author: Callahan, J.

text:
    State of Connecticut v. Daniel A. Ramsundar
    (12843)
    Peters, C. J., Healey, Santaniello, Callahan and Hull, Js.

      Argued March 3
    decision released June 9, 1987

      Joseph P. Secola, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, was Kevin P. McMahon, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in an information with having committed the crime of arson in the first degree in violation of General Statutes § SSa-lll. He pleaded not guilty and elected a jury trial. He was found guilty as charged by the jury and was subsequently sentenced by the trial court to a term of ten years imprisonment. The defendant has appealed claiming that the trial court erred by: (1) failing to suppress both in-court and out-of-court identifications; (2) admitting into evidence his prior misconduct, his conviction for harassment and his violation of probation; and (3) commenting unfairly on the evidence in its instructions to the jury. We find no error.

The jury could reasonably have found the following facts: On October 17,1984, at approximately 11 p.m., brothers Steve and Kenneth Dacunha noticed a fire in the rear yard at 41 Woodmere Road in West Hartford, across the street from Kenneth’s home. The two men ran to the scene and observed flames about two feet in height, confined to a strip of ground approximately 18 inches wide and 20 to 30 feet in length. Kenneth smothered the flames with his jacket and called the West Hartford fire department. While awaiting the arrival of the firemen, the two inspected the area of the blaze by flashlight. They smelled an odor of gasoline and saw a strip of liquid extending from a burned area of ground across the driveway to an exterior wooden porch at the rear of the house. They also observed that the rear porch was totally saturated with gasoline.

Shortly thereafter, police and fire officials arrived at the scene. They roused the occupants of the house, Olive Crompton and her daughter, Denise, and conducted an investigation. Deputy Chief Matteo Pascarelli of the fire department suspected arson. He testified that he had observed a “trailer” of gasoline extending across the driveway to the back porch and that the back porch was “pretty well covered” with gasoline. He opined that had the fire reached the back porch it would have ignited the house and developed into a “major working fire” within ten minutes. He also testified that if the fire had reached the house it would have blocked access from the second floor to the first floor and prevented escape by way of the rear door. Deputy Chief Fire Marshall Richard Kane confirmed the fact that the fire had been deliberately set.

The occupants of the house, the Cromptons, were tenants. The house was owned by Lee Rice and was for sale. Prior to renting the house to the Cromptons, Rice, who had been romantically involved with the defendant since 1980, had lived there with him for approximately one year. The defendant was familiar with the house and had made various repairs to it, including repairs to the rear porch. After Rice had rented the house to the Cromptons, she and the defendant had moved to Rowe Avenue in Hartford where they continued to live together until early in 1984.

On February 12,1984, Rice terminated her relationship with the defendant because he had misappropriated $609 of her money, which she had earmarked for a mortgage payment on her West Hartford house. The defendant, who was upset and angry that Rice had ended their affair, moved out of the Rowe Avenue house the next day. Thereafter, the defendant harassed Rice in a misguided effort to revive their romantic relationship. On October 18, 1984, the day following the fire the defendant telephoned Rice and, laughing, said, “try and sell that house now.”

As a result of an investigation, during which the defendant was identified as having purchased gasoline in a container at a Hartford gasoline service station on the night of either October 16 or 17, 1984, he was arrested and charged with arson in the first degree.

I

The defendant first claims that the trial court erred by failing to suppress both in-court and out-of-court identifications by two witnesses, Patricia Parrott and Tammey Arnett. He contends that their identifications of him resulted from an unnecessarily suggestive procedure and were unreliable, and that the admission of their testimony violated his federal and state constitutional rights to due process. We disagree.

The following testimony was elicited relating to the issue of the identification of the defendant by Parrott and Arnett: In October, 1984, Parrott was employed as a cashier at the self-service island of an Exxon service station located at the corner of Park Street and Prospect Avenue in Hartford. Arnett was a friend of Parrott’s, often visiting Parrott and keeping her company in the cashier’s booth during the evening hours. On October 23, 1984, while conducting a canvass of area service stations in connection with the investigation of the fire at 41 Woodmere Road, Detective Joseph Benequisto of the West Hartford police department interviewed Parrott and Arnett. During the course of the interview, he showed them a single police “mug shot” which was a front and side view of the defendant. He then inquired whether the man depicted in the police photograph had purchased gasoline in a container at the station during the previous week. At that time neither Parrott nor Arnett was able to identify the person shown in the photograph.

Two days later, however, on October 25,1984, when the defendant drove into the same Exxon station to purchase gasoline for his automobile, both Parrott and Arnett immediately recognized him as the man who had purchased gasoline in a container late in the evening on either October 16 or 17, 1984. Parrott and Arnett both testified that when they saw the defendant the second time, they recognized and remembered him because of his distinctive appearance. As the defendant left the service station on October 25,1984, Parrott wrote down the number of the temporary registration marker on his automobile and called the West Hartford police.

Later Parrott and Arnett gave statements to the police identifying the driver of the automobile on October 25,1984, as the same man who had purchased gasoline in a container at the Exxon station the previous week. Subsequently, at trial, both Parrott and Arnett positively identified the defendant as the driver of the automobile on October 25,1984, and as the person who had purchased gasoline in a container on October 16 or 17, 1984.

“In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Cubano, 203 Conn. 81, 93, 523 A.2d 495 (1987); State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986); State v. Hinton, 196 Conn. 289, 292-93, 493 A.2d 836 (1985).

In this case, the trial court found that the display of a single photograph of the defendant by Benequisto, coupled with his inquiry, was unnecessarily suggestive. See State v. Evans, 200 Conn. 350, 355-56, 511 A.2d 1006 (1986); State v. Collette, supra. The state does not, on appeal, dispute that finding. We must, therefore, consider whether, based on an examination of the “totality of the circumstances,” the identifications were nevertheless reliable. State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985).

The factors to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Cubano, supra, 95; State v. Collette, supra, 311 n.3; State v. Hinton, supra, 295-96.

Since neither Parrott nor Arnett was a victim of the arson in question or a witness to its actual occurrence, an analysis of the circumstances of their identifications of the defendant does not fit neatly into the Manson matrix of factors normally considered in determining reliability. The factors considered in Manson, however, are not required to be present seriatim for an identification to be found reliable. United States v. Merkt, 794 F.2d 950, 958 (5th Cir. 1986), cert. denied, 480 U.S. 946, 107 S. Ct. 1603, 94 L. Ed. 2d 789 (1987); United States v. Woolery, 740 F.2d 359, 360-61 (5th Cir. 1984), cert. denied, 469 U.S. 1208, 105 S. Ct. 1172, 84 L. Ed. 2d 322 (1985). We must examine the circumstances that did exist and determine on the whole whether any suggestiveness in the identification procedure created a very substantial risk of misidentification. United States v. Merkt, supra; United States v. Woolery, supra; State v. Fullwood, 193 Conn. 238, 245, 476 A.2d 550 (1984).

In this instance we think that it did not. Although neither Parrott nor Arnett recognized the person in the photograph when it was displayed to them by Detective Benequisto on October 23, 1984, both indicated, at that time, that the subject of the photograph looked familiar, and both expressed the thought that they had previously seen the man depicted. Parrott also recalled, when interviewed by the detective, that someone had recently purchased gasoline in a container, but she could not be sure whether he was the man shown in the photograph.

At trial, however, both Parrott and Arnett were positive of their in-court identifications of the defendant. They testified that on seeing him for a second time on October 25,1984, their memories were triggered and they recalled his initial visit to the station during the middle of the previous week. Both said they were able to remember the defendant clearly because of his distinctive appearance and because both thought it strange that anyone would purchase gasoline in a container late at night in October. While they also realized that the defendant was the person shown in the police photograph, both clearly possessed a stronger, independent recollection of the defendant from the viewing of his person on the night of their first encounter. The trial court found corroboration for these independent recollections on the part of the witnesses in the fact that there was a “lack of similarity” between the defendant’s appearance in the photograph displayed and his corporeal appearance. The trial court noted that the photograph shown to the witnesses did not reveal the “highlights of the defendant’s skin coloring, nor show the whiteness of [his] hair.” See State v. Miller, 202 Conn. 463, 474, 522 A.2d 249 (1987); State v. Evans, supra, 355.

