author: CALLAHAN, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. WENDY R. HICKAM
    (15256)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued September 19
    decision released December 26, 1995

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Paul Narducci, deputy assistant state’s attorney, for the appellant (state).

      Edward E. Moukawsher, for the appellee (defendant).

      Richard Blumenthal, attorney general, Aaron S. Bayer, deputy attorney general, and Gregory T. DAuria, assistant attorney general, filed a brief for the attorney general as amicus curiae.
   CALLAHAN, J.

The sole issue in this appeal taken by the state is whether the double jeopardy clause of the fifth amendment to the United States constitution prohibited the criminal prosecution of the defendant, Wendy R. Hickam, for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a), after her motor vehicle operator’s license had been suspended pursuant to General Statutes § 14-227b for the same conduct. The state appealed from the judgment of the trial court dismissing the criminal charges against the defendant on double jeopardy grounds. The trial court concluded that the administrative suspension of the defendant’s license pursuant to § 14-227b embodied an element of punishment that barred a subsequent criminal prosecution pursuant to § 14-227a as violative of the double jeopardy clause of the fifth amendment to the United States constitution. We reverse the judgment of the trial court.

The relevant facts are undisputed. On December 16, 1994, the defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). Following the defendant’s arrest, the commissioner of motor vehicles suspended her motor vehicle operator’s license for a period of ninety days pursuant to § 14-227b (h) (1) (A). Prior to the defendant’s trial for allegedly operating a motor vehicle while under the influence in violation of § 14-227a (a), she moved to dismiss that charge, claiming that the ninety day suspension of her license was punishment and that any further prosecution or punishment was precluded by the double jeopardy clause of the fifth amendment. The trial court granted the defendant’s motion, concluding that the government imposed suspension had a deterrent purpose or effect and constituted punishment that barred any criminal prosecution for the same offense as violative of the double jeopardy clause. This appeal followed.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The third of these protections is at issue in the present case. We must determine, therefore, whether the administrative suspension of the defendant’s operator’s license constitutes punishment that presents an impediment to her prosecution pursuant to § 14-227a (a).

The defendant relies principally on United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), to support her claim that the trial court correctly concluded that the suspension of her motor vehicle operator’s license barred further prosecution or punishment for her alleged violation of § 14-227a (a). In Halper, the defendant was convicted of sixty-five separate violations of the federal criminal false claims statute, 18 U.S.C. § 287. Each violation involved a billing to medicare for $12 for reimbursement for medical services worth only $3. The actual damage to the government as a result of the defendant’s scheme was $585. Upon his conviction of the criminal violations, the defendant was sentenced to two years imprisonment and fined $5000. Subsequently, the government filed a separate civil action against the defendant in an attempt to recover a $2000 penalty for each violation as authorized by the applicable statute. Thus, the government sought to collect $130,000 from the defendant. The United States District Court refused to impose most of the additional penalties against the defendant, concluding that the requested amounts bore no rational relationship to the government’s losses or costs, and that the assessment of the full amount would be an additional punishment that would violate the double jeopardy clause by punishing Halper a second time for the same offense. United States v.Halper, supra, 439. The government appealed directly to the United States Supreme Court pursuant to 28 U.S.C. § 1252. The narrow issue presented to the court was whether the attempted imposition of the civil fines against Halper by the government, following his criminal prosecution and punishment for the same underlying misconduct, violated the double jeopardy clause. Id., 447-50.

The court determined that the imposition of the full amount of the sought after monetary penalties would constitute punishment. It explicitly held that “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” (Emphasis added.) Id., 448-49. The court recognized the difficulty in conducting this inquiry and indicated that a violation of the double jeopardy clause “can be identified only by assessing the character of the actual sanction imposed on the individual by the machinery of the state.” Id., 447.

In holding that the civil penalty authorized by the statute was so disproportionate to the offense as to have violated the constitutional prohibition against multiple punishments, the court announced that this is “a rule for the rare case . . . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” Id., 449. The court then remanded the case to the trial court in order to allow the government an opportunity to demonstrate its losses and costs because it had not previously challenged the assessment of damages. The government rather had chosen to litigate only the comprehensive double jeopardy issue that the Supreme Court decided. Id.

The defendant claims that Halper states and stands for the proposition that a civil sanction is punishment unless it can “fairly be said solely to serve a remedial purpose . . . .” (Emphasis added.) Id., 448. This language, however, is mere dicta and is inconsistent with Halper’s explicit holding. It was, nevertheless, the language upon which the trial court focused in concluding that the suspension of the defendant’s operator’s license was punishment that raised a double jeopardy bar. If the above quoted dicta from Halper were adhered to literally and in isolation as the proper standard by which to evaluate an administrative sanction, any such sanction that exhibited even a minuscule deterrent or retributive purpose would have to be denominated punishment for double jeopardy purposes.

As quoted earlier, the explicit holding of United States v. Halper, supra, 448-49, is: “We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” (Emphasis added.) We cannot reconcile Halper’s explicit holding with the language relied upon by the trial court and the defendant in this case. The majority of courts that have addressed the issue of whether the imposition of a civil sanction constitutes punishment for puiposes of the double jeopardy clause, however, have applied Halper’s explicit holding, and have rejected the notion that Halper intended to characterize as punishment all civil or administrative sanctions that have any deterrent effect. See, e.g., Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 778-79, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); Garrity v. Fiedler, 850 F. Sup. 777, 778-79 (E.D. Wis. 1994); State v. Funke, 531 N.W.2d 124, 126-27 (Iowa 1995); State v. Savard, 659 A.2d 1265, 1268 (Me. 1995); State v. Strong, 158 Vt. 56, 61-62, 605 A.2d 510 (1992). The majority of courts have also concluded that administrative sanctions that have the remedial purpose of advancing public safety interests do not constitute punishment for purposes of double jeopardy analysis. See, e.g., United States v. Hudson, 14 F.3d 536, 542 (10th Cir. 1994) (administrative order barring defendants from future banking activities not bar to subsequent prosecution for related criminal offense); United States v. Furlett, 974 F.2d 839, 844-45 (7th Cir. 1992) (administrative ban on commodities trading not bar to subsequent criminal prosecution for same underlying misconduct); Schillerstrom v. State, 180 Ariz. 468, 470-71, 885 P.2d 156 (1994) (criminal prosecution not bar to subsequent administrative revocation of chiropractic license even though based on same behavior giving rise to prosecution); Loui v. Board of Medical Examiners, 78 Haw. 21, 25-29, 889 P.2d 705 (1995) (one year suspension from practice of medicine by board of medical examiners following criminal prosecution based on same conduct not barred by double jeopardy prohibition against multiple punishments).

Finally, most courts that have spoken directly to the issue of whether an administrative license suspension following an arrest for driving while intoxicated raises a double jeopardy bar to prosecution have consistently relied upon Halper’s explicit holding and have determined that if a license suspension furthers the legitimate remedial goal of public safety, it is not punishment in the double jeopardy context even if it has an incidental deterrent or retributive effect. See Baldwin v. Dept. of Motor Vehicles, 35 Cal. App. 4th 1630, 42 Cal. Rptr. 2d 422, 427-30 (1995) (administrative license suspension based on drunk driving arrest may not be fairly characterized as deterrent or punitive measure and does not bar further prosecution or punishment); State v. Murray, 644 So. 2d 533, 535 (Fla. App. 1994) (administrative license suspension does not prohibit subsequent criminal prosecution because primary purpose of suspension is public safety as opposed to punishing offender); State v. Higa, 79 Haw. 1, 897 P.2d 928, 932-34 (1995) (license suspension is remedial in that it protects public by removing potentially dangerous drivers from state roadways and does not bar subsequent criminal prosecution); State v. Funke, supra, 531 N.W.2d 126-27 (license suspension that principally serves remedial purpose does not implicate double jeopardy protection against multiple punishments and therefore does not bar subsequent criminal prosecution); Butler v. Dept. of Public Safety & Corrections, 609 So. 2d 790, 797 (La. 1992) (license suspension bears rational relationship to legitimate governmental purpose of promoting public safety and does not serve as bar to subsequent criminal prosecution); State v. Savard, supra, 659 A.2d 1268 (license suspension serves as means to ensure public safety and subsequent criminal prosecution based on same conduct is not prohibited by double jeopardy clause); State v. Jones, 340 Md. 235, 666 A.2d 128 (1995) (administrative license suspension following drunk driving arrest serves remedial purpose and therefore not bar to criminal prosecution); State v. Hanson, 532 N.W.2d 598, 601-602 (Minn. App. 1995) (ninety day revocation of driver’s license fairly characterized as remedial and therefore does not prohibit criminal prosecution); State v. Cassady, 140 N.H. 46, 662 A.2d 955, 959 (1995) (administrative license suspension following drunk driving arrest does not bar subsequent prosecution because it is not so punitive as to constitute punishment in violation of double jeopardy clause); Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922 (1995) (license suspension following drunk driving arrest serves remedial purpose and therefore double jeopardy not bar to subsequent criminal prosecution).

