author: Shea, J.

text:
    Benjamin I. Tedesco v. City of Stamford et al.
    (13813)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 10
    decision released June 26, 1990

      Christopher R. Bello, with whom were Robert S. Bello and, on the brief, Lawrence M. Lapine and Thomas M. Cassone, for the appellant (plaintiff).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Mary E. Sommer, for the appellees (named defendant et al.).
   Shea, J.

The plaintiff, Benjamin Tedesco, brought a complaint that included a 42 U.S.C. § 1983 claim for damages against the defendant, the city of Stamford, for violation of the plaintiffs procedural due process rights in terminating him from his employment. The trial court found in favor of the plaintiff and awarded him damages and attorney’s fees pursuant to § 1983. The defendant appealed the judgment to the Appellate Court, claiming that the trial court erred in concluding that the plaintiff’s amended complaint stated a cause of action under § 1983. The Appellate Court, in Tedesco v. Stamford, 20 Conn. App. 51, 563 A.2d 1046 (1989), held that the complaint did not support a § 1983 cause of action because it failed to allege that any deprivation that had occurred was attributable to a municipal governmental policy and, therefore, ordered the judgment to be set aside and the case remanded with direction to render judgment for the defendant. We granted certification limited to the issue of whether “the Appellate Court erred in setting aside the judgment for the plaintiff and in directing judgment for the defendants because the complaint failed to allege that the violation óf his constitutional right relied upon was attributable to the operation of a municipal government policy, ordinance, regulation or officially adopted and promulgated decision.” We reverse the judgment of the Appellate Court, and remand the case for further proceedings.

Although the facts are sufficiently stated in the Appellate Court’s opinion, we will summarize those facts pertinent to the disposition of this appeal. On September 11, 1980, while working as a “Laborer 1” in the sanitation department of the city of Stamford, the plaintiff suffered a torn rotator cuff injury to his right shoulder and underwent two surgical operations. While recovering from the second operation, the plaintiff was notified by the city of Stamford that his employment was terminated. On December 7, 1981, the plaintiff filed a grievance with the Teamsters Local Union No. 145 (union). City officials and members of the union, representing the plaintiffs interests, held meetings on December 7 and 10, 1981, to discuss the plaintiffs grievance. At both meetings, the city officials denied the plaintiff any relief. Dominic Lamberti, temporary business agent of the union, was among those present at the meetings, and he represented the plaintiffs interest. Lamberti recommended to the union that it not pursue the plaintiffs grievance to the Connecticut board of mediation and arbitration because it was his opinion that the plaintiff would not be successful.

Thereafter, the plaintiff, through private counsel, made a number of attempts to arrange a hearing with the city regarding his discharge. The city denied the plaintiffs request on the ground that the union was the exclusive bargaining agent for the plaintiff. On January 19, 1982, the plaintiff, pursuant to § 740.1 of the charter of the city of Stamford, sent a written appeal to the Stamford director of personnel, requesting a hearing before the personnel appeals board (board). The plaintiffs request was denied.

The plaintiff brought the present action against the city of Stamford and the union by a complaint dated August 31,1982. The first count of the amended complaint was directed against the city for the alleged failure of the board to afford the plaintiff a hearing. *6On January 21,1987, the union filed a motion to stay the proceedings to allow the union and the city to arbitrate the plaintiffs grievance before the board of mediation and arbitration, which the trial court, Lewis, J., granted on January 26,1987. Following a hearing on May 14, 1987, the board of mediation and arbitration issued its award, which converted the plaintiffs termination to a suspension without payand ordered the plaintiff to be reinstated to the position of a laborer “on the condition that prior to his reinstatement he be examined by a mutually agreed upon physician who certifies that the grievant is physically able to perform the job.” Prior to trial in the present case, in a separate proceeding, the union sought to confirm the arbitration award, but the trial court, Cioffi, J., denied the motion on the ground that the arbitration proceeding was untimely.

The jury was sworn and evidence began in this case on April 22,1988. After several days of legal argument, the court, Cioffi, J., declared a mistrial. Both the defendant and the plaintiff filed motions for summary-judgment, which were denied. On July 14, 1988, at a second trial, testimony began on the first count of the plaintiffs amended complaint before the court, Cioffi, J., without a jury. The court rendered its oral decision on the first count, awarding the plaintiff damages and attorney’s fees pursuant to 42 U.S.C. § 1983. Later, the court filed its written decision, declaring that the first count of the plaintiffs complaint stated a cause of action for “violations of both federal and state constitutional rights as well as rights embodied in 42 U.S.C. § 1983.” The court further held that the plaintiff was entitled to a pretermination as well as a post-termination hearing with respect to his discharge and awarded him compensatory damages and attorney’s fees pursuant to § 1983.

From this judgment, the defendant appealed to the Appellate Court, challenging, inter alia, the trial court’s conclusion that the first count of the complaint stated a cause of action against the city under § 1983. The Appellate Court held that the complaint did not “support a § 1983 cause of action because it failed even to imply, let alone affirmatively allege, that any deprivation that occurred was attributable to the operation of a municipal governmental policy, ordinance, regulation, or officially adopted and promulgated decision.” Tedesco v. Stamford, supra, 57. The court further concluded that the complaint was devoid of any facts that would support a recovery on the alternative ground that the plaintiff had suffered a constitutional deprivation pursuant to governmental custom, even though such custom had not received formal approval.

The plaintiff contends that the Appellate Court should have considered whether the city was misled or prejudiced by the plaintiff’s failure to allege that his constitutional rights were violated as the result of a municipal policy or custom. The plaintiff maintains that the Appellate Court did not consider that the city had failed to object to the evidence introduced at trial establishing the existence in Stamford of the policy regarding employee terminations that had resulted in a violation of his constitutional rights. He contends also that the city was not prejudiced or misled by any evidence introduced on that subject. The plaintiff argues, therefore, that any variance between the complaint and the proof was immaterial.

To state a cause of action under § 1983, a plaintiff must allege that a deprivation of federal rights has occurred under color of any statute, ordinance, regulation, custom or usage. 42 U.S.C. § 1983. “[T]he touchstone of [a] § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution . . . .” Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). “[Mjunicipal liability under § 1983 attaches where— and only where—a deliberate choice to follow a course of action is made from among various alternatives” by city policymakers. Pembaur v. Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). In addition, § 1983 also authorizes suit “for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell v. Department of Social Services, supra, 690-91. Therefore, the Appellate Court properly held that to state a valid cause of action under § 1983, the plaintiff’s complaint must allege a policy or custom that resulted in a deprivation of a constitutional right.

The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike, however, is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. “[I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found.” Morehouse v. Throckmorton, 72 Conn. 449, 453, 44 A. 747 (1899). “Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.” Gargan v. Harris, 90 Conn. 188, 191, 96 A. 940 (1916). We have previously applied this principle of aider by verdict or judgment to cure the absence of an essential allegation in a complaint. Wall v. Toomey, 52 Conn. 35, 39 (1884); see Gargan v. Harris, supra.

