author: Shea, J.

text:
    State of Connecticut v. Caesar Telesca State of Connecticut v. Steven Boucino
    (11738)
    (11857)
    (11858)
    Healey, Shea, Dannehy, Santaniello and Dean, Js.
    Argued February 6
    decision released May 13, 1986

      Timothy C. Moynahan, with whom, on the brief, was John P. McKeon, for the appellant (defendant in the first case).

      JohnF. Kavanewsky, Jr., for the appellant (defendant in the second and third cases).

      Richard D. Arconti, special assistant state’s attorney, for the appellee (state).
   Shea, J.

The defendants, Caesar Telesca and Steven Boucino, have appealed from their convictions upon conditional pleas of nolo contendere to various charges deriving from evidence obtained through the use of a court-ordered wiretap. The defendants have raised two claims of error: (1) the denial of their motions to suppress the evidence culled from the intercepted wire communications; and (2) the denial of their motions to open the suppression hearing on the ground that they had made a substantial preliminary showing that essential portions of the wiretap affidavit were false. We find error in the trial court’s, Fishman, J., refusal to open the suppression hearing. Accordingly, we remand the case to the trial court with direction to conduct further proceedings in accordance with this opinion.

On April 1, 1980, the state’s attorney submitted an application, pursuant to General Statutes § 54-41b, to a judicial wiretap panel for a wiretap of a telephone in the apartment of Karen Hyde, with whom the defendant Boucino was known to be living, in Naugatuck. The three judge panel approved the wiretap for a period from April 1 through and including April 10, 1980. During the wiretap period certain conversations between Telesca and Boucino were intercepted. Based on these conversations, the police obtained various search warrants, including one enabling them to conduct a search of Telesca’s home. While at the Telesca residence, the police observed Boucino exiting the premises. As Boucino entered his car, the officers executed a search warrant for his person and discovered money and numerous packets of cocaine. A search of the Telesca residence yielded marijuana, cocaine, amphetamines, $8000 in cash and drug paraphernalia. Pursuant to a warrant, the police subsequently searched the apartment where Boucino resided, the same apartment which was the subject of the wiretap, and discovered 1.68 ounces of white powder containing cocaine.

The wiretap application, which directly led to the search and the seizure of evidence, was based solely on the affidavit of inspector Joseph Lawlor. The affidavit indicated that an informant had been at the apartment building where Boucino resided and had heard several conversations involving Boucino. Some of the conversations contained references to “delivery,” “coke,” “morphine,” “private flights,” “shipment,” “pilot,” and money in a “bank vault.” The informant also overheard Hyde say, presumably to Boucino, “keep this up and you are going back to jail.” The affidavit also stated that numerous people visited Boucino’s apartment, typically ten minutes after an incoming call had been received, and that the informant had overheard Boucino planning a bank robbery. According to the affidavit, the informant provided the license plate number of one vehicle belonging to a man who visited Boucino's building on one occasion and of another vehicle belonging to a frequent visitor of the building. In order to verify the informant’s report, police investigation of the plate numbers established that one car was registered to the wife of a convicted bank robber, while the other was registered to a man the police had recently observed watching a local bank.

Challenging both the sufficiency and veracity of Lawlor’s affidavit the defendants filed pretrial motions to suppress the contents of the intercepted communications, and the evidence derived therefrom, pursuant to General Statutes § 54-41m. At an evidentiary hearing, conducted on March 25, 1981, Lawlor’s affidavit in support of the wiretap was introduced into evidence. He also testified that although the informant was known to be reliable, he was unaware whether the informant had ever furnished information to the police in the past that had led to an arrest or a conviction.

The defendants then informed the court of their desire to pursue the adequacy of the affidavit beyond its allegations and requested an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The court denied the motion because the defendants failed to make the requisite showing of deliberate falsehood in the affidavit. The defendants filed a supplemental motion to suppress the contents of the intercepted communications on May 1,1981, and submitted counteraffidavits in an effort to bolster their earlier unsuccessful Franks claim. On July 3, 1981, the trial court, Fishman, J., denied the defendants’ motion to suppress, concluding that the affidavit met constitutional requirements as enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and that the preliminary showing necessary under Franks v. Delaware, supra, was not made by the defendants.

Jury selection in the joint trial of the two defendants began in May, 1982. On May 13, while jury selection was still in progress, the defendants filed motions to open the suppression hearings on the basis of a recently obtained sixty-seven page sworn statement of Joan Wilcox, who the defendants suspected was the informant named in the Lawlor affidavit. The defendants claimed that this statement directly challenged the truth of Lawlor’s affidavit and requested a Franks hearing to demonstrate conscious falsehood in the affidavit. The motion was denied by the court on May 24, 1982, on the basis that the defendants, even in light of the Wilcox statement, did not make the required preliminary showing under Franks because they did not “conclusively establish” that she was the informant.

The trial began on June 8,1982, and continued until July 20, when the court declared a mistrial for the purpose of allowing the defendants to enter conditional pleas of nolo contendere pursuant to Public Acts 1982, No. 82-17. On the same date, the defendants entered conditional pleas of nolo contendere to all charges, specifically reserving the right to appeal the court’s denial of their motions to suppress. General Statutes § 54-94a; State v. Madera, 198 Conn. 92, 98-99, 503 A.2d 136 (1985). On October 4,1982, Boucino and Telesca were sentenced to effective terms of imprisonment of not less than five nor more than six years, and not less than two nor more than four years, respectively.

I

The defendants claim that the trial court erred in refusing to grant their motions to suppress the evidence obtained as a product of the court-ordered wiretap. They level their attack on the sufficiency of Lawlor’s affidavit, claiming that the affidavit was inadequate because it did not indicate the unavailability of other less intrusive investigative techniques as required by General Statutes § 54-41c (6) and that it failed to establish probable cause necessary to authorize the wiretap under General Statutes (Rev. to 1979) § 54-41c (12).

A

The defendants claim that the affidavit failed to meet the requirements of General Statutes § 54-41c (6), which provides that an application for a wiretap should include “a full and complete statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.” See General Statutes § 54-41d (4). The state claims, however, that the affidavit satisfied this requirement by stating: “The use of physical surveillance and undercover officers is too dangerous to employ as Boucino and his associates have proved wary of surveillance and in the past it has proven impossible to make direct undercover officer buys from Boucino. The use of search warrants will not reveal the means and principals making shipments by pilot to Boucino and supplying cocaine and morphine. With respect to the projected robbery the only technique which will give more definite information concerning the projected robbery is by use of electronic surveillance over the telephone in Boucino’s apartment.”