Accordingly, after a review of Halper and its interpretation by other jurisdictions, we conclude that Halper stands for the proposition that a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect. Conversely, no matter what its label, a sanction or portion thereof that seeks only to punish triggers the protection of the double jeopardy clause.

Having determined that the explicit holding of Halper, rather than the test utilized by the trial court, enunciates the proper standard by which to measure a civil or administrative sanction for purposes of the double jeopardy clause, we must determine whether Connecticut’s statute mandating an administrative license suspension under defined circumstances, following an arrest for driving while under the influence, is fairly characterized as remedial. We conclude that the statute is sufficiently remedial so that the administrative suspension does not bar a future prosecution for the same conduct that gave rise to the suspension.

In determining whether a suspension pursuant to § 14-227b is punishment or is remedial for double jeopardy purposes, we need to assess the nature of the administrative sanction imposed upon the individual and the purposes that it serves. United States v. Halper, supra, 490 U.S. 448. We note at the outset that the question of whether a sanction constitutes punishment is not to be answered from the perspective of the person affected because not infrequently “remedial sanctions carry the sting of punishment.” Id., 447 n.7. Consequently, one against whom any administrative action has been taken might well be of the opinion that he or she was indeed being “punished.” Additionally, the label that the legislature attaches to the sanction does not control our double jeopardy inquiry because “[i]t is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties.” Id., 447.

An examination of the legislative history of § 14-227b reveals that a principal purpose for the enactment of the statute was to protect the public by removing potentially dangerous drivers from the state’s roadways with all dispatch compatible with due process. Legislators expressed the hope that “this bill [would] save lives . . . [because] anywhere from 20-30 people, Connecticut residents [would] be spared . . . .” 32 H.R. Proc., Pt. 30, 1989 Sess., p. 10,562, remarks of Representative Christopher Burnham. Legislators also hoped that the bill would send a “message that we will not tolerate drunken drivers on our roads . . . [and] the loss of life and property on our roads as a result of drunken drivers.” 32 S. Proc., Pt. 12, 1989 Sess., p. 3979, remarks of Senator Anthony V. Avallone. Other legislators noted that there was a “need to do . . . something stronger than we have done by strictly our criminal laws, something that will use the administrative process in a prompt and sure fashion to make sure that those who drive and drink, don’t do so for very long.” Id., p. 3985, remarks of Senator Richard Blumenthal. “This bill goes a long way toward restoring . . . the safety that we all expect and deserve in traveling on our roads.” Id., p. 3986, remarks of Senator James H. Maloney.

We acknowledge that the legislative history of § 14-227b contains evidence that the ninety day suspension of an operator’s license was intended to some extent to furnish a deterrent to driving while under the influence of intoxicating liquor. We note, however, that a deterrent purpose does not automatically mark an administrative action as punitive for double jeopardy purposes. Dept. of Revenue of Montana v. Kurth Ranch, supra, 511 U.S. 780. Indeed, it is difficult to envision any administrative sanction that does not have some incidental deterrent effect. Accordingly, although various legislators, to some degree, envisioned that the ninety day suspension would deter individuals from driving while intoxicated, a determination that the suspension period primarily serves a remedial purpose is not foreclosed. The legislation’s deterrent effect must be considered in conjunction with the equally important public safety purpose that § 14-227b was obviously enacted to serve. On balance, we conclude that any deterrent purpose manifested by the legislative history of § 14-227b is incidental to its overall remedial purpose of removing from the highways those who have exhibited a propensity to drive while under the influence of alcohol.

We conclude that the principal thrust of § 14-227b is to protect the public by temporarily revoking, prior to conviction, the operating privileges of those who have demonstrated a reckless disregard for the safety of others, while at the same time providing procedures to afford due process to those that come within its ambit. While any remedial statute or regulation likely embodies a certain element of deterrence, the remedial purpose of § 14-227b outweighs its incidental deterrent effect. We conclude further that the ninety day suspension period mandated by § 14-227b is not disproportionate to the public safety interest that is served by the expeditious suspension of the operating privileges of an individual who has been administratively found to have operated a motor vehicle with a blood alcohol content of 0.10 of 1 percent or more. An administrative suspension of operating privileges pursuant to § 14-227b is rationally related to the legislature’s assessment that public safety on our highways is furthered by the prompt removal from behind the wheel, even if only temporarily, of those individuals who have been arrested for operating under the influence. Succinctly put, the ninety day suspension period is not “so divorced from any remedial goal that it constitutes ‘punishment’ for the purpose of double jeopardy analysis.” United States v. Halper, supra, 490 U.S. 443.

The fact that the operating privileges of a driver arrested for operating a motor vehicle while under the influence are allowed to be retained temporarily for a thirty day period does not affect our determination that § 14-227b is remedial. An operator’s license is a privilege that the state may not revoke without furnishing the holder of the license due process as required by the fourteenth amendment. Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971). Consequently, the legislature has simply provided to a driver who has been arrested the opportunity to contest the loss of his or her license, while retaining operating privileges until a final determination on an extended suspension can be made after a hearing. The short period of retention of driving privileges pending a hearing was obviously intended to eliminate any possible due process concerns and does not defeat the statute’s remedial purpose of expeditiously removing potentially dangerous drivers from the road for a period of time. State v. Hanson, supra, 532 N.W.2d 602; see also State v. Stevens, 224 Conn. 730, 739, 620 A.2d 789 (1993) (Connecticut’s statutory scheme reflects “an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers”).

Moreover, the legislature’s decision to limit to only ninety days the suspension of a driver whose blood alcohol content tested to be 0.10 of 1 percent or more does not vitiate the statute’s remedial purpose. While the legislature might have opted for a substantially longer suspension period, we cannot say that its decision not to do so is unreasonable or not rationally related to concerns of public safety, a remedial purpose. “[W]e must defer to the Legislature in determining the remedial action necessary to achieve its goals. See [United States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980)].” State v. Strong, supra, 158 Vt. 61; see Quinnett v. Newman, 213 Conn. 343, 347, 568 A.2d 786 (1990).

In sum, we conclude that the administrative suspension of the defendant’s operator’s license had a legitimate remedial purpose and does not bar her criminal prosecution for allegedly violating § 14-227a (a).

The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion PETERS, C. J., and BORDEN, NORCOTT, KATZ and PALMER, Js., concurred.

BERDON, J.,

dissenting. The majority’s reversal of the trial court’s dismissal of the charges of operating under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) subjects the defendant, Wendy Hickarn, to double jeopardy. Although deterring persons from operating motor vehicles while under the influence of alcoholic beverages is a laudable objective, it cannot be done through multiple punishments that transgress the double jeopardy clause of the United States constitution. In order to accomplish the underlying commendable purpose of decreasing the incidence of driving while under the influence, the legislature surely can fashion a statutory scheme that does not offend the constitution.

In this case, the issue presented is whether the two sanctions imposed pursuant to General Statutes § 14-227b after the defendant’s arrest for operating a vehicle under the influence of intoxicating liquor or drugs — that is, (1) the suspension of her motor vehicle operator’s license for twenty-four hours following her arrest and (2) the subsequent suspension of her license for a ninety day period — constitute punishments for purposes of the double jeopardy clause. If either suspension constitutes “punishment,” the criminal prosecution of the defendant arising out of the same incident must be dismissed because it would place the defendant in double jeopardy in violation of the fifth amendment. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

The United States Supreme Court has clearly held that a civil sanction may constitute a punishment for purposes of the double jeopardy clause. United States v. Halper, 490 U.S. 435, 447-48, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). “The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads.” Id. Thus, the essence and character of a sanction must be examined to determine whether a civil sanction is truly punitive in nature.

