author: Peters, C. J.

text:
    State of Connecticut v. Lawrence Townsend
    (13386)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued March 28
    decision released May 16, 1989

      William F. Gallagher, special public defender, with whom, on the brief, was Robert P. Borquez, special public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the trial court erred in allowing self-representation by a defendant who adamantly sought to exercise this constitutional right. A jury found the defendant, Lawrence Townsend, guilty of murder in violation of General Statutes § 53a-54a. He appeals to this court from the judgment thereafter rendered by the trial court sentencing him to life imprisonment. We find no error.

The parties do not dispute the relevant facts. On the morning of February 18,1986, the defendant entered the Gary Crooks Center in Bridgeport carrying a rifle under his coat and looking for the victim, Joseph Kelly. The defendant found and shot the victim, who died as a result of his gunshot wounds.

The evidence at trial also included the defendant’s oral statement made upon his arrest. In his statement he admitted shooting the victim, explaining that he had done so because the victim had insulted the defendant’s wife. The defendant stated that he was a Muslim, and Muslim law permitted him to kill any person who insulted his wife.

Before trial, the defendant informed the trial court, Reilly, J., that he intended to represent himself at trial. The court advised him of his right to self-representation or to representation by counsel, and told him it would appoint a public defender if the defendant desired. The defendant repeatedly declined counsel. The trial court warned him of the disadvantages of self-representation and canvassed him as to his education and prior experience with the legal system. After this colloquy the court agreed to allow the defendant to exercise his constitutional right to represent himself, but, over the objections of both the defendant and the public defender’s office, appointed the public defender’s office as standby counsel in the event the defendant should want to consult with an attorney during trial. Subsequently, a special public defender was appointed to represent the defendant.

The defendant also made two motions for a change of venue. The trial court, Curran, J., denied the first motion because the defendant had presented no evidence warranting such a change. The defendant renewed his motion before the trial court, McKeever, J., which, upon completion of the jury voir dire, denied the motion, finding “no actual bias” in any of the selected jurors or alternates.

After the state had put on its case over the course of two days, the defendant presented no evidence or witnesses on his behalf. The defendant had cross-examined a witness for the state concerning the defendant’s own mental state just before the shooting. In his summation the defendant briefly stated that he “did not calculate any of these events” and that “what you heard and the witness says is what transpired.”

The trial court instructed the jury on murder and on first and second degree manslaughter. The jury found the defendant guilty of murder and the trial court sentenced him to life imprisonment. On appeal the defendant claims that the trial court erred in allowing him to represent himself and in denying his motions for a change of venue.

I

The defendant’s claim that the trial court erred in allowing him to represent himself at trial comes to us in two versions. First, he claims that the trial court did not properly determine his competency “knowingly and intelligently” to waive his right to representation by counsel. Second, he claims that the trial court failed to comply with Practice Book § 961. We disagree with both claims.

Neither party disputes that a defendant has an inherent right, under our federal and state constitutions, to represent himself at trial should he choose to do so. McKaskle v. Wiggins, 465 U.S. 168,173-74,104 S. Ct. 944, 79 L. Ed. 2d 122, reh. denied, 465 U.S. 1112,104 S. Ct. 1620,80 L. Ed. 2d 148 (1984); Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Williams, 203 Conn. 159,167, 523 A. 2d 1284 (1987); State v. Carter, 200 Conn. 607, 611, 513 A. 2d 47 (1986); State v. Gethers, 197 Conn. 369, 376, 497 A. 2d 408 (1985) (Gethers II); State v. Gethers, 193 Conn. 526, 532-33, 480 A.2d 435 (1984) (Gethers I). In electing to defend himself, however, a defendant waives his right to representation by counsel, another fundamental constitutional right recognized by our federal and state constitutions, and waives all of the benefits that traditionally attend that right, about which the United States Supreme Court has held “that the help of a lawyer is essential to assure the defendant a fair trial.” Faretta v. California, supra, 832-33; see also Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Gathers II, supra. Thus, to accommodate this inherent tension the court has held that “in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Faretta v. California, supra, 835; Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 92 L. Ed. 309 (1984); see Johnson v. Zerbst, supra, 464-65.

Practice Book § 961 “was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself . . . . ” GethersI, supra, 532. Section 961 requires the judicial authority, before allowing a defendant to represent himself, to make a thorough inquiry to satisfy itself that the defendant: (1) has been advised of his right to assistance of counsel; (2) possesses sufficient intelligence and capacity to appreciate the consequences of his choice; (3) comprehends the nature of the charges, proceedings, punishment and other facts necessary to a broad understanding of the case; and (4) is aware of the dangers and disadvantages of self-representation. The defendant contends that the trial court did not sufficiently canvass him to determine that he possessed sufficient intelligence to appreciate the consequences of self-representation and also did not determine that he comprehended the nature of the charges and proceedings. In short, he argues that the court should have held a competency hearing to determine his competence to represent himself. We conclude that the trial court sufficiently canvassed the defendant.

“When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins.” Gethers I, supra, 534. Put another way, a defendant properly exercises his right to self-representation by “knowingly and intelligently” waiving his right to representation by counsel. Because this is so, Practice Book § 961 “cannot be construed to require anything more for an effective waiver of counsel than is constitutionally mandated, because such a waiver triggers the constitutional right of an accused to represent himself.” Id. Thus, the defendant’s dual arguments as to this claim devolve into a single inquiry: did the defendant “knowingly and intelligently” waive his right to representation by counsel and thus properly exercise his right to self-representation?

“ ‘[WJhether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ ” Gethers I, supra, 534, quoting Johnson v. Zerbst, supra, 465. The caselaw and commentary indicate, as does Practice Book § 961, that in order to find that a defendant has “knowingly and intelligently” waived his right to counsel, and thus has elected to exercise his right to self-representation, a trial court should inform the defendant of his right to counsel and that the dangers and disadvantages of self-representation make it most often advisable to have counsel. Further, the court should ascertain, through an appropriate inquiry, that the defendant possesses the intelligence and capacity to make the choice and to appreciate the consequences of his decision to represent himself. Faretta v. California, supra, 835-36; United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964); Gethers I, supra, 534-36; 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5 (c), pp. 44-47. Some of the factors bearing on the defendant’s capacity include age, education, mental health, prior experience with criminal trials and consultation with counsel prior to proceeding pro se, although none of these inquiries is a constitutional necessity. 2 W. LaFave & J. Israel, supra, p. 46. However, “a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation . . . . ” Faretta v. California, supra, 835. Rather a record that “ ‘affirmatively shows that [he] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will’ ” sufficiently supports a waiver. Id.; Gethers I, supra, 536.

In this case we conclude that the record amply supports the trial court’s determination that the defendant “knowingly and intelligently” waived his right to counsel. See Gethers II, supra, 381. In response to the trial court’s inquiry, the defendant stated emphatically and unequivocally that he wanted to waive his right to counsel. The court informed him that he had a constitutional right to counsel and that the court would appoint counsel for him should he so desire. The defendant declared that he did not want the public defender’s office to represent him, nor did he want a special public defender. He stated that he believed that the public defender’s office “sell[s] people out” and did not think it would protect his rights. He also made it clear that he objected to having standby counsel, appointed by the trial court, communicate with the prosecution or in any way interfere with the presentation of his case.

The trial court, through a colloquy with the defendant, discerned that he had attended school through the twelfth grade and had previously had four jury trials. It found that at one of these trials he had represented himself and at another had served as co-counsel. The trial court explained, and the defendant stated that he understood, that the murder charge he faced was much more serious than any charge he had previously faced and that a twenty-five year minimum and a sixty year maximum sentence awaited him if convicted. The trial court further explained that to assist with filing motions and to advise him on evidentiary rulings, it thought “it would be a darn good idea if you could have an attorney that you can turn to.” The court further indicated that the case would be complex and take a good deal of time.