The statutory requirement of § 54-41c (6) is “designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974); see United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). “Without question, it would be in some sense more efficient to wiretap whenever a telephone was used to facilitate the commission of a crime. But the statutory requirement that other investigative procedures be exhausted before wiretapping reflects a [legislative] judgment that the cost of such efficiency in terms of privacy interests is too high. See United States v. Kalustian, 529 F.2d 585, 589 (9th Cir. 1975).” United States v. Lilia, 699 F.2d 99, 105 n.7 (2d Cir. 1983). “[Wiretap] procedures [are] not to be routinely employed as the initial step in a criminal investigation.” United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied sub nom. Canter v. United States, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589 (1976) and cert. denied sub nom. Bates v. United States, 429 U.S. 1066, 97 S. Ct. 796, 50 L. Ed. 2d 783 (1977). The statute does not, however, prohibit electronic surveillance until all other alternative methods of investigation have actually been exhausted. Id.

We point out that the statutory requirement of “a full and complete statement” demands more than a bare conclusory statement that normal investigative techniques are generally unproductive in dealing with drug operations of this type. See United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976); United States v. Kalustian, supra. The affidavit in the present case, however, does not rest on such assertions alone. Lawlor stated, although without specificity, that the use of other conventional investigative methods had been ineffective in the past as “Boucino and his associates have proved wary of surveillance” and, further, that undercover agents have been unable to make direct buys from him. Lawlor also asserted that in light of the peculiar nature of the activity it would be fruitless to utilize search warrants because they would not lead to evidence of the “principals” involved in the operation. It appears from Lawlor’s affidavit that the state police had conducted prior investigations of Boucino and were still unable to secure the evidence necessary to prosecute him. This, then, is not a situation where the police employed wiretapping as a routine investigative tool. Nor is it a situation where the police relied solely upon the ineffectiveness of alternate investigatory procedures in drug prosecutions in general. A practical analysis of the circumstances of this case clearly indicates that normal police procedures were unlikely to reveal evidence against the high echelon of the operation. United States v. Messersmith, 692 F.2d 1315, 1317-18 (11th Cir. 1982). Although the factual allegations of the affidavit could have been more specific and substantial, we conclude that the affidavit adequately set forth the basis for concluding that normal investigative procedures had been exhausted or would be unlikely to produce essential evidence. The trial court correctly held that the requirements of § 54-41c (6) had been satisfied.

B

We next turn to the defendants’ claim that the evidence obtained from the intercepted wire communications should have been suppressed because Lawlor’s affidavit was insufficient to establish probable cause for the issuance of the wiretap order. Our wiretap statutes permit the issuance of a wiretap order only when it can be determined from the facts stated by the affiant that probable cause exists as set forth in General Statutes § 54-41d. An application must contain certain information as required by General Statutes § 54-41c. The defendants claim that Lawlor’s affidavit failed to satisfy the requirements of General Statutes (Rev. to 1979) § 54-41c (12), which provides in part: “[Ajllegations of fact in the application may be based either upon the personal knowledge of the applicant or upon information and belief. If the applicant personally knows the facts alleged, it must be so stated. If the facts establishing such probable cause are derived in whole or part from the statements of persons other than the applicant, the sources of such information and belief shall be either disclosed or described, and the application shall contain facts establishing the existence and reliability of the informant, or the reliability of the information supplied by him. The application shall also state the basis of the informant’s knowledge or belief.” As we recently have recognized, this legislatively mandated standard has striking similarities to the AguilarSpinelli test for the sufficiency of search warrant affidavits. State v. Ross, 194 Conn. 447, 463, 481 A.2d 730 (1984).

Under the Aguilar-Spinelli analysis, the wiretap panel that issues the wiretap order must be “ ‘informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984); State v. Daley, 189 Conn. 717, 720-21, 458 A.2d 1147 (1983); State v. Bember, 183 Conn. 394, 410-11, 439 A.2d 387 (1981); State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).

The defendants claim that the Lawlor affidavit fails to satisfy both prongs of the Aguilar-Spinelli test. They argue that the affidavit neither provides the wiretap panel with sufficient underlying circumstances from which the informant obtained his information nor apprises the panel of the affiant’s basis for his conclusion that the informant was either credible or reliable.

The first prong of the applicable standard requires that the affidavit set forth the basis of the informer’s knowledge. “If a [judicial wiretap panel] were to authorize a [wiretap] based solely on allegations provided by an otherwise credible person without requiring a showing of the underlying circumstances that serve as a basis for the informant’s allegations, the informant would usurp the [panel’s] role as the finder of probable cause.” State v. Delmonaco, supra, 340. Upon careful examination of the affidavit we conclude that it adequately supports the trial court’s conclusion that the “basis of knowledge” requirement was satisfied. The affidavit states that the informant personally heard numerous conversations involving Boucino regarding criminal activity. These conversations involved references to jargon singularly associated with illegal narcotics operations. The informant identified license plates of vehicles owned by individuals connected with bank robberies and observed numerous individuals enter and leave the apartment soon after incoming phone calls to Boucino’s apartment. The detailed description of these underlying circumstances, establishes that the informant did not rely on “a casual rumor circulating in the underworld or an accusation based merely on [Boucino’s] general reputation.” Spinelli v. United States, supra, 589. The information in the affidavit appears to have been based solely on the personal observations of the informant and, therefore, does not involve any of the double-hearsay problems present in the affidavit in State v. Ross, supra, 464-65.

The wiretap affidavit also satisfied the “reliability” prong of Aguilar-Spinelli. “An affiant need not recite the precise factors on which he judged his informant credible or reliable. ... If they are apparent to the common-sense reader of the affidavit—whether by necessary implication or recital—it is enough.” State v. Jackson, supra, 452-53. The affidavit described the informant as a person “of known reliability, a steady worker with a reputation for truthfulness who has no criminal record and is not one engaged in criminal activities, who was reporting crimes as a citizen to the police but desired the informant’s identity not be revealed to others.” This assertion is more than “a bare statement by an affiant that he believed the informant to be truthful.” United States v. Harris, 403 U.S. 573, 579, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971). According to the wiretap affidavit, the informant was an ordinary citizen not involved in criminal activity. Such a “citizen-informer” is more deserving of reliability than the informant from the criminal milieu. Lafave, Search and Seizure: A Treatise on the Fourth Amendment §3.3. “[T]he ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis. ‘The latter is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals.’ ” United States v. Harris, supra, 599 (Harlan, J., dissenting). The affiant’s independent information that Boucino had a prior drug offense conviction; State v. Kimbro, 197 Conn. 219, 232, 496 A.2d 498 (1985); coupled with the corroboration of the license plate numbers provided by the informant, further buttresses the conclusion of reliability. The trial court properly concluded that “there was a substantial basis for the wiretap panel’s finding of probable cause in accordance with our statutes.” State v. Ross, supra, 459.

