author: Arthur H. Healey, J.

text:
    Ken Nichols v. Thomas Warren, Warden
    (13381)
    Peteks, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued October 4
    decision released November 15, 1988

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (respondent).

      Audrey C. Martinsky, for the appellee (petitioner).
   Arthur H. Healey, J.

The sole issue in this case is whether General Statutes § 18-7a (c) authorizes the forfeiture of good time credit that a prisoner has not yet earned, after a prisoner has committed disciplinary offenses while incarcerated.

Under General Statutes § 18-7a (c), the respondent is authorized to reduce an inmate’s sentence for good behavior and obedience to the rules of the correctional facility. This sentence reduction is commonly known as “statutory good time.” Sentence reductions for inmates sentenced after July 1,1983, are governed by § 18-7a (c) and are calculated automatically by a computerized system. Pursuant to § 18-7a (c), an inmate is entitled to earn ten days of good time for each month served in obedience to the rules.

On March 28, 1985, the petitioner, Kenneth E. Nichols, was sentenced to four years of incarceration after pleading guilty to burglary charges. Without any sentence credits, the petitioner would have been released from confinement on March 27,1989. At oral argument, counsel notified the court that the petitioner had been released from confinement and is on probation.

On April 9, 1985, the department of correction credited the petitioner with one day of statutory good time for good behavior during three days in March. On April 24, 1985, while incarcerated at the Enfield correctional facility, the petitioner received a disciplinary report for disobeying a direct order. The petitioner was granted ten days of good time on May 1,1985, but forfeited thirty days on May 13, 1985, as a result of the April 24 incident. At that time, the number of days forfeited exceeded the number of days for which the petitioner had received good time credit. Therefore, the commissioner of correction prospectively forfeited the excess and the petitioner’s computerized time sheet reflected that he “owed” nineteen days of good time.

The commissioner ordered another ninety days forfeited on May 18, 1985, for an incident that had occurred on April 27. During a routine inspection of the Enfield facility on April 27, correction officers found the petitioner in possession of a two-inch piece of brass that was sharpened to a point, and the petitioner shouted obscenities at the inspecting officers. By June 1, 1985, the petitioner had received another ten days of good time. Therefore, as of June 1, 1985, the petitioner had been granted twenty-one days of good time, had forfeited 120 days, and thus “owed” ninety-nine days.

This process of earning and forfeiting good time continued throughout the petitioner’s sentence. The respondent’s brief indicates that, as of the date of the habeas hearing, the petitioner had forfeited 1305 days and had earned 281 days of good time.

While incarcerated in the New Haven correctional center, the petitioner brought a writ of habeas corpus to the Superior Court for the judicial district of New Haven on March 27,1987. The petitioner alleged that he was confined illegally because of the forfeiture of unearned good time in violation of the procedure set forth in General Statutes § 18-7a (c). The petitioner sought restoration of forfeited good time that had not yet been earned and any other legal and' equitable relief to which he was entitled. The action was tried to the court, Fracasse, J., which held that good time could not be forfeited before it was earned and ordered recalculation of the petitioner’s good time credit in accordance with its holding. The respondent filed a petition for certification of the question of law on October 7, 1987, which the court granted on October 8, 1987. The respondent filed the appeal with the Appellate Court on October 28,1987, and this court transferred the case to itself on March 10, 1988.

Because the petitioner has been released from incarceration, as a preliminary matter we must address the issue of whether this appeal is moot. We conclude that it is not. Counsel for the respondent suggested at argument that if the respondent prevails in this appeal, the commissioner of correction will seek custody of the petitioner and confine him for the period of time that he would have remained incarcerated had the trial court ruled in favor of the respondent. Furthermore, the issue is capable of repetition, yet evading review, it affects an ongoing program of the state’s correctional system, and it could affect this petitioner were he again to face incarceration in the future. See Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981); Taylor v. Robinson, 171 Conn. 691, 694-95, 372 A.2d 102 (1976); Liistro v. Robinson, 170 Conn. 116, 121-22, 365 A.2d 109 (1976); Winnick v. Reilly, 100 Conn. 291, 296, 123 A. 440 (1924); cf. Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982).

For the purpose of interpreting General Statutes § 18-7a (c), it is helpful to separate the statute into its two sentences. The first sentence provides that an inmate can “earn a reduction of his sentence as such sentence is served” for “good conduct and obedience to the rules.” The second sentence provides for forfeiture of good time credit. It states: “Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”

The petitioner asserts that the plain language of General Statutes § 18-7a (c) prohibits the forfeiture of good time credit that has not yet been earned. We agree. “We have consistently held that if a statute is clear and unambiguous, there is no room for construction.” Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987) (interpreting General Statutes § 18-7a); Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988); State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); Lerman v. Levine, 14 Conn. App. 402, 409, 541 A.2d 523 (1988); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) §§ 46.01, 46.04. When the statutory language is clear and unambiguous, it is from that source that we deduce the intent of the legislature. Commissioner v. Freedom of Information Commission, 204 Conn. 609, 620, 529 A.2d 692 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986); 2A J. Sutherland, supra, § 48.01. In analyzing the plain language, the terms must be interpreted according to their ordinary meaning unless their context dictates otherwise. State v. Burney, 189 Conn. 321, 326, 455 A.2d 1335 (1983); Kilpatrick v. Board of Education, supra; 2A J. Sutherland, supra, § 46.01.

