text:
    AMY JEANNE CONWAY v. TOWN OF WILTON ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 39 Conn. App. 280 (AC 13524), is granted, limited to the following issues:

“1. Should this court reconsider its holding in Manning v. Barenz, 221 Conn. 256 (1992), that the recreational land use statute, General Statutes § 52-557f et seq., applies to municipalities?
“2. If the answer to the first question is no, did the Appellate Court improperly conclude that the trial court was correct in rendering summary judgment in favor of the defendant Connecticut Association of Secondary Schools (CASS), where the plaintiff claimed that CASS owed a duty to the plaintiff independent of any duty it may have owed as an ‘owner of land’ within the meaning of the recreational land use statute?”

The Supreme Court docket number is SC 15335.

Ira B. Grudberg and David B. Grudberg, in support of the petition.

Raymond J. Plouffe, Jr., Hugh W. Cuthbertson and Dana Shaw MacKinnon, in opposition.

Decided December 11, 1995


source: Caselaw Access Project

license: Public Domain

text:
    BRAUNSTEIN AND TODISCO, P.C. v. BERNARD BOSSOM ET AL.

      David M. Reilly, in support of the petition.

      Howard K. Levine, in opposition.
    Decided December 21, 1995
   The defendant Bernard Bossom’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 905 (AC 13268), is denied.


text:
    ADELE M. COOKE v. BOARD OF EDUCATION OF THE CITY OF NORWALK ET AL.

      Edward J. Cooke, Jr., in support of the petition.

      Thomas N. Sullivan, in opposition.
    Decided December 21, 1995
   The plaintiffs petition for certification for appeal from the Appellate Court, 39 Conn. App. 908 (AC 13760), is denied.


text:
    RONALD DASILVA v. DANBURY PUBLISHING COMPANY, A DIVISION OF OTTOWAY NEWSPAPERS, INC., ET AL.

      Scott R. McCarthy, in support of the petition.

      David W. Schoolcraft, in opposition.
    Decided December 21, 1995
   The plaintiffs petition for certification for appeal from the Appellate Court, 39 Conn. App. 653 (AC 13882), is denied.


text:
    FIRST NATIONAL BANK OF CHICAGO v. WILSON N. BEAVER

      Wilson N. Beaver, pro se, in support of the petition.

      Joseph H. Weisman, in opposition.
    Decided December 21, 1995
   The defendant’s petition for certification for appeal from the Appellate Court (AC 15076) is denied.


text:
    MAC’S CAR CITY, INC. v. PELINO S. DILORETO ET AL.
    The Supreme Court docket number is SC 15340.
   The plaintiffs petition for certification for appeal from the Appellate Court, 39 Conn. App. 518 (AC 13276), is granted, limited to the following issue:

“What is the proper time for filing a judgment lien, under General Statutes § 52-328 (b), to perfect a prejudgment attachment hen previously filed, when the original judgment in favor of the attaching lienor is reversed on appeal?”

Michael P. Barry, in support of the petition.

Sandra Rachel Baker, in opposition.

Decided December 21, 1995


text:
    HOWARD J. MEEHAN, JR. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.

      G. Russell Stewart III, in support of the petition.
    Decided December 21, 1995
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 15159) is denied.


text:
    RICHARD SINGER v. STATE EMPLOYEES RETIREMENT COMMISSION

      Richard Singer, pro se, in support of the petition.

      Maria C. Rodriguez, assistant attorney general, in opposition.
    Decided December 21, 1995
   The plaintiffs petition for certification for appeal from the Appellate Court, 39 Conn. App. 906 (AC 13791), is denied.


text:
    SOUTHINGTON ’84 ASSOCIATES v. SILVER DOLLAR STORES, INC., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 39 Conn. App. 608 (AC 13997), is granted, limited to the following issue:

“Under the circumstances of this case, did the Appellate Court properly conclude that it was plain error to render judgment in an amount in excess of the statement re amount in demand?”

The Supreme Court docket number is SC 15338.

Francis X. Drapeau, in support of the petition.

Joseph R. Crispino, in opposition.

Decided December 21, 1995


text:
    SOUTHINGTON SAVINGS BANK v. VILLAGE BUILDERS AND DEVELOPERS, INC., ET AL.

      Thomas T. Lonardo, in support of the petition.

      Janet C. Hall and Christopher J. Hug, in opposition.
    Decided December 21, 1995
   The defendants’ petition for certification for appeal from the Appellate Court, 39 Conn. App. 909 (AC 12851), is denied.


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. ROBERTO MORALES

      Temmy Ann Pieszak, assistant public defender, in support of the petition.

      Donald A. Browne, state’s attorney, in opposition.
    Decided December 21, 1995
   The defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 617 (AC 11565), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. TODD C. MORRISON

      Kent Drager, assistant public defender, in support of the petition.

      John A. East III, deputy assistant state’s attorney, in opposition.
    Decided December 21, 1995
   The defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 632 (AC 13566), is denied.


text:
    STATE OF CONNECTICUT v. RICHARD RODRIGUEZ

      Kent Drager, assistant public defender, in support of the petition.

      Nancy L. Gillespie, deputy assistant state’s attorney, in opposition.
    Decided December 21, 1995
   The defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 579 (AC 13900), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification for review.


text:
    STATE OF CONNECTICUT v. RICHARD RODRIGUEZ
   The state’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 579 (AC 13900), is granted, limited to the following issues:

“1. In the circumstances of this case, did the Appellate Court properly determine that the defendant’s suppression motion should have been granted?

The Supreme Court docket number is SC 15339.

Nancy L. Gillespie, deputy assistant state’s attorney, in support of the petition.

Kent Draper, assistant public defender, in opposition.

Decided December 21, 1995

“2. If the answer to the first question is in the affirmative, should the Appellate Court have remanded the case for further findings on inevitable discovery?”


text:
    CTB VENTURES 55, INC. v. CHARLES RUBENSTEIN ET AL.