Unfortunately, the Supreme Court of the United States has not provided a clear standard to determine whether a civil sanction is a punishment for purposes of the clause. Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993); United States v. Halper, supra, 490 U.S. 435. In 1989, the court in Halper held “that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. [The court therefore held] that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” (Emphasis added.) United States v. Halper, supra, 448-49. Four years later, the United States Supreme Court in Austin, while referring to the above quoted language from Halper, made it clear that a sanction is punishment if the sanction “serves in part to punish . . . .” (Emphasis in original.) Austin v. United States, supra, 619 n.12. The court further stated that “one need not exclude the possibility that [the sanction] serves other purposes to reach [the conclusion that the sanction is a punishment].” (Emphasis added.) Id. Therefore, under Austin, a sanction with a punitive component is to be considered “punishment” for double jeopardy analysis. The following year, the Supreme Court of the United States in Kurth Ranch again addressed the issue of when a “civil” sanction, in the form of a tax on illegal drugs, may be constitutionally imposed. Dept. of Revenue of Montana v. Kurth Ranch, supra, 767. At the commencement of its analysis the court stated: “Here, we ask only whether the tax has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.” Id., 778-79. After reviewing several attributes of the tax in question, the court held that the tax was “fairly characterized as punishment . . . .” Id., 784.

A careful analysis of Halper, Austin and Kurth Ranch leads to the conclusion that any sanction which is sig nificantly punitive, although not necessarily predominantly punitive, must be classified as a “punishment.” Id., 781; Austin v. United States, supra, 509 U.S. 621; United States v. Halper, supra, 490 U.S. 448-49. A sanction should be considered “significantly punitive,” if, notwithstanding any remedial purpose, it is punitive in a meaningful way or if the intended purpose of the civil sanction is punitive.

The court today, purporting to follow Halper, sets forth a standard that is at odds with that decision. The majority states that any remedial effect, no matter how minuscule, will render a sanction remedial for double jeopardy purposes. Nevertheless, even if we should construe Halper in a manner that is most favorable to the state, the double jeopardy clause under those circumstances still requires that the sanction must be one that can “fairly be characterized as remedial” for it to pass constitutional muster. United States v. Halper, supra, 490 U.S. 448-49. Because the ninety day suspension cannot be “fairly characterized as remedial,” this action must be dismissed.

In order to make a point, my analysis under the “fairly characterized as remedial” standard begins with the obvious. The twenty-four hour suspension imposed under § 14-227b is purely remedial because it is “clearly focused on public safety.” State v. Washburn, 34 Conn. App. 557, 564, 642 A.2d 70 (1994). Its manifest purpose is to protect others by prohibiting a person who has just been arrested for driving under the influence from operating a vehicle while he or she may still be intoxicated. Id.

The second sanction imposed under § 14-227b — that is, the ninety day suspension — however, lacks such a remedial purpose. Upon arrest, an individual’s operator’s license is seized and a temporary license is issued. The temporary license is effective twenty-four hours after the arrest and remains valid for up to thirty days, thereby restoring the individual’s right to operate a vehicle. The ninety day suspension does not commence until the person has a hearing to determine whether the police officer had probable cause to arrest and other related matters that would justify depriving him of the license. General Statutes § 14-227b (f). Unless the individual waives his right to a hearing, the hearing must occur within thirty days of his arrest. General Statutes § 14-227b (d).

The majority claims that the remedial aspect of § 14-227b is “to protect the public by removing potentially dangerous drivers from the state’s roadways with all dispatch compatible with due process.” If the ninety day suspension in § 14-227b was truly remedial, the arrestee’s right to operate a vehicle would not be restored for the thirty day period. For example, a teacher accused of child abuse would not be allowed to continue teaching while awaiting a hearing, nor would an individual suspected of murder be issued a temporary gun permit. In such situations, the concern for the safety and welfare of others governs and the state’s primary reason for taking such precautionary measures are thus remedial even though the individual is deprived of a property right.

If the ninety day suspension became effective when a person was arrested, then the suspension could arguably be characterized as remedial. Under those circumstances, we could logically conclude that the immediate suspension was necessary to remove from the highways persons who have a problem with alcohol or other drugs and to give those individuals an opportunity to seek professional aid and participate in appropriate driver’s education programs. See, e.g., General Statutes § 14-227a (k) (participation in alcohol education and treatment program). Instead, the statutory scheme of § 14-227b puts the person, who has failed a blood alcohol test or refused to submit to one, behind a wheel twenty-four hours after his offense and allows him to continue driving for up to thirty days. This statutory scheme therefore precludes the ninety day suspension from being “fairly characterized as remedial.” I agree with the defendant that there “is no correlation between safeguarding the public from an intoxicated driver and removing a person from the road well after his arrest for an arbitrary period. Clearly, the aim [of this statute] is deterrence, a classic goal of punishment.”

In fact, Representative John Tiffany posed the following hypothetical when § 14-227b was being considered in the legislature: “What happens if a fellow is driving home on a Friday night. He’s stopped and arrested, given one of these temporary licenses, and he’s stopped again on Sunday, Sunday night or Monday prior to the time [the permanent suspension] can get through the mail?” 32 H.R. Proc., Pt. 30, 1989 Sess., pp. 10,529-30. In response, Representative Douglas Mintz stated that the individual would simply be prosecuted as a repeat offender. Id., pp. 10,531-32. Representative Tiffany then sought to clarify Representative Mintz’s response by stating: “In other words, if he were stopped three times on his temporary license, he would get a three time penalty at his first hearing.” (Emphasis added.) Id., p. 10,532. Again, this dialogue reflects the fact that the ninety day suspension was not principally intended to serve a remedial purpose.

The court excuses the illogic of designating the sanction, which commences thirty days after arrest, as remedial by declaring that such a period is necessary to protect the due process rights of a defendant in order to give him an opportunity to be heard before his license is suspended. I am pleased that the court is concerned about the defendant’s due process rights. This is especially so since a majority of the court, in State v. Lopez, 235 Conn. 487, 668 A.2d 360 (1995), recently held that a criminal defendant sentenced to an effective prison term of seventeen years did not have a right to a mere hearing before the trial court altered a transcript of the defendant’s trial which removed the basis for an issue he raised on appeal. I can only conclude that, in any given case, an individual’s due process right to be heard solely depends on which end of the telescope — the narrowing or the magnifying end — the court that day decides to view the issue. Such capriciousness greatly concerns me.

Notwithstanding the court’s laudable concern for due process in this case, the United States Supreme Court has consistently held that a flexible approach must be employed in determining what process is due an individual being deprived of a right. L. Tribe, American Constitutional Law (2d Ed. 1988) p. 718. Generally, an individual may not be deprived of his liberty or property until the individual has had the benefit of a hearing. Id., p. 719. In certain circumstances, however, a state may have a valid governmental interest, such as public safety, that necessitates the immediate deprivation of a right without a presuspension hearing, as long as the deprivation is followed by a subsequent hearing within a reasonable time. Dixon v. Love, 431 U.S. 105, 114, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977) (prompt removal of safety hazards is important governmental interest); Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971) (individual may be deprived of right without prior hearing “where some valid governmental interest is at stake that justifies postponing the hearing until after the event”). Consequently, the majority’s concern for due process to justify the thirty day period during which an individual’s license is restored is misplaced.

In addition to the statutory scheme, the legislative history also clearly demonstrates that the intent of the legislature in enacting this statute was to punish drunk drivers in an expeditious fashion by utilizing administrative procedures. Although the majority acknowledges that the legislative history “to some extent” supports the defendant’s position that § 14-227b was enacted as a punitive measure, that characterization of the histoiy by the court is misleading. In fact, the legislative histoiy indicating that the primary intent in enacting this statute was to punish is overwhelming. One of the first comments made by Representative Richard Tulisano, chairperson of the judiciary committee, regarding this bill was that “[i]t penalizes people stronger than anything we have seen here if punishment is the answer . . . .” (Emphasis added.) 32 H.R. Proc., supra, p. 10,518. Similar statements, too numerous to put in the body of this dissent, are found throughout the legislative histoiy.

