author: MCDONALD, C. J. NORCOTT, J., KATZ, J.,

text:
    STATE OF CONNECTICUT v. DANIEL WEBB
    (SC 14409)
    McDonald, C. J., and Borden, Norcott, Katz, Palmer, Sullivan and Callahan, Js.

      Argued October 28, 1999
    officially released February 15, 2000

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer and Dennis J. O’Con-

      nor, senior assistant state’s attorneys, for the appel-lee (state).
   Opinion

MCDONALD, C. J.

In State v. Webb, 238 Conn. 389, 680 A.2d 147 (1996), we affirmed the defendant’s conviction and sentence of death for the crime of capital felony. We remanded the case to the trial court, however, for a hearing concerning the validity under the state constitution of lethal injection as a means of execution. We retained jurisdiction. Id., 551. After an evidentiary hearing, the trial court, Fasano, J., denied the defendant’s constitutional challenge to General Statutes § 54-100, which establishes lethal injection as the state’s present method of execution. The defendant appealed from the judgment of the trial court to this court. In the present appeal, we must decide whether lethal injection constitutes cruel and unusual punishment -under the state and federal constitutions. We affirm the judgment of the trial court.

The procedural posture of this case prior to our remand was set forth in State v. Webb, supra, 238 Conn. 392-401. “In June, 1991, the defendant, Daniel Webb, was tried before a jury on charges of capital felony, murder, felony murder, kidnapping in the first degree, criminal attempt to commit sexual assault in the first degree, and criminal possession of a pistol or revolver. The jury returned a verdict of guilty on all counts. In July, 1991, the trial court conducted a separate sentencing hearing, pursuant to General Statutes § 53a-46a, before the same jury. The jury returned a special verdict finding that the state had proved two aggravating factors beyond a reasonable doubt, and that the defendant had not proved a mitigating factor by a preponderance of the evidence. After the trial court, Corrigan, J., rendered its judgment of conviction in accordance with the jury’s verdict, and imposed on the defendant a sentence of death by electrocution, th[e] [defendant’s] appeal followed. . . . We affirm[ed] the defendant’s conviction on all counts. We also affirm[ed] the imposition of the sentence of death.” Id., 394-96.

Subsequent to the defendant’s conviction and sentencing but prior to our decision, the legislature amended § 54-100, changing the method of capital punishment from death by electrocution to death by lethal injection. On July 23,1997, the department of correction (department) approved its lethal injection execution protocol, directive 6.15 (protocol). Because the defendant sought the opportunity to challenge the constitutionality of execution by lethal injection, we remanded the case to the trial court for a hearing as to that issue.

The trial court, Fasano, J., on remand, conducted an evidentiary hearing concerning the constitutionality of the department’s protocol as well as the constitutionality of death by lethal injection, generally. The defendant offered testimony from the following witnesses at the hearing: Peter Matos and Jack Tokozn, deputy commissioners of correction, who were responsible for organizing and assembling the task force that ultimately formulated the protocol; Bret Rayford, a psychologist, who screened department employees who would participate in the procedure; Thomas Macura, a pharmacist, who was responsible for developing the process and selecting the chemical agents used in lethal injection; Edward Blanchette, a physician, who would be responsible for the certification of death subsequent to any execution by lethal injection; and Edward Brunner, an anesthesiologist, who testified to the risks associated with the method of lethal injection dictated by the protocol. The state offered testimony from Jeffrey Gross, an anesthesiologist, who testified regarding the amount of pain to a defendant who is subject to execution by lethal injection under the protocol, the safeguards included in the protocol, and the skill and training necessary successfully to carry out the procedure.

According to Matos, state officials conferred with officials of at least six other states that employed lethal injection. The state ultimately selected a manifold system for the administration of the agents. Although other states utilize a manual process, which requires that each chemical agent be administered individually through separate syringes, the task force selected the manifold system because that system minimized the potential for problems associated with the administration of the agents. The manifold locks the agents in a particular order and, as a result, eliminates the risk of inserting a syringe in an improper sequence. Matos also described the type of catheter selected by the state, which was designed and intended for delivering fluids sequentially and rapidly.

Brunner and Gross testified about each chemical agent prescribed by the protocol, the effect of those agents and the result of introducing those agents in the dosage and order prescribed by the protocol. The first agent, thiopental sodium, typically induces a state of unconsciousness through depression of the central nervous system. The protocol prescribes 2500 milligrams of thiopental sodium. This dosage of thiopental sodium is approximately nine times the typical dosage for surgery for an individual weighing 150 pounds, and would take effect within fifteen to twenty seconds and then dissipate after five to seven minutes. Because the effect of thiopental sodium varies from person to person, there is no known lethal dosage. The second agent, pancuronium bromide, causes skeletal muscle relaxation, in essence, paralysis. The protocol prescribes 100 milligrams of pancuronium bromide. This dosage of pancuronium bromide is approximately ten times the normal dosage and would take effect within two minutes. The third agent, potassium chloride, is intended to cause a decrease in blood pressure, shock, cardiac arrhythmia and complete heart blockage. The protocol prescribes 120 milliequivalent of potassium chloride, a lethal dose, which would stop the heart instantly. Both anesthesiologists concluded that, if properly administered, the combination of agents together with the prescribed dosage would result in a quick, painless death.

The protocol requires the insertion of the intravenous catheter by persons trained to the satisfaction of a Connecticut licensed and practicing physician. See footnote 5 of this opinion. According to Matos, the state intends to employ either emergency medical technicians, paramedics or nurses to insert the intravenous catheter and administer the agents. At a minimum, therefore, those employed by the state previously will have demonstrated or previously will have acquired certification in obtaining intravenous access. Gross testified that the procedure is commonly taught to lay people in advanced life support courses, which many emergency medical technicians and paramedics complete.

After the hearing, the trial court denied the defendant’s state constitutional challenge to Connecticut’s method of execution by lethal injection. The trial court, recognizing that the state constitution does not contain a specific prohibition against cruel and unusual punishment, addressed the defendant’s arguments on due process grounds. Relying on its previous decision in State v. Breton, Superior Court, judicial district of Waterbury, Docket No. CR4-147941 (November 14,1997), the court concluded that the defendant had failed to satisfy his burden of proving § 54-100 unconstitutional. The trial court also rejected the defendant’s other arguments. As to the defendant’s argument, that using or incorporating medical procedures for the purpose of killing inmates is so abhorrent and shocking to the conscience as to constitute a violation of substantive due process, the trial court reasoned that the employment of tested procedures used in the practice of medicine is consistent with the purpose behind the imposition of death by lethal injection, which is to impose death in as humane a manner as possible. The trial court also rejected the defendant’s argument that § 54-100 is unconstitutionally vague on its face because it provides no notice to the inmate as to the specific procedures for carrying out the sentence of death or any opportunity to challenge the method because of the ability of the commissioner of correction to change the procedures of execution. The trial court noted the lack of authority to support the proposition that the legislature constitutionally was required to provide the defendant with any detailed form of notice with respect to the procedures of execution. Finally, the trial court declined to address the defendant’s argument that § 54-100 violates the state’s separation of powers doctrine, reasoning that that claim was beyond the scope of the remand from this court.

On appeal, the defendant argues that execution by lethal injection constitutes cruel and unusual punishment under both the state and federal constitutions because the protocol developed by the commissioner of correction carries an unacceptably high risk that the execution procedure will be “botched.” The defendant argues that there is a high risk that the defendant will experience excruciating pain and a lingering death because the protocol: (1) does not require that the procedures be administered by highly trained medical professionals; (2) does not ensure that a sufficient amount of thiopental sodium will be administered to render the defendant unconscious; (3) does not require that the agents be administered in a timely manner, in the correct order and with sufficient precautions to prevent them from mixing during the injection; (4) does not ensure that proper intravenous connections will be established; (5) does not require that the intravenous lines be flushed to prevent clogging; and (6) does not allow the defendant sufficient time to digest his last meal, thereby increasing the chances that he will choke during the procedure. Furthermore, the defendant maintains that lethal injection offends society’s standards of decency because (1) the legislature adopted the method of lethal injection for economic, rather than humane, reasons; (2) the medical profession opposes lethal injection; and (3) lethal injection offends evolving standards of decency and is inconsistent with human dignity.

