author: Peters, C. J.

text:
    Ralph G. Murphy v. State Employees Retirement Commission
    (14121)
    Peters, C. J., Shea, Callahan, Covello and F. X. Hennessy, Js.

      Argued March 21
    decision released May 14, 1991

      Robert L. Hirtle, Jr., with whom, on the brief, was Richard M. Porter, for the appellant (plaintiff).

      Robert A. Whitehead, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, then attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   Peters, C. J.

This administrative appeal, by way of reservation, concerns the continued eligibility of a retired state employee to receive his state pension after his appointment as a per diem Superior Court magistrate. The plaintiff, Ralph G. Murphy, filed a petition for a declaratory ruling with the defendant, the state employees retirement commission (commission), in order to clarify his eligibility to continue to receive retirement benefits under General Statutes § 5-162. The commission ruled that the plaintiff had reentered state employment by accepting the appointment as a magistrate, and that his pension would therefore be suspended, under General Statutes § 5-164a (c), if he worked as a magistrate for more than ninety days during any calendar year. In accordance with General Statutes § 4-183, the plaintiff appealed the commission’s ruling to the trial court, which granted the parties’ joint motion for reservation of a question of law to the Appellate Court. We transferred the appeal here in accordance with Practice Book § 4023. Contrary to the ruling of the commission, we answer the reserved question “No.”

The record establishes that the plaintiff began to receive retirement benefits as a member of the state employees retirement system after his retirement as an assistant attorney general on March 1, 1986. He became a Superior Court magistrate on September 1, 1987, as the result of an appointment by the chief court administrator, which appointment has since been renewed annually. Magistrates serve the judicial department upon departmental determination of the need for their services, which may exceed ninety days per annum, and are compensated per diem on a basis other than the submission of a payroll to the comptroller. The plaintiff has not made retirement contributions with respect to the fees he has earned as a magistrate. In the state comptroller’s filings with the Internal Revenue Service for the tax year 1987, the plaintiff’s retirement benefits were reported on Form W-2P, while his magistrate’s income was reported on Form 1099 Misc. as nonemployee compensation.

The plaintiff’s continued eligibility for retirement benefits turns on the statutory provisions governing the state employees retirement system. The determinative statutory language is contained in General Statutes § 5-164a (c), which provides that “[n]o member . . . reentering state service shall receive a retirement income during his reemployment . . . except (1) if his services as an employee are rendered for not more than ninety working days in any one calendar year . . . .”

The commission ruled that the plaintiff had reentered state service by accepting appointment as a magistrate. The administrative hearing focused primarily on the question of whether a magistrate was an “employee” for the purposes of § 5-164a (c). On this issue, which the commission considered a mixed question of fact and law, it rejected the plaintiff’s contention that he was an independent contractor and concluded instead that he was an employee. The commission noticed, but did not consider in depth, the light that the statutory definition of “state service” might shed on the plaintiffs pension eligibility.

In the plaintiffs appeal to the Superior Court, the plaintiff challenged not only the administrative determination that his service as a magistrate made him an employee but also the underlying administrative assumption that his judicial employment was “state service” for which a salary is paid. Both of these contentions have been renewed in the appeal in this court. We agree with the plaintiffs second contention, that his appointment was not a “reentry” into state service as that term is statutorily defined in the State Employees Retirement Act; General Statutes §§ 5-152 through 5-192x; and therefore need not consider his first contention. Under the governing statutes, the plaintiff is entitled to continue to receive pension payments because he is not, at the present, in “state service” for the reason that he is not now receiving a “salary.”

Our determination of whether the plaintiff’s employment as a state magistrate constitutes “reentering state service” in § 5-164a (c) must be informed by the definitions for the State Employees Retirement Act that are set out in General Statutes § 5-154. Subsection (m) of § 5-154 defines the term “state service” as “service with the state, either appointive or elective, for which a salary is paid.” (Emphasis added.) Subsection (h) of § 5-154 in turn defines the term “salary” as “(1) any payment . . . for state service made from a payroll submitted to the comptroller . . . and (3) fees received from the state in whole or in part in lieu of or in addition to item (1) above and established to the satisfaction of the retirement commission, to the extent that the employee has made retirement contributions on such fees . . . .” For a person not on a state payroll, and not otherwise receiving a “salary,” subsection (h) (3) establishes the making of retirement contributions as the basis for determining whether the receipt of per diem fees is to be characterized as “salary.”

The plain language of these definitional provisions supports the plaintiff’s continued eligibility to draw his retirement benefits regardless of his service as a magistrate for more than ninety days in any calendar year. The plaintiff’s per diem fees concededly are not paid from a “payroll submitted to the comptroller.” It is also the fact that the plaintiff has not “made retirement contributions on such fees.”

The commission maintains, however, that the plaintiff had the right to elect to make retirement contributions under § 5-164a (a) and that the existence of this option qualifies the fees received by the plaintiff as “salary.” We disagree. We reject the commission’s premise that a state employee’s elective right to make retirement contributions is the statutory equivalent of the employee’s having made retirement contributions.

The legislature might well have defined “salary” in § 5-154 (h) (3) to include fees with respect to which the employee “has made or was entitled to make retirement contributions.” To date, it has not done so. The legislature has determined instead to include fees within “salary” only when the employee has in fact made such retirement contributions. As the plaintiff suggests, the legislature’s choice may reflect its awareness of the fact that the calculation of retirement income, under § 5-162, depends in large part upon a state employee’s three highest paid years of state service. To the limited extent that case law preceding the current act has relevance, it supports the legitimacy of a legislative distinction, for retirement income purposes, between the receipt of a “salary” for “service with the state” and the receipt of fees for more irregular, part-time governmental services. State ex rel. Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942). Whatever the reasons for the legislature’s decision, it had plenary authority to exercise its policy choice about continued eligibility for state retirement benefits. Cf. Bartholomew v. Schweizer, 217 Conn. 671, 681-82, 587 A.2d 1014 (1991). We have no warrant to override that choice.

To the reserved question: “Does the appointment of a retired state employee, receiving benefits from the State Employees Retirement System pursuant to Chap. 66 of the Conn. Gen. Stat., as a Superior Court Magistrate pursuant to Conn. Gen. Stat. § 51-193Í constitute reentering state service, as defined in Conn. Gen. Stat. § 5-154(m), so that the retired employee’s retirement income is suspended if the employee works 90 days in any one calendar year pursuant to Conn. Gen. Stat. § 5-164a (c)?”, our answer is “No.”

No costs will be taxed to either party.

In this opinion the other justices concurred.

       General Statutes § 5-162 provides in relevant part: “retirement date and retirement income, (a) The retirement income for which a member is eligible shall be determined from his retirement date, years of state service and base salary, in accordance with the schedule in subsection (c) or (d) below, whichever is appropriate.”

       “[General Statutes] Sec. 5-164a. retirement credit of retired EMPLOYEES WHO ARE REEMPLOYED OR ELECTED TO SERVE IN THE GENERAL ASSEMBLY, (a) Any person who has retired from the service of the state under any provision of this chapter and who is reemployed on a permanent basis may elect, upon completion of not less than six months of continuous service of reemployment or other state service, to make contributions to the retirement fund and resume membership in the retirement system. He may also elect to obtain credit for service for the period between the date of such reemployment or other state service and the date of such election, provided he shall contribute to the retirement fund for each month of such service a sum equal to the total contributions he would have paid if he had been a member of the retirement system during such period. Such payment shall be made within six months of the date on which his contributions to the retirement fund are resumed.
      “(b) Any person who has retired from the service of the state under any provision of this chapter and who is elected to serve in the general assembly may elect, effective from the first day of his term of office, to make contributions to the retirement fund and resume membership in the retirement system.
      “(c) No member reemployed under this section or under section 5-164 or elected to serve in the general assembly or otherwise reentering state service shall receive a retirement income during his reemployment or other state service except (1) if his services as an employee are rendered for not more than ninety working days in any one calendar year, provided that any member reemployed for a period of more than ninety working days in one calendar year shall reimburse the state retirement fund for retirement income payments received during such ninety working days; or (2) if his services are as a member of the general assembly or as a sessional employee of the general assembly during the regular legislative session, his retirement income payments shall not be suspended.
      “(d) Upon the subsequent retirement of a member who has made an election under subsection (a), or upon the expiration of the term of office of a member of the general assembly who has made an election under subsection (b), his retirement income shall be recomputed on the basis of his total period of credited state service, excluding any period for which a retirement salary was paid under (1) or (2) of subsection (c), and with his base salary recomputed on the basis of his three highest-paid years of his total state service.”

