author: Arthur H. Healey, J.

text:
    Marie D. Castro et al. v. Joaquim Viera et al.
    (13231)
    Healey, Shea, Callahan, Glass and Covello, Js.

      Argued January 14
    decision released May 10, 1988

      Joseph F. Shelley, Jr., with whom were Bernard Poliner and, on the brief, Elizabeth M. Christofaro, for the appellants (named defendant et al.).

      Henry B. Hurvitz, for the appellees (plaintiffs).
   Arthur H. Healey, J.

This appeal concerns the Connecticut Workers’ Compensation Act. General Statutes § 31-275 et seq. The plaintiffs are Marie Castro and her minor children. The defendants are Joaquim and Mary Viera. The workers’ compensation commissioner (commissioner) for the first district dismissed the plaintiffs’ claim for benefits after he denied the plaintiffs’ motion to preclude the defendants from “contesting liability” because the defendants failed to file a “Notice of Intent to Contest Liability” pursuant to General Statutes § 31-297 (b) within twenty days after receiving notice of their claim for benefits. The claim arose out of the death on September 30, 1983, of Rogerio Castro, the husband of the named plaintiff and father of the plaintiff children, while he had been working on premises owned by the defendants.

After an evidentiary hearing, the commissioner specifically found, inter alia, that prior to September 30, 1983, the decedent had worked for the defendants as an independent contractor and did not have an employer-employee relationship with them. The commissioner also found that, on September 30,1983, when the decedent had fallen to his death from a ladder at the defendants’ building, “[he] was not working as an employee of the [defendants].” The commissioner, after denying the motion to preclude, dismissed the claim for benefits, essentially concluding that the defendants were not precluded under the statute from raising the jurisdictional defense of the lack of the requisite employer-employee relationship between the decedent and the defendants necessary to the application of the act. In doing so, the commissioner determined that, although the defendants had not “contested liability on or before the twentieth day after receiving the [plaintiffs’] written notice of claim,” the commissioner did receive, on January 5,1984, a form 43-67, Notice to Contest Liability to Pay Compensation (form 43). The reasons, set out on this form 43, for contesting liability by the defendants were as follows: “ ‘No jurisdiction under Conn. Workers’ Compensation Act as there is no Employer-Employee relationship.’ ‘Injury and death not work related.’ ” The commissioner rejected the plaintiffs’ argument that the failure of the defendants to file a timely notice precluded them from contesting their right to receive benefits on any grounds, including jurisdictional grounds. The plaintiffs cited Bush v. Quality Bakers of America, 2 Conn. App. 363, 373, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984), in support of this position and cited the following language from Bush: “By not contesting compensability, Quality [the employer] waived any jurisdiction claim.” Pointing out that the lack of an employer-employee relationship was not at issue in Bush, the commissioner opined that the reference of the Appellate Court to the waiver of any jurisdictional claim therefore had no applicability to the lack of an employer-employee relationship.

Following the dismissal of their claim for benefits by the commissioner, the plaintiffs appealed the decision of the commissioner to the compensation review division. General Statutes § 31-301. The compensation review division decided that the commissioner had erred in denying the plaintiffs’ motion to preclude under § 32-297 (b). The compensation review division panel specifically based its finding of error on LaVogue v. Cincinnati, Inc., 9 Conn. App. 91, 516 A.2d 151, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986). In doing so, that panel said: “LaVogue held, ‘If an employer fails to file a notice contesting liability, the employer shall be conclusively presumed to have accepted the compensability of the employee’s injury. . . .’ Id. at 93. LaVogue holds that where a conclusive presumption of liability arises, liability cannot be attacked on any grounds, including jurisdiction.” It remanded the matter to the commissioner for further proceedings.

Thereafter, the defendants appealed the review division’s reversal of the commissioner’s denial of the plaintiffs’ motion to preclude under § 31-297 (b) to the Appellate Court. The appeal was then transferred to this court pursuant to Practice Book § 4023. We find error.

On appeal, the defendants maintain that the review division erred in reversing the commissioner’s conclusion that they did not “waive” subject matter jurisdiction by failing to file a timely written notice of their intention to contest their liability to pay compensation to the plaintiffs under § 31-297 (b). They contend that the conclusive presumption of the act embodied in § 31-297 (b) applies only to contestability as it relates to liability and not to the basic question of whether the act applies to the matter. Subject matter jurisdiction over this matter, they argue, is not present and it cannot be conferred by waiver, consent, silence or agreement of the parties. Disputing the relevancy of the legislative history referred to by the plaintiffs as well as the case law cited by the compensation review division and the plaintiffs, they contend that the act itself, phrased in terms of “employer” and “employee” status, speaks to the legislative intent as to the relationship that must exist to trigger potential coverage under the act. Claiming that the case law relied upon by the plaintiffs and the review division is readily distinguishable, they assert that the commissioner, confronted with the claim of lack of subject matter jurisdiction, had the obligation to decide that question before proceeding at all.

On the other hand, the plaintiffs claim that, because of the language of § 31-297 (b), legislative history and the case law, the failure of one who receives a notice of claim for workers’ compensation benefits to file a notice contesting that claim within the twenty day period “means that liability for the claim is accepted and there is no right thereafter to contest the claim for any reason whatsoever.” Included in the plaintiffs’ position is their argument that the defendants’ contention that the lack of an employer-employee relationship deprives the workers’ compensation commission of jurisdiction does not apply when reviewing the applicability of § 31-297 (b) in relation to “the complete jurisdictional scheme of the entire Workers’ Compensation Act.”

Although we said in Perille v. Raybestos-ManhattanEurope, Inc., 196 Conn. 529, 541, 494 A.2d 555 (1985), that the Workers’ Compensation Act was of “ ‘broad humanitarian scope’ . . . and is ‘remedial’ and ‘should be broadly construed . . .’” we then went on specifically to say: “It is thus fair to proceed on the premise that the act was intended to be and is the exclusive remedy available where it appears that the necessary employer-employee relationship exists and the injury-producing transaction arises out of and in the course of that employment unless it is demonstrated otherwise.” (Emphasis added.) Id., 541-42. The burden in a workers’ compensation claim rests upon the claimant to prove that he is an “employee” under the act and thus is entitled to invoke the act. Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951); Morganelli v. Derby, 105 Conn. 545, 551, 135 A. 911 (1927). This relationship is threshold because it is settled law that the “commissioner’s jurisdiction is ‘confined by the Act and limited by its provisions.’ ” Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970). Long ago, we said that the jurisdiction of the commissioners “is confined by the Act and limited by its provisions. Unless the Act gives the Commissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the commissioner] by the parties either by agreement, waiver or conduct.” Jester v. Thompson, 99 Conn. 236, 238, 121 A. 470 (1923). Because the act is a legislative enactment, “[t]he legislative will as expressed in the [Workers’] Compensation Act, is conclusive upon [a] court and gives us no alternative but to hold that the commissioner was without jurisdiction in the premises.” Walsh v. A. Waldron & Sons, 112 Conn. 579, 586, 153 A. 298 (1931); Vegliante v. New Haven Clock Co., 143 Conn. 571, 581, 124 A.2d 526 (1956). While it is correct that the act provides for proceedings that “were designed to facilitate a speedy, efficient and inexpensive disposition” of matters covered by the act; Menzies v. Fisher, 165 Conn. 338, 346, 334 A.2d 452 (1973); Gagnon v. United Aircraft Corporation, supra, 306; the charter for doing so is the act itself. The authority given by the legislature is carefully circumscribed and jurisdiction under the act is clearly defined and limited to what are clearly the legislative concerns in this remedial statute.

With this background, we take up the issue of whether the conclusive presumption in § 31-297 (b) precluded the commissioner from deciding, as he did, that there was no subject matter jurisdiction of the proferred claim under the act and that, therefore, the matter was properly dismissed for that reason. We agree with the commissioner.

In speaking of a court in general, we have said: “ ‘ “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.” ’ ” Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 143 Conn. 108, 111-12, 438 A.2d 834 (1981). “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court’s competency to exercise power, and not to the regularity of the court’s exercise of that power. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979) . . . .” State v. Malkowski, 189 Conn. 101, 105-106, 454 A.2d 275 (1983). In speaking of courts of lesser jurisdiction, we have said: “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963). For example, “[o]ur courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute. . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power. Killen v. Klebanoff, 140 Conn. 111, 115, 98 A.2d 520 [1953]; Palmer v. Reeves, 120 Conn. 405, 408, 182 A. 138 [1935].” Heiser v. Morgan Guaranty Trust Co., supra; see In re Juvenile Appeal (85-BC), 195 Conn. 344, 366 n.18, 488 A.2d 790 (1985).

