author: Hull, J.

text:
    City of Norwich et al. v. Housing Authority of the Town of Norwich et al.
    (13922)
    Peters, C. J., Shea, Glass, Hull and Borden, Js.
    Argued May 31—
    decision released August 7, 1990

      Hugh I. Manke, with whom were Charles C. Whitty and, on the brief, Michael Blanchard, for the appellants (named defendant et al.).

      Leeland J. Cole-Chu, with whom was Marc S. Man-dell, assistant corporation counsel, for the appellees (plaintiffs).
   Hull, J.

The dispositive issue in this appeal is whether the city of Norwich has the power to abolish the housing authority of the town of Norwich (town housing authority) and the housing authority of the city of Norwich (city housing authority), created pursuant to the predecessor of General Statutes § 8-40, and then to transfer the assets and liabilities of those agencies to a newly created Norwich Housing Authority. The plaintiffs, the city of Norwich and Norwich Housing Authority, brought a declaratory judgment action against the defendants, the town housing authority, the city housing authority and their respective members and the state department of housing, seeking a determination of the propriety of the city of Norwich’s actions. The trial court concluded that the city had the power it sought to exercise. From the judgment rendered in favor of the plaintiffs, the defendants appealed to the Appellate Court; we subsequently transferred the case to ourselves pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The underlying facts, as set forth in the trial court’s memorandum of decision, are undisputed. During the 1940s, two separate housing authorities were created pursuant to the statutory predecessor of § 8-40 to serve respectively the town of Norwich and the city of Norwich, then distinct political entities. In 1951, the city of Norwich and the town of Norwich were duly consolidated, after which consolidation the town housing authority and the city housing authority continued their separate existence, including separate executive, maintenance, bookkeeping and other staff.

The department of housing, a state agency, has contractual relations with both the town housing authority and the city housing authority and oversees their administration of certain state housing programs. Both authorities administer the state elderly and moderate income rental housing programs. The town housing authority additionally administers certain federal programs. The housing programs of the two authorities relate to housing units within the geographical bounds of the city of Norwich. Likewise, all real and personal property in which the authorities have interests is located within the geographical bounds of the city of Norwich.

On October 3,1988, in compliance with the provisions of the charter of the city of Norwich, the Norwich city council adopted ordinance 1155, providing in relevant part for the following: (1) the establishment of a new unified housing authority, known as the Norwich Housing Authority; (2) the assignment of all existing rights, duties, assets, obligations, contracts and liabilities of the town and city housing authorities to the Norwich Housing Authority, effective immediately; and (3) the abolition of the town and city housing authorities effective December 31,1988. On October 17,1988, the Norwich city council enacted a resolution, declaring the need for a housing authority in the city of Norwich. The Norwich Housing Authority is the entity referred to by that name in ordinance 1155 and in the October 17, 1988 resolution.

The town housing authority and the city housing authority, on the advice of their respective counsel, have not recognized as legally valid the ordinance or resolution and have continued to operate as they did prior to the enactment of the ordinance and resolution. The Connecticut legislature has parsed no special or public act consolidating or abolishing either the town housing authority or the city housing authority.

The plaintiffs claimed at trial that the provisions of the general statutes that create and empower housing authorities demonstrate that the housing authorities were intended by the legislature to be local public bodies. They also claimed that Norwich was empowered by its charter to consolidate the local public bodies. Accordingly, the plaintiffs argued, the defendant housing authorities are the subject of local legislation and subject to consolidation by the city. The defendants countered with the argument that since the housing authorities were created by state statute, any creation, consolidation or abolishment of the authorities can be accomplished only by an act of the legislature.

The trial court’s analysis of several state statutes and the Norwich charter provided the basis for its conclusion that the city had not acted beyond the scope of its authority. First, the court referred to General Statutes § 8-40 that states in relevant part: “In each municipality of the state there is created a public body corporate and politic to be known as the ‘housing authority’ of the municipality; provided such authority shall not transact any business or exercise its powers hereunder until the governing body of the municipality by resolution declares that there is need for a housing authority in the municipality . . . . ” Relying on this language, the court determined that the legislature had delegated the power to each municipality to establish a housing authority in the event that the municipality determined a need for such an entity.

The court then turned to General Statutes § 7-193 (b), a provision enacted as part of the Home Rule Act, that provides in relevant part: “Every municipality shall have all municipal officers, departments, boards, commissions and agencies which are required by the general statutes or by the charter. Each municipality may have any . . . departments, boards, commissions and agencies which are specifically allowed by the general statutes or which are necessary to carry out any municipal powers, duties or responsibilities under the general statutes. All such . . . departments, boards, commissions and agencies shall be . . . organized in the manner provided by the general statutes, except as otherwise provided by the charter or by ordinances or resolutions adopted pursuant to such charter. Any municipality may, by charter or by ordinances or resolutions adopted pursuant to such charter, alter the method of . . . organization of any or all of such . . . departments, boards, commissions or agencies, including combining or separating the duties of each, unless specifically prohibited from making such alteration by the constitution or the general statutes.”

In the trial court’s view, § 7-193 (b) and the other provisions of the Home Rule Act indicate the legislature’s intent “that issues of local concern are most logically answered locally, pursuant to a home rule charter . . . .” Caulfield v. Noble, 178 Conn. 81, 86, 420 A.2d 1160 (1979). In this regard, the court stated that it would not apply a strict construction to the home rule legislation, because to do so would stifle local initiative and, “if carried to an extreme, would cripple home rule.” The court then concluded that a housing authority is a local concern as indicated in the statutes pertaining to the establishment and operation of the housing authorities. See General Statutes § 8-39 (providing for the housing authorities’ area of operation); General Statutes §§ 8-41 and 8-43 (conferring on the chief executive officer of the municipality the power to appoint and remove housing authority commissioners); General Statutes § 8-44b (providing for municipal appointment, review, promotion and supervision of the housing authority police force); General Statutes § 8-51 (subjecting the housing authority to local planning, zoning, sanitary and building laws); General Statutes § 8-63 (requiring the housing authority to submit annual reports to the municipality).

The court noted that the Norwich charter reveals that the city possesses the following authority: certain enumerated powers in addition to all powers granted under the constitution and statutes; the powers fairly implied or incidental to powers expressly granted and other powers incident to the management of the property, government and affairs of the city the exercise of which is not expressly forbidden by the constitution and statutes; and the power to provide by ordinance for the creation of additional divisions, offices and agencies, and for their alteration, and for their assignment and reassignment of departments. The court then concluded that it could find no authority prohibiting Norwich from making the alteration of agencies that it had undertaken.

