source: Caselaw Access Project

author: Glass, J. Berdon, J.,

license: Public Domain

text:
    Tyrone Wilson v. David Cohen, Assistant State’s Attorney
    (14240)
    Peters, C. J., Shea, Glass, Covello, Borden, Berdon and Santaniello, Js.

      Argued January 14
    decision released June 9, 1992

      Monte P. Radler, assistant public defender, for the plaintiff in error.

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and David I. Cohen, senior assistant state’s attorney, for the defendant in error.
   Glass, J.

The plaintiff in error, Tyrone Wilson (plaintiff), brought a writ of error to this court seeking a reversal of a judgment of the Superior Court, summarily finding him in contempt of court and imposing a sentence of six months imprisonment. The sole issue is whether the plaintiff is entitled to a jury trial pursuant to General Statutes § 54-82b. Because we conclude that the plaintiff is not entitled to a jury trial, we affirm the judgment of the trial court.

The record discloses the following. The plaintiff and Terrence Boyd were charged with the crimes of felony murder, burglary in the first degree and larceny in the third degree. See State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990). The plaintiff agreed to a sentence of twenty years on a plea of guilty to burglary in the first degree. The plaintiff testified at Boyd’s trial and Boyd was convicted as charged. This court set aside Boyd’s conviction of felony murder on appeal, however, on the ground that the insufficiency of admissible evidence presented at his probable cause hearing deprived the trial court of personal jurisdiction over him. Id., 141. On remand, the trial court held a new probable cause hearing on December 23, 1990, at which the plaintiff was called as a witness. The plaintiff refused to answer any questions posed by the defendant in error, assistant state’s attorney David Cohen (defendant). The trial court ordered the plaintiff to answer the defendant’s questions and advised him that he could be held in contempt if he refused. Despite the trial court’s admonitions, the plaintiff persisted in refusing to testify. The plaintiff stated that he was refusing to answer any questions because he was concerned about his personal safety at the correctional institution where he was incarcerated. The trial court reviewed the various contempt statutes, and informed the plaintiff that it believed that General Statutes § 51-33a was applicable. The trial court advised the plaintiff that, pursuant to § 51-33a, the state’s attorney would have to decide whether to file contempt charges, which would then be adjudicated by another judge. The trial court then continued Boyd’s probable cause hearing until January, 1991.

On January 23,1991, the trial court, relying on Moore v. State, 186 Conn. 256, 440 A.2d 969 (1982), advised the plaintiff that his refusal to testify would constitute summary contempt for which it could impose a sentence of up to six months to run concurrently or consecutively with the sentence that he was then serving. After answering a few preliminary questions posed by the defendant, the plaintiff refused to answer any further questions. The trial court established that the plaintiff did not intend to testify further and that his refusal was based on concern for his personal safety, the same reason that he had given at the previous hearing. The trial court then advised the plaintiff that it would order him to answer the defendant’s questions, and that if he refused, it would hold him in contempt of court. The court again advised the plaintiff that it was authorized to impose a sentence of up to six months imprisonment. The plaintiff continued to refuse to testify, and the trial court found him in contempt of court pursuant to General Statutes § 51-33. The trial court advised the plaintiff that his refusal to answer any questions despite its order that he do so amounted to summary contempt under Moore v. State, supra, and that it intended to impose a sentence of six months to run consecutively to his current sentence. After inquiring whether the plaintiff still refused to testify, to which the plaintiff responded affirmatively, the trial court sentenced him to six months incarceration to run consecutively to the sentence he was then serving.

The sole issue presented by this writ of error is whether, pursuant to § 54-82b, the trial court was empowered to impose a sentence in excess of thirty days on a summary contempt charge without providing the plaintiff the right to a jury trial. It is well established that this court’s review of a summary criminal contempt proceeding by writ of error is limited to three questions: “(1) whether the designated conduct is legally susceptible of constituting a contempt; Goodhart v. State, [84 Conn. 60, 63, 78 A. 853 (1911)]; (2) whether the punishment imposed was authorized by law; State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); and (3) whether the judicial authority was qualified to conduct the hearing. Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971).” Moore v. State, supra, 257; see also Jackson v. Bailey, 221 Conn. 498, 500-501, 605 A.2d 1350 (1992); In re Dodson, 214 Conn. 344, 346-47, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). The plaintiff concedes that the writ of error in the present case is limited to the second question.

The plaintiff argues that, pursuant to § 54-82b, the trial court was required to afford him the opportunity for a jury trial. In essence, the plaintiff contends that § 54-82b supersedes § 51-33 to the extent that the latter statute authorizes the summary imposition of up to six months imprisonment for a contempt committed in the presence of the court. The defendant argues that the plaintiffs construction of § 54-82b renders § 51-33 meaningless and, therefore, violates basic rules of statutory construction. We agree with the defendant.

Section 54-82b (a) provides that “[t]he party accused in a criminal action in the superior court may demand a trial by jury of issues which are triable of right by a jury.” The statute specifically exempts criminal actions for which the maximum penalty is a fíne of $199. Section 51-33 authorizes “[a]ny court” to “punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner.” Under the latter statute, a court’s authority is expressly limited, however, to imposing a fine of up to $100 or a term of imprisonment of up to six months or both. A statute providing for the summary punishment of criminal contempt had existed in the state of Connecticut well before § 54-82b was enacted. See, e.g., General Statutes (1888 Rev.) § 843 (allowing any court, except a justice of the peace, to punish by a fine no greater than $100 and by imprisonment for no longer than six months any person who behaves contemptuously or disorderly in the court’s presence).

Section 54-82b, by its terms, limits the right to a jury trial to “[t]he party accused in a criminal action.” (Emphasis added.) The plaintiff argues, therefore, that this court should construe a summary criminal contempt proceeding as a “criminal action” within the meaning of § 54-82b. In so arguing, the plaintiff asks this court to conclude that the legislature, in enacting § 54-82b, impliedly repealed § 51-33 to the extent that it permits a court summarily to punish a contempt committed in its presence. We decline to reach such a conclusion.

“The rule disfavoring implied repeals is a well established principle of statutory construction. . . . The legislature is presumed to have acted with the intent to create a consistent body of law. ... If two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. . . . [EJnactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict. . . . Because repeal by implication is generally disfavored, however, the principle applies only when the relevant statutes cannot stand together. . . .” (Citations omitted; internal quotation marks omitted.) Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991).

The plaintiff relies on Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968), in support of his argument that the distinctions between summary criminal contempt proceedings and criminal prosecutions are artificial and, therefore, a summary criminal contempt proceeding should be deemed a “criminal action” within the meaning of § 54-82b. In deciding whether a contemnor summarily sentenced to more-than six months imprisonment had a constitutional right to a jury trial, the United States Supreme Court in Bloom analogized criminal contempt proceedings to criminal prosecutions. The court referred to criminal contempt as “a crime in the ordinary sense” and “in every fundamental respect,” stating that “convictions for criminal contempt are indistinguishable from ordinary criminal convictions . . . .” Id., 201.