At the pretrial conference, the court again advised the defendant of his rights to counsel and against self-incrimination, and discussed with him the maximum possible sentence. The court also counseled the defendant that he was at a “distinct disadvantage in trying the case [himself], as to the rules of evidence and other procedural matters at time of trial,” and that it was in his “best interest to have a competent member of the bar to be able to assist [him] in any matters that [he] might want before the Court.”

The teaching of Faretta is that a court may not force counsel upon a defendant because “where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly.” Faretta v. California, supra, 834. Because “[t]he right to defend is given directly to the accused”; id., 819-20; “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction.” Id., 821. Thus, to “force a lawyer on a defendant can only lead him to believe that the law contrives against him.” Id., 834.

It is abundantly clear in this case that in denying the defendant the right to represent himself, the trial court would have been forcing counsel upon an unwilling defendant. By appointing standby counsel and encouraging, but not forcing, the defendant to use him, the trial court scrupulously honored the defendant’s right to self-representation, while it also protected his right to counsel and the state’s interest in adequate representation for its citizens. Cf. McKaskle v. Wiggins, supra, 176; Faretta v. California, supra, 834 n.46; comment, “Mandatory Advisory Counsel for Pro Se Defendants: Maintaining Fairness in the Criminal Trial,” 72 Cal. L. Rev. 697 (1984). Thus, the trial court did not err in allowing the defendant to proceed to trial pro se.

II

The defendant also claims that the trial court erred in denying his motions for a change of venue. He argues that the court should have found actual and inherent juror prejudice because five jurors who eventually sat on the panel “had heard about the matter prior to voir dire,’’and because of the many articles written about him and his case in the Bridgeport newspapers. The defendant introduced into evidence photocopies of forty articles published in the Bridgeport Post and Bridgeport Telegram detailing the circumstances of the case. Some of the articles alluded to his prior membership in the Black Panthers during the early 1970s, his prior criminal record and reports of other alleged misconduct on his part. Some articles also reported a pretrial conference which because of “security restrictions” the trial court held in open court rather than in chambers. At the conference the defendant, proceeding pro se, had rejected the state’s offer of a fifty year sentence in exchange for a plea of guilty to murder. The defendant did offer to plead guilty in exchange for a five year sentence, to which the trial court responded, “[l]ots of luck.” The court found the parties too far apart for useful negotiation and set the matter down for trial. Later, it refused to transfer the case to another venue.

In requesting a change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial. The trial court exercises its discretion in deciding whether to grant such a change of venue. State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987); State v. Piskorski, 177 Conn. 677, 685, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The trial court’s discretion is governed by Practice Book § 835 (1), which provides: “Upon motion of the prosecuting authority or the defendant, or upon his own motion, the judicial authority may order that any pending criminal matter be transferred to any other court location: (1) If the judicial authority is satisfied that a fair and impartial trial cannot be had where the case is pending . . . .”

For an appellate court to reverse a conviction on the grounds of prejudicial pretrial publicity, a defendant generally must prove actual juror prejudice. State v. Pelletier, 209 Conn. 564, 569, 552 A.2d 805 (1989); State v. Piskorski, supra, 686; State v. Hart, 169 Conn. 428, 432-33, 363 A.2d 80 (1975). A defendant need not, however, show actual prejudice “ ‘in extreme circumstances where there has been inherently prejudicial'publicity such as to make the possibility of prejudice highly likely or almost unavoidable. See Estes v. Texas, 381 U.S. 532, 542-43, 85 S. Ct. 1628,14 L. Ed. 2d 543, [reh. denied, 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118] (1966).’ Calley v. Callaway, 519 F.2d 184, 204 (5th Cir.), cert. denied, [sub nom. Calley v. Hoffman,] 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 [1976].” State v. Piskorski, supra, 686.

With regard to actual prejudice, jurors need not be totally ignorant of the facts and issues involved in a criminal trial and the fact that some jurors have some prior knowledge about the case does not itself constitute identifiable jury prejudice. Dobbert v. Florida, 432 U.S. 282, 303, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); State v. Pelletier, supra, 571; State v. Marra, 195 Conn. 421, 433, 489 A.2d 350 (1985). Rather, we examine the record to determine whether the method of jury selection or the characteristics of the jurors selected deprived the defendant of his constitutional right to a fair trial. Dobbert v. Florida, supra, 303; State v. Miller, supra, 479; State v. Marra, supra, 430-31; see also Patton v. Yount, 467 U.S. 1025, 1035,104 S. Ct. 2885, 81 L. Ed. 2d 814 (1984). A review of the record demonstrates that such a deprivation did not occur in this case.

Only four of the five jurors the defendant now challenges had read accounts of the case in the newspaper around the time of the incident and the defendant’s subsequent arrest. None had read any newspaper accounts during the weeks immediately preceding the voir dire, nor had any seen reports in any other medium. All five represented that, despite anything they had read, they would be able to evaluate the evidence impartially and to follow the court’s instructions faithfully. Finally, the defendant did not challenge any of the five for cause, and, when asked by the trial court, accepted each as a juror. Thus, we conclude that the trial court did not err in finding no actual prejudice in the jury panel.

As to inherent prejudice, the defendant argues that the pretrial publicity in the Bridgeport area newspapers made “ ‘the possibility of prejudice highly likely or almost unavoidable.’ ” State v. Piskorski, supra, 686. “ ‘There is no mathematical formula to determine when the burden of proof should be on the accused to show actual bias or when the facts reveal inherent prejudices.’ ” State v. Piskorski, supra, 686, quoting J. Stanga, “Judicial Protection of the Criminal Defendant Against Adverse Press Coverage,” 13 Wm. & Mary L. Rev. 1, 68 (1971). The publicity attending this case, however, did not approach the “circus atmosphere” that has caused the United States Supreme Court to “presume prejudice” and overturn convictions because of pretrial publicity. See also Estes v. Texas, supra, 550-51; Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507,16 L. Ed. 2d 600 (1966); Rideau v. Louisiana, 373 U.S. 723, 724-25, 83 S. Ct. 1417,10 L. Ed. 2d 663 (1963). The defendant’s claim on appeal focuses on newspaper articles, rather than on television or radio coverage, as having caused pretrial prejudice. Cf. Rideau v. Louisiana, supra, 726 (“[F]or anyone who has ever watched television the conclusion cannot be avoided that this spectacle ... in a very real sense was Rideau’s trial”). The articles he offered into evidence were “ ‘straight news stories rather than invidious articles [that] would tend to arouse ill will and vindictiveness.’ ” State v. Pelletier, supra, 570, quoting Beck v. Washington, 369 U.S. 541, 556, 82 S. Ct. 955, 8 L. Ed. 2d 98, reh. denied, 370 U.S. 965, 82 S. Ct. 1575, 8 L. Ed. 2d 834 (1962). “Moreover, there was a significant delay between the majority of the publicity and the time of trial, which lessens the likelihood of jury bias.” State v. Miller, supra, 478; see also Patton v. Yount, supra, 1034; Murphy v. Florida, supra, 802.

The defendant claims that two articles, one in the Bridgeport Telegram and another in the Bridgeport Post, most particularly prejudiced him. In those articles the newspapers reported that the defendant had agreed at the pretrial conference to plead guilty to the murder charge in exchange for a five year sentence. He now claims that his offer of a guilty plea could be construed as an admission of guilt, and therefore the publication of the possibility of such a plea should have prompted the trial court to presume prejudice and grant the motion for a change of venue. We disagree.