       General Statutes § 4-183 provides in relevant part: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section.”

       The question reserved by the trial court is: “Does the appointment of a retired state employee, receiving benefits from the State Employees Retirement System pursuant to Chap. 66 of the Conn. Gen. Stat., as a Superior Court Magistrate pursuant to Conn. Gen. Stat. § 51-1931 constitute reentering state service, as defined in Conn. Gen. Stat. § 5-154 (m), so that the retired employee’s retirement income is suspended if the employee works 90 days in any one calendar year pursuant to Conn. Gen. Stat. § 5-164a (c)?”

       “[General Statutes] Sec. 51-1931. appointment of magistrates, submission OF NAMES OF PROBATE JUDGES FOR APPROVAL AS MAGISTRATES. The chief court administrator shall make such orders and rules as he deems necessary to provide for the appointment of magistrates to hear and decide cases pursuant to the provisions of sections 51-193t and 51-193u. Any commissioner of the superior court, admitted to practice in this state for at least five years, who is able and willing to hear such cases designated in accordance with sections 51-193t and 51-193u may be appointed as a magistrate. Any probate judge who is a commissioner of the superior court admitted to practice in this state for at least five years may submit his name to the probate court administrator, who shall submit a list of such names to the office of the chief court administrator for approval to be placed on a list of available magistrates for one or more judicial districts.”

       “[General Statutes] Sec. 5-154. definitions. For the purposes of this chapter . . . (h) ‘Salary’ means (1) any payment, including longevity payments and payments for accrued vacation time under section 5-252, for state service made from a payroll submitted to the comptroller; and (2) the cash value of maintenance furnished by the state; and (3) fees received from the state in whole or in part in lieu of or in addition to item (1) above and established to the satisfaction of the retirement commission, to the extent that the employee has made retirement contributions on such fees; and (4) compensation paid by the United States to state employees who are employees of the United States Purchasing and Finance Office. Notwithstanding the provisions of section 5-208a, any state employee who is employed by more than one state agency during any week shall, for compensation earned on and after January 1, 1983, have all such compensation recognized for all purposes of the retirement program.”

       See footnote 2, supra, for the text of General Statutes § 5-164a (a). We need not, in this case, decide whether the plaintiffs service as a magistrate qualifies as reemployment “on a permanent basis,” which is a condition to eligibility “to make contributions and resume membership in the retirement system.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Stephen C. Bombero et al. v. Planning and Zoning Commission of the Town of Trumbull
    (14180)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued February 14
    decision released May 21, 1991

      Burton S. Yaffle, for the appellant (defendant).

      Barbara F. Green, with whom, on the brief, was Samuel T. Rost, for the appellees (plaintiffs).
   Borden, J.

The defendant, the planning and zoning commission of the town of Trumbull (commission), appeals from the judgment of the trial court that an amendment to the subdivision regulations of the town is (1) unconstitutionally vague, and (2) arbitrary. The plaintiffs had appealed to the trial court from the action of the commission in enacting the amendment. On appeal to this court, the commission claims that the trial court improperly concluded that: (1) the plaintiffs were aggrieved by the enactment of the amendment; and (2) the amendment is unconstitutionally vague and is arbitrary. We conclude that the trial court should not have considered the validity of the subdivision regulation in the context of the plaintiffs’ zoning appeal, and we reverse the judgment of the trial court.

Certain facts are undisputed. After a public hearing, the commission amended chapter IX, § 1, of the subdivision regulations by adding the following provision: “Land with existing slopes of more than 25 per cent, or areas which have been designated as inland wetlands, or areas lying within a 100-year flood plain mapped by the Federal Flood Insurance Administration is environmentally sensitive land, and shall be excluded from the minimum lot size or acreage requirements set forth on the schedule in Article III of the Zoning Regulations, to the extent that such environmentally sensitive land exceeds 50 per cent of such parcel.” Section 1 of chapter IX of the subdivision regulations is entitled “Recommendations.” Thus, the effect of the amendment was to add its provisions to the “Recommendations” section of chapter IX of the subdivision regulations.

Although the parties have not explained precisely how the amendment affects subdivision applications, presumably it is linked to chapter V, § 2, of the subdivision regulations. That section provides that a “Plan of Subdivision shall conform to the zoning regulations in effect at the time of approval of such Plan [of Subdivision].” The general effect of the subdivision amendment, therefore, is to enable the commission to deny a subdivision application for a parcel more than 50 percent of which fits the definition of “environmentally sensitive land,” on the ground that the parcel is excluded from the applicable schedule in Article III of the zoning regulations. This record does not disclose, however, any parallel amendment to the zoning regulations. In amending the subdivision regulation, the commission was acting solely in its planning, as opposed to its zoning, capacity. See Cristofaro v. Burlington, 217 Conn. 103, 106, 584 A.2d 1168 (1991).

The plaintiffs appealed from the enactment of the amendment to the Superior Court. They claimed that the amendment was impermissibly vague because: (1) it contained no adequate definition of a wetland; and (2) the meaning of “[ljand with existing slopes of more than 25 per cent” was too uncertain to guide the determinations of the commission or the property owner, as was the phrase “excluded from the minimum lot size or acreage requirements set forth on the schedule in Article III of the Zoning Regulations . . . .” They also claimed that: (3) the inclusion in the amendment of the reference to wetlands constituted an illegal usurpation of the power of the town’s inland wetlands and watercourses commission because only that commission was authorized to determine wetlands; (4) the amendment took their land without just compensation; (5) the amendment was adopted without the commission stating its reasons therefor on the record, in violation of General Statutes § 8-3 (c); and (6) during the commission’s deliberations on the proposed amendment, the commission arbitrarily changed the slope requirement from 15 to 25 percent.

At the hearing in the trial court, the plaintiffs only presented evidence of aggrievement. That evidence was that certain of the plaintiffs owned undeveloped parcels of land in the town that were large enough to be subdivided, and that each of these parcels either contained an area of more than a 25 percent slope or an area that had been designated as wetlands on the town’s wetlands map. In addition, the commission had filed with the trial court, as part of its return of record, the administrative record of the amendment.

After oral argument, the trial court found that the plaintiffs were aggrieved, and ruled from the bench “that the regulation is . . . void for vagueness. . . .” This was followed by a written memorandum of decision in which the trial court further stated that the amendment was “void for vagueness in that: Said regulation lacks standards sufficient to guide the commission and to enable those affected to know their rights and obligations. In addition, the record reveals no basis for using a 25% grade or a 50% maximum as standards. The record reveals (Exhibit 12) that both figures were arbitrarily chosen with no engineering or scientific support.”

Upon a grant of certification, the commission appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023.

The commission claims that the trial court improperly found that the plaintiffs were aggrieved and improperly invalidated the regulation. We need not reach the merits of the commission’s claims because we conclude that the appropriate procedural vehicle for the plaintiffs’ attack on the regulation was a declaratory judgment action, and not an appeal from its enactment.

Recently, in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561-63, 552 A.2d 796 (1989), we held that the trial court should have dismissed the plaintiffs’ constitutional vagueness attack on the adequacy of the town of Ridgefield’s wetlands regulations made in the context of an appeal from the denial of a wetlands application. We stated that “[t]he final constitutional issue, relating to the adequacy of the regulations in setting forth standards for a decision upon an application, constitutes the kind of general attack upon land use regulations that we have indicated should be the subject of a declaratory judgment action rather than an appeal from the denial of an application submitted pursuant to those regulations.” Id., 563. The rationale for this procedural requirement is that “[t]he validity of the regulations is a question in which many property owners, in addition to the plaintiffs, may have an interest, and an opportunity for such persons to intervene should be afforded before any such determination should be made.” Id.

This rationale applies equally here. With the exception of the plaintiffs’ claim of a taking without just compensation, which we discuss below, the plaintiffs’ claims constitute a general attack on the validity of the regulation. Such an attack should have been presented by way of a declaratory judgment action in which other property owners who may have an interest would have had the opportunity to intervene and be heard.