II

Our conclusion that the affidavit was facially valid requires that we address the defendants’ remaining claim that the trial court erred in denying their motions to open the suppression hearing even though they had made a substantial preliminary showing that the affidavit contained false information necessary to a finding of probable cause.

In Franks v. Delaware, supra, 171, the United States Supreme Court held that the truth of an affidavit supporting a search warrant may be challenged at an evidentiary hearing when a satisfactory preliminary showing of deliberate falsity or reckless disregard of the truth on the part of the affiant has been made. State v. Morrill, 197 Conn. 507, 543, 498 A.2d 76 (1985); State v. Delmonaco, supra, 334-35; State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Just, 185 Conn. 339, 358, 441 A.2d 98 (1981); see Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964). If at such a hearing the allegation of falsity is established by a preponderance of the evidence, and the remaining content.of the affidavit is not independently sufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as when probable cause is lacking on the face of the affidavit. Franks v. Delaware, supra, 171-72.

This court has not previously had occasion to apply the Franks rule to wiretap affidavits filed pursuant to General Statutes § 54-41b. Because our statutes require the wiretap panel to consider the same factors that a neutral judicial officer must evaluate when determining probable cause to issue a search warrant; see part I, B of this opinion; the reasoning of Franks applies in this context as well. United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985); United States v. Payden, 613 F. Sup. 800 (S.D.N.Y. 1985). Since wiretap orders are issued at ex parte hearings and often under emergency conditions, subsequent review is necessary to prevent police misconduct in the preparation of the affidavit. See United States v. Kiser, 716 F.2d 1268, 1270 (9th Cir. 1983). A prohibition on impeachment of the veracity of the wiretap affidavit would clearly “denude the probable-cause requirement of all real meaning.” Franks v. Delaware, supra, 168.

The defendants contend that the sixty-seven page Wilcox affidavit provided the necessary preliminary showing of falsity necessary to entitle them to a Franks hearing. In her affidavit, Wilcox stated that she was a resident of the same apartment complex where the defendant Boucino resided from January-April, 1980; she occupied the apartment adjacent to the unit occupied by Boucino; and she had spoken to inspector Lawlor concerning Boucino and had informed him that she had heard Hyde say “keep this up and you are going back to jail.” Other sections of the Wilcox affidavit contained information materially different from that attributed to the informant by Lawlor. For example, Wilcox stated that she told Lawlor that she was unable to recognize Boucino’s voice and that she had never heard anything concerning a bank robbery or cocaine operations. She further stated that she had never overheard phone conversations nor informed Lawlor of any license plate numbers.

The defendants in this case were faced with a difficult burden of making the preliminary showing prescribed by Franks. Where the informant is named in the affidavit, the defendant has the opportunity to investigate and may be able to interview him regarding the affiant’s veracity. The defendant thus may have access to information necessary to make a “substantial preliminary showing” of falsity required for a Franks hearing to determine probable cause. Where the affidavit does not disclose the name of the informant, and his identity is not otherwise obtainable, as in this instance, it would ordinarily be impossible for a defendant to satisfy the preliminary showing requirement for a Franks hearing if it is necessary to demonstrate “conclusively,” as the trial court held, that a witness offered to impeach the veracity of the affiant was in fact the informant. Clearly the state has a strong public interest in protecting the identity of confidential informants in order to encourage the flow of information necessary in criminal prosecutions. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); State v. McDaniel, 176 Conn. 131, 133, 405 A.2d 68 (1978); State v. Harris, 159 Conn. 521, 527-29, 271 A.2d 74 (1970), cert. denied, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971). This public interest, however, must, in certain circumstances, yield to the defendant’s right to present a defense. Roviaro v. United States, supra, 61; see McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62, reh. denied, 386 U.S. 1042, 87 S. Ct. 1474, 18 L. Ed. 2d 616 (1967). The Wilcox affidavit presents reasonable grounds to believe that she was the informant and, if she was, casts serious doubt upon the veracity of material representations made by Lawlor in the wiretap application. If it was, therefore, essential to determine more fully whether Wilcox was the informant in order for the defendants to become entitled to a Franks hearing, it was incumbent on the court to make that determination under the circumstances of this case.

Our view that an evidentiary hearing is necessary to determine whether Wilcox was the informant does not mandate, however, that the informant’s identity be disclosed if it is determined that Wilcox was not the informant. Because the disclosure of any other possible informant’s identity is not essential to resolve this issue, it appears that such a hearing need not be conducted ex parte or in camera as in cases where such a disclosure was necessary. United States v. Kiser, supra, 1273; United States v. Manley, 632 F.2d 978, 986 (2d Cir. 1980); United States v. Alexander, 559 F.2d 1339, 1344 (5th Cir. 1977); United States v. Anderson, 509 F.2d 724, 729 (9th Cir. 1974), cert. denied, 420 U.S. 910, 95 S. Ct. 831, 42 L. Ed. 2d 840 (1975); United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971). At the hearing the trial court must require the state to disclose whether Wilcox was the informant. If the court determines that the informant is not Wilcox there will be no need to conduct a complete Franks hearing. As the defendants conceded at oral argument, they have not, in the absence of a finding that Wilcox is the informant, made a sufficient challenge to the veracity of the affidavit. In that case, the present judgment may stand against the defendants on all charges.

In light of our conclusion that the Wilcox affidavit casts serious doubt upon the veracity of the representations made by Lawlor in the wiretap affidavit, and because the wiretap application was based solely on those representations, the defendants have clearly made the requisite preliminary showing of falsity in order to entitle them to a Franks hearing if they have correctly identified the informant. See United States v. McDonald, 723 F.2d 1288, 1294 (7th Cir. 1983); United States v. Southard, 700 F.2d 1, 11 (1st Cir.), cert. denied sub nom. Ferris v. United States, 464 U.S. 823, 104 S. Ct. 89, 78 L. Ed. 2d 97 (1983); United States v. Licavoli, 604 F.2d 613, 621 (9th Cir. 1979), cert. denied, 446 U.S. 935, 100 S. Ct. 2151, 64 L. Ed. 2d. 787 (1980); United States v. Moore, 522 F.2d 1068, 1073 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S. Ct. 775, 46 L. Ed. 2d 637 (1976). It will then be their burden to establish by a preponderance of the evidence either that Lawlor deliberately falsified information in preparing the wiretap affidavit or prepared the affidavit with reckless disregard for the truth. Franks v. Delaware, supra, 156. At this hearing the state would be free to assert the contentions, made in its brief, that the Wilcox affidavit was coerced or otherwise incredible. We express no opinion as to the merit of either of these claims.