The court also noted the language of § 8-40 providing that “[i]n each municipality of the state there is created a public body corporate and politic to be known as the ‘housing authority’ of the municipality . . . .” (Emphasis added.) On the basis of this provision, the court determined that the single municipality of Norwich should have only one housing authority. The trial court, accordingly, rendered judgment in favor of the plaintiffs.

We review the trial court’s construction of the various statutes here involved “in light of well established principles that require us to ascertain and give effect to the apparent intent of the legislature. Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981); 2A Sutherland, Statutory Construction (4th Ed. 1984) § 45.05. When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are confronted, however, with ambiguity in a statute, we seek to ascertain the actual intent by looking to the words of the statute itself; State v. Kozlowski, supra, 673; Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); the legislative history and circumstances surrounding the enactment of the statute; State v. Kozlowski, supra, 673; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985); State v. Delafose, supra, 522; and the purpose the statute is to serve. Peck v. Jacquemin, 196 Conn. 53, 64, 491 A.2d 1043 (1985); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982); Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 8, 434 A.2d 293 (1980).” Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

The question presented in this case requires a much broader field of inquiry than is ordinarily undertaken. We must first determine, in the light of the lengthy historical and governmental background of the adoption of the Home Rule Act in 1957, whether to adopt an approach of strict construction of the home rule statutes, as amended through the years, or an expansive approach firmly rooted in their ameliorative provisions. Suffice it to say, if ever a statutory plan cried out for an expansive construetionf avoring local municipal authority over its own affairs, it is the Home Rule Act. Our path in reaching this conclusion is well lighted by our discussion in Caulfield v. Noble, supra, 85-87: “The purpose ... of Connecticut’s Home Rule Act is clearly twofold: to relieve the General Assembly of the burdensome task of handling and enacting special legislation of local municipal concern and to enable a municipality to draft and adopt a home rule charter or ordinance which shall constitute the organic law of the city, superseding its existing charter and any inconsistent special acts. General Statutes § 7-188; Sloane v. Waterbury, 150 Conn. 24, 26-27, 183 A.2d 839 (1962); State ex rel. Sloane v. Reidy, 152 Conn. 419, 209 A.2d 674 (1965); Shalvoy v. Curran, 393 F.2d 55, 59 (2d Cir. 1968); see Litchfield, ‘Municipal Home Rule— Connecticut’s Mature Approach,’ 37 Conn B.J. 390, 402 (1963); 56 Am. Jur. 2d, Municipal Corporations § 126; 62 C.J.S., Municipal Corporations § 124. The rationale of the act, simply stated, is that issues of local concern are most logically answered locally, pursuant to a home rule charter, exclusive of the provisions of the General Statutes. See Lockard, ‘Home Rule for Connecticut’s Municipalities,’ 29 Conn. B.J. 51, 54 (1955). Moreover, home rule legislation was enacted ‘to enable municipalities to conduct their own business and control their own affairs to the fullest possible extent in their own way . . . upon the principle that the municipality itself knew better what it wanted and needed than did the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs.’ Fragley v. Phelan, 126 Cal. 383, 387, 58 P. 923 (1899); accord 1 Antieau, Municipal Corporation Law, § 3.03; 1 McQuillin, Municipal Corporations (2d Ed.) § 93.” See also Windham First Taxing District v. Windham, 208 Conn. 543, 554-55, 546 A.2d 226 (1988).

The parties devoted much of their appellate briefs to the articulation of contrasting views as to the appropriate characterization to be given a housing authority, i.e., whether a housing authority is a local agency and thus subject to abolishment and consolidation by the municipality or a state agency and thus subject to abolishment and consolidation only by the General Assembly. Although we do not find this approach to the issue to be necessarily conclusive, these arguments, to which the trial court also adverted, require consideration and resolution as a prelude to our eventual conclusion that the authority of Norwich to abolish and consolidate the two housing authorities is found in the general statutes and the provisions of the Norwich charter. We paraphrase the parties’ arguments as raising the issue of whether a housing authority is so much a state agency that it can only be abolished by legislative action.

The defendants argue that Norwich did not have the power to act as it did in the face of state statutes creating the housing authorities. The argument of the defendants has two main thrusts. First, they stress that a housing authority is not a board, commission, agency or department of the municipality in which it is located, but is a separate corporation, organized and existing under the aegis of the state. They cite as authority for their claim our statement in Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 186, 544 A.2d 1185 (1988), that “ ‘[a] municipal authority created under a municipal authorities statute has been regarded as a corporate agency of the state and not a creature, agent or representative of the municipality organizing it.’ 1 E. McQuillin, supra, § 2.29a.” To the same effect is our statement in Austin v. Housing Authority, 143 Conn. 338, 349, 122 A.2d 399 (1956): “The housing authority is a distinct corporate entity. ... It is not an agency of the city . . . . ” In that case, involving the question of whether the plaintiff had standing to challenge the award by the housing authority of a contract for the purchase of insurance, we held that since the housing authority was not an agency of the city, any improper management by the authority could not in itself result in an increase of city taxes. That this principle is not set in concrete, however, is shown by the case of Housing Authority v. Dorsey, 164 Conn. 247, 251, 320 A.2d 820, cert. denied, 414 U.S. 1043, 94 S. Ct. 548, 38 L. Ed. 2d 335 (1973), where, in determining whether tenants in a housing authority project could serve as commissioners of that same agency, we stated in dictum that “[a] housing authority is a public corporation created by the municipality to exercise certain delegated sovereign powers pursuant to §§ 8-40 [through] 8-81 of the General Statutes.” (Emphasis added.)

The defendants continue their argument by stating the proposition that a housing authority differs from a municipal board, commission, agency or department. The defendants note that, among other powers enumerated in General Statutes § 8-44, a housing authority is authorized to: sue and be sued; make and execute contracts; amend and repeal by-laws, rules and regulations; acquire, lease and operate housing projects; arrange or contract for services; collect rents; own, improve, purchase, lease, transfer, assign or sell real and personal property; exercise the power of eminent domain; investigate, study and make recommendations for housing based on need; cooperate with any public body, including a municipality, to issue bonds, pledge future income and mortgage property; bond itself by a variety of covenants designed to protect the interest of the bondholder; and borrow money and accept grants or other financial assistance from federal and state governments. Further, the defendants point out, a housing authority is vested with certain state governmental privileges such as tax exemption. See General Statutes § 8-58.

