author: Berdon, J.

text:
    Philip Ottochian v. Freedom of Information Commission et al.
    (14347)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued December 6, 1991
    decision released March 10, 1992

      William J. Dolan, for the appellant (plaintiff).

      Regina M. Hopkins-Griggs, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      George L. Bozzi, Jr., pro se, the appellee (defendant).
   Berdon, J.

This is an administrative appeal from a decision of the defendant freedom of information commission (FOIC) ordering the superintendent of the Wallingford public school system to disclose, under the Freedom of Information Act (FOIA), portions of two pieces of correspondence concerning a violation of a Connecticut Interscholastic Athletic Conference (CIAC) regulation committed by Lyman Hall High School. The correspondence also contained comments about the performance and evaluation of the plaintiff, Philip Ottochian, a teacher, football coach and athletic director at the high school. The principal issue is whether the entire correspondence, portions of which concern matters of teacher performance and evaluation and portions of which concern nonevaluative information, is exempt from disclosure pursuant to General Statutes § 10-151c. The trial court dismissed the plaintiffs appeal from the FOIC’s order of disclosure. He then appealed to the Appellate Court, and we transferred his appeal to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The relevant facts are as follows. On November 4, 1988, a defendant, George L. Bozzi, Jr., requested that Robert Nicoletti, the superintendent of the Wallingford public school system (superintendent), provide him with copies of all correspondence between Lyman Hall High School and the CIAC concerning any violation of CIAC regulations by the school’s football team in 1987. The superintendent denied the request, claiming that the documents were exempt from disclosure pursuant to General Statutes §§ 10-151c and 1-19 (b) (2).* * Bozzi filed a complaint with the FOIC.

The FOIC held a hearing and granted the plaintiff party status. At this hearing, Bozzi clarified his request, stating that he was seeking recorded information concerning the violations only and the subsequent reporting of those violations. He further stated that he was not seeking any information concerning an evaluation of the plaintiffs performance. After hearing testimony, the FOIC found that the requested information was contained in two letters, and that portions of those letters concerned the plaintiff’s performance as the football coach, while other portions concerned a violation of the CIAC regulation and, therefore, did not evaluate the plaintiff’s performance. Although the FOIC concluded that § 1-19 (b) (2) was inapplicable in this case, it decided that the evaluative information in the letters was exempt from disclosure pursuant to § 10-151c. The FOIC ordered the superintendent to provide Bozzi with redacted copies of the letters masking the evaluative portions.

The superintendent sent Bozzi redacted copies of the letters and Bozzi appealed to the FOIC alleging that the superintendent had failed to comply with its order in that he redacted information that was not evaluative. The FOIC held a second hearing and the plaintiff was again granted party status. At the hearing, the FOIC reviewed the redacted versions of the letters. The FOIC also conducted an in camera inspection of the original letters in their unredacted form and found that “much of the information the [superintendent] redacted [was] not evaluative within the meaning of § 10-151c.” The FOIC concluded that the superintendent had failed to comply with its first order, and designated a line-by-line order specifying those portions of the letters that the superintendent should redact.

The plaintiff appealed the FOIC’s decision to the Superior Court, and that court issued a stay of enforcement of the FOIC’s order. After taking evidence and hearing argument, the trial court concluded that the findings of the FOIC were not clearly erroneous, arbitrary, capricious or an abuse of discretion. The trial court, therefore, dismissed the plaintiffs appeal.

In his appeal to this court, the plaintiff claims that when any evaluative information pertaining to a teacher appears in a document, the entire document is a “record” for purposes of § 10-151c, and, therefore, is exempt from disclosure. In the alternative, the plaintiff argues that, if § 10-151c does not bar disclosure of the document in its entirety, then the FOIC, before it may release a redacted version of the document, must first determine that it is “virtually impossible” to glean evaluative information from the nonevaluative portions of the document. We disagree with the plaintiff.

