author: Borden, J.

text:
    State of Connecticut v. Carol Magnano
    (12519)
    Peters, C. J., Shea, Callahan, Borden and Ment, Js.

      Argued March 31
    decision released July 7, 1987

      Suzanne Zitser, assistant public defender, with whom, on the brief, were Joette Katz, public defender, and Kent Drager, assistant public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from a judgment of conviction, after a jury trial, of the crime of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the trial court erred: (1) in refusing to suppress certain photographs taken and diagrams made during a warrantless entry and search of her premises; and (2) in admitting into evidence communications between the defendant and a battered women’s counselor in alleged violation of General Statutes § 52-146k (b). We find no reversible error.

I

At the suppression hearing the following facts were revealed. On October 13,1982, three Middletown police department patrol officers, Sergeant Ralph Ward, Officer Jerry Artikes and Officer Luigi Liistro, were dispatched to the defendant’s residence at 3 Woodlot Lane in Middletown in response to a report of a burglary in progress. The defendant had telephoned the police at approximately 3:45 a.m. to report that an intruder had entered her home, that her husband was asleep downstairs, and that she was upstairs with her three children. Ward arrived at aproximately 3:50 a.m. and began to walk around the house. As he was circling the house, he encountered Artikes. Together, they entered the patio, and through an open sliding glass door went into the dining room area of the house. They checked the kitchen, and observed that the cabinet doors were open and that the room was in disarray. They entered the living room in response to a noise, and discovered the defendant’s husband, James Magnano, lying on a couch, unconscious but alive. An arrow protruded from his left temple, and blood covered the couch, blanket, sheets, pillow and rug. An ambulance was immediately summoned, and thereafter Artikes and Ward proceeded upstairs. They entered two bedrooms, and after noticing a light under a door entered a third bedroom where they found the defendant and her three children. Liistro, who had by now arrived on the scene, stayed with the defendant and her children while Ward and Artikes conducted a thorough search of the rest of the house for the presence of an intruder. By this time, the officers had concluded, from the condition of the house and the assault on James Magnano, that a burglary had taken place. The officers also concluded after this search that the intruder was no longer on the premises.

The defendant was informed that her husband had been injured and was being taken to the hospital. She was advised to call someone to take her to the hospital. She called her brother-in-law, Robert Magnano, who arrived about 4:15 a.m. Meanwhile, the ambulance had already arrived for the victim. The defendant and her three children left with Robert Magnano for his house. It is undisputed that at this time the defendant was not a suspect in the assault. It is also undisputed that by the time the defendant had left the premises, the emergency had terminated since the premises had been searched and secured and the victim was on the way to a hospital, where he later died.

The detective squad had been notified of the incident at 3 Woodlot Lane because it was standard operating procedure for it to conduct the investigation and process various items. Shortly after the defendant left, members of the detective squad began arriving on the scene. Sergeant Ronald Lee was the first to arrive, at approximately 4:25 a.m. His arrival was closely followed by those of Captain Salvatore Faraci, who was in charge of the investigation, and by Sergeant Robert Clayton. Faraci assigned Lee as the evidence officer, whose primary task was to take evidence into custody. Faraci assigned Clayton as the photography officer. Pursuant to these duties, the officers accompanied Ward as he reenacted his movements and recollected his observations from the moment of his arrival on the scene to his discovery of the defendant and her three children in the room upstairs, and thereafter during his search for intruders on the premises. The items which Ward observed in plain view were photographed and taken into custody by the detectives. Additionally, either Lee or Clayton took photographs of various interior and exterior areas of the house, including the dinette and kitchen areas, and took measurements for the purpose of diagramming the crime scene. The photographs were taken between 4:40 and 6:30 a.m., although upon discovery that Clayton’s photographs would be unusable because of a camera malfunction, replacement pictures were taken sometime prior to 10 a.m. Ward, Artikes and Liistro, the initial responding officers, left the defendant’s house soon after the arrival of the members of the detective squad. By 10 a.m., all police officers had left the house.

The defendant filed a motion to suppress the evidence taken into custody by the detectives, claiming that it had been seized pursuant to a warrantless search which fell within none of the exceptions to the search warrant requirement. Specifically, the defendant sought to suppress tangible evidence, photographs of the interior and exterior of the premises as they appeared to the patrol officers on their initial entry, and sketches which incorporated measurements taken by Lee.

The trial court, Hale, J., granted the motion in part. Of relevance to this appeal is the following order: “Motion granted as to any pictures taken at the scene on October 13, 1982, by the detectives and any diagrams or sketches made by them from measurements or observations taken at the scene by them.” In granting this part of the motion to suppress, the trial court rejected the state’s argument that the search fell within the consent exception to the warrant requirement. The court also rejected the application of the emergency or exigency exception to the search warrant requirement articulated in Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). The court reasoned that Mincey v. Arizona, supra, justified the admission of tangible evidence observed in the plain view of the responding officers, and that the legality of the seizure was not affected by the fact that the officers left it in place for processing by the detective squad. The court held, however, that once the premises had been secured, a search warrant was required for further seizures and, therefore, any photographs or diagrams incorporating measurements which were taken without a warrant must be suppressed.

The state requested and was granted permission to reargue the motion with respect to this ruling. After reargument, the court modified its earlier ruling, and permitted the state to introduce photographs taken and diagrams made by the detectives which depicted the plain view observations of the responding officers. The court reasoned: “[T]o the extent that the second group of officers enter upon the scene and do no more than the first group of officers would have been justified in doing, secure evidence in plain view and not expand the scope or nature of the original entry, the fruits of that action should be admissible. . . . [T]he Court finds that the motion to suppress photographs and diagrams or sketches taken by or made by detectives who arrived on the scene after the property had been secured, is denied, but only insofar as evidence indicates that those photographs, diagrams and sketches depict evidence on the scene as it was in the plain view of the uniformed officers who first came on the scene.” As a result of this modified ruling, certain photographs, depicting evidence and the interior and exterior areas of 3 Woodlot Lane, and diagrams, incorporating measurements taken by Lee, were admitted into evidence. See footnote 2, supra.

The defendant claims that the court erred in modifying its original order, and that the photographs and diagrams were seized in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution. Specifically, she claims that while the exigency or emergency exception to the search warrant requirement articulated in Mincey v. Arizona, supra, justified the initial entry of the responding officers, the limited search to secure the premises and the seizure of evidence in plain view, it did not justify the subsequent warrantless entry and search by the detectives after the emergency was terminated, the premises had been adequately secured, and the defendant had left the premises. Therefore, she claims, the photographs and diagrams arising from that illegal search should be suppressed. The state responds that the court’s modified ruling was consistent with the doctrine enunciated in Mincey v. Arizona, supra, and its progeny, and constituted a finding that the reentry of the detectives was a mere continuation of the original legal entry of the responding officers. Therefore, the state claims, the detectives were permitted to seize evidence and memorialize it by photographs and diagrams so long as it coincided with the plain view observations of the responding officers. We agree with the state.

It is clear that “ ‘a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” ’ Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), quoting Katz v. United States, [389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)].” State v. Zindros, 189 Conn. 228, 236-37, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). A recognized exception to the warrant requirement is relevant to this case, namely, the exception for searches conducted pursuant to exigent or emergency circumstances. Thompson v. Louisiana, 469 U.S. 17, 105 S. Ct. 409, 83 L. Ed. 2d 246 (1984), reh. denied, 469 U.S. 1197, 105 S. Ct. 981, 83 L. Ed. 2d 1983 (1985); Mincey v. Arizona, supra; Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); State v. Zindros, supra.

In Mincey v. Arizona, supra, the United States Supreme Court recognized the exigency or emergency exception to the warrant requirement. The court held that the fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. Id., 392-93. The extent of the search is limited, involving “a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.” Id., 392. The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities. Id., 393. Such a search is strictly circumscribed by the emergency which serves to justify it; id.; and cannot be used to support a general exploratory search.

The defendant concedes that the initial entry by the patrol officers, in response to the defendant’s call for help, was a legal entry under the emergency exception of Mincey v. Arizona, supra, and that evidence discovered in plain view by the patrol officers was admissible. The defendant does not claim error in the trial court’s ruling to admit such tangible evidence, even though it was seized by the detectives who reentered the premises after they had been secured. The defendant argues, nonetheless, that this reentry, which resulted in the introduction into evidence of, inter alia, the photographs and diagrams, was an illegal entry not justified by Mincey v. Arizona, supra, since the emergency had abated and the premises had been secured.