The defendants then launch into the second aspect of their argument that deals directly with the local versus state agency question found in § 8-40. The defendants claim that § 8-40 is substantially different from an enabling act such as General Statutes §§8-1 and 8-la, statutes that authorize a municipality to create zoning and planning commissions. They claim that the language “there is created” in § 8-40 means that the state has “created” the housing authority. We conclude that this claim construes the Home Rule Act entirely too narrowly, an approach which we have previously declined to follow. We look to the following language of § 8-40 to demonstrate the sterility of this claim: “provided such authority shall not transact any business or exercise its powers hereunder until the governing body of the municipality by resolution declares that there is need for a housing authority in the municipality .... ” (Emphasis added.) Although § 8-40 contains the language “there is created,” the “creation” in § 8-40 is inchoate, a mere empty shell until the municipality acts. Whatever the form of its words, § 8-40 is actually an enabling act specifically requiring municipal action to “create” the housing authority. As we said in Madison v. Kimberley, 118 Conn. 6, 10, 169 A. 909 (1934), a case involving local zoning: “If a [zoning] commission is set up, it is the act of the town and not the legislature.”

We therefore conclude that § 8-40 does not stand for the proposition that, since the housing authorities were “created” by the state, only state action can abolish them. Housing authorities are hybrid organizations bearing many strong aspects of local authority and equally strong aspects of state authority. As the defendants acknowledge in their brief, “it is overly simplistic to characterize housing authorities in all respects as either state or local, because they have features of both . . . . ”

Since the local versus state authority dichotomy does not give a definite answer to the issue in this case, we now address the propriety of the city’s actions in light of certain general principles concerning the powers of municipalities, the legislative intent as found in the relevant General Statutes and the Norwich Charter.

“ ‘It is settled law that as a creation of the state, a municipality has no inherent powers of its own. City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976); New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449 (1965); State ex rel. Coe v. Fyler, 48 Conn. 145, 158 (1880). New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981). A municipality has only those powers that have been expressly granted to it by the state or that are necessary for it to discharge its duties and to carry out its objects and purposes. City Council v. Hall, supra, 248. See Pepin v. Danbury, supra. In determining whether the municipality had the authority to adopt [ordinance 1155], then, ‘we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.’ Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965).” Buonocore v. Branford, 192 Conn. 399, 401-402, 471 A.2d 961 (1984).

There is no question in this case that the city of Norwich and the town of Norwich were authorized under the predecessor of § 8-40 to create the city and town housing authorities. It has long been the law in this state that the power to create necessarily includes the power to abolish. Madison v. Kimberley, supra, raised the question of whether a municipality, having once created a zoning commission, had the power to rescind that action and abolish zoning. In upholding the municipality’s action, we stated: “The present case is governed by the familiar principle that the grant of power to enact ordinances ordinarily implies the power to repeal them. Terrett v. Sharon, 34 Conn. 105, 108 [1867]; State ex rel. Reiley v. Chatfield, 71 Conn. 104, 112, 40 Atl. 922 [1898]; State ex rel. McDermott v. Wilkinson, 88 Conn. 300, 90 Atl. 929 [1914] .... We cannot read into the statute empowering towns to appoint a zoning commission . . . any expression of intention upon the part of the legislature that a town having once exercised the power could not thereafter rescind its action. The language of the statute shows clearly that the legislature intended it to be optional with a town whether or not it shall have a zoning system. If the power is exercised and commissioners appointed, the town, as it has the option to adopt such a system, may thereafter terminate it in like manner.” (Citations omitted.) Madison v. Kimberley, supra, 11. Norwich, therefore, had the power to abolish the existing housing authorities, and thereafter, pursuant to § 8-40, had the power to establish a Norwich Housing Authority and, by implication, to assign to it the facilities and operations of the recently abolished authorities.

We find further support for this conclusion in General Statutes § 7-193 (b) that provides in pertinent part: “Each municipality may have any municipal officers, departments, boards, commissions and agencies which are specifically allowed by the general statutes or which are necessary to carry out any municipal powers, duties or responsibilities under the general statutes. All such officers, departments, boards, commissions and agencies shall be elected, appointed and organized in the manner provided by the general statutes, except as otherwise provided by the charter or by ordinances or resolutions adopted pursuant to such charter. Any municipality may, by charter or by ordinances or resolutions adopted pursuant to such charter, alter the method of election, appointment or organization of any or all of such officers, departments, boards, commissions or agencies, including combining or separating the duties of each, unless specifically prohibited from making such alteration by the constitution or the general statutes.” (Emphasis added.) As the trial court concluded, no constitutional or statutory provision prohibits the alteration of agencies undertaken by Norwich. The last sentence of the above quoted language, therefore, specifically and unequivocably authorizes the adoption of ordinance 1155.

We need now determine only whether the adoption of the ordinance was within the scope of the city authority as set forth in its city charter. “The town charter, whether adopted by special act of the General Assembly or . . . under the Home Rule Act . . . constitutes the organic law of the municipality. Caulfield v. Noble, [supra, 86]; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 (1964). ‘It is well established that a [town’s] charter is the fountainhead of municipal powers. State ex rel. Raslavsky v. Bonvouloir, 167 Conn. 357, 362, 355 A.2d 275 (1974). The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. Food, Beverage & Express Drivers Local Union v. Shelton, 147 Conn. 401, 405, 161 A.2d 587 (1960); Thomson v. New Haven, 100 Conn. 604, 606, 124 A. 247 (1924); State ex rel. Southey v. Lashar, 71 Conn. 540, 545-46, 42 A. 636 (1899). Peretta v. New Britain, 185 Conn. 88, 92, 440 A.2d 823 (1981).” West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 742, 462 A.2d 379 (1983); Windham First Taxing District v. Windham, supra, 556.

The Norwich Charter, 1951 Special Acts, No. 573; 26 Spec. Laws 459, No. 573; provides in relevant part as follows: “The city shall have the following specific powers in addition to all powers granted to towns and cities under the constitution and general statutes of the state of Connecticut, such powers to be exercised by the city through the enactment and enforcement of ordinances, by-laws or otherwise ....

