text:
    City of Norwich v. Guerson R. Silverberg City of Norwich v. Richard N. Ziff
    (12775)
    (12776)
    Peters, C. J., Shea, Callahan, Novack and Hammer, Js.
    Argued May 7
    decision released July 8, 1986

      Alan E. Lieberman, with whom, on the brief, was Robert J. Catheart, for the appellant (defendant in the first case).

      Joseph F. Shelley, Jr., with whom, on the brief, was Arthur A. Palmunen, for the appellant (defendant in the second case).

      Wesley W. Horton, with whom were David T. Ryan and, on the brief, Susan M. Cormier and Thomas A. Young, for the appellee (plaintiff in both cases).
   Peters, C. J.

The sole issue on this appeal is a determination of the scope of the indemnification provisions of General Statutes § 7-101a. The plaintiff, the city of Norwich, brought suit against the defendants, Richard N. Ziff and Guerson D. Silverberg, for legal malpractice. Ziff was corporation counsel to the plaintiff and Silverberg was assistant corporation counsel. In its malpractice action, the plaintiff complained that the defendants had provided inadequate representation in litigation involving a disputed tax assessment. Each defendant answered by denying the plaintiffs allegations and by filing a counterclaim demanding reimbursement from the plaintiff under General Statutes § 7-101a for any amount that the court might order the defendants to pay as well as for all expenses incurred by the defendants as a result of the suit. The trial court granted the plaintiffs motions to strike these counterclaims. The defendants appeal from the judgments thereafter rendered against them on the counterclaims.* *

General Statutes § 7-101a (a) requires a municipality to “protect and save harmless any municipal officer, whether elected or appointed, of any board, committee, council, agency or commission, or any full-time municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in the discharge of his duties.” The trial court, in striking the defendants’ counterclaims, held that this statute requires the municipality to indemnify officers and employees only when they are sued by third parties and not when the municipality itself is the plaintiff.

On appeal, the defendants claim that the trial court erred in its judgment because § 7-101a, by its plain language, applies to “any claim, demand, suit or judgment.” They urge us to hold that, in cases where a municipality sues its officials for negligence, the municipality must indemnify the officials for the amount it recovers as well as for costs to the officials that arise as a result of the action. In their view, § 7-101a effectively immunizes municipal officers and employees from any liability to their municipality for negligence. We find no error in the ruling of the trial court.

We note preliminarily the procedural framework that governs our inquiry on this appeal. “It is well settled that ‘[wjhere an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the [appellant’s pleadings] construed in a manner most favorable to the pleader. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 [1980]; Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 [1973]; Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 [1968]; Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557, 227 A.2d 418 [1967]. For purposes of appeal, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 [1976]; McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 [1973]. See Practice Book, 1978, § 151.’ Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980).” Mead v. Burns, 199 Conn. 651, 655, 509 A.2d 11 (1986). Accordingly, in this case, we must assume that the defendants were, as they have alleged, municipal officers who qualified for whatever protection § 7-101a provides. The only question before us is whether that statute affords indemnity to municipal officers whom the municipality itself sues for negligence.

Well-established principles of statutory construction govern our analysis of § 7-101a. Our objective is to construe the language of the section so as to give effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984); 2A Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. In our pursuit of that objective, we look to the language of the statute itself, its legislative history, and previous judicial construction. State v. Kozlowski, supra, 673-74; DeFonce Construction Corporation v. State, 198 Conn. 185, 187, 501 A.2d 745 (1985); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985). Mindful of inherent statutory interrelationships, furthermore, we endeavor “to read the statute as a whole and so as to reconcile all parts as far as possible.” Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983); see also P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159-60, 454 A.2d 1258 (1983); Connecticut Theatre Foundation, Inc. v. Brown, 179 Conn. 672, 677, 427 A.2d 863 (1980).

The defendants’ argument that they may rely on § 7-101a for immunity from liability to their municipal employers depends primarily on the language of subsection (a) of § 7-101a. They point out that this subsection purports to govern “any” claim of negligence and therefore argue that this unqualified coverage conclusively establishes a legislative intent that § 7-101a apply to two-party as well as to three-party indemnity claims. We are unpersuaded.

Read as a whole, § 7-101a refutes a construction affording the defendants the immunity they seek, because the section demonstrates, in its remaining subsections, that the transactions that the legislature sought to address were transactions in which an injured third person was seeking relief from a municipal employee and, indirectly, from a municipality itself. None of these subsections contemplates reimbursement for a municipal employee who has negligently failed to discharge his duties to his municipal employer.

Subsection (c) is instructive to a reading of “any claim” that excludes the municipality itself, because this subsection authorizes municipalities to purchase insurance to cover “the liability imposed by this section.” Liability insurance is designed to protect an insured from claims for damages owed to a third person, and not from losses that the insured suffers directly. Cain v. American Policyholders’ Ins. Co., 120 Conn. 645, 653, 183 A. 403 (1936); see Alcorn Bank & Trust Co. v. United States Fidelity & Guarantee Co., 705 F.2d 128 (5th Cir. 1983); Keeton, Insurance Law (1971) § 4.8. The fact that subsection (c) speaks only to liability insurance implies that the legislature did not contemplate a need for a municipality to insure against its own losses to deal with the risk assigned to it by subsection (a). Although broader municipal insurance might well be available to provide a more extended all-risk coverage, the legislature was clearly of the view that “this section” required municipalities only to “insure against . . . liability.”

Even more definitively, subsection (d) imposes procedural preconditions on municipal liability that are entirely inconsistent with the defendants’ expansive interpretation of subsection (a). No municipality need indemnify a municipal officer for his losses unless the prospective claimant (1) notifies the municipality of his intention to bring suit against the municipality’s officer within six months of the accrual of the cause of action, and (2) initiates suit within two years after the accrual date. Failure to comply with these procedural prerequisites affects only the right to indemnification; it does not impair a claimant’s cause of action against the defendant officer himself. See Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985); see also Wakelee v. DeSanto, 152 Conn. 44, 202 A.2d 833 (1964). The application of § 7-101a to suits brought by municipalities would result in the anomaly of requiring municipalities to notify themselves of their intention to commence suit against their own officers. The municipality could avoid the obligation to indemnify by simply failing to file notice with itself within six months or neglecting to bring suit within two years. We cannot conclude that the legislature intended § 7-101a to operate in this way. Read as a whole, § 7-101a does not apply to actions brought by municipalities against their officers or employees.

There are no previous judicial constructions of § 7-101a that point in a different direction, nor is there any illuminating legislative history to lend support to the defendants’ argument that the statute was intended to shield municipal officers from liability to their own municipalities. The defendants note that a remark by Representative Kevin P. Johnston during a 1977 House debate demonstrates his belief that § 7-101a applies to suits brought by municipalities. 6It was, however, a 1971 enactment that provided the language of § 7-101a (a) which the defendants claim requires indemnification when the municipality is the claimant. Representative Johnston, who was not in the legislature in 1971, made his statement six years later in support of an amendment to § 7-101a that, when enacted, left this language intact and did not involve the issue of whether the statute should apply when municipalities sue their employees and officers. The remark therefore lacks authority as a guide to our interpretation of § 7-101a on this question. Grodis v. Burns, supra, 46-47; see also Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978); Norwalk v. Daniele, 143 Conn. 85, 89, 119 A.2d 732 (1955).