The state responds that lethal injection is constitutional because it is the most humane method available for imposing capital punishment. The state further maintains that the defendant’s argument regarding the implementation of the execution process is irrelevant to this court’s determination of the constitutionality of the method utilized by the state. The underlying details of the protocol, the state contends, are assigned to the executive branch. The state further contends that the evidence introduced by the defendant at the evidentiary hearings was overwhelmingly in support of the trial court’s determination that the state’s protocol prescribing lethal injection as the method of capital punishment is constitutional.

Whether the trial court properly concluded that lethal injection does not constitute cruel and unusual punishment is a mixed question of law and fact subject to independent review by this court.' See Campbell v. Wood, 18 F.3d 662, 681 (9th Cir. 1994) (Washington’s method of execution, hanging, ruled constitutional). Although a trial court’s factual findings are customarily subject to a clearly erroneous standard of review, the constitutional implications involved and the nature of the determination in any death penalty case require us to undertake an independent and scrupulous examination of the entire record to ascertain whether the trial court’s conclusions with respect to the constitutionality of the method of execution are supported by substantial evidence. State v. Ross, 230 Conn. 183, 259, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994). This court has plenary review of the trial court’s conclusions of law; State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999); and the ultimate question of the constitutionality of the method of execution. See Fierro v. Gomez, 77 F.3d 301, 306 (9th Cir.), vacated and remanded, 519 U.S. 918, 117 S. Ct. 285, 136 L. Ed. 2d 204 (1996), rev’d on other grounds sub nom. Fierro v. Terhune, 147 F.3d 1158 (9th Cir. 1998) (California’s method of execution statute, lethal gas, ruled unconstitutional). We affirm the trial court’s determination that death by lethal injection does not offend the state constitution. We also conclude that it does not offend the United States constitution.

I

We first address the defendant’s substantive argument that lethal injection likely will result in cruel and unusual punishment in violation of the eighth amendment to the United States constitution. The eighth amendment prohibits governmental imposition of “cruel and unusual punishments”; U.S. Const., amend. VIII; and bars “infliction of unnecessary pain in the execution of the death sentence.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 91 L. Ed. 422 (1947) (plurality opinion). A method of execution is viewed as cruel and unusual punishment under the federal constitution when the procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. Campbell v. Wood, supra, 18 F.3d 683, citing Louisana ex rel. Francis v. Resweber, supra, 464; Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (plurality opinion). When considering the constitutionality of a method of execution, courts must consider whether such method was considered cruel and unusual at the time that the bill of rights was adopted, as well as whether the method is contrary to the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (assessment of method of punishment under eighth amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”). Because lethal injection did not exist as a method of execution when the bill of rights was adopted, we focus solely on the latter portion of the inquiry. See Louisiana ex rel. Francis v. Resweber, supra, 459.

The United States Supreme Court has not decided whether lethal injection violates the eighth amendment’s prohibition against cruel and unusual punishment. That court, however, has addressed the constitutionality of other methods of execution. See In re Kremmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890) (electrocution constitutional); Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345 (1878) (public shooting constitutional). In Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910), the court articulated a framework for addressing the constitutionality of a method of execution: (1) whether the method of execution comported with the contemporary norms and standards of society; (2) whether it offends the dignity of the prisoner and society; (3) whether it inflicted unnecessary physical pain; and (4) whether it inflicted unnecessary psychological suffering. In Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. 459, the court used this framework to address the constitutionality of a second attempt at an electrocution after the first attempt failed to cause the inmate’s death. The court rejected the defendant’s argument that subjecting him to a second electrocution constituted cruel and unusual punishment: “The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution.” Id., 464. “The cruelty against which the [constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” Id. Since deciding Louisiana ex rel. Francis v. Resweber, supra, 459, the United States Supreme Court has not addressed the constitutionality of any method of execution.

Lower federal courts have considered the issue with respect to other means of execution. In Campbell v. Wood, supra, 18 F.3d 662, the Ninth Circuit Court of Appeals addressed, inter alia, the issue of whether execution by hanging violated the eighth amendment because it constituted cruel and unusual punishment. Recognizing the trend among several states to replace hanging with lethal injection, the court nonetheless held that hanging did not constitute cruel and unusual punishment. “We do not consider hanging to be cruel and unusual simply because it causes death, or because there may be some pain associated with death.” Id., 683. The court concluded that execution by hanging, if properly implemented, did not involve the wanton and unnecessary infliction of pain. Id. The court focused upon the safeguards within the state of Washington’s protocol and concluded that, because of those factors, “unconsciousness was likely to be immediate or within a matter of seconds, and that death would follow rapidly thereafter.” Id., 687.

In Fierro v. Gomez, supra, 77 F.3d 301, the Ninth Circuit Court of Appeals addressed the constitutionality of execution by lethal gas. Relying on Campbell v. Wood, supra, 18 F.3d 662, the court focused on whether execution by lethal gas involved the unnecessary and wanton infliction of pain. Fierro v. Gomez, supra, 307. Because of the trial court’s finding that even if the mechanism of execution were implemented properly, there was a substantial risk that inmates would suffer extreme pain for several minutes, the court concluded that execution by lethal gas is cruel and unusual punishment. Id., 308.

This record fails to establish that there is any reason to infer that the protocol will not be administered properly. We focus our inquiry, therefore, on the objective evidence of the pain inherent in execution by lethal injection, and, having done so, we find that the trial court reasonably concluded that lethal injection does not constitute cruel and unusual punishment. Unlike the evidence in Fierro, there is no objective evidence in the present case indicating that unnecessary pain is inherent in execution by lethal injection. On the basis of the testimony introduced regarding the agents utilized pursuant to the protocol and the corresponding dosages, there simply is no reason to believe that the defendant would experience anything more than the insertion of the intravenous catheter followed by unconsciousness. In fact, the expert witnesses of the defendant and the state, both anesthesiologists, concluded that, if properly administered, the combination of agents coupled with the prescribed dosage would result in a quick and painless death. Because it is undisputed that a quick and painless death would result if the agents prescribed pursuant to the protocol were administered properly, we agree with the trial court that there is no cruelty inherent in the mechanism of execution as set forth in the protocol. Although the defendant introduced extensive testimony regarding the consequences associated with the potential for improper administration of the agents, “[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.” Campbell v. Wood, supra, 18 F.3d 687.

Although we conclude that the potential for improper administration of the agents is not relevant in the determination of whether the mechanism of execution is constitutional, we briefly will address the defendant’s arguments regarding that potential. Those arguments center around the potential difficulty associated with the insertion of the intravenous catheter, and the administration and monitoring of the thiopental sodium. Specifically, the defendant argues that the protocol does not require that the personnel be trained adequately and be proficient in the insertion of intravenous catheters, and in the administration and monitoring of thio-pental sodium. As a result, the defendant maintains there is an unacceptably high risk that the agents will not be administered properly. We disagree. The protocol requires the insertion of the intravenous catheter by persons properly trained to the satisfaction of a Connecticut licensed and practicing physician. See footnote 5 of this opinion. The state intends to employ either emergency medical technicians, paramedics, or nurses, all trained to insert the intravenous catheter. The defendant has not offered any evidence to suggest that these persons, possessing the requisite training, would not be capable of inserting an intravenous catheter properly. To the contrary, the testimony established that obtaining intravenous access is a technical skill that, through proper training, becomes routine. Of course, the possibility exists that there could be some difficulty in inserting the catheter, however, we conclude that such a possibility does not render the method cruel and unusual punishment. “On the rare occasion when there is difficulty in locating a vein, more than a single needle insertion may be necessary. This is hardly the cruel and unusual punishment contemplated by the Eighth Amendment.” Hill v. Lockhart, 791 F. Sup. 1388, 1394 (E. D. Ark. 1992). Furthermore, the protocol provides for an alternative intravenous insertion in the right arm as a safeguard in the event that there is a problem with intravenous access in the left arm. See footnote 5 of this opinion.

The defendant also argues that the administration and monitoring of the thiopental sodium, when performed by untrained personnel, leads to an unacceptably high risk that the agents will not be administered properly. The defendant’s claim is premised on the testimony regarding the uncertainty of the appropriate dosage of thiopental sodium required for a medical procedure. Although the testimony indicated the variable dosages of thiopental sodium necessary in a medical setting, the circumstances surrounding an execution, namely the extreme dosage and ultimate objective, are unique to the execution process. Because of this, we cannot agree with the defendant’s argument. According to Macura, more skill in administering the drug is required in the medical setting because of the delicate balance between unconsciousness and death. The circumstances surrounding an execution do not require such a balance.

