author: CALLAHAN, C. J.

text:
    MARILYN CHARLES v. OWEN CHARLES
    (SC 15701)
    Callahan, C. J., and Borden, Berdon, Katz, Palmer and McDonald, Js.

    Argued September 30
    officially released November 18, 1997

      David P. Gaccione, with whom was Rob Cary, Jr., for the appellant (plaintiff).

      Carmine J. Giuliano, with whom, on the brief, was Lisa J. Marotta, certified legal intern, for the appellee (defendant).

      Richard Blumenthal, attorney general, and Carolyn K. Querijero and Susan Quinn Cobb, assistant attorneys general, filed a brief for the attorney general as amicus curiae.

      Patrice H. Kunesh and Jackson T. King, Jr., filed a brief for the Mashantucket Pequot Tribe as amicus curiae.

       Subsequent to oral argument in this appeal, Justice Norcott, although originally assigned to hear the case, disqualified himself. The parties have agreed to have the appeal decided by the remaining six justices.

   Opinion

CALLAHAN, C. J.

The sole issue on appeal is whether the Superior Court has subject matter jurisdiction, pursuant to General Statutes § 46b-44 (c) (l), over a dissolution of marriage action brought by an individual who is not a resident of Connecticut against a member of the Mashantucket Pequot Indian Tribe (tribe) who resides on the tribe’s reservation in Ledyard. We answer this question in the affirmative.

The relevant facts and procedural history are as follows. On November 1, 1995, the plaintiff, Marilyn Charles, a nonlndian resident of Rhode Island, filed this action for dissolution of marriage in the Superior Court for the judicial district of New London. The defendant, Owen Charles, is a member of the Mashantucket Pequot Indian Tribe, who resides on the tribe’s reservation in Ledyard. The defendant was a resident of the reservation for at least twelve months immediately prior to the initiation of the plaintiffs action. See General Statutes § 46b-44 (c) (1).

On May 7,1997, the trial court, acting upon the defendant’s motion to dismiss, determined that the defendant was not a resident of Connecticut for purposes of § 46b-44 (c) (1). The court concluded, consequently, that it lacked subject matter jurisdiction over the plaintiffs action and dismissed her complaint. The trial court reasoned that, because the defendant resided on the reservation, he was not a Connecticut resident and, therefore, the court was without jurisdiction. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that the trial court has subject matter jurisdiction over the dissolution action, and we reverse the judgment of the trial court.

An action for dissolution of a marriage “obviously is a civil action.” Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). The Superior Court has exclusive jurisdiction of all complaints seeking a dissolution of marriage. General Statutes § 46b-42. Section 46b-44 establishes a residency requirement, satisfaction of which is essential to confer on the court subject matter jurisdiction over a dissolution action. Because the plaintiff in this case resides in Rhode Island, the statute can be satisfied only if the defendant meets the requirements of § 46b-44 (c) (1), which grants subject matter jurisdiction if “[o]ne of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint . . . .” See footnote 2 of this opinion. The threshold question before us, therefore, is whether the defendant, a tribal member residing on the reservation, is subject to the jurisdiction of the Superior Court of the state of Connecticut in this civil action for the dissolution of marriage.

The defendant argues that the Superior Court lacks subject matter jurisdiction because the tribe has not consented to the jurisdiction of the state in civil matters. The fallibility of this argument lies in its assumption that the tribe’s consent is necessary. We previously have addressed the question of state jurisdiction over Indian residents of the Mashantucket Pequot Reservation in the criminal context. State v. Spears, 234 Conn. 78, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995). In Spears, after a lengthy analysis of the relevant statutes, we held that tribal consent to the state’s criminal jurisdiction was not required. Id., 96. The rationale employed in Spears is equally applicable to the question of civil jurisdiction in this case. Accordingly, we conclude that tribal consent is not required to confer state jurisdiction over this civil action against a member of the Mashantucket Pequot Tribe who resides on the tribe’s reservation in Ledyard.

To answer the question presented, we must construe those federal statutes that govern state jurisdiction over Indian country generally and the territory of the Mashantucket Pequot Tribe in particular. Our analysis of the statutes is guided by well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary.” Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). “We . . . must effectuate the expressed Congressional intent. . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances suirounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Spears, supra, 234 Conn. 85-86.

We begin with an analysis of the text of the federal statutes that govern Indian affairs generally. The United States has the authority to regulate Indian affairs pursuant to the Indian commerce clause of the United States constitution. U.S. Const., art. I, § 8, cl. 3; see White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980). Congress addressed the issue of state jurisdiction over tribal land in 1953 when it enacted Public Law 83-280. That legislation granted five states civil jurisdiction over tribal lands within their boundaries, increasing that number to six the following year. The 1953 act provided an option for other states to assume civil jurisdiction over tribal lands if their state legislatures affirmatively authorized such assumption. In 1968, Congress repealed Public Law 83-280 and replaced it with Title IV of the Indian Civil Rights Act of April 11, 1968, 82 Stat. 78, which is codified at 25 U.S.C. §§ 1321 through 1326. Title IV provides in §§ 1321 and 1322 (§§401 and 402 of Title IV), respectively, that the tribe must consent to the assumption by the states of civil and criminal jurisdiction.

