source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JAMES L.
      v. COMMISSIONER OF CORRECTION
    (SC 15847)
    Borden, Berdon, Palmer, McDonald and Peters, Js.

      Argued April 23
    officially released June 23, 1998

      Jo Anne Sulik, assistant state’s attorney, for the appellant (respondent).

      Adele V. Patterson, deputy assistant public defender, for the appellee (petitioner).'

       In order to protect the privacy of the victim in this case, and in keeping with the spirit of General Statutes § 54-86e, we will refer to the petitioner as “James L.”

   Opinion

PETERS, J.

The principal issue in this appeal is whether, after a finding of ineffective assistance of counsel, a habeas court has the authority to restore a petitioner’s right to sentence review under General Statutes § 51-195, after the statute’s thirty day time limit has passed. We conclude that the habeas court has such authority, and, therefore, affirm the judgment restoring the petitioner’s right to file for sentence review.

The petitioner, James L., was convicted of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70 and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53-21. He was sentenced to twenty-five years in prison, suspended after fifteen years. The Appellate Court affirmed his conviction. State v. James L., 26 Conn. App. 81, 598 A.2d 663 (1991).

The petitioner was represented at trial by Attorney Richard Perry, and at sentencing and on appeal by Attorney Kenneth Leary. The petitioner first brought a habeas petition against the respondent, the commissioner of correction (commissioner), alleging that Perry’s representation had been ineffective. Following an evidentiary hearing, that petition was dismissed by the court, Sfer-razza, J., on May 23, 1995. The merits of that decision are not before us.

The petitioner then brought a second habeas petition, which is the subject of this appeal, alleging that Leary’s representation had been ineffective because he had failed to file an application for sentence review within the statutory time limit. Following an evidentiary hearing on January 10, 1997, the habeas court, Bishop, J., granted the petition and restored the petitioner’s right to apply for sentence review.

The commissioner sought certification to appeal, which the habeas court granted pursuant to General Statutes § 52-470 (b). In his statement of the issue on appeal, filed thereafter pursuant to Practice Book § 4013, now Practice Book (1998 Rev.) § 63-4, the commissioner asked: “Whether the habeas court erred in granting the petition for writ of habeas corpus?” We affirm the judgment of the habeas court.

On appeal to this court, the commissioner raises two issues. He claims that: (1) the habeas court should have dismissed the petition because it is successive to the petitioner’s earlier habeas challenge to the competence of Perry and, therefore, constitutes an abuse of the writ; and (2) the habeas court had no authority to provide relief because the thirty day filing period for applications for sentence review under § 51-195 implicates the sentence review division’s subject matter jurisdiction.

The petitioner asks us either to reject the commissioner’s appeal on jurisdictional grounds or to affirm, on its merits, the judgment of the habeas court. As a threshold matter, he alleges that this court should not consider the commissioner’s claim that the petitioner abused the writ by filing successive petitions. That issue, according to the petitioner, is foreclosed from appellate review because it was not one of the issues that the commissioner raised in the habeas court in his motion for certification to appeal. We disagree with this threshold contention, but affirm the judgment of the habeas court on its merits.

I

We first address the petitioner’s threshold question of whether the commissioner can raise an appellate claim of abuse of the writ, even though the commissioner did not include that claim in the request for certification to appeal that was granted by the habeas court. The petitioner claims that the commissioner cannot now raise any issue not properly certified under § 52-470 (b).

We disagree with the petitioner’s claim for two reasons. First, it finds no support in the text or the legislative history of § 52-470 (b). Second, it is inconsistent with our habeas corpus jurisprudence and our prior interpretations of the statute.

The certification requirement contained in § 52-470 (b) provides that no appeal may be taken from the habeas court unless that court first certifies “that a question is involved in the decision which ought to be reviewed . . . .” The statute was enacted in order “to reduce successive frivolous appeals in criminal matters and hasten ultimate justice without repetitive [appeals]” to this court. 7 S. Proc., Pt. 5,1957 Sess., p. 2936, remarks of Senator John H. Filer. The issue before us is the proper construction of the term “question” in light of this legislative purpose. Neither the text of the statute nor its avowed legislative purpose sheds significant light on this issue.

Our recent habeas corpus jurisprudence has construed § 52-470 (b) narrowly so as to preserve the commitment to justice that the writ of habeas corpus embodies. We have stated that, “the principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness.” (Internal quotation marks omitted.) Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992); see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992). In Simms v. Warden, 230 Conn. 608, 614-15, 646 A.2d 126 (1994), we held that the statute did not impose a jurisdictional constraint on appellate review but was designed only to limit the scope of such review. As we noted in that case, “when the legislature enacted § 52-470 (b), it limited a statutory right to appeal that had existed, unconditionally, since 1882.” Id., 614. Presumably, the legislature crafted that limitation with due respect for “the significant role of the writ of habeas corpus in our jurisprudence . . . and the strong presumption in favor of appellate jurisdiction” existing under our current law. (Citation omitted.) Id., 614-15. Only last year, in Iovieno v. Commissioner of Correction, 242 Conn. 689, 696-97, 699 A.2d 1003 (1997), we reiterated this interpretation of § 52-470 (b).

We have construed § 52-470 (b) to limit the scope of our review in the face of a denial of certification by the habeas court. See Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995) (“if either the petitioner or the respondent is denied a timely request for certification to appeal from a habeas court’s judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion”). We have not specifically addressed, however, a limitation that possibly might flow from the terms of the grant of certification. We are persuaded that we should not infer such a limitation from the language of the statute. Although in this case the terms of the grant of certification clearly did not include the issue of abuse of the writ, in other cases the terms of the grant might be ambiguous. Close linguistic parsing of such texts would clutter habeas appeals for no good purpose. Furthermore, appellate scrutiny of habeas proceedings might bring to light new issues whose reviewability should not turn on the terms of the grant of certification. In light of the considerations adduced in Simms v. Warden, supra, 208 Conn. 614-15, and related habeas corpus cases, we conclude that, at least in the absence of demonstrable prejudice, the legislature did not intend the terms of the habeas court’s grant of certification to be a hmitation on the specific issues subject to appellate review.

In this respect, the habeas court’s certification to appeal under § 52-470 (b) differs from a petition for certification to appeal to this court. See Practice Book (1998 Rev.) §§ 84-1 through 84-6, formerly §§ 4126 through 4131. If aparty appeals to this court in apetition for certification, we “will ordinarily consider only those questions squarely raised” in that petition. Practice Book (1998 Rev.) § 84-5 (a) (1), formerly § 4130; but cf. Nardini v. Manson, 207 Conn. 118, 119, 540 A.2d 69 (1988) (addressing due process claim beyond scope of certified ineffective assistance of counsel claim because proper analysis of certified issue required consideration of due process argument).