The defendant further argues that the protocol does not address critical factors in the proper administration of the agents, such as timing and sequence. We disagree. The manifold delivery system adopted by the state ensures proper administration of the agents. In fact, the manifold system was selected specifically to minimize the potential for improper administration. In addition, the catheter selected by the state was designed and intended for delivering fluids sequentially and rapidly.

The defendant’s argument is premised on a series of presumptions: that the personnel will not be trained adequately; that the dosage of thiopental sodium ten times the surgical dosage will not be sufficient to render the inmate unconscious; and that the agents will not be administered in the proper time and sequence. The evidence, however, supports a conclusion that reasonable steps have been taken to eliminate human error. We cannot foreclose the possibility of human error, that always accompanies any human endeavor. We conclude, however, that the agents may be administered correctly and effectively, and that the possibility of a “botched” execution is extremely remote under the protocol. Furthermore, we agree with the court in Campbell v. Wood, supra, 18 F.3d 687, when it stated: “The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.”

Last, the defendant argues that lethal injection is unconstitutional because it offends society’s standards of decency. Other courts have looked at legislative trends as evidence of society’s standards of decency and attitude toward a particular method of execution. Of the thirty-eight states permitting capital punishment, at least thirty-four have adopted lethal injection as a manner of execution. They have done so because it is universally recognized as the most humane method of execution, least apt to cause unnecessary pain. In addition, every court that has addressed this issue has concluded similarly that lethal injection is constitutional. See Woolls v. McCotter, 798 F.2d 695, 698 (5th Cir.), cert. denied, 478 U.S. 1031, 107 S. Ct. 15, 92 L. Ed. 2d 769 (1986); Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3263, 106 L. Ed. 2d 608 (1989); Hill v. Lockhart, supra, 791 F. Sup. 1394; Felder v. Estelle, 588 F. Sup. 664, 674 (S.D. Tex. 1984); State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602 (1995); State v. Deputy, 644 A.2d 411, 421 (Del. Super. 1994); People v. Stewart, 123 Ill. 2d 368, 386, 528 N.E.2d 631 (1988), cert. denied, 489 U.S. 1072, 109 S. Ct. 1356, 103 L. Ed. 2d 824 (1989); State v. Moen, 309 Or. 45, 98-99, 786 P.2d 111 (1990); Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo. 1990). These legislative and judicial determinations are evidence of society’s attitude toward lethal injection. Accordingly, we conclude that this particular method of execution does not offend current standards of decency and, thus, is constitutional under the federal constitution.

II

We turn, therefore, to the defendant’s argument that lethal injection will likely result in cruel and unusual punishment in violation of article first, §§ 8 and 9, of the constitution of Connecticut. Although our state constitution does not expressly prohibit cruel and unusual punishment, this court has held that our due process clauses implicitly prohibit punishment that is cruel and unusual. State v. Ross, supra, 230 Conn. 246. Because “cruel and unusual” punishment is explicitly prohibited under the federal constitution, and we read our due process guarantees to implicitly prohibit such punishment, we adopt the federal standard, of whether the execution creates a substantial risk of the wanton and unnecessary infliction of pain, torture, or lingering death on the subject. “[W]e have frequently relied upon decisions of the United States Supreme Court interpreting the fourth amendment, as well as other amendments to the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). Thus, we will rely on our federal constitutional analysis in part I of this opinion. Because we conclude that lethal injection is constitutional under the federal constitution, we similarly conclude that the method is constitutional under our state constitution.

The judgment is affirmed.

In this opinion BORDEN, PALMER, SULLIVAN and CALLAHAN, Js., concurred.

NORCOTT, J.,

dissenting. I believe that my opposition to the death penalty already has been sufficiently expressed. See State v. Cobb, 251 Conn. 285, 543, 743 A.2d 1 (1999) (Norcott, J., dissenting); State v. Webb, 238 Conn. 389, 566, 680 A.2d 147 (1996) (Norcott, J., dissenting). While my opposition constitutes only a minority position today, I am optimistic that very early in the twenty-first century we will all witness the abolition of this practice by Connecticut as a state and the United States as a country.

Accordingly, I once again dissent in the present case, where the inexorable conclusion to this criminal proceeding will be the execution of the defendant by the state of Connecticut.

KATZ, J.,

dissenting. I continue to believe that the death penalty fails to comport with contemporary standards of decency and thereby violates our state constitution’s prohibition against cruel and unusual punishment. See Corm. Const., art. I, §§ 8 and 9. Accordingly, I would remand this case to the trial court with direction to vacate the penalty of death and to impose a sentence of life imprisonment without the possibility of release. I believe, however, that I have a responsibility to speak out against the death penalty in every case in which this court reaffirms its position that the punishment of death meets contemporary and moral standards of decency.

As Justice Berdon stated so eloquently: “Whether a penalty constitutes cruel and unusual punishment depends in large part upon contemporary standards of decency. Unlike other constitutional precedents, this standard of review evolves and therefore the question must be evaluated in each case. I am confident that eventually both the judicial system and the citizens of this state will reflect back on this day with the same disbelief and sense of outrage that we currently hold in regard to those punishments that were inflicted during the eighteenth and nineteenth centuries in this state. The realization that the penalty of death fails to comport with contemporary standards of decency does not, however, depend upon the passage of time measured by centuries.” State v. Webb, 238 Conn. 389, 552-53, 680 A.2d 147 (1996) (Berdon, J., dissenting).

“Perhaps the most important principle in analyzing cruel and unusual punishment questions is one that is reiterated again and again in the prior opinions of the Court: i.e., the cruel and unusual language must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.

“The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us.” (Internal quotation marks omitted.) Furman v. Georgia, 408 U.S. 238, 329, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring).

“[A]s judges, we cannot eschew our individual responsibility for the death penalty that the court approves today simply because it is a legislative directive. We have a duty, as the final arbiters of the state constitution, to determine whether the punishment of death meets contemporary and moral standards of decency. If a penalty exceeds those bounds, as I believe the death penalty does, we have a constitutional obligation to declare it unconstitutional, just as we would if the legislature provided for punishment by the rack, the screw or the wheel.” State v. Webb, supra, 238 Conn. 554 (Berdon, J., dissenting).

Cruelty has been described as “total activity smashing total passivity.” H. Bedau, “Thinking About the Death Penalty as Cruel and Unusual Punishment,” 18 U.C. Davis L. Rev. 873, 917 (1985). The “power-relationship between two parties,” one of whom, the executioner, is “active, comparatively powerful,” and the other of whom, the condemned, is “passive, comparatively powerless,” reveals the very essence of capital punishment. P. Hallie, Cruelty (1982) p. 34. “We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.” S. Blaustein, “Witness to Another Execution,” Harper’s, May, 1994, pp. 53, 62. I recognize that some methods of execution are worse than others, but none is better. H. Bedau, “Philosophical Perspectives— Imprisonment vs. Death: Does Avoiding Schwarz-schild’s Paradox Lead to ShelefFs Dilemma?” 54 Alb. L. Rev. 481, 483 (1990). Therefore, whether carried out by impalement or electrocution, crucifixion or the gas chamber, firing squad or hanging, lethal injection or some other method yet to be designed, the very quintessence of capital punishment is cruelty. Although lethal injection may not disfigure the body, may not cause any pain, and brings about death within a few minutes, and while the practice of death by lethal injection may not rise to the same level of indignity as some of the other methods of execution, it is no less cruel when viewed in the context of the power relationship previously described. See P. Hallie, supra, p. 34.

I recognize that the notion of another person being executed is offensive only when there is something of value being destroyed and that once a person has been convicted of a ghastly crime, he no longer falls into that category. Nevertheless, society should not have the authority to sustain an institution the nature of which is to destroy its own members. If our status as moral creatures is to survive, the termination of our ability to accomplish a deliberate institutionalized method of execution heads my list of desiderata for this society.