In 1971, the United States Supreme Court concluded that the sole method of tribal consent to the assumption of both criminal and civil jurisdiction under Title IV was the method established in § 1326. Kennerly v. District Court of Montana, 400 U.S. 423, 429, 91 S. Ct. 480, 27 L. Ed. 2d 507 (1971). That section provides that “[s]tate jurisdiction acquired pursuant to this subchapter with respect to criminal offenses or civil causes of action, or with respect to both, shall be applicable in Indian country only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose.” 25 U.S.C. § 1326 (§ 406 of Title IV). If that statute were the last word on state jurisdiction over Indian country, the defendant’s claim that the court lacked jurisdiction would be correct because the tribe has not accepted state jurisdiction “by a majority vote of the adult Indians voting at a special election held for that purpose.”

In 1983, however, Congress enacted the Mashantucket Pequot Indian Claims Settlement Act (Settlement Act) to effectuate a land dispute settlement between the tribe and the state of Connecticut. Congress provided in § 6 of the Settlement Act; 25 U.S.C. § 1755; that “[notwithstanding the provision relating to a special election in section 406 of the Act of April 11, 1968 (82 Stat. 80; 25 U.S.C. 1326), the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in [T\ille TV of such Act [25 U.S.C. 1321 et seq.].” (Emphasis added.) That provision has been interpreted by this court as conferring jurisdiction on the state without the requirement of tribal consent. State v. Spears, supra, 234 Conn. 84-94. Spears involved a determination of the criminal jurisdiction of the state over members of the tribe. The statutory analysis and result with respect to civil jurisdiction are, however, substantially the same.

Relying on precedent of the United States Supreme Court, we concluded in Spears that the only mechanism for establishing the requisite tribal consent to criminal jurisdiction in § 1321 would have been through the special election provision of § 1326 (§ 406 of Title IV of the Indian Civil Rights Act). State v. Spears, supra, 234 Conn. 90, quoting Kennerly v. District Court of Montana, supra, 400 U.S. 429. Cognizant of the fact that the United States Supreme Court had interpreted § 1326 as the only mechanism for tribal consent, Congress eliminated that mechanism when it enacted § 1755 (§ 6 of the Settlement Act). “It follows, then, that the nullification by § 1755 of the special election requirement, the sole means by which Indian tribes may consent to state jurisdiction [under Title IV], accompanied by an express grant of jurisdiction to the state, effectively nullifies the tribal consent requirement in § 1321 [and, likewise § 1322]. ” State v. Spears, supra, 90.

The legislature is presumed to know the judicial interpretation placed upon a statute. State v. Crowell, 228 Conn. 393, 401, 636 A.2d 804 (1994); Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993). It is further presumed that when the legislature subsequently acts with respect to a statute, it does so with full awareness of relevant judicial interpretations. Rodriguez v. United States, 480 U.S. 522, 525, 107 S. Ct. 1391, 94 L. Ed. 2d 533 (1987). It is essential that statutes be read as constituting one harmonious whole. Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878-79, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994). “The only way to harmonize [§ 1321 or § 1322 and § 1326] with each other and with § 1755 is to conclude that the abrogation of the only method of consent abrogated the necessity for consent.” State v. Spears, supra, 234 Conn. 91.

The defendant attempts to distinguish our decision in Spears on the ground that in Spears we addressed only criminal jurisdiction, and that civil jurisdiction appears in a separate section of Title IV of the Indian Civil Rights Act. This argument is without merit. Although the holding in Spears regarding criminal jurisdiction may not control this civil action, its underlying rationale is equally applicable to this case. Section 1755 does not provide that the tribe is subject to state jurisdiction only to the maximum extent provided in § 1321. Rather, § 1755 provides: “[T]o the maximum extent provided in Title TV of such Act.” (Emphasis added.) Title IV of “such Act” refers to the Indian Civil Rights Act, which includes §§ 1321 through 1326. Title IV encompasses both the criminal jurisdiction provision of § 1321 and the civil jurisdiction provision of § 1322. Therefore, “jurisdiction to the maximum extent provided in Title IV” (emphasis added) includes both criminal and civil jurisdiction. Section 1755, which is § 6 of the Settlement Act, therefore, eliminated the consent requirement with respect to civil jurisdiction contained within Title IV as well as the consent requirement with respect to criminal jurisdiction. The plain language of these interlocking statutes permits no other interpretation.

