author: Glass, J.

text:
    Board of Education for the City of New Haven et al. v. Freedom of Information Commission et al.
    (13340)
    Shea, Callahan, Glass, Covello and Hull, Js.

      Argued May 12
    decision released July 26, 1988

      Lubbie Harper, Jr., for the appellants (plaintiffs).

      LauraS. Shactman, commission counsel, with whom was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Brian J. Casey, with whom, on the brief, was Mark R. Kravitz, for the appellees (defendant The Jackson Newspapers, Inc., et al.).
   Glass, J.

The principal issue in this case is whether a party whose request to an agency for information is denied, and the denial is not appealed to the Freedom of Information Commission (FOIC), may thereafter appeal to the FOIC from the denial of a subsequent request to the same agency for the same information.

The essential facts are undisputed and may be summarized as follows. The defendants are John O. Bailey, Richard Conrad, Adrienne Hedgspeth and the Jackson Newspapers, Inc. (collectively referred to as the Jackson Newspapers), and the FOIC. The plaintiffs are the New Haven Board of Education (board) and the New Haven Superintendent of Schools (superintendent). On July 10, 1986, the Jackson Newspapers wrote to the board requesting access to records in order to inspect or copy the 1986 performance evaluation of the superintendent. The superintendent’s office received the request on July 15, 1986. On July 29, 1986, the board informed the Jackson Newspapers that there was no written performance evaluation of the superintendent. On September 30,1986, the Jackson Newspapers made a second request to inspect or copy the 1986 performance evaluation of the superintendent. The superintendent responded to the request on October 1, 1986, by mailing a copy of the board’s July 29 letter to the Jackson Newspapers which stated that there was no written performance evaluation of the superintendent.

The Jackson Newspapers filed a complaint with the FOIC on October 30,1986. The complaint alleged that the board and the superintendent had violated the Freedom of Information Act (FOIA); General Statutes §§ 1-15, l-8a, 1-19 through l-19b, 1-21, l-21a and l-21c through l-21k; by refusing to release the performance evaluation of the superintendent. A FOIC hearing officer heard the complaint on November 24,1986. At the hearing, the board and the superintendent moved to dismiss the complaint on the ground that the Jackson Newspapers had not filed their notice of appeal within the time limit of General Statutes § l-21i (b). Specifically, they claimed that the § l-21i (b) time limit for an appeal to the FOIC, which is thirty days after a denial of a request for information, should have commenced as of July 19, 1986, when the board had failed to respond within four business days of the request, and not on October 1, 1986, the date of the denial of the Jackson Newspapers’ second request. The FOIC found that there is no provision in the FOIA which precludes the Jackson Newspapers from renewing their initial request to inspect or copy public records. Consequently, the FOIC found that the Jackson Newspapers had complied with the time requirements for an appeal pursuant to § l-21i (b) and the motion to dismiss was denied.

At the hearing, the FOIC found that on November 10,1986, the board had issued a statement concluding that the superintendent’s performance for the 1985-1986 year was excellent. Although the evaluation process was an oral one, the board’s statement indicated that the board members had used a performance evaluation form in their evaluation of the superintendent. The FOIC further found that on several occasions the board convened in executive session to discuss the performance evaluation. On the basis of the evidence presented, however, the FOIC found that it could not determine whether individual board members had used written forms during the 1986 evaluation of the superintendent. The FOIC nevertheless found that if written performance evaluation forms were used by board members, such forms were public records within the meaning of General Statutes § l-18a (d), and disclosable under General Statutes §§ 1-15 and 1-19 (a) of the General Statutes.

The FOIC also found that the board’s minutes of its November 10,1986 meeting indicated that a nonboard member recorder was present during an executive session held on that date. The FOIC stated, however, that it was unable to determine whether the recorder had any records concerning the performance evaluation of the superintendent. Nevertheless, the FOIC concluded that if the nonboard member had any performance evaluation records, such records were public records within the meaning of § l-18a (d), and disclosable under §§ 1-15 and 1-19 (a).

On the basis of its findings, the FOIC issued an order to the board directing it to provide the Jackson Newspapers with affidavits from nontestifying board members and from each nonagency member present at the November 10 executive session, stating whether he or she had any records relating to the superintendent’s evaluation. The FOIC further ordered the board to provide the Jackson Newspapers with a copy of any records disclosed by the affidavits. Included in the order were criticisms of the manner in which the board conducted its performance evaluation of the superintendent. The plaintiffs appealed the FOIC’s orders to the Superior Court. The trial court dismissed the appeal.

From the judgment rendered in the Superior Court, the plaintiffs appealed to the Appellate Court, claiming the trial court erred in: (1) refusing to reverse or modify the FOIC’s finding that the Jackson Newspapers had complied with the statutory time limits of the FOIA where the finding contradicts the plain language of the FOIA and constitutes an abuse of discretion; (2) refusing to reverse or modify the substantive findings and orders of the FOIC where those findings and orders are elearly erroneous in light of the reliable, probative and substantial evidence on the whole record; and (3) refusing to reverse or modify the denunciatory order number four of the FOIC where the order is in excess of statutory authority and is arbitrary and capricious, an abuse of discretion and in violation of the FOIA and General Statutes § 4-177. The appeal was transferred to this court pursuant to Practice Book § 4023. We find error.

I

The plaintiffs claim that an appeal to the FOIC from an agency denial of an information request must be initiated within thirty days of the notice of the denial. Consequently, they argue that the trial court erred in refusing to reverse or modify the FOIC’s finding that the Jackson Newspapers had timely filed their appeal to the FOIC.

This claim implicates General Statutes § l-21i (b), which provides in pertinent part: “Any person denied the right to inspect or copy records . . . may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial . . . .” The plaintiffs argue that the central question in this appeal is “how many times must a public entity deny a person’s request to inspect records before the statutory appeal mechanism of the FOIA is triggered.” They assert that, absent evidence presented by the requester indicating error or mistake in the initial denial, a public agency’s categorical denial of a request to inspect or copy records initiates the statutory appeal process, and that the Jackson Newspapers’ failure to observe the time limits which control the appeal process bars it from pursuing this action. We disagree.

The plaintiffs have not referred to any part of § 1-2 li (b) that expressly limits appeals to the FOIC from an agency’s denial of a party’s first request for information. Indeed, such a restriction would be inconsistent with the general policy of openness expressed in the FOIA legislation. “The Freedom of Information Act expresses a strong legislative policy in favor of the open conduct of government and free public access to government records.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980).

In support of their claim, the respondents rely on Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 505, 503 A.2d 1161 (1986), where we held that the time limitations prescribed by § l-21i (b) for the FOIC to hear and decide appeals were mandatory and not directory, and that the FOIC’s failure to hear and decide cases within those time limits invalidated any subsequent action by the FOIC. Zoning Board of Appeals, however, did not involve the question of whether a party may, in good faith, file with the same agency successive requests for identical public records and thereafter appeal to the FOIC within thirty days from the denial of a particular request.

The language of § l-21i (b) at issue here is unambiguous. In construing a statute the court is confined to the intention expressed in the words used by the legislature. Baston v. Ricci, 174 Conn. 522, 528, 391 A.2d 161 (1978). “We have consistently held that if a statute is clear and unambiguous, there is no room for construction. State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981).” Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987).

Any person denied the right to inspect or copy public records of an agency may appeal the denial to the FOIC by filing a notice of appeal “within thirty days after such denial.” General Statutes § l-21i (b). The statute does not bar successive requests, nor does it bar successive denials, nor does it require an appeal within thirty days of the denial of any particular request. We decline to engraft a judicial amendment upon the statute that would frustrate the “strong legislative policy in favor of the open conduct of government and free public access to government records.” Wilson v. Freedom of Information Commission, supra, 328. We have reviewed § 1-2 li (b), and agree with the FOIC and the trial court that there is no provision in the statute precluding a party from making successive requests to an agency for the same records, where previous requests have been denied, barring him from appealing within thirty days of any denial.

II

The plaintiffs next claim that the trial court erred in refusing to reverse or modify the substantive findings and orders of the FOIC where those findings and orders are clearly erroneous in light of the reliable, probative and substantial evidence on the whole record. See General Statutes § 4-183 (g) (5). The plaintiffs challenge finding number nineteen, in which the FOIC concluded that it could not determine whether individual members of the board had used written forms during the 1986 evaluation process, and finding number twenty-two, in which the FOIC concluded that it could not determine whether the recorder had any records concerning the performance evaluation.