The language and structure of General Statutes § 18-7a (c) is not peculiar and, thus, the terms must be interpreted according to their ordinary meaning. The statute provides that the inmate will receive a sentence reduction “as such sentence is served.” (Emphasis added.) Accordingly, the good time credits are calculated into the sentence as a sentence reduction when the inmate earns the credit for good behavior from month to month. If the inmate engages in misconduct, the second sentence of the statute provides that the person can lose “all or any portion of such reduction.” (Emphasis added.) The logical interpretation of the two sentences in the statute is that the term “such” in the second sentence, as it modifies the term “reduction,” refers to the good time sentence “reduction” provided for by the first sentence in the statute. “The word ‘such’ has been construed as a related adjective referring back to and identifying something previously spoken of and that it naturally, by grammatical usage, refers to the last precedent.” Bahre v. Hogbloom, 162 Conn. 549, 556, 295 A.2d 547 (1972), citing Estate of Hill, 214 Cal. App. 2d 812, 820, 29 Cal. Rptr. 814 (1963); Joseph L. Pohl, Contractor, Inc. v. State Highway Commission, 431 S.W.2d 99, 105 (Mo. 1968); Sharlin v. Neighborhood Theatre, Inc., 209 Va. 718, 721, 167 S.E.2d 334 (1969); see Verrastro v. Sivertsen, 188 Conn. 213, 221 n.7, 448 A.2d 1344 (1982). In addition, rules of construction require that the term “such” be interpreted in the context in which it appears and not solely by its dictionary definition. Verrastro v. Sivertsen, supra; Bahre v. Hogbloom, supra.

General Statutes § 18-7a (c) is a self-contained, two sentence provision. The legislature’s use of the term “such reduction” in the second sentence logically must refer back to the “reduction” provided for in the first sentence of the subsection. Therefore, according to the plain language of the statute, the commissioner of correction cannot diminish an inmate’s good time sentence reduction for improper behavior until the inmate earns the reduction as the sentence is served. Prospective forfeiture of unearned good time credit is not permitted under the present statute.

The respondent maintains, as the habeas court held, that the language of General Statutes § 18-7a (c) is ambiguous and he insists that this court must resort to the legislative history to determine the purpose of the statute. As the preceding discussion makes clear, we disagree. The habeas court, however, did discuss the legislative history in its memorandum of decision, so it is instructive for this court to address the issue. The history does not support the respondent’s position.

In 1888, General Statutes (1887 Rev.) § 3341 governed the reduction of sentences for good behavior during confinement. The section read, in part: “[F]or each calendar month of actual confinement in the prison, during which time it appears by [the record of conduct] that [the prisoner] has rendered prompt and cheerful obedience to the rules of the prison, five days shall be deducted from his term; provided that any serious act of insubordination or persistent refusal to conform to prison regulations occurring at any time during his confinement in said prison shall subject the prisoner, at the discretion of the warden and board of directors, to the loss of all or any portion of the time previously gained by good conduct. . . .’’Apparently, this scheme created administrative problems for the correction officials in calculating sentence reductions. In 1902, the legislature revised the statute so that month-to-month calculations were not necessary. See General Statutes (1902 Rev.) § 2900.

At some point prior to 1911, the correction officials instituted a system whereby all of an inmate’s potential good time, that is, the amount of time that an inmate would earn if that person never misbehaved while serving a sentence, was calculated before the inmate began serving the sentence. Again, it seems that this system was implemented for administrative efficiency. The potential amount of good time was credited against the sentence at the beginning of the term of incarceration, and as a prisoner engaged in misconduct the good time credit was reduced and the sentence was increased up to, but not to exceed, the original term ordered by the court. See, e.g., 7 Report of the Attorney General 117 (1911). The legislative history of General Statutes § 18-7a (c) demonstrates that it was this methodology of “posting” good time credit at the beginning of a term of incarceration that the 1983 amendment was designed to eliminate.

Public Acts 1982, No. 82-379 was entitled “An Act Concerning the Computation of Good Time Credit.” The floor debate on this act followed two lines of thought on the purpose of the amendment to General Statutes § 18-7a. One perspective endorsed by Senator Nancy Johnson concerned the psychological effect of good time computation on the inmates. Senator Johnson stated: “All this bill really does is to return the initial concept of good time which was a concept of reward. A reward for good behavior. When you deduct the entire amount at the front end of the sentence, then what you revert to is the system of punishment for poor behavior. So that instead of granting good time you actually end up earning penalties for poor behavior.” 25 S. Proc., Pt. 12, 1982 Sess., p. 3826. Other legislators rallied behind a different purpose in supporting the bill. This perspective is illustrated by the remarks of Representative Edward Krawiecki. He said: “This is a narrow issue, whether or not we believe someone who has been sentenced to serve a fixed period of time in prison should serve that time and earn good time, not be awarded good time before he walks in the door and serves even one minute of time.” 25 H.R. Proc., Pt. 11, 1982 Sess., p. 3545. It appears that supporters such as Representative Krawiecki were concerned with inmates serving less time than the sentencing court thought they deserved. As another example, Senator Howard T. Owens, Jr., supporting the proposed legislation, said: “The Correction Department presently computes good time at the beginning of the prison term based upon the length of the sentence imposed. This bill would require that persons sentenced for offenses committed on or after July one of this year [1982] the good time credit be computed according to time actually served rather than on the sentence imposed.” 25 S. Proc., supra, p. 3821.

The respondent asserts that this floor debate indicates that the legislature only intended to modify the scheme for accruing and posting good time credits and did not intend to modify the forfeiture scheme. The respondent notes that the only difference between General Statutes § 18-7a (b), which applies to sentences ordered between July 1, 1981, and July 1, 1983, and General Statutes § 18-7a(c) was the addition of the phrase “as such sentence is served” in subsection (c). From this, the respondent deduces that there was no change in the forfeiture scheme and, therefore, that prospective forfeiture should be permitted.