The legislative history of the Settlement Act provides further support for the proposition that Congress intended to eliminate the consent requirement. The reports of both the Senate and the House of Representatives indicate that “[s]ection 6 [§ 1755] provides that the reservation ... is subject to the full extent of State jurisdiction ... as defined in Title IV of the Act of April 11, 1968, the Indian Civil Rights Act. The Tribe’s reservation has this status notwithstanding section 406 of the Indian Civil Rights Act [§ 1326] which requires a majority vote of the enrolled members of an Indian tribe before a state may assume jurisdiction over that tribe.” (Emphasis added.) S. Rep. No. 222, 98th Cong., 1st Sess., 16 (1983); H.R. Rep. No. 43, 98th Cong., 1st Sess., 10 (1983). The “full extent of State jurisdiction ... as defined in Title IV” includes both criminal and civil jurisdiction. Moreover, the use of the present tense, “has this status,” in the Senate report clearly indicates that the intent of Congress was that the grant of jurisdiction to Connecticut be accomplished by the enactment of the statute. If consent were still required, the statement would have been cast in the future tense, denoting that the tribe will have this status after it consents. See State v. Spears, supra, 234 Conn. 94.

As with criminal jurisdiction, the plain language and legislative history of § 6 of the Settlement Act; 25 U.S.C. § 1755; evince a clear intent to eliminate the provision in § 1326 requiring tribal consent as a prerequisite to conferring civil jurisdiction on the state pursuant to § 1322. Accordingly, Connecticut has jurisdiction “over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within [Connecticut]” pursuant to 25 U.S.C. § 1322. Once the state acquires civil jurisdiction, it has “such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private properly shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State. ” (Emphasis added.) 25 U.S.C. § 1322.

Because Congress, in adopting the Settlement Act, conferred upon the state of Connecticut the civil jurisdiction provided in § 1322, it necessarily follows that the defendant is subject to the provisions of § 46b-44 “to the same extent” as if he were a resident of the state. The civil laws of the state, including § 46b-44, have the same force and effect on the reservation as they have elsewhere in Connecticut. The defendant may not, therefore, avail himself of the argument that he is not a Connecticut resident in order to evade the jurisdiction of the Connecticut courts over this action. The Superior Court has jurisdiction over this action pursuant to 25 U.S.C. §§ 1755 and 1322 to the same extent it would have if the defendant were any other resident of Connecticut. The defendant, consequently, must be treated as a resident of Connecticut for purposes of § 46b-44 (c) (1) notwithstanding his tribal membership and residency on the tribal reservation. Therefore, the Superior Court has subject matter jurisdiction over this dissolution action.

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

In this opinion the other justices concurred.

       General Statutes § 46b-44 provides in relevant part: “(c) A decree dissolving a marriage or granting a legal separation may be entered if: (1) One of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree . . . .” (Emphasis added.)

       In its memorandum of decision, the trial court stated that “Rhode Island, by virtue of the plaintiffs residence, has an interest in the outcome of the divorce proceeding. [The tribe] by virtue of the defendant’s residency and tribal membership, has an interest in the outcome of the proceeding. This court fails to find a corresponding interest for the state of Connecticut. For the foregoing reasons, the court concludes that a Mashantucket tribal member residing on the reservation does not satisfy the residency requirement of § 46b-44.”

       See footnote 2 of this opinion.

       Connecticut formally recognizes members of the Mashantucket Pequot Tribe as “Indians” and recognizes their reservation in Ledyard. General Statutes § 47-63.

       “Indian country” is defined as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . .” 18 U.S.C. § 1151 (a).

       Public Law 83-280 appears at 18 U.S.C. § 1162 and 28 U.S.C. § 1360 (1953).

       The original five states were California, Minnesota, Nebraska, Oregon and Wisconsin. Alaska was added later. At that time, Connecticut had no federally recognized tribal lands.

       Section 7 of Public Law 83-280 authorizes “any other State not having jurisdiction with respect to . . . civil causes of action ... as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” Act of Aug. 15,1953, c. 505, § 7,67 Stat. 590.

       Title 25 of the United States Code, § 1322 (a) provides: “The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private properly shall have the same force and effect within such Indian country or part thereof as they have elsewhere within the State.”
      Title 25 of the United States Code, § 1321 provides for criminal jurisdiction in virtually identical terms. See footnote 13 of this opinion.

       The Mashantucket Pequot Indian Claims Settlement Act of 1983, Public Law 98-134, § 2, October 18,1983,97 Stat. 851, is codified at 25 U.S.C. §§ 1751 through 1760.

       The defendant’s reliance on Mashantucket Pequot Tribe v. McGuigan, 626 F. Sup. 245 (D. Conn. 1986) is misplaced. That decision dealt with the applicability to the tribe of Connecticut’s bingo laws, deemed to be a regulatory scheme. In dicta, without analysis, the United States District Court in McGuigan pondered whether the elimination by § 1755 of the special election provision of § 1326 “may have created an anomaly by the fact that it does not eliminate the consent requirement of 25 U.S.C. § 1321. It is not necessary, however, to resolve that question . . . .” Id., 248. This court has had difficulty clearly articulating our interpretation of that decision. In Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 615 n.3, 587 A.2d 139 (1991), we indicated that McGuigan held that Connecticut had acquired criminal but not civil jurisdiction. We later clarified our interpretation of that case as leaving the question of criminal jurisdiction open because it dealt only with the bingo rules, which are “ ‘civil/regulatory.’ ” State v. Spears, supra, 234 Conn. 84 n.4. We now make clear that the dicta in McGuigcm has no relevance to the analysis of whether § 1755 granted civil and criminal jurisdiction to the state of Connecticut while eliminating any tribal consent requirement. The United States District Court expressly stated that it did not reach that issue. In Spears, however, this court did resolve the unanswered question of the effect of § 1755 on the consent requirement of § 1326.