The defendant’s argument might have been more persuasive had he disputed the events leading up to the victim’s death. His defense appears to have been that he did not “calculate any of these events,” and therefore did. not have the requisite intent for murder. For this reason the defendant filed a request to charge the jury on lesser offenses. Publicity about plea negotiations, in these circumstances, is not as inherently prejudicial as in a case in which a defendant denies any involvement in a crime, but nonetheless has considered pleading guilty in exchange for a reduced sentence. While the defendant apparently entertained some hope that the jury would find him totally innocent, it would not have been unreasonable, given the facts of this case and his own theory of culpability for manslaughter, for the defendant to have pleaded guilty in return for a five year sentence. Information about such plea negotiations therefore could not have led to inherent juror prejudice.

Furthermore, publicity regarding a defendant’s confession is potentially more prejudicial than the possibility of a guilty plea, especially given the circumstances of the plea in this case. Pretrial publicity surrounding a defendant’s confession has not, however, been held necessarily to create inherent prejudice requiring a change of venue. Cf. Patton v. Yount, supra. We therefore conclude that the pretrial publicity in this case was not so inherently prejudicial as to abridge the defendant’s right to a fair and impartial trial, and thus that the trial court did not abuse its discretion in denying the defendant a change of venue.

There is no error.

In this opinion the other justices concurred.

       The sixth amendment to the. United States constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the United States Supreme Court held that “the right to self-representation—to make one’s own defense personally—is thus necessarily implied by the structure of the Amendment.” Id., 819. Article first, § 8, of the Connecticut constitution is even more explicit: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” (Emphasis added.) Thus, we have held that our state constitution also guarantees a defendant the right to represent himself. State v. Gethers, 193 Conn. 526, 532-33, 480 A.2d 435 (1984); see also Faretta v. California, supra, 813 n.10.

       The United States Court of Appeals for the Second Circuit has stated: “The right to counsel and the right to defend pro se in criminal cases form a single, inseparable bundle of rights, two fases [sic] of the same coin. Thus we find the choice between the two sometimes discussed in terms of waiver of the right to counsel, and sometimes in terms of an election to have a lawyer or to defend pro se.” United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964).

       “[Practice Book] Sec. 961.—waiver
      “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a through inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the court suggested three grounds for denying a defendant his right to self-representation: (1) he makes the request in untimely fashion such that granting it would disrupt the proceedings; id., 807; (2) the defendant engages in serious obstructionist misconduct; id., 834 n.46; and (3) the defendant has not “knowingly and intelligently” waived his right to counsel. Id., 835; see 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5 (d), pp. 47-49.

       The defendant now points out that he failed, to his detriment, to challenge some jurors for cause, cross-examine many of the state’s witnesses or call witnesses of his own. He also claims that he prejudiced himself by admitting to the jury in his closing statement that “what you heard and the witness says is what transpired.” While we do not necessarily agree that the defendant’s actions prejudiced him or were inconsistent with his defense at trial, we note that such subsequent actions were not within the trial court’s cognizance at the time it allowed the defendant to proceed pro se, and therefore did not affect its finding that he had “knowingly and intelligently” waived his right to counsel.

       The other challenged juror did not recall ever having read anything about the case. Further, the defendant does not claim specifically that any of the five jurors had read any of the newspaper articles he submitted as exhibits.

       Only two of the forty articles the defendant submitted were published less than three months before the beginning of the jury voir dire. At least twelve of the articles were published between February 19,1986, and September 18,1986, the period just after the incident and during which time the authorities could not locate the defendant.
      Furthermore, the defendant himself contributed to some of the pretrial publicity. Reporters based at least three of the submitted articles on interviews the defendant granted while in pretrial detention. In the articles the defendant recounted Ms sixteen months as a fugitive and stated that he intended to call on former associates in the Black Panthers to aid him in this case. See State v. Rodriguez, 210 Conn. 315, 328 n.10, 554 A.2d 1080 (1989).

       The two articles ran on August 7,1987, and their headlines read: “Ex-Panther offers 5 years for plea of guilty” and “Price for guilty plea: Townsend 5 year plan.”

       As one predicate to his claim of prejudicial pretrial publicity, the defendant now maintains that the trial court erred in relying on “security restrictions” to hold the pretrial conference in open court with the public and press attending. Although the record does not disclose what “security restrictions” prompted the court to hold the pretrial conference in open court rather than in chambers, the defendant never objected to such a procedure until this appeal. Neither does the defendant seek review under the exceptional circumstances stated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Because “[t]he right of self-representation is not . . . a license not to comply with relevant rules of procedural and substantive law”; Faretta v. California, 422 U.S. 806, 835 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); we do not review this claim.

       Clearly this case does not rival Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963), upon which the defendant relies, in terms of inherent prejudice. In Rideau a television station broadcast a taped interview, made by police during their interrogation of the defendant. In the interview the defendant confessed in detail to his involvement in the alleged kidnapping and murder. Over 53,000 people in a parish of approximately 150,000 viewed the confession on television, including at least three members of the jury. Id., 724-25. The publicity given the defendant’s plea bargaining session in the instant case did not approach the “spectacle” in Rideau that caused the United States Supreme Court to declare that “[a]ny subsequent court proceedings . . . could be but a hollow formality.” Id., 726.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bridgeport Restoration Company, Inc. v. A. Petrucci Construction Company
    (13616)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued March 29
    decision released May 23, 1989

      Grant P. Haskell, for the appellant (defendant).

      Max Frauwirth, for the appellee (plaintiff).
   Per Curiam.

The plaintiff, Bridgeport Restoration Company, Inc., brought suit against the defendant, A. Petrucci Construction Company, for breach of contract and unfair or deceptive acts or practices in violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). The defendant appeals from a judgment rendered for the plaintiff after a court trial. We find no error.

The trial court found as follows: the plaintiff was a roofing and siding contractor and was qualified as a disadvantaged business enterprise (DBE), also known as a minority business enterprise. The defendant was a contractor engaged in constructing commercial and industrial buildings. The Greater Bridgeport Transit District (transit district) put out to bid a contract to build a garage to be funded in part by the federal and state governments. In accordance with the requirements for government funding for the garage, the bid notice required at least 10 percent DBE participation, for which the plaintiff was qualified. The defendant was awarded the contract by the transit district, having attached to the contract as well as to the bid a “Schedule of DBE and WBE [women’s business enterprise] Participation” that listed the plaintiff as a DBE company that would perform the roofing work, sheet metal work and miscellaneous other work for $400,000, which was 4.9 percent of the total contract.

The court specifically found that the plaintiff’s president and an authorized agent of the defendant agreed on a bid price of $400,000 in telephone negotiations before the defendant submitted its bid on the contract to the transit district. The court also found that at that point the defendant’s project manager told the president of the plaintiff company that if the defendant were awarded the contract the plaintiff would get the subcontract. After the defendant was awarded the contract it sought further adjustments in the subcontract that were refused by the plaintiff. Thereafter, the defendant awarded the subcontract to a different qualified bidder.

The court found for the plaintiff on both counts and awarded the plaintiff $60,000 damages for loss of the contract and $7500 attorney’s fees under CUTPA. On appeal the defendant briefed three issues as follows: (1) whether there was a sufficient evidentiary basis to support the trial court’s finding that the parties had formed the conditional contract alleged in the complaint; (2) whether there was a sufficient evidentiary basis to support the trial court’s finding that the plaintiff had suffered lost profits of $60,000; and (3) whether there was any legal and evidentiary basis for the trial court’s award of $7500 for legal fees under CUTPA.

