserted that, in the federal action, his due process rights were violated when a state prison official determined that his “minimum sentence” on each count was twenty-five years. He claimed that he was entitled to have a judge make this determination. That minimum sentence was ten years on each count of murder. That is his claim, made again, in the present case.

It is well settled that “[t]he doctrine of res judicata ordinarily extends not only to a judgment rendered by a court of record of general jurisdiction, but also to judgments of all courts.” 47 Am. Jur. 2d 73-74, Judgments § 514 (2006). The focus of analysis of res judicata is whether or not the matter previously has been adjudicated by a court of competent jurisdiction, not which court did the adjudicating. I am untroubled, therefore, by the fact that the judgment, which the respondent asserts bars the claim, came from the federal court. “[A] judgment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive between the same parties or privies upon the same matters when directly in question in another court.” (Internal quotation marks omitted.) Johnson Co. v. Wharton, 152 U.S. 252, 257-58, 14 S. Ct. 608, 38 L. Ed. 429 (1894); see 47 Am. Jur. 2d, supra, pp. 73-74. Res judicata precludes state court litigation of matters fully litigated in federal court. McCarthy v. Warden, 213 Conn. 289, 295, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990), citing Virgo v. Lyons, 209 Conn. 497, 501-502, 551 A.2d 1243 (1988). The principal reason for applying this doctrine is that litigation cannot be endless. That is true particularly in habeas appeals where the merits of a truly worthy case brought for the first time under “the great writ” can be lost in a sea of endless, previously litigated appeals, once finally decided, but revived anew.

For the foregoing reasons, I respectfully concur with the result reached in the majority opinion.

       In light of our conclusion that summary judgment was appropriate on that ground, we do not address the respondent’s additional contention that summary judgment was properly rendered in favor of the respondent because the action was barred by res judicata. See James v. Valley-Shore Y.M.C.A, Inc., 125 Conn. App. 174, 176 n.1, 6 A.3d 1199 (2010) (“[i]n tight of our conclusion that summary judgment was appropriate on that ground, we do not address the court’s alternate basis for rendering summary judgment or the plaintiffs challenge thereto”), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011), citing Valentine v. LaBow, 95 Conn. App. 436, 448 n.11, 897 A.2d 624 (“[bjecause we conclude that the court correctly determined that the defendant’s fraudulent conveyance claim was barred by the three year statute of limitations contained in General Statutes § 52-577, we need not address the defendant’s claims with respect to the court’s alternate grounds for granting the motion for summary judgment”), cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). The court indicated in its oral ruling that it was reluctant to apply res judicata to a federal court decision interpreting a state statute as a matter of first impression. The court distinguished the present case from McCarthy v. Warden, 213 Conn. 289, 294-98, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990), on which the concurrence reties, because McCarthy did not involve an issue of statutory interpretation. Neither party briefed this particular issue, nor has the concurrence provided support for the proposition that the application of res judicata is proper where a federal court interpreted a state statute as a matter of first impression. In tight of the fact that res judicata is a flexible doctrine, we decline to consider the applicability of that equitable doctrine when the court’s ruling on the petitioner’s resentencing claim plainly disposes of his appeal. Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 591, 674 A.2d 1290 (1996) (“[t]he doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finalily in legal controversies” [internal quotation marks omitted]).

       We note that General Statutes (Cum. Sup. 1965) § 53-10, which was in effect at the time the crimes here were committed, is identical to General Statutes (Rev. to 1968) § 53-10, under which the petitioner was sentenced.

       In December, 1984, the Superior Court held that all Connecticut prisoners were entitled to benefit from the 1980 amendment to General Statutes § 54-125 that eliminated the five year restriction on the amount of good time credit that could be earned. Public Acts 1980, No. 80-442, § 26.

       On May 12, 2009, the court denied without prejudice the respondent’s motion for summary judgment. The court stayed the proceedings in the habeas corpus matter to permit the petitioner to file in the sentencing court a motion to correct an illegal sentence. See Cobham v. Commissioner of Correction, 258 Conn. 30, 39, 779 A.2d 80 (2001) (“in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to [Practice Book] § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus”). Thereafter, the petitioner filed amotion to correct an illegal sentence with the sentencing court. On August 25, 2009, the sentencing court denied the motion for lack of subject matter jurisdiction. On January 15, 2010, the respondent filed a motion to renew its motion for summary judgment.