       The consent language of § 1322 is identical in all material respects to § 1321. The differences in the two statutes are highlighted immediately below.
      Title 25 of the United States Code, § 1321 (a) provides in relevant part: “The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed, by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which would be affected by such assumption . . . .” (Emphasis added.)
      Title 25 of the United States Code, § 1322 (a) provides in relevant part: “The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption . . . .” (Emphasis added.)

       Section 1326, which was supplanted by § 1755 with respect to the Mashantucket Pequot Tribe, specifically encompassed consent to jurisdiction over “criminal offenses or civil causes of action, or . . . both . . .

       Viewed another way, the Settlement Act itself is tribal consent. That act was enacted as a compromise settlement among the tribe, the state of Connecticut and the federal government. See Mashantucket Pequot Tribe v. McGuigan, supra, 626 F. Sup. 247. In agreeing to the Settlement Act’s provisions, which enabled settlement of the tribe’s land claims in Ledyard, the tribe relinquished its right to require its consent to state jurisdiction.

       We note that we do not here decide whether an Indian resident of Indian country is a resident of the state in which the reservation is located for all purposes. We hold only that Connecticut has jurisdiction pursuant to 25 U.S.C. §§ 1322 and 1755 and so has jurisdiction over this dissolution action to the same extent that it would have if the defendant were not a resident of the reservation residing within the boundaries of the state of Connecticut.


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    KAREN A. GRIMES v. CONSERVATION COMMISSION OF THE TOWN OF LITCHFIELD
    (SC 15573)
    (SC 15574)
    Callahan, C. J., and Borden, Katz, Palmer and Peters, Js.

      Argued September 25
    officially released November 25, 1997

      Gail E. McTaggart, for the appellant in Docket No. 15573 (defendant).

      Kenneth R. Slater, Jr., for the appellant in Docket No. 15574 (intervening defendant).

      William C. Franklin, for the appellee in both cases (plaintiff).

      Richard Blumenthal, attorney general, and Janet P. Brooks, assistant attorney general, filed a brief for the commissioner of environmental protection as amicus curiae.
   Opinion

KATZ, J.

The principal issue in this appeal is whether a municipal conservation commission, acting pursuant to the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq. (act), must give an abutter actual notice of site inspections attended by a quorum of commissioners and by an agent of the property owner. This case arises out of an appeal by the plaintiff, Karen A. Grimes, from the granting by the defendant, the conservation commission of the town of Litchfield (commission), of five applications to conduct activities regulated by the act. The plaintiff appealed from the commission’s decision to the Superior Court pursuant to General Statutes § 22a-43 (a). The applicant and property owner, James B. Irwin, then intervened as a defendant pursuant to General Statutes § 52-102 and Practice Book § 85. The trial court, Pickett, J., dismissed the appeal. The Appellate Court reversed the judgment of the trial court, concluding that the commission, in violation of the plaintiffs due process rights, had provided inadequate notice of a visit to the proposed subdivision by five members of the commission and by the defendant property owner’s engineer. Grimes v. Conservation Commission, 43 Conn. App. 227, 230, 682 A.2d 589 (1996). The commission and Irwin thereafter separately petitioned for and were granted certification to appeal by this court limited to the following question: “Under the circumstances of this case, did the Appellate Court properly conclude that the plaintiff was deprived of due process of law by the conduct ol' the conservation commission regarding its September 14, 1993 site visit?” Grimes v. Conservation Commission, 239 Conn. 943, 944, 686 A.2d 121 (1996).

The record discloses the following undisputed facts. Irwin, the owner of a 14.9 acre parcel of land in Litchfield, submitted five applications to the commission for approval of regulated activities on a proposed four lot residential subdivision. A duly noticed public hearing concerning these applications was convened on September 1, 1993, but, after two minutes, the hearing was recessed and continued to September 29, 1993. On September 14, 1993, the commission held a special meeting on the property that was attended by five members of the commission and by Irwin’s engineer, Dennis McMorrow. Because it was anticipated that a quorum of the commission would be present at the site inspection, it qualified as a “meeting” pursuant to General Statutes § l-18a (b) of the Freedom of Information Act, General Statutes § 1-7 et seq., and, therefore, was subject to the notice requirements for “special meetings” under General Statutes § 1-21 (a). A notice of the site inspection, indicating the date, time and location of the special meeting, was posted properly at the town clerk’s office in Litchfield as required by § 1-21 (a). The plaintiff did not have actual notice and did not attend the meeting. Minutes of this site inspection indicate that the commissioners walked over the property and discussed various aspects of drainage and wetland crossings. The minutes do not indicate whether McMorrow answered questions related to these concerns or otherwise participated in any way in these discussions. The trial court found that the information discussed at the site inspection also had been disclosed and discussed during the subsequent heating on September 29, 1993. McMorrow was present and testified at the September 29 hearing, and was available for questioning by the plaintiffs attorney. On December 22, 1993, after several additional hearings, the commission granted Irwin’s application subject to certain modifications. As found by the trial court, the conservation measures finally adopted by the commission were not proposed until after the September 14 site inspection.