Indeed, this record supplies an additional rationale for requiring the plaintiffs to have mounted their attack in a declaratory judgment action. Because this case came to the court in the context of an appeal from the enactment of the regulation, the record is devoid of a sufficient factual basis on which to evaluate the claimed vagueness of the regulation. See D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 453, 585 A.2d 1227 (1991). The only facts presented to the court, other than those contained in the administrative record, were those relating to aggrievement.

Regulations, like statutes, do not exist in a vacuum. See State v. Floyd, 217 Conn. 73, 78, 584 A.2d 1157 (1991); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987). Ordinarily, their purported vagueness should be evaluated in the context of a specific factual situation, so that a court may resolve any ambiguities and, if necessary, interpret them in the light of those facts so as to avoid any potentially unconstitutional vagueness. Connecticut Building Wrecking Co. v. Commissioner of Environmental Protection, 218 Conn. 580, 588, 590 A.2d 447 (1991). In a declaratory judgment action, the party seeking to invalidate the regulation would be required to present sufficient facts to the court “in order to meet its burden of demonstrating the [regulation’s] adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven. ... In the absence of weighty countervailing circumstances, facial invalidation of a [regulation] is improvident.” Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, supra. Similarly, in this case, the court’s facial invalidation of the regulation on vagueness grounds was improvident, because insufficient facts were presented to permit the court to apply and to evaluate the language of the regulation in a concrete factual setting.

It is of no moment that not all of the bases of the plaintiffs’ challenge to the regulation were constitutional. It cannot be disputed that the plaintiffs’ appeal to the trial court was a “general attack”; Cioffoletti v. Planning & Zoning Commission, supra, 563; on the validity of the regulation. As such, it involved questions in which many other property owners had an interest, and they should have been afforded the opportunity to intervene and be heard. Id.; see also Cristofaro v. Planning & Zoning Commission, 11 Conn. App. 260, 263-64, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987) (nonconstitutional challenge to validity of subdivision regulation should have been made by way of declaratory judgment action, rather than by appeal from denial of subdivision application).

We recognize that our cases have not always been consistent in requiring a declaratory judgment action as the method by which to challenge the validity of zoning or planning regulations. Compare Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989), Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 523 A.2d 467 (1987), Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970), Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956), Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954), Cristofaro v. Planning & Zoning Commission, supra (declaratory judgment actions), with Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985) (injunction), New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1974) (injunction), Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976) (appeal), Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975) (appeal). Without attempting to reconcile all those cases, we think that the rationales behind the requirement of a declaratory judgment action apply to the plaintiffs’ claims in this case.

The plaintiffs’ principal claim in the trial court was that the regulation was unconstitutionally vague. That claim falls squarely within both the rationale of Cioffoletti, and the additional rationale of requiring an adequate factual predicate for such a claim. Where, as here, the plaintiffs combine constitutional and unconstitutional attacks on a regulation, it serves judicial economy to require that the nonconstitutional claims of invalidity be presented to the court in the same action as the constitutional claims. It makes little procedural sense to balkanize the plaintiffs’ challenges between a declaratory judgment action and an appeal. Since the declaratory judgment action can accommodate both the constitutional and nonconstitutional claims, whereas the statutory appeal may not, judicial economy suggests that the declaratory judgment action be the proper vehicle.

This does not mean, however, that whenever a party wishes to challenge the validity of a local land use regulation, he must do so by a declaratory judgment action. There are many instances where, because of the procedural posture of the case, he may have no practical choice but to raise his challenge in the context of an appeal. We hold only that where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation’s invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment. Thus, the plaintiffs in this case should have brought a declaratory judgment action in order to raise their challenges to the facial invalidity of the regulation.

In this case, the only claim raised by the plaintiffs that does not come within the rationale of requiring a declaratory judgment action is their claim that the enactment of the regulation constituted a taking of their properties without just compensation. That claim does not involve a general challenge to the validity of the regulation. A landowner has the burden of establishing that a land use regulation amounts to a taking of his particular property. See DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 271-72, 205 A.2d 774 (1964). This ordinarily involves a showing that, on the particular facts of the case, the regulation “ ‘practically destroys [the property’s] value for any permitted use to which it can reasonably be put . . . ” Primerica v. Planning & Zoning Commission, 211 Conn. 85, 98, 558 A.2d 646 (1989), quoting State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 106, 239 A.2d 528 (1968). Although generally we would remand to the trial court any issue that it did not resolve, we see no reason to do so in this case. The record establishes without question that the plaintiffs made no attempt to prove a taking. We are not inclined to remand to the trial court a claim of parties on which they made no attempt to present evidence in the first instance.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs’ appeal.

In this opinion the other justices concurred.

       The plaintiffs are Stephen C. Bombero, Ronald M. Bombero, William J. Buckley, Eleanora B. Carpenter, Ellen C. Daly, Dorothy Grabowski, Edmond Fenyes, Mary Fenyes, Frank Minardi and Kathleen Minardi.

       The schedule in article III of the zoning regulations, referred to in the amendment, defines the minimum lot sizes for the various zones; those sizes range from one acre in Residence AAA to three acres in Industrial I-L3.

       Section 1 of chapter IX of the subdivision regulations, prior to the amendment at issue in this case, provided as follows: “recommendations. In all subdivisions, the Commission may make such recommendations as shall seem to it necessary to preserve and enhance scenic values, the environmental quality, and conditions making for excellence of residential, commercial or industrial development, as the case may be.”

       After the amendment, therefore, § 1 of chapter IX of the subdivision regulations provided as follows: “recommendations. In all subdivisions, the Commission may make such recommendations as shall seem to it necessary to preserve and enhance scenic values, the environmental quality, and conditions making for excellence of residential, commercial or industrial development, as the case may be.
      “Land with existing slopes of more than 25 per cent, or areas which have been designated as inland wetlands, or areas lying within a 100-year flood plain mapped by the Federal Flood Insurance Administration is environmentally sensitive land, and shall be excluded from the minimum lot size or acreage requirements set forth on the schedule in Article III of the Zoning Regulations, to the extent that such environmentally sensitive land exceeds 50 per cent of such parcel.”

       The plaintiffs who submitted evidence of aggrievement were Stephen C. Bombero, Eleanora B. Carpenter, Dorothy B. Grabowski, Edmond Fenyes and Mary Fenyes, Frank Minardi and Kathleen A. Minardi. There was no aggrievement evidence offered with regard to the plaintiffs Ronald M. Bombero, William J. Buckley and Ellen C. Daly.

       The evidence as to the parcels owned by Carpenter and Grabowski, and by the Minardis, was that they had slopes of more than 25 percent. The evidence as to the parcel owned by Stephen C. Bombero was that more than 50 percent of it had been designated as wetlands. The evidence as to the parcel owned by Edmond and Mary Fenyes was that all of it had been designated as wetlands.

       The administrative record discloses, inter alia, that as first considered by the commission the proposed amendment differed in three respects from the amendment as finally adopted: (1) it applied to parcels with existing slopes of more than 15 percent, rather than 25 percent; (2) it left to the discretion of the commission and the recommendation of the town engineer whether a parcel that fit the definition of “environmentally sensitive land” would nonetheless be excluded from the minimum lot acreage of the zoning regulations; and (3) it did not limit that definition “to the extent that such environmentally sensitive land exceeds 50 per cent of such parcel.” The administrative record contains no facts about the plaintiffs’ particular parcels, or the potential effect of the regulation on them.

       Exhibit 12 of the return of record is a copy of the minutes of the November 29,1988 meeting of the commission, at which the proposed amendment was discussed, further amended in several respects; see footnote 7, supra; and adopted.

       This latter part of the trial court’s decision does not rest on the vagueness principle, but on the plaintiffs’ claim that the commission’s modification of the proposed amendment from a slope of 15 percent to 25 percent was arbitrary.