       We note that the habeas court addressed three distinct questions of law in its oral ruling. The first question of law was which statute the petitioner was entitled to be sentenced under in 1972. The second question was the calculation done by the respondent in 1985 in accordance with General Statutes (Rev. to 1968) § 53-10 and General Statutes (Rev. to 1968) § 54-125. Finally, the habeas court ruled that § 53a-35 does not apply retroactively to crimes committed before October 1, 1971. The petitioner’s brief states that the sole question before this court is which statute the petitioner should have been sentenced pursuant to in 1972, yet argues that it was the respondent’s recalculation of the petitioner’s sentence that is in violation of § 53a-35. Because the petition for certification stated the grounds broadly as “[w]hether the court erred in deciding the question of law set forth in its ruling,” we address the habeas court’s ruling in its entirety.

       We note that our Supreme Court has acknowledged the practical concerns that a retroactive application of § 53a-35 would create. When ruling on the retroactivity of § 53a-35b in Mead v. Commissioner of Correction, supra, 282 Conn. 317, the court cited favorably to Davis v. Bryan, supra, 889 F.2d 445, and noted that “[a] retroactive application of § 53a-35b would also raise some of the same concerns that troubled the [court in Davis].

        . . . The petitioner asserted that the legislature created an entitlement to a judicially imposed indeterminate sentence by amending § 53a-35 to apply indeterminate sentencing to any felony committed prior to July 1,1981, and by failing to limit this provision to felonies committed after October 1, 1971.
      . . . The court in Davis concluded that neither the 1971 provisions nor the 1980 amendment to § 53a-35 was retroactive, as a retroactive application of § 53a-35 would mean that every defendant sentenced under the pre1971 penal code would be entitled to be re-sentenced to an indeterminate sentence. . . . The court found it improbable that the legislature intended to impose such a burden on the Connecticut courts. ... We find it equally improbable that the legislature intended to impose such a burden on our court system by requiring that every defendant sentenced to life imprisonment prior to 1981 would be entitled to have his life sentence recalculated as a term of sixty years.” (Citation omitted; internal quotation marks omitted.) Mead v. Commissioner of Correction, supra, 325-26.

       See footnote 3 of this opinion. Bryan’s calculations reflect the removal of the five year cap on earned time.

       Specifically, General Statutes § 53a-35, as opposed to General Statutes §§ 54-125 and 53-10.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    ROSEMARIE B.-F. v. CURTIS P.

    (AC 33323)
    Gruendel, Beach and Peters, Js.
    Argued November 9, 2011
    officially released February 14, 2012

      Craig C. Fishbein, for the appellant (defendant).

      John P. Santucci, for the appellee (plaintiff).

       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

PETERS, J.

General Statutes § 46b-15 (a) authorizes the issuance of a restraining order upon a finding that a family member “has been subjected to a continuous threat of present physical pain or physical injury by another family . . . member . . . ,” In this appeal, the only issue is whether the trial court abused its discretion in finding that the facts of record sufficed to establish the requisite “continuous threat.” We affirm the judgment of the court.

On February 24, 2011, the plaintiff, Rosemarie B.-F., filed an application for relief from abuse against the defendant, Curtis P., the father of her minor child M, alleging that his conduct presented an immediate and present physical danger to herself and her two minor children. After the issuance of an ex parte restraining order, the court held an evidentiary hearing and granted the application as to the plaintiff. The court issued a restraining order for the protection of the plaintiff until September 4, 2011, but declined to issue any order for the protection of the minor children. In response to the defendant’s motion, the court issued an articulation of its decision. The court denied the defendant’s motion for reargument and reconsideration. The defendant has appealed.

The court reasonably could have found the following facts. On the evening of February 19, 2011, the plaintiff brought the parties’ daughter, M, to the defendant’s home in preparation for a contemplated weeklong Florida vacation. The previous evening, M had been treated at a hospital emergency room for an infected toe and a fractured foot. As a result, she had been prescribed antibiotics, wore a boot on her injured foot and was using crutches.