In this certified appeal, the plaintiff claims that personal notice of the site visit was required because the visit was an integral part of an evidentiary hearing attended by agents of only one party and, therefore, that the mere posting of a public hearing agenda at the town clerk’s office as required by § 1-21 (a) violated principles of fundamental fairness applicable to administrative proceedings. The commission and Irwin argue that the site visit was merely an investigative measure, properly engaged in by the commission, and that notice pursuant to § 1-21 (a) was therefore adequate. We agree with the commission and Irwin.

It is important to note at the outset that we need not consider what protections the plaintiff should have been afforded under the due process provisions of the state and federal constitutions because she had no cognizable property interest in this case. A constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). A substantive property interest arises when “absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.” Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985). Thus, we have held that even a property owner has no cognizable property interest in the issuance of a zoning permit if the agency has discretion to decide whether to approve the application. Red Maple Properties v. Zoning Commission, 222 Conn. 730, 742, 610 A.2d 1238 (1992).

Furthermore, “[a] statute or ordinance providing procedural guarantees does not create a constitutionally protected property interest unless it sets forth substantive criteria that limit the discretion of the decision-making body. ... [A] party whose asserted property interest is not related to the substantive criteria but rather is grounded solely in the procedures set forth in the statute does not have a constitutionally cognizable property interest.” (Citations omitted.) Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 78, 588 A.2d 624 (1991). Thus, we have held that an abutter has no due process right to actual notice of a hearing. Id., 79-80 (publication notice is sufficient); Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972) (constructive notice to abutter held sufficient); see also Fusco v. Connecticut, 815 F.2d 201, 205-206 (2d Cir.), cert. denied, 484 U.S. 849, 108 S. Ct. 149, 98 L. Ed. 2d 105 (1987) (actual notice to abutting landowners not required). The plaintiffs asserted interest in the notice provisions of the act is unrelated to the substantive criteria of the act. Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 78. Because the plaintiff had no constitutionally protected property interest at stake in these proceedings, she had no property interest in the commission’s adherence to statutory notice provisions and has no constitutional due process right to notice in this case.

Although no constitutional due process right exists in this case, we have recognized a common-law right to fundamental fairness in administrative hearings. “The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice.” Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 (1967). Fundamentals of natural justice require that “there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . . .” Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149 (1953), overruled on other grounds, Ward v. Zoning Board of Appeals, 153 Conn. 141, 146-47, 215 A.2d 104 (1965). Put differently, “[d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence.” Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 149-50, 627 A.2d 1257 (1993) (administrative agency “cannot properly base its decision . . . upon [independent] reports without introducing them in evidence so as to afford interested parties an opportunity to meet them”); Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987) (administrative due process requires due notice and right to produce relevant evidence); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984) (same). The purpose of administrative notice requirements is to allow parties to “prepare intelligently for the hearing.” Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47.

The plaintiff argues that administrative fundamental fairness required that she be given personal notice of the site inspection because: (1) Irwin’s engineer attended the site inspection; (2) technical aspects of the application were discussed with the engineer outside of her presence; and (3) the commission was aware of her interest in Irwin’s applications. In essence, the plaintiff argues that, under these circumstances, the special meeting was not a traditional site inspection but, instead, was an integral part of the hearing process. The commission and Irwin respond that: (1) routine site inspections require either no notice or notice pursuant to § 1-21 (a); and (2) there are no facts on the record to show that the meeting was anything other than a site inspection and, consequently, that notice was adequate in this case. We agree with the commission and Irwin.

The commission gave notice of the site inspection in accordance with the Freedom of Information Act, which requires only that notice of meetings be posted at the town clerk’s office. Notification conforming to statutory requirements makes sufficient information available to interested parties so that they may prepare intelligently for the upcoming meeting or hearing. Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 218 Conn. 79-80 (publication notice conforming to municipal zoning regulations held sufficient despite lack of actual notice to interested abutter); Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47-48 (constructive notice through publication held sufficient to allow interested abutter to “prepare intelligently” for hearing). In fact, the plaintiff concedes that if the September 14 special meeting was merely a site inspection, the notice provided was sufficient. Therefore, unless the site inspection was, in fact, a hearing, the notice was proper.