Further, it appears from the record that the witnesses’ recollection of the defendant’s appearance was not based on fleeting glances. On both occasions when Parrott and Arnett observed him, he was in close proximity for some minutes and they “[got] a good look at him” in the well lighted self-service area. While he was not the subject of close scrutiny on the first occasion, Parrott and Arnett testified that their attention was drawn to him to a certain extent because business was slow at the time and because his purchase was somewhat unusual.

We conclude, therefore, that although “we examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related factfinding of the trial court”; State v. Gordon, 185 Conn. 402, 416, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); the trial court in this instance could reasonably have found that the corrupting influence of the photograph was minimal and that the identification procedure did not result in a very substantial likelihood of irreparable misidentification, and that the identifications were sufficiently reliable to be considered by the jury.

“The exclusion of evidence from the jury is, however, a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” Harker v. Maryland, 800 F.2d 437, 443 (4th Cir. 1986). Absent a very substantial likelihood of irreparable misidentification, “[w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Manson v. Brathwaite, supra, 116. There was no error in the admission of Parrott’s and Arnett’s identification testimony.

II

The defendant next complains that the trial court erred in admitting evidence of his prior misconduct and his convictions of harassment and violation of probation.

At trial, the state was allowed to introduce evidence, through the testimony of Rice and several other witnesses, that the defendant had been harassing Rice since she had terminated her relationship with him. The testimony revealed that at various times over a period of months the defendant had slashed the tires on Rice’s automobile, put sugar in the gas tank, and caused it damage by deliberately ramming it with his automobile. He had also, among other things, stolen her mail, threatened her, followed her, and annoyed her with constant telephone calls, both at home and at her place of employment. Further, he had made disturbing telephone calls to Rice’s mother, sister, friends and associates. He had admitted his conduct to Rice and to other witnesses who had testified to it at the trial.

The trial court instructed the jury, during the course of the trial and again in its final charge, that testimony concerning the defendant’s misconduct prior to the date of the fire was not admitted into evidence to show that the defendant was possessed of a bad character, or to demonstrate that he had a propensity to commit crimes or to behave poorly. The trial court made it abundantly clear that the only purpose for which the evidence was admitted, and the only purpose for which it could be utilized, was to prove the defendant’s state of mind in regard to Rice on October 17,1984, as evidence of his possible intent to damage or destroy her property and his motive for doing so.

Intent is an element of the crime charged and as such was required to be proved by the prosecution beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Pellegrino, 194 Conn. 279, 294, 480 A.2d 537 (1984). “Motive is not an element of the crime charged, and the state is under no obligation to show a motive for the accused to commit the crime charged.” State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975); State v. Rathbun, 74 Conn. 524, 529, 51 A. 540 (1902). Such evidence is, however, important. State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1980). “It strengthens the state’s case when an adequate motive can be shown.” Id.

As a general rule, evidence of guilt of other crimes or misconduct is inadmissible to prove that a defendant is guilty of the crimes charged against him. State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); C. McCormick, Evidence (3d Ed. 1984) § 190; 1 F. Wharton, Criminal Evidence (13th Ed. 1972) § 170. Because of its prejudicial impact, it is well settled that evidence of prior acts of misconduct is inadmissible merely to show a defendant’s bad character or tendency to commit criminal acts. State v. Johnson, 190 Conn. 541, 548, 461 A.2d 981 (1983). “Evidence of other misconduct, however, ‘may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity.’ State v. Ibraimov, [187 Conn. 348, 352, 446 A.2d 382 (1982)].” (Emphasis added.) State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983).

Such evidence is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused. State v. O’Neill, supra, 274; State v. Johnson, supra; State v. Falby, 187 Conn. 6, 23-24, 444 A.2d 213 (1982); State v. Ryan, 182 Conn. 335, 338, 438 A.2d 107 (1980). “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” State v. Johnson, supra, 548-49. On appellate review by this court we must give every reasonable presumption in favor of the trial court’s ruling. State v. Ryan, supra; State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979). The crime in this case was a seemingly inexplicable act of destruction. Evidence of the defendant’s prior misconduct directed toward the owner of the house, which was the target of the arson, provided probative evidence of the defendant’s intent and motive in starting the fire. We cannot say that the trial court erred in admitting it.

The defendant also mentions in his statement of issues and in his brief a claim that the trial court erred when it allowed the state to produce evidence of his guilty plea to harassment and his subsequent arrest for and his admission to a violation of his probation. The defendant has, however, failed to brief either of these issues. His brief is limited to a discussion of the admissibility of testimony concerning the defendant’s behavior, which the court allowed as evidence of prior misconduct. Issues not briefed are considered abandoned. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . .’ ” Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905 (1975).

Even if we were to consider these issues, it would not affect the result. Evidence of the defendant’s guilty plea to a charge of harassment and his subsequent admission to violation of the conditions of his probation were, under the circumstances, admissions of prior misconduct which were properly admitted into evidence. See Grosso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930).

Ill

The defendant finally complains that the trial court erred in its charge to the jury by commenting on the evidence in a manifestly unjust, unfair and prejudicial manner.

The defendant took no relevant exceptions to the court’s charge, nor as far as can be determined from the record, did he file any requests to charge. On this appeal, however, he has launched a wholesale attack on the court’s instructions to the jury. He claims that the trial court in its charge overemphasized the evidence elicited in support of the state’s case, but failed to comment on evidence favorable to the defendant or detrimental to the state. He contends that, as a result, he was deprived of a fair trial and, consequently, his constitutional right to due process of law.

We need not reach the merits of the defendant’s claim regarding the jury charge because he has failed to comply with the mandatory procedures of this court. Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 571, 452 A.2d 117 (1982). When claiming error in the charge to the jury, a party must include in its brief a verbatim statement of all relevant portions of the court’s charge and the exceptions thereto. Practice Book § 4065 (d) (2) (formerly § 3060F [c] [2]). Also, evidence relevant to the error must be printed in narrative form with appropriate references to the transcript. Practice Book § 4065. Because the defendant’s brief does not comply with these provisions of the Practice Book, and our perusal of the record discloses no reason to depart from them, we decline to review the defendant’s claim further. Weintraub v. Richard Dahn, Inc., supra, 572; Cahill v. Board of Education, 187 Conn. 94, 98, 444 A.2d 907 (1982); Henderson v. Levy, 183 Conn. 517, 518, 441 A.2d 10 (1981).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-lll. arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insuranee proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       “{General Statutes] Sec. 53a-183. harassment: class c misdemeanor. (a) A person is guilty of harassment when: (1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph, mail, or any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       A trail of accelerant, gasoline in this case, is called a “trailer” by arson investigators.

       The fourteenth amendment to the United States constitution provides: “Section 1. All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       The defendant does present a rather distinctive appearance. He is of Indian descent, is quite tall, has very dark skin, abundant white hair and a prominent nose.

       The trial court commented, in fact, that the identification testimony of Parrott and Arnett “rings with reliability.” We agree.


source: Caselaw Access Project

author: Shea, J. Peters, C. J., with whom Hull, J.,

license: Public Domain

text:
    Rosie J. Doe et al. v. Stephen Heintz et al.
    (13012)
    Peters, C. J., Healey, Shea, Hull and L. Dorsey, Js.

      Argued March 5
    decision released June 9, 1987

      Richard T. Couture, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellants (defendants).

      Wesley W. Horton, with whom was Susan M. Cormier, for the appellees (named plaintiff et al.).

      Dennis J. O’Brien filed a brief for the Connecticut Legal Services, Inc., et al. as amici curiae.
   Shea, J.