This concept, however, is not limited to courts. Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. Regents of University System of Georgia v. Carroll, 338 U.S. 586, 597-98, 70 S. Ct. 370, 94 L. Ed. 363 (1950); Gerson v. Industrial Accident Commission, 188 Cal. App. 2d 735, 738-39, 11 Cal. Rptr. 1 (1961); Bair v. Blue Ribbon, Inc., 256 Iowa 660, 663, 129 N.W.2d 85 (1964) ; Soars v. Soars-Lovelace, Inc., 142 S.W.2d 866, 871 (Mo. 1940) (workers’ compensation commission); Fink v. Cole, 1 N.Y.2d 48, 52, 133 N.E.2d 691 (1956); 2 Am. Jur. 2d, Administrative Law § 328. We have recognized that “[i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971); see Millard v. Connecticut Personnel Appeal Board, 170 Conn. 541, 545, 368 A.2d 121 (1976) (personnel board properly held it had no jurisdiction under statute to review plaintiff’s dismissal). Where enabling legislation has created and authorized workers’ compensation commissions or industrial accident commissions, the doctrine of subject matter jurisdiction has figured in the disposition of matters before such groups. See, e.g., Clark v. Industrial Commission, 54 Ill. 2d 311, 318, 297 N.E.2d 154 (1973); Bair v. Blue Ribbon, Inc., supra; Letterlough v. Alkins, 258 N.C. 166, 169, 128 S.E.2d 215 (1962); State Accident Ins. Fund Corporation v. Broadway Cab Co., 52 Or. App. 689, 692-93, 629 P.2d 829 (1981); Reynolds v. Reihart, 47 Pa. Commw. 602, 606, 408 A.2d 897 (1979), appeal dismissed, 498 Pa. 135, 445 A.2d 103 (1982); James v. Arlington Board of Supervisors, 226 Va. 284, 286, 307 S.E.2d 900 (1983).

We believe that the commissioner properly denied the plaintiffs’ motion to preclude the defendants from contesting their alleged status as an employer despite the defendants’ failure to file their notice of intent to contest liability within the twenty day period set out in § 31-297 (b). Moreover, we also believe that the conclusive presumption in § 31-297 (b) cannot, in this case, be construed to have prevented the commissioner’s inquiry as to whether there was subject matter jurisdiction under the act. These determinations, we submit, for the reasons set out below, work no violence to the letter or spirit of the act.

We begin our analysis by noting that once the question of lack of jurisdiction of a court is raised, “[it] must be disposed of no matter in what form it is presented”; Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966); Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819 (1979); Browning v. Steers, 162 Conn. 623, 625, 295 A.2d 544 (1972); and the court must “fully resolve it before proceeding further with the case.” Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 32, 392 A.2d 485 (1978); Gimbel v. Gimbel, 147 Conn. 561, 566, 163 A.2d 451 (1960). Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver. United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985); Hayes v. Beresford, 184 Conn. 558, 562, 440 A.2d 224 (1981); State v. Jones, 166 Conn. 620, 627, 353 A.2d 764 (1974); Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). Moreover, a court must have jurisdiction to determine its own jurisdiction once that has been put in issue. Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980); Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976). It should be no different concerning the matter of the jurisdiction under the Workers’ Compensation Act, where the commissioner’s jurisdiction is “ ‘confined by the Act and limited by its provisions.’ ” Gagnon v. United Aircraft Corporation, supra, 305; Jester v. Thompson, supra; see Letterlough v. Alkins, supra, 168 (stating that “[i]n every proceeding before the [North Carolina Industrial] Commission determination of jurisdiction is the first order of business”); James v. Arlington County Board of Supervisors, supra, 289 (holding that the Virginia Industrial Commission was correct “in its approach” in a claim for workmen’s compensation benefits that “made ‘first things first’ and ruled on its jurisdiction as a threshold matter”); 100 C.J.S., Workmen’s Compensation § 425 (d), p. 272.

Nor can the conclusive presumption of § 31-297 (b) operate to work a statutory bar to the opportunity of the alleged employer to contest liability where, as here, the question of the lack of subject matter jurisdiction has been squarely presented to the commissioner. Drawing upon the legislative history recorded when the legislature amended § 31-297 (b) in 1967, we recognized in Menzies v. Fisher, supra, 343, that “[t]he object which the legislature sought to accomplish [was] plain. . . . [It] was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claims. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.” Later, in Adzima v. UAC/Norden Division, 177 Conn. 107, 113, 411 A.2d 924 (1979), we again addressed the legislative history of § 31-297 (b) “to determine whether it [was] necessary or appropriate to extend the ‘conclusive preclusion of defense’ provision of [§ 31-297 (b)] beyond situations where an employer contests its initial liability to pay compensation, to a situation . . . where the employer disputes only the extent of the deceased’s disability.” In Adzima, we declined such an extension pointing out that § 31-297 (b) “itself clearly delineates a distinction between liability and disability: ‘Whenever liability to pay compensation is contested by the employer,’ the employer must file a specific defense. If the employer does not contest liability, it has ‘no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability. ’ (Emphasis added.)” Id. We went on to say that “[t]he statute clearly speaks to a threshold failure on the employer’s part to contest ‘liability’ . . . .” Id.

The entire statutory scheme of the Workers’ Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant or his representative who is not an employee has no right under this statute to claim for and be awarded benefits. The act is not triggered by a claimant until he brings himself within its statutory ambit. The conclusive presumption of § 31-297 (b) is, accordingly, not triggered by the filing of a claim with the attendant notice by an “employee” against an “employer” until the “employee” proves, where the requisite relationship is challenged, that that relationship existed. This requisite relationship was a jurisdictional fact to be proven in this case to bring the plaintiffs within the class that the legislature obviously intended be covered.

We must determine, however, what is a “jurisdictional fact” in this context. In a workers’ compensation case, Valenzuela v. Singleton, 100 N.M. 84, 87, 666 P.2d 225 (1982), affirmed in Allsup’s Convenience Stores, Inc. v. Valenzuela, 100 N.M. 84, 666 P.2d 225 (1983), the New Mexico Court of Appeals, quoting with approval from Abraham v. Homer, 102 Okla. 12, 13-14, 226 P. 45 (1924), characterized a “jurisdictional fact” as follows: “Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact. Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person. Facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court are essential to jurisdiction over the subject-matter of the suit. Facts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment. All such facts are known as jurisdictional facts.” Drawing on Abraham, the Valenzuela court refered to examples of jurisdictional facts relating to jurisdiction over the subject matter. It is necessary, in the administration of a decedent’s estate, that the facts establish that the owner of the estate is actually dead. In court martial proceedings, it is necessary for the facts to show that the person being tried was actually in the military or naval service. Valenzuelas. Singleton, supra. These are jurisdictional facts relating to jurisdiction over the subject matter. Their existence is fundamental to the power to entertain and adjudicate a proceeding on the merits. In short, such facts condition the power to act. In re First National Bank, 152 F. 64, 69 (8th Cir. 1907); Valenzuela v. Singleton, supra, 87.

The commissioner recognized this when, having heard the claims of the parties, he ruled that he could not consider the plaintiffs’ motion to preclude until an evidentiary hearing on the employer-employee issue had been held. He thereupon conducted such a full hearing, at which both parties testified and were represented by counsel. Given the circumstances, the commissioner had the duty to determine whether there was subject matter jurisdiction. See, e.g., Letterlough v. Alkins, supra; James v. Arlington County Board of Supervisors, supra. The burden of adducing evidence to enable the commissioner to conclude that there was subject matter jurisdiction to bring this claim within the act was on the plaintiffs. Bourgeois v. Cacciapuoti, supra, 321; Morganelli v. Derby, supra. It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. Adzima v. UAC/Norden Division, supra; Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, supra, 118. On the record before us, the commissioner could properly have concluded that the requisite employer-employee relationship had not existed and, therefore, that there had been no subject matter jurisdiction under the act.

We also determine that his decision did not violate the act. Speaking to the act itself, no violence is done to its humanitarian and remedial character because the plaintiffs have not brought themselves within its ambit as they were required to do. See Eason v. Welfare Commissioner, 171 Conn. 630, 635, 370 A.2d 1082 (1976), cert. denied, 432 U.S. 907, 97 S. Ct. 2953, 53 L. Ed. 2d 1079 (1977). Were it to be held otherwise, then the courts would be legislating by adding a new class to the coverage of this act which proclaims its limited scope. This courts cannot do. “ ‘[I]t is up to the legislatures, not courts, to decide on the wisdom and utility of legislation. . . . [C]ourts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’ Ferguson v. Skrupa, 372 U.S. 726, 729-30, 83 S. Ct. 1028, 10 L. Ed. 2d 93 [1963] . . . .” Dupont v. Planning & Zoning Commission, 156 Conn. 213, 220, 240 A.2d 899 (1968). The expeditious method of disposing of claims by those entitled to the benefits of the act is not frustrated or abused where the act is not applicable, as here. Only last year, we said: “Because only employees are entitled to compensation under the act, it is clear that coverage must arise from a contract of employment, either express or implied.” (Emphasis added.) Biancato v. Feldspar Corporation, 203 Conn. 34, 38, 522 A.2d 1235 (1987). Reference has already been made to the conclusive presumptions of § 31-297 (b); the commissioner, we agree, need not have reached its time-barring character because there was no subject matter jurisdiction of the matter at all.