The legislative history cited by the majority in support of its position is merely general statements from our legislators stating that the carnage caused by drunk driving is intolerable. With those statements I agree. Nevertheless, the question remains, did the legislators intend to combat this problem by quickly punishing offending individuals? And the answer to that query is yes; the legislature sought to employ the administrative process as a more expeditious means to punish individuals who drive while under the influence. This point was clearly articulated by then Senator Richard Blumenthal, whom the majority quotes in their opinion. Senator Blumenthal stated that “[this bill will do] . . . something stronger than we have done by strictly our criminal laws, something that will use the administrative process in a prompt and sure fashion to make sure that those who drive and drink don’t do so for very long.” 32 S. Proc., Pt. 12, 1989 Sess., pp. 3984-85.

Standing alone, there is nothing unconstitutional about punishing individuals by suspending their operator’s licenses in order to deter driving while intoxicated. And, indeed, it may be very effective in solving a serious problem. The double jeopardy clause, however, forbids the imposition of a second successive sanction — in this case, a criminal prosecution — for the same offense.

I do not doubt the state’s authority and obligation to deter persons from operating vehicles on the highways under conditions that threaten the lives of innocent third parties by revoking an individual’s right to operate a vehicle. That authority, however, must be exercised in a manner that does not offend the double jeopardy clause of the United States constitution by meting out successive punishments for the same crime. Nor do I question the state’s authority to suspend a license for purely remedial purposes, but that authority must be exercised in a manner in which it could logically be concluded that the sanction was enacted for a remedial purpose.

I conclude that the ninety day suspension period provided in § 14-227b is punitive for double jeopardy purposes and therefore the defendant’s prosecution for operating under the influence must be dismissed.

Accordingly, I respectfully dissent.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes § 14-227a provides in relevant part: “Operation while under the influence of liquor or drug or while impaired by liquor, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drag or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227b provides in relevant part: “Implied consent to test. Suspension of license for refusing to submit to test or having elevated blood alcohol content. Hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operatingprivilege to suchperson valid fortheperiod commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles within three business days. The report shall be made on a form approved by the commissioner of motor vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.
      “(d) Upon receipt of such report, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of the suspension and may schedule such hearing by contacting the department of motor vehicles not later than seven days after the date of mailing of such suspension notice.”

       The fifth amendment to the United States constitution is made applicable to the states by the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 793-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       The defendant was also arrested for failure to drive on the right in violation of General Statutes § 14-230 (a).

       General Statutes § 14-227b (h) provides in relevant part: “The commissioner shall suspend the operator’s license . . . and revoke the temporary operator’s license ... for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight . . .

       The defendant also relies on Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), to support her claim that a sanction must be solely remedial for it to avoid being denominated punishment for purposes of the double jeopardy clause. In Austin, the court held that the civil forfeiture of a defendant’s property following his conviction and sentencing on drug charges constituted punishment and, therefore, was prohibited by the excessive fines clause of the eighth amendment. Id., 2812. The court reasoned that because the civil forfeiture did not serve solely a remedial purpose, it was subject to the limitations of the eighth amendment. Id.
      The defendant’s reliance on Austin, however, is misplaced. First, Austin did not deal with whether the forfeiture constituted a multiple punishment for purposes of the double jeopardy clause, but focused instead on whether the forfeiture was excessive for purposes of the excessive fines clause. Id. Second, the court exhaustively analyzed the historical underpinnings of civil forfeiture, and determined that the traditional view of civil forfeiture as punishment combined with an obvious deterrent and retributive legislative intent, led to the conclusion that the forfeiture at issue could only be properly characterized as punishment. Id. Third, in a more recent case involving a double jeopardy analysis of whether a tax could properly be characterized as punishment; Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); the court referred to the explicit holding of Halper and held that the tax statute was fairly characterized as punishment. Id., 777. The court accepted that the tax served to deter, but noted that such deterrence does not in and of itself automatically cause a tax to be characterized as a punishment. Id., 776-77. The court focused on various punitive factors of the tax that outweighed, under the particular circumstances of that case, any remedial purpose. Id., 777.

       Contrary to the assertion of the dissent, we do not claim that Bell v. Burson, supra, 402 U.S. 535, requires a hearing prior to the suspension of an operator’s license. As the dissent notes, the state may satisfy due process concerns by providing a hearing either before or after depriving one of the property interest. In this instance, the legislature has chosen to provide a hearing prior to the suspension.

       Additionally, we note the suspension period increases for subsequent violations of § 14-227b, indicating that the legislature was determined to remove from the roadways for longer periods of time those who repeatedly have exhibited a propensity to drive while under the influence. For example, for a second violation, the offender loses his or her operator’s license for a period of one year, and for three or more violations, the suspension period increases to two years. General Statutes § 14-227b (h).

         Footnote 7 of the majority opinion provides that Austin is not to be utilized in reviewing this case because Austin involves a civil forfeiture. Unlike the majority, I have no reason to believe that “punishment” is defined differently under the fifth amendment’s double jeopardy clause than it is under the eighth amendment’s excessive fines clause. Indeed, Kurth Ranch, cites both Austin and Halper favorably when discussing when a civil sanction is to be deemed a “punishment” for triggering constitutional protection of the double jeopardy clause. Dept. of Revenue of Montana v. Kurth Ranch, supra, 511 U.S. 778.

       Recently, the Tenth Circuit Court of Appeals, in United States v. Hudson, 14 F.3d 536, 540 (10th Cir. 1994), interpreted the language of Halper to mean that “if a particular remedial sanction can only be understood as also serving punitive goals, then the person subjected to the sanction has been punished despite that fact that the sanction is also remedial.” The court went on to state: “To conclude otherwise effectively invalidates the Double Jeopardy Clause by allowing multiple punishments for the same conduct merely because the punishments also serve remedial purposes. We therefore must conclude that if a sanction is not exclusively remedial, but rather can only be explained as also affecting deterrence or retribution, it is punishment for double jeopardy analysis.” Id.

       The majority states that “we conclude that Halper stands for the proposition that a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect. Conversely, no matter what its label, a sanction or portion thereof that seeks only to punish triggers the protection of the double jeopardy clause.” (Emphasis added.)

       Indeed, if the suspension was remedial, the license would not be restored to the person automatically at the end of a fixed period. Rather, the license would be returned only after it was demonstrated that the person’s alcohol related driving problem was resolved.

       The majority incorrectly cites Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), for the proposition that an operator’s license cannot be suspended until there has been a hearing. Rather, Bell holds that due process is satisfied by providing a hearing either before or after a deprivation, depending on the circumstances of the case. Id., 542.

       The legislative history indicating that § 14-2271) is a punishment is as follows: “We have come together to develop a bill that has proven to be an effective deterrent to drunk driving . . . .” (Emphasis added.) 32 H.R. Proc., supra, p. 10,522, remarks of Representative Edith Prague. “[TJhis amendment hopefully will act as a deterrent to have people realize the consequences of having that one drink too many, and thereby subjecting themselves to the loss of their license for 90 days . . . .” (Emphasis added.) Id., p. 10,523, remarks of Representative Douglas Mintz. “In the past in our law, under the alcohol education program, on a first arrest there was often no penalty beyond the fee to enter the program .... This, for the first time, puts in a suspension of the license of a first arrest, if that arrest is backed by either a refusal to take the test or a failure of the test .... There will be a meaningful penalty — a 90 day loss of license.” (Emphasis added.) Id., pp. 10,524-25, remarks of Representative Robert Ward. “[T]here are two important things the bill does. One . . . is a 90 day suspension on a first offense, but the second thing ... is that by setting up an administrative process we can act quickly to get somebody’s license away from them.” (Emphasis added.) Id., p. 10,534, remarks of Representative Robert Farr. “[S]omebody who drinks and drives ought to be tagged .... This is probably one of the toughest drunk driving per se bills in the United States. . . . Enough punishment that you lose your license.” (Emphasis added.) Id., pp. 10,546-47, remarks of Representative William WoEenberg. “[RJeceive some punishment, without conviction necessarily for drunk driving.” (Emphasis added.) Id., p. 10,564, remarks of Representative Richard TuEsano. “[YJour Ecense may be suspended under certain circumstances, irrespective of the result of the criminal charges.” 32 S. Proc., Pt. 12, 1989 Sess., p. 3978, remarks of Senator Anthony AvaEone. “[This biE is] . . . something stronger than we have done by strictly our criminal laws, something that wiE use the administrative process in a prompt and sure fashion to make sure that those who drive and drink don’t do so for very long.” (Emphasis added.) Id., pp. 3984-85, remarks of Senator Richard Blumenthal.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    ELIZABETH SADLOSKI ET AL. v. TOWN OF MANCHESTER ET AL.
    (15166)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.