If the court should find that the Lawlor affidavit contains material falsehoods substantially affecting the basis for a finding of probable cause that have been deliberately or recklessly made, the judgment must be set aside and the motions to suppress must be granted. If the court reaches the contrary conclusion, the judgment may remain undisturbed.

We remand the case for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Boucino was charged with two counts of possession of narcotics with intent to sell, in violation of General Statutes (Rev. to 1979) § 19-480 (a), and with intentionally aiding another in the sale of narcotics in violation of General Statutes (Rev. to 1979) § 19-480 (a) and § 53a-8. Telesca was charged with intentionally aiding another in the sale of narcotics, in violation of General Statutes (Rev. to 1979) §§ 19-480 (a) and 53a-8; possession of less than four ounces of marijuana and of amphetamines, in violation of General Statutes (Rev. to 1979) § 19-481 (c); possession of cocaine with intent to sell, in violation of General Statutes (Rev. to 1979) § 19-480 (a); illegal possession of an explosive, in violation of General Statues (Rev. to 1979) § 29-88; illegal storing of an explosive, in violation of General Statutes (Rev. to 1979) § 29-89; theft of a firearm, in violation of General Statutes § 53a-212; and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134.

       Because of our disposition of the defendants’ second claim on appeal it is unnecessary to consider an additional claim which had been briefed, involving the trial court’s quashing of a subpoena served upon Joan Wilcox, a witness needed for the hearing.

       “General Statutes Sec. 54-41m. motion to suppress. Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the state of Connecticut, or of a political subdivision thereof, may move to suppress the contents of any intercepted wire communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted under the provisions of this chapter; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion, in which case such motion may be made at any time during the course of such trial, hearing or proceeding. If the motion is granted, the contents of the intercepted wire communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter and shall not be received in evidence in any such trial, hearing or proceeding. The panel, upon the filing of such motion by the aggrieved person, shall make available to the aggrieved person or his counsel for inspection the intercepted communication and evidence derived therefrom.”

       Public Acts 1982, No. 82-17, presently General Statutes § 54-94a, provided: “an act concerning a conditional plea of nolo contendere. (NEW) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of non jurisdictional defects in the criminal prosecution.”

       General Statutes (Rev. to 1979) § 54-41c provides in relevant part: “information in APPLICATION. Each application for an order authorizing the interception of a wire communication shall be made in writing upon oath or affirmation to a panel of judges. Each application shall include the following information ... (6) a full and complete statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ . . . (12) ... If the facts establishing such probable cause are derived in whole or part from the statements of persons other than the applicant, the sources of such information and belief shall be either disclosed or described, and the application shall contain facts establishing the existence and reliability of the informant, or the reliability of the information supplied by him. The application shall also state the basis of the informant’s knowledge or belief.”

       “General Statutes See. 54-41d. issuance of order. Upon such application the panel of judges, by unanimous vote, may enter an ex parte order authorizing the interception of wire communications within the state of Connecticut, if the panel determines on the basis of the facts submitted by the applicant that there is probable cause to believe that: (1) An individual has committed or is committing an offense enumerated in section 54-41b; (2) particular communications will constitute material evidence that an offense enumerated in section 54-41b has been committed or is being committed or will materially aid in the apprehension of the perpetrator of such offense; (3) such communications are not otherwise privileged; (4) other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ; (5) the facilities from which, or the place where the wire communications are to be intercepted are being used, or are about to be used in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such individual; (6) such facilities or places are not those described in section 54-41h; (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities; (8) the investigative officers to be authorized to intercept the wire communication are qualified by training and experience to execute the interception sought; (9) not more than thirty-four orders authorizing interception have been previously issued by all panels in the calendar year in which the application is made, except that upon a showing of an emergency situation in which the commission of an offense enumerated in section 54-41b may result in imminent peril to public health, safety or welfare, such panel may issue additional orders authorizing interception.

       Because General Statutes (Rev. to 1979) § 51-41c (12) incorporates the standards enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), it is unnecessary to discuss the effect, if any, that Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), has on the probable cause determination. See State v. Kimbro, 197 Conn. 219, 236 n.17, 496 A.2d 498 (1985).


source: Caselaw Access Project

license: Public Domain

text:
    Connecticut Association of Health Care Facilities, Inc., et al. v. Audrey M. Worrell, M.D., Commissioner of Mental Health Connecticut Hospital Association, Inc., et al. v. Audrey M. Worrell, M. D., Commissioner of Mental Health
    (12801)
    (12802)
    Shea, Dannehy, Callahan, Kulawiz and Jacobson, Js.
    Argued March 13
    decision released May 13, 1986

      Louis B. Todisco, with whom were Martha E. Meng and, on the brief, Stephen E. Ronai and Martha Fosdick, legal intern, for the appellant (named plaintiff in the first case).

      William J. Doyle, with whom were Jeanette C. Schreiber and, on the brief, John Q. Tilson, Melinda A. Agsten and Brian J. Casey, for the appellant (named plaintiff in the second case).

      William J. McCullough, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant in both cases).
   Shea, J.

The sole issue on these appeals is whether two health care associations have standing to bring declaratory judgment actions on behalf of their members. Both cases are appeals from judgments of the Superior Court dismissing the associations as plaintiffs on the ground that they lacked standing either individually or vicariously as representatives of their member health care providers. The plaintiffs are the Connecticut Association of Health Care Facilities, Inc., and the Connecticut Hospital Association, Inc., both nonstock corporations in which membership is voluntary. The defendant in both actions is the commissioner of the department of mental health (hereinafter the department). We find error in the conclusion of the court that the associations lack standing.

The complaints allege that prior to 1981 the department had accepted all patients committed to state mental hospitals pursuant to state statutory procedures. In July, 1981, however, the department adopted a policy of limiting admissions to state operated mental hospitals in order to maintain appropriate staff-patient ratios. In order to implement this policy, the plaintiffs claim that the department periodically refused to admit mentally ill patients committed to state facilities under the statutory procedures. They further allege that the department’s failure to follow the statutory requirements has precipitated a crisis in their member health care facilities and hospitals because of their inability to obtain admission to state operated hospitals for patients who have developed acute psychiatric conditions that require specialized care available only in a mental hospital.