       For example, a landowner faced with a cease and desist order based on an invalid regulation should be permitted to raise its invalidity in the course of his appeal from the cease and desist order. Similarly, an aggrieved person who wishes to challenge the land use authority granted to his neighbor that is based on an invalid regulation should be permitted to do so by way of an appeal from that grant of authority. See Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976).


author: Callahan, J.

text:
    State of Connecticut v. Roy A. King
    (13727)
    Shea, Callahan, Glass, Hull and Borden, Js.
    Argued September 28, 1990
    decision released May 21, 1991

      David J. Burke, special public defender, with whom were Pamela K. Elkow and, on the brief, Peter A. Stroili and Michael A. Fitzpatrick, special public defenders, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Roy A. King, was convicted of the crimes of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and arson in the first degree in violation of General Statutes § 53a-111 (a) (2). In State v. King, 216 Conn. 585, 603-604, 583 A.2d 896 (1990), in which we set forth the relevant facts in detail, we ordered a new trial as to the counts of attempted murder and assault in the first degree. We also ordered further proceedings as to the arson count because we concluded that the trial court improperly had failed to order the production of a report prepared by a state police officer concerning interviews that the officer had conducted with certain inmates and that the trial court had failed to conduct an in camera inspection of that report. Id., 599-600. Specifically, we ordered the trial court to answer three questions concerning the report: (1) whether the report in question was a “statement” under Practice Book § 749; (2) if so, whether all of the statement or any portion of it should have been disclosed pursuant to Practice Book §§ 752 and 753; and (3) if all or a portion of the statement should have been disclosed, whether the defendant was prejudiced by the nondisclosure. Id., 599.

On remand, the trial court conducted the required examination and concluded that the report was a “statement” under § 749 and that a portion of it should have been disclosed, but that the defendant had not been harmed by his inability to gain access to the undisclosed material. We granted the defendant’s motion to file a supplemental brief challenging the trial court’s findings, but limited our review to the question of whether the trial court properly determined that the nondisclosure of the information in the report did not prejudice the defendant.

We have reviewed the defendant’s and the state’s briefs on this issue and conclude that the trial court properly found that the failure to disclose did not prejudice the defendant. See United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (undisclosed evidence is material only if there is a reasonable probability that the outcome of the proceeding would have been different if the evidence had been disclosed). The defendant, therefore, is not entitled to a retrial on the arson count.

The judgment of guilty of arson in the first degree is affirmed.

In this opinion the other justices concurred.


author: Covello, J.

text:
    B. A. Ballou and Company, Inc. v. Citytrust
    (14178)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued February 20
    decision released May 21, 1991

      Richard J. Buturla, for the appellant (defendant).

      Samuel B. Feldman, with whom, on the brief, was Donna M. Case-Rossato, for the appellee (plaintiff).
   Covello, J.

This is an action in conversion. The plaintiff, B. A. Ballou and Company, Inc., alleges that the defendant, Citytrust, wrongfully appropriated the plaintiff’s scrap metal while it was in the possession of a third party, Bridgeport Rolling Mills Company. The issues on appeal are: (1) who has the burden of proving whether a bailment exists; (2) whether under the circumstances presented a bailment existed; and (3) whether damages for conversion were properly calculated. We conclude that (1) the burden of proving a bailment lies with the party whose claim to ownership relies upon such a relationship, and (2) no bailment existed here.

The parties stipulated as follows: the plaintiff B. A. Ballou and Company, Inc. (Ballou), manufactures jewelry. Bridgeport Rolling Mills, Inc. (Brimco), was a metal fabricator. Brimco supplied Ballou with sheets of stock brass, an alloy that Ballou used to manufacture jewelry. Ballou shipped its leftover brass back to Brimco, which commingled it with scrap brass received from other companies. Brimco then shipped the accumulated scrap to a processing mill, which added new base metal as required and reconstituted it into finished brass that Brimco thereafter kept in its inventory available for subsequent orders. The type of brass needed by a given customer varied from time to time and therefore the new brass returned to the customer by Brimco could have an entirely different composition than the scrap sent by the customer. For example, Brimco might receive brass scrap composed of 70 percent copper and 30 percent zinc and return brass composed of 85 percent copper and 15 percent zinc. The only record of the brass sent by Ballou to Brimco was a “toll metal account” that listed the weight of each base metal in a given customer’s account. Because Brimco commingled the scrap metal and had it remanufactured by a third party who mixed it with new metal as needed, there was no way of determining whether any of the same scrap sent to Brimco by Ballou ever returned to Ballou as finished brass.

On May 22, 1981, Brimco entered into a security agreement with the defendant Citytrust for a revolving line of credit. The loan was secured by an interest in “[a]ll inventory of the Borrower, now owned or hereafter acquired .... All goods ... or other property ... in which Borrower has an interest ... or come[s] into possession.” Unknown to Ballou, Brimco consistently represented to Citytrust that it owned all the scrap metal in its possession. In June, 1987, Citytrust, as a secured creditor, took possession of Brimco’s assets pursuant to the security agreement, including all metal on site.

Ballou thereafter brought an action against Citytrust for its alleged conversion of Ballou’s scrap metal and for violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The trial court concluded that Ballou had retained title to the scrap and that a bailment therefore existed. It accordingly rendered judgment for Ballou in the amount of $114,575. Citytrust appealed, claiming that the trial court (1) incorrectly concluded that a bailment existed, (2) improperly shifted the burden of proof to Citytrust to prove that a bailment did not exist, and (3) improperly calculated the damages. We transferred the appeal to this court in accordance with Practice Book § 4023.

Citytrust first claims that the trial court improperly placed the burden of proving a necessary element of Ballou’s case upon Citytrust. In order for Ballou to prevail on its conversion claim, it must demonstrate that it continued to own the scrap. Gilbert v. Walker, 64 Conn. 390, 394, 20 A. 132 (1890). Since Brimco had possession, Ballou was required to prove the existence of a bailment. It is an “ ‘elementary rule that whenever the existence of any fact is necessary in order that a party may make out his case . . . the burden is on such party to show the existence of such fact.’ ” Nikitiuk v. Pishtey, 153 Conn. 545, 552, 219 A.2d 225 (1966); Eichman v. J & J Building Co., 216 Conn. 443, 451, 582 A.2d 182 (1990). This rule holds true for bailment cases as well. See Wells v. Active Automobile Exchange, Inc., 99 Conn. 523, 527, 121 A.883 (1923); C. McCormick, Evidence (3d Ed.) § 337; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 4.2.1. While the trial court arguably assigned the burden of proof of this issue to Citytrust we need not take up Citytrust’s claim in this regard because we find that, under the facts as stipulated, a bailment could not have existed.

Ballou claims that the toll metal account between itself and Brimco constituted a bailment. Ballou argues that, as a bailor, it retained title to the scrap metal in Brimco’s possession and that Citytrust therefore became liable to it in conversion for seizing its scrap.

A bailment “ ‘involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement.’ ” Seedman v. Jaffer, 104 Conn. 222, 226, 132 A. 414 (1926), quoting Murray v. Paramount Petroleum & Products Co., 101 Conn. 238, 242, 125 A. 617 (1924). “A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor’s directions.” Moulding v. United States, 257 F.2d 56, 60 (1958). “In bailment, the owner or bailor has a general property [interest] in the goods bailed . . . .” McKesson & Robbins, Inc. v. Walsh, 132 Conn. 158, 162, 42 A.2d 841 (1945). The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment. Sturm v. Boker, 150 U.S. 312, 330, 14 S. Ct. 99, 37 L. Ed. 1093 (1893).

The trial court found that scrap from Ballou had been commingled with scrap from other sources and concluded that “[t]he fact that the property of the plaintiff is commingled with like property of another . . . does not necessarily force the conclusion that the transaction is not a bailment.” We agree that the commingling of fungible goods alone does not defeat a bailment when the bailor specifically intended to retain ownership of a known share of the commingled goods. Public Service Electric & Gas Co. v. FPC, 371 F.2d 1 (3d Cir.), cert. denied, 389 U.S. 849, 88 S. Ct. 33, 19 L. Ed. 2d 119 (1967); Slaughter v. Green, 22 Va. 3, 9 (1821).

A different rule, however, applies where the purpose of the bailment is to alter or remanufacture goods surrendered to the alleged bailee. The bailment in such an instance is termed “a bailment . . . locatio operis faciendi [i.e.] a bailment where work and labor . . . are to be performed upon the thing delivered to the bailee. The parties to a bailment of this character-one for their mutual benefit—enter into a contract, express or implied, or both, by which the bailee engages to perform the agreed services and return the thing bailed in its altered . . . form, and the bailor in return for the services of the bailee agrees to pay him the agreed-upon compensation.” Douglass v. Hart, 103 Conn. 685, 688, 131 A. 401 (1925).