We review the merits of the plaintiffs claims in the context of two underlying principles. First, we note that judicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; and that the scope of review is limited. Board of Education v. Freedom of Information Commission, 208 Conn. 442, 452, 545 A.2d 1064 (1988). Accordingly, we must decide, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, 212 Conn. 100, 104-105, 561 A.2d 429 (1989). “Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). “Neither this court nor the trial court may retry the case or substitute its own judgment for that of the [administrative agency]. . . .” (Internal quotation marks omitted.) Board of Education v. Freedom of Information Commission, supra, quoting C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978).

Second, it is well established that the general rule under the Freedom of Information Act is disclosure, and any exception to that rule will be narrowly construed in light of the “general policy of openness expressed in the FOIA legislation.” Board of Education v. Freedom of Information Commission, supra, 450. “The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it.” Rose v. Freedom of Information Commission, 221 Conn. 217, 232, 602 A.2d 1019 (1992).

I

General Statutes § 10-151c provides that records of teacher performance or evaluation maintained by boards of education are not discoverable pursuant to the FOIA. In exempting these records of teacher performance and evaluation, the legislature chose neither to provide criteria for determining what documents constitute such records nor to define the term “records.” “When the legislature uses a broad term . . . in an administrative context, without attempting to define that term, it evinces a legislative judgment that the agency should define the parameters of that term on a case-by-case basis.” Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, 106. The FOIC, therefore, was left with the task of determining whether the letters in the present case were “records of teacher performance and evaluation” within the broad meaning of that term. The practical construction placed on the statute by the agency, if reasonable, is highly persuasive. Id.

In the present case, the FOIC’s determination that the legislature did not intend to exempt from disclosure nonevaluative information from a letter pertaining to a teacher is reasonable, and thus, we will not disturb it. This court was presented with a similar situation in Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, in which we held that even though General Statutes § 7-314 (b) exempted “operational” meetings of volunteer fire departments from the provisions of General Statutes § 1-21 (a) of the FOIA that require meetings of public agencies be opened to the public, the “non-operational” portions of the meetings should be open. Cos Cob Volunteer Fire Co. No. 1, Inc. v. Freedom of Information Commission, supra, 106.

The plaintiff further claims for the first time on appeal that our decision in Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), is dispositive of the issue in this case. We are not persuaded. In Chairman v. Freedom of Information Commission, supra, this court held that the personnel evaluation of a state’s attorney was exempt from disclosure pursuant to General Statutes § 1-19 (b) (2) because the disclosure would constitute an invasion of his personal privacy. To establish the applicability of § 1-19 (b) (2), the plaintiff must meet a twofold burden of proof. “First, [he] must establish that the [letters] in question are within the categories of files protected by the exemption .... Second, [he] must show that disclosure of the records would constitute an invasion of personal privacy.” (Internal quotation marks omitted.) Chairman v. Freedom of Information Commission, supra, 196.

In the present case, the plaintiff failed to make this claim before the FOIC during the second hearing, and he did not pursue this claim before the trial court; accordingly, he is precluded from doing so at this time. See Burnham v. Administrator, 184 Conn. 317, 322-23, 439 A.2d 1008 (1981). Furthermore, there is nothing in the record to support the applicability of § 1-19 (b) (2). First, the plaintiff has made no showing in the record that the letters in issue constitute a part of his personnel files. Second, there is nothing in the record to support the claim that the letters, as redacted by the FOIC’s second order, would constitute an invasion of his personal privacy. The plaintiff’s argument, therefore, is unavailing.

We conclude that a document, portions of which concern matters of teacher performance and evaluation and portions of which concern nonevaluative information, is not exempt from disclosure in its entirety pursuant to § 10-151c.