      Peter B. Rustin, in support of the petition.

      Thomas A. Kaelin, in opposition.
    Decided January 9, 1996
   The named defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 684 (AC 14193), is denied.


text:
    STATE OF CONNECTICUT v. ROGER D. ELLS

      Donald Dakers, special public defender, in support of the petition.

      Denise B. Smoker, deputy assistant state’s attorney, in opposition.
    Decided January 9, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 702 (AC 13284), is denied.


text:
    STATE OF CONNECTICUT v. MARK STRICKLAND

      Deborah DelPrete Sullivan, assistant public defender, in support of the petition.

      Lawrence J. Tytla, assistant state’s attorney, in opposition.
    Decided January 9, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 722 (AC 13962), is denied.


text:
    STATE OF CONNECTICUT v. DONOVAN DAVIS

      Mary Miller Haselkamp, assistant public defender, in support of the petition.

      Christopher T. Godialis, deputy assistant state’s attorney, in opposition.
    Decided January 9, 1996
   The defendant’s petition for certification for appeal from the Appellate Court, 39 Conn. App. 920 (AC 14173), is denied.


text:
    JOSEPH L. LYNCH ET AL. v. GRANBY HOLDINGS, INC., ET AL.
    Decided January 10, 1996
   The appeal by Granby Holdings, Inc., (SC 15298) was ordered dismissed by the Supreme Court, suasponte, on the ground that certification was improvidently granted.


author: PETERS, C. J. BERDON, J.,

text:
    MARK D. NIELSEN ET AL. v. STATE OF CONNECTICUT ET AL.
    (15217)
    Peters, C. X, and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued November 28, 1995
    decision released February 6, 1996

      Wesley W. Horton and Mark D. Nielsen, with whom were Melicent B. Thompson, legal intern, and, on the brief, Mario Thomas Gaboury, Douglas Foster, pro hac vice, Martin S. Kaufman, pro hac vice, and John K. Bush, pro hac vice, for the appellants (plaintiffs).

      Gregory T. D'Auria, assistant attorney general, with whom were Henry S. Cohn, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellees (defendants).

      Robert A. Heghmann filed a brief for The Federation of Connecticut Taxpayer Organizations as amicus curiae.
   PETERS, C. J.

The dispositive issue in this appeal is the justiciability of a claim that the General Assembly has wrongfully failed to enact statutory definitions that article third, § 18, of the constitution of Connecticut expressly requires for the implementation of that constitutional amendment. The plaintiffs, who are citizens and taxpayers of the state, brought suit against the General Assembly and various state officials to compel the General Assembly to enact legislation that would implement the constitutional spending cap contemplated by the adoption of article third, § 18. The trial court, concluding that the claim presented by the plaintiffs is nonjusticiable, dismissed the plaintiffs’ amended complaint for lack of subject matter jurisdiction. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes §51-199 (c). We affirm the judgment of the trial court.

The history of article third, § 18, begins with the General Assembly’s adoption of House Joint Resolution No. 205 on August 21, 1991. Public and Special Acts, 1991, vol. 4, part 3. The resolution proposed an amendment of article third to enact a spending cap provision that, in the absence of an emergency or extraordinary circumstances, would prohibit the General Assembly from authorizing an increase in general budget expenditures that exceeds the percentage increase in personal income or inflation, whichever is higher. On November 3, 1992, the proposed amendment was duly presented to the electorate for its approval at the general election. On November 25, 1992, the secretary of the state certified that a majority of the voters had approved the amendment, which was designated amendment twenty-eight to the constitution and was subsequently denominated article third, § 18.

Article third, § 18, as approved by the voters, expressly requires the General Assembly to define “increase in personal income,” “increase in inflation” and “general budget expenditures” (hereinafter the spending cap terms) in order to implement the spending cap. Conn. Const., art. Ill, § 18 (b). The amendment also expressly provides that these essential definitions may be enacted or amended only by a three-fifths vote in both the Senate and the House of Representatives. Conn. Const., art. Ill, § 18 (b). To date, the General Assembly has not defined the spending cap terms by the required vote.

The plaintiffs brought suit to compel the General Assembly to define the spending cap terms. The plaintiffs’ amended complaint alleged that the General Assembly has “failed and refused” to define these terms since the electorate approved article third, § 18, at the 1992 general election. The plaintiffs’ prayer for declaratory and injunctive relief sought a judgment that: (1) the General Assembly must define the spending cap terms before it may enact or adopt a budget, interim appropriation tax or other fiscal measure that levies or expends tax revenue; (2) the state and the General Assembly may not allocate and spend funds for general budget expenditures greater than the funds expended for such expenditures in fiscal year 1992-1993 unless and until the General Assembly defines the spending cap terms; and (3) the state treasurer and the state comptroller may not disburse funds for general budget expenditures greater than the funds authorized for such expenditures in fiscal year 1992-1993 unless and until the General Assembly defines the spending cap terms.

The defendants moved to dismiss the plaintiffs’ amended complaint on a number of grounds. They claimed that the trial court lacked subject matter jurisdiction to determine the merits of the case because of sovereign immunity, legislative immunity, mootness and nonjusticiability. The trial court granted the defendants’ motion to dismiss on the basis of nonjusticiability. The trial court held that the language of article third, § 18, evinced a clear textual commitment of exclusive authority to the General Assembly to define the spending cap terms. In light of that textual commitment, the trial court concluded that the dispute presented apolitical question that could not be adjudicated by judicial authority. Additionally, the trial court concluded that it could not provide the relief sought by the plaintiffs without violating constitutional principles of separation of powers.

In this appeal, the plaintiffs claim that the trial court improperly concluded that the dispute is nonjusticiable. Although the plaintiffs concede that article third, § 18, expressly authorizes the General Assembly to define the spending cap terms, they argue that the power to define these terms is not textually committed to the General Assembly. They further argue that a court can provide them with an appropriate remedy either in the ways articulated in their prayer for relief or, if the General Assembly nevertheless fails to define the spending cap terms, by having the court itself define these terms. We disagree with both of the plaintiffs’ arguments.