The defendant’s appeal is clearly a futile attempt to retry the facts of the case. Since the defendant did not raise at the trial the claims he makes on appeal we are not bound to consider them. A further roadblock to our consideration of the merits of the appeal is the failure of the defendant to seek articulation of the evidentiary basis of the court’s decision in the trial court. See Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982).

In the interests of justice we have, however, reviewed the transcript to determine if there was sufficient evidence, viewed in the light most favorable to sustaining the judgment, to support the trial court’s findings. We conclude that the factual findings are not clearly erroneous in view of the evidence and pleadings in the whole record and that the decision is not otherwise erroneous in law. Practice Book § 4061.

There is no error.


text:
    Statewide Grievance Committee v. Zbigniew Rozbicki
    (13557)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued March 7
    decision released May 23, 1989

      Seymour N. Weinstein, for the appellant-appellee (plaintiff).

      Francis J. MacGregor, for the appellee-appellant (defendant).
   Peters, C. J.

This appeal concerns the relationship between the judicial department’s supervisory responsibility for the conduct of attorneys and the provisions of General Statutes (Rev. to 1987) § 51-90g (c), which imposed time constraints upon the adjudicatory processes of the Statewide Grievance Committee (grievance committee) with respect to complaints of attorney misconduct. The grievance committee brought a presentment against the defendant Zbigniew Rozbicki charging him with misconduct as an attorney outside the presence of the court. The trial court, Moraghan, J., granted the defendant’s motion to dismiss the presentment for lack of subject matter jurisdiction. The grievance committee appealed to the Appellate Court and the defendant cross appealed. We transferred the appeal to ourselves pursuant to Practice Book § 4023. We find error.

The grievance proceedings against the defendant began with a complaint filed on January 15, 1987, by the complainant, Helen Huybrechts. On February 10, 1987, the grievance committee filed its own complaint charging the defendant with misconduct as an attorney outside the presence of the court. The local grievance panel, the Litchfield Grievance Panel (panel), considered the complaints and determined that probable cause existed that the defendant had violated the Code of Professional Responsibility. The panel filed its determination of probable cause with the grievance committee on May 1, 1987. The grievance committee appointed a subcommittee to review the complaint, as permitted by General Statutes § 51-90g (a). Although § 51-90g (c) required the subcommittee to conclude any hearings and render its proposed decision on the complaint within ninety days of the date that the panel filed its determination of probable cause, no action was taken within ninety days. On August 5 and 6, 1987, the reviewing subcommittee held a hearing. The grievance committee, on August 20, 1987, granted the reviewing subcommittee a sixty day extension to render its proposed decision. The defendant requested an extension to file a post-hearing brief and filed the brief on August 27, 1987. On October 13, 1987, the reviewing subcommittee rendered its proposed decision, dated September 28, 1987. Then, on November 2, 1987, the grievance committee granted the reviewing subcommittee an additional ninety day extension.

On November 19, 1987, the grievance committee determined that the defendant had violated the Code of Professional Responsibility and directed that a presentment be filed against him in the Superior Court. The grievance committee accordingly filed a presentment, dated April 28,1988, in the Superior Court, alleging that the defendant was guilty of “misconduct not occurring in the actual presence of the court, involv-ing his character, integrity and professional standing and conduct” in that he had violated sections DR 1-102 (A) (4), DR 1-102 (A) (5), DR 1-102 (A) (6), DR 5-104 and DR 7-101 (A) (3)* ** of the Code of Professional Responsibility. The presentment charged him with “receiving real property in satisfaction of a legal fee from a client not represented by independent counsel .. . failing to expeditiously attempt to reinstate the Complainant’s mortgage in order to negotiate a release of that portion of the property the Complainant had conveyed to [him] . . . [and] determining all of the details of his purchase of the Complainant’s home and arranging for her to be represented by counsel to avoid the appearance of conflict of interest . . . . ”

The defendant filed motions to dismiss the presentment for lack of subject matter jurisdiction, to strike counts one and three of the presentment and to dismiss count two. The trial court granted the motion to dismiss the presentment and denied the other motions.

In this appeal, the grievance committee contends that the trial court erred in dismissing the presentment. The defendant, on cross appeal, claims error in the trial court’s failure to grant his motions to dismiss and to strike portions of the presentment.

I

In its appeal, the grievance committee asserts that the trial court should not have dismissed the presentment. It contends that the trial court erred in concluding that the grievance committee had failed to comply with § 51-90g (c) and that such a failure deprived the trial court of subject matter jurisdiction.

It is important, at the outset, to emphasize that the rules regulating attorney grievance procedures exist within the broader framework of the relationship between attorneys and the judiciary. “ ‘The practice of law is ... a profession the main purpose of which is to aid in the doing of justice . . . .’” In re Application of Griffiths, 162 Conn. 249, 254-55, 294 A.2d 281 (1972), rev’d and remanded, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973), quoting Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 414, 165 A. 211 (1933). An attorney “as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him.” In re Peck, 88 Conn. 447, 450, 91 A. 274 (1914). This “unique position as officers and commissioners of the court . . . casts attorneys in a special relationship with the judiciary and subjects them to its discipline.” (Citations omitted.) Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 524, 461 A.2d 938 (1983). Because of this special relationship, “[w]e have a continuing duty ‘to make it entirely clear that the standards of conduct ... of the members of the profession of the law in Connecticut have not changed, and that those standards will be applied under our rules of law, in the exercise of a reasonable discretion . . . . ’ Grievance Committee v. Broder, [112 Conn. 263, 278, 152 A. 292 (1930)].” In re Application of Pagano, 207 Conn. 336, 344-45, 541 A.2d 104 (1988). This court will neither neglect nor attempt to avoid that responsibility.

Our review of the language of § 51-90g (c) is, therefore, informed by the judiciary’s responsibility for governing attorney conduct. “Disciplinary proceedings are for the purpose of preserving the courts ‘from the official ministration of persons unfit to practise in them: Ex Parte Wall, 107 U.S. 265, 288, 2 S. Ct. 569, 27 L. Ed. 552 (1883); Heiberger v. Clark, [148 Conn. 177, 183, 169 A.2d 652 (1961)]; Grievance Committee v. Broder, [supra, 265]; In re Peck, [supra, 452], . . .” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 524. “ ‘ “The proceeding to disbar [or suspend] an attorney is neither a civil action nor a criminal proceeding, but is a proceeding sui generis, the object of which is not the punishment of the offender, but the protection of the court.” In re Bowman, 7 Mo. App. 569 [1879].’ ” In re Application of Pagano, supra, 339; In re Peck, supra. Once the complaint is made, “the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require.” In re Peck, supra. “[Tjhe power of the courts is left unfettered to act as situations, as they may arise, may seem to require, for efficient discipline of misconduct and the purging of the bar from the taint of unfit membership. Such statutes as ours are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct.” In re Peck, supra, 457. In proceedings such as those at issue, therefore, the attorney’s “relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” Grievance Committee v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941); see also In re Durant, 80 Conn. 140,150, 67 A. 497 (1907). Consequently, ministerial delays do not ordinarily warrant judicial abstention from dealing with the important issues raised by allegations of attorney misconduct.

The regulation of attorney conduct is, therefore, within the court’s inherent authority. Section 51-90g and the parallel Practice Book rules authorized the grievance committee to act as an arm of the court in fulfilling this responsibility. Requiring the grievance committee to dismiss a complaint whenever the review subcommittee has failed to act in a timely manner, with no discretion to pursue another course of action if appropriate, would frustrate the purposes of attorney grievance procedures and run counter to the special supervisory role of the courts in regulating attorney conduct. We will, therefore, require such action only if specifically so directed by § 51-90g (c). In examining this statute, we note three questions. Are its time requirements mandatory? Were the statutory mandates violated in this case? What is the effect of such a violation on the jurisdiction of the Superior Court?