Our construction of § 7-101a comports with the apparent purpose behind its enactment. The statute is designed to furnish some relief for injustice that would otherwise attend our well-established doctrine of sovereign municipal immunity. See, e.g., Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982); Tango v. New Haven, 173 Conn. 203, 204-205, 377 A.2d 284 (1977). Absent such a statute, claimants injured by the misconduct of municipal officers and employees acting in the course of their official duties would be limited to recourse against individual tortfeasors. The legislature might reasonably have concluded that such limited recourse would be unfair both to the injured claimant and to the municipal officer or employee. From the point of view of the claimant, he would be confronted with a defendant who might well lack the resources to provide adequate compensation for the claimant’s injuries. From the point of view of the municipal officer or employee, he would be required to shoulder ultimate liability, as well as the costs of defense, for conduct that was solely beneficial to his municipal employer. To remedy these distortions that the law of sovereign immunity would otherwise impose upon the fair allocation of the risks of accident and other tortious misconduct, the legislature provided for statutory indemnification by municipalities to relieve individual municipal employees and officers of personal liability for injuries they cause, or are alleged to have caused, to third parties on behalf of their municipalities. In effect, the legislature has created a statutory analogue for the common law doctrine of respondeat superior.

The salutary purpose that § 7-10 la was designed to serve does not require its extension to suits brought by municipalities against their officers. Respondeat superior has never precluded an employer from recovery against an employee whose misconduct directly injures the employer. See 2 Restatement (Second), Agency § 402. It is true that the legislature might have determined that the need to attract citizens to public service required it to go beyond respondeat superior and to provide for municipal officers and employees total immunity from liability for actions in negligence brought by their municipal employers. In our view, however, if that had been the legislature’s intention, it would have been manifested by a straight-forward immunity statute rather than by the round-about system of indemnification that the defendants ask us to read into § 7-101a. We will not infer such an intention without a clearer indication of purpose than § 7-101a, read as a whole, presently expresses.

The trial court correctly held that § 7-101a applies only to suits brought by third party plaintiffs. Consequently, the court did not err in granting the plaintiff’s motions to strike the defendants’ counterclaims.

There is no error.

In this opinion the other justices concurred.

       Appeals involving this underlying controversy have twice come before this court. Norwich v. Lebanon, 200 Conn. 697, 513 A.2d 77 (1986); Norwich v. Lebanon, 193 Conn. 342, 477 A.2d 115 (1984).

       “[General Statutes] Sec. 7-101a. protection of municipal officers AND FULL-TIME MUNICIPAL EMPLOYEES FROM DAMAGE SUITS. REIMBURSEMENT OF DEFENSE EXPENSES. LIABILITY INSURANCE. TIME LIMIT FOR films, notice, (a) Each town, city, borough, consolidated town and city and consolidated town and borough shall protect and save harmless any municipal officer, whether elected or appointed, of any board, committee, council, agency or commission, or any full-time municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in the discharge of his duties.
      “(b) In addition to the protection provided under subsection (a) of this section, each town, city, borough, consolidated town and city and consolidated town and borough shall protect and save harmless any such municipal officer or full-time municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties.' In the event such officer or employee has a judgment entered against him for such act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act.

        “(c) Each such municipality may insure against the liability imposed by this section in any insurance company organized in this state or in any insurance company of another state authorized to write such insurance in this state or may elect to act as self-insurer of such liability.
      “(d) No action shall be maintained under this section against such municipality or employee unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued.”

       Because the trial court, in each case, struck the defendant’s entire counterclaim and then rendered judgment, its actions are appealable at this time. See Practice Book § 157; Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 722-25, 443 A.2d 922 (1982); Breen v. Phelps, 186 Conn. 86, 439 A.2d 1066 (1982).

       Indeed, it does not appear that the plaintiff in this case filed notice with itself as required by General Statutes § 7-101a (d).

       Representative Johnston made his remark during the following exchange:
      “Dorothy C. Goodwin: Mr. Speaker. Thank you, Mr. Speaker. Through you, a question to the proponent of the bill.
      “Mr. Speaker: Please proceed.
      “Dorothy C. Goodwin: Mr. Johnston, I don’t [know] that whether . . . maybe you could just tell me whether this is a needless worry or not, but what about the case where one officer of a town sues another officer of a town, or one board of a town sues another board of a town, or where the municipality sues an employee, or an employee sues a municipality. What happens in such a case?
      “Kevin P. Johnston: Through you, Mr. Speaker, through this amendment, and through the law, any suit brought against an employee or an officer of a community, whether he’s a board member or a commission member, will be protected by that community. The bill does not specify who is doing the suing, or anything to that effect. So, that employee, or that officer, would be protected by the community, if that helps clear it up a little.

        “Dorothy C. Goodwin: Through you, Mr. Speaker, one more question. This bill just covers personal liability then. Is that correct?
      “Kevin P. Johnston: As I understand it, through you, Mr. Speaker.
      “Dorothy C. Goodwin: Thank you. I would like to support the bill. Thank you.” 20 H. R. Proc., Pt. 7, 1977 Sess., pp. 2843-44.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    School Administrators Association of New Haven et al. v. John Dow, Jr., et al.
    (12657)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.
    Argued April 8
    decision released July 8, 1986

      Lubbie Harper, Jr., with whom, on the brief, was Bruce L. Levin, for the appellants (defendants).

      John M. Gesmonde, for the appellees (plaintiffs).
   Santaniello, J.

This is an appeal from a decision of the trial court enjoining the defendants, the New Haven board of education (board) and John Dow, Jr., the superintendent of schools for New Haven, from terminating the employment contracts of ten school administrators and eliminating nine administrative positions. The plaintiffs, the school administrators association of New Haven (union) and nineteen individual administrators, brought suit against the defendants alleging that the board’s consideration of the dismissal of some of the plaintiffs and its elimination of the positions of others were invalid. The trial court, agreeing that the board’s actions were “null and void” because the superintendent was not properly certified, enjoined the board from making the proposed changes. The defendants appeal, claiming that the court erred: (1) in concluding that the superintendent’s improper certification rendered the board’s actions invalid; (2) in granting equitable relief where there was an adequate remedy at law; and (3) in refusing to dismiss the action for lack of jurisdiction on the ground that the plaintiffs failed to exhaust their administrative remedies. The plaintiffs respond that the trial court acted properly and proffer four alternate grounds upon which the judgment below might be affirmed. See Practice Book § 3012 (a). We conclude that the trial court lacked jurisdiction to hear the complaint brought by the plaintiffs and accordingly remand the case with direction to dismiss.

The facts as found by the trial court are undisputed. Dow, although not certified for the position, became the superintendent of schools for the city of New Haven on January 15, 1984. Approximately six months later he held a series of meetings with the school system’s assistant superintendents and directors to reevaluate the performance of a number of school administrators. By letter dated July 2, 1984, he sent notice to ten of the individual plaintiffs stating that he planned "to discuss with the Board, at its Executive Session meeting on Monday, 9 July 1984 . . . [their] continued employment in [the] school district.” The letter also informed them that the matter could be discussed at a public meeting if they so desired. The meeting was held as scheduled and the board of education, upon the recommendation of Dow, commenced dismissal proceedings against these ten individuals and eliminated the positions of nine other individual plaintiffs. On July 10, 1984, the board formally notified the group of ten plaintiffs that it had voted to consider terminating their employment contracts. Those individuals in response requested that the board give reasons for the proposed termination and requested that a hearing be held pursuant to General Statutes § 10-151 (d). Dow responded on July 19,1984, by saying that their termination was under consideration for, inter alia, “inefficiency or incompetence,” “insubordination” and “lack of integrity.”

The plaintiffs instituted this action on July 10,1984, and hearings regarding their request for a permanent injunction were held on July 31 and August 1, 1984. No administrative hearings under General Statutes § 10-151 (d) have been conducted and the board has taken no further action concerning the individual plaintiffs’ employment or positions. The union has filed ten grievances pursuant to the collective bargaining agreement in effect between the parties, but the record does not disclose the disposition of these complaints.

The threshold issue on this appeal is whether the trial court had jurisdiction to hear the plaintiffs’ request for relief. The defendants moved to dismiss the complaint on the ground that the trial court lacked jurisdiction, arguing that the plaintiffs failed to exhaust the contractual remedies available to them under their collective bargaining agreement and that they failed to pursue the administrative remedies provided in General Statutes § 10-151 (d). The trial court denied the motion, however, and reached the merits of the plaintiffs’ claims.