Pursuant to General Statutes § 4-176, the plaintiffs separately petitioned the department for a declaratory ruling acknowledging the department’s obligations under our statutes to accept committed patients into state operated mental hospitals. The department refused to issue the requested declarations and, instead, issued a ruling stating that the department is only required to accept “any indigent mentally ill person, not a pauper, who is committed by the Probate Court to a state hospital for mental illness which is equipped to receive him, at the discretion of the probate court.”

Pursuant to General Statutes § 4-175, the plaintiffs separately commenced the present actions in the Superior Court, seeking declaratory judgments that chapter 306 of our statutes requires the department to accept as a patient any person committed to a state hospital under an emergency certificate as provided by General Statutes § 17-183 or by order of the Probate Court as provided by § 17-178 (c). The department filed motions to dismiss, alleging, inter alia, that the plaintiffs had no standing to bring the actions. The Superior Court granted the department’s motions to dismiss only in respect to the two associations as plaintiffs in the cases, holding that these plaintiffs did not have standing to assert the claims of their members. From these judgments the plaintiff associations have appealed to this court.

“The 'fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated.’ Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 [1968].” Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 (1973). “Standing is not a technical rule intended to keep aggrieved parties out of court .... Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973).” Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). The requirements of justiciability and controversy are “ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.” Id., 321. “As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great.” Id.; see Bassett v. Desmond, 140 Conn. 426, 432, 101 A.2d 294 (1953). Where the nexus between the injury and the claim sought to be adjudicated is obvious and direct, a plaintiff has standing to maintain the claim. Maloney v. Pac, supra, 322.

“It is a basic principle of our law . . . that the plaintiffs must have standing in order for a court to have jurisdiction to render a declaratory judgment.” Connecticut Assn. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 558, 499 A.2d 797 (1985). Our statutes enable judges of the Superior Court to implement a declaratory judgment procedure. General Statutes § 52-29. The purpose of a declaratory judgment action is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties. Practice Book § 390 (b); Lipson v. Bennett, 148 Conn. 385, 388, 171 A.2d 83 (1961). Although our state constitution contains no “case or controversy” requirement like that found in article three of the United States Constitution; Flast v. Cohen, supra, 95; our rules of practice provide that the court will not render a declaratory judgment on the complaint of a person “unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations which requires settlement between the parties.” Practice Book § 390 (a). As we have long recognized, a person is not “ ‘entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or representative capacity.’ Bassett v. Desmond, [supra, 430].” (Emphasis added.) Alarm, Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 546, 427 A.2d 822 (1980); see Belford v. New Haven, 170 Conn. 46, 53, 364 A.2d 194 (1975).

In Conn. Soc. of Architects, Inc. v. Bank Bldg. & Equipment Corporation, 151 Conn. 68, 75-76, 193 A.2d 493 (1963), the plaintiff association was denied standing in part because it had no personal interest in the subject of the controversy and was, therefore, not a member of the class it purported to represent. The court concluded that a sufficient personal interest is “ ‘something more than is comprised in the most ardent wish or partial feeling. It implies a right in the subject of controversy, which a decree, more nearly or remotely, may affect.’ Crocker v. Higgins, 7 Conn 342, 346 [1829].” (Emphasis in original.) Id., 74. “[N]o matter how zealous the plaintiff may be in its desire to assist its members, it cannot represent them to enforce their rights, unless it has a right, in itself, in the subject of the controversy which a decree will affect.” Id.

Relying on Conn. Soc. of Architects, Inc., the defendant claims that the association plaintiffs here lack standing to bring the declaratory judgment actions because they do not have individual interests in the actions separate from the health care providers who comprise their membership. We disagree with the views expressed in Conn. Soc. of Architects, Inc., concerning the standing of an association to bring a suit in behalf of its members. In so doing, we adopt the federal standards for association standing that provide for efficient, expeditious and vigorous resolution of controversies affecting similarly situated persons.

In Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 337, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977), a North Carolina statute requiring all closed containers of apples shipped into the state to bear the applicable United States grade was challenged by the Washington state apple advertising commission. The commission, an entity organized to protect and advance the interests of the Washington apple industry, petitioned for an exemption to allow the use of Washington state grades, which it claimed to be more stringent, on its apple containers. Id., 336-38. After its request for an exemption was refused the commission brought suit in federal court claiming that the statute violated the commerce clause of the United States constitution. Id., 339. The federal district court invalidated the North Carolina statute. Washington State Apple Advertising Commission v. Holshouser, 408 F. Sup. 857 (E.D.N.C. 1976). On appeal before the United States Supreme Court, North Carolina challenged the standing of the commission to bring the action. Hunt v. Washington State Apple Advertising Commission, supra, 341-45. The Court affirmed the decision below and enunciated a three-part test that must be satisfied before an association will be granted standing to assert the rights of its members, without also asserting injury to itself. Id., 343.

“[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id., 343; see Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976); California Bankers Assn. v. Shultz, 416 U.S. 21, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Representational standing “depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.” Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). “Associational standing is particularly appropriate . . . where the relief sought is ... a declaratory judgment . . . .” Peick v. Pension Benefit Guaranty Corporation, 724 F.2d 1247, 1259 (7th Cir. 1983).

The plaintiffs clearly satisfy the three prerequisites for association standing as set forth in Hunt. The individual members of each plaintiff association are health care providers who claim to have been adversely affected by the department’s refusal to accept certain mentally ill patients. The members would, therefore, have standing to seek declaratory judgments because they allege direct, personal injury from the department’s actions. The stated organizational purposes of the plaintiff associations, as set forth in their respective bylaws, include the promotion of sound state and federal laws for the welfare and benefit of health care facilities and the establishment and promotion of high quality and efficient patient care. The declaratory judgment actions are germane to this purpose because the relief requested will improve the quality and availability of health care services. Finally, neither the claim asserted nor the relief requested requires the participation of the individual members of either plaintiff association. The relief sought by the declaratory judgment actions will “inure to the benefit” of all members of both associations because it will alleviate the onerous burden of providing for committed patients placed in the member facilities. Warth v. Seldin, supra, 515. Because money damages are not sought for alleged injuries to the individual members, proof relating solely to the variant experiences of each health care provider resulting from the department policy at issue will not be necessary. See Warth v. Seldin, supra, 515-16; Simer v. Rios, 661 F.2d 655, 682 (7th Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982).