Similarly, this court long ago concluded that a criminal contempt proceeding should conform as nearly as possible to proceedings in criminal cases. Welch v. Barber, 52 Conn. 147, 157 (1884); see also McTigue v. New London Education Assn., 164 Conn. 348, 356, 321 A.2d 462 (1973). We have nonetheless previously rejected an argument akin to that made by the plaintiff in the present case. In State v. Jackson, supra, the defendant, an attorney who had been summarily punished for a contempt committed in the presence of the court, claimed to have a right of appeal pursuant to General Statutes (1958 Rev.) § 54-12, which provided that “[a]ny person convicted ... by any municipal court of any offense may . . . appeal from the judgment ... to the . . . court of common pleas . . . .” The defendant argued that contempt of court was an “offense” within the meaning of § 54-12. This court rejected the defendant’s argument, stating: “The word ‘offense’ in § 54-12 . . . must be construed as meaning ‘criminal offense.’ When the defendant was fined for a contempt committed in the presence of the court, he was not convicted of a criminal offense within the meaning of § 54-12.” (Emphasis added.) State v. Jackson, supra, 170. We likewise conclude that a summary criminal contempt proceeding is not a “criminal action” within the meaning of § 54-82b.

“Criminal contempt is conduct which is directed against the dignity and authority of the court. In such a case, the court may punish the offender on its own motion, without the presentation of any charge, formal or otherwise, and solely upon facts within its own knowledge. When the offense is committed in the presence of the court, punishment may be imposed at once. This power inheres in, and is essential to, any court, in order that it may be enabled to administer justice.” Id., 169. This court has repeatedly stated that “[i]n this class of contempt, the proceedings are criminal in nature but do not constitute a criminal prosecution. ” (Emphasis added.) Id.; see also State v. Howell, 80 Conn. 668, 671, 69 A. 1057 (1908); Middlebrook v. State, 43 Conn. 257, 267 (1876). Rather, criminal contempt proceedings “are for an offense against the court as an organ of public justice and not for a violation of the criminal law.” State v. Jackson, supra; see also Goodhart v. State, supra, 63.

Our conclusion that § 54-82b does not apply to summary criminal contempt proceedings conducted pursuant to § 51-33 permits the two statutes to “stand together” in accordance with established rules of statutory construction. See Dugas v. Lumbermens Mutual Casualty Co., supra. At common law, a party accused of contempt was not entitled to a jury trial. Bloom v. Illinois, supra, 196. This court adhered to this long established principle in Huntington v. McMahon, 48 Conn. 174, 201 (1880). While the United States Supreme Court in Bloom v. Illinois, supra, created a constitutional right to a jury trial for criminal contempt where the punishment imposed exceeds six months imprisonment, the common law principle still applies to contempts that qualify as “petty offenses,” a category consisting of crimes carrying a sentence of six months or less. Jackson v. Bailey, supra, 505-506, citing Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S. Ct. 2687, 41 L. Ed. 2d 912 (1974). As this court has stated: “So long as the punishment [for a criminal contempt] is kept within the six-month term provided by § 51-33, the court’s jurisdiction to impose such punishment summarily is clear.” Jackson v. Bailey, supra, 503; see also Moore v. State, supra, 259. We discern no persuasive reason to depart from this well established principle of our jurisprudence.

The plaintiff also claims a violation of the equal protection clause of the fourteenth amendment to the United States constitution, in that our statutes and rules of practice provide disparate treatment for summary and nonsummary contempt with respect to the right to a jury trial. Although the plaintiff’s attorney alluded to the differential treatment of summary and nonsummary contempt proceedings at the probable cause hearing, he did not distinctly raise a claim that these differences constituted a violation of the plaintiff’s constitutional right to equal protection under the law. The defendant contends that this court should decline to address the plaintiff’s claim because it was not properly preserved nor is it of constitutional magnitude. The defendant argues, alternatively, that should this court review the plaintiff’s equal protection claim, he cannot prevail under the criteria set forth in State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989).

In Golding, we clarified the standard for appellate review of unpreserved constitutional claims that this court had set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 239-40.

Applying the first criterion to the present case, we conclude that the record is adequate to review the plaintiff’s claim. Despite the fact that the plaintiff’s argument at the probable cause hearing, regarding the different procedures for summary and nonsummary contempt, raised no constitutional concern, the transcript indicates that the trial court imposed a sentence of six months imprisonment pursuant to § 51-33. Thus, the plaintiff’s failure to articulate an equal protection claim before the trial court does not detract from the sufficiency of the record to review such a claim on appeal.

With respect to the second criterion, the plaintiff’s claim facially satisfies the requirement that the unpreserved claim be of “constitutional magnitude alleging the violation of a fundamental right.” Id., 239. The plaintiff claims that his right to equal protection of the laws was violated because there is no rational basis for distinguishing between summary and nonsummary contempt for purposes of punishment.-This is not a “patently nonconstitutional claim” nor one “masquerading” as a constitutional claim. Id., 240, 241. In determining whether the second Golding requirement is satisfied, we do not evaluate the merits of the claim, except to determine whether the claim is frivolous.

Having surmounted the threshold requirements for review of the plaintiffs equal protection claim pursuant to the first two criteria in Golding, the plaintiff is entitled to a determination of the merits of his claim under the third criterion. Id., 241. The plaintiff concedes that the applicable standard for review of his claim is whether there is any rational basis for the difference in the maximum punishment that may be imposed without affording an alleged contemnor a right of jury trial: six months when the court acts summarily, pursuant to § 51-33 and Practice Book § 988, for a contempt occurring in its presence, and a fine of $199, as limited by § 54-82b, when the same contemptuous conduct is prosecuted nonsummarily pursuant to § 51-33a and Practice Book § 993. The plaintiff argues, however, that there is no reasonable ground for subjecting a contemnor to such disparate punishments for the same conduct occurring in a courtroom, depending on the “whim” of the court or, if a proceeding is to be instituted under § 51-33a, also that of the prosecutor.

The defendant argues that no such disparity exists because “nonsummary contempt concerns conduct that does not occur in the presence of the court.” That argument, however, overlooks the plain language of § 51-33a, which authorizes a nonsummary criminal contempt proceeding for “[a]ny person who violates the dignity and authority of any court, in its presence . . . .’’It also ignores the authority conferred upon the court by Practice Book § 989 to defer proceedings for contempts occurring during a trial until after the trial is completed, when the adjudication must be nonsummary pursuant to an information. Practice Book § 991.

We conclude, nonetheless, that, even when the identical contemptuous conduct is involved, there is a rational basis for the distinction made in the statutory scheme with respect to the punishments available for contempts occurring in the presence of the court that are adjudicated summarily, rather than in a nonsummary proceeding, which affords a right of jury trial if the punishment is to exceed $199. When the contempt is based upon the unlawful refusal of a witness to answer proper questions during a criminal trial, as in this case, there is an overwhelming necessity for empowering a court to adjudicate the contempt summarily and to impose punishment sufficiently substantial to cause the witness to reconsider and deter such conduct by others. The trial court should not be compelled to suspend the proceeding to await the outcome of a fullblown criminal prosecution for the contempt with an attendant right of jury trial, and a mistrial would raise double jeopardy concerns. United States v. Wilson, 421 U.S. 309, 318-19, 95 S. Ct. 1802, 44 L. Ed. 2d 186 (1975). “ ‘The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge.’ ” United States v. Barnett, 376 U.S. 681, 699-700, 84 S. Ct. 984, 12 L. Ed. 2d 23, reh. denied, 377 U.S. 973, 84 S. Ct. 1642, 12 L. Ed. 2d 742 (1964), quoting Watson v. Williams, 36 Miss. 331, 341 (1858). When a witness refuses to testify at a trial in obedience to a court order, “summary contempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify.” United States v. Wilson, supra, 316.