By contrast, once a party has received the habeas court’s certification to appeal under § 52-470 (b), that party still must file a preliminary statement of the issues on appeal. Practice Book (1998 Rev.) § 63-4, formerly § 4013. The commissioner’s preliminary statement of the issue on appeal was broad. As stated above, it asked: “Whether the habeas court erred in granting the petition for writ of habeas corpus?”

“Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.” Practice Book (1998 Rev.) § 63-4 (a) (1). The record in this case demonstrates conclusively that the commissioner’s failure to identify explicitly the abuse of the writ claim in his statement of the issues did not prejudice the petitioner. The petitioner had notice of this claim because it was one of the issues previously litigated and decided in the commissioner’s motion to dismiss and motion for summary judgment, and he had an opportunity to respond to this argument in his appellate brief. Accordingly, we reject the petitioner’s threshold challenge to the scope of this appeal and will consider the merits of the commissioner’s argument that the petitioner abused the writ in this case by filing a new claim of ineffective assistance of counsel after rejection of a similar claim against another trial attorney.

II

We now turn to the merits of the commissioner’s claim that the habeas court was required to dismiss this petition under the abuse of the writ doctrine. We conclude that the habeas court did not abuse its discretion in declining to dismiss this petition.

Prior to trial in the habeas court, the commissioner moved to dismiss the petition and for summary judgment alleging that the petitioner had abused the writ of habeas corpus with successive petitions, or, in the alternative, that the petitioner had defaulted his claim by failing to raise it in a prior habeas corpus petition. The habeas court denied these motions.

In this court, the commissioner argues that: (1) the present petition alleging that Leary rendered ineffective assistance of counsel at sentencing raised the same “ground” as the previous petition claiming that Perry had rendered ineffective representation at trial; and (2) because the present petition was successive, the habeas court abused its discretion in declining to dismiss it under Practice Book (1998 Rev.) § 23-29 (3), formerly § 529H (3). We are not persuaded.

A

We first address the question of whether the present habeas petition, which alleges ineffective assistance of counsel at sentencing, raises the “same ground” as the petitioner’s prior habeas claim of ineffective assistance of counsel at trial. We conclude that the two petitions do not raise the “same ground” within the meaning of Practice Book (1998 Rev.) § 23-29 (3).

In its memorandum of decision, the habeas court, reiterating its conclusion from its denial of the commissioner’s motion, concluded that the two petitions raised different, legal grounds. The court based its decision on the definition of “ground” set out in this court’s decision in Negron v. Warden, 180 Conn. 153, 158, 429 A.2d 841 (1980), and on the presumption that a petitioner is entitled to present evidence in support of his or her claims. Mercer v. Commissioner of Correction, 230 Conn. 88, 93, 644 A.2d 340 (1994).

The commissioner claims that the habeas court’s conclusion was improper. He argues that the present petition and the prior petition raised the same ground because both alleged ineffective assistance of counsel in the same criminal proceedings. We disagree.

A “ground” is a “ ‘sufficient legal basis for granting the relief sought.’ ” Negron v. Warden, supra, 180 Conn. 158. Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language. Id.; see Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief.

In this case, the present petition alleged ineffective assistance of counsel at sentence review. The petitioner seeks relief in the form of an opportunity to apply belatedly for sentence review. By contrast, the previous petition claimed ineffective assistance of counsel at trial for reasons unrelated to sentence review. In that petition, the petitioner sought a new trial. Accordingly, the two petitions do not present the same ground for the purpose of Practice Book (1998 Rev.) § 23-29 (3).

B

Having determined that the present petition and the prior petition do not present the same ground within the meaning of Practice Book (1998 Rev.) § 23-29 (3), we are not required to determine whether the habeas court abused its discretion in declining to dismiss the present petition. We conclude, nonetheless, that, even if the two grounds had been identical, the habeas court would have acted within its discretion in declining to dismiss the present petition.

We note first that the language of the provision at issue is discretionary rather than mandatory. Practice Book (1998 Rev.) § 23-29 (3) provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the [commissioner], dismiss the petition, or any count thereof, if it determines that . . . the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . .” (Emphasis added.)

A literal reading of the language of the Practice Book provision is reaffirmed by the nature of the abuse of the writ doctrine. “Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. Theirs is the major responsibility for the just and sound administration of . . . collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.” (Internal quotation marks omitted.) Sherbo v. Manson, 21 Conn. App. 172, 175, 572 A.2d 378, cert. denied, 215 Conn. 808, 809, 576 A.2d 539, 540 (1990).

In this case, we conclude that, even if the two petitions had raised the same ground, the habeas court would have acted within its discretion in declining to dismiss the second petition. Among other facts of record is the fact that, before the prior petition was dismissed, the commissioner had made an abortive attempt to consolidate the two petitions. The habeas court reasonably could have concluded that the present petition had not been consolidated with the prior petition as a result of an administrative oversight. Accordingly, we affirm the judgment of the habeas court on this procedural issue.

Ill

We turn, finally, to the commissioner’s substantive claim regarding the nature of the thirty day time limit in the statute providing for sentence review. General Statutes § 51-195. The commissioner argues that the thirty day time limit implicates the sentence review division’s subject matter jurisdiction, and that the habeas court, therefore, lacked authority to restore a petitioner’s right to sentence review after the passage of the thirty day deadline. We disagree.

To provide a context for our discussion, we first examine the purpose of sentence review, and the nature of the deprivation occasioned by ineffective assistance of counsel at sentence review. As we discussed at length in State v. Nardini, 187 Conn. 109, 118-19, 445 A.2d 304 (1982), the legislature passed the Sentence Review Act in 1957; Public Acts 1957, No. 436; to reduce the disparity in sentences meted out by different judges and, thereby, to quell prisoner discontent. “The purpose and effect of the Sentence Review Act is to afford a convicted person a limited appeal for reconsideration of his [or her] sentence. ... It thus gives him [or her] an optional de novo hearing as to the punishment to be imposed.” (Citations omitted.) Id., 121-22.