The issue for me is not whether the defendant who has committed such hideous atrocities has the right to life, but whether we as a society have the right to kill. Certainly the defendant did not have that right. But to give this “affirmation of the humanity” of the defendant by treating him more or less the way he treated Diane Gellenbeck is, to me, bizarre. “The death penalty symbolizes unlimited impersonal power over the individual, with dramatically final and irreversible results whenever it is expressed. As long as we choose to hang this moral albatross around our necks, I see no way for us to enjoy, much less help the rest of the world to enjoy, the benefits of a truly human community.” H. Bedau, “A Reply to van den Haag,” in The Death Penalty in America: Current Controversies (H. Bedau ed. 1997) pp. 457, 469.

I respectfully dissent.

       General Statutes § 54-100 provides in relevant part: “(a) The method of inflicting the punishment of death shall be by continuous intravenous injection of a substance or substances in a quantity sufficient to cause death, in accordance with procedures prescribed by the Commissioner of Correction in consultation with the Commissioner of Public Health. . . .”

       Although our remand in State v. Webb, supra, 238 Conn. 389, was limited to a state constitutional issue and accordingly, the trial court did not address any federal constitutional issue, the defendant now argues that execution by lethal injection violates both the state and federal constitutions. The defendant maintains that this court improperly limited the remand to a state constitutional challenge. Notwithstanding our remand, we will address both the defendant’s state and federal constitutional arguments.

       General Statutes § 53a-46a provides in relevant part: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
      “(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) exists. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state. . . .”

       Public Acts 1995, No. 95-16, § 1, which amended § 54-100, provides: “Section 54-100 of the general statutes is repealed and the following is substituted in lieu thereof:
      “The method of inflicting the punishment of death shall be by [electrocution] CONTINUOUS INTRAVENOUS INJECTION OF A SUBSTANCE OR SUBSTANCES IN A QUANTITY SUFFICIENT TO CAUSE DEATH, IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY THE COMMISSIONER OF CORRECTION IN CONSULTATION WITH THE COMMISSIONER OF PUBLIC HEALTH AND ADDICTION SERVICES. The [warden of the Connecticut Correctional Institution, Somers, is directed] COMMISSIONER SHALL DIRECT A WARDEN OF AN APPROPRIATE CORRECTIONAL INSTITUTION to appoint a suitable person to perform the duty of executing sentences of the court requiring the infliction of the death penalty. Such person shall receive, for such duty, such compensation as is determined by the [directors of the Connecticut Correctional Institution, Somers] COMMISSIONER. When any person is sentenced TO DEATH by any court of this state having competent jurisdiction, [to be electrocuted,] he shall, within twenty days after final sentence, be conveyed to [the Connecticut Correctional Institution, Somers,] AN APPROPRIATE CORRECTIONAL INSTITUTION and such punishment shall be inflicted only within the walls of said institution, [in Somers,] within an enclosure to be prepared for that purpose under direction of the warden of [the Connecticut Correctional Institution, Somers, and the board of directors thereof, which] SAID INSTITUTION. SUCH enclosure shall be so constructed as to exclude public view. Besides the warden or deputy warden and such number of [guards] CORRECTION OFFICERS as he thinks necessary, the following persons may be present at the execution, but no others: The sheriff of the county in which the prisoner was tried and convicted, the [board of directors, the] COMMISSIONER, A physician of [the Connecticut Correctional Institution, Somers, the] A CORRECTIONAL INSTITUTION, A clergyman in attendance upon the prisoner and such other adults, as the prisoner may designate, not exceeding three in number, representatives of not more than five newspapers in the county where the crime was committed, and one reporter for each of the daily newspapers published in the city of Hartford.”

       Administrative directive 6.15 of the department of correction provides in relevant part:
      “9. 30 Minutes Prior to the Execution. The following shall be initiated 30 minutes prior to the execution. . . .
      “D. A person or persons, properly trained to the satisfaction of a Connecticut licensed and practicing physician, shall establish intravenous access. A primary intravenous infusion line shall be inserted in the left arm with a line inserted in the right arm as an alternative. . . .
      “11. Execution Procedure. Execution procedures shall be as follows
      “D. . . . Administration of the lethal substance shall entail the administration of three (3) substances in a three (3) step process.

        “1. Step One. The first step shall require the administration of 2,500 milligrams (mg) of Thiopental Sodium (a lethal dose), in 50 ml of clear (without visible precipitate) Sodium Chloride 0.9% solution of an approximate concentration of 50 mg/ml or 5%.
      “2. Step Two. The second step shall require the administration of 100 milligrams (mg) of Pancuronium Bromide (contents of ten [10] 5 ml vials of 2 mg/ml concentration) in 50 ml.
      “3. Step Three. The third and final step shall require the administration of 120 milliequivalent (mEq) of Potassium Chloride (contents of two [2] 30 ml vials of 2 mEq/ml concentration) in 60 ml. . . .”

       The defendant offered the transcript of Brunner’s testimony, which had originally been presented as live testimony during a similar hearing, challenging the constitutionality of execution by lethal injection, in State v. Breton, Superior Court, judicial district of Waterbury, Docket No. CR4-147941 (November 14, 1997), held before the same trial judge.

       The legislative history indicates, inter alia, that the purpose behind the change from electrocution to lethal injection was that lethal injection is more humane. The amendment “would allow for lethal injection and take away electrocution, which is more humane .... There is no fiscal impact and it will be easier to administer and [is] basically a more humane type of treatment. . . 38 S. Proc., Pt. 3,1995 Sess., p. 812, remarks of Senator Thomas F. Upson.

       In Fierro v. Gomez, supra, 77 F.3d 301, the trial court heard evidence from several expert medical witnesses regarding lethal gas inhalation. “The execution records provided information regarding the exact time that certain events occur during the execution process. These events include the time that cyanide is released into the gas chamber, the time that the gas first strikes an inmate’s face, the time that an inmate lapses into apparent unconsciousness . . . and the time of an inmate’s last bodily movement.” Id., 307. The trial court noted that the evidence was probative of the pain inherent in execution by lethal gas because the executions in the cases examined were conducted in accordance with the challenged protocol. Id.

      Tho states that currently authorize lethal injection for execution are: Arizona, Ariz. Rev. Stat. Ann. § 13-704 (West, pocket, part 1998); Arkansas, Ark. Code Ann. § 5-4-617 (Michie 1993); California, Cal. Penal Code § 3604 (Deering 1999); Colorado, Colo. Rev. Stat. Ann. § 16-11-401 (1999); Connecticut, General Statutes § 54-100; Delaware, Del. Code Ann. tit. 11, § 4209 (f) (Michie 1995); Idaho, Idaho Code § 19-2716 (Michie 1997); Illinois, 725 Ill. Comp. Stat. Ann. 5/119-5 (a) (1) (West pocket part 1999); Indiana, Ind. Stat. Ann. § 35-38-6-1 (Michie 1998); Kansas, Kan. Stat. Ann. § 22-4001 (1995); Kentucky, Ky. Rev. Stat. § 431.220 (Lexis Law Publishing pocket part 1998); Louisiana, La. Rev. Stat. Ann. § 15:569 B. (West, 1992); Maryland, Md. Code Ann., Corr. § 3-905 (1999); Mississippi, Miss. Code Ann. 1972 § 99-19-51 (1994); Missouri, Mo. Rev. Stat. § 546.720 (1994); Montana, Mont. Code Ann. § 46-19-103 (1999); Nevada, Nev. Rev Stat. § 176.355 1. (1997); New Hampshire, N.H. Rev. Stat. Ann. § 630:5 XIII. (Michie 1996); New Jersey, N.J. Stat. Ann. § 2C:49-2 (West 1995); New Mexico, N.M. Stat. Ann. § 31-14-11 (Michie 1994); New York, N.Y. Correct. Law § 658 (McKinney pocket part 1999); North Carolina, N.C. Gen. Stat. § 15-187 (Michie 1998); Ohio, Ohio Rev. Code Ann. § 2949.22 (B) (1) (West 1997); Oklahoma, Okla. Stat. Ann. tit. 22 § 1014 (West 1986); Oregon, Or. Rev. Stat. Ann. § 137.473 (1991); Pennsylvania, Pa. Stat. Ann. tit. 61 § 3004 (West 1999); South Carolina, S.C. Code § 24-3-530 (West Sup. 1998); South Dakota, S.D. Codified Laws § 23A-27A-32 (Michie 1998) ; Tennessee, Tenn. Code. Ann. § 40-23-114 (Lexis Law Publishing Sup. 1999) ; Texas, Texas Crim. P. Code Ann. § 43.14 (West 1999); Utah, Utah Code Ann. § 77-18-5.5 (Lexis Law Publishing 1999); Virginia, Va. Code § 53-1-233 (Michie 1998); Washington, Wash. Rev. Code Ann. § 10.95.180 (West pocket part 1999); and Wyoming, Wyo. Stat. Ann. § 7-13-904 (Lexis Law Publishing 1999). The United States government and the United States military also currently authorize lethal iryection for executions. See 28 C.F.R. § 26.3 (4) (1999); State v. Deputy, 644 A.2d 411, 421 n.7 (Del. Super. 1994), citing Army Reg. 190-55, U.S. Army Correctional System: Procedures for Military Executions, para. 6-1 (October 27, 1986).