Nor is the result we reach today, premised as it is upon the necessity of proving the requisite employer-employee relationship under the act, contrary to any of our decisions as the plaintiffs argue. The same applies to those Appellate Court cases and compensation review division decisions to which the plaintiffs refer us. In none of these cases was the critical relationship of employer and employee, as comprehended by the act, at issue. Moreover, we cannot find, nor has either counsel directed us to, any decision by any Connecticut court or tribunal that has ruled that because of the conclusive presumption of § 31-297 (b), the right to contest the subject matter jurisdiction of a workers’ compensation commissioner is waived where the employer-employee relationship does not exist. Insofar as any other case of a Connecticut court or tribunal suggests that inquiry into the subject matter jurisdiction of the commissioner under the act is precluded by § 31-297 (b) because of the failure of the “employer” to file a disclaimer within the twenty day period, any such decision is no longer binding.

In Menzies and Adzima, the existence of the employer-employee relationship was not in dispute. Adzima v. UAC/Norden Division, supra, 108; Menzies v. Fisher, supra, 339. Bush v. Quality Bakers of America, supra, upon which the plaintiffs lay great stress, involved the constitutionality of the conclusive presumption of § 31-297 (b) in a case where the employer claimed that the commissioner lacked jurisdiction when he found that the decedent’s death did not arise out of and in the course of his employment. While concluding that the employer’s failure to comply with the twenty day requirement of § 31-297 (b) precluded the employer from contesting compensability, Bush, however, specifically said: “The fact that Bush [the plaintiff s decedent] was an employee of Quality. . . is not contested”; id., 373; as that relationship is on this appeal. This alone makes Bush inapposite to the issue on this appeal. In Yuknat v. State, 9 Conn. App. 425, 519 A.2d 622 (1987), the Appellate Court affirmed the decision of the compensation review division (CRD No. 274, 2-83,1986) granting the plaintiffs motion to preclude because of the employer’s failure to comply with § 31-297 (b). Yuknat, likewise, is inapplicable here because the fact that the plaintiff’s decedent was a state employee was not in dispute. In like manner, Stassola v. Fairfield (CRD No. 328, 4-84,1986), also is inapposite; in Stassola, there was no question that the plaintiff police officer had been a Fairfield town employee for thirty years. An examination of the decision in DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331, 446 A.2d 831 (1981), appeal dismissed, 456 U.S. 952, 102 S. Ct. 2026, 72 L. Ed. 2d 477 (1982), indicates that the employer-employee relationship was not at issue. DeLeon is therefore inapposite on the issue before us.

In LaVogue v. Cincinnati, Inc., supra, upon which the plaintiffs rely, as did the compensation review division in reversing the commissioner in this case, a rather unusual fact pattern was presented including the operation of § 31-297 (b) in a conflict-of-laws setting. In LaVogue, it would appear that a non-Connecticut employer (Ohio) had a non-Connecticut employment contract with an employee who suffered an eye injury while working in Rhode Island for that employer. The employee lived in Connecticut at his employer’s request and maintained an office in Connecticut for his employer for which he was paid by that employer at the time of his injury. The plaintiff was awarded Massachusetts compensation benefits where his employer maintained a regional office, but then he also filed for compensation benefits in Connecticut. The employer did not contest compensability or liability but claimed that Connecticut did not have jurisdiction and that, therefore, the employee was not entitled to benefits pursuant to the Connecticut workers’ compensation schedule but only to the benefits payable under the Massachusetts schedule. The employer accordingly claimed that its failure to file a notice to contest under § 31-297 (b) did not prevent it from attacking the jurisdiction of the Connecticut workers’ compensation commission over its employee’s claims. The Connecticut commissioner denied the employee’s motion to preclude and dismissed his appeal. On review of that action the compensation review division ruled that the employee’s motion to preclude should have been granted. Although the review division decided that the employer had conceded “both compensability and jurisdiction” when it failed to contest the employee’s initial claim, it also went on to conclude that the employee’s contacts with Connecticut were sufficient to give Connecticut jurisdiction over the plaintiff’s employment relationship with the defendant. The Appellate Court simply held that Bush “is dispositive of this appeal.” LaVogue v. Cincinnati, Inc., supra, 93. In doing so, it said: “It is, therefore, unnecessary for us to reach the issue of whether Connecticut had jurisdiction over the employment relationship based on the facts of this case.” Id. Despite this holding, the Appellate Court went on to say: “If an employer fails to file a notice contesting liability, the employer shall be conclusively presumed to have accepted the compensability of the employee’s injury ‘and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds . . . .’ (Emphasis added.) General Statutes § 31-297 (b).” Id. Two circumstances relevant to our discussion emerge from the exegesis of LaVogue. First, and significantly, any fair reading of that case discloses that the status of employer and employee was not at issue. Again, that circumstance alone makes it inapposite here. Second, to the extent that the portion of § 31-297 (b) quoted by the LaVogue court with its emphasis of the “on any grounds” language might be read to suggest that subject matter jurisdiction cannot be examined, we do not agree.

On an appeal from a workers’ compensation commissioner’s decision, the compensation review division “hear[s] the appeal on the record of the hearing before the commissioner” unless it determines, under the statute, to take “additional evidence or testimony.” General Statutes § 31-301 (a). No such “additional evidence or testimony” was taken by the compensation review division in this case. In making its final determination of an appeal, the compensation review division “shall issue its decision, affirming, modifying or reversing the decision of the commissioner.” General Statutes § 31-301 (a). The decision of the compensation review division must stand unless it results “from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, supra, 118; Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196, 497 A.2d 1235 (1985). It follows from what we have held in this opinion that the compensation review division incorrectly applied the law to the subordinate facts found by the commissioner and, therefore, the compensation review division should have affirmed the commissioner’s decision.

There is error, the decision of the compensation review division remanding the matter to the commissioner is set aside and the matter is remanded to the compensation review division with direction to affirm the commissioner’s decision.

In this opinion the other justices concurred.

       The plaintiffs’ motion to preclude was the following:
      “motion to preclude
      “The Claimant hereby moves to preclude the respondents from contesting liability in the above-captioned matter in that the respondents failed to file a Notice of Intent To Contest Liability pursuant to C.G.S. Sec. 31-297 (b) within twenty (20) days after receiving notice of the claim in this matter. In support of this Motion, the Claimant submits the following exhibits:
      “(1) Copy of letter to Joaquim Viera and Mary Viera dated October 12, 1983, sent Certified Mail—Return Receipt Requested.

        “(2) Copy of Receipt for Certified Mail—No. P081544947.
      “(3) Copy of Returned Receipt (Green Card).
      “(4) Copy of letter to Morris Cutler, Esquire, dated November 19,1983.
      “Wherefore, the Claimant moves that this Motion be granted.”

       General Statutes § 31-297 (b) provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

       General Statutes § 31-301 (a), entitled “Appeals to compensation review division. Payment of award during pending of appeal,” provides in relevant part: “At any time within ten days after entry of such award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the compensation review division by filing in the office of the commissioner from which such award or such decision on a motion originated an appeal petition and five copies thereof. Such commissioner within three days thereafter shall mail such petition and three copies thereof to the chairman of the compensation review division and a copy thereof to the adverse party or parties. Such appeal shall be heard by a panel of the compensation review division, except that no commissioner may sit in review of an award or decision rendered by him. The compensation review division shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the division that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the compensation review division may hear additional evidence or testimony. Upon the final determination of the appeal by the compensation review division, but no later than (1) October 1, 1987, for those appeals pending on October 1,1986, or (2) one year after the date the appeal petition was filed for those petitions filed on or after October 1, 1986, it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the compensation review division shall include its findings and award and conclusions of law.”

       The terms “employee” and “employer” are specifically defined in the Workers’ Compensation Act. General Statutes § 31-275 (5) and (6).

       In Menzies v. Fisher, 165 Conn. 338, 341, 334 A.2d 452 (1973), we considered the plaintiffs claim that the workers’ compensation commissioner was in error in refusing to grant her “Motion to Preclude” the defendant employer from contesting compensability pursuant to General Statutes § 31-297 (b). In that connection, we quoted that section as it had been amended in 1967: “ ‘Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability unthin the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.’ (Emphasis added.)” Id.
      The emphasized language of this statute was incorporated by Public Acts 1967, No. 842, § 7. The 1967 Public Act amended thirty other sections of the Workers’ Compensation Act.