The absence of any similar necessity when a contempt, whether or not occurring in the presence of the court, is prosecuted in a nonsummary proceeding, permits the ordinary criminal procedure to be followed in adjudicating the contempt, including the right of jury trial if a punishment greater than a fine of $199 is sought. Because we conclude, therefore, that there is a rational basis for the distinction made by our statutes and rules of practice with regard to summary and nonsummary contempt proceedings, the plaintiff cannot prevail on his unpreserved equal protection claim. State v. Golding, supra, 239-40.

The judgment is affirmed.

In this opinion Peters, C. J., Shea, Covello, Borden and Santaniello, Js., concurred.

Berdon, J.,

dissenting. I am concerned about a matter that unfortunately counsel has failed to raise—that is, whether the refusal by the plaintiff in error, Tyrone Wilson (plaintiff), to testify constituted criminal contempt under General Statutes § 51-33. The majority recognized this concern in footnote 5 wherein it stated that the failure of the plaintiff to testify could “arguably” have constituted a civil contempt.

General Statutes § 51-35 fits the glove of this case and preempts § 51-33. Section 51-35 provides in relevant part: “Any court . . . may commit to a community correctional center any person legally summoned who refuses to appear and testify before it in any case, there to remain at his own expense until he so testifies. . . .” “It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. ...” (Citation omitted; internal quotation marks omitted.) Plourde v. Liburdi, 207 Conn. 412, 417, 540 A.2d 1054 (1988); State v. Daniels, 207 Conn. 374, 393, 542 A.2d 306, appeal after remand, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).

Moreover, we have held under a similar statute “that an order of commitment for failure to testify is not a punishment for breach of a criminal law, but is a means adopted by a court to compel obedience to its lawful orders, and its termination may properly be conditioned upon the performance of the act required.” McCarthy v. Clancy, 110 Conn. 482, 500, 148 A. 551 (1930).

This matter goes to the heart of our criminal justice system—whether the plaintiff stands convicted under a criminal statute that, as a matter of law, has no applicability to him. Indeed, the failure to raise such an issue is plain error. Practice Book § 4185; see Persico v. Maher, 191 Conn. 384, 403-404, 465 A.2d 308 (1983). Since this is such a fundamental issue that affects the liberty of the plaintiff, I would remand this matter to the attorneys with direction to brief the issue of whether the plaintiffs refusal to testify constituted criminal contempt under § 51-33 and, thereafter, order oral argument on the issue. Furthermore, it is an issue that is of great importance to the bench and bar that should be clarified.

       Although the plaintiff presents three issues in his brief on appeal, during oral argument before this court the plaintiff's attorney conceded that the sole issue is whether § 54-82b requires that the plaintiff be afforded a jury trial. General Statutes § 54-82b provides in relevant part: “(a) The party accused in a criminal action in the superior court may demand a trial by jury of issues which are triable of right by a jury. There is no right to a trial by jury in criminal actions where the maximum penalty is a fine of one hundred ninety-nine dollars.”

       The plaintiffs attorney acknowledged that in refusing to testify, the plaintiff was not invoking any fifth amendment rights. The plaintiff also admitted that he had discussed the question of contempt with his attorney.

       The trial court reviewed General Statutes §§ 51-33, 51-33a and 51-35. General Statutes § 51-33 provides: “Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”
      General Statutes § 51-33a provides: “criminal contempt, (a) Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.
      “(b) No person charged with violating this section may be tried for the violation before the same judge against whom the alleged contempt was perpetrated.”
      General Statutes § 51-35 provides: “(a) Any court or family support magistrate may commit to a community correctional center any person legally summoned who refuses to appear and testify before it in any case, there to remain at his own expense until he so testifies.
      “(b) A person shall not be compelled to give evidence against himself, except as otherwise provided by statute, nor shall such evidence when given by him be used against him.”

       Before imposing sentence, the trial court gave the plaintiffs attorney an opportunity to present argument on the plaintiffs behalf. Plaintiffs counsel noted the difference between General Statutes § 51-33 and Practice Book § 988, which authorize the trial court summarily to impose a six month sentence when a contempt is committed in its presence, and Practice Book § 993, which provides, with regard to nonsummary contempt, that “[n]o person shall receive a total effective sentence of more than thirty days imprisonment or a fine in excess of ninety-nine dollars unless he has been afforded the right to a jury trial.” The plaintiffs attorney requested that the trial court take judicial notice that the plaintiffs fears for his personal safety were well founded. Finally, the plaintiffs counsel stated that if the plaintiff were provided a jury trial, he could raise certain defenses, such as duress, to the contempt charge.

       “Contempt is a disobedience to the rules and orders of á court which has power to punish for such an offense. . . . Contempt may be civil or criminal in character.” (Citations omitted.) State v. Jackson, 147 Conn. 167, 168-69, 158 A.2d 166 (1960). In civil contempt proceedings, “the punishment must be conditional and coercive” and “the contemnor must be in a position to purge himself.” (Internal quotation marks omitted.) Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984). In criminal contempt proceedings, on the other hand, “the sanction is punitive in order to vindicate the authority of the court.” (Internal quotation marks omitted.) Id. It may not always be easy to classify particular conduct as constituting either civil or criminal contempt, as in any given case, the conduct may exhibit characteristics of both. Planning & Zoning Commission v. Zemel Bros., Inc., 29 Conn. Sup. 450, 453, 292 A.2d 267 (1971), citing Bessette v. W. B. Conkey Co., 194 U.S. 324, 329, 24 S. Ct. 665, 48 L. Ed. 997 (1904). The conduct for which the trial court held the plaintiff in contempt in this case arguably constituted a civil contempt, in that the plaintiff could have “purged” himself by agreeing to testify. See Mays v. Mays, supra. Because the plaintiff has not challenged the classification of his conduct as criminal contempt, however, we treat his refusal to testify as a criminal contempt in accordance with our precedent. See Moore v. State, 186 Conn. 256, 258, 440 A.2d 969 (1982).

       As originally enacted in 1959, the statute provided in pertinent part: “There shall be no right to trial by jury in criminal actions where the maximum penalty is a fine of fifty dollars or a jail sentence of thirty days, or both . . . . ” (Emphasis added.) Public Acts 1959, No. 28, § 32 (codified as General Statutes § 51-266). In 1987, the legislature deleted the language “or a sentence of thirty days, or both” from the statute. Public Acts 1987, No. 87-241. At the probable cause hearing, the plaintiffs attorney requested that the trial court impose a sentence of thirty days to run consecutively to the sentence that the plaintiff was then serving. The plaintiff appears to concede the trial court’s authority summarily to impose a thirty day sentence on the basis that Practice Book § 993, which deals with nonsummary contempts, provides that the Superior Court may impose a sentence of up to thirty days without affording the contemn or the right to a jury trial. As the plaintiff states in his brief, “[t]he rule expressed in [§ 993] appears to be an acknowledgment of the statutory right to a jury trial reflected in the version of [General Statutes §] 54-82b (a) which predated Public Act 87-241.”