A

Our examination of General Statutes (Rev. to 1987) § 51-90g (c) convinces us that its provisions are mandatory. Section 51-90g (c) plainly stated that “[t]he subcommittee shall . . . render its proposed decision not later than ninety days from the date the panel’s determination of probable cause . . . was filed with the state-wide grievance committee,” that the grievance committee may grant the subcommittee a thirty day extension, and that if the subcommittee does not complete its action within the time allowed, the grievance committee “shall . . . inquire into the delay and determine the appropriate course of action.” (Emphasis added.)

Our interpretation of the language of § 51-90g (c) is guided by our tenets of statutory construction, which provide that “ ‘[wjhere the meaning of a statute . . . is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.’ ” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979); 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 46.04. Where, as here, neither the context nor the legislative history indicates a contrary intent, “[t]he use of the word ‘shall’ by the legislature connotes that the performance of the statutory requirements is mandatory rather than permissive.” Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); see Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978); 1A J. Sutherland, supra, § 25.04.

B

The grievance committee contends that the trial court erred in concluding that the committee had failed to comply with the time constraints contained in § 51-90g (c). It argues that, despite any delay, it did comply with the requirements of § 51-90g (c) because it “determine[d] the appropriate course of action” and acted upon that determination by granting the subcommittee an extension of time in which to render its proposed decision. We are unpersuaded.

The mandatory requirements of § 51-90g (c), although they permitted the subcommittee to file a motion for an extension of time, did not permit an extension “to exceed thirty days.” When construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather “ ‘read the statute as a whole and so as to reconcile all parts as far as possible.’ ” Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988); Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983). Therefore, even when an extension has been granted, the subcommittee must render its proposed decision within one hundred and twenty days. In granting the grievance committee discretion to pursue the appropriate course of action when a delay occurs, the statute did not authorize nullification of its mandatory time constraints.

There is no dispute that the subcommittee failed to render its proposed decision within the mandatory time constraints. The grievance committee does not contest the trial court’s finding that the subcommittee’s proposed decision was rendered five months and thirteen days after the local grievance panel’s determination of probable cause was filed. It is clear, therefore, that the subcommittee failed to render its proposed decision within ninety days, or even within one hundred and twenty days. Further, the grievance committee admitted at trial that the ninety day period provided by § 51-90g (c) had expired before it granted any extensions. Accordingly, we agree with the trial court’s finding that the “subcommittee failed to comply with this statutory mandate.”

C

The grievance committee contends, nevertheless, that the trial court erred in concluding that the subcommittee’s failure to comply with the mandates of § 51-90g (c) deprived the trial court of subject matter jurisdiction. We agree with the grievance committee.

Both the broader context of the supervisory role of the judiciary in governing attorney conduct, as discussed above, and the language of § 51-90g (c) support the conclusion that the trial court’s jurisdiction was not affected by the delay. The operative language on which we focus is again the phrase of § 51-90g (c) requiring the grievance committee after subcommittee delay to “determine the appropriate course of action.” Our holding that this phrase does not authorize unlimited extensions of the statutory time limitations does not imply that, once these time limitations have expired, the grievance committee and the Superior Court are entirely powerless to act.

In interpreting § 51-90g (c), we must give effect to each of its provisions because “ ‘ “statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” ’ ” 8k Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988); State ex rel. Kennedy v. Frauwirth, 167 Conn. 165,168, 355 A.2d 39 (1974). “It must also be presumed that the General Assembly had a purpose for every sentence, clause or phrase in the statute.” State v. Springer, 149 Conn. 244, 248, 178 A.2d 525 (1962). We will not, therefore, construe § 51-90g (c) to require that if the subcommittee has failed to act within the prescribed time, and there is no showing of prejudice, the complaint must be dismissed. Such a construction would impermissibly render the final phrase in § 51-90g (c) a nullity. In implementing § 51-90g (c), the grievance committee has discretion to decide what remedy a particular delay warrants. Although the grievance committee may determine that the complaint should be dismissed or that a new subcommittee panel should adjudicate the grievance in a timely fashion, the grievance committee, absent prejudice, is free to act on the tardy subcommittee’s recommendation. Accordingly, we conclude in this case that the subcommittee’s failure to act within the prescribed time, although a violation of § 51-90g (c), does not mandate dismissal of the complaint.

Support for this interpretation is provided by the legislative history of Public Acts 1988, No. 88-152. This act, passed in 1988, without changing the statutory time constraints, amended § 51-90g (c) to provide that the failure of the subcommittee to complete its action on a complaint within the time provided in the section “shall not be cause for dismissal of the complaint.” (Emphasis added.) Its legislative history evidences no discussion of the added sentence. “[A] major change in legislative policy, we believe, would not have occurred without some sort of opposition or at least discussion in the legislature.” George P. Gustin Associates, Inc. v. Dubno, 203 Conn. 198, 208, 524 A.2d 603 (1987). The legislature’s silence, therefore, supports an inference that the legislators considered the additional sentence to be a clarification of § 51-90g (c) rather than a departure from the original meaning of the section. See id. A clarifying act “ ‘ “in effect construes and clarifies a prior statute [and, therefore,] must be accepted as the legislative declaration of the meaning of the original act.” ’ ” State v. Magnano, 204 Conn. 259, 278, 528 A.2d 760 (1987); State v. Blasko, 202 Conn. 541, 556-57, 522 A.2d 753 (1987); Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977).

Further, this amendment occurred after a prior complaint against the defendant had been dismissed for a similar committee failure to comply with the time constraints of § 51-90g (c). We have stated that “ ‘[if] the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act . . . .’ ” State v. Blasko, supra, 558, quoting 1A J. Sutherland, supra, § 22.31.

We therefore conclude that the delay by the subcommittee violated the provisions of § 51-90g (c). We also conclude, however, that, despite the existence of such a violation, the statute does not require that the complaint be dismissed.

On cross appeal, the defendant contends that the trial court erred in failing to grant his motion to strike counts one and three of the presentment and his motion to dismiss count two. We decline to review those rulings, however, because we conclude that the trial court lacked jurisdiction to rule thereon.

At trial, as on appeal, the defendant contended that the court did not have jurisdiction to hear the case because of the grievance committee’s alleged failure to comply with the time restraints of § 51-90g (c). “ ‘ “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it ‘can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.’ Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 717 [1838]; Denton v. Danbury, 48 Conn. 368, 372 [1880].” ’ ” State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); see Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982); Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448-49, 352 A.2d 301 (1974); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). Therefore, the trial court was required to address the defendant’s jurisdictional chailenge before ruling on his other motions. “Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the plaintiffs’ complaint, any further discussion of the merits is pure dicta. Lacking jurisdiction, neither the trial court nor this court should deliver an advisory opinion on matters entirely beyond our power to adjudicate.” Doe v. Heintz, 204 Conn. 17, 38, 526 A.2d 1318 (1987) (Peters, C.J., concurring). When the trial court concluded, even erroneously, that subject matter jurisdiction was missing, the remainder of its rulings were merely advisory and we therefore decline to review them at this juncture.

