author: Shea, J.

text:
    Seal Audio, Inc. v. Bozak, Inc.
    (12579)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued January 8
    decision released April 29, 1986

      Dwight 0. Schweitzer, with whom, on the brief, was Edward Morelli, for the appellant (defendant).

      Anthony M. Fitzgerald, with whom was Wick R. Chambers, for the appellee (plaintiff).
   Shea, J.

The principal issue presented by this appeal is whether General Statutes § 52-434 (a) (4), which provides for the appointment by the chief justice of qualified members of the bar of the state as state referees, violates provisions of our state and federal constitutions.

The plaintiff brought this action upon a note for $75,000 received as part of the consideration in a sale to the defendant of certain business assets. The defendant pleaded a special defense and also a cross complaint for damages, both of which claimed fraudulent representations by the plaintiff that had induced the defendant to make the purchase and to execute the note. After the case had been placed on the trial list, it was referred, suo motu, by the court, Stoughton, J., to attorney Frederick W. Krug as a state referee appointed pursuant to § 52-434 (a) (4). It is undisputed that this reference was made without prior notice to the parties and that their express consent to the reference was never obtained. The parties, nevertheless, appeared for trial before the designated state referee, who conducted the trial and filed a report setting forth the facts found, the conclusions of law reached and a recommendation that judgment enter for the plaintiff to recover the amount due upon the note plus attorney’s fees, a total of $90,480. The state referee also filed a “memorandum of decision” explaining some of the findings and conclusions in the report. No motion to correct the report or objections to its acceptance having been filed pursuant to Practice Book §§ 438 and 440, the plaintiff moved for judgment thereon. At the hearing upon the motion, of which notice had been duly given, the defendant did not appear in order to raise its objections to the report. The court ordered that judgment enter in accordance with the report of the state referee.

It was not until the defendant filed its preliminary statement of issues in conjunction with its appeal from the judgment that any objection was raised to consideration of the case by attorney Krug as a state referee. The preliminary statement, as later amended, claimed that the appointment of attorneys as state trial referees pursuant to § 52-434 violates the provisions of our state constitution, article fifth, § 2, requiring that judges of the Superior Court be nominated by the Governor and appointed by the General Assembly, and § 6, prescribing that justices of the Supreme Court and judges of the Superior Court and Court of Common Pleas who have attained the age of seventy years and have become state referees may exercise judicial powers upon matters referred to them as state referees. The statement of issues also alleged violations of the “due process” clause of the fourteenth amendment to our federal constitution and of the analogous “remedy by due course of law” provision of article first, § 10, of our state constitution. In addition, the statement raised numerous claims of error in respect to the findings and conclusions of the referee. Essentially the same claims have been pursued by the defendant in its brief. We find no error.

I

Before discussing the merits of the defendant’s claim that § 52-434 (a) (4) is unconstitutional, we must first decide whether the failure to raise this contention in the trial court bars its consideration on appeal. “The supreme court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial.” Practice Book § 3063. A recognized exception to this rule is that a challenge to the jurisdiction of a court to render a judgment may be raised at any time, because the lack of subject matter jurisdiction cannot be waived. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976); Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 262-63, 348 A.2d 658 (1974). In Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979), we regarded a collateral attack upon the authority of a state constitutional referee to exercise the powers of the Superior Court in rendering a divorce decree as a challenge to “the power of the tribunal that adjudicated [the] case to hear and to determine the cause of action presented to it.” The constitutional issues belatedly raised by the defendant in this appeal similarly implicate the authority of the adjudicative agency whose action was essential to rendition of the judgment. Accordingly, the failure to present these constitutional claims first to the trial court does not bar their consideration in this appeal.

A

The first ground advanced by the defendant to invalidate the appointment of attorneys as state referees pursuant to § 52-434 (a) (4) is the requirement of article fifth, § 2, of our state constitution that judges of the Supreme Court and of the Superior Court be nominated by the Governor and appointed by the General Assembly. There is no such requirement for attorney referees, who are appointed solely by the chief justice in accordance with § 52-434 (a) (4).

The obvious response to this claim is that attorney referees are not judges of the Supreme or the Superior Courts, to whom the requirements of article fifth, § 2, are made applicable. More precisely, they are not judges at all. Even state constitutional referees, who are expressly authorized by article fifth, § 6, of our state constitution as well as by § 52-434 (a) (1) to exercise the powers of the Superior Court on matters referred to them, have been held not to be judges. Florida Hill Road Corporation v. Commissioner of Agriculture, 164 Conn. 360, 365, 321 A.2d 856 (1973). Such a state trial referee “is sui generis” and “sits as a special tribunal.” Id., 362. “The state referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts.” Monroe v. Monroe, supra, 180.

The defendant claims, however, that, because state constitutional referees, as former judges, were nominated and appointed in accordance with article fifth, § 2, at the time they assumed judicial office, the constitutional requirement has been fulfilled with respect to state referees within this category. No similar function is performed by the executive and legislative branches with respect to the selection of attorney state referees, who are appointed by the chief justice alone pursuant to § 52-434 (a) (4). The defendant also points to the enactment of two amendments to the statute following our decision in Monroe v. Monroe, supra, upholding the validity of a judgment rendered by a state constitutional referee. These amendments limited the duration of the appointment of a state constitutional referee to “the remainder of his term of office as a judge”; Public Acts 1980, No. 80-222, § 1; but also made him “eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member.” Public Acts 1979, No. 79-426, § 3. By thus imposing the requirement of reappointment by the General Assembly to successive terms of office for a state constitutional referee, the defendant maintains, the legislature has indicated its intention to retain its constitutional authority over the appointment of all those who act as judges under the title of state referee.

The defendant implicitly assumes that an attorney state referee performs the same function as a judge, but this assumption is wholly unfounded. Subdivision (4) of § 52-434 (a) does not vest such a referee with the authority to exercise the powers of a court, which is given only to state constitutional referees on matters referred to them by subdivision (1) as well as by article fifth, § 6, of the constitution. Having no power to render a judgment, an attorney referee is simply a fact-finder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445. The rules of practice governing procedure in matters referred to committees are also applicable to “state referees.” Practice Book § 428. A committee is obliged to report to the court “the facts found and the conclusions drawn therefrom,” but the report may be supplemented with a “memorandum of decision including such matters as [the committee] may deem helpful in the decision of the case . . . .’’Practice Book § 434. The attorney referee who heard this case filed such a report and memorandum of decision. A party may seek additions or corrections in the facts contained in the committee’s report by filing a motion for that purpose. Practice Book § 438. The reviewing court must correct the finding where material facts have been found without evidence or in ambiguous language and also where undisputed facts have been omitted. Practice Book § 439. Before judgment is rendered upon the report, an opportunity for a hearing before the court is provided for the purpose of considering any objections or exceptions to the report. Practice Book § 442. The function of the court is ordinarily to “render such judgment as the law requires upon the facts in the report as it may be corrected.” Practice Book § 443. The court, however, may resort to another procedure. “If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of his report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.” Practice Book § 443.

