author: Norcott, J. Katz, J., with whom Berdon, J.,

text:
    State of Connecticut v. Dennis Luzietti
    (14828)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued May 11
    decision released August 2, 1994

      Barry N. Silver, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Philip Scarpellino, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The dispositive issue in this certified appeal is whether the trial court had jurisdiction to grant the defendant’s motion for judgment of acquittal six weeks after the defendant had begun serving his sentence. We conclude that the trial court had no such jurisdiction and that it, therefore, improperly granted the defendant’s motion for judgment of acquittal. Accordingly, we affirm the judgment of the Appellate Court, which reversed the trial court’s judgment of acquittal and remanded the case with direction to reinstate the judgment of conviction.

The relevant procedural facts are undisputed. On March 31, 1992, the defendant, Dennis Luzietti, was convicted, after a jury trial, of reckless driving in violation of General Statutes § 14-222, and operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (c). The trial court sentenced the defendant as follows: (1) on the charge of operating a motor vehicle while his license was under suspension, one year imprisonment, execution suspended after nine months, two years probation, 200 hours of community service and a $750 fine; and (2) on the charge of reckless driving, thirty days imprisonment, one year probation and a $300 fine. The second sentence was to run consecutive to the first, resulting in a total effective sentence of one year and thirty days imprisonment, execution suspended after ten months, two years probation, 200 hours of community service and $1050 in fines.

The execution of the defendant’s sentence was stayed pending the trial court’s disposition of the defendant’s posttrial motions, including a motion for judgment of acquittal that the court denied on April 7, 1992. Thereafter, the defendant was committed to the custody of the department of correction by way of a judgment mittimus dated April 7, 1992, and he began serving his sentence.

On May 19, 1992, the defendant filed a motion to reargue the motion for judgment of acquittal that previously had been denied. The trial court granted rear-gument and held a hearing on May 22, 1992. The defendant argued, on the basis of a case that he had recently discovered, that there had been insufficient evidence before the jury to support its verdict on the count of operating a motor vehicle while his license was under suspension. The state opposed the motion, claiming that the trial court did not have jurisdiction to vacate the judgment of conviction because the defendant had already begun serving his sentence. The trial court granted the defendant’s motion, concluding that it had jurisdiction and that the defendant had been convicted on insufficient evidence.

Pursuant to General Statutes § 54-96, the state appealed to the Appellate Court, contesting both the trial court’s jurisdiction to grant the motion and its decision on the merits. The Appellate Court reversed the trial court’s judgment concluding: “The trial court’s granting of the defendant’s motion [for judgment] of acquittal after the start of his sentence violated the common law rule that a court is without jurisdiction to modify its judgment in the absence of appropriate enabling legislation.” State v. Luzietti, 32 Conn. App. 1, 5, 628 A.2d 8 (1993). Because this conclusion disposed of the case, the court did not reach the state’s claim that there was sufficient evidence to support the jury verdict. Id., 5-6.

We granted the defendant’s petition for certification, pursuant to General Statutes § 51-197f, limited to the following question: “Does the trial court have jurisdiction to reconsider the defendant’s motion for judgment of acquittal after the defendant had begun serving his sentence?” State v. Luzietti, 227 Conn. 919, 632 A.2d 697 (1993). We now affirm the judgment of the Appellate Court.

We first consider the defendant’s claim that the inherent power of a trial court over its judgments conferred jurisdiction on the trial court to grant his judgment of acquittal six weeks after he had begun serving his sentence. The defendant relies on State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118, cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1979), in which we held that a trial court has the inherent authority to set aside an unreasonable jury verdict as part of its supervisory power. Id. The state contends to the contrary that a trial court’s inherent authority over its criminal judgments ends when the defendant begins serving the sentence. Notwithstanding the trial court’s authority to set aside a jury verdict before rendering judgment in a criminal case, we conclude that once judgment has been rendered and the defendant has begun serving the sentence imposed, the trial court lacks jurisdiction to modify its judgment in the absence of a legislative or constitutional grant of continuing jurisdiction.

The Superior Court is a constitutional court of general jurisdiction. State v. Carey, 222 Conn. 299, 305-306, 610 A.2d 1147 (1992). In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483 (1956). It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. State v. Walzer, 208 Conn. 420, 426-28, 545 A.2d 559 (1988); State v. Nardini, 187 Conn. 109, 123, 445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74, 174 A. 74 (1934); State v. Vaughan, 71 Conn. 457, 460-61, 42 A. 640 (1899). This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence. State v. Walzer, supra, 427.

Applying these principles to the present case, we conclude that the trial court lacked jurisdiction to grant the defendant’s motion for judgment of acquittal on May 22, 1992, six weeks after he had begun serving his sentence. The trial court heard and denied all of the defendant’s posttrial motions on April 7, 1992. A judgment mittimus was issued immediately and custody of the defendant was transferred thereby to the department of correction. At that time, the court lost jurisdiction over the case and, in the absence of a statutory grant of jurisdiction, it had no power to set aside the conviction.

We next consider the defendant’s claim that General Statutes § 53a-39 conferred continuing jurisdiction on the trial court to grant the motion for judgment of acquittal six weeks after he had begun serving his sentence. He argues that § 53a-39 manifests a legislative intent that trial courts retain continuing jurisdiction to set aside their judgments when the sentence imposed is for less than three years. Specifically, the defendant contends that because the statute allows the sentencing judge to reduce the sentence to time served and “discharge” the defendant, the trial court’s action in this case served “to effectuate the intent of the legislature.” In response, the state argues that although § 53a-39 grants continuing jurisdiction to modify or reduce the sentence resulting in the defendant’s discharge, the plain language of the statute applies only to the sentence and does not authorize the trial court to change the underlying judgment of conviction. We agree with the state and accordingly decline to adopt the defendant’s unduly broad reading of § 53a-39.

“The objective of statutory construction is to give effect to the intended purpose of the legislature. State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). It is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1184 (1990).” (Internal quotation marks omitted.) Forsyth v. Rowe, 226 Conn. 818, 828, 629 A.2d 379 (1993). Furthermore, “[n]o statute is to be construed as altering the common law, farther than its words import [and ... a statute] is not to be construed as making any innovation upon the common law which it does not fairly express.” (Internal quotation marks omitted.) State v. Sanchez, 204 Conn. 472, 479, 528 A.2d 373 (1987).

The plain language of § 53a-39 allows the sentencing court or judge to “reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge . . . The statute refers only to the reduction of the term of imprisonment of the defendant. It does not refer to the underlying judgment of conviction. The defendant’s broad reading would alter the common law rule that a trial court may not vacate a criminal judgment after the sentence has been executed. Moreover, such a construction would go beyond the words of the statute in contravention of well established rules of statutory construction. Accordingly, we conclude that § 53a-39 did not confer continuing jurisdiction on the trial court to entertain the defendant’s motion for judgment of acquittal.

The defendant finally claims that a rule of continuing jurisdiction is necessary in this case in order to avoid an injustice, namely, his conviction on insufficient evidence. Implicit in the defendant’s argument is the premise that without this rule he would be left without a remedy. Even if it is assumed for the sake of argument that the case discovered by the defendant subsequent to trial would have rendered the jury verdict without a valid foundation, the defendant’s claim lacks merit because he has alternative remedies.

For example, General Statutes § 52-270 (a) authorizes the Superior Court to grant a new trial upon petition by the defendant showing “reasonable cause.” A meritorious claim that a verdict is against the evidence may constitute reasonable cause for the grant of a new trial. Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 391, 132 A.2d 573 (1957); Bissell v. Dickerson, 64 Conn. 61, 66, 29 A. 226 (1894). A petition for a new trial must be “brought but within three years next after the rendition of the judgment or decree complained of.” General Statutes § 52-582. The judgment of the court in this case was rendered on March 31, 1992. The defendant thus has until March 31, 1995, to file a petition for new trial on the basis that the jury verdict was unreasonable in light of the evidence presented at trial. Any claimed injustice could be avoided thereby. Accordingly, we conclude that the defendant’s claim that continuing jurisdiction is necessary in this case in order to avoid an injustice is meritless.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., and Borden, J., concurred.