Under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States constitution, the petitioner had a right to the effective assistance of counsel with respect to access to sentence review. “[T]he sentencing process is a critical stage of a criminal trial.” Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966). Accordingly, an indigent criminal defendant has a constitutional right to appointed counsel at sentence review. Id., 676. The right to counsel at sentence review would be meaningless unless it also implied the right to effective assistance of such counsel. See Lozada v. Warden, supra, 223 Conn. 838-39. It would equally be meaningless if it were not afforded at the time when invocation of sentence review is at issue. The constitutional right to the effective assistance of counsel at sentence review is not diminished by the fact that the right to sentence review, like the right to a direct appeal, derives from statute rather than a constitution. See Gaines v. Manson, 194 Conn. 510, 515-16, 481 A.2d 1084 (1984).

The commissioner does not contest the habeas court’s conclusion that the petitioner was deprived of the effective assistance of counsel at the proper time for access to sentence review. The petitioner’s counsel failed to engage him in a meaningful discussion of whether to apply for sentence review. Counsel also failed to file the application for sentence review within the statutory time period. The habeas court, applying the two-pronged test for ineffective assistance of counsel, determined that counsel’s performance had: (1) been deficient; and (2) resulted in actual prejudice. See Bunkley v. Commissioner of Correction, supra, 222 Conn. 445. Specifically, the habeas court noted that if, as in this case, a petitioner is deprived of sentence review because counsel failed to file the papers in a timely fashion, prejudice is established by the absence of access to sentence review. Id., 459 n.16.

The commissioner contends, nonetheless, that the thirty day deadline for filing an application for sentence review is a jurisdictional requirement that cannot be circumvented, even if the petitioner missed the deadline owing to unconstitutionally deficient representation. We reject this argument, both as a matter of statutory construction, and because of the nature of the right at stake.

“The question of whether a statutory time limitation is subject matter jurisdictional is a question of statutory interpretation.” Iovieno v. Commissioner of Correction, supra, 242 Conn. 695; see Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). “There is no more elementary rule of statutory construction than that the intention which the legislature has expressed must govern. . . . [Legislative intent is to be determined by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was intended to implement, and the statute’s relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Iovieno v. Commissioner of Correction, supra, 695. “In light of the strong presumption in favor of jurisdiction, ‘we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar.’ ” Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993).

We begin with the language of the statute. Section 51-195 provides that an individual who is sentenced to three years or more, “may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence” file for sentence review. (Emphasis added.) The use of the word “may” is “less emphatic than other statutory time limitations that we have held to be subject matter jurisdictional.” Federal Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 164, 659 A.2d 138 (1995); see, e.g., Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 227 Conn. 854-56.

The statutory language itself, however, is not determinative of whether the time limitation is jurisdictional. Federal Deposit Ins. Corp. v. Hillcrest Associates, supra, 233 Conn. 164. We must look also to the legislative history of § 51-195. That history suggests that the legislature imposed the thirty day time limit in order to promote finality in sentencing. When asked to comment on the thirty day time limit, Justice Patrick B. O’Sullivan stated: “We had to put a finality to [the period for sentence review].” Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 2, 1957 Sess., p. 405. He also remarked that the thirty day deadline would “remove any doubt as to time.” Id., p. 406. We can discern no indication, however, that the legislature intended the deadline to act as an absolute, or jurisdictional bar.

Our conclusion is further reinforced by the nature of the right involved, and by our treatment of analogous deadlines for other types of appeals. We have described sentence review as “a limited appeal for reconsideration of [a defendant’s] sentence.” State v. Nardini, supra, 187 Conn. 121. In other cases regarding appellate review, we have noted that interpreting filing deadlines as “an absolute bar to appellate review for petitioners who file outside the limitation period” would constitute a “harsh result.” Iovieno v. Commissioner of Correction, supra, 242 Conn. 700. In Iovieno, we held that the ten day time limit in § 52-470 (b) does not deprive the habeas court of subject matter jurisdiction to entertain an untimely request for certification to appeal. Id., 697-700. Similarly, in Banks v. Thomas, 241 Conn. 569, 581-82, 698 A.2d 268 (1997), we concluded that a plaintiffs failure to file a writ of error within the two week time limitation set out in General Statutes § 52-273 does not require this court to dismiss the writ for lack of subject matter jurisdiction.

As a matter of policy, it would be illogical to deny the right to sentence review to a petitioner who has missed the statutory thirty day filing deadline as a result of unconstitutionally deficient representation. Such a result could not be reconciled with the unchallenged bedrock proposition of constitutional law that “the sentencing process is a critical stage of a criminal trial.” Consiglio v. Warden, supra, 153 Conn. 676.

In light of these statutory, jurisprudential and policy considerations, we conclude that the thirty day time limit of § 51-195 does not act as a jurisdictional bar to the sentence review division’s consideration of an application for sentence review that was delayed by reason of ineffective assistance of counsel. The habeas court, therefore, had the authority to consider what remedy was appropriate in light of its finding of a constitutional deprivation.

The form of remedial relief chosen by the habeas court similarly cannot be faulted. Section § 52-470 (a) empowers the habeas court to dispose of cases “as law and justice require.” A habeas court must fashion a remedy appropriate to the constitutional right it seeks to vindicate. Gaines v. Manson, supra, 194 Conn. 516-18. “Proof of unconstitutional impairment of the right to appeal empowers a court to fashion an order conditionally discharging the petitioner or otherwise fashioning the appropriate relief, short of immediate release, to which the petitioner may be entitled.” Id., 517-18; see also State v. Phidd, 42 Conn. App. 17, 27-29, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997) (concluding that habeas court has jurisdiction to reinstate defendant’s appellate rights). Only a restoration of the petitioner’s right to apply for sentence review could provide an appropriate remedy for the petitioner in the circumstances of this case.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 51-195 provides: “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”

       General Statutes (Rev. to 1989) § 53a-70providedinrelevantpart: “Sexual assault in the first degree: Class B felony: One year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . .”

         General Statutes (Rev. to 1989) § 53-21 provided: "Injury or risk of injury to, or impairing the morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       Although the commissioner’s brief presents the second question as two separate issues, we analyze it as a single legal issue.

       This case does not present a question of mixed certification, in which a habeas court expressly grants permission to appeal with regard to some, but not all, of the issues on which certification was requested.

       We do not assume that a successive petition necessarily constitutes abuse of the writ. Because we decide herein that the present petition is not successive, we need not delineate how these two habeas doctrines differ or overlap.

       Practice Book (1998 Rev.) § 23-29, formerly § 529H, provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . .”