       The plaintiff conceded at oral argument that in order to conclude that General Statutes § 54-82b applied to summary criminal contempt proceedings, this court would have to overrule a long line of cases. See, e.g., Middlebrook v. State, 43 Conn. 257, 267 (1876); State v. Jackson, 147 Conn. 167, 169, 158 A.2d 166 (1960); Moore v. State, 186 Conn. 256, 259, 440 A.2d 969 (1982).

       In Huntington v. McMahon, 48 Conn. 174 (1880), this court upheld the trial court’s refusal to allow a jury trial on a contempt charge. This court stated: “We are not aware of any case in this state or elsewhere in which it has been held that a party accused of contempt is entitled to a trial by jury. The contrary has been repeatedly held. ... It would seem to be necessary that the court should have the power to judge of all questions of this nature. The power to protect the dignity of the court might hang by a slender thread if it was made subject to the uncertainties of a jury trial.” (Citations omitted.) Id., 201.

       Article fourteen, § 1 of the amendments to the United States constitution provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       Assistant public defender Monte Radler commented as follows to the trial court on the different treatment of summary and nonsummary con-tempts:
      “Mr. Radler: . . . I’m looking also through the contempt statutes to find out what in fact is the appropriate punishment. And the statute 51-33 as well as the Practice Book sections regarding summary contempt proceedings, empower a court to sentence an individual up to six months. However, under the nonsummary contempt statutes, there is section 993 which indicates that no person shall receive a total effective sentence of more than thirty days imprisonment or a fine in excess of ninety-nine dollars, unless he has been afforded the right to a jury trial.
      “Mr. Wilson, under these current circumstances, does not have the right to a jury trial. The authority who comment on that particular Practice Book sections, says it is unclear whether that limitation applies to summary contempt proceedings.”

       Practice Book § 989 provides in part: “Where the interests of orderly courtroom procedure and substantial justice so dictate . . . the judicial authority should defer institution of contempt proceedings until after the trial is completed, and the proceedings should be conducted pursuant to Sec. 990 [Criminal Contempt—Nonsummary Contempt].”

       Practice Book § 991 provides: “A criminal contempt not adjudicated under Sec. 987 [Criminal Contempt—Summary Contempt] shall be prosecuted by means of an information. The judicial authority may, either upon his own order or upon the request of the prosecuting authority, issue an arrest warrant for the accused. The case shall proceed as any other criminal prosecution under these rules and the General Statutes.”

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       “ ‘While we are not “bound to consider” such claims of error, and do not ordinarily do so, we have upon occasion considered a question which was not so raised, not by reason of the appellant’s right to have it determined but because in our opinion in the interest of public welfare or of justice between individuals it ought to be done.’ ” Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983), quoting Leary v. Citizens & Manufacturers National Bank, 128 Conn. 475, 478-79, 23 A.2d 863 (1942).


author: Berdon, J.

text:
    Barberino Realty and Development Corporation v. Planning and Zoning Commission of the Town of Farmington et al.
    (14362)
    Shea, Callahan, Glass, Borden and Berdon, Js.
    Argued February 14
    decision released June 11, 1992

      Joseph L. Hammer, with whom were Charles W. Fortune and, on the brief, Palmer S. McGee, Jr., for the appellants (defendants).

      Robert J. Reeve, with whom, on the brief, were William L. Wollenberg and Edward F. Scully, for the appellee (plaintiff).
   Berdon, J.

This appeal involves a zoning regulation that requires a site plan showing the specific project proposed to be submitted with an application for a special permit. The principal issue presented is whether, after approval of such a permit and site plan, a subsequent revision to the site plan must conform to the zoning regulations governing approval of such a special permit. In 1978, the named defendant, the planning and zoning commission of the town of Farmington (commission), granted a special permit to develop elderly housing to the plaintiff, Barberino Realty and Development Corporation. Several years later, the plaintiff returned to the commission seeking approval of an application for a revised site plan that materially altered the original proposal for the elderly housing project. The commission denied the plaintiffs application on the ground that the plaintiff had failed to comply with certain requirements set forth in the applicable special permit regulations.

The plaintiff appealed to the Superior Court, which affirmed the decision of the commission. The plaintiff then appealed to the Appellate Court, which reversed and held that the commission could not apply the conditions of the special permit regulations when considering the revised site plan application of the plaintiff. Barberino Realty & Development Corporation v. Planning & Zoning Commission, 25 Conn. App. 392, 594 A.2d 1025 (1991). Certification to appeal was granted and we reverse the judgment of the Appellate Court.

Because the decision of the Appellate Court succinctly relates all the facts, we will repeat only those facts relevant to this appeal. In Farmington, elderly housing is a permitted use upon the issuance of a special permit. In 1978, the plaintiff, who owns a parcel of land bordering Tunxis and Main Streets in Farmington, applied to the commission for a special permit to construct seventy units of elderly housing on 8.38 acres of the parcel. Pursuant to the applicable zoning regulations, the plaintiff simultaneously submitted a site plan detailing the specific project proposed. The site plan proposed the construction of approximately thirteen separate small scale buildings, each containing either four or six dwelling units.

After holding a public hearing on the plaintiffs application, the commission approved the 1978 application for the special permit with certain modifications to the site plan, one of which was the relocation of the entrance to the development from its proposed location at the far end of Tunxis Street to a point closer to the intersection of Tunxis and Main Streets. Neighboring property owners unsuccessfully appealed to the Superior Court from the commission’s decision to grant the special permit. The plaintiff, however, never commenced construction on the project as designed and approved in 1978.

On July 1,1988, the plaintiff filed an application with the commission for approval of a revised site plan, which proposed the development of what was basically the same site that the plaintiff had been given a special permit to develop in 1978. Instead of the original proposal of thirteen small scale buildings to accommodate the seventy dwelling units of elderly housing, however, the revised site plan proposed a single two and one-half story building containing seventy units. Timely legal notices were published in the Farmington News noticing a public hearing on the plaintiff’s application for site plan approval. The public hearing was held on December 12,1988, after which the commission voted to deny without prejudice the plaintiffs application for a revised site plan.

The plaintiff appealed the commission’s decision to the Superior Court. The trial court denied the appeal from the commission’s denial of the plaintiff’s revised site plan application. The plaintiff obtained certification to appeal from the trial court’s judgment to the Appellate Court. On appeal, the plaintiff argued that, once a site plan has been approved in conjunction with a special permit application, any subsequent revision to the site plan is required to conform to the criteria set forth in only the site plan regulations rather than the special permit regulations. The Appellate Court agreed with the plaintiff and reversed the judgment of the trial court.