We conclude that when a law enforcement officer enters private premises in response to a call for help, and during the course of responding to the emergency observes but does not take into custody evidence in plain view, a subsequent entry shortly thereafter, by detectives whose duty it is to process evidence, constitutes a mere continuation of the original entry. Under such circumstances, it is permissible for the detectives to photograph and take measurements, without a search warrant, of evidence which was in the plain view of the initial responding officers. This conclusion is in conformity with decisions in other jurisdictions which have considered the issue, furthers the goal of effective law enforcement, and promotes the rationale and purpose of the plain view doctrine.

Our review of case law in other jurisdictions which have considered this issue in similar factual contexts lends overwhelming support to this conclusion. We note initially the ultimate disposition oí Mincey v. Arizona, supra, on remand from the United States Supreme Court to the Arizona court. In Mincey v. Arizona, 130 Ariz. 389, 636 P.2d 637 (1981), several police officers staked out an apartment where a narcotics sale had been set up. The lead officer had previously been in the apartment in an undercover capacity and had arranged a drug sale. This officer rushed into Mincey’s apartment and then into his bedroom. A volley of shots was heard. The other officers forced their way into the apartment and witnessed their brother officer emerge from the bedroom and collapse from a gunshot wound. He eventually died. The officers thereafter rushed into Mincey’s bedroom where they found him, also suffering from gunshot wounds.

About ten minutes after the initial entry by the officers in response to the shooting, homicide detectives arrived and took charge of the investigation. Detective Reyna, two identification technicians and a graphic art specialist were among the group of law enforcement officers who entered the apartment. Without benefit of a search warrant, they began to photograph, film and diagram the contents of the apartment, but memorialized at that point only the plain view observations of the initial responding officers. Soon thereafter, all personnel left the apartment, but detectives returned some hours later to conduct a search which lasted for four days.

The defendant moved to suppress all evidence seized by Reyna. The Arizona Supreme Court held that Reyna’s entry in response to the emergency was a continuation of the responding officers’ original entry. The court stated: “We also decline to separate, as appellant would have us do, the entry of Detective Reyna and the homicide squad from that of the [police officers] and further decline to find that their presence and activities were not part of the emergency. As has been stated the [police officers] were precluded from conducting their own investigation by police department policy. The evidence at the second trial showed also that Detective Reyna arrived and began his investigation only a short time after the shooting and while the [police officers] were still on the premises. . . . [W]e believe that Reyna’s entry was merely a continuation of the initial emergency entry of the [police officers]. Reyna was, therefore, lawfully present during the emergency and could make plain view seizures during that time of evidence he observed in plain view.” Id., 401.

In People v. Reynolds, 672 P.2d 529, 531 (Colo. 1983), another case that supports our conclusion, police officers responded to a call from the defendant’s stepdaughter reporting that shots had been heard from the defendant’s premises. When the officers arrived at the house, the defendant met them at the door and let them in. Thereafter, they located the body of the defendant’s wife in a bedroom and arrested the defendant. The officers searched the rest of the house to determine if there were other victims or suspects. They observed in plain view an empty liquor bottle, a revolver and certain notes. One and one-half hours later, officers from the criminal investigation laboratory arrived to photograph and videotape these items and to take extensive measurements for preparation of diagrams of the murder scene.

The defendant moved to suppress the evidence, and the sole issue on appeal was remarkably similar to the issue in the present case, namely, whether the fourth amendment required the police to obtain a search warrant before they could photograph, videotape or diagram evidence otherwise admissible under the plain view exception. Id. The court held: “A search warrant is not required where evidence discovered in plain Anew is seized as part of a continuing police investigation. ... In our view, photographing the evidence, and recording the relevant crime scene dimensions approximately one hour and a half after discovery was part of an on-going lawful criminal investigation and did not require a search warrant.” Id., 533; see also State v. Johnson, 413 A.2d 931, 934 (Me. 1980), aff'd, 434 A.2d 532 (Me. 1981); Smith v. State, 419 So. 2d 563, 568-74 (Miss. 1982); State v. Jolley, 321 S.E.2d 883, 886-87 (N.C. 1984); State v. Anderson, 42 Or. App. 29, 599 P.2d 1225, 1229 (1979), cert. denied, 446 U.S. 920, 100 S. Ct. 1857, 64 L. Ed. 2d 275 (1980); State v. Eacret, 40 Or. App. 341, 345, 595 P.2d 490 (1979); La Fournier v. State, 91 Wis. 2d 61, 70, 280 N.W.2d 746 (1979). These cases establish the proposition that whether a subsequent entry is deemed to be detached from the initial emergency which justifies the warrant-less intrusion or is a mere continuation of the intrusion depends on the facts and circumstances of each case. La Fournier v. State, supra.

In this case, the initial officers responded to the defendant’s call that an intruder was in the house. During the course of the response they legitimately searched and secured the premises, observing items of evidence in plain view. Pursuant to department policy, they did not attempt to take any evidence into custody. The detectives arrived on the scene only thirty-five minutes after the responding officers’ initial entry and while they were still on the premises. They proceeded to process evidence and to take photographs and measurements. Finally, the intruder was still unknown and at large, and the investigation had not focused on any particular individual. We conclude that under the facts of this case, the initial entry of the patrol officers and subsequent entry of the detectives were analytically inseparable, and that the later entry was a mere continuation of the earlier legal entry. As such, the photographs and measurements depicting the plain view observations of the patrol officers who had responded to the emergency were admissible.

This conclusion is also supported by sound policy and by fourth amendment theory. It is a reasonable and logical procedure for experienced law enforcement personnel to process evidence at crime scenes. The purpose is to promote careful preservation of evidence and to permit a complication-free chain of custody. The promotion of more accurate evidence gathering serves the legitimate interests of all parties. Our conclusion in this case serves to further this reasonable practice.

Furthermore, our conclusion is consistent with the rationale and purpose of the plain view doctrine. In Coolidge v. New Hampshire, 403 U.S. 443, 467-68, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971), the United States Supreme Court stated: “Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous— to the evidence or to the police themselves—to require them to ignore it until they have obtained a warrant particularly describing it.” The same rationale applies to the claim that a search warrant is required to photograph evidence which is properly in plain view. Moreover, the defendant cannot be heard to complain that the second entry into the premises by the detectives affected her privacy interests. As the United States Supreme Court stated in Illinois v. Andreas, 463 U.S. 765, 772, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983), “[t]he plain view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy.”

II

The defendant next claims that the trial court erred when it permitted the state, in its case-in-chief, to introduce communications between the defendant and her counselor at a battered women’s shelter. The defendant claims that these communications were privileged under General Statutes § 52-146k.

In order to address this issue, we must put it in its historical context. On September 13 and 14,1982, the defendant communicated with various personnel at the New Horizons Shelter (shelter), a facility in Middletown for battered and abused women. In those communications, the defendant described herself as the victim of physical and mental abuse at the hands of her husband. One month later, on October 13, 1982, as previously indicated, the defendant’s husband was wounded by a crossbow, and died a few days later. On January 27, 1983, a grand jury was convened, pursuant to General Statutes § 54-45 (a), regarding the death of James Magnano. During the course of this proceeding, the state subpoenaed Nancy Archer, a counselor at the shelter, to appear before the grand jury with certain records concerning the defendant. The shelter moved to quash the subpoena, claiming that the communications between a counselor and a client were privileged. The court, Spallone, J., denied the motion, and Archer testified before the grand jury. Thereafter, on January 28, 1983, the grand jury returned a true bill of indictment charging the defendant with murder.

The ruling by Judge Spallone to admit the communications between the counselor and the defendant led to the promulgation of Public Acts 1983, No. 83-429, subsequently codified as General Statutes (Rev. to 1985) § 52-146k. The statute provided in part that “[a] battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidental communications waives the privilege . . . . ” The effective date of Public Acts 1983, No. 83-429, was October 1, 1983.