There is error on the appeal, the cross appeal is dismissed, the judgment is vacated and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 51-90g (c) provided; “The subcommittee shall conclude any hearing or hearings and shall render its proposed decision not later than ninety days from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The subcommittee may file a motion for extension of time not to exceed thirty days with the state-wide grievance committee which shall grant the motion only for good cause shown. If the subcommittee does not complete its action on a complaint within the period of time provided in this section, the state-wide grievance committee shall, on motion of the complainant or the respondent or on its own motion, inquire into the delay and determine the appropriate course of action.”
      The time frame for the subcommittee’s action on the complaint is also governed by Practice Book § 27J (e), which provides: “Within ninety days of the date the grievance panel filed its determination of probable cause or no probable cause with the statewide grievance committee, the reviewing committee shall render its proposed decision and file it with the statewide grievance committee. . . . The reviewing committee may file a motion for extension of time not to exceed thirty days with the statewide grievance committee which shall grant the motion only upon a showing of good cause. If the reviewing committee does not complete its action on a complaint within the time provided in this section, the statewide committee shall, on motion of the complainant or the respondent or on its own motion, inquire into the delay and determine the appropriate course of action.”
      Because the language of § 27 J (e) is virtually identical to that of § 51-90g (c), we undertake no separate analysis of § 27J (e).

       General Statutes § 51-90g(a) provides: “review of panel’s determination BY SUBCOMMITTEE OR STATE-WIDE GRIEVANCE COMMITTEE, (a) The state-wide grievance committee may desigante at least three members of the committee, including at least one-third who are not attorneys, to serve as a reviewing subcommittee for each determination made by a panel on a complaint. The committee shall regularly rotate membership on reviewing subcommittees and assignments of complaints from the various judicial districts. The state-wide grievance committee or the subcommittee, if any, shall hold a hearing concerning the complaint if the panel determined that probable cause exists that the attorney is guilty of misconduct. If the grievance panel determined that probable cause does not exist that the attorney is guilty of misconduct, the committee or subcommittee shall review the determination of no probable cause, take evidence if it deems it appropriate and, if it determines that probable cause does exist that the attorney is guilty of misconduct, shall thereafter hold a hearing concerning the complaint. An attorney who maintains his office for the practice of law in the same judicial district as the respondent may not sit on the reviewing subcommittee for that case.”

       A witness on behalf of the defendant testified that the grievance committee granted this retroactive extension on its own motion because “the need for one was recognized by [the grievance committee.]” The record contains no further explanation of why an extension of time to render a proposed decision was granted after the proposed decision had already been rendered.

       Code of Professional Responsibility DR 1-102 (A) (4) provides: “(A) A lawyer shall not ... (4) Engage in conduct involving dishonesty, fraud, deceipt, or misrepresentation.”
      Code of Professional Responsibility DR 1-102 (A) (5) provides: “(A) A lawyer shall not . . . (5) Engage in conduct that is prejudicial to the administration of justice.”
      Code of Professional Responsibility DR 1-102 (A) (6) provides: “(A) A lawyer shall not . . . (6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
      Code of Professional Responsibility DR 5-104 provides: “Limiting Business Relations with a Client. (A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure. (B) Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.”
      Code of Professional Responsibility DR 7-101 (A) (3) provides: “(A) A lawyer shall not intentionally ... (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102 (B).”

       The grievance committee granted first a sixty day and then a ninety day extension. The only extension specifically authorized by General Statutes § 51-90g (c), however, is one thirty day extension.

       In related circumstances, constitutional and statutory rights to speedy trials have been vindicated by a consideration of a matrix of factors including, most importantly, prejudice rather than by invocation of a rule of automatic dismissal. See, e.g., Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Herring, 210 Conn. 78, 89-90, 554 A.2d 686 (1989). The defendant does not allege that the delay has prejudiced him in any manner beyond delaying the final decision. We reserve for another day therefore the resolution of grievance procedure delays that are so prejudicial that they implicate the due process rights of an attorney charged with professional misconduct. In grievance proceedings, a defendant is entitled to due process including “notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.” Grievance Committee v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941); see In re Application of Courtney, 162 Conn. 518, 523, 294 A.2d 569 (1972); In re Durant, 80 Conn. 140, 150, 67 A. 497 (1907).

       General Statutes (Rev. to 1989) § 51-90g (c) provides: “The subcommittee shall conclude any hearing or hearings and shall render its proposed decision not later than ninety days from the date the panel’s determination of probable cause or no probable cause was filed with the state-wide grievance committee. The subcommittee may file a motion for extension of time not to exceed thirty days with the state-wide grievance committee which shall grant the motion only for good cause shown. If the subcommittee does not complete its action on a complaint within the period of time provided in this section, the state-wide grievance committee shall, on motion of the complainant or the respondent or on its own motion, inquire into the delay and determine the appropriate course of action. The failure of the subcommittee to complete its action on a complaint within the period of time provided in this section shall not be cause for dismissal of the complaint.” (Emphasis added.)

       The trial court granted the motion to dismiss without prejudice. The dismissal is, however, a final judgment on the issue of whether the court had subject matter jurisdiction to hear the complaint.


author: Peters, C. J. Covello, J.,

text:
    Hartford Parkview Associates Limited Partnership et al. v. John G. Groppo, Commissioner of Revenue Services
    (13534)
    Peters, C. J., Glass, Covello, Hull and F. Hennessy, Js.

      Argued March 1
    decision released May 23, 1989

      John G. Haines, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, acting attorney general, and Joseph I. Lieberman, former attorney general, for the appellant-appellee (defendant).

      Bourke G. Spellacy, with whom were Karen P. Blado and, on the brief, Amy S. McCabe, for the appelleesappellants (plaintiffs).

      Charles H. Lenore and Robert W. McKay filed a brief for the Connecticut Bankers Association et al. as amici curiae.
   Peters, C. J.

This tax appeal concerns the applicability of the Connecticut Sales and Use Tax; General Statutes §§ 12-406 through 12-432a; to a hotel’s interstate purchase of reservation services and to its intrastate purchase of equipment, furniture and fixtures. The defendant, the commissioner of revenue services (commissioner), assessed the plaintiffs, Hartford Parkview Associates Limited Partnership and Park-view Associates Limited Partnership (the taxpayer), for additional use tax liability. Upon the taxpayer’s appeal to the trial court, pursuant to General Statutes § 12-422, the trial court sustained the action of the commissioner as to all but $7665.09 of the taxes assessed against the taxpayer. The commissioner has appealed the trial court’s holding that reservation service fees were not fees paid for “computer and data processing services” under General Statutes § 12-407 (2) (i) (A), and the taxpayer has cross appealed the court’s holding that it was liable for use tax on equipment, furniture and fixtures purchased from Connecticut vendors. We find no error.

I

The question of the taxpayer’s use tax liability for the purchase of reservation services arises out of the following stipulated facts. The taxpayer has operated the Parkview Hilton Hotel in Hartford since 1982. The hotel has regularly paid fees for access to the reservation service provided to it by Hilton Reservation Service (HRS) in Dallas, Texas. For customers and potential customers of Hilton Hotels throughout the world, HRS provides information about room availability and confirmation of reservations. The taxpayer uses its computer to inform HRS of room availability and rates, and to ascertain what space reservations HRS has confirmed. When a customer arrives at the taxpayer’s hotel, a local computer interface transfers the applicable HRS reservation to the hotel’s front office. HRS charges the hotel a fee for each reservation taken.

The commissioner assessed the taxpayer $7665.09 for use tax on its HRS fees. Reservation services are not expressly covered within the enumerated categories of services subject to the use tax. The commissioner maintained instead that the HRS fees constituted the purchase of “computer and data processing services,” subject to the use tax pursuant to § 12-426-27 (b) (1) of the Regulations of Connecticut State Agencies. The trial court, however, agreed with the taxpayer that “[t]he essence of HRS services is obtaining and informing the Taxpayer of reservations HRS has made for the Hotel” and that HRS services were therefore not taxable under the relevant statute or regulations governing the purchase of computer services. Accordingly, the trial court disallowed this tax assessment.