The bargaining agreement between the board and the union in effect between July 1,1983, and June 30, 1985, provided that an individual administrator may file a grievance when “(1) he has been treated unfairly or inequitably, or (2) there has been a violation, misinterpretation or misapplication of a specific provision(s) of [the] Agreement or of established policy or practice.” The agreement delineates a formal three step procedure for filing a grievance: the matter is first brought to the superintendent for decision, then to the board as a whole, and finally to an arbitrator for a binding decision. By statute, the agreement is enforceable; General Statutes § 52-408; and one party may compel the other to proceed with arbitration by petitioning the Superior Court pursuant to General Statutes § 52-410. After an award is rendered by an arbitrator, the parties may also apply to the Superior Court to vacate or confirm the award; General Statutes §§ 52-418 through 52-420; and may then appeal the Superior Court’s decision. General Statutes § 52-423.

Under federal law, “it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement” before resorting to the courts. Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Republic Steel Corporation v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). The United States Supreme Court, in establishing this rule, reasoned that Congress had “expressly approved contract grievance procedures as a preferred method for settling disputes . . . . ” Republic Steel Corporation v. Maddox, supra, 653. Although federal precedent in this area is not controlling, we find it persuasive and adopt a similar standard for cases brought under our state’s labor laws. See Board of Education v. Connecticut State Board of Labor Relations, 190 Conn. 235, 241, 460 A.2d 1255 (1983). Like Congress in passing the Labor Management Relations Act, the General Assembly in enacting the state Labor Relations Act, General Statutes §§ 31-101 through 31-lllb, the Teacher Negotiation Act, General Statutes §§ 10-153a through 10-153n, and the arbitration statutes, General Statutes §§ 52-408 through 52-424, clearly intended that it is “not only permissible but desirable” for grievances between employees, including school administrators, and the employer, including the board of education, to be settled through contract grievance-arbitration procedures. Norwalk Teachers’Assn. v. Board of Education, 138 Conn. 269, 280, 83 A.2d 482 (1951); see also Board of Education v. Connecticut State Board of Labor Relations, supra (involving an unfair labor practice committed in the course of the grievance-arbitration proceedings). “A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation ‘would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 103 [82 S. Ct. 571, 7 L. Ed. 2d 593 (1962)].” Republic Steel Corporation v. Maddox, supra.

We conclude then that, as a matter of state law, parties to a collective bargaining agreement must attempt to exhaust the exclusive grievance and arbitration procedures established in their agreement before resorting to court. See Cahill v. Board of Education, 187 Conn. 94, 103-104, 444 A.2d 907 (1982); Corey v. Avco-Lycoming Division, 163 Conn. 309, 328, 307 A.2d 155 (1972) (Loiselle, J., concurring), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); D’Agostino v. New Britain, 7 Conn. App. 105, 109-10, 507 A.2d 1042 (1986); Cislo v. Shelton, 35 Conn. Sup. 645, 653, 405 A.2d 84 (1978). In this case the individual plaintiffs and their union brought suit seeking to enjoin the board from eliminating certain administrative positions and from dismissing ten individuals. The complaint alleged that the defendants acted unfairly, violated the parties’ collective bargaining agreement, violated state statutory procedures, and violated the plaintiffs’ constitutional rights to due process and equal protection. Despite the multiple allegations made, the complaint is not unlike those usually brought for employee grievances and essentially seeks relief for harms occurring in the context of an employer-employee relationship. See Cahill v. Board of Education, 198 Conn. 229, 236-39, 502 A.2d 410 (1985). Given the broad wording of the grievance provisions of the collective bargaining agreement, we have no doubt that the relief requested in this case is within the scope of the contractual remedies available. See Legg, Mason & Co. v. MacKall & Coe, Inc., 351 F. Sup. 1367, 1370-71 (D.C. Cir. 1972) (“complaint sounding in tort will not in itself prevent arbitration if the underlying contract embraces the disputed matter”); Merrick v. Writers Guild of America, West, Inc., 130 Cal. App. 3d 212, 219, 181 Cal. Rptr. 530 (1982). The plaintiffs therefore should have pursued their claims under the grievance-arbitration provisions of their collective bargaining agreement before seeking redress in state court. 6The trial court was thus in error when it refused to dismiss the complaint for lack of jurisdiction.

We also note that the ten individual plaintiffs* *** whose contracts are being considered for termination have not exhausted the administrative remedies available to them under General Statutes § 10-151 (d). “We have frequently stated that ‘[w]hen an administrative remedy is provided by law, relief must be sought by exhausting this remedy before resort to the courts.’ McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952), cert. denied, 344 U.S. 913, 73 S. Ct. 336, 97 L. Ed. 704 (1953); Laurel Park, Inc. v. Pac, 194 Conn. 677, 684, 485 A.2d 1272 (1984); Friedson v. Westport, 181 Conn. 230, 232-33, 435 A.2d 17 (1980); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 179, 377 A.2d 280 (1977).” Sampietro v. Board of Fire Commissioners, 200 Conn. 38, 42, 509 A.2d 28 (1986). Under § 10-151 (d) tenured teachers possess the right to have the school board’s decision reviewed by an impartial panel before they can be dismissed. The ten individuals involved here requested such a hearing, but before such a hearing could be conducted, they filed the present action seeking equitable relief. On the facts, this case is virtually indistinguishable from the second termination attempt in LaCroix v. Board of Education, 199 Conn. 70, 82-87, 505 A.2d 1233 (1986). In LaCroix we held that the plaintiff’s failure to pursue the school board’s second termination action under the administrative procedures established in General Statutes § 10-151 (d) prevented the Superior Court from acting on the matter. In this case, as in LaCroix, “[t]he plaintiffs] deliberately decided not to avail [themselves] of these statutory means of redress. [Their] failure . . . to pursue [their] available remedies is thus fatal to [their] present cause of action.” Id., 84.

The plaintiffs raise claims attacking the constitutionality of the procedure used by the board in considering the termination of the contracts and the elimination of the positions in question. We have recognized that in special circumstances, plaintiffs who challenge the constitutionality of an administrative procedure may be permitted to bring a collateral action without first exhausting their administrative remedies. Id., 79; Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979). “[D]irect judicial adjudication even of constitutional claims [however,] is not warranted when the relief sought by a litigant ‘might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore.’ Sullivan v. State, [189 Conn. 550, 559, 457 A.2d 304 (1983)].” LaCroix v. Board of Education, supra, 87. Since the plaintiffs here could have obtained the relief sought by resorting either to the grievance procedures established by the collective bargaining agreement or to the administrative procedure of General Statutes § 10-151 (d), the trial court therefore did not have jurisdiction to consider even the plaintiffs’ constitutional challenge.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the action for lack of jurisdiction.

In this opinion the other justices concurred.

       The alternate grounds offered by the plaintiffs to sustain the trial court’s action are: (1) the defendants acted in excess of statutory authorization and in violation of the plaintiffs’ constitutional rights; (2) the defendants acted without authority and to the detriment of the public interest; and (3) equitable relief was necessary to protect the plaintiffs from the bad faith and negligence of the defendants. The “fourth alternate ground” was phrased more like an issue for a cross appeal. It contests the trial court’s refusal to order a hearing on damages. Because of our disposition of the case on jurisdictional grounds, we do not reach these four issues. For the same reason, we also do not reach the first and second claims raised by the defendants.