Unlike subdivision (1) of § 52-434 (a), which expressly authorizes state constitutional referees to exercise the powers of a court, or subdivisions (2) and (3), which restrict state referees who are retired judges of the former Circuit and Juvenile Courts to reporting the facts they have determined after a hearing in cases referred to them, subdivision (4) does not specify the function to be performed by an attorney referee in a case referred to him. The most reasonable explanation for this omission is not that such attorney referees were to exercise judicial powers, which under subdivision (1), implementing article fifth, § 6, of our state constitution, may be delegated only to state constitutional referees, but that the legislature intended attorney referees to function in the same manner as committees appointed pursuant to General Statutes § 52-425, whose determinations are subject to review by the court that renders judgment in accordance with that statute and the rules of practice. We cannot read into subdivision (4) the power to render judgments on the part of attorney referees because such authority is plainly restricted by subdivision (1) and by article fifth, § 6, to state constitutional referees. The only remaining mechanism for converting a determination made by an attorney referee into a judgment is the procedure established by the statute and the rules for reviewing the findings of a committee by the court which must render judgment. We presume that the legislature created the office of attorney referee as an alternative method of dispute resolution in order to alleviate court congestion. This salutary purpose could not be achieved without a means of implementing the findings of the attorney referee through a judgment. Since the only method available for translating the report of an attorney referee into a judgment is the established procedure applicable to the findings of a committee, we conclude that the legislature intended that procedure to be followed in matters determined by attorney referees.

This conclusion is further supported by a review of the process by which the attorney referee provision came into its present form as subdivision (4) of § 52-434 (a). The first authorization for the appointment of members of the bar as state referees appears in a 1955 amendment to the then existing statute concerning references, which had provided that a judge of the Supreme Court, Superior Court, or Court of Common Pleas, “upon attaining the age of seventy years, shall be a state referee during the remainder of his life.” Public Acts 1955, No. 453. The amendment substituted for the automatic appointment of state referees a provision authorizing the chief justice to appoint state referees for a term not to exceed one year “from among retired justices of the supreme court of errors, superior court or court of common pleas judges or qualified members of the bar of the state. ” (Emphasis added.) Id. At the time of the amendment the statute allowed references to a state referee whose duty was only “to hear and report to the court the facts in such case.” Id. In 1959 the legislature restored the provision automatically giving the status of state referee to retired judges of the Supreme, Superior and Common Pleas Courts, but allowed the chief justice to “designate as trial referees, from among the state referees, those to whom cases may be referred.” Public Acts 1959, No. 363. The provision for appointment of members of the bar as state referees was retained and the limitation restricting all referees to hearing and reporting the facts to the court remained unchanged. Id.

The 1965 revision of our state constitution added a provision, article fifth, § 6, expressly authorizing judges of the Supreme, Superior and Common Pleas Courts who had become state referees to “exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas” in matters referred to them. In 1967 the legislature implemented this constitutional change by providing that in cases referred to him a state referee “shall have and exercise the powers of the superior court or court of common pleas in respect to trial, judgment and appeal in such case.” Public Acts 1967, No. 621, § 5. The previous restriction upon the function of a state referee, limiting the referee to hearing and reporting the facts of a case to the court, was deleted. Id. In 1971, however, when the statute was amended to permit retired Circuit Court judges to serve as state referees for cases referred by that court, a provision restricting such state referees to reporting the facts to the court was included. Public Acts 1971, No. 720. A similar restriction was imposed upon retired Juvenile Court judges when they were made state referees to whom matters pending in the Juvenile Court could be referred. Public Acts 1973, No. 73-282. In 1982, through an omnibus technical revision of Title 52 of the General Statutes, § 52-434 (a) assumed its present form containing four subdivisions separately relating to the four classifications of state referees that had previously been created, constitutional state referees, retired Circuit Court judge referees, retired Juvenile Court judge referees and attorney referees to be appointed by the chief justice. Public Acts 1982, No. 82-160, § 167.

From this statutory history we glean that the legislature, in expanding the function of a constitutional state referee referred to in subdivision (1) of § 52-434 (a) from the role of factfinder to that of an official vested with the full powers of a judge in matters referred to him, did not intend that modification to apply to state referees authorized by the remaining subdivisions, including attorney referees. The statutory expansion of the powers of constitutional state referees was made in order to effectuate the increase in their authority sanctioned by the 1965 revision of our state constitution. In 1955, when provision was first made for attorney referees, the statute plainly described the duties of all state referees as those of a factfinder. None of the subsequent amendments to the statute have related specifically to attorney referees. We find, therefore, no intention on the part of the legislature to alter the function of an attorney referee from that of a fact-finder, as the statute provided when this office was first created.

Our conclusion that attorney referees are confined to the role of factfinders, like committees appointed pursuant to § 52-425, is sufficient to provide an adequate basis for rejecting the claim of the defendant that the requirements of nomination by the Governor and appointment by the legislature in article fifth, § 2, of our state constitution are applicable to such state referees. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73-86,102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982). Even in cases of private right involving only the liability of one individual to another, “there is no requirement that, in order to maintain the essential attributes of judicial power, all determinations of fact in constitutional courts shall be made by judges.” Crowell v. Benson, 285 U.S. 22, 51, 52 S. Ct. 285, 76 L. Ed. 598 (1932). “While the reports of masters and commissioners in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found.” Id., 51-52. Even in criminal cases the determination of factual issues related to a motion to suppress by a magistrate appointed to hold a hearing for that purpose, with provision for review by a judge similar to the procedure prescribed by the rules of practice for committee reports, has been held not to encroach upon the constitutional authority of the judiciary. United States v. Raddatz, 447 U.S. 667, 681-84, 100 S. Ct. 2406, 65 L. Ed. 2d 424, reh. denied, 448 U.S. 916, 101 S. Ct. 36, 65 L. Ed. 2d 1179 (1980). This court long ago held that committees appointed “to report the facts to the court for judicial action, rather than to act judicially themselves,” are not judges. Groton and Ledyard v. Hurlburt, 22 Conn. 178, 190 (1852). Because they are not judges they are not subject to the requirements for judicial office imposed by article fifth of our state constitution. Betts v. New Hartford, 25 Conn. 180, 186 (1856). We conclude that § 52-434 (a) (4) in providing for the appointment of attorneys as state referees, subject to the constraints imposed by the statutes and rules of practice for committees, does not conflict with the requirements of article fifth, § 2, for the appointment of judges because such referees are not empowered to function as judges.

B

The defendant also claims a violation of article fifth, § 6, of our state constitution, which provides that constitutional state referees, the former judges of the Supreme, Superior and Common Pleas Courts, may exercise the powers of the Superior Court or Court of Common Pleas on matters referred to them. As the defendant contends, an attorney referee appointed pursuant to § 52-434 (a) (4) could not constitutionally exercise the judicial powers that are expressly limited by article fifth, § 6, to constitutional state referees. The statutory provision for attorney referees cannot reasonably be construed to grant such powers, however, and accordingly does not transgress the section of the constitution relied upon. We have concluded that attorney referees, unlike constitutional state referees, are confined to the factfinding function because of this constitutional provision as well as the statutory history of § 52-434 (a) (4). Accordingly there is no basis for claiming that the statute, as we have construed it, conflicts with article fifth, § 6.

A related claim of the defendant is that the attorney referee unconstitutionally exceeded the scope of his authority as a factfinder by including in his report to the court certain conclusions of law and also by submitting a memorandum of decision. Although General Statutes § 52-425, authorizing the appointment of committees “to hear the evidence and report the facts to the court,” makes no reference to any additional duties, our rules of practice allow a committee to express his views upon questions of law. “The committee may accompany his report with a memorandum of decision including such matters as he may deem helpful in the decision of the case . . . Practice Book § 434. The fact that the attorney referee went beyond the bare statutory requirement of reporting the facts found by including his opinion upon the legal issues involved in the case did not transform his role into a judicial one. The views of a committee upon the law carry no more force than those of the parties in their arguments at the hearing before the court that is to enter judgment. See Lyon v. Wilcox, 98 Conn. 393, 396, 119 A. 361 (1923); Stehlin-Miller-Henes Co. v. Bridgeport, 97 Conn. 657, 665, 117 A. 811 (1922). “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected.” Practice Book § 443. The reviewing court is the effective arbiter of the law and the legal opinions of a committee, like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.