Katz, J., with whom Berdon, J.,

joins, dissenting. I agree with the defendant’s claim that the inherent power of a trial court over its judgments conferred jurisdiction on the trial court to grant his motion for judgment of acquittal six weeks after he had begun serving his sentence. Therefore, I would reverse the Appellate Court’s judgment and remand the case to that court for its consideration of the state’s claim that there was sufficient evidence to support the jury verdict.

The decision by the majority cannot be reconciled with this court’s pronouncement in State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986), that a criminal judgment will be treated like a civil judgment for purposes of deciding whether the trial court has jurisdiction to modify the judgment. In Wilson, the court concluded that the trial court did not have jurisdiction to modify its decision more than four months after judgment had been rendered. At issue in Wilson were the trial court’s three separate decisions regarding the introduction into evidence of the defendant’s two incul-patory statements made to the police upon his arrest for homicide. Prior to trial, the defendant moved to suppress both statements. At the conclusion of the eviden-tiary hearing concerning one of those statements, the trial court ruled from the bench that the defendant had waived his right to counsel, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), before making any statements to the police. As part of that decision, the court specifically rejected the defendant’s testimony that he had requested a military lawyer. State v. Wilson, supra, 429. Following the evidentiary hearing regarding the defendant’s second statement, the trial court, again ruling from the bench, found that the defendant’s failure to request counsel constituted a waiver of his right to remain silent. Sometime thereafter, the trial court filed an undated and unstamped written memorandum of decision encompassing both claims that implied a finding that the defendant had requested military counsel. That written finding clearly contradicted the earlier rulings from the bench that the defendant had not requested counsel.

More than three years after the judgment of conviction and sentencing, and while the defendant’s appeal was pending, the state filed a motion for articulation with the trial court, seeking a definitive ruling on the issue of whether the defendant had indeed requested counsel. The trial court responded by amending its original memorandum of decision. It concluded that the defendant’s testimony was not credible and that he had not requested counsel during the police interrogation at issue.

Following a lengthy discussion of the circumstances in which an articulation is useful for meaningful appellate review, the Wilson court focused on the timing of the articulation at issue. Because “[t]he trial court was without jurisdiction to amend in matters of substance its original memorandum of decision more than four months after sentence had been imposed,” this court ordered the last memorandum of decision stricken. Id., 438.

Before reaching the ultimate decision of whether the last memorandum of decision could stand, this court traced the history of the trial court’s power to modify its own judgment. Id. At common law, the trial court possessed the inherent power to modify its own judgments during the term at which they were rendered. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). The distinction was drawn between matters of substance and clerical errors, the latter being subject to correction at any time. Morici v. Jarvie, 137 Conn. 97, 104, 75 A.2d 47 (1950). It was well established that “[i]n the absence of waiver or consent of the parties, a court is without jurisdiction to modify or correct a judgment in other than clerical respects after the expiration of the term of the court in which it was rendered.” Snow v. Calise, 174 Conn. 567, 571, 392 A.2d 440 (1978). At common law the word “term” meant “sessions” of court as that period had been defined in earlier enactments of General Statutes § 51-181. Id., 571-72; Cichy v. Kostyk, 143 Conn. 688, 695-96, 125 A.2d 483 (1956). Section 51-181, no longer makes reference to “sessions” of court, however, because the court sits continuously throughout the year for periods set by the chief court administrator.

In 1978, Practice Book § 326 was adopted. It provides that "within four months succeeding the date on which it was rendered or passed,” any civil judgment or decree may be opened or set aside. See also General Statutes § 52-212a. In State v. Wilson, supra, 199 Conn. 437, we held that there was no reason to distinguish between civil and criminal judgments in this regard and concluded that "for purposes of the common law rule, a criminal judgment may not be modified in matters of substance beyond a period of four months after the judgment has become final.” We did not resolve the issue based on whether the defendant had been committed to the custody of the commissioner of correction or whether he had begun serving his sentence. Indeed, there is no reference whatsoever to those considerations.

Both the majority and this dissent acknowledge that, in the absence of statutory or constitutional provisions, the limits of jurisdiction of the Superior Court are delineated by the common law. Cichy v. Kostyk, supra, 143 Conn. 690. We part company, however, in determining what those limits are. The majority clings to the general rule that the trial court may not alter the judgment once the sentence has been executed. The reasons for this rule, however, have not clearly been stated other than to say that the court loses jurisdiction at that magical moment. See Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). Some courts follow the rule because an increase in sentence by the trial court could run counter to the constitutional protections afforded against double jeopardy, while others follow the rule because a decrease in sentence could invade the executive or legislative pardoning powers or powers of commutation. See generally annot., 168 A.L.R. 709 (1947). None of those concerns are at issue here; nor should they be dispositive.

The protections against double jeopardy survive by virtue of the double jeopardy clause of the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, regardless of what limitations we set on our inherent authority to open a judgment. See State v. Palmer, 206 Conn. 40, 51, 536 A.2d 936 (1988). Additionally, General Statutes § 18-26 et seq., authorizing the board of pardons to grant commutations of punishment or releases, conditioned or absolute, provide unfettered discretion in the board to grant what is purely an act of clemency with no right of judicial review to anyone denied. McLaughlin v. Bronson, 206 Conn. 267, 271, 537 A.2d 1004 (1988). The factors traditionally considered, including the length of time elapsed since the commission of the crime, the institutional record of the inmate, the extent of the petitioner’s efforts at rehabilitation, and the results of his efforts; Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 463, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1981); generally arise long after the defendant has been sentenced. Therefore, the ability of the board of pardons to act would be undisturbed by any attempt by the trial court, provided it acted within a reasonable time period, to open a sentence it had imposed in order to correct an injustice.

The legislature has deemed four months as a reasonable time period within which to allow judgments to be opened in the civil arena. General Statutes § 52-212a. We have followed suit. Practice Book § 326. As this court acknowledged in State v. Wilson, supra, 199 Conn. 437, this time period imposes reasonable demands on the trial attorneys to discover and disclose problems they perceive with the judgment. We should not impose greater demands on the criminal bar and bench.

By wedding itself to the outdated rigid rule rejected by this court in State v. Wilson, supra, 199 Conn. 417, the majority ignores the modem day reality of the crash of business plaguing our courtrooms, the fallout of which is to create great stress and place unrealistic expectations on our judges to behave in god-like fashion. Examples of how this rule operates provide the best evidence of its shortcomings. For example, in State v. Adams, 14 Conn. App. 119, 133, 539 A.2d 1022 (1988), in deciding that the trial court had acted within its discretion when it decided to open the sentence it had imposed three hours earlier and resentence the defendant, the Appellate Court focused on the fact that the defendant had not yet left the courthouse lockup for the prison. Leaving the courthouse should not be the standard; rather, we should recognize the trial court’s inherent power to correct errors of substance within a reasonable time in order to do justice. As of April, 1994, 17,659 cases were pending in our criminal courts. State of Connecticut, Judicial Branch; Superior Court Case Management Report; Court Operations Division. I think it is reasonable to allow a trial judge more time than it takes to eat a jailhouse lunch to recognize a problem with a sentence it has just imposed.

This court in State v. Wilson, supra, 199 Conn. 438, held that “[t]he trial court was without jurisdiction to amend in matters of substance its original memorandum of decision more than four months after sentence had been imposed.” I would affirm that decision and hold that four months is a reasonable period to apply to criminal cases as well as civil cases for purposes of limiting the jurisdiction of a trial court to modify its own judgment.

I respectfully dissent.