In a bailment of this type, “the question of [whether a transaction constitutes a] bailment or not is determined by whether the identical article delivered to the manufacturer is to be returned to the party making the advance. Thus, where logs are delivered to be sawed into boards, or leather to be made into shoes, rags into paper, olives into oil, grapes into wine, wheat into flour, if the product of the identical articles delivered is to be returned to the original owner in a new form, it is said to be a bailment, and the title never vests in the manufacturer. If, on the other hand, the manufacturer is not bound to return the same wheat or flour or paper, but may deliver any other of equal value, it is said [not to be a bailment] . . . .” (Emphasis added.) Powder Co. v. Burkhardt, 97 U.S. 110, 116, 24 L. Ed. 973 (1877); see Clark v. Rosen, 126 Conn. 707, 708-10, 14 A.2d 39 (1940); Douglass v. Hart, supra, 687-88; Johnson v. Allen, 70 Conn. 738, 744-45, 40 A. 1056 (1898).

In order for the instant transaction to constitute a bailment, therefore, it is necessary that the final product be composed of the identical property originally delivered. The trial court found that the scrap was commingled, that the brass returned to Ballou need not have been of the same type of alloy and that “there was no understanding or agreement that the precise thing bailed would be returned to the plaintiff.” The trial court further found that if any of the original scrap metal found its way back to Ballou, “this would be solely by chance.” Because there was no evidence that the property returned was the product of the property delivered, except “solely by chance,” we conclude that the arrangement between Ballou and Brimco could not constitute a bailment.

The judgment of the trial court is reversed and the matter is remanded with direction to render judgment for the defendant.

In this opinion the other justices concurred.

       Because we conclude that no bailment existed, we do not address Citytrust’s claim that damages were not properly calculated.

       According to Blackstone, and others, a bailment “is a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee.” 2 Blackstone’s Commentaries p. 452; see I. Edwards, A Treatise on the Law of Bailments p. 33; Black’s Law Dictionary (4th Ed.). At one time we also adhered to this definition. Zeterstrom v. Thomas, 92 Conn. 702, 704, 104 A. 237 (1918); Samelson v. Harper’s Furs, Inc., 20 Conn. Sup. 37, 39, 120 A.2d 419 (1955), aff’d, 144 Conn. 368, 131 A.2d 827 (1957). In a trust, however, the trustee has legal title to the res of the trust. G. Bogert, Trusts (5th Ed.) § 1. In a bailment, on the other hand, the bailee does not have legal title to the thing bailed, but mere possession. Sturm v. Boker, 150 U.S. 312, 330, 14 S. Ct. 99, 37 L. Ed. 1093 (1893); McKesson & Robbins, Inc. v. Walsh, 132 Conn. 158, 162, 42 A.2d 841 (1945). We prefer, therefore, the definition established in Seedman v. Jaffer, 104 Conn. 222, 226,132 A. 414 (1926). See generally 1 Restatement (Second), Trusts § 5; A. Dobie, Handbook on the Law of Bailments and Carriers § 1.

       The trial court relied primarily upon Public Service Electric & Gas Co. v. FPC, 371 F.2d 1 (3d Cir.), cert. denied, 389 U.S. 849, 88 S. Ct. 33, 19 L. Ed. 2d 119 (1967). In Public Service Electric & Gas Co., a company arranged to have gas transported through a pipeline. The court found that a bailment existed even though the company was by no means entitled to have the identical gas delivered back to it. Id., 4. Because the gas was only transported, and not altered in any form, that case is distinguishable from the type of bailment alleged here.
      The trial court also cited In re Sitkin Smelting & Refining, Inc., 639 F.2d 1216 (5th Cir. 1981). In Sitkin, the court found that a bailment existed when Kodak delivered film waste to Sitkin for waste processing and to extract the silver. Id., 1217. The court emphasized the facts that: (1) Sitkin did not carry the film as inventory; (2) the film was clearly imprinted with Kodak’s name; and (3) the film was stored in its original cartons and kept separate from other products. Id. Sitkin, therefore, is distinguishable from the present case because there was no evidence of commingling.
      The trial court also relied upon General Motors Corporation v. Bristol, 690 F.2d 26, 30-31 (2d Cir. 1982), in which Judge Mansfield, in a concurring opinion, found that a bailment existed when GM Corporation shipped scrap metal to a manufacturer for processing into alloy strips under a “tolling arrangement. ’ ’ In Bristol, however, the written agreement clearly stated that GM Corporation retained title to the scrap in the manufacturer’s possession until it was remanufactured into alloy. Id., 27. In addition, the bailee was required to return the identical scrap to GM Corporation if not processed into alloy strips. Judge Mansfield, concurring in Bristol, stated that a bailment may exist when goods are commingled and remanufactured. As support for this statement, however, he cites Public Service Electric & Gas Co. v. FPC, supra, and 8 Am. Jur. 2d, Bailments § 51. As noted above, Public Service Electric & Gas Co. stands only for the proposition that commingling alone does not defeat a bailment.

       A change in the character or nature of personalty can affect a right of ownership. Under the doctrine of accession, if the labor of one person is combined with material belonging to another, the owner of the original raw material can retain title to, and ownership of, the finished product. Atlas Ins. Co. v. Gibbs, 121 Conn. 188, 192-93, 183 A. 690 (1936); Mather v. Chapman, 40 Conn. 382, 397 (1873). If, however, the identity of the item has been destroyed, its nature substantially changed, or value greatly enhanced, as between the manufacturer and the original owner, the owner loses his right of ownership and retains only an action for the value of the goods lost. Atlas Ins. Co. v. Gibbs, supra, 192-93. Similarly, in a bailment locatio operis faciendi, changes in the nature of the property bailed have the potential to affect the property interest of the bailor. The law of bailments has responded, in a manner similar to the law of property, by finding that a bailment will still exist if, as noted above, the identity of the item has not been destroyed.


author: Hull, J.

text:
    Connecticut Humane Society v. Freedom of Information Commission et al.
    (14079)
    Shea, Callahan, Glass, Hull and Borden, Js.
    Argued February 15
    decision released May 21, 1991

      Constance L. Chambers, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Robert J. Cathcart, with whom was Gregory T. D'Auria, for the appellee (plaintiff).
   Hull, J.

The dispositive issue in this appeal is whether the plaintiff, the Connecticut Humane Society (society), is a public agency within the meaning of General Statutes § 1-18a (a). We conclude that the society is not a public agency and accordingly affirm the judgment of the trial court.

The material facts are as follows. The defendant Julie Lewin, the Connecticut coordinator for the Fund for Animals, filed a complaint with the named defendant, the freedom of information commission (FOIC), claiming that the society’s failure to file a schedule of its meetings with the secretary of the state and its failure to provide her with notice of its scheduled meetings and its agenda, following her request, were in violation of our Freedom of Information Act (FOIA). See General Statutes §§ 1-21 (a) and l-21c. The society moved to dismiss the complaint, claiming that it is not a public agency subject to the FOIA. See General Statutes § l-18a (a). Following hearings, the FOIC concluded that the society is a public agency to the extent that it performs activities authorized by various state statutes. See General Statutes §§ 29-108b, 29-108c, 29-108e through 29-108g, 53-247 through 53-253. The society appealed to the Superior Court, which sustained the appeal, concluding that because the society does not receive government funds, it is not a public agency within the meaning of § l-18a (a). The trial court further concluded that, even if government funding is not essential to public agency status, the society is not a public agency. The FOIC appealed to the Appellate Court and we thereafter transferred the appeal to ourselves pursuant to Practice Book § 4023.

The FOIC claims that the trial court: (1) mistakenly concluded that the absence of government funding compelled its conclusion that the society is not a public agency subject to the FOIA; and (2) improperly substituted its judgment for that of the FOIC, concluding that, even if government funding is not essential, the society is not a public agency.

I

The FOIC first claims that the trial court should not have concluded that an entity must receive government funding in order to be a public agency subject to the FOIA. We agree.