Although we agree that “ ‘[a]n amendatory act is presumed not to change the existing law further than is expressly declared or necessarily implied’ Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978), quoting State v. Fahy, 149 Conn. 577, 582, 183 A.2d 256 (1962); 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1985) § 22.30; we disagree with the respondent’s contention that the legislative history supports prospective forfeiture. Under the previous methodology for accruing and forfeiting good time credit, there was no prospective forfeiture. The commissioner of correction, before the inmate began serving the term, calculated all of the potential good time that an inmate could receive during the term of the sentence and deducted it from the sentence. If the inmate behaved improperly, the commissioner restored the deducted days to the sentence. The addition of days for poor behavior was not a prospective forfeiture because the good time “reduction” already had been assessed in favor of the inmate. As suggested by counsel for the petitioner at oral argument, under the prior scheme, because all of the prisoner’s good time already had been calculated and awarded, all of an inmate’s good time credit was “reachable” from the beginning of the sentence. Under the plain language of the present statute, the good time credit is not “reachable” until it is earned on a month-to-month basis. Therefore, the absénee of a change in the forfeiture language of the statute, and the absence of discussion on forfeiture during the floor debate does not indicate that the legislature intended to permit prospective forfeiture. Because prospective forfeiture was not possible under the prior scheme, a change in the statute that does not affect the forfeiture provision cannot be interpreted to authorize such a procedure.

In farther support of his position that prospective forfeiture is permitted under the present statute, the respondent points out that the department of correction issued an administrative directive that stated: “Any inmate held in default of bond or serving sentence who is found guilty of violating the Department of Correction disciplinary code and as a consequence loses good time shall have such loss deducted from any good time already earned. In the event an inmate has not yet earned sufficient good time to satisfy the good time loss, such lost good time shall be deducted from any future good time earned.” Department of Correction Administrative Directive 2.6, p. 3a of 13, July 1, 1983. When construing statutes, this court often defers to the judgment of administrative agencies that are in charge of enforcing such statutes, as the respondent suggests. Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 173-74, 479 A.2d 1191 (1984), citing Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978). However, “ ‘the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.’ ” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987), quoting Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). In this case, as the preceding discussion has illustrated, the department’s interpretation of General Statutes § 18-7a (c) is inconsistent with legislative intent as manifested in the statute’s plain language. Therefore, this administrative directive is not entitled to deference. See Beauchesne v. Nimmo, 562 F. Sup. 250, 256 (D. Conn. 1983); Hartford v. Hills, 408 F. Sup. 889, 900 (D. Conn. 1976).

Finally, the respondent argues that prospective forfeiture is an indispensable device for maintaining order in the correction facilities and, therefore, must be preserved. Prospective forfeiture may be a very important resource for the department of correction. Policy decisions such as this, however, are not within the province of the court. Moreover, “[a] statute should be interpreted according to the policy which the legislation seeks to serve. See 2A [J.] Sutherland, Statutory Construction (4th Ed.) §§ 56.01 to 56.02.” Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981). We must be guided by the clear language of the statute and not by our determination of what the legislature should have done. See Kilpatrick v. Board of Education, supra; Johnson v. Manson, supra.

In summary, the language of General Statutes § 18-7a (c) is clear and unambiguous. Its legislative history is wholly consistent with the meaning that its language conveys. Prospective forfeiture of unearned good time credit is not permitted under the present statute. There is no error.

In this opinion the other justices concurred.

       General Statutes § 18-7a provides: “good conduct credit for prisoners, (a) Except as provided in subsections (b) and (c) any person sentenced to a term of imprisonment, on and after October 1, 1976, and while still serving such sentence whether such sentence is for a definite, indefinite or indeterminate term, and regardless of the institution wherein the prisoner is confined may, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. In the case of an indeterminate sentence, such credit shall apply to both the minimum and maximum term. In the case of an indefinite sentence, such credit shall apply to the maximum term only. Any act of misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such credit by the commissioner or his designee.
      “(b) Except as provided in subsection (c), any person sentenced to a term of imprisonment for an offense committed on or after July 1,1981, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence in the amount of ten days for each month and pro rata for a part of a month of a sentence up to five years, and twelve days for each month and pro rata for a part of a month for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.
      “(c) Any person sentenced to a term of imprisonment for an offense committed on or after July 1,1983, may, while held in default of bond or while serving such sentence, by good conduct and obedience to the rules which have been established for the service of his sentence, earn a reduction of his sentence as such sentence is served in the amount of ten days for each month served and pro rata for a part of a month served of a sentence up to five years, and twelve days for each month served and pro rata for a part of a month served for the sixth and each subsequent year of a sentence which is more than five years. Misconduct or refusal to obey the rules which have been established for the service of his sentence shall subject the prisoner to the loss of all or any portion of such reduction by the commissioner or his designee.”

       The respondent restored 225 forfeited days and the petitioner earned an additional thirty-five day reduction for working a job pursuant to General Statutes § 18-98a.

       Inmates receive ten days of good time for each month of good behavior. General Statutes § 18-7a (c).

       Counsel for the respondent conceded at oral argument that this is a logical grammatical construction of the provision.

       The respondent conceded at oral argument that the preceding discussion sets forth a logical, grammatical interpretation of the statutory language. Nevertheless, the respondent asserts that he disagrees with that interpretation as the petitioner proffered it. The respondent’s contention does not detract from our position that the statute is clear and unambiguous. “A statute does not become ambiguous solely because the parties disagree as to its meaning.” Commissioner v. Freedom of Information Commission, 204 Conn. 609, 620, 529 A.2d 692 (1987), citing Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 198, 438 A.2d 1178 (1981); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 508, 363 A.2d 1055 (1975).

       The respondent acknowledges that the legislature intended elimination of “posting” good time prior to service of the sentence. The dispute between the respondent and the petitioner centers on what purpose this change furthered.

       During the floor debate, some legislators questioned whether the new methodology would increase the length of sentences. Senator Russell L. Post, Jr., claimed, “I don’t believe that it is going to lead to more time in jail unless the judges ignore this law.” 25 S. Proc., Pt. 12, 1982 Sess., p. 3831. The respondent, however, notes in his brief that for sentences of one to five years imposed after July 1,1983, the time served increased by 12V2 percent over sentences imposed before that date. For sentences of more than five years the time served increased by 14 percent. “Prison and Jail Overcrowding: A Report to the Governor and Legislature,” The Prison and Jail Overcrowding Commission, January 1983, p. 70.