Certain policy reasons, not expressly embodied in the Hunt test, also favor recognition of association standing. Allowing associations to represent their members’ interests in appropriate cases may promote judicial economy and efficiency. One plaintiff can, in a single lawsuit, adequately represent, and perhaps vindicate, the interests of many members, thus avoiding repetífive and costly independent actions. “Permitting the association or organization to sue to protect the interests of its members avoids multiplicity of suits by similarly situated plaintiffs involving the same or similar causes of action and provides an efficient and expeditious method of adjudicating disputes.” Snyder v. Callaghan, 284 S.E.2d 241, 251 (W. Va. 1981). Representational standing also allows the member health care facilities, that would have standing to initiate declaratory judgment actions in their own right, to pool their financial resources and legal expertise and, therefore, ensure full and vigorous litigation of the disputed issue.

The allegations in the plaintiffs’ complaints are sufficient to confer standing.

There is error, the judgment in each case granting the defendant’s motion to dismiss as to the named plaintiff is set aside and each case is remanded for further proceedings.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 4-176. declaratory rulings. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       “[General Statutes] Sec. 4-175. declaratory judgment action to DETERMINE VALIDITY OR APPLICABILITY OF A REGULATION OR ORDER. The validity or applicability of a regulation or order of an agency may be determined in an action for declaratory judgment brought in the superior court for the judicial district of Hartford-New Britain, if the regulation or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may not be rendered unless the plaintiff has requested the agency to pass upon the validity or applicability of the regulation or order in question, pursuant to section 4-176, and the agency has either so acted or has declined to exercise its discretion thereunder.”

       The court denied, however, the defendant’s motions to dismiss as to the individual member health care facilities that were also plaintiffs below.

       The decision in Conn. Soc. of Architects, Inc. v. Bank Bldg. & Equipment Corporation, 151 Conn. 68, 193 A.2d 493 (1963), rested upon several grounds in addition to the insufficiency of representational standing:. (1) that the purposes of the plaintiff association did not include enforcement of the architect licensing statute; (2) that available administrative remedies had not been exhausted; (3) that interested parties had not been notified of the declaratory judgment action; and (4) that a necessary party had not been joined as a defendant. We note that the principal case upon which Conn. Soc. of Architects, Inc., relied, New Jersey Bankers Assn. v. Van Riper, 1 N.J. 193, 62 A.2d 677 (1948), has been explicitly overruled in Crescent Park Tenants Assoc. v. Realty Equities Corporation of New York, 58 N.J. 98, 275 A.2d 433 (1971). “We fail to see how justice or its sound administration can be said to have been at all furthered by Bankers Association. . . . [The decision] is incompatible with our current procedural philosophies . . . it has become a derelict in our law and is now expressly overruled.” Id., 111. Association standing has also been consistently recognized by lower federal courts and many state courts. See, e.g., Church, of Scientology v. Cazares, 638 F.2d 1272 (5th Cir. 1981); Committee for Auto Responsibility v. Solomon, 603 F.2d 992 (D.C. Cir. 1979); National Treasury Employees Union v. Devine, 577 F. Sup. 648 (D.C. 1983); Florida Home Builders Assn. v. Dept. of Labor, 412 So. 2d 351, 353 (Fla. 1982); Aldridge v. Georgia Hospitality & Travel Assn., 251 Ga. 234, 304 S.E.2d 708 (1983); Save a Valuable Environment v. Bothell, 89 Wash. 2d 862, 576 P.2d 401 (1978).


text:
    James Wilson v. Security Insurance Group
    (12651)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued February 5
    decision released May 13, 1986

      Wesley W. Horton, with whom were Susan M. Cormier and Michael V. Hebert, for the appellant (defendant).

      David M. Reilly, for the appellee (plaintiff).
   Shea, J.

The plaintiff, James Wilson, brought this action to compel arbitration of his claim against the defendant, Security Insurance Group, based upon a policy of automobile insurance issued to the town of Woodbridge. His complaint alleges that this policy provides uninsured motorist coverage for his benefit with respect to injuries he received while on duty as a police officer of the town when he was struck by an unidentified automobile that fled the scene of the accident.

The defendant insurer filed a counterclaim seeking a declaratory judgment to determine two issues relating to the coverage provided by the policy and also an injunction restraining the plaintiff from proceeding with arbitration. The trial court, Reynolds, J., dismissed the counterclaim on the ground that the coverage questions raised must be decided by the arbitrators because the arbitration clause in the policy is required by General Statutes § 38-175c to include coverage disputes. After the trial of the case the court, S. Freedman, J., rendered judgment for the plaintiff directing the defendant to proceed with arbitration. In appealing from the judgment the defendant has raised four issues challenging the dismissal of the counterclaim: (1) whether the language of the arbitration clause in the insurance policy requires that certain issues relating to coverage be submitted to arbitration; (2) whether arbitration of these coverage issues is mandated by General Statutes § 38-175c; (3) whether, if § 38-175c does compel arbitration of such issues, it unconstitutionally deprives the defendant of due process of law or infringes upon the authority of the judiciary; and (4) whether, even if the preceding issues involving the merits of the defendant’s counterclaim were properly decided, the trial court should have dismissed the counterclaim suo motu instead of striking it in accordance with the plaintiff’s motion. We find no reversible error in the dismissal of the counterclaim.

I

In its counterclaim the defendant sought a determination of two questions involving interpretation of the provisions of the insurance policy: (1) whether the plaintiff is permitted to stack uninsured motorist coverage in a case involving one vehicle in a fleet of thirty-one vehicles owned by the named insured, the town of Woodbridge; and (2) whether the defendant insurer, which also carries the workers’ compensation insurance for the town, the plaintiffs employer, is permitted to reduce the amount of uninsured motorist coverage by the amount of workers’ compensation benefits paid or payable to the plaintiff. The defendant contends that these issues are not subject to arbitration under the clause of the policy that provides as follows: “If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or driver of an uninsured motor vehicle, or do not agree as to the amount of damages, the insured may make a written demand for arbitration.” The plaintiff maintains that this provision makes a disagreement concerning either the liability of the uninsured motorist or the damages sustained by the insured a condition precedent to arbitration but does not restrict the scope of arbitration to those issues. He argues that once there is a predicate dispute concerning liability of the uninsured motorist or the damages recoverable, the clause may be construed to call for arbitration of all disputes between the parties, including those concerning uninsured motorist coverage.