       General Statutes § 10-151 (d) provides: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with either (A) a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization or (B) in the absence of such agreement, a written policy of the board of education; or (6) other due and sufficient cause. Nothing in this section or in any other section of the general statutes or of any special act shall preclude a board of education from making an agreement with an exclusive bargaining representative which contains a recall provision. Prior to terminating a contract, a board of education shall vote to give the teacher concerned a written notice that termination of such teacher’s contract is under consideration and, upon written request filed by such teacher with such board within seven days after receipt of such notice, shall within the next succeeding seven days give such teacher a statement in writing of the reasons therefor. Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension, either before the board of education or, if indicated in such request or if designated by the board before an impartial hearing panel. The impartial hearing panel shall consist of three members appointed as follows: The board of education shall appoint one panel member, the teacher shall appoint one panel member, and those two panel members shall choose a third, who shall serve as chairperson. Within fifteen days after the close of the hearing before an impartial hearing panel, unless the parties mutually agree to an extension, such panel shall submit in writing its findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel. Each party shall pay the fee of the panel member selected by it and shall share equally the fee of the third panel member and all other costs incidental to the panel’s hearing. If the hearing is before the board of education, the board shall render its decision within fifteen days after the close of such hearing, and shall send a copy of its decision to the teacher. Either hearing shall be public if the teacher so requests or the board so designates. The teacher concerned shall have the right to appear with counsel at either hearing, whether public or private. A copy of a transcript of the proceedings of either hearing shall be furnished by the board of education, upon written request by the teacher within fifteen days after the board’s decision, provided the teacher shall assume the cost of any such copy. Nothing herein contained shall deprive a board of education of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section.”

       The defendants challenged the complaint on a motion to dismiss. Although the claim that the plaintiffs failed to exhaust their administrative remedies goes to subject matter jurisdiction and is properly raised by such a motion under Practice Book § 143, the claim that the plaintiffs failed to pursue their contractual remedies is not purely a question of subject matter jurisdiction and may have been more properly challenged by a motion to strike under Practice Book § 152.

       The plaintiffs claim that under the collective bargaining agreement in effect, the arbitrator is vested only with the power to construe specific provisions of the agreement and has no power to apply legal standards. They argue from this premise that arbitration would be an inadequate remedy. We cannot agree with the plaintiffs, however, that the arbitrator is so limited under the collective bargaining agreement. The only limitation on the arbitrator’s authority is found in section nine of the grievance procedures which provides that “any arbitrator acting pursuant to this Agreement shall have power only to construe specific provisions of this Agreement and shall have no authority to add to, delete from or modify in any way any provision of this Agreement. ” This language can reasonably be read to limit just the arbitrator’s powers to construe the agreement and does not necessarily mean that the arbitrator is powerless to apply legal principles. It is “presumed that the parties intended to grant to the arbitrators such powers as are reasonably necessary to settle the dispute fully.” 5 Am. Jur. 2d, Arbitration and Award § 25. Thus, absent explicit language in the contract to the contrary or limiting language in the submission, it is presumed that the arbitrator in this case has the power fully to decide disputes involving “grievances” as defined by the agreement. See Board of Police Commissioners v. Maher, 171 Conn. 613, 628, 370 A.2d 1076 (1976); Straw v. North Hollywood Hospital, Inc., 150 Cal. App. 2d 306, 310-11, 309 P.2d 541 (1957).

       The plaintiffs’ action could be maintained if the agreement did not make the grievance-arbitration process the exclusive remedy for the parties. Republic Steel Corporation v. Maddox, 379 U.S. 650, 657-58, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965). Although we are not provided on the record with the full agreement, there is no indication that the parties intended the procedures to be other than the exclusive remedy for the resolution of their disputes.

       The administrative remedy provided in General Statutes § 10-151 (d) does not apply to the remaining nine individual plaintiffs whose positions were being eliminated but whose employment with the board continued. Candelori v. Board of Education, 180 Conn. 66, 69, 428 A.2d 331 (1980); Delagorges v. Board of Education, 176 Conn. 630, 636-37, 410 A.2d 461 (1979).


author: Callahan, J.

text:
    University of Connecticut Chapter, AAUP, et al. v. Governor et al.
    (12384)
    Shea, Dannehy, Santanxello, Callahan and Barry, Js.
    Argued March 5
    decision released July 8, 1986

      JoelM. Ellis, with whom was William S. Zeman, for the appellants (plaintiffs).

      Daniel R. Schaefer, assistant attorney general, with whom were David M. Teed, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Barney Lapp, assistant attorney general, for the appellees (defendants).
   Callahan, J.

The principal issue on this appeal is the constitutionality of General Statutes § 4-85 (b) which permits the governor to reduce budgetary allotments by up to 5 percent under certain specified circumstances. The plaintiff unions, claiming that § 4-85 (b) is unconstitutional, originally filed this action in the Superior Court on February 27,1980, to enjoin the governor from making such reductions. The trial court, Satter, J., rejected the plaintiffs’ arguments, found § 4-85 (b) constitutional, and rendered judgment for the defendants. On appeal the plaintiffs argue that General Statutes § 4-85 (b) is unconstitutional: (1) because it has the effect of permitting the governor to veto part of an appropriation; (2) because it confers upon the governor legislative power in violation of the separation of powers provision contained in article second of the Connecticut constitution; and (3) because, even if such power can be delegated, the statute does not satisfy the requirements for a valid delegation under the rule enunciated in State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586 (1940). We find no error.

I

The defendants, in accordance with Practice Book § 3012, have presented two alternate grounds for affirming the judgment, the defenses of sovereign immunity and lack of standing. Both defenses were raised below, considered and rejected by the trial court.

It is well settled in Connecticut that the state cannot be sued without its consent and that since the state acts only through its officers and agents, a suit against an officer concerning a matter in which he represents the state is, in effect, a suit against the state. Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981); Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). Where, however, the defendant officer is alleged to be acting under an unconstitutional statute, the interest in the protection of the plaintiffs’ rights to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine. Horton v. Meskill, supra, 624. The exception in Horton was limited to actions requesting declaratory relief. Id. In Sentner, however, we recognized a narrow exception for actions seeking prospective injunctive relief when the relief granted avoids undue interference with governmental functions. Sentner v. Board of Trustees, supra, 344-45. We agree with the finding of the trial court that this case presented a significant and substantial question, the determination of which is manifestly in the public interest and thus is not barred by the doctrine of sovereign immunity. See Horton v. Meskill, supra, 628.

The defendants next claim that the plaintiffs lacked standing to bring this action because the plaintiff unions proved no injury as a result of the governor’s action. The trial court, Corrigan, J., denied the defendants’ motion to dismiss for lack of standing. It found that the plaintiffs had a colorable claim of direct injury and that the allegations of their amended complaint sufficiently stated an “adversary presentation of the issues to withstand the motion to dismiss.” After the completion of the trial, the court, Satter, J., issued its decision in which it stated in a footnote that it was adopting Judge Corrigan’s opinion concerning standing.

As we recently stated in Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 612-13, 508 A.2d 743 (1986). “ ‘The “fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 20 L. Ed. 2d 947 [1968].’ Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 485, 338 A.2d 497 (1973). ‘Standing is not a technical rule intended to keep aggrieved parties out of court .... Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973).’. . . The requirements of justiciability and controversy are ‘ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.’ ” Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, supra, quoting Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981).

We have reviewed the record and conclude that the trial court was correct in finding that the plaintiffs had standing to bring this action.

II

The plaintiffs first claim that General Statutes § 4-85 (b) is unconstitutional because it allows the governor to veto a part of an appropriation. “It is well settled that a party who challenges a statute on constitutional grounds has no easy burden, for every intendment will be made in favor of constitutionality, and invalidity must be established beyond a reasonable doubt State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976); State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); Eielson v. Parker, 179 Conn. 552, 560, 427 A.2d 814 (1980); State v. Clemente, 166 Conn. 501, 506, 353 A.2d 723 (1974). It is with this in mind that we examine the plaintiffs’ claims.