The plaintiff entered the defendant’s home with M and her younger son, C, while her husband, the father of C, waited outside in the car. Inside the defendant’s home, the plaintiff explained to him the medical regimen for M’s injuries while she sat holding M, who was crying, in her lap. An argument ensued about the contents of M’s luggage and about her bedtime. The argument became heated and the defendant began pushing the plaintiff toward the front door. The defendant restrained M and attempted to seize C, but the boy freed himself and ran out the front door to the waiting car. The defendant propelled the plaintiff out of the front door, causing her to suffer injuries to her Up and jaw. The plaintiff then fell backward down the front steps and landed on the sidewalk. M got out of the defendant’s home by crawling out from underneath a partially opened garage door.

Without challenging any of the court’s factual findings, the defendant maintains that we should reverse its judgment because (1) the evidence presented by the plaintiff was insufficient to establish “a continuous threat of present physical pain or physical injury,” (2) the court improperly excluded evidence that the plaintiff had reached out to the defendant for consolation in the face of her failing marriage and (3) the plaintiffs entry into the defendant’s home was improper because of a prior court order forbidding such an entry. We are not persuaded.

We note, at the outset, that, although the restraining order has expired, the present appeal is not moot. “ [T]he expiration of a domestic violence restraining order does not render an appeal from that order moot because it is reasonably possible that there will be significant collateral consequences for the person subject to the order.” Putman v. Kennedy, 279 Conn. 162, 164-65, 900 A.2d 1256 (2006). Accordingly, we must address the merits of the defendant’s appeal.

I

The defendant’s principal claim on appeal is that there was not sufficient evidence to establish “a continuous threat of present physical pain or physical injury,” as required by § 46b-15, to support the protective order issued by the court. We disagree.

“[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record 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.” (Internal quotation marks omitted.) Gail R. v. Bubbico, 114 Conn. App. 43, 46-47, 968 A.2d 464 (2009).

The court found that a restraining order was warranted on the basis of the testimony of the plaintiff, whom the court expressly found to have been credible, and the existence of past and present protective orders. Although the court did not issue restraining orders on behalf of C or M, it observed, in its articulation, that it had attached significance to the fact that the defendant’s violent acts against the plaintiff had been committed in front of the children. The court credited the plaintiff’s testimony that she was in fear of the defendant. The court also considered that the defendant had failed to acknowledge “that he could have handled this event differently” and had accused the plaintiff of trespassing on his property.

Furthermore, the court noted that restraining orders had been issued against the defendant in the past, in 1999 and 2001. Even more directly relevant, the court took judicial notice of the fact that the defendant had been placed under arrest as a result of the events of February 19, 2011, and that, at the defendant’s arraignment, a protective order had been issued on the plaintiffs behalf.

The defendant does not contest the court’s authority to credit the plaintiffs description of the events that occurred at his home on the evening in question. He nonetheless maintains that this evidence did not suffice to establish a continuous threat to the plaintiff. In the defendant’s view, the events that occurred on February 19, 2011, no matter how probative of his misconduct, were insufficient to support the court’s judgment because the only other facts of record were protective orders that had been issued many years earlier.

Putman v. Kennedy, 104 Conn App. 26, 34, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008), clearly holds that one incident, combined with a finding that a respondent presently poses a continuous threat, is sufficient to satisfy § 46b-15. The defendant’s argument is, therefore, untenable because it fails to address the court’s express reliance on the most recent criminal protective order, issued at the time of the defendant’s arraignment. The fact of its issuance manifests a timely judicial finding that the defendant had violent tendencies, had acted aggressively toward the plaintiff and was responsible for the stormy relationship between the parties. The court construed the protective order as evidence, as well, of the long-standing nature of the parties’ unfortunate relationship. In the absence of evidence or argument that the court misread the protective order, we cannot fault the court’s decision.

II

The defendant also challenges the validity of an evidentiary ruling by the trial court that precluded him from presenting evidence that the plaintiff recently had turned to the defendant for consolation when she was having difficulties in her marriage. We are not persuaded.