      Argued September 21
    decision released December 26, 1995

      Kathleen Eldergill, for the appellant (plaintiff Virginia Celinski).

      Bourke G. Spellacy, with whom were William J. Shea, Jennifer A. Osowiecki and, on the brief, Karen P. Blado, for the appellees (defendants).
   BORDEN, J.

The dispositive issue in this appeal is whether the plaintiff has established taxpayer standing to challenge the validity of a real property tax abatement provision based solely on the existence of the abatement provision, irrespective of other tax consequences of the real estate development project to which the abatement provision relates. The plaintiff, Virginia Celinski, appeals from the judgment of the trial court in favor of the defendants, the town of Manchester (town), Homart Manchester Investment Company, and The Mall at Buckland Hills Partnership (partnership), in which it concluded that the plaintiff had failed to establish taxpayer standing. The plaintiff claims that the trial court improperly: (1) admitted into evidence portions of a certain deposition; and (2) determined that the plaintiff had not established taxpayer standing. In addition, the plaintiff claims that the trial court, O’Neill, J., improperly dismissed the action as to two of the original plaintiffs, Joyce R. Senkbeil and Adele Katkauskas. We affirm the substance of the judgment of the trial court, but modify it as to its form.

This is the second time that we have considered this case. See Sadloski v. Manchester, 228 Conn. 79, 634 A.2d 888 (1993). Both appeals arise out of a complaint filed in 1988, in which the plaintiff claimed that the town’s tax assessment agreement with the partnership was invalid. At trial, after the plaintiff had presented her evidence and rested, the defendants moved for a judgment of dismissal pursuant to Practice Book § 302, claiming that the plaintiff had failed to make out a prima facie case. The trial court, Aurigemma, J., granted the motion, and rendered judgment dismissing the plaintiffs action for failure to make out a prima facie case. Assuming the plaintiff had established standing, the court held that she had failed to make out a prima facie case on the invalidity of the tax assessment agreement. Sadloski v. Manchester, supra, 82.

Only the plaintiff; see footnote 1; appealed from that judgment to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 4023. Without reaching the merits of the plaintiffs appeal, we determined that “[t]he trial court in this case should not have considered the merits of the plaintiffs case without having first made a finding about whether she had standing and, consequently, whether the court had subject matter jurisdiction.” Sadloski v. Manchester, supra, 228 Conn. 84. Because the record was insufficient to determine whether the plaintiff had proved standing to raise her claims, we remanded the case to the trial court for further proceedings to resolve that issue. Id., 85.

On remand, the defendants again moved for judgment, claiming that the plaintiff had not proven standing and, in the alternative, that even if the court found that the plaintiff had proven standing, she had failed to make out a prima facie case with regard to her substantive claims. The trial court concluded that the plaintiff had failed to establish her taxpayer standing because she had produced no evidence that her taxes would increase as a result of the agreement between the town and the partnership. The court rendered judgment for the defendants, and this appeal followed.

The relevant facts are undisputed. The subject of the underlying action is an agreement between the town and the partnership entered into in February, 1988. The agreement concerns a 380 acre site, 115 acres of which, at the time of the agreement, were owned and to be developed by the partnership. Under the agreement, the partnership was obligated to construct and install traffic, water and sewer improvements that would serve the entire site, at an estimated cost of $15 million. Additionally, the partnership agreed to dedicate to the town, in fee simple, any real property owned by the partnership upon or under which the improvements would be constructed or installed. Pursuant to the agreement, the assessment of the 115 acre parcel was fixed on the town tax list at $7 million for a period no longer than seven years. Furthermore, the trial court found that, without the construction of the mall and the improvements on the 115 acre parcel, the tax assessment on that parcel was $309,650.

At trial, the plaintiff testified that she believed that her local taxes had increased as a result of the agreement. This opinion was based on her assumption that “when one large subsidized grant is allowed . . . the rest of the taxpayers will all have to pick up the portion that isn’t being paid by them.” She also presented Richard D. Pomp, a professor of tax law at the University of Connecticut School of Law, who testified that “if the agreement were declared invalid, all other things being equal, the town of Manchester would receive a maximum increase in property tax revenue of $9.5 million.”

The trial court found, however, that the plaintiff had not proven that her taxes would increase as a result of the agreement. In this connection, the court also found that “the assessed value of the property in question before the execution of the Agreement was tens of millions of dollars less than that value after the execution of the Agreement.”

I

We first consider the plaintiffs claim that the trial court improperly granted the defendants’ motion to dismiss as to Senkbeil and Katkauskas. The plaintiff claims that Senkbeil and Katkauskas have standing based on certain purported environmental impacts of the development in question. We decline to address this claim because the plaintiff has no standing to assert the rights of Senkbeil and Katkauskas, and they have never appealed the dismissal.

It is clear from Sadloski v. Manchester, supra, 228 Conn. 81 n.4, that Senkbeil and Katkauskas did not appeal at that stage of the proceedings. It is also clear from the record in this appeal that Senkbeil and Katkauskas are not appellants. The plaintiffs appeal form names only herself as the plaintiff by whom the appeal is being filed. The plaintiffs docketing statement names only herself as the plaintiff-appellant, and describes Senkbeil and Katkauskas as former plaintiffs who may have a legal interest in the cause on appeal. Finally, the plaintiffs brief names only herself as the appellant.

Plaintiffs are not fungible, even if they are represented by the same attorney and have similar interests. The general rule is that one party has no standing to raise another’s rights. See State v. Williams, 206 Conn. 203, 207, 536 A.2d 583 (1988); Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 78, 609 A.2d 1057 (1992). The plaintiff cannot assert the appellate rights of parties who have never done so themselves.

II

The plaintiff next claims that the trial court improperly admitted into evidence a portion of the deposition of Boyce Spinelli, the director of finance for the town, which she claims was hearsay. We disagree.

After the plaintiff had presented her final witness, she offered into evidence portions of Spinelli’s deposition pursuant to Practice Book § 248 (1) (c). The court overruled the defendants’ objection, and admitted the offered portion of the deposition into evidence. The court stated that, pursuant to Practice Book § 248 (1) (e), the defendants could “put in those portions [of the deposition] necessary to present a fair picture of the testimony.” In response, the defendants offered the complete deposition, which the court allowed “for the sake of speeding up the proceedings.” The plaintiff objected to the entire deposition being admitted as a plaintiff’s exhibit because she had not offered it. The court agreed, and marked it as a defendants’ exhibit.

Section 248 (1) (e) is an expression of the general evidentiary principle that, within the discretion of the trial court, evidence must be put in its proper context to the extent necessary to remove any unfair prejudice, but beyond this, a party should not be compelled to include inadmissible or prejudicial evidence in her offer. See Somers v. LeVasseur, 230 Conn. 560, 565-66, 645 A.2d 993 (1994); State v. Graham, 200 Conn. 9, 13-14, 509 A.2d 493 (1986); Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 141, 491 A.2d 389 (1985); State v. Glenn, 194 Conn. 483, 498-99, 481 A.2d 741 (1984); Glucksman v. Walters, 38 Conn. App. 140, 151-52, 659 A.2d 1217 (1995); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.2.3.