       General Statutes § 14-222 provides: “reckless driving, (a) No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a or upon any school property recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle, or the operation, downgrade, upon any highway, of any motor vehicle with a commercial registration with the clutch or gears disengaged, or the operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at a rate of speed greater than eighty-five miles per hour shall constitute a violation of the provisions of this section.

        “(b) Any person who violates any provision of this section shall be fined not less than one hundred dollars nor more than three hundred dollars or imprisoned not more than thirty days or be both fined and imprisoned for the first offense and for each subsequent offense shall be fined not more than six hundred dollars or imprisoned not more than one year or be both fined and imprisoned.”

       General Statutes § 14-215 (c) provides: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       Relying on State v. Haight, 2 Conn. Cir. Ct. 79, 194 A.2d 718 (1963), the defendant argued that in order to violate General Statutes § 14-215 (c) one must have operated a motor vehicle on a “public highway.” The defendant then claimed that the evidence presented at trial showed that he had driven in a privately owned parking lot and not on a public highway.

       General Statutes § 54-96 provides: “appeals by state prom superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       The constitution of Connecticut, article fifth, § 1, provides: “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The power and jurisdiction of these courts shall be defined by law.”

       At common law, the trial court’s jurisdiction to modify or vacate a criminal judgment was also limited to the “term” in which it had been rendered. State v. Pallotti, supra, 119 Conn. 74. Since our trial courts no longer sit in “terms,” that particular common law limitation no longer has vitality in this state.

       General Statutes § 53a-39 provides: “reduction op definite sentence OP THREE YEARS OR LESS. DISCHARGE OP DEFENDANT. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced.”

       General Statutes § 52-270 provides in relevant part: “causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       The defendant also had, and still has, a variety of other possible remedies, including but not limited to: (1) filing an appeal under Practice Book § 4009; (2) requesting permission to file a late appeal under Practice Book § 4183; and (3) filing a writ of habeas corpus. See Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994).

       A recent pronouncement of this rule can be found in State v. Walzer, 208 Conn. 420, 425-28, 545 A.2d 559 (1988), in which we held that the trial court was without jurisdiction to modify the defendant’s sentence because “he passed into the jurisdiction of the commissioner of correction at the time of the original sentence because a judgment mittimus had been issued at that time transferring.his custody to the commissioner of correction subject to completion of his federal sentence. . . . [W]here a mittimus has been issued following a sentence, the stay incident to the posting of an appeal bond does not leave the sentence unexecuted and thus does not confer upon the trial court residual jurisdiction to modify the sentence that has been imposed.” Because the mittimus has come to be regarded only as a clerical document by virtue of which a person is transported to and rightly held in prison; Commissioner of Correction v. Gordon, 228 Conn. 384, 392, 636 A.2d 799 (1994); I assume that the majority relies on the imposition of sentence, the judgment of the court, to strip the trial court of its jurisdiction.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Waterbury Teachers Association v. Freedom of Information Commission et al.
    (14860)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued March 24
    decision released August 2, 1994

      William J. Dolan, for the appellant (plaintiff).

      Pamela D. Siemon, with whom, on the brief, was John J. Cassidy, Jr., for the appellees (defendant Marc S. Ryan et al.).

      Athan Mihalakos, for the appellee (defendant Waterbury board of education committee on grievances).
   Borden, J.

The sole issue of this appeal is whether the denial by the trial court of a stay of a decision of the named defendant, the freedom of information commission (commission), pending the resolution of the plaintiffs administrative appeal from that decision, constituted a final judgment for purposes of appeal. The plaintiff, the Waterbury Teachers Association, appeals upon our grant of certification, from the judgment of the Appellate Court. Waterbury Teachers Assn. v. Freedom of Information Commission, 228 Conn. 904, 634 A.2d 300 (1993). The Appellate Court dismissed, for lack of a final judgment, the plaintiffs appeal from the trial court’s decision denying the plaintiff’s motion for a stay pending the resolution of the plaintiff’s administrative appeal. We affirm the judgment of the Appellate Court.

The facts are undisputed. In May, 1992, the defendants complained to the commission that the board of education committee on grievances (committee) had illegally excluded the defendants from its April 29, 1992 and May 6, 1992 meetings, and that those meetings had not been properly noticed pursuant to General Statutes § 1-21 (a). The committee and the plaintiff, which had been made a party to the administrative proceeding, claimed that what had occurred on those two dates constituted “strategy or negotiations with respect to collective bargaining” within the meaning of § 1-18a (b), and that, therefore, the committee had acted properly. More specifically, the committee argued that the discussion of grievances under a collective bargaining agreement constitutes strategy or negotiations with respect to collective bargaining within the meaning of § 1-18a (b).

After a contested case hearing, the commission rendered its final decision on April 30, 1993. The commission found that, during the sessions at issue: (1) the committee had discussed certain grievances; (2) the committee, in accordance with its usual practice, had identified the grievances by numbers without the use of names or subject matter; (3) a collective bargaining agreement had been in effect; (4) the discussions of the grievances had included inquiries regarding possible violations of the collective bargaining agreement, and also had included the receipt of evidence from witnesses regarding the grievances; and (5) the committee had discussed matters other than strategy or negotiation regarding collective bargaining, particularly when receiving evidence with respect to grievances. On the basis of these findings, the commission concluded that the April and May sessions of the committee had been public meetings within the meaning of § 1-18a (b), and that the committee had violated § 1-21 (a) by failing to give proper notice thereof. The commission issued the following order: “The [committee] shall henceforth strictly comply with the provisions of § 1-21 (a).”

The plaintiff appealed from this decision to the trial court. During the pendency of this appeal, the plaintiff moved, pursuant to General Statutes § 4-183 (f), for a stay of “any proceedings by [the] defendants to enforce the final decision of the [commission] until further order of the court.” The trial court, treating the motion for a stay as analogous to a motion for a temporary injunction, applied a four part test. The court determined that, in order for a stay to issue, it must determine that: (1) the plaintiff had no adequate legal remedy; (2) the plaintiff would suffer irreparable injury absent a stay; (3) the plaintiff was likely to prevail on appeal; and (4) the balance of the equities favored a stay. Applying this test, the trial court denied the plaintiffs motion for a stay.

The plaintiff appealed to the Appellate Court from the trial court’s denial of a stay. The defendants moved to dismiss the appeal for lack of a final judgment. The Appellate Court granted the motion and dismissed the appeal. This appeal followed.

The plaintiff claims that the denial of the stay by the trial court, though an interlocutory order, is a final judgment for purposes of appeal because “the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The plaintiff argues that this part of the Curdo test applies because: (1) the effect of the commission’s order is to require that grievance hearings be treated as open meetings, at least until the merits of the plaintiffs appeal are determined by the trial court; (2) the plaintiff will thereby be deprived of its right to appeal from the commission’s decision regarding grievance hearings held during the period between the commission’s order and the trial court’s ultimate decision on the merits; and (3) if the plaintiff is not permitted to appeal at this time, it “will have been forced to abide by an illegal order during the pendency of its administrative appeal.” Thus, the core of the plaintiffs argument is that, as a result of the trial court’s decision, the plaintiff will irreparably lose its right to conduct grievance hearings during the pendency of the appeal in private. We are not persuaded that these considerations transform this interlocutory order into a final judgment for purposes of appeal.

It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases; see Fonfarra v. Reapportionment Commission, 222 Conn. 166, 610 A.2d 153 (1992); the subject matter jurisdiction of the Appellate Court and of this court is governed by statute. Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review; see, e.g., General Statutes § 52-278l (prejudgment remedies); General Statutes § 54-63g (petition for review of bail); General Statutes § 51-164x (court closure orders); State v. Ayala, 222 Conn. 331, 340, 610 A.2d 1162 (1992); appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263; State v. Curcio, supra, 191 Conn. 30. The doctrine that an interlocutory order may nonetheless be a “final [judgment] for purposes of appeal”; State v. Curcio, supra, 31; is not an exception to but simply an application of the final judgment rule embodied in § 52-263. See footnote 8.