We begin with the scope of the commission’s authority to investigate and to determine whether to grant an application to conduct activities regulated by the act. The law in this regard is well settled. Although administrative adjudicative proceedings and judicial proceedings offer some of the same procedural protections, they differ markedly in their treatment of the fact finder’s reliance on nonrecord evidence. “An administrative agency can be the investigator and adjudicator of the same matter without violating due process.” New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. 152. “Unlike judicial proceedings, an administrative board ‘may act upon facts which are known to it even though they are not produced at the hearing.’ ” Id., 149, quoting Parsons v. Board of Zoning Appeals, supra, 140 Conn. 292; see also Pizzola v. Planning & Zoning Commission, supra, 167 Conn. 208 (zoning board may receive technical assistance in executive session); Miklus v. Zoning Board of Appeals, supra, 154 Conn. 406 (“[proceedings before an administrative board are informal and the board is not bound by strict rules of evidence and may act upon facts which are known to it, even though they are not produced at the hearing”). In fact, “an agency is not required to state all its determinations on the record so long as the record provides an adequate basis for the agency’s decision.” Samperi v. Inland Wetlands Agency, 226 Conn. 579, 590-91, 628 A.2d 1286 (1993). The agency must, however, disclose any “special knowledge and experience” upon which it relies in reaching a decision. Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980); see also New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 142 (agency must disclose material nonrecord facts learned through its own investigation); Pizzola v. Planning & Zoning Commission, supra, 207 (opposing party must be apprised of facts on which board asked to act).

Although site visits are not required by the act, we have recognized that they may be necessary for commissioners thoroughly to evaluate property that is the subject of an application. Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 701, 433 A.2d 999 (1980) (responsibilities conferred on commission by act necessitate site inspection); see also Samperi v. Inland Wetlands Agency, supra, 226 Conn. 582. Commissioners are permitted to base their decisions in part on facts within their “peculiar knowledge,” including information gleaned from a site inspection, as long as those facts are disclosed to the parties. Manor Development Corp. v. Conservation Commission, supra, 701-702; see also Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 547 (“[knowledge obtained through personal observations of the locus may properly be considered by the agency”). A site visit is therefore an appropriate investigative tool.

As the Appellate Court stated, and we agree, “[t]he purpose of a site visit is to acquaint the members of a commission with the property at issue.” Grimes v. Conservation Commission, supra, 43 Conn. App. 228 n.3. By contrast, the purpose of a hearing is to afford the parties the opportunity to present and to rebut evidence upon which the commission relies in reaching its decision. See General Statutes § 22a-42a (c) (1); Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 536; Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 249. Investigative procedures, such as site inspections, therefore are not an integral part of the hearing process, although the agency must disclose to the parties any information relied upon in reaching a decision so that they may comment upon it. New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, supra, 226 Conn. 152, citing Withrow v. Larkin, 421 U.S. 35, 46-55, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Feinson v. Conservation Commission, supra, 180 Conn. 428-29.

Because the burden is on the plaintiff to show that the commission acted improperly; Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985); she must prove that the meeting was, in fact, a hearing in order to avail herself of the more stringent notice requirements of § 22a-42a. The record is barren of any facts indicating that the September 14,1993 meeting was anything other than a traditional site inspection. Despite the plaintiffs claims to the contrary, our review of the minutes does not indicate that McMorrow was questioned by the commissioners or that he participated in any way. We therefore conclude that the September 14, 1993 meeting was neither a hearing nor an integral part of the healing process as alleged by the plaintiff.

The plaintiff relies on Palmisano v. Conservation Commission, 27 Conn. App. 543, 608 A.2d 100 (1992), to support her claim that the presence of the defendant’s engineer and the alleged receipt of ex parte evidence by the commissioners at the site converted the site inspection to a hearing and therefore rendered notice of the site visit inadequate. In Palmisano, the commission received tangible evidence, consisting of a hand drawn map showing the location of a well on abutting property, during a site inspection for which no notice was given and which was held after the close of the agency hearings. Id., 545. The Appellate Court held that the plaintiffs’ due process rights were violated because the commission had received evidence ex parte and the plaintiffs were given no opportunity to explain or rebut that evidence even though the location of the neighbor’s well had been discussed during the hearing. Id., 547, citing Norooz v. Inland Wetlands Agency, 26 Conn. App. 564, 569-70, 602 A.2d 618 (1992) (ex parte receipt of evidence improper when obtained without opposition’s knowledge and no opportunity offered to explain or rebut). The court in Palmisano concluded that the commission had acted improperly and had failed to rebut the presumption that the receipt of the ex parte evidence was prejudicial. Palmisano v. Conservation Commission, supra, 547; see Blaker v. Planning & Zoning Commission, 212 Conn. 471, 480, 562 A.2d 1093 (1989).