Thus, the issue is whether the balance of Spinelli’s deposition comes fairly within this principle. In this connection, the plaintiff has failed to point to any particular portion of the exhibit that she claims went beyond the scope of this principle. As the appellant, the plaintiff has the burden of establishing an erroneous evidentiary ruling by the trial court. Gateway Co. v. DiNoia, 232 Conn. 223, 239, 654 A.2d 342 (1995); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The plaintiff asserts that the trial court improperly admitted into evidence the additional portion of Spinelli’s deposition because it was hearsay, but she fails to address the actual basis for its admissibility. Thus, because she has failed to meet this burden, we have no reason to reject the trial court’s ruling.

Even if the court’s ruling were held improper, however, the plaintiff has failed to show any resulting harm. “ ‘It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.’ State v. Vitale, [supra, 197 Conn. 403], Accordingly, we must determine whether [an] improper evidentiary ruling is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986).” Gateway Co. v. DiNoia, supra, 232 Conn. 239.

The plaintiff claims harm “[t]o the extent the trial court relied on this deposition testimony ... in reaching its decision.” As the defendants point out, the trial court did not rely on the Spinelli deposition in its decision dismissing the plaintiffs action for lack of standing. In fact, the court’s decision was based on an absence of evidence offered by the plaintiff, which belies the claim that an allegedly erroneous ruling in which additional evidence was admitted could somehow have harmed the plaintiff. Therefore, even if the court had ignored Practice Book § 248 (1) (e) and refused to admit the entire Spinelli deposition, it nevertheless would have ruled adversely to the plaintiff on the issue of standing.

Ill

The final and dispositive issue on appeal is whether the trial court properly determined that the plaintiff had failed to prove injury necessary to establish her standing as a taxpayer. The plaintiff argues that she proved injury in the form of a loss in tax revenue to the town resulting from the tax abatement provided by the town to the partnership.

Essentially, the plaintiff contends that the town’s abatement of $9.5 million in tax revenue owed by the partnership is a pecuniary harm to the taxpayers because, by necessary implication, it must be compensated for by the rest of the taxpayers, including the plaintiff, in the form of a tax increase. We are not persuaded.

“The plaintiffs status as a taxpayer does not automatically give her standing to challenge alleged improprieties in the conduct of the defendant town. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549, 427 A.2d 822 (1980); Bell v. Planning & Zoning Commission, 174 Conn. 493, 497-98, 391 A.2d 154 (1978); Belford v. New Haven, 170 Conn. 46, 52-53, 364 A.2d 194 (1975) .... The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause [d her] to suffer some pecuniary or other great injury. . . . Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra [549]; Belford v. New Haven, supra, 53; Atwood v. Regional School District No. 15, 169 Conn. 613, 617, 363 A.2d 1038 (1975); Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953) . . . . It is not enough for the plaintiff to show that her tax dollars have contributed to the challenged project; Bell v. Planning & Zoning Commission, supra, 498 . . . the plaintiff must prove that the project has directly or indirectly increased her taxes; Atwood v. Regional School District No. 15, supra, 617; or, in some other fashion, caused her irreparable injury in her capacity as a taxpayer. Bassett v. Desmond, supra [430]; Cassidy v. Waterbury, 130 Conn. 237, 245, 33 A.2d 142 (1943).” (Citations omitted; internal quotation marks omitted.) Sadloski v. Manchester, supra, 228 Conn. 83.

The plaintiffs argument is based on the premise that, in evaluating her taxpayer standing claim, we must ignore the net economic consequences of the agreement and of the development of which it is an integral part, and focus only on the abatement clause. Relying on that underlying premise, the plaintiff presents a simple syllogism: (1) the tax abatement clause reduces the partnership’s taxes vis-a-vis what its taxes would have been without the abatement clause; (2) therefore, the tax revenue to the town is less than what it would otherwise have been without the abatement clause; and (3) therefore, the plaintiffs taxes must be higher than what they would otherwise have been without the abatement clause.

Neither our taxpayer standing cases nor common sense requires such tunnel vision. In the cases in which we have found standing on the basis of a taxpayer’s claim that his taxes would increase, we have never endorsed such a bifurcation. The alleged injury to the taxpayer has generally been demonstrated by evidence that the municipality has either directly increased taxes or appropriated moneys from local funds. See, e.g., Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 15, 553 A.2d 1126 (1989) (direct imposition of sewer service charges); Atwood v. Regional School District No. 15, supra, 169 Conn. 617 (appropriation of $2.5 million for purchase of land); Higgins v. Ambrogio, 19 Conn. App. 581, 583-84, 562 A.2d 1154 (1989) (appropriation of $22,468.80 to pay for police chiefs accrued benefits). We have also permitted a taxpayer to establish standing by implication, however, when the municipality removed a property from the tax fist without any offsetting increase, thereby necessarily decreasing tax revenue. American-Republican, Inc. v. Waterbury, 183 Conn. 523, 526-28, 441 A.2d 23 (1981).

Since standing is a practical concept; Sadloski v. Manchester, supra, 228 Conn. 84; common sense suggests that, when a particular agreement is part of an overall plan of development that will increase rather than decrease the economic benefits to the town with respect to a particular parcel, those increased benefits should be factored in as well. It is self-evident to us that a $9.5 million tax benefit to the partnership was an integral part of the development. To the extent that the plaintiff claims nonetheless that there was no evidence that the tax abatement clause was a precondition of the partnership’s going forward with the development, she has the burden of proving this fact because a plaintiff has the burden of proving standing. American-Republican, Inc. v. Waterbury, supra, 183 Conn. 526. We conclude, therefore, that in this case the relevant comparison for purposes of inferring probable taxpayer injury is between the net economic benefit to the town with the development project and the tax revenue of the town without the project.

The plaintiff contends that our holding in American-Republican, Inc. v. Waterbury, supra, 183 Conn. 523, is dispositive in her favor on the issue of standing. She claims that in American-Republican, Inc., we created a per se rule that whenever a town provides a tax abatement, the taxpayers of that town have standing to challenge the abatement. We disagree.

In American-Republican, Inc., taxpayers of Waterbury challenged the city’s decision to purchase private land for the purpose of constructing public housing for the elderly. The trial court found that this action would result in a loss in tax revenue because it would remove the property from the tax list altogether, as well as excuse from payment three-quarters of the taxes owed by the prior private owner. Id., 527. Because there was no evidence that the negative effects on tax revenue would be offset by any corresponding tax increase, the trial court properly assumed that there would be a pecuniary harm to the taxpayers. We affirmed the judgment of the trial court and held that the taxpayers could prove standing based on the inference that a net loss in tax revenue would result in “[a] colorable claim of a pecuniary loss” to the taxpayers. Id., 527.

We did not, in American-Republican, Inc., create a per se rule conferring standing on all taxpayers whenever a town provides a tax abatement. In that case, the trial court found that the city’s actions would cause an actual loss of tax revenue. In light of that finding, we held that those taxpayers were entitled to the logical inference that a net loss in their tax revenue would probably result in an increase in individual taxes. Id., 526-27.

The facts in this case, however, do not compel the same inference. In the present case, the trial court did not find that the agreement would result in a net loss of tax revenue. In fact, the record shows that the agreement will provide an overall net benefit to the town, even after a $9.5 million tax abatement, due to the construction of $15 million in improvements, as well as an increase in the assessment of land and buildings on the 115 acre parcel from $309,650 to $7 million.

Finally, we address one matter that the parties have not addressed, namely, the form of the judgment. The trial court rendered judgment for the defendants. This form of judgment suggests a determination on the merits of the case. Because in the absence of standing the court lacks subject matter jurisdiction to determine the merits of the case, however, the correct form of judgment is to dismiss the action. The judgment must, therefore, be corrected as to form.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the action.

In this opinion the other justices concurred.

       The original plaintiffs were Elizabeth Sadloski, Virginia Celinski, Harvey Steeves, Joyce R. Senkbeil and Adele Katkauskas, all of whom identified themselves as residents, voters and taxpayers of the town of Manchester. Prior to the first, appeal to this court, in this case, the trial court, O’Neill, J., dismissed the actions as to all of the plaintiffs except Celinski for lack of standing, and none of the other plaintiffs appealed from that judgment of dismissal. Sadloski v. Manchester, 228 Conn. 79, 81 n.4, 634 A.2d 888 (1993). We refer herein to Celinski as the plaintiff. The plaintiff does not assert any basis for standing other than taxpayer standing.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The plaintiff also claims that the trial court exceeded the scope of our remand in an earlier incarnation of this appeal; Sadloski v. Manchester, 228 Conn. 79, 634 A.2d 888 (1993); that precipitated the current appeal. Because we conclude that, upon that remand, the trial court properly concluded that the plaintiff had not established taxpayer standing, and because that determination was the focus of that remand, we need not address this additional claim.