       In interpreting statutes we presume that the legislature is aware of existing statutes and the accepted interpretation of those statutes by the courts. State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986); see Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986); Murach v. Planning & Zoning Commission, 196 Conn. 192, 200 n.14, 491 A.2d 1058 (1985); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.12. Also, we presume that the legislature intended some change in the existing statute by its amendment. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984); 1A J. Sutherland, (4th Ed. Sands 1985) § 22.30. The change effected by this amendment was the change in the methodology for accruing and calculating good time.

       Prospective forfeiture is not the only penalty that the department has developed. There are a number of disciplinary tools that the commissioner of correction may utilize. They include: “a) Reprimand, probation and/or suspended sentence; b) Loss of privileges; c) Imposition of extra duty assignments during leisure hours; d) Loss of visiting privileges or restrictions of mail privileges other than legal correspondence for limited periods; e) Confinement to living quarters; f) Recommended loss of good time or good time earned while in pre-sentence status; g) Recommended reassignment; h) Monetary fine (all monies collected will be deposited in the inmate welfare fund); i) Punitive segregation; j) Change of housing; k) Recommendation to Classification Committee for review of classification status; l) Repayment to facility for property damage or theft to state property,(or payment of laboratory fees, if convicted of alcohol or drug violation).” Department of Correction Administrative Directive 2.6, p. 2 of 15, November 1, 1981.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Connecticut Bar Examining Committee et al. v. Freedom of Information Commission et al.
    (13457)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued October 11
    decision released November 22, 1988

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

      William J. Corvo, pro se, the defendant.

      John D. LaBelle, Sr., for the appellees (plaintiffs).
   Shea, J.

The plaintiffs appealed to the Superior Court after the defendant Freedom of Information Commission (FOIC) had ordered the plaintiff bar examining committee and its administrative director, the plaintiff R. David Stamm, to disclose certain information concerning the July, 1983 bar examination to the defendant William J. Corvo, who had failed that examination. The court sustained the appeal, concluding that the bar examining committee does not perform “administrative functions” within the meaning of General Statutes § 1-18a (a), which includes within the definition of a “public agency,” the records of which are open to inspection pursuant to General Statutes § 1-19, “any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.” The named defendant has appealed from that judgment, claiming that the bar examining committee is a judicial body that does perform “administrative functions” and that its records, therefore, are subject to disclosure. We conclude that in selecting candidates for admission to the bar the committee is acting as an arm of the judiciary, but that in such a role some of its functions are administrative and that its records that relate solely to those functions must be made available to the public pursuant to § 1-19. Accordingly, we remand the case for further proceedings in the trial court to determine (1) which portions of the information the FOIC has ordered to be disclosed concern only the performance of the committee’s administrative functions, and (2) whether public access to the pertinent records may interfere with the performance of the committee’s judicial functions.

Upon a complaint filed by the defendant Corvo, the FOIC on October 10,1984, ordered the bar examining committee to provide him with copies of records containing the following information pertaining to the bar examination given on July 27 and July 28,1983: a list of the persons who read, scored or graded the essay answers; a list of all independent readers used by the committee for such examination; a list of readers, graders or scorers for each of the twelve essay questions; the criteria used to determine the competency of the committee’s examiners, readers and scorers; the review procedure used to determine the competency of examiners; the standard deviation of both Part A and Part B scores; the average of Part A and Part B scores; guidelines as to conditions under which the bar examination answers may be graded; names of individuals who select examiners for the bar examination; names of the monitors of the examination; the criteria for determining that the number 264 qualifies an individual to practice law in the state of Connecticut; the purpose and meaning of that number as established in any rules or guidelines which the bar examining committee may have promulgated; and the criteria for using the numbers 254 and 274 as numbers which automatically require a rereading of essay answers by an independent reader.

This court has previously discerned in the legislative history of the 1977 amendment to § 1-18a (a), that made the Freedom of Information Act (FOIA) applicable to the constitutional courts, “a legislative concern for the independence of the judiciary and a legislative intent to avoid a collision with the prerogatives of the constitutional courts.” Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 240, 472 A.2d 9 (1984). We have construed the term “administrative functions” in § 1-18a (a), records of which are accessible under § 1-19, to exclude matters involved in the adjudication of cases or the adoption of rules of court procedure and to refer only to “matters relating to the internal management of the internal institutional machinery of the court system.” Id., 243. We have recognized that certain duties performed by judicial officers, such as accounting, personnel scheduling and record keeping, some of which are detailed in General Statutes § 51-5a, are administrative tasks. Id., 244-46. It follows that any records relating to the performance of such duties must be made available pursuant to § 1-19, unless doing so would in some manner interfere with the performance of judicial functions.

“Fixing the qualifications for, as well as admitting persons to, the practice of law in this state has ever been an exercise of judicial power.” Heiberger v. Clark, 148 Conn. 177, 185, 169 A.2d 652 (1961). “Long before the adoption of the Constitution of the State ... it was the settled practice of the courts to admit no attorneys except on the recommendation of the county bar . . . .” O’Brien’s Petition, 79 Conn. 46, 54, 63 A. 777 (1906). “The bar examining committee is an arm of the court to which is entrusted the administration of specific details .... The committee can act, however, only under the supervision of the court. It is the court, and not the committee, which takes the final and decisive action.” Heiberger v. Clark, supra, 182-83. The judges of the Superior Court have adopted rules defining the role of the bar examining committee in the process of determining the qualifications of candidates for admission to the bar. Practice Book §§ 9 through 17. The close relationship between the committee in screening applicants and the court in admitting them to the practice of law plainly makes the definition of a “public agency” in § 1-18a (a) applicable to the committee as a “body or committee” of the judiciary, but “only in respect to its . . . administrative functions.”

