author: Peters, C. J.

text:
    Connecticut Light and Power Company v. Department of Public Utility Control et al. Division of Consumer Counsel v. Connecticut Light and Power Company et al.
    (13924)
    (13927)
    Peters, C. J., Shea, Glass, Hull and Borden, Js.

      Argued October 3—
    decision released December 11, 1990

      Walter F. Torrance, Jr., and Philip M. Small, with whom was Cynthia Brodhead, for the appellant in the first case, appellee in the second case (Connecticut Light and Power Company).

      Valerie J. Bryan, for the appellant in the second case, appellee in the first case (division of consumer counsel).

      Robert S. Golden and Tatiana D. Sypko, for the appellee in both cases (department of public utility control).
   Peters, C. J.

These consolidated appeals, arising out of the decision of an administrative regulatory agency to adjust a public utility company’s rates because of a finding of imprudent sales of generating capacity, raise questions about the standard of judicial review and the substantiality of the evidence supporting the agency’s action. These proceedings began in August, 1987, with a request by the plaintiff, Connecticut Light and Power Company (CL&P) for an amendment to its rate schedules. After extensive hearings, the defendant department of public utility control (DPUC) issued its decision to exclude $17,542,000 from CL&P’s rates. Administrative appeals to the trial court were taken both by CL&P, claiming that the exclusion was improper, and by the Office of Consumer Counsel (OCC), formerly the Division of Consumer Counsel, claiming that the exclusion should have been higher. The trial court consolidated and then dismissed both appeals, thereby sustaining the DPUC’s decision. CL&P and the OCC each individually appealed the trial court’s decision to the Appellate Court. We transferred the appeals to this court in accordance with Practice Book § 4028 and now affirm the judgments of the trial court.

I

The present proceedings have their origins in a 1985 application for approval of amended rate schedules for 1988 that CL&P filed with the DPUC pursuant to General Statutes §§ 16-19 and 16-19b. This application led to the DPUC’s approval and adoption of settlement agreements (Settlement Agreements) between CL&P, the OCC, the DPUC’s prosecutorial division, and the Attorney General. Part III of the Settlement Agreements enumerated conditions pertaining to the application of General Statutes § 16-19aa. This section requires the DPUC in all rate proceedings to determine whether an electric public service company has generating capacity in excess of that which provides a net economic benefit to the company’s customers. The section further directs the DPUC to exclude the costs of such “excess generating capacity” from a company’s rate base.

On August 7,1987, CL&P filed the present application for approval of amended rate schedules with the DPUC. A primary issue in the ensuing proceedings was the manner in which the large costs of the Millstone III nuclear power plant would be allocated between CL&P’s stockholders and customers. In addressing this issue, the DPUC for the first time applied § 16-19aa and Part III of the Settlement Agreements. On the basis of evidentiary hearings, the DPUC found, in a decision issued on February 4, 1988, that subsequent to the enactment of § 16-19aa in 1985 and the 1986 Settlement Agreements, CL&P had greatly increased its sales of short-term generating capacity “in an effort to shed excess capacity.”

The DPUC conducted two alternate forms of analysis with respect to CL&P’s excess capacity sales. In one analysis, conducted pursuant to § 16-19aa and Part III of the Settlement Agreements (the excess capacity analysis), the DPUC determined that CL&P had “excess capacity” of 254 megawatts on its system. The DPUC concluded that if it were to adjust CL&P’s rates accordingly, it would have excluded $12,741,220 in costs associated with the 254 megawatts of “excess capacity.” In its alternative analysis (the capacity sales analysis), the DPUC concluded that CL&P’s increased sales of short-term capacity were made “with the obvious intent of avoiding excess capacity adjustments to this rate application,” that CL&P had sold the capacity in question at prices that were “much less than was possible,” and that “choosing to sell only the cheapest units for short periods was not a reasonable and prudent decision.” Choosing the capacity sales analysis as the more appropriate alternative in the circumstances of these proceedings, the DPUC excluded $17,542,000 from CL&P’s rates.

CL&P’s appeal to the trial court challenged both the excess capacity and capacity sales analyses. Following the DPUC’s denial of its petition for reconsideration of the excess capacity analysis, the OCC also appealed to the Superior Court, challenging only the excess capacity analysis. The trial court consolidated the appeals, and dismissed them both on the ground that the DPUC rate order was neither unjust nor unreasonable.

In its appeal to this court, CL&P contends that the trial court invoked too restrictive a standard of review, and that, on proper examination, the DPUC rate order cannot be sustained on either the excess capacity analysis or the capacity sales analysis. The OCC’s appeal challenges the former analysis only. We conclude that the judgment of the trial court on CL&P’s appeal must be sustained because the DPUC’s decision to exclude $17,542,000 from CL&P’s rates in accordance with its capacity sales analysis was supported by substantial evidence.

II

The first issue raised by CL&P’s appeal is whether the trial court applied the correct standard of review in rejecting its challenge to the substantive merits of the decision of the DPUC. Pursuant to General Statutes § 16-35, the provisions of General Statutes § 4-183 of the Uniform Administrative Procedure Act determine the scope of judicial review for administrative appeals from decisions of the DPUC. Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 133-34, 439 A.2d 282 (1981). In its memorandum of decision, the trial court correctly referred to § 4-183 as governing the appeal before it, but did not expressly pursue any of the specific standard of review provisions of § 4-183 (g). Instead, relying on our decision in Woodbury Water Co. v. Public Utilities Commission, 174 Conn. 258, 263, 386 A.2d 232 (1978), and our application therein of the test that the United States Supreme Court enunciated in Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944) (the Hope test), the trial court dismissed the appeals on the ground that the DPUC’s rate order was neither unjust nor unreasonable and that judicial inquiry was therefore at an end. CL&P argues that the trial court should not have applied the Hope test, while the DPUC and the OCC contend that judicial review of the rate order under the Hope test was correct. We agree with CL&P.

The issue before the Supreme Court of the United States in Hope was the interpretation of § 4 (a) of the federal Natural Gas Act of 1938, 52 Stat. 821,15 U.S.C. § 717, which provides that gas rates “shall be just and reasonable.” Noting that Congress had provided no formula by which such rates were to be determined, the court stated that the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks, and should also be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital. Id., 603. The court ultimately concluded that “[ujnder the statutory standard of ‘just and reasonable’ it is the result reached not the method employed which is controlling. ... If the total effect of a rate order cannot be said to be unjust and unreasonable, judicial inquiry . . . is at an end.” Id., 602. The court also noted that the statutory standard met federal constitutional requirements for a nonconfisca-tory rate order. Id., 607.

CL&P argues that because it has not raised a constitutional confiscation claim in this case, the trial court erred in applying the Hope test. CL&P correctly notes that, in Woodbury, this court applied the Hope test solely to a party’s claim that the rates in question were confiscatory. In response, the DPUC and the OCC maintain that General Statutes § 16-19e (a) (4) embodies the Hope test as a matter of statutory regulation and that the trial court’s application of that test was therefore correct. Specifically, the DPUC contends that as long as the rate order meets the “just and reasonable” requirement allegedly embodied in § 16-19e (a) (4), and the order is supported by record evidence, it must be sustained. In a slightly different vein, the OCC contends that in order to satisfy the § 4-183 (g) prerequisite that an appellant must make a showing of prejudice to its “substantial rights” before a court can modify or reverse an agency decision, CL&P must prove that the rate order violates § 16-19e (a) (4) because it is “unjust and unreasonable.” Despite these differences in emphasis, the arguments of both the DPUC and the OCC lead to the same result, a replacement of the broader judicial review standard contained in § 4-183 (g) with the narrow review standard allegedly contained in § 16-19e (a) (4). We are unpersuaded that the legislature intended to afford utility companies so little opportunity to challenge adverse rate regulation.