Before reviewing the merits of the commissioner’s appeal from the trial court’s ruling, we must restate the standards that govern the adjudication of this disputed tax assessment. The commissioner maintains that the trial court misconstrued the applicability of the use tax statute and regulations to the taxpayer’s payment of fees for HRS services. We review the trial court’s ruling from the premise that, when the issue is the imposition of a tax, rather than a claimed right to an exemption or a deduction, the governing authorities must be strictly construed against the commissioner and in favor of the taxpayer. Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 420-23, 521 A.2d 569 (1987).

The commissioner argues that HRS services constitute “computer services” within the terms of General Statutes § 12-407 (2) (i) (A) and § 12-426-27 (b) (1) of the Regulations of Connecticut State Agencies. Under the statute, the use tax applies to the rendering of “certain services for a consideration.” Among the services listed in the statute are “(A) Computer and data processing services, including but not limited to, time.” The regulation, in turn, defines “computer and data processing services” as “providing computer time, storing and filing of information, retrieving or providing access to information, designing, implementing or converting systems providing consulting services, and conducting feasibility studies.” Regs., Conn. State Agencies § 12-426-27 (b) (1). According to the commissioner, HRS services constitute “computer services” because HRS stores and files information about reservations on its computer, and because the taxpayer’s own computer can access that computerized information. Even if, as the trial court found, the computer is merely a tool that is incidental to the function of providing a reservations service, the commissioner maintains that HRS services are still taxable as “computer services.” In the commissioner’s view, the statute and the regulation impose use tax liability on any use of a computer, regardless of the way in which the computer is used.

This argument proves too much. As the trial court observed, the commissioner’s construction would subject to use tax liability any commercial transaction in which computers are used to communicate information. The trial court rejected so sweeping an interpretation, holding that “[t]he fact [that] a computer is used in connection with HRS services cannot alone be a basis for the tax. Otherwise, the reach of the statute is unbounded and covers almost all intercorporate computer interfacing.” Indeed, such a construction would equate the statute’s imposition of tax liability for computer services with the imposition of liability for computer use. We are not prepared to stretch the language of the statute or the regulation that far.

Contrary to the view of the commissioner, we are persuaded, for two reasons, that, as in other cases involving use tax liability, the applicability of the tax in this case depends upon a determination of the true object of the underlying transaction. See Dine Out Tonight Club, Inc. v. Department of Revenue Services, 210 Conn. 567, 571, 556 A.2d 580 (1989); American Totalisator Co. v. Dubno, 210 Conn. 401, 406, 555 A.2d 414 (1989); White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 422, 503 A.2d 582 (1986); Colum bia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 609-10, 410 A.2d 457 (1979). First, the commissioner’s own administrative interpretations of related statutory provisions have regularly invoked an “essence of the service” test to determine the applicability of the sales and use tax. With respect to actuarial services, which literally might fall within § 12-407 (2) (i) (J) as “business analysis and management services,” the commissioner has drawn functional lines to distinguish between the nontaxability of actuarial calculations and analyses and the taxability of the rendition of other services. Department of Revenue Services, Bulletin No. 41, January 19, 1989. The department’s training manual for its field examiners, in expressly recognizing the nontaxability of an accountant’s incidental use of a computer, emphasizes that the test of what is a taxable service is “[t]he essence of what is contracted for.” Connecticut Sales and Use Tax Manual (2/1/86) § 10.2.9, pp. 1, 3. Second, a narrow view of the scope of taxpayer liability for “computer services” is entirely consistent with the proposition that, as presently drafted, the sales and use tax purports to tax only certain specifically enumerated services rather than commercial services generally. Zachs v. Groppo, supra, 692-93.

The trial court found that “[t]he essence of HRS services is obtaining and informing the Taxpayer of reservations HRS has made for the Hotel.” Because the use of a computer to communicate this information was merely incidental to this objective, the court concluded that the commissioner had not met his burden of proving the taxability of the fees paid for HRS services. The commissioner has not challenged the accuracy of the trial court’s factual finding. Accordingly, we affirm the trial court’s ruling that HRS fees were not subject to the use tax because the purpose of the taxpayer in contracting for HRS services was to purchase reservations services rather than computer and data processing services.

II

The taxpayer’s cross appeal concerns its use tax liability for purchases of equipment, furniture and fixtures from Connecticut vendors. Before and after the opening of the hotel, the taxpayer purchased various items of equipment, furniture and fixtures necessary for the operation of the hotel. Even for those items it purchased from Connecticut vendors, the taxpayer paid no Connecticut sales tax. The commissioner assessed the taxpayer $26,496.47 for use taxes with respect to these intrastate purchases. The taxpayer claims the benefit of a statutory exemption contained in General Statutes § 12-413 (1), which excludes use tax liability for transactions that are subject to the sales tax. The trial court nonetheless upheld the use tax assessment.

The taxpayer’s appeal requires us to interpret § 12-413 (1), which provides that “[t]he storage, acceptance, consumption or other use in this state of services or property, the gross receipts from the sale of which are required to be included in the measure of the sales tax, is exempted from the use tax.” Because the issue that the taxpayer raises concerns the applicability of a statutory exemption, the taxpayer must overcome the presumption that such an exercise of legislative grace is to be strictly construed against the taxpayer and in favor of the taxing authority. Zachs v. Groppo, supra, 689 n.10; B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 8-9, 490 A.2d 991 (1985). The trial court interpreted the statute to permit the assessment of use taxes for purchases made within the state, as long as the state has not previously collected a sales tax from Connecticut vendors with regard to the same transactions.

Two questions are raised with regard to the scope of the use tax exemption contained in § 12-413 (1). The broader question is whether, with regard to the sale of goods, the legislature intended a bright line demarcation making the sales tax and the use tax mutually exclusive. According to the taxpayer, the sales tax applies only to sales by Connecticut vendors, and the use tax applies only to out-of-state sales. The narrower question, if the use tax does encompass some sales by Connecticut vendors, is whether this taxpayer, having paid no sales tax, is liable for a use tax on its intrastate purchases of equipment, furniture and fixtures. The trial court correctly resolved both of these questions against the taxpayer.

This court has not previously determined the precise nature of the complementary relationship between our sales and use tax. The Sales and Use Tax Act imposes both taxes and places their ultimate burden on the purchaser. Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 601, 362 A.2d 847 (1975); International Business Machines Corporation v. Brown, 167 Conn. 123,128-29, 355 A.2d 236 (1974); Robert Emmet & Son Oil & Supply Co. v. Sullivan, 158 Conn. 234, 239, 259 A.2d 636 (1969). “The difference between a sales and a use tax is that generally a sales tax is imposed on items acquired within the state and a use tax is imposed on items acquired outside the state for use within this state.” White Oak Corporation v. Department of Revenue Services, supra, 419; see also Fusco-Amatrucla Co. v. Tax Commissioner, supra, 600. Concededly, the department of revenue services cannot collect both a sales and a use tax on the same transaction.