       We do not mean to imply, however, that the converse of this statement necessarily is true. For example, two petitions that both seek a new trial may not raise identical grounds if the first alleges ineffective assistance of counsel, and the second claims juror misconduct.

       The language of this provision illustrates the common-law principle that the doctrines of res judicata and collateral estoppel, claim preclusion and issue preclusion, respectively, are ordinarily inapplicable in the habeas corpus context. “Conventional notions of finality of litigation have no place where life or liberty is at stake and the infringement of constitutional rights is alleged. . . . The inapplicability of res judicata to habeas, then, is inherent in the very role and function of the writ.” Sanders v. United States, supra, 373 U.S. 8. This court is not bound by constraints on federal court jurisdiction overfederally filed writs of habeas corpus. See The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (to be codified in various sections of 28 U.S.C.) (amending 28 U.S.C. § 2253 to restrict prisoners’ access to federal habeas). Those constraints reflect congressional views of federalism and comity that are not pertinent to the exercise of state court jurisdiction over state habeas corpus cases. See C. Baird, “The Habeas Corpus Revolution: A New Role for State Courts?,” 27 St. Mary’s L.J. 297, 337-51 (1996). Farther, unlike the federal courts, this court exercises supervisory authority over the administration of justice in the state court system. See, e.g., State v. Brown, 235 Conn. 502, 528, 668 A.2d 1288 (1995).


author: PER CURIAM.

text:
    SHERYL SHEEHAN v. ALAN BALASIC
    (SC 15818)
    Berdon, Norcott, Katz, Palmer and McDonald, Js.
    Argued April 21
    officially released June 23, 1998

      James K. Filan, Jr., with whom, on the biief, was Stuart Bear, for the appellant (defendant).

      David Battat, for the appellee (plaintiff).
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

         We granted the defendant’s petition for certification limited to the following issue: “Whether the Appellate Court properly concluded that the twenty-four month term of the unallocated alimony and support provision was not modifiable?” Sheehan v. Balasic, 243 Conn. 945, 704 A.2d 798 (1997).


author: PALMER, J.

text:
    O. PAUL SHEW v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (SC 15707)
    Callahan, C. J., and Borden, Berdon, Palmer and McDonald, Js.

      Argued January 20
    officially released June 23, 1998

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Felix J. Springer, with whom was Daniel A. Schwartz, for the appellee (plaintiff).

      Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.
   Opinion

PALMER, J.

The sole issue in this certified appeal is whether certain documents created by an attorney who had been retained by the town of Rocky Hill (town) to conduct an investigation of the town’s police chief are subject to disclosure under the Freedom of Information Act, General Statutes § 1-7 et seq. The named defendant, freedom of information commission (commission), ordered the plaintiff, O. Paul Shew, the town manager of Rocky Hill (town manager), to provide the defendant, Edward A. Peruta, with access to certain interview reports created by attorney Elaine Stuhlman, who had been hired by the town to conduct an investigation of its police chief, Philip Schnabel. The trial court sustained the town manager’s appeal from the commission’s order requiring disclosure of the documents, and remanded the case for further proceedings before the commission. The Appellate Court affirmed the judgment of the trial court; Shew v. Freedom of Information Commission, 44 Conn. App. 611, 691 A.2d 29 (1997); and we granted the commission’s petition for certification to appeal. Shew v. Freedom of Information Commission, 241 Conn. 914, 696 A.2d 340 (1997). Subject to a direction to modify the trial court’s remand order, we affirm the Appellate Court’s judgment.

The opinion of the Appellate Court sets forth the undisputed facts and procedural history. “[Shew] was the town manager of the town of Rocky Hill. From December, 1991, to June, 1992, he conducted an investigation of . . . Schnabel to determine whether [Schnabel’s] employment with the town should be terminated. To assist in the investigation, he hired attorneys Felix Springer and Elaine Stuhlman. Springer concentrated on reviewing the trial transcript and evidence in a civil tort case; see Schnabel v. Tyler, 32 Conn. App. 704, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994); because the jury verdict in that case raised serious concerns about whether Schnabel had abused the authority of his office. Stuhlman concentrated on interviewing town employees and other persons to determine whether there may have been evidence outside the trial record that Schnabel had abused his authority. Stuhlman also gave the town manager legal advice related to her findings. The town manager hired Springer and Stuhlman in an effort to avoid legal complications and because he thought that General Statutes § 7-278, which provides statutory protection to police chiefs, necessitated legal counsel.

“From January to April, 1992, Stuhlman conducted interviews, prepared draft summaries of the interviews and prepared affidavits and a preliminary draft report based on the interviews. In April, 1992, Stuhlman forwarded summaries of the interviews together with affidavits to Springer. In June, 1992, Springer forwarded a report documenting Schnabel’s actions to the town manager.

“In December, 1993 . . . Peruta requested from the town manager access to all statements ‘created and/or collected as part of an investigation that resulted in the termination of . . . Schnabel.’ Specifically, Peruta sought access to Stuhlman’s documents. The town manager denied Peruta’s request, claiming that the requested documents were protected from disclosure by the attorney-client privilege. Peruta filed a complaint with the commission challenging the town manager’s denial of access to those documents.

“Following a hearing and in camera review of the challenged documents, the commission found that the documents were public records. It found that Stuhl-man’s documents were not exempt from disclosure under General Statutes § 1-19 (b) (1) as ‘preliminary drafts or notes’ and that the documents were not protected by the attorney-client privilege pursuant to § 1-19 (b) (10). The commission ordered the town manager to make the documents available to Peruta in accordance with § 1-19 (a). The commission’s decision regarding the ‘preliminary drafts or notes’ exception was based on its interpretation of the statutory language to mean only documents that are used in the creation of some subsequent, finished document. It found that the Stuhlman documents were essentially products themselves, not ‘preliminary’ to anything developed from them and, therefore, were not exempt. The commission also rejected the claimed attorney-client privilege, finding that Stuhlman was neither hired nor acting as an attorney for the plaintiff, but was acting as ‘an investigator with legal credentials.’

“The town manager appealed to the trial court pursuant to General Statutes § 4-183, claiming that the Stuhl-man documents were protected against disclosure by the attorney-client privilege and exempt under § 1-19 (b) (10) and were ‘preliminary drafts or notes’ and exempt under § 1-19 (b) (1).

“The trial court held that the commission improperly found that the attorney-client privilege did not exist. It also disagreed with the commission’s conclusion that the privilege should not prevent disclosure of the Stuhl-man documents because they are not the kind of communication that the privilege protects. While the trial court found impropriety in the commission’s finding that the privilege did not apply to the communications in question, it also found that the commission failed to make further findings concerning the criteria set out in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Therefore, the trial court remanded the case to the commission for that purpose.