The defendants have appealed from a supplemental judgment of the trial court awarding attorneys’ fees to the class of indigent women represented by the named plaintiff. This class had prevailed in a suit challenging the validity of a regulation issued by the defendant commissioner of income maintenance concerning state funding for abortions requested by women eligible for state medical assistance. The court had previously, on April 9, 1986, rendered judgment for the plaintiffs on the merits of the action, declaring the regulation invalid and enjoining its enforcement. Doe v. Maher, 40 Conn. Sup. 394, 515 A.2d 134 (1984). No appeal has been taken from that judgment. The claim of the plaintiffs for attorneys’ fees and costs, which was raised in the complaint, was then heard at an additional proceeding and the court, on June 26, 1986, in the supplemental judgment appealed from, awarded to the class of indigent women plaintiffs their attorneys’ fees and costs. The dispositive issue raised in the appeal is whether the sovereign immunity of the state bars such an award. We conclude that it does and, therefore, reverse the judgment.

On July 15,1981, a regulation issued by the defendant commissioner became effective that authorized funding for abortion services under the Connecticut Medical Assistance Program (Medicaid); General Statutes §§ 17-134a through 17-1341\ only when the following condition was met: “On the basis of his professional judgment, the attending physician has certified in writing that the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term.” The named plaintiff and her physician, on August 20,1981, brought this class action challenging the regulation. On the following day the trial court issued, ex parte, a temporary injunction requiring the defendants to pay the cost of the named plaintiffs abortion, which was found to be medically necessary although not necessary to save her life. After a hearing on October 9,1981, the court certified two classes of plaintiffs: (1) indigent pregnant women eligible for Medicaid who seek a medically necessary abortion, represented by the named plaintiff; and (2) physicians certified by the state to provide medical care under Medicaid who agree to perform medically necessary abortions or advise women concerning them, represented by the named plaintiff’s physician. The court then also expanded the scope of the existing temporary injunction in favor of the named plaintiff to include other members of her class and enjoined the enforcement of the regulation.

Almost five years later, on April 9,1986, the court, after a trial on the merits, rendered a declaratory judgment that the regulation at issue was invalid because it contravened General Statutes §§ 17-134a through 17-134Z and violated the rights to due process of both classes of plaintiffs under § 10 of article first of our state constitution as well as the right of the indigent women class to equal protection of the laws under §§ 1 and 20 of that article. The court also permanently enjoined the enforcement of the regulation and ordered the defendants to pay the cost of all medically necessary abortions to the same extent as other medical expenses are paid under the Medicaid program. In this appeal the state has not challenged the trial court’s judgment of April 9, 1986, so we have no occasion to consider its merits.

The supplemental judgment that is the subject of this appeal was rendered on June 26,1986, after a further evidentiary hearing pursuant to a bifurcation order on the claim made in the complaint for attorneys’ fees. The court denied the request for attorneys’ fees and costs made by the class of physicians, but awarded to the class of indigent women the sum of $164,942.83 for attorneys’ fees and costs. In appealing from that judgment the defendants claim that the award violates the sovereign immunity of the state, is not authorized by any statute, and is contrary to the established precedent that, in the absence of a special agreement or an applicable statute, each litigant must bear his own legal expenses. The defendants also contend that the award was excessive.

I

Before deciding whether the sovereign immunity of the state shields the defendants from liability for attorneys’ fees and costs incurred by the plaintiff women as prevailing parties in this litigation, it is well to consider whether the circumstances would justify such an award in the absence of such an immunity. The plaintiffs as well as the trial court have relied for support of the award partly upon various exceptions, both statutory and nonstatutory, to the general disallowance of attorneys’ fees to prevailing parties. By statute, of course, an unsuccessful litigant is obliged to pay the taxable costs of his opponent, which include not only disbursements actually made for such items as court filing fees, but also small allowances intended to defray partially the cost of some services normally performed by attorneys, such as “[f]or all proceedings before trial, fifty dollars” and “for the trial of an issue of law or fact, seventy-five dollars.” General Statutes § 52-257 (a) (1) and (2). “[I]n difficult or extraordinary cases in the superior court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars” may be made. General Statutes § 52-257 (a) (3).

Claims for attorneys’ fees in the absence of statutory authority or contractual provision, however, have generally been rejected by the courts of this country, unlike those in England. “In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). This court has recently indicated our adherence to this so called “American rule.” Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14-15, 513 A.2d 1218 (1986). There are, however, numerous statutory exceptions to the rule and also several others created by the courts without legislative authority. See Alyeska Pipeline Service Co. v. Wilderness Society, supra, 257-59. Two of these court-authored exceptions are relied upon by the plaintiffs: (1) the private attorney general doctrine; and (2) the substantial benefit rule.

A

The private attorney general exception would authorize the court to award attorneys’ fees to the successful litigant upon a determination that “the litigation has resulted in the vindication of a strong or societally important public policy, that the necessary costs of securing this result transcend the individual plaintiff’s pecuniary interest to an extent requiring subsidization, and that a substantial number of persons stand to benefit from the decision . . . Serrano v. Priest, 20 Cal. 3d 25, 45, 569 P.2d 1303, 141 Cal. Rptr. 315 (1977); see Miotke v. Spokane, 101 Wash. 2d 307, 340-41, 678 P.2d 803 (1984). Although the trial court found that the plaintiffs had satisfied these criteria by “overwhelming evidence,” it concluded that “such a broad rule is generally one for the legislature to consider” and rejected this basis for awarding attorneys’ fees.

In Alyeska the two dissenting justices advanced the private attorney general theory to support an attorneys’ fee award to an association of environmentalists, but the majority decided that adoption of that principle “would make major inroads on a policy matter that Congress has reserved for itself” in view of the existence of legislation authorizing attorneys’ fees in many specified instances where public benefits flow from private enforcement of the law, such as in antitrust suits, patent litigation and civil rights actions. Alyeska Pipeline Service Co. v. Wilderness Society, supra, 264-69. Like Congress, our legislature also has enacted statutes permitting attorneys’ fees to be awarded to a successful litigant in particular instances where a Significant public interest has been vindicated by the litigation. Some examples are antitrust suits by consumers where injunctions are granted; General Statutes § 35-34; claims for trade secret misappropriation that are made in bad faith; General Statutes § 35-54; and actions for damages resulting from unfair trade practices. General Statutes § 42-110g. Indeed, the legislature has specifically authorized the recovery of reasonable fees and expenses not exceeding $7500 against the state in a successful appeal of an administrative agency decision in a contested case for all but the most affluent of aggrieved persons. General Statutes § 4-184a. In view of this legislative policy of selecting the special situations where attorneys’ fees may be awarded, we agree with the trial court that it is inappropriate for the judiciary to establish under the private attorney general doctrine a broad rule permitting such fees whenever a private litigant has at substantial cost to himself succeeded in enforcing a significant social policy that may benefit others.

B

The substantial benefit doctrine advanced to support the award of attorneys’ fees in this case is based upon the principle that, where a successful suit has conferred a substantial benefit on the members of an ascertainable class, the costs of the litigation should be borne proportionately by all those benefited. Hall v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393-94, 90 S. Ct. 616, 24 L. Ed. 2d 593 (1970); Merwin v. Richardson, 52 Conn. 223, 237 (1884); Nesbit v. Rose-Hurst Farms, Inc., 8 Conn. Sup. 480, 482-83 (1940). In these cases courts have been able to identify a source for payment of litigation expenses in which substantially all those benefited have a common interest, such as a recovery inuring to the benefit of others similarly situated; Sprague v. Ticonic National Bank, 307 U.S. 161, 166-67, 59 S. Ct. 777, 83 L. Ed. 1184 (1939); a corporate treasury, even though the accruing benefit to stockholders is nonpecuniary; Mills v. Electric Auto-Lite Co., supra; a union treasury, when individual rights of members within the organization are vindicated; Hall v. Cole, supra; or the assets of a marriage under the control of one spouse but in which both husband and wife have a substantial interest. Steinmann v. Steinmann, 121 Conn. 498, 505, 186 A. 501 (1936). The award of counsel fees in this case runs against the state treasury, however, a fund in which all citizens of this state, not just the plaintiff class of indigent women who may seek abortions, have a common interest. The equitable principle that all those who benefit from the litigation should share its costs, therefore, is inapplicable.

