author: Peters, C. J. Berdon, J.,

text:
    Mary Jane Perry v. Jon Perry
    (14404)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued May 5
    decision released June 29, 1992

      Sandra P. Lax, for the appellant (defendant).

      Joseph X. Dumond, Jr., assistant attorney general, with whom were Donald M. Longley, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Wilbur Ward Dinegar, assistant attorney general, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is whether the Family Support Magistrate’s Act, General Statutes §§ 46b-231 through 46b-235, unconstitutionally infringes the powers of the judiciary insofar as the act gives family support magistrates the power to incarcerate persons found to be in contempt of orders for child and spousal support. A family support magistrate found the defendant, Jon Perry, in arrearage in his alimony and support obligations to his former wife, the plaintiff, Mary Jane Perry, and ordered the defendant incarcerated until he paid a purge amount of $7600. After a week’s incarceration, some further payments and further promises to pay, the defendant was released. After his release, the defendant appealed to the Superior Court, which affirmed the decision of the magistrate. The defendant took a further appeal to the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

For the purposes of this appeal, it is undisputed that the defendant has an obligation to pay $500 weekly in unallocated alimony and child support to the plaintiff as a result of a 1987 decree dissolving their marriage. In September, 1990, the state of Connecticut, on behalf of the plaintiff, applied for a contempt order because of an alleged arrearage of $8700. After various intervening proceedings, in which the defendant made some payments in an attempt to reduce his arrearage and unsuccessfully moved to modify his financial obligation, the family support magistrate heard the motion for contempt on May 3,1991. On May 7,1991, the magistrate granted the motion, found an arrearage of $17,800 and ordered the defendant to pay $10,000 towards the arrearage on or before June 13, 1991.

On June 13,1991, finding that the defendant had paid only $2400, the family support magistrate found him in contempt of the May 7 order. The magistrate ordered his incarceration and required that the defendant pay $7600 in order to purge himself of the contempt. After the defendant had been incarcerated for one week, the magistrate held a new hearing that led to the release of the defendant upon his payment of another $2600 and his promise to pay, by July 5, 1991, an additional $3000 toward the arrearage and $1000 toward current support.

The defendant then appealed to the Superior Court, challenging the procedural and substantive bases for the decision reached by the family support magistrate and the constitutionality of the magistrate’s authority to enforce an order of contempt by incarceration. The trial court rejected all of these contentions and affirmed the decision of the family support magistrate.

The present appeal raises the following issues concerning the validity of the defendant’s incarceration for contempt. As a preliminary matter, the state urges us not to review the defendant’s claims on their merits on two grounds, mootness and failure to take a timely appeal. The defendant urges us to overturn the contempt order on the nonconstitutional ground that the family support magistrate did not make a sufficient finding of the defendant’s ability to pay the amount ordered. Finally, the defendant contends that the family support magistrate’s exercise of his statutory power to hold the defendant in contempt violates two distinct constitutional principles, separation of powers and due process. We conclude that the defendant’s appeal is properly before this court as a procedural matter but that it is to be rejected as a substantive matter.

I

The state suggests two procedural impediments to our plenary consideration of the constitutional issues raised by the defendant. The state maintains that issues concerning the validity of the defendant’s incarceration: (1) have become moot because the defendant was released from incarceration before his appeal to the Superior Court and is not currently subject to a contempt order; and (2) should have been raised by a timely appeal from the family support magistrate’s order of May 7, 1991, finding the defendant in contempt. We are unpersuaded.

A

The state claims that this court lacks jurisdiction to consider the merits of the defendant’s appeal because no contempt proceedings are currently pending against the defendant, who is no longer incarcerated. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). We have also held, however, that “where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, it may be ‘capable of repetition, yet evading review.’ ” Id., 572. “In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also ‘(1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future.’ Shays v. Local Grievance Committee, supra, 572-73 . . . Moshier v. Goodnow, 217 Conn. 303, 307, 586 A.2d 557 (1991).

In this case, all of these mitigating factors are present. The public importance of a question raising the constitutionality of a statute cannot be doubted. The state’s ongoing program to monitor and enforce support and alimony orders will be affected by our decision on the validity of a family support magistrate’s statutory authority over contempt orders. Finally, this defendant can plausibly maintain that there is a distinct likelihood that in the future he may again find himself involved in a controversy concerning his support obligations. This appeal, therefore, is not moot.

B

The state maintains, in the alternative, that the defendant’s constitutional claims are not properly before us because the defendant could have avoided the risk of incarceration, and hence the alleged invasion of his constitutional rights, by filing a timely appeal from the family support magistrate’s May 7 finding of contempt. We have repeatedly held that anyone who challenges the constitutionality of a statute must prove that the statute has infringed a constitutionally protected right so as to cause him immediate harm, or an immediate threat of harm, in the circumstances of his particular case. DiBerardino v. DiBerardino, 213 Conn. 373, 383, 568 A.2d 431 (1990), and cases therein cited.

The defendant did not, however, have the opportunity to seek an earlier judicial review of the contempt order. General Statutes § 46b-231 (n) (1) permits an appeal to the Superior Court only when “[a] person ... is aggrieved by a final decision of a family support magistrate . . . .” The order holding the defendant in contempt was not a final judgment. “This is so because no sanction or punishment had yet been imposed and, therefore, there had been no final judgment disposing of the matter. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see Barbato v. J. & M. Corporation, 194 Conn. 245, 247-48, 478 A.2d 1020 (1984). No final judgment existed in this contempt proceeding until the court decided . . . not to change its earlier ruling but proceeded to final adjudication and imposed the sanction . . . "In re Dodson, 214 Conn. 344, 361, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). The defendant could not, therefore, have taken an appeal to the Superior Court in advance of his incarceration.

II

Although the defendant’s appeal is properly here, we will not reach the constitutional issues that he raises if there are nonconstitutional grounds upon which to overturn the judgment of the trial court affirming the family support magistrate’s order of incarceration for contempt. We must first consider, therefore, the merits of the defendant’s nonconstitutional claim that the magistrate should not have incarcerated him without making a specific finding, on the record, that he had a present ability to pay the $10,000 as ordered.

In the contempt proceedings before the family support magistrate, the magistrate acknowledged that inability to pay an order is a defense to a charge of contempt. See Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988); Mays v. Mays, 193 Conn. 261, 264, 476 A.2d 1562 (1984); Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). These cases also hold, however, that the defendant has the burden of proof on this issue, and the magistrate expressly found that the defendant had not sustained his burden. When he issued the contempt order on May 7, 1991, the magistrate made two express findings about the defendant’s ability to pay. First, the magistrate noted that the defendant had admitted having been enriched by recent Lotto winnings in the amount of $10,000, which the defendant had chosen to disburse without regard for his economic responsibilities to his children and former spouse. Second, the magistrate found that the defendant was engaged in a viable carting and haulage business that had assets and was generating revenues. In light of these express findings, on the record, we agree with the conclusion of the trial court that the family support magistrate could reasonably have concluded that the defendant had the ability to pay the $10,000 that he was ordered to pay.

Ill

We turn then to the constitutional issues raised by the defendant’s incarceration for failure to comply with the family support magistrate’s order that he pay $10,000 toward the arrearage in his alimony and support obligations to his wife and children. The defendant maintains that the magistrate lacked constitutional authority to order his incarceration because of the constitutional principle that the exercise of judicial authority must be confined to members of the judiciary. As a corollary to this argument, the defendant maintains that his constitutional rights to due process were violated because he could not appeal the validity of his incarceration before he had lost his freedom.

A

In order to put the defendant’s constitutional claims into perspective, we must review the history of the state legislation that governs the enforcement of family support orders. That history reflects a legislative concern for the timely and effective collection of support payments arising out of child and spousal support rights under Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.