On December 6,1983, after the effective date of General Statutes (Rev. to 1985) § 52-146k (b), the defendant’s trial began. On December 15, 1983, during the state’s case-in-chief, the state called Archer as a witness. The defendant objected, claiming that the newly enacted statute protected her communications with personnel at the shelter and could not be disclosed without a valid waiver. The court, Hale, J., concluded that the statute was not applicable to the defendant’s communications because they were made in September, 1982, before the effective date of the act. The court overruled the defendant’s objection, and Archer’s testimony was admitted.

Archer disclosed that she had met with the defendant and admitted her to the shelter. She further testified that the defendant left the same day after learning that her husband had been involved in a motorcycle accident, and did not return. During the course of the defendant’s admission to the shelter, a number of documents were processed, some of which were introduced into evidence through Archer. These documents contained information about the incident of abuse which had precipitated the defendant’s visit to the shelter, namely, that the defendant had had an argument with her husband and that he had banged her head against a washing machine. The documents also revealed that after this incident, the defendant took their children and went to stay with a girlfriend. The documents also contained statements by the defendant that she considered her husband hot-tempered, and that after the first year of marriage she was the victim of mental abuse and, after five years, of physical abuse. They had been married for a total of twelve years.

The defendant was convicted of murder on January 23, 1984, and appealed, raising as a preliminary issue that the trial court violated General Statutes (Rev. to 1985) § 52-146k (b) by admitting the communications between the defendant and her counselor. While this appeal was pending, the legislature enacted Public Acts 1985, No. 85-112, effective October 1,1985, amending General Statutes (Rev. to 1985) § 52-146k (b). That act stated in part that “ON OR AFTER OCTOBER 1, 1983, a battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor AT ANY TIME by a victim in any civil or criminal case .... ANY REQUEST MADE ON OR AFTER OCTOBER 1, 1983, BY THE DEFENDANT OR THE STATE FOR SUCH CONFIDENTIAL COMMUNICATIONS SHALL BE SUBJECT TO THE PROVISIONS OF THIS SUBSECTION.”

Ten days before the defendant in this case filed her brief, this court decided State v. Lizotte, 200 Conn. 734, 517 A.2d 610 (1986). In that case, we were presented with the claim that General Statutes (Rev. to 1985) § 52-146k should be interpreted to apply retroactively to communications made prior to October, 1983. In State v. Lizotte, supra, the defendant sought to prevent the admission of communications between a counselor and her client made prior to the effective date of the statute. The defendant argued that the critical time for determining the applicability of the statute was when the communications were disclosed, not when they were made. We disagreed, and held that where the legislature effects a substantial change in the law, as it did by creating a privilege, “[a]bsent clear and unequivocal legislative intent, § 52-146k should not be applied retroactively.” Id., 741-42. In reaching this conclusion, we stated further that “[n]owhere in the statute is there mention that the privilege extends to communications made prior to the effective date of the statute. . . . Moreover, an examination of the legislative history does not reveal any intent that the statute have retroactive effect. We, therefore, will not apply this statute retroactively.” Id., 742.

The defendant’s brief in State v. Lizotte, supra, was filed on July 30, 1985, and the state’s brief was filed on January 13,1986. The defendant did not file a reply brief. Neither brief raised the issue of the effect on the defendant’s claim of Public Acts 1985, No. 85-112, amending General Statutes (Rev. to 1985) § 52-146k (b). We nonetheless considered that effect. We held that the 1985 amendment reflected a substantive change in the law because it constituted a substantial expansion of the privilege by extending the privilege to communications made before the effective date of the act. Because we viewed the 1985 amendment to effect a substantive change in the law, we did not apply it retroactively, and we concluded that it did not, therefore, affect the trial court’s ruling. We therefore applied the law as it was in existence at the time the trial court made its determination. State v. Lizotte, supra, 738 n.3.

At the time we reached this conclusion as to the effect of the 1985 amendment, we did so without the benefit of full briefs on that issue. Because we were without the benefit of either a crystallization of the issue that naturally evolves out of an adversarial presentation, or the most persuasive legal authority that can be mustered in support of a position, we have decided to reconsider our holding in State v. Lizotte, supra, as it pertains to the effect of the 1985 amendment on General Statutes § 52-146k (b).

In determining the effect of a subsequent statutory amendment on earlier legislation, we are guided by well defined principles of statutory interpretation. We recognize the usual presumption that, in enacting a statute, the legislature intended a change in existing law. Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); Vartuli v. Sotire, 192 Conn. 353, 364 n.12, 472 A.2d 336 (1984); 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 22.30. This presumption, however, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. Shelton v. Commissioner, supra, 513-14.

In determining the intended effect of a later enactment on earlier legislation, two questions must be asked. “First, was the act intended to clarify existing law or to change it? Second, if the act was intended to make a change, was the change intended to operate retroactively?” (Emphasis added.) Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985).

With respect to the first question, namely, whether an act was intended to clarify existing law, or to change it, our recent case of State v. Blasko, 202 Conn. 541, 522 A.2d 753 (1987), sheds light on the proper analytical approach to follow. In that case, we were faced with the issue of whether Public Acts 1985, No. 85-611, now codified as General Statutes §§ 54-47a through 54-47h, reforming the procedures governing investigatory grand juries, terminated the authority of grand juries that had been duly constituted before the effective date of the public act. We held that while Public Acts 1985, No. 85-611, was silent on this issue, Public Acts 1986, No. 86-317, which was subsequently enacted and which stated that a grand jury instituted prior to the effective date of Public Acts 1985, No. 85-611, shall continue until completion, served to clarify the legislature’s original intent under Public Acts 1985, No. 85-611, with respect to this matter. State v. Blasko, supra, 557. We held that Public Acts 1986, No. 86-317, was a clarifying act and as “a clarifying act, which ‘in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.’ Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); State v. One 1977 Buick Automobile, 196 Conn. 471, 479, 493 A.2d 874 (1985); Circle Lanes of Fairfield, Inc. v. Fay, [supra, 540]; Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985); [Shelton v. Commissioner, supra, 514]; Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980); see 1A J. Sutherland, supra, §§ 22.31, 22.35.” State v. Blasko, supra.

In order to determine whether an act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent. Id. In State v. Blasko, supra, we found support in the legislative history for a conclusion that the legislature, in enacting the amendment, intended to clarify the original intent of the earlier legislation that grand juries authorized before October 1, 1985, would be authorized to finish their inquiries.

We note that in State v. Blasko, supra, the legislative history revealed that the amendment to the original statute was precipitated by the trial court ruling that was the subject of the appeal then before us. See footnote 10, supra. In the present case, while the original legislation was passed in direct response to the trial court ruling during this defendant’s grand jury proceedings, the subsequent amendment, at least as revealed by the legislative history, does not appear to have been explicitly so influenced. This aspect of State v. Blasko, supra, which distinguishes it from the present case, is not, however, a precondition to an application of legislation, which becomes effective while a case is pending on appeal, retroactively to that case. On at least two occasions, we have applied to a case on appeal an amendment which we held clarified earlier legislation without requiring that the amendment be a direct response to an actual ruling in that case.

For example, in State v. One 1977 Buick Automobile, supra, 479, the owner and operator appealed the seizure of their car under the forfeiture statute; General Statutes § 54-33g; for failure of the state to seize the property pursuant to a search warrant as required by the statute and by State v. Sabia, 1 Conn. App. 315, 471 A.2d 673 (1984). The appellants claimed the seizure was in violation of the statute since it was pursuant to an arrest. We concluded that a 1984 amendment to General Statutes § 54-33g which permitted forfeiture proceedings when property was seized pursuant to an arrest and which was a legislative response to State v. Sabia, supra, clarified the earlier legislation. We stated: “We view this recent enactment as a legislative declaration of what § 54-33g (c), when read in conjunction with § 54-36a (c) [disposition of seized property on order of examiner of seized property], was originally intended to mean.” State v. One 1977 Buick Automobile, supra, 479.