General Statutes § 4-85 (a) requires each budgeted agency to submit to the governor, through the secretary of the office of policy and management, a requisition for the allotment of the amount necessary to carry on the work of the agency during each quarter of the fiscal year. General Statutes § 4-85 (b), the challenged statute, provides: “The governor shall approve . . . requisitions for allotments unless . . . [he] determines that (1) due to a change in circumstances since the budget was adopted certain reductions should be made in various allotments . . . or (2) the estimated budget resources during such fiscal year will be insufficient to pay all appropriations in full, in which event the governor may modify such allotments to the extent. . . necessary, provided no reduction in the budget adopted by the general assembly, by any requisition for an allotment made pursuant to subsection (a) or modification by the governor or both, shall result in any reduction in any fund of more than three per cent or in any appropriated account of more than five per cent of the amount appropriated for such fiscal year . . . . ”

In the fiscal years 1979-1980, 1980-1981, and 1981-1982, the governor reduced quarterly allotments to the University of Connecticut and to the Connecticut state universities, resulting in their receiving less than the full amounts appropriated to them in each of those fiscal years. The governor reduced the allotments due to anticipated decreases in state revenues and increases in state expenses, which were likely to cause a budgetary deficit. The plaintiffs argue that although the governor’s authority under the statute is not, in form, a veto under article fourth, § 15, of the Connecticut constitution, the substance and effect of the governor’s action is a veto. They contend that § 4-85 (b) authorizes the governor to do indirectly that which the constitution directly prohibits. We disagree.

“Article fourth, § 15, of the constitution of Connecticut confers on the governor the power to veto any bill passed by both houses of the General Assembly but confers no power to veto any bill except as an entirety.” Caldwell v. Meskill, 164 Conn. 299, 305, 320 A.2d 788 (1973). The only power of “partial veto” is that conferred by the provisions of § 16 of article fourth. See Bengzon v. Secretary of Justice, 299 U.S. 410, 414, 57 S. Ct. 252, 81 L. Ed. 312 (1936). Section 16 permits the governor to disapprove any item or items of any bill making appropriations of money embracing distinct items, while at the same time approving the remainder of the bill, and the part or parts of the bill so approved shall become effective but the item or items of appropriation disapproved shall not take effect unless the same are separately reconsidered and repassed in accordance with the rules and limitations prescribed for the passage of bills over the executive veto. Caldwell v. Meskill, supra, 305; see Patterson v. Dempsey, 152 Conn. 431, 207 A.2d 739 (1965).

The plaintiffs argue that General Statutes § 4-85 (b) permits the governor to reduce appropriations which in effect constitutes a veto of part of an appropriations bill, rather than a distinct item of appropriation. This court has held that the terms “item or items” and “part or parts” as used in § 16 of the constitution do not have the same meaning. Patterson v. Dempsey, supra, 440. Under § 16, the governor may only veto distinct “items” of an appropriation, which are indivisible sums of money dedicated to a stated purpose. The governor may not veto any other “parts” of an appropriations bill. Id., 448. The authority given the governor under § 4-85 (b), however, does not allow the governor to reduce either an “item” or a “part” of an appropriation. Rather, it permits the reduction of an allotment. This distinction is one which is not made in the Oklahoma decisions cited and relied on by the plaintiffs. See State ex rel. Crable v. Carter, 187 Okla. 421, 103 P.2d 518 (1940); State ex rel. Hudson v. Carter, 167 Okla. 32, 27 P.2d 617 (1933).

An appropriation is a statute passed by the legislature to authorize expenditures, while an allotment is the action by which the executive branch sets aside funds sufficient to cover a portion of the expenditure authorized by the appropriations act. See General Statutes § 4-69 (3) and (4). We conclude that a reduction of expenditures does not constitute a veto, or even have the effect of a veto. As the trial court indicated, the term “veto” is commonly understood as the refusal of assent by the executive officer whose assent is necessary to perfect a law which has been passed by the legislative body. Black’s Law Dictionary (5th Ed.). The power of partial veto, as contemplated by article fourth, § 16, has been construed as the power to disapprove, a negative power, or a power to delete or destroy a part or item, and is not a positive power, or a power to alter, enlarge or increase the effect of the remaining parts or items. State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 365, 524 P.2d 975 (1974).

Under § 4-85 (b), the governor’s authority does not fall within either of these definitions of the veto power. A reduction of an allotment is not a refusal to assent to an appropriations bill. Neither does the reduction delete or destroy the validity, legality, or effectiveness of the underlying appropriations act which authorized the expenditure, or indicate a disapproval of the appropriations act. In fact, the entire appropriations act remains effective and the expenditure can later be restored, as it was in this case. A partial veto is unconstitutional because it distorts or frustrates the intent of the legislature or enables the executive to legislate affirmatively. Bengzon v. Secretary of Justice, supra, 414; Washington Assn. of Apartment Assns., 88 Wash. 2d 563, 565-66, 564 P.2d 788 (1977). Here, the power to reduce expenditures within specified limits simply implements the intent of the legislature as manifested by § 4-85 (b). Thus, we conclude that § 4-85 (b) does not unconstitutionally confer veto power on the governor in circumvention of article fourth, § 15, of the Connecticut constitution.

Ill

The plaintiffs next argue that General Statutes § 4-85 (b) is invalid because it confers upon the governor a strictly legislative power in violation of the separation of powers doctrine expressed in article second of the Connecticut constitution. We disagree.

“The Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the lawmaking power to any other department or agency. In the establishment of three distinct departments of government the Constitution, by necessary implication, prescribes those limitations and imposes those duties which are essential to the independence of each and to the performance by each of the powers of which it is made the depository.” State v. Stoddard, supra, 627.

We have held, however, that the Reparation of powers doctrine cannot always be rigidly applied. State v. Darden, supra, 679; Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49 (1968). In State v. Clemente, supra, 510, we held that there are activities in which more than one branch of government may participate. “Executive, legislative, and judicial powers, of necessity overlap each other, and cover many acts which are in their nature common to more than one department. These great functions of government are committed to the different magistracies in all their fullness, and involve many incidental powers necessary to their execution, even though such incidental powers in their intrinsic character belong more naturally to a different department.” Id., citing In re Application of Clark, 65 Conn. 17, 38, 31 A. 522 (1894).

As the trial court indicated, the relevant standard for testing the constitutionality of such a statute is stated in State v. Darden, supra, 679. A statute will be declared unconstitutional if it (1) confers on one branch of government the duties which belong exclusively to another branch; see State v. Clemente, supra; or (2) if it confers the duties of one branch of government on another branch which duties significantly interfere with the orderly performance of the latter’s essential functions. See Adams v. Rubinow, supra. We find, however, that neither situation is present here.

The legislative power necessarily encompasses the “power to appropriate funds to finance the operation of the state and its programs.” Eielson v. Parker, supra, 560, citing Bridgeport v. Agostinelli, 163 Conn. 537, 544, 316 A.2d 371 (1972); Conn. Const., art. IV § 22. The governor is vested with the supreme executive power of the state. Conn. Const., art. IV § 5. The governor is also specifically authorized by article fourth, § 12, of the Connecticut constitution to see that the laws are faithfully executed, but the remainder of the governor’s authority must be found in other constitutional provisions and in the statutes. Conn. Const., art. IV § 12; Bridgeport v. Agostinelli, supra, 547.

The budgetary process in Connecticut as set forth in General Statutes, c. 50, part II, involves both the legislative and executive branches. See General Statutes §§ 4-69 through 4-100. The trial court in its memorandum of decision tracked the process of preparing a budget. In summary form, the trial court stated that this process is set in motion when heads of budgeted agencies, pursuant to General Statutes § 4-77, “submit estimates of expenditures required for the next fiscal year, and estimates of revenues for the current and next fiscal year, to the secretary of the office of policy and management and, through the legislative office of fiscal analysis, to the legislative appropriation and finance committees ... having cognizance of matters related to state agencies.” Pursuant to § 4-79, the secretary of the office of policy and management prepares a tentative budget for the governor. The governor then submits a budget document pursuant to § 4-71 setting forth his financial programs for the ensuing fiscal year. See also General Statutes §§ 4-72, 4-73, 4-74, 4-76. The legislature then adopts an act making appropriations for state expenses for that fiscal year. This act appropriates precise dollar amounts to each budgeted agency. As mentioned earlier in our decision, the governor has the power to veto the entire appropriation bill; Conn. Const., art. IV § 15; or any line item of the bill. Conn. Const., art. IV § 16.