       In Adzima v. UAC/Norden Division, 177 Conn. 107, 113-14, 411 A.2d 924 (1979), in pointing out that General Statutes § 31-297 (b) addressed an employer’s “threshold failure” to contest “liability,” we said: “The statute clearly speaks to a threshold failure on the employer’s part to contest ‘liability’: to claim, for example, that the injury did not arise out of and in the course of employment; see Menzies v. Fisher, [165 Conn. 338, 340, 334 A.2d 452 (1973)]; that the injury fell within an exception to the coverage provided by workmen’s compensation; see Draus v. International Silver Co., 105 Conn. 415, 418, 135 A. 437 (1926); or that the plaintiff was not an employee of the defendant, but an independent contractor; see Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 704, 131 A. 739 (1926).”
      A close examination of Biederzycki discloses that there was no issue in that case of the employer-employee relationship of the plaintiffs decedent husband and the defendant employer. Rather, the crucial issue was whether, sometime after the commissioner had made his finding and award in favor of the plaintiff against the employer, the commissioner had the power to reopen or modify the award under the act upon the motion of the employer that he do so. We held that he could not do so under the statute. In Biederzycki, which preceded the enactment of § 31-297 (b), we simply construed the statute as not granting the commissioner the power to reopen and modify. This was wholly consistent even then with our position that the jurisdiction of the commissioner is “confined by the Act and limited by its provisions.” Jester v. Thompson, 99 Conn. 236, 238, 121 A. 470 (1923).
      Our decision in Biederzycki relied upon the earlier case of Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 123 A. 9 (1923). In Hayden, the defendant employer moved to reopen the commissioner’s award sometime after it had voluntarily agreed to pay compensation to the claimants, maintaining that it had discovered more than one year after making this agreement that the claimants were not its employees but rather were employees of an independent contractor with whom it had contracted to do certain work at its factory. In Hayden, we advised the commissioner, who had initially denied the employer’s motion to reopen, to dismiss the appeal. We did so, indicating that the employer’s failure to ascertain the facts showing its nonliability was due to its own negligence, that it was estopped from abandoning the position it had deliberately taken and that the commissioner could not do so under the statute.
      Accordingly, we do not no w read Biederzycki or its use of Hayden as inconsistent with or controlling our disposition of the appeal now before us.

       We require the assertion of facts in a pleading which will permit a court to find jurisdiction. For example, in dissolution matters, our practice requires the stating of “facts [in a complaint] necessary to give the court jurisdiction.” See Practice Book § 453.

       We need not address certain aspects of the compensation review division cases we refer to below including any claim that its decision in this case violated certain constitutional protections. This is so because the defendants withdrew and did not brief or argue another of their preliminary statement of issues which asked: “Whether the Compensation Review Division, Workers’ Compensation Commission violated the Due Process Clause of the 14th Amendment of the United States Constitution in its ruling that subject matter jurisdiction was waived by the respondents as a result of their failure to file a Notice of Intent to Contest Liability.”

       The plaintiffs point out that General Statutes § 31-297 (b) provides that the employer must file, within twenty days, the prescribed notice which must include “the specific grounds in which the right to compensation is contested . . . .” Relying upon the dissent in Adzima v. UAC/Norden Division, 177 Conn. 107, 119, 411 A.2d 924 (1979) (Bogdanski, J., dissenting), they argue that the first word in § 31-297 (b), i.e., “[wjhenever [liability to pay compensation is contested by the employer . . .]” means “in any or every instance” and they go on to say that § 31-297 (b) “does not state that this does not include a defense that there is no jurisdiction of the Connecticut Workers’ Compensation Act.”
      Apparently to reinforce this argument, they point to later language in § 31-297 (b) that provides that if the employer does not comply with the twenty day notice provision, the employer “shall be conclusively presumed to have accepted the compensability . . . and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” (Emphasis added.) The plaintiffs, therefore, conclude that the “on any grounds” language “does not limit the grounds to anything, including lack of jurisdiction of the Connecticut Workers’ Compensation Commission.”
      This claim is without merit. Subject matter jurisdiction is conceptually and analytically involved. We have cited authority that it is settled law that the “commissioner’s jurisdiction is ‘confined by the Act and limited by its provisions.’ ” Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305, 268 A.2d 660 (1970). Therefore, subject matter jurisdiction must exist before the act applies. Next, the employer-employee relationship as contemplated by the act must be demonstrated for the commissioner to have the power under the act to carry out its objectives. Furthermore, the lack of subject matter jurisdiction does not, strictly speaking, address the right not to contest liability to pay compensation, but rather amounts to declaring that the act does not apply at all.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Nicotra Wieler Investment Management, Inc. v. Melvin Grower
    (13240)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued March 2
    decision released May 10, 1988

      Gurdon H. Buck, with whom, on the brief, were Sally S. King and Lori Wilson, for the appellant (defendant).

      Jeffrey J. Mirman, with whom were Richard Kuzmak and, on the brief, Matthew N. Perlstein, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this case is whether the tenant of a residential apartment complex that is being converted to common interest ownership has an exclusive right to purchase the apartment that he occupies even though the conversion plan does not make the apartment available for sale as a separate unit. The plaintiff, Nicotra Wieler Investment Management, Inc., brought this summary process action against the defendant, Melvin Grower, alleging the expiration of an oral lease by lapse of time. The defendant refused to vacate the apartment principally because the plaintiff had not complied with General Statutes §§ 47-284 and 47-285, which govern the rights of tenants in the conversion process. The trial court rendered a judgment awarding possession to the plaintiff. We find no error.

There is no dispute about the relevant facts. The defendant occupies an apartment at the Folly Brook Manor complex in Wethersfield, which is managed and operated by the plaintiff. The complex consists of nine separate groups of buildings. Each building contains four apartment units. In August, 1983, the owner of the complex was Creative Real Estate Marketing Investments (CREMI). About August 30,1983, CREMI designated the complex for development as a planned unit modular complex within the authority conferred by the Connecticut Common Interest Ownership Act (CIOA). General Statutes § 47-200 et seq. To initiate this new form of ownership, CREMI filed a “Declaration of Covenants, Easements, Reservations and Tenancies in Common” in the land records of Wethersfield. According to the declaration, CREMI agreed to convey the land and common improvements, such as paved parking areas and concrete walkways, to the newly-created Folly Brook Manor Owners Association, Inc. As for the apartment structures, CREMI declared its intent to sell each of the forty-six buildings to various investors, who in turn would lease the land and common improvements from the owners association. In sum, the units for sale under the declaration consisted of the four-apartment buildings, not the individual dwelling units.

In conjunction with the conversion, CREMI sent a form letter to the defendant describing the change in ownership structure. This letter explained that the “general nature of [Folly Brook] Manor as a rental complex has not been changed” and that rental payments would be due under the terms of existing leases. The defendant was told that “[y]ou may live in your apartment under your existing lease until your lease expires.” CREMI further stated that no evictions would occur except for designated causes, including nonpayment of rent, removal of the apartment from the rental market or material noncompliance with the lease. Finally, with respect to purchase rights, the letter stated that “[b]ecause the boundaries of the units have been changed from individual apartments to groups of four (4) apartments, we cannot offer you an exclusive right to purchase your apartment. If you are interested, however, in purchasing a modular group of four (4) apartments, please do not hesitate to call us.”

On July 19,1984, the plaintiff served on the defendant a notice to quit possession of the premises by July 31,1984. The notice alleged that an oral lease had expired by lapse of time. When the defendant did not vacate the premises, the plaintiff brought the instant summary process action on August 8,1984. Thereafter, on October 10, 1984, the defendant moved to dismiss the action because the plaintiff had not provided him a proper conversion notice and public offering statement as required by General Statutes §§ 47-284 and 47-285. In particular, the defendant claimed that the letter he had received from CREMI failed to offer him an exclusive right to purchase his apartment for a specified period.