In Circle Lanes of Fairfield, Inc. v. Fay, supra, we held that a clarifying amendment which became effective while the case was pending on administrative appeal was applicable even though the amendment was not in direct response to a ruling in that case. There, the plaintiffs appealed to the Superior Court from the decision of the state claims commissioner denying the plaintiffs permission to sue the state for negligence. At the time of that decision, the jurisdiction of the Superior Court to review such a decision had been determined in Hirschfeld v. Commission on Claims, 172 Conn. 603, 605-608, 376 A.2d 71 (1977), which reconciled two conflicting statutes: General Statutes § 4-164, which prohibited an appeal from the decision of the claims commissioner; and General Statutes § 4-185 of the Uniform Administrative Procedure Act (UAPA), which provided for judicial review of all contested cases decided by “all agencies . . . not expressly exempted.” Circle Lanes of Fairfield, Inc. v. Fay, supra, 538-39. In Hirschfeld we construed these statutes together and permitted appeals for limited purposes. After the plaintiffs in Circle Lanes of Fairfield, Inc., filed their appeal to the Superior Court, the legislature enacted Public Acts 1982, No. 82-167, codified as General Statutes § 4-164c, which expressly exempted the claims commissioner from General Statutes § 4-183, the UAPA provision that permits appeals to the Superior Court. The claims commissioner unsuccessfully moved to dismiss the appeal for lack of subject matter jurisdiction in light of this amendment. After the Superior Court sustained the plaintiffs’ appeal, the claims commissioner appealed to this court, but did not press his claim that the amendment applied retroactively and constituted a jurisdictional bar to the plaintiffs’ appeal to the Superior Court. He abandoned this claim at oral argument because there was neither express language nor legislative history supporting a retroactive application. We concluded, despite this concession and in the absence of any legislative history indicating that the legislation was in response to the plaintiffs’ case, or was intended to clarify the earlier statute, that the amendment “should be read as a clarification of the Superior Court’s ongoing lack of jurisdiction to hear appeals from the claims commissioner.” Id., 541.

Turning to the legislative history of Public Acts 1985, No. 85-112, we find numerous indications that the legislature intended that act to clarify the original intent of General Statutes (Rev. to 1985) § 52-146k so as to apply to communications occurring between a battered woman and her counselor prior to the effective date of the act. For example, during public hearings before the judiciary committee, Cheri Fidler, associate executive director of the Hartford Regional YMC A, testified: “lam here today to strongly support your consideration of House Bill 5311 which clarifies the intent of this law. It would prohibit the disclosing of confidential communication made at any time by a victim to a battered women’s counselor or sexual assualt counselor, whether the communication was made prior to October 1st, 1983 or after.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1985 Sess., p. 285. Representative William L. Wollenberg, during discussions with Fidler concerning a trial court ruling requiring the disclosure of communications between a YMC A counselor and her client which were made prior to the effective date of the act, stated: “We realize that there was some need for this after the case was brought to our attention,” and “this clarifies that anything before October [1983] is also privileged.” (Emphasis added.) Id., pp. 285-86.

We also note that the legislature first attempted to clarify General Statutes (Rev. to 1985) § 52-146k (b) in 1984 by Public Acts 1984, No. 84-402. In addition to protecting all communications, no matter when made, that proposed legislation also expanded the privilege to communications with social workers. The Governor vetoed the legislation because of this proposed expansion. Public Acts Veto Message, Public Acts 1984, No. 84-402, Volume 111, p. 1039. The legislative history of Public Acts 1984, No. 84-402, of which the 1985 public act can be considered a progeny, reveals that the purpose of the bill was to clarify the legislative intent of General Statutes (Rev. to 1985) § 52-146k. During debate in the House of Representatives, Representative Lawrence M. Riefberg explained: “Last year this General Assembly passed Public Act 83-429, AN ACT CONCERNING CONFIDENTIAL COMMUNICATION BETWEEN A VICTIM SERVICE COUNSELOR AND A VICTIM, intending at that time to protect confidential communications between victims of sexual assault or battery and the counseling services they sought as a result of that battery.

“The law does protect that. However, it has been interpreted, at least in one court decision which was later dismissed, that the communications before October 1, 1983, would not be included. This amendment clarifies that as long as the request came after October 1, 1983, the communications would be confidential and therefore not discloseable.” (Emphasis added.) 27 H.R. Proc., Pt. 13, 1984 Sess., p. 4779.

We conclude, based on our review of the legislative history, that Public Acts 1985, No. 85-112, was intended to clarify the original intent of General Statutes (Rev. to 1985) § 52-146k (b), namely, that all communications, no matter when made, which are sought to be disclosed after October 1, 1983, are privileged. The 1985 amendment appears to be a classic reaction to a judicial interpretation that was deemed inappropriate. See footnote 11, supra. Our statements in State v. Blasko, supra, are particularly appropriate in this case. “Once litigation brought that ambiguity to light, the legislature acted to remove any doubt about its earlier intentions. Its action in [1985] therefore invokes the principle of statutory construction that ‘[i]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act. . . .’ 1A J. Sutherland, supra, § 22.31. Even though the legislative clarification was prompted by a judicial decision that the legislature deemed mistaken, such a clarification does not constitute an invasion of judicial authority. Like legislatures, judges are fallible. The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we previously had interpreted a statute to confer. Circle Lanes of Fairfield, Inc. v. Fay, supra, 540-41; Neyland v. Board of Education, supra, 180-85; Lee v. Board of Education, supra,75; Tax Commissioner v. Estate of Bissell, supra, 245.” State v. Blasko, supra, 558. Similarly, the legislature has the power to make evident to us that it did intend to provide a litigant with rights which we previously had interpreted a statute not to confer.

In light of our conclusion that Public Acts 1985, No. 85-112, was intended to clarify, rather than change, existing law, we do not reach the second question posed in Circle Lanes of Fairfield, Inc. v. Fay, supra, 540, of whether the change was to have retroactive effect. Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect. See id., 540-41. We note, however, that the retroactive nature of clarifying legislation has limits. It “must not operate in a manner that would unjustly abrogate vested rights.” Hartford v. Freedom of Information Commission, 201 Conn. 421, 426, 518 A.2d 49 (1986). In this case, we perceive no abrogation of vested rights by Public Acts 1985, No. 85-112. Therefore, in this case the defendant’s communications with her counselor made before the effective date of the act were erroneously admitted at her trial, held after that effective date.

Our inquiry does not end with this conclusion that the admission of the evidence was erroneous. “We now consider whether the admission of the testimony was so prejudicial to the rights of the defendant as to deprive [her] of a fair trial. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). Stated another way, the question is ‘whether the claimed erroneous action of the court would have been likely to affect the result.’ State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985). We conclude that it is not likely that the erroneous admission of the evidence affected the result in this case.

First, we note that to a large extent the erroneously admitted evidence was cumulative of testimony of other witnesses indicating that the relationship between the defendant and her husband was problematical. Neighbors and friends testified that the couple often had argued, and that the frequency of the arguments had increased immediately prior to the incident. A neighbor testified that he occasionally feared for the defendant’s well-being when he heard them arguing, especially since the victim had characterized himself as hot-tempered. This neighbor was aware that on at least one occasion the victim had hit the defendant. Another witness testified that the defendant had confided that her husband had choked her. The victim’s brother testified about the incident of violence which precipitated the defendant’s contact with the shelter.

Furthermore, the improperly admitted evidence was cumulative of other motive testimony. There can be no doubt that Archer’s testimony that the defendant was the victim of long term physical and mental abuse was probative of her motive to commit the crime. There was, however, other substantial evidence in this regard, including the defendant’s extensive knowledge of the terms of her husband’s insurance policies of which she was the intended beneficiary, and her sexual affairs with other men both prior to and immediately after her husband’s death.

Finally, after viewing the evidence in the case in its entirety, we conclude that if the testimony of Archer had been properly excluded, it is unlikely that the result would have been different. The jury could reasonably have found the following: The defendant bought a crossbow one week before the assault, ostensibly as a gift for her husband on his birthday. The victim’s birthday, however, was not until the following month. According to friends and relatives, the victim had never expressed an interest in crossbows. In fact, it was the defendant who had an interest in archery and crossbows. The defendant claimed to have given her husband the crossbow the day she bought it. The victim, however, never mentioned the gift to anyone, not even to his brother who accompanied him, on the day he was assaulted, to the sporting goods section of a department store, where they observed and commented on a bow and arrow set. Prior to purchasing the crossbow, the defendant had attempted to buy a gun from two friends, again ostensibly as a gift for her husband. Further, there was extensive testimony with respect to the defendant’s lack of emotion at her husband’s death, and with respect to the dramatic positive change in her personality and appearance immediately following his death. Finally, the defendant’s theory, namely, that either an intruder had come in with a crossbow or had come across it in the hall closet where it was kept and then shot the defendant while he was sleeping, was strongly countered by the state’s evidence. That evidence included testimony that trained police dogs, on two occasions, followed the scent on the crossbow, which was found thrown on the ground outside the house, back into the house. It was the conclusion of the officer conducting the search that the same person who left the crossbow outside the house thereafter went back inside the house. This evidence pointed only to the defendant.