The plaintiff’s attempt to bring the trial court’s order denying a stay within Curcio founders on our further explication of that doctrine in State v. Longo, 192 Conn. 85, 91-93, 469 A.2d 1220 (1984). In Longo, this court held that the trial court’s order denying the defendant’s application for youthful offender status was not an appealable final judgment. We so held, moreover, despite the fact that “[o]nce the defendant undergoes a public trial or is detained with the general jail population, his privacy cannot be restored by a subsequent private trial or by subsequent segregation detention.” Id., 91.

We held, nonetheless, that the order was interlocutory and did not satisfy the Curcio test. “In order to satisfy the second prong of the Curcio test the [plaintiff] must do more than show that the trial court’s decision threatens [it] with irreparable harm. The [plaintiff] must show that that decision threatens to abrogate a right that [it] then holds.” (Emphasis in original.) Id., 91. Furthermore, “when a statute vests the trial court with discretion to determine if a particular [party] is to be accorded a certain status, the [party] may not invoke the rights that attend the status as a basis for claiming that the court’s decision not to confer that status deprives the [party] of protections to which [it] is entitled. For an interlocutory order to be an appealable final judgment it must threaten the preservation of a right that the [party] already holds. The right itself must exist independently of the order from which the appeal is taken. Where a decision has the effect of not granting a particular right, that decision, even if erroneous, does not threaten the [party’s] already existing rights.” Id., 92-93. Application of these principles of finality of judgments to this case forecloses the plaintiff’s claim.

The plaintiff’s contention that as a result of the trial court’s action it must hold its grievance hearings in public during the pendency of this appeal devolves into a claim of irreparable harm. The plaintiff cannot show that it now holds the right to have such hearings conducted in private. That question will be determined by the administrative appeal. As in Longo, the right of privacy that the plaintiff asserts in this case does not yet “exist independently of the order from which the appeal is taken.” Id.

The conclusion that the trial court’s denial of a stay in this case is not a final judgment is consistent, moreover, with prior cases holding that similar claims of privacy rights may be lost pending an appeal. In Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 254, 520 A.2d 605 (1987), we held that a trial court order of disclosure and production was not a final judgment for purposes of appeal, despite the defendant’s claim that the material ordered to be produced was protected by the attorney-client privilege and the work product doctrine, and that the order therefore fell within the second prong of Curdo. We rejected the defendant’s argument that the order must be deemed final because its rights would be “inalterably concluded if it must, without appellate review, comply with the order by making the requested documents available to the plaintiff.” Id. We recognized that “a remand for a new trial resulting from an erroneous order to disclose information protected by the privilege cannot wholly undo the consequences of its violation . . . .” Id., 257. Nonetheless, we stated: “ ‘Vindication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court.’ In re Juvenile Appeal (85-AB), 195 Conn. 303, 311, 488 A.2d 778 (1985).” Id.

We further noted: “Our concern for the efficient operation of the judicial system, which is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule, has induced us to dismiss appeals where statutorily created rights of privacy, no less significant than the right of confidentiality for attorney-client communications, have been at stake. Where those accused of crimes have claimed entitlement to treatment as juveniles or youthful offenders, we have recognized that our decree after a successful appeal from a conviction cannot restore the protection the legislature intended against publicity and other consequences attending an adult criminal proceeding. [In re Juvenile Appeal (85-AB), supra, 195 Conn. 311]; State v. Longo, [supra, 192 Conn. 91], We have concluded, nevertheless, that the harm caused by delay in the disposition of criminal cases likely to result from allowing interlocutory appeals where trial courts have denied youthful offender or juvenile treatment far outweighs the need to provide additional appellate remedies to implement the legislative purpose more effectively. In re Juvenile Appeal (85-AB), supra, 312.” Id., 258. In addition, we made clear that the same considerations applied to civil, as well as criminal, cases. Id.

The same reasoning applies to this case. The efficient operation of the judicial system, which depends upon the policy against piecemeal litigation inherent in the final judgment rule, strongly counsels against characterizing a denial of a stay pending appeal as a final judgment for purposes of appeal. Indeed, the plaintiff conceded at oral argument in this court that it was claiming, in essence, that the judicial denial of a stay of any freedom of information commission order requiring disclosure of material or opening of meetings is always an appealable final judgment. Although the legislature could certainly enlarge appellate review of freedom of information orders, it has not done so in either the Freedom of Information Act or General Statutes § 4-183 (f). See footnote 5.

We have previously analogized the process of granting or denying a stay under § 4-183 pending the outcome of the administrative appeal to the process of granting or denying a temporary injunction to preserve the status quo pending the full hearing on the merits of a case. Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 457, 493 A.2d 229 (1985). Just as a temporary injunction generally is not a final judgment for purposes of appeal; see Doublewal Corp. v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985); the decision on a motion for stay pending appeal pursuant to § 4-183 (f) is not a final judgment for purposes of appeal.

We note the existence of a narrow category of cases in which certain temporary orders have been held to be appealable final judgments because they so conclude the rights of a party that further proceedings could not affect them. See, e.g., Goodson v. State, 228 Conn. 106, 114, 635 A.2d 285 (1993) (order of reinstatement to employment pending arbitration); Madigan v. Madigan, 224 Conn. 749, 620 A.2d 1276 (1993) (temporary custody order in dissolution case); Litvaitis v. Litvaitis, 162 Conn. 540, 548, 295 A.2d 519 (1972) (temporary order of child support in dissolution case); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (pendente lite order of support in equitable action for support).

The denial of the plaintiffs motion for a stay in the present case, however, does not fall within this category of cases. First, these precedents are less anala-gous to the facts of this case than is our law regarding the temporary loss of privacy rights. See, e.g., Melia v. Hartford Fire Ins. Co., supra, 202 Conn. 252. Second, those cases generally involved payments of money that could not be recouped on a subsequent plenary appeal. See, e.g., Litvaitis v. Litvaitis, supra, 162 Conn. 540. Third, the special circumstances of family cases have persuaded us that there is a compelling need for immediate review of pendente lite visitation orders, which do not involve the payment of money. See, e.g., Madigan v. Madigan, supra, 224 Conn. 749.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The other defendants are the Waterbury board of education committee on grievances, the Waterbury Republican American newspaper, and Marc S. Ryan and James B. Craig, an editorial writer and reporter, respectively, for the newspaper. In the trial court, the board of education committee did not file an appearance. Furthermore, in the trial court only the newspaper, Ryan and Craig opposed the plaintiffs motion for a stay; the commission did not oppose the motion. Moreover, neither the commission nor the board of education committee has participated in this appeal. We refer herein, therefore, to the newspaper, Ryan and Craig as the defendants.

       We granted the plaintiffs petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: “Was the trial court’s denial of the plaintiffs motion for a stay of the defendant Freedom of Information Commission’s decision a final judgment for purposes of appeal to the Appellate Court?” Waterbury Teachers Assn. v. Freedom of Information Commission, 228 Conn. 904, 634 A.2d 300 (1993).

       General Statutes § 1-21 provides in relevant part: “meetings of GOVERNMENT AGENCIES TO BE PUBLIC. RECORDING OF VOTES. SCHEDULE AND AGENDA OF MEETINGS TO BE FILED. NOTICE OF SPECIAL MEETINGS. executive sessions, (a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. . . . Each such public agency of the state shall file not later than January thirty-first of each year in the office of the secretary of the state the schedule of the regular meetings of such public agency for the ensuing year, except that such provision shall not apply to the general assembly ... . The chairman or secretary of any such public.agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. The chief executive officer of any multitown district or agency shall file, not later than January thirty-first of each year, with the clerk of each municipal member of such district or agency, the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. The agenda of the regular meetings of every public agency, except for the general assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency’s regular office or place of business or, if there is no such office or place of business, in the office of the secretary of the state for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency. . . . Notice of each special meeting of every public agency, except for the general assembly, either house thereof or any committee thereof, shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the secretary of the state for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency. . . . Such notice shall be given not less than twenty-four hours prior to the time of the special meeting; provided, in case of emergency, except for the general assembly, either house thereof or any committee thereof, any such special meeting may be held without complying with the foregoing requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with the secretary of the state, the clerk of such political subdivision, or the clerk of each municipal member of such multitown district or agency, as the case may be, not later than seventy-two hours following the holding of such meeting. The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency. In addition, such written notice shall be delivered to the usual place of abode of each member of the public agency so that the same is received prior to such special meeting. . . .”