The principles that underlie justiciability are well established. “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Citations omitted.) State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982); Pellegrino v. O’Neill, 193 Conn. 670, 674, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). The third requirement for justiciability, the political question doctrine, is based on the principle of separation of powers. Nielsen v. Kezer, 232 Conn. 65, 75, 652 A.2d 1013 (1995); Pellegrino v. O’Neill, supra, 680. “The characterization of [an issue] as political is a convenient shorthand for declaring that some other branch of government has constitutional authority over the subject matter superior to that of the courts.” Pellegrino v. O’Neill, supra, 680. “The fundamental characteristic of a political question, therefore, is that its adjudication would place the court in conflict with a coequal branch of government in violation of the primary authority of that coordinate branch. Baker v. Carr, [369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)].” Nielsen v. Kezer, supra, 74.

“Whether a controversy so directly implicates the primary authority of the legislative or executive branch, such that a court is not the proper forum for its resolution, is a determination that must be made on a case-by-case inquiry.” Id., 74-75. “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.” Baker v. Carr, supra, 369 U.S. 217; see Fonfara v. Reapportionment Commission, 222 Conn. 166, 184-85, 610 A.2d 153 (1992).

Tax Pellegrino v. O’Neill, supra, 193 Conn. 670, we held nonjusticiable a claim that inadequate financing of the state’s judicial system had produced a backlog of civil jury cases in violation of the plaintiffs’ constitutional right to the administration of justice without delay. See Conn. Const., art. I, § 10. We based our holding on the failure of the plaintiffs’ claim to satisfy the third and fourth requirements for justiciability. We first determined that the plaintiffs sought to increase the number of state judges. Pellegrino v. O’Neill, supra, 678. We then determined that the appointment of additional judges was textually committed to the General Assembly by article fifth, § 2. Id., 681. We further determined that the judiciary could not provide the relief sought by the plaintiffs without violating separation of powers. Id., 681-84. In light of the clear textual commitment relegating the size of the judiciary to a coordinate branch of government and the inability of our courts to provide a remedy, we concluded that the dispute was nonjusticiable.

The considerations that led us to conclude that the dispute at issue in Pellegrino was nonjusticiable compel the same conclusion in this case. “Although it is widely assumed that the judiciary, as ultimate arbiter of the meaning of constitutional provisions, must determine every constitutional claim presented and provide appropriate relief, some constitutional commands fall outside the conditions and purposes that circumscribe judicial action.” Id., 679. The plaintiffs have raised a claim that inextricably presents a political question not amenable to judicial resolution and that seeks relief that a court cannot provide without an impermissible intrusion upon the prerogatives and functions of the coordinate branches of government. For both these reasons, we conclude that this case is nonjusticiable.

Central to our determination that the plaintiffs’ claim presents a nonjusticiable political question is the “textually demonstrable constitutional commitment” of the definition of the spending cap terms to the General Assembly. See id., 681. Article third, § 18 (b), provides in relevant part: “The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section . . . .” (Emphasis added.) This provision, by its plain and unambiguous terms, commits exclusively to the General Assembly the power to define the spending cap terms and nowhere intimates any role in this process for the judiciary. Moreover, neither the structure nor the history of the provision manifests any intended constraint on the unconditional definitional authority conferred upon the General Assembly. See, e.g., Nixon v. United States, 506 U.S. 224, 229-33, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993). Nothing elsewhere in our constitution contradicts this textual commitment to the General Assembly.

As we observed in Pellegrino v. O’Neill, supra, 193 Conn. 683, a specific textual commitment distinguishes cases that are nonjusticiable from cases such as Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977) (Horton I). The constitutional provision at issue in Horton I was article eighth, § 1, which provides: “There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.” In construing that provision, we expressly held that the then-existing financing scheme for the state’s public schools “[was] not ‘appropriate legislation’ (article eighth, § 1) to implement the requirement that the state provide a substantially equal educational opportunity to its youth in its free public elementary and secondary schools.” Horton 7, supra, 649. We reaffirmed our authority to direct legislative reform of school financing statutes in Horton v. Meskill, 195 Conn. 24, 35-38, 486 A.2d 1099 (1985) (Horton III). It was in light of the textual distinction between these different constitutional provisions that, in Pellegrino v. O’Neill, supra, 683, we described Horton I as “clearly [a case] where a judicial remedy could have been applied . . . .”

Accordingly, because article third, § 18, clearly commits to the General Assembly the sole authority to define the spending cap terms, we have no jurisdiction to consider the merits of the plaintiffs’ claim. “We must resist the temptation which this case affords to enhance our own constitutional authority by trespassing upon an area clearly reserved as the prerogative of a coordinate branch of government.” Pellegrino v. O’Neill, supra, 193 Conn. 681.

In addition to its emphasis on dispositive textual language, Pellegrino also focused on whether the claim before the court was one for which the judiciary could provide the relief sought by the plaintiffs without violating separation of powers. Id., 681-84; see also State v. Nardini, supra, 187 Conn. 112. In this case, each of the alternate forms of relief that the plaintiffs seek— mandating the General Assembly to define the spending cap terms by the necessary three-fifths vote in each house, enjoining state officials from spending funds in excess of the funds spent in fiscal year 1992-1993 until the General Assembly defines the terms or defining the terms ourselves — raises separation of powers concerns that counsel strongly against justiciability.

Our decision in Pellegrino illuminates why we cannot compel the General Assembly to define the spending cap terms. “It is well established that a court cannot mandate performance of a constitutional duty by a legislature, particularly where that duty involves the exercise of discretion necessary to the enactment of legislation .... [I]n all human contrivances confidence must be reposed somewhere, and . . . under the distribution of powers ... in our State, it is not given to the judiciary to compel action on the part of a coordinate branch of the government. . . . That the votes of individual legislators should be subject to direct control by judicial decree ... is a proposition we cannot accept.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Pellegrino v. O’Neill, supra, 193 Conn. 682.