C

The defendant’s claim of a due process violation in the referral of cases to attorney referees invokes both the fourteenth amendment to our federal constitution and the analogous provisions of article first, § 8, of our state constitution. The defendant does not differentiate between them, however, by asserting greater rights under our state constitution than those available under our federal constitution. See Cologne v. Westfarms Associates, 192 Conn. 48, 57-58, 469 A.2d 1201 (1984); Horton v. Meskill, 172 Conn. 615, 649-50, 376 A.2d 359 (1977). Its argument expressly contends that our state due process provisions “have the same meaning” as those of the federal constitution.

Succinctly stated, the defendant’s due process claim is that “a party ordered, without choice or consent, to appear before an attorney acting as a trial referee [suffers] an infringement of the party’s constitutional right to due process.” We are not aware of any authority, and the defendant cites none, that even arguably supports the proposition that reference of a nonjury civil case to a nonjudicial agency to find facts and make recommendations on legal questions violates the right to due process of law so long as these determinations can be adequately reviewed in a judicial forum under procedures similar to those provided by our rules of practice. See Practice Book §§ 428 through 443. The United States Supreme Court has rejected a claim that federal due process protection requires a trial judge personally to hear the testimony of witnesses in order to determine contested factual issues relating to the admissibility of incriminating statements of a defendant in a criminal case. United States v. Raddatz, supra, 677. The widespread use of magistrates in the federal courts to find facts and recommend decisions has been upheld in the rare instances where it has been claimed to violate due process. Id.; Coolidge v. Schooner California, 637 F.2d 1321, 1325 (9th Cir.), cert. denied, 451 U.S. 1020, 101 S. Ct. 3011, 69 L. Ed. 2d 392 (1981); see Mathews v. Weber, 423 U.S. 261, 269 n.5, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976). It is unnecessary to discuss this constitutional claim further, however, because it is predicated on the erroneous assumption that the statutes authorize a court to refer a case to an attorney referee without consent of the parties.

It must be conceded that the omission from subdivision (4) of § 52-434 (a) of any provision requiring consent for a reference to an attorney referee, while such a provision is contained in subdivisions (2) and (3) for references to former Circuit Court and Juvenile Court judges, tends to support the defendant’s assumption on the basis of the maxim, inclusio unius, exclusio alterius. Our review of the statutory history of § 52-434 (a) (4), however, has brought us to the conclusion that the legislature never intended to enlarge the role of an attorney referee beyond that of a factfinder, despite an analogous omission of any such limitation in subdivision (4). A similar review of the history of § 52-434 (a) in respect to the consent requirement persuades us that the legislature never intended that § 52-434 (a) permit referrals to anyone but a constitutional state referee without the consent of the parties.

After the technical revision of Title 52 had been approved on May 11,1982, which, inter alia, subdivided § 52-434 (a) into its present four subdivisions, the statute continued to retain the requirement of “written consent of the parties or their attorneys” before a case could be referred to any state referee. Public Acts 1982, No. 82-160, § 167 (a). On May 27,1982, another amendment of § 52-434 (a) was approved modifying the requirement of consent of the parties for references to constitutional state referees, allowing the Superior Court to “refer any civil, nonjury case or, with the written consent of the parties or their attorneys, any civil jury case.” Public Acts 1982, No. 82-392, § 2. The consent requirement for references by the Circuit Court and the Juvenile Court to former judges of those courts as state referees was not affected by No. 82-392 of the 1982 Public Acts because it was contained in the separate provisions pertaining to such references which have remained unchanged since their inception and which were designated as subdivisions (2) and (3) by the 1982 technical revision. Public Acts 1982, No. 82-160, § 167 (a). Undoubtedly a similar provision expressly retaining the consent requirement for references to attorney referees would have been preferable, just as more precise draftsmanship would have dictated retention of the limitation expressly confining attorney referees to the function of factfinding. As we have noted previously, the omission of the latter created the problem that the findings of an attorney referee could not be implemented through a judgment unless the legislature had intended that the procedures set forth in the statutes and rules of practice pertaining to committees should be applicable to such referees. Similarly, the absence of a consent requirement for attorney referees would create the incongruity that consent of the parties is necessary for references to the experienced former judges of the Circuit and Juvenile Courts but unnecessary for references to attorney referees lacking any judicial experience.

We are convinced that when the consent requirement for references to constitutional state referees was removed by No. 82-392 of the 1982 Public Acts for non-jury civil cases the legislature never intended that this modification should be applicable for references to attorney referees. The only part of § 52-434 (a) that was changed was the portion recently approved for codification as subdivision (1) by the technical revision adopted on May 11, 1982, relating solely to constitutional state referees. This contemplated change in the structure of the statute militates against viewing No. 82-392 of the 1982 Public Acts as removing the necessity of consent for a reference to attorney referees, who are mentioned only in subdivision (4). The consent requirement was expressly retained for Circuit Court and Juvenile Court references in subdivisions (2) and (3) of § 52-434 (a). Consent of the parties is also required for a reference to a committee under § 52-425, except in extraordinary situations not pertinent to this appeal. Our conclusion that the legislature intended that the procedures prescribed by the statutes and rules of practice for references to committees should be followed in respect to the factfinding function of attorney referees also provides a basis for our view that consent is necessary for a reference to an attorney referee to the same extent that it is required for a reference to a committee pursuant to § 52-425. The most reasonable explanation of the omission from subdivision (4) of any reference to the consent requirement for references to attorney referees as well as their fact-finding function is that the legislature intended that the procedures applicable to committees should be followed as set forth in the statute and rules.

The conclusion we have come to, that consent is required for a reference to an attorney referee removes the essential basis for the defendant’s due process challenge to the constitutionality of § 52-434 (a) (4), since it is largely predicated on the assumption that the statute authorizes a party to be ordered “without choice or consent, to appear before an attorney acting as a trial referee.” To the extent that the defendant also claims that due process requires a court to be “constitutionally sanctioned and safeguarded” by legislative control over appointments of those who perform a judicial role, our discussion of the claimed violations of article fifth, §§ 2 and 6, of our state constitution in Part IA of this opinion is a sufficient response. Our conclusion was that attorney referees do not perform a judicial role because their function is limited to factfinding. A similar conclusion has been reached in respect to due process challenges to the use of persons outside the judiciary appointed by the federal courts to find the facts upon which the court’s judgment is based. United States v. Raddatz, supra, 681-84.

D

Another facet of the defendant’s due process challenge involves the circumstance that the reference to the attorney referee was made without giving notice that such an order was contemplated and without obtaining the consent of the parties before the order was entered. This claim no longer implicates the constitutionality of § 52-434 (a) (4), which we have construed to require such consent, but attacks the procedure followed by the court in making the reference, which did not comply with our interpretation of the statute. We have concluded that the legislature intended references to attorney referees to conform to the procedure prescribed for committees in § 52-425, which requires for appointment of a committee “the consent of all parties appearing.”

The failure of the court to obtain the consent of the parties before ordering the reference to the attorney referee does not, however, flaw the jurisdiction of the court over the subject matter under the circumstances of this case where the defendant utterly neglected to raise this procedural deficiency or any other irregularity in the trial court. After notification of the reference no attempt was made to revoke it pursuant to Practice Book § 432. Instead, the parties appeared for trial before the designated attorney referee and, without objection, proceeded to a full trial of the case on its merits. Even when the report of the committee was filed, finding the issues adversely to the defendant, no objection to its acceptance pursuant to Practice Book § 440 was raised by the defendant on any ground, let alone the lack of consent to the reference.