       General Statutes § 1-18a provides in relevant part: “definitions. . . .
      “(b) ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. . . .” (Emphasis added.)

       General Statutes § 4-183 provides in relevant part: “APPEAL TO SUPERIOR COURT. . . .
      “(f) The filing of an appeal shall not, of itself, stay enforcement of an agency decision. An application for a stay may be made to the agency, to the court or to both. Filing of an application with the agency shall not preclude action by the court. A stay, if granted, shall be on appropriate terms.”

       The plaintiff does not claim that the trial court’s denial of a stay comes within that part of the Curdo doctrine providing that there is a final judgment for purposes of appeal “where the order or action terminates a separate and distinct proceeding.” State v. Curcio, supra, 191 Conn. 31.

       Article third, § 6, of the Connecticut constitution, as amended by article twenty-six of the amendments, provides in relevant part: “d. Original jurisdiction is vested in the supreme court to be exercised on the petition of any registered voter whereby said court may compel the commission [convened for decennial reapportionment of electoral districts], by mandamus or otherwise, to perform its duty or to correct any error made in its plan of districting, or said court may take such other action to effectuate the purposes of this article, including the establishing of a plan of districting if the commission fails to file its plan of districting by the thirtieth day of November as said court may deem appropriate.”

       General Statutes § 52-263 provides in relevant part: “appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court ... if either party is aggrieved by the decision of the court ... he may appeal to the court having jurisdiction from the final judgment of the court . . . .”


author: Palmer, J.

text:
    Alan J. Koepke v. Zoning Board of Appeals of the Town of Coventry et al.
    (14795)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued March 31
    decision released August 2, 1994

      Susan Oygard, pro se, with whom, on the brief, were Mark K. Branse and Matthew J. Willis, for the appellant (defendant Susan Oygard).

      Duncan J. Forsyth, with whom was Lawrence J. Golden, for the appellee (plaintiff).

      Abbot B. Schwebel, for the appellee (named defendant).
   Palmer, J.

The dispositive issue in this certified appeal is whether the defendant Susan Oygard filed a timely appeal to the named defendant, the zoning board of appeals of the town of Coventry (board), challenging the decision of the town’s zoning enforcement officer to grant the application of the plaintiff, Alan J. Koepke, for a zoning permit. We conclude that Oygard’s appeal to the board was timely filed.

The relevant facts and procedural background are summarized as follows. The plaintiff sought to build a 150 foot radio tower adjacent to property owned by Oygard. After the plaintiff had discussed the project with the Coventry zoning enforcement officer and notice of the proposed construction had been sent to Oygard, among others, the plaintiff submitted an application for a zoning permit. No objections to the proposal were received, and the permit application was granted by the zoning enforcement officer on July 11, 1986. After the zoning enforcement officer issued the permit, he requested that the plaintiff make certain alterations to the plans for the proposed radio tower and submit a new plot plan. The plaintiff made the requested changes and submitted a new application, together with a revised plot plan, to the zoning enforcement officer. On August 7, 1986, the zoning enforcement officer, without payment by the plaintiff of an additional fee, issued the plaintiff a new permit bearing the same number as the previous permit. The zoning enforcement officer also gave the plaintiff contemporaneous written notification that his July 11 permit had been revoked.

On August 12, 1986, Oygard appealed to the board challenging the validity of the August 7, 1986 permit on the grounds that its issuance adversely affected her property and that the radio tower was not permitted by the applicable zoning regulations. After a public hearing, the board voted to sustain Oygard’s appeal and revoked the permit that had been issued to the plaintiff on August 7, 1986.

The plaintiff appealed from the decision of the board to the trial court. The trial court sustained the plaintiff’s appeal, concluding that the board did not have subject matter jurisdiction to hear the defendant’s appeal because that appeal had not been filed within the limitation period prescribed by General Statutes § 8-7, and because the board had failed to give proper notice of the hearing. Oygard appealed to the Appellate Court, which affirmed the judgment of the trial court on the issue of improper notice. Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 595 A.2d 935 (1991). The Appellate Court did not reach the issue of the timeliness of Oygard’s appeal to the board. Id., 615, 619. After our grant of her petition for certification to appeal, we upheld the determination of the Appellate Court that notice had been improper; Koepke v. Zoning Board of Appeals, 223 Conn. 171, 176, 610 A.2d 1301 (1992); but reversed the judgment of the court because its remand incorrectly put an end to Oygard’s appeal by affirming the judgment of the trial court. Instead, we held that although the board’s failure to give proper notice nullified its subsequent actions, sound public policy required a remand to the board, assuming it initially had subject matter jurisdiction to hear Oygard’s appeal, to enable it to conduct a new hearing after giving proper notice. Id., 178-79. Accordingly, we remanded the case for a determination as to whether Oygard’s appeal to the board had been timely filed and, if not, whether the board nonetheless had jurisdiction to hear the appeal.

On remand, the Appellate Court affirmed the judgment of the trial court, concluding that the board did not have subject matter jurisdiction to hear the appeal because it had not been filed within the time period prescribed by § 8-7. Koepke v. Zoning Board of Appeals, 30 Conn. App. 395, 620 A.2d 811 (1993). We granted certification of Oygard’s appeal limited to the following issues: (1) “Did the Appellate Court properly conclude that an appellant’s failure to file a zoning appeal within the thirty day time limit provided by General Statutes § 8-7 deprives a zoning board of appeals of subject matter jurisdiction to hear the appeal?”; and (2) “If the answer to question (1) is yes, did the Appellate Court properly conclude that, under the circumstances of this case, Oygard’s appeal was untimely?” Koepke v. Zoning Board of Appeals, 226 Conn. 913, 628 A.2d 985 (1993). We conclude that Oygard’.s appeal from the decision of the board was timely and, consequently, that there was no defect, subject matter or otherwise, in the board’s authority to hear her appeal. Accordingly, we reverse the judgment of the Appellate Court.

The plaintiff claimed, and both the trial court and the Appellate Court agreed, that Oygard’s appeal to the board was untimely because the thirty day period prescribed by § 8-7 for the filing of an appeal began to run on July 11, 1986, the date the original permit was issued, rather than on August 7, 1986, the date of the issuance of the second permit. The trial court had based its conclusion on its findings that “[t]he circumstances . . . which led to [the] plaintiff filing a new application did not constitute a revocation of the July 11, 1986 permit,” and that “[t]he alterations to the [original plot] plan [that gave rise to the August 7 permit] were, at best, minor modifications that did not alter the purpose and intent of the [original] permit.” The trial court had also concluded that the zoning officer had no authority to revoke the original permit. The Appellate Court accepted the trial court’s findings and conclusions, and affirmed its judgment. Koepke v. Zoning Board of Appeals, supra, 30 Conn. App. 395. We agree, however, with Judge Freedman’s dissent from the majority opinion of the Appellate Court that “these findings and conclusions are neither supported by the record nor legally and logically correct.” Id., 404; see Lunn v. Tokeneke Assn., Inc., 227 Conn. 601, 608, 630 A.2d 1335 (1993); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980).