For similar reasons, we cannot enjoin state officials from spending funds in excess of the funds spent before the adoption of article third, § 18. A necessary predicate for a right to injunctive relief is the determination that a constitutional right exists and has been violated. For example, in Horton I, supra, 172 Conn. 651-53, a judicial remedy could be fashioned to enjoin state officials from violating the plaintiffs’ constitutional right to a substantially equal educational opportunity. See also Pellegrino v. O’Neill, supra, 193 Conn. 683. In this case, however, the adoption of article third, § 18, establishes only a future right to a spending cap, a right that will mature into an actionable right only after its predicate terms have been defined by the General Assembly. See State v. Sanabria, 192 Conn. 671, 687-91, 474 A.2d 760 (1984) (amendment to article first, § 8, that provided certain criminal defendants right to probable cause hearing “in accordance with procedures prescribed by law” not effective until General Assembly had enacted implementing legislation); see also State ex rel. Cotter v. Leipner, 138 Conn. 153, 158, 161-62, 83 A.2d 169 (1951). In the absence of defined terms, there is no basis for enjoining presently permissible conduct by a coordinate branch of government.

Finally, we decline the plaintiffs’ request that we ourselves should undertake to supply the definitions that the General Assembly has failed to enact and give immediate operative effect to article third, § 18. We decline to do so for two reasons. First, we can discern no principled guidelines for the definitions contemplated by article third, § 18. Second, we are persuaded that our intervention would directly contravene the amendment as it was adopted.

The terms for which article third, § 18, requires definitions have no inherent meanings that are reliably discemable through judicial processes. The decision of what is to be encompassed within “increase in personal income,” “increase in inflation” and “general budget expenditures” requires the exercise of political judgment rather than the application of judicial scrutiny. Nothing in our constitutional law provides reliable guidance for judicial discernment of the appropriate legal definitions or standards to attach to these spending cap terms. The “lack of judicially discoverable and manageable standards for resolving” the claim before the court is a hallmark of nonjusticiability. Baker v. Carr, supra, 369 U.S. 217.

More fundamentally, article third, § 18, assigns sole responsibility to the General Assembly, and not to the judiciary, to define the terms that will make the spending cap operative. In adopting the amendment, the voters must have contemplated that the political process of consensus and compromise would be brought to bear in determining how quickly, and how broadly, the spending cap would limit future budgetary decisions. We have no authority to excise from the text of article third, § 18, the political decision-making process that is integral to the amendment’s mandate and that we must assume to have been significant to its adoption. See Pellegrino v. O'Neill, supra, 193 Conn. 679; see also Stolberg v. Caldwell, 175 Conn. 586, 595, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981); Adams v. Rubinow, 157 Conn. 150, 153-54, 251 A.2d 49 (1968). Although the judiciary may review the conduct of a coordinate branch of government in order to determine whether that conduct conforms to constitutional dictates; see, e.g., Horton I, supra, 172 Conn. 649; the sound jurisprudential principles that underlie the separation of powers preclude our exercise of authority that has been conferred expressly and exclusively upon a coordinate branch of government.

Our decision requires the plaintiffs to seek relief elsewhere. The voters who cast their ballots to adopt article third, § 18, entrusted its implementation to their legislators. If the plaintiffs and other voters are dissatisfied with that implementation, their recourse is to the political process.

The judgment is affirmed.

In this opinion CALLAHAN, BORDEN, NORCOTT, KATZ and PALMER, Js., concurred.

BERDON, J.,

concurring. I am unable to distinguish this case from Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977). In both cases the constitution directs the legislature to act in order to implement the respective constitutional provisions. Yet, in Horton, the court saw no impediment to its jurisdiction even though the constitutional provision providing for free public education was required to be implemented by the legislature. Likewise, there should be no impediment to this court’s jurisdiction with respect to article third, § 18, as adopted by article twenty-eight of the amendments to the state constitution. The only distinction that can be made between Horton and this case is that in Horton the legislature acted, but its action was constitutionally deficient, while in the present case, the General Assembly has, as of this day, failed to define the operative terms of the constitutional provision. From this distinction, the majority concludes that when the General Assembly acts we have jurisdiction and no political question exists, but when the General Assembly fails to act in accordance with its constitutional mandate, a political question exists and we are without jurisdiction. This is simply a distinction without a difference.

It appears that the majority holds that this court will never have jurisdiction unless the legislature defines the terms for article third, § 18 (b), which, as the attorney general in his brief for the defendants correctly notes, may never occur. Thus, under the majority’s analysis, we would be forever powerless to hold the General Assembly to its constitutional responsibilities. I disagree.

The rights of the public to the implementation of article third, § 18 (b), cannot be frustrated by legislative nonfeasance any more than it can by legislative misfeasance. More than 100 years ago, this court recognized that, like misfeasance, nonfeasance may constitute a jurisdictional basis for this court. When confronted with a contested gubernatorial election case, the court held: “If, however, the General Assembly refuses to act, or if it be so that the General Assembly has jurisdiction of the election of a governor only in the manner and at the time pointed out by the constitution, then the relator is remediless unless the court may intervene. When the time is past within which the General Assembly may act its jurisdiction is gone. To hold that the Assembly has such exclusive jurisdiction, and that the court in no case can have the right to act, would be to afford an instance where a flagrant wrong was without a remedy.” State ex rel. Morris v. Bulkeley, 61 Conn. 287, 374, 23 A. 186 (1892). The Bulkeley court concluded that if the legislature fails to act in accordance with its constitutional mandate, this court has jurisdiction to fill the void. Id., 376. More recently, with respect to legislation necessary to implement the constitutional probable cause procedure, this court said of legislative inaction: “ [I]f both the General Assembly and the judges of the Superior Court failed to establish procedures [for probable cause hearings], thereby leaving the constitutional provision in limbo for an unreasonable period, this court could have imposed such procedures in order to effectuate the amendment. Because the legislature did act within a reasonable period, it was not necessary for us to do so.” State v. Sanabria, 192 Conn. 671, 691-92 n.16, 474 A.2d 760 (1984). I agree with the Sanabria court, which included Chief Justice Peters, but I do not agree with the court’s present analytical flip-flop.