“We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967). “We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” State v. Grimes, 154 Conn. 314, 323, 228 A.2d 141 (1966). We have held that the failure to raise the issue of a referee’s disqualification either before or during the trial “can be construed as the functional equivalent of ‘consent in open court’ ” to the referee’s presiding over the trial. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). Only in the exceptional circumstance where an accusation of actual prejudice has been made against a judge, striking at “the very core of judicial integrity”; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953); have we departed from these principles by invoking our authority in the interests of justice to review as “plain error,” pursuant to Practice Book § 3063, claims not properly preserved in the trial court. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). We conclude that justice does not require that we consider as “plain error” the failure to obtain the consent of the parties to the reference of this case in view of the implicit consent thereto which must be inferred from the conduct of the parties in submitting the case for determination by the attorney referee without a word of protest until this appeal was filed.

II

With respect to the various claims of error relating to the merits of the factual findings made by the attorney referee, as well as the judgment rendered by the trial court based thereon, the defendant is precluded from effective appellate review by its failure to file a motion to correct the report of the referee pursuant to Practice Book § 438 or an objection to acceptance thereof pursuant to Practice Book § 440. “The defendants filed no exceptions to the acceptance of the report by the court in accordance with Practice Book [§ 440] and therefore the conclusions must stand.” Jensen’s, Inc. v. Killingworth, 152 Conn. 237, 243, 206 A.2d 114 (1964). A litigant cannot wholly ignore established procedures for the protection of its rights, as this defendant has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice. We therefore decline to review further the judgment of the trial court.

There is no error.

In this opinion the other judges concurred.

       Article fifth, § 6, of our state constitution provides: “No judge or justice of the peace shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee.”
      The judges of the Supreme Court, Superior Court and former Court of Common Pleas who have reached the age of seventy and have been appointed as trial referees by the chief justice pursuant to § 52-434 (b) are authorized by article fifth, § 6, and by § 52-434 (a) to exercise judicial powers in cases referred to them. In this opinion the term “state constitutional referee” is used to designate such a state trial referee.

       General Statutes § 52-434 (a) provides: “Sec. 52-434. . . . state referees. (a) APPOINTMENT OF RETIRED JUDGES AND MEMBERS OF THE BAR. cases referred. (1) Each judge of the supreme court, each judge of the appellate court, each judge of the superior court and each judge of the court of common pleas who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member. The superior court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case. (2) Each judge of the circuit court who has ceased to hold office because of retirement other than under the provisions of section 51-49 shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member, to whom the superior court may, with the written consent of the parties or their attorneys, refer any case pending in court in which the issues have been closed and which the judges of the superior court may establish by rule to be the kind of case which may be heard by such referees. The referee shall hear any such case so referred and report the facts to the court by which the case was referred. (3) Each judge of the juvenile court who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member, to whom a judge before whom any juvenile matter is pending may, with the written consent of the child concerned, either of his parents or his guardian or his attorney, refer any juvenile matter pending. The referee shall hear any matter so referred and report the facts to the court for the district from which the matter was referred. (4) In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more than one year. Notwithstanding'the provisions of subsection (f) of this section, state referees appointed by the chief justice from members of the bar shall receive such reasonable compensation and expenses as may be determined by the chief justice.”

       Article fifth, § 2, of our state constitution provides: “The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly.”

         It should be noted that Practice Book § 430 authorizes a “trial referee” to exercise the powers of the Superior Court in matters referred to him. “Any case referred to a trial referee shall be deemed to have been referred for all further proceedings and judgment, including matters pertaining to any appeal therefrom, unless otherwise ordered before or after the reference.” Id. The term “trial referee” as used in § 430, therefore, includes only those constitutionally and statutorily authorized to render judgments, such as state constitutional referees and senior judges. See General Statutes §§ 52-434 (a), 51-50e (c), 51-50d, 51-50Z. General Statutes § 52-434 (b) authorizes the chief justice yearly to designate “trial referees” from those falling within any of the four classifications of state referee created by § 52-434 (a), state constitutional referees, retired circuit court judge referees, retired juvenile court referees and attorney referees. We construe Practice Book § 430 to confer authority to exercise the powers of a court upon only those “trial referees” who are also state constitutional referees.

       “[General Statutes] See. 52-425. appointment op a committee in civil actions, (a) In any civil action pending in the superior court in which an issue of fact has been closed to the court, the court may, upon motion of any party to the record, appoint a committee of one, two or three disinterested persons to hear the evidence and report the facts to the court. A committee shall not be appointed without the consent of all parties appearing, unless the court, after a hearing upon the motion for appointment of a committee, is of the opinion that the questions involved are such as clearly ought to be sent to a committee.
      “(b) If the action has been brought solely for the recovery of a money demand, the committee may: (1) Report simply that it finds the issue in favor of the plaintiff and that he recover a certain sum, or that it finds the issue in favor of the defendant, as the case may be, or (2) report specifically the facts relevant to the issue and established by the evidence. In all other actions, the committee shall report specifically the facts relevant to the issue and established by the evidence.
      “(c) Upon the acceptance of any report, judgment shall be rendered thereon according to law and the facts found.”

       Although authorization for the appointment of attorneys as state referees was created in 1955 by the enactment of No. 453 of the 1955 Public Acts, no appointments were actually made pursuant to this provision until February 1, 1984, when eighty-four attorney referees were sworn in.

       The pertinent provision of the fourteenth amendment to the federal constitution is that no state shall “deprive any person of . . . property, without due process of law.”

       The defendant in its brief refers to the due process provision of our state constitution as “Article First, Section 3.” Article first, § 3, protects the right of religious liberty. We assume that the defendant intended to refer to article first, §§ 8 or 10, both of which have been construed to provide due process protection for property rights. Williams v. Bartlett, 189 Conn. 471, 477, 457 A.2d 290 (1983); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 581, 376 A.2d 60 (1977).

       We are not unmindful that at the 1982 session when the requirement of consent for references to state constitutional referees was removed by enacting No. 82-392, § 2, of the 1982 Public Acts, effective May 27,1982, the legislature also adopted No. 82-441, § 1, of the 1982 Public Acts, effective July 1,1983, which authorized the judges of the Superior Court to make rules providing a procedure for reference to a factfinder of any contract action where the amount in demand is less than $15,000 and no timely claim for a jury trial has been filed. General Statutes § 52-549n. Number 82-441, § 1, of the 1982 Public Acts, supplanted a provision for arbitration of civil actions in which the amount in controversy did not exceed $5000 that were referred for arbitration pursuant to a written agreement of the parties. Public Acts 1981, No. 81-462, § 8, effective July 1,1982. The rules adopted by the Superior Court judges to implement No. 82-441, § 1, of the 1982 Public Acts, which became effective on July 1, 1983, contain no requirement that the parties consent to a reference to a factfinder but authorize the court to make such references “on its own motion.” We do not regard these provisions concerning the reference to factfinders without consent of nonjury cases where the amount in demand is less than $15,000 to be persuasive of the legislative intention with respect to references to attorney referees of any civil nonjury case as provided in General Statutes § 52-434 (a) (4). We have no occasion on this appeal to consider possible claims relating to the validity of nonconsensual references to factfinders pursuant to General Statutes §§ 52-549n through 52-549t or Practice Book §§ 546B through 546K, which pertain to such references.

       The amendment to the consent provision by No. 82-392 of the 1982 Public Acts, repeats the text of § 52-434 (a) as it stood prior to the adoption of the technical amendment which divided the statute into four subdivisions. The reason for this discrepancy may have been that No. 82-392 of the 1982 Public Acts took effect from its passage on May 27,1982, while the technical revision, No. 82-160 of the 1982 Public Acts, did not become effective until October 1,1982. Public Acts 1982, No. 82-392, § 3; General Statutes § 2-32.