       Specifically, the plaintiff alleged that the agreement: (1) violates chapter 203 of the General Statutes, particularly General Statutes § 12-65b, and exceeds the town's power to assess taxes under those provisions and under § 5-23 of the town charter; (2) violates the equal protection clause of the fourteenth amendment to the United States constitution; (3) is an expenditure of municipal funds for an improper purpose; (4) violates article first, § 1, of the Connecticut constitution; and (5) constitutes an abuse of discretion, power and the public trust.

       Practice Book § 302 provides in relevant part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .”

       The defendants claimed that: (1) the agreement did not violate § 12-65b; (2) the agreement did not violate the state or federal constitution; and (3) the plaintiff did not have standing to bring these claims.

       The trial court also reasserted, by incorporation by reference, its earlier conclusion that the plaintiff had failed to make out a prima face case with regard to her substantive claims. The plaintiff challenges this conclusion as beyond the scope of the remand in Sadloski v. Manchester, supra, 228 Conn. 85. We need not, however, address this claim. See footnote 3.

       At the time of the agreement, the partnership planned to construct a shopping mall, namely the Pavilion at Buckland Hills, on sixty-four acres, and to complete additional commercial and other development on the remaining fifty-one acres. The mall and the other development have since been built.

       This fixed assessment provided a tax abatement to the partnership, from which the maximum benefit available was $9.5 million. If the partnership were to achieve this maximum benefit before the end of the seven year period, the fixed assessment would terminate.

       The fact that Senkbeil and Katkauskas may have previously filed a notice of intent to appeal the dismissal, as the plaintiff suggests in her reply brief, does not change this analysis. A notice of intent to appeal is not an appeal.

       Practice Book § 248 (1) (c) provides: “The deposition of a party or of anyone who at the time of the taking of the deposition was an officer, director, or managing agent or employee or a person designated under Sec. 244 (g) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.”

       Practice Book § 248 (1) (e) provides: “If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.”

       The evidence on which the trial court relied in its decision included testimony from the plaintiff and her expert, the terms of the agreement, and the assessed value of the 115 acre parcel before and after the agreement, all of which would have been available even if the court had ruled in favor of the plaintiff on this evidentiary issue.
      The only evidence on which the trial court relied that was not part of the plaintiffs case-in-chief was the difference in the assessed value of the 115 acre parcel before and after the agreement. This information, however, was contained in the affidavit of Robert B. Weiss, the general manager for the town, which was properly submitted by the defendants with their motion to dismiss pursuant to Practice Book § 143. Section 143 provides in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . [and] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. . . .”

       The plaintiff concedes that there is no evidence that the development project caused her taxes to increase.

       Because in this case the economic benefit to the town as a result of the agreement consisted of both the $15 million in improvements and the increased taxes on the parcel, we need not decide whether such improvements or such increased taxes, alone, would suffice to undermine taxpayer standing to a landowner who challenges the validity of a tax abatement clause like the clause at issue in this case.


author: CALLAHAN, J.

text:
    HUD/BARBOUR-WAVERLY v. LENORA WILSON
    (15177)
    Peters, C. J., and Callahan, Borden, Norcott and Palmer, Js.

      Argued November 1
    decision released December 26, 1995

      Carmen Reyes Neale, with whom was David, A. Pels, for the appellant (defendant).

      Jeffrey A. McChristian, for the appellee (plaintiff).
   CALLAHAN, J.

The sole issue in this certified appeal is whether, in an appeal from a judgment of possession in a summary process eviction proceeding, the failure of the defendant to comply with the five day time limit specified by General Statutes § 47a-35 deprived the Appellate Court of subject matter jurisdiction. The plaintiff, HUD/Barbour-Waverly, is the owner and operator of Chappelle Gardens, an apartment complex located at 108 Waverly Street, Hartford, in which the defendant, Lenora Wilson, formerly resided.

On November 24,1992, the plaintiff, pursuant to General Statutes § 47a-15, sent the defendant notice of a violation of her lease agreement. Having failed to correct the alleged violation, on December 29, 1992, the defendant was served, pursuant to General Statutes § 47a-23, with a notice to quit possession of her leased premises on or before January 4, 1993. The defendant did not vacate the premises and, on January 5, 1993, the plaintiff brought a summary process action under General Statutes § 47a-23a seeking to evict the defendant from her apartment on the basis of her alleged violation of the rental agreement between the parties. After a trial, the trial court rendered a judgment of possession in favor of the plaintiff on August 5, 1993. Within the five day period allowed by § 47a-35 for an aggrieved party in a summary process action to file an appeal, the defendant moved the trial court for an extension of time to do so pursuant to Practice Book § 4040. That motion was granted by the trial court on August 16,1993, although neither the defendant’s motion for an extension of time nor the trial court’s order granting the defendant’s motion specified the length of time for which the extension was sought or granted.

Subsequently, on August 30, 1993, the defendant appealed to the Appellate Court, nineteen days after the expiration of the appeal period set forth in § 47a-35. The Appellate Court ordered the parties to file supplemental briefs on the issue of whether the defendant’s appeal should be dismissed for lack of subject matter jurisdiction because the appeal had not been timely filed. After reviewing the briefs and hearing oral argument on the jurisdictional issue, the Appellate Court dismissed the appeal. We affirm that judgment of dismissal.

In Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993), we held that the issue of whether a statutory time limitation for the filing of an appeal implicates appellate subject matter jurisdiction “devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal? ‘We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987). . . . Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).’ ” Id., 764; see Frillici v. Westport, 231 Conn. 418, 431-32, 650 A.2d 557 (1994). The issue presented, therefore, is whether the legislature intended to make the five day time limitation set forth in § 47a-35 a jurisdictional prerequisite to an appeal from a housing court ruling in a summary process eviction proceeding. We conclude that it did.

As with any issue of statutory interpretation, our initial guide is the language of the statute itself. Frillici v. Westport, supra, 231 Conn. 430; West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994); Stitzer v. Rinaldi’s Restaurant, 211 Conn. 116, 118, 557 A.2d 1256 (1989); Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985). In Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 762, we concluded that a time limitation expressed in language similar to the language of § 47a-35 was jurisdictional. General Statutes § 52-2781 (b), the statute at issue in Ambroise, provides: “Wo such appeal [from an order granting or denying a prejudgment remedy] shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.” (Emphasis added.) Section 47a-35, the statute presently at issue, allows for a five day stay of execution of a summary process judgment and then clearly provides that “[a]n appeal shall not be taken except within such period.” (Emphasis added.) The legislature is the branch of government empowered to bestow subject matter jurisdiction upon the courts. See Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). If its language in drafting and enacting a statute is clear and unambiguous, there is no room for alteration of the legislative decision by the judicial branch through Practice Book provision or otherwise. See Ambroise v. William Raveis Real Estate, Inc., supra, 763. As we stated in Ambroise, “[t]hat language means what it says.” Id., 765. “A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” (Internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992) (habeas statute that provides that “[n]o appeal . . . may be taken” except within statutorily prescribed period gives habeas court no discretion to hear untimely appeals; id., 256-57). The absolute nature of the legislative pronouncement regarding the ability to appeal a summary process judgment strongly suggests that compliance with its mandate is a necessary prerequisite to an appellate court’s subject matter jurisdiction.