C

In making its award, the trial court relied upon the traditional power of the chancellor to do equity in a particular situation and thus to allow attorneys’ fees “when the interests of justice so require”; Hall v. Cole, supra, 4-5; or whenever “overriding considerations indicate the need for such a recovery.” Mills v. Electric Auto-Lite Co., supra, 391-92. The court also drew upon the statutory analogy of General Statutes § 52-251b, which allows a reasonable attorneys’ fee to the prevailing party “[i]n any civil action to recover damages for injury to the person or to real or personal property arising out of a violation of section 46a-58 . . . .” The referenced statute makes it a “discriminatory practice” to subject any person “to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.”

The court also noted that if the plaintiff had pursued the administrative remedy of appealing from a denial of her request for benefits pursuant to General Statutes § 4-183, a provision of our Uniform Administrative Procedure Act, she might have been eligible for an award of counsel fees in accordance with § 4-184a. The failure to exhaust or even attempt an administrative solution of her predicament, however, was excused “because such a remedy would be inadequate and futile.”

The general equitable principle that a court must do what the interests of justice require provides little useful guidance in deciding whether to deviate from so well entrenched a rule of our jurisprudence as that which requires each party, in the absence of agreement or statute, to bear his own litigation expenses. Although some may question the pattern of exceptions to the rule that the General Assembly has painstakingly developed, the inference of legislative approval of the general prohibition against attorneys’ fee awards to a prevailing party cannot be ignored. For this reason the trial court’s resort by analogy to § 52-251b, which was not enacted until 1984, three years after commencement of this action, was inappropriate. Statutory analogies may furnish guidance in filling a void in the law, but cannot be utilized to extend a statute tailored for a precisely defined situation to others not included within its terms. In addition to the judicial policy against construing statutes to modify substantive liability for past deeds; Neiditz v. Mortem S. Fine & Associates, Inc., 199 Conn. 683, 691, 508 A.2d 438 (1986); and the general provision of General Statutes § 1-1 (u) that “[t]he passage or repeal of an act shall not affect any action then pending,” subsection (b) of § 52-251b provides that the statute “shall not be deemed: (1) To create a new cause of action ... or (2) to confer any new jurisdiction upon the superior court .... ” Furthermore, the statute applies only to a “civil action to recover damages for injury to the person or to real or personal property arising out of a violation of section 46a-58 . . . . ” Leaving aside questions of whether this action involved a violation of § 46a-58 or whether the plaintiffs’ grievances could be deemed to constitute “injury to the person,” it is plain that no damages were awarded by the court or even sought in the complaint as finally amended.

The reliance of the trial court on § 4-184a, allowing attorneys’ fee awards to all but wealthy prevailing parties in administrative appeals “if the court determines that the action of the agency was undertaken without any substantial justification,” was similarly misplaced. Aside from whether the issuance of the invalidated regulation was “without any substantial justification,” an issue we find it unnecessary to address, this statute indicates no intention on the part of the legislature to allow attorneys’ fees to be recovered by successful litigants outside the route of an administrative appeal. We must presume that the legislature had sufficient reason to limit this relief to administrative appeals. One justification may have been to encourage utilization of the administrative process. Although that avenue might not have provided the named plaintiff or others in the same predicament with the immediate relief that may have been necessary, it might well have been pursued successfully during the ensuing five years while this action languished in the trial court, the period during which most of the litigation expenses were incurred. The pendency of this action would not have barred resort to the administrative remedy.

Our review of the statutes relied upon by the trial court as lending support for an award of counsel fees has brought us to the wholly different conclusion that they were never intended to apply to the circumstances of the case before us and that their inapplicability demands that we respect the legislative prerogative of choosing the special circumstances under which such awards may be made.

D

The remaining grounds relied upon in the memorandum of decision relate to the trial court’s view that it is the constitutional duty of the state to provide access to the judicial process for the litigation of certain constitutional claims against state officials by persons without financial means to engage the services of attorneys. No parallel duty can be found on the part of a private party defendant, who would obviously have no constitutional obligation to assist in the implementation of the constitutional rights of others. In the absence of an applicable statute, the award of attorneys’ fees is precluded even where a defendant’s conduct may be held to have violated a plaintiff’s constitutional right. See Hall v. United States, 773 F.2d 703, 706-708 (6th Cir. 1985); Smith v. Cumberland School Committee, 703 F.2d 4, 7-9 (1st Cir. 1983).

Some additional situations in which courts have undertaken to award attorneys’ fees without statutory authority are those involving willful disobedience of a court order or deceitful, vexatious or other reprehensible conduct on the part of a defendant. Alyeska Pipeline Service Co. v. Wilderness Society, supra, 258-59. In Connecticut an award of punitive damages for an intentional tort is limited to the amount of attorneys’ fees incurred by the plaintiff in the suit; Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 236-38, 477 A.2d 988 (1984); and thus may be viewed as a further instance of a nonstatutory award of such fees. Neither the plaintiffs nor the trial court, however, have relied upon any of these exceptions.

Our review of the circumstances under which awards of attorneys’ fees may be made against private party defendants who lose a law suit makes it evident that, if the defendants in this case had been private individuals rather than state officials mantled by the state’s sovereign immunity, no award against them for the attorneys’ fees of the indigent plaintiffs would have been warranted. The significance of this conclusion for our subsequent discussion of the assertion of the sovereign immunity defense by the defendants is that the classic criticism of that defense, that it exempts state officials from a liability that is imposed on others under the same circumstances, is not applicable to this case. The question for us is whether a liability should be imposed upon the state that the law does not impose on others.

II

“We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). In its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and “there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834 (1907); Bergner v. State, 144 Conn. 282, 284-85, 130 A.2d 293 (1957). This absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others. “In a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts.” Sentner v. Board of Trustees, supra, 343. Sovereign immunity does not bar suits against state officials acting in excess of their statutory authority or pursuant to an unconstitutional statute. Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). This court has accordingly entertained suits like the present action, in which declaratory relief is sought as well as related injunctive relief; Rogan v. Board of Trustees for State Colleges, 178 Conn. 579, 424 A.2d 274 (1979); and also suits seeking only to enjoin state officers from illegal or unconstitutional acts. Sentner v. Board of Trustees, supra, 344-45; see University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 388, 512 A.2d 152 (1986); Duguay v. Hopkins, 191 Conn. 222, 227 n.4, 464 A.2d 45 (1983). With respect to the declaratory and injunctive relief sought by the plaintiffs and ordered by the court in this case, these precedents plainly establish that sovereign immunity is unavailable as a defense, nor does the state claim otherwise.

In the absence of legislative authority, however, we have declined to permit any monetary award against the state or its officials. Fetterman v. University of Connecticut, 192 Conn. 539, 550, 473 A.2d 1176 (1984); State v. Chapman, 176 Conn. 362, 365, 407 A.2d 987 (1978). “The claims for damages brought against [the University of Connecticut] and certain officials at the university are, in effect, actions against the state as a sovereign and are, therefore, barred by the doctrine of sovereign immunity.” Fetterman v. University of Connecticut, supra. We have excepted declaratory and injunctive relief from the sovereign immunity doctrine on the ground that a court may fashion these remedies in such a manner as to minimize disruption of government and to afford an opportunity for voluntary compliance with the judgment. Sentner v. Board of Trustees, supra. We have adjudicated the rights of the parties in such cases acting on the presumption that other governmental departments will accede to our interpretation of the applicable law. Horton v. Meskill, supra, 627-28. A money judgment, however, is directly enforceable, without further court intervention, against any property of the judgment debtor that is not statutorily exempt. General Statutes § 52-3501

Even where the monetary award is so minimal as the sum a prevailing party would be entitled to receive as taxable costs under General Statutes § 52-257, this court has refused to sanction a monetary judgment against the state in the absence of explicit statutory authority. State v. Chapman, supra. “A statute giving a right to costs in general terms will not be construed to include an award against the State, because the State is invested with the immunities from legal process, mesne and final, which at common law belonged to the King and there would be no power in the court to enforce its decree.” Id.; State v. Anderson, 82 Conn. 392, 393-94, 73 A. 751 (1909). “[I]t is a general principle that what courts cannot enforce they cannot decree.” State v. Anderson, supra, 393; see Pellegrino v. O’Neill, 193 Conn. 670, 683, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). Our refusal to permit an award of so trifling a sum as taxable costs against the state on the ground that sovereign immunity foreclosed such an interpretation of the general terms of our taxation of costs statute strongly militates against approval of the much more substantial award of attorneys’ fees made in this case.