       General Statutes § 52-425; see footnote 5, supra; provides in part: “A committee shall not be appointed without the consent of all parties appearing, unless the court, after a hearing upon the motion for appointment of a committee, is of the opinion that the questions involved are such as clearly ought to be sent to a committee.”
      This appeal does not present the question of whether the court, after a hearing on a motion for reference, might have found the issues involved “such as clearly ought to be sent to a committee.” It is undisputed that no such hearing was held. Accordingly, we have no occasion to consider what cases the statute authorizes to be referred to a committee without consent of the parties or the possible constitutional ramifications of such references to a committee. See Hall v. Hall, 3 Conn. 308, 309 (1820); Slosberg v. Callahan Oil Co., 5 Conn. Sup. 375, 376 (1937).

       We note that Practice Book § 429 makes no provision for consent of the parties for reference to a committee of “any case wherein the parties are not, as a matter of right, entitled to a trial by jury.” The rule was not intended to dispense with the statutoiy requirement of consent for appointment of a committee in General Statutes § 52-425. It may have been intended to indicate the acceptance by the Superior Court as a separate magistracy of the authority to refer cases to committees created by the legislature not only in cases where the parties had consented but also in those cases where “the questions involved are such as clearly ought to be sent to a committee.” General Statutes § 52-425; see State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974); Adams v. Rubinow, 157 Conn. 150, 161, 251 A.2d 49 (1968).

       We are not concerned in this appeal with the exception to the consent requirement in General Statutes § 52-425, “unless the court, after a hearing upon the motion for appointment of a committee, is of the opinion that the questions involved are such as clearly ought to be sent to a committee.” No such motion for the appointment of an attorney referee was made and no such hearing was held. See footnote 9, supra.


source: Caselaw Access Project

license: Public Domain

text:
    Midland Insurance Company v. Universal Technology, Inc.
    (12569)
    Peteks, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued January 8
    decision released April 29, 1986

      Thomas L. Kanasky, Jr., for the appellant (plaintiff).

      John F. Fallon, with whom, on the brief, was John J. Nestico, for the appellee (defendant).
   Shea, J.

In this action the plaintiff Midland Insurance Company (hereinafter Midland), sought to recover earned premiums for an insurance policy affording coverage to the defendant Universal Technology, Inc. (hereinafter Universal), against product liability and malpractice claims arising from the use by beauticians of depilation equipment manufactured by Universal. The trial court rendered judgment for Universal in accordance with the report of a state attorney referee, Norman K. Parsells, who had been appointed pursuant to General Statutes § 52-434 (a) (4). On appeal Midland has attacked the constitutionality of this statutory provision for the appointment of members of the bar as state referees. Midland also challenges the findings of the referee and the acceptance by the trial court of his report, to which it had filed an objection. We find no error.

I

Our recent decision in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), upheld the constitutionality of General Statutes § 52-434 (a) (4), which authorizes the appointment by the chief justice of attorneys to serve as state referees. There we rejected a claim that the statute authorized such attorney referees to perform judicial functions in violation of article fifth, §§ 2 and 6, of our state constitution, which restrict the exercise of the powers of the Superior Court to judges nominated by the governor and appointed by the legislature and to former judges who have reached the mandatory retirement age of seventy years and have become state referees. We concluded that attorney referees appointed pursuant to § 52-434 (a) (4) were limited to the role of factfinders, like committees appointed under General Statutes § 52-425, “to hear the evidence and report the facts to the court.” Accordingly, we held that they do not perform a judicial function but act merely as aides to the court in a capacity that conforms to that of special masters, auditors and committees at common law.

We also rejected a due process challenge to the use of attorney referees based largely upon the omission from § 52-434 (a) (4) of any provision requiring consent of the parties for references to them. This omission, we concluded, was not indicative of any legislative intent to dispense with the consent requirement that the statute had expressly set forth prior to its revision in 1982, because the legislature intended that attorney referees function in the same manner as committees appointed pursuant to § 52-425, which contains a consent requirement. We found, therefore, no basis for the construction that § 52-434 (a) (4) permitted references to attorney referees without consent. We concluded that the constitutional claim based on such an assumption was of no merit.

In this appeal the plaintiff Midland raises a different constitutional claim falling generally within the due process category. It maintains that § 52-434 (a) (4) is void for vagueness because it does not specify the “duties, powers, authority or jurisdiction” of attorney referees. The interpretation of § 52-434 (a) (4) that we adopted in Seal Audio, Inc., limiting the role of an attorney referee to that of a factfinder or committee governed by the provisions of § 52-425 and Practice Book §§ 428 and 434, is a sufficient response to this claim. The statute and the rules clearly define the authority of a committee appointed “to hear the evidence and report the facts to the court” and also provide procedures for the protection of the rights of parties in challenging the findings of a committee in the trial court. As we have held that the statute and rules are also applicable to proceedings before an attorney referee, there is no longer any substance to the contention that § 52-434 (a) (4) is void for vagueness.

II

Pursuant to Practice Book § 440, the plaintiff Midland properly filed an objection to acceptance of the report of the attorney referee, which the court overruled in rendering judgment for the defendant. The plaintiff therefore is entitled to appellate review of the trial court’s disposition of his objection. See Seal Audio, Inc. v. Bozak, Inc., supra, 518; Jensen’s, Inc. v. Killingworth, 152 Conn. 237, 242, 206 A.2d 114 (1964).

The plaintiff challenges the finding of the attorney referee that the defendant Universal never agreed to pay the premium for or contracted for the insurance policy that provided liability coverage to it and two other corporations named as insureds therein, Depilatron Sales, Inc., and Depilatron, Inc., which were never joined as defendants in the action. It is undisputed that Depilatron Sales, Inc., paid $10,000 toward the premium due upon the policy and that no additional payment was made. The referee found that the policy was placed through a broker acting for Depilatron Sales, Inc., and not for the defendant. This finding was supported by testimony of a witness, Joel Weiss, who was the president of Depilatron, Inc., during the period the insurance policy was in force. He testified that Universal manufactured depilation machines that were purchased by Depilatron, Inc., and then marketed by Depilatron Sales, Inc., to licensed beauticians. According to Weiss, Universal already had insurance coverage and had no need for additional insurance. He testified, however, that Depilatron Sales, Inc., obtained the insurance from Midland through a broker “on behalf of all three corporations.” The plaintiff focuses upon the quoted phrase, claiming that the court could not reasonably disbelieve this testimony, and implicitly assumes that it establishes the liability of Universal for the premium.

The portion of the testimony relied upon by Midland might have been construed by the trier to indicate that the employee of Depilatron Sales, Inc., who actually negotiated with the broker concerning insurance was acting as an agent of the other two corporations named in the policy, as well as for his own employer, in procuring the policy. An alternative construction, which the trier might well have followed, is that the phrase “on behalf of” was used in the sense of “for the benefit of” and that Depilatron, Inc., chose to have the other corporations named in the policy for some business reason relating to its arrangement for purchasing and marketing the machines manufactured by Universal. There was no testimony that Universal had authorized Depilatron, Inc., or its employee, to purchase insurance on its behalf for which it would be obligated to pay the premium. A person named as an insured in a policy does not become liable for the premium due thereon by virtue of that fact alone. Stevens Ins. Co. v. Howells, 155 Mont. 494, 503-504, 473 P.2d 523 (1970); Century Ins. Agency, Inc. v. City Commerce Corporation, 396 P.2d 80 (Alaska 1964). Contractual arrangements, such as those between lessor and lessee or mortgagee and mortgagor, commonly require that one party provide insurance coverage for the benefit of another. “The fact that the insurance policy was issued in [the defendant’s] name and for its benefit . . . did not give rise to a justifiable expectation on [the plaintiff’s] part that [the defendant] had undertaken to pay the cost of the insurance.” Century Ins. Agency, Inc. v. City Commerce Corporation, supra, 81. We find no merit in the plaintiff’s challenge to the findings of the referee or to the judgment in accordance therewith.