In a memorandum of decision dated December 16, 1985, the trial court denied the motion to dismiss. It was uncontested that the defendant had not been provided a conversion notice and a public offering statement. Whether the defendant was thereby protected from an eviction depended, according to the trial court, on a threshold question: did the conversion provisions of CIOA require the plaintiff to provide such documents in this case? After examining the relevant statutory provisions, the trial court decided that the tenant in this case stood outside the intended scope of CIOA. The trial court appears to have rested its decision on two alternate grounds. The court first held that the defendant was not a “conversion tenant” for whom the provisions of CIOA afford protection. In the alternative, the court also denied relief because § 47-285 (a) contains an exception that applies when the unit for sale does not “substantially conform to the dimensions of the unit before conversion.” Of particular significance to the trial court in both holdings were the provisions of CIOA that give to developers latitude in declaring and defining the “units” that are for sale in a newly-declared common interest community. General Statutes §§ 47-202 (31) and 47-224 (a) (5). This freedom to characterize as a “unit” whatever portion of the development is to be sold separately could not, the trial court reasoned, be squared with the defendant’s claim of the right to purchase his dwelling unit. Under the defendant’s view, the court believed that “the result would be difficult and unfathomable. How could each of four tenants have exclusive right to purchase the building which, not the individual apartments, was the only item available for conversion/sale?”

Subsequent to this decision, the defendant filed his answer and special defenses. The defenses essentially recounted the grounds for dismissal under CIOA that had already been rejected by the trial court in its prior memorandum. In its final judgment rendered on August 18, 1987, the trial court found for the plaintiff on the special defenses and on the question of possession for lapse of an oral lease. As its rationale for denying the special defenses, the trial court expressly incorporated its prior memorandum on the motion to dismiss.

On appeal, the defendant claims that his eviction is improper because the trial court erred in: (1) holding that a proper conversion notice, with its attendent exclusive purchase right, was not required in this case; and (2) not requiring the plaintiff to provide a public offering statement to him. We find no error.

I

In order properly to review these claims of error, we must briefly survey the conversion provisions of CIOA in the context of the act as a whole. The Common Interest Ownership Act is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act. Public Acts 1983, No. 83-474. A “common interest community” is defined chiefly by the fact that each unit owner is obligated to pay certain charges, such as taxes and insurance premiums, attributable to common property held jointly by the owners through their association. General Statutes § 47-202 (7). Part V of the act sets forth special rules for the protection of tenants who occupy apartments in existing structures that are being converted to common interest communities.. General Statutes §§ 47-282 through 47-293. In a statement of policy, the legislature declared the need for statewide action to preserve the stock of leased dwelling units in the face of the quickening tempo of conversions. General Statutes § 47-282. Because tenants who occupy buddings undergoing conversions often bear a disproportionate burden in this process, the legislature has established a regime of both substantive and procedural rights that must be respected by developers in this state. Three principal rights are: the exclusive right to purchase one’s apartment for a specified period of time, a relocation payment of up to one thousand dollars and a guarantee against rent increases during the transition period. See General Statutes §§ 47-285, 47-287 and 47-289.

A

CIOA affords its panoply of protection to a special type of person known under the act as a “conversion tenant.” This term is defined as “a tenant who occupies a dwelling unit both before and after it becomes a converted unit.” General Statutes § 47-283 (3). The preliminary question in this case is whether the defendant is a “conversion tenant.” Only if this status has attached to the defendant as a consequence of the conversion in this case do the rights available under CIOA become enforceable.

The defendant in this case meets the statutory requirement for a “conversion tenant.” The definition of this term in § 47-283 (3) essentially ties the status of being a “conversion tenant” to the occupancy of an apartment that “becomes a converted unit.” A “converted unit” is defined as “a dwelling unit that (A) was not in a common interest community when originally leased to its current tenant and (B) is now in a common interest community or is located in a building in which a unit is being offered for sale as part of a common interest community.” General Statutes § 47-283 (2).

Applying these criteria in this case, we are persuaded that the evidence adduced at trial shows that the defendant fits the definition of a “conversion tenant.” It is undisputed that the defendant resided at Folly Brook Manor prior to its conversion to a common interest community. The defendant attested, in an undisputed affidavit, that he took leased occupancy of his apartment prior to August 30, 1983, the date of conversion. The second element in this definition of a “conversion tenant” is also uncontroverted. The evidence overwhelmingly indicates that the entire Folly Brook Manor complex, including the dwelling unit leased to the defendant, is now a common interest community.

The plaintiff nevertheless argues that a “conversion tenant” comes into being only when the conversion plan calls for the sale of individual dwelling units. Its argument, in syllogistic terms, is that only “converted units” must be offered for sale to tenants; that a “converted unit” is defined in the statute as a “dwelling unit”; and that because no separate “dwelling unit” has been offered for sale in this case there can be no “conversion tenant.” This argument cannot be squared with the express terms of the statutory definition of “conversion tenant.” The clear language of the interlocking definitions in § 47-283 (2) and (3) provide the dispositive criteria for determining whether a particular tenant is a “conversion tenant.” Contrary to the holding of the trial court, we therefore conclude that the defendant is a “conversion tenant.”

B

We turn, then, to the more difficult question of whether the defendant was entitled to receive a conversion notice in this case. Although a conversion tenant is entitled to notice of his or her exclusive right to purchase the apartment, that entitlement applies only if such a purchase right exists. General Statutes § 47-284 (b) (3). Whether the purchase right exists depends on the language of § 47-285 (a), which provides that “a declarant shall offer to convey the converted unit occupied by [the conversion] tenant to that tenant” for a specified period. This broad right is subject, however, to an exception in the final sentence of § 47-285 (a): “This provision does not apply to any unit . . . the boundaries of which do not substantially conform to the dimensions of the unit before conversion.” The outcome of this case hinges on the proper construction of this exception.

The parties offer starkly disparate interpretations of this exception. According to the defendant, only if the actual physical walls, ceilings or floors of a preconversion dwelling unit are substantially changed does the exception apply. The plaintiff, on the other hand, argues that the exception is triggered whenever a declarant chooses to define and sell as a “unit” any bundle of property that is substantially different than the dimensions of a single dwelling unit. We agree with the plaintiff.

In determining whether CIOA affords the relief that the defendant seeks, it is axiomatic that we strive 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). In addition, we consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation. Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984). In this same vein, CIOA refers to itself as a “general act intended as a unified coverage of its subject matter . . . .” General Statutes § 47-208.

On its face, the language of the exception in § 47-285 neither absolutely supports nor absolutely refutes the defendant’s exclusive right to purchase his apartment. The chief source of ambiguity in the statute is its use, at two junctures, of the term “unit” without explicit qualification. The CIOA lexicon contains at least three types of units: the “unit” defined by the declarant for separate ownership or occupancy; § 47-202 (31); the “converted unit” defined in § 47-283 (2); and the “dwelling unit” used occasionally in the act but nowhere defined. It is our task to construe § 47-285 (a) in the context of the act as a whole so as to ascribe appropriate meanings to the exception’s two uses of the term “unit.”

Both parties urge us to clarify the meaning of “unit” in § 47-285 by interpolating additional terminology into the language of the statute. The defendant urges us to construe both uses of the term “unit” as references to “dwelling unit.” So clarified, the exception would apply only if the physical dimensions of a dwelling unit after the conversion do not substantially conform to its pre-conversion dimensions. The plaintiff, to the contrary, urges us to interpret the first “unit” as the bundle of property defined by the declarant in accordance with § 47-202 (31) and the second “unit” as a “dwelling unit.” So clarified, the exception would apply whenever the unit for sale does not substantially conform to the dwelling unit before conversion.

Two principal reasons persuade us to agree with the plaintiff. First, the neighboring terminology clarifies the intended meanings of the term “unit.” The exception begins with the language that “[t]his provision does not apply to any unit . . . the boundaries of which” are substantially changed. (Emphasis added.) A “boundary” is the device by which the developer defines a “unit” under the act. See General Statutes §§ 47-202 (26) and (31), 47-224 (5), 47-228 (e) and 47-230 (3). Once defined, the “unit” owner is not only vested with certain allocated interests; General Statutes § 47-202 (2); but also with certain liabilities. General Statutes § 47-249. A “boundary” created in the declaration may, or may not, correspond to the physical dimensions of a dwelling unit. The mere removal of partitions between adjoining units, for example, is not an alteration of a “boundary.” General Statutes § 47-230. Instead, boundaries are relocated by amending the declaration on application to the unit owners association. General Statutes § 47-231. In sum, the term “boundaries,” with its fixed correlation to the exercise of development rights, clarifies the meaning of the first “unit.”

The subsequent use of the term “unit” in § 47-285 (a), in its full rendition, refers to the “unit before conversion.” (Emphasis added.) A “unit before conversion” must be a dwelling unit or apartment since, prior to conversion, there is neither a “unit” nor a “converted unit” within the purview of CIOA. In addition, by describing the latter “unit” as having “dimensions” instead of “boundaries,” the statute has provided further guidance that the second use of the term “unit” was meant in the ordinary sense of an apartment. Accordingly, the plaintiffs interpretation finds support in the language of the exception as a whole.