“ ‘ “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. Lawrence v. Kozlowski, 171 Conn. 705, [707-708,] 372 A.2d 110 (1976) [cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]. Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency].” C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 (g). “The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of [its] discretion.” Burnham v. Administrator, 184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v. State Employees’Retirement Commission, 178 Conn. 438, 441, 423 A.2d 87 (1979); see also Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983).’ Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986).” New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988).

We adhere to our rule that because the FOIC is the factfinder in this case, we decline to appraise and weigh the evidence considered by the FOIC in reaching its determination on the challenged findings. Because of the FOIC’s finding that it was unable to determine from the record the existence of disclosable public records within the meaning of General Statutes §§ l-18a (d), 1-15 and 1-19 (a), we conclude that there is no basis for the orders that it -issued.

Plenary authority has been provided to the FOIC by the legislature to determine whether the board members and the nonboard member recorder had information or documents relevant to the FOIC’s inquiry. Under General Statutes § l-21j (d), the FOIC has authority not only to investigate and hear complaints but also to subpoena witnesses, to have their attendance and testimony compelled, and to require the production for examination of any books or papers the FOIC deems relevant in any matter under investigation. In Wilson v. Freedom of Information Commission, supra, 340, we stated that where a public agency claims that its records are exempt from disclosure under the FOIA, the FOIC “should not accept an agency’s generalized and unsupported allegations relating to documents claimed to be exempt from disclosure.” We observed that “[w]here the nature of the documents ... is in dispute it is not only within the [FOIC’s] power to examine the documents themselves, it is contemplated by the [FOIA] that the [FOIC] do so. . . . [The FOIA] anticipates that the [FOIC] will play a central role in resolving disputes administratively under the [FOIA]. To fulfill this role effectively, the [FOIC’s] determinations must be informed.” Id., 339-40.

The FOIC has full authority to determine the existence of public records and the propriety of their disclosure. In this case, the FOIC has concluded that it was unable to determine whether any public records exist. Instead of utilizing its authority under § l-21j (d), the FOIC ordered the board to provide the Jackson Newspapers with affidavits stating whether public records exist, and ^7the affidavits disclose that public records exist, to provide the Jackson Newspapers with a copy of the records. In issuing these orders the FOIC failed to determine whether the board had violated the FOIA by withholding any public records. It was essential that the FOIC find that there had been a violation before it was empowered to issue any final order.

Consistent with our analysis in Wilson v. Freedom of Information Commission, supra, regarding disputes pertaining to the nature of documents, we hold that where the existence of public records is in dispute, the FOIC’s information gathering authority must be pursued as provided in General Statutes § l-21j (d). Because of the FOIC’s indeterminate finding regarding the existence of public records and its orders, the trial court erred in dismissing the plaintiffs’ appeal. This disposition renders it unnecessary for us to consider the plaintiffs’ claim regarding the denunciatory comments made by the FOIC.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to sustain the plaintiffs’ appeal.

In this opinion the other justices concurred.

       Under General Statutes § 1-211 (a), the fact that the board failed to respond to the request of the Jackson Newspapers within four business days is deemed to be a denial of the request.
      General Statutes § l-21i (a) provides in pertinent part: “denial, of access to public records OR meetings. ... (a) Any denial of the right to inspect or copy records provided for under section 1-19 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request. Failure to comply with a request to so inspect or copy such public record within such four business day period shall be deemed to be a denial.”

       General Statutes § l-21i (b) provides in pertinent part: “Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission. Said commission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal, by confirming the action of the agency or ordering the agency to comply forthwith with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by said sections.”

       We note that July 15, 1986, the date the board received the initial request, fell on a Tuesday. Since General Statutes § 1-2 li (a) states that failure to comply with a request within four business days is deemed a denial, the board’s denial under the statute occurred on Monday, July 21, 1986.

       “[General Statutes] Sec. l-21g. executive sessions, (a) At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons’ attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.
      “(b) An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subsection (e) of section l-18a.”

       General Statutes § l-18a (d) provides: “definitions. As used in this chapter, the following words and phrases shall have the following menaings, except where such terms are used in a context which clearly indicates the contrary ....
      “(d) ‘Public records or files’ means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”
      General Statutes § 1-15 provides: “application for copies of public records. CERTIFIED copies. FEES. Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with this section and sections l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall not exceed twenty-five cents per page. If any copy provided in accordance with said sections requires a printout or transcription, or if any person applies for a printout or transcription of a public record, the fee for such printout or transcription shall not exceed the cost thereof to the public agency. A public agency may require the prepayment of any fee required or permitted under this chapter if such fee is estimated to be ten dollars or more. The sales tax provided in chapter 219 shall not be imposed upon any transaction for which a fee is required or permissible under this section or section l-21e. The public agency shall waive any fee provided for in this section when (1) the person requesting the records is an indigent individual, (2) the records located are determined by the public agency to be exempt from disclosure under subsection (b) of section 1-19, or (3) in its judgment, compliance with the applicant’s request benefits the general welfare. Except as otherwise provided by law, the fee for any person who has the custody of any public records or files for certifying any copy of such records or files, or certifying to any fact appearing therefrom, shall be for the first page of such certificate, or copy and certificate, one dollar; and for each additional page, fifty cents. For the purpose of computing such fee, such copy and certificate shall be deemed to be one continuous instrument.”
      General Statutes § 1-19 (a) provides in pertinent part: “access to public records, exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be.”

       Order number four issued by the FOIC states: “This case compels the Commission to comment on the respondents’ ill-conceived efforts to evade their responsibilities under the Freedom of Information Act and to abrogate their duties as public officials. The respondent board is a public agency accountable not to itself, but to the people of New Haven. One of its most important functions is to evaluate the superintendent of schools, the school system’s chief executive officer. By abolishing the written evaluation process, the board leaves the citizens of New Haven without a meaningful assessment of the superintendent’s performance for the 1985-86 year and conceals from public scrutiny its decision-making process. The board has acted irresponsibly by eliminating a written performance evaluation record of such a high level public official merely to avoid public oversight. In this case, the board, in effect, has left itself powerless to take any disciplinary action concerning the superintendent’s performance as provided by contract. Moreover, the Commission believes that the respondents’ fear of the public’s reaction to the evaluation process insults the intelligence of the citizens of New Haven and has no place in the representative democracy.”

         “[General Statutes] Sec. 4-183. appeal to superior court. . . .
      “(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       General Statutes § l-21j (d) provides in pertinent part: “The commission . . . shall have the power to investigate all alleged violations of said sections and may for the purpose of investigating any violtion hold a hearing, administer oaths, examine witnesses, receive oral and documentary evidence, have the power to subpoena witnesses under procedural rules adopted by the commission to compel attendance and to require the production for examination of any books and papers which the commission deems relevant in any matter under investigation or in question. In case of a refusal to comply with any such subpoena or to testify with respect to any matter upon which that person may be lawfully interrogated, the superior court for the judicial district of Hartford-New Britain, on application of the commission, may issue an order requiring such person to comply with such subpoena and to testify; failure to obey any such order of the court may be punished by the court as a contempt thereof.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Galen Plourde
    (12918)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued June 2
    decision released August 2, 1988

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Timothy Liston, assistant state’s attorney, and Jack W. Fischer, legal intern, for the appellee (state).
   Peters, C. J.

The dispositive issue in this appeal is whether the admission into evidence of the defendant’s silence following his receipt of Miranda warnings violated his right to due process of law. A jury found the defendant, Galen Plourde, guilty of murder in violation of General Statutes § 53a-54a (a). He appeals from the judgment sentencing him to forty years imprisonment. We find error and remand for a new trial.