It is true that § 16-19e (a) (4), in identifying the various factors that the DPUC must consider when it establishes rates for public service companies, uses language that tracks, almost verbatim, the language that the United States Supreme Court used in Hope when it interpreted the “just and reasonable” requirement under the Natural Gas Act and the federal constitution. Indeed, the legislative history of § 16-19e (a) (4) reveals that its drafters perceived the Hope decision as controlling with respect to the federal constitutional validity of rate orders. Conn. Joint Standing Committee Hearings, Regulated Activities, Pt. 2, 1975 Sess., p. 724. Neither the language of § 16-19e (a) (4) itself, nor its legislative history, however, indicates that the section was intended to establish an independent standard, apart from § 4-183 (g), for judicial review of DPUC rate orders. To the contrary, General Statutes § 16-35 expressly directs that judicial review of DPUC decisions be governed by § 4-183. Furthermore, in our interpretation of § 4-183, we are mindful of the “elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts.” Mitchell v. Mitchell, 194 Conn. 312, 320, 481 A.2d 31 (1984); Finkenstein v. Administrator, 192 Conn. 104, 110, 470 A.2d 1196 (1984). If the specific provisions of that section are to be given their full effect, and the relationship between General Statutes §§ 16-35, 4-183 (g) and 16-19e (a) (4) harmonized, § 16-19e (a) (4) cannot, in the absence of an express legislative indication to the contrary, be read to allow what would in effect be a narrower standard of review than § 4-183 (g) establishes.

We conclude, therefore, that § 16-19e (a) (4) does not permit a court to sustain a rate order solely on the basis of a determination that the rate is “just and reasonable” and generally supported by record evidence. Similarly, § 16-19e (a) (4) does not express the sole standard for a reviewing court’s determination of whether a regulated company’s “substantial rights” have been prejudiced. Under the appropriate standard set out in § 4-183 (g), courts must undertake a case-by-case analysis to determine the merits of the challenged rate order and the prejudice, if any, to the regulated company. See, e.g., Connecticut Natural Gas Corporation v. Public Utilities Control Authority, supra, 139-40 (reliance on extra-record evidence for important facts demonstrates substantial prejudice); Madow v. Muzio, 176 Conn. 374, 382, 407 A.2d 997 (1978) (no substantial prejudice when, even after erroneously admitted evidence stricken from record, sufficient evidence remains to support agency conclusion); accord Lawrence v. Kozlowski, 171 Conn. 705, 714-15, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977).

Although the appropriate standard is that defined by § 4-183 (g), it bears emphasis that even that statute does not contemplate plenary judicial review of agency decisions. As we have often noted, a trial court’s inquiry into the merits of an administrative agency decision, on the administrative record, is statutorily circumscribed. A court may not reverse or modify an agency decision unless it determines that an appellant’s “substantial rights . . . have been prejudiced because the [agency’s] findings, inferences, conclusions, or decisions” contravene any one of the section’s six specific provisions. General Statutes § 4-183 (g). The court may not substitute its own judgment or discretion for that of the agency. Leib v. Board of Examiners for Nursing, 177 Conn. 78, 92, 411 A.2d 42 (1979); Woodbury Water Co. v. Public Utilities Commission, supra, 263; Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 65, 127 A.2d 48 (1956); Conley v. Board of Education, 143 Conn. 488, 498, 123 A.2d 747 (1956). In its review of administrative rate regulation, the court must, accordingly, ensure that the agency’s decision-making process was conducted pursuant to the appropriate procedures and that the outcome of the process reflects reasoned decisionmaking—a reasonable application of relevant statutory provisions and standards to the substantial evidence on the administrative record. Section 4-183 (g), coupled with the presumption of validity that attends a DPUC rate order; Woodbury Water Co. v. Public Utilities Commission, supra, 260; establishes a standard for judicial review that is appropriately deferential to agency decisionmaking, yet goes beyond a mere judicial “rubber stamping” of an agency’s decisions. See Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981).

There is room for incorporation of § 16-19e (a) (4) criteria within the frame of reference for judicial review established by § 4-183 (g). The latter section specifically provides for the reversal or modification of an agency decision if, inter alia, it is contrary to a statutory provision. General Statues § 4-183 (g) (1). Thus, under § 4-183 (g) (1) a court must review a claim that a rate order violates § 16-19e (a) (4). Even a rate order that complies with this statutory mandate, however, and establishes a rate of return “commensurate with returns on investments in other enterprises having corresponding risks”; Federal Power Commission v. Hope Natural Gas Co., supra, 603; is not automatically entitled to judicial approval. While the court may not substitute its own balance of regulatory considerations for the balance undertaken by the agency, it must independently assure itself that the DPUC has given “reasoned consideration” to each of the guiding factors expressed in § 16-19e (a) (4). See Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S. Ct. 1344, 20 L. Ed. 2d 312 (1968).

In this appeal, CL&P asserts that the rate order excluding $17.5 million from its rates pursuant to the DPUC’s capacity sales analysis deprived it of its operating expenses under § 16-19e (a) (4). In elaborating upon this claim, however, CL&P argues that the exclusion can only be sustained if the DPUC was correct, as a legal and factual matter, in its finding that CL&P’s capacity sales decision was not prudent. The gravamen, then, of CL&P’s complaint is not that the DPUC’s decision violates § 16-19e (a) (4), but rather that it reflects the application of an incorrect legal standard for determining prudence and that it is unsupported by substantial evidence on the record. The trial court should have reviewed this claim under § 4-183 (g), and its review of the rate order under the Hope test or its statutory equivalent in § 16-19e (a) (4) was, therefore, improper.

We would normally remand a case such as this one to the court with instructions to conduct a new review pursuant to the proper standard. Nonetheless, because the administrative record before us on appeal is identical to that which was before the trial court, the interests of judicial economy would not be served by a remand in this case. We therefore review CL&P’s claims directly. We consider the substantial evidence issue first, and then examine the prudence standard issue.

Ill

A

Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. Campisi v. Liquor Control Commission, 175 Conn. 295, 296, 397 A.2d 1365 (1978); Almada v. Administrator, 137 Conn. 380, 391-92, 77 A.2d 765 (1951). “Substantial evidence” exists if the administrative record affords “ ‘ “a substantial basis of fact from which the fact in issue can be reasonably inferred.” ’ ” Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987), quoting Lawrence v. Kozlowski, supra, 713; accord Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). “Such a standard of review allows less room for judicial scrutiny than does the ‘weight of the evidence’ rule or the ‘clearly erroneous’ rule.” Briggs v. State Employees Retirement Commission, supra; see also American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523, 101 S. Ct. 2478, 69 L. Ed. 2d 185 (1981). In conducting its review, a court must defer to the agency’s assessment of the credibility of the witnesses and to its right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part. Huck v. Inland Wetlands & Watercourses Agency, supra, 540-41.

To support its conclusion that CL&P had engaged in imprudent sales of generating capacity, the DPUC made three crucial determinations: that a market existed for more expensive intermediate and baseload capacity; that CL&P should have sold such capacity instead of the short-term, peaking capacity that it actually sold; and that CL&P’s sales evidenced a lack of good faith. Our review of the administrative record discloses substantial evidence to support these administrative findings.

The record establishes that due to high load growth and increased New England Power Pool (NEPOOL) reserve requirements, other New England utilities were, for the first time in years, beginning to run short of capacity. NEPOOL estimates indicated that “all capacity in New England [was] . . . needed for reliability purposes.” A March 3,1987 NEPOOL operations committee report, recognizing that the Pilgrim I nuclear power plant in Massachusetts might be off-line, anticipated the likelihood of capacity deficiences ranging from 204 to 2334 megawatts (MW) for all but two weeks of the summer of 1987. NEPOOL also indicated that energy requirements in New England had increased nearly 20 percent over four years and that little energy assistance could be expected from neighboring utility services. Significantly, utility reserve requirements nationally were in the mid 20 percent range, while CL&P had a reserve margin of 45 to 50 percent, well beyond that which was necessary to meet its NEPOOL requirements.

The evidence also establishes that a market for capacity sales existed. Regional utilities such as Boston Edison, Central Maine Power, Commonwealth Electric, Public Service of New Hampshire and others needed to purchase capacity in order to satisfy their capability responsibility requirements. Boston Edison alone had to replace 650 MW of capacity because Pilgrim I was inoperative at the time relevant to this case. CL&P’s own expert witness testified that these conditions created a market for capacity sales. He further testified that CL&P could have sold at least 250 MW of capacity for close to $150 per kilowatt per year (kw-year). CL&P did not, however, extensively explore the market for capacity sales at such prices.