We have a constitutional obligation to keep the doors of this court open in order to enforce our laws. The people of the state approved a constitutional amendment that would require both a balanced budget and a spending cap. We cannot excuse the legislature’s default by merely labeling it a political question and thereby rendering the issue nonjusticiable. Nor is it appropriate for us to conclude that the only remedy available to the people is at the polling booth by “kicking the rascals out.” Our democracy depends in part on the willingness of the courts to enforce uniformly our constitutional law. We cannot be selective and choose to enforce some provisions, while turning our backs on others. Indeed, as Chief Justice Peters wrote in dissent, “[w]hatever the reasons may be, legislative inaction does not, to my mind, reheve this court of its independent duty to vindicate the constitutional rights of those who appear before us.” Pellegrino v. O’Neill, 193 Conn. 670, 695, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).

I concur in the result, not because I believe that this is a political question, but because insufficient time has elapsed between the effective date of article third, § 18 (b), and this date. The doctrine of ripeness prudentially requires sufficient deference to the legislature in order to allow that separate and coordinate branch of government a reasonable time in which to act. “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949). This court has implicitly recognized this doctrine by previously deferring to the legislature for a reasonable length of time. State v. Sanabria, supra, 192 Conn. 691-92 n.16. A little more than three years have elapsed since the effective date of article third, § 18 (b). This is simply an insufficient period for the issue to ripen, especially in view of the fact that a super-majority vote is required for the definitions to be adopted by the General Assembly.

By suggesting that we merely render a declaratory judgment, the plaintiffs themselves appear to have recognized that the legislature has not had a reasonable period in which to accomplish this task, which requires debate and compromise. I would decline the plaintiffs invitation, for the legislature does not need a declaratory judgement to define its responsibilities as it did in Horton. The legislature’s responsibilities are already clearly stated in the language of article third, § 18 (b): “The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths of the members of each house of the general assembly.” If the legislature fails to perform its duty within a reasonable time period, the question will, in my view, ripen, and thereby allow us to define the terms, at least in the first instance, in order to implement article third, § 18 (b).

Although I disagree with the majority’s reasoning, I concur in the result. The action should be dismissed on the ground that the issue is presently not ripe for adjudication.

       The constitution of Connecticut, article third, § 18, as adopted in article twenty-eight of the amendments, provides: “(a) The amount of general budget expenditures authorized for any fiscal year shall not exceed the estimated amount of revenue for such fiscal year.
      “(b) The general assembly shall not authorize an increase in general budget expenditures for any fiscal year above the amount of general budget expenditures authorized for the previous fiscal year by a percentage which exceeds the greater of the percentage increase in personal income or the percentage increase in inflation, unless the governor declares an emergency or the existence of extraordinary circumstances and at least three-fifths of the members of each house of the general assembly vote to exceed such limit for the purposes of such emergency or extraordinary circumstances. The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths of the members of each house of the general assembly.
      “(c) Any unappropriated surplus shall be used to fund a budget reserve fund or for the reduction of bonded indebtedness; or for any other purpose authorized by at least three-fifths of the members of each house of the general assembly.”

       The plaintiffs are Mark Nielsen, Mary McCarthy, Joseph Bukowski, Andrew Goddard, Robert King, Linda Kovacs, Frederick Thomas, Tyrone Humes, Ronald Plummer, John Holbrook, Christopher Calandra and Citizens for a Sound Economy Foundation.

       The plaintiffs named as defendants in their amended complaint the General Assembly and its two constituent houses, the speaker of the House of Representatives, the president pro tempore of the Senate, the comptroller of the state of Connecticut and the treasurer of the state of Connecticut.

       “House Joint Resolution No. 205
      “RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT IMPOSING A LIMIT ON STATE EXPENDITURES.
      “Resolved by (his Assembly:
      “That the following be proposed as an amendment to the constitution of the state, which, when approved and adopted in the manner provided by the constitution, shall, to all intents and purposes, become a part thereof:
      “Article third of the constitution is amended by adding section 18 as follows:
      “Sec. 18. (a) The amount of general budget expenditures authorized for any fiscal year shall not exceed the estimated amount of revenue for such fiscal year.
      “(b) The general assembly shall not authorize an increase in general budget expenditures for any fiscal year above the amount of general budget expenditures authorized for the previous fiscal year by a percentage which exceeds the greater of the percentage increase in personal income or the percentage increase in inflation, unless the governor declares an emergency or the existence of extraordinary circumstances and at least three-fifths of the members of each house of the general assembly vote to exceed such limit for the purposes of such emergency or extraordinary circumstances. The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths of the members of each house of the general assembly.
      “(c) Any unappropriated surplus shall be used to fund a budget reserve fund or for the reduction of bonded indebtedness; or for any other purpose authorized by at least three-fifths of the members of each house of the general assembly.
      “RESOLVED: That the foregoing proposedamendment to the constitution be continued to the next session of the general assembly elected at the general election to be held on November 3, 1992, and published with the laws passed at the present session, or be presented to the electors at the general election to be held on November 3, 1992, whichever the case may be, according to article sixth of the amendments to the constitution. The designation of said proposed amendment to be used on the voting machine ballot labels and absentee ballots atsuch election shall be ‘Shall the constitution of the state be amended to impose a limit on state expenditures?’ ”

       The General Assembly has defined, by a simple majority vote, “increase in personal income,” “increase in inflation” and “general budget expenditures” for purposes of a statutory spending cap. See General Statutes § 2-33a.

       The defendants reassert the defense of legislative immunity that they had raised before the trial court. Because we hold that the dispute is nonjusticiable, we need not address this claim.