The Connecticut Family Support Magistrate’s Act, General Statutes §§ 46b-231 through 46b-235, was first enacted in 1986 in response to federal legislation providing federal funds for states that complied with federal requirements for the expeditious enforcement of child support orders in cases arising under Title IVD. See Public Acts 1986, No. 86-359; “Child Support Enforcement Amendments of 1984,” Pub. L. No. 98-378, 98 Stat. 1305 (1984), now codified in various sections of 42 U.S.C. §§ 651 through 675. The federal act conferred on the secretary of health and human services the authority to promulgate regulations that would implement the statutory mandate for expeditious enforcement of Title IV-D support orders. 42 U.S.C. § 666 (a) (2). The secretary, in turn, has defined the statutorily required “expedited processes” as “administrative or expedited judicial processes or both which increases [sic] effectiveness and meet processing times specified in paragraph (b) (2) of this section and under which the presiding officer is not a judge of the court. ” (Emphasis added.) 45 C.F.R. § 303.101 (a).

In compliance with the processes mandated by the federal act, the legislature, by the passage of § 46b-231 (d) created “the family support magistrate division of the superior court for the purpose of the impartial administration of child and spousal support.” The division is staffed by nine full time magistrates, appointed by the governor for three year terms, all of whom “must have ¡been] engaged in the practice of law for five years prior to [their] appointments] and shall be experienced in the field of family law.” General Statutes § 46b-231 (f). Neither the federal statute nor the federal regulation requires that the designated support officer be given the power to imprison for contempt. Our statute originally provided that, if a magistrate found that incarceration of an obligor for failure to pay support would be appropriate, that finding should be submitted to the Superior Court, which would give the obligor the opportunity to be heard before deciding whether or not to order incarceration. See General Statutes (Rev. to 1989) § 46b-231 (m) (6). In 1989, however, the requirement that the matter be submitted to the Superior Court was deleted. See Public Acts 1989, No. 89-360, § 11. The statute now simply provides that “[f]amily support magistrates shall enforce orders for child and spousal support ... by citing an obligor for contempt.” General Statutes § 46b-231 (m) (7).

This court has had one previous opportunity to consider the constitutionality of the Family Support Magistrate’s Act. In DiBerardino v. DiBerardino, supra, 377-78, a family support magistrate made “a finding of fact and report to the court” in accordance with the provisions of General Statutes § 46b-86 (c). We upheld the constitutionality of such a proceeding. We rejected the contention that the method of appointment of family support magistrates violated article fifth, § 2 of our state constitution, because in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 501, 508 A.2d 415 (1986), we had concluded that the appointment of attorney referees, similarly charged with the duty of finding facts and rendering a report to a judge of the Superior Court, did not conflict with this constitutional provision. DiBerardino v. DiBerardino, supra, 384. We also concluded that the duties of a family support magistrate, acting as factfinder under § 46b-231 (f), did not encroach upon the independent power of the judiciary or violate the separation of powers established in article second of our state constitution. Id.; see Seal Audio, Inc. v. Bozak, Inc., supra; Monroe v. Monroe, 177 Conn. 173, 180, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). We expressly reserved, however, the question of the constitutionality of a family support magistrate’s exercise of greater authority under General Statutes § 46b-231 (m). DiBerardino v. DiBerardino, supra, 378.

B

In this case, the defendant’s principal challenge to the constitutionality of the family support magistrate’s exercise of his statutory contempt power under General Statutes § 46b-231 (m) (7) is his contention that such authority cannot be conferred on a magistrate without encroaching on the authority of the Superior Court and impairing the constitutional mandate of separation of powers. He maintains that only judges may constitutionally exercise the power to incarcerate. We disagree.

Any party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590, 590 A.2d 447 (1991); Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991). The trial court rejected the defendant’s contention on the basis of a line of cases in which this court recognized the authority of the legislature to establish courts inferior to the Superior Court. In Szarwak v. Warden, 167 Conn. 10, 38, 355 A.2d 49 (1974), we held that “[t]he indispensible requirement, which, if observed, accompanies the apportionment of jurisdiction with no offense to the constitutional intendment is that the legislatively ordained courts be inferior to a superior court.” (Internal quotation marks omitted.) We acknowledged the legitimacy, both from a point of view of public policy and as a constitutional matter, of permitting inferior courts to screen “small causes from the court of general jurisdiction thereby preventing its dockets from becoming clogged with numerous proceedings of comparatively little importance . . . .’’Id. Citing Walkinshaw v. O’Brien, 130 Conn. 122, 135-36, 32 A.2d 547 (1943), for the proposition that “ ‘any vesting of jurisdiction in any inferior court must necessarily take something from the jurisdiction of the Superior Court,’ ” we concluded that “[t]he test determinative of the constitutionality of a statute granting jurisdiction to a lower court is . . . one of degree.” Szarwak v. Warden, supra, 39-40. Applying this balancing test, we held that the legislature had crossed the line into unconstitutionality by conferring criminal jurisdiction on the Circuit Court to impose fines of $5000 or imprisonment of five years or both. Id., 45.

The test established by Szarwak v. Warden, supra, suggests that the Family Support Magistrate’s Act does not unconstitutionally encroach upon the authority of the Superior Court. The jurisdiction conferred by that act is confined precisely to the kinds of cases that, although important to the parties, have limited jurisprudential significance for the development of the law. In addition, as the trial court noted, a litigant disappointed by the final decision of a family support magistrate has an extensive statutory right of appeal to the Superior Court.

We are not persuaded that the authority conferred upon a family support magistrate to enforce orders of contempt compels us to reach a different result. As a general matter, we note that inferior courts have the power to impose sanctions for contempt of court; we have never singled out this aspect of their authority in deciding when their jurisdiction was unconstitutionally broad.

Furthermore, we have never held that the power to imprison someone for contempt is exclusively a judicial power. The constitutionality of a statute giving nonjudicial personnel authority to imprison for contempt was confirmed by this court in In re Application of Clark, 65 Conn. 17, 31 A. 522 (1894). In that case, we upheld the authority of a grand jury, pursuant to its statutory authority, to imprison for contempt a witness who had refused to testify. After jailing the witness, the grand jurors had requested a justice of the peace to issue a mittimus confirming the order of contempt. The justice of the peace complied without putting the witness to plea or permitting him to be heard. Id., 19-20. We upheld the constitutionality of this procedure despite claims by the witness that the grand jury’s contempt order encroached on judicial authority and violated the principle of separation of powers. Id., 38.

In reaching this result, we expressly recognized the authority of the legislature to authorize the restraint of a person “where such restraint is necessary to the execution of the law and the enforcement of police regulations.” Id., 30. We noted, with approval, the power of tax collectors summarily to jail any citizen for refusal to pay his taxes. Id. We remarked that the power to jail a witness for refusal to testify had properly been conferred by the legislature on county commissioners, the board of pardons, police commissioners and coroners. Id., 33. The power to imprison a recalcitrant citizen for disobedience of a lawful command “is not distinctly a judicial power; it may be exercised by administrative as well as by judicial officers, and is in its essence, so far as it can be called distinctive of any department, distinctively an administrative power.” Id., 32. We went on to note that “[ejxecutive, legislative, and judicial powers, of necessity overlap each other, and cover many acts which are in their nature common to more than one department [of government].” Id., 38; see also In re Clayton, 59 Conn. 510, 519-20, 21 A. 1005 (1890).

We need not decide whether we would today continue to apply the principles enunciated in In re Application of Clark, supra, to the statutory conferral of contempt authority on any and all administrative agencies. Like all infringements of personal liberty, conferral of the contempt power should be closely scrutinized to ensure that proper safeguards circumscribe its exercise. The appropriate test is not, however, whether the contempt power is exclusively judicial but rather whether the legislature has conferred such power on a quasijudicial authority that commands respect because of the expertise and training of its membership. See E. Albertsworth, "Administrative Contempt Powers: A Problem in Technique,” 25 A.B.A. J. 954, 956-57 (1939). Applying that test to the contempt power conferred upon the family support magistrates in this state, we conclude that § 46b-231 (m) (7) passes constitutional muster. Not only are the family support magistrates full time appointees with prior experience as lawyers trained in family law, but they are subject to the Code of Judicial Co. luct and to the supervision of the Judicial Review Council. See General Statutes §§ 51-51g, 51-51h, 51-51Í, 51-51j and 51-51n.