The evidence farther establishes that during the years 1978 through 1986, CL&P had sold, on average, 125 MW of short-term capacity per year. In 1987, these sales increased dramatically. CL&P executed three capacity sales contracts on March 1, 1987, three on May 1, 1987, and six on November 1, 1987. As of March, 1987, CL&P had projected short-term sales of 625 MW for the summer of 1988. In July, 1987, CL&P revised this figure to 635 MW. As of November, 1987, CL&P had again revised that figure to 1173 MW. These capacity sales were made for an average price of $44/kw-year.

The DPUC concluded that CL&P had greatly increased its capacity sales in an effort to avoid an excess capacity charge of nearly $150/kw-year under § 16-19aa. CL&P does not contest the finding that its short-term sales greatly increased in 1987. It asserts, simply, that the coming on-line of Millstone III in 1986 “freed up” other capacity for sale. The DPUC counters, however, that while Millstone III may explain the existence of greater capacity, it does not explain, or justify, CL&P’s decision to sell the amount and type of capacity that it actually sold. CL&P’s large reserve margin of 45 to 50 percent, coupled with other utilities’ need to purchase capacity to meet their reserve requirements, meant that CL&P had significant leverage to control the amount and type of capacity it could sell and the price it could receive for its capacity sales. The DPUC accordingly concluded that CL&P had an available market for its long-term, more expensive intermediate and baseload capacity and that CL&P had acted imprudently in selling its short-term, inexpensive peaking capacity instead.

CL&P proffers three arguments to rebut the conclusion reached by the DPUC. It maintains that NEPOOL regulations, the Federal Energy Regulatory Commission (FERC) and managerial prudence dictated the nature of its capacity sales. We are unpersuaded by these arguments.

CL&P argues, first, that NEPOOL regulations created a “cap” upon the price that could be obtained for capacity and that it could not, therefore, have sold capacity at prices greater than it actually did. CL&P bases this argument in part on testimony given in 1989, nearly two years after the close of the administrative proceedings that led to this appeal and, therefore, not before the DPUC at the time it rendered its decision. CL&P also relies on the testimony of its own expert witness, which the DPUC was free to disregard. See Huck v. Inland Wetlands & Watercourses Agency, supra, 540-41.

CL&P’s second argument invokes rules laid down by the FERC, which has jurisdiction over interstate capacity sales, that purportedly limit the price of such sales to the utility company’s embedded cost, i.e., original cost less depreciation, or “net book cost,” of the capacity sold. This limit, according to CL&P, prevented it from charging a greater price for the short-term, peaking capacity that it had sold. As the DPUC correctly observes, however, even if the FERC would have limited the price CL&P could have received for its capacity sales to the embedded cost of capacity sold, CL&P could have elected to sell Millstone III capacity, which has high embedded costs.

CL&P maintains, finally, that even if the record establishes its ability to have sold more expensive capacity, the record does not establish the prudence of such a course of action. CL&P claims that any decision to sell long-term, expensive capacity would have increased customer costs, forced it sooner to construct new generating capacity, and might possibly have left CL&P short of capacity in the mid-1990s. Consequently, CL&P argues, its decision not to sell long-term, expensive capacity was managerially prudent. The DPUC reasonably questions, however, whether, in the three to four month period during which CL&P greatly increased its capacity sales, a sale of long-term, expensive capacity would have caused the long-term problems that CL&P allegedly envisaged.

Because the DPUC, in evaluating the evidence before it, brought to bear its expertise, technical competence and specialized knowledge; General Statutes § 4-178; Success Village Apartments, Inc. v. Local 376, 175 Conn. 165, 170, 397 A.2d 85 (1978); its interpretation of the evidence must be sustained unless its conclusions are unreasonable. Administrative conclusions are not unreasonable simply because the evidence admits of multiple, possibly inconsistent, conclusions. See National Labor Relations Board v. Nevada Consolidated Copper Corporation, 316 U.S. 105, 106, 62 S. Ct. 960, 86 L. Ed. 1305 (1942). Having examined the record and found substantial evidence to support the basic facts from which the DPUC in this case could have drawn its conclusions, we conclude that its determinations of fact and law pass the test of reasonableness.

B

General Statutes § 16-19e (a) (5) requires the DPUC to ensure “that the level and structure of rates charged customers shall reflect prudent and efficient management of the franchise operation.” The prudence of a management decision depends on good faith and reasonableness, judged at the time the decision is made. Violet v. Federal Energy Regulatory Commission, 800 F.2d 280, 282-83 (1st Cir. 1986).

In the DPUC’s capacity sales analysis, pursuant to which it made the determination of CL&P managerial imprudence, the DPUC did not charge CL&P with imprudence in building excess capacity, or in its decision to sell per se. Instead, the focus of the DPUC was on the “timing, the quantity and the price of the sales of capacity in question.” The DPUC concluded that by its sudden increase in sales of inexpensive peaking capacity, CL&P sought to avoid the excess capacity adjustment under § 16-19aa and that, therefore, the sales decision was not made in good faith. Similarly, the DPUC concluded that a market for long-term, more expensive intermediate and baseload capacity existed at the time of CL&P’s capacity sales, that CL&P management could or should have known of the existence of that market, and that CL&P acted unreasonably in failing to sell capacity to that market. On these findings of lack of good faith and unreasonableness, the DPUC charged CL&P with managerial imprudence.

CL&P argues that the DPUC’s conclusion of imprudence cannot be sustained because the DPUC applied an incorrect standard when it determined that the capacity sales in question were imprudent. Since CL&P does not challenge the appropriateness of the prudence test of Violet v. Federal Energy Regulatory Commission, this issue resolves itself into an inquiry into the sufficiency of the administrative record to show lack of good faith or reasonableness. Because we concluded in our discussion in Part A, supra, that substantial evidence in the administrative record supports the DPUC’s findings of lack of good faith and unreasonableness, we cannot say that its ultimate conclusion that CL&P’s capacity sales reflected managerial imprudence is unjustified.

C

In its capacity sales analysis, the DPUC adopted $89/kw, the replacement cost of peaking capacity, as the standard for determining the $17.5 million exclusion for the unreasonably low compensation that CL&P received for its capacity sales. The DPUC multiplied the volume of CL&P’s capacity sales during the relevant time period, less certain deductions, by the difference between the $89/kw standard and the average $44/kw that CL&P actually received for its sales of short-term, peaking capacity.

CL&P contests the $89/kw standard, arguing that it is unsupported by substantial evidence in the record. CL&P’s argument misconstrues the method by which the DPUC adopted that standard. The DPUC does not maintain that CL&P could, or should, have sold all of its capacity for $89/kw. Instead, the standard represents the DPUC’s attempt to establish a reasonable compensation standard for adjusting CL&P’s rates once it had determined that CL&P had acted imprudently. The DPUC defends the reasonableness of the $89/kw standard, arguing that peaking capacity is the least expensive type of generating unit and CL&P could have sold mixes of units including intermediate and baseload capacity at prices that would have exceeded that standard.

Viewing the administrative record in its entirety, we are not persuaded that, in this particular case, the adoption of an $89/kw standard is unreasonable. We therefore hold that the DPUC’s decision to exclude $17.5 million from CL&P’s rates must be sustained.

The judgments are affirmed.

In this opinion the other justices concurred.

       The plaintiff is an electric public service company, under General Statutes § 16-1 (a) (4), which defines “fpjublic service company” to include “electric . . . companies, owning, leasing, maintaining, operating, managing or controlling plants or parts of plants or equipment . . . .”

       General Statutes § 16-2a designates the office of consumer counsel as the “advocate for consumer interests in all matters which may affect Connecticut consumers with respect to public service companies.” Section 16-2a authorizes the OCC to “appear in and participate in any regulatory or judicial proceedings, federal or state, in which such interests of Connecticut consumers may be involved, or in which matters affecting utility services rendered or to be rendered in this state may be involved.” Accordingly, the DPUC had designated the OCC as a party to the CL&P rate increase hearings in this case.

       In addition to the OCC, the DPUC also designated its prosecutorial division, the Connecticut siting counsel and other state agencies as additional parties. Only CL&P, the OCC and the DPUC are parties to these appeals.