       At the time of Pellegrino v. O’Neill, supra, 193 Conn. 670, the constitution of Connecticut, article fifth, § 2, as amended by article twenty of the amendments, provided in relevant part: “The judges of the . . . superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. . . .”
      In 1986, the constitution of Connecticut, article fifth, § 2, was amended by article twenty-five of the amendments.

       For this reason, we cannot substitute for the future end product of that political process the statutory spending cap in General Statutes § 2-33a, because it was not enacted by the constitutionally required three-fifths vote in each house of the General Assembly.

       The constitution of Connecticut, article eighth, § 1, provides: “There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.” (Emphasis added.)
      The constitution of Connecticut, article third, § 18, as adopted by article twenty-eight of the amendments, provides in relevant part: “(a) The amount of general budget expenditures authorized for any fiscal year shall not exceed the estimated amount of revenue for such fiscal year.
      “(b) The general assembly shall not authorize an increase in general budget expenditures for any fiscal year above the amount of general budget expenditures authorized for the previous fiscal year by a percentage which exceeds the greater of the percentage increase in personal income or the percentage increase in inflation, unless the governor declares an emergency .... The general assembly shall by law define ‘increase in personal income’, ‘increase in inflation’ and ‘general budget expenditures’ for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths of the members of each house of the general assembly. ...” (Emphasis added.)


author: PETERS, C. J.

text:
    STATE OF CONNECTICUT v. CHARLES J. BURNS
    (15294)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued November 30, 1995
    decision released February 6, 1996

      James A. Killen, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Alfred Baldwin, assistant state’s attorney, for the appellant (state).

      Donald D. Dakers, special public defender, with whom, on the brief, was David B. Bachman, special public defender, for the appellee (defendant).
   PETERS, C. J.

The sole issue in this certified appeal is whether General Statutes § 14-227a (h) (3), which imposes enhanced penalties on a third time violator of the laws against the operation of a motor vehicle while under the influence of intoxicating liquor or drugs, is triggered by the occurrence of a third violation within five years of a prior conviction, or by the occurrence of a third conviction within that five year period. The defendant, Charles J. Bums, was charged with operating a motor vehicle while under the influence of intoxicating liquor or drags in violation of General Statutes § 14-227a (a) (1) and with being a third time offender of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (h) (3). After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs. The trial court denied his subsequent motion to dismiss the charge of being a third time offender. The defendant then entered a plea of nolo contendere to that charge, conditioned on his right to take an appeal pursuant to General Statutes § 54-94a and Practice Book § 4003.

The Appellate Court reversed the judgment of the trial court. State v. Burns, 38 Conn. App. 8, 658 A.2d 163 (1995). We granted the state’s petition for certification, limited to the issue of whether a third conviction, as opposed to a third violation, must occur within the five year period set forth in § 14-227a (h) in order to apply the third time offender penalty in that provision. We reverse the judgment of the Appellate Court.

As the Appellate Court observed, “[t]he facts underlying this appeal are not in dispute. On July 20, 1993, the defendant was arrested and charged with reckless driving and operating a motor vehicle while under the influence of liquor or drugs. On March 1, 1994, the state filed an amended second part of the information, charging the defendant as a third time offender subject to the enhanced penalties of § 14-227a (h) (3).

“On March 14,1994, a jury found the defendant guilty of operating a motor vehicle while under the influence of liquor or drugs. The defendant moved to dismiss the amended second part of the information against him on March 23,1994. In support of this motion, the defendant alleged that his prior convictions occurred on October 13 and 28, 1988, and that both convictions, therefore, had occurred more than five years before his present conviction.” Id., 10-11.

The trial court denied the defendant’s motion to dismiss because it construed § 14-227a (h) (3) to impose enhanced penalties whenever a third violation, rather than a third conviction, occurs within the five year period. Finding no ambiguity in the statutory language, the trial court reasoned that interpreting the five year period as running to the date of a third conviction would be inconsistent with the statute’s legislative history and would lead to bizarre consequences that the legislature could not have intended. The Appellate Court concluded to the contrary on the basis of its determination that § 14-227a (h) (3) “expressly and unambiguously . . . requires the five year period to run from conviction to conviction.” Id., 12. We granted the state’s petition for certification to resolve this important issue of statutory construction.

The state claims that the language of § 14-227a (h) (3) unambiguously indicates that a third violation must occur within five years of a prior conviction. In the alternative, the state claims that, if we were to conclude that the statutory language is ambiguous, then the legislative history of § 14-227a (h) (3) supports its interpretation and an alternate construction of the statute would lead to bizarre results that the legislature could not have intended.

The defendant claims, to the contrary, that the language of § 14-227a (h) (3) unambiguously indicates that a third conviction must occur within the five year period. In the alternative, the defendant claims that if we were to conclude that § 14-227a (h) (3) is ambiguous, then the rule of lenity would require us to interpret the statute in his favor. We agree with the state.

Our interpretation of § 14-227a (h) (3) “is guided by well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995); Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). If “a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to ‘bizarre results’ destructive of that purpose, the former should prevail.” State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988). Nonetheless, “unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” State v. Ross, 230 Conn. 183, 200, 646 A.2d 1318 (1994), cert. denied, U.S. , 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); see State v. Anderson, 227 Conn. 518, 527, 631 A.2d 1149 (1993); State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991).

After reviewing the language of § 14-227a (h) (3), we conclude that the statute does not unambiguously dictate whether the five year period that is the predicate for an enhanced penalty runs from a prior conviction to a third violation or from a prior conviction to a third conviction. The relevant statutory language provides such an enhanced penalty “for conviction of a third violation within five years after a prior conviction for the same offense . . . .” The problem arises out of the latent ambiguity in the phrase “for conviction of a third violation.” If emphasis is placed on the word “conviction,” then the defendant’s contention that the period runs from conviction to conviction appears plausible. If emphasis is placed on the word “violation,” however, the state’s contention appears plausible.