On the morning of December 16, 1983, the body of the victim, Ada Plourde, was found in her automobile, which was parked in the parking lot of My Brother’s Place Cafe in Cromwell. The state’s theory of the case was as follows: On the evening of Thursday, December 15, the victim left her husband, the defendant, and their two young daughters at home in Berlin to attend a data processing class at Avon High School. Following her usual practice, she drove to the house of a friend, Bernice Prusacyk, in Farmington. The two of them then drove together to the class. Since the final exam was scheduled for that evening, class let out earlier than usual. After doing some Christmas shopping, Prusacyk and the victim went to Chuck’s Restaurant in Farmington for drinks and chips. The two returned to Prusacyk’s home by 11 p.m. and the victim departed. When she returned home, the victim and the defendant became involved in an argument. During an ensuing physical struggle, the defendant strangled the victim to death. The defendant placed the victim’s body and the bags containing her purchases in her car. He then removed the victim’s jewelry and tore up the shopping bags to create the appearance of a robbery. He drove the car to the parking lot of My Brother’s Place Cafe, which was located about a mile from his house. After walking home, he made several phone calls to the police reporting his wife’s absence in order to establish an alibi. To suggest a possible motive, the state presented evidence that the defendant and the victim had had marital difficulties and that the defendant had become involved with another woman.

On appeal, the defendant claims that the trial court erred in: (1) denying his motion for acquittal based on the insufficiency of the evidence; (2) admitting his post-Miranda silence on December 17 and on December 18 into evidence and instructing the jury to use that silence to infer guilt; (3) admitting his post -Miranda statements and conduct; and (4) suppressing evidence of the defendant’s willingness to take a polygraph test. We agree with the defendant that the court erred in admitting his post -Miranda silence of December 18 and accordingly remand for a new trial.

I

Because success on his insufficiency of the evidence claim would entirely shield the defendant from further criminal proceedings; State v. Pellegrino, 194 Conn. 279, 294, 480 A.2d 537 (1984); we turn to this issue first. At the close of the state’s evidence and again at the close of all the evidence, the defendant filed motions for acquittal, both of which the trial court denied. On appeal, the defendant renews his claim that there was insufficient evidence to establish his identity as the killer. In particular, he argues that the evidence failed to show that the victim returned home on the evening in question. He also assails the other evidence produced to establish his guilt. We are not persuaded that the evidence was insufficient to support his conviction.

Review of the defendant’s claim of insufficiency requires us to undertake a two part inquiry: “ ‘We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987), quoting State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985).

The state produced the following evidence to establish that the victim had returned home after leaving Prusacyk’s house: Prusacyk testified that it was the victim’s habit to go directly home after she left Prusacyk’s home on Thursday nights. On the evening in question, the two became tired and decided to go home early because they were not enjoying themselves. In addition, Heather Plourde, who at the time of her mother’s death was seven years old, testified that, subsequent to the murder, she had told the police that late that Thursday night, she had come downstairs, found her mother asleep on the couch and kissed her good-night. She added, however, that she had gotten her “days mixed up.” On cross-examination, she testified that she had arisen that night to go to the bathroom but had not gone downstairs and that her statement to the police had been mistaken. Under the circumstances, the jury could have believed that the later version of the events represented Heather Plourde’s attempt to exculpate her father. Accordingly, the jury could reasonably have credited the first version given to the police. On the basis of Prusacyk’s and Heather Plourde’s testimony the jury could reasonably have found that the victim had returned home the night of her death.

The state lent further support to its case against the defendant by its introduction of evidence of multiple cuts on his face and torso, which it claimed were a result of his physical struggle with the victim. Ronald Cornell, a Cromwell police officer, testified that during a phone conversation on December 16, the defendant had volunteered that while taking out the trash the prior evening he had received a cut on his lip from some wood protruding from a barrel. The following day, when Cornell picked up the defendant to drive him to the morgue for identification of the victim, he noticed the cut on the defendant’s lip. Charles MacIntyre, a state police detective, testified that, during the subsequent interview, he had also observed the cut on the defendant’s lip as well as scratches on the defendant’s neck. At this time, the defendant, contradicting his previous statement to Cornell, explained that the scratch on his lip had occurred on Wednesday, December 14, while he was moving around some trash barrels. During the interview, the defendant stated that he had received the scratches on his torso the same day when an aluminum ladder had fallen on him in the garage. To discredit the defendant’s explanations of the scratches, the state introduced evidence that coworkers who had been with the defendant on Thursday, December 15, had not noticed any cuts on his face and that no traces of blood had been found on the ladder. Although the defendant presented both lay and expert testimony to the contrary, the jury was free to disregard this testimony and could reasonably have found that the scratches resulted from a fight between the defendant and the victim.

The state’s proof also emphasized the defendant’s behavior and statements during the police interviews. According to MacIntyre’s testimony, at one point in their conversation, the defendant indicated that his wife had scratched him while they had been making love. When asked to display the scratch, he pulled aside his sweater and shirt and began to scratch himself until told to stop. Later during the same interview, MacIntyre informed the defendant that he believed the defendant had killed his wife. The defendant did not deny the accusation and after further discussions indicated that he wanted to speak to a lawyer. The defendant’s claim to the contrary notwithstanding, we conclude that the jury could reasonably have viewed this evidence as supporting the defendant’s guilt.

The state introduced the results of forensic tests that were consistent with the defendant’s guilt. Examination of a green fiber found on the victim’s lip revealed microscopic characteristics very similar to a doily from the top of a table in the victim’s house. Serological exams of the victim’s blood indicated that the victim had type B blood and was a secretor, meaning that B and H antigens could be detected in her body fluids. The defendant had type A blood and was a nonsecretor. Blood discovered on the defendant’s watch band contained A, B and H antigens. Blood smears found under the armrest in the victim’s car and on a sales slip found in the back seat likewise contained all three antigens. Even though other explanations of these results might have been plausible, the jury could reasonably have credited the state’s interpretation, that the smears represented a mixture of the victim’s and the defendant’s blood.

Finally, the state presented evidence to suggest a possible motive. Several witnesses testified to earlier marriage difficulties between the defendant and the victim. In addition, Regina Rentz testified that the defendant had called her several times at work the week of December 12, 1983. According to her testimony, the defendant and she began to see each other four months after the victim’s death.

From our review of this record, we conclude that, while not overwhelming, the evidence, when taken together, was sufficient to allow the jury reasonably to find the defendant guilty beyond a reasonable doubt. The jury could have believed, on the basis of the testimony of Prusacyk and Heather Plourde, that the victim returned home the night of December 14. It could also have found that the scratches on the defendant, his subsequent conduct and the results of the forensic examinations further corroborated the state’s theory. The defendant’s insufficiency claim must accordingly fail.

II

The defendant’s principal claim is that the trial court’s admission into evidence of his silence and request for a lawyer following his receipt of Miranda warnings violated his due process rights as guaranteed by the fourteenth amendment to the United States constitution. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). This claim concerns two separate conversations between the defendant and the police, one with MacIntyre at the morgue on December 17, and another the next day with David Bates, a state police detective, at the barracks in Hartford. We decline to review the admissibility of the first of these conversations, but we conclude that the second should have been suppressed.

Initially, we note that the defendant failed to raise this claim at trial either by way of objection or motion to suppress. While we do not generally entertain claims not raised below, we have recognized an exception “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Accordingly, we must consider the record to determine whether it is adequate for the purpose of our review.

The defendant’s first complaint of a Doyle violation concerns the introduction into evidence of his silence in response to police accusations on the occasion of his conversation with MacIntyre at the morgue on December 17. Cornell testified that, on the previous day, the defendant had made a statement that Cornell transcribed op sheets of paper at the top of which Miranda warnings were printed. The defendant read the statement over several times and signed the bottom of each page. MacIntyre testified that, during the interview the next day, when he accused the defendant of having killed his wife, the defendant “did not deny” it. After “further discussions,” the defendant terminated the interview by requesting to talk to a lawyer. The defendant argues on appeal that the trial court’s admission of this portion of MacIntyre’s testimony violated due process because it breached the assurance implicit in the printed Miranda warnings he had received on December 16 that his silence would not be used against him.