Our rules of practice are designed “to have all formal and technical objections made known as early as practicable, so that the plaintiff may amend or proceed anew, and the parties may, as expeditiously and inexpensively as possible, reach and settle their controversy upon its merits.” Donaghue v. Gaffy, 53 Conn. 43, 52 (1885). “The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under our rules in the trial court.” Fuessenich v. DiNardo, 195 Conn. 144, 149, 487 A.2d 514 (1985).

Although a judgment ordinarily cures pleading defects, it does not remedy a lack of sufficient evidence to prove all of the essential elements of a plaintiff’s cause of action. In this case, however, it was undisputed that the city had a policy of refusing to grant posttermination hearings, as provided in §§ 740.1 and 740.2 of the Stamford city charter, to union members on the ground that the grievance procedure set forth in the collective bargaining agreement was their exclusive remedy. The city personnel director testified that the policy of the personnel appeals board was to deny hearings to discharged employees like the plaintiff. He also testified that no pretermination hearing procedures had been established and no such hearings took place before discharge of an employee. During the trial, the court expressly noted that this witness had testified “that he’s aware of the policy of the Personnel Appeals Board and that the policy of the Personnel Appeals Board is [that] they would not give hearings.” Thus, despite the absence of any allegation in the complaint that the denial of a hearing, the gravamen of the claimed constitutional violation, was pursuant to a policy or custom of the city, it is clear that this element of his cause of action was proved by the plaintiff.

The Appellate Court relied upon several cases in which this court has declared that “the right of a plaintiff to recover is limited to the allegations of his complaint,” that “[a] plaintiff may not allege one cause of action and recover upon another,” and that “[f]acts found but not averred cannot be made the basis for a recovery.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); see also Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977). These pronouncements relate to the requirement that a pleading must provide adequate notice of the facts claimed and the issues to be tried. Whether a complaint furnishes such notice, however, is a fundamentally different question from whether it fails to state a cause of action because of the omission of an essential allegation, a deficiency that should be raised before trial. Afterwards, such a pleading defect cannot be a basis for setting aside a judgment unless it has materially prejudiced the defendant.

“Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant.” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223-24 n.16, 477 A.2d 988 (1984). The first count of the plaintiffs amended complaint alleged that “the [board’s] decision and action, in failing to hear the Plaintiff’s appeal, in failing to exercise its jurisdiction, and in failing to afford the Plaintiff a hearing . . . is in violation of the established employment practices of the City and it denies the Plaintiff due process of law . . . said action [and] decision of the Board is thus contrary to law in that it violates [the] Plaintiff’s rights under the United States Constitution, the Constitution of the State of Connecticut . . . . ” It is clear from the record that the plaintiff’s amended complaint did not explicitly state that his constitutional rights were violated because of a municipal policy. A careful review of the record and transcripts, however, reveals that the defendant had sufficient notice that the plaintiff was asserting a § 1983 cause of action and any variance between the pleadings and proof was immaterial.

On April 29,1988, during the first trial, the defendant’s counsel argued to the court that the plaintiff should be precluded from presenting evidence on whether it had violated the plaintiffs constitutional rights in failing to afford the plaintiff a pretermination hearing, because such evidence was outside the scope of the pleadings. In so arguing, the defendant’s counsel stated: “I think if the Court is going to entertain a belated amendment that this is a [§] 1983 action. I think [I should be able to assert a defense]. . . . [A]s I understand the law he has not pleaded a [§] 1983 claim.” The court, responding to the defendant’s counsel and referring to the first count of the plaintiff’s amended complaint, stated: ‘T think he’s already pled in [§] 1983 and in [§] 1988 because he’s pled that you have violated federal law and you failed under the pleadings to ask him to make it more specific.” The court held, therefore, two and one-half months prior to the second trial, that the plaintiff’s first count set forth a § 1983 cause of action against the defendant. We note that the defendant did not then argue that the first count of the plaintiff’s amended complaint did not state a cause of action under § 1983 because it failed to allege that the violation of the plaintiff’s constitutional rights was attributable to a municipal policy. The defendant, therefore, had notice that the plaintiff’s amended complaint alleged a cause of action under § 1983 in April, 1988, two and one-half months prior to the second trial.

In addition, on May 27,1988, prior to the commencement of the second trial, the defendant filed a motion for summary judgment accompanied by a forty-two page memorandum of law. Although a portion of the defendant’s memorandum was devoted to the reasons why the first count of the plaintiff’s amended complaint failed to state a cause of action under § 1983, there was no reference to the plaintiff’s failure to allege that his constitutional deprivation was the result of a municipal policy. The focus of the defendant’s argument was that the first count failed to cite § 1983 and to allege that the defendant had violated the plaintiffs procedural due process rights by failing to afford the plaintiff a pretermination hearing.

Since the record thus establishes that the defendant had adequate notice of the facts claimed and the issue to be tried, the only question that remains is whether the judgment against the defendant should be set aside because of defects in the plaintiffs pleading of his cause of action. We have, however, stated that “[t]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance.” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 224 n.16. “A variance is a departure of the proof from the facts as alleged. Not every variance, however, is a fatal one since immaterial variances are disregarded under our practice. Practice Book § [178] .... Only material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment. . . .” Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969); Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987); Fuessenich v. DiNardo, supra, 151-52; O'Connor v. Dory Corporation, 174 Conn. 65, 68, 381 A.2d 559 (1977).

During the trial, the city did not object to the introduction of testimony elicited by the plaintiffs counsel from its personnel director concerning the city’s policies regarding pretermination and posttermination proceedings on the ground that the evidence was beyond the scope of the pleadings. Specifically, no objection was made when the director testified that a provision in the city charter had required him to promulgate regulations to afford employees notice prior to termination, but that no regulations were in effect in 1981, as the charter provided, requiring the city to give notice prior to termination. In fact, when the plaintiff asked what the city’s policy was regarding termination of injured employees, the city’s counsel injected: “Your honor, if I could, please. It becomes a little bit confusing at this point. If we’re on the [§] 1983 cause of action, I don’t object to the question. If the testimony is to carry over to any other counts other than the [§] 1983 cause of action, then I do object because it’s relevant [sic].” In addition, no objection was raised when the personnel director testified that the personnel appeals board had a policy of denying posttermination hearings to employees who were members of the union subject to a collective bargaining agreement with the city.

If the defendant had timely objected to the evidence introduced at trial concerning an established municipal policy, the plaintiff might have been permitted to amend his complaint and any prejudice could have been cured by a request for a continuance. “Where a case has been litigated wholly upon the merits a party is not permitted after judgment to take advantage of defects in procedure which, had attention been called to them at the trial, could readily have been amended.” Meyers v. Arm, 126 Conn. 579, 582, 13 A.2d 507 (1940). Therefore, any variance between the pleadings and proof at trial was clearly waived by the defendant’s failure to object to the evidence. See Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987).