The facts of this case are distinguishable from Palmisano. First, as we have already stated, there is nothing in the record to indicate that any ex parte evidence was received. Second, all parties were heard at the subsequent public hearing regarding the matters discussed at the site inspection, thereby rendering any hypothetical ex parte receipt of evidence harmless. In the present case, the notice of the site inspection comported with the provisions of the Freedom of Information Act and the Litchfield conservation commission inland wetlands and watercourses regulations, and the site inspection was held before the close of the hearings. The trial court also found that “the material content of all observations and communications relative to the site walk summarized in the minutes were disclosed and discussed at the subsequent continued public hearing. Additionally, the plaintiff was provided with ample opportunity to rebut [the] testimony.” See Micklus v. Zoning Board of Appeals, supra, 154 Conn. 404 (noting plaintiffs failure to cross-examine on challenged evidence). In contrast to Palmisano, there is nothing in the record, and the plaintiff has pointed to nothing, to indicate that any evidence had been taken during the site visit or that Irwin’s engineer had been questioned or had participated in any way in the proceedings. Nor did the plaintiff avail herself of the opportunity to question the engineer or the commission members at the subsequent September 29,1993 hearing as to the nature of the discussion at the site visit. Additionally, the trial court found that the basis for the commission’s recommendations had not been presented until after the site inspection. Therefore, the plaintiff has not established that the commission granted the application on the basis of anything other than evidence before it at the hearing or that the special meeting held at Irwin’s property was anything other than a traditional site inspection. As the trial court found, the commission provided statutorily adequate notice of the site inspection and the parties had an opportunity to comment upon all the facts discussed at the site inspection and to question the applicant’s engineer at the subsequent hearing. The plaintiff cannot, therefore, prevail on her claim that she was deprived of a meaningful opportunity to address the facts upon which the commission based its ruling. For the foregoing reasons, we hold that the special meeting held on the subject property was nothing more than a site inspection and that the notice provided in accordance with § 1-21 (a) did not violate the plaintiffs common-law rights to fundamental fairness in the proceedings.

Our holding is further supported by the fact that a rule requiring the commission to give personal notice of site inspections to interested persons when one of the parties is in attendance would be unnecessarily burdensome. We have noted that, because municipal inland wetlands agencies are composed of volunteer laypersons, procedures and fact-finding must of necessity be somewhat more relaxed than for state agencies. See Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). The formalities of a hearing would generally be incompatible with a site inspection, which often involves walking over undeveloped land. Additionally, it would be difficult to determine, under the standard proposed by the Appellate Court, when the nature and extent of a party’s interest have risen to a level that would require personal notice. Such a determination would be particularly difficult in light of the prohibition of the Freedom of Information Act against requiring members of the public to furnish their names as a condition of attendance at public hearings. General Statutes § 1-21 (a).

The judgment of the Appellate Court is reversed and the case is remanded to that court for its consideration of the remaining issues raised by the plaintiffs appeal.

In this opinion the other justices concurred.

       The commission is the municipal agency charged under General Statutes § 22a-42 with enforcing the act, which is codified at General Statutes §§ 22a-36 through 22a-45.

       General Statutes § 22a-43 provides in relevant part: “Appeals, (a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. ...”
      The plaintiff cited numerous grounds for appealing the board’s granting of the applications, the majority of which are irrelevant to this appeal.

       The plaintiff claimed that the trial court improperly had dismissed her appeal because “(1) there was substantial evidence in the record to establish that the decision of the commission was unlawful because a commission member, who voted to approve the applications, had failed to attend a site visit and was, therefore, ineligible to vote, (2) the commission lacked jurisdiction in this matter because it failed to provide adequate public notice of a site visit, (3) the commission received and considered evidence ex parte, thereby depriving the plaintiff of her right to due process, and (4) the commission failed to consider, pursuant to General Statutes § 22a-41, whether the development of a separate parcel of land owned by the applicant was a ‘feasible and prudent alternative’ to the proposed action.” Grimes v. Conservation Commission, 43 Conn. App. 227, 228-29, 682 A.2d 589 (1996). The Appellate Court, apparently using the plaintiffs second claim as a springboard, concluded that the plaintiffs due process rights to fundamental fairness had been violated when the commission failed to give her personal notice of the site inspection. Id., 234.

       The commission’s previous ruling on applications for a live lot subdivision on the same land had been appealed by both Irwin and the plaintiff. The commission agreed to a stipulated judgment in favor of the plaintiff based on inadequate notice of the public hearing on those applications. The application at issue here sought permission to construct four homes on the 14.9 acre parcel and proposed a number of measures to prevent erosion, sedimentation, flooding, surface runoff, and pollution. The applications indicated that the proposed construction would affect approximately 0.04 acres of wetlands.

       Notice of the September 1 meeting was published in The Sunday Republican on August 19, 1993, and in the Torrington Register Citizen on August 26, 1993. The plaintiff concedes that this notice conformed to the requirements of General Statutes § 22a-42a (c) and that no further notice was required when the hearing was continued to September 29, 1993.

        General Statutes § 22a-42a (c) provides in relevant part: “Notice of the hearing shall be published at least twice at intervals of not less than two days, the first not more than fifteen days and not fewer than ten days, and the last not less than two days before the date set for the hearing in a newspaper having a general circulation in each town where the affected wetland or watercourse, or any part thereof, is located. ...”