The case law in other jurisdictions is not uniform. For cases consistent with In re Application of Clark, supra, see, e.g., Plunkett v. Hamilton, 136 Ga. 72, 74-78, 70 S.E. 781 (1911) (imprisonment by board of police commissioners); Dogge v. State, 21 Neb. 272, 278-80, 31 N.W. 929 (1887) (imprisonment by notary public); but see contra, e.g., Langenberg v. Decker, 131 Ind. 471, 31 N.E. 190 (1892) (imprisonment imposed by state board of tax commissioners); Wright v. Plaza Ford, 164 N.J. Super. 203, 395 A.2d 1259 (1978) (fine and imprisonment imposed by workers’ compensation division), and cases cited therein; Appalachian Power Co. v. Public Service Commission, 296 S.E.2d 887 (W. Va. 1982) (fine imposed by commission), and cases cited therein. The most closely analogous of the out-of-state precedents, as well as the most recent, is Kennedy v. Kenney Mfg. Co., 519 A.2d 585, 586 (R.I.1987), which recognized that the performance of the duties of a workers’ compensation commissioner necessitated the authority to punish for contempt. As in the case of workers’ compensation commissioners, our legislature could reasonably have concluded that family support magistrates must have contempt powers in order effectively to expedite the enforcement of support orders within their jurisdiction.

A number of other states have enacted statutes similar to ours to permit officials who are not judges to adjudicate family support matters expeditiously. Although two of these statutes have been invalidated as violating the separation of powers principle of the applicable state constitutions, those cases are not persuasive because they hold, contrary to DiBerardino v. DiBerardino, supra, that nonjudicial tribunals cannot undertake factfinding with respect to matters constitutionally reserved for the courts. See Drennen v. Drennen, 229 Neb. 204, 426 N.W.2d 252 (1988); Starcher v. Crabtree, 348 S.E.2d 293 (W. Va. 1986).

We conclude, therefore, that the contempt power conferred on family support magistrates by § 46b-231 (m) (7) does not unconstitutionally encroach upon the power of the judiciary or violate the principle of separation of powers. The defendant has also challenged the constitutional validity of his incarceration under the due process clauses of the fifth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. To the extent that this contention rests on the premise that only a judge of the Superior Court may constitutionally order incarceration for contempt, this argument is indistinguishable from the separation of powers argument that we have already rejected. To the extent that the defendant contends that he was, as a matter of due process, entitled to a stay of his incarceration upon his taking of a timely appeal, this contention must await litigation by someone in a position to raise it. Having waited to seek a stay until after his release from incarceration, the defendant in this case could not request a stay and the family support magistrate had no opportunity to examine the merits of such a request. We do not consider due process claims in a vacuum.

The judgment is affirmed.

In this opinion Callahan, Glass and Borden, Js., concurred.

Berdon, J.,

dissenting. The majority misconstrues the issue in this case. It suggests that “the defendant’s principal challenge to the constitutionality of the family support magistrate’s exercise of his statutory contempt power under General Statutes § 46b-231 (m) (7) is his contention that such authority cannot be conferred on a magistrate without encroaching on the authority of the Superior Court and impairing the constitutional mandate of separation of powers.” At issue is not encroachment of the Superior Court’s authority or the mandate of separation of powers, but rather who is constitutionally vested with the authority to hold and incarcerate for contempt—that is, which officer has the jurisdiction to deprive another individual of his or her personal liberty.

The power to punish for contempt has long been a judicial one, and that power can only be exercised by a judicial decision maker authorized by the state constitution, whether or not he or she is designated as a justice, judge or magistrate. “Only the courts can give the command which takes from the citizen his liberty and places him within prison walls, and they can only give it in accordance with the law of the land.” Langenberg v. Decker, 131 Ind. 471, 488, 31 N.E. 190 (1892) (Eliott, C. J., concurring). Here, pursuant to the provisions of § 46b-231 (m) (7), we deal with a statute that confers on family support magistrates, who are not appointed in accordance with the state constitution, the open-ended power to deprive a person of his liberty, not for days, weeks or months, but for an unspecified, unlimited period of time. Clearly, it is a judicial power to be exercised only by a constitutional judge.

The judicial powers of this state are “vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.” Conn. Const., art. V, § 1, as amended by art. XX, § 1 of the amendments, Accordingly, I do not question the authority of the legislature to enact legislation that would create a magistrate court, as a lower court, which is presided over by a magistrate who holds the power to incarcerate persons for contempt. But, in doing so, the legislature must require that the magistrates meet the mandate of article fifth, § 2, as amended—that is, the requirement that constitutional decision makers are nominated by the governor, from candidates approved by the judicial selection commission and appointed by the legislature. Simply put, once a magistrate has been given the power to deprive a person of his or her liberty under § 46b-231 (m) (7), the magistrate has become a judge within the meaning of article fifth, § 2, as amended. Currently, family support magistrates are only “appointed by the governor.” General Statutes § 46b-231 (f). They fail, therefore, to meet the requirements of a constitutional judicial decision maker because they are neither nominated from the approved list of the judicial selection commission nor appointed by the legislature.

Although I recognize that the court, in In re Application of Clark, 65 Conn. 17, 31 A. 522 (1894), held that the legislature could confer the power of contempt on a nonconstitutional decision maker, the reasoning of Clark, decided nearly one hundred years ago, has never been adopted in a subsequent case in Connecticut or any other jurisdiction. See R. Goldfarb, The Contempt Power (1964) p. 137. The court in Clark took the extreme view that “[t]he restraint of the person may be authorized by the legislature without the intervention of any court, in many cases where such restraint is necessary to the execution of the law and the enforcement of police regulations.” In re Application of Clark, supra, 30.

In Clark, as precedent to support its claim that non-constitutional decision makers have the power to deprive a person of his or her liberty, the court relied on the following disturbing examples: “The defendant in a civil action who refuses to turn out property for attachment may be committed to jail without trial. Selectmen may, without trial, take children from the custody of parents who neglect them, and bind them out to masters. General Statutes [1888 Rev.] § 2109. For certain infringements of the pauper laws they may, without trial, order an inhabitant of another State to be forcibly taken out of this State, and may expel from their town the inhabitant of another town; §§ 3292, 3293. A tax collector may, if necessary, commit to jail a citizen refusing to pay his taxes, there to remain until payment is made, or he be discharged in due course of law; § 3889. A collector who fails to collect and pay over the taxes may himself, without trial, be committed to jail, as on execution after judgment; § 3879. The moderator of any town meeting, or of any meeting of any society or other community, may order into custody any person who refuses to submit to his lawful authority, and have him forcibly removed until he shall conform to order; § 52. The instance are numerous and familiar where officers are authorized to restrain, without trial and even without process, persons who persist in the open violation of law. This power of summary compulsion to compliance with law may be committed to administrative as well as to judicial officers; and when committed to judicial officers they act solely in an administrative capacity, unless the power is exercised in the course of judicial proceedings.” Id., 30. By endorsing Clark, does the majority implicitly approve of legislation that would empower the tax commissioner to hold in contempt and to punish for failure to pay taxes, and so on? Following the express language of Clark could only lead to that result. The outrageous language in Clark, although it may have been the law in this state years ago, should not guide this court, in this century, under our state constitution. Instead, we should follow the reasoning of other jurisdictions.

The Supreme Court of Colorado held that “[t]he power to punish for contempt is a judicial power within the meaning of the Constitution. It belongs exclusively to the courts, except in cases where the Constitution confers such powers upon some other body.” People v. Swena, 88 Colo. 337, 340, 296 P. 271 (1931). Similarly, the Supreme Judicial Court of Massachusetts held that “the Legislature cannot delegate to or confer upon municipal boards or officers, that are not courts of justice, and whose proceedings are not an exercise of judicial power, the authority to imprison and punish, without right of appeal or trial by jury.” Whitcomb’s Case, 120 Mass. 118, 124 (1876).