This court then granted the commission’s petition for certification limited to the following issue: “When a zoning regulation requires a site plan showing the specific project proposed to be submitted with an application for a special permit, after approval of such a permit and site plan, must a later revision of the site plan conform to the zoning regulations for approval of such a special permit?” Barberino Realty & Development Corporation v. Planning & Zoning Commission, 220 Conn. 913, 597 A.2d 332 (1991). As an alternate ground on which to affirm the judgment of the Appellate Court; see Practice Book § 4013 (4); the plaintiff argues that the Farmington special permit regulations do not contain ascertainable standards for the regulation of the plaintiff’s application, but instead merely reiterate the general policy statements contained within the General Statutes. We conclude that the commission properly referred to and applied the zoning regulations governing special permits when reviewing the plaintiff’s application for approval of a revised site plan. Moreover, we conclude that the plaintiff has not met its burden of proving that the conditions of the special permit regulations do not contain known and fixed standards for the regulation of such applications.

I

Essentially, the present appeal concerns whether a site plan approved as part of an application for a special permit to construct elderly housing may be subsequently revised without conforming to such special permit regulations. The commission argues that, because the site plan is an integral part of the elderly housing special permit application process, any subsequent revision to the site plan must also comply with the special permit regulations. The plaintiff argues that review of the application for a revised site plan is confined to the regulations governing site plans because, once the special permit is granted, elderly housing is a permitted use on that site. Therefore, according to the plaintiff, the commission may deny the application for the site plan only if it fails to comply with the regulations governing site plans. We agree with the commission.

A specially permitted use enjoys a unique status in a town’s planning and zoning scheme because it generally is not restricted to a particular zoning district. “The basic rationale for the special permit [is] . . .that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. Common specially permitted uses, for example, are hospitals, churches and schools in residential zones. These uses are not as intrusive as commercial uses would be, yet they do generate parking and traffic problems that, if not properly planned for, might undermine the residential character of the neighborhood. If authorized only upon the granting of a special permit which may be issued after the [zoning] board is satisfied that parking and traffic problems have been satisfactorily worked out, land usage in the community can be more flexibly arranged than if schools, churches and similar uses had to be allowed anywhere within a particular zoning district, or not at all.” T. Tondro, Connecticut Land Use Regulation p. 78.

Accordingly, before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood. The commission, therefore, must be allowed to examine the suggested proposal closely. The details of the proposal are laid out in the site plan, which “is a physical plan showing the layout and the design of the site of a proposed use .... It generally should indicate the proposed location of all structures, parking areas and open spaces on the plot and their relation to adjacent roadways and uses.” (Internal quotation marks omitted.) SSM Associates Limited Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 567, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989). As used in General Statutes § 8-3 (g), a site plan is “a general term which is used in a functional sense to denote a plan for the proposed use of a particular site, purporting to indicate all the information required by the regulations for that use.” Id., 566.

When considering an application for a special permit, the commission is called upon to make a decision as to whether a particular application for elderly housing would be compatible with the particular zoning district, under the circumstances then existing. That determination can only be made after a thorough examination of the specific site plan submitted. As in SSM Associates Limited Partnership v. Plan & Zoning Commission, 211 Conn. 331, 334, 559 A.2d 196 (1989), the Farmington zoning regulations render site plans “inseparable from and part and parcel of [the related] special permit application.” As such, review of a special permit application is necessarily dependent on a thorough review of the proposed site plan because, in fact, the grant of the special permit is usually contingent upon approval of the site plan.

Consequently, any application to revise such a site plan must be evaluated in light of the conditions set out in the special permit regulations. To conclude otherwise would not only thwart the purpose of a specially permitted use, but also the general purposes of zoning, which include the protection of the public health, safety and welfare, the regulation of the density of the population, the location and use of buildings and the limitation of development of “certain classes or kinds of buildings, structures or uses of land.” General Statutes § 8-2; see also Farmington Zoning Regs., art. I. Moreover, a contrary holding would render a zoning commission helpless if a developer first obtained a special permit on the basis of a site plan that was particularly well suited to the neighborhood, but then decided to substitute for that site plan one that eradicated the very features that motivated the commission to grant the special permit. By allowing the commission to take into account all special permit zoning regulations when a developer seeks a revision to its site plan, the commission can further the purposes of a town’s zoning regulations.

Moreover article II, § 5d.4 (a) of the Farmington zoning regulations of 1978 provides, in part, that “no development [pursuant to a special permit] shall be permitted except in conformity with the approved plan.” To allow the plaintiff to change the site plan substantially, without also allowing the commission to consider the conditions of the special permit regulations when evaluating the new site plan application, would be contrary to the express language of the regulations that provided that the site be developed “in conformity with” the approved site plan.

Lastly, the plaintiff argues that the commission is precluded from considering the special permit regulations because of our holding in TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 577 A.2d 288 (1990) (TLC). In TLC, we held that, pursuant to the Branford zoning regulations, off-site traffic considerations could not serve as the sole basis for the denial of a site plan application. The plaintiff argues that our holding in TLC controls on the facts of this case. We disagree for two reasons. First, the site plan application in TLC was a proposal for development in a permitted use zone. Unlike a site plan application for a permitted use where the commission has already made a determination that such a use is permitted in a particular area, elderly housing is theoretically allowed in any zone provided that the proposed site plan meets the standards and regulations set forth in the regulations. When the commission reviews such a special permit application, it must, therefore, determine whether the particular proposal is suitable for the particular zone. Second, in Friedman v. Planning & Zoning Commission, 222 Conn. 262, 266, 608 A.2d 1178 (1992), we clarified our holding in TLC and stated that, in a permitted use zone, although a presumption arises that the permitted use does not adversely affect traffic within the zone, “an examination into special traffic consequences of a given site [is permissible] when the applicable zoning regulations permit it.” Accordingly, our holding in TLC is not dispositive of the issue in the present appeal.

In this case, the commission denied the plaintiffs application for a revised site plan because: “Members felt that this revision was not in keeping with the scale of adjacent homes; that the development of the western portion of the parcel was too intense; and [that] the proposed driveway from Tunxis Street was located too close to the adjacent property. It was further recommended that the project be divided into two buildings and that the two proposed lots along Tunxis Street be combined into one.” The trial court concluded that the commission was correct in considering article IV of the Farmington zoning regulations, which regulates special permits in general, and article II, § 9, which specifically governs special permits for elderly housing. The trial court then “found that the record did not support two of the commission’s stated reasons for the denial of the site plan application, in that ‘the scale of the adjacent homes’ and the ‘intensity of the development’ were not criteria found within the Farmington regulations governing site plan approval [pursuant to a special permit]. The court, did, however, find that the commission’s third stated reason for denying the application, namely, that the proposed driveway was located too close to the adjacent property, was a proper consideration under the regulations and was supported by the record. In its postjudgment articulation, the trial court indicated that the proposed driveway entrance violated article IV, § 12 (B) (2) and (3) of the town’s regulations”; Barberino Realty & Development Corporation v. Planning & Zoning Commission, supra, 25 Conn. App. 395-96; that is, the conditions protecting adjacent property from detriment, and requiring that the location of traffic circulation be adequate within the site. Because we hold that the commission properly considered the special permit regulations when it denied the plaintiffs application for a revised site plan and because the trial court found sufficient support for one of the commission’s reasons denying the application, we reverse the judgment of the Appellate Court.