Notably, the defendant does not claim that it was prejudiced by the plaintiff’s failure to allege in his complaint that he was deprived of his constitutional rights as the result of a municipal policy. Nor does the defendant contend that it was surprised, misled or that it would have prepared its defense in a different manner had it known that the plaintiff was pursuing a cause of action under § 1983. In the present circumstances, any prejudice that might have resulted was minimal, because the defendant had notice that the plaintiff was pursuing a cause of action under § 1983 in April, 1988, approximately two and one-half months before the second trial began and the defendant failed to ask for a continuance.

We conclude that there was no material variance between the pleadings and proof. The defendant had sufficient notice that the plaintiff was pursuing a cause of action under 42 U.S.C. § 1983 to prepare its defense and was not misled or surprised by the plaintiff’s failure to allege specifically that his constitutional rights were violated as the result of a municipal policy. The defendant’s failure to object to the introduction of evidence concerning the city’s policies and its failure to claim any prejudice further supports this conclusion.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       Title 42 of the United States Code, § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

       The first count of the plaintiffs complaint, which is subtitled “As to the Defendant City of Stamford,” named as defendants the city of Stamford, the city’s personnel appeals board (board) and James Rosecrans, the cochairman of the board. The Appellate Court viewed each of these defendants to be subsumed as defendants under the blanket concept of the “city” because the plaintiff’s complaint failed to allege that Rosecrans, in his individual capacity, had violated the plaintiff’s due process rights. Tedesco v. Stamford, 20 Conn. App. 51, 52 n.1, 563 A.2d 1046 (1989). We, therefore, will follow the Appellate Court and consider all these defendants as falling under the concept “city.”

       Section 740.1 of the Stamford city charter provides: “Wherever used in this Chapter, the word ‘employee’ shall mean all employees and officers of the City of Stamford, except elected officials and those persons appointed by the Mayor to serve at his pleasure. Any municipal employee may be suspended, demoted in rank or grade or discharged by the appropriate superior upon written notice specifically setting forth reasons. Notice in writing of such action shall be reported to the Personnel Director immediately. If such municipal employee intends to appeal the action, he shall notify, in writing, the Personnel Director and the Personnel Appeals Board of his intention within five working days of the date of such suspension or demotion. Within a reasonable time, which shall not exceed thirty (30) days of receipt of notification, the Board shall hold a hearing at which the employee may be represented by counsel. Said hearings shall be open or closed at the option of the employee.”

       The second count of the complaint, directed against the plaintiffs union for failing to prosecute his grievance before the Connecticut board of mediation and arbitration, and the third count, directed at the city for refusing to permit the plaintiff to pursue the collective bargaining agreement grievance procedures in his own behalf, were dismissed by the trial court, and their dismissal has not been challenged on appeal. Similarly, the plaintiff has not raised on appeal the failure of the trial court to render judgment on the fourth count of his complaint, which the defendants claimed had not been properly added by amendment.

       The plaintiff, Benjamin Tedesco, died on January SO, 1988, and the court granted permission to substitute his executrix as plaintiff. We note, however, that the plaintiff failed to amend the complaint accordingly.
      The trial court found that the plaintiffs action survived his death and the defendant does not contest this finding. '

       On appeal to the Appellate Court, the defendant raised three additional claims: (1) whether the trial court erred in denying the defendant’s motion for summary judgment and in determining that the plaintiff was deprived of due process because the decision of the board of mediation and arbitration was untimely and was not entitled to preclusive effect; (2) whether the trial court erred in awarding compensatory damages to the plaintiff solely against the city since the court found that the plaintiff was never able to return to his job as a laborer with the city; and (3) whether the court erred in awarding attorney’s fees under 42 U.S.C. § 1983 solely against the city. The Appellate Court did not address these claims in view of its conclusion that judgment should be directed for the defendant because the plaintiffs amended complaint did not set out a cause of action under § 1983. Since these grounds of appeal have not been addressed by the Appellate Court, our reversal of its judgment requires that we remand this case to that court for further proceedings.

         After the trial court had rendered its oral decision on July 19, 1988, in favor of the plaintiff, the defendant took a lengthy exception to the court’s judgment. The defendant, however, did not contest the trial court’s ruling that the first count alleged a cause of action under 42 U.S.C. § 1983 on the ground that the plaintiff had failed to allege a municipal policy. The first time the defendant claimed that the plaintiffs amended complaint did not state a cause of action under § 1983 because it failed to allege that the plaintiff had been deprived of his constitutional rights as the result of a municipal policy was when its brief was filed with the Appellate Court.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    The Welch Group, Inc. v. Creative Drywall, Inc.
    (13844)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 10
    decision released June 26, 1990

      Thomas G. Librizzi, with whom, on the brief, was Mary A. Glassman, for the appellant (plaintiff).

      James N. Royster, with whom, on the brief, was Karen W. Francolini, for the appellee (defendant).
   Covello, J.

This is an appeal from a judgment that denied the plaintiffs application for an injunction restraining the defendant from proceeding with arbitration. The parties disagreed as to whether their dispute was arbitrable. The sole issue presented is whether the arbitrability of the dispute was to be determined by the arbitrator or by the trial court. We conclude that arbitrability, absent the parties’ clear agreement to the contrary, is a factual question to be determined by the trial court. Therefore, we reverse the judgment of the trial court and remand the matter for further proceedings.

Examination of the record discloses the following factual and procedural history that is not in dispute. On February 15,1989, the plaintiff, The Welch Group, Inc., signed a contract with the defendant, Creative Drywall, Inc., whereby the defendant was to perform certain services for the plaintiff in connection with a construction project known as Bigelow Commons, Phase II, in Enfield. The parties’ agreement incorporated by reference the terms of an earlier agreement between the plaintiff and Bigelow Construction Corporation, the general contractor for the project.

The incorporated text contained two paragraphs concerning disputes. The first of such paragraphs stated: “All claims, disputes and other matters in question . . . arising from or relating to this Agreement or breach thereof shall be decided by any court having jurisdiction thereof. . . -” The second paragraph provided: “All claims, disputes and other matters in question not involving more than the sum of One Hundred Thousand Dollars ($100,000) arising out of, or relating to, this Agreement or the breach thereof . . . shall be decided by arbitration . . . unless the parties mutually agree otherwise. ...”

On May 9, 1989, the defendant filed eight separate demands for arbitration with the American Arbitration Association claiming in each instance that: “It is owed money for base contract work and for numerous separate items of extra work. . . . The amount of money involved in this demand is less than $100,000.” The plaintiff filed the instant action claiming: (1) that the disputed amount for “base contract work” was $367,198.22; (2) that the disputed amount for “extra work” was $355,891.21; and (3) that the matter was therefore not subject to arbitration since the claims were in excess of $100,000.