The Supreme Court of Missouri held that the power to punish for contempt “is not a power granted by the Legislature to be held or withdrawn as the Legislature may see fit or to be farmed out to any other body. The Legislature can no more command the court to use the judicial power of punishing for contempt in order to enforce obedience to a non-judicial body than it can command the court to use its judicial function to give to the decision of a non-judicial board the character of a judgment.” State ex rel. Haughey v. Ryan, 182 Mo. 349, 356-57, 81 S.W. 435 (1904); see also Langenberg v. Decker, supra, 483 (power to punish for contempt belongs exclusively to the courts, unless state constitution expressly confers power upon other body); Wright v. Plaza Ford, 164 N. J. Super. 203, 395 A.2d 1259 (1978) (exercise of contempt power by workers’ compensation division held unconstitutional); Appalachian Power Co. v. Public Service Commission, 296 S.E.2d 887 (W. Va. 1982) (exercise of contempt power by public service commission held unconstitutional).

The power to order contempt and to deprive an individual of personal liberty, cannot be doled out among persons who have not assumed their offices through a constitutional route that ensures three levels of approval—the judicial selection commission, the governor and the legislature. Decisions in other jurisdictions recognize the need to limit the power afforded to nonjudicial figures. E. Albertsworth, “Administrative Contempt Powers: A Problem in Technique,” 25 A.B.A.J. 954, 957-58 (1939), quoted in Appalachian Power Co. v. Public Service Commission, supra, 890. “In free countries courts always have assumed jurisdiction of questions involving personal liberty, and so they must, or else free government, securing personal liberty, ceases to exist. When that great right comes in issue, the courts hear and decide, and the authority of executive or administrative officers is at end. Whatever else such officers may be empowered to do, they can not be empowered to sit in judgment upon the right of a citizen to his personal liberty.” Langenberg v. Decker, supra, 488 (Elliott, C. J., concurring).

I am not sure whether the majority realizes the implications of its decision today. First, its approval of § 46b-231 (m) (7) allows nonconstitutional decision makers to deprive individuals of their personal liberty for an indefinite time. Second, this decision opens the door to legislation that would allow for the appointment of persons with the jurisdiction of constitutional judges without undergoing merit selection and approval by the legislature. Unfortunately, not only does the majority base its conclusion upon precedent that dates back almost one hundred years, but it also returns us to the manner in which we selected our judges in those days.

I would find that portion of General Statutes § 46b-281 (m) (7) which authorizes statutory magistrates to cite a person for contempt and to incarcerate that person in “a community correctional center until he has complied with such order [of the magistrate],” to be unconstitutional.

Accordingly, I dissent.

       The defendant did not appeal two earlier decisions denying his motions for modification of his support and alimony obligation.

       The secretary did not explain why Ms regulation excluded a judge from being the officer presiding over the mandated “administrative or judicial processes.” See Department of Health and Human Services, Office of Child Support Enforcement, Child Support Enforcement Program; Implementation of Child Support Enforcement Amendments of 1984, 50 Fed. Reg. 19607,19612 (1985). It is reasonable to assume, however, that his primary concern was to ensure that the state officials charged with responsibility for expeditious enforcement of Title IV-D support orders devote their full energies to this assignment without the distraction of competing judicial responsibilities.
      45 C.F.R. § 303.101 (b) (2) provides: “Under expedited processes, actions to establish or enforce support obligations in IV-D cases must be completed from the time of successful service of process to the time of disposition within the following time frames: (i) 90 percent in 3 months; (ii) 98 percent in 6 months; and (iii) 100 percent in 12 months.”

       General Statutes § 46b-231 (m) (7) provides: “Family support magistrates shall enforce orders for child and spousal support entered by such family support magistrate and by the superior court in IV-D support cases by citing an obligor for contempt. Family support magistrates may require the obligor to furnish recognizance to the state of Connecticut in the form of a cash deposit or bond of such character and in such amount as the family support magistrate division deems proper to assure appearance at the next regular session of the family support magistrate division in the judicial district in which the matter is pending. Upon failure of the obligor to post such bond, the family support magistrate may refer the obligor to a community correctional center until he has complied with such order, provided that the obligor shall be heard at the next regular session of the family support magistrate division in the court to which he was summoned. If no regular session is held within seven days of such referral, the family support magistrate shall either cause a special session of the family support magistrate division to be convened, or the obligor shall be heard by a superior court judge in the judicial district. If the obligor fails to appear before the family support magistrate at the time and place he is ordered to appear, the family support magistrate may order the bond, if any, forfeited, and the proceeds thereof paid to the state in AFDC cases or the obligee in non-AFDC cases, as the family support magistrate may determine, and the family support magistrate may issue a capias mittimus for the arrest of the obligor, ordering him to appear before the family support magistrate. A family support magistrate may determine whether or not an obligor is in contempt of the order of the superior court or of a family support magistrate and may make such orders as are provided by law to enforce a support obligation, except that if the family support magistrate determines that incarceration of an obligor for failure to obey a support order may be indicated, the family support magistrate shall inform the obligor of his right to be represented by an attorney and his right to a court-appointed attorney to represent him if he is indigent. If the obligor claims he is indigent and desires an attorney to represent him, the family support magistrate shall conduct a hearing to determine if the obligor is indigent; and if he so finds, he will appoint an attorney to represent him.”

       Article fifth, § 2 of the Connecticut constitution, as amended, provides in relevant part: “The judges of the supreme court, of the appellate court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment.”

       Article second of the Connecticut constitution, as amended, provides in relevant part: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

       The statutory authority of the family support magistrate to “enforce orders for child and spousal support . . . by citing an obligor for contempt” is authority to find a civil and not a criminal contempt. See Dunham, v. Dunham, 217 Conn. 24, 28 n.3, 584 A.2d 445 (1991).

       We note with regret that this important constitutional issue has come to this court with briefing by the state that is singularly inadequate in its research and in its analysis.

       General Statutes § 46b-231 provides in relevant part: “(n) appeal procedure. (1) A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.
      “(2) Proceedings for such appeal shall be instituted by filing a petition and payment of a fifty-five dollar filing fee in superior court for the judicial district in which the decision of the family support magistrate was rendered not later than fourteen days after filing of the final decision with an assistant clerk assigned to the family support magistrate division or, if a rehearing is requested, not later than fourteen days after filing of the notice of the decision thereon. Such petitions shall be accompanied by a certification that copies of the petition have been served upon the IV-D agency as defined in subsection (b) of this section and all parties of record. Service upon the IV-D agency may be made by the appellant mailing a copy of the petition by certified mail to the office of the attorney general in Hartford.

        “(3) Within fourteen days after the filing of the petition, or within such further time as may be allowed by the court, the family support magistrate division shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the decision of the family support magistrate. The court may require or permit subsequent corrections or additions to the record.
      “(4) The aggrieved party shall file with his appeal a statement that no transcript is required for the purpose of determining the issues raised on appeal or a statement that he has ordered a transcript. A transcript may be filed by any party to an appeal and shall be filed within thirty days from the filing of said appeal unless the time for filing such transcript is extended by order of the superior court or the family support magistrate. Costs of preparing the transcript shall be paid by the party ordering the preparation of the transcript.
      “(5) If, before the date set for hearing, application is made to the superior court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the family support magistrate, the superior court may permit additional evidence be taken before it upon conditions determined by the court.
      “(6) The appeal shall be conducted by the superior court without a jury and shall be confined to the record and such additional evidence as the superior court has permitted to be introduced. The superior court, upon request, shall hear oral argument and receive written briefs.
      “(7) The superior court may affirm the decision of the family support magistrate or remand the case for further proceedings. The superior court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
      “(8) Any order entered by the court pursuant to an appeal under this subsection may be retroactive to the date of the original order entered by the family support magistrate.
      “(9) Upon all such appeals which are denied, costs may be taxed in favor of the prevailing party at the discretion of the superior court, but no costs shall be taxed against the state.
      “(10) In any case in which any party claims that he cannot pay the costs of an appeal or defending an appeal under this section, he shall, within the time permitted for filing the appeal, or the time permitted for filing of a transcript of testimony if preparation of such transcript is required, file with the clerk of the superior court to which the appeal is to be taken an application for waiver of payment of such fees, costs and necessary expenses. The application shall conform to rules adopted pursuant to section 51-14. After such hearing as the superior court determines is necessary, the superior court shall enter its judgment on the application, which judgment shall contain a statement of the facts the superior court has found, with its conclusions thereon. The filing of the application for the waiver shall toll the time limits for the filing of an appeal until such time as a judgment on such application is entered.
      “(o) appeals to appellate and supreme courts. Upon final determination of any appeal from a decision of a family support magistrate by the superior court, there shall be no right to further review except to the appellate court. The procedure on such appeal to the appellate court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the superior court unless modified by rule of the judges of the appellate court. There shall be no right to further review except to the supreme court pursuant to the provisions of section 51-197Í.
      “(p) ORDER OF SUPPORT CONTINUED DURING APPEAL OR UNTIL CHANGED by further order. The filing of an appeal from a decision of a family support magistrate does not affect the order of support of a family support magistrate, but it shall continue in effect until the appeal is decided, and thereafter, unless denied, until changed by further order of a family support magistrate or the superior court.
      “(q) ORDER ISSUED BY SUPERIOR COURT SUPERSEDES PREVIOUS ORDERS. When an order for child or spousal support has been entered against an obligor by the superior court in an action originating in the superior court, such order shall supersede any previous order for child or spousal support against such obligor entered by a family support magistrate and shall also supersede any previous agreement for support executed by such obligor and filed with the family support magistrate division.”