Second, the plaintiffs interpretation is consistent with CIOA’s express aspiration to serve as a “general act intended as a unified coverage” of its subject matter. General Statutes § 47-208. In creating a common interest community, a declarant has broad latitude in defining the “unit” for separate ownership or occupancy. General Statutes §§ 47-202 (31) and 47-224 (a) (5). A declarant thus may exercise its development rights under part II of the act without regard to the existing dimensions of dwelling units. The § 47-285 exception is an apparent recognition of this possibility.

We note also that our decision today furthers CIOA’s overall policy of protecting the existing rental stock in the state. In a statement of policy, § 47-282 (3) declares that “it is in the public interest to preserve a number of leased dwelling units as rentals” for the elderly or infirm. The trial court, after reviewing the conversion instruments, stated that “[t]he only effect this conversion will have on defendant is a change in landlord.” The defendant has not challenged this conclusion in any way and our own review of the record reveals no reason to question the trial court’s observation.

Applying the exception to this case in accordance with our interpretation of § 47-285 (a), we conclude that the defendant has no exclusive right to purchase his apartment. The boundaries of the unit offered for sale by CREMI did not substantially conform to the dimensions of the apartment the defendant occupied prior to the conversion. Accordingly, the trial court was correct in holding that no conversion notice was required in this case.

II

The defendant also claims that his eviction is unlawful because he has not received the public offering statement to which he is entitled. He offers two grounds for reversing the judgment of the trial court: (1) such a statement is a necessary adjunct to his right to purchase his apartment; and (2) his status as a “conversion tenant” per se mandates the service of a public offering statement before any eviction may occur. Because we already have determined that no purchase right exists in this case, we need only address the latter argument.

Before offering any interest in a unit to the public, a declarant is required to prepare a public offering statement in accordance with General Statutes §§ 47-263 through 47-267. In the event that “a conversion tenant will be required to vacate a converted unit, other than for reasons permitted by subsection (b) of section 47a-23c, and, if a tenant has a purchase right pursuant to section 47-285 . . . a declarant shall . . . provide that tenant with a public offering statement . . . .” (Emphasis added.) General Statutes § 47-284 (a). The defendant argues that this provision requires service of a public offering statement under two alternative circumstances: when a conversion tenant is impermissibly evicted or when such a tenant has a right to purchase his or her apartment. As we interpret the statute, however, the right to a public offering statement is plainly contingent upon a showing of an impermissible eviction and a purchase right.

In reaching this conclusion, we find significance in the use of the word “and” between the two stated conditions. “Where the language of the statute is clear and unambiguous, we have refused to speculate as to the legislative intention, because it is assumed that the words express the intention of the legislature.” Sutton v. Lopes, 201 Conn. 115, 118, 513 A.2d 139 (1986); see Simko v. Zoning Board of Appeals, 205 Conn. 413, 418, 533 A.2d 879 (1987). We believe that the legislature, in drafting § 47-284 (a) in the conjunctive, meant what it said. A principal purpose of the public offering statement under CIOA is to protect unit purchasers from making uninformed investment decisions. Mandating the service of such statements upon tenants who have no exclusive purchase rights would not materially advance the goal of the statute. A tenant in the shoes of the defendant might, of course, request a public offering statement and the declarant, in seeking to sell property, might voluntarily wish to honor that request. We conclude, however, that the defendant had no statutory right to receive a public offering statement merely because of his status as a “conversion tenant.” A declarant is only obligated to provide a public offering statement to conversion tenants who have a “purchase right pursuant to section 47-285 . . . .” General Statutes § 47-284 (a). The trial court therefore correctly rendered a judgment awarding possession of the premises to the plaintiff.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 47-284. conversion tenant’s right to conversion NOTICE AND PUBLIC OFFERING STATEMENT, (a) At least one hundred eighty days before a conversion tenant will be required to vacate a converted unit, other than for reasons permitted by subsection (b) of section 47a-23c, and, if a tenant has a purchase right pursuant to section 47-285, at least ninety days prior to the sale of the converted unit by the declarant to a person other than a conversion tenant, a declarant shall give that tenant a conversion notice and provide that tenant with a public offering statement when otherwise required by section 47-263 or 47-267.
      “(b) The conversion notice shall inform a tenant of: (1) The date the declarant converted, or intends to convert, the building to a common interest form of ownership; (2) the right of the tenant during the transition period to protection from eviction; (3) the exclusive right of the tenant, as described in section 47-285, to purchase his converted unit during the first ninety days after receipt of the conversion notice; (4) the right of the tenant, as described in section 47-286, to terminate his tenancy and abandon his converted unit on thirty days notice, and the right of each qualified tenant, as described in section 47-287, to a relocation payment; (5) the availability from the department of housing of information concerning governmental assistance to (A) purchase the converted unit or alternative housing, or (B) find, and relocate to, alternative housing; and (6) the address and phone number for information concerning the availability of relocation payments and for information from the department of housing concerning governmental assistance.
      “(c) The conversion notice and public offering statement shall be hand-delivered or sent by certified mail, return receipt requested, to the address of the dwelling unit and to any other mailing address provided by a tenant.”

       “[General Statutes] Sec. 47-285. conversion tenant’s right to purchase converted unit, (a) For the first ninety days after giving a conversion notice to a tenant, a declarant shall offer to convey the converted unit occupied by that tenant to that tenant. If a tenant fails to purchase the converted unit during that ninety-day period, the declarant may not offer to dispose of an interest in that converted unit during the following one hundred eighty days at a price or on terms more favorable to the offeree than the price or terms offered to the tenant. This provision does not apply to any unit which will be restricted exclusively to nonresidential use or the boundaries of which do not substantially conform to the dimensions of the unit before conversion.
      “(b) If a declarant, in violation of subsection (a) of this section conveys a converted unit to a purchaser for value who has no knowledge of the violation, the recordation of the deed conveying that converted unit, or, in a cooperative, the conveyance, extinguishes any right a tenant may have under subsection (a) of this section to purchase if the deed or conveyance states that the declarant has complied with said subsection (a), but does not affect the right of a tenant to recover damages under section 47-292 from the declarant for a violation of said subsection (a).
      “(c) If a tenant fails to purchase the converted unit during that ninety-day period, and the declarant thereafter enters into a contract to sell that unit to a third person, the declarant shall, within one month of executing that contract, notify the tenant of the name and address of the contract purchaser. The declarant’s failure to comply with this subsection shall not constitute a defect in the title which he conveys to a third person, or otherwise affect the marketability of title to that unit.”

       The defendant also claimed that the notice to quit was improperly signed and that the notice directed him to vacate prior to the expiration of the lease. The trial court ruled for the plaintiff on both of these claims. The defendant has not challenged this ruling on appeal.

       General Statutes § 47-202 (31) provides: “definitions. In the declaration and bylaws, unless specifically provided otherwise or the context otherwise requires, and in this chapter . . .
      “(31) ‘Unit’ means a physical portion of the common interest community designated for separate ownership or occupancy, the boundaries of which are described pursuant to subdivision (5) of subsection (a) of section 47-224. If a unit in a cooperative is owned by a unit owner or is sold, conveyed, voluntarily or involuntarily encumbered or otherwise transferred by a unit owner, the interest in that unit which is owned, sold, conveyed, encumbered or otherwise transferred is the right to possession of that unit under a proprietary lease, coupled with the allocated interests of that unit, and the association’s interest in that unit is not thereby affected.”
      General Statutes § 47-224 (a) (5) provides: “contents of declaration. (a) The declaration shall contain ... (5) In a condominium or planned community, a description of the boundaries of each unit created by the declaration, including the unit’s identifying number or, in a cooperative, a description, which may be by surveys or plans, of each unit created by the declaration, including the unit’s identifying number, its size or number of rooms, and its location within a building if it is within a building containing more than one unit.”

       The defendant proposes a way out of the conundrum noted by the trial court. He urges in his brief, as he did before the trial court, that, under the unique circumstances of this case, his statutory right can be given full effect by allowing him to purchase an undivided one fourth interest in the unit that is for sale, i.e., the four-apartment building. At oral argument, the defendant initially claimed that he had an unequivocal right to purchase his own apartment. Under questioning in rebuttal, however, the defendant clearly conceded that he sought only to purchase a one fourth interest in the unit for sale. Because we decide the threshold question of whether he enjoys any purchase right under CIOA against the defendant, we need not consider the feasibility of either proposed remedy.

       Seizing on this apparent repetition to invoke the law of the case doctrine, the plaintiff filed a motion to strike the CIOA special defenses. While acknowledging its prior ruling, the trial court, in the exercise of its discretion, denied the motion to strike in order to preserve an opportunity, at a later stage in the case, to correct “any clearly erroneous view working manifest injustice.”