“The enumeration of particular powers [herein] shall not be construed as limiting this general grant of power but shall be considered as in addition thereto. The city of Norwich shall have not only the powers specifically granted by this chapter but all powers fairly implied in or incident to the powers expressly granted, and all other powers incident to the management of the property, government and affairs of the city the exercise of which is not expressly forbidden by the constitution and general statutes of the state of Connecticut.
* * *
“The council shall have the power to provide by ordinance not inconsistent with the provisions of this charter for the exercise of all powers provided for [herein] and . . . for the creation of additional divisions, offices and agencies, for their alteration or abolition, for their assignment and reassignment to departments ....
* * *
“All ordinances of the city and town of Norwich . . . in force at the effective date of this charter and not inconsistent herewith, shall remain in force until amended, repealed or superceded as herein provided . . . .” (Emphasis added.)

We conclude that the general statutes and the Norwich charter authorize the city of Norwich to abolish the town and city housing authorities and consolidate their operations in the Norwich Housing Authority.

The judgment is affirmed.

In this opinion the other justices concurred.

       We rely in this opinion on the language of General Statutes § 8-40, however, as did the trial court and the parties, because the variations in language between § 8-40 and its predecessor are immaterial for our purposes.

       The state department of housing is not a party to this appeal.

       The defendant town housing authority filed a motion to dismiss this appeal on the ground that the trial court lacked jurisdiction to hear the action. We have considered this motion and, without further comment, find the ground therein to be insubstantial. Accordingly, the motion is denied.

       Janice Griffith’s article, “Connecticut’s Home Rule: The Judicial Resolution of State and Local Conflicts,” at 4 University of Bridgeport Law Review 177 (1983), cited by the trial court, contains a comprehensive analysis of the background and development of home rule legislation in Connecticut.

       The plaintiffs brief a second issue: “Should the trial court’s judgment be affirmed on the alternate ground that ample powers have been granted by the General Assembly to the City of Norwich to consolidate the affairs of the defendant housing authorities and to abolish the defendant housing authorities and, therefore, article tenth, section 1, of the Connecticut Constitution prohibits the General Assembly from enacting special legislation to effect such consolidation or abolition?” In view of our disposition of the case, we do not reach this issue.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Statewide Grievance Committee v. Daniel V. Presnick
    (13790)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 5—
    decision released August 7, 1990

      Daniel V. Presnick, pro se, the appellant (defendant).

      Seymour N. Weinstein, for the appellee (plaintiff).
   Covello, J.

This is an appeal by the defendant, Daniel V. Presnick, an attorney at law, from a judgment of the Superior Court that suspended him from the practice of law for two years. The principal issues are: (1) whether grievance panels, reviewing committees and the statewide grievance committee function as an unconstitutionally created court in violation of article fifth, § 1 of the Connecticut constitution; (2) whether the defendant was denied due process in violation of the fourteenth amendment to the United States constitution and article first, § 10 of the Connecticut constitution; (3) whether clear and convincing evidence is the appropriate standard of proof in attorney disciplinary proceedings; (4) whether the defendant could be suspended from the practice of law absent a finding that he possessed a corrupt motive or evil intent; (5) whether, on remand, the trial court abused its discretion or engaged injudicial vindictiveness when it suspended the defendant from the practice of law for two years, where the term of suspension imposed upon the defendant in the first presentment proceeding was ninety days; (6) whether the evidence supported a finding that the defendant misappropriated his client’s funds; and (7) whether the trial court should have dismissed the presentment. We affirm the judgment of the trial court.

Examination of the record discloses that on August 11, 1987, the plaintiff filed a presentment of attorney misconduct against the defendant alleging that he had committed two acts of misconduct involving his character, integrity and professional standing and conduct. On September 8, 1987, the trial court, Downey, J., conducted an evidentiary hearing concerning these allegations. The trial court concluded that the defendant had violated the Code of Professional Responsibility (code) as to both allegations of misconduct and rendered judgment suspending the defendant from the practice of law for ninety days.

The defendant appealed to the Appellate Court. In Statewide Grievance Committee v. Presnick, 18 Conn. App. 475, 559 A.2d 227 (1989), the Appellate Court set aside the judgment of the trial court and ordered a new trial on the ground that the proper standard of proof to use in determining whether an attorney had violated the code is the “clear and convincing” evidence standard, rather than the “fair preponderance” standard used by the trial court.

Upon remand, following a second hearing, the trial court, Fracasse, J., concluded that, as to the first allegation of misconduct, the defendant had violated DR 1-102 (A) (1) and (4), and DR 9-102 (A) and (B) of the code. The trial court rendered judgment suspending the defendant from the practice of law for two years. As to the second allegation of misconduct, the trial court concluded that the defendant had violated DR 2-101 (A) through (D) of the code. The trial court rendered judgment reprimanding the defendant and ordered the return of a $75 legal fee collected on the basis of misleading advertising. The defendant appealed both sanctions to the Appellate Court. We thereafter transferred the appeal to ourselves pursuant to Practice Book § 4023.

The majority of the issues raised by the defendant have been disposed of in Statewide Grievance Committee v. Presnick, 215 Conn. 162, 575 A.2d 210 (1990) (Presnick I). The issues remaining are whether: (1) the trial court abused its discretion when it suspended the defendant for two years when the term of suspension imposed upon the defendant in the first presentment proceeding was ninety days; (2) imposing the increased period of suspension after the rehearing of a matter that the defendant had successfully appealed constituted judicial vindictiveness in violation of the principles articulated in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2204, 104 L. Ed. 2d 865 (1989); (3) the evidence supported the trial court’s finding; and (4) the trial court should have dismissed the presentment.

The defendant first claims that the trial court abused its discretion when it suspended him for two years. In the context of attorney disciplinary proceedings, we have observed that “[t]he trial court upon such a complaint is not engaged in the trial of an ordinary action but is investigating the conduct of an officer of the court to the end that the courts and the public may be protected from his misconduct or unfitness. ‘Into its determination there naturally and necessarily enters a large measure of judicial discretion.’ It ‘is not an absolute, but a reasonable’ discretion which the court exercises.” Grievance Committee v. Broder, 112 Conn. 263, 266, 152 A. 292 (1930).