It is not disputed that the zoning enforcement officer, subsequent to his issuance of the original permit, requested that the plaintiff submit a revised application for construction of the radio tower. It also is undisputed that the plaintiff submitted a new application, including a new plot plan, and that on August 7, the zoning enforcement officer revoked the permit that he had issued on July 11, and issued a new permit based on the revised application and plot plan. Under these circumstances, the permit issued on August 7, not the July 11 permit that was expressly revoked by the zoning enforcement officer, constituted the necessary legal authorization for the plaintiff’s construction of the radio tower.

The trial court’s characterization of the modifications to the original plot plan as “minor” revisions that “did not alter the purpose and intent of the [original] permit” does not persuade us that the July 11 permit was the legally operable permit. The zoning enforcement officer testified at trial that the original plot plan did not satisfy the town’s zoning requirements due to certain changes that the plaintiff had made to the plan without the zoning officer’s approval. Further, the plaintiff acknowledged at the hearing before the board that he had agreed to the plot plan alterations in order “to bring [the] structure within compliance of the zoning regulations.” The original plot plan, therefore, was in violation of the town’s zoning regulations, and the modifications to the plan agreed to by the plaintiff were necessary to bring the plan into compliance with those regulations. Thus, “there is no doubt that the difference between the two permits centered on the issue of regulatory compliance. A subsequent application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect.” Koepke v. Zoning Board of Appeals, supra, 30 Conn. App. 405 (Freedman, J., dissenting).

Moreover, whether the zoning enforcement officer had the authority to revoke the first permit was an issue to be decided in the first instance by the board, not the trial court. See Francini v. Zoning Board of Appeals, 228 Conn. 785, 793-94, 639 A.2d 519 (1994); Caserta v. Zoning Board of Appeals, 219 Conn. 352, 359, 593 A.2d 118 (1991). Having chosen not to contest the permit revocation before the board, the plaintiff was not entitled to a determination of that issue by the trial court. Francini v. Zoning Board of Appeals, supra, 228 Conn. 793-94; Caserta v. Zoning Board of Appeals, supra, 219 Conn. 359. In addition, the record clearly indicates that the plaintiff acquiesced in the decision of the zoning enforcement officer to revoke the July 11 permit in favor of the August 7 permit. In so doing, the plaintiff waived whatever claim he may have had with respect to the authority of the zoning enforcement officer to revoke the first permit. See Gagnon v. Planning Commission, 222 Conn. 294, 298-99, 608 A.2d 1181 (1992).

We conclude, therefore, that Oygard’s appeal of August 12, 1986, from the issuance of the zoning permit to the plaintiff on August 7, 1986, was filed within the time period prescribed by § 8-7. Accordingly, the board properly heard her appeal.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to remand the case to the zoning board of appeals to determine, upon proper public notice, the merits of Oygard’s appeal.

In this opinion the other justices concurred.

       General Statutes § 8-7 provides in relevant part: “An appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof.”

       Because we conclude that Oygard filed a timely appeal to the board, we need not consider the first certified question.

       The board had not adopted a rule specifying a limitation period for appeals to it, so that Oygard was required to have filed her appeal within the thirty day period prescribed by General Statutes § 8-7.


author: Palmer, J. Berdon, J.,

text:
    Denise M. Orsi et al. v. Rose A. Senatore, Commissioner of Children and Youth Services
    (14799)
    Peters, C. J., Berdon, Norcott, Katz and Palmer, Js.
    Argued January 11
    decision released August 2, 1994

      Linda Pearce Prestley, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Carolyn Querijero, assistant attorneys general, for the appellant (defendant).

      Susan K. Smith, with whom were Hope C. Seeley and, on the brief, Kathleen M. Paul, certified legal intern, for the appellee (named plaintiff).

      Lynn B. Cochrane and Jamey Bell filed a brief for the Danbury Regional Commission on Child Care, Rights and Abuse et al. as amici curiae.
   Palmer, J.

The dispositive issue raised by this certified appeal is whether a foster parent has standing to bring an action on behalf of his or her foster child even though that child has been represented by a court-appointed guardian. The trial court determined that the plaintiff, Denise M. Orsi, the foster parent of Christopher C., could not, as a matter of law, bring an action on Christopher’s behalf to challenge the constitutionality of the regulations under which the defendant, Rose A. Senatore, the commissioner of the department of children and youth services (department), had removed Christopher from the plaintiffs care and had placed him with his maternal grandmother. On appeal, the Appellate Court reversed the judgment of the trial court, concluding that the plaintiff had standing to challenge the defendant’s decision placing Christopher with his grandmother. Orsi v. Senatore, 31 Conn. App. 400, 626 A.2d 750 (1993). We granted certification to appeal from the judgment of the Appellate Court and now reverse. We conclude that the case must be remanded to the trial court for its determination of whether, under the facts and circumstances of this case, the plaintiff had standing to file the declaratory judgment action on Christopher’s behalf as his next friend.

The relevant facts and procedural history are summarized as follows. On February 12, 1989, Christopher was born to Deborah C. (mother), a single, fifteen year old woman. Christopher spent the first several months of his life in the hospital due to respiratory problems requiring surgery. Shortly after his discharge, Christopher was rehospitalized as a result of his mother’s failure to administer proper medical care. The defendant thereupon sought an order of temporary custody. At that time, Christopher’s mother and his father, Stephen P., admitted to allegations of homelessness and neglect. On May 31, 1989, the court issued an order of protective supervision to ensure that Christopher would have an appropriate and safe living environment, and granted partial custody of Christopher to his grandmother, with whom his mother resided. The court also appointed attorney Stephen L. Mangan to represent Christopher at the proceedings concerning Christopher’s custody and placement.

In June, 1989, Christopher was discharged from his second hospitalization and released to the joint care of his grandmother and mother. Because of his mother’s progress in caring for Christopher, protective supervision was terminated in December, 1989. In March, 1990, however, the grandmother forced the mother, then again pregnant, and thirteen-month-old Christopher, to leave her home. The mother voluntarily placed Christopher in foster care, and the defendant appointed the plaintiff and her husband to be Christopher’s foster parents.

Over the next several months, the defendant provided a range of family services in an effort to reunite Christopher with his mother, who was allowed to visit Christopher on a regular basis. Due to concerns about Christopher’s safety and well-being, however, the defendant again applied for an order of temporary custody, which the court granted on October 3, 1990. In January, 1991, the court found Christopher to be uncared for and neglected, and committed him to the custody and guardianship of the defendant for a period of eighteen months pursuant to General Statutes § 46b-129 (d). The mother was permitted only strictly supervised visits with Christopher, who continued in the care of the plaintiff.

In April, 1991, the defendant informed the plaintiff that Christopher would be removed from her foster home and placed in the care of the grandmother. The plaintiff, concerned that the mother would have access to Christopher while the grandmother was at work, immediately brought an action seeking: (1) a writ of habeas corpus under General Statutes § 52-466 (f), which confers standing upon foster parents to challenge a removal action by the department; (2) an injunction prohibiting the removal of Christopher by the defendant until it could be determined whether the planned removal and placement were in his best interests; and (3) a declaratory ruling on the constitutionality of § 17-37-4 (c) of the Regulations of Connecticut State Agencies, which provides that a request by a foster parent for an administrative hearing will be denied when the foster child is to be placed with a family member. With respect to her application for a declaratory judgment, the plaintiff claimed that the challenged regulation violated both the state and federal constitutions in that it denied a child notice and opportunity to be heard when the department decides to place that child with a family member. The plaintiff indicated that she was not seeking custody of Christopher, but rather that she was only seeking, as Christopher’s next friend, to enforce Christopher’s constitutional rights.

On May 6, 1991, the trial court entered an ex parte order temporarily enjoining the defendant from removing Christopher from the plaintiff’s care. Shortly thereafter, the court also granted the motion to intervene of attorney Mangan, who had been appointed Christopher’s guardian ad litem and who had represented Christopher at the neglect proceedings.