We deem this record insufficient to review the defendant’s claim. Our conclusion is primarily based on the absence of evidence that the defendant actually read and therefore received the Miranda warnings. The defendant urges us to infer that he read the preprinted warnings from Cornell’s testimony that the defendant had reviewed his statement several times. There is no testimony, however, to indicate that the defendant read the warnings themselves. In addition, there is no evidence that, during the interview the following day, the defendant was invoking his right to silence in response to MacIntyre’s charge. MacIntyre’s statement that the defendant “did not deny” the accusation can reasonably be interpreted to mean that the defendant did, in fact, respond, but that his response did not constitute a denial of the charge. We therefore decline to review the defendant’s claim that admission of this testimony violated due process. See State v. Leecan, 198 Conn. 517, 524, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

The defendant’s second Doyle challenge concerns the trial court’s admission of his statements and conduct during an interview with the police on December 18. According to Bates’ testimony, on that morning he went to the defendant's house in order to execute a search and seizure warrant upon his person. After explaining the purpose of the warrant, Bates informed the defendant that he was not under arrest but that he was required to comply with the execution of the warrant and that when it was completed he would be free to go. Bates read the Miranda rights to the defendant from a preprinted form and then asked the defendant to read the form aloud initialing each right to indicate his comprehension. The defendant complied with the request. Where the caption “WAIVER” appeared in the middle of the form he crossed out the word and inserted the phrase “understanding of rights.” He then placed his initials next to each sentence on the form except for the last sentence, which stated: “I am willing to answer questions and make a statement knowing that I have these rights, I do not want a lawyer. I know and understand what I am doing. I do this freely and voluntarily and no threats or promises have been made to me.” Lastly, he signed the bottom of the form.

Thereafter, Bates drove with the defendant to police barracks in Hartford for the execution of the warrant. After the search procedures had been completed, Bates informed the defendant that he was free to leave and offered him a ride home. When Bates then asked if the defendant would be willing to stay and talk with the police, the defendant responded that “he would sit and listen and [the police] could talk.” For the next twenty or so minutes, the police detailed the evidence linking the defendant to the crime. Bates testified that, as the defendant listened, he “became visibly shaken. His eyes began to redden. I could see tears welling up in his eyes and I could see him actually shaking.” Eventually, the defendant indicated that “he would give a statement, but that he wanted to call his lawyer to see if he could get the best deal.” He was then allowed to call his lawyer who arrived to pick him up an hour later.

We conclude that this record is adequate for the purposes of reviewing the defendant’s Doyle claim. Bates’ testimony that the defendant read, corrected and initialed the Waiver of Rights form demonstrates that the defendant received and understood the Miranda warnings. Notwithstanding the state’s contention to the contrary, the defendant’s statement that he would “sit and listen” and his subsequent silence during the police recitation clearly demonstrated his intent to invoke his right to remain silent. See State v. Pellegrino, supra, 290-93. His assertion of his intention to make a statement in the future, after consultation with his attorney, was a further indication of his intent during the interview to remain silent and was inextricably intertwined with it. We therefore turn to the merits.

In Doyle v. Ohio, supra, the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding in two considerations: First, it noted that silence in the wake of Miranda warnings is “insolubly ambiguous” and consequently of little probative value. Second and more important, it observed that “while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle v. Ohio, supra, 617-19. The court recently reaffirmed Doyle’s reasoning in Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct. 684, 88 L. Ed. 2d 623 (1986), in which it held that the defendant’s silence following his arrest and receipt of Miranda warnings could not be used at trial to rebut his defense of insanity. The court reasoned: “The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant’s plea of insanity.” Id., 292. Consistent with this rationale, the court has concluded that use at trial of silence prior to the receipt of Miranda warnings does not violate due process. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982) (postarrest silence); Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) (prearrest silence); see Wainwright v. Greenfield, supra, 291 n.6.

Acknowledging that, unlike the defendants in Doyle and Greenfield, he was not under arrest when he invoked his right to remain silent, the defendant nonetheless advances two theories for the extension of Doyle to the facts of this case: Initially, he contends that, even though he was not formally under arrest at the Hartford barracks, he was in police custody. Alternatively, he argues that Doyle applies whenever Miranda warnings have been given regardless of an arrest or custody. We agree with the latter argument.

The record belies the defendant’s claim that he was in custody after the search and seizure was completed. Although the defendant was in custody when Bates drove him to the Hartford barracks for execution of the warrant, Bates testified that, when the search had been completed, he had made it clear to the defendant that he was free to go. The record discloses that, after the interview at the morgue the previous day, the police had promptly driven the defendant home. The defendant therefore had no reason to doubt the sincerity of Bates’ offer of a ride from the Hartford barracks the following day.

We are nevertheless persuaded that the defendant’s invocation of the right to be silent was not admissible. “Doyle and subsequent cases have . . . made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.” Wainwright v. Greenfield, supra, 291; see Greer v. Miller, 483 U.S. 756, 763, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987). The unfairness of using a defendant’s silence following Miranda warnings is not mitigated by the absence of custody. “Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.... Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.” Wainwright v. Greenfield, supra, 291; Fletcher v. Weir, supra, 606; Anderson v. Charles, 447 U.S. 404, 407-408, 100 S. Ct. 2180, 65 L. Ed. 2d 222, reh. denied, 448 U.S. 912, 101 S. Ct. 27, 65 L. Ed. 2d 1173 (1980). Custody is therefore not a prerequisite to a Doyle violation.

In this case, the police administered Miranda warnings to the defendant prior to taking him into custody to execute the search and seizure warrant. Nothing in the words or conduct of the police after the search had been completed indicated that the assurances implicit in the Miranda warnings were no longer in force. Under the circumstances, the defendant could have invoked his right to remain silent in the reasonable belief that the state would not thereafter use that silence against him. The record does not indicate that the defendant spoke during the police recitation except to invoke his rights to remain silent and to a lawyer. Thus, this is not a case in which the defendant was selectively silent. Cf. Anderson v. Charles, supra, 408; State v. Casey, 201 Conn. 174, 185-86, 513 A.2d 1183 (1986); State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985). In this context, use of the defendant’s silence as affirmative proof at trial was “fundamentally unfair and a deprivation of due process.” Doyle v. Ohio, supra, 618.

Having concluded that admission of this portion of Bates’ testimony was error, we next consider whether such error was harmful. When an error is of constitutional dimension, the state has the burden of proving it harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24-26, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); State v. Green, 207 Conn. 1, 9, 540 A.2d 659 (1988). The state did not address this issue either in its brief or its argument to this court. From our review of the record, we conclude that the error was not harmless beyond a reasonable doubt. Since the state’s case was based exclusively on circumstantial evidence, there was a “reasonable possibility” that the improperly admitted evidence of the defendant’s silence in the face of police accusations contributed to his conviction. State v. Hoeplinger, 206 Conn. 278, 294, 537 A.2d 1010 (1988). A new trial is therefore in order.

Our conclusion that the defendant’s silence at the Hartford barracks was inadmissible under Doyle is dis-positive of the defendant’s related claim that the trial court erred in instructing the jury that it could use that silence to infer the defendant’s guilt. Further, our holding renders it unnecessary to consider the defendant’s alternate contention that admission of his statements and conduct at the barracks violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Ill

Because it is likely to arise at a new trial, we lastly address the defendant’s claim that the court erred in excluding evidence of the defendant’s willingness to take a lie detector test. We find no error in this ruling by the trial court.

The relevant testimony was the subject of a motion in limine by the state: MacIntyre testified out of the presence of the jury that, during the interview at the morgue, after he had accused the defendant of killing his wife, he had asked the defendant whether he would be willing to take a lie detector test. The defendant responded that he would do so after checking with his lawyer. In support of excluding this portion of testimony, the state argued that it had no probative value. In opposition, defense counsel argued that he intended to use the testimony to impeach MacIntyre’s earlier statement that the defendant had become uncooperative at that point in the interview at issue. Over objection by the defendant, the court ruled that the evidence was inadmissible.

On appeal, the defendant renews his argument that this evidence was admissible. Although he did not do so at trial, he now couches his claim in constitutional terms: In essence, he argues that exclusion of this testimony impaired his right of confrontation as guaranteed by the sixth amendment, as it did not permit him to impeach MacIntyre’s testimony that the defendant was disinclined to cooperate. We do not agree.

We have repeatedly observed that a “defendant’s right to cross-examination ‘is not absolute and is subject to reasonable limitation by the [trial] court.’ ” State v. Milner, 206 Conn. 512, 525, 539 A.2d 80 (1988); State v. Jones, 205 Conn. 638, 670, 534 A.2d 1199 (1987); State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983).The principal function of confrontation is “ ‘to secure for the opponent the opportunity of cross-examination.’ ” (Emphasis omitted.) Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), quoting 5 J. Wigmore, Evidence (3d Ed. 1974) § 1395, p. 150. The constitutional standard is satisfied if defense counsel, through cross-examination is “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, supra, 318; State v. Milner, supra, 525; State v. Weidenhof, 205 Conn. 262, 271, 533 A.2d 545 (1987).