While it is true that most of the evidence implicating the defendant was circumstantial in nature, the law makes no distinction between the probative force of direct evidence and circumstantial evidence. State v. Rodgers, 198 Conn. 53, 58, 502 A.2d 360 (1985). Under the facts of this case, we conclude that the erroneous admission of the evidence was harmless.

There is no error.

In this opinion the other justices concurred.

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

       The only items of evidence at issue on this appeal are certain photographs taken by Lee and Clayton of items and scenes observed by the initial officers who entered the premises, and certain diagrams incorporating measurements. The admission of the physical evidence depicted in the photographs is not under attack. The photographs in dispute depict a crossbow and a can of soda, both lying on the ground outside the house; a cedar box, roach clip holder, rolling paper and a vitamin bottle with plant-like material on the dining room table; and bloodstained pillows, sheets and an aqua blanket on the couch where the victim was found. Additionally, there were photographs of various interior and exterior areas, including the dinette and kitchen areas, and the patio.

       Our disposition of this appeal renders it unnecessary to consider the propriety of this aspect of the trial court’s ruling.

       Since the defendant has not provided us with a separate analysis of her claim under the Connecticut constitution, we decline to address it separately. See State v. Braxton, 196 Conn. 685, 688 n.2, 495 A.2d 273 (1985).

       The defendant argues in her reply brief that the trial court at all times characterized the reentry as an illegal entry and that this finding was not affected by the court’s later modification of its ruling. As a consequence of this, she claims that the state’s theory that the detective’s presence was a “mere continuation” of the legal entry is internally flawed because the trial court found that their presence was at all times illegal. We disagree with the defendant’s characterization of the trial court’s ruling. We note first that the defendant, in her initial brief, described the trial court’s modification as a finding that the second entry of the detectives constituted a mere continuation of the initial legal warrantless entry. Additionally, we view the trial court’s modification, to the extent that it authorizes the second group of officers on the scene to do no more than the first group of officers could legally do, as constituting an implicit finding that their presence was a mere continuation of the earlier legal entry and, consequently, an implicit revision of its earlier factual finding that their presence was illegal.

       The defendant also suggests that the plain view doctrine enunciated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), permits the seizure of items observed in plain view, but does not contemplate memorializing those observations by use of a camera and measuring equipment. Coolidge v. New Hampshire, supra, does not support this proposition, and the defendant has failed to cite any case law which so limits the plain view doctrine. The plain view doctrine is quite broad enough to encompass photographing and measuring items in plain view. See People v. Reynolds, 672 P.2d 529, 532-33 (Colo. 1983); Commonwealth v. Young, 382 Mass. 448, 458-59, 416 N.E.2d 944 (1981). Indeed, it is difficult to see why the defendant’s privacy interest would be unprotected against a plain view seizure, but protected against the less intrusive measure of a plain view photograph or diagram.

       General Statutes § 52-146k provides in relevant part: “(b) On or after October 1, 1983, a battered women’s counselor or a sexual assault counselor shall not disclose any confidential communications made to such counselor at any time by a victim in any civil or criminal case or proceeding or in any legislative or administrative proceeding unless the victim making the confidential communications waives the privilege, provided under no circumstances shall the location of the battered women’s center or rape crisis center or the identity of the battered women’s counselor or sexual assault counselor be disclosed in any civil or criminal proceeding. Any request made on or after October 1, 1983, by the defendant or the state for such confidential communications shall be subject to the provisions of this subsection.”

       Numerous references during testimony on the bill concerning privileged communications were made to the grand jury proceedings held before Judge Spallone. For example, Mark Masselli, executive director of the Community Health Center in Middletown, which operates the New Horizon Shelter, testified: “Although we have always been aware generally of the need for privileged communication in this regard, we experienced rather compelling, firsthand reasons earlier this year, when a resident of our shelter had claimed ‘privileged communication’ during a Grand Jury investigation into her husband’s death, when the Court subpoenaed the file pertaining to her stay at the shelter.
      “While there existed no state statute granting confidentiality, we at the Health Center felt an obligation to resist making public any information which we felt should remain confidential. . . .
      “Our Motion to Quash the Subpoena cited the need for confidentiality .... In overruling the Motion to Quash, the Judge cited the lack of state statute. . . .
      “As Judge Spallone, in our case, stated in recognizing the need for confidentiality for shelters and I quote: ‘Obviously this operation [New Horizons Shelter] operating under privileges is going to operate better. There is no question in my mind, no question in any intelligent person’s mind, it is going to work better.’ He also suggested that if there is a need for that kind of privilege then you should go to the state legislature and try to get it passed.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1983 Sess., pp. 1725-27; see also id., p. 1637, remarks of Charlotte Kinlock, and p. 1728, remarks of Margaret Levy.
      Although there is earlier authority to the contrary; see, e.g., Anderson v. Ludgin, 175 Conn. 545, 554 n.8, 400 A.2d 712 (1978); Spring v. Constantino, 168 Conn. 563, 571-72 n.4, 362 A.2d 871 (1975); in recent years we have repeatedly approved references to testimony before legislative committees in order to shed light on legislative intent. See, e.g., Nationwide Ins. Co. v. Gode, 187 Conn. 386, 392 n.6, 395-96, 446 A.2d 1059 (1982); Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 245, 377 A.2d 305 (1977); Gentile v. Altermatt, 169 Conn. 267, 290-91, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); see also Board of Education v. Bridgeport Education Assn., 9 Conn. App. 199, 204 n.3, 518 A.2d 394 (1986), cert. denied, 202 Conn. 802, 519 A.2d 1206 (1987). This is fully consistent with the general principle of statutory construction that we look, in part, to the problem or issue which the legislature sought to resolve, and the purpose it sought to serve, in enacting a statute. Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982). Often that problem, issue or purpose is disclosed by reference to the testimony before a legislative committee.

       We note that in State v. Lizotte, 200 Conn. 734, 517 A.2d 610 (1986), we skipped directly to the second question without grappling with the first.

       We relied on the following comments by Senator Richard B. Johnston: “ ‘[I]t was not . . . our intent to terminate through the passage of that legislation any then initiated and ongoing grand jury investigations.’ . . . ‘[T]his legislation before us really, in essence, provides a clarification to that legislative intent, that is that those grand juries that were initiated prior to the passage of the Public Act last year were lawfully constituted after the passage of that legislation and legitimately ongoing. It was—when Judge Pickett speaks in his ruling on the motion, he speaks of that there was no grandfathering of any then initiated grand jury investigations. Well, I recall thinking... that the grandfathering of any already instituted actions [was] provided in other passages of the Connecticut general statutes ....’” State v. Blasko, 202 Conn. 541, 557, 522 A.2d 753 (1987).

       In addition to Representative Wollenberg’s comments to this effect quoted in the text, other testimony before the judiciary committee revealed the stimuli for the amendment to be a reaction to prior judicial decisions. For example, Sam Mclure testified as follows: “When this act began to be utilized, it came to pass judges were reluctant to protect the confidential communications which took place prior to the law’s passage.
      “That original intent, the intent illustrated by this legislature for the past two years is for communications between a sexual assault or battered women’s counselor and the victim to be confidential.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1985 Sess., p. 304.
      Jeanne Milstein, legislative coordinator of the Permanent Commission on the Status of Women, testified: “Last year this bill was introduced .... The intent of that bill was to clarify the effective date of the statute that passed two years ago regarding privileged communications between counselors and shelters for abused women .... That’s Public Act 83-429.
      “A serious problem has arisen in the implementation of that statute because the court refused to find communications made prior to the effective date of this law, October, 1984, confidential under the statute. And it has the potential of affecting many cases, and I have those statistics available. I won’t take your time with that.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1985 Sess., p. 353.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights and Opportunities et al.
    (12981)
    (12982)
    Peters, C. J., Healey, Shea, Callahan and Moraghan, Js.