In addition, our conclusion that the requirement is jurisdictional is supported by two of the other Ambroise factors — the statute’s relationship to the common law and the legislative policy that triggered its enactment. In Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766, we relied on the fact that “[t]he right to a prejudgment remedy of attachment is purely statutory” in order to support our conclusion that the seven day time limitation of § 52-2781 (b) is to be strictly construed. Our inquiry in Ambroise into the right of attachment at common law arose from “the customary presumption in favor of retaining common law standards . . . .” Dart & Bogue Co. v. Slosberg, supra, 202 Conn. 572. In Ambroise, we pointed out that although attachment had common law antecedents, the statutory right to obtain an attachment is “in derogation of both common right and common law” and is therefore “to be strictly interpreted and pursued.” (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., supra, 766 n.10. We previously have held that summary process eviction proceedings are similarly in derogation of common law; Prevedini v. Mobil Oil Corp., 164 Conn. 287, 292, 320 A.2d 797 (1973); and therefore that the summary process statutes must be strictly interpreted.

The legislative policy that the statute was designed to implement also supports our conclusion that the statutory language that requires the filing of an appeal within the statutory five day time limit is to be strictly construed and is jurisdictional. We have previously recognized that “[t]he purpose of summary process proceedings . . . is to permit the landlord to recover possession on termination of a lease; Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 [1959]; without suffering the delay, loss and expense to which he may be subjected under a common-law action. Housing Authority v. Alprovis, 19 Conn. Sup. 37, 39, 109 A.2d 884 [1954], The process is intended to be summary and is designed to provide an expeditious remedy to the landlord seeking possession. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 154, 176 A.2d 574 [1961 ]; Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 530, 41 A.2d 109 [1945].” Prevedini v. Mobil Oil Corp., supra, 164 Conn. 292-93. A holding that the five day time period is discretionary and therefore can be waived would undermine the clear legislative policy favoring prompt resolution of disputes between landlords and tenants.

In light of the plain language of § 47a-35, the fact that the summary process statutes are in derogation of common law and the legislative policy in favor of the swift resolution of disputes between landlords and tenants regarding rights of possession, we conclude that an appeal pursuant to § 47a-35 must be brought within five days of the rendering of a summary process judgment.

The defendant argues for a variety of reasons that the five day time limit does not allow indigent persons sufficient time within which to file an appeal. Without passing on the merits of the defendant’s contention, we note that “this court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will.” (Internal quotation marks omitted.) Gonsalves v. West Haven, 232 Conn. 17, 26, 653 A.2d 156 (1995). The defendant’s concerns are more appropriately addressed to the legislature.

The judgment is affirmed.

In this opinion the other justices concurred.

       We granted the defendant’s petition for certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly dismiss the defendant's appeal for lack of subject matter jurisdiction?” HUD/Barbour-Waverly v. Wilson, 232 Conn. 905, 653 A.2d 193 (1995).

       After the trial court rendered judgment, the defendant vacated the premises at 108 Waverly Street. The issue before the court is not moot, however, in light of the potentially prejudicial collateral consequences that accompany this judgment of possession. Housing Authority v. Lamothe, 225 Conn. 757, 762-66, 627 A.2d 367 (1993).

       General Statutes § 47a-15 provides: “Noncompliance by tenant. Remedy of breach by tenant. Landlord’s remedies. Prior to the commencement of a summary process action, except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent, on conduct by the tenant which constitutes a serious nuisance or on a violation of subsection (h) of section 47a-11, if there is a material noncompliance with section 47a-11 which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than thirty days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within twenty-one days the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such twenty-one-day period, the rental agreement shall not terminate; or (2) if substantially the same act or omission for which notice was given recurs within six months, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive. For the purposes of this section, ‘serious nuisance’ means (A) inflicting bodily harm upon another tenant or the landlord or threatening to inflict such harm with the present ability to effect the harm and under circumstances which would lead a reasonable person to believe that such threat will be carried out, (B) substantial and wilful destruction of part of the dwelling unit or premises, (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord, or (D) using the premises for prostitution or the illegal sale of drugs. If the landlord elects to evict based upon an allegation, pursuant to subsection (g) of section 47a-11, that the tenant failed to require other persons on the premises with his consent to conduct themselves in a manner that will not constitute a serious nuisance, and the tenant claims to have had no knowledge of such conduct, then, if the landlord establishes that the premises have been used for the illegal sale of drugs, the burden shall be on the tenant to show that he had no knowledge of the creation of the serious nuisance.”

       Specifically, the plaintiff claimed that there was an unreasonable amount of noise emanating from the defendant’s apartment at all hours of the night.

       General Statutes § 47a-23a provides in relevant part: “Complaint, (a) If, at, the expiration of the five days [after receiving a notice to quit pursuant to General Statutes § 47a-23] the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the superior court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. If the plaintiff has properly issued a notice to quit possession to an occupant by alias, if permitted to do so by section 47a-23, and has no further identifying information at the time of service of the writ, summons and complaint, such writ, summons and complaint may also name and serve such occupant or occupants as defendants. In any case in which service is to be made upon an occupant or occupants identified by alias, the complaint shall contain an allegation that the plaintiff does not know the name of such occupant or occupants. Such complaint shall be returnable to the superior court. Such complaint may be made returnable six days, inclusive, after service upon the defendant and shall be returned to court at least three days before the return day. Such complaint may be served on any day of the week. Notwithstanding the provisions of section 52-185 no recognizance shall be required of a complainant appearing pro se. ”

       General Statutes § 47a-35 provides: “Stay of execution. Time to appeal. Execution shall be stayed for five days from the date judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days, except that in an action for nonpayment of rent, if within five days of the date judgment is rendered the defendant deposits with the clerk of the court the full arrearage then the defendant may apply for a stay of execution in accordance with section 47a-37. Notwithstanding the provisions of said section no such stay may exceed three months in the aggregate. The clerk shall distribute such arrearage to the landlord in accordance with an order of the court. An appeal shall not be taken except within such period. If an appeal is taken within such period, execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken solely for the purpose of delay or unless the defendant fails to give bond, as provided in section 47a-35a. If execution has not been stayed, as provided in this section, execution may then issue, except as otherwise provided in sections 47a-36 to 47a-41, inclusive.”

       Practice Book § 4040 provides: “Extension of Time
      “(a) If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal, except as may be otherwise provided in these rules. In no event shall the trial judge extend the time for filing the appeal to a date which is more than twenty days from the expiration date of the original appeal period. Where a motion for extension of the period of time within which to appeal has been filed at least ten days before expiration of the time limit sought to be extended, the party seeking to appeal shall have no less than ten days from issuance of notice of denial of the motion to file the appeal.
      “For extensions of time to file a cross appeal, see Sec. 4005; to file a petition for certification to the supreme court, see Sec. 4132; to file a petition for certification to the appellate court, see Sec. 4142.4.
      “(b) If an appeal has been filed, the time provided for taking any step necessary to prosecute or defend the appeal may be extended by the court in which the appeal is pending.
      “(c) (1) Extensions shall be granted only upon a written motion filed with the clerk of the trial court, in the case of a preappeal motion, and with the appellate clerk, in the case of a postappeal motion. A motion should set forth the reason for the requested extension, and shall be accompanied by a certification that a copy thereof has been mailed to each of the movant’s clients. The moving party shall also include a statement as to whether the other parties consent or object to the motion. A motion for extension of time to file a brief must specify the current status of the brief or preparations therefor, indicate the estimated date of completion, and, in criminal cases, state whether the defendant is incarcerated as a result of the proceeding in which the appeal has been taken.

        “(2) The appellate clerk is authorized to grant or deny motions for extension of time promptly upon their filing. Motions for extension of time to complete any step necessary to prosecute or defend the appeal, to move for or oppose a motion for reargument, or to petition for or oppose a petition for certification will not be granted except for extraordinary cause. Claims of extraordinary cause shall be raised promptly after the cause arises.
      “(3) An opposing party who objects to a motion for extension of time filed pursuant to (b) above shall file an objection with reasons in support thereof with the appellate clerk within five days from the filing of the motion.
      “(4) A motion for extension of time shall be filed at least ten days before the expiration of the time limit sought to be extended or, if the cause for such extension arises during the ten day period, as soon as reasonably possible after such cause has arisen. No motion under this rule shall be granted unless it is filed before the lime limit sought to be extended by such motion has expired.
      “(5) Any action by the trial court judge pursuant to (a) above or the appellate clerk pursuant to (c) (2) above is reviewable pursuant to Sec. 4053.”

       The iaarthAmbroise factor, the legislative history, provides no indication as to the legislature’s intent regarding the jurisdictional nature of the time limitation.