The trial court plainly recognized the weight of legal precedent barring a monetary award against the state, but concluded that in this case the necessity of an award of counsel fees so that the indigent plaintiffs could enforce their constitutional rights outweighed the policies implicated in the doctrine of sovereign immunity. Apart from reliance upon judicial precedent and statutory analogy, the central thrust of the trial court’s decision is that the plaintiff class of indigent women had been deprived of a constitutional as well as statutory right to a state financed abortion by the regulation of the defendant commissioner limiting state funding of abortions to only those endangering life. The court concluded that to implement their right to judicial redress of injuries as provided by our state constitution, article first, § 10, the services of attorneys were essential and should be paid for by the state. Thus, the court, as well as the plaintiffs, relied for a constitutional ground upon this state constitutional right of redress to override the defense of sovereign immunity rather than upon any federal constitutional provision.

We find it unnecessary to address the merits of the constitutional issues raised concerning the scope of the right of redress under our state constitution, because the record does not indicate that the plaintiffs have exhausted the administrative remedy available to them of presenting their claim for attorneys’ fees first to the claims commissioner in accordance with General Statutes §§ 4-141 through 4-165b. “It is a cardinal principle of judicial review ‘that when an adequate administrative remedy is provided by law, it should be exhausted.’ Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977); see Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 467, 378 A.2d 547 (1977); Wagner v. Connecticut Personnel Appeal Board, 170 Conn. 668, 671, 368 A.2d 20 (1976); 3 Davis, Administrative Law § 20.01; General Statutes § 4-183 (a); 2 Am. Jur. 2d, Administrative Law § 595. Claims of constitutional violations are no exception to this general rule. See Florentine v. Darien, 142 Conn. 415, 426-27, 115 A.2d 328 (1955). Application of this principle, however, is limited to those situations where the pursuit of administrative remedies is not necessarily futile. See Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., supra, 588; Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969); 2 Am. Jur. 2d, Administrative Law § 603.” Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983).

Although the failure of the plaintiffs to resort to the claims commissioner for the monetary relief they seek was never raised at trial or on appeal, we must nevertheless determine whether they have bypassed an administrative remedy, because exhaustion of such an alternative means of relief is a prerequisite to our jurisdiction to consider their constitutional claim. Id., 559. “When an administrative remedy is provided by law, relief must be sought by exhausting this remedy before resort to the courts.” McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953); see Laurel Park, Inc. v. Pac, 194 Conn. 677, 689, 485 A.2d 1272 (1984). Because the exhaustion issue implicates our jurisdiction to address the constitutional ground relied upon by the plaintiffs, it must be resolved even though it has not been raised by the defendants. “The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.” Woodmont Assn. v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912).

In implementing article eleventh, § 4, of our state constitution, the legislature has established a tribunal, the claims commissioner, for the adjudication of claims against the state where monetary relief is sought. General Statutes §§ 4-141, 4-142; Hirschfeld v. Commission on Claims, 172 Conn. 603, 604, 376 A.2d 71 (1977). The claims commissioner is authorized to “approve immediate payment of just claims not exceeding [$7500].” General Statutes § 4-158. For claims greater than that sum, the claims commissioner must recommend their payment or rejection to the general assembly which “may accept, alter or reject any such recommendation.” General Statutes § 4-159. The claims commissioner also, when he “deems it just and equitable,” may effectively waive the state’s sovereign immunity by authorizing suit “on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.” General Statutes § 4-160 (a). This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions. General Statutes §§ 4-148 (b), 4-160.

The claim of the plaintiffs for attorneys’ fees incurred in obtaining necessary health related benefits erroneously denied to them by state officials falls within the jurisdiction of the claims commissioner, as set forth in § 4-142, to “hear and determine all claims against the state,” with five exceptions, none of which are applicable. “The state claims commissioner is charged with the duty to hear and determine all petitions for the payment or refund of money from the state or for permission to sue the state.” Sullivan v. State, supra, 555. Our determination in part I that a private party in the same position as the state in this case would not have been liable for attorneys’ fees would render fruitless an authorization to sue the state, because its liability in such a suit is “coextensive” with that of a private person. General Statues § 4-160 (a). If the claim had been timely filed, however, the commissioner would have been empowered to consider whether the plaintiffs’ demand for attorneys’ fees constituted a “just claim,” one that “in equity and justice the state should pay, provided the state has caused damage or injury or has received a benefit . . . .” General Statutes § 4-141.

“Since we are not aware of any legal barrier to the presentation of the plaintiffs claim to the commissioner or to his favorable action upon it, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate.” Sullivan v. State, supra, 559. The failure of the plaintiffs to pursue this administrative remedy precludes an adjudication of the constitutional claim they have raised. Id. No determination of whether a constitutional necessity exists that would supersede the state’s sovereign immunity can be made when the alternative procedure available through the claims commissioner, which might have provided the relief sought, has been ignored. Id.; see Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 186, 286 A.2d 299 (1971). We conclude that the trial court should have dismissed the plaintiffs’ claim for attorneys’ fees.

There is error in the supplemental judgment awarding counsel fees and costs to the plaintiffs, that judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the claim for such an award.

In this opinion Healey and L. Dorsey, Js., concurred.

Peters, C. J., with whom Hull, J.,

joins, concurring. I agree with the majority opinion that this case is governed by the holding of Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983). Accordingly, the trial court lacked jurisdiction to consider the merits of the plaintiffs’ cause of action because they failed to exhaust the administrative remedy of filing a claim for monetary relief with the claims commissioner.

Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the plaintiffs’ complaint, any further discussion of the merits is pure dicta. Lacking jurisdiction, neither the trial court nor this court should deliver an advisory opinion on matters entirely beyond our power to adjudicate. See Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985); State v. Parker, 194 Conn. 650, 657 n.7, 485 A.2d 139 (1984). Although it is accepted judicial practice to consider and resolve statutory issues before reaching constitutional conundra; see Moore v. McNamara, 201 Conn. 16, 21, 513 A.2d 660 (1986); State v. Madera, 198 Conn. 92, 105, 503 A.2d 136 (1985); we have not previously indulged in statutory or common law exegesis in the absence of jurisdiction. I disagree therefore with the propriety and the substance of all of the majority opinion with the exception of the jurisdictional holding based on Sullivan v. State, supra.

       The named plaintiff at the inception of this litigation obtained an order of the trial court permitting her to prosecute the action under a fictitious name in order to protect her privacy.

       Both the commissioner of income maintenance and the state treasurer are defendants in this case and the trial court rendered judgment against both. The interests of both defendants coincide.

       The July 15,1981 regulation of the department of income maintenance that the plaintiffs have successfully challenged corresponded closely to the June 5,1981 version of the Hyde Amendment as enacted by Congress. See Supplemental Appropriations and Rescission Act of 1981, Pub. L. 97-12, § 402, 95 Stat. 96. Under this legislation federal funding of abortions for Medicaid recipients was restricted to situations “where the life of the mother would be endangered if the fetus were carried to term.” The amendment also provided that “the several States are and shall remain free not to fund abortions to the extent that they in their sole discretion deem appropriate.” On June 30,1980, the United States Supreme Court had upheld the constitutionality of an earlier formulation of the Hyde Amendment, rejecting claims that it violated the due process right of a woman to terminate her pregnancy, that it violated freedom of religion, and that it denied indigent women equal protection of the laws. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied, 448 U.S. 917, 101 S. Ct. 39, 65 L. Ed. 2d 1180 (1980). The court also had concluded that federal statutes did not require a state to fund medically necessary abortions for which federal reimbursement was unavailable under the Hyde Amendment. Id., 309; see Williams v. Zbaraz, 448 U.S. 358, 369, 100 S. Ct. 2694, 65 L. Ed. 2d 831, reh. denied, 448 U.S. 917, 101 S. Ct. 38, 39, 65 L. Ed. 2d 1180 (1980).