The FOIC claims that all the functions of the bar examining committee are administrative in that they relate to “the management of the internal institutional machinery of the court system.” Rules Committee of the Superior Court v. Freedom of Information Commission, supra, 243. The plaintiffs claim that the “committee is involved only with matters that deal with the individual applicants and this is adjudicatory and procedural as distinguished from matters involving the management of the internal organization of the Judicial Department, which are administrative.” Because of the poles-apart positions of the litigants, there was no attempt in the trial court to scrutinize the several categories of records that the FOIC had ordered to be disclosed in order to determine their relationship to the various duties of the committee and the effect a public disclosure might have upon the efficient performance of those duties.

We agree with the committee that its principal function of determining whether an applicant is qualified for admission to the bar is quite analogous to adjudication. This function involves the exercise of considered judgment in establishing the criteria to be used for that determination, in selecting the questions for the examination and deciding upon its scope, in grading the examinations, and in establishing procedures designed to reduce the effect of subjectivity on the part of the examiners. It is not at all clear, however, that all of the records generated in this adjudicative process are wholly unrelated to the internal management of the court system or that all of them must be withheld from public view to avoid interference with that process. For example, the duty of the committee set forth in Practice Book § 17 to certify to the clerks of the Superior Court in each county the names of the successful applicants to the bar can hardly be classified as adjudicative.

There is an obvious distinction between the functions of the committee in determining whether applicants have satisfied the requirements for admission to the practice of law and in announcing the results of its deliberations. The role of the committee in establishing the criteria for determining the qualifications of applicants is similar to that of the rules committee of the Superior Court in formulating rules of procedure for adoption by the judges, a role that we have held is a judicial function within the meaning of § 1-18a (a). Rules Committee of the Superior Court v. Freedom of Information Commission, supra, 246. Nevertheless, the promulgation of those criteria, like the publication of the rules of practice, plainly is an administrative matter. The application of the standards for admission to a particular candidate, however, like the application of the law to the facts of a case, is a function of the committee that must be regarded as essentially judicial. Some aspects of this adjudicative process, however, such as the compilation of scores on the examinations in a manner similar to the preservation of records of judicial proceedings in the clerk’s office, may properly be classified as administrative.

We have construed the limitation to “administrative functions” of the public disclosure provisions of the FOIA as applied to the judicial department to be designed to accommodate, rather than infringe upon, the independence of a constitutional court in performing its historic functions. Id., 241-42. We have concluded that the bar examining committee, as an “arm of the court,” is performing an essentially judicial function in deciding upon the qualifications of candidates for admission to the bar. See Heiberger v. Clark, supra, 185. To the extent that public access to any of the records ordered by the FOIC to be disclosed may reasonably be considered by the committee to impede significantly its performance of that function, the committee would be justified in refusing such disclosure. See Adams v. Rubinow, 157 Conn. 150, 160-61, 251 A.2d 49 (1968).

Because the presentation made in the trial court by the parties did not address the effect of the disclosure ordered upon the committee’s ability to perform its duties, the trial court had no occasion to make any findings upon these essentially factual issues. The committee apparently has already furnished some of the information ordered to be disclosed. During oral argument it appeared that the basis for the committee’s refusal to disclose many of the requested items was unknown. We conclude that the case must be remanded to the trial court for a further hearing so that findings may be made concerning the impact upon the committee of complying with the FOIC order of disclosure and the reasonableness of its refusal in respect to each item sought.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes} Sec. 1-18a. definitions. As used in this chapter, the following words and phrases shall have the following meanings, except where such terms are used in a context which clearly indicates the contrary:
      “(a) ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”

       “[General Statutes] Sec. 1-19. access to public records, exempt records. (a) Except as otherwise provided fay any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.”

       Although the FOIC order directs the bar examining committee to make the records involved available only to the defendant William T. Corvo, the order is predicated upon his status as a “person denied the right to inspect or copy records under section 1-19”; General Statutes § l-21i (b); and not his status as an unsuccessful applicant for admission to the bar. Thus it is of no concern in the decision of this case that, as claimed by counsel for the bar examining committee, this defendant might have had the alternative remedy of an appeal from the refusal of the committee to recommend him for admission to the bar.

       Public Acts 1977, No. 77-421.

       We note that in the October 4,1988 issue of the Connecticut Law Journal the bar examining committee has published regulations adopted pursuant to Practice Book § 12 that may satisfy some of the inquiries to which the FOIC has directed the committee to respond. These regulations, however, will not become effective until ninety days after their publication.


author: Hull, J.

text:
    John Bialowans v. Robert O. Minor et al. John Wagner v. Robert O. Minor Robert O. Minor et al. v. John Bialowans
    (13273)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued October 5
    decision released November 22, 1988

      Sanford, Glassman and Lloyd L. Langhammer, for the appellants (John Bialowans and John Wagner).

      Charles J. Irving, for the appellees (Robert 0. Minor et al.)
   Hull, J.

The plaintiffs, John Bialowans and John Wagner, take this joint appeal from the judgment of the trial court dissolving their prejudgment attachments and discharging the plaintiff Bialowans’s mechanic’s lien on the property of the defendants, Robert O. and Joann Minor. The plaintiffs assign error in the trial court’s interpretation of a lien waiver agreement, upon which the trial court based its decision, and in the trial court’s failure to find a lack of consideration to support the lien waiver agreement. We find error in part, and remand to the trial court with instructions to reinstate the plaintiffs’ prejudgment attachment liens on the defendants’ property.