II

The plaintiff urges this court to adopt the requirement that each time the FOIC exercises its discretion by ordering the partial release of information, it must first make the determination that the disclosure would not inadvertently reveal protected information. This argument, which relies on our holding in Maher v. Free dom of Information Commission, 192 Conn. 310, 472 A.2d 321 (1984), is without merit. In Maher, we reversed the FOIC’s order to the department of income maintenance to make available to a newspaper certain information regarding medication prescribed for state Medicaid recipients. The issue before this court was whether the information requested by the newspaper was “so pervasive an inquiry” that it could inadvertently lead to the disclosure of information protected by General Statutes § 17-83 (b) namely, the identities of Medicaid recipients. Id., 319. In Maher, we found that the newspaper’s request created a risk of “indirect disclosure” of the protected information, and that “[c]ourts in other jurisdictions have required the record to show the virtual impossibility of identifying individual patients from the records whose release has been ordered.” Id., 320.

The language that the plaintiff relies on in Maher pertains uniquely to the requirements of strict confidentiality under § 17-83 (b) and the facts of that case. Because the FOIA clearly reflects a policy in favor of disclosure; Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980); we will not dilute its purpose by imposing artificial requirements on, the FOIC that are not clearly required by the statute. We refuse to extend our holding in Maher to require a determination that it is “virtually impossible” to ascertain protected information from that portion of any document that is disclosed.

Accordingly, the judgment is affirmed.

In this opinion the other justices concurred.

       The Freedom of Information Act in its entirety is found in General Statutes §§ 1-15, l-18a through l-19b, l-20a through l-21a, and l-21c through l-21k.

       General Statutes § 10-151c provides: “Any records maintained or kept on file by any local or regional board of education which are records of teacher performance and evaluation shall not be deemed to be public records and shall not be subject to the provisions of section 1-19, provided that any teacher may consent in writing to the release of his records by a board of education. Such consent shall be required for each request for a release of such records. For the purposes of this section the term ‘teacher’ shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the state board of education.”
      General Statutes § 1-19 (a) of the FOIA provides in part: “Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours . . . .”

       General Statutes § 1-19 (b) provides in pertinent part: “Nothing in [the Freedom of Information Act] shall be construed to require disclosure of ... (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       The two letters, which are the subject of this appeal, are an October 15, 1987 letter from the Lyman Hall High School principal, Dale Wilson, to the CIAC, and an October 19,1987 letter from the CIAC to Wilson. In making its first determination, the FOIC relied on general testimony concerning the letters and at that time it had not conducted an in camera inspection of the letters.

       We are not persuaded by the plaintiff’s claim that the usual deference to an administrative decision is unwarranted in this case. The plaintiff argues that by enacting General Statutes § 10-151c, the legislature made “crystal clear” that records of teacher performance and evaluation are not governed by the FOIA and, therefore, do not fall within the jurisdiction of the FOIC. The plaintiffs argument fails because the language of § 10-151c specifically refers to General Statutes § 1-19 of the FOIA. Moreover, the FOIC has jurisdiction over matters that come within § 1-19 (b) (2), which sets forth exceptions to the FOIA. By enacting § 10-151c to clarify its earlier legislative intent in enacting § 1-19 (b) (2); Board of Education v. Freedom of Information Commission, 210 Conn. 590, 594, 556 A.2d 592 (1989); the legislature clearly intended the FOIC to have jurisdiction over matters that may present an exception to the FOIA under § 10-151c.

       In its decision on the first hearing, the FOIC summarily dismissed this claim when it came to the following conclusion: “It is found that the disclosure of the information that pertains only to the team’s violations of CIAC regulations and does not evaluate the coach’s performance could in no way invade the personal privacy of the coach.”