This court has previously construed a similar arbitration clause contained in the uninsured motorist section of an automobile policy not to apply to a coverage question even where that issue was also related to the determination of the liability of the uninsured motorist. Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967). “Under this provision, the only issues to be arbitrated are: (1) the insured’s right to recover damages from the owner or operator of an uninsured automobile, and (2) the amount of such damages.” Id., 275. In the absence of a contrary statute, “[a] party who has contracted to arbitrate certain matters has no obligation to arbitrate any matters other than those he has agreed to arbitrate.” Id., 274; Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 5, 110 A.2d 464 (1954). In framing this policy provision the defendant was entitled to rely on our construction of the similar clause in Frager as not mandating arbitration of coverage issues. We agree with the defendant, therefore, that it did not by virtue of the terms of the policy agree to submit to arbitration the questions set forth in its counterclaim.

II

The trial court appears to have relied, not on the language of the policy, in deciding that the counterclaim issues must be arbitrated, but upon General Statutes § 38-175c (a) (l). This statute requires that every automobile liability policy provide uninsured motorist coverage and that, after October 1, 1971, such a policy, if it contains a provision for binding arbitration, “shall include a provision for final determination of insurance coverage in such arbitration proceeding.” In Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980), we recognized that this provision of § 38-175c (a) (1) had legislatively overruled our holding in Frager that an insurer could contractually limit the uninsured motorist issues to be decided by the arbitrators and thus exclude questions of coverage. “The expressed intent and effect of the aforesaid amendment to § 38-175c is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” Id., 42.

The defendant does not dispute that we must read into the policy before us, in accordance with § 38-175c (a) (1), a provision for “final determination of insurance coverage” by arbitrators. Oliva v. Aetna Casualty & Surety Co., supra, 41; see General Statutes § 38-175d. It contends, however, that the term “insurance coverage” as used in the statute does not include the issues of fleet stacking and workers’ compensation setoff, which may require an interpretation of the statutes and regulations governing uninsured motorist benefits. We construe § 38-175c (a) (1) to make no distinction between coverage issues governed wholly by the policy language and those which may also require the application of statutes or regulations in order to resolve them. The legislative purpose in providing arbitration as an expeditious method of dispute resolution for uninsured motorist claims would be thwarted by requiring arbitrators to interpret the policy language in one proceeding and the courts to determine in another the effect of statutes or regulations upon the issues involved. Such a bifurcated procedure would be inconsistent with our view that § 38-175c (a) (1) transfers to the arbitration panel “the function of determining, in the first instance, all issues as to coverage” where the policy contains a provision for arbitration of any uninsured motorist claim. (Emphasis added.) Oliva v. Aetna Casualty & Surety Co., supra, 42. Where the insurer had complied with § 38-175c (a) (1) by including in the uninsured motorist arbitration clause of the policy a provision for arbitration of disputes “as to the amount of payment which may be owing under this coverage,” we decided that an unrestricted submission of coverage issues was intended. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 19-21, 453 A.2d 1158 (1983). This defendant, whose policy does not conform to § 38-175c (a) (1), does not deserve a different result by virtue of its failure to follow the statutory mandate. We note that the Appellate Court has concluded that an arbitration clause making disputes as to “coverage of insurance” arbitrable applies to the issue of stacking of uninsured motorist coverages for each of three vehicles owned by the claimant and her husband. American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 470 A.2d 253, cert. denied, 193 Conn. 801, 473 A.2d 1226 (1984). We see no reasonable basis for viewing § 38-175c (a) (1) as mandating arbitration of only those coverage issues governed wholly by the terms of the policy, as the defendant insurer contends.

III

The defendant insurer next raises two constitutional claims that are predicated upon our construction of § 38-175c (a) (1) as mandating arbitration of the legal questions raised in the counterclaim: (1) that to authorize arbitrators to make a final determination of these legal issues, precluding review by the courts, effectively allows them to exercise an essential judicial function allocated exclusively to judges by article second and article fifth, § l, of our state constitution; and (2) that such a delegation of power deprives a person of his “remedies by due course of law” in violation of article first, § 10, of our state constitution. The defendant also relies upon federal constitutional provisions protecting against a deprivation of property without due process of law.

The defendant maintains that to find that § 38-175c (a) (1) requires arbitration of disputes not encompassed by the terms of the policy transforms the character of the arbitration from voluntary to compulsory. The plaintiff points out, however, that the statute directs only that, if the policy contains a provision for binding arbitration, it must also provide for a determination of coverage by the arbitrators. Therefore, he argues, the defendant had the option to make no provision in the policy whatsoever for arbitration and its failure to follow that course precludes it from now asserting that arbitration of coverage issues is compulsory. We do not believe, however, that the availability of the alternative standard judicial mechanism for resolution of all disputes under the policy, with the attendant consequences of increasing court congestion and related expenses to the parties, makes arbitration of the coverage issues, as required by the statute, the voluntary choice of the defendant. Such a legislative interference with contractual freedom, though not claimed to be violative of any constitutional right, so restricts the defendant’s choices that the submission of the coverage issues to arbitration must in our view be deemed compulsory rather than voluntary. It is clear, under our construction of the policy, that the defendant never has agreed to arbitrate the issues raised in the counterclaim but has been ordered to do so by virtue of the statute. The arbitration of those coverage issues under such circumstances, therefore, must be regarded as compulsory.

In mounting its constitutional attack upon § 38-175c (a) (1) the defendant implicitly assumes that the limited scope of judicial review of an arbitration award that is available where the parties have freely submitted a question to arbitrators is also applicable to an award where the submission is under legal compulsion, as in this case. Where the authority to arbitrate rests wholly upon contract, an unrestricted submission of a dispute to arbitrators carries with it the power to decide with finality all issues of fact or law relating thereto. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977). “Our courts will not review the evidence considered by the arbitrators . . . nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions.” Id. “We have stated repeatedly that judicial review of arbitration awards is limited in scope because arbitration is a creature of contract and the parties delineate the power of the arbitrator by the terms of the submission.” Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983). Ordinarily, judicial review of an award following an unrestricted submission is limited to whether the award conforms to the submission. Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981). We have previously held that the submission of “all issues as to coverage” mandated by § 38-175c (a) (1) contemplates an unrestricted submission for which judicial review of legal as well as factual determinations by the arbitrators is precluded. Carroll v. Aetna Casualty & Surety Co., supra, 21-23.