       General Statutes § 16-19aa provides in relevant part: “excess generating CAPACITY. EXCLUSION OF COSTS ASSOCIATED with, (a) During each proceeding on a rate amendment under section 16-19 proposed by an electric public service company, as defined in section 16-1, having more than seventy-five thousand customers, the department of public utility control shall (1) review the facilities utilized by the company for the generation and transmission of electricity, (2) determine the level of the company’s reserve capacity, (3) determine the level of reserve capacity which would provide a net economic benefit to customers of the company, provided the department shall also consider the New England Power Pool reliability standard, the state energy policy as stated in section 16a-35k and any other factors which the department deems appropriate and adjust such level accordingly and (4) exclude from the company’s rates, in a manner which shall provide the optimal short-term and long-term benefits to customers of the company, the costs associated with generating facilities which provide reserve capacity in excess of the level, including any adjustments, determined by the department under subdivision (3) of this section.”

       Electrical generating capacity is classified according to the characteristics of the generating unit that produces it. Baseload units, such as nuclear power and coal-powered plants, have high capital costs but very low fuel, or variable, costs and are designed to run as many hours per year as possible to distribute their costs over the largest number of generation hours. Peaking units, such as gas turbines, have very low capital costs but high fuel costs. These units are typically run infrequently during the year, such as when heavy electrical demand exists. In between base load and peaking units are oil-fired, intermediate units.

       The DPUC conducted its capacity sales analysis pursuant to its statutory mandate in General Statutes § 16-19e (a) (5) to ensure that the level and structure of rates charged utility customers reflect prudent and efficient management. See footnote 18, infra.

       The DPUC reserved the right to invoke either analysis in subsequent cases.

       Because we affirm the trial court’s judgment sustaining the DPUC’s capacity sales analysis, we do not consider the claims raised by CL&P and the OCC regarding the DPUC’s excess capacity analysis.

       General Statutes (Rev. to 1989) § 4-183 (g) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decisions of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       The court also stated, without any elaboration, that the record supported the DPUC’s decision as “logical and rational.” See footnote 14, infra.

       CL&P’s initial administrative appeal to the Superior Court raised various constitutional claims. CL&P has not, however, pursued any of those claims in this appeal and we do not, therefore, consider them.

       General Statutes § 16-19e (a) provides in relevant part: “In the exercise of its powers under the provisions of this title, the department of public utility control shall examine and regulate the transfer of existing assets and franchises, the expansion of the plant and equipment of existing public service companies, the operations and internal workings of public service companies and the establishment of the level and structure of rates in accordance with the following principles . . . (4) that the level and structure of rates be sufficient, but no more than sufficient, to allow public service companies to cover their operating and capital costs, to attract needed capital and to maintain their financial integrity, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable .. . .”

       In order to facilitate judicial review, an appellant seeking review of a rate order on the ground that it violates General Statutes § 16-19e (a) (4) should do more than merely assert such a claim. The appellant should articulate, with particularity, how the rate order in question fails to comport with the specified factors in § 16-19e (a) (4). The appellant should also distinguish the claim that a rate order violates § 16-19e (a) (4) from other grounds on which the rate order is challenged, such as whether the order is supported by substantial evidence.

       We recognize that in its memorandum of decision, the court did find that the record supported the DPUC’s decision as logical and rational. This may be an indication that the court concluded that the decision was neither arbitrary or capricious. See Woodbury Water Co. v. Public Utilities Commission, 174 Conn. 258, 263, 386 A.2d 232 (1978). In the absence of any elaboration upon the court’s summary statement, however, we cannot determine whether the court properly conducted its review of the DPUC’s decision pursuant to General Statutes § 4-183 (g).

       Typically, following our review of an administrative record to determine whether substantial evidence exists to support an agency’s decision, we would state only whether we had concluded that such evidence exists. Generally, in such decisions, the substantial evidence question is only one of numerous issues raised in an administrative appeal. Because the core of this case, however, is the substantial evidence issue, the discussion that follows is more elaborate than usual.

       The DPUC’s written decision in this case clearly states the agency’s conclusions with respect to the capacity sales analysis. The decision does not, however, contain any express findings of basic fact pertaining to that analysis. We, therefore, find it necessary to examine the record ourselves to determine whether substantial evidence exists to support the basic facts from which the department could reasonably have drawn the conclusions that it did. To facilitate judicial review, agencies should include in their decisions an express statement of the factual findings on which their conclusions are based.

       In order to provide for unexpected demand or temporary loss of generating units, utilities are required to have generating capacity beyond their expected peak demand, the maximum demand experienced by a utility as a result of retail customer power requirements. This additional capacity is referred to as a reserve margin, or requirement. See Madison Gas & Electric Co. v. Public Service Commission of Wisconsin, 109 Wis. 2d 127, 131 nn.6-7, 325 N.W.2d 339 (1982).

       General Statutes § 16-19e (a) (5) provides: “In the exercise of its powers under the provisions of this title, the department of public utility control shall examine and regulate the transfer of existing assets and franchises, the expansion of the plant and equipment of existing public service companies, the operations and internal workings of public service companies and the establishment of the level and structure of rates in accordance with the following principles ... (5) that the level and structure of rates charged customers shall reflect prudent and efficient management of the franchise operation.”

       NEPOOL and CL&P agreed with the DPUC that $89/kw represented the replacement cost of peaking capacity. CL&P did not agree, however, that the $89/kw figure was the appropriate one to use in calculating the rate exclusion.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    State of Connecticut v. Gerald Jennings
    (14049)
    (14050)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued October 4—
    decision released December 11, 1990

      A. Paul Spinella, with whom was Susan V. Tirrel, certified legal intern, for the appellant in both cases (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee in both cases (state).
   Hull, J.

The defendant, Gerald Jennings, was charged by substitute information with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) as a result of an incident that occurred on June 6,1987. In another case, the defendant was charged by substitute information with criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1) and criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1) as a result of incidents that occurred on February 19 and 27, 1987. The two informations were joined for trial pursuant to General Statutes § 54-57 and Practice Book § 829.

Following a jury trial, the defendant was found guilty, in the first case, of the lesser included offenses of assault in the second degree and kidnapping in the second degree. In the second case, he was found guilty as charged. The trial court thereupon sentenced the defendant to two concurrent five year terms of imprisonment in the first case and, in the second case, to concurrent terms of imprisonment of twelve years, execution suspended after seven years with five years probation and one year probation respectively, to run consecutively with the sentence imposed in the first case. The defendant appealed the judgments to the Appellate Court. We subsequently transferred the appeals to this court pursuant to Practice Book § 4023.

On appeal the defendant claims that the trial court violated his constitutional rights when it: (1) denied the defendant’s motion to permit the withdrawal of appointed defense counsel; (2) granted the state’s motion to join the two informations for trial; (3) denied the defendant’s request to instruct the jury that it must be unanimous in its verdict as to factual theory; and (4) denied the jury’s request for a written copy of portions of the jury instructions. We conclude that the defendant’s constitutional rights were not violated. Accordingly, we affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On February 19,1987, Patricia Hoskie, the victim, a former girlfriend of the defendant, was approached by the defendant while walking with her niece, Ruth Hoskie, to a bus stop in New Haven. The defendant asked to speak with the victim, but she refused. In response, the defendant revealed a knife under his coat. Shortly thereafter, the defendant, the victim and Ruth boarded a bus. The three got off the bus in Westville and started walking to her home. The victim continued to refuse the defendant’s repeated requests to speak with her. Upon arriving at her home, Ruth informed the defendant that he could not come inside. When he asked to use the telephone, however, Ruth’s boyfriend, Yule Watley, permitted the defendant to enter for that purpose. The defendant proceeded to use the telephone, but he suddenly dropped the receiver, drew a knife and cut the victim’s finger. Watley grasped the defendant but he broke free and cut the victim’s upper arm. Wat-ley intervened again, and this time he was able to gain possession of the knife. Watley threw the defendant out of the house.

The defendant and the victim briefly resumed their former relationship. Subsequently, though, while the victim was staying in the hospital for unrelated kidney treatment, she requested that the defendant be prohibited from visiting her. Hospital security informed the defendant of the victim’s request, but on February 27,1987, he attempted to visit her. Hospital security notified the police.