On June 5, 1991, the defendant filed a motion to strike the next friend allegations of the declaratory judgment portions of the complaint on the ground that the plaintiff lacked standing to raise a legal claim on Christopher’s behalf. The trial court concluded, as a matter of law, that the plaintiff could not bring an action on Christopher’s behalf and, accordingly, granted the defendant’s motion to strike. On June 20, 1991, the trial court dissolved the temporary injunction and denied the plaintiff’s application for a writ of habeas corpus on the ground that the plaintiff had failed to establish that Christopher’s return to the care of the grandmother was not in his best interests.

The plaintiff appealed from the trial court’s ruling that struck her request for a declaratory judgment. The Appellate Court determined that, contrary to the conclusion of the trial court, the plaintiff has standing to bring the declaratory judgment action on Christopher’s behalf. The Appellate Court further concluded that § 17-37-4 (c) of the Regulations of Connecticut State Agencies violates the federal constitution because it deprives a child who has been in foster care for one year or more of an administrative hearing to challenge the decision of the department to place that child with a family member.

The defendant claims that the Appellate Court improperly determined that the plaintiff had standing to serve as Christopher’s next friend for the purpose of challenging the constitutionality of the regulations pursuant to which Christopher was removed from the plaintiff’s care and placed with his grandmother. The defendant further contends that the trial court properly concluded that the plaintiff’s only recourse to contest Christopher’s family placement was an application for a writ of habeas corpus under § 52-466 (f). We agree with the defendant that the Appellate Court improperly determined that the plaintiff had standing as a matter of law to serve as Christopher’s next friend. We disagree with the defendant, however, that the plaintiff’s status as a foster parent necessarily precluded her from serving as the child’s next friend. We therefore conclude that the case must be remanded to the trial court for a hearing on whether, under the facts and circumstances of this case, the plaintiff had standing to bring the declaratory judgment action on Christopher’s behalf as next friend.

It is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to “ensure that the interests of the ward are well represented.” Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 834 (1978); Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). When a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child. Williams v. Cleaveland, 76 Conn. 426, 434, 56 A. 850 (1904). There are, however, “certain exceptional circumstances”; Cottrell v. Connecticut Bank & Trust Co., supra, 263; when a child “may properly sue by next friend, notwithstanding the existence of such guardian, as when the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal, and especially when, though declining to take such action himself, he does not forbid such proceeding, or when he is disqualified by interest hostile to that of the infant, or is for other reasons an improper or unsuitable person to prosecute such actions on behalf of the ward.” Williams v. Cleaveland, supra, 432. Although generally a person who brings an action as next friend need not obtain prior authorization from the court to do so; id., 433; McCarrick v. Kealy, 70 Conn. 642, 646, 40 A. 603 (1898); the court must determine whether the person seeking to represent the child as next friend is a proper or suitable person to make a claim on behalf of the child. Williams v. Cleaveland, supra, 433-34; McCarrick v. Kealy, supra, 646.

Because both a guardian and a guardian ad litem already had been appointed to represent Christopher’s interests in the removal proceedings, the trial court was required to determine whether exceptional circumstances existed to warrant Christopher’s representation by a next friend and, if so, whether the plaintiff was a proper person to serve in that capacity. The trial court failed to make such a determination, however, because it concluded that an application for a writ of habeas corpus under § 52-466 (f) was the only legal remedy available to the plaintiff to contest the defendant’s decision to return Christopher to the care of his grandmother. Although it is true that § 52-466 (f) afforded the plaintiff standing to challenge the defendant’s placement decision by writ of habeas corpus, neither this statute nor our case law precludes a foster parent from also bringing an action as next friend on behalf of his or her foster child when warranted by exceptional circumstances.

The Appellate Court concluded that the plaintiff had standing to serve as Christopher’s next friend as a matter of law. We do not agree. In contesting the standing of the plaintiff to appear on Christopher’s behalf, the defendant claimed that the plaintiff’s interests were not consistent with those of the child, and that Christopher’s interests had been properly represented by his guardian and guardian ad litem. Although acknowledging that “the decision of whether the next friend is a suitable person to represent the infant is a question for the trial court”; Orsi v. Senatore, supra, 31 Conn. App. 421; the Appellate Court nevertheless held that exceptional circumstances existed and that the trial court had abused its discretion in concluding that the plaintiff was not a proper person to serve as Christopher’s next friend. Id. Because the trial court improperly determined, however, that the plaintiff could not, as a matter of law, serve as Christopher’s next friend, the court failed to exercise its discretion to consider whether exceptional circumstances existed to warrant the commencement of an action on Christopher’s behalf and, if so, whether the plaintiff was a proper person to do so. The Appellate Court therefore should have remanded the case to the trial court to resolve those issues in the first instance.

We conclude, therefore, that the trial court must determine whether there were exceptional circumstances warranting the filing of the declaratory judgment action by the plaintiff as Christopher’s next friend and, if so, whether the plaintiff, in light of her special interests as a foster parent, was a proper person to bring such an action. See Nye v. Marcus, supra, 198 Conn. 145. Because a court does not have subject matter jurisdiction over claims brought by persons who do not have standing; Tomlinson v. Board of Education, 226 Conn. 704, 717-18, 629 A.2d 333 (1993); we may not consider the merits of the declaratory judgment action until it properly has been determined that the plaintiff has standing to bring the action on Christopher’s behalf. See Sadloski v. Manchester, 228 Conn. 79, 83-85, 634 A.2d 888 (1993).

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand it to the trial court to determine whether the plaintiff had standing to bring the declaratory judgment action on Christopher’s behalf.

In this opinion Peters, C. J., and Norcott and Katz, Js., concurred.

Berdon, J.,

dissenting in part. I agree with the majority that, notwithstanding the appointment of a guardian ad litem for a minor child, a foster parent may have standing to bring a suit on the child’s behalf as his or her next friend. Nevertheless, I disagree with the majority’s conclusion that the plaintiff does not have standing as a matter of law in this case, based on the undisputed facts before us.

In Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 265, 398 A.2d 834 (1978), we held that if a guardian ad litem fails to take legal action to protect the interests of an incompetent person, then that person has standing to take that legal action himself or herself through a next friend. In the present case, the guardian ad litem failed to challenge the constitutionality of § 17-37-4 (c) of the Regulations of Connecticut State Agencies. This regulation allows the defendant to remove a child from foster care and place him or her with a family member without providing notice and an opportunity to be heard to the child’s foster parents, attorney or guardian ad litem. Because the child in this case, Christopher, “has a real interest” in obtaining a preremoval right to be heard for himself and his foster parents; id.; and because the guardian ad litem failed to assert this right on Christopher’s behalf, Christopher had standing to assert this right himself through a next friend.

Furthermore, under the circumstances of this case, where Christopher’s constitutional rights are at issue and it is against his family’s interest to act as next friend on his behalf, I conclude that the plaintiff was entitled as a matter of law to act as his next friend. The plaintiff and her husband had been caring for Christopher for fourteen months, since he was thirteen months old. During the latter half of this period, Christopher’s mother was permitted only strictly supervised visits with him because of concern over his safety. When the state decided to remove Christopher from foster care and place him with his maternal grandmother, the plaintiff became concerned for Christopher’s safety because his mother would have unsupervised access to him while the grandmother was at work. The plaintiff has demonstrated a concern for Christopher’s well-being and rights that entitles her, as a matter of law, to speak for him on the legal issue before us.

On the merits, I agree with the Appellate Court's well reasoned opinion that the failure of § 17-37-4 (c) to provide for notice and an opportunity to be heard prior to the removal of the child from the foster home violated the child’s due process rights. The Appellate Court pointed out the importance of this issue, as follows: “Once a child has been in the foster home for one year or more; see Regs., Conn. State Agencies § 17-37-4 (a) (1); the relationship between child and foster parent has developed to the point where such a process can be meaningful. The foster parents, who have had daily contact with the child, have, at this point, become significant figures in the child’s life. The child’s removal from the foster home is clearly a critical stage in the commitment and a decision not to be undertaken by the agency without careful deliberation. By this time, the foster parents may have gained significant insights into the child and be in a unique position to offer information about the child or the proposed placement that will assist [the department of children and families] in its decision making. Their voices must be heard.” Orsi v. Senatore, 31 Conn. App. 400, 438, 626 A.2d 750 (1993).