In Bridgeport v. Agostinelli, supra, 537, we stated that chapter 50 and General Statutes § 4-85 (b) were enacted to give the governor the power to supervise the execution of the budget. See Report of the Connecticut Commission Concerning the Reorganization of the State Departments (1935) p. 154. “Prior to 1937 a state agency’s ability to spend was limited only by the amount and purpose of the appropriations made. The full amount of the appropriation was reserved for the use of the agency in blanket fashion.” Bridgeport v. Agostinelli, supra, 548. The commission, in its report, stressed the need for a systematic procedure for controlling the rates or the timeliness of expenditures. It proposed “a plan through which appropriations would be made available to the state agencies under a system of quarterly allotments to be administered by the governor. He was to control the timeliness and the amounts of the allotments depending on the state of the revenues received. The allotments so made would establish the maximum amount to which an appropriation could be encumbered. These recommendations provided the basis for what is now part of chapter 50 of the General Statutes.” Id., 548-49.

An examination of this statutory scheme reveals that General Statutes § 4-85 (b) does not delegate a strictly legislative function. In particular, it does not delegate the legislative authority to appropriate, as the plaintiffs argue. Rather, it delegates to the governor the power over making expenditures by allowing him to reduce quarterly allotments under certain well defined circumstances. See Opinion of the Justices, 375 Mass. 827, 376 N.E.2d 1217 (1978). This difference between appropriations and allotments was discussed in part II of our decision. See General Statutes § 4-69 (3) and (4). As the trial court recognized, the executive branch is most capable of having detailed and contemporaneous knowledge regarding finances. Under the constitutional separation of powers, the governor uses that knowledge in making such spending decisions and to see that the laws are faithfully executed. See Conn. Const., art. IV § 12; Opinion of the Justices, supra, 834. We find that General Statutes § 4-85 (b) does not confer legislative power upon the governor in violation of the separation of powers doctrine contained in article second of our constitution.

V

The plaintiff next argues that, if we assume the General Assembly had the power to enact General Statutes § 4-85 (b), the statute does not set forth sufficient standards to circumscribe the governor’s execution of delegable powers appropriately. We disagree.

In passing on the constitutionality of the standards as set forth in General Statutes § 4-85 (b), we will make every presumption and intendment in favor of their validity, and sustain the enactment unless its unconstitutionality is established beyond a reasonable doubt. See New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148, 384 A.2d 337 (1977). In order to render admissible a delegation of legislative power, it is necessary “that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform.” Id., 149, citing State v. Stoddard, supra, 628; Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 120, 355 A.2d 72 (1974); State v. Griffiths, 152 Conn. 48, 57, 203 A.2d 144 (1964); 1 Am. Jur. 2d, Administrative Law § 117. This court noted in State v. Stoddard, supra, 628, however, that any standard must provide only “such degree of certainty as the case permits. ...” See Wilson v. Connecticut Product Development Corporation, supra.

Under General Statutes § 4-85 (b), the governor may exercise his delegated power if (1) due to a change in circumstances since the budget was adopted certain reductions should be made in various allotments of appropriations, or (2) the estimated budget resources during such fiscal year will be insufficient to pay all appropriations in full, “in which event the governor may modify such allotments to the extent the governor deems necessary . . . . ” The provision limits the reduction to no more than 3 percent in any fund or 5 percent in any appropriated account.

The plaintiffs argue that the standards of “deems necessary” and “a change of circumstances” in subdivision (1) permit the governor to make a reduction in an appropriation in his unrestrained discretion. We disagree. The governor’s authority under subdivision (1) is limited to a change of circumstances since the budget was adopted, as well as the 3 percent reduction limit on any fund and the 5 percent reduction limit on any appropriated account. We agree with the trial court that these standards are constitutionally sufficient under our law in that they are “as defínit[e] as is reasonably practicable under the circumstances.” Wilson v. Connecticut Product Development Corporation, supra. As we stated in Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 115, 273 A.2d 880 (1970), “the legislative process would frequently bog down if the General Assembly ‘were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied . . . . ’ ” The duty to supervise the execution of the budget has been vested in the executive branch by our legislature. General Statutes § 4-69 et seq.; see Report of the Connecticut Commission Concerning the Reorganization of the State Departments (1935); Opinion of the Justices, supra, 835-37. To require any more specificity in the standards as set forth in subdivision (1) would hamper the flexibility needed for the governor to monitor and administer expenditures and to supervise the execution of the budget.

The plaintiffs argue that the defect in subdivision (2) is that a shortfall in “estimated budget resources” only triggers the governor’s ability to exercise a reduction power; it does not provide him with a standard for applying that power. Again they argue that the language “deems necessary” does not specifically clarify the limits of the power delegated. We find the standards in subdivision (2) constitutionally sufficient for the same reasons we found subdivision (1) to be “as definit[e] as is reasonably practicable under the circumstances.” Wilson v. Connecticut Product Development Corporation, supra; see Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917 (1967).

Further, it is claimed that the trial court improperly inserted language from General Statutes § 4-85 (c) into General Statutes § 4-85 (b) when it described General Statutes § 4-85 (b) as limiting the governor’s reduction power to that of “avoiding a deficit” or to “prevent a deficit.” We do not find that the trial court erred in looking to General Statutes § 4-85 (c) in interpreting § 4-85 (b). “A court must interpret a statute as written; Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985).” Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985). Moreover, “where a statute reasonably admits of two constructions, one valid and the other invalid on the ground of unconstitutionality, courts should adopt the construction which will uphold the statute even though that construction may not be the most obvious one.” Adams v. Rubinow, supra, 153.

We find no error.

In this opinion the other justices concurred.

       General Statutes § 4-85 (b) provides: “The governor shall approve such requisitions for allotments unless the governor determines that (1) due to a change in circumstances since the budget was adopted certain reductions should be made in various allotments of appropriations or (2) the estimated budget resources during such fiscal year will be insufficient to pay all appropriations in full, in which event the governor may modify such allotments to the extent the governor deems necessary, provided no reduction in the budget adopted by the general assembly, by any requisition for an allotment made pursuant to subsection (a) or modification by the governor or both, shall result in any reduction in any fund of more than three per cent or in any appropriated account of more than five percent of the amount appropriated for such fiscal year except such restriction shall not apply in time of war, invasion or emergency caused by natural disaster.”

       We note that Patterson v. Dempsey, 152 Conn. 431, 435-37, 207 A.2d 739 (1965), was decided before the Connecticut constitution of 1965 was adopted. Patterson cites to article fourth, § 15, of the 1955 constitution. The subject matter of this section is now covered in article fourth, § 16, in the 1965 constitution.


author: Dannehy, J. Shea, J.,

text:
    Gregory Hughes et al. v. John S. Bemer et al.
    (12713)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued April 2
    decision released July 8, 1986

      Snow Gene Munford, for the appellants (plaintiffs).

      Lois B. Tanzer, with whom were James M. Tanski and, on the brief, Elizabeth Schlaff, for the appellees (defendants).
   Dannehy, J.

This action was filed on behalf of Gregory Hughes, a minor, against John S. Bemer and Nancy L. Bemer, the owner and permittee, respectively, of a liquor store. The complaint alleged in separate counts the illegal sale of liquor to a minor in violation of General Statutes § 30-86, and reckless and wanton misconduct in the sale of liquor to a minor. Michael A. Hughes, the father of the named plaintiff, joined in the suit claiming damages caused by his obligation to pay medical and hospital bills for his son. The defendants moved to strike the complaint for failure to state a cause of action. The motion was granted by the trial court, Higgins, J., and judgment was rendered in favor of the defendants. The plaintiffs appealed. We find no error.