The relationship between the victim and the defendant resumed once again for a short period. On June 6, 1987, the victim went to Atlantic City, New Jersey, with her sister, Frances Johnson, and her friend, Alice Walker. Upon their return that same evening, a bus let the three women off in a parking lot behind the Elk’s club in New Haven where Johnson’s car was parked. As they walked toward the car, the defendant approached the victim and asked to speak with her. She agreed and the two spoke briefly. Thereafter, as Johnson walked with the victim to the car, the defendant followed. When they reached the car, Johnson pushed the victim inside it and started to close the door, but the defendant pulled it open and fell upon the victim. The defendant cut the victim’s neck with a box cutter, pulled her out of the car, punched and kicked her and threw her about the parking lot. The victim resisted the defendant and he cut her again, this time on the shoulder. Johnson and Walker tried to intervene, but the defendant threatened to shoot them with a shiny object that he displayed. The defendant took the victim from the parking lot to an empty apartment nearby. When a police officer walked by the apartment, the defendant instructed the victim to refrain from speaking. Some time later, the defendant told the victim that she could leave, which she did.

I

The defendant’s first claim is that the trial court’s denial of his motion to permit withdrawal of defense counsel on grounds of a conflict of interest deprived him of his rights to the effective assistance of counsel, due process of law and a fair trial guaranteed by the sixth, fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We do not agree.

On October 28,1987, prior to the commencement of trial, the defendant moved for the appointment of a special public defender to replace defense counsel, a public defender previously appointed for him, or in the alternative, for a continuance in order to obtain a private attorney. Defense counsel argued that since another public defender in her office had represented the victim in a prior unrelated case, she owed the victim a duty of confidentiality that placed her in a position of conflict, making it inappropriate for her to represent the defendant. The trial court, Hadden, J., concluded that insufficient facts had been presented to warrant a finding that a conflict of interest existed and denied the motion.

On November 2, 1987, the defendant renewed his motion to permit the withdrawal of defense counsel. Defense counsel stated that the public defender’s office had previously represented both the victim and a state’s witness, Yule Watley, on charges about which the public defender’s office files might contain information relevant to their credibility. The court abstained from ruling on the motion pending an inquiry by the state to determine whether the witnesses were willing to waive their rights to confidentiality. Defense counsel argued that a waiver must also be obtained from the defendant under the circumstances. The trial court rejected this claim, stating that a waiver by the defendant would only be required if the representation of the defendant was simultaneous to the representation of the witnesses, which was not the case. Further, the trial court noted that waiver by the witnesses of their rights to confidentiality would actually put the defendant in a more advantageous position than if defense counsel did not represent him because counsel would have access to information regarding two state’s witnesses that another attorney would not have.

On November 3, 1987, the state informed the court that the two witnesses were willing to waive any rights they had concerning confidentiality with respect to their earlier representation by the public defender’s office. Defense counsel claimed that she should still be permitted to withdraw because the defendant was unwilling to execute a waiver and would be prejudiced by defense counsel’s inability to be a zealous advocate on his behalf due to her divided loyalty. The trial court denied the motion to withdraw and expressed doubt as to any potential for conflict since the witnesses were former clients and were willing to waive their rights to confidentiality. Further, the trial court reiterated its belief that the defendant would be at an advantage in that the witnesses’ waivers would afford the defendant access to information regarding the witnesses that he would not have otherwise.

The trial court granted the defendant’s request for a continuance so that defense counsel could examine the public defender’s files concerning the witnesses. Subsequently, both witnesses waived any rights of confidentiality arising out of their prior representation by the public defender’s office. Shortly thereafter, defense counsel informed the court that she had been unable to obtain the pertinent flies during the continuance. The trial court consequently agreed to allow the defendant to recall the witnesses if future examination of the files revealed evidence relevant to cross-examination.

“Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel. U.S. Const., amend. VI; Conn. Const., art. I, § 8. As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Glosser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942); State v. Martin, 201 Conn. 74, 78, 513 A.2d 116 (1986); Festo v. Luckart, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983).” State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987). “The trial court has ‘broad discretionary power to determine whether an attorney should be disqualified for an alleged . . . conflict of interest.’ State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980) [aff'd, 193 Conn. 70, 475 A.2d 1087 (1984)]. Moreover, ‘[i]n determining whether the Superior Court has abused its discretion in denying a motion to disqualify, this court must accord every reasonable presumption in favor of its decision.’ State v. Jones, supra.” State v. Edwards, 201 Conn. 125, 138, 513 A.2d 669 (1986). The ultimate issue is whether the trial court could reasonably have reached the conclusion that it did. State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982).

The trial court concluded that no conflict of interest existed and that the defendant would not suffer prejudice as a result of representation by appointed defense counsel because the witnesses were former clients and had waived any rights to confidentiality arising from their prior representation by the office of the public defender. The defendant has not sustained his burden of demonstrating that this ruling constituted an abuse of discretion. Although defense counsel initially stated that she would be unable zealously to advocate in favor of the defendant due to her divided loyalty, the trial court could reasonably have concluded that this concern was subsequently erased by the witnesses’ waivers of their rights of confidentiality. In addition, the defendant does not deny that defense counsel’s subsequent cross-examination of the witnesses at issue was in fact vigorous.

The defendant argues that he was prejudiced because the court failed to conduct an adequate “investigation” following his allegation of a conflict of interest. We do not agree. “A trial court has the obligation to inquire into the possibility of a conflict of interest ‘when it knows or reasonably should know’ that a potential conflict exists.” State v. Williams, supra, 168, quoting State v. Martin, supra, 79. Proper inquiry was undertaken in this case. In response to the defendant’s motion to permit withdrawal of defense counsel, the trial court heard arguments from both the defendant and defense counsel. In addition, the trial court directed the state to inquire whether the witnesses were willing to waive their rights of confidentiality. Once the waivers were executed, the trial court reasonably determined that any risk of a potential conflict of interest was eliminated. Thus, it was not necessary to inquire further into the matter.

We conclude that the trial court reasonably determined that, under the circumstances, no conflict of interest existed and that the defendant would not suffer prejudice as a result of defense counsel’s representation of him. We note, further, that the defendant has not alleged that his representation by defense counsel actually prejudiced the conduct of his trial in any way. The trial court, therefore, did not abuse its discretion in denying the defendant’s motion to permit the withdrawal of defense counsel.

II

The defendant’s second claim is that the trial court, by granting the state’s motion to join the two infor-mations for trial, violated his rights to a unanimous verdict, due process of law and a fair trial guaranteed by the sixth, fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, he argues that joinder raised a reasonable likelihood that the evidence introduced in both cases was assessed cumulatively by the jury resulting in a less than unanimous verdict and conviction by a lesser standard of proof than beyond a reasonable doubt. We do not agree.

On October 27,1987, the state filed a motion to consolidate the two informations pending against the defendant. The state argued that joinder was appropriate and would promote judicial economy because both informations involved assault charges and the same complaining witness so that much of the evidence would apply to both incidents. The defendant opposed the motion arguing that the cases were not of the same character and that he would suffer prejudice if they were consolidated since he might wish to exercise his right to testify in one case but not in the other. Nevertheless, the trial court granted the state’s motion for joinder.

General Statutes § 54-57 and Practice Book § 829 expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. “In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988); State v. Pollitt, 205 Conn. 61, 67-68, 530 A.2d 155 (1987); State v. Boscarino, 204 Conn. 714, 720-21, 529 A.2d 1260 (1987); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976). The defendant bears a heavy burden of showing that the ‘ “denial of severance resulted in substantial injustice,” and that any resulting prejudice was “beyond the curative power of the court’s instructions.” ’ State v. Boscarino, supra, 721, quoting State v. King, supra, 302; State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952).” State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “[Wjhether ‘ “a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less than advantageous to the defendant” State v. Bell, supra, 411; State v. Silver, supra, 240; State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 (1943) . . . .” Id., 97-98.

This court has held that there are several factors that a trial court should consider in determining whether severance is required in order to avoid the “ ‘omnipresent risk . . . that “although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.” United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939).’ State v. Boscarino, supra, 721-22. These factors include: (1) whether the charges involved ‘discrete, easily distinguishable factual scenarios’; (2) whether the crimes were of a ‘violent nature’ or concerned ‘brutal or shocking conduct’ on the defendant’s part; and (3) the ‘duration and complexity of the trial.’ Id., 722-23.” State v. Herring, supra, 95. If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred. Id. Applying these factors to the present case, we conclude that joinder did not result in substantial injustice.