       General Statutes § 47-202 (7) provides: “definitions. In the declaration and bylaws, unless specifically provided otherwise or the context otherwise requires, and in this chapter ....
      “(7) ‘Common interest community’ means real property described in a declaration with respect to which a person, by virtue of his ownership of a unit, is obligated to pay for (A) real property taxes on, (B) insurance premiums on, (C) maintenance of, or (D) improvement of, any other real property other than that unit described in the declaration. ‘Ownership of a unit’ includes holding a leasehold interest of forty years or more in a unit, including renewal options. An association of property owners funded solely by voluntary payments from those owners is not a common interest community.”

       The Common Interest Ownership Act has five major parts. Part I of the act contains general provisions, including definitions of the three forms of common interest ownership: the condominium; General Statutes § 47-202 (8); the cooperative; General Statutes § 47-202 (10); and the planned community, a residual category of developments that are not condominiums or cooperatives but nonetheless come within the scope of the act. General Statutes § 47-202 (23). Part II of the act governs the creation, alteration and termination of common interest communities. General Statutes §§ 47-220 through 47-242. Part III concerns the managerial aspects of the common interest community, including the organization and power of the unit owners association. General Statutes §§ 47-243 through 47-261. Part IV affords protection to unit buyers through its disclosure and warranty provisions. General Statutes §§ 47-262 through 47-281.


text:
    State of Connecticut v. Dale Schriver
    (13245)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 7
    decision released May 17, 1988

      Jon C. Blue, assistant public defender, with whom, on the brief, were Joette Katz, public defender, and Michael L. Moscowitz, deputy assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Carolyn K. Longstreth and Corinne Klatt, deputy assistant state’s attorneys, for the appellee (state).
   Peters, C. J.

The dispositive issue in this appeal is whether the Connecticut statute prohibiting risk of injury to a minor is, in the circumstances of this case, unconstitutionally vague. After a jury trial, the defendant, Dale Schriver, was found guilty of one count of risk of injury to a minor in violation of General Statutes § 53-21. He appeals from the ensuing sentence of seven years imprisonment. We find error and remand with direction to vacate the judgment of conviction.

The jury could reasonably have found the following facts: In the early morning of September 6, 1986, the victim, Stacy, then thirteen years old, was delivering newspapers on foot in a residential neighborhood of Waterbury. Shortly into her route, she noticed a “strange man” following her. Sensing possible danger, she waited on the porch of a house for about a minute before resuming her deliveries. She was then approached by the man, who asked, “Do you have an extra paper?” Stacy said, “No.” The man then grabbed Stacy around the waist and said, “Don’t worry, all I want to do is feel you.” Stacy screamed in fright and the man fled. A neighbor awakened by the screams went outside to find the victim shaking and hyperventilating. At trial, Stacy identified the defendant as the man who had frightened her.

The state charged the defendant with one count of risk of injury to a minor in violation of § 53-21. Specifically, the state alleged in a bill of particulars that the defendant had committed “an act likely to impair the health or morals of the victim.” After the state rested its case-in-chief, the defendant moved for an acquittal on the ground of insufficient evidence. The motion was denied and the defendant excepted. The defendant then called an alibi witness who testified that he had seen the defendant some distance from the scene of the crime only a brief time before Stacy was accosted. Relying on this alibi testimony, the defendant renewed his motion for an acquittal. The court again denied it and the defendant again excepted.

On appeal, the defendant claims that his conviction violates due process because the controlling penal statute, as applied to the facts of this case, is unconstitutionally vague. We agree.

I

Before reaching the merits of this appeal, we must first consider the threshold question of reviewability. The state maintains that the void for vagueness claim is not reviewable because it was not distinctly raised at trial. We conclude that, despite this procedural default, a claim of unconstitutional vagueness falls within the parameters of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973), and therefore warrants appellate scrutiny, because it implicates the fundamental due process right to fair warning and the record is adequate to facilitate review. State v. McKenna, 11 Conn. App. 122, 125, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987); see generally State v. Robinson, 204 Conn. 207, 210 n.4, 527 A.2d 694 (1987). Contrary to the state’s position, our decision in McLaughlin v. Bronson, 206 Conn. 267, 537 A.2d 1004 (1988), does not foreclose Evans review in this case. In McLaughlin, a habeas petitioner challenged on vagueness grounds the statute under which his commutation had been revoked. We declined to review this claim because the petitioner had failed to provide us with transcripts of the habeas corpus proceedings and because we had already determined, in a prior section of our decision, that the statute clearly authorized the board of pardons’ revocation, hence draining the vagueness claim of its purported merit. Id., 275-76. Because McLaughlin is thus clearly distinguishable from this case, we turn to the merits of the vagueness challenge.

II

The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). The fair warning principle has firm roots in federal constitutional law. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980). The United States Supreme Court recently emphasized, however, that “the more important aspect of the vagueness doctrine ‘is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); see also United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563 (1876). “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

In order to surmount a vagueness challenge, “a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948). Under appropriate circumstances, the presence of a specific intent element in the offense may purge a potentially vague criminal statute of constitutional infirmity. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S. Ct. 329, 96 L. Ed. 367 (1952); United States v. Mussry, 726 F.2d 1448, 1455 (9th Cir. 1984); State v. Cavallo, 200 Conn. 664, 668-72, 513 A.2d 646 (1986). Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. Bishop v. Kelly, 206 Conn. 608, 613, 539 A.2d 108 (1988). For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

In the circumstances of this case, the defendant alleges that the language of § 53-21 does not meet the accepted standards of the void for vagueness doctrine. The statute, written in the disjunctive, provides that “[a]ny person who . . . does any act likely to impair the health or morals of any [minor] child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.” (Emphasis added.) The bill of particulars accused the defendant of committing a prohibited act under either the “health” or the “morals” clause of § 53-21, and the trial court charged the jury accordingly. The jury returned a general verdict of guilty as charged. Our review for vagueness must therefore address each statutory alternative individually. We nevertheless pause at the outset to take account of the general features of § 53-21.

On its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of the defendant in this case is permitted or prohibited. “[A]ny act” may violate the statute so long as it is “likely to impair” a minor’s health or morals. Standing alone, the phrase “any act” provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. State v. McClary, 207 Conn. 233, 239-40, 541 A.2d 96 (1988); State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). Nor is the focus of the statute measurably narrowed by the phrase “likely to impair.” In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral predelictions and personal predictions of likely harm. Similar statutes have been found violative of due process in other jurisdictions. E.g., Ex parte Jackson, 45 Ark. 158, 164 (1885) (a statute making it a misdemeanor to “commit any act injurious to the public health or public morals . . .”); Morrison v. State Board of Education, 1 Cal. 3d 214, 220-36, 461 P.2d 375, 82 Cal. Rptr. 175 (1969) (a statute authorizing the revocation of teaching certificates for “immoral conduct”); State v. Vallery, 212 La. 1095, 1098-99, 34 So. 2d 329 (1948) (a statute that criminalized the act of enticing or permitting a minor to perform an “immoral” act). In like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. The “absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause.” Smith v. Goguen, supra, 578. Clearly, the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.

A

Our first concern is the vagueness attack on the “morals” provision of § 53-21. In addressing this claim, we revisit familiar legal terrain. In State v. Pickering, supra, we upheld a conviction for likely impairment of morals against the claim of unconstitutional vagueness. The defendant in Pickering had sexually molested his daughter. After reviewing the “extensive judicial gloss” on the words “likely to impair the morals” of a minor, we concluded that “[t]his court’s opinions pursuant to § 53-21 make it clear that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of that statute.” Id., 64. Using this standard, we further concluded that “[sjection 53-21 has been given a core by the opinions of this court which serve as an authoritative judicial gloss on the provision.” (Emphasis added.) Id., 65. In subsequent cases, we have invoked Pickering as the controlling standard for evaluating vagueness challenges to the morals provision of § 53-21. State v. Perruccio, 192 Conn. 154, 161, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Smith, 183 Conn. 17, 20-21, 438 A.2d 1165 (1981).

If Pickering furnishes the standard by which to test whether the defendant has violated § 53-21, his conviction for impairment of a minor’s morals cannot stand, because there was no proof that he deliberately touched the private parts of a minor. The state maintains, however, that Pickering’s judicial gloss on § 53-21 did not exhaustively encompass the permissible reach of the statute. Relying on language in State v. Dennis, supra, the state claims that the defendant had fair warning in this case because Dennis construed the statute to proscribe any sexually suggestive conduct directly perpetrated on a minor that is likely to impair his or her morals. We disagree.