       The term “medically necessary abortions” was later defined in the judgment on the merits to mean “those abortions necessary to ameliorate a condition that is deleterious to a woman’s physical and/or psychological health . . . .”

       No appeal has been taken by the physician class of plaintiffs to challenge this ruling.

       The concurring opinion disputes the propriety of discussing any of the exceptions to the rule prohibiting attorneys’ fees to be awarded to the successful litigant in view of our ultimate conclusion that the plaintiffs’ claim for attorneys’ fees should have been dismissed. If, however, any of these exceptions were applicable, we should properly consider whether it afforded a basis for avoiding the doctrine of sovereign immunity, as the trial court concluded in respect to the two statutory exceptions relied upon, General Statutes §§ 4-184a and 52-251b. We note that in Sullivan v. State, 189 Conn. 550, 553, 457 A.2d 304 (1983), we first resolved the nonconstitutional grounds raised in support of a claim against the state before dismissing, for failure to exhaust the administrative remedy available through the claims commissioner, the constitutional ground advanced to overcome the doctrine of sovereign immunity. We relied upon our resolution of the nonconstitutional issues in reaching the conclusion that an application for permission to sue the state under General Statutes § 4-160 (a) would have been fruitless, a determination we also make in this appeal.

       Practice Book § 50 at the time this action was commenced provided for a waiver of court costs and necessary expenses in commencing an action by an indigent “[i]n any case in which the plaintiff, without such a waiver, will be deprived of a right by which he is entitled to bring an action . . . . ” The named plaintiff never sought such a waiver when this suit was brought.

       “ ‘As early as 1278, the courts of England were authorized to award counsel fees to successful plaintiffs in litigation. Similarly, since 1607 English courts have been empowered to award counsel fees to defendants in all actions where such awards might be made to plaintiffs. Rules governing administration of these and related provisions have developed over the years. It is now customary in England, after litigation of substantive claims has terminated, to conduct separate hearings before special “taxing Masters” in order to determine the appropriateness and the size of an award of counsel fees. To prevent the ancillary proceedings from becoming unduly protracted and burdensome, fees which may be included in an award are usually prescribed, even including the amounts that may be recovered for letters drafted on behalf of a client.’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 n.18, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975).

       The majority also relied upon a federal statute, 28 U.S.C. § 2412, which permits costs in civil actions to be taxed against the United States, “but not including the fees and expenses of attorneys,” pointing out the incongruity of allowing attorneys’ fees against private parties when the statute precludes such an award against the government, which is often the principal culprit in actions where the private attorney general theory would be applicable. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975).

       “[General Statutes] Sec. 4-184a. award of reasonable fees and EXPENSES TO CERTAIN PREVAILING PARTIES IN APPEALS OF AGENCY DECISIONS. (a) For the purposes of this section:
      “(1) ‘Person’ means a person as defined in section 4-166, but excludes (A) an individual with a net worth in excess of five hundred thousand dollars, (B) a business whose gross revenues for the most recently completed fiscal year exceeded one million five hundred thousand dollars, and (C) a business with more than twenty-five employees.
      “(2) ‘Reasonable fees and expenses’ means any expenses not in excess of seven thousand five hundred dollars which the court finds were reasonably incurred in opposing the agency action, including court costs, expenses incurred in administrative proceedings, attorneys’ fees, witness fees of all necessary witnesses, and such other expenses as were reasonably incurred.
      “(b) In any appeal by an aggrieved person of an agency decision taken in accordance with section 4-183 and in any appeal of the final judgment of the superior court under said section taken in accordance with sections 51-197b, the court may, in its discretion, award to the prevailing party, other than the agency, reasonable fees and expenses in addition to other costs if the court determines that the action of the agency was undertaken without any substantial justification.”

       The trial court did not expressly address the substantial benefit rationale proposed by the plaintiffs, and appears not to have relied upon it.

       The amici curiae brief filed by four legal service organizations in support of the attorneys’ fee award argues that General Statutes § 52-251b should be applied retroactively in this case, relying upon Bradley v. Richmond School Board, 416 U.S. 696, 710-24, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). In that case, however, no provision of federal statutory law is mentioned comparable to General Statutes § 1-1 (u) which exempts pending actions from new enactments. Furthermore, the federal statute then allowing fee awards in cases involving racial discrimination in education; 20 U.S.C. § 1617 which was later repealed; contained no limitation that would militate against retroactive application such as the provision of General Statutes § 52-25lb (b) that no new cause of action was intended to be created.

       The original complaint claimed damages as well as other relief. The claim for damages was withdrawn after the defendants had filed a motion to dismiss.

       Article eleventh, § 4, of our state constitution provides: “Claims against the state shall be resolved in such manner as may be provided by law.”

       General Statutes § 4-142 provides: “There shall be a claims commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes, and (5) claims for the refund of taxes.”
      The plaintiffs’ claim for attorneys’ fees obviously does not fall within the subject matter of the first, fourth and fifth exceptions. Our determination that this claim, but for the constitutional ground relied upon that we do not address, would be barred by sovereign immunity makes it clear that it does not fall within the second exception, where “suit otherwise is authorized by law.” With respect to the third exception, “claims for which an administrative hearing procedure otherwise is established by law,” there is no agency but the claims commissioner that is authorized to consider the plaintiffs’ claim for attorneys’ fees incurred in this litigation.

       General Statutes § 4-148 (a) provides: “No claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.”


author: Dupont, J.

text:
    The Connecticut Water Company v. Roland Beausoleil
    (12969)
    Peters, C. J., Healey, Santaniello, Dupont and Hadden, Js.

      Argued February 2
    decision released June 9, 1987

      Carla R. Walworth, with whom, on the brief, was Dean M. Cordiano, for the appellant (plaintiff).

      Kevin T. Nixon, for the appellee (defendant).
   Dupont, J.

The primary issue in this appeal is whether the trial court erred in rendering a summary judgment in favor of the defendant on the ground that the doctrine of res judicata precluded the plaintiff’s action for damages when the plaintiff had previously participated in an administrative action against the defendant. The resolution of two subsidiary issues is determinative of whether summary judgment should have been granted. The issues are: (1) whether the scope of the prior administrative enforcement action brought in the Superior Court permitted the plaintiff, as an intervening party, to seek the damages he now claims; and (2) whether a stipulated judgment rendered pursuant to a motion for stipulated judgment signed by the parties in the prior administrative enforcement action encompassed the damages the plaintiff now claims. We find error.

The action which is the subject of this appeal is one for damages in which the plaintiff claims that the defendant maintained a private nuisance and negligently and intentionally permitted the contamination of the plaintiffs reservoir which is part of a public water supply system. The plaintiffs complaint alleges that it owns and operates Moody Reservoir and that the defendant owns land being developed as a residential subdivision. The complaint further alleges that, in connection with the development, the defendant engaged in activities which caused extensive soil erosion and caused a brook on the defendant’s land to contain a silt-laden run-off. The brook feeds Moody Reservoir and the run-off has caused elevated color and turbidity levels in the reservoir.

The prior administrative action involved an order of the commissioner of the department of environmental protection (commissioner) which was previously issued to the defendant pursuant to the Water Pollution Control Act, General Statutes § 22a-432. That order required the defendant to take necessary action to install and maintain erosion and siltation control measures on his land. The order contained a finding that the defendant was maintaining a facility “which reasonably can be expected to create a source of pollution of the waters of the state” and contained specific measures and programs to be undertaken by the defendant, including a timetable for their completion.

The order further required the defendant to verify to the commissioner that construction of long term erosion and siltation control measures were completed and being maintained in accordance with an engineering report to be reviewed and approved by the commissioner. The order referred only to the defendant and his land and did not refer to the plaintiff or its reservoir. The defendant could have, but did not, seek a hearing before the commissioner to contest or modify the order as provided in General Statutes §§ 22a-432 and 22a-436.