There is no error.

In this opinion the other judges concurred.

       In this appeal the plaintiff makes no claim regarding the absence of consent because the reference of the case to the attorney referee was made pursuant to a written stipulation signed by the attorneys for the parties. Similarly, no claim is made that the attorney referee acted beyond the scope of his authority as a factfinder. The report of the referee, entitled “Decision of the Fact Finder,” contains only a summary of the evidence, a seven sentence finding of facts, and a recommendation of judgment for the defendant. See Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986).

       The plaintiffs brief also makes a passing reference to article fifth, § 6, of our state constitution, questioning the authority of a state referee to hear a case “without a grant from the legislature . . . . ” Our opinion in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), responds adequately to this peripheral claim.


author: Dannehy, J.

text:
    Appeal from Probate of Phyllis Marcus et al., Conservatrices (Estate of Ida Betzes) Phyllis Marcus et al., Conservatrices (Estate of Ida Betzes) v. Department of Income Maintenance
    (12561)
    (12635)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued January 15
    decision released April 29, 1986

      Kathleen M. Van Der Aue, with whom, on the brief, were Edward L. Marcus and James M. O’Connor, for the appellants (conservatrices).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (department of human resources).

      Kathleen M. Van Der Aue, with whom, on the brief, were Edward L. Marcus and James M. O’Connor, for the appellants (plaintiffs).

      Robert A. Nagy, assistant attorney general, with whom, on the brief, was Judith Merrill Earl, assistant attorney general, for the appellee (defendant).
   Dannehy, J.

These two appeals arise from the same set of circumstances. The plaintiffs, Phyllis Marcus and Selma Anderson, are the conservatrices for their mother, Ida Betzes, an incapable person. In the first case they appealed to the Superior Court from a disallowance by the Probate Court for the district of New Haven of an item in their account in which they asked to be allowed a credit for unauthorized gifts of certain property which belonged to their ward and which they gave to themselves and various members of the ward’s family. The matter was referred to the Hon. Raymond J. Devlin, state trial referee, who, exercising the powers of the Superior Court, affirmed the order and decree of the Probate Court and dismissed the appeal. In the second case, the plaintiffs appeal from the judgment of the Superior Court, Edelberg, J., sustaining the denial by the department of income maintenance of an application for medicaid benefits by the conservatrices on behalf of their ward. We find no error on either appeal.

The facts and procedural history of these cases follow. Phyllis Marcus and Selma Anderson were appointed co-conservatrices for their mother, Ida Betzes, by the Probate Court for the district of New Haven in November, 1976. When they were appointed her conservatrices, Betzes had assets of $596,351.09 and ample income for her comfortable support. Between December, 1976, and December, 1979, the conservatrices made a series of gifts of the ward’s property in the amount of $384,060.66. They gave $291,066.66 to themselves, and made gifts in the amount of $12,000 to each of their five children and to Edward L. Marcus and Donald B. Alderman, their spouses. They also gave $9000 to David Shifrin, the son-in-law of Phyllis Marcus. The cumulative effect of these gifts, together with management expenses, was the total depletion of their ward’s estate. Betzes, who is over ninety years old, resides at a home for the aged. She is incapacitated due to advanced age and financially unable to pay for her care and maintenance.

On February 6, 1980, Phyllis Marcus, as conservatrix, applied to the department of income maintenance for medicaid benefits on behalf of her ward. After learning of the gifts that had depleted the estate, the department of human resources, as an “interested party” under General Statutes § 45-75, petitioned the Probate Court for an accounting of the estate’s management. The Probate Court conducted a hearing, and on June 16,1980, disallowed the gifts, holding that such gifts were unauthorized under Connecticut law. Thereafter, the department of income maintenance, relying on the decision of the Probate Court, denied the pending application for medicaid benefits on June 30,1980. On July 7,1980, the conservatrices filed an appeal from probate with the Superior Court challenging the disallowance of the gifts. On July 15, 1980, the conservatrices requested an administrative hearing with the department of income maintenance concerning the denial of their application for medicaid benefits. After a hearing the department, on September 30, 1980, upheld the earlier denial of benefits. The hearing officer held that Betzes was ineligible for public assistance under department income guidelines, reasoning that the disallowance by the Probate Court of the conservatrices’ gifts rendered those funds available for the maintenance and support of the ward. The decisions of the department of income maintenance and of the Probate Court were eventually sustained on separate appeals to the Superior Court. The conservatrices have appealed to this court from the judgments of the Superior Court.

We first address the conservatrices’ claim that the Probate Court erred in its determination that the gifts from the assets of their ward’s estate were unauthorized under Connecticut law. The Probate Court held that it had no power to authorize the gifts, and on appeal, the Superior Court agreed. At the time these gifts were made, our statutes did not authorize a conservator to make gifts from property of the ward’s estate. “A conservator has only such powers as are expressly or impliedly given to him by statute. See Stempel v. Middletown Trust Co., 127 Conn. 206, 221, 222, 15 A.2d 805 [1940]. In exercising those powers, he is under the supervision and control of the Probate Court.” Elmendorf v. Poprocki, 155 Conn. 115, 118, 230 A.2d 1 (1967). A “ ‘conservator of the estate,’ ” under our law, is a person “appointed by the court of probate under the provisions of [General Statutes c. 779] to supervise the financial affairs of a person found to be incapable of managing his or her own affairs . . . .” General Statutes § 45-70a(a). The statutory duties of a conservator are to “manage all the property [of the estate] and apply so much of the net income of the property, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward’s family whom he has the legal duty to support and to pay his debts, and may sue for and collect all debts due him.” General Statutes § 45-75 (a).

“The probate court is a court of limited jurisdiction and has only such powers as are given it by statute or are reasonably to be implied in order to carry out its statutory powers.” Prince v. Sheffield, 158 Conn. 286, 293-94, 259 A.2d 621 (1969); Palmer v. Reeves, 120 Conn. 405, 408, 182 A. 138 (1935). “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963); Union & New Haven Trust Co. v. Sherwood, 110 Conn. 150, 161, 147 A. 562 (1929); see Potter v. Alcorn, 140 Conn. 96, 100, 99 A.2d 97 (1953). The Probate Court is under an “affirmative duty” to protect the assets of an incompetent’s estate. Marshall v. Kleinman, 186 Conn. 67, 69, 438 A.2d 1199 (1982). The court, and not the conservator, is “primarily entrusted with the care and management of the ward’s estate, and, in many respects, the conservator is but the agent of the court. Shippee v. [Commercial] Trust Co., 115 Conn. 326, 330, 161 A. 775 [1932]; Johnson’s Appeal, 71 Conn. 590, 597, 42 A. 662 [1899].” Elmendorf v. Poprocki, supra.

Under our law, it is clear that the conservator acts under the supervision and control of the Probate Court in the care and management of the ward’s estate. It is equally clear that the Probate Court is without jurisdiction to approve of any acts by the conservator unless those acts are authorized by statute. “A Probate Court judge is not a chancellor. His only equity powers are those which are incidental to, and connected with, the settlement of a particular estate.” Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 429, 279 A.2d 726 (1971). The facts of this case present no compelling circumstances for broadening these powers, since the record fails to establish what judgment the ward might have exercised in the face of her own total impoverishment. The power to make such gifts as were made in this case cannot reasonably be implied as necessary or incidental to a conservator’s express duties under General Statutes § 45-75 (a). Therefore, the Probate Court correctly determined that it was without jurisdiction to allow them.