On November 12, 1982, the defendants sold a case of beer to Michael Calabrese, a minor. Calabrese, along with Andrew Titterton and Michael Belanger, also minors, consumed all or part of the beer. Thereafter, Titterton, while under the influence of the beer he had consumed, drove an automobile in which the plaintiff Gregory Hughes was a passenger. The automobile was involved in a one-car accident as a result of Titterton’s impaired ability to operate the vehicle. Hughes suffered injuries which have rendered him a permanent quadriplegic.

The trial court struck the complaint in its entirety because it found no proximate cause between the sale of the beer and Hughes’ injuries; Slicer v. Quigley, 180 Conn. 252, 429 A.2d 855 (1980); and because it found the complaint failed to state a cause of action for wanton and reckless misconduct in furnishing alcoholic beverages to a minor. See Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980). On appeal the plaintiffs claim that: (1) Slicer v. Quigley, supra, should be overruled; and (2) the trial court erred in dismissing the counts of the complaint alleging wanton and reckless misconduct in light of our decision in Kowal v. Hofher, supra.

The defendants claim that, irrespective of the merits, the judgment of the trial court must be upheld under Practice Book § 155. We agree. That section provides in relevant part: “If an adverse party objects to [a motion to strike] he shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law. An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion.” The plaintiffs in this case filed no memorandum of law in opposition to the motion to strike.

The principal function of Practice Book § 155 is to enable movement beyond the allegations in the pleadings, and to assist the court in its analysis of the evidence so as to ascertain whether an actual need for trial exists. The filing of a memorandum of law setting forth the relevant arguments is mandatory under Practice Book § 155. Cf. Darling v. Waterford, 7 Conn. App. 485, 508 A.2d 839 (1986). The memorandum m/ust be filed, or the motion to strike shall be granted. The trial court did not err in granting the defendants’ motion to strike the complaint.

There is no error.

In this opinion Peters, C. J., Healey and Santaniello, Js., concurred.

Shea, J.,

dissenting. I disagree with the refusal of the majority to address the significant issue presented in this appeal of whether the trial court has disregarded our decision in Kowal v. Hofher, 181 Conn. 355, 359-62, 436 A.2d 1 (1980), holding that wanton and reckless misconduct in the sale of alcoholic liquor may constitute a proximate cause of the injuries sustained by a victim of an auto accident resulting from the impaired ability of the driver who had consumed the beverage. The justification advanced for disposing of the plaintiffs’ claim without consideration of its merits, that Practice Book § 155 mandates such a result regardless of circumstances indicating a waiver of the provision by the defendants and the trial court, is wholly unprecedented.

The defendants in the trial court never raised noncompliance with § 155 by failure to file a memorandum opposing their motion to strike as a ground for granting the motion. They also failed to file a preliminary statement of issues pursuant to Practice Book § 3012 (a) relying upon this ground as an alternative basis for affirming the judgment. The first mention of the plaintiffs’ failure to comply with § 155 appears in the defendants’ brief on appeal. This court does not ordinarily consider issues that have not been properly raised in the trial court as required by Practice Book § 3063. Similarly, we have refused to consider alternate grounds for upholding a judgment of a lower court where the appellee has failed to file a preliminary statement of such grounds pursuant to § 3012 (a). State v. Torrence, 196 Conn. 430, 434 n.6, 493 A.2d 865 (1985).

The trial court also never insisted upon compliance with § 155 or relied upon the rule as a basis for granting the motion to strike. The memorandum of decision considers the issues raised by the motion to strike wholly on their merits. From the record it appears that counsel for the plaintiffs moved for an extension of time until January 14, 1984, to file a memorandum in response to the motion to strike because he was on trial. This motion was denied on January 7,1985, and the motion to strike was granted on January 11,1985, a time sequence indicating that both motions may have been heard at the same motion calendar session. From the absence of any reference to the reasons for denying the request for an extension and the brevity of the discussion of the issues in the memorandum of decision, it is reasonable to infer that the requested extension was denied because the court regarded a memorandum by the plaintiffs as wholly superfluous. The absence of anything in the record either to confirm or deny this conceivable scenario may well be attributable to the failure of the defendants to raise § 155 as an issue until their brief was filed, in disregard of § 3012 (a). See Practice Book § 3012 (b).

The provision of § 155 that a plaintiff who fails to file a memorandum of law in opposition to a motion to strike “shall be deemed by the court to have consented to the granting of the motion” parallels a similar provision of Practice Book § 143 pertaining to a motion to dismiss. Both of these provisions impose a sanction upon the party opposing the motions for failure to file a memorandum which is not available for a like neglect on the part of one who has filed a motion to strike or to dismiss without a supporting memorandum as specified by the rules. It appears that the sanction of dismissing or striking the pleading under the automatic consent provision is likely to be imposed much more frequently against plaintiffs than defendants. Although this evident imbalance may be justified, this court ought not to compound the disparate treatment of nondiligence by one party as compared to another under the rules by holding effectually that the application of the automatic consent provision may not be waived by failure to raise it in the trial court or excused by a judge who chooses to decide the issues on their merits. There is nothing in the language of § 155 that requires it to be construed as a jurisdictional barrier that the parties cannot waive or the court may not excuse under any circumstances.

It is the courts, the legal profession and the public generally, not just the plaintiffs, who are the losers when serious cases like this one fail to be resolved on their merits because of some procedural deficiency. This result is sometimes unavoidable in order to preserve a reasonably efficient judicial system. The trial court, however, saw no necessity for invoking § 155 in order to satisfy this objective but decided the issues on their merits. We ought not to ignore our own procedural rules, §§ 8012 (a) and 3063, which the defendants have disregarded, and thus penalize only the neglect of the plaintiffs for failure to file a memorandum the trial court viewed as unnecessary. This procedural delict of the plaintiffs pales to insignificance by comparison with the substantive error of the trial court in failing to adhere to a controlling precedent established by a recent decision of this court. Kowal v. Hofher, supra.

Accordingly, I dissent.

       “[General Statutes (Rev. to 1981)] Sec. 30-86. sales to minors, intoxicated PERSONS AND DRUNKARDS. Any permittee who, by himself, his servant or agent, sells or delivers alcoholic liquor to any minor, or to any intoxicated person, or to any habitual drunkard, knowing him to be such an habitual drunkard, and any person, except the parent or guardian of a minor, who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be subject to the penalties of section 30-113.”
      “[General Statutes (Rev. to 1981)] Sec. 30-113. PENALTIES. Any person convicted of a violation of any provision of this chapter, for which a specified penalty is not imposed, shall, for each offense, be fined not more than one thousand dollars or imprisoned not more than one year or both.”


author: Shea, J.

text:
    Myron L. Glanz v. James L. Testa et al.
    (12805)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued May 1
    decision released July 8, 1986

      Elliot B. Gersten, with whom was John P. Clifford, Jr., for the appellants (defendants).

      Larry R. Levine, for the appellee (plaintiff).
   Shea, J.

The narrow issue in this appeal is whether a trial court at a hearing on a motion to dissolve an ex parte prejudgment real estate attachment is limited to an examination of probable cause as presented in the supporting affidavit to the prejudgment remedy application. The plaintiff, Myron L. Glanz, and the defendants, James Testa and John Bartus, allegedly created a partnership in order to develop property located in East Windsor. On August 9,1983, the plaintiff brought this action against the defendants for breach of various fiduciary duties and confidential relationships, claiming that the defendants improperly took title to the partnership property in their own names. On the same date, the plaintiff applied, under the provisions of General Statutes § 52-2786,* for an ex parte prejudgment attachment of the disputed property in East Windsor. Attached to the application was a supporting affidavit, sworn to by the plaintiff, alleging the factual basis for his claim of $ 2,300,000, one third of the anticipated profits of the partnership operations.