       The federal injunction that magistrates not be denominated “judges” does not undercut the state constitutional reality that the family support magistrate’s division functions as an inferior court. Our constitution does not assign talismanic significance to labels.

       The legislature has conferred the power summarily to imprison for contempt on many nonjudicial officers. See, e.g., General Statutes §§ 1-82, 9-346b, 52-434 (state trial referee); General Statutes § 7-279 (municipal board of police commissioners); General Statutes § 45a-66 (council on probate judicial conduct); General Statutes § 51-91 (statewide grievance committee); General Statutes § 52-429 (auditors and committees appointed by any court). The constitutionality of these provisions is not before us on this appeal.

       See footnote 3 of the majority opinion.

       Article fifth, §§ 1 and 2 of the Connecticut constitution, as amended by articles XX and XXV of the amendments, provides: “Sec. 1. The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and .establish. The powers and jurisdiction of these courts shall be defined by law.
      “Sec. 2. Judges of all courts, except those courts to which judges are elected, shall be nominated by the governor exclusively from candidates submitted by the judicial selection commission. The commission shall seek and recommend qualified candidates in such numbers as shall by law be prescribed. Judges so nominated shall be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly and the supreme court may also remove them as provided by law.”

       The Connecticut constitution also requires that constitutional decision makers hold office for a term of eight years. See footnote 2, supra.


source: Caselaw Access Project

author: Covello, J. Borden, J., with whom Callahan, J.,

license: Public Domain

text:
    St. Paul Fire and Marine Insurance Company v. Robert Shernow, D.D.S., et al.
    (14422)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.

      Argued February 11
    decision released July 14, 1992

      Kenneth J. McDonnell, for the appellant-appellee (plaintiff).

      William F. Gallagher, with whom were Cynthia C. Bott and, on the brief, Timothy Moynahan, for the appellee-appellant (intervening defendant Mary Lou Sciola).
   Covello, J.

The principal issue in this appeal from a declaratory judgment is whether professional liability (malpractice) insurance covers injuries sustained by a patient when a dentist, in the course of treatment, sexually assaulted her, having overcome her ability to resist through misuse of anesthesia. We conclude that the trial court correctly determined that professional liability insurance covered the injuries sustained in this incident and, therefore, affirm the judgment.

The parties agree that the plaintiff, St. Paul Fire and Marine Insurance Company (St. Paul), issued an insuranee policy to the named defendant, Robert Shernow, a dentist, that provided both professional liability protection and office liability protection.

On May 12, 1986, the intervening defendant here, Mary Lou Sciola, commenced an action in Superior Court against Shernow for damages and injuries that she had sustained as the result of a sexual assault that allegedly had occurred in the course of dental treatment furnished by Shernow. Sciola’s action was brought in two counts, one for unconsented sexual contact and the other for dental malpractice. On November 30,1988, a jury returned a verdict in Sciola’s favor in the amount of $300,000 on the dental malpractice claim. In response to a special interrogatory, the jury specifically found that Shernow “breach[ed] the standard of care in providing professional treatment to [Sciola]

In the interim, on December 4, 1987, St. Paul had commenced the present action seeking a determination that its policy did not cover Shernow for the acts alleged by Sciola and that, therefore, it was not liable to indemnify Shernow for any part of the damages that Sciola might be awarded against Shernow. The trial court determined that the professional liability portion of the policy did provide coverage and that the office liability portion of the policy did not. St. Paul appealed to the Appellate Court and Sciola cross appealed. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, St. Paul first claims that the evidence disclosed an intentional, sexual attack on Sciola by Shernow; that Shernow rendered Sciola helpless by the administration of excessive amounts of nitrous oxide; and that during the attack, Sciola saw Shernow deliberately turn up the gas twice as she intermittently regained consciousness. St. Paul contends that although the “weapon” or means used to accomplish the sexual assault involved Shernow’s negligent use of nitrous oxide, a sedative ordinarily used in the course of his dental practice, this fact should not serve as the basis for characterizing an intentional assault as a professional service that was performed negligently. St. Paul argues that coverage under the professional liability policy should depend upon the nature of the act and the intent of the actor and not the means used to accomplish the act.

In support of this proposition, St. Paul relies upon Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Idaho App. 1984). In Hirst, a physician admitted to drugging and then performing sexual acts on a patient during the course of his examination and treatment of that patient for a sports injury. The physician’s professional liability policy was worded exactly the same as the one here. Significantly, the use of the drugs was not related to any treatment for the patient’s injuries. Also, there was no showing that the drugs injured the patient. The Hirst court concluded that the physician’s actions were not covered by the policy. “The scope of “professional services” does not include all forms of a doctor’s conduct simply because he is a doctor. As noted by the Supreme Court of Nebraska: ‘The insurer’s liability is thus limited to the performing or rendering of “professional” acts or services. Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind. The term “professional” in the context used in the policy provision means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. A “professional” act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual. [Citations omitted.] In determining whether a particular act is of a professional nature or a “professional service” we must look not to the title or character of the party performing the act, but to the act itself. [Citations omitted.]’ Marx v. Hartford Accident and Indemnity Co., 157 N.W.2d 870, 871-72 (Neb. 1968).” Hirst v. St. Paul Fire & Marine Ins. Co., supra, 796. For similar reasoning, see also Smith v. St. Paul Fire & Marine Ins. Co., 353 N.W.2d 130 (Minn. 1984) (professional liability coverage found unavailable when a physician sexually assaulted teen-age male patients during treatment for various medical problems), and Standard Fire Ins. Co. v. Blakeslee, 54 Wash. App. 1, 771 P.2d 1172, review denied, 113 Wash. 2d 1017, 781 P.2d 1320 (1989). We conclude that this rationale is inapplicable to the different factual circumstances present in this case.

Shernow had treated Sciola for approximately ten years and had consistently advised her that nitrous oxide was the appropriate means of sedation for her because of her soft teeth. On the day in question, the encounter between Shernow and Sciola began as a dental procedure for the filling of a molar. Prior to beginning treatment, Shernow administered nitrous oxide. Thus, unlike Hirst, the drug in issue had a direct relationship to a treatment in progress.

Evidence that Shernow negligently administered the nitrous oxide included, inter alia, the administration of a dangerously high concentration of the gas for more than twice the customary length of time, the failure to check the accuracy of the mechanism that metered out the gas for three years, and the failure to ask Sciola about medications that she might be using before administering the nitrous oxide. Thus, unlike Hirst, the jury here heard evidence of specific acts of professional negligence, some of which had occurred prior to the sexual encounter.