II

As an alternate ground upon which to affirm the judgment of the Appellate Court, the plaintiff claims that, even if the commission was authorized to consider the applicable regulations governing specially permitted uses, those regulations were void because they did not contain ascertainable standards for review in approving or denying the plaintiff’s application. In support of its position, the plaintiff relies, in part, on Ghent v. Planning Commission, 219 Conn. 511, 518, 594 A.2d 5 (1991), in which we held that a commission’s regulations must be reasonably precise in the subject matter and reasonably adequate and sufficient to give both the commission and those affected by its decision notice of their rights and obligations. The plaintiff further relies on Sonn v. Planning Commission, 172 Conn. 156, 162, 374 A.2d 159 (1976), wherein we stated that “[vjague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed, and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the right of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid.”

Although the plaintiff does not specify which regulation it claims to be impermissibly vague, it appears that the plaintiff is referring to article IV, § 12 (B) (2) and (3), the regulations upon which the trial court sustained the decision of the commission. Those regulations require that the commission take “adequate safeguards” for the protection of other properties and provide for “adequate” traffic circulation and parking.

The Appellate Court agreed with the plaintiff and stated: “Our Supreme Court has held that regulations that contain only ‘broad legislative statements] of purpose comparable to that found in § 8-2 of the General Statutes’; Kosinski v. Lawlor, 177 Conn. 420, 423, 418 A.2d 66 (1979); provide no standards for review in approving or denying site plans, and as such may be used ‘only in conjunction with and not as an alternative to the standards contained in the applicable zoning regulations.’ Id.” Barberino Realty & Development Corporation v. Planning & Zoning Commission, supra, 25 Conn. App. 400. The Appellate Court concluded that “[t]he regulations that are the basis of the trial court’s decision, article IV, § 12 (B) (2) and (3), contain the same infirmity” because they “provide no ascertainable standards for the regulation of the plaintiffs application, and indeed specific regulatory standards are found elsewhere in the zoning regulations and are complied with.” Id. We disagree with the Appellate Court.

We have held that the burden of showing that regulations are unconstitutionally vague rests with the plaintiff. Russo v. East Hartford, 179 Conn. 250, 257, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980); see also Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973). Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case. Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991); see also Ghent v. Planning Commission, supra. The plaintiff has not met these burdens in this appeal.

Although the plaintiff correctly states the law, it has not applied these legal principles to regulations governing special permits. As discussed more fully above, a specially permitted use is ordinarily allowed in any existing zoning district, provided, of course, that the site plan conforms to the regulations governing special permits. Unlike a permitted use wherein the commission has already made the determination that a particular use is appropriate in a particular area, in reviewing a special permit application the commission must examine the proposed site plan submitted with the application and determine, inter alia, whether it would be compatible with the zoning district and the existing structures permitted in that zone as of right. For example, a site plan that allows for “adequate” traffic circulation in an area zoned commercial may be wholly inadequate in an area zoned residential. The commission, therefore, must tailor its review of each site plan accompanying a special permit application to the particular zoning district in which the landowner seeks to develop. Accordingly, the commission must be afforded some leeway in the wording of the regulations.

As the trial court concluded, the commission, when reviewing the application for the revised site plan, properly considered whether the proposed driveway entrance would allow for adequate traffic circulation and would not be detrimental to the adjacent property. We agree that these concerns are valid.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       For purposes of this appeal, the applicable Farmington zoning regulations governing special permits are codified in article II, § 9, which regulates housing for the elderly, and article IV, § 12, which regulates special permits in general.

       The other defendants named in the case are Edgar A. King, the Farmington town clerk, and Robert W. Johansen, the chairman of the Farmington planning and zoning commission.

       In 1978, article II, § 5d of the Farmington zoning regulations governed the basic conditions applicable to special permits for elderly housing. Prior to the plaintiff appearing again before the commission in 1988, the applicable regulations were amended and codified in article II, § 9 of the Farmington zoning regulations. The changes in the regulations providing for elderly housing special permits do not affect the substance of this appeal.

       The zoning regulations of the town of Farmington were modified between the time the plaintiff was granted the special permit in 1978 and the time it applied for the revised site plan approval in 1988. The applicable regulations were modified to replace references to “special exceptions” with references to “special permits.” The terms are synonymous in Connecticut usage and are used interchangeably. A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974).

       General Statutes § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. ... A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. ... A decision to deny or modify a site plan shall set forth the reasons for such denial or modification. A copy of any decision shall be sent by certified mail to the person who submitted such plan within fifteen days after such decision is rendered. The zoning commission may, as a condition of approval of any modified site plan, require a bond in an amount and with surety and conditions satisfactory to it, securing that any modifications of such site plan are made. The commission shall publish notice of the approval or denial of site plans in a newspaper having a general circulation in the municipality.”

       Article I, § 1 of the Farmington zoning regulations provides in part: “These regulations are adopted under the General Statutes of the State of Connecticut, as amended, for the following purposes:

        “To promote and to protect the public health, safety, and welfare of the inhabitants of Farmington, Connecticut, and of the public generally,
      “To facilitate adequate transportation, water, sewerage, schools, parts, and other public benefits;
      “To encourage the most appropriate use of land throughout the Town, thereby conserving the value of properties;
      “To regulate the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts, and other open spaces; and the height, size and location of advertising signs;
      “To regulate the density of population and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes . . .
      “To regulate the erection, construction, reconstruction, alteration, or use of buildings or structures and the use of land in such zones;

        “To permit certain classes or kinds of buildings, structures or uses of land within the Town only after obtaining a special permit or special exception;

      “To lessen congestion in the streets;
      “To secure safety from fire, panic, flood, and other dangers;
      “To provide adequate light and air;
      “To prevent the overcrowding of land;
      “To further the policies of the Plan of Development;
      “To guide development in a manner which recognizes the importance of the natural environment;
      “To guide development which minimizes impacts to wetlands, watercourses, flood prone areas, hillsides, surface water and groundwater resources, and other sensitive and significant features of the natural landscape . . . (Emphasis added.)

       Although minor alterations to a site plan designed for a specially permitted use should not result in disapproval of the application, we agree with the commission that the determination of what constitutes a “minor alteration” is best left to the commission. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988).

       Neither the plaintiff nor the commission argues on appeal that the trial court improperly found that the Farmington zoning regulations do not allow for two of the three reasons given by the commission in denying the plaintiffs application for a revised site plan. Accordingly, this is not an issue before this court.

       Article IV, § 12 of the Farmington zoning regulations, as amended to March 23,1987, provides in pertinent part: “special permits, intent and APPLICATION REQUIREMENTS ....
      “B. Standards for Granting of a Change of Zone or Special Permit . . .
      “2. That adequate safeguards have been taken to protect adjacent property and the neighborhood in general from detriment;
      “3. That traffic circulation within the site and the amount, location, and access to parking is adequate . . . .”


author: Callahan, J.

text:
    Superintendent of Police of the City of Bridgeport et al. v. Freedom of Information Commission et al.
    (14410)
    Peters, C. J., Callahan, Glass, Covello and Berdon, Js.