       In State v. Ross, supra, 230 Conn. 246-47, this court concluded that the due process guarantees contained in our state consitution impliedly prohibit punishment that is “cruel and unusual” because “[p]rior to the adoption of the state constitution in 1818, the common law in Connecticut recognized that the state did not have unlimited authority to inflict punishment for the commission of a crime.”

       Indeed, during his tenure on the United States Supreme Court, Justice Blackmun eventually acknowledged that the death penalty was imposed in an arbitrary, capricious and racist manner, and was therefore unconstitutional. He stated: “From this day forward, I no longer shall tinker with the machinery of death.” Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting). Similarly, after stepping down from the Supreme Court, Justice Powell’s views on the subject evolved such that he came to believe that capital punishment should be abolished. Four years after his retirement from the United States Supreme Court, Justice Powell was quoted as saying: “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind That Came Too Late,” N.Y. Times, June 23, 1994, p. A23, col. 1.

       As Justice Norcott pointed out at oral argument, the problem with this assumption, of course, is that the only person who could tell us if this actually is true is no longer able to do so.

       E. van den Haag, “The Death Penalty Once More,” 18 U.C. Davis L. Rev. 957, 972 (1985).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARINE MIDLAND BANK v. PATRICK M. AHERN ET AL.
    (SC 16103)
    Borden, Norcott, Katz, Vertefeuille and DiPentima, Js.
    Argued January 21
    officially released February 15, 2000

      Charles D. Ray, with whom, on the brief, was John F. Carberry, for the appellants (defendants).

      Thomas G. Wolff, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This is a certified appeal from the Appellate Court involving the foreclosure of a judgment lien. Marine Midland Bank v. Ahern, 51 Conn. App. 790, 724 A.2d 537 (1999). During the proceedings in the trial court, that court issued an order that is the subject matter of the appeal. See footnote 1 of this opinion. Subsequent to the filing of the appeal in this court, however, the trial court set new law days and title to the property has vested in the plaintiff by virtue of the judgment of strict foreclosure of the lien. The plaintiff specifically concedes, moreover, that the order at issue in the appeal was limited in duration and, by virtue of that limit and by virtue of the judgment of foreclosure and passing of the law days, is no longer in effect. The appeal, therefore, is moot.

The appeal is dismissed.

       We granted certification to appeal from the judgment of the Appellate Court limited to the following issue: “Whether the Appellate Court properly concluded that the defendants were not aggrieved by a trial court order prohibiting a nonparty general partnership from disposing of any of its funds, where the general partners of the subject partnership are two corporations, where the defendants are the sole owners of one of those corporations, and where the order was requested to prevent the defendants from disbursing funds from the partnership to themselves?” Marine Midland Bank v. Ahern, 248 Conn. 921, 733 A.2d 845 (1999).


author: SULLIVAN, J. MCDONALD, C. J.,

text:
    CAROLE BURNHAM v. KARL AND GELB, P.C., ET AL.
    (SC 16050)
    McDonald, C. J., and Norcott, Sullivan, Callahan and Mihalakos, Js.

      Argued October 27, 1999
    officially released February 15, 2000

      James S. Brewer, with whom, on the brief, was William O’Shea, for the appellant (plaintiff).

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellees (defendants).

      Jonathan L. Gould filed a brief for the Connecticut Employment Lawyers Association as amicus curiae.
   Opinion

SULLIVAN, J.

In this certified appeal, the plaintiff, Carole Burnham, appeals from the judgment of the Appellate Court affirming the trial court’s judgment rendered following the granting of the defendants’ motion for summary judgment. This appeal requires us to consider whether the Appellate Court properly concluded that the plaintiff was precluded from bringing a cause of action for wrongful discharge against her former employer. We affirm the Appellate Court’s judgment.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The named defendant, Karl and Gelb, P.C., is a dental practice located in West Hartford that employs two periodontists, the defendants Edward Karl and David Gelb. On July 6, 1993, the plaintiff . . . was hired by the defendants as an office manager. On November 5,1993, the plaintiff filed an anonymous complaint with the Connecticut State Dental Association (dental association) alleging that the defendants engaged in unsanitary and unhealthy practices in violation of the federal Occupational Safety and Health Act [of 1970] ... 29 U.S.C. § 651 et seq. On November 22, 1993, the plaintiff was terminated by the defendants and thereafter filed a complaint with the Hartford office of the Occupational Safety and Health Administration alleging that she was terminated by the defendants in retaliation for her complaint to the dental association. The plaintiffs complaint was administratively closed in February, 1994, due to the plaintiffs lack of response’ to correspondence from the Hartford office of the Occupational Safety and Health Administration.

“On January 24, 1995, the plaintiff filed a three count amended complaint alleging breach of contract, negligent misrepresentation and wrongful termination. On September 23,1996, the defendants moved for summary judgment. On March 7, 1997, the trial court granted the defendants’ motion for summary judgment as to each count of the plaintiffs amended complaint.” Burnham v. Karl & Gelb, P.C., 50 Conn. App. 385, 386-87, 717 A.2d 811 (1998). Additional facts will be provided as necessary.

The plaintiff subsequently appealed from the trial court’s judgment to the Appellate Court. In her appeal to the Appellate Court, the plaintiff claimed that the “trial court improperly granted summary judgment in favor of the defendants as to her claims (1) of breach of contract, (2) of negligent misrepresentation and (3) of wrongful discharge.” Id., 386. The Appellate Court affirmed the judgment of the trial court with respect to each claim. See generally id., 386-97.

We granted the plaintiffs petition for certification limited to the following issues relating to the plaintiffs wrongful discharge claim: First, “[w]hether the Appellate Court erred in concluding that the plaintiffs attempted use of violations of the federal Occupational Safety and Health Act (act) to support a claim for wrongful termination failed as a matter of law because the existence of a statutory remedy under the act precluded the plaintiffs claim of wrongful discharge based on a violation of public policy?” Burnham v. Karl & Gelb, P.C., 247 Conn. 944, 723 A.2d 320 (1998). Second, “[w]hether the Appellate Court erred in concluding that an administrative remedy existed under the act?” Id. Third, “[wjhether the Appellate Court erred in concluding that no material fact in dispute existed as to whether the plaintiff exhausted her supposed administrative remedy with the Occupational Safety and Health Administration?” Id. And fourth, “[wjhether the Appellate Court erred in concluding that the plaintiff did not have a cause of action for wrongful discharge against her employer for refusing to work under conditions that pose a substantial risk of death, disease or physical harm and that are not contemplated within the scope of the plaintiffs duties?” Id., 944-45. We answer each of the certified questions in the negative and, accordingly, affirm the judgment of the Appellate Court.

The standard of review applicable to all four certified issues is well settled. “In reviewing a trial court’s ruling on a motion for summary judgment when the material facts are undisputed, we must decide whether the trial court erred in concluding that the moving party was entitled to judgment as a matter of law. . . . [0]ur review of the ruling of the trial court is plenary, and we must determine whether the trial court’s conclusions are legally and logically correct and find support in the facts appearing in the record.” (Citations omitted.) Covelli v. Commissioner of Revenue Services, 235 Conn. 539, 544, 668 A.2d 699 (1995), vacated on other grounds, 518 U.S. 1031, 116 S. Ct. 2577, 135 L. Ed. 2d 1092 (1996).