      Argued April 8
    decision released July 7, 1987

      Susan H. Bartholomew, with whom, on the brief, were Alice S. Miskimin, and Michael Quinn and Richard A. Duncan, legal interns, for the appellant (defendant Catherine Pollard).

      Arnold B. Feigin, assistant attorney general, with whom were Barney Lapp and Richard T. Sponzo, assistant attorneys general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellant (named defendant).

      George A. Davidson, pro hac vice, with whom were Linda Trummer-Napolitano, pro hac vice, and James F. Stapleton, for the appellee (plaintiff).
   Peters, C. J.

The dispositive issue in this case is whether the refusal to permit a woman to serve as a scoutmaster for a Boy Scout troop is a violation of our public accommodation statute, General Statutes (Rev. to 1977) § 53-35 (a). As a result of a complaint filed by the defendant Catherine Pollard, the defendant Commission on Human Rights and Opportunities (CHRO) decided, after a hearing, that the plaintiff, Quinnipiac Council, Boy Scouts of America, Inc., was statutorily obligated to offer Pollard a position as scoutmaster. On appeal by the plaintiff, the trial court found the CHRO ruling erroneous. Consequently, the trial court’s judgment nullified the CHRO order in its entirety. Pollard and the CHRO have appealed to this court from that adverse judgment. We find no error.

The trial court accepted, without qualification, the facts as they had been found by the CHRO. The defendant Catherine Pollard requested, first in 1974, and again in 1976, that she be appointed scoutmaster of Boy Scout troop 13 in Milford. Pollard had had a long history of active involvement in scouting, as a merit badge counselor, a cub scout den mother, and as a troop 13 committee member. In this latter capacity, she had acted as de facto scoutmaster for troop 13 when it lacked a functioning scoutmaster and an assistant scoutmaster during the years 1972 to 1976. Under her direction, the scouts in troop 13 had made satisfactory progress through the established boy scout organizational structure, with five boys having attained the rank of eagle scout. Nonetheless, Pollard’s application to be scoutmaster was turned down because of the policy of the Boy Scouts of America that scoutmasters be men at least 21 years of age. Although the official policy statement of the Boy Scouts of America imposes no gender qualification for employment, and encourages women to undertake many volunteer leadership roles, the national organization does not permit women to serve in certain designated volunteer positions: scoutmaster, assistant scoutmaster, webelos den leader, assistant webelos den leader, and lone scout friend and counselor. The plaintiff rejected Pollard’s application solely because of this national policy without making any judgment whatsoever about her individual qualifications to perform the duties required of a scoutmaster.

Nonetheless, the trial court rejected the conclusion of the hearing examiner that the plaintiff violated § 53-35 (a) when it refused to consider the merits of Pollard’s application to be a scoutmaster. The court first reviewed the history of legislative expansion of the concept of a “place of public accommodation” to implement the legislative policy of protecting individual rights at any establishment which caters or offers its services or facilities or goods to the general public. The broad concept of “establishment,” the court determined, was intended to encompass “every possible type of business establishment imaginable” but not “a singular, unique, eleemosynary institution” like the Boy Scouts of America. Furthermore, in applying the statute to the circumstances of this case, the court concluded that it had to determine whether a gender limitation for the position of scoutmaster “is an ‘accommodation’ under our Connecticut statute.” The court held that it was not, both because the plaintiff is not a “place of public accommodation” and because the position of scoutmaster does not fall within the rubric of “services,” “goods” or “facilities” and hence is not a “public accommodation.” Accordingly, the court sustained the plaintiffs appeal and rendered judgment setting aside the order of the hearing examiner of the defendant commission.

The appeals filed by the defendants raise three issues arising out of the trial court’s interpretation and application of § 53-35 (a). These issues are whether the trial court erred in concluding that: (1) the plaintiff is excluded from the category of a “place of public accommodation” because it has no fixed physical situs; (2) the plaintiff’s refusal to offer Pollard a position as scoutmaster was not a discriminatory accommodation practice; and (3) the plaintiffs overall policy did not manifest gender discrimination because scouting invites women to assume many important leadership positions other than the one for which Pollard applied. Although we disagree with the trial court on the first of these issues, we find no error on the second and hence need not reach the third.

I

In our determination of the merits of the defendants’ appeals, it is important to identify, at the outset, what is and what is not at issue. The central question before us is whether the defendants can sustain their statutory claim that § 53-35 (a), our public accommodation statute, forbids the plaintiff from denying to Pollard, because of her gender, the opportunity to serve the plaintiff as a scoutmaster. The defendants have not purported to raise any constitutional claims of gender discrimination, either under the due process or equal protection provisions of the state or the federal constitution, or under the equal rights amendment to the state constitution. Although the plaintiff has asserted grounds alternate to the statute as justification for its denial of a scoutmaster position to Pollard, its principal arguments flow from its reading of the statute itself. Notably, the plaintiff has not claimed that its refusal to consider Pollard's application falls within the exceptions listed in the statute, nor does it claim to have established a “bona fide occupational qualification or need” to limit the position of scoutmaster to men over the age of 21. The issue for us to resolve, therefore, is whether § 53-35 (a) encompasses a claim of discrimination under the facts found by the defendant commission.

It is a discriminatory accommodation practice, under § 53-35 (a), to deny any person within the jurisdiction of this state “full and equal accommodations in every place of public accommodation, resort or amusement ... by reason of . . . sex . . . . ” The phrase “place of public accommodation, resort or amusement” is itself defined “within the meaning of this section [as] any establishment, which caters or offers its services or facilities or goods to the general public, including, but not limited to, public housing projects and all other forms of publicly assisted housing, any housing accommodation, commercial property or building lot, on which it is intended that a housing accommodation or commercial building will be constructed or offered for sale or rent, and mobile home parks . . . . ” General Statutes § 53-35 (a). Violation of this section may give rise to penal sanctions as well as to civil remedies ordered as a result of administrative proceedings before the defendant commission. General Statutes §§ 53-35 (d), 53-36, 53-36a.

In deciding whether § 53-35 (a) makes a gender based refusal to consider an application for scoutmaster a discriminatory public accommodation practice, we operate under well established principles of statutory construction designed to assist us in ascertaining and giving effect to the apparent intent of the legislature. “If the language of a statute is plain and unambiguous, we need not look beyond the statute because we assume that the language expresses the intention of the legislature. Rhodes v. Hartford, [201 Conn. 89, 93, 513 A.2d 124 (1986)]; Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are faced with ambiguity in a statute, however, we turn for interpretive guidance to its legislative history, the circumstances surrounding its enactment, and the purpose the statute is to serve. Rhodes v. Hartford, supra; State v. Kozlowski, [199 Conn. 667, 673, 509 A.2d 20 (1986)]; State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985).” State v. Blasko, 202 Conn. 541, 553, 522 A.2d (1987); see also 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05.

Our construction of § 53-35 (a) confronts us with a question of law in which an administrative decision interpreting the statute is not afforded special deference. Such deference is unwarranted when the question is the construction of a statute on an issue that has not previously been subjected to judicial scrutiny. Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987); Board of Education v. Board of Labor Relations, 201 Conn. 685, 698-99, 519 A.2d 41 (1986); Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).

II

We first address the question whether § 53-35 (a), in any and all circumstances, entirely excludes the Boy Scouts of America. The plaintiff urges us to hold that the concept of “place of public accommodation” necessarily involves a specific physical site and hence automatically excludes its organization from the coverage of the statute. Contrary to the conclusions of the hearing examiner of the defendant commission, the trial court resolved this question in favor of the plaintiff. We agree with the hearing examiner.

The statute, in § 53-35 (a), defines a “place of public accommodation” as “any establishment, which . . . offers its services . . . .” The legislature has itself linked its definition of “place” not with a site, but rather with “any establishment.” The meaning of this linkage is sufficiently ambiguous on its face to require us to look further to determine what the legislature intended to encompass within its prohibition of discriminatory accommodation practices.