“The fact that the court exercises a large measure of discretion and is in a position to most intelligently exercise it, furnishes no obstacle to a review to ascertain not only whether a reasonable discretion was used, but also whether the proceedings were regular and fair. . . .

“It does not follow, however, that the review which the court will make is one which will be permitted to take as wide a range, or assume the same character, as where the judicial action sought to be reviewed concerns the rights of parties as between themselves. . . . [A]n attorney whose fitness is challenged before the authority to which he owes and is responsible for the privileges he enjoys, has a right to an opportunity to be heard, a fair and dispassionate investigation, and a reasonable exercise of the judicial discretion; but his relation 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.” In re Durant, 80 Conn. 140, 149-50, 67 A. 497 (1907).

The trial court found that the defendant had received ten child support payments totaling $730 on behalf of his client. When queried by the client, he specifically told her that he had not received any support payments from her former husband. He never disclosed that he had received the payments and applied them toward his outstanding legal charges. On appeal, the defendant has not claimed that any of the trial court’s predicate findings are unsupported by the evidence nor does our examination of the record disclose this to be the case. In light of such conduct, it does not “clearly appear that [the defendant’s] rights have in some substantial way been denied him” and we find, therefore, no abuse of the trial court’s discretion.

The defendant next argues that the trial court engaged injudicial vindictiveness when, upon remand and following a rehearing of the identical allegations, it imposed a two year suspension that far exceeded the ninety day suspension imposed in the first proceeding. The gravamen of such a claim is that the trial court had retaliatory motives when it imposed the two year suspension and was, in effect, punishing the defendant for having successfully challenged his first suspension on appeal. We do not agree.

In North Carolina v. Pearce, supra, 725-26, the United States Supreme Court concluded that “[d]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.”

Although the United States Supreme Court has subsequently reexamined and qualified the Pearce doctrine, it is sufficient for present purposes to observe that the trial court, in imposing the harsher sanction, did exactly what Pearce required. The trial court stated: “Effective July 28,1989 [18 months after the first sanction was imposed], respondent was suspended from the practice of law for a period of one year. ... In said proceeding, the court found respondent in violation of Canon 5 and DR 5-104 (A) and DR 1-102 (A) (4). Respondent has now been found to have, for the second time, violated DR 1-102 (A) (4) by engaging in conduct which is deceitful. Accordingly . . . respondent is suspended from the practice of law for the period of two years.” Thus it is clear that the harsher sanction was not motivated by vindictiveness but rather by the fact that the respondent had, in the interim, been found for a second time to have “engag[ed] in conduct [that was] deceitful.” We conclude that the claim of judicial vindictiveness is totally without merit.

We have examined the defendant’s remaining claims and conclude that the factual findings placed in issue are supported by clear and convincing evidence and that the'trial court correctly applied the applicable law to the facts so found.

The judgment is affirmed.

In this opinion the other justices concurred.

       The Code of Professional Responsibility applies to attorney conduct that occurred, as in this case, before October 1, 1986, at which time it was replaced by the Rules of Professional Conduct.

       The Code of Professional Responsibility provides in part: “DR 1-102 misconduct. (A) A lawyer shall not: (1) Violate a Disciplinary Rule. . . . (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. . . .”

       The Code of Professional Responsibility provides in part “DR 9-102 PRESERVING IDENTITY OF FUNDS AND PROPERTY OF A CLIENT. (A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated at a financial institution authorized to do business in such state, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      “(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
      “(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      “(B) A lawyer shall:
      “(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      “(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      “(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      “(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive . . . .”
      The trial court specifically found that the defendant had wrongfully applied child support payments received in behalf of a client to that client’s outstanding bill for legal services rendered.

       The Code of Professional Responsibility provides in part: “publicity in GENERAL. (A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use, or participate in the use of, any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim, nor shall any such communication be in an extravagant format. . . .
      “(B) ... [A] lawyer may publish ....
      “(15) Fee for an initial consultation. . . .
      “(C) When a lawyer publishes a fee for a service and thereafter renders the service, it must be rendered for no more than the fee advertised.
      “(D) Unless otherwise specified in the publication, if the lawyer publishes any fee information authorized under DR 2-101 (B), the lawyer shall be bound by any representation made therein for the following periods . . . .
      “(2) If published in newspapers and periodicals that are published once a month or less frequently, for the period until the next publication. ...”
      The trial court specifically found that the defendant had engaged in misleading and deceptive advertising by representing that the initial client consultation was free when in fact it was only the telephone call to the defendant’s office and the discussion therein involved that was free, and that the defendant billed the face to face consultation that followed at the rate of $25 for each 15 minutes.

       “See, e.g., Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court’s findings overcame presumption); Wasman v. United States, 468 U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (presumption of vindictiveness applies since petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing and sentencing after retrial rebuts presumption); United States v. Goodwin, 457 U.S. 368, 372-84, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (pretrial decision by prosecutor to modify charges does not warrant presumption of prosecutorial vindictiveness in pretrial setting); Bordenkircher v. Hayes, 434 U.S. 357, 362-64, 98 S. Ct. 663, 54 L. Ed. 2d 604, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978) (prosecutor’s action in carrying through on statement made during plea negotiations to bring additional charges against defendant if he refused to plead guilty to offense originally charged did not violate due process clause); Blackledge v. Perry, 417 U.S. 21, 25-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (prosecutor may not bring more serious charge against defendant prior to trial de novo in response to defendant’s exercise of statutory right to appeal); Chaffin v. Stynchcombe, 412 U.S. 17, 24-28, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (where resenteneing oecurs before a jury, potential for abuse in sentencing is minimal; Pearce does not apply); Colten v. Kentucky, 407 U.S. 104, 112-20, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (prophylactic rule announced in Pearce not appropriate in context of two-tier system which allowed for trial de novo in court of general criminal jurisdiction following trial or guilty plea in an inferior court; likelihood of vindictiveness not present).” State v. Taylor, 207 Conn. 109, 114-15, 540 A.2d 64 (1988).

       We are unable to find any authority, and the defendant does not suggest any to us, in support of the proposition that the trial court cannot issue an order suspending an attorney from the practice of law in the absence of a finding that the attorney possessed a corrupt motive or an evil intent. We conclude, therefore, that the suspension of an attorney requires no such finding.


text:
    Statewide Grievance Committee v. Daniel V. Presnick
    (13846)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 5—
    decision released August 7, 1990

      Daniel V. Presnick, pro se, the appellant (defendant).