Predicated upon the assumption that the scope of judicial review of the arbitrator’s determination of the coverage issues presented in its counterclaim will be limited to that available for an award upon a contractual submission, the defendant argues that § 38-175c (a) (1) encroaches upon the separate magistracy of the judiciary in violation of article second of our state constitution. “It is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.” Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905). The defendant contends that the legislature may not impair the essential nature or jurisdiction of the Superior Court as a court of general trial jurisdiction; Szarwak v. Warden, 167 Conn. 10, 40, 355 A.2d 49 (1974); Walkinshaw v. O'Brien, 130 Conn. 122, 32 A.2d 547 (1943); or this court as the supreme state tribunal for the determination of legal rights. Styles v. Tyler, 64 Conn. 432, 454, 30 A. 165 (1894). “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). A statute directing persons who have not previously agreed to the procedure to submit the determination of legal questions upon which substantial rights may depend to a nonjudicial tribunal whose decision thereon cannot be judicially reviewed for error, the defendant argues, cannot be squared with these principles.

In support of its due process claim the defendant relies primarily upon our state constitutional provision, article first, § 10, that “[a]ll courts shall be open, and every person, for an injury done to him in his . . . property . . . shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Contending that greater rights of access to the courts are created under this provision than have been recognized under its federal constitutional due process counterpart; see United States v. Kras, 409 U.S. 434, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973); Hardware Dealers Mutual Fire Ins. Co. v. Glidden, 284 U.S. 151, 52 S. Ct. 69, 76 L. Ed. 214 (1931); Reetz v. Michigan, 188 U.S. 505, 23 S. Ct. 390, 47 L. Ed. 563 (1903); the defendant maintains that our state constitution guarantees the right to a judicial determination of legal issues in the absence of waiver, such as that inherent in an agreement to arbitrate. This right of redress in the courts, according to the defendant, has been recognized as “inviolate.” Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975).

We need not at this time, however, address the constitutional issues the defendant has raised, because the assumption on which they are based, that judicial review of the award to be made must be limited in scope to that available for voluntary arbitration, is not an inevitable conclusion. This court has suggested previously that the scope of judicial review available for compulsory arbitration awards need not be restricted to that permitted where parties have voluntarily submitted an issue to arbitrators. Carofano v. Bridgeport, 196 Conn. 623, 637, 495 A.2d 1011 (1985). “The simple and ineradicable fact is that voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.” Mount St. Mary’s Hospital v. Catherwood, 26 N.Y.2d 493, 500, 260 N.E.2d 508, 311 N.Y.S.2d 863 (1970). Courts of several states have recognized the need to broaden the scope of judicial review when arbitration is mandated by statute. Id.; Detroit Automobile Inter-Ins. Exchange v. Gavin, 416 Mich. 407, 433-34, 449-50, 331 N.W.2d 418 (1982); Rodrigues v. Keller, 113 Cal. App. 3d 838, 843 n.3, 170 Cal. Rptr. 349 (1980). As these courts have pointed out, the complete insulation of statutorily mandated arbitration awards from judicial review for errors of law creates the anomaly that, without consent of the parties, arbitrators become empowered to disregard the law in deciding issues affecting substantial rights. Thus the orderly development of uniform legal principles having precedential value cannot be achieved.

The issue of the appropriate scope of review of a compulsory arbitration award is not, however, properly raised by this appeal but must await the result of the arbitration that has been ordered. It would be inappropriate for this court to decide an issue upon which the trial court has yet to pass. Accordingly, we conclude that the defendant has prematurely raised the constitutional issues upon which it seeks our determination, because they appear to depend entirely upon the assumption that the defendant will not be afforded in the trial court judicial review of the questions of law raised by its counterclaim.

IY

We agree with the defendant that the trial court should not have dismissed the counterclaim suo motu for lack of jurisdiction instead of granting the plaintiff’s motion to strike. “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819 (1979). The Superior Court had subject matter jurisdiction over the counterclaim for declaratory relief despite the adequacy of other legal remedies. England v. Coventry, 183 Conn. 362, 364, 439 A.2d 372 (1981). Subject matter jurisdiction is lacking only where the deficiency relied upon could not be cured by consent of the parties. Although we have construed § 38-175c (a) (1) to give either party a right to insist upon arbitration of the issues raised in the counterclaim, this right could have been waived by consenting to a different procedure. Waterbury Teachers Assn. v. Waterbury, 164 Conn. 426, 435, 324 A.2d 267 (1973); Batter Building Materials Co. v. Kirschner, supra, 11. General Statutes § 52-415 expressly provides for submission to the court “upon request of all the parties to the arbitration,” of questions that arise during the arbitration proceeding.

The court concluded correctly, however, that, in the absence of consent or waiver, it would be wholly inappropriate to entertain the issues raised by the counterclaim until the arbitrators had made their award. The exercise of a sound discretion would not have permitted the defendant to proceed on its counterclaim. England v. Coventry, supra, 365; see Practice Book § 390 (c). The court, therefore, should have stricken the counterclaim in accordance with the plaintiffs motion instead of dismissing it. This procedural irregularity, however, has not prejudiced the defendant. In view of the result we have reached on the substantive issues, the defendant could not have successfully pleaded over nor has it advanced on appeal any reason for a remand to provide such an opportunity.

There is no error.

In this opinion the other judges concurred.

       The arbitration clause considered in Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274-75, 231 A.2d 531 (1967), was as follows: “If any person making claims hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration . ... ”

       The same case after remand was appealed once again after a trial on the merits. Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 289 A.2d 896 (1971).

       “[General Statutes] Sec. 38-175c. uninsured motorist coverage. (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”

       Article second of our state constitution provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

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

       Article first, § 10, of our state constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       “The grounds for vacating an award are restricted to (1) procurement of the award by ‘corruption, fraud or undue means’; (2) ‘evident partiality or corruption’ of an arbitrator; (3) misconduct in refusing to postpone the hearing for sufficient cause; or (4) instances where ‘the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.’ General Statutes § 52-418. Awards may be modified only in the event of (1) a ‘material miscalculation of figures’ or ‘material mistake in the description’ of any person, thing or property referred to in the award; (2) an award upon a matter not submitted to the arbitrators unless it does not affect the merits of the decision upon the matters submitted; or (3) imperfections in matters of form not affecting the merits of the controversy. General Statutes § 52-419.” Carofano v. Bridgeport, 196 Conn. 623, 636, 495 A.2d 1011 (1985).

       The defendant’s assumption that the scope of review of compulsory arbitration awards is no greater than in voluntary arbitration may be based upon our decision in Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 453 A.2d 1158 (1983f). In that case, however, the insurance company did not claim that the arbitration clause in the policy, which we construed to provide for arbitration of all coverage issues, had been so framed only because of the requirements of General Statutes § 38-175c (a) (1). No claim that a distinction should be made in the scope of judicial review between compulsory and voluntary arbitration was presented nor was any constitutional issue raised, as in this appeal.