       General Statutes § 17-83 (b) provides: “No person shall, except for purposes directly connected with the administration of this chapter and in accordance with the regulations of the commissioner, solicit, disclose, receive or make use of, or authorize, knowingly permit, participate in or acquiesce in the use of, any list of the names of, or any information concerning, persons applying for or receiving assistance under this chapter, directly or indirectly derived from the records, papers, files or communications of the state or its subdivisions or agencies, or acquired in the course of the performance of official duties; provided the state department of income maintenance shall disclose to any authorized representative of the commissioner of administrative services or the commissioner of public safety such information as the state commissioner of income maintenance determines is directly related to and necessary for the department of administrative services or the department of public safety for purposes of performing their functions of collecting social services recoveries and overpayments or amounts due as support in social services cases, investigating social services fraud or locating absent parents of public assistance recipients; and provided no such representative shall disclose any information obtained thereby except to carry out such purpose.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Michael Guida v. Commissioner of Correction
    (14262)
    Peters, C. J., Shea, Callahan, Glass, Covello, Borden and Berdon, Js.
    Argued December 3, 1991
    decision released March 10, 1992

      John W. Watson, assistant public defender, for the appellant (petitioner).

      Stephen J. O’Neill, assistant attorney general, with whom were Steven R. Strom, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (respondent).
   Per Curiam.

This is an appeal by the petitioner, Michael Guida, from the denial of his petition for a writ of habeas corpus challenging, on ex post facto grounds, his ineligibility for supervised home release. The respondent is the commissioner of correction for the state of Connecticut. We conclude that the petitioner’s appeal, which was transferred to this court pursuant to Practice Book § 4023, should be dismissed because the petitioner failed to demonstrate aggrievement and lacks standing to pursue the appeal.

The relevant facts, which are undisputed, are as follows. On December 4, 1987, the petitioner was sentenced to a term of imprisonment of sixteen years, suspended after eight years, and five years probation, for attempted assault in the first degree with a deadly weapon or dangerous instrument committed on March 5, 1987. General Statutes §§ 53a-59 (a) (l), 53a-49 (a). At the time the offense was committed, a person convicted and sentenced for the crime charged was not disqualified for consideration for the supervised home release program administered by the respondent, pursuant to General Statutes § 18-100.

Subsequent to the petitioner’s commission of the crime, the legislature adopted General Statutes § 18-100b; see Public Acts 1988, No. 88-244, § 3; to implement certain restrictions with respect to eligibility for supervised home release. Thereafter, the respondent adopted regulations and the legislature amended § 18-100b to forbid consideration for supervised home release to inmates convicted of, among other crimes, assault in the first degree in violation of § 53a-59, and to inmates serving a mandatory minimum term. The respondent applied the regulations and the amended § 18-100b to the petitioner’s request for supervised home release.

The testimony before the habeas court was that the respondent did not contemplate that a conviction of attempted assault in the first degree, in itself, prevented the consideration of an inmate for the supervised home release program under the amended statute and the regulations. The petitioner, however, had been convicted of an attempt to commit a violation of § 53a-59 (a) (1), a crime that required the imposition of a mandatory minimum sentence of five years. General Statutes § 53a-59 (b).* **** Under the amended § 18-100b and the regulations, the petitioner, therefore, was ineligible for consideration for supervised home release until he had completed his mandatory minimum term. The petitioner argues that the adoption of the regulations and the adoption and amendment of the statute subsequent to his commission of the crime constituted ex post facto enactments that delayed his eligibility for supervised home release and thereby “chang[ed] the punishment, and inflict[ed] a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

At the habeas corpus proceeding, Todd Fisk, the community services administrator for the department of correction, testified that under the policies of the respondent in effect in March, 1987, when the petitioner committed the crime for which he was convicted and sentenced, the petitioner would not have been eligible for consideration for supervised home release until he was within eighteen months of his estimated date of release. He also testified that, pursuant to the policies in effect under the amended statute and the regulations adopted by the respondent, the petitioner would have been eligible for consideration for supervised home release on January 28,1991, when he would have completed the mandatory minimum portion of his sentence and been within thirty-six months of his estimated release date. There was no other testimony or evidence at the hearing as to the petitioner’s estimated release date or the date when he would have been eligible for supervised home release consideration under the respondent’s 1987 policies.