Finally, unlike Hirst, in which there was no evidence that the drug injured the victim, there was evidence here that the administration of the nitrous oxide permanently injured Sciola. A pulmonary specialist concluded that during her exposure to excessive amounts of nitrous oxide, Sciola aspirated stomach acid into her lungs, which left her with a permanent asthma condition and a permanent loss of 35 to 40 percent of her lung capacity.

St. Paul also relies on Standard Fire Ins. Co. v. Blakeslee, supra. In Standard Fire Ins. Co., a dentist administered nitrous oxide to his female patient preparatory to filling two cavities. While she was in a semi-conscious state, the dentist lifted her skirt and also fondled one of her breasts. A divided Washington Court of Appeals concluded that the dentist’s professional liability coverage did not extend to these acts as “Blakeslee’s administration of nitrous oxide, although admittedly a professional service, cannot be said to be a proximate cause of the injuries alleged . . . .” Id., 11. Although factually similar, the cases are clearly distinguishable when, as here, there was not only evidence of negligent administration of the nitrous oxide, but also direct, physical injury proximately caused by the nitrous oxide itself.

When the medically negligent procedure is so inextricably intertwined and inseparable from the intentional conduct that serves as the basis for the separate claim of a sexual assault, we join with those jurisdictions that conclude that professional liability policies must, in such instances, extend coverage. In St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540 (1986), a physician intentionally and improperly manipulated the clitorises of patients during their gynecological examinations. In concluding that the doctor’s conduct was committed in the course of and was inseparable from his professional services and that coverage therefore existed, the court agreed with the Arizona trial court that “[t]he question of insurance coverage does not turn on whether the conduct was negligent or intentional, or whether or not there was an assault and battery. Regardless of the category in which the underlying complaints are placed, they clearly allege tortious conduct while treating the patients, and seek damages resulting from the providing of professional services. Furthermore, the tortious conduct, if it occurred, took place in the course of and as an inseparable part of the providing of professional services. Consequently, any damages would be those resulting from the providing of professional services by the insured.” Id., 566; see also St. Paul Fire & Marine Ins. Co. v. Love, 447 N.W.2d 5 (Minn. App. 1989), aff’d, 459 N.W.2d 698 (Minn. 1990) (professional liability policy covered psychologist’s negligence in handling the transference phenomenon, including having sexual relations with the patient); Zipkin v. Freeman, 436 S.W.2d 753 (Mo. 1968) (professional liability policy covered psychiatrist’s mishandling of transference phenomenon which included, inter alia, having sexual relations with the patient); L.L. v. Medical Protective Co., 122 Wis. 2d 455, 362 N.W.2d 174 (1984), review denied, 122 Wis. 2d 783, 367 N.W.2d 223 (1985) (professional liability policy covered psychiatrist’s performance of sexual acts with the patient, which constituted a claim for malpractice).

Finally, St. Paul argues that the dictates of public policy prohibit the indemnification of Shernow for the consequences of what were his intentional acts. We conclude that the indemnification of Shernow, under these circumstances, does not offend public policy. In Public Service Mutual Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 425 N.E.2d 810, 442 N.Y.S.2d 422 (1981), a dentist, allegedly, sexually abused a patient during the course of treatment. The professional liability insurance in issue specifically provided coverage for “assault” and “undue familiarity.” Despite the clear language of the policy, the carrier argued that the public policy of New York precludes insurance coverage for a claim of sexual abuse in the course of dental treatment. The New York Court of Appeals stated “[w]hether such coverage is permissible depends upon whether the insured, in committing his criminal act, intended to cause injury. One who intentionally injures another may not be indemnified for any civil liability thus incurred. However, one whose intentional act causes an unintended injury may be so indemnified.” Id., 399. The court concluded that “[w]here [as here,] no finding of an intent to injure has been made, nothing in the public policy of this State precludes indemnity for compensatory damages flowing from defendant’s volitional act.” Id., 400-401.

In Vigilant Ins. Co. v. Kambly, 114 Mich. App. 683, 319 N.W.2d 382 (1982), a claimant sought the benefit of a psychiatrist’s professional liability insurance claiming sexual abuse arising out of a therapeutic relationship. The Michigan Court of Appeals refused to read into the insurance contract a public policy exclusion, concluding that “coverage does not allow the wrongdoer unjustly to benefit from his wrong. It is not the insured who will benefit, but the innocent victim who will be provided compensation for her injuries.” Id., 687. We agree with the New York and Michigan courts especially when, as here, indemnification is sought, not for the count alleging sexual assault, but the separate count alleging medical malpractice.

In her cross appeal, Sciola argues that in the event that Shernow is not entitled to indemnification under the professional liability provisions of his policy with St. Paul, Shernow is, nevertheless, entitled to indemnification under the office liability provisions of the policy. In view of our determination that the professional liability coverage is available in this instance, we need not address this alternative issue.

The judgment is affirmed.

In this opinion Peters, C. J., and Berdon, J., concurred.

Borden, J., with whom Callahan, J.,

joins, dissenting. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” (Internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 778, 607 A.2d 418 (1992). It defies common sense to say that, on the facts presented here; see footnote 3 of the majority opinion; Shernow was engaged in “providing . . . professional services.” In the past, when Shernow administered nitrous oxide to provide dental services to Sciola, she had been fully aware of her surroundings. On this occasion, however, he administered the gas to Sciola before beginning any dental work, she then lost consciousness, and for the next hour and one quarter he sexually assaulted her, even going so far as to turn up the gas twice when she regained consciousness. The only conclusion that rationally can be drawn from these facts is that Shernow simply used the gas and the occasion for treatment of Sciola as a pretext for satisfying his own sexual desires.

There is nothing in the statement of the facts of this case that indicates that Shernow performed any dental treatment of Sciola. Thus, the statement of the majority, that “the medically negligent procedure is . . . inextricably intertwined and inseparable from the intentional conduct,” is without support in this record.

Indeed, the jury in the underlying case against Shernow explicitly concluded as much, by specifically finding, in response to an interrogatory, that he had “unconsented sexual contact” with Sciola, by explicitly finding that he had intentionally assaulted and battered her, and by rendering a verdict of $100,000 in punitive damages in addition to its award of $300,000 compensatory damages. In the face of these findings, I cannot see how Shernow was “providing . . . professional services” to Sciola. His conduct no more constituted the rendering of professional services than if a lawyer, angry at his client, hit her over the head with volume 24 of Corpus Juris Secundum.

Simply because Shernow used nitrous oxide, ordinarily an appropriate substance when used in the proper dosage and with the proper motivation, and simply because the assault took place in his dental chair, what is plainly a sexual assault is not transformed into the rendering of “professional services.” Nor is it pertinent that the jury in the underlying case found that he had breached the standard of reasonable care in his conduct towards Sciola. Of course, intentionally sexually assaulting a patient who is helpless and unconscious in the dental chair is unreasonable conduct for a dentist. That does not mean, however, that the same conduct that rises (or sinks) to the level of such an assault somehow also constitutes insurable “professional services.” See American National Fire Ins. Co. v. Schuss, supra, 777 (same conduct cannot reasonably be determined to have been both intentionally and negligently tortious).

I also do not see the relevance of the fact, emphasized by the majority opinion, that in this case, unlike other cases relied on by the plaintiff, there was evidence that the nitrous oxide injured Sciola. Although that might be relevant to a claim of lack of proximate cause, I fail to see how it relates to the issue of whether Shernow’ s conduct reasonably could be considered to be the rendering of professional services.

Finally, I cannot agree with the majority’s approval of the statement of the Michigan Court of Appeals that a result permitting coverage in this case does not offend the public policy against insuring against intentional tortious conduct. The issue here is coverage, not compensation. Contrary to the statement of the Michigan court, it is the insured who benefits by this decision, because it is he who is insulated from having to pay Sciola personally the amount of her judgment against him. Moreover, nothing in this record indicates that Shernow cannot pay the judgment against him personally. Finally, engaging in the notion that finding coverage under a policy benefits, not the insured, but the third party claimant in effect eliminates that well established public policy, because it could always be said that it is “not the insured who will benefit, but the innocent victim who will be provided compensation for her injuries.”

With regard to the cross appeal, I conclude, for the same reasons, that Shernow’s office liability policy did not provide coverage for this intentional sexual assault of Sciola.