“The trial court also found that the commission’s conclusion that the documents in question were not preliminary drafts or notes within the meaning of § 1-19 (b) (1) was improper. The trial court remanded the case to the commission to make findings, as required by § 1-19 (b) (1), as to whether the town manager properly determined that the public interest in withholding the documents outweighed the public interest in their disclosure.” Shew v. Freedom of Information Commission, supra, 44 Conn. App. 613-16.

On appeal to the Appellate Court, the commission claimed that the trial court improperly: (1) “substituted its judgment for that of the [commission]” in determining that Stuhlman had been acting as an attorney, rather than as an investigator; (2) “concluded that the attorney-client privilege barred disclosure of [the] documents”; and (3) “concluded that the . . . documents were not [subject to disclosure] pursuant to . . . § 1-19 (c) (l).” Id., 613. The Appellate Court concluded that “all of the relevant evidence in the record supports the trial court’s conclusion that the town manager hired Stuhlman for legal advice.” Id., 617. The court also determined that, in accordance with the criteria set forth in Upjohn Co. v. United States, supra, 449 U.S. 394-95, concerning the application of the attorney-client privilege in the corporate context, and subject to the factual determinations on remand; see footnote 8; the documents are protected from disclosure as privileged attorney-client communications pursuant to § 1-19 (b) (10). Shew v. Freedom of Information Commission, supra, 44 Conn. App. 620-21. Finally, the court rejected the commission’s claim that, because Stuhlman was not “a member of the staff of a public agency”; General Statutes § 1-19 (c) (1); the documents must be disclosed. Shew v. Freedom of Information Commission, supra, 621-22. The court instead concluded that, because Stuhlman’s role in the investigation was “analogous” to that of a staff member, she came within the purview of the statute. Id., 622. Consequently, the Appellate Court affirmed the judgment of the trial court. Id.

We granted the commission’s petition for certification to appeal limited to the following two questions: (1) “Did the Appellate Court properly conclude that the communications by town employees to Attorney Stuhlman were covered by the attorney-client privilege, subject to the factual determinations required by Upjohn Co. v. United States, [supra, 449 U.S. 383]?” and (2) “Did the Appellate Court properly conclude that the documents in question were preliminary drafts or notes within the meaning of General Statutes § 1-19 (b) (1)?” Shew v. Freedom of Information Commission, supra, 241 Conn. 914. We conclude that, subject to further factual determinations, the documents are exempt from disclosure, both as privileged attorney-client communications and as “preliminary drafts and notes.”

I

The commission first claims that the Appellate Court improperly concluded that the communications by town employees to Stuhlman are protected by the attorney-client privilege. We disagree.

The opinion of the Appellate Court sets forth the well established legal principles governing privileged communications between attorney and client: “[W]here legal advice of any kind is sought from a professional legal adviser in his [or her] capacity as such, the communications relating to that purpose, made in confidence by the client, are at [the client’s] instance permanently protected from disclosure by [the client] or by the legal adviser, except the protection may be waived. [Rienzo v. Santangelo, 160 Conn. 391, 395, 279 A.2d 565 (1971);] LaFaive v. DiLoreto, 2 Conn. App. 58, 65, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him [or her] to give sound and informed advice. Upjohn Co. v. United States, supra, 449 U.S. 390. We note, however, that since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege. . . . Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). Ullmann v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994).” (Internal quotation marks omitted.) Shew v. Freedom of Information Commission, supra, 44 Conn. App. 618-19.

Although we have not previously considered whether the attorney-client privilege protects communications in circumstances where the client is a corporate or municipal entity, rather than an individual, we conclude that, for the reasons set forth in the opinion of the Appellate Court; id., 619-20; it does protect such communications. Moreover, we adopt the test employed by the Appellate Court to determine whether the privilege applies in the factual circumstances of a particular case. Accordingly, we conclude that “communications to an attorney for a public agency are protected from disclosure by privilege if the following conditions are met: (1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.” Id., 620-21.

The Appellate Court properly concluded that the first and third conditions, namely, that Stuhlman was acting in her capacity as an attorney and that the communications related to the legal advice the town sought from her, were met. Id., 617-18, 620. With respect to the first factor, we agree with the Appellate Court that “all of the relevant evidence in the record supports the trial court’s conclusion that the town manager hired Stuhl-man for legal advice. The record reveals that the town manager stated that he needed legal advice in the investigation of [Schnabel], that he knew Stuhlman was a competent attorney, and that he would not have hired her if she had not been an attorney. The town manager further stated that he felt that an attorney was required to conduct the interviews concerning [Schnabel] because of the statutory protections afforded [Schnabel] by § 7-278 and to avoid legal complications with regard to potential disciplinary matters relating to [Schnabel]. In contrast, there is no evidence in the record that Stuhlman was not acting in a legal capacity.” Id., 617-18.

With respect to the third condition, the Appellate Court stated that “information, not available to upper level management — the town manager — was needed to supply a basis for legal advice concerning compliance with legalities involved in the possible termination of [Schnabel].” Id., 620. Inasmuch as the information contained in the affidavits and summarized by Stuhlman related directly to the activities and conduct of Schnabel and the issue of his possible termination, we agree with the Appellate Court that this condition has been satisfied.

The commission, however, made no findings concerning the other two requirements, namely, whether the persons interviewed were employees or officials of the town at the time of the interviews, and whether the communications were made in confidence. Consequently, a remand for further factual findings by the commission with regard to these questions is necessary.

The commission contends that, notwithstanding the foregoing analysis, because the town manager has failed to establish that the communications “might not have been made absent the privilege”; (internal quotation marks omitted) Ullmann v. State, supra, 230 Conn. 713; the privilege does not protect the communications at issue. This argument is unavailing.

First, we never have conditioned the invocation of the attorney-client privilege on a showing that the information might not have been communicated without the privilege; see, e.g., Rienzo v. Santangelo, supra, 160 Conn. 395 (privilege applies to confidential communications relating to legal advice sought from legal professional acting in that capacity); nor do we agree that Ullmann compels such a showing. The quoted language in Ullmann appears, instead, in the context of our discussion of quite a different question, namely, whether the disclosure was of the kind necessary to obtain legal advice. Quoting from Fisher v. United States, supra, 425 U.S. 403, we observed that the privilege “protects only those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” (Emphasis in original; internal quotation marks omitted.) Ullmann v. State, supra, 230 Conn. 713. We concluded that, because the information was not “inextricably linked to the giving of legal advice,” it was not protected by the privilege. Id., 714. Second, even assuming, arguendo, that the privilege may be invoked only when it is established that the information might not have been communicated absent the privilege, the record is devoid of any evidence tending to support the commission’s assertion that the disclosures would have been made irrespective of the protection of the privilege. Consequently, this claim must fail.