In his brief, the respondent states that the petitioner’s estimated release date at the time of trial was January 14,1993, and that under the policies in effect in 1987, the petitioner would not have been eligible for consideration for supervised home release until July 19, 1991, a date almost six months later than his eligibility under the amended statute and the adopted regulations. The petitioner did not dispute the respondent’s calculations in either his reply brief or at oral argument. We are, therefore, left with a record that is, to say the least, confusing and unclear as to whether the petitioner was in fact disadvantaged in any way by the amendment of § 18-100b and the regulatory policies of the respondent. See State v. Laracuente, 205 Conn. 515, 520, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988) (appellant’s burden to furnish an adequate record for appeal).

We realize that both current inmates and the respondent wish this court to resolve the issue presented, that is, whether the amendment of § 18-100b and the implementation of new regulations concerning eligibility for supervised home release, subsequent to a crime having been committed, constitute ex post facto violations. In fact, counsel for both parties have asked that we consider the question under Delevieleuse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981). The issue is of such a nature that it might very well merit review under Delevieleuse in the proper case. Nevertheless, we decline to resolve the question as presented in this case, where it is uncertain, and unlikely, that this petitioner, in fact, ever suffered any disadvantage by the amendment of the statute and the implementation of the new regulations. To decide the issue on this record would trivialize the Great Writ and the appellate process.

The judgment dismissing the petition is affirmed.

       On the same date, the petitioner was sentenced to a concurrent one year sentence for reckless endangerment committed on February 22,1987. That sentence is irrelevant to the petitioner’s claim.

       General Statutes § 53a-59 provides in pertinent part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-49 provides in pertinent part: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

         Public Acts 1988, No. 88-244, § 3, was codified at General Statutes (Rev. to 1989) § 18-100b, which provided: “release of certain PRISONERS INTO SUPERVISED HOME RELEASE PROGRAMS PROHIBITED. Notwithstanding any provision of the general statutes, the commissioner of correction shall not release from confinement any prisoner convicted of a capital felony, as defined in section 53a-54b, or a class A felony, into a supervised home release program as provided in section 18-100.”

       “[General Statutes] Sec. 18-100b. release of prisoners to an APPROVED COMMUNITY residence, eligibility, (a) Notwithstanding any provision of the general statutes, the commissioner of correction shall not release from confinement to an approved community residence pursuant to subsection (e) of section 18-100, any prisoner convicted of a capital felony, as defined in section 53a-54b, a class A felony, a class B felony committed while such prisoner was released from confinement to an approved community residence pursuant to subsection (e) of section 18-100, or a violation of section 21a-278,21a-278a, 53a-54d, 53a-55, 53a-55a, 53a-56, 53a-56a, 53a-56b, 53a-57, 53a-58, 53a-59, 53a-70, 53a-70a or 53a-70b, or any prisoner convicted of any other offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court until such time as such prisoner has served such mandatory minimum sentence, or any prisoner convicted and incarcerated for more than one year for a violation of section 21a-277, which offense occurs on or after October 1, 1990, who has previously been convicted and incarcerated for a violation of section 21a-277, 21a-278 or 21a-278a.
      “(b) Except as provided in subsection (d) of this section, the commissioner of correction shall not release from confinement to an approved community residence pursuant to subsection (e) of section 18-100 any prisoner who is convicted and incarcerated for an offense which occurs on or after October 1,1991, unless such prisoner has served at least twenty-five per cent of the definite sentence imposed.
      “(c) Except as provided in subsection (d) of this section, the commissioner of correction shall not release from confinement to an approved community residence pursuant to subsection (e) of section 18-100 any prisoner who is convicted and incarcerated for an offense which occurs on or after October 1,1992, unless such prisoner has served at least forty per cent of the definite sentence imposed.
      “(d) On and after October 1, 1991, and prior to July 1, 1993, the commissioner of correction may petition the advisory commission, established under section 18-87f, to waive the provisions of subsections (b) and (c) of this section requiring a prisoner to serve a minimum percentage of his definite sentence prior to being released to an approved community residence in order to avoid an emergency release of inmates. The advisory commission shall notify the commissioner of correction in writing of the approval of such waiver and such waiver shall remain in effect for thirty days. The commissioner of correction, upon receiving notice of such approval, may release a sufficient number of prisoners, otherwise eligible to be released to an approved community residence, to reduce the inmate population below one hundred ten per cent of capacity.
      “(e) Notwithstanding any provision of the general statutes, the commissioner of correction shall not release from confinement any prisoner to an approved community residence after June 30, 1993.”