      Argued March 31
    decision released June 30, 1992

      JohnH. Barton, associate city attorney, for the appellants (plaintiffs).

      Victor R. Perpetua, with whom, on the brief, was Mitchell Pearlman, general counsel, for the appellee (named defendant).
   Callahan, J.

This is an appeal from a judgment of the Superior Court dismissing the administrative appeal of the plaintiffs, the superintendent of police for the city of Bridgeport and the Bridgeport police department (plaintiffs), from a decision of the named defendant, the Freedom of Information Commission (FOIC). In its decision, the FOIC had concluded that the information appearing in permits, issued by the plaintiffs, to carry pistols or revolvers in the city of Bridgeport was not exempt from disclosure pursuant to General Statutes § 1-19 (b) (2). The plaintiffs appealed the decision of the FOIC to the Superior Court pursuant to General Statutes §§ l-21i (d) and 4-183. The trial court rendered judgment dismissing the plaintiffs’ appeal from which the plaintiffs appealed to the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023.

The factual situation that precipitated the plaintiffs’ appeal is undisputed. On October 7, 1987, a newspaper, the Fairfield County Advocate (Advocate), through an employee, Edward Ericson, requested the plaintiffs to furnish it with a list of all those residents of Bridgeport who possessed municipal permits to carry pistols or revolvers. Ericson specified that for each permit holder he desired to know the individual's name, birth-date, address, telephone number, occupation, sex, date of issuance of the permit and what weapons were registered to the individual. Initially, the plaintiffs informed Ericson that the information sought would be made available, but that it was not computerized and would take some time to produce. Thereafter, Ericson telephoned the plaintiffs regularly for approximately six weeks in an effort to obtain the requested information. That information, however, was not forthcoming. Thereafter, by letter dated December 7, 1987, the Advocate appealed to the FOIC alleging the wrongful denial of the desired data and requesting an order for its production.

On January 29, 1988, Commissioner Joan Fitch of the FOIC heard the Advocate’s appeal as a contested case. At the hearing the plaintiffs volunteered to make available to the Advocate the information that was contained in the permits issued by the plaintiffs with the exception of the names and addresses of the permit holders. Fitch, however, determined that all the requested information was subject to disclosure except the permit holders’ telephone numbers, which was not information appearing in the permits. She therefore recommended in her proposed finding to the FOIC that the plaintiffs be ordered to disclose the name, address, date of birth, occupation, and sex of all municipal permit holders and also the date the permits were issued and a description of any weapon registered.

The FOIC in a final decision dated April 27, 1988, and in a corrected final decision dated May 11, 1988, substantially adopted Fitch’s recommendations. The FOIC concluded that the information requested by the Advocate, which appeared in municipal permits to carry pistols or revolvers, was not exempt from disclosure as a medical, personnel or “similar” file pursuant to § 1-19 (b) (2) and that its disclosure did not constitute an invasion of personal privacy under that subsection. The FOIC, therefore, ordered that the plaintiffs disclose the information appearing in the permits.

The plaintiffs appealed the FOIC’s decision to the Superior Court. The trial court dismissed the plaintiffs’ appeal. In its memorandum of decision, the court found that the plaintiffs were aggrieved parties and were entitled to maintain the appeal. It also found that the plaintiffs’ copies of issued permits were public records that are kept on file or maintained by a public agency and that they were subject to disclosure unless they fell within the exception to disclosure set forth in § 1-19 (b) (2). Those findings are not disputed by either party. Finally, the court concluded that the plaintiffs had failed to prove that municipal permits to carry pistols or revolvers were medical, personnel or “similar” files exempt from disclosure under § 1-19 (b) (2).

The plaintiffs do not contend that a municipal permit to carry a pistol or revolver is a medical or personnel file. They argue instead that it is a “similar” file within the meaning of § 1-19 (b) (2) and therefore exempt from disclosure.

In considering the plaintiffs’ argument, it must be noted initially that there is an “overarching policy” underlying the Freedom of Information Act (FOIA) favoring the disclosure of public records. Chairman v. Freedom of Information Commission, 217 Conn. 193, 196, 585 A.2d 96 (1991); Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984). Our construction of the FOIA must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992); Lieberman v. State Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990); Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984).

In keeping with that policy, the plaintiffs have the burden of proving that municipal permits to carry pistols or revolvers are “similar” to medical and personnel files and are therefore entitled to the exemption from disclosure proyided such files by § 1-19 (b) (2). Rose v. Freedom of Information Commission, supra, 232; Chairman v. Freedom of Information Commission, supra; Commissioner of Consumer Protection v. Freedom of Information Commission, 207 Conn. 698, 702, 542 A.2d 321 (1988). “The plaintiffs must meet a twofold burden of proof to establish the applicability of the § 1-19 (b) (2) exclusion. First, they must establish that the [permits] in question are within the categories of files protected by the exemption, that is, personnel, medical or ‘similar’ files. Second, they must show that disclosure of the records ‘would constitute an invasion of personal privacy.’ ” Hartford v. Freedom of Information Commission, supra, 431-32; Ottochian v. Free dom of Information Commission, supra, 399-400; Chairman v. Freedom of Information Commission, supra, 196; Board of Education v. Freedom of Information Commission, 210 Conn. 590, 595, 556 A.2d 592 (1989). “This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.” New Haven v. Freedom of Information Commission, 205 Conn. 767, 776, 535 A.2d 1297 (1988); Emergency Medical Services Commission v. Freedom of Information Commission, 19 Conn. App. 352, 357, 561 A.2d 981 (1989).

As previously noted, the plaintiffs do not contend that municipal permits to carry pistols or revolvers are medical or personnel files. The question to be resolved, therefore, is whether such permits are, as argued by the plaintiffs, “similar” files that are exempt from disclosure pursuant to § 1-19 (b) (2). If Bridgeport municipal permits to carry pistols or revolvers are not “similar” files within the purview of § 1-19 (b) (2), such permits are not exempt from disclosure and it is unnecessary to consider whether their release would constitute an invasion of personal privacy. Hartford v. Freedom of Information Commission, supra.

The FOIA does not define what constitutes a “similar” file. We believe, however, that a municipal permit to carry a pistol or revolver is not a file “similar” to a medical or personnel file as envisioned by § 1-19 (b) (2). “We interpret the term ‘similar files’ to encompass only files similar in nature to personnel or medical files. This interpretation is consistent with our policy of narrowly construing exceptions to the Freedom of Information Act. Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188, 470 A.2d 1209 (1984). We also recognize that when a reference to a general category follows an enumeration of specific categories, the general category is construed to embrace only objects similar to those included in the specific categories. Anderson v. Ludgin, 175 Conn. 545, 553, 400 A.2d 712 (1978); 2A J. Sutherland, Statutory Construction (4th Ed. 1986) § 47.18.” Hartford v. Freedom of Information Commission, supra, 432 n.11.