“[T]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Villa v. Rios, 88 Conn. App. 339, 342, 869 A.2d 661 (2005).

The defendant argues that his testimony was admissible to counter the plaintiffs claim that he continually and presently threatened her with physical violence and harm. The court sustained the plaintiffs objection to the proffered testimony on the ground that it was irrelevant. Like the trial court, we fail to see the connection between the defendant’s claim that the plaintiff had come to him to discuss relationship problems and the court’s finding, one year later, that the defendant presented a continuous threat of present physical pain or injury to the plaintiff. The defendant’s argument, essentially, is that the “continuous threat” requirement set forth in § 46b-15 cannot be met if there ever was a brief peaceful interlude in the relationship between the parties. The defendant has cited no authority for such a construction of the statute and we know of none. Accordingly, we find no impropriety in the court’s evidentiary ruling.

Ill

Finally, the defendant faults the court for its failure to consider whether the plaintiffs entry into his home on the evening in question was a violation of a prior court order that prohibited the plaintiff from leaving her car when she brought M to visit the defendant. The defendant acknowledges that he did not bring this issue to the court’s attention until he filed his motion for reargument and reconsideration. The court denied the defendant’s motion without comment. In accordance with Practice Book § 60-5, we similarly decline to consider the defendant’s unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-15 provides in relevant part: “(a) Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section.
      “(b) . . . The application shall be accompanied by an affidavit made under oath which includes a brief statement of the conditions from which relief is sought. Upon receipt of the application the court shall order that a hearing on the application be held not later than fourteen days from the date of the order. The court, in its discretion, may make such orders as it deems appropriate for the protection of the applicant and such dependent children or other persons as the court sees fit. ... If an applicant alleges an immediate and present physical danger to the applicant, the court may issue an ex parte order granting such relief as it deems appropriate. . . .”

       The transcript of the evidentiary proceedings makes it clear that the focal point of the parties’ disagreement was the plaintiffs request for issuance of a restraining order with respect to M. Such an order would have had implications for the parties’ ongoing dispute about custodial arrangements for M.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...”


text:
    STATE OF CONNECTICUT v. CHARLOTTE HUNGERFORD HOSPITAL
    (AC 32856)
    Kobinson, Espinosa and Peters, Js.

      Argued November 28, 2011
    officially released February 14, 2012

      Steven V. Manning, with whom was Donna R. Zito, for the appellant (defendant).

      Jane R. Rosenberg, assistant attorney general, with whom were Lynn D. Wittenbrink, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (plaintiff).
   Opinion

PETERS, J.

General Statutes § 4-160 (a) authorizes the claims commissioner to permit a civil suit otherwise barred by sovereign immunity “on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.” The principal issue in this appeal is whether the subpoena power conferred upon the claims commissioner by General Statutes § 4-151 (c) permits him to subpoena documents from a respondent that has not been named as a party to the suit that the claims commissioner has been asked to authorize. The respondent has appealed from the judgment of the trial court enforcing the claims commissioner’s subpoena. We affirm the judgment of the court.

On May 7, 2010, the plaintiff, the state of Connecticut (state), filed an application in the Superior Court, pursuant to § 4-151 (c) and. (e), for the issuance of an order ,to force the defendant, Charlotte Hungerford Hospital (hospital), to comply with a subpoena duces tecum issued by the claims commissioner. The hospital filed an objection to the application. After hearing oral argument, the court granted the state’s application and ordered the hospital to comply with the claims commissioner’s subpoena. The hospital has appealed.

The subpoena that is at issue in this appeal relates to a case currently pending before the claims commissioner, Jodey Charette, Co-Administrator, Estate of Dayna Ashley Charette v. State of Connecticut, No. 21595 (Charette case). The claimant, Jodey Charette, seeks permission, pursuant to General Statutes § 4-147, to sue the state for damages resulting from the death of Dayna Ashley Charette (decedent), who died while in the custody of the department of correction. The claimant alleges that the decedent was an inmate confined to York Correctional Institution (York) and that, on the day immediately prior to her death, Litchfield County judicial marshals transported her to Litchfield Superior Court for a court appearance. In response to her complaint that she was feeling unwell, the marshals transported the decedent to the hospital. At the hospital’s emergency room, the decedent misrepresented her physical condition and prescription regimen to the attending physician and persuaded him to give her a large dose of methadone. The marshals thereafter returned the decedent to York. The next morning, she was found dead in her cell. A medical examiner concluded that the cause of her death was methadone toxicity and that the manner of her death was accidental. The state has denied liability in the Charette case. The hospital is not a party to this underlying litigation.