We also are not persuaded that, as the commission argues, the availability of the privilege in the corporate context is limited to factual circumstances in which either the corporate entity or the employees providing the information face potential liability as a consequence of the information communicated. See Upjohn Co. v. United States, supra, 449 U.S. 394-95. First, although we find the reasoning in Upjohn Co. to be persuasive authority for the test we adopt today, we are not bound by that decision as a matter of state common law. Second, and more importantly, we discern nothing either in the policy underlying Upjohn Co. or in the language employed therein that would justify such a narrow reading of that case. Finally, even if we agreed with the commission’s claim, the record does not provide a sufficient factual basis to support it. Although the principal puipose for Stuhlman’s investigation was to examine Schnabel’s conduct rather than to uncover unlawful conduct on the part of the town or the employees who were interviewed, the town manager testified at the commission hearing that he “[had] to have competent legal counsel review what the town’s role is . . . and to see if [the town has] liability.” With respect to the employees, the record contains no evidence tending to establish whether, or to what extent, any of the interviewees feared liability as a result of the information they provided to Stuhlman.

II

The commission also claims that the Appellate Court improperly determined that the documents constitute “preliminary notes or drafts” under § 1-19 (b) (l). We also disagree with this contention.

We previously have interpreted the phrase “preliminary notes or drafts” within the meaning of § 1-19 (b) (1). Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 342-44, 559 A.2d 200 (1989); Wilson v. Freedom of Information Commission, 181 Conn. 324, 331-33, 435 A.2d 353 (1980). Examining, first, the common meaning of the words contained in this phrase, we observed that “ ‘[p]reliminaiy’ is defined as ‘something that precedes or is introductory or preparatory.’ As an adjective it describes something that is ‘preceding the main discourse or business.’ A ‘draft’ is defined as ‘a preliminary outline of a plan, document or drawing . . . .’ American Heritage Dictionary of the English Language. By using the nearly synonymous words ‘preliminary’ and ‘draft,’ the legislation makes it very evident that preparatory materials are not required to be disclosed.” Van Norstrand v. Freedom of Information Commission, supra, 343. Furthermore, “the concept of preliminary, as opposed to final, should [not] depend upon . . . whether the actual documents are subject to further alteration.” Wilson v. Freedom of Information Commission, supra, 332. “[Pjreliminary drafts or notes reflect that aspect of the agency’s function that precedes formal and informed decisionmaking. ... It is records of this preliminary, deliberative and predecisional process that we conclude the exemption was meant to encompass.” Id., 332-33.

Applying these principles to the instant case, we conclude that the documents are “preliminary drafts or notes” within the meaning of § 1-19 (b) (1). As the trial court observed, “Stuhlman’s report . . . with its ‘conclusion’ section left completely blank, can be nothing but a ‘preliminary draft or note’ under any definition of those terms.” Moreover, the interview summaries and affidavits, although final in form, also are preliminary because they were created solely to serve as supporting documentation for Stuhlman’s unfinished report.

Documents that qualify for the § 1-19 (b) (1) exemption nonetheless may be disclosable under § 1-19 (c) (1) if they constitute “interagency or intra-agency mem-oranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated . . . .” General Statutes § 1-19 (c) (1). The disclosure provisions of § 1-19 (c) (1) are qualified, however, in that “disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency . . . .” General Statutes § 1-19 (c) (l).

We agree with the Appellate Court that § 1-19 (c) (1) does not mandate disclosure of the documents in this case. Focusing on Stuhlman’s role in the investigation, the Appellate Court observed that, “[although the trial court did not make an express finding that Stuhlman was a ‘member of the staff of a public agency,’ she was hired by the town to provide legal advice. Stuhlman’s role as legal advisor for the Schnabel investigation was analogous to being a staff member as required by § 1-19 (c) (1). Thus, the trial court properly concluded that the documents were exempt from disclosure.” Shew v. Freedom of Information Commission, supra, 44 Conn. App. 622. Although, as the commission argues, the statutory language “member of the staff’ may be interpreted to limit the applicability of § 1-19 (c) (1) to employees of a public agency, “[b]ecause our fundamental objective in construing a statute is to ascertain and give effect to the apparent intent of the legislature . . . we will not undertake an examination of [a statute] with blinders on regarding what the legislature intended [it] to mean. . . . Accordingly, our analysis of [a statute] is not limited solely to the words of the statute. Instead, we must also look ... to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . .” (Citations omitted; internal quotation marks omitted.) Derwin v. State Employees Retirement Commission, 234 Conn. 411, 420, 661 A.2d 1025 (1995). We discern no reason, consistent with the purposes underlying the statute, to conclude that our legislature intended to exclude from § 1-19 (c) (1) drafts of memoranda prepared by persons who, like Stuhlman, are hired on a contractual basis to perform tasks that are, for all relevant purposes, indistinguishable from those which may be performed by agency personnel.

Notwithstanding our conclusion that the documents constitute “preliminary drafts or notes” within the meaning of § 1-19 (b) (1) and, further, that they otherwise are not disclosable under § 1-19 (c) (1), the case must be remanded for a determination by the town as to whether “the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . .” General Statutes § 1-19 (b) (l). It is undisputed that the town manager never reviewed the documents; consequently, he could not have conducted the balancing test mandated by the statute. Therefore, to the extent that the trial court remanded the case for a determination as to “whether the [town manager] determined that the public interest in withholding the Stuhlman documents from disclosure outweighed the public interest in disclosure”; (emphasis added); the Appellate Court is hereby directed to modify the trial court’s remand order to require the town to make such a determination.

The judgment of the Appellate Court is affirmed, and the case is remanded to that court with direction to remand the case to the trial court, with direction to remand the case to the commission for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       Shew is no longer Rocky Hill’s town manager.

       Peruta has not appealed from the adverse judgments of the trial court and the Appellate Court.