The relevant facts are not in dispute. The plaintiffs, both construction contractors, participated in the erection of a new home for the defendants. During the progress of their work the defendant Robert O. Minor requested that the plaintiffs sign, and the plaintiffs did sign, a one page document commonly referred to as a “lien waiver” agreement. This waiver of lien, dated May 12, 1987, provides in pertinent part:

“WAIVER OF MECHANIC'S] LIEN TO ALL WHOM IT MAY CONCERN: THIS CERTIFIES THAT

We, the undersigned, contractors, sub contractors, material men, et cetera, in consideration of One Dollar received to our full satisfaction of Robert O. & Joann L. Minor of the Town of East Lyme County of New London and State of Connecticut have waived, relinquished and released and do hereby waive, relinquish and release all liens and claims of liens we now have or may hereafter have upon a piece of land and. all the buildings thereon standing . . . for labor done or to be done and materials furnished or to be furnished in the erection, construction or repair of said buildings:”

In July, 1987, the plaintiffs instituted separate actions against the defendants to recover damages for the alleged breach of their respective construction contracts. In conjunction with the filing of their complaints, the plaintiffs each filed a prejudgment attachment lien, pursuant to ex parte court orders, on the defendants’ real estate for claimed work performed and materials supplied in the construction of a residence on the attached property. The plaintiff Bialowans also filed a mechanic’s lien on the property. In August, 1987, the defendants filed two separate motions to dissolve, one directed at each of the prejudgment attachment liens filed by the plaintiffs. The defendants also made an application to discharge the mechanic’s lien filed by the plaintiff Bialowans. These motions and this application were heard together by the trial court on August 31, 1987. The trial court determined that the plaintiffs had waived their rights to file either a mechanic’s lien or a prejudgment attachment lien on the defendants’ property when they signed the lien waiver agreement. Specifically, the trial court ruled that the language in the agreement stating that the plaintiffs “releas[ed] all liens and claims of liens” contemplated the waiver of the plaintiffs’ right to file prejudgment attachment liens as well as mechanics’ liens. The trial court also determined that the lien waiver agreement was supported by valid consideration. Accordingly, the trial court granted both of the defendants’ motions to dissolve the prejudgment attachment liens and their application to discharge the mechanic’s lien. This appeal by the plaintiffs ensued.

I

Initially, we address the plaintiffs’ contention that no evidence was offered at the hearing below that the plaintiffs received consideration that would sufficiently support the plaintiffs’ waiver of their lien rights. In response to a motion for articulation filed by the plaintiff Bialowans, the trial court found in its first articulation filed October 16,1987, that there was sufficient consideration to support the plaintiffs’ waiver in that, by signing the waiver agreement, the plaintiffs “ ‘enable^] the [defendants] Robert O. Minor and Joann [Minor] to draw money from the bank to finance the construction in progress.’ ” We find that the trial court’s conclusion is supported by the evidence and correct as a matter of law.

In Townsend v. Barlow, 101 Conn. 86, 89, 124 A. 832 (1924), we stated: “[T]he term ‘waiver of mechanic’s lien’ has by long usage become descriptive of a writing having the purpose and effect of releasing, according to its terms, the statutory right to a mechanic’s lien. Though in terms purporting to affect only the mutual rights of the lienor and owner, it is intended for the information and security of third persons, who may be induced thereby to loan money to the owner of the premises on the lienor’s assurance that his statutory incumbrance has been released; and the real consideration which moves the lienor to release his incumbrance is the expectation that his employer will be put in funds out of which he hopes to be paid in whole or in part. ” (Emphasis added.) Both Bialowans and Wagner testified that they signed the lien waiver agreement when the defendant Robert O. Minor informed them that the bank from which he was drawing funds to finance the construction and pay the plaintiffs would not disburse any monies to him unless it was presented with a lien waiver signed by the plaintiffs.

Thus, the trial court was clearly entitled to conclude, as it did, that the signing of the lien waiver agreement by the plaintiffs enabled the defendants to gain access to additional financing for the construction. This additional funding, procured as a result of the plaintiffs’ waiver of their lien rights, directly benefited the plaintiffs by enhancing their expectation of payment for work performed and materials supplied. It is precisely this increased expectation of payment which Townsend holds is sufficient legal consideration to support a waiver of lien rights. Id., 89. Thus, we find no error in the trial court’s determination that the lien waiver agreement was supported by sufficient consideration.

II

We next address the plaintiffs’ claim that, by signing the waiver agreement, they waived nothing more than their right to file mechanics’ liens on the defendants’ property and that the trial court erred by interpreting the agreement more broadly to include a waiver of the plaintiffs’ right to file prejudgment attachments. We agree that the trial court interpreted the waiver erroneously.

The interpretation of a contract involves a search for the intent of the parties. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 406-407, 365 A.2d 1086 (1976). Where this intent is expressed in language that is clear and unambiguous, the contract is to be given effect according to its terms. See Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 599, 424 A.2d 277 (1979); Collins v. Sears, Roebuck & Co., 164 Conn. 369, 373-74, 321 A.2d 444 (1973). Also, “[a] contract is to be construed as a whole and all relevant provisions will be considered together.” Lar-Rob Bus Corporation v. Fairfield, supra, 407; see Sturman v. Socha, 191 Conn. 1, 12, 463 A.2d 527 (1983); 17 Am. Jur. 2d, Contracts § 258.

Applying these accepted principles of contract interpretation to the present case, we find that the waiver agreement, when read as a whole, clearly and unambiguously provides for a waiver of mechanics’ liens only. The trial court relied upon the clause “releasing] all liens and claims of liens” in support of its conclusion that the waiver agreement envisaged more than simply a waiver of mechanics’ liens. The court construed this language as encompassing a waiver of “all other types of liens or attachments,” including the prejudgment attachment liens filed by the plaintiffs on the defendants’ property. Such a construction is, however, unsupportable when the agreement is read as a whole. The contract language “releasing] all liens and claims of liens” appears below the capitalized, bold-faced heading “WAIVER OF MECHANIC'S] LIEN.” Clearly, all references to “liens” appearing in the language immediately below this caption are necessarily modified by it, leaving no room to construe “all liens and claims of liens” to mean anything other than mechanics’ liens. When read as a whole, a fair and reasonable construction of the contract and the language used therein can yield no other result. We conclude, therefore, that the lien waiver agreement waived the plaintiffs’ right to file mechanics’ liens only, and that the trial court’s determination that the agreement also waived the plaintiffs’ right to file prejudgment attachment liens was clearly erroneous. Practice Book § 4061; Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983); Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351-52, 439 A.2d 362 (1981).