General Statutes § 1-18a (a) provides in pertinent part: “ ‘[PJublic agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state . . . .’’In cases such as this, where it is unclear whether a hybrid public/private entity falls within the definition set forth in § l-18a (a), we have interpreted the section to include within its scope an entity that is the functional equivalent of a public agency. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 554-55, 436 A.2d 266 (1980). In determining whether an entity is the functional equivalent of a public agency, we consider the following criteria: “(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.” Id., 554; see also Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 294, 557 A.2d 568 (1989).

In Hallas v. Freedom of Information Commission, supra, 295, the Appellate Court concluded that “[u]nless all four factors [of the functional equivalency test] are present, the agency does not meet the test and cannot be considered a public agency.” Relying on Hallas v. Freedom of Information Commission, supra, the trial court concluded that because it is undisputed that the society does not receive government funding, one of the four criteria is not satisfied and that, therefore, the society cannot be considered a public agency.

In light of the myriad of organizational arrangements that may be confronted, under the functional equivalency approach, “ ‘each new arrangement must be examined anew and in its own context.’ Washington Research Project, Inc. v. Department of Health, Education & Welfare, [504 F.2d 238, 245-46 (D.C. Cir. 1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975)]. ... A case by case application of the factors noted above is best suited to ensure that the general rule of disclosure underlying this state’s FOIA is not undermined by nominal appellations which obscure functional realities.” Board of Trustees v. Freedom of Information Commission, supra, 554-56. “All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.” Railway Labor Executives’ Assn. v. Consolidated Rail Corporation, 580 F. Sup. 777, 778 (D.D.C. 1984), citing Rocap v. Indiek, 539 F.2d 174, 180-81 (D.C. Cir. 1976); see also Irwin Memorial Blood Bank of the San Francisco Medical Society v. American National Red Cross, 640 F.2d 1051, 1055 (9th Cir. 1981); Ciba-Geigy Corporation v. Mathews, 428 F. Sup. 523, 527 (S.D.N.Y. 1977).

We conclude that because the determination of whether a hybrid public/private entity is a public agency subject to the FOIA requires a balanced case-by-case consideration of various factors, the trial court improperly concluded that simply because the society does not receive government funding, it cannot be considered a public agency.

II

The FOIC next claims that, in applying the functional equivalency test, the trial court improperly substituted its judgment for that of the FOIC and, therefore, mistakenly concluded that the society is not a public agency. We disagree.

“The interpretation of statutes presents a question of law. Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 139-40, 509 A.2d 1050 (1986).” Board of Education v. Freedom of Information Commission, 217 Conn. 153, 158, 585 A.2d 82 (1991). “ ‘Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts; see General Statutes [Rev. to 1987] § 4-183 (g); Board of Aldermen v. Bridgeport Community Antennae Television Co., 168 Conn. 294, 298-99, 362 A.2d 529 (1975); Westport v. Norwalk, 167 Conn. 151, 355 A.2d 25 (1974); 2 Am. Jur. 2d, Administrative Law §§ 645, 675; it is for the courts, and not for administrative agencies, to expound and apply governing principles of law. N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965); International Brotherhood of Electrical Workers v. N.L.R.B., 487 F.2d 1143, 1170-71 (D.C. Cir. 1973), aff'd sub nom. Florida Power & Light Co. v. International Brotherhood of Electrical Workers, 417 U.S. 790, 94 S. Ct. 2737, 41 L. Ed. 2d 477 (1974); 73 C.J.S., Public Administrative Bodies and Procedure § 69.’ ” Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).

Because the FOIC’s conclusion that the society is a public agency required an interpretation of § 1-18a (a), its decision was a determination of law. Board of Education v. Freedom of Information Commission, supra. The trial court’s review of this decision, therefore, required a determination of whether the FOIC acted unreasonably, arbitrarily, illegally or in abuse of its discretion and whether the FOIC’s decision is supported by the evidence. Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988); New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988); Board of Trustees v. Freedom of Information Commission, supra, 548-49.

The trial court concluded that because the society satisfied only one of the four criteria of the functional equivalency test, the governmental function prong, and that only in part, the FOIC improperly concluded that the society is a public agency. The trial court implicitly concluded, therefore, that the FOIC’s decision was unsupported by the evidence. We agree and conclude that, in light of the evidence, the trial court properly concluded that the society is not a public agency within the meaning of § 1-18a (a).

Although the society was chartered by the General Assembly in 1881, the trial court aptly noted that, at that time, it was common practice for the General Assembly to incorporate private institutions. See S. Cross, Corporation Law in Connecticut (1972) § 1.2; see also Lombardo v. Handler, 397 F. Sup. 792, 794 (D.D.C. 1975), aff'd, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932, 97 S. Ct. 2639, 53 L. Ed. 2d 248 (1977) (although national academy of sciences created by government charter, significant that at time of creation, Congress exercised exclusive authorization over all acts of incorporation in District of Columbia). The mere presence of a government charter, therefore, does not compel the conclusion that the society is a public agency. Rocap v. Indiek, supra, 177.

The society has a substantial endowment. Because the society determined that it prefers to operate without conditions imposed in connection with the acceptance of state appropriations, it has not received an appropriation of state funds since 1933. Thus, in marked contrast to Board of Trustees v. Freedom of Information Commission, supra, 554, in which the academy was almost entirely publicly financed, there is no element of government funding in the present case.

The purpose of the society is to promote humanity and kindness, to prevent cruelty to both man and lower animals, to provide information and literature to the public and to assist in the prosecution of crimes of a cruel and inhuman nature. In furtherance of this purpose, the society provides an educational program for schools, in addition to a pet cemetary and general information on pet care. It also provides for the euthanasia of unwanted pets. Moreover, agents of the society have statutory authorization to: (1) prevent cruel treatment of animals and impose fines or terms of imprisonment for interference with such prevention; General Statutes § 29-108c; (2) detain abandoned or cruelly treated animals; General Statutes § 29-108e; (3) collect fees for costs associated with the detention of animals from the owners of the animals; General Statutes § 29-108e; see also General Statutes § 29-108Í; and (4) kill animals under special circumstances. General Statutes § 29-108g. The commissioner of public safety is authorized by statute to appoint agents of the society as special police officers, who have the power to arrest and detain persons for violating statutes concerning cruelty to animals. General Statutes § 29-108b; see also General Statutes §§ 53-247 through 53-253.

Because law enforcement is traditionally a function of the government, the society performs a governmental function to the extent that it engages in the law enforcement activities authorized by statute. See General Statutes §§ 29-108b and 29-108c. Because legislation designed to protect animals from cruelty and neglect is recognized as a valid exercise of the police power; 4 Am. Jur. 2d, Animals § 27; arguably, the society also performs a governmental function insofar as it engages in the statutorily authorized activities involving the detention, shelter and euthanasia of animals. See General Statutes §§ 29-108e, 29-108g. Nevertheless, the society is not required to undertake any of the activities authorized by statute. Moreover, the state still plays a predominant role in preventing the cruel and inhuman treatment of animals. See, e.g., General Statutes § 22-272a (approved methods of slaughter), § 22-329 (prevention of cruelty to dogs and other animals), § 22-332a (restrictions on use of dogs for medical research), § 22-336 (maintenance of dog pounds), § 22-342 (b) (inspection of kennels), § 22-415 (prevention of cruel and inhuman treatment of equines).

Local police, dog wardens and the department of agriculture routinely use the society to investigate complaints of animal abuse and neglect. The society issues warnings and refers continuing instances of animal cruelty and neglect to the office of the state’s attorney. The office of the state’s attorney and the police rely upon the society to hold detained animals and to provide expertise upon request.

Although the society cooperates with the state in its efforts to prevent cruel and inhuman treatment of animals, there is nothing in the record to indicate that the state in any way controls or regulates the society. Compare Board of Trustees v. Freedom of Information Commission, supra (academy has its operations examined and certified by state board of education); Hallas v. Freedom of Information Commission, supra, 296 (because bond counsel did not operate under direct, pervasive or continuous regulatory control of government, regulatory prong not satisfied); see also Forsham v. Harris, 445 U.S. 169, 180, 100 S. Ct. 978, 63 L. Ed. 2d 293 (1980); Railway Labor Executives’ Assn. v. Consolidated Rail Corporation, supra, 779. The society is not required to perform any of the activities authorized by statute. Furthermore, performance of the activities is not subject to governmental review. The society is self-directed and its employees are not government employees. Compare Irwin Memorial Blood Bank of the San Francisco Medical Society v. American National Red Cross, supra, 1057 (some degree of government control can be inferred from Presidential power of appointment to governing body of Red Cross).