On September 11,1989, following a contested hearing, the trial court concluded that the threshold issue of the arbitrability of this dispute was to be determined by the arbitrator. The trial court therefore rendered judgment denying the plaintiffs application for an injunction. The plaintiff appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

“Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also.” Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967). “The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as ‘all questions in dispute and all claims arising out of the contract or ‘any dispute that cannot be adjudicated.’ ” Board of Education v. Frey, 174 Conn. 578, 581, 392 A.2d 466 (1978).

Further, “[t]he ‘positive assurance’ test of arbitrability ... is the law in this state. . . . ‘Under the positive assurance test “. . . [a]n order to arbitrate the particular [dispute] should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” ’ Board of Education v. Frey, supra, 582.” (Emphasis in original.) John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488-89, 439 A.2d 416 (1981).

The defendant relying on what it characterizes as the “broad terms” of the arbitration clause, asks us to focus on the language “[a]ll claims, disputes and other matters in question . . . arising out of, or relating to, this Agreement or the breach thereof . . . shall be decided by arbitration.” The defendant argues that this language is nearly identical to the “broad terms” specifically identified in Board of Education v. Frey, supra, and that under the “positive assurance test,” it is entitled to a construction of the contract in favor of a determination of arbitrability by the arbitrator. We do not agree for two reasons.

First, the defendant’s characterization of this paragraph as containing the “broad terms” found in Board of Education v. Frey, supra, overlooks the limiting or qualifying language contained in the same sentence, i.e., “not involving more than One Hundred Thousand Dollars ($100,000).” Second, the defendant’s argument does not address the unqualified language of Paragraph 18.1 that “[a]ll claims, disputes and other matters in question between the parties to this Agreement arising from or relating to this Agreement or the breach thereof shall be decided by any court having jurisdiction thereof ” (Emphasis added.) Thus, when viewed in its totality, the contract expresses the intent that all claims and disputes are to be decided in the first instance by a court, subject to a limited exception for those matters in dispute that are less than $100,000.

We conclude that the trial court should have determined the issue of the arbitrability of this dispute. We therefore remand this case for an evidentiary hearing to determine whether the dispute involved separate claims each less than $100,000 or one large claim in excess of $100,000 that has been divided into smaller parts for the purpose of meeting the arbitration threshold.

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

In this opinion the other justices concurred.

       The full text of the two provisions here in issue are as follows:
      “18.1 All claims, disputes and other matters in question between parties to this Agreement arising from or relating to this Agreement or the breach thereof shall be decided by any court having jurisdiction thereof. All such claims, disputes and other matters in question (including without limitation, any claims, disputes, and matters in question which are initially referred to the Architect in accordance with Article 2.2.12 of the General Conditions) shall be aggregated for trial in a single lawsuit. . . .
      “18.2 All claims, disputes and other matters in question not involving more than the sum of One Hundred Thousand Dollars ($100,000) arising out of, or relating to, this Agreement or the breach thereof, except with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This Agreement to arbitrate shall be specifically enforceable under prevailing arbitration law. Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. The award rendered by the arbitrator shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Unless otherwise agreed in writing, the Subcontractor shall carry on the Work and maintain the Date of Substantial Completion during any arbitration proceedings, and the Contractor shall continue to make payments in accordance with the Agreement. All claims which are related to or dependent upon each other, shall be heard by the same arbitrator even though the parties are not the same unless a specific contract prohibits such consolidation. A single arbitrator, selected in accordance with the Construction Industry Rules, shall be used to arbitrate all claims, disputes, and questions subject to arbitration under this Article.”


author: Glass, J.

text:
    Nadine O. Monroe v. Daniel B. Horwitch
    (13831)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 11
    decision released June 26, 1990

      Nadine 0. Monroe, pro se, the appellant (plaintiff).

      Gregory A. Benoit, for the appellee (defendant).

      Wesley W. Horton, Robert M. Shields, Jr., and Jeffrey A. Hoberman filed a brief for the Connecticut Bar Association as amicus curiae.
   Glass, J.

The plaintiff, Nadine 0. Monroe, commenced this action in the Superior Court for the judicial district of New London by filing a “Complaint/Presentment” against the defendant, Daniel B. Horwitch, who is the statewide bar counsel. In the presentment portion of the plaintiffs action, she sought to present the defendant to the court for discipline. In her complaint, the plaintiff alleged that the defendant had denied grievance complainants “due process and equal protection of the law” by failing to enforce time limits for the processing of grievance complaints. In addition, she alleged that the defendant had unconstitutionally exercised “judicial powers of a judge” by dismissing complaints, issuing reprimands to lawyers and deciding which complaints should be acted upon by the court. The remaining portion of the plaintiffs complaint sought a declaratory judgment that the dismissal of complaints and the issuing of reprimands by the defendant and/or the statewide grievance committee was an unconstitutional exercise of judicial discretion and power. See General Statutes § 51-90 et seq.

The defendant moved to dismiss the “Complaint/Presentmenf ’ claiming that the court lacked subject matter jurisdiction regarding the presentment portion of the complaint because the plaintiff could not directly request the court to discipline an attorney, and because the plaintiff lacked standing to bring the presentment. With respect to the declaratory judgment portion of the plaintiff’s action, the defendant also argued that the court lacked subject matter jurisdiction because the plaintiff had failed to meet the requirements imposed by Practice Book § 390.

On October 30,1989, after oral argument, the court granted the defendant’s motion to dismiss on the grounds that the plaintiff did not have standing and had failed to follow the grievance procedure as set forth in General Statutes § 51-90e. The plaintiff has now appealed that ruling to this court, arguing: (1) that the trial court, by dismissing her pro se complaint/presentment on the ground that a private party cannot file a grievance against an attorney in the Superior Court, denied her due process of law and equal protection of the law as guaranteed by the United States and Connecticut constitutions; (2) that the trial court should not have ruled that she needed standing to file a complaint/presentment in the Superior Court; (3) that the judiciary has the inherent and exclusive jurisdiction to regulate and to discipline attorneys; and (4) that the trial court should have ruled that the statutes establishing the grievance procedure in this state are unconstitutional. Because we agree with the trial court that the plaintiff cannot directly request the court to discipline an attorney, and that she lacks standing to bring the allegations in her “Complaint/Presentment,” we hold that the trial court properly granted the defendant’s motion to dismiss.

I

The plaintiff is a private citizen who is attempting to act as a representative of persons who she claims are dissatisfied with the statewide grievance committee’s handling of their complaints. The plaintiff herself has not filed a grievance complaint against an attorney since 1985. While we laud the plaintiff’s concern for assuring that all attorneys in Connecticut conduct themselves in accordance with applicable ethical standards, she has not, under our long established doctrine of standing, presented a justiciable controversy before this court.