       General Statutes § l-18a (b) provides in relevant part: “ ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. . . .”

       General Statutes § 1-21 provides in relevant part: “Meetings of government agencies to be public. ... (a) . . . Notice of each special meeting of every public agency, except for the General Assembly, either house thereof or any committee thereof, shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency. The secretary or clerk shall cause any notice received under this section to be posted in his office. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting . . . .”

       The minutes of the site inspection state in relevant part “The site was walked from lots 1 to 5. The drainage watercourse on lot 1 was examined and alternatives were discussed. The other drainage through the property [was] also noted and discussed. The wetland crossing for driveways to lots 4 and 5 was noted and alternatives discussed.”

       Additionally, the plaintiff conceded at oral argument that there is no constitutional due process claim in this case and that she did not argue in her brief that such a right existed.

       The plaintiff and the Appellate Court rely on Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950), for the proposition that constitutional procedural due process requires personal notice in this case. In Mullane, the United States Supreme Court held that certain easily identifiable persons with cognizable property interests were entitled to actual rather than constructive notice before they could be deprived of those interests. That holding, however, presupposed the existence of a protected property interest, which we conclude did not exist in the circumstances of the present case.

       The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice that is at issue in this case. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); Parsons v. Zoning Board of Appeals, 140 Conn. 290, 293, 99 A.2d 149 (1953). In a number of administrative law cases decided after Board of Regents v. Roth, supra, 408 U.S. 564, we have characterized these procedural protections as “due process” rights. See, e.g., Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536, 525 A.2d 940 (1987); Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984); Pizzola v. Planning & Zoning Commission, supra, 207. Although the “due process” characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings. Although the facts of the present case do not require us to explore its boundaries, this common-law right is not coextensive with constitutional due process. See, e.g., New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 152, 627 A.2d 1257 (1993); Pizzola v. Planning & Zoning Commission, supra, 207-208; Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 (1967). Therefore, to eliminate any further confusion, we will discontinue the use of the term “due process” when describing the right to fundamental fairness in administrative proceedings.

       We are somewhat puzzled by the Appellate Court’s statement that its finding of inadequate notice is not dependent on the determination that ex parte communications took place during the site inspections. Grimes v. Conservation Commission, supra, 43 Conn. App. 234-35 n.11. The court’s determination that personal notice was required appears to be based on its conclusion, unsupported by the record, that Irwin’s engineer was “heard” by the commissioners outside the plaintiffs presence. Id.
      The issues of proper notice and ex parte receipt of evidence are, in fact, distinct. While improper notice is a jurisdidional defect, rendering an administrative decision void; Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47; Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956); receipt of ex parte evidence merely shifts the burden of proof from the aggrieved party to the applicant to demonstrate that the communication was harmless. Blaker v. Planning & Zoning Commission, 212 Conn. 471, 473, 562 A.2d 1093 (1989).

       See footnote 7 of this opinion.

       We note that, even if the site inspection was a hearing, publication notice pursuant to General Statutes § 22a-42a, as opposed to the posting that occurred in the present case, would have been sufficient. There is no requirement of personal or actual notice in the act or in the Freedom of Information Act, although a party may take steps to assure that he or she receives heightened notice. See footnote 18 of this opinion.

       In fact, the act does not require the agency to hold hearings on applications in all circumstances. General Statutes § 22a-42a (c) (1) provides in relevant part: “The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses, apetition signed by at least twenty-five persons requesting a hearing is filed with the agency not later than thirty days after the submission of such application or the agency finds that a public hearing regarding such application would be in the public interest. . . .”
      The commission’s regulations require public hearings to be held “on all applications involving a significant activity.” Litchfield Conservation Commission, Inland Wetlands and Watercourses Regs., § 6.5.

       The commission’s regulations provide that the agency and any specialists hired by it “shall have the right of free access to any part of the property under consideration.” Litchfield Conservation Commission, Inland Wetlands and Watercourses Regs., § 5.3.

       The act requires that documents and maps relating to the application be made available to the public. General Statutes § 22a-42a (c) (1) (“[a]ll applications and maps and documents relating thereto shall be open for public inspection”).

       We note that although the plaintiff had no constitutional or common-law right to notice of the hearing, she could have taken steps to assure herself of actual notice. See General Statutes § l-21c (requiring notice by mail, where practicable, to persons who have filed written request to receive such notice). The plaintiff chose not to avail herself of this mechanism. She could also have attempted to intervene as a party pursuant to General Statutes § 22a-19 (a). See, e.g., Samperi v. Inland Wetlands Agency, supra, 226 Conn. 582. We note that there is no evidence in the record that the plaintiff would have been excluded from the property had she sought to attend the site inspection. In fact, General Statutes § 1-21 (a) provides in relevant part that “meetings of all public agencies . . . shall be open to the public. ...”