       General Statutes § 53a-59 (b) provides: “Assault in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       In Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981), we held that an issue on appeal may be considered even if resolution can afford no practical relief to the particular appellant if “the issues involved (1) were capable of repetition, yet evading review; (2) affected an ongoing program of the state’s penal system; and (3) could very well affect the plaintiffs should they be convicted in the future.”

       The petitioner has since been released from prison on parole and the chance that his status will be affected by a decision in this appeal is ejctremely remote.


author: Glass, J. Borden, J.,

text:
    State of Connecticut v. Larry Buell
    (14166)
    Shea, Callahan, Glass, Covello, Borden, Berdon and Santaniello, Js.

      Argued October 29, 1991
    decision released March 17, 1992

      G. Douglas Nash, public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom were Steven M. Sellers, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Larry Buell, was charged by information with two counts of failure to appear in the first degree, in violation of General Statutes § 53a-172. A jury trial commenced on March 21,1990. The trial court, Cretella, J., sua sponte, declared a mistrial on March 23,1990, on the basis that defense counsel’s representation of a state’s witness, Rose Mumford, made it impossible for the trial to proceed. Thereafter, the defendant moved to dismiss the charges against him on the ground that further prosecution would violate the constitutional prohibition against double jeopardy. The trial court, Damiani, J., denied the motion to dismiss. The defendant appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. The sole question on appeal is whether the trial court improperly denied the defendant’s motion to dismiss made on the ground that a retrial would subject him to double jeopardy, which is proscribed by the fifth amendment to the United States constitution. We conclude that further prosecution in the circumstances of this case would violate the prohibition against double jeopardy and, therefore, we reverse the judgment of the trial court.

The facts relevant to this appeal are as follows. From March 5 to March 7, 1990, the trial court conducted jury voir dire. The state’s attorney read to two separate jury panels a list of the witnesses that the state intended to call. Mumford’s name was not mentioned to either panel. The trial was scheduled to commence on March 21,1990. On that date, prior to swearing in the jury, the trial court heard argument on three motions to quash subpoenas brought by defense counsel, John Williams. One of the motions concerned a subpoena served upon Mumford.* Williams, at that time, told the court that he represented Mumford. Shortly thereafter, during argument on the motions, the state’s attorney indicated her opposition to Williams’ representation of Mumford.* *** The court denied the defendant’s motions to quash. The state then requested permission to add several names to the list of witnesses, including Mumford’s. The court granted the state’s request over the objection of defense counsel. Thereafter, the jury was sworn.

The state presented the testimony of five witnesses to the jury on March 21 and 22, 1990. On March 23, before the jury was brought into the courtroom, the state’s attorney moved to disqualify Williams from representing Mumford. The state’s attorney claimed that she had first learned that Williams represented Mumford at the end of the day on March 22. She stated to the court, however, that she opposed a mistrial and recommended that the court appoint other counsel for Mumford. Williams countered that he had filed an appearance on behalf of Mumford with the clerk on March 21 and had personally served the appearance on the state’s attorney. Williams informed the court that if called to testify, Mumford intended to exercise her right against self-incrimination. He further indicated that the state had been made aware that he represented Mumford on March 21, when he argued the motion to quash the state’s subpoena to her.