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a ‘personal stake in the outcome of the controversy’; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); Baker v. Carr, supra, 204; provides the requisite assurance of ‘concrete adverseness’ and diligent advocacy.” Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981). “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. See Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).” Christ-Janer v. A. F. Conte & Co., 8 Conn. App. 83, 90, 511 A.2d 1017 (1986).

We conclude that the plaintiff has not established a colorable claim of direct injury. She is simply a member of the general public who has not demonstrated how she was harmed in a unique fashion by the present structure and functioning of the statewide grievance process. We therefore hold that the trial court correctly concluded that it was without subject matter jurisdiction to hear the plaintiff’s “Complaint/Presentment.”

II

Furthermore, we hold that the trial court correctly ruled that the plaintiff could not directly present an attorney to the Superior Court for discipline, but rather was required to follow the grievance procedure as set forth in § 51-90e. The plaintiff argues, however, that § 51-90e confers upon her the right to file a presentment against an attorney directly in the Superior Court because it provides in part: “Any person may file a written complaint alleging attorney misconduct.” The plaintiff, however, ignores the remaining portion of § 51-90e that states: “A complaint against an attorney shall be filed with the state-wide bar counsel.” (Emphasis added.) The use of the word “shall” connotes that the requirement is mandatory rather than permissive. Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986). The statute is clear and unambiguous, and therefore is not subject to modification by means of construction. Hayes v. Smith, 194 Conn. 52, 57-58, 480 A.2d 425 (1984). Thus, the trial court correctly ruled that the plaintiff could not directly present an attorney to the Superior Court for discipline.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 51-90c. state-wide bar counsel, (a) The judges of the superior court shall appoint an attorney to act as state-wide bar counsel, who shall serve full-time, and such number of attorneys to act as assistant bar counsel as are necessary, for a term of one year commencing July first. Any vacancy in the position of state-wide bar counsel or assistant bar counsel shall be filled by the executive committee of the superior court which shall appoint an attorney for the unexpired portion of the term. Compensation of the state-wide bar counsel and assistant bar counsel shall be established by, and paid from funds appropriated to, the judicial department.
      “(b) In addition to any other powers and duties set forth in sections 51-90 to 51-91b, inclusive, or by rule of the court, the state-wide bar counsel shall investigate and prosecute complaints involving the violation by any person of any provision of section 51-88.”

       “[Practice Book] Sec. 390. [declaratory judgments] conditions
      “The court will not render declaratory judgments upon the complaint of any person:
      “(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
      “(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
      “(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
      “(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       “[General Statutes] Sec. 51-90e. piling of complaint alleging attorney misconduct, referral to grievance panel, (a) Any person may file a written complaint alleging attorney misconduct. A grievance panel may, on its own motion, initiate and file a written complaint alleging attorney misconduct. A complaint against an attorney shall be filed with the state-wide bar counsel. Within five working days of the receipt of a complaint the state-wide bar counsel shall:
      “(1) Forward the complaint to the appropriate grievance panel as determined under rules of court; and
      “(2) Notify the complainant and the respondent, by certified mail, return receipt requested, of the panel to which the complaint was forwarded. The notification to the respondent shall be accompanied by a copy of the complaint.
      “(b) The respondent shall have the right to respond within ten days of receipt of notification to the grievance panel to which the complaint has been referred.
      “(c) The state-wide bar counsel shall keep a record of all complaints filed with him. The complainant and the respondent shall notify the state-wide bar counsel of any change of address or telephone number during the pendency of the proceedings on the complaint.
      “(d) If for good cause shown, a grievance panel declines, or is unable pursuant to sections 51-90 to 51-91b, inclusive, to investigate a complaint referred to the panel, such panel shall forthwith return the complaint to the state-wide bar counsel to be referred by him immediately to another panel. The state-wide bar counsel shall give notice of such referral to the complainant and the respondent by certified mail, return receipt requested.”


author: Peters, C. J.

text:
    Concerned Citizens of Sterling, Inc., et al. v. Connecticut Siting Council et al.
    (13920)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued May 4
    decision released June 26, 1990

      Kathleen Elder gill, for the appellants (plaintiffs).

      Phyllis E. Lemell, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (named defendant).

      Alan M. Kosloff, with whom, on the brief, was Suzanne M. Batchelor, for the appellee (defendant Exeter Energy Limited Partnership).
   Peters, C. J.

This administrative appeal principally challenges the statutory and constitutional propriety of the procedures underlying the decision of the defendant Connecticut Siting Council (Council) to grant a certificate of environmental compatibility and public need to the defendant Exeter Energy Limited Partnership (Exeter). The trial court, after a hearing, rejected the plaintiffs’ substantive, procedural, constitutional and evidentiary challenges to the Council’s decision and dismissed the plaintiffs’ appeal. The plaintiffs filed a further appeal to the Appellate Court, which we transferred to this court in accordance with Practice Book § 4023. We affirm the trial court's dismissal of the plaintiffs’ appeal.

The essential facts are undisputed. Exeter proposes to build a plant that will burn waste tires in order to generate electricity and a number of other marketable byproducts. The department of public utility control has approved a twenty-five year contract for the sale of the electricity to Connecticut Light and Power Company. In accordance with General Statutes §§ 16-50k and 16-50p, Exeter applied to the Council for a certificate of environmental compatibility and public need to affirm the propriety of the proposed location of Exeter’s plant in Sterling.

Exeter applied for certification on July 31,1987, and gave public notice of its application in the Norwich Bulletin on July 30 and 31, 1987. The Norwich Bulletin is a newspaper of general circulation in the municipality of Sterling, where the facility is proposed to be located. Exeter served a copy of its application on each person, agency, commission, and municipal body specified in General Statutes § 16-50Í (b). The Norwich Bulletin published notices on September 15 and 30, 1987, that the Council had scheduled a public hearing on Exeter’s application for November 18,1987. The Council provided mailed notice of the public hearing to those listed in § 16-501. Public hearings were held in Sterling on November 18 and 19, 1987. Additional notices of subsequent public hearings, held on December 23, 1987, and February 9,1988, were published in the Norwich Bulletin on December 2, 1987, and in the Providence Journal on December 7, 1987.

The location of Exeter’s proposed facility in Sterling is approximately two miles from the Rhode Island border, and about five miles from the Scituate Reservoir watershed, which provides water for 65 percent of the population of Rhode Island. A number of Rhode Island residents, including some of the present plaintiffs, were allowed to intervene and ultimately were accorded party status.

Although some of the plaintiffs requested additional time to prepare and to be heard, the Council denied all requests for further hearings beyond February 9, 1988, and refused to defer its announced schedule for its decision on the application. The Council’s denial of further continuances was premised in part on its statutory obligation to rule on Exeter’s application by May, 1988.