Balancing all the applicable factors, we conclude that, in light of the evidence, the trial court properly concluded that the society is not a public agency.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § l-18a (a) provides: “ ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”

       General Statutes § 1-21 (a) provides in pertinent part: “Each such public agency of the state shall file not later than January thirty-first of each year in the office of the secretary of the state the schedule of the regular meetings of such public agency for the ensuing year, except that such provision shall not apply to the general assembly, either house thereof or to any committee thereof.”
      General Statutes § l-21c provides: “The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting. Such notice requirement shall not apply to the general assembly, either house thereof or to any committee thereof. Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for notice shall be filed within thirty days after January first of each year. Such public agency may establish a reasonable charge for sending such notice based on the estimated cost of providing such service.”

       We derived the functional equivalency test from federal case law interpreting the federal Freedom of Information Act. See Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 553, 436 A.2d 266 (1980). “Although our Freedom of Information Act does not derive from any model act or the federal Freedom of Information Act, other similar acts, because they are in pari materia, are interpretively helpful, especially in understanding the necessary accommodation of the competing interests involved. See 2A Sutherland, Statutory Construction (4th Ed.) §§ 51.06, 52.03.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 333, 435 A.2d 353 (1980).


text:
    State of Connecticut v. Michael J. Jarrett
    (14037)
    Peters, C. J., Callahan, Glass, Covello and F. X. Hennessy, Js.
    Argued March 27
    decision released May 21, 1991

      CarlD. Eisenman, public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Carlson, Jr., assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the state sustained its burden of disproving the insanity defense tendered on behalf of a man who killed his victim as part of a mutual suicide pact. The defendant, Michael Jarrett, was charged with having committed the crime of murder in violation of General Statutes § 53a-54a (a). After a probable cause hearing established that the state had sufficient evidence to proceed, the defendant interposed a multifaceted defense of mental disease or defect and elected to be tried to a three judge panel of the Superior Court. The trial court found him guilty as charged and sentenced him to a term of imprisonment of fifty years. The defendant appealed to this court pursuant to General Statutes § 51-199 (b) (3). We affirm the judgment of the trial court.

The three judge panel could reasonably have found the following facts. The defendant and the victim became romantically involved after the victim began babysitting for the defendant’s son. Because of a substantial age disparity between the defendant, who was in his thirties, and his teenage victim, the victim’s mother filed a complaint that led to the defendant’s conviction of risk of injury to a child, for which he received a suspended sentence conditioned on his not seeing the victim. Distressed by the efforts to enforce their separation, which the defendant and the victim knowingly tried to circumvent, they entered into a suicide pact. Each of them alluded to their plan of action in conversations with a mutual friend, shortly before the fatal day; the defendant told the friend that he intended to do something that he characterized as dangerous.

On September 6,1983, in a park in Manchester, the defendant killed the victim by stabbing her twice with his knife, and stabbed her once more after her death. Although he thereafter also stabbed himself, his three self-inflicted lacerations proved not to be fatal. When police officers arrived at the scene, they found that the defendant’s clothing was stained with blood from the victim as well as from his own wounds. The defendant told a paramedic, who was examining him to ascertain the extent of his wounds, that his girlfriend was in the woods nearby and that she was dead.

In his defense against the charge of murder, the defendant formally denied that he had stabbed the victim, but relied principally on a defense of mental disease or defect. He properly notified the state, in accordance with Practice Book §§ 758 and 759, that he intended to rely upon expert evidence to put into question whether his mental condition: (1) rendered him incapable of forming the specific intent to commit murder; General Statutes (Rev. to 1983) § 53a-54a (a); (2) rendered him legally insane; General Statutes (Rev. to 1983) § 53a-13; or (3) demonstrated that he had committed the crime under extreme emotional disturbance. General Statutes (Rev. to 1983) § 53a-55 (a) (2).

The trial court found the defendant guilty as charged. In two oral memoranda of decision, one denying the defendant’s motion for acquittal and the other rendering its judgment, the court found that the defendant had killed the victim and had intended to do so. After hearing the evidence relating to the defendant’s mental disease or defect, the court further determined that the testimony of lay witnesses and of the state’s expert witness proved that the defendant had not lacked substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct under the requirements of the law. Accordingly, the court concluded that the state had established the elements of the crime of murder beyond a reasonable doubt.

In his appeal, the defendant contends that his conviction should be set aside because: (1) he was entitled to an acquittal because the evidence at trial was insufficient to establish his guilt beyond a reasonable doubt or to establish that the state had satisfied its burden of disproving his defense of mental disease or defect beyond a reasonable doubt; and (2) he was entitled to a new trial because the trial court should not have relied on an inculpatory statement that he made to the state’s psychiatric expert. We are unpersuaded.

I

The defendant has mounted two challenges to the sufficiency of the evidence to support his conviction. He urges us to hold, contrary to the trial court, that the state adduced insufficient evidence of his commission of the underlying crime or to rebut his defense of mental disease or defect. Accordingly, he contends that his midtrial and posttrial motions for acquittal should have been granted. We disagree.

A

In his challenge to the sufficiency of the evidence to warrant his conviction of the crime of murder, the defendant questions the validity of the trial court’s findings that he was the person who stabbed the victim and that his conduct was intentional. Neither of these contentions warrants extensive discussion.

Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. See State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003 (1990); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Garrison, 203 Conn. 466, 471, 525 A.2d 498 (1987); State v. Cobbs, 203 Conn. 4, 6-7, 522 A.2d 1229 (1987).

In this case, the trial court could reasonably have concluded that the defendant committed the homicide on the basis of its factual findings that the defendant was discovered at the scene of the crime, close to the victim’s body, covered with her blood, shortly after she had been stabbed by a knife that belonged to him. The court could reasonably have inferred that the defendant had the specific intent to cause the victim’s death from its findings concerning the wounds he inflicted upon her and the contemporaneous statements he had made to others concerning the crime. With regard to the latter, it was especially probative that, at the scene of the crime, the defendant volunteered that his girlfriend was dead in the woods nearby and that he knew she was not merely unconscious but dead. Earlier, he had told a friend about his plans to do something that he himself characterized as dangerous. This record in its entirety is sufficient to sustain the trial court’s conclusion that the defendant had committed the crime of murder.

B

The defendant’s central challenge to the sufficiency of the evidence is his assertion that the state did not disprove his defense of mental disease or defect beyond a reasonable doubt. At the time of this trial, the state bore the burden of proof on this defense. Although resolution of this second issue presents a closer question than the first one, we conclude that the trial court’s judgment must stand.

At the trial, the defendant adduced expert testimony by two psychiatrists, Peter M. Zeman, M.D., and Walter A. Borden, M.D., and two clinical psychologists, David F. Berry, Ph.D., and John A. Cegalis, Ph.D., in support of his contention that he could not be held criminally responsible for the stabbing of the victim. These experts testified that the defendant, at the time of the stabbing, as a result of mental disease of psychotic proportion, either paranoid schizophrenia or bipolar illness, lacked substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law. They agreed that the defendant’s mental disease was not proximately caused by voluntary substance abuse. They described the defendant as suffering from delusional beliefs about “astroplaning,” reincarnation, and the existence of life on another planet. In their view, the defendant’s psychopathology genuinely led him to believe that, in stabbing the victim, he was not harming her or causing her pain but was instead enabling her to be reunited with him in another place and in another form.

To satisfy its burden of proof, the state presented Donald R. Grayson, M.D., as its own expert witness. Grayson acknowledged that the defendant was delusional and possibly psychotic. His own examination of the defendant led him to conclude nonetheless that, despite the defendant’s bizarre ideation, the defendant understood that what he was doing was legally wrong even though he felt it was not morally wrong. As further evidence of the defendant’s knowledgeability, the state relied on two lay witnesses, a former roommate who testified that the defendant had knowingly planned to violate the restrictions on his probation and the friend who testified of the defendant’s planning to undertake, the day before the stabbing, some undefined but dangerous action.