       “In 1988 . . . Schnabel . . . filed a defamation action against one of his officers, Clyde Tyler. Tyler counterclaimed against Schnabel in his official capacity, alleging false imprisonment, intentional infliction of emotional distress, violation of his constitutional rights to free speech and equal protection and abuse of process. The jury returned a verdict for Tyler on his counterclaims and awarded damages of $370,000, including punitive damages on each count.” Shew v. Freedom of Information Commission, supra, 44 Conn. App. 613 n.5.

         General Statutes § 7-278 provides: “Hearing prior to dismissal of municipal police head. Just cause requirement. Appeal. No active head of any police department of any town, city or borough shall be dismissed unless there is a showing of just cause by the authority having the power of dismissal and such person has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard in his own defense, personally or by counsel, at a public hearing before such authority. Such public hearing, unless otherwise specified by charter, shall be held not less than five nor more than ten days after such notice. Any person so dismissed may appeal within thirty days following such dismissal to the superior court for the judicial district in which such town, city or borough is located. Service shall be made as in civil process. Said court shall review the record of such hearing, and, if it appears upon the hearing upon the appeal that testimony is necessary for an equitable disposition of the appeal, it may take evidence or appoint a referee or a committee to take such evidence as it directs and report the same to the court with his or its findings of fact, which report shall constitute a part of the proceedings upon which the determination of the court shall be made. The court, upon such appeal, and after a hearing thereon, may affirm the action of such authority, or may set the same aside if it finds that such authority acted illegally or arbitrarily, or in the abuse of its discretion, with bad faith, malice, or without just cause.”

       At the hearing before the commission, Springer denied that, in preparing his report, he had relied on any of the information supplied by Stuhlman. He stated, instead, that his report derived exclusively from information contained in the trial transcript of Schnabel’s civil case; see Schnabel v. Tyler, supra, 32 Conn. App. 704; and the evidence adduced in connection with that case. In addition, the town manager testified that he never had received “a finalized or formalized copy of any of the work that . . . Stuhlman did in the investigation . . . He indicated, rather, that he had been shown “some drafts of statements; they were on the back of scrap paper which had other nonrelevant things printed on the back of them,” and, further, that Stuhlman had “apprised [him] orally of what was going on.” Finally, the town manager was unable to recall whether he ever had a copy of the draft statements in his possession.

       General Statutes § 1-19 provides in relevant part: “Access to public records. Exempt records, (a) Except as otherwise provided by 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 in accordance with the provisions of section 1-15. . . .
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of (1) preliminary drafts or notes provided that the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . (10) . . . communications privileged by the attorney-client relationship . . . .”

       See footnote 6 of this opinion.

       Specifically, the trial court ordered the commission to determine: (1) “which individuals interviewed by . . . Stuhlman were employees or officials of the town ... at the time of the interviews”; and (2) “whether the Stuhlman interviews were conducted individually in confidence.”

       General Statutes § 1-19 (c) provides in relevant part: “Notwithstanding the provisions of [subdivision] (1) . . . of subsection (b) of this section [i.e., General Statutes § 1-19 (b) (1); see footnote 6 of this opinion], disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency (Emphasis added.)

       We consider both issues on appeal in light of the possibility that, on remand, it will be determined that one of the statutory exemptions from disclosure does not apply to one or more of the documents.

       The Appellate Court explained: “In Upjohn Co. v. United States, supra, 449 U.S. 383, the United States Supreme Court addressed the problem of the attorney-client privilege in the corporate context. Upjohn Co. involved an investigation, organized by Upjohn’s general counsel, into possibly illegal payments made by the corporation to foreign governments. As part of the investigation, the attorneys prepared a questionnaire that was sent to all foreign general and area managers, inquiring about payments from Upjohn to any employee or official of a foreign government. Subsequently, the Internal Revenue Service issued a summons demanding production of files pertaining to the investigation, including the questionnaires prepared for counsel and answered by the various corporate managers. The . . . [c]ourt noted that a letter attached to the questionnaire stated that the investigation was under the direction of counsel, responses were highly confidential, and the completed questionnaires should be returned to counsel.
      “In determining if the privilege attached, the . . . [c]ourt considered whether (1) the communication was part of a corporate purpose to obtain legal advice, (2) the communication concerned matters within the employees’ corporate duties, (3) each employee knew that he [or she] was making a confidential statement as part of a corporate purpose to secure legal advice, and (4) the statements were kept confidential, or disclosed in a manner consistent with the privilege. Upjohn Co. v. United States, supra, 449 U.S. 394-95. The court held that the attorney-client privilege protected the questionnaires and any notes on responses to interview questions from disclosure.
      “It is axiomatic that the privilege belongs to the client. See In re Sean H., 24 Conn. App. 135, 143, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). In the case of an individual client, the provider of the information and the person who acts on the attorney’s advice are one and the same. In the corporate-municipal government context, however, it will frequently be not only officers and agents — those who fall easily under the attorney-client privilege umbrella — but employees who possess the information needed by the lawyer. By limiting the privilege to officers and agents of (he corporation or municipality, we frustrate the purpose of the privilege by discouraging the communication of relevant information by employees to attorneys seeking to render legal advice to the client corporation or municipality. See Upjohn Co. v. United States, supra, 449 U.S. 392.” Shew v. Freedom of Information Commission, supra, 44 Conn. App. 619-20.

       With respect to the second factor, the court in Upjohn Co. v. United States, supra, 449 U.S. 394 n.3, declined to decide whether the communication must be made by a current employee for it to be protected from disclosure by the attorney-client privilege. The Restatement of the Law Governing Lawyers, however, has adopted this requirement as a general rule. Restatement (Third), Law Governing Lawyers § 123 (2), pp. 386-87 (Proposed Final Draft No. 1, 1996). The commentary to § 123 (2) provides that “a person making a privileged communication to a lawyer for an organization must then be acting as agent of the principal-organization. The objective of the organizational privilege is to encourage the organization to have its agents communicate with its lawyer.” Id., comment (e), p. 392. Because we agree with the rationale underlying the rule espoused by the Restatement, we, like the Appellate Court, adopt this rule.
      The commentary further provides that “[a] former agent is a privileged person under Subsection (2) [of § 123] if, at the time of communicating, the former agent has a continuing legal obligation to the principal-organization to furnish the information to the organization’s lawyer. The scope of such a continuing obligation is determined by the law of agency and the terms of the employment contract . . . .” (Citations omitted; emphasis added.) Id. Because this provision represents a logical extension of the general rule and is consistent with the rationale underlying that rule, we adopt it also.