The Council issued Exeter the certificate that it sought on May 6, 1988. The Council made extensive findings of fact to support its conclusions that there was a public need for the electricity that would be produced by the facility and that the site proposed for the facility would not have a significant deleterious effect on the health and safety of Connecticut and Rhode Island residents. In summarizing its environmental findings, the Council stated that “the effects associated with the construction and operation of the facility, including effects on the natural environment; ecological balance; public health and safety; scenic; historic and recreation values; forests and parks; air and water purity; and fish and wildlife are not significant either alone or cumulatively with other effects, are not in conflict with the policies of the state concerning such effects, and not sufficient reason to deny the application, and therefore, the Council will issue a Certificate for the Exeter waste tires to energy facility.”

The plaintiffs’ administrative appeal to the Superior Court mounted a broad gauged attack on the Council’s decision in favor of Exeter. The trial court, despite expressed reservations about whether some of the plaintiffs had demonstrated the prerequisite aggrievement to pursue an administrative appeal, considered all of the issues on their merits and ruled in favor of the defendants. It concluded that the voluminous record of the proceedings before the Council contained substantial evidence to support the Council’s detailed findings and opinion. It rejected the plaintiffs’ statutory and constitutional contentions about the adequacy of the notices published with regard to Exeter’s application. Finally, it determined that the Council had not substantially impaired or prejudiced the plaintiffs’ rights to cross-examine adverse witnesses or challenge expert findings. The trial court accordingly dismissed the plaintiffs’ appeal.

In their present appeal, the plaintiffs have pursued four issues. In addition to their disagreement with the trial court’s reservations about the aggrievement of some of the plaintiffs, they maintain that the trial court should have found that the proceedings before the Council were fatally flawed in three respects: (1) noncompliance with the statutory notice of hearing requirements prescribed by General Statutes §§ 16-501,16-50m and 4-177; (2) violation of their constitutional rights to procedural due process because of inadequate notice, denial of continuances, and impaired opportunity to participate in the hearing process; and (3) improper reliance by the Council on expert findings not subjected to challenge by cross-examination. We decline to address the issue of aggrievement and conclude, on the merits of the three remaining issues, that the judgment of the trial court should be sustained.

I

In their claim of statutory impropriety, the plaintiffs maintain that the notice published by the defendants failed to comply with the requirements of General Statutes §§ 16-501, 16-50m, and 4-177 and therefore deprived the Council of jurisdiction to consider Exeter’s certificate application. The plaintiffs do not contest the timeliness or the sufficiency of the content of the notice published in the Norwich Bulletin. They contend, however, that Sterling’s proximity to Rhode Island required the defendants to publish notice in that state as well. Because the Council held two days of hearings before notice was published in the state of Rhode Island, the plaintiffs assert that the Council’s proceedings were invalid.

The trial court addressed this issue in its decision on the plaintiffs’ motion for articulation, wherein it stated: “The defendants did publish notice in the state of Rhode Island on December 3,1987. They were not required to do so. [T]he defendants complied with the notice requirements of the statutes cited by the plaintiff.” We agree.

The plaintiffs’ argument for publication of notice in Rhode Island finds no support in the express language of the relevant provisions of the Public Utility Environmental Standards Act, General Statutes §§ 16-50g through 16-50z. Of the sections to which the plaintiffs allude, only § 16-50Í specifically addresses the issue of who is entitled to public notice of proceedings concerning a certificate of environmental compatibility and public need. That section does not avail the plaintiffs, because it provides, in subsection (b), that an applicant has a duty to give notice to members of the general public in “[e]ach municipality in which any portion of such facility is to be located, both as primarily proposed and in the alternative locations listed [in the application].” See also Regs., Conn. State Agencies § 16-50M (e). The Rhode Island plaintiffs are not entitled to public notice under this section.

The other provision on which the plaintiffs principally rely is § 16-50m (c), which requires the Council itself to give public notice of the date and location of its hearings by “general notice to the public.” See also Regs., Conn. State Agencies § 16-50j-21. By reasonable implication, the object of the Council’s notice must be the same as that of the applicant’s notice, since § 16-50m (c), in the preceding sentence, incorporates § 16-50Z by reference. “It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” Meriden v. Board of Tax Review, 161 Conn. 396, 401-402, 288 A.2d 435 (1971). We are obligated, furthermore, to read statutes together when they relate to the same subject matter. Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990); In re Ralph M., 211 Conn. 289, 304-305, 559 A.2d 179 (1989). Read together, §§ 16-50m (c) and 16-50Z (b) manifest the legislature’s intention that the Council, like certificate applicants, is only required to give public notice to the members of the general public who live in the municipality where the proposed plant is to be built and operated.

Nothing in the general “reasonable notice” requirement contained in the Uniform Administrative Procedure Act, § 4-177, displaces the specific instructions for public notice contained in §§ 16-50Í and 16-50m. Textually, § 4-177 speaks of notice to “parties”; the plaintiffs have not asserted any deficiencies in the notices that they received once they became parties. More broadly, any potential conflict between the general provisions of § 4-177 and the specific provisions of the Public Utility Environmental Standards Act would have to be resolved in favor of the latter. Meriden v. Board of Tax Review, supra. The relevant “municipality” for public notice in this case was Sterling, not Rhode Island.

II

In addition to their statutory argument, the plaintiffs contend that the Council violated their constitutional rights to procedural due process. They maintain that they were deprived of a meaningful opportunity to be heard because the defendants: (1) provided constitutionally inadequate notice; (2) denied their requests for continuances; and (3) impaired their ability to participate fully in the administrative proceedings. The trial court considered and rejected each of these contentions.

We assume, arguendo, that the plaintiffs had some procedural due process rights with regard to the administrative proceedings to consider Exeter’s application for a certificate of environmental capacity and public need. The question that remains is the extent of the plaintiffs' due process rights. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Mathews v. Eldridge, 424 U.S. 319, 324-25, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

The notice that the plaintiffs received in this case in fact enabled them to appear at, and to participate in, the hearings held by the Council. Their legitimate interest in contesting the environmental consequences of Exeter’s application does not have the same individual impact as the interest of a person at risk of losing a professional license; Lieb v. Board of Examiners for Nursing, 177 Conn. 78, 411 A.2d 42 (1979); a long standing teacher facing dismissal; Murphy v. Berlin Board of Education, 167 Conn. 368, 355 A.2d 265 (1974); or a utility company contesting utility rate adjustments. Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 405 A.2d 638 (1978). At best, these plaintiffs can claim to have a due process right, as members of the general public, to notice by publication. “The purpose of notice by publication to the general public is to ‘ “advise all affected parties of their opportunity to be heard and to be apprised of the relief sought.” ’ Schwartz v. Hamden, 168 Conn. 8, 14, 357 A.2d 488 (1975), quoting Slagle v. Zoning Board of Appeals, [144 Conn. 690, 693, 137 A.2d 542 (1957)]. That purpose was fulfilled in this case.” Preston v. Connecticut Siting Council, 20 Conn. App. 474, 481, 568 A.2d 799 (1990); see also Eagan v. Zoning Board of Appeals, 20 Conn. App. 561, 566, 568 A.2d 811 (1990). The plaintiffs’ due process rights to notice were not violated.