The court, Satter, J., on August 12, 1983, in an ex parte proceeding without notice or hearing, found probable cause to sustain the validity of the plaintiff’s claim and granted the requested prejudgment remedy. On September 26,1983, the defendants moved to dissolve the prejudgment attachment. The trial court, N. O’Neill, J., granted the motion to dissolve on the ground that the plaintiff’s affidavit was insufficient to establish probable cause with respect to damages. The court expressly refused to hear additional evidence from the plaintiff to support the claim for damages.

The plaintiff appealed from that judgment to the Appellate Court which, in reversing the trial court, held that even if an affidavit is inadequate to establish probable cause, the plaintiff may still prove probable cause at a hearing to dissolve the attachment. Glanz v. Testa, 4 Conn. App. 330, 331, 494 A.2d 600 (1985). Upon the grant of certification, the defendants appealed to this court, claiming that, because a valid affidavit is a condition precedent to an ex parte prejudgment attachment, a plaintiff may not, at a hearing on a motion to dissolve, present evidence to cure a defect in the initial affidavit. We agree with the Appellate Court that a plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit.

The remedy of attaching and securing a defendant’s property to satisfy a potential judgment in favor of the plaintiff is unknown to the common law and is purely a statutory vehicle. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 582, 376 A.2d 60 (1977). Under General Statutes § 52-278e, the court may award a prejudgment remedy, without a hearing or notice to the defendant, upon verification by oath of the plaintiff or some competent affiant that there is probable cause to sustain the validity of the plaintiffs claim. “The statute can be invoked only by a verified affidavit that contains factual, rather than merely conclusory, supporting allegations.” Fermont Division v. Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979); see Kukanskis v. Griffith, 180 Conn. 501, 505, 430 A.2d 21 (1980). Under this ex parte prejudgment remedy procedure, the court must make a determination of probable cause based solely on the facts contained in the affidavit before granting the attachment. In order to comport with federal constitutional due process requirements; Fermont Division v. Smith, supra, 397-98; the statute guarantees the defendant the opportunity for an immediate post-seizure hearing at which the prejudgment remedy will be dissolved unless the court determines “that there is probable cause to sustain the validity of the plaintiffs claim.” General Statutes § 52-278e. It is this facet of the ex parte prejudgment remedy mechanism that is the focus of this appeal. The gravamen of the issue before us is whether the plaintiff can, during the hearing on the motion to dissolve, introduce evidence supplementing the facts set forth in the initial prejudgment remedy affidavit.

Section 52-278e provides that the prejudgment remedy granted shall remain in effect if the court determines at the hearing “that there is probable cause to sustain the validity of the plaintiffs claim.” (Emphasis added.) We construe this language to allow the plaintiff to introduce at the hearing additional evidence to buttress his initial affidavit, just as the defendant may produce evidence to the contrary. In affording the defendant an opportunity for review of the granting of the ex parte attachment, the statutory provision for a hearing was not intended to preclude the plaintiff from evidentiary proof of the existence of probable cause at the time of the hearing. A different construction of the statute would not prevent a plaintiff whose affidavit in support of an ex parte prejudgment attachment was deficient, once he became aware of a potential challenge, from moving for an ordinary prejudgment attachment, with notice to the defendant, pursuant to General Statutes §§ 52-278c and 52-278d. The resourceful plaintiff thus could obviate the insufficiency of his affidavit by presenting evidence to establish probable cause at this duly noticed proceeding. By providing that the ex parte attachment shall remain in effect if the court finds at the hearing on the defendant’s motion to dissolve the attachment that there “is” probable cause to support the plaintiff’s claim, the legislature has made it unnecessary for a plaintiff to institute such an additional proceeding to retain an attachment that might otherwise be infirm.

The statute has thus made it possible to combine a proceeding under §§ 52-278c and 52-278d with the hearing on the validity of the initial prejudgment remedy that was obtained ex parte, rather than require a plaintiff to institute such a proceeding separately. The statute could, if the legislature had so desired, merely have provided that the hearing be limited to a determination of the sufficiency of the ex parte affidavit alone. Self-Service Sales Corporation v. Heinz, 1 Conn. App. 188, 192, 470 A.2d 701 (1984). A deficient affidavit would then have resulted in the discharge of the ex parte attachment until such time as a redetermination of the existence of probable cause was made in a subsequent proceeding instituted by the plaintiff. The language of the statute as enacted requires no such duplication of effort. As the Appellate Court aptly concluded, “[e]ven if a court erred in granting an ex parte real estate attachment because of a defective affidavit, the plaintiff may still prove probable cause at a hearing to dissolve or modify the attachment. Lengyel & Lengyel Builders, Inc. v. Hill, 1 Conn. App. 349, 351, 471 A.2d 975 (1984).” Glanz v. Testa, supra, 331.

Under the circumstances of this case, the trial court determined that although the initial affidavit adequately established probable cause with respect to the defendants’ liability, it did not support a claim of $ 2,300,000 in damages. Attached to the affidavit in support of the plaintiff’s claim of damages was a statement of the anticipated profits of the partnership, estimated at $6,916,005, that had been prepared by an expert and submitted by the defendants to the East Windsor planning and zoning commission. The court determined that the statement could not support the claim for damages because it made no allowance for certain costs that would be incurred in developing the disputed property. At the hearing on the motion to dissolve, counsel for the plaintiff conceded that his evidence would show “that it is off by at least two” million dollars. Although the statement did not support the full amount of the plaintiff’s claim, it appears to support adequately a claim for some damages to be recovered. Under our construction of General Statutes § 52-278e it is clear that the trial court improperly refused to allow the plaintiff to introduce evidence in order to establish the amount of his claim.

Although we have concluded that a plaintiff may introduce additional evidence of probable cause at the post-seizure hearing on a motion to dissolve or modify an ex parte prejudgment attachment, we have no occasion in this case to resolve the potential issue involving the effective date of the attachment. If a court determines that an affidavit was inadequate to establish probable cause at the time the ex parte attachment was granted, unfair prejudice might result against creditors that acquire valid liens on the real estate during the period between the attachment and the hearing on the motion to dissolve. The record does not indicate the existence of a situation involving an intervening creditor in this instance, or any other circumstance to necessitate a determination of the adequacy of the ex parte affidavit apart from the evidence the plaintiff offered in support of his claim. If the plaintiff had been allowed to present evidence at the post-seizure hearing that sufficiently established probable cause, his attachment would unquestionably have been effective from that date forward.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-278e. allowance of prejudgment remedy WITHOUT HEARING. SUBSEQUENT MOTION, HEARING AND ORDER. The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiffs claim and (1) that the prejudgment remedy requested is for an attachment of real property; or (2) that there is reasonable likelihood that the defendant (A) neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court, or (B) has hidden or will hide himself so that process cannot be served on him or (C) is about to remove himself or his property from this state or (D) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (E) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts or (F) has stated he is insolvent or has stated he is unable to pay his debts as they mature. The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiffs claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.”

       The transcript of the hearing does not clarify whether this reference is to the statement of estimated profits of $6,916,005 or to the plaintiff’s claimed share of $2,300,000.

       Under General Statutes § 52-304 a defendant whose property has been attached may, in writing, move to dissolve the attachment by substituting a surety bond or a lien on other property which has an equal or greater net equity value than the amount secured by such attachment. Further, under General Statutes § 52-307 “[a]ll persons interested may be heard in relation to the amount and sufficiency of the bond or substitute lien offered by the defendant.” Our construction of General Statutes § 53-278e, allowing a plaintiff to present evidence supporting a claim for damages at a hearing on the defendant’s motion to dissolve, does not undermine the defendant’s right to dissolve a prejudgment attachment by substitution. A defendant who perceives that an attachment is excessive is free to claim that the amount of the offered bond or lien will provide adequate security for the plaintiff. This determination will, necessarily, be made at a hearing at which the court will hear evidence as to the appropriate amount of the plaintiff’s claim.