       These conditions, while differing in minor respects from the factors relied upon by the United States Supreme Court in Upjohn Co. v. United States, supra, 449 U.S. 394-95; see footnote 11 of this opinion; are, as the Appellate Court noted, fully consistent with the teachings of that case. Shew
        v. Freedom of Information Commission, supra, 44 Conn. App. 620. We note, moreover, that the commission does not challenge the test as formulated, but instead claims that the communications are not privileged under that test.

       The commission claims that, even if it is determined on remand that the interviews were conducted in confidence, the privilege may not be invoked because the town manager had no expectation that the interviewees’ communications to Stuhlman would be privileged from disclosure. In support of this claim, the commission relies, first, on the town manager’s testimony before the commission in which he denied that he had hired Stuhlman so that her communications with town employees would be shielded from disclosure. Second, with respect to those communications that were reduced to affidavit form, the commission asserts that the use of such affidavits conclusively establishes that the town manager intended to offer them as evidence in a subsequent legal proceeding, thereby vitiating any claim that he expected that the statements would be privileged. We are not persuaded by either of these arguments.
      First, the existence of the privilege does not necessarily turn on whether corporate management anticipates invoking the attorney-client privilege at some later date. Second, assuming, as the commission appears to argue, that the town manager and the interviewees must have intended that the communications would be confidential for the privilege to apply, we fail to see how the town manager’s testimony that he did not hire Stuhlman for the express purpose q/protecting the fruits of her investigation from disclosure has any bearing on the very different question of whether he expected that the information she gathered would be retained in confidence. Third, the mere fact that information provided by some of the interviewees had been reduced to affidavit form does not, without more, establish that the town manager reasonably could not have had a legitimate expectation of confidentiality with respect to those communications. Moreover, the commission’s claim that the town manager intended to use the affidavits in some public forum is entirely without support in the record. The record is likewise devoid of any evidence that the affidavits were used in any proceeding, or that their confidentiality has not, at all times, been maintained.

       Moreover, the pertinent discussion in Fisher v. United States, supra, 425 U.S. 403-404, focused on whether certain documents that were discoverable while in the client’s possession nevertheless were protected from disclosure after the client had transferred them to his attorney. The court concluded that, under those circumstances, the privilege did not apply. Id., 404.

       “The town manager contends that our consideration of this certified question is inappropriate because: (1) the commission abandoned this claim by failing to raise it in the Appellate Court and in its certification petition; and (2) the Appellate Court opinion contains no discussion of whether the documents are “preliminary notes or drafts” within the meaning of § 1-19 (b) (1). We disagree. First, we are aware of no limitation on our authority to grant certification on an issue not expressly raised in a petition for certification. Second, we are persuaded that this issue implicitly was decided by the Appellate Court in the course of its determination as to whether the documents were “preliminary drafts” within the meaning of § 1-19 (c) (1). See footnote 9 of this opinion.

        Van Norstrand involved a request under the Freedom of Information Act for the disclosure of a report containing the results of a survey evaluating the performance of various judges, only some of whom were, at the time, under consideration for reappointment. Van Norstrand v. Freedom, of Information Commission, supra, 211 Conn. 340-41. The information concerning the judges who then were not being considered for reappointment had been collected for the sole purpose of establishing the statistical validity of the survey. Id., 341. The speaker of the state House of Representatives released the report to a newspaper only after excising the data on those judges who were not, at the time, under consideration for reappointment. Id. The commission ordered disclosure, and the trial court reversed. Id., 341-42. We affirmed the judgment of the trial court, concluding that, because the excised data were “not required or germane to the eventual purpose for which the survey was undertaken,” they were preliminary within the meaning of § 1-19 (b) (1). Id., 343.
      Citing to Van Norstrand, the commission suggests that only information that is shown to be irrelevant to the ultimate purpose for which it is gathered may be considered to be preliminary for purposes of § 1-19 (b) (1). The commission argues that, because the information Stuhlman collected was relevant to whether Schnabel should be terminated, even though it was not considered in making that determination, it is not preliminary within the meaning of § 1-19 (b) (1). We are not persuaded. Consistent with our holding in Van Norstrand, we conclude that, although relevancy may be considered when determining whether a document is preliminary, even relevant material, if incorporated into an unfinished document or one which is, for all purposes, predecisional, is not disclosable. See id., 343-44.

       Indeed, because the report itself was preliminary and therefore subject to revision, at least some of the documents Stuhlman created may have been revised or even deleted from the report.

       The town manager contends that, because we refused to grant the commission’s request for certification on the question of whether § 1-19 (c) (1) applies to the documents, we should decline to consider it now. Because § 1-19 (c) (1), by its terms, expressly limits the scope of the exemption from disclosure under § 1-19 (b) (1), we conclude that our consideration of § 1-19 (c) (1) is necessary to our resolution of the second certified question.

       At oral argument, the town manager asserted for the first time that § 1-19 (c) (1) does not apply to the documents because he had never examined them and, consequently, they could not constitute “part of the process by which governmental decisions and policies are formulated.” General Statutes § 1-19 (c) (1). Because this claim was not briefed by either party, we decline to consider it. See, e.g., Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 486 n.7, 697 A.2d 680 (1997).

       Of course, this balancing test need not be conducted with regard to those documents that are determined to be exempt from disclosure under the attorney-client privilege.

       In conducting the balancing test, “the agency may not abuse its discretion in making the decision to withhold disclosure. The agency must, therefore, indicate the reasons for its determination to withhold disclosure and those reasons must not be frivolous or patently unfounded. Wilson v. Freedom of Information Commission, supra, [181 Conn.] 339.” (Internal quotation marks omitted.) Van Norstrand v. Freedom of Information Commission, supra, 211 Conn. 345.


text:
    ASSOCIATES FINANCIAL SERVICES OF AMERICA, INC. v. SAMUEL P. SORENSEN ET AL.
    (SC 15815)
    Callahan, C. J., and Norcott, Katz, Palmer and Peters, Js.
    Argued April 22
    officially released June 23, 1998

      Abraham I. Gordon, with whom were Ronald D. Japha and, on the brief, Richard S. Scalo, for the appellant (substitute plaintiff).

      Beecher A. Larson, with whom was Robert A. Solari, for the appellee (defendant Northern State Financial, LLC).
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       We granted the substitute plaintiffs petition for certification limited to the following issue: “Did the Appellate Court properly affirm the trial court’s summary judgment?” Associates Financial Services of America, Inc. v. Sorensen, 243 Conn. 944, 704 A.2d 798 (1997).