Inquiry into the statute’s legislative history makes it exceedingly doubtful that linkage to a physical site is a necessary element of the present definition of a “place of public accommodation.” Public accommodation statutes in general have their origins in the common law duties of innkeepers and common carriers to offer their services to the general public without discrimination. J. Story, Bailments (1846) §§ 466a, 470, 476 (2); W. Jones, Bailments (1828) § 94c; note, “Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws,” 7 N.Y.U. Rev. L. & Soc. Change 215, 217-18 (1978); M. Tobriner & J. Grodin, “The Individual and the Public Service Enterprise in the New Industrial State,” 55 Cal. L. Rev. 1247, 1249-50 (1967). In Connecticut, as the trial court correctly observed, our public accommodation statutes have repeatedly been amended to expand the categories of enterprises that are covered and the conduct that is deemed discriminatory.

Prior to 1953, our public accommodation statute proscribed discrimination at any “place of public accommodation” defined to include a specific list of enterprises offering food, lodging, transportation or entertainment to the general public. General Statutes (Sup. 1949) § 691a. For present purposes, it bears noting that discrimination on railroad cars was then expressly forbidden, without regard to the absence of a fixed “place” for locating a potential source of discrimination. In 1953, the legislature abandoned its laundry list approach when it substituted the general definition of “place of public accommodation” that is the precursor of the present statute. That year the definition came to be, as it remains today, “any establishment which caters or offers its services or facilities or goods to the general public.” General Statutes (Sup. 1953) § 2464 (c).

In order to draw appropriate implications from this legislative history we must consider the remedial purpose that the public accommodation statute was designed to implement. Barco Auto Leasing Corporation v. House, 202 Conn. 106, 116, 520 A.2d 162 (1987); Rhodes v. Hartford, supra, 95; Borzencki v. Estate of Stakum, 195 Conn. 368, 383, 489 A.2d 341 (1985). As the Supreme Court of the United States has only recently reiterated, “public accommodation laws ‘plainly serve compelling state interests of the highest order.’ [Roberts v. United States Jaycees, 468 U.S. 609, 624, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)].” Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. , 107 S. Ct. 1940, 1948, 95 L. Ed. 2d 474 (1987). Among the compelling interests that such statutes serve is the state’s interest in eliminating discrimination against women. Id.; Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); see Evening Sentinel v. National Organization for Women, 168 Conn. 26, 34, 357 A.2d 498 (1975).

In conjunction, the unconditional language of the statute, the history of its steadily expanded coverage, and the compelling interest in eliminating discriminatory public accommodation practices persuade us that physical situs is not today an essential element of our public accommodation law. Like Minnesota’s similarly broadly drafted public accommodation statute, whose comprehensive applicability was recognized in United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981), and held to be constitutional in Roberts v. United States Jaycees, supra, our statute now regulates the discriminatory conduct and not the discriminatory situs of an enterprise which offers its services to the general public.

Ill

Our conclusion that our public accommodation statute does not automatically exclude the plaintiff from coverage because it does not have a fixed physical situs does not, however, end our inquiry. The next question that we must address is whether its conduct in denying Pollard an opportunity to become a scoutmaster was a discriminatory public accommodation practice. We hold that it was not.

In the decision of whether a discriminatory public accommodation practice has occurred, the determinative issue is whether an “establishment” that serves “the general public” has denied access to its goods and services to a member of a protected class. General Statutes § 53-35 (a). Despite the plaintiff’s argument to the contrary, it is not, as a matter of law, dispositive for the resolution of this issue that the allegedly discriminatory “establishment” is a private rather than a business or commercial enterprise. Unlike the statutes in some other jurisdictions, our statute does not expressly limit its coverage to “business enterprises” nor does it expressly exclude private clubs or organizations.

We can discern no reason to interpolate a “business” limitation into the legislature’s unadorned reference to “any establishment.” Like the question of situs, the question of coverage must reflect the legislative purpose of eliminating discriminatory conduct by those who serve the general public. From that vantage point, the organizational status of the enterprise that is the service provider cannot be the determinant of statutory coverage. A hospital, for example, cannot refuse its services to a member of the general public simply because the hospital is a nonprofit corporation. See Rotary Club of Duarte v. Board of Directors of Rotary International, 178 Cal. App. 3d 1035, 1051, 224 Cal. Rptr. 213 (1986), aff’d, 481 U.S. , 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); O’Connor v. Village Green Owners, 33 Cal. 3d 790, 796, 662 P.2d 427, 191 Cal. Rptr. 320 (1983); see also Connecticut Bank & Trust Co. v. Johnson Memorial Hospital, 30 Conn. Sup. 1, 11, 294 A.2d 586 (1972). Similarly, a private university that opens its theater facilities for the entertainment of the general public cannot refuse admission for reasons of race or sex or other grounds made illegal by § 53-35 (a). Although no private organization is duty-bound to offer its services and facilities to all comers, once such an organization has determined to eschew selectivity, under our statute it may not discriminate among the general public. This construction accords with that of other courts in our sister states construing similar legislation. Kiwanis International v. Ridgewood Kiwanis Club, 806 F.2d 468, 473 (3d Cir. 1986); Rotary Club of Duarte v. Board of Directors of Rotary International, supra, 1058-59; United States Jaycees v. McClure, supra, 770-71; National Organization of Women v. Little League Baseball, 127 N.J. Super. 522, 531, 318 A.2d 33, aff’d, 67 N.J. 320, 338 A.2d 198 (1974); see also Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 438, 93 S. Ct. 1090, 35 L. Ed. 2d 403 (1973).

We therefore conclude that our legislature, in enacting § 53-35 (a), did not make a categorical judgment that only commercial and business establishments fall within the ambit of our public accommodation law. Instead, coverage under the statute depends, in each case, upon the extent to which a particular establishment has maintained a private relationship with its own constituency or a general relationship with the public at large. So viewed, the question of coverage is a question not of law but of fact.

It is entirely consistent with the underlying law governing discriminatory practices to inquire into specific circumstances to determine whether a complainant has established a discriminatory denial of accommodations. All of our antidiscrimination law is essentially fact-bound. As the Supreme Court of the United States has frequently reminded us, and as we have repeatedly stated in our own opinions, the individual is the focal point of the legislation that defines and prohibits discriminatory practices. The purpose of antidiscrimination legislation is to afford access to opportunity on the basis of individual abilities rather than on the basis of stereotypical generalizations. Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 708, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978); Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 59, 448 A.2d 801 (1982); Connecticut Institute for the Blind v. Commission on Human Rights & Opportunities, 176 Conn. 88, 96, 405 A.2d 618 (1978); Evening Sentinel v. National Organization for Women, supra, 35. In considering the opportunity of which an individual claims to have been deprived, the focus is equally on the particular opportunity, the particular position, rather than on access to an organization or an industry as a whole. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 122-23, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985). The corollary to these well established principles is that a person seeking recovery for discriminatory practices must demonstrate that he or she has personally been deprived of access to goods or services or positions in a manner forbidden by the statute governing access to public accommodations.

The issue in this case therefore is whether the record sustains Pollard’s claim that she has personally been deprived of a public accommodation when she was denied the opportunity to become a scoutmaster. We do not decide today whether the plaintiff, for some purpose other than the one presently at issue, may be found to be an establishment that “caters or offers its services or facilities or goods to the general public.” We need only determine whether, with respect to the specific position of scoutmaster, the defendants have proven that Pollard was denied access to an “accommodation” within the terms of § 53-35 (a). We conclude that the record does not sustain such a claim.

It is important to note the precise claim that the defendants advance. They maintain that Pollard was denied access to an “accommodation” because the plaintiff denied her the opportunity to be of service to the plaintiff. This claim raises an issue of first impression not only in this state but apparently in the country as a whole.

We observe first that a statute that addresses a discriminatory denial of access to goods and services does not, on its face, incorporate an allegedly discriminatory refusal by an enterprise to avail itself of a claimant’s desire to offer services. An examination of the terms and conditions of existing legislation governing related areas of the law reenforces the likelihood that the legislature intended to restrict the scope of discriminatory accommodation practices as defined by § 53-35 (a) to instances of access to goods and services. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 597, 522 A.2d 771(1987); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987); State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980).

A review of our labor legislation discloses that our General Statutes treat employment discrimination separately from public accommodation discrimination. We deem it especially significant that only the former statute contains an express exception for a “bona fide occupational qualification or need.” General Statutes § 46a-60 (6); see Sullivan v. Board of Police Commissioners, 196 Conn. 208, 211-12, 491 A.2d 1096 (1985); Wroblewski v. Lexington Gardens, Inc., supra; Connecticut Institute for the Blind v. Commission on Human Rights & Opportunities, supra; Evening Sentinel v. National Organization for Women, supra. Such an exception would appear, prima facie, to be as relevant to voluntary services as it is to paid employment. It would provide a proper framework for determining whether the plaintiff and its parent organization are justified or misguided in their view that the desirability of male role models outweighs the value of the services that talented women might provide to the boy scouts.