In this case, we agree with the state that, because of its minimal probative value, the defendant’s willingness to take a polygraph test does not significantly implicate the reliability of MacIntyre’s testimony. Due to their questionable accuracy, the results of a polygraph examination are not admissible either as positive proof or for the purposes of impeachment. State v. Miller, 202 Conn. 463, 485-86, 522 A.2d 249 (1987). In State v. Carnegie, 158 Conn. 264, 272, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455 (1969), we held that evidence of the defendant’s willingness to take a polygraph test, which the defendant proffered to rehabilitate her credibility, was properly excluded because of the “almost complete lack of probative value [of such consent] and because of its self-serving character.” That the defendant in this case sought to use the evidence for a different purpose than the defendant in Carnegie does not significantly augment the probative value of the testimony; nor is its admissibility mandated because the defendant here clothes his argument in constitutional terms. The trial court did not restrict defense counsel’s cross-examination of MacIntyre in any other respect. We conclude that the defendant’s right of confrontation was not violated.

There is error, the judgment is set aside and the case is remanded for a new trial in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception.”

       The defendant argues in addition that the trial court erred in: (1) giving the jury an instruction on the inference to be drawn from the victim’s statement to Prusacyk that she was going home when no such statement was in evidence; (2) denying the defendant’s motion for mistrial after the jury became deadlocked; and (3) charging the jury in its supplemental instruction with regard to the intent necessary to find murder. As these remaining claims may not arise in the course of a new trial, we decline to consider them at this juncture.

       Given this testimony, the fact that Prusacyk failed to testify that the victim said she was going home is of little import. ■

       The defendant attempts to discredit Heather Plourde’s testimony on the basis of records not in evidence. Our review here is limited, however, to whether the jury’s verdict had a reasonable basis in the evidence before it. Statements that the defendant failed to introduce at trial have no bearing on our inquiry. The defendant also argues that Heather Plourde’s prior statement to the police was not admissible at trial as substantive evidence. Having failed to raise this issue below, he is precluded from raising it here.

       The defendant’s daughter Gail testified that she had seen the sticks protruding from the barrel and had told her father that they were a safety hazard. An expert witness testified that it was highly unlikely that the scratches, due to their pattern, had been produced by fingernails.

       In addition, evidence of traces of type B blood on the victim’s house key but not on the other keys attached to her keyring suggested that type B blood had rubbed off on the key and had dried before the key came in contact with the other keys.

       The autopsy revealed the presence of partially digested potato skins in the victim’s stomach, which were unaccounted for in the state’s version of the events and which, according to the defendant, proved that the victim had not returned home the evening in question. In addition, an expert comparison of soil found on the victim’s slacks and a soil sample from the victim’s yard revealed that the soil on the slacks had not come from that portion of soil in the yard. Given the other evidence, however, the jury was free not to assign particular weight to this evidence.

       The defendant alternatively invokes the second Evans exception, under which we will review newly raised claims involving “a new constitutional right not readily forseeable [that] has arisen between the time of trial and appeal.” State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Our conclusion that the record is deficient for the purposes of review under the first Evans exception, however, precludes our review under this exception as well.

       The state attempts to characterize the defendant’s decision to remain at the barracks to hear the evidence the police had against him as “a waiver” of his right to be silent. The defendant may have chosen, however, to remain at the barracks in the reasonable belief, based on the Miranda warnings he had received earlier, that he could invoke his right to be silent without incurring any penalties.

       We have previously declined to resolve the question of whether Doyle applies to the use of a defendant’s pre-arrest silence following receipt of Miranda warnings in State v. Shashaty, 205 Conn. 39, 529 A.2d 1308, cert. denied, U.S. , 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). The two other state courts that have considered this issue have arrived at opposite conclusions. In State v. Robinson, 496 A.2d 1067, 1072 (Me. 1985), the Supreme Judicial Court of Maine concluded that because the administration of Miranda warnings had been unnecessary under the circumstances, the warnings’ prophylactic function would not be served were the defendant’s silence held inadmissible at trial. In contrast, the Wisconsin Supreme Court reasoned that “[r]eceipt of the Miranda warning is the important factor in the Doyle analysis, not whether the defendant has been arrested. Therefore, the Doyle rationale protects ipost-Miranda silence whether occurring before or after arrest.” State v. Fencl, 109 Wis. 2d 224, 234, 325 N.W. 2d 703 (1982). The Seventh Circuit Court of Appeals recently affirmed the Wisconsin court’s reading of Doyle. Fencl v. Abrahamson, 841 F.2d 760, 764-65 (7th Cir. 1988).

       The unfairness of the admission of the defendant’s silence into evidence was compounded by the trial court’s instruction to the jury. See footnote 12, infra.

       The relevant portion of the court’s charge provided: “Now, also there is another area that when the Defendant was at the Medical Examiner’s Office, again it is for you to recall whether or not this, in effect, occurred. But the testimony of Trooper MacIntyre was that at some time during the stay at the Medical Examiner’s Office, he told the Defendant that he thought he killed his wife. I gather, I guess that was made later at Police Headquarters in Hartford; again, it’s for you to recall whether or not, in fact, there was any response by the Defendant. It is the state’s position that there was not. That when these officers said that to the Defendant, he did not respond in any particular way audibly by saying something in response to those statements. Now, the statement made within an accused[’s] hearing which are relevant and material to which he makes no reply may be given in evidence as indicative of conduct on his part when the circumstances show that he heard, understood, and comprehended the statement; and the facts are know[n] to him and he had an opportunity to speak and the circumstances naturally call for a reply from him.” As we declined to review the defendant’s Doyle claim regarding the interview with Maelntyre at the morgue, we do not address the propriety of this instruction to the extent that it refers to that interview.

       The defendant claims that even if exclusion of this portion of MacIntyre’s testimony did not constitute constitutional error, it was an abuse of discretion. As he advances no separate argument in support of this claim, we decline to consider it further.


author: Covello, J.

text:
    Dale Van Tienen v. The Register Publishing Company
    (13341)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued May 12
    decision released August 2, 1988

      William F. Gallagher, with whom, on the brief, was Evelyn A. Barnum, for the appellant (plaintiff).

      Ben A. Solnit, with whom was Margaret P. Mason, for the appellee (defendant).
   Covello, J.

This is an appeal from a judgment of dismissal rendered for failure to prosecute an action with reasonable diligence pursuant to Practice Book § 251. We conclude that such a judgment was not authorized under the procedural circumstances of this case. Accordingly, we remand the case to the trial court with instructions to vacate the judgment and render a judgment of nonsuit.

On March 20,1980, the plaintiff instituted this action claiming a wrongful discharge from her employment and defamation. Following a tortuous procedural history, the matter was assigned for trial on October 16, 1987. At that time, this case was the oldest matter pending in the New Haven judicial district. The plaintiff did not appear on October 16, but her former counsel did. On October 10,1985, the trial court, Fracasse, J., had disqualified plaintiff’s counsel but had granted him permission at that time to assist the plaintiff in obtaining a new attorney. The appeal from the disqualification of the plaintiffs attorney was dismissed by this court on March 24, 1987. Van Tienen v. Register Publishing Co., 202 Conn. 670, 522 A.2d 817 (1987).

On October 16, the plaintiffs former attorney represented to the court that due to a death in the plaintiffs family, she would not be able to attend that day’s proceedings. He also informed the court that the plaintiff was having continuing difficulties in obtaining a new attorney. The trial court continued the matter to October 19, 1987.

On October 19, the plaintiff again failed to appear and, when it became apparent that she was still without an attorney, the trial court ordered the defendant’s counsel to file a motion for nonsuit. The defendant’s attorney filed such a motion on October 20,1987, seeking not only a nonsuit, but also a judgment of dismissal.

The motion for nonsuit was heard on October 26, 1987. The plaintiff was physically present but unwilling to proceed to trial without an attorney. The trial court found that the plaintiff had had ample opportunity to obtain counsel. The trial court entered an order of dismissal for the plaintiff’s failure to proceed at the time of trial. The plaintiff appeals the trial court’s judgment dismissing the action.