I

The plaintiffs first claim is that the Appellate Court improperly concluded that she was precluded as a matter of law from bringing a common-law cause of action for wrongful discharge based on a violation of public policy embodied in General Statutes (Rev. to 1993) § 31-51m. The Appellate Court concluded that the plaintiffs claim that she was terminated by the defendants for reporting violations of the act could not support a common-law cause of action for wrongful discharge based on the existence of a statutory remedy available to her under 29 U.S.C. § 660 (c). Burnham v. Karl & Gelb, P.C., supra, 50 Conn. App. 395-96.

We conclude that the plaintiff was precluded from bringing a cause of action for wrongful discharge for three reasons. First, we agree with the trial court that the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the public policy embodied in § 31-51m. Second, even if we were to conclude that the plaintiffs termination violated the public policy embodied in § 31-51m, the plaintiffs common-law wrongful discharge claim would be precluded by § 31-51m (c), which provides a statutory remedy for employer conduct prohibited under § 31-51m (b). Third, we agree with the Appellate Court that the plaintiffs common-law cause of action for wrongful discharge is precluded because she had a remedy for her employer’s conduct under 29 U.S.C. § 660 (c).

In Sheets v. Teddy’s Frosted Food, Inc., 179 Conn. 471, 427 A.2d 385 (1980), we recognized that it is a “general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will.” Id., 474; see, e.g., Somers v. Cooley Chevrolet, Co., 146 Conn. 627, 629, 153 A.2d 426 (1959); Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955). In Sheets, however, this court “recognized a common law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original; internal quotation marks omitted.) Carbone v. Atlantic Richfield Co., 204 Conn. 460, 466-67, 528 A.2d 1137 (1987), quoting Sheets v. Teddy's Frosted Food, Inc., supra, 475.

In interpreting this exception, “we note our adherence to the principle that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one .... We are mindful that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.” (Citation omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 79, 700 A.2d 655 (1997).

In Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 501 A.2d 1223 (1985), the Appellate Court recognized a limitation on the public policy exception to the at-will doctrine. The court in Atkins concluded: “A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.” (Emphasis added; internal quotation marks omitted.) Id., 648.

In this case, the plaintiff alleged that she was terminated for reporting the defendants’ unsafe dental practices that violated the act. The plaintiff relied upon, inter alia, the public policy against retaliatory discharges embodied in § 31-51m, to support her claim of wrongful termination. Section 31-51m (b) prohibits employers from retaliating against employees who report “a violation or a suspected violation of any state or federal law . . . toa public body . . . .’’(Emphasis added.) General Statutes (Rev. to 1993) § 31-51m (b). Section 31-51m defines “public body” in relevant part as “any public agency, as defined in subsection (a) of [General Statutes (Rev. to 1993) §] l-18a . . . .” General Statutes (Rev. to 1993) § 31-51m (a) (4). Section 1-18a, in turn, defines public agency as “any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.” General Statutes (Rev. to 1993) § l-18a (a).

The plaintiff alleges that she was terminated for reporting violations of the act to the dental association. The trial court concluded that the “[djental [association does not ... fit within the definition of ‘public body’ contained in [§ 31-51m].” The plaintiff has not argued, nor is there any evidence in the record, that the dental association is a public body as defined in § 31-51m (a) (4). Therefore, because the plaintiff failed to present evidence that created a material issue of fact as to whether her termination violated the provisions of § 31-51m, we conclude that the plaintiff cannot use the public policy embodied therein to support her claim of wrongful discharge based on a violation of public policy.

Alternatively, even if we were to assume that the plaintiffs termination violated the public policy embodied in § 31-51m, we would still conclude that the plaintiff’s claim is precluded by virtue of the existence of a statutory remedy under that statute. Section 31-51m (c) provides a statutory remedy for employees who are harmed by employer conduct in violation of § 31-51m (b). Section 31-51m (c) provides in relevant part: “Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation . . . .” General Statutes (Rev. to 1993) § 31-51m (c). The existence of this statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of § 31-51 (b). See Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn. App. 648 (plaintiff can bring wrongful discharge claim only when he or she is “otherwise without remedy” [internal quotation marks omitted]).

Finally, the plaintiffs claim is precluded for a third reason. Title 29 of the United States Code, § 660 (c) (2), provides a statutory administrative remedy for employees, such as the plaintiff, who allege that they were discharged in retaliation for reporting violations of the act. That statute provides that “an employee who believes that he has been discharged or otherwise discriminated against” by any employer for reporting violations of the act may file a complaint with the United States secretary of labor (secretary of labor). 29 U.S.C. § 660 (c) (2) (1994). If, after conducting an investigation, the secretary of labor determines that the employee was discharged for reporting such violations, the secretary of labor shall bring an action in the United States District Court against such employer. 29 U.S.C. § 660 (c) (2) (1994). The United States District Court has jurisdiction in such actions to “order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.” 29 U.S.C. § 660 (c) (2) (1994). Therefore, we conclude that, because the plaintiff had a remedy under 29 U.S.C. § 660 (c) (2) for the retaliatory discharge she had alleged, she was not “otherwise without [a] remedy”; (internal quotation marks omitted) Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn. App. 648; and her common-law cause of action for wrongful discharge is precluded. Several other courts also have concluded that the existence of a remedy under 29 U.S.C. § 660 (c) (2) precludes a common-law cause of action based on the public policy exception to the at-will doctrine of employment law. E.g., Miles v. Martin Marietta Corp., 861 F. Sup. 73, 74 (D. Colo. 1994) (applying Colorado law); Braun v. Kelsey-Hayes Co., 635 F. Sup. 75, 79-80 (E.D. Pa. 1986) (applying Pennsylvania law); Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 352-53, 563 P.2d 1205 (1977). But see, e.g., Sorge v. Wright’s Knitwear Corp., 832 F. Sup. 118, 121 (E.D. Pa. 1993) (Pennsylvania common-law action for wrongful termination based on violation of public policy is not precluded by 29 U.S.C. § 660 [c]). See generally annot., Liability for Retaliation Against At-Will Employee for Public Complaints or Efforts Relating to Health or Safety, 75 A.L.R.4th 13 (1990).

The plaintiff argues, however, that, because her remedy under 29 U.S.C. § 660 (c) (2) would not be equivalent to her common-law wrongful discharge remedy were we to recognize such an action, her statutory remedy does not provide her with an adequate remedy. For example, the plaintiff notes that, while she would have the right to prosecute her own claim if she were allowed to bring a common-law cause of action for wrongful discharge, she is dependent upon the secretary of labor to determine that her case is worthy of prosecution under 29 U.S.C. § 660 (c) (2).

We agree that the plaintiffs statutory remedy under 29 U.S.C. § 660 (c) (2) is not equivalent to a common-law cause of action for wrongful discharge. There is nothing in Atkins v. Bridgeport Hydraulic Co., supra, 5 Conn. App. 643, however, to suggest that a statutory remedy must be equivalent to a potential common-law cause of action for wrongful termination in order for the common-law cause of action to be precluded. Rather, the court in Atkins relied upon Wehr v. Burroughs Corp., 438 F. Sup. 1052 (E.D. Pa. 1977), aff'd in relevant part, 619 F.2d 276 (3d Cir. 1980), in which the court wisely stated that, in interpreting the public policy exception, “sound policy dictates that the statutory remedial scheme be adhered to since we can presume that the legislature would have provided additional relief in the statute if it thought it necessary.” Id., 1056; see also Hunt v. Prior, 236 Conn. 421, 434, 673 A.2d 514 (1996) (“[i]t is not the plaintiffs preference for a particular remedy that determines whether the remedy ... is adequate . . . and an administrative remedy, in order to be adequate, need not comport with the plaintiffs’ opinion of what a perfect remedy would be” [citation omitted; internal quotation marks omitted]).

Furthermore, Atkins is fully consistent with our statements in Parsons v. United Technologies Corp., supra, 243 Conn. 66, “that the public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . [and] that courts should not lightly intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.” (Citation omitted; internal quotation marks omitted.) Id., 79. Thus, we conclude that the plaintiffs common-law cause of action for wrongful discharge is precluded because she had a remedy under 29 U.S.C. § 660 (c) for her alleged retaliatory termination.

II

The plaintiffs second claim is that the Appellate Court improperly concluded that an administrative remedy existed under 29 U.S.C. § 660 (c) for her wrongful termination claim. We disagree.