      Elizabeth F. Collins, assistant bar counsel, for the appellee (plaintiff).
   Covello, J.

This is an appeal by the defendant, Daniel V. Presnick, an attorney at law, from a judgment of the Superior Court that disbarred him from the practice of law. The principal issues are: (1) whether the statewide grievance committee functions as an unconstitutionally created court in violation of article fifth, § 1 of the Connecticut constitution; (2) whether the court mistakenly ordered a suspension without finding that the defendant had acted out of a corrupt motive or evil intent; (3) whether the court mistakenly imposed a sanction in excess of that ordered by the Appellate Court; (4) whether the court mistakenly denied a motion to dismiss for improper service of process; (5) whether the judge should have disqualified himself because he had issued orders previously appealed by the defendant; (6) whether the court should have granted the defendant’s motion to strike claims concerning an adoption case which had been the subject of a previous presentment action; (7) whether the court should not have disbarred the defendant; and (8) whether the court should have dismissed this action because the defendant was entitled to a hearing on the question of subject matter jurisdiction and an opportunity to comply prior to any sanctions.

The majority of the issues raised by the defendant have been addressed and disposed of in prior appeals. See Statewide Grievance Committee v. Presnick, 215 Conn. 162, 575 A.2d 210 (1990) (Presnick I); Statewide Grievance Committee v. Presnick, 216 Conn. 127, 577 A.2d 1054 (1990) (Presnick II). The only issue remaining is the question of whether the defendant’s disbarment was improperly based, in part, on issues that had been the subject of an earlier proceeding. We conclude that this is the case and reverse the decision of the trial court and remand the matter for further proceedings.

The defendant argues that the resolution in his favor of allegations that he mishandled an adoption matter in Presnick I, precludes relitigation of this issue here in Presnick III. The record discloses that on January 5, 1989, the plaintiff filed a presentment of attorney misconduct, Presnick I, alleging, inter alia, that the defendant had failed to obtain an adoption for Kathy Jean Carney after she had engaged him to do so. At the presentment hearing, the defendant argued that he had failed to obtain the adoption because of extensive delays caused by the acts of third parties and the resultant need for significant replication of effort. On March 7, 1989, the trial court concluded that the defendant had violated the Rules of Professional Conduct and ordered his suspension from the practice of law for one year. The trial court, however, specifically concluded that although “[t]he adoption was not completed . . . the Committee did not establish clear and convincing proof that this was due to any action or inaction of Mr. Presnick.”

On July 7, 1989, the plaintiff filed another presentment of attorney misconduct, Presnick III, alleging, inter alia, that the defendant had been guilty of violating other rules of professional conduct in his handling of the same adoption matter. The plaintiff in Presnick III specifically alleged that the defendant had failed to obtain a timely adoption and had failed to pursue the case diligently. On August 3, 1989, the defendant moved to strike these claims “for the reason that the court has already cleared the defendant of these allegations” in the prior hearing. The trial court denied the motion. At the presentment hearing, the defendant again argued that any delays were the result of the acts of third parties that caused him significant duplication of effort. On October 31, 1989, the trial court found that the defendant had “failed to proceed” and had “failed to act with reasonable diligence and promptness in proceeding with the adoption process.” For the violation of these and other Rides of Professional Conduct, the trial court ordered his disbarment. On appeal the defendant argues that the trial court should have struck those allegations relating to the adoption case on the basis of res judicata. We transferred the matter to this court pursuant to Practice Book § 4023.

A comparison of the two records adequately supports the defendant’s contention that the statewide grievance committee had the opportunity to, and did in fact, litigate fully the issue of delay, whether ascribable to the defendant or to others, in the earlier proceeding. This being the case, the trial court in the subsequent disciplinary hearing, Presnick III, should not have used the defendant’s conduct in connection with the Carney adoption as a basis for finding a separate and distinct violation of another section of the Rules, absent a showing that the new violation flowed from facts or circumstances not discovered or discoverable in the exercise of reasonable diligence in the course of the investigation of the first complaint. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made.” Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983); see also Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986).

Despite its sui generis character, we see no reason why a presentment should proceed in a piecemeal fashion and why basic concepts of res judicata are not equally applicable to presentment proceedings. “Res judicata, as a judicial doctrine . . . should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being ‘(1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose . . . . ’ ” State v. Ellis, 197 Conn. 436, 465-66, 497 A.2d 974 (1985).

Because the trial court based its sanction, in part, upon allegations that had been litigated in a prior presentment action, the judgment is reversed and the case is remanded to the trial court for reconsideration of the sanction, excluding the findings in connection with the adoption proceeding.

In this opinion the other justices concurred.

       The statewide grievance committee alleged that Presnick violated, inter alia, Rules 1.5,1.15 and 8.4 of the Rules of Professional Conduct by failing to inform his client of the basis of his fee, by charging an excessive fee, by engaging in fraud by signing a client’s check without consent and by failing to obtain the adoption. Statewide Grievance Committee v. Presnick, 215 Conn. 162, 164, 575 A.2d 210 (1990).

       Included in count II of the presentment are the claims that the defendant violated Rules 1.1,1.2,1.3,1.4, 3.2, 3.3 and 8.4 of the Rules of Professional Conduct by failing properly to communicate with his client, failing to keep his client informed, making false statements to a judge, failing to pursue diligently and competently an adoption proceeding and failing to abide by a court order.

       The defendant attempted to raise the issue of res judicata by way of a motion to strike. “[R]es judicata must be specially pleaded . . . .’’Practice Book § 164. Despite this procedural irregularity, the issue of res judicata was considered by the trial court and was briefed and argued before this court without objection by opposing counsel. “This court has often held that the failure to file a special defense may be treated as waived when no objection has been raised to the offer of evidence on the issue.” Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987).

       The trial court found that the defendant violated Rule 1.1 by failing to use the skill reasonably necessary to represent his client, Rule 1.2 by failing to abide by his client’s decisions, Rule 1.3 by failing to act diligently and promptly in obtaining the adoption, Rule 1.4 by failing to keep his client informed of the proceedings and failing to respond to his client’s requests, Rule 3.2 by failing to proceed with the adoption, Rule 3.3 by knowingly making false statements to a judge and Rule 8.4 by a course of conduct demonstrating dishonesty, deceit and engaging in conduct prejudicial to the administration of justice.