Practice Book § 251 authorizes the court to dismiss an action “[i]f a party shall fail to prosecute an action with reasonable diligence. ... At least two weeks notice [of a proposed dismissal] shall be required except in cases appearing on an assignment list for final adjudication.” Since only seven days had elapsed since the filing of the motion for nonsuit which also claimed a dismissal, it is clear that the plaintiff did not receive the required two weeks notice. The defendant contends, however, that the matter was on an assignment list for final adjudication and, therefore, the two weeks notice was not required under § 251.

The record discloses that on May 16, 1986, some seventeen months earlier, this case appeared on the weekly printed assignment list. It contained the following notice: “As of January 1, 1986, all cases from 1982 or older on this list are ready and will not be continued. . . . Counsel must be present for the call of this list, or cases will be nonsuited, dismissed or defaulted.”

Practice Book § 270 provides in relevant part: “Each week a sufficient number of cases shall be assigned to provide business for each trial day of the following week. . . . The caseflow coordinator or clerk shall cause the list of cases for the following week to be prepared and distributed to counsel and pro se parties of record.” (Emphasis added.)

The record is silent as to the publication that notified the parties that the matter was assigned for trial on October 16. Since counsel refers us, however, to an assignment list of May 16, 1986, as the publication in which the case appeared “on an assignment list for final adjudication”; Practice Book § 251; we infer that this was the last time the case was printed on an assignment list.

Since Practice Book § 270 contemplates the weekly distribution of the list of cases assigned for trial the following week, it is unreasonable to expect that the listing of the case some seventeen months earlier would serve to obviate the two weeks notice requirement of § 251. In an environment of supposedly weekly trial lists, one cannot fairly expect to be charged with the implications of a § 251 dismissal when the operative notice occurred seventeen months earlier. We conclude, therefore, that the court erred in rendering a judgment of dismissal.

Practice Book § 351, however, states in relevant part: “If a party . . . fails without proper excuse to appear for trial, he may be nonsuited or defaulted by the court.” At the hearing on October 26, 1987, the trial court found that the plaintiff “was tardy in her efforts to obtain new counsel and . . . we’re still virtually at square one in so far as new counsel is concerned.” The trial court further found that the plaintiff had furnished no reasonable expectation that she could either obtain counsel or proceed on her own. Under these circumstances the trial court acted well within its discretion in finding that the plaintiff lacked a “proper excuse” within the meaning of § 351. Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). The trial court erred, however, in rendering a judgment of dismissal. The proper order, in this case, was one of nonsuit.

There is error in part, the judgment is vacated and the case is remanded to the trial court with direction to render a judgment of nonsuit.

In this opinion the other justices concurred.

       An examination of the file discloses that the plaintiff commenced this action on March 20, 1980. An answer and special defenses were filed on September 29, 1980. Following a reply, the matter was claimed for trial on May 21,1981. It appears that the proceedings were suspended pending the outcome of the appeal of the disqualification of the plaintiffs attorney. See footnote 2, infra.

       On March 24,1983, the defendant filed a motion for a protective order to expunge privileged material from the deposition transcript and a motion to disqualify plaintiffs counsel as a result of his coming into possession of certain privileged information. On October 25, 1985, the trial court, Fracasse, J., granted both motions. The plaintiff appealed the disqualification of her counsel to this court. See Van Tienen v. Register Publishing Co., 202 Conn. 670, 522 A.2d 817 (1987).


author: Per Curiam.

text:
    Charles Holdings, Ltd. v. Planning and Zoning Board of Appeals of the Town of Greenwich
    (13377)
    Healey, Shea, Glass, Covello and Santaniello, Js.

      Argued June 10
    decision released August 2, 1988

      Mark R. Carta, with whom, on the brief, was Douglas S. Skalka, for the appellant (plaintiff).

      John H. Reilly, assistant town attorney, for the appellee (defendant).
   Per Curiam.

This is an appeal by the plaintiff, Charles Holdings, Ltd., from a decision of the trial court dismissing its appeal from three decisions of the defendant, the planning and zoning board of appeals of Greenwich (board). Examination of the record discloses that on December 30,1985, the board rendered three decisions concerning the plaintiffs proposal to erect a chapel/mausoleum on land located within an RA-2 residential zone. The board denied: (1) the plaintiffs appeal from a decision of the building inspector who had refused to issue a building permit for the proposed structure; (2) a proposed variance of the use requirements in an RA-2 zone to permit the proposed structure; and (3) a special exception request to permit a cemetery on the plaintiffs premises.

On January 10,1986, the plaintiff appealed all three decisions to the Superior Court pursuant to General Statutes § 8-8. The trial court upheld the board’s decision in each instance and on October 7,1987, rendered judgment dismissing the appeal. The Appellate Court thereafter granted a petition for certification and the plaintiff appealed. This court then transferred the matter to itself pursuant to Practice Book § 4023.

“The threshold question that must be determined is whether this court has jurisdiction over the appeal. Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975); Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 574, 87 A.2d 137 (1952); In re Application of Smith, 133 Conn. 6, 8, 47 A.2d 521 (1946).” Sasso v. Aleshin, 197 Conn. 87, 89-90, 495 A.2d 1066 (1985).

In initiating its appeal to the Superior Court, the plaintiffs citation to the serving authority commanded him “to summon the Planning and Zoning Board of Appeals of the Town of Greenwich.” Examination of the sheriffs return discloses that he made service “by leaving a true and attested copy of the original Writ, Summons and Complaint with my doings thereon endorsed, with and in the hands of Mr. Harris, Town Clerk. ” (Emphasis added.) Neither the chairman nor the clerk of the board was served.

General Statutes § 8-8 provides, in addition to requiring service upon the town clerk, that “[njotice of such appeal shall be given by leaving a true and attested copy thereof with . . . the chairman or clerk of said board . . . . ” It is clear that, in this respect, the plaintiff has not complied with § 8-8 (b).

“Appeals to the courts from . . . boards exist only under statutory authority . . . .” Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 (1971). “ ‘ “Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory . . . provisions in which it has its source.” 4 Am. Jur. 2d 535, Appeal and Error, § 4.’ LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 [1969].” (Emphasis added.) In re Nunez, 165 Conn. 435, 441, 334 A.2d 898 (1973).

Since the issuing officer did not serve the chairman or clerk of the board as required by § 8-8 (b), the predicate for appellate jurisdiction does not exist and therefore we lack the authority to take up this appeal. Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 70, 540 A.2d 59 (1988).

The appeal is dismissed.

       General Statutes (Rev. to 1985) § 8-8, as amended by Public Acts 1985, No. 85-284, provides in relevant part: “(a) Any person or persons severally or jointly aggrieved by any decision of said board . . . [may] take an appeal to the superior court ....
      “(b) Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said board, and by serving a true and attested copy upon the clerk of the municipality.”

       The citation read in relevant part: “by authority of the state of Connecticut, you are hereby commanded to summon the Planning and Zoning Board of Appeals of the town of Greenwich to appear before the Superior Court . . . said appearance to be made . . . by filing a written statement of appearance with the Clerk of said Court on or before the second day following said return date, then and there to answer . . . by leaving with or at the usual place of abode of the Chairman or Clerk of that board, a true and attested copy of the Complaint and of this Citation, or by serving a true and attested copy of same upon the clerk of the municipality.”


text:
    Frank M. Capalbo et al. v. Planning and Zoning Board of Appeals of the Town of Greenwich Frank M. Capalbo et al. v. Jerry Landsfeld
    (13353)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued June 3
    decision released August 2, 1988

      JohnH. Reilly, assistant town attorney, for the appellants (defendant in each case).

      Stewart I. Edelstein, with whom, on the brief, was Jeremiah R. Dineen, for the appellees (plaintiffs).
   Peters, C. J.

The principal issue in this case is whether General Statutes § 8-2 authorizes a municipality to enact a zoning regulation limiting the number of colors that may be contained in an outdoor advertising sign. The plaintiffs, Frank M. and Caroline Capalbo, appealed to the Superior Court from a decision of the named defendant, the planning and zoning board of appeals of the town of Greenwich (board), denying the plaintiffs a permit to erect their sign. The trial court consolidated this administrative appeal with the plaintiffs’ separate action against the defendant Jerry Landsfeld, the Greenwich zoning enforcement officer, for a temporary order of mandamus compelling issuance of the sign permit. After a hearing, the trial court ruled in the plaintiffs’ favor. The Appellate Court granted the defendants’ petition for certification and, thereafter, this court transferred the appeal to itself pursuant to Practice Book § 4023. We find no error.