The claims commissioner approved the state’s request for the issuance of a subpoena ordering the hospital to produce documentation relating, inter alia, to its dispensing and administration of narcotic drugs. The hospital declined to comply with the subpoena because, in its view, the requested documents were irrelevant and immaterial to the Charette case.

Pursuant to § 4-151 (c) and (e), the state applied to the Superior Court for an order to compel the hospital’s compliance with the claims commissioner’s subpoena. The state argued that the hospital’s compliance with the subpoena would assist the commissioner in his appraisal of the merits of the state’s claim in the Charette case, that the prescription of methadone for the decedent by a physician on the hospital’s staff was not foreseeable and therefore raised an issue of causation about the state’s liability for the decedent’s death.

Granting the state’s request, the court rejected the hospital’s arguments that (1) the claims commissioner has only limited statutory authority, which must be strictly construed, and therefore has no jurisdiction over the hospital, a nonparty to the underlying claims case, (2) the claims commissioner is not entitled to production of the requested documents because they do not “relate” to the claims proceeding as required by § 4-160 (a) and (3) the claims act is an unconstitutional delegation of authority under article third of the state constitution. The hospital has renewed each of these arguments in this appeal. We are not persuaded of the merits of the hospital’s arguments for reversal of the court’s well reasoned judgment in favor of the state.

I

AUTHORITY OF THE CLAIMS COMMISSIONER

The centerpiece of the hospital’s appeal is its contention that, as is true with statutes conferring adjudicative authority upon other administrative agencies, the statutes conferring investigatory authority upon the claims commissioner must be strictly construed. In the hospital’s view, the court improperly enforced the subpoena issued by the claims commissioner because the commissioner had no express statutory authority to order the discovery of the requested documents. The hospital contends that (1) the documents are irrelevant and privileged, and (2) the commissioner’s statutory subpoena power does not extend to documents in the possession of an entity or individual that is not a party to a claim pending before the commissioner.

Resolution of this appeal requires us to interpret chapter 53 of the General Statutes, §§ 4-141 through 4-165 (claims commission act), which establishes and governs the authority of the claims commissioner to review claims against the state. “Because statutory interpretation is a question of law, our review is [plenary]. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011).

Underlying the hospital’s argument that the claims commissioner lacked the authority to issue the subpoena is the assumption that the powers conferred upon the claims commissioner by chapter 53 of the General Statutes are subject to the same degree of judicial scrutiny that courts exercise, pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; in their review of the decisions of other administrative agencies. We disagree with this assumption.

“The office of the claims commissioner was created by Public Acts 1959, No. 685. Prior to 1959, a claimant who sought to sue the state for monetary damages, in the absence of a statutory waiver by the state, had but one remedy — namely, to seek relief from the legislature, either in the form of a monetary award or permission to sue the state. . . . [T]he [office of the claims commissioner] was intended to ease the legislature’s burden in handling claims for monetary relief.” (Citation omitted.) Miller v. Egan, 265 Conn. 301, 318, 828 A.2d 549 (2003). In accordance with that agenda, § 4-160 (a) confers upon the claims commissioner the discretionary authority to decide whether it is “just and equitable” to permit a claim against the state. Furthermore, in the exercise of that discretionary authority, the claims commissioner “performs a legislative function directly reviewable only by the General Assembly.” (Emphasis added.) Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 541, 489 A.2d 363 (1985).