First, the charges pending against the defendant involved “discrete, easily distinguishable factual scenarios.” Although the victim was the same in each case, the factual circumstances were different. One case involved a physical attack upon the victim in a parking lot and an abduction to an empty apartment. The other case involved a less serious altercation between the defendant and the victim in the home of the victim’s niece. The wounds suffered by the victim were of differing character and severity. The victim sustained bruising and deep knife wounds in the parking lot incident while she sustained comparatively minor, superficial cuts in the incident at her niece’s home. See id., 96. Thus, the distinctiveness of the factual scenarios made it unlikely that the jurors would confuse the two cases.

The trial court itself emphasized the distinctiveness and separateness of the two cases. There were different eyewitnesses who testified to each incident. Also, the cases were treated separately by the trial court, the state and the defendant through their continual references to the different dates of each offense, which were almost four months apart, during examination of the witnesses, closing arguments and instructions to the jury. This further minimized any risk of juror confusion.

Second, although assault and kidnapping may involve a certain element of violence, the conduct of the defendant in these cases was not so “brutal or shocking” as to create a substantial risk that the jury, with explicit instructions to treat each offense separately, would nevertheless treat the evidence cumulatively. See id., 97 (while any murder involves violent, upsetting circumstances, it would be unrealistic to assume that any and all deaths are inevitably so “brutal and shocking” that a jury, with proper instructions to treat each killing separately, would be prejudiced by a joint trial). The physical harm that was inflicted on the victim, although serious, was not disabling, and the element of sexual derangement present in Boscarino was absent in these cases. See State v. Herring, supra, 96; State v. Horne, 19 Conn. App. 111, 124, 562 A.2d 43, cert. granted, 213 Conn. 807, 568 A.2d 793 (1989).

Third, the trial was of short duration and the evidence was not complex. The jury heard testimony of fourteen witnesses over five days with the admission of twenty-eight exhibits. See State v. Herring, supra, 97 (no undue duration or complexity where eight days of testimony by twenty-three witnesses); compare State v. Bosca-rino, supra, 723-24 (approximately ten weeks of testimony by fifty-five witnesses constituted undue duration and complexity). As previously stated, the presentation of evidence was orderly inasmuch as it was organized by the dates of the incidents so as to mitigate further any potential complexity and risk of juror confusion. See State v. Horne, supra, 120.

“Finally, although ‘ “a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence” ’; State v. Boscarino, supra, 724-25, quoting State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” State v. Herring, supra, 97. In this case, the trial court admonished the jury to evaluate each count separately in reaching its verdict and to consider only the evidence that was pertinent to a particular charge in reaching a verdict on that charge. Therefore, the trial court’s instruction further minimized any risk of prejudice that might have been caused by the joinder of the two informations.

We conclude that the trial court’s joinder did not result in substantial injustice, and therefore, that the trial court did not abuse its discretion in granting the state’s motion for joinder.

Ill

The defendant’s third claim is that the trial court violated his right to a unanimous verdict guaranteed by the sixth amendment to the United States constitution when it denied his request to instruct the jury that if they found the defendant guilty of one or more charges, they must be unanimous in their decision as to what conduct by the defendant supported a verdict of guilty of that charge. We do not agree.

The trial court instructed the jury that two alternative schemes of conduct would support findings of guilt on the lesser included offenses of assault in the second degree under General Statutes § 53a-60 and criminal attempt to commit assault in the second degree under General Statutes §§ 53a-49 and 53a-60. In addition, the trial court instructed the jury that “[T]he verdict you render must be unanimous as to each count.... The verdict you render must be unanimous . . . .” The defendant objected to the jury instruction and requested that an instruction be given that if the jury found the defendant guilty of a charge it must be unanimous as to the specific conduct which it found to support its verdict. The trial court did recall the jury to give a supplemental charge, but it did not give the unanimity instruction as the defendant had requested.

In determining whether a trial court was required to give a specific unanimity instruction to the jury, this court has utilized the standard of review enunciated in United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), that “ ‘[w]here a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.’ ” (Emphasis in original.) State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988), quoting State v. Flynn, 14 Conn. App. 10, 36-37, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). In applying the Gipson standard in State v. Bailey, supra, 336-37, however, we noted that “a number of courts have acknowledged the need to avoid unwarranted multiplication of specific unanimity instructions by requiring such a charge only in ‘cases where the complexity of the evidence or other factors create a genuine danger of jury confusion.’ United States v. Schiff, [801 F.2d 108, 114-15 (2d Cir. 1986), cert. denied, 480 U.S. 945, 107 S. Ct. 1603, 94 L. Ed. 2d 789 (1987)]; see also United States v. Payseno, 782 F.2d 832, 835-37 (9th Cir. 1986); United States v. Peterson, 768 F.2d 64, 66-67 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985).” Id., 337. More recently, we also recognized “that the Fifth Circuit Court of Appeals itself has limited its holding in Gipson in United States v. Bolts, 558 F.2d 316, 326 n.4 (5th Cir. 1977), cert. denied, 434 U.S. 930, 98 S. Ct. 417, 54 L. Ed. 2d 290 (1978), where it said that ‘Gipson involved a situation where the court expressly sanctioned a nonunanimous verdict: the jurors were told that they could disagree as to what particular prohibited acts were committed, as long as each juror found that one of the acts had been done.’ (Emphasis added.) See Fryer v. Nix, 775 F.2d 979, 992 (8th Cir. 1985).” State v. Anderson, 211 Conn. 18, 35, 557 A.2d 917 (1989). We concluded in that case that the defendant had not suffered prejudice as a result of the trial court’s denial of his request for a specific unanimity instruction because the jury instructions could not be read as sanctioning a nonunanimous verdict. Id.

We now adhere to our implicit conclusion in State v. Anderson, supra, that application of the Gipson two prong standard of review is limited to cases in which the trial court has sanctioned a nonunanimous verdict. Only if such an instruction was given is this court required to apply that standard in determining whether a specific unanimity instruction was required. In the present case, the jury instructions cannot be read as sanctioning a nonunanimous verdict. Thus, the Gipson standard does not apply.

“A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. State v. Gabriel, 192 Conn. 405, 418, 473 A.2d 300 (1984); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). If omission of an instruction was improper, our review is limited to whether, as a result, there is a reasonable possibility that the jury was misled. State v. Newton, 8 Conn. App. 528, 540, 513 A.2d 1261 (1986). “It is well established that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law.” State v. Preyer, 198 Conn. 190, 198, 502 A.2d 858 (1985); see also State v. Newton, supra.

The defendant has failed to show how the trial court’s failure to give the requested instruction resulted in a nonunanimous verdict and thereby adversely affected the outcome of his trial. The trial court charged the jury under § 53a-60 in the alternative. He twice stated that the statute sets forth “two different ways” of committing assault in the second degree. (Emphasis added.) Further, “the court twice told the jurors in general terms that their verdict had to be unanimous.” State v. Benite, 6 Conn. App. 667, 677, 507 A.2d 478 (1986). “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions as to the law.” State v. Gabriel, supra, 416. Thus, we presume the jury followed the court’s instructions in this case.

We conclude that it is not reasonably possible that the jury was misled by the trial court’s refusal to give the specific unanimity instruction requested by the defendant. Therefore, the defendant was not prejudiced by the trial court’s omission.

IV

The defendant’s final claim is that the trial court violated his rights to trial by jury and a fair trial guaranteed by thé sixth, fifth and fourteenth amendments to the United States constitution when it denied the jury’s request to provide a written copy of portions of its instructions. Specifically, the defendant claims that in cases such as this where the court’s instructions rise to a certain level of complexity, submission of written instructions to the jury is constitutionally required to avoid the risk of juror confusion. We do not agree.

During deliberations, the jury submitted the following request to the trial court: “We would appreciate having the following before us in writing: one, a summary of the manner in which the law defines and distinguishes between the various degrees of assault; two, the same as to kidnapping and its lesser included charges; three, a definition of serious physical injury; four, a definition of abduction and restraint.” Although the trial court denied the request for written instructions, it reinstructed the jury orally as to all the charges and elements in its request.