The plaintiffs are no more persuasive in their claim that they had a constitutional right to the continuances they requested from the Council. The trial court found that “[u]nder CGS section 16-50p, the Council had ten months from the date of the application to issue its opinion.” The plaintiffs have not challenged the validity of this holding, nor have they alleged that the Council acted in bad faith in insisting that it was required to conclude its public proceedings at some reasonable time before May 1, 1988, in order to meet this statutory deadline.

Requests for continuances invoke the discretionary authority of the adjudicating tribunal. “[Q]n review every reasonable presumption in favor of the [tribunal’s] ruling will be made. . . . The [tribunal’s] decision will be reversed only if it represents a gross abuse of discretion.” State v. Haye, 214 Conn. 476, 483, 572 A.2d 974 (1990), and cases therein cited. In deciding whether the denial of a continuance is so arbitrary as to violate due process, we have not resorted to mechanical tests but have instead examined closely the particular facts of each individual case. Id. In the present circumstances, it was not unconstitutional for the Council, in good faith, to balance its statutory time constraints against the plaintiffs’ desire for more time to present their objections to Exeter’s proposal. The trial court found that “[t]he Council scheduled additional public hearings and accepted submissions from the plaintiffs after the public hearings had ended.” In light of these additional opportunities for the plaintiffs to voice their concerns, we conclude that the plaintiffs have failed to demonstrate an unconstitutional abuse of discretion in this case. See Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).

We are equally unpersuaded by the plaintiffs’ umbrella argument that they were unconstitutionally deprived of an opportunity to participate in the Council’s “thoughtful and meaningful consideration of environmental factors.” Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 68, 441 A.2d 68 (1981). In addition to renewing their complaint of inadequate notice and denial of continuances, the plaintiffs focus on the Council’s decision, at the February 9,1988 hearing, that the plaintiffs would be limited to presenting new information and would be precluded from questioning Exeter on information presented on or prior to the December 23, 1987 hearing. Many of the plaintiffs had, however, the opportunity, which they exercised, to scrutinize and criticize this information earlier. In addition, the trial court found, in its review of the transcript, that the plaintiffs had not in fact been prevented from asking any questions or making any submissions. Constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and non-repetitive proceedings against the risk of erroneous deprivation of a private interest. Mathews v. Eldridge, supra, 335, 348-49; Pet v. Department of Health Services, 207 Conn. 346, 364-65, 542 A.2d 672 (1988); Petrowski v. Norwich Free Academy, 199 Conn. 231, 235, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986). The present record discloses no violation of the plaintiffs’ procedural rights to due process.

Ill

The plaintiffs contend, finally, that the Council violated the requirement of General Statutes § 4-178 (3) in the Uniform Administrative Procedure Act that “a party may conduct cross-examinations required for a full and true disclosure of the facts.” See also Regs., Conn. State Agencies § 16-50j-28. The plaintiffs maintain that they were deprived of the opportunity to cross-examine the authors of Exeter’s Exhibit 36, which was submitted to the Council after the close of evidence, and upon which the Council relied in its finding No. 135 that “[t]he water quality of the Scituate and Providence Water Supply Board watersheds would not be adversely impacted by the proposed facility.”

The trial court’s findings put this claim into context. The court stated: “Plaintiff Providence Water Supply Board offered a technical report which had not been filed early enough to be entered into evidence. A procedure was devised by the Council to accept the report, giving all parties the opportunity to file technical comments on the contents of the report. No party objected. Plaintiff Providence Water Board was granted an additional week to file a rebuttal. While possibly unwise, this procedure was in no way unfair to the plaintiffs. . . . Plaintiffs have not met their burden on their [claim] that they were prejudiced . . . .’’The plaintiffs have not challenged the accuracy of the court’s factual findings.

The plaintiffs’ claim of a statutory violation cannot survive the finding that Exhibit 36 was proffered and received as commentary on the plaintiffs’ own belated report. As the trial court aptly noted, we have held that “an expert regulatory agency may treat the testimony of expert witnesses as to which conclusions they would draw from facts or record as mere argument, which, if reasonable, may help the agency arrive at its decision . . . but which the agency may disregard if contrary to its knowledge or experience.” Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 142-43, 439 A.2d 282 (1981). It was the plaintiffs’ burden to prove that the Council in some way departed from its legal and proper charge of treating the exhibit as mere argument. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 537, 525 A.2d 940 (1987).

Lastly, even if we were to conclude that the record might be construed to show some marginal impairment of a right to cross-examine, the plaintiffs have not met their burden of showing prejudice. They have neither alleged nor proved that Exhibit 36 was the only record evidence to support the Council’s finding that Exeter’s proposed facility would have no significant environmental impact on the Rhode Island watersheds. The Council made voluminous detailed findings about the facility’s likely effects on water and on the air. These findings consistently indicate that the facility, properly constructed in accordance with the Council’s guidelines, would have no significant adverse environmental impact. The Council specifically found, furthermore, in reliance on an exhibit other than Exhibit 36, that: “The proposed facility would have no significant impact on the environment or water supply of Rhode Island over the 25-year operational term of the facility.” The plaintiffs have therefore failed to establish any ground for overturning the decision reached by the Council.

The judgment is affirmed.

In this opinion the other justices concurred.

       Other defendants who filed answers in the Superior Court are Town of Sterling, Town of Plainfield, Joseph D. Tavema and Kenneth Rahn. The remaining defendants, Northeast Utilities, Connecticut Light and Power Company, Philip M. Small, Robert P. Jordan, Dennis Duprey, Foster Country Club and James Curry, were defaulted at trial, either for failure to file an appearance or to file an answer.

       The plaintiffs are Concerned Citizens of Sterling, Inc., Paul Cady, Curt Nelson, President, the Thames Valley Chapter of Trout Unlimited, Rhode Island State Representative Bradford Gorham, Rhode Island State Senator Leo Blais, Mike Benoit, Brett Stein, Gerald Kupperberg, M.D., Ralph B. MeDougald, Philip H. Croome, Paul Murphy, Peter Carlson, Vice President, Stop 1-84, Inc., and the City of Providence Water Supply Board. All the plaintiffs, with the exceptions of Concerned Citizens of Sterling, Inc., Cady and Nelson, are Rhode Island residents or agencies.