Although the office of the claims commissioner is, in part, an executive branch agency, because the claims commissioner is an appointee of the governor, the office of the claims commissioner differs significantly from other executive branch agencies. General Statutes § 4-164a expressly exempts the claims commissioner from certain provisions of the Uniform Administrative Procedure Act, including § 4-183. The strict scrutiny of an administrative decision that is authorized by § 4-183 and undertaken in Figueroa v. C & S Ball Bearing, 237 Conn. 1, 10-11, 675 A.2d 845 (1996), on which the hospital relies, is, therefore, not the appropriate standard of judicial review for an appeal from an order of the claims commissioner.

The validity of the claims commissioner’s exercise of his discretionary authority must be determined by reference to the unique terms of the claims commission act, chapter 53 of the General Statutes. To the extent that these statutes are ambiguous, they must be interpreted to reflect the claims commissioner’s singular responsibility to exercise a legislative function. McCoy v. Commissioner of Public Safety, supra, 300 Conn. 150-51. The underlying issue is, therefore, whether the legislature itself, if it had continued to exercise its own broad discretion to decide whether to authorize the Charette case against the state, would have had the authority to issue the subpoena.

A

The hospital’s principal contention is that § 4-151 does not confer statutory authority on the claims commissioner to order the discovery of documents from an entity that is not a party to a claim pending before the claims commissioner. We disagree.

The state’s application for a judicial order compelling the hospital to comply with the claims commissioner’s subpoena relied on § 4-151. Section 4-151 provides in relevant part: “(b) The Claims Commissioner may call witnesses, examine and cross-examine any witness, require information not offered by the claimant or the Attorney General and stipulate matters to be argued. The Claims Commissioner shall not be bound by any law or rule of evidence, except as he may provide by his rules, (c) The Claims Commissioner may administer oaths, cause depositions to be taken, issue subpoenas and order inspection and disclosure of books, papers, records and documents. Upon good cause shown any such order or subpoena may be quashed by the Claims Commissioner. . . . (e) If any person refuses to testify or to produce any relevant, unprivileged book, paper, record or document, the Claims Commissioner shall certify such fact to the Attorney General, who shall apply to the superior court for the judicial district in which such person resides for an order compelling compliance. ...”

Despite the sweeping powers that the text of this statute confers upon the claims commissioner, the hospital maintains that § 4-151 must be construed, by implication, to deny the commissioner the authority to subpoena hospital documents because the hospital has not been named as party to the Charette case. The hospital argues that the claims commissioner’s investigatory authority inherently is limited by the contents of the pleadings of the claim against the state that the commissioner is being asked to authorize. Furthermore, the hospital maintains that, in this case, the claims commissioner had no authority to inquire into the merits of the state’s contention that state marshals could not have foreseen that someone at the hospital would give the decedent a fatal dose of methadone. We are not persuaded.

At the outset, we agree with the court that, as a public official carrying out his official duties, the claims commissioner was entitled to a presumption that he was performing his duties properly and was not engaged in an improper act beyond his authority. See Manatuck Associates v. Conservation Commission, 28 Conn. App. 780, 793, 614 A.2d 449 (1992). Furthermore, we are persuaded that the hospital’s contention is not supported by the text of the claims commission act.

The claims commissioner’s investigatory authority is defined broadly by § 4-160 (a) as a responsibility to exercise discretion to do what is “just and equitable . . . .” See Reilly v. Smith, 84 Conn. App. 849, 854-56, 855 A.2d 1000, cert. denied, 271 Conn. 938, 861 A.2d 513 (2004). Consistent with that broad authority, the relevant subsections of § 4-151 expressly authorize the claims commissioner to issue a subpoena; General Statutes § 4-151 (c); and to apply for a court order to enforce a subpoena against “any person”; General Statutes § 4-151 (e); and to “require information not offered by the claimant or the Attorney General . . . .” General Statutes § 4-151 (b). We agree with the court that we should not engraft onto this statute limitations that its text does not contain. Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 729, 6 A.3d 763 (2010) (“[courts] are not permitted to supply statutory language that the legislature may have chosen to omit” [internal quotation marks omitted]).

B

In addition to its generic objection to the claims commissioner’s subpoena, the hospital also disputes the relevance of particular documentation that the court ordered it to produce. In the hospital’s view, documents regarding its licensing, procedures and personnel qualifications, which the subpoenas required it to produce, have no bearing on what the judicial marshals knew when they entrusted a hospital staff member with custodial responsibility for the decedent’s well-being. We are not persuaded.