I also agree with the Appellate Court that, as a practical matter, this right to notice and, if necessary, a hearing will not greatly burden the state or interfere with the rights of the natural parents. Id., 438. Not every back-to-family removal will entail a hearing. Indeed, in most cases in which a foster parent disputes that such a removal is in the best interests of the child, the issues could probably be resolved by an informal conference between the interested parties.

Accordingly, I would affirm the Appellate Court’s judgment.

       Denise Orsi brought this action in her individual capacity and as the next friend of Christopher C. In this opinion-we will refer to Orsi as the plaintiff.

       The department of children and youth services is now the department of children and families.

       We granted certification limited to the following questions: (1) “Does a foster parent have standing to make the legal claims of a foster child in [his or] her care?”; and (2) “Does the failure to provide a pre-removal administrative hearing procedure to foster parents in back-to-family placements violate the foster child’s constitutional rights?” Orsi v. Senatore, 228 Conn. 908, 635 A.2d 1228 (1993).

       The facts and procedural history are set forth in detail in the decision of the Appellate Court. Orsi v. Senatore, supra, 31 Conn. App. 402-11.

       General Statutes § 46b-129 (d) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the commissioner of children and youth services for a maximum period of eighteen months, unless such period is extended in accordance with the provisions of subsection (e) of this section, provided such commitment or any extension thereof may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person found to be suitable and worthy of such responsibility by the court. The commissioner shall be the guardian of such child or youth for the duration of the commitment . . . and in like manner, upon such vesting of his care, such other public or private agency or individual shall be the guardian of such child or youth . . . .”

       General Statutes § 52-466 (i) provides: “A foster parent or an approved adoptive parent shall have standing to make application for a writ of habeas corpus regarding the custody of a child currently or recently in his care for a continuous period of not less than ninety days in the case of a child under three years of age at the time of such application and not less than one hundred and eighty days in the case of any other child.”

       Section 17-37-4 of the Regulations of Connecticut State Agencies provides in relevant part: “(a) right to a removal hearing. (1) An approved or licensed foster parent may request a Removal Hearing if the child has been in continuous placement in the foster home for one year or more. Exception: The one year requirement shall not apply in cases where the foster parent is a relative. (2) Except in cases of imminent danger, the department shall notify the foster parent in writing at least 10 days before removal of its decision to remove the child from the foster home and of the foster parent’s right to a removal hearing if he or she disagrees with the plan. . . .
      “(c) DENIAL OF a request for a removal hearing. A Removal Hearing will be denied by the hearings unit when (1) The child is being placed directly with the parent, parents, legal guardian, or other relative. . . .”

       The trial court concluded that the plaintiffs only recourse to challenge Christopher’s removal and placement was a writ of habeas corpus under General Statutes § 52-466 (f). Because the court determined that the plaintiff did not have standing as a matter of law to bring an action on Christopher’s behalf, it did not conduct an evidentiary hearing on the defendant’s motion to strike.

       Christopher was thereupon returned to the care of the grandmother. He has remained committed, however, to the custody of the defendant.

       The plaintiff has not appealed from the denial of her application for a writ of habeas corpus, so neither the propriety of Christopher’s placement with the grandmother nor the need for a preremoval hearing is any longer at issue. We agree with the Appellate Court, however, that the claim that it violates Christopher’s constitutional rights to remove him from foster parents and return him to his biological family without a preremoval hearing in which his foster parents could participate falls under the “capable of repetition but evading review” exception to the mootness doctrine. Orsi v. Senatore, supra, 31 Conn. App. 423-26. Although generally “ ‘it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow’ "; Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); appellate review may be appropriate “where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Id., 572. “In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future.” (Internal quotation marks omitted.) Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991).
      All of these mitigating factors are present in this case. The plaintiff’s challenge to the constitutionality of the regulations pursuant to which the department removes a foster child from foster care and places that child with a family member raises an important public issue. Our resolution of that issue necessarily will have a significant effect on the procedures followed by the department in returning foster children to their biological families. Finally, as the Appellate Court concluded, “[Christopher] is still committed to the custody of [the department], which has complete control over his placement. In the event his grandmother becomes unable or unwilling to care for him, [the department] may place him with another foster family and then with another family member without affording any pre-removal notice or hearing. Under the circumstances, we cannot conclude that there is no ‘possibility of a similar effect on [Christopher] himself in the future.’ Perry v. Perry, [222 Conn. 799, 803, 611 A.2d 400 (1992)] .... [B]ecause [the department] has complete control over Christopher’s placement, it is also possible that any contested placement would terminate before issues related to it could be fully litigated.” Orsi v. Senatore, supra, 31 Conn. App. 426. We conclude, therefore, that this appeal is not moot.

       The Appellate Court did not consider the plaintiffs state constitutional claim because the plaintiff had failed to provide an independent analysis under the state constitution. Orsi v. Senatore, supra, 31 Conn. App. 427 n.19.

       The Appellate Court also concluded that “when a foster child reaches the critical stage at which [the department] plans to remove the child from a foster home in which he or she has resided for one year or longer, the child’s counsel and guardian ad litem must have some notice of that plan before it is carried out.” Orsi v. Senatore, supra, 31 Conn. App. 438-39.

       We disagree with the defendant that our decision in Nye v. Marcus, 198 Conn. 138, 502 A.2d 869 (1985), forecloses the possibility that a foster parent may bring an action on behalf of his or her foster child. In Nye, a case decided before the legislature adopted General Statutes § 52-466 (f), foster parents who were seeking to adopt their foster child filed an application for a writ of habeas corpus to challenge the decision of the department of children and youth services, the foster child’s guardian, to name another couple as the child’s adoptive parents. Reasoning that the foster parent’s interests might well conflict with the best interests of the child, we held that the foster parents were “not an appropriate neutral party” to assert either their own interest in the maintenance of their family relationship with the foster child or the child’s interest in remaining in their foster home. Id., 145. Our holding in Nye, however, should not be read as determining that, when foster children are to be removed from the foster home, foster parents always lack standing to assert the children’s rights. In this case, the plaintiff has asserted that Christopher has a constitutional interest in not being returned to his biological relatives without affording his foster parents a preremoval hearing. As in Nye, the plaintiff may, however, not be an appropriate person to raise such a claim on Christopher’s behalf, because her desire to have a preremoval hearing may conflict with Christopher’s best interests. Nonetheless, the trial court must afford the plaintiff an opportunity to demonstrate that she is an appropriate person to raise Christopher’s potential claim, and that, notwithstanding the appointment of both a guardian and a guardian ad litem for Christopher, exceptional circumstances exist to warrant the foster parent’s representation of the foster child as next friend.

       The Appellate Court relied on Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 257, for its determination that exceptional circumstances existed to warrrant the filing of the declaratory judgment action by the plaintiff as Christopher’s next friend. In Cottrell, we concluded that exceptional circumstances existed to warrant an action by the plaintiff’s next friend when both the guardian ad litem and the conservator of the plaintiff, who had been adjudged incompetent, refused to take an appeal from the Probate Court’s account of the administration of the plaintiff’s deceased mother’s estate, notwithstanding the plaintiff’s request that an appeal be taken. We held that when “those appointed to protect the interest of an incompetent fail to appeal from a decision in which the incompetent has a real interest, an action may be brought by a next friend in order that a court may review the substantive issues involved.” Id., 265. Our holding in Cottrell, however, should not be read as determining that when a ward’s court-appointed guardian decides not to bring a claim or pursue an appeal, any person may appear as the ward’s next friend to litigate the issue. Before a person may appear as next friend, the trial court must determine that the person is appropriate to represent the interests of the ward, and that exceptional circumstances exist to warrant the representation.