       Several plaintiffs had the necessary statutory aggrievement to raise, on the merits, all the issues that are presently before us. The trial court held that “a number of plaintiffs, including the Concerned Citizens of Sterling, Inc. and the Providence Water Supply Board, filed verified pleadings with the Council” that entitled them, as intervenors, to raise the environmental issues before the court. See General Statutes § 22a-19; Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250-51, 470 A.2d 1214 (1984). The defendants have not challenged that holding or the environmental nature of the issues that we must decide. We need not resolve in this instance, therefore, whether those plaintiffs who sought party status by sending written requests to the Council met the statutory definition of aggrievement.

       General Statutes § 16-50Z provides in pertinent part: “(b) Each application shall be accompanied by proof of service of a copy of such application on: (A) Each municipality in which any portion of such facility is to be located, both as primarily proposed and in the alternative locations listed .... A notice of such application shall be given to the general public, in municipalities entitled to receive notice under subdivision (A) of this subsection, by the publication of a summary of such application and the date on or about which it will be filed. Such notice shall be published under the regulations to be promulgated by the council, in such form and in such newspapers as will serve substantially to inform the public of such application and to afford interested persons sufficient time to prepare for and to be heard at the hearing prescribed in section 16-50m. Such notice shall be published in not less than ten point, boldface type. A notice of such an application for a certificate for a facility described in subdivision (3), (4), (5) or (6) of subsection (a) of section 16-50Í shall also be sent, by certified or registered mail, to each person appearing of record as an owner of property which abuts the proposed primary or alternative sites on which the facility would be located. Such notice shall be sent at the same time that notice of such application is given to the general public.”
      General Statutes § 16-50m provides: “public hearing, notice, (a) Upon the receipt of an application for a certificate complying with section 16-501, the council shall promptly fix a commencement date and location for a public hearing thereon not less than thirty days nor more than one hundred fifty days after such receipt. At least one session of such hearing shall be held after six-thirty p.m. for the convenience of the general public. Such hearing shall be held at a location selected by the council, in the county in which the facility or any part thereof is to be located. If the proposed facility is to be located in more than one county, the council shall fix the location for a public hearing in whichever county it determines is most appropriate, provided the council may hold hearings in more than one county.
      “(b) (1) The council shall hold a hearing on an application for an amendment of a certificate not less than thirty days nor more than sixty days after receipt of the application in the same manner as a hearing is held on an application for a certificate if, in the opinion of the council, the change to be authorized in the facility would result in any material increase in any environmental impact of such facility or would result in a substantial change in the location of all or a portion of the facility, other than as provided in the alternatives set forth in the original application for the certificate, provided the council may, in its discretion, return without prejudice an application for an amendment of a certificate to the applicant with a statement of the reasons for such return. (2) The council may hold a hearing on a resolution for amendment of a certificate not less than thirty days nor more than sixty days after adoption of the resolution in the same manner as provided in subsection (a) of this section. The council shall hold a hearing if a request for a hearing is received from the certificate holder or from a person entitled to be a party to the proceedings within twenty days after publication of notice of the resolution. Such hearing shall be held not less than thirty days nor more than sixty days after the receipt of such request in the same manner as provided in subsection (a) of this section. (3) The county in which the facility is deemed to be located for purposes of a hearing under this subsection shall be the county in which the portion of the facility proposed for modification is located.
      “(c) The council shall cause notices of the date and location of each hearing to be mailed, within one week of the fixing of the date and location, to the applicant and each person entitled under section 16-501 to receive a copy of the application or resolution. The general notice to the public shall be published in not less than ten point, boldface type.
      “(d) Hearings, including general hearings on issues which may be common to more than one application, may be held before a majority of the members of the council.
      “(e) During any hearing on an application or resolution held pursuant to this section, the council may take notice of any facts found at a general hearing.”
      General Statutes § 4-177 provides: “contested cases, notice, record. (a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
      “(b) The notice shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; (4) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.
      “(c) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.
      “(d) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
      “(e) The record in a contested case shall include: (1) All pleadings, motions and intermediate rulings; (2) evidence received or considered; (3) questions and offers of proof, objections and rulings thereon; (4) any decision, opinion or report by the officer presiding at the hearing.
      “(f) Oral proceedings or any part thereof shall be transcribed on request of any party. The requesting party shall pay accordingly, the cost of such transcript or part thereof.
      “(g) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.”
      This statute was amended effective July 1, 1989, by Public Acts 1988, No. 88-317, §§ 2, 107.

       The plaintiffs premise their standing to pursue a claim of due process violation on property rights allegedly conferred upon them by the Connecticut Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20, as interpreted in Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 55-56, 441 A.2d 68 (1981). We need not resolve today the extent to which the act would confer such property rights in the absence of a showing of any specific personal or legal interest in the subject matter of the proceedings at issue. At least one of the Rhode Island plaintiffs, the Providence Water Supply Board, was an intervenor at the administrative level and hence had statutory aggrievement sufficient to raise all relevant environmental issues under General Statutes § 22a-19. Statutory aggrievement ordinarily encompasses standing to raise constitutional as well as statutory issues that have an environmental nexus. Connecticut Fund for the Environment v. Stamford, 192 Conn. 247, 249-50, 470 A.2d 1214 (1984).

       The Regulations of Connecticut State Agencies, § 16-50j-28 provides: “rules of evidence
      “The following rules of evidence shall be followed in contested cases:
      “(a) rules of privilege. The council shall give effect to the rules of privilege recognized by law in Connecticut. Subject to these requirements and subject to the right of any party to cross examine, any testimony may be received in written form.
      “(b) documentary evidence. Documentary evidence may be received at the discretion of the council in the form of copies or excerpts, if the original is found not readily available. Upon request by any party or intervenor, an opportunity shall be granted to compare the copy with the original, which shall be subject to production by the person offering such copies. Any documentary evidence that is admitted in the form of a copy or excerpt may be stricken at the discretion of the council upon the failure to produce the original thereof upon finding that the interest of any party or intervenor will be prejudiced substantially thereby.
      “(c) cross examination. Cross examination may be conducted if required for full and true disclosure of the facts.
      “(d) FACTS NOTICED, council records. The council may take notice of judicially cognizable facts, including prior decisions and orders of the council. Any exhibit admitted as evidence by the council in a prior hearing of a contested case may be offered as evidence in a subsequent contested case and admitted as an exhibit therein; but the council shall not deem such exhibit to be judicially cognizable in whole or in part and shall not consider any facts set forth therein unless such exhibit is duly admitted as evidence in the contested case then being heard.
      “(e) FACTS NOTICED, procedure. The council may take notice of generally recognized technical or scientific facts within the council’s specialized knowledge. Parties and intervenors shall be afforded an opportunity to contest the material so noticed by being notified before or during the hearing by an appropriate reference in preliminary reports or otherwise of the material noticed. This provision shall also apply to material noticed in any staff memoranda or data that may be submitted to the council for its consideration in the determination of the contested case. The council shall nevertheless employ its experience, technical competence, and specialized knowledge in evaluating the evidence presented at the hearing for the purpose of making its finding of facts and arriving at a decision in any contested case.”