The relevant facts are undisputed. On March 20, 1986, the plaintiffs applied to the Greenwich zoning enforcement officer, the defendant Landsfeld, for a permit to erect a freestanding sign on their premises. The proposed sign consisted of a white background with three bands of different colors (red, orange and purpie) surrounding a center portion containing black lines representing latitude and longitude. Below, in black, capital, roman letters, were the words “Realty World.” By letter dated the same day, the zoning enforcement officer denied the application, stating as the sole reason that the sign contained more than three colors, in violation of § 6-169 of the building zone regulations of the town of Greenwich.

The plaintiffs appealed the decision of the zoning enforcement officer to the defendant board. The sole issue they raised before the board was whether § 6-169 of the building zone regulations, limiting the number of colors contained on a sign to three, including black and white, restricted the plaintiffs’ use of their federally registered service mark in violation of the Lanham Act, 15 U.S.C. § 1121a. The board denied the appeal, ruling that § 6-169 did not conflict with the Lanham Act.

The plaintiffs then appealed to the Superior Court, claiming that § 6-169 impermissibly restricted the use of their federally registered service mark, violated various state and federal constitutional provisions and fell outside the scope of General Statutes § 8-2, which delegates specific zoning powers to municipalities. The trial court, ruling in the plaintiffs’ favor, held that although § 6-169 did not conflict with the Lanham Act, it exceeded the power delegated to the municipality by General Statutes § 8-2, which empowers municipalities to regulate only the “height, size and location” of signs, but does not mention colors. The defendants’ appeals contest the validity of this ruling.

I

Initially, we must decide if these appeals are properly before us. The appeal of the trial court’s reversal of the board’s decision is our first opportunity to consider the effect of the legislature’s validating statute, Public Acts 1988, No. 88-79, enacted in response to our recent decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II).

In Simko I and Simko II, this court held that the chairman or clerk of the zoning board or commission, and the clerk of the municipality are necessary parties to the initiation of a zoning appeal to the Superior Court and that General Statutes § 8-8 (b), as amended by Public Acts 1985, No. 85-284, requires the appellant to cite and serve both. Simko I, supra, 418-19; Simko II, supra, 377, 382; see also Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 69-70, 540 A.2d 59 (1988). Failure to comply strictly with the provisions of § 8-8 (b) renders the appeal subject to dismissal. Simko I, supra, 421; Simko II, supra, 383.

In this case the plaintiffs served the Greenwich town clerk with a copy of their appeal to the Superior Court, but did not cite the clerk as a party to the appeal. Thus, the Simko decisions would appear to subject their appeal to dismissal.

The legislature’s recent supplement to § 8-8, however, seeks to save the many appeals invalidated by Simko I and Simko II. Public Acts 1988, No. 88-79. Pursuant to (3) (a) of the validating act, four conditions must exist for a zoning appeal to be validated: (1) it must have been taken on or after October 1,1985; (2) it must have been taken prior to December 1,1987; (3) a “final judgment” must not have been rendered prior to the effective date of the act (April 20, 1988); and (4) the appeal must be otherwise valid except that the appellant failed to name the clerk of the municipality as a party to the appeal. Although the plaintiffs’ appeal to the Superior Court on June 9, 1986, readily meets the first and second conditions, it raises questions with regard to the third and fourth conditions.

The question concerning the third condition is whether the plaintiffs’ appeal can meet its requirement that a “final judgment” must not have been rendered prior to the effective date of the act (April 20, 1988). Before that date, the trial court had rendered its judgment, certification of the defendants’ appeal had been granted, and the case had been transferred to this court for final disposition. The defendants contend that the trial court’s decision was a “final judgment” and that the act therefore does not validate this appeal. The plaintiffs, on the other hand, argue that a judgment appealed to this court is not “final” until this court rules on it.

“In our construction of the applicable statutory language, our goal is to ‘ascertain and give effect to the apparent intent of the legislature.’ State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). In reaching this goal, we consider first whether the language of the statute yields a plain and unambiguous resolution. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Any latent ambiguity in the statutory language itself is normally resolved by turning for guidance to the legislative history and the purpose the statute is to serve. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986).” State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988).

The term “final judgment” is not “plain and unambiguous.” Indeed, as we have noted in the past, the effect of a pending appeal upon an otherwise final judgment is “ ‘[o]ne of the most troublesome problems in applying the rule of finality . . .’because in this area . . . ‘[tjhere are no technically precise and universally recognized rules . . . . ’ ” Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 413-14, 525 A.2d 83 (1987) , quoting F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.4, p. 592; see also Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 573, 440 A.2d 220 (1981). We therefore turn to the act’s legislative history to discern the intended meaning of “final judgment.”

The legislative history of the validating act reflects its overarching purpose of ensuring a hearing and decision on the merits for zoning appeals otherwise subject to dismissal on Simko grounds. The principal proponents of the act, in both houses of the General Assembly, clearly articulated this purpose. In the House of Representatives, Representative Richard D. Tulisano explained that “the bill would have the effect of allowing them [the appellants] to have their cases tried on the merits or heard on the merits.” 31 H. R. Proc., Pt. 4,1988 Sess., p. 1357. In the Senate, Senator Anthony V. Avallone stated: “I believe it is . . . appropriate in our system of jurisprudence for the parties to have, wherever appropriate, a hearing on the merits and to have their decisions or their rights effected by a hearing only after it has been heard on the merits, and this bill would effectively do that.” 31 S. Proc., Pt. 4,1988 Sess., p. 1120. Consistently, Senator Avallone noted that the act would not permit the reopening of cases where there had been a final hearing and judgment on the merits. Id., 1132-33.

In light of this legislative history, and the legislature’s undoubted intent to validate zoning appeals that had run into Simko difficulties, we reject the defendants’ argument that the legislature meant to exclude cases on timely appeal from the ambit of Public Acts 1988, No. 88-79. A functional construction of the term “final judgment” is consistent with usage that we have found appropriate in other cases. “In the absence of universally applicable rules, we have recognized that the relationship between a pending appeal and a judgment depends upon the nature of the issue that is to be addressed. Accordingly, a trial court judgment has been held to be final, despite a pending appeal, insofar as the issue was the triggering of the statute of limitations; Varley v. Varley, 181 Conn. 58, 60-61, 434 A.2d 312 (1980); the continuing validity of interlocutory alimony orders; Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953); or the applicability of the rules of res judicata. Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961). In [Enfield Federal Savings & Loan Assn. v. Bissell, supra, 573-74], we held that such a judgment was not final for the purpose of determining the law governing mortgage foreclosures when that law was amended during the pendency of an appeal.” Preisner v. Aetna Casualty & Surety Co., supra, 414. The teaching of these cases is that, in the present circumstances, as in those illustrated by Enfield Federal Savings & Loan Assn. v. Bissell, supra, there is no “final judgment” within the meaning of the validating act until the final resolution of a case on timely appeal to an appellate court.

The plaintiffs’ appeal also raises a question about its compliance with the fourth condition stipulated by the saving act, Public Acts 1988, No. 88-79, § 3: was the plaintiffs’ appeal “otherwise valid” except for failing to name the town clerk, when the town clerk was neither named nor served? The appeal citation in this case failed to name the town clerk on its face. Even as amended by Public Acts 1988, No. 88-79, § 1, General Statutes § 8-8 (b) still requires the clerk of a municipality to be served with true and attested copies of the appeal. Actual delivery of a copy of the appeal by the sheriff to the town clerk, as occurred in this case, is of no legal effect if there is no direction in the citation to serve the clerk. Simko I, supra; Village Creek Homeowners Assn. v. Public Utilities Commission, 148 conn. 336, 339, 170 A.2d 732 (1961). Because the question is jurisdictional, we must resolve the validity of this citation under the saving act, even though the parties have not addressed it.

In our view, the same legislative history that persuades us to adopt a functional approach to the final judgment question also illuminates the proper construction of what constitutes an appeal that is “otherwise valid except that the appellant failed to name the clerk of the municipality as a party to the appeal.” The legislature clearly articulated its intent, for a stipulated grace period, to validate pending zoning appeals that were discovered to have violated § 8-8 (b) after our decisions in Simko I, supra, and Simko II, supra. For the purpose of giving effect to this obvious legislative intent, we therefore construe § 3 (a) of Public Acts 1988, No. 88-79, to encompass not only the failure to name the town clerk as a party in the initial portion of the citation, but also the failure to name him or her for the purpose of directing proper service by the sheriff. So construed, the saving statute allows us to proceed to consider the merits of the present appeal.