Guided by these general observations, we must construe the exemption contained in § 12-413 (1), which excludes from the use tax the “use in this state of services or property, the gross receipts from the sale of which are required to be included in the measure of the sales tax . . . . ” We do not read this exemption as creating an impermeable barrier between the sales and the use tax. As the trial court observed, the exemption must be read consistently with General Statutes § 12-411 (1), which imposes the use tax on “the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer,” without distinction between in-state and out-of-state retailers. (Emphasis added.) Courts in other jurisdictions have interpreted statutory language similar to § 12-413 (1) as designed to avoid double taxation for transactions involving goods purchased for resale, which will subsequently become subject to the sales tax. J. A. Tobin Construction Co. v. Weed, 158 Colo. 430, 434-35, 407 P.2d 350 (1965); Herman M. Brown Co. v. Johnson, 248 Iowa 1143,1155, 82 N.W.2d 134 (1957); Capitol Building Co. v. Langton, 101 R.I.131,135-36, 221 A.2d 99 (1966); see contra Indiana Department of State Revenue v. Troy, 149 Ind. App. 600, 602-603, 274 N.E.2d 302 (1971). That construction is entirely persuasive. We therefore concur in the trial court’s conclusion that the use tax may apply to purchases from Connecticut vendors in the proper circumstances.

On the facts of this case, the commissioner cannot be faulted for having imposed use tax liability on the taxpayer for its purchases from Connecticut vendors. The taxpayer reminds us that its stipulation about the sales tax only encompassed its own nonpayment of this tax, and did not address the possibility that its Connecticut vendors had themselves paid the sales tax on these transactions. A Connecticut vendor would not collect a sales tax for property purchased for resale, and would be entitled to demand a resale certificate from a purchaser in those circumstances. General Statutes § 12-410. The present record, although it contains nothing about a resale certificate, makes it likely that the vendors paid no sales tax for this reason. We may take judicial notice of the nature of the proceedings before the department and the trial court, in which the taxpayer consistently maintained that all of its purchases of equipment, furniture and fixtures had been purchased for resale to its hotel guests, and were hence subject neither to sales nor to use tax. This conduct estops the taxpayer from asserting that it had no role in the vendor’s likely failure to have paid a sales tax. We are accordingly unpersuaded by the taxpayer’s claim that it is an innocent bystander, a “hapless consumer,” unexpectedly confronted by an assessment for a use tax without access to information about what sales tax was paid by its vendor. In order to establish its entitlement to an exemption, the taxpayer necessarily had to come forward with some evidence to substantiate its claim of possible double tax collection. Having failed to substantiate its claim for exemption, the taxpayer cannot prevail in its appeal.

There is no error.

In this opinion Glass, Hull and F. Hennessy, Js., concurred.

Covello, J.,

dissenting in part. I respectfully disagree with that portion of the opinion that concludes that “the use tax may apply to purchases from Connecticut vendors in the proper circumstances.” Such a statement appears to me to run contrary to the carefully crafted legislative scheme which establishes the relationship between the sales and use tax.

The parties’ stipulation stated that the personal property here in issue had been purchased from Connecticut vendors. There is no dispute that these were transactions executed within the state. “ ‘Speaking generally, the sales tax is imposed upon transactions within the state, and the use tax upon articles bought in other states which, if bought in Connecticut, would be subject to the sales tax.’ United Aircraft Corporation v. O’Connor, 141 Conn. 530, 536, 107 A.2d 398 [1954].” Avco Mfg. Corporation v. Connelly, 145 Conn. 161, 170, 140 A.2d 479 (1958).

When a purchase from a Connecticut vendor is subject to the sales tax, it is specifically exempted from the use tax. See General Statutes § 12-413 (1).* “The use tax provisions — designed to reach the use or consumption in [Connecticut] of property purchased outside it — exempt all transactions which are subject to the sales tax.” Sullivan v. United States, 395 U.S. 169, 172, 89 S. Ct. 1648, 23 L. Ed. 2d 182 (1969).

The majority has concluded that the taxpayer has “failed to substantiate its claim for exemption [from the use tax]” by failing “to come forward with some evidence to substantiate its claim of possible double tax collection.” I take this to mean that if the taxpayer cannot show that it or the vendor paid a sales tax, then it is liable for the use tax.

The test for exemption under General Statutes § 12-413 (1), however, is not whether the Connecticut vendor actually collected the sales tax (which, by the way, is not known in this case), but whether the transaction is covered by the sales tax statute. I would conclude that exemption from the use tax statute was established in this instance by the parties’ stipulation that the personal property in issue was purchased from Connecticut vendors within the state.

I therefore dissent.

       In the trial court, the taxpayer also contested its use tax assessment in two other respects. It claimed that no use tax at all was due on its purchases of furniture, fixtures and equipment because these items had been purchased for “resale” to the hotel’s customers, and it claimed that no use tax was collectible for the period preceding January 1,1982. The trial court found both of these claims to be unpersuasive. In this appeal, the taxpayer has not contested these conclusions of law.

       At earlier stages in the administrative proceedings against the taxpayer, the department of revenue services had premised use tax liability on two different theories. It had first maintained that HRS services were taxable as management services, under General Statutes § 12-407 (2) (i) (I) and § 12-426-27 (10) of the Regulations of Connecticut State Agencies, and then that they were taxable as telephone answering services under General Statutes § 12-407 (2) (i) (G) and § 12-426-27 (8) of the Regulations of Connecticut State Agencies.

       General Statutes § 12-407 (2) (i) (A) provides: “ ‘Sale’ and ‘selling’ mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows: (A) Computer and data processing services, including but not limited to, time.”

       Section 12-426-27 (b) (1) of the Regulations of Connecticut State Agencies provides: “(b) enumerated services. (1) Computer and data processing services.
      “Such services mean and include providing computer time, storing and filing of information, retrieving or providing access to information, designing, implementing or converting systems providing consulting services, and conducting feasibility studies. The transfer of dominion and control of computer hardware and software for a consideration does not come within the purview of this section, since such transfer shall constitute a lease or rental of tangible personal property and be subject to tax under Section 12-426-25.”

       The disparate theories that the department of revenue services has itself invoked, during the administrative process, for taxing this transaction, see footnote 2, supra, demonstrate that the language upon which the commissioner now relies is not unequivocal in its applicability.

       See, in addition, Department of Revenue Services Bulletin No. 3 (revised October 14,1983), entitled “Automatic Data Processing Services and Equipment,” which provides in subsection (d) (4) that the conversion of data from one medium to another does not fall within the statutory definition of “processing of customer-furnished information.”

       For this reason, the contrary holding of the trial court in CCH Computax, Inc. v. Dubno, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 302006 (June 6, 1988) is distinguishable. In that case, the trial court found that it was “[t]he nature of [the] plaintiff’s function [to render] computer and data processing services.”

       In light of this conclusion, we need not reach the taxpayer’s claim that taxation of the fees paid for the HRS reservation service would constitute an unlawful tax burden on interstate commerce, in violation of the commerce clause of the United States constitution. U.S. Const., art. I, § 8, cl. 3.

       We need not decide today the extent to which Voloshin Cadillac Co. v. Wischert, 37 Conn. Sup. 642, 644, 433 A.2d 323 (1981) (a vendor cannot later collect from a purchaser a sales tax that should have been added to the original sales price) survives our later decision in Wesson, Inc. v. Hychko, 205 Conn. 51, 56-60, 529 A.2d 714 (1987) (a vendor can invoke the doctrine of subrogation to collect from a purchaser the amount of motor vehicle fuel taxes that were unbilled because of a mistake of law).

       At the very least, the taxpayer could have provided an affidavit about whether it had ever executed a resale certificate with regard to the disputed purchases from Connecticut vendors.

       General Statutes § 12-413 (1) provides: “exemptions FROM use tax. (1) Where sales tax applicable. The storage, acceptance, consumption or other use in this state of services or property, the gross receipts from the sale of which are required to be included in the measure of the sales tax, is exempted from the use tax.”