The conservatrices contend, however, that the Probate Court was empowered to allow their gifts under the so-called “doctrine of substituted judgment.” According to this judicial doctrine, the Probate Court may authorize gifts from the estate of an incompetent, not for the purpose of aiding needy relatives, but solely for the purpose of avoiding unnecessary inheritance taxes or expenses of administration where it appears that the ward, if a sane and reasonably prudent person, would so plan his estate, and where the proposed dispositions are made in accordance with the ward’s testamentary intent. See note, “Power of Court or Guardian to Make Noncharitable Gifts or Allowances Out of Funds of Incompetent Ward,” 24 A.L.R.3d 863, 901, § 16 (1969,1985 Sup.). In the present case the Probate Court expressly found that the ward “would have made these gifts if competent and that the doctrine of ‘Substituted Judgment’ would apply in other states where the powers of the Conservator are greater.” It is undisputed that the children and grandchildren of Betzes were the natural objects of the ward’s bounty.

The Probate Court correctly held that the doctrine of substituted judgment had not been adopted in this state at the time these gifts were made. As stated above, this court traditionally has strictly construed the statutory powers of a conservator and the Probate Court in the management and administration of an incompetent’s estate. In 1983, the legislature codified the doctrine of substituted judgment when it enacted No. 83-62 of the 1983 Public Acts, which sets forth limited conditions under which a conservator may make gifts from the property of the ward’s estate. General Statutes § 45-75 (e). That statute expressly leaves uncodified the law governing gifts made before October 1,1983. In any event, we note that even if the statute were to be applied by analogy, its provisions would not validate the gifts that are presently contested. We therefore conclude that the Probate Court and the Superior Court on appeal did not err in refusing to apply the doctrine of substituted judgment to validate the gifts in this case.

We next address the conservatrices’ claim that the department of income maintenance improperly denied their application for medicaid benefits on behalf of the ward. The principal issue in this regard is whether the ruling of the Probate Court disallowing the gifts made by the conservatrices rendered those funds available for pin-poses of determining the ward’s eligibility for medicaid assistance.

Congress established the medicaid program in 1965 under title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. Under the program, states receive federal medical assistance funds which they agree to administer in accordance with federal statutes and regulations promulgated by the secretary of health and human services, 42 U.S.C. § 1396a (b). The state must develop a plan of administration, and the plan must be approved by the secretary. Connecticut’s election to participate in the medicaid program is found in General Statutes § 17-134a et seq. See State v. Murtha, 179 Conn. 463, 469, 427 A.2d 807 (1980).

Under applicable federal guidelines, the department of income maintenance must determine eligibility for medicaid assistance by “taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient . . . .” 42 U.S.C. § 1396a (a) (17) (B). Except in limited circumstances not pertinent here, the state may consider “only assets actually available” to the applicant in determining eligibility for medicaid benefits. (Emphasis in original.) Zeoli v. Commissioner of Social Services, 179 Conn. 83, 94, 425 A.2d 553 (1979); Rowland v. Maher, 176 Conn. 57, 61, 404 A.2d 894 (1978); Morgan v. White, 168 Conn. 336, 343-45, 362 A.2d 505 (1975). Thus, the department of income maintenance, in considering the conservatrices’ application for medicaid benefits on behalf of their ward, was required to determine whether the ruling of the Probate Court rendered the invalidated gifts “actually available” for the purposes of 42 U.S.C. § 1396a (a) (17) (B). The legal effect of the Probate Court’s disallowance of the accounting was to impose personal liability on the conservatrices for the return of the unauthorized gifts to the estate. A conservator is a fiduciary and acts “at his peril and on his own personal responsibility” unless and until his actions in the management of the ward’s estate are approved by the Probate Court. Elmendorf v. Poprocki, 155 Conn. 115, 119, 230 A.2d 1 (1967); Marshall v. Kleinman, 186 Conn. 67, 69-70, 438 A.2d 1199 (1982). In the present case the Probate Court expressly disapproved the actions of the conservatrices, and therefore the estate has a legally enforceable right against them for restitution of the unauthorized dispositions.

The conservatrices contend that the department of income maintenance in considering their application for medicaid assistance should have allowed relitigation of certain issues already decided by the Probate Court. They first argue that the Probate Court judgment was not final, and therefore ineffective, because the conservatrices had filed an appeal with the Superior Court. We disagree. The filing of an appeal from a judgment of the Probate Court does not act as a supersedeas. The Probate Court judgment remains in full force and effect until it is vacated or modified by the Superior Court. Stevens’ Appeal, 157 Conn. 576, 581, 255 A.2d 632 (1969) ; Hirsch v. Braceland, 144 Conn. 464, 469, 133 A.2d 898 (1957); Avery’s Appeal, 117 Conn. 201, 205, 167 A. 544 (1933); see Locke & Kohn, Connecticut Probate Practice (1951) § 186, p. 382. The department of income maintenance was not required to disregard the judgment of the Probate Court merely because that judgment was on appeal.

The conservatrices also argue that the department of income maintenance improperly relied on the judgment of the Probate Court in determining the ward’s eligibility for medicaid because such reliance, they contend, was contrary to controlling federal law, and hence, invalid under the supremacy clause. The basis of their argument is that prior to the enactment of the Boren-Long amendment to the Social Security Act; Pub. L. No. 96-611, § 5, 94 Stat. 3567-68 (December 28, 1980), effective March 1, 1980, codified at 42 U.S.C. §§ 1382b (c), 1396a (j); the act expressly allowed an otherwise qualified applicant whose assets exceeded financial eligibility limits to dispose of the excess assets in order to become eligible for supplemental security income benefits (SSI). 42 U.S.C. § 1382b (b). Furthermore, a state medicaid agency may not add eligibility criteria not expressly authorized by federal law. Philbrook v. Glodgett, 421 U.S. 707, 95 S. Ct. 1893, 44 L. Ed. 2d 525 (1975); Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44 L. Ed. 2d 208 (1975); Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970). Regulations issued by the secretary of health and human services prohibit a state medicaid agency from imposing eligibility requirements on medicaid applicants that are more restrictive than those imposed on SSI applicants. 42 C.F.R. § 435.401 (c). Federal courts construing these provisions have uniformly held that state laws purporting to restrict the transfer of assets for the purpose of becoming eligible for medicaid benefits are void under the supremacy clause. Caldwell v. Blum, 621 F.2d 491 (2d Cir. 1980), cert. denied, 452 U.S. 909, 101 S. Ct. 3039, 69 L. Ed. 2d 412 (1981); Fabula v. Buck, 598 F.2d 869 (4th Cir. 1979); Robinson v. Pratt, 497 F. Sup. 116 (D. Mass. 1980) . The Boren-Long amendment, which authorizes transfer-of-assets restrictions under limited circumstances; General Statutes § 17-134b; has not been applied retroactively to validate the improper denial of medicaid benefits occurring before its effective date. See Dawson v. Myers, 622 F.2d 1304 (9th Cir. 1980), vacated and remanded for reconsideration in light of the Boren-Long amendment sub. nom. Beltran v. Myers, 451 U.S. 625, 101 S. Ct. 1961, 68 L. Ed. 2d 495 (1981), on appeal after remand, 701 F.2d 91 (9th Cir. 1982), cert. denied sub nom. Rank v. Beltran, 462 U.S. 1134, 103 S. Ct. 3115, 77 L. Ed. 2d 1369 (1983). Our own transfer-of-assets laws, rendering ineligible a medicaid applicant who had transferred assets within seven years of his application without receiving reasonable consideration, were declared invalid in Buckner v. Maher, 424 F. Sup. 366 (D. Conn. 1976), aff’d, 434 U.S. 898, 98 S. Ct. 290, 54 L. Ed. 2d 184 (1977).