II

We turn now to the question of whether Greenwich’s enactment of § 6-169 of the building zone regulations exceeds the authority delegated to the town by Connecticut’s zoning enabling act, General Statutes § 8-2, as amended. Under our law, a municipality, as a creation of the state, has no inherent powers of its own. Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987); Simons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985); Buonocore v. Branford, 192 Conn. 399, 401, 471 A.2d 961 (1984); New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981); City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976). Thus, while the state may have inherent power to regulate in the interest of public health, safety, morality and welfare; State v. Darden, 171 Conn. 677, 680, 372 A.2d 99 (1976); “[i]n connection with [municipal] zoning ordinances, it is a cardinal principle of construction that provisions and amendments must be enacted pursuant to the zoning enabling statute.” Langer v. Planning & Zoning Commission, 163 Conn. 453, 457, 313 A.2d 44 (1972); see also Eden v. Town Planning & Zoning Commission, 139 Conn. 59, 63, 89 A.2d 746 (1952), quoting W. Maltbie, “The Legal Background of Zoning,” 22 Conn. B.J. 2 (1948) (“zoning authorities can only exercise such power as has been validly conferred upon them by the General Assembly”); T. Tondro, Connecticut Land Use Regulation (1979) pp. 14-15.

One of the powers expressly conferred by § 8-2 on local zoning commissions is the authority to regulate “ ‘the height, size and location of advertising signs and billboards.’ ” That authority makes no mention whatsoever of colors. In determining whether Greenwich had the authority to adopt § 6-169, “we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.” Buonocore v. Branford, supra, 402. Finding none, and paying heed to the maxim that “[z]oning regulations, being in derogation of common-law property rights, should not be extended by construction beyond the fair import of their language and cannot be construed to include by implication that which is not clearly within their express terms”; J & M Realty Co. v. Board of Zoning Appeals, 161 Conn. 229, 233, 286 A.2d 317 (1971); we conclude that the town had no authority to regulate the colors in a sign.

Despite the absence of any specific authority for its regulation, the defendants argue that such authority may be derived from the broad police powers that § 8-2 confers upon municipalities. The defendants rely on a municipality’s authority “to promote health and general welfare” described earlier in § 8-2. This argument is unpersuasive for two reasons. First, it ignores the principle of statutory construction that “ ‘[a]n enumeration of powers in a statute is uniformly held to forbid the things not enumerated.’ ” Simons v. Canty, supra, 530, quoting State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957). By expressly mentioning what municipalities can regulate with regard to signs, § 8-2 also implicitly states that municipalities cannot regulate signs in any other way. Second, the argument overlooks the drafting history of § 8-2. The legislature amended the zoning enabling statute in 1931, six years after its initial passage, adding the power to regulate the “height, size and location of advertising signs and bill boards” to the list of delegated powers. See General Statutes (1930 Rev.) c. 29, § 423, as amended by Public Acts 1931, c. 192, § 42a. Assuming, as we must, “that the legislature did not intend to enact superfluous legislation”; State v. Ellis, 197 Conn. 436, 472-73, 497 A.2d 974 (1985); we must conclude that the legislature believed that the general police power provisions contained in the statute before its amendment did not confer upon municipalities the power to regulate signs and billboards in any way.

To supplement its statutory argument, the defendants remind us that the United States Supreme Court has repeatedly held that states and municipalities may lawfully regulate sign colors in the interest of aesthetics. Metromedia, Inc. v. San Diego, 453 U.S. 490, 497-98, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 129, 98 S. Ct. 2646, 57 L. Ed. 2d 631, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978); Berman v. Parker, 348 U.S. 26, 33, 75 S. Ct. 98, 99 L. Ed. 27 (1954). In none of these cases, however, was any question raised about a municipality’s power to regulate signs absent an appropriate enabling statute. The issue before us is not the accommodation of aesthetic concerns within state and local police power but rather the division of regulatory authority under home rule as codified in General Statutes § 8-2. We conclude that this statute has not delegated to municipalitites the power to regulate colors in a sign.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 8-2. regulations. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, 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; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies. On and after July 1, 1985, the regulations shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. Such regulations may also encourage energy efficient-patterns of development, the use of solar and other renewable forms of energy, and energy conservation. The regulations may also provide for incentives for developers who use passive solar energy techniques, as defined in subsection (b) of section 8-25, in planning a residential subdivision development. The incentives may include, but not be limited to, cluster development, higher density development and performance standards for roads, sidewalks and underground facilities in the subdivision. Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations.”

       Section 6-169 of the Greenwich building zone regulations provides: “Sec. 6-169. DESIGN AND LETTERING.
      “Signs shall be designed in harmony with the building and established development, in accordance with recommendations of the Architectural Review Committee. Three dimensional signs shall not exceed three (3) feet in any dimension. All store units in the same building or in separate buildings in an integrated shopping center shall have a uniform design and placement of signs. No more than three (3) different colors, including black and white shall be used in a sign and no more than two (2) different colors shall be used in any lettering. Lettering shall be no larger than eighteen (18) inches in height. Lettering of permanent window and door signs shall be no larger than nine (9) inches in height except as allowed pursuant to Sec. 6-164 (a) (1) (c). (1/1/87) (Bldg. Zone Regs., § 21.2C (5).)”

       Public Acts 1988, No. 88-79, enacted April 20,1988, supplemented General Statutes § 8-8 by adding, inter alia: “Sec. 3. (a) Any appeal of a decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals taken on or after October 1, 1985 and prior to December 1, 1987 in which a final judgment has not been entered prior to the effective date of this act, otherwise valid except that the party taking such appeal failed to name the clerk of the municipality as a party to the appeal in the appeal citation, is validated.”

       There is no doubt that the mandamus action against defendant Landsfeld, now on appeal, is properly before us. First, the mandamus action was not an appeal to the Superior Court, but a direct action, and therefore poses no problem with regard to General Statutes § 8-8 or our recent decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988). Second, we have in the past “held that the pendency of a zoning appeal . . . [does] not preclude resort to the more expeditious and effective remedy of mandamus in order to ‘vindicate the plaintiffs’ right to the immediate issuance of a . . . permit.’ ” Merlo v. Planning & Zoning Commission, 196 Conn. 676, 681, 495 A.2d 268 (1985), quoting Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984).

       The legislative history also indicates that the legislature did not intend to reopen the Simko case itself. As Representative Richard D. Tulisano indicated “this amendment is in addition to the file copy dealing with the Simko decision, which makes it clear that our validating of the pending appeals would not apply to any case in which a substantial infringement of property rights may be affected or a final judgment has been rendered such as Simko itself” 31 H.R. Proc., Pt. 4, 1988 Sess., p. 1346.

       The defendants’ claim at oral argument to the contrary, we have regularly recognized the right of “ ‘the legislature retroactively to make legal and regular that which was previously illegal and irregular, provided that vested rights are not unjustly abrogated.’ ” State v. Blasko, 202 Conn. 541, 554, 522 A.2d 753 (1987); Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 572, 440 A.2d 220 (1981); see also Hartford v. Freedom of Information Commission, 201 Conn. 421, 426, 518 A.2d 49 (1986); Andrulat v. Brook Hollow Associates, 176 Conn. 409, 413, 407 A.2d 1017 (1979). Although there is a “general presumption that legislation is intended to operate prospectively”; Harlow v. Planning & Zoning Commission, 194 Conn. 187, 194, 479 A.2d 808 (1984); General Statutes § 55-3; “[t]he legislature clearly and unequivocally expressed its intent that [the act] be applied retroactively to appeals then pending. The object that the legislature intended to accomplish was to cure a procedural flaw in the statute . . . .” Enfield Federal Savings & Loan Assn. v. Bissell, supra.

       The defendants suggest, in their brief, that because “Connecticut courts have long recognized that the power to regulate signs encompasses the power to prohibit them entirely,” the town’s regulation of colors is a “prohibition” within its zoning power. For this proposition the defendants cite Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971), which states: “A zoning ordinance may reasonably regulate or prohibit the use of advertising signs as an exercise of the police power . . . .” We disagree. Even if the town did have the power to prohibit signs, it did not do so here. Instead it sought to regulate the colors that a sign may contain.