We agree with the court’s observation that “relevance is a very broad concept.” Pursuant to Practice Book § 13-2, during pretrial discovery, “relevance” includes whatever “appears reasonably calculated to lead to the discovery of admissible evidence. . . .”

It bears emphasis, moreover, that relevance, for the purpose of an inquiry into the authority of the claims commissioner, must be determined by inquiring into what would have been relevant in a legislative assessment of the propriety of permitting the Charette case against the state to go forward. We know of no authority, and the hospital has cited none, that would establish that a committee of the General Assembly would have lacked the authority to conduct an inquiry into the hospital’s role in the decedent’s untimely death. Furthermore, in such a legislative hearing, it is unlikely that it would have been dispositive, as the hospital now contends, that the commissioner initially ordered the subpoenaed documents to be delivered to the office of the attorney general, rather than to the designated legislative committee.

The hospital’s allegation that the claims commissioner had no authority to issue the subpoena in question because the commissioner never adopted regulations to establish guidelines for discovery prior to a commission hearing founders for the same reason. The hospital has cited no authority for the proposition that a legislative inquiry into whether to grant a claimant permission to sue the state could not proceed without compliance with the formalities that executive branch agencies generally are expected to follow. The hospital’s conclusoty contention fails to take account of the legislative power that the General Assembly has conferred upon the claims commissioner.

Finally, the hospital contends that the court’s order improperly granted the claims commissioner greater authority than a court, and that the legislature could not have intended to confer greater authority upon the claims commissioner than it has afforded to the judges of the Superior Court. This contention once again fails to take into account the claims commissioner’s special role as a surrogate for the legislature. Moreover, it overlooks the fact that, even for administrative agencies governed by the Uniform Administrative Procedure Act, some administrative rulings, such as those that do not qualify as final agency decisions in a contested case, are not subject to Superior Court review. See Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 771-72, 924 A.2d 846 (2007).

II

CONSTITUTIONAL CLAIMS

The hospital’s appeal also challenges the constitutionality of the legislature’s unconditional delegation to the claims commissioner of its authority to waive the state’s sovereign immunity from suit. This claim has two parts. The hospital maintains that the authority that the legislature conferred upon the claims commissioner (1) is too broadly stated to pass constitutional muster and (2) violates the constitutional principle of bicameralism. The court rejected both constitutional challenges. We agree with the court.

As the court observed, the legislature, before enacting the claims commission act, recognized that it might lack constitutional authority to delegate the waiver of the state’s sovereign immunity to some other entity. The legislature therefore prepared a constitutional amendment to article tenth of our state constitution, which provides: “Article tenth of the constitution is amended by adding section 7 as follows: Claims against the state shall be resolved in such manner as may be provided by law.” The electorate approved the amendment in 1958. Conn. Joint Standing Committee Hearings, Appropriations, Pt. 3, 1959 Sess., p. 920. In light of this constitutional amendment, the court held that the hospital’s constitutional arguments lacked merit.

We find the court’s constitutional analysis compelling. Without some reasoned argument as to why the constitutional amendment is not dispositive, which the hospital has not presented to us, we conclude that the hospital cannot prevail on its constitutional claims.

In sum, the authority that the legislature expressly has conferred upon the office of the claims commissioner is far-reaching. By authorizing the claims commissioner to decide whether a suit against the state is “just and equitable”; General Statutes § 4-160 (a); the legislature has conferred upon him the same broad discretion that the legislature itself exercised before the enactment of the claims commission act. Because the legislature’s delegation of its equitable authority to the claims commissioner is unambiguous and unequivocal, we conclude that the court properly enforced the subpoena issued by the claims commissioner in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-160 (a) provides: “When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.”

       General Statutes § 4-151 provides in relevant part: “(c) The Claims Commissioner may . . . issue subpoenas .... (e) If any person refuses . . . to produce any relevant, unprivileged . . . record or document, the Claims Commissioner shall certify such fact to the Attorney General, who shall apply to the superior court for the judicial district in which such person resides for an order compelling compliance. . . .”