I, therefore, dissent.

       Insuring Agreement No. 42, entitled “Dentists Professional Liability Protection,” stated: “Your professional liability protection covers you for damages resulting from: 1. Your providing or withholding of professional services, while this agreement is in effect. . . .”

       Insuring Agreement No. 51, entitled “Office Liability Protection,” stated: “We’ll pay damages you and others protected under this agreement are legally responsible for because of bodily injury, personal injury or damage to other people’s property caused by an accidental event.”
      An accidental event was defined as “something the person protected didn’t expect or intend to happen.”
      Excluded from coverage was “any personal injury that results when you knowingly break any law.” Further excluded was “injury or damage caused by the providing or withholding of any professional service.”

       In reviewing the merits of the appeal that followed, the Appellate Court in Sciola v. Shernow, 22 Conn. App. 351, 353-55, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990), determined that “[t]he jury could reasonably have found the following facts. The defendant had been the plaintiffs dentist for over ten years and had consistently advised her that nitrous oxide was the appropriate means of sedation for her during treatment. On April 19,1984, the plaintiff visited the defendant’s office to have a molar filled. Before beginning any dental work on the plaintiff, the defendant administered nitrous oxide to her. He did this without first checking to see if she was on any medication that would conflict with the nitrous oxide. He also administered a dangerously high concentration of the gas and kept her under its effects more than twice the usual length of time. In addition, the defendant had not checked the accuracy of the machine with which he administered the gas for at least three years.
      “When the nitrous oxide had been administered to the plaintiff in the past, she felt mildly dazed, but completely aware of her surroundings. When the nitrous oxide was administered on this occasion she heard a loud ringing noise, felt as if her head was flying up to the ceiling and then lost consciousness. During the course of the one hour and fifteen minutes she was under the effects of the gas she regained consciousness three times. On the first occasion she felt the defendant’s tongue in her mouth and experienced pain in her breasts. When she attempted to resist the defendant she observed him turning up the concentration of nitrous oxide and again lost consciousness.
      “She awoke a second time to find the defendant on top of her. She was having difficulty breathing, the defendant’s tongue was in her mouth and she was experiencing pain in her breasts. Once again she attempted to resist the defendant and saw him turn up the gas. The painful ringing returned to her ears and she once again slipped into an unconscious state.
      “The third time the plaintiff regained consciousness, she kept her eyes closed so the defendant would not turn up the gas again. At this time, the defendant was still on top of her, and his tongue was in her mouth. She was frightened and felt violently ill. Once the defendant realized that she was awake he assisted her out of the chair. He then approached her from behind, grabbed her breasts and kissed her neck. She was aware that he had an erection at this time. She did not recall any dental work being performed during the entire course of this visit.
      “The plaintiff was disoriented when she left the defendant’s office. She was nauseated and experienced a burning sensation in her nose, throat, palate and chest. She had a severe headache, her breasts were sore and she felt violated. After she was home, one side of her nose bled periodically.
      “Four days after the incident, the plaintiff visited her family physician. She was still suffering from headaches, her breasts were bruised and she was lethargic. The burning sensation in her throat and chest persisted and her nausea continued. She was referred to a pulmonary specialist who concluded that during her excessive exposure to nitrous oxide she had aspirated stomach acid into her lungs which left her with a permanent asthma condition and a permanent loss of 35 to 40 percent of her lung capacity.
      “The plaintiff also was seen by a psychiatrist who determined that she suffered from a posttrauma stress disorder. He further concluded that as a result of the events of April 19, 1984, she has a phobia of medical and dental personnel, and suffers from periodic sleeplessness, depression, fearfulness, and heightened anxiety. In addition, her sense of self-reliance, her self-image and her ability to interact effectively with males has been impaired.
      “Before this incident, the plaintiff was the lead singer in her own six piece band and a professional entertainer. Since the incident, her income has been significantly reduced due to her diminished lung capacity and endurance.
      “After hearing the above evidence, the jury returned a plaintiffs verdict awarding her $300,000 in general damages and $100,000 in punitive damages. The defendant submitted interrogatories to the jury and it responded with the damages that it had assigned to each count. On a separate sheet of paper the jury indicated that it had found a plaintiffs verdict and a total damage award of $400,000.”

       Public policy, however, clearly prohibits Shernow from receiving indemnity for the $100,000 punitive damages that the jury awarded Sciola in connection with the first count of the complaint that alleged an intentional tort. See Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537-38, 18 A.2d 357 (1941).

       The majority opinion seems to imply that the plaintiff in this case, which was not a party to the underlying case, and which in fact was denied intervention therein, is somehow bound by that finding. Such an implication is contrary to accepted principles of collateral estoppel. See Eamiello v. Liberty Mobile Home Sales, Inc., 208 Conn. 620, 634-35, 546 A.2d 805 (1988), appeal dismissed, 489 U.S. 1002, 109 S. Ct. 1104, 103 L. Ed. 2d 169 (1989) (collateral estoppel cannot be used against party who was not party to original litigation). This does not mean, however, that Shernow is not bound by the first jury’s findings against him. See Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 299-303, 596 A.2d 414 (1991) (collateral estoppel can be used offensively against party who was party to first litigation).


text:
    State of Connecticut v. Richard Salz

      Todd Femow, in support of the petition.

      Rita N. Shair, assistant state’s attorney, in opposition.
    Decided April 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 448, is granted, limited to the following issue:

“Was there sufficient evidence to support the defendant’s conviction of manslaughter in the second degree?”


text:
    State of Connecticut v. Derwin Gamble

      Kent Drager, assistant public defender, and G. Douglas Nash, public defender, in support of the petition.

      PaulJ. Ferr meek, assistant state’s attorney, in opposition.
    Decided April 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 1, is denied.


text:
    Lafayette Bank and Trust Company v. Charles Szentkuti et al.

      Allen Gary Palmer, in support of the petition.

      Edward R. Scofield, in opposition.
    Decided April 22, 1992
   The defendants Charles Szentkuti, Vija Szentkuti and C.V. Construction Company’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 15, is denied.


text:
    Connecticut National Bank v. Robert O. Goulet et al.

      Pat Labbadia III, in support of the petition.

      Thomas E. Crosby, in opposition.
    Decided April 22, 1992
   The petition for certification for appeal from the Appellate Court filed by the defendants Robert O. Goulet and Millicent Goulet is denied.


text:
    Geneva M. Sampiere v. Joel S. Zaretsky et al.

      Robert S. Kolesnik, in support of the petition.

      Beth A. Barrett, in opposition.
    Decided April 22, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 490, is denied.


text:
    Geneva M. Sampiere v. Joel S. Zaretsky et al.

      Beth A. Barrett, in support of the petition.

      Robert S. Kolesnik, in opposition.
    Decided April 22, 1992
   The defendants’ cross petition for certification for appeal from the Appellate Court, 26 Conn. App. 490, is denied.


text:
    Rodney Richmond v. Frank Longo, Sr.

      Herbert Watstein, in support of the petition.

      John D. Palermo, in opposition.
    Decided April 22, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 30, is denied.


text:
    In re Adalberto S.

      Bruce A. Tonkonow, state’s advocate, in support of the petition.

      Jon L. Schoenhom, in opposition.
    Decided April 22, 1992
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 49, is denied.


author: Berdon, J.,

text:
    State of Connecticut v. Mircela Nita

      D. Kirt Westfall, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided April 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 103, is denied.

Berdon, J.,

dissenting. I would grant certification. Accordingly, I dissent.


text:
    Mary Hall, Administratrix (Estate of Jesse Hall) v. Dorothy Winfrey

      Robert M. LaRose, in support of the petition.

      Richard L. Jacobs, in opposition.
    Decided April 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 154, is denied.


text:
    Da-Laur Associates v. Maurice Clos-Versailles

      Peter M. Ryan, in support of the petition.

      Paul L, McCullough, in opposition.
    Decided April 22, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 903, is denied.


text:
    Town of West Hartford v. Patricia McKenna

      Patricia McKenna, pro se, in support of the petition.