Accordingly, in view of the parties’ stipulations at the hearing below that there was probable cause to sustain the plaintiffs’ prejudgment attachment liens if said liens were deemed not to have been waived, we remand the case to the trial court with instructions to reinstate the prejudgment attachment liens on the subject property in the amount specified in the stipulations.

There is error in part, that portion of the judgment dissolving the plaintiffs’ prejudgment attachment liens is set aside and the case is remanded with direction to reinstate the prejudgment attachment liens.

In this opinion the other justices concurred.

       In their preliminary statement of issues, the plaintiffs presented the following claims on appeal:
      “1. Did the court err in equating a prejudgment attachment with that of a mechanic’s lien?
      “2. Did the court err in interpreting a document entitled ‘Waiver of Mechanic’s [Lien]’ as waiving the plaintiff’s right to seek a prejudgment attachment?
      “3. Did the court err in its interpretation of Defendant’s Exhibit I?
      “4. Did the court err in ordering the dissolving of the attachment and mechanic[’s] lien when there was no consideration for the waiving of the mechanic’s lien?
      “5. Did the court err in dissolving the mechanic’s lien and prejudgment attachment where the defendant misrepresented the purpose of the waiver form?”
      The first three issues submitted by the plaintiffs are essentially indistinguishable in that they challenge the trial court’s interpretation of the lien waiver agreement; thus, we will treat these claims as a single issue for purposes of this appeal. Furthermore, the fifth issue was not briefed by the plaintiffs and, therefore, we deem it abandoned. Keating v. Glass Container Corporation, 197 Conn. 428, 430 n.3, 497 A.2d 763 (1985); O’Connor v. Dory Corporation, 174 Conn. 65, 70, 381 A.2d 559 (1977).

       On direct examination by.his attorney, the plaintiff John Wagner testified as follows:
      “Q. Would you indicate to the Court the circumstances under which you signed [the lien waiver], what happened.
      “A. Mr. Minor drove up one afternoon and presented the document, and told me that the bank had asked him to get this signed before they would release funds.
      “Q. Did he promise you money?
      “A. Yes, he said he would pay his bills.
      “Q. Did he indicate he would pay from proceeds of what the bank was going to disburse?
      “A. He told me he couldn’t pay until he got money from the bank.’’
      As between the plaintiff John Bialowans and his attorney, the following colloquy took place:
      “Q. How did you happen to sign [the lien waiver]?
      “A. I was approached by Mr. Minor, and he said I had to sign it to get some disbursements from the bank so that they could give him some money.
      “Q. So the bank could give him some money?
      “A. Right, to pay me.
      “Q. To pay you?
      “A. Right.”

       The stipulation entered into between the plaintiff John Wagner and the defendant Robert D. Minor that there is probable cause to sustain Wagner’s prejudgment attachment lien is not in the printed record. It is in the court file, however, of which this court may take judicial notice. Krawiec v. Kraft, 163 Conn. 445, 451, 311 A.2d 82 (1972).


author: Covello, J.

text:
    Virginia Iacomacci v. Town of Trumbull et al.
    (13365)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued October 7
    decision released November 22, 1988

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant (plaintiff).

      Carl J. Schuman, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant Francisco Borges).

       The original appellees were the claimant’s employer, the town of Trumbull, its insurer, the Sentry Insurance Company, and Francisco Borges, the state treasurer and custodian of the state second injury and compensation assurance fund. The employer and the fund settled their respective obligations and the fund assumed primary responsibility for the defense of this appeal.

   Covello, J.

This is an appeal from a decision of the compensation review division affirming the workers’ compensation commissioner’s (commissioner) finding and award of dependent’s benefits to the plaintiff, Virginia Iacomacci, pursuant to General Statutes § 31-306 of the Workers’ Compensation Act (act). The award as affirmed was made subject to a “waiting period” as required by § 31-306 (i), which had been repealed at the time of the award to the plaintiff.

The legislature repealed § 31-306 effective October 1, 1978. The sole issue on this appeal is whether the elimination of the waiting period by the legislature was intended to benefit dependents of those persons injured before, as well as after, the effective date of repeal. Both the statute and its legislative history are silent on this question. We conclude that the General Assembly intended that the revised legislation eliminating the waiting period applied only to the dependents of those injured after the effective date of the act and not to dependents of those injured previously. Accordingly, we find no error.

The operative facts are not in dispute. On February 19,1974, the plaintiffs husband, Ermen Iacomacci, suffered a heart attack as the result of a compensable injury. He received compensation benefits for this disability until December 30,1981, when he died of cardiac dysrhythmia. The commissioner concluded that the 1974 heart attack was the cause of the decedent’s death and, accordingly, awarded the claimant compensation. Pursuant to § 31-306 (i), as it existed on the date of the decedent’s injury, the compensation review division affirmed the commissioner’s ruling that the compensation would not commence until November 7, 1989. This waiting period of seven years, ten months and nine days from the date of the decedent’s death, was the length of time that benefits had been paid to the decedent while he was alive.

The plaintiff argues that the legislature intended that the elimination of the waiting period was to apply to all future surviving dependents without regard to the date of the injury which brought them within the scope of the Workers’ Compensation Act. We do not agree.