In common parlance, a permit to carry a pistol or revolver is not “similar” to a medical or personnel file. Unlike a personnel or medical file, a permit to carry a pistol or revolver does not contain detailed information with a potential for disclosure of the intimate details of one’s personal life or capabilities. To conclude that a permit to carry a pistol or revolver is “similar” to a medical or personnel file and therefore exempt from disclosure would be a broad interpretation of § 1-19 (b) (2) that would stretch the ordinary meaning of “similar” to the breaking point. Such an interpretation would be inconsistent with the general principle that exceptions to disclosure must be narrowly construed. Ottochian v. Freedom of Information Com mission, supra, 398; Rose v. Freedom of Information Commission, supra, 233; Lieberman v. State Board of Labor Relations, supra, 266; Board of Police Commissioners v. Freedom of Information Commission, supra, 188. Narrowly construed, the term “similar” in § 1-19 (b) (2) cannot be extended to equate a permit to carry a pistol or revolver with a medical or personnel file.

The plaintiffs’ most appealing argument for ascribing “similar” status, and hence confidentiality, to permits to carry pistols or revolvers is that of safety. The plaintiffs claim that if a list of permit holders was made public it would furnish a “shopping list” to the criminal element. They also claim that disclosure would warn criminals where they might encounter armed resistance to attempted criminal activity and thus possibly encourage violence on an escalated scale. There is, however, no evidence in the record that such results will occur unless pistol or revolver permits are exempt from disclosure. The plaintiffs’ theory is grounded in speculation and given approbation solely by the arguments of counsel and is therefore an insufficient basis for overturning the decision of the administrative agency. New Haven v. Freedom of Information Commission, supra, 776; Emergency Medical Services Commission v. Freedom of Information Commission, supra, 357.

The plaintiffs also claim that the disclosure of the information contained in the permits is a violation of the permit holders’ federal and state constitutional rights to privacy and to keep and bear arms. The plaintiffs do not claim that the state cannot legitimately impose reasonable restrictions on the right to bear arms nor do they contend that the requirement for the issuance of a permit to carry a pistol or revolver in public is an unreasonable restriction of that right. They appear to argue, however, that if the information in a permit is subject to disclosure, a permit holder must forfeit the constitutional right to privacy in order to exercise his or her constitutional right to keep and bear arms. Consequently, they seem to claim that disclosure constitutes an infringement on both rights of the permit holder. The success of the plaintiffs’ argument turns on whether the required disclosure of the information in a permit to carry a pistol or revolver violates a permit holder’s constitutional right to privacy.

The plaintiffs have, however, failed to posit a theory that would allow them to assert the constitutional rights of the individual permit holders. “ ‘We have uniformly resisted the efforts of litigants to assert constitutional claims of others not in a direct adversarial posture before the court.’ Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 522, 468 A.2d 574 (1983).” Dinan v. Board of Zoning Appeals, 220 Conn. 61, 72, 595 A.2d 864 (1991). “Under long established principles, a party is precluded from asserting the constitutional rights of another.” Bell v. Planning & Zoning Commission, 174 Conn. 493, 499, 391 A.2d 154 (1978).

We conclude that the plaintiffs have failed in their burden to demonstrate that municipal permits to carry pistols or revolvers in public are “similar” files entitled to exemption from disclosure by virtue of § 1-19 (b) (2) of the FOIA. We also conclude that the plaintiffs have failed to establish standing to assert the constitutional rights of the individual permit holders who are not properly before us.

The judgment is affirmed.

In this opinion the other justices concurred.

       Also named as defendants in the trial court were the Fairfield County Advocate and Edward Ericson, an employee of that newspaper. They are not parties to the present appeal.

       General Statutes § 1-19 (b) (2) provides in pertinent part: “ACCESS to PUBLIC RECORDS. EXEMPT RECORDS. . . .
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to 1-2 lk, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       General Statutes § 29-28 provides: “permit for selling or carrying pistols OR revolvers. No person shall advertise, sell, deliver, or offer or expose for sale or delivery, or have in his possession with intent to sell or deliver, any pistol or revolver at retail without having a permit therefor issued as hereinafter provided. The chief of police or, where there is no chief of police, the warden of the borough or the first selectman of the town, as the case may be, may, upon the application of any person, issue a permit in such form as may be prescribed by the commissioner of public safety for the sale at retail of pistols and revolvers within the jurisdiction of the authority issuing such permit. No permit for the sale at retail of any pistol or revolver shall be issued unless the applicant submits documentation sufficient to establish that local zoning requirements have been met for the location where the sale is to take place except that any person selling or exchanging a pistol or revolver for the enhancement of a personal collection or for a hobby or who sells all or part of his personal collection of pistols or revolvers shall not be required to submit such documentation for the location where the sale or exchange is to take place. Upon the application of any person having a bona fide residence or place of business within the jurisdiction of any such authority or upon the application of any bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any state or subdivision of the United States, such chief of police, warden or selectman may issue a permit to such person to carry a pistol or revolver within the jurisdiction of the authority issuing the same, provided such authority shall find that such applicant intends to make no use of any pistol or revolver which he may be permitted to carry thereunder other than a lawful use and that such person is a suitable person to receive such permit. Said commissioner may, upon application, issue, to any holder of any such permit, a permit to carry a pistol or revolver within the state. Each permit to carry any pistol or revolver shall be issued in triplicate and one of the copies issued by said commissioner shall be delivered to the person to whom issued, one shall be delivered forthwith to the authority issuing the local permit and one shall be retained by said commissioner, and the local authority issuing any such permit shall forthwith deliver one of such copies to the person to whom issued and one copy to said commissioner and shall retain one of such copies. No permit for carrying a pistol or revolver shall be issued to an alien under the provisions of this section.”

       The FOIC did not require the disclosure of “any weapon registered” because that information is not included in a permit to carry a pistol or revolver and one does not have to “register” a particular pistol or revolver in order to obtain a permit. Moreover, neither Fitch, the FOIC nor the court required the disclosure of the results of the record check performed on each applicant for a permit by the Federal Bureau of Investigation.

       “Similar” is defined as “having characteristics in common: very much alike: comparable . . . .” Webster’s Third New International Dictionary.

       The trial court also concluded that the plaintiffs had failed to prove that the release of the information in the permits would constitute an invasion of personal privacy under General Statutes § 1-19 (b) (2).

         Words in a statute are to be given their generally accepted and commonly approved usage unless a contrary intent is clearly expressed. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 105, 561 A.2d 429 (1989); Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988); Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988).

       See, e.g., Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991) (confidential evaluation of high ranking official in the department of criminal justice); Hartford v. Freedom of Information Commission, 201 Conn. 421, 518 A.2d 49 (1986) (internal investigation of police misconduct); Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 563 A.2d 314 (1989) (prisoner’s complete file).

       A bill to exempt from disclosure under the FOIA the names and addresses of persons issued permits to carry pistols or revolvers was raised in the February, 1992 legislative session but never got out of committee. See Senate Raised Bill No. 333, Feb. Sess. 1992.

       The plaintiffs also claimed that the trial court was incorrect when it determined that their claims were moot and that a newspaper had a greater right to inspect government records than did the general public. We find these claims to be unsupported by the record and without merit.