The conservatrices maintain that the ward could not have been denied medicaid benefits had she been competent and had she, rather than her conservators, made the gifts in these cases. They contend that the appli-' cation of our probate laws to invalidate the gifts, merely because made by the conservatrices, and thereby to render the ward ineligible for medicaid benefits, effectively imposes an additional eligibility requirement not expressly authorized by federal law. In essence, the conservatrices seek to equate our pre-1983 probate restrictions on gifts by a conservator with transfer-of-assets restrictions generally.

Although the conservatrices’ argument carries a superficial appeal, we find it unpersuasive. Transfer-of-assets restrictions were declared invalid because their essential purpose was to inhibit eligibility for medicaid benefits in direct contravention of then existing federal law. On the other hand, our probate laws are enforced to ensure that the ward, during incompetency, continues to live in the manner to which he or she is accustomed and to preserve the estate for the enjoyment of the ward upon his or her possible return to competency. Although the ward, if competent, might have disposed of her property in the manner effected by these conservatrices and yet been qualified for medicaid benefits, we do not believe that federal law requires a presumption that she would have done so. Matter of Scrivani, 116 Misc. 2d 204, 210, 455 N.Y.S.2d 505 (1982). It is not improbable that many wealthy individuals prefer to maintain private arrangements for health and hospitalization insurance rather than draw down their assets to acceptable medicaid eligibility limits. We are unable to discover any regulations by the Secretary addressing the question of whether the enforcement by a state of its probate laws, under circumstances present here, is preempted by the Social Security Act. In the absence of a clear statement on this subject, we believe that our laws governing the administration of an incompetent’s estate may constitutionally co-exist with federal regulation of medicaid eligibility. We therefore conclude that the department of income maintenance properly relied on the judgment of the Probate Court in determining that Betzes was ineligible for medicaid benefits.

There is no error in either case.

In this opinion the other judges concurred.

       The department of human resources became involved in this matter through a referral it received from the department on aging. The conservatrices contend that the department of human resources was not an ‘ ‘interested party” under General Statutes § 45-75 (c), and therefore had no authority to request the accounting which precipitated this appeal. We disagree. Rule 3.1.02 of the Connecticut Probate Practice Book defines an interested party as “persons, agencies or institutions, who shall appear to the court of probate to be legitimately interested in the welfare of the respondent.” The commissioner of the department on aging has been given broad statutory responsibilities to provide for the welfare of elderly citizens in this state. General Statutes § 46a-14 et seq. The department on aging, upon determining that “an elderly person is in need of protective services,” must refer the case to the department of human resources. General Statutes § 46a-17. Thereafter, the “authority of the department of human resources . . . shall include, but not be limited to, the right to initiate or otherwise take those actions necessary to assure the health, safety and welfare of any elderly person . ” General Statutes § 46a-18. We believe that the general language and salutary purposes of these provisions qualify the department of human resources as an “interested party” within the meaning of General Statutes § 45-75 (c).

       “[General Statutes] Sec. 45-75 . . . (e) Upon application of a conservator of the estate, after hearing with notice to the commissioner of administrative services and to all parties who may have an interest as determined by the court, the court may authorize the conservator to pay and distribute gifts of income and principal from the estate of the ward in such amounts or in such form as the court approves, to individuals and qualified charities as defined in the Internal Revenue Code of 1954, as amended. Such gifts shall be authorized only if the court finds that: (1) In the case of individuals not related to the ward by blood or marriage, the ward has made a previous gift to that individual prior to being declared incapable; (2) in the case of a charity, the ward had made a previous gift to such charity or pledged a gift in writing to such charity prior to being declared incapable; (3) the estate of the ward is more than sufficient to carry out the duties of the conservator as set forth in subsections (a) and (b) of this section, both for the present and foreseeable future, including due provision for the continuing proper care, comfort and maintenance of such ward in accordance with such ward’s established standard of living and for the support of persons the ward is legally obligated to support; (4) the purpose of the gifts is not to diminish the estate of the ward so as to qualify the ward for federal or state aid or benefits; and (5) the ward has no objection to such gift. In determining the intent of the ward concerning continuation of the gifts, the court shall ascertain the present intent of the ward if he or she is able to understand the nature of the gift program. The court shall give consideration to the following: (A) The medical condition of the ward, including the prospect of restoration to capacity; (B) the size of the ward’s estate; (C) the provisions which, in the judgment of the court, such ward would have made if he or she had been capable, for minimization of income and estate taxes consistent with proper estate planning. The provisions of this section shall not be construed to validate or invalidate any gifts made by a conservator of the estate prior to October 1, 1983.”

       The secretary of health and human services, whose regulations are entitled to “legislative effect”; Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981); Batterton v. Francis, 432 U.S. 416, 426, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977); may define what income and resources are “available” under 42 U.S.C. § 1396a (a) (17) (B). Herweg v. Ray, 455 U.S. 265, 275-76, 102 S. Ct. 1059, 71 L. Ed. 2d 137 (1982) (“deeming” of income between spouses under 42 C.F.R. § 435.723); Schweiker v. Gray Panthers, supra (same).

       The mere fact that the conservatrices are personally liable for the unauthorized dispositions does not necessarily mean that these funds are “available” for purposes of determining eligibility for medicaid assistance under 42 U.S.C. § 1396a (a) (17) (B). The state would not be justified in denying benefits in the event that the conservatrices are unable to satisfy a judgment against them, or if for any other reason the funds due the estate are not actually available for the maintenance and support of the ward. State v. Murtha, 179 Conn. 463, 470, 427 A.2d 807 (1980); Buckner v. Maher, 424 F. Sup. 366, 373 (D. Conn. 1976), aff’d, 434 U.S. 898, 98 S. Ct. 290, 54 L. Ed. 2d 184 (1977) (irrational to presume availability of assets not actually available); see Zeoli v. Commissioner of Social Services, 179 Conn. 83, 94, 425 A.2d 553 (1979) (assets held in a spendthrift trust not “actually available” to the beneficiary for purposes of title XIX eligibility). The conservatrices have never alleged that they are financially unable to restore the estate, and therefore we need not consider the issue further on this appeal.

       “[General Statutes] Sec. 17-134b. eligibility, (a) Medical assistance shall be provided for any otherwise eligible person whose income, including any available support from legally liable relatives and the income of his spouse or dependent child, is not more than the minimum income permissible under federal law for such eligibility and if such person has not made, within twenty-four months prior to the date of application for such assistance, an assignment or transfer or other disposition of property for less than fair market value for the purpose of establishing eligibility for benefits or assistance under this section. Any such disposition shall be presumed to have been made for the purpose of establishing eligibility for benefits or assistance unless such person furnishes convincing evidence to establish that the transaction was exclusively for some other purpose. Ineligibility because of such disposition shall continue only for either (1) twenty-four months after the date of disposition or (2) that period of time from the date of disposition over which the fair market value of such property, less any consideration received in exchange for its disposition, together with all other income and resources, would furnish support on a reasonable standard of health and decency, whichever period is shorter, except that in any case where the uncompensated value of disposed resources exceeds twelve thousand dollars, the commissioner of income maintenance shall provide for a period of ineligibility based on the uncompensated value which exceeds twenty-four months. The commissioner shall increase the standards for eligibility for medical assistance to the minimum levels permissible under federal law. Such levels shall be based on the regional differences in the standard for public assistance, if applicable, unless such levels based on regional differences are not in conformance with federal law. Any income in excess of the applicable amounts shall be applied as may be required by said federal law, and assistance shall be granted for the balance of the cost of authorized medical assistance.
      “(b) For the purpose of this part, the commissioner of income maintenance shall consider parental income and resources as available to a child under twenty-one years of age who is living with his parents.”