A suit for injunctive relief and compliance with the commissioner’s order was brought against the defendant by the attorney general at the request of the commissioner as provided by General Statutes § 22a-435. The complaint alleged that the commissioner had issued an order to the defendant requiring him to take specific measures to prevent pollution to Moody Reservoir, and that the defendant had failed to comply with the order. Pursuant to General Statutes §§ 22a-432 and 22a-435, a permanent injunction was sought to restrain the defendant from maintaining a potential source of pollution to the waters of the state. An order was also sought to require the defendant to forfeit to the state a sum not to exceed ten thousand dollars, to be fixed by the court, for each offense. General Statutes § 22a-438.

The plaintiffs motion to intervene in the Superior Court action as a party plaintiff was granted by the trial court. The motion claimed “an interest that the judgment in [the] action will affect, and it [the plaintiff] is directly interested in and may be affected by the granting of a temporary or permanent injunction . . . ."

The plaintiff filed no other pleading in the action, and sought no damages from the defendant for any damage to its reservoir. Judgment was rendered in accordance with a motion for stipulated judgment. The motion stated that the commissioner and the defendant stipulated to judgment, but was signed by the plaintiff as well as the defendant and an assistant attorney general for the commissioner, on October 3, 1984. In February, 1985, the defendant and the commissioner signed a consent decree. The plaintiff, however, did not sign the decree.

The stipulation provided that certain measures be taken by the defendant to prevent pollution and erosion. The stipulation did not mention the plaintiffs reservoir, and required no approval by the plaintiff of any work to be done by the defendant. Instead, it specifically provided that the defendant take remedial action which, “in the opinion of the Department of Environmental Protection, is adequate to prevent further erosion.”

In the plaintiffs present action for damages, the trial court found that there was no question of fact relating to the intent of the parties in signing the motion for stipulated judgment, and held that the defendant was entitled to judgment as a matter of law because the plaintiff could have litigated the claim for relief of the present case in the prior case and not having done so, was barred from bringing a second action.

I

The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983). “Our rules of res judicata are based on the public policy that ‘a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.’ ” Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 363-64, 511 A.2d 333 (1986), citing In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). In order to resolve the question of whether the plaintiff, as an intervenor in the commissioner’s administrative enforcement action against the defendant, could have sought monetary damages in that action, it is necessary to determine the scope of that action as provided by statute. See Duhaime v. American Reserve Life Ins. Co., supra, 364.

Title 22a of the General Statutes is entitled “Environmental Protection.” It contains various acts, all relating to the general purpose of the entire title. Sections 22a-l through 22a-13 provide for the general state policy, create a department of environmental protection, and establish the duties and powers of its commissioner. The Environmental Protection Act is contained in General Statutes §§ 22a-14 through 22a-20. Sections 22a-l through 22a-20 are important to an understanding of the scope of judicial review to be accorded to the various other acts also contained within the same title.

The commissioner’s order in this case was issued pursuant to the Water Pollution Control Act, one of the many acts contained in Title 22a. The plaintiff was permitted to intervene as a party in the action for an injunction brought by the commissioner solely because of the provisions of § 22a-19. That section provides that in any judicial review of an administrative proceeding, any person may intervene as a party on “the filing of a verified pleading asserting that the . . . action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

The Environmental Protection Act authorizes only limited forms of relief and encompasses injunctive and declaratory relief but not a private claim for damages. Its purpose is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with “an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.” General Statutes § 22a-15. It, therefore, allows a member of the general public to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. General Statutes § 22a-19. Although intervention is allowed, it is strictly limited to the raising of environmental issues. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 490, 400 A.2d 726 (1978). By permitting such intervention, the act confers standing to private persons to bring actions to protect the environment. Belford v. New Haven, 170 Conn. 46, 54, 364 A.2d 194 (1975). “Such standing, however, is conferred only to protect the natural resources of the state from pollution or destruction.” (Emphasis added.) Id. The legislative history of the Environmental Protection Act makes it clear that the only relief available to the intervenor in such actions is an injunction or a declaratory judgment. There can be no award of damages to the intervenor. 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 739-40; see also H. Johnson, “Environmental Protection Act of 1971,” 46 Conn. B.J. 422, 435 (1972).

The action for an injunction pursuant to § 22a-432 and 22a-435 is part of a statutory scheme and follows an administrative decision that a defendant is a potential polluter of the waters of the state. The injunction is mandatory when, as here, the defendant has chosen not to attack the reasonableness of the order by seeking a hearing before the commissioner. Water Resources Commission v. Connecticut Sand & Stone Corporation, 170 Conn. 27, 364 A.2d 208 (1975). Without a hearing there can be no appeal to obtain a judicial review of the order. Id., 32. For purposes of the commissioner’s suit for an injunction and penalties payable to the state, the court and the commissioner are coordinate actors in the achievement of the purposes of the Water Pollution Control Act. Id., 31. Those purposes require an expedited hearing pursuant to General Statutes § 22a-435 and the absolute right to an injunction if the commissioner proves that the defendant has failed to comply with an order to abate pollution.

Sections 22a-432 and 22a-435 provide that the actions brought pursuant to the sections shall have precedence in the order of trial. According preferential treatment for trial is an indication that the legislature deemed it necessary to have a speedy resolution of questions of pollution. If private actions for damages were also to be resolved in the same action, the policy of a prompt resolution of the case would be hampered.

Two of our recent decisions also support the conclusion that the plaintiff could not have litigated its claim for damages in the injunctive action brought by the attorney general. In Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984), and Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984), we recognized that General Statutes § 22a-19 does not expand the jurisdictional authority of an administrative body acting pursuant to a separate act of title 22a to hear any and all environmental matters, but rather, limits an intervenor to the raising of those environmental matters which impact on the particular subject of the act pursuant to which the commissioner is acting. Middletown v. Hartford Electic Light Co., supra, 597; Connecticut Fund for the Environment, Inc. v. Stamford, supra, 250-51. If an intervenor is limited to raising only those environmental matters related to the particular subject of an act, that same intervenor certainly cannot be allowed to raise other issues relating to his own private cause of action. Here, the commissioner was acting pursuant to the provisions of the Water Pollution Control Act, and the intervening plaintiff was limited to raising environmental matters relating to that act. The plaintiff could not expand the scope of that action.

The plaintiff is correct in its contention that its intervention in the administrative action was limited to environmental concerns that did not encompass a claim for private damages. A “claim,” within the context of an administrative agency proceeding, does not have the broad definition of a “claim” in a judicial tribunal. Bethesda Ford, Inc. v. Ford Motor Co., 572 F. Sup. 623, 631-32 (D. Md. 1983). The usual claim in a judicial tribunal of general jurisdiction gives that tribunal comprehensive jurisdiction to adjudicate all contentions of fact and all legal theories raised by a complaint. Id. The enforcement action of the commissioner in this case involved a judicial review of an action arising out of the particular jurisdiction of the commissioner. Had the defendant sought a hearing before the commissioner pursuant to § 22a-436, the plaintiff would have been allowed to intervene under General Statutes § 22a-19. In that hearing it could not have raised its private claims. “These limitations on the authority [of the commissioner] should carry corresponding limitations on the scope of ‘claims’ for the purpose of the rule of claim preclusion.” 2 Restatement (Second), Judgments § 83, comments.

If the plaintiff could not have raised its claim for damages at such a hearing, it could not raise them upon intervention in any appeal from the hearing by the defendant, had there been one. The plaintiff, therefore, is in no better position upon its intervention in the commissioner’s suit for an injunction.

Intervention allows one who was not a party in an original action to become a party upon his request. He has a derivative role by virtue of an action already shaped by the original parties. He takes the controversy as he finds it and may not introduce his own claims to restyle the action. Manter v. Manter, 185 Conn. 502, 506, 441 A.2d 146 (1981). This is all the more true where a statute allows intervention for a specified purpose. Id.

We conclude, therefore, that the plaintiff in the present case intervened in the administrative action for the limited purpose of protecting an interest which might be affected by the granting of the injunction. It sought no more than what either the Environmental Protection Act or the Water Pollution Control Act provided. See Dwight Building Co. v. Stamford House Wrecking Co., 193 Conn. 297, 302-304, 476 A.2d 568 (1984). Those acts are concerned with the public trust, and not the private vindication of collateral rights which might flow from the abuse of the public trust. We conclude that the plaintiff could not have interjected its claim for damages in the commissioner’s suit for an injunction. The plaintiff was not precluded by the doctrine of res judicata from bringing a subsequent action for damages against the defendant. See 1 Restatement (Second), Judgments § 26 (1) (c).