Although the practice of submitting written instructions to the jury is permissible; Haupt v. United States, 330 U.S. 631, 643, 67 S. Ct. 874, 91 L. Ed. 1145, reh. denied, 331 U.S. 864, 67 S. Ct. 1195, 91 L. Ed. 1869 (1947); written instructions are not constitutionally required. We recognize that “ ‘[clarification of the instructions when the jury or one of its members manifests confusion about the law is mandatory.’ ” State v. Fletcher, 207 Conn. 191, 193, 540 A.2d 370 (1988); Practice Book § 864. Nevertheless, this duty can be adequately fulfilled by supplemental oral instructions. The question in reviewing the constitutional adequacy of jury instructions is whether viewed in the context of the instructions as a whole, including any supplemental instructions, it is reasonably possible that the jury was misled. State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987); State v. Usry, 205 Conn. 298, 314, 533 A.2d 212 (1987); State v. Pollitt, 205 Conn. 132, 150, 531 A.2d 125 (1987).

In its initial instruction the trial court defined all the relevant charges and their elements. Subsequently, it redefined certain of those charges and elements in response to the jury’s request. Because the jury did not seek any further instruction prior to rendering its verdicts, we may reasonably infer that the supplemental charge clarified any initial juror confusion. We conclude, therefore, that considering the court’s jury instructions as a whole, including the supplemental oral instruction, there is no reasonable possibility that the jury was misled.

The judgments are affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-92 provides in pertinent part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when . . . (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes § 53a-49 provides in pertinent part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circimstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-107 provides in pertinent part: “(a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person . . . .”

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”
      Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
      The fifth amendment to the Unites States constitution provides in pertinent part: “No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”
      The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel .... No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ."

       Although General Statutes § 53a-60 sets forth five alternative schemes of conduct that can support a finding of assault in the second degree, the trial court charged as to only two schemes as follows: “Now, the statute with respect to assault second degree says a person is guilty of assault in the second degree when, and it gives two different ways that one can commit assault second degree, first, with intent to cause serious physical injury to another person he causes such injury to such person, or, the second way is, with intent to cause physical injury to another person, he causes such injury to such person by means of a dangerous instrument.”
      The trial court did not explicitly instruct that two alternative forms of conduct support a finding of criminal attempt to commit assault in the second degree. It did so by reference to the aforementioned charge.
      The defendant asserts that the trial court also instructed the jury that alternative conduct could support a finding of abduction under General Statutes § 53a-91. This assertion is mistaken. The court defined “abduction” as follows: “The term abduct means to restrain a person with intent to prevent his or her liberation by using or threatening to use physical force or intimidation. Abduction need not be proved by establishing the use of force if the proof established the defendant threatened its use in such a manner that the victim reasonably believed force would be used on her if she attempted to resist.” Section 53a-91 provides in pertinent part: “(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.” Comparing the court’s instruction with the statutory definition, it is clear that the trial court only submitted the second of the two alternative forms of conduct that support a finding of “abduction” to the jury.

       The trial court stated that it was without discretion to provide the jury with written instructions. We note that it was within the discretion of the trial court to submit written instructions to the jury. The defendant does not rely on this mistaken conclusion of the trial court for his claim, so it is irrelevant to the disposition of the issue presented.

       The defendant, in his brief, contends that numerous state and federal courts utilize written jury instructions and that such instruction has received favorable review and commentary. We do not sit to decide the utility or need for written instructions in the Connecticut courts. To the extent that the defendant seeks such a decision, his request is more properly directed to the Rules Committee of the Superior Court. See Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 237, 472 A.2d 9 (1984) (the function of the Rules Committee is to consider proposed changes in the rules of practice for the Superior Court and to recommend amendments to the Practice Book).

       Practice Book § 864 provides: “If the jury, after retiring for deliberations, request additional instructions, the judicial authority, after notice to the parties, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.”


text:
    Lynn McQuillan et al. v. Department of Liquor Control
    (14025)
    Peters, C. J., Shea, Glass, Covello and Santaniello, Js.
    Argued November 9—
    decision released December 18, 1990

      Bruce J. Corrigan, Jr., for the appellants (plaintiffs).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).
   Peters, C. J.

The sole issue in this appeal is whether an error in the form of a required citation requires dismissal of an administrative appeal to the Superior Court for lack of subject matter jurisdiction. The plaintiffs, Lynn McQuillan and Mexican Cafe of Westport, Inc., sought judicial review of an order of the defendant department of liquor control (department) suspending the named plaintiffs restaurant liquor permit for five days. In the trial court, the department successfully moved for a dismissal of the plaintiffs’ appeal because of their alleged failure to include a citation as required by law. The plaintiffs filed a timely appeal from this judgment of dismissal in the Appellate Court. We transferred their appeal to this court pursuant to Practice Book § 4023 and now reverse.

The plaintiffs’ administrative appeal arises out of alleged liquor law violations at the Viva Zapata Restaurant in Westport. The named plaintiff is the holder of the restaurant’s liquor permit, and her coplaintiff is the restaurant’s corporate backer. When the department denied the plaintiffs’ request for reconsideration of the five day suspension of their liquor permit, they took the present appeal to the Superior Court.

To initiate their administrative appeal on August 25, 1988, the plaintiffs simultaneously filed an application for temporary injunction, an order to show cause, and a verified complaint on their appeal. On September 1, 1988, these papers were simultaneously served on the department, and on the attorney general, in accordance with the provisions of the Uniform Administrative Procedure Act, General Statutes § 4-183 (b). The verified complaint contained a return date of September 27, 1988, while the show cause order summoned the department to appear on September 12,1988. The only citation contained in the papers, however, authorized the sheriff to summon the department to appear “at the place and time specified ... to show cause why a Temporary Injunction should not be issued against it as prayed in the foregoing Appeal, Verified Complaint and Application . . . .’’On its face this citation does not expressly direct the department to appear in, or to answer, the plaintiffs’ administrative appeal.

The plaintiffs did not pursue their judicial application for a temporary injunction because the department agreed administratively to stay enforcement of the liquor permit suspension order during the pendency of the administrative appeal. See General Statutes § 4-183 (c). Although the department filed its general appearance in timely fashion, it did not move to dismiss the plaintiffs’ action until November 15,1988. The department’s motion, based on Practice Book § 142, claimed that the appeal should be dismissed “for lack of subject matter jurisdiction because it does not contain a citation as required by law.” The trial court, concluding that the plaintiffs had not properly cited the department to answer their appeal, granted the motion and rendered judgment for the department.

The principles that govern the validity of an administrative appeal are undisputed. Because the right to take an administrative appeal depends upon statutory authority, this court has regularly held that noncompliance with the statutory requirements of the Uniform Administrative Procedure Act implicates subject matter jurisdiction and renders a nonconforming appeal subject to dismissal. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987); Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986); Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985). Failure to include the citation required by § 4-183 (b) is fatal to the validity of an administrative appeal. Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 356-57; Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 338-40, 170 A.2d 732 (1961); DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 16, 555 A.2d 1007 (1989); see Tarnopol v. Connecticut Siting Council, supra; Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 682-83, 542 A.2d 726 (1988). A procedural default that implicates subject matter jurisdiction cannot be waived and may be raised at any time. Practice Book § 142; Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550-52, 489 A.2d 368 (1985).

The dispositive issue, therefore, is whether the plaintiffs’ administrative appeal in fact failed to include the citation required by § 4-183 (b). In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 18. “The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . A citation is not synonymous with notice.” Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 339; Simko v. Zoning Board of Appeals, 205 Conn. 413, 419-20, 533 A.2d 879 (1987), modified, 206 Conn. 374, 538 A.2d 202 (1988); Sheehan v. Zoning Commission, 173 Conn. 408, 412, 378 A.2d 519 (1977). For administrative appeals from the liquor control commission, Practice Book Form 204.9 contains a preferred form for citation, which the plaintiffs concededly did not use.