Our public accommodation statute, § 53-35 (a), gives no indication that it was intended to encompass the proffer of services within its definition of discriminatory accommodation practices. The absence of a statutory exception for a “bona fide occupational qualification or need” in the text of § 53-35 (a) is more consistent with a legislative intent to leave such practices to be regulated by statutes that address employment discrimination rather than by statutes directed to discrimination in public accommodations. We therefore conclude that, in denying Catherine Pollard the opportunity to serve as scoutmaster of Boy Scout troop 13, the plaintiff did not deprive her of an “accommodation” as that term is used in our public accommodation statute.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1977) § 53-35 (a) provides: “discrimination IN PUBLIC ACCOMMODATIONS, RENTAL HOUSING, COMMERCIAL PROPERTY, SALE OF BUILDING LOTS AND MOBILE HOME PARKS, (a) All persons within the jurisdiction of this state shall be entitled to full and equal accommodations in every place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons; and any denial of such accommodation by reason of race, creed, color, national origin, ancestry, sex, marital status, age or physical disability, including, but not limited to, blindness or deafness of the applicant therefor shall be a violation of the provisions of this section. Any discrimination, segregation or separation, on account of race, creed, color, national origin, ancestry, sex, marital status or physical disability, including, but not limited to, blindness or deafness shall be a violation of this section. A place of public accommodation, resort or amusement within the meaning of this section means any establishment, which caters or offers its services or facilities or goods to the general public including, but not limited to, public housing projects and all other forms of publicly assisted housing, and further including any housing accommodation, commercial property or building lot, on which it is intended that a housing accommodation or commercial building will be constructed, offered for sale or rent, and mobile home parks as defined in section 21-64, provided the provisions of this section shall not apply (1) to the rental of a housing accommodation in a building which contains housing accommodations for not more than two families living independently of each other, if the owner or members of his family reside in one of such housing accommodations, or (2) to the rental of a room or rooms in a housing accommodation, if such rental is by the occupant of the housing accommodation, or by the owner of the housing accommodation and he or members of his family reside in such housing accommodation. The provisions of this section, with respect to the prohibition of sex discrimination, shall not apply to the rental of sleeping accommodations provided by associations and organizations which rent all such sleeping accommodations on a temporary or permanent basis for the exclusive use of persons of the same sex. The provisions of this section, with respect to the prohibition of discrimination on the basis of marital status, shall not be construed to prohibit the denial of housing accommodations to a man and a woman who are unrelated by blood or who are not married to each other. The provisions of this section, with respect to the prohibition of discrimination on the basis of age, shall not apply to minors, to federal or state aided or municipal housing for elderly persons or to privately owned housing developed and maintained exclusively for persons within specified age groups.”
      That section has now been recodified, without substantive change, as General Statutes §§ 46a-64 (a) (1) and 46a-63 (a).

       The hearing examiner of the Commission on Human Rights and Opportunities issued the following order:

        “It is hereby ORDERED that the Respondent QUINNIPIAC COUNCIL offer a commission as Scoutmaster of a Boy Scout Troop in the Town of Milford to the Complainant CATHERINE POLLARD. If more than one such Scoutmaster vacancy exists in the Town of Milford, the Complainant may have her choice of troops. In the event that no Milford troop is in need of a Scoutmaster, then the Respondent shall offer CATHERINE POLLARD each Scoutmaster vacancy within the same district or a contiguous district as it occurs, until such time as the Complainant accepts such assignment or an opening within the Town of Milford arises which shall be offered to her forthwith. In the event of illness, vacation, or other circumstance temporarily hindering the Complainant from accepting such position as Scoutmaster on a timely basis, she shall be given at least three such opportunities to be commissioned as Scoutmaster for a Milford Boy Scout troop, which opportunities shall be extended over a minimum time period of one year.
      “QUINNIPIAC COUNCIL of the Boy Scouts of America henceforth shall omit the qualification that commissioned Scoutmasters must be male.
      “HEARING TRIBUNAL
      By: Helen Z. Pearl
      Hearing Examiner”

       The plaintiff, Quinnipiac Council, is a so-called “local council” which is chartered by the National Council of the Boy Scouts of America to serve the south central portion of the state of Connecticut.

       See U.S. Const., amend XIV; Conn. Const., art. I, §§ 8, 20.

       Alternatively, the plaintiff argues that the application of our public accommodation law to an organization such as the Boy Scouts of America violates the right to freedom of association under our federal and state constitutions; U.S. Const., amend. I; Conn. Const., art. I, § 14; and violates the supremacy clause of the federal constitution. U.S. Const., art. IV, cl. 2. Although we need not reach those constitutional issues today, we note that those arguments have little merit in light of the United States Supreme Court’s recent decisions in Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984), and Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. , 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987). In both cases, the United States Supreme Court held that even if a public accommodation law infringes slightly on the constitutional rights of expressive association, that infringement is justified because such statutes serve a compelling state interest in eliminating discrimination. Board of Directors of Rotary International v. Rotary Club of Duarte, supra, 1948; Roberts v. United States Jaycees, supra, 624; see Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
      The plaintiff also challenges the authority of the defendant commission to interpret our public accommodation law through the adjudication of individual cases. It maintains that by interpreting the statute to apply to the plaintiff, the commission was in fact promulgating a regulation, as defined in the Uniform Administrative Procedure Act, General Statutes § 4-166 (7), and circumventing the detailed statutory procedures for the adoption of regulations by administrative agencies. See General Statutes § 4-168 (a). Contrary to the plaintiff’s claim, however, the commission has authority to interpret statutory law through the adjudication process. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356, 377 A.2d 1099 (1977).

       No such qualification is expressly provided in General Statutes § 53-35 (a).

       These statutes providing for civil remedies and penal sanctions have been recodified as General Statutes §§ 46a-64 (c), 46a-86, 46a-91.

       The present case does not involve an administrative regulation that has been approved by the legislative review committee under General Statutes § 4-170. See Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 129-30, 527 A.2d 672 (1987), and cases cited therein.

       Minnesota Statutes (1986) § 363.03 (3) provides in part: “It is an unfair discriminatory practice: To deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national original or sex.” A “place of public accommodation” is defined as a “business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” Minn. Stat. (1986) § 363.01 (18).

       For example, the scope of the California public accommodation law is expressly limited to “business establishments.” Cal. Civil Code Ann. (Deering 1971 & Sup. 1987) § 51. Other jurisdictions have narrowed the scope of their public accommodation laws by expressly exempting any institution “which is in its nature distinctly private.” See, e.g., D.C. Code (1981 & Sup. 1986) § 1-2502 (24); N.J. Stat. Ann. (1976 & Sup. 1986) § 10:1-5; N.Y. Exec. Law (McKinney 1982 & Sup. 1987) § 292 (9); Or. Rev. Stat. Ann. (1983) § 30.675 (2).

       We note that the present record does not substantiate, in any fashion, a claim of discriminatory denial of access to generally available “services or facilities or goods.” Although the defendants allege that by denying Pollard the opportunity to serve as scoutmaster, the plaintiff deprived her of access to facilities, there is no finding that Pollard was ever excluded, for any reason, from any meeting place associated with scouting. It would indeed be surprising if, despite her status as a member of the troop committee, she would have been unwelcome to attend any troop meetings wherever they might be held. There is similarly nothing of record to substantiate that Pollard was ever deprived of access to services that the plaintiff made available to the general public. Although there is a finding that “[sjcoutmasters and other adult volunteer leaders are encouraged to participate in nationally developed . . . group training courses,” there is no correlative finding that Pollard was ever excluded from pursuit of any of these educational opportunities. Finally, none of these claims regarding access to services or facilities is buttressed by a factual showing that they were otherwise made available, unselectively, to members of the general public. To the extent that these opportunities would have been available only to those whom the plaintiff had accepted as scoutmasters, our discussion holding such voluntary employment to be outside the scope of a public “accommodation” would preclude finding a discriminatory accommodation practice on these grounds.