State v. Dennis is legally and factually distinguishable from the present case. In Dennis, the defendant did “certain perverted sexual acts with his seven-year-old daughter—acts, it is not disputed, of such a base nature as to impair the morals of any minor child.” Id., 246-47. At trial, the defendant claimed that his intoxication on the night of the offense negated the specific intent necessary to commit the crime. The jury was instructed that intoxication, if proven, could be a complete defense. Id., 247. The defendant was found not guilty, and the state appealed. We reversed and remanded for a new trial. On the basis of the statutory language and the legislative history, we concluded that § 53-21 proscribes “two general types of behavior ... (1) deliberate indifference to, acquiesence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” (Citation omitted.) State v. Dennis, supra, 250. Because the defendant had been charged under the second part of the statute, specific intent was not an element of the crime for which intoxication could provide a defense. Id., 250-51.

For three reasons, our holding in Dennis does not provide an authoritative gloss that extends § 53-21 beyond the well-defined confines established in State v. Pickering. First, the Dennis gloss, which purports to penalize “acts directly perpetrated on the person of a minor and injurious to his moral or physical well-being,” is nearly as vague and indefinite as the language of the statute itself. Second, we outlined the broad parameters of § 53-21 in Dennis not to establish definite guidelines for its enforcement but rather to show that specific intent is not always a required element. Finally, and most important, the facts of Dennis, like those in Pickering, involved deliberate touching of private parts. We therefore conclude that, read in its factual context, Dennis fails to provide for § 53-21 either the fair warning or the ascertainable standards that due process requires.

The state further maintains that, in the absence of existing judicial gloss that would ascertainably criminalize the conduct of the defendant in this case, this court should rescue § 53-21 from unconstitutional vagueness by focusing on the relationship between the victim and the defendant. Whatever ambiguities might arise in other contexts, a stranger to the victim is, according to the state, on notice that his conduct, in circumstances such as proven here, violates § 53-21. We are unpersuaded. The language of § 53-21 manifestly does not make the presence or absence of a prior acquaintanceship an element of the crime of risk of injury. The state’s proffered interpolation, moreover, is patently at odds with numerous cases of impairment of morals involving injurious acts perpetrated on minors by a parent or a known associate. See State v. Smith, supra, 20 (defendant stepgrandparent of victim); State v. Pickering, supra, 58 (defendant father of victim); State v. Hauck, 172 Conn. 140, 141, 374 A.2d 150 (1976) (defendant science teacher of victim); State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971) (defendant resided in home of victim’s family); State v. Anderson, 152 Conn. 196, 197, 205 A.2d 488 (1964) (defendant friend of victim’s father); State v. Dennis, supra, 246 (defendant father of victim).

We therefore conclude that Pickering establishes the governing standard for prosecutions involving likely moral impairment of a minor. We recognize that the victim in this case suffered real injury. Our decision today does not minimize her justifiable feelings of anger and disgust toward the defendant. Under the Pickering test, however, we must conclude that grabbing the waist of a fully clothed minor while uttering a sexually suggestive remark is not the type of lewd conduct that § 58-21 proscribes. Accordingly, the defendant had no reasonable opportunity to know that his conduct was prohibited by the impairment of morals clause of § 53-21.

B

We next consider whether the defendant can be found to have violated that part of § 53-21 which forbids conduct that is likely to injure the health of a minor. We have reviewed only a handful of cases under this provision. In the most recent case, State v. McClary, supra, 234-39, the victim, a six month old girl, suffered brain injury from a violent shaking. In State v. Eason, 192 Conn. 37, 38, 470 A.2d 688 (1984), the victim, a two year old girl, had been severely beaten with a belt. Prior decisions have entailed similar types of blatant physical abuse. State v. Martin, 189 Conn. 1, 6, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983) (child pushed into wall and then to floor); State v. Palozie, 165 Conn. 288, 290-91, 334 A.2d 468 (1973) (child strapped, thrown against chair and head hit against floor). We agree with the defendant that these cases provide an authoritative judicial gloss that limits the type of physical harm prohibited by § 53-21 to instances of deliberate, blatant abuse. Measured by that standard, the defendant’s conduct in this case does not fall within the confines of § 53-21.

Recognizing the difficulties of finding any significant risk of physical injury in this case, the state urges us to conclude that the defendant’s conduct was culpable because it created a cognizable risk of mental injury to the victim. The defendant counters that, under the controlling gloss of McClary, Eason, Martin and Palozie, acts likely to impair only mental health are not independently punishable by the statute. We must therefore decide, as a matter of first impression, whether § 53-21, as written or as construed, prohibits the likely impairment of mental health alone.

At the outset, we note that the defendant in this case was charged under the second part of § 53-21. To have violated the statute, then, the defendant had to have committed acts directly perpetrated on the person of a minor, whether the alleged impairment was mental or physical. Under different circumstances, the state might elect to prosecute under the first part of § 53-21, which proscribes the “deliberate indifference to, acquiesence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . .” State v. Dennis, supra, 250. A defendant need not physically touch a minor in order to violate that provision of § 53-21. State v. Perruccio, supra, 159-60.

Any effort to extrapolate guidelines for the prosecution of persons accused of impairing the mental health of minors is hampered by a trio of factors: The language of § 53-21 provides no tangible criteria; none of our prior cases adds a definitive gloss; and the state has not offered any workable standards. All that is absolutely known is that the irreducible minimum of any prosecution under the second part of § 53-21 is an act directly perpetrated on the person of a minor. State v. Dennis, supra, 250. While such acts are normally prosecuted as threats to physical health; see State v. McClary, supra; State v. Eason, supra; State v. Martin, supra; State v. Palozie, supra; it is of course true that not every act directly perpetrated on a minor will threaten his or her physical health. Some acts might very well cause mental impairment without necessarily endangering the child’s physical well-being. Under an appropriately tailored penal law, the legislature would have the power to proscribe such activity.

Section 53-21, however, is not such a law. Without the aid of prior decisions to lend an authoritative gloss to the potentially limitless language of the statute, any effort to conform § 53-21 to the mandate of due process would necessarily entail a wholesale redrafting of the statute. We decline to undertake this activity, which is within the exclusive province of the legislature. State v. O’Neill, 200 Conn. 268, 288, 511 A.2d 321 (1986); State v. Johns, 184 Conn. 369, 376-77, 439 A.2d 1049 (1981); see also Harris v. State, 457 P.2d 638, 647 (Alaska 1969) (refusing to resurrect by judicial fiat a standardless statute prohibiting “crime[s] against nature”); ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123, 126 (Miss. 1976) (declining to exercise the “legislative function” of revising an unconstitutionally vague obscenity statute). We therefore conclude that the combined gloss of McClary, Eason, Martin and Palozie defines the limits of § 53-21 for the purposes of acts likely to impair the health of a minor.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to vacate the defendant’s conviction under § 53-21.

In this opinion the other justices concurred.

       General Statutes § 53-21 provides: "INJURY OR RISK of injury to, OR impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.’’

       The record reveals that the defendant was also sentenced to a three month term of imprisonment, to be served consecutive to his seven year term under General Statutes § 53-21, for his conviction for contempt of court in violation of General Statutes § 51-33. The defendant, who has been incarcerated during the pendency of this appeal, has not appealed his contempt conviction.

       The defendant also claims that the trial court erred in denying his motion for acquittal for insufficient evidence. Although this claim of error is presented to us as the evidentiary flip side of the void for vagueness challenge, the vagueness claim must logically be reviewed first. In reviewing a claim of insufficient evidence, “our review consists of a two-step process in which we construe the evidence presented at trial in a light most favorable to sustaining the verdict . . . and then determine whether the jury could reasonably have found, ‘ “upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” ’ ” State v. Cavallo, 200 Conn. 664, 673, 513 A.2d 646 (1986). The gist of a vagueness claim, however, is that due process is violated whenever sufficient evidence of guilt is too readily found by a jury that is left to its own discretion without the guidance of definite enforcement standards.
      As an alternative ground for reversal, the defendant argues that the trial court erred in failing to charge the jurors that they had to agree unanimously on whether the defendant violated the “morals” or the “health” clause of General Statutes § 53-21. In addition, he claims that the trial court erred in charging the jury on the statutory alternative of “health” impairment because there was no supporting evidence. We need not address either of these claims in light of our disposition of the constitutional claim of impermissible vagueness.

       In State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632 (1984), we held that, for prosecutions under General Statutes § 53-21, the term “private parts” is synonymous with the definition of “intimate parts” in General Statutes § 53a-65 (8). We thereby recognized the desirability of reconciling the scope of § 53-21 with similar provisions of the penal code. See General Statutes § 53a-2. There is likewise a similarity between the Pickering test and the definition of “sexual contact” in General Statutes § 53a-65 (3). Our construction of § 53-21 is therefore consistent with the general principle that we should interpret statutes, where possible, to create a consistent body of law. See State v. Kozlowski, 199 Conn. 667, 677-78, 509 A.2d 20 (1986).