This latent ambiguity in the statute cannot readily be resolved by recourse to established rules of English grammar and statutory construction. These rules indicate that a modifier is presumed to modify the term immediately preceding it. See LaProvidenza v. State Employees’ Retirement Commission, 178 Conn. 23, 27, 420 A.2d 905 (1979); 2A J. Sutherland, Statutory Construction (5th Ed. 1992) § 47.33. On the one hand, the modifying phrase “within five years after a prior conviction” appears to modify the term immediately preceding it, “violation.” This analysis suggests that the relevant period runs from a prior conviction to a third violation. On the other hand, the phrase “of a third violation” modifies the term immediately preceding it, or “conviction.” The latter analysis suggests that a third conviction must occur within the relevant five year period.

Unable to derive guidance from the plain language of § 14-227a (h) (3), we must look to other tools of statutory interpretation to inform our analysis of the proper construction of the statute. These tools include an inquiry into the legislative history of a statute and into the purpose the statute was designed to further. With respect to the statute before us, the legislative history is not illuminating, but the legislature’s purpose in undertaking its enactment requires the conclusion that the relevant period runs to a third violation. “To determine legislative intent, it is often useful to examine the title of a proposed bill . . . and the purpose the legislature intended to accomplish by its enactment.

. . . Significantly, Public Acts 1985, No. 85-387, which amended § 14-227a in 1985 to incorporate the language at issue in this case, was entitled ‘An Act Increasing Imprisonment Penalties for Drunk Driving to Meet the Federal Standards.’ . . . [T]his provision was part of a statutory package that enhanced mandatory minimum sentences for both first and multiple offenders and increased penalties for each successive offense. In enacting Public Acts 1985, No. 85-387 so as to amend § 14-227a, the legislature clearly intended to provide harsher penalties for offenders with a history of driving while under the influence” of intoxicating liquor or drugs and to harmonize our law with federal standards. (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 577-78, 556 A.2d 584 (1989); see 28 S. Proc., Pt. 12, 1985 Sess., p. 3948, remarks of Senator Richard B. Johnston; 28 H.R. Proc., Pt. 19, 1985 Sess., p. 7029, remarks of Representative Thomas J. Dudchik.

Because the legislature’s overall goal in enacting § 14-227a (h) (3) was unambiguous, we are persuaded that the phrase “for conviction of a third violation within five years after a prior conviction for the same offense . . .” can reasonably be construed only as imposing enhanced penalties on those whose third violation of § 14-227a (a) occurs within the five year period, regardless of when that conviction occurs. In enacting § 14-227a (h) (3), the legislature sought to deter dangerous conduct, not to influence the timing of a subsequent conviction arising from such conduct. An interpretation of § 14-227a (h) (3) that focuses on the time of conviction rather than the time of violation could have bizarre and ineffective consequences. If eligibility for the enhanced penalty were to depend upon the timing of conviction, then two offenders who were arrested on the same day for their third offense and who previously on the same dates had been convicted twice before of operating a motor vehicle while under the influence of intoxicating liquor or drugs could be subject to disparate penalties if one of the offenders were successful in strategically jockeying for a delay in his trial. Presumably, the legislature did not intend to invite such manipulation of the judicial docket. It is reasonable for us to construe the statute to avoid such an undesirable interpretation.

Finally, we reject the defendant’s contention that our interpretation of § 14-227a (h) (3) is untenable because it would violate the rule of lenity. “Although we recognize the fundamental principle that criminal statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent. . . . Moreover, there is a presumption that the legislature intends to accomplish a reasonable and rational result rather than a difficult and possibly bizarre one.” (Citations omitted; internal quotation marks omitted.) State v. Dolphin, 203 Conn. 506, 523-24, 525 A.2d 509 (1987); see State v. Hinton, 227 Conn. 301, 317-18, 630 A.2d 593 (1993); State v. Chicano, 216 Conn. 699, 719-20, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). As we have already noted, the defendant’s interpretation of § 14-227a (h) (3) would have the irrational and unintended result of imposing enhanced penalties, for repeated operation of a motor vehicle while under the influence of intoxicating liquor or drugs, not by reference to the date of the defendant’s third such misconduct, but by reference to the fortuitous date of his third conviction. We have not previously applied the principle of lenity in such circumstances, and we decline to do so today.

The judgment of the Appellate Court is reversed, and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 14-227a provides in relevant part: “Operation while under the influence of liquor or drug or while impaired by liquor, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both ....
      “(h) Penalties for operation while under the influence. Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within five years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .”

       The state also charged the defendant with reckless driving in violation of General Statutes § 14-222 (a). The defendant pleaded guilty to that charge and does not contest the validity of that conviction.

       General Statutes § 54-94a provides in relevant part: “Conditional nolo contendere plea. Appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied . . . the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nopjurisdictional defects in the criminal prosecution.”
      Practice Book § 4003 provides in relevant part: “Appeals of Rulings on Motions to Dismiss or Suppress Following Judgments Entered Upon Conditional Pleas of Nolo Contendere
      “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied . . . the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nopjurisdictional defects in the criminal prosecution. The court shall . . . decline to accept such a nolo contendere plea where the record available for review of the denial of the . . . motion to dismiss is inadequate for appellate review of the court’s determination thereof.”

       We granted the state’s petition for certification to appeal, limited to the following issue: “Under General Statutes § 14-227a (h) (3), is the five year period measured from the date of the prior conviction to the date of the current conviction, or from the date of the prior conviction to the date of the current violation?” State v. Burns, 234 Conn. 918, 661 A.2d 96 (1995).