As we previously discussed in part I of this opinion, 29 U.S.C. § 660 (c) (2) establishes a procedure by which an employee can lodge a complaint with the secretary of labor alleging that he or she was discriminated against for filing any complaint about an employer’s violation of the act. If, after conducting an investigation, the secretary of labor determines that the employer has violated the antiretaliatory discharge provision of 29 U.S.C. § 660 (c), the secretary of labor is required to pursue judicial remedies on behalf of the employee. 29 U.S.C. § 660 (c) (2) (1994).

Many courts have concluded that 29 U.S.C. § 660 (c) (2) provides a remedy for an employee who is terminated in retaliation for filing a complaint about an employer’s alleged violation of the act. E.g., Miles v. Martin Marietta Corp., supra, 861 F. Sup. 74; Braun v. Kelsey-Hayes Co., supra, 635 F. Sup. 80; Walsh v. Consolidated Freightways, Inc., supra, 278 Or. 351-52. Even the court in Sorge v. Wright’s Knitwear Corp., supra, 832 F. Sup. 118, which held that a plaintiffs common-law action for wrongful discharge is not precluded by 29 U.S.C. § 660 (c) (2), acknowledged that 29 U.S.C. § 660 (c) (2) provides a “statutory remedy.” Id., 121. We agree that “[t]here is no doubt that ... 29 U.S.C. § 660 (c) provides a statutory remedy”; Holmes v, Schneider Power Corp., 628 F. Sup. 937, 938 (W.D. Pa.), aff'd, 806 F.2d 252 (3d Cir. 1986); for an employee under such circumstances.

Ill

The plaintiffs third claim is that the Appellate Court erred in concluding that no material factual dispute existed as to whether the plaintiff exhausted her administrative remedy with the Occupational Safety and Health Administration (administration). We disagree.

We note as a preliminary matter that, because we concluded in part I of this opinion that the plaintiffs common-law wrongful discharge action is precluded by virtue of the existence of a statutory remedy, we reach the issue of whether the plaintiff exhausted her administrative remedies as an alternative basis upon which to affirm the judgment. Therefore, even if we were to hold that the trial court improperly concluded that there was no material fact in dispute as to whether the plaintiff had failed to exhaust her administrative remedies, the plaintiff still would not have been able to maintain a common-law cause of action for wrongful discharge because of our conclusion in part I of this opinion.

The following additional facts are necessary to resolve this claim. The record reveals that the complaint that the plaintiff filed with the administration was received on or about November 22,1993. The trial court concluded that the plaintiffs complaint was closed “due to the plaintiffs failure to respond to [administration correspondence].” The plaintiff claims, however, that “any lack of response [to correspondence from the administration] was due to the plaintiffs change of address . . . .” Nevertheless, the plaintiff does not claim that she informed the administration of her address change. The record also reveals that the administration previously had informed the plaintiff that it was her “responsibility to advise the [administration] of any changes in [her] address . . . .”

The plaintiff argues, however, that, “at the very least a material factual dispute exists as to whether [the] plaintiff exhausted her supposed administrative remedy with [the administration].” The plaintiff supports her argument by asserting that “numerous correspondence existfed] between [the administration] and the plaintiffs counsel during February 1994 and thereafter which asserted [the] plaintiffs claims of retaliatory discharge.” (Emphasis added.) A review of the record, however, reveals no correspondence from the plaintiff to the administration during the month of February, 1994, when the administration determined that it would close the plaintiffs case based on the plaintiffs failure to respond to administration correspondence.

The record does, however, reveal a letter from the administration to the plaintiffs attorney that provides a detailed time line of actions taken by the administration with respect to the plaintiffs complaint. The plaintiff has not contested the accuracy of this time line. The time line indicates that, on February 14,1994, the administration sent a letter to the plaintiff advising her that her case would be closed unless she returned, no later than February 18,1994, a copy of a complaint statement that had been mailed to her on January 24, 1994. The plaintiff did not return the statement by February 18, 1994. The plaintiff did, however, return a copy of the statement on March 15, 1994, and inquired as to the status of her case on March 30,1994, at which time she was informed of the reasons for the administration’s decision to close her case. Approximately twenty days later, on April 20,1994, the plaintiff filed an action in the Superior Court alleging, inter alia, wrongful discharge.

When a plaintiff has “available to him administrative remedies that could have afforded him meaningful relief . . . [h]is failure to [properly pursue those remedies] forecloses his access to judicial relief, because it deprivefs] the trial court of jurisdiction to hear his complaint.” Sullivan v. Board of Police Commissioners, 196 Conn. 208, 217-18, 491 A.2d 1096 (1985). In addition, when a “plaintiff fail[s] to follow the administrative route prescribed by the legislature for his claim”; Osborne v. Rocklen Automotive Parts & Service, Inc., 4 Conn. App. 423, 425, 494 A.2d 622 (1985); the plaintiff fails to exhaust his or her administrative remedies. A plaintiffs preference “for a remedy at [an] earlier stage of the proceedings is of no moment when he has not exhausted other available administrative remedies.” Johnson v. Statewide Grievance Committee, 248 Conn. 87, 102, 726 A.2d 1154 (1999).

In this case, the plaintiff may have obtained meaningful relief had she exhausted her remedy with the administration. Instead of following the prescribed administrative route, however, the plaintiff attempted to avail herself of judicial action. We conclude that, by not timely responding to the administrative agency charged with investigating her complaint, the plaintiff failed to exhaust her administrative remedies. Therefore, the trial court properly concluded that no material fact in dispute existed as to whether the plaintiff had exhausted her administrative remedy with the administration.

IV

The plaintiffs final claim is that the Appellate Court erred in concluding that she did not have a cause of action for wrongful discharge against the defendants “for refusing to work under conditions that pose a substantial risk of death, disease or physical harm and that are not contemplated within the scope of the [plaintiffs] duties.” The plaintiff broadly asserts that the Appellate Court improperly concluded that she did not have a cause of action for wrongful discharge under the circumstances of this case.

The defendants argue that this court should not address this issue because this claim was never presented either to the Appellate Court or the trial court. The defendants assert that the plaintiffs claim before both the trial court and the Appellate Court was that she could maintain a cause of action for wrongful discharge on the basis of a purported retaliatory discharge, not on the basis of any refusal to work under allegedly unsafe working conditions. We agree with the defendants.

The plaintiff notes in her brief to this court that General Statutes § 31-49 mandates that “[i]t shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work . . . .” Before the trial court, however, the plaintiff never relied on this statute in support of her wrongful discharge claim. See footnote 3 of this opinion. Moreover, neither the plaintiffs amended complaint nor the trial court’s memorandum of decision on the defendants’ motion for summary judgment refers to any claim by the plaintiff that she was discharged for refusing to work under unsafe working conditions. Furthermore, the plaintiff conceded at oral argument that her claim that she was discharged for refusing to work under unsafe conditions was “not raised as a legal argument” before the trial court. Therefore, we conclude that the plaintiff did not claim in the trial court that she was discharged for refusing to work under unsafe working conditions.

“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at trial). . . . [BJecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court. . . . Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court are not properly before appellate tribunal) . . . .” (Citations omitted; internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 133, 733 A.2d 817 (1999). “We will not promote a Kafkaesque academic test by which [a trial judge] may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 22 n.13, 633 A.2d 716 (1993). Therefore, we decline to review this claim because it was not raised at trial.

The judgment of the Appellate Court is affirmed.

In this opinion NORCOTT, CALLAHAN and MIHA-LAKOS, Js., concurred.

MCDONALD, C. J.,

dissenting. I disagree with the majority’s conclusion that the plaintiffs common-law wrongful discharge claim is precluded because she had administrative remedies available under federal law; 29 U.S.C. § 660 (c) (2); for the defendants’ allegedly retaliatory termination of her employment. The majority concludes that the plaintiffs common-law wrongful discharge claim is prohibited because 29 U.S.C. § 660 (c) (2) provides an adequate remedy for employees who allege that they were discharged in retaliation for reporting conduct that is prohibited under the Occupational Safety and Health Act (OSHA) of 1970. 29 U.S.C. § 651 et seq.