II

The defendant claims that even if the plaintiff could not have brought a claim for damages in the prior administrative action, it is nevertheless precluded from seeking damages in a subsequent action because it was a signatory to the motion for a stipulated judgment in the prior action. When parties to a lawsuit voluntarily enter into a stipulated judgment, such judgment is as conclusive as if it had been rendered upon controverted facts. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983). Accordingly, a stipulated judgment may operate as res judicata to the same extent as a judgment after a contested trial. Gagne v. Norton, 189 Conn. 29, 31, 453 A.2d 1162 (1983); William G. Major Construction Co. v. DeMichely, 166 Conn. 368, 375, 349 A.2d 827 (1974); Bryan v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192 (1956); Owsiejko v. American Hardware Corporatism, 137 Conn. 185, 187-88, 75 A.2d 404 (1950); annot., 91 A.L.R.3d 1170, 1173-74.

The motion for the stipulated judgment in this case begins with the words: “The plaintiff Commissioner of Environmental Protection and the defendant Foresite Builders [Roland Beausoleil d/b/a Foresite Builders] hereby stipulate to a judgment as follows . . . .’’The plaintiff signed the motion as the intervening plaintiff.

In order to determine what litigation the plaintiff was precluded from pursuing after it had signed the stipulation, we must first determine the true scope of the agreement. Gagne v. Norton, supra, 34-35. The terms of a stipulated judgment “may not be extended beyond the agreement entered into.” Owsiejko v. American Hardware Corporation, supra, 187-88. It is usually presumed, however, “that the parties intended to settle all aspects of the controversy, including all issues raised by the papers comprising the record. ” (Emphasis added.) Gagne v. Norton, supra, 34.

A review of the stipulated judgment in the present case indicates that the plaintiff, by signing the stipulation, was only bound with respect to the way in which the defendant should take measures to control and abate pollution and erosion, and the time by which the defendant should effectuate such measures. Neither the commissioner nor the plaintiff sought or claimed damages arising from the acts of the defendant. The issue of damages, therefore, was never raised by any papers comprising the record. Cf. Gagne v. Norton, supra. The present action involving the plaintiffs claim of damages was not within the scope of either the complaint or the stipulated judgment of the prior action.

The defendant claims that the plaintiff should be barred from bringing a suit for damages because it failed expressly to reserve the right to bring a second action even when not all of those matters could have been combined in the first action. The defendant alleges that the parties could have stipulated to damages even though the court could not have granted damages, and that because the plaintiff failed to reserve such a claim, it is now precluded from doing so. Cf. Parks v. Pavkovic, 753 F.2d 1397, 1404 (7th Cir. 1985). The defendant relies upon the case of Gagne v. Norton, supra, as support for his claim. We agree, however, with the plaintiff’s claim that the holding in Gagne does not apply to this case.

In Gagne v. Norton, supra, we held that an administrative appeal brought by the plaintiff to obtain public assistance benefits was barred by the operation of the doctrine of res judicata because the parties had entered into a consent decree in a prior federal action which involved similar factual claims. The federal suit was a class action, seeking declaratory and injunctive relief, as well as retroactive monetary relief. The case was not actually litigated because the parties entered into a consent decree which granted the plaintiff and the members of the class an increase in transportation expenses. No retroactive damages were awarded in that decree nor did the plaintiff reserve a claim as to such damages. The allegations of both suits were nearly identical. Although the federal court could not have awarded any monetary relief because the eleventh amendment to the constitution of the United States prevented that court from rendering judgment for damages against the state, Gagne rejected the plaintiff’s argument that she was not precluded from later seeking monetary relief in the state’s courts. This court, instead, held that it should be presumed that the parties intended by the consent decree to settle the entire controversy, including the claim for retroactive damages, unless extrinsic evidence showed that the intent of the parties was to agree otherwise.

The differences between that case and this case are several. In the former, monetary relief was sought in both the first and second actions. In this case, monetary relief was not sought in the first case by either the intervening plaintiff or the primary plaintiff, although the state did seek a penalty. Moreover, in Gagne, the consent decree was signed by all the parties; in this case the stipulation was between the commissioner and the defendant, and was merely endorsed by the signature of the plaintiff. The plaintiff did not sign the subsequent consent decree. Furthermore, in Gagne, both cases involved the same parties; in this case, the plaintiff intervened in the first action for the limited purpose stated in its motion to intervene. In Gagne, it was assumed that the plaintiff could have received monetary benefits in the state courts had she sought them in a state action prior to the signing of a consent decree in the federal court. In this case, the plaintiff could not have been awarded damages in the state action brought by the commissioner. Finally, in Gagne, the plaintiff framed the claims in the first action. In this case, the commissioner framed the claims. We hold, therefore, that the trial court could not assume that the parties intended to resolve any claim for damages in the stipulated judgment, and that the plaintiff was not precluded from pursuing such a claim in a subsequent action.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 22a-432 provides in pertinent part: “order TO CORRECT potential sources of pollution. If the commissioner finds that any person . . . has created a condition . . . or is maintaining any facility or condition which reasonably can be expected to create a source of pollution to the waters of the state, he may issue an order to such person to take the necessary steps to correct such potential source of pollution. Any person who receives an order pursuant to this section shall have the right to a hearing and an appeal in the same manner as is provided in sections 22a-436 and 22a-437. If the commissioner finds that the recipient of any such order fails to comply therewith, he may request the attorney general to bring an action in the superior court ... to enjoin such person from maintaining such potential source of pollution to the waters of the state or to take the necessary steps to correct such potential source of pollution. All actions brought by the attorney general pursuant to the provisions of this section shall have precedence in the order of trial . . . .”

       General Statutes § 22a-436 provides in pertinent part: “hearing on order to abate. Each order to abate pollution . . . shall be sent . . . to the subject of such order .... Any person who ... is aggrieved by any such order . . . may, within thirty days from the date such order or decision is sent, request a hearing before the commissioner. The commissioner shall not grant any request for a hearing at any time thereafter. After such hearing, the commissioner shall consider the facts presented to him by the person . . . including, but not limited to, technological feasibility, shall consider the rebuttal or other evidence presented to or by him, and shall then revise and resubmit the order to the person . . . or inform the person . . . that the previous order has been affirmed and remains in effect. The request for a hearing as provided for in this section . . . shall be a condition precedent to the taking of an appeal by the person . . . under the provisions of section 22a-437. The commissioner may, after the hearing provided for in this section, or at any time after the issuance of his order, modify such order by agreement or extend the time schedule therefor if he deems such modification or extension advisable or necessary, and any such modification or extension shall be deemed to be a revision of an existing order and shall not constitute a new order. There shall be no hearing subsequent to or any appeal from any such modification or extension.”

       General Statutes § 22a-435 provides in pertinent part: “injunction. If any person . . . fails to comply with any order to abate pollution, or any part thereof . . . and no request for a hearing on such order or appeal therefrom is pending and the time for making such request or taking such appeal has expired, the commissioner may request the attorney general to bring an action in the superior court ... to enjoin such person . . . from maintaining such pollution and to comply fully with such order or any part thereof. All actions brought by the attorney general pursuant to the provisions of this section shall have precedence in the order of trial . . . .”

       The consent decree was not made part of the record on appeal, nor was it a part of the trial court record.

       The alleged damage to the plaintiff in the present case may not have been fully known at the time the commissioner brought his suit or even at the time the stipulated judgment was signed. The order issued to the defendant required compliance by April, 1983. The commissioner brought his suit for an injunction on May 20, 1983. The stipulation was signed on October 3,1984. An affidavit submitted by the plaintiff in connection with a prejudgment remedy sought in the present case listed damages through December 31,1984. Given this fact and the fact that a consent decree was entered into in February, 1985, by the commissioner and the defendant, it is unlikely that all of the claimed damage arising from the defendant’s alleged pollution of Moody Reservoir could have been expeditiously litigated in the commissioner’s action for injunctive relief.