       The court’s order was an appealable final judgment because the sole purpose of the judicial proceeding that was initiated by the state was to compel the hospital to produce the requested documents. The appeal thus falls within the first prong of the test of finality of judgment stated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), because the order “terminates a separate and distinct proceeding . . . .”

       General Statutes § 4-147 provides in relevant part: “Any person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested; and (4) a request for permission to sue the state, if such permission is sought. . .

       A civil suit seeking damages from the emergency room physician and the hospital has, however, been filed in New Britain Superior Court. Charette v. Malone, Superior Court, judicial district of New Britain, Docket No. CV-09-5014422.

       The subpoena issued by the claims commissioner sought: “1. Copies of all documents regarding the licensing of the Charlotte Hungerford Hospital pharmacy allowing the dispensing and administration of all narcotic drugs, including but not limited to Methadone, Suboxone and/or Buprenorphine; any and all policy and procedures with regard to the dispensing of Methadone, any and all emergency room procedures, directives, and policies regarding the dispensing or administration of Methadone including but not limited to any limitations on dosage or dispensing of Methadone and manner of dispensing Methadone; and any and all documents pertaining to the qualifications required of the individual who administers the dosage and the diagnostic criteria which must be met before Methadone or any other narcotic may be dispensed. 2. Copies of any internal investigation or review reports, including but not limited to policy reviews or emergency room procedure reviews conducted by Charlotte Hungerford Hospital regarding the treatment provided to Dayna Ashley Charette on August 31, 2007. 3. Copies of any and all health records, reports, or documents of any kind or description, in your possession or that you have access, related in any way to Dayna Ashley Charette, DOB: 11/21/86, including but not limited to pharmacy records, physician’s orders, clinical records, intake sheets, nurse’s notes, doctor’s notes, bills, lab reports, x-rays, test results, referrals to any other care provider or to any state or private agency of any kind. The term documents includes pictures, documents or graphics maintained electronically, in writing or otherwise.”
      The hospital initially also resisted compliance with a second subpoena seeking records relating to the hospital’s treatment of the decedent but agreed subsequently to provide those records after it had received the necessary authorization from the claimant in the Charette lawsuit.

       See footnote 2 of this opinion.

       In the trial court, the hospital also relied on General Statutes § 19a-17b, which limits the admissibility of the proceedings of a medical committee conducting a peer review in any civil action against a health care provider. That claim has not been pursued in this appeal. by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. ...”

       “[C]hapter 53 of the General Statutes, §§ 4-141 through 4-165, titled Claims Against the State, describes the responsibilities and powers of the claims commissioner. . . . [Chapter 53] expressly bars [actions] upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions.” (Citation omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 401, 968 A.2d 416 (2009).

       General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . . (j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected

       See footnote 1 of this opinion.

       General Statutes § 4-164a provides: “The Claims Commissioner is exempt from the provisions of sections 4-176e to 4-183, inclusive.”

       See footnote 10 of this opinion.

       The hospital also objects to the subpoenas as being excessively burdensome. It has not, however, documented, or estimated, the cost of compliance.

       For the more circumscribed process involved in an administrative appeal, Practice Book § 13-2 provides in relevant part: “[W]here the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information ... or documents material to the subject matter involved in the pending action, which are not privileged .... Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. ...” either in the court’s memorandum of decision or in the hospital’s motion for reargument.

       The hospital further maintains that the subpoena issued by the claims commissioner was fatally defective because the commissioner failed to comply with § 4-151 (e) by failing expressly to certify to the attorney general that the subpoenaed documents are “relevant [and] unprivileged.” We need not address the merits of this contention because it was not addressed

       In its reply brief, the hospital also argues that the regulations promulgated by the claims commissioner do not authorize the issuance of prehearing subpoenas. We need not consider the merits of this claim, which the court did not address. State v. Beliveau, 52 Conn. App. 475, 479, 727 A.2d 737, cert., denied, 249 Conn. 920, 733 A.2d 235 (1999).

       This provision is now codified in article eleven of the constitution of Connecticut.