       It should be noted that under Practice Book § 27B (d) (1), a grievance panel has the power, “[o]n its own motion or on complaint of any person, [to] inquire into and investigate offenses whether or not occurring in the actual presence of the court . . . .” Thus the committee has the power to investigate matters on its own even if they have not been raised directly by the complaint of an aggrieved client.


author: Glass, J.

text:
    State of Connecticut v. Scott William Forrest
    (13688)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.

      Argued June 6—
    decision released August 7, 1990

      Bruce A. Sturman, public defender, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom was Marcia A. Pillsbury, assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Scott Forrest, has appealed from his judgment of conviction by a jury of the crime of murder in violation of General Statutes § 53a-54a, for which the trial court sentenced him to a term of life imprisonment. On appeal, the defendant raises the sole issue of whether the trial court should not have overruled his objections to the so-called “policeman at the elbow” questions that the state asked his expert witness on cross-examination. He claims that these questions elicited opinions from the expert regarding ultimate issues of fact reserved for the jury, in violation of General Statutes § 54-86Í, as well as in contravention of the trial court’s prior ruling on the state’s motion in limine. We affirm the judgment of the trial court.

The murder charge against the defendant arose from his admitted shooting of Sheila Ann Kelly, his former girlfriend. In November, 1987, Kelly purportedly attempted to terminate her relationship with the defendant, who had a history of psychological problems, including a suicide attempt. Kelly nonetheless attended a Christmas party with the defendant on December 4, 1987. After the party, the defendant and Kelly went to his grandparents’ house, where the defendant then lived, and engaged in sexual intercourse in the defendant’s room. Kelly thereafter told the defendant not to believe that they would get back together just because they had sexual relations that night. When the defendant was driving Kelly home, he became angry, stopped his car in a secluded area, and removed a rifle from the trunk of the car, allegedly intending to commit suicide. He then went to the front of the car and shot Kelly in the head three times.

The principal issue at trial was whether the defendant specifically intended to kill Kelly as alleged by the state, or rather killed Kelly while under the influence of extreme emotional disturbance as the defendant claimed in an affirmative defense pursuant to § 53a-54a. Prior to the presentation of the defendant’s case, the state filed a motion in limine requesting a ruling that the defense experts be prohibited, under § 54-86Í, from expressing “an opinion or inference as to whether the defendant was under the influence of an extreme emotional disturbance at the time of the acts alleged in the information.” After defense counsel agreed with the trial court’s statement that § 54-86Í prevented the parties from seeking an “opinion or inference as to whether the defendant was under the influence of an extreme emotional disturbance at the time of the alleged act,” the trial court granted the state’s motion in limine.

Subsequently, the defendant called an expert witness, Kenneth Selig, a psychiatrist, to testify as to his diagnosis of the defendant’s mental condition. Without objection by the state, defense counsel asked Selig if he had an opinion whether at the time of the shooting the defendant suffered “from a mental disease or defect that would rise to the level of insanity under our [pjenal [c]ode,” to which Selig answered that in his opinion the defendant did not. The state then requested that the jury be excused, and expressed its concern to the trial court that the defense would next ask Selig, in violation of § 54-86Í, whether the defendant had a mental disease or defect that rose to the level of extreme emotional disturbance. The state argued that Selig might “respond . . . by saying [the defendant] lost control .... Now, those are issues for the jury to determine whether or not he could control himself in this particular instance. ... I do not think he can say it would cause [the defendant] to [lose] control . . . [b]ecause that is an essential part of extreme emotional disturbance . . . because that is a part of the definition of extreme emotional disturbance.” The trial court, rather than expressing agreement with the state’s interpretation of § 54-86Í, noted that “the ultimate question here, the element is whether it is extreme emotional [disturbance],” and permitted the state to voir dire Selig in order to resolve the state’s doubts.

After a voir dire of Selig, in the jury’s absence, satisfied the state that his testimony would fall within the permissible bounds of § 54-86Í, Selig testified further on direct examination that as a result of the defendant’s break-up with Kelly, “[the defendant] was devastated. His world was shattered. He was enraged, despondent, felt hopeless, felt that he couldn’t go on, felt that life wasn’t worth living without her.” Upon cross-examination of Selig, the following colloquy then took place:

“[State’s Attorney]: Okay. Doctor .... Do you think if there was a policeman in that secluded area, standing there and then [the defendant] drove in with his headlights [on] and saw the policeman there, do you think that he would have gone to the back of the car and gotten the gun and walked over to the side of the car and shot . . . Kelly?
“[Defense Counsel]: Objection. Relevance.
“[State’s Attorney]: Claim it. It deals with mental state, if Your Honor please.
“[Defense Counsel]: Relevance?
“[State’s Attorney]: It deals with mental state.
“[The Court]: I’ll allow it.
“[Defense Counsel]: Exception.
“[The Court]: Exception is noted. Can you answer the question Doctor?
* * *
“[Dr. Selig]: ... I haven’t thought about it yet. I could give it some thought right now if you would like. ...
“[State’s Attorney]: No . . . Then I gather as you sit there right now, you do not have an opinion that he would have shot her even if there was a policeman standing there. Is that true?
“[Dr. Selig]: That’s correct.
“[State’s Attorney]: Let’s forget the policeman in uniform. . . . Supposing there was another couple in the car there making love or right close by, would he have drove up close by and parked his car and gone to the trunk and gotten his rifle, his loaded .22 rifle and gone to the side of the car and shot . . . Kelly through the head twice?
“[Defense Counsel]: Same objection.
“[State’s Attorney]: Claim it, if Your Honor please.
“[The Court]: I’ll allow it.
“[Defense Counsel]: Exception, please, Judge.
“[State’s Attorney]: Do you have an opinion on that, Doctor?
¡it * *
“[Dr. Selig]: I think that that would have been sufficient to have stopped him.
“[State’s Attorney]: Okay. Now, Doctor . . . why did you think so long about that? . . .
“[Dr. Selig]: I think it’s an extremely important question. ... I gave a different amount of thought to that [than] I would have in a different case. And I, in order to reflect on it, part of what I needed to consider was [the defendant’s] susceptibility to structure and authority. And I think that generally with authority figures, he attempted to behave appropriately. And that given that degree of structure, it probably would have stopped him. I needed to consider those things.
* * *
“[State’s Attorney]: Now, in responding just a moment ago, I believe I heard you say that he reacts to authority figures. I think my second question said, suppose there is another couple in the car nearby. I want to ask you, do you consider another couple in a car to be authority figures?
“[Dr. Selig]: And the policeman. And I would change my answer to that.
“[State’s Attorney]: You would change your answer to the policeman?
“[Dr. Selig]: Yes, I would.
“[State’s Attorney]: All right, tell us how you would change your answer.
“[Dr. Selig]: That he, a policeman being there probably would stop him.”