The trial court was entitled to find credible the testimony of the state’s witnesses and, on that basis, to conclude that the defendant’s sanity had been proved by the state beyond a reasonable doubt. State v. Evans, supra, 238-39; State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). The court was not required to adopt the view of the defendant’s expert witnesses even though they outnumbered the witnesses presented by the state. Similarly, the court was not required to disregard the view of the state’s expert witness even though he conducted his mental status examination thirteen months after the occurrence of the homicide. We note, in this regard, that the defendant did not file a notice of intent to rely on a defense of mental disease or defect until nine months after the victim’s death. We conclude, therefore, that the defendant has not sustained his claim of evidentiary insufficiency on the question of insanity and is therefore not entitled to acquittal of the charge against him on that ground.

II

The defendant contends, in the alternative, even if he was not entitled to acquittal, he should be afforded a new trial. He contends that the trial court deprived him of his rights under Practice Book § 760 and his constitutional rights to due process by relying in part on a statement “on the issue of guilt” that he had made during his court-ordered examination by the state’s psychiatrist, Grayson. We disagree.

Grayson testified that, in his professional opinion based on his mental status examination and his historical review of the defendant, the defendant “did have the capacity to appreciate the wrongfulness of his behavior and could have conformed his behavior to the expectation of the law.” He described the mutual desperation of the defendant and the victim as the reason for their mutual suicide pact. He then explained his understanding of the defendant’s mental status as follows: “[The defendant] realized that it was legally wrong but because of his system of beliefs, he did not feel it was morally wrong and since both of them would be dead, it would have no long lasting effect that would harm anybody and that they would be together.” The state then asked: “And this was also—was this true of the attempt to run away, this awareness of the legal requirements concerning his relationship with [the victim]?” The defendant objected to this question on the ground that it was “not relevant,” but the trial court allowed the question to be answered. The defendant asked for and was granted an exception.

To the extent that the defendant’s claim rests on an alleged violation of the provision of the Practice Book, it cannot be sustained because this contention was not clearly articulated to the trial court. An objection on the ground of irrelevance does not suffice to alert the trial court to the exclusionary policy contained in § 760. As a general rule, we will not overturn the judgment of a trial court for alleged deviations from the rules of the Practice Book in the absence of a contemporaneous objection distinctly raising that claim at trial. Practice Book § 4185. An objection after trial on a motion for acquittal does not satisfy the requirement for a contemporaneous objection.

To bypass this procedural obstacle to appellate consideration of his claim, the defendant characterizes the issue as having sufficient constitutional overtones to warrant review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In other circumstances, we have acknowledged that “[s]ection 760 of our Practice Book effects a compromise between the defendant’s right to avoid self-incrimination and the state’s right to procure and present evidence of the defendant’s mental state when such evidence is relevant to an issue at trial.” State v. Boscarino, 204 Conn. 714, 736, 529 A.2d 1260 (1987); State v. Lovelace, 191 Conn. 545, 551-52, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984). Because a court-ordered psychiatric examination may impinge on the rights of criminal defendants to due process of law, we have held that “§ 760 must be ‘strictly construed to protect the fundamental constitutional right to liberty.’ State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981); State v. Shockley, 188 Conn. 697, 711, 453 A.2d 441 (1982); State v. Schaeffer, 5 Conn. App. 378, 382, 498 A.2d 134 (1985).” State v. Boscarino, supra.

The fact that an allegation of noncompliance with § 760 may sometimes have constitutional dimensions does not, however, establish the existence of such a constitutional nexus in every case. On the record in this case, we are unpersuaded, for two reasons, that the defendant has raised a claim of constitutional magnitude.

First, the state established the defendant’s guilt, apart from his insanity defense, by evidence that it adduced in its case-in-chief. It did not call Grayson as its witness until the defendant had put his mental status into issue by the testimony of his expert witnesses. Grayson’s testimony addressed the defendant’s mental status rather than “the issue of [the defendant’s] guilt” of the crime with which he was charged. He was purporting to convey his clinical impression of the defendant’s state of mind rather than any specific admission of legal guilt on the part of the defendant.

The state must have the opportunity to rebut an insanity defense. But for the residual rights preserved by § 760, a defendant who has put his mental status into issue has waived any constitutional objection to the testimony of a court-appointed psychiatrist. State v. Steiger, 218 Conn. 349, 362-66, 590 A.2d 408 (1991); State v. Manfredi, 213 Conn. 500, 513, 569 A.2d 506, cert. denied, U.S. , 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990); State v. Fair, 197 Conn. 106, 109, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986); State v. Lovelace, supra, 550; and see Buchanan v. Kentucky, 483 U.S. 402, 421-24, 107 S. Ct. 2906, 97 L. Ed. 2d 336, reh. denied, 483 U.S. 1044, 108 S. Ct. 19, 97 L. Ed. 2d 807 (1987). Our law “strikes a balance between the legitimate needs of the state and the cognizable rights of the defendant. On the one hand, without access to a psychiatric report, the state cannot respond intelligently to defenses that concern a defendant’s mental status. On the other hand, the state’s use of information obtained by court-appointed psychiatrists is not unlimited. The state may not rely on statements made by the defendant during a compulsory psychiatric examination to meet its affirmative burden of proving the defendant’s guilt in any criminal proceeding.” State v.Fair, supra, 110-11; cf. United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir. 1976); Lee v. County Court of Erie County, 27 N.Y.2d 432, 267 N.E.2d 452, 318 N.Y.S.2d 705 (1971). An ambiguous claim of evidentiary noncompliance with § 760 does not establish that the prosecutor has crossed over into the forbidden territory of constitutional misuse of statements elicited in a compulsory psychiatric examination and thus does not warrant belated plenary review.

Second, before Grayson took the stand, the defendant’s expert witnesses had already testified, without objection, about their interviews with the defendant. Their testimony had described in detail the defendant’s prior relationship with the victim, his reluctance to suspend that relationship, and the circumstances that led to the mutual suicide pact and the stabbing of the victim. The defendant has cited no authority, and our research has discovered none, to suggest that a defendant has a due process right to exclude testimony from a state’s witness that corroborates testimony previously elicited by the defendant from his own witnesses. Once the defendant has waived his constitutional protection against self-incrimination in the presentation of his defense, he has no basis for a further constitutional objection to testimony to the same effect that is proffered by a court-appointed psychiatrist. See Buchanan v. Kentucky, supra. Even if Grayson’s testimony could be construed as relevant to the defendant’s guilt of the crime charged, therefore, its admission would not give rise to a constitutional claim in the circumstances of this case. See State v. Steiger, supra; State v. Manfredi, supra; State v. Fair, supra; State v. Lovelace, supra, 550.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 53a-54a (a) provided: “murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. classification, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes (Rev. to 1983) § 53a-13 provided: “LACK OF CRIMINAL RESPONSIBILITY BY REASON OF MENTAL DISEASE OR DEFECT. In any prosecution for an offense, a defendant may be found guilty but not criminally responsible if, at the time of the proscribed conduct, he lacked substantial capacity as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. A finding of criminal responsibility shall not be barred if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription. As used in this section, the terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

       General Statutes (Rev. to 1983) § 53a-55 (a) (2) provided in relevant part: “A person is guilty of manslaughter in the first degree when . . . (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection.”

       The defendant has briefed one final issue, challenging the court’s denial of his motions for correction of finding and for acquittal. He acknowledges, however, that this issue merely encapsulates, in procedural form, the substantive issues on which he relies for reversal of his conviction.

       According to Cegalis, the defendant suffered from bipolar illness rather than schizophrenia because he was a person whose mood swings from depression to euphoria. The defendant’s mental condition was formerly labeled manic depressive psychosis.

       Practice Book § 760 provides: “In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination.”

       The defendant claims that he called the requirements of Practice Book § 760 to the attention of the trial court in his Motion for Correction of Finding and his Motion for Acquittal. The defendant argued, at that time, that Grayson’s testimony about “the objective facts should not be used in furtherance of the State’s proof of the act.” The state rejoined that Grayson’s testimony had been offered only to substantiate its claim with respect to the defense of insanity. The court, in denying the defendant’s motions, noted that “there was no single incident in the report that was written by Dr. Grayson that influenced our decision.”