In Sheets v. Teddy’s Frosted Food, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980), we recognized a common-law cause of action in tort for the discharge of an at-will employee “if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” More recently, this court concluded that “claims brought pursuant to the public policy limitation on the at-will employment doctrine can be predicated on the violation of public policy expressed in a federal statute.” Faulkner v. United Technologies Corp., 240 Conn. 576, 585-86, 693 A.2d 293 (1997).

The federal courts have interpreted Connecticut law to preclude a common-law wrongful discharge claim only when an adequate administrative remedy existed. See McCarthy v. Dept. of Mental Health, 55 F. Sup. 2d 110, 117 (D. Conn. 1999) (common-law remedy precluded where adequate statutory remedy available); Bennett v. Beiersdorf 889 F. Sup. 46, 49 (D. Conn. 1995) (common-law remedy precluded where sufficient statutory remedy available). Because the federal statutory remedy in the present case provides an inadequate remedy giving little justice to the plaintiff, this action should not be barred. Other jurisdictions have agreed with this view. See Flenker v. Willamette Industries, Inc., 266 Kan. 198, 967 P.2d 295, 300-303 (1998) (common-law remedy permitted because remedy under OSHA inadequate); D’Angelo v. Gardner, 107 Nev. 704, 719-22, 819 P.2d 206 (1991) (common-law remedy permitted because remedy under Nevada OSHA not comprehensive).

As the majority acknowledges, the plaintiffs remedy under 29 U.S.C. § 660 (c) (2) is not equivalent to a common-law wrongful discharge cause of action. The federal statute provides that any employee who believes that he has been discharged or otherwise discriminated against by any person for reporting violations of OSHA may file a complaint with the secretary of labor. If, after conducting an investigation, the secretary of labor determines that the employee was discharged for reporting such violations, the secretary shall bring an action in United States District Court against the employer. The decision to bring an action is in the sole discretion of the secretary of labor.

Because the secretary has broad discretion in determining whether to bring an action, there is a real possibility that a retaliatory discharge may go unre-dressed. “[T]he Secretary’s discretion is a significant limitation on the employee’s right of redress. What would, in a common-law tort action, be the decision of the plaintiff and plaintiffs counsel is, under [29 U.S.C. § 660 (c) (2)], the decision of a government employee. The concerns of the government employee could range from budget constraints to political pressure.” Flenker v. Willamette Industries, Inc., supra, 967 P.2d 301. Because of the many factors the secretary must consider before bringing an action, it may be that OSIIA’s important public policy would not be vindicated in this case. This would not occur if the plaintiff were allowed to bring an action and enforce that policy. I would also note that there is nothing in the language of 29 U.S.C. § 660 (c) to support the conclusion that the administrative remedy in 29 U.S.C. § 660 (c) is the exclusive remedy.

I accordingly respectfully dissent.

       General Statutes (Rev. to 1993) § 31-51m provides in relevant part: “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or aperson acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action. . . . The provisions of this subsection shall not be applicable when the employee knows that such report is false.
      “(c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court lor the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. . . . Any employee found to have knowingly made a false report shall be subject to disciplinary action by his employer up to and including dismissal. ...” (Emphasis added.)

       Title 29 of the United States Code, § 660 (c) provides: “(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.
      “(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary [of Labor] alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
      “(3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection.” 29 U.S.C. § 660 (c) (1994).

       The plaintiffs amended complaint alleged that “in retaliation for [the plaintiffs report of] the defendants’ violations, the plaintiff was terminated on November 22,1993, in gross violation of public policy, as embodied in the Connecticut common law of wrongful discharge, [General Statutes §§] 31-51, 31-51m, 31-51q, and 46a-60.” Because §§ 31-51, 31-51q and 46a-60 are not relevant to the certified issues before this court, the public policy against retaliatory discharges embodied in § 31-51m is the only public policy at issue in this appeal.

       The Appellate Court, in reviewing the trial court’s conclusion that the plaintiff could not support her wrongful discharge claim on the basis that her termination by the defendants violated § 31-5lm, concluded: “Although the plaintiff relies on § 31-51m to support her cause of action for public policy wrongful discharge, she has not brought a separate claim under that statute. The trial court, therefore, improperly concluded that the plaintiff failed to satisiy the statutory requirements of a § 31-5lm claim (i.e., a report made to a ‘public body’ . . .).” Burnham v. Karl & Gelb, P.C., supra, 50 Conn. App. 394.
      We agree with the Appellate Court that the plaintiff did not bring a cause of action directly under § 31-5lm, but, rather, brought a cause of action for wrongful discharge based on the public policy embodied in § 31-51m. Because the plaintiff based her cause of action for wrongful discharge on the public policy embodied in § 31-5 lm, however, she was required to present evidence that created a material issue of fact with respect to whether the defendants’ conduct violated § 31-51m. Therefore, it was notimproper forthe trial court to consider whether the plaintiff had alleged that the defendants’ conduct violated § 31-51m in considering whether the plaintiff had supported her cause of action for wrongful discharge based on a violation of the public policy embodied in that statute. Because the Appellate Court did not find that the plaintiff s cause of action for wrongful discharge was supported by § 31-51m, however, it was harmless for the Appellate Court to have concluded that the trial court’s conclusion was improper.

       Unlike § 31-51m (b), which requires the employee complaint be made to a “public body,” the federal statute contains no such limitation. See 29 U.S.C. § 660 (c) (1) (1994) (“[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this [act]”); see also Donovan v. R.D. Andersen Construction Co., 552 F. Sup. 249, 252-53 (D. Kan. 1982) (employee’s communications with media regarding conditions of workplace are protected under 29 U.S.C. § 660 [c]). Therefore, the plaintiffs complaint to the dental association regarding the defendants’ alleged violations of the act brought her within the antiretaliatory protections of 29 U.S.C. § 660 (c).

       Although not cited by either party, it should be noted that the plaintiff also was precluded from bringing a common-law cause of action for wrongful discharge because General Statutes § 31-379 provided the plaintiff with a statutory administrative remedy under state law nearly identical to that of 29 U.S.C. § 660 (c). Section 31-379 provides: “Discrimination against employee filing complaint, (a) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.
      “(b) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this section may, within thirty days after such violation occurs, file a complaint with the [labor] commissioner alleging such discrimination. Upon receipt of such complaint the commissioner shall cause such investigation to be made as he deems appropriate. If upon such investigation the commissioner determines that the provisions of this subsection have been violated he shall bring an action in the superior court for the judicial district of Hartford against such person. In any such action the court shall have jurisdiction, for cause shown, to restrain violations of subsection (a) of this section and to order all appropriate relief including rehiring or reinst atement of the employee to his former position with back pay.

        “(c) Within ninety days of the receipt of a complaint filed under this section the commissioner shall notify the complainant and the employer of his determination of such complaint.”
      The legislature made technical amendments to § 31-379 in 1993 and 1995 that are not relevant to this appeal.

       We note that the certified issue with respect to this claim is “[wjhether the Appellate Court erred in concluding that no material fact in dispute existed as to whether the plaintiff exhausted her supposed administrative remedy with the Occupational Safety and Health Administration?” (Emphasis added.) Burnham v. Karl & Gelb, P.C., supra, 247 Conn. 944. The Appellate Court did not reach this issue in its opinion, however, presumably because it concluded that the plaintiffs cause of action was precluded by virtue of the existence of a statutory remedy. See generally Burnham v. Karl & Gelb, P.C., supra, 50 Conn. App. 391-97. Therefore, we will review whether the trial court properly concluded that there was no material fact in dispute as to whether the defendant had failed to exhaust her administrative remedies.

       It should be noted that the administration was required to notify the plaintiff, within ninety days of receiving her complaint, of its determination following the investigation of her claim. 29 U.S.C. § 660 (c) (3) (1994); see footnote 2 of this opinion. Therefore, because the administration received the plaintiffs complaint on November 22, 1993, the administration was required to inform the plaintiff of its determination by February 20, 1994.

       We note, however, that even if the plaintiff had raised this claim, a question would remain as to whether, under the facts of this case, the plaintiffs statutory remedy afforded by 29 U. S. C. § 660 (c) (2) would preclude a common-law cause of action for wrongful discharge against the defendants for refusing to work under conditions that pose a substantial risk of death, disease or physical harm and that were not contemplated within the scope of the plaintiffs duties.