       None of the legislators who commented on § 14-227a (h) (3) specifically addressed whether the enhanced penalties were intended to be triggered by a third violation or by a third conviction within the five year period. The general comments of the legislators regarding Public Acts 1985, No. 85-387, which amended § 14-227a in 1985 to incorporate the language at issue in this appeal, were linguistically inconsistent. The legislators alternately described the amendment as imposing additional penalties when a third offense, third conviction or third violation occurs. Representative Thomas J. Dudchik described the legislation as “increas[ing] the mandatory jail sentence for a second and third offense.” (Emphasis added.) 28 H.R. Proc., Pt. 19, 1985 Sess., p. 7029. Representative Richard D. Tulisano indicated that this statute determined that “a second offender . . . will be one who commits a violation within five years of a prior conviction, so it’s a five year limitation on the second offender status.” (Emphasis added.) 28 H.R. Proc., Pt. 19,1985 Sess., p. 7039. Tulisano later indicated that this legislation would conform Connecticut law with federal law so that “any person core
        victed, of a second violation of driving under the influence of alcohol within five years after the conviction for the same offense” would be a second offender. (Emphasis added.) Id., p. 7040. Senator Richard B. Johnston stated: “[SJecond, third, or subsequent convictions which occur within the first five years of the first conviction would subject a person to increased penalties.” (Emphasis added.) 28 S. Proc., Pt. 12, 1985 Sess., p. 3948.

       Although 23 U.S.C. § 408 (e) encourages states to adopt statutes similar to the one adopted by Connecticut and codified as § 14-227a (h) (3), our research revealed no cases from other jurisdictions addressing the issue raised in this appeal.

        In State v. Mattioli, supra, 210 Conn. 575, we concluded that the enhanced penalties provided by § 14-227a (h) apply to the third conviction of a defendant even if only one of the two prior convictions occurred within five years of the third conviction or violation. We, however, expressly did not determine whether the five year period runs from conviction to violation or conviction to conviction. Id., 577 n.3.

       The defendant argues that the legislature intended the five year period to run from conviction to conviction in order to provide a bright line rule. Although we agree that the legislature intended to provide a bright line rule, that does not inform us whether the legislature preferred the date of the violation or the date of the conviction to serve as that bright line.


author: PER CURIAM.

text:
    MARIA GAJEWSKI ET AL. v. ARTHUR PAVELO ET AL.
    (15203)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.
    Argued January 18
    decision released February 6, 1996

      Rosalind J. Koskoff, with whom were Michael Koskoff and, on the brief, Joan C. Harrington and Richard A. Fuchs, for the appellants (plaintiffs).

      James E. Coyne, with whom, on the brief, was Colleen D. Fries, for the appellee (defendant Utica Radiator Corporation).
   PER CURIAM.

Under General Statutes § 52-572q, a provision of the Connecticut Product Liability Act, a product may be defective solely because a manufacturer or seller has failed to provide adequate warnings or instructions to a claimant who has suffered harm because of the absence of such warnings or instructions. In this certified appeal, the only issue is whether the Appellate Court properly concluded that the trial court did not commit reversible error in its jury instructions on the scope of the statutory duty to warn.

The plaintiffs, Maria Gajewski, Jan Gajewski and Janusz Gajewski, filed a multicount complaint against a number of defendants, including Utica Radiator Corporation (Utica), to recover for personal injuries suffered by the plaintiffs as a result of carbon monoxide poisoning. The jury returned a verdict resolving all claims in favor of the defendants. The trial court denied the plaintiffs’ motion to set aside the verdict and rendered judgment for the defendants. On appeal, the Appellate Court first concluded that the judgment should be affirmed in accordance with the general verdict rule. Gajewski v. Pavelo, 32 Conn. App. 373, 375, 629 A.2d 465 (1993). After reversal by this court; Gajewski v. Pavelo, 229 Conn. 829, 643 A.2d 1276 (1994); the Appellate Court considered the underlying merits of the plaintiffs’ appeal, and again affirmed the judgment of the trial court. Gajewski v. Pavelo, 36 Conn. App. 601, 652 A.2d 509 (1994). We granted the plaintiffs’ petition for certification with respect to the propriety of the trial court’s instructions on the statutory duty to warn established by § 52-572q.

As the Appellate Court noted, the jury reasonably could have found that the injuries suffered by the plaintiffs were caused by poisonous gases resulting from a buildup of soot in a chimney flue in their home. This buildup of soot prevented their furnace from venting properly. The furnace had recently been equipped with a new gas fired boiler manufactured by Utica. The gas boiler was installed by a licensed plumber who, as part of the installation process, cleaned the chimney sufficiently to render the furnace operational. At that time, the plumber warned the plaintiffs of the necessity of having the chimney cleaned thoroughly. Utica itself, however, did not warn the plaintiffs directly of this necessity. Id., 606. In instructing the jury with respect to Utica’s liability in these circumstances, the trial court informed the jury that, if it found that Utica had a duty to warn the plaintiffs, it could consider the plumber’s professional knowledge and skills in its assessment of whether Utica had effectively discharged its duty. Id., 617.

The plaintiffs maintain that the trial court’s jury instructions with respect to Utica’s duty to warn them were: (1) improper as a matter of law under § 52-572q, and (2) internally inconsistent and inherently confusing. They argue that the Appellate Court misunderstood or overlooked their claims and therefore improperly upheld the judgment against them. We are unpersuaded.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Sharp v. Wyatt, Inc., 230 Conn. 12, 16, 644 A.2d 871 (1994); Whisper Wind Development Corp. v. Planning & Zoning Commis sion, 229 Conn. 176, 177, 640 A.2d 100 (1994); Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994).

The judgment is affirmed.

       General Statutes § 52-572q provides: “Liability of product seller due to lack of adequate warnings or instructions, (a) A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided.
      “(b) In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) The likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions.
      “(c) In claims based on this section, the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm.
      “(d) A product seller may not be considered to have provided adequate warnings or instructions unless they were devised to communicate with the person best able to take or recommend precautions against the potential harm.”

       We granted the plaintiffs’ petition for certification, limited to the following issue: “Was the Appellate Court correct in concluding that the trial court properly instructed the jury on the duty to warn under General Statutes § 52-572q?” Gajewski v. Pavelo, 232 Conn. 915, 654 A.2d 355 (1995).