When the General Assembly enacted Public Acts 1978, No. 78-369, and repealed the previously required “waiting period,” it did so with the presumptive knowledge of our earlier rulings concerning the implementation of new workers’ compensation legislation. We presume “that the legislature [was] mindful of judicial construction relevant to . . . legislation it enact[ed].” Murach v. Planning & Zoning Commission, 196 Conn. 192, 200 n.14, 491 A.2d 1058 (1985); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 395 n.7, 446 A.2d 1059 (1982). “ Tn the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.’ Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954) . . . .” State v. Ellis, 197 Conn. 436, 459, 497 A.2d 974 (1985).

By the time Public Acts 1978, No. 78-369, was enacted, we had made clear through earlier decisions our view that new workers’ compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, applied only to those persons who received injuries after the legislation became effective, and not to those injured previously. This date of injury rule was first referred to in 1916, in Schmidt v. O.K. Baking Co., 90 Conn. 217, 220-21, 96 A. 963 (1916). In 1921, we stated that “[t]he obligations of the employer to dependents of an employee in case of the death of an injured employee are . . . fixed and determined by the statute in force at the time of injury.” (Emphasis added.) Quilty v. Connecticut Co., 96 Conn. 124, 127, 113 A. 149 (1921).

In the fifty-seven years that followed we continued to use the date of injury rule in determining the rights and obligations as between the parties following revisions to the Workers’ Compensation Act. See Rossi v. Jackson Co., 120 Conn. 456, 460, 181 A. 539 (1935); Farmer v. Bieber-Goodman Corporation, 118 Conn. 299, 301, 172 A. 95 (1934); Panico v. Sperry Engineering Co., 113 Conn. 707, 709, 156 A. 802 (1931); Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 142, 151 A. 518 (1930). As recently as 1975, we acknowledged the continued existence of the rule although finding it inapplicable to changes in the appellate procedures which we concluded did not affect rights and obligations as between the parties. See Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 649-50, 363 A.2d 1085 (1975).

There is nothing in the language or history of Public Acts 1978, No. 78-369, that overcomes the presumption that the General Assembly was fully aware of the date of injury rule; Murach v. Planning & Zoning Commission, supra; or causes us to depart from “ ‘[t]he normal rule of statutory construction [that if the legislature] intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific. . . .’ ” Kelly v. Robinson, 479 U.S. 36, 47, 107 S. Ct. 353, 93 L. Ed. 2d 216 (1986). The presumption that the legislature was aware of these tenets is further supported by its passage of two workers’ compensation revisions that specifically stated that new benefits were to accrue to previously injured workers. A 1969 public act made cost-of-living adjustments to compensation benefits for total incapacity “as a result of an injury sustained prior to October 1, 1969.” (Emphasis added.) Public Acts 1969, No. 696, § 5. Further, a 1977 enactment made the second injury fund responsible for cost-of-living adjustments to death benefits “as a result of death arising out of a compensable injury occurring on or before September 30, 1977.” (Emphasis added.) Public Acts 1977, No. 77-554, § 1. Thus, the legislature’s failure to specify in Public Acts 1978, No. 78-369, that the elimination of the waiting period was to apply to the dependents of all previously injured workers, thereby departing from the date of injury rule, stands out in distinct contrast to the position it had taken only one year earlier in the same statute. We conclude, therefore, that the legislature intended that the applicability of the 1978 revisions was to be controlled by the traditional date of injury rule, thereby requiring that claims arising out of injuries occurring prior to October 1, 1978, would be subject to the previously specified reduction in benefits.

The plaintiff further argues that the compensation review division impermissibly determined: that Public Acts 1978, No. 78-369, was unconstitutional; that the appellee has no standing to challenge the constitutionality of the act; that the appellee has not, in any event, properly preserved such an issue for our review; and •finally, that in the event we should review its constitutionality, the act is, in fact, constitutional. Our examination of the record discloses no constitutional issue raised or decided concerning Public Acts 1978, No. 78-369. A single reference in the memorandum of decision is made to the state and federal constitutions in a quotation from our earlier decision in Preveslin v. Derby & Ansonia Developing Co., supra, concerning a 1927 amendment to the Workers’ Compensation Act in which we indicated that there might be constitutional implications in a retrospective application of workers’ compensation revisions. This single reference does not persuade us that a constitutional issue was raised or decided. Further, since the matter can be resolved on other than constitutional grounds we need not address the same at this juncture. State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986); Hartford v. Powers, 183 Conn. 76, 84-85, 438 A.2d 824 (1981).

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1972) § 31-306 (i) provides in part: “If death occurs later than two years from the date of injury . . . the period for which compensation shall be due hereunder shall be reduced by the period for which compensation payments have been made to the deceased employee

       General Statutes (Rev. to 1972) § 31-306 provides in part: “Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment.”

       We note that the repealed statute did not specifically provide for a waiting period but rather a reduction in benefits. This reduction could be accomplished by bonding or otherwise securing the return of benefits at the time the benefits terminated, i.e., the death or remarriage of the surviving spouse. There is nothing in the record, however, that suggests that the commissioner or the compensation review division was ever asked to rule on such a proposal or in fact did so. We therefore “ ‘dispose of the case on the theory on which it was tried and on which [the commissioner and the compensation review division] decided it.’ Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959).” Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983).

       The passage from Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 141, 151 A. 518 (1930), quoted by the compensation review division was as follows: “The compensation under the Act of 1919 was substantially less than that under the Act of 1927, the later one being to the pecuniary disadvantage of the defendant. The validation of the Act of 1927 if effectual would thus increase the amount the defendant would be required to pay over that required by the Act of 1919. The defendant’s right of defense, which affected its substantial interests, became fixed in present enjoyment and available to the defendant under the statute in effect at the time of the injury and definitely ascertained upon the determination of the McCook case. [State v. McCook, 109 Conn. 621, 147 A. 126 (1929)]. It was a property right which vested in the defendant and for whose protection against legislative invasion in the form of a validating act or otherwise it could rely on Article First of our State Constitution and upon the Fourteenth Amendment of the Federal Constitution.”