      Patrick G. Alair, assistant corporation counsel, in opposition.
    Decided May 6, 1992
   The defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    State of Connecticut v. Rogelio Fernandez

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

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided May 6, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 73, is denied.


text:
    Wadia Enterprises, Inc. v. Caroline Hirschfeld et al.
   The plaintiffs petition for certification for appeal from the Appellate Court, 27 Conn. App. 162, is granted, limited to the following issue:

Robert A. Slavitt and Michael J. Lawrence, in support of the petition.

Michael D. Bromley, in opposition.

Decided May 6, 1992

“Was the Appellate Court correct in upholding the Superior Court’s finding that no genuine issue of material fact was raised by the plaintiff relating to bad faith, waiver, estoppel and/or consent on the part of the defendants?”


text:
    Ann Campion et al. v. Kathleen S. Shields et al.

      William F. Gallagher, in support of the petition.

      Terence A. Zemetis and Edward T, Falsey, in opposition.
    Decided May 6, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 903, is denied.


text:
    State of Connecticut v. David Johnson State of Connecticut v. Diane McIntosh

      Louis S. Avitahile, special public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
    Decided May 6, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 26 Conn. App. 553, is denied.


text:
    Augustus J. Simmons v. Horace Wetherell

      Otto P. Witt, in support of the petition.

      ArmldK. Shimelman, assistant attorney general, in opposition.
    Decided May 21, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    Simon Ostolaza v. Warden

      Susan M. Hankins, assistant public defender, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
    Decided May 21, 1992
   The petitioner Simon Ostolaza’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 758, is denied.


text:
    Judith A. Cato v. Herbert J. Cato, Jr.

      William H. Meanix, Jr., in support of the petition.

      John K. Currie, in opposition.
    Decided May 21, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 142, is granted, limited to the following question:

“Was the divided Appellate Court correct in holding in a claim for dissolution that General Statutes § 52-57a allows for in-hand service of process by a Texas sheriff on a nonresident defendant in Texas without an order of notice having been obtained as provided for in the domestic relations long-arm statute, General Statutes § 46b-46?”


text:
    State of Connecticut v. Wendell Irving

      Leopold P. DeFuseo, special public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided May 21, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 279, is denied.


text:
    Henry Friedlander v. Saul Kwartin et al.

      Henry Friedlander, pro se, in support of the petition.
    Decided May 21, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 901, is denied.


text:
    State of Connecticut v. Lesburn Harvey
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 171, is denied.

Berdon, J.,

dissenting. I would grant certification in this matter to review whether the Appellate Court correctly held that the trial judge’s instructions did not violate the defendant’s state and federal due process rights. State v. Harvey, 27 Conn. App. 171, 605 A.2d 563 (1992). The trial judge’s instruction on the presumption of innocence included the following: “ ‘It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged and by making the state meet its burden of proving guilt beyond a reasonable doubt but you must keep in mind that those rules of law are made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it is your sworn duty to enforce the law and render a verdict of guilty.’ ” (Emphasis added.) Id., 190 n.12.

In Floyd v. Meachum, 907 F.2d 347, 354 (2d Cir. 1990), the Second Circuit Court of Appeals held that “the prosecutor’s repeated remarks that the Fifth Amendment was a ‘protection for the innocent’ and not ‘a shield’ for ‘the guilty’ incorrectly stated the law by diluting the State’s burden of proof beyond a reasonable doubt and undermining the presumption of innocence.” The Second Circuit concluded that this was reversible error. It then reversed our Appellate Court in State v. Floyd, 10 Conn. App. 361, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987), granted the petitioner’s writ of habeas corpus and ordered a new trial. The appeals court went on to state: “The heavy burden of proof that the United States Constitution, as interpreted by the Supreme Court, imposes on the prosecution means that the guilty will sometimes go free. As the dissenting judge in the Appellate Court pointed out, constitutional rights are not conditioned on guilt or innocence and ‘[t]he requirement of proof beyond a reasonable doubt for a conviction is neither a sword, nor a shield, but a necessary element of proof placed solely upon the prosecution.’ State v. Floyd, [supra, 390] (Bieluch, J., dissenting). Cf. United States v. Bifield, 702 F.2d 342, 351 (2d Cir.) (whether similar language alone constitutes reversible error presents a close question and must be determined by its context), cert. denied, 461 U.S. 931, 103 S. Ct. 2095, 77 L. Ed. 2d 304 (1983).” Floyd v. Meachum, supra, 354.

Obviously, in the present case, the Appellate Court sought to distinguish this one remark by the trial judge from the repeated remarks made by the prosecutor in Floyd. Nevertheless, the egregious language came from the trial judge, which makes it reviewable on a completely different level. Notwithstanding State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990), I would grant certification.

Neal Cone, assistant public defender, in support of the petition.

Mary H. Lesser, assistant state’s attorney, in opposition.

Decided May 21, 1992

Accordingly, I dissent.


text:
    Robert H. Gilman v. Patricia Coyle Gilman

      Sue L. Wise, in support of the petition.

      Lee Marlow, in opposition.
    Decided May 21, 1992
   The defendant’s petition for certification for appeal from the Appellate Court is denied.

Berdon, J.,

dissenting. I would grant the petition for certification.


text:
    State of Connecticut v. Douglas W. Buster
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 263, is granted, limited to the following questions:

“1. Was the Appellate Court correct in holding that the trial court properly admitted into evidence certain remarks attributed to a nonparty witness contained in the written statement of another witness, pursuant to State v. Whelan, 200 Conn. 743, 514 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)?

Michael A. Fitzpatrick, special public defender, in support of the petition.

Richard F. Jacobson, assistant state’s attorney, in opposition.

Decided May 21, 1992

“2. If the ruling was erroneous, was it harmful?”


text:
    State of Connecticut v. Paul DeFusco

      John R. Donovan, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
    Decided May 21, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 248, is granted, limited to the following questions:

“1. Does article first, § 7, of the Connecticut constitution protect garbage left for collection at the curbside of a residence?

“2. If the answer to the first question is ‘no,’ was the search warrant in this case supported by probable cause?”


text:
    New Connecticut Bank and Trust Company, N.A. v. Millington Green Land Associates et al.

      Richard F. Paladino, in support of the petition.

      David S. Hoopes, in opposition.
    Decided May 21, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 27 Conn. App. 908, is denied.


text:
    Radha R.M. Narumanchi v. Michael J. Adanti et al.

      Radha R.M. Narumanchi, pro se, in support of the petition.
    Decided May 28, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Darin Scott

      Susan Brown, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided May 28, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 403, is denied.

Berdon, J., would grant the defendant’s petition for certification.


text:
    Leo Fedus and Sons Construction Company, Inc., et al. v. Zoning Board of Appeals of the Town and Borough of Colchester et al.
   The defendants’ petition for certification for appeal from the Appellate Court, 27 Conn. App. 412, is granted, limited to the following issues:

“1. Does the ‘automatic approval’ doctrine, applicable to a zoning commission that fails to issue timely decisions on site plan or subdivision applications under General Statutes §§ 8-3 (g) and 8-26, ¿so apply to a zoning board of appeals that fails to hold a hearing on an appeal under General Statutes § 8-7d (a)?

Gregory T. DAuria and Charles L. Howard, in support of the petition.

David F. Sherwood, in opposition.

Decided May 28, 1992

“2. Does the ‘automatic approval’ doctrine apply when the zoning board of appeals timely issues a decision that it would not hold a hearing because it believed it lacked jurisdiction?”


text:
    David E. Koskoff v. Planning and Zoning Commission of the Town of Haddam et al.

      Thomas P„ Byrne, in support of the petition.

      David E. Koskoff, pro se, in opposition.
    Decided May 28, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 443, is granted, limited to the following issue:

“Did the Appellate Court properly reverse the trial court’s decision and remand the case with direction to grant the writ of mandamus on the ground that a failure of a planning and zoning commission properly to publish a prehearing notice, as required by General Statutes § 8-26, amounted to a failure of the commission to act pursuant to General Statutes §§ 8-26 and 8-26d?”