It is this exchange that the defendant claims violated the proscriptions of § 54-86Í, as well as the trial court’s ruling on the state’s motion in limine. Furthermore, the defendant contends that the harm resulting from the exchange is apparent from the state’s reduction of its case down to Selig’s answers by referring the jury to Selig’s answers in closing argument and stating “[t]hat’s the whole case.”

I

We note first that the defendant, by objecting to the state’s questions on relevancy grounds, failed to preserve properly the issue he has raised on appeal. Practice Book § 4185 requires that appealable claims of error be distinctly raised at trial. See also Practice Book § 288; State v. Weidenhof, 205 Conn. 262, 273, 533 A.2d 545 (1987). Nor is the defendant entitled to Evans review of this issue, for the admissibility of expert opinion testimony is a matter of state evidentiary law, rather than a matter of constitutional significance. See State v. Smith, 209 Conn. 423, 426, 551 A.2d 742 (1988); State v. Vilalastra, 207 Conn. 35, 46-47, 540 A.2d 42 (1988); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Since the defendant’s claim is not “of constitutional magnitude alleging the violation of a fundamental right”; State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989); one of the four preconditions to Evans review, his claim to Evans review is without merit. See id., 239-40. Because the parties have raised and briefed a single issue on appeal, and the record in this case provides an adequate basis for appellate review, we nonetheless exercise our discretion and review the defendant’s claim.

II

“ ‘The true test for the admissibility of expert testimony is “whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the question at issue.” ’ Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975), quoting Taylor v. Monroe, 43 Conn. 36, 44 (1875). . . . ‘Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.’ Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973).” State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985). The trial court has broad discretion in applying these concepts and in ruling on the admissibility of expert opinions. See State v. Rodgers, 207 Conn. 646, 651, 542 A.2d 1136 (1988); State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).

The defendant claims, as noted, that the state’s questions and Selig’s answers regarding the defendant’s ability to control himself in a hypothetical situation violated § 54-86Í. In support of his claim, the defendant first notes that in order to prevail on his affirmative defense of extreme emotional disturbance, the trier of fact must find: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions. State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979). Because Selig’s testimony was directed to the defendant’s capacity for self-control, the defendant maintains that it tended to disprove the existence of the third of these criteria. He thus argues that Selig’s testimony amounted to an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the defense of extreme emotional disturbance in violation of § 54-86L

The defendant, however, mischaracterizes the three criteria set forth in Elliott as “elements” of the affirmative defense of extreme emotional distress. Section 53a-54a describes the two elements of that defense as: (1) the defendant committed the offense under the influence of extreme emotional disturbance; and (2) there was a reasonable explanation or excuse for the defendant’s extreme emotional disturbance. When we adopted the three criteria set forth in Elliott, we did not rewrite § 53a-54a, nor did we substitute our own “elements” for those specified by the legislature. We merely interpreted the meaning of the phrase “extreme emotional disturbance,” and as we explained in Elliott, enumerated “understandable guidelines” for “instructing a jury” in determining the presence or absence of that mental condition. See State v. Elliott, supra, 8-9. These guidelines also serve to focus the presentation of evidence on three factual bases that we have deemed essential to support the inference that a defendant suffered from extreme emotional disturbance at a particular time. They are neither conclusive nor exclusive, however, for “[i]n the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier, aided by expert testimony of both sides, but left to its own factual determinations.” State v. Zdanis, 182 Conn. 388, 395, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981).

Moreover, in construing § 54-86Í narrowly, we have assumed that the legislature enacted the statute to accomplish a reasonable and rational result. See King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987). A broad construction of the statute, taken to its extreme, would arguably bar experts from fully testifying to their diagnoses of a defendant and to their resulting professional opinions, from which the jury could infer the defendant’s state of mind at the time of a particular act. Jurors would thus be left without adequate expert assistance in making an informed decision upon the ultimate issue of the defendant’s mental state, the precise issue expressly reserved to them by § 54-86Í. Additionally, a defendant’s ability to prove affirmative defenses involving mental state would be severely curtailed. Consequently, we do not believe that the legislature intended to proscribe expert opinion testimony with respect to a defendant’s mental state so strictly as to render it an ineffective aid to the jury, or to eclipse the role of expert opinion testimony in substantiating a defendant’s claim to have suffered from a certain mental condition at the time of an act alleged to be criminal in nature.

Therefore, in the present case, § 54-86Í proscribed expert opinion testimony only with respect to whether the defendant was under the influence of extreme emotional disturbance at the time he killed Kelly. See General Statutes § 53a-54a. Since the state’s questions neither called for nor elicited Selig’s expert opinion as to whether the defendant was under the influence of extreme emotional disturbance at the time he killed Kelly, we hold that the questions and the resulting testimony did not violate § 54-86L Thus, the trial court did not abuse its discretion when it overruled the defendant’s objections to the state’s questions.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[General Statutes] Sec. 54-86Í. testimony op expert witness re MENTAL STATE OR CONDITION op defendant. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

       The state also claims that the trial court should not have: (1) denied its motion for discovery of materials upon which the defendant’s expert based his psychiatric report; and (2) refused to permit it to call the defendant’s investigator as a rebuttal witness. Since we affirm the judgment of the trial court, we need not address these claims.

       We summarily dispose of that portion of the defendant’s claim that the trial court contravened its prior ruling on the state’s motion in limine when it overruled the defendant’s objections to the state’s subsequent questions. The trial court’s ruling, as noted, merely precluded the parties from seeking direct expert opinion as to whether the defendant suffered from extreme emotional disturbance. Therefore, we do not agree with the defendant’s contention that the element of control was foreclosed from the jury’s consideration by the court’s granting of the state’s motion in limine. The question of control arose later in the trial and an examination of the record reveals that the trial court never expressly ruled inadmissible expert opinion testimony regarding the defendant’s capacity for self-control.