We conclude that the plaintiffs’ mistaken failure to use the preferred form to commence an appeal is the functional equivalent of the use of an improper form to commence an appeal. In the latter circumstance, we held in Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 356-57, that “[a]s long as it contains a proper citation, signed by a competent authority, [the] use [of an improper form] does not call into question the jurisdiction of the Superior Court to entertain the appeal. ... If the form [that was used] clearly apprises all concerned that a lawsuit is being instituted, and contains notice of the return date, and the requirement for filing an appearance, and also directs a competent authority to summon the defendant, then the policy of giving notice to the defendant of the nature of the proceedings has been served. Cf. Village Creek Homeowners Assn. v. Public Utilities Commission, supra. Absent an affirmative showing of prejudice by the defendant . . . the mistaken use of [a form] does not warrant the dismissal of an administrative appeal.” The package of papers filed simultaneously by the plaintiffs in this case, as in Chestnut Realty, Inc., informed the department of the appeal that was being taken and of the return date on the verified complaint, and directed a competent authority to summon the department to appear at a designated court. Since the department has raised no claim of prejudice, the plaintiffs’ inadvertent deviation from the preferred Practice Book form did not deprive the citation that they employed of all legal effect. The trial court, therefore, improperly granted the department’s motion to dismiss.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       The department found that two violations of the state liquor laws had occurred at the Viva Zapata Restaurant. On May 30,1987, in violation of General Statutes § 30-22, a group of at least ten people were consuming alcoholic beverages on the front porch of the restaurant, a location not approved for such consumption. On February 20,1988, in violation of General Statutes § 30-86, three young men below the legal age were being served alcoholic beverages at the restaurant.

       Their appeal alleged that the suspension of the liquor permit was illegal, arbitrary and in abuse of discretion, for a number of substantive and procedural reasons.

       At the time this action was instituted, General Statutes § 4-183 (b) provided in relevant part: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides . . . within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.” This statute was amended by Public Acts 1988, No. 88-317, §§ 23, 107, effective July 1, 1989.

       At the time this action was instituted, General Statutes § 4-183 (c) provided: “The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.” This statute was amended by Public Acts 1988, No. 88-317, §§ 23, 107, effective July 1, 1989.

       Practice Book § 142 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”

       Practice Book Form 204.9 provides: “appeal from liquor control COMMISSION
      “To the superior court in and for the judicial district of at on (return date) comes (name and residence of appellant) appealing from a decision of the Liquor Control Commission and petitioning this court to make a judicial review thereof, and complains and says:
      1. The plaintiff applied to the Commission for a (type) permit for the sale of alcoholic liquor at premises located at (describe location by street and number or otherwise) in the town of but the Commission denied the application and duly notified the plaintiff of such denial on
      2. The plaintiff is in all respects a suitable person to have such a permit and the premises are in all respects suitable therefor.
      3. In denying the application the Commission acted illegally, arbitrarily and in abuse of the discretion vested in it.

        Wherefore the plaintiff appeals from the denial of the application, and prays the court to direct the Commission to grant the application and for such other relief as is proper.
      Dated at (place and date)

      Plaintiff
      By
      Attorney

        {caption)

      Writ
      To Any Proper Officer:
      By authority of the state of Connecticut you are hereby commanded to summon the Liquor Control Commission of the state of Connecticut {and set forth names and residences of all other parties ofrecord) to appear before the superior court within and for the judicial district of at on {return date) then and there to answer unto the foregoing petition of {names and residence) by serving upon the commission {and all parties of record above named), a true and attested copy of the petition and of this citation in the same manner as process is served in civil actions.

        {Name and residence of person recognized) is recognized in the sum of $ to prosecute etc.
      or

        If plaintiff is an inhabitant of this state and is able to pay the costs of the action, the following may be used:

      I hereby certify that I have personal knowledge of the financial responsibility of the plaintiff and deem it sufficient to pay the costs of this action. Hereof fail not, but due service and return make.
      Dated at {place and date of signing)

      Commissioner of the Superior Court’


author: Covello, J.

text:
    Carol A. Sunbury v. Donald C. Sunbury
    (13933)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued November 7—
    decision released December 25, 1990

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Sherman M. Tonkonow, for the appellee (defendant).
   Covello, J.

This is an action for the dissolution of a marriage. The dispositive issue is whether, after an order of remand, the trial court correctly valued the parties’ assets as of the date of the original dissolution as opposed to the date of the subsequent rehearing. We conclude that the trial court correctly valued the parties’ assets as of the date of the dissolution and accordingly, affirm the trial court’s judgment.

The procedural history of the matter is as follows: On December 5,1985, the trial court, Gaffney, J., rendered judgment dissolving the parties’ twenty-seven year marriage. As an incident to the decree, the trial court found the value of the marital home to be $75,000, awarded the home to the defendant, and entered orders directing the defendant to pay to the plaintiff: (1) lump sum alimony of $35,000 payable .in two years or upon the sale of the family home, whichever event occurred first; (2) periodic alimony of $75 per week for two years from December 5,1985; and (3) counsel fees of $1000.

The plaintiff appealed to the Appellate Court. The Appellate Court agreed with the plaintiff’s contention that the defendant’s net income had been erroneously calculated and that the order of periodic alimony was thereby flawed. It therefore set aside the trial court’s judgment “with respect to its order of periodic alimony only and . . . remanded [the case] for further proceedings.” Sunbury v. Sunbury, 13 Conn. App. 651, 662, 538 A.2d 1082 (1988).

On June 3, 1988, we granted the plaintiffs petition for certification and thereafter concluded that “[t]o limit the remand in this case to the issue of periodic alimony [only] would impede the trial court’s ability to weigh the statutory criteria for financial orders to achieve an equitable result.” Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989). We further concluded that “[o]n the facts of this case . . . the trial court on remand could no more fashion just and equitable financial orders by reconsidering only the issue of periodic alimony, than it could reassemble a broken vase with only one piece.” Id., 173. Accordingly, we reversed the judgment of the Appellate Court and remanded the case for further proceedings that would include a reconsideration of all financial orders.

On December 22, 1989, the trial court, Byrne, J., entered new financial orders and rendered judgment directing the defendant to pay the plaintiff: (1) lump sum alimony of $35,000 together with interest at the rate of 8 percent; (2) periodic alimony of $110 per week for two years from December 5,1985; and (3) counsel fees of $3000. The plaintiff again appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff contends that the trial court erred in valuing the parties’ assets as of December 5, 1985, the date of the dissolution of their marriage, instead of August, 1989, the date of the hearing that followed this court’s order of remand. Specifically, the plaintiff contends that she was erroneously precluded from introducing evidence at the second hearing establishing that: (1) the marital home awarded to the defendant by the first decree was sold for $120,000 during the pendency of the appeal; and (2) the defendant’s employee profit sharing plan had quadrupled in value during the same period.

The division of property and the entry of orders of alimony in dissolution proceedings are governed by General Statutes §§ 46b-81 (a) and 46b-82. Section 46b-81 (a) provides in part: “At the time of entering a decree . . . dissolving a marriage . . . the superior court may assign to either the husband or wife all or any part of the estate of the other.” (Emphasis added.) Similarly, § 46b-82 provides in part: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other . . . .” (Emphasis added.) The only temporal reference in the enabling legislation refers us to the time of the decree as controlling the entry of financial orders. It is neither unreasonable nor illogical, therefore, to conclude that the same date is to be used in determining the value of the marital assets assigned by the trial court to the parties. “In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property.” Brackob v. Brackob, 265 Wis. 513, 518, 61 N.W.2d 849 (1953). An increase in the value of the property following a dissolution does not constitute such an exceptional intervening circumstance.

Section 46b-81 (a) involves the assignment of marital assets. To the extent that the plaintiff seeks consideration of a postdecree appreciation in the value of property, such appreciation, having occurred after the termination of the marriage, is no longer a marital asset. Further, General Statutes § 46b-86 sets up a separate and distinct procedure for the modification of orders of alimony and support after the date of a dissolution judgment. This statute authorizes modifications “upon a showing of a substantial change in the circumstances of either party.” In view of a procedure that authorizes modifications based upon a “substantial change,” it becomes important to fix the parties’ circumstances at some point in time to serve as a bench mark from which the “substantial change” required by § 46b-86 may thereafter be measured.

Such a construction of our dissolution statutes also comports with well recognized principles regarding the finality of actions. “It is not in the public interest . . . to condone a procedure which would permit a plaintiff to litigate the same question over and over again, encumbering the mechanisms our society has established to resolve disputes .... Litigation must end at some point. The rules of res judicata are designed to accomplish this important public policy.” Corey v. Avco-Lycoming Division, 163 Conn. 309, 321, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973).

The judgment is affirmed.

In this opinion the other justices concurred.

       In representing his weekly net income, the defendant had deducted approximately $150 in payments to an individual retirement account and a profit sharing plan. The Appellate Court held that these should not have been excluded in determining the defendant’s net income.

       General Statutes § 46b-86 (a) provides in part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.”