After a recess, the trial court heard further argument concerning Williams’ representation of Mumford. Williams argued that the court should hold a hearing, pursuant to State v. Williams, 203 Conn. 159, 523 A.2d 1284 (1987), and United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to determine whether the defendant and Mumford would make a knowing and intelligent waiver of their right to conflict free representation. Williams represented to the court that he had advised the defendant and Mumford of their rights and of the potential conflicts in dual representation, and that each was prepared to make such a waiver on the record. Despite Williams’ assurances and the recommendation of the state’s attorney that the court appoint other counsel for Mumford, the court declared a mistrial.

In reaching its conclusion that a mistrial was necessary, the trial court found “it highly improper to have defense counsel on the day of trial, March twenty one, file an appearance for a person known to be a state witness . . . .” The court found that Williams’representation of Mumford “pose[d] insurmountable problems” and made it “virtually impossible” for the case to proceed. The court stated that if Mumford were called to testify, Williams would have to cross-examine his own client, which created “an unconscionable and impossible hurdle to surmount.” The court went on to state that “[it was] with great reluctance” that it could not allow the case to proceed but that it found that Williams’ actions had brought about the mistrial. The court concluded that it was “impossible” for the case to continue and, sua sponte, declared a mistrial. The defendant subsequently filed a motion to dismiss on the ground that a second prosecution would constitute double jeopardy. The trial court denied the motion to dismiss and this appeal followed.

On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because the declaration of a mistrial without his consent based on his attorney’s simultaneous representation of a state’s witness was without manifest necessity. The defendant argues that because the trial court failed to consider the alternatives to a mistrial, the state has not demonstrated manifest necessity. Specifically, the defendant contends that the court should have conducted a hearing pursuant to State v. Williams, supra, and United States v. Curcio, supra, to determine whether the defendant and Mumford would waive their right to conflict free representation, or at the least, should have allowed a continuance to appoint new counsel for Mumford as the state’s attorney had recommended. The state argues that the trial court thoroughly considered and rejected the proposed alternatives and that a mistrial was manifestly necessary to avoid compromising the fairness of the trial. Because the record indicates that the trial court was made aware before the jury was sworn that Williams represented Mumford, we conclude that there was no manifest necessity for the declaration of a mistrial.

“The fifth amendment to the United States constitution provides, in relevant part, ‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.’ ‘This clause, which is applicable to the states through the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); establishes the constitutional standards concerning the guarantee against double jeopardy. Crist v. Bretz, 437 U.S. 28, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978); Benton v. Maryland, supra, 795.’ State v. Roy, 182 Conn. 382, 385, 438 A.2d 128 (1980); see Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978).” State v. Van Sant, 198 Conn. 369, 376, 503 A.2d 557 (1986). Jeopardy attaches once the jury has been selected and sworn. Id.; see Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). The constitutional protection afforded by the double jeopardy clause includes the defendant’s “ ‘valued right to have his trial completed by a particular tribunal.’ Arizona v. Washington, supra.” (Internal quotation marks omitted.) State v. Van Sant, supra.* ***** This right is not absolute, however, and may in some cases be subordinated to “the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.” Arizona v. Washington, supra, 505.

“In construing the double jeopardy clause of the United States constitution in the context of a declaration of a mistrial over a defendant’s objection, the seminal decision is United States v. Perez, [22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824)].” State v. Van Sant, supra, 377. “Justice Story, writing for the United States Supreme Court in Perez, set forth standards for determining when to order a retrial after the declaration of a mistrial over the defendant’s objection. He said: ‘We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes . . . .’ United States v. Perez, supra, 580.” State v. Van Sant, supra, 378. The United States Supreme Court has continued to adhere to the “manifest necessity” standard set forth in Perez, and has rejected “the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” Illinois v. Somerville, supra, 462; see also United States v. Jorn, 400 U.S. 470, 480, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). We have similarly eschewed a mechanical application of the manifest necessity standard. State v. Van Sant, supra, 379.

“ ‘The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant.’ ” Id., quoting Arizona v. Washington, supra. “With respect to construction of the terms ‘manifest necessity,’ a ‘high degree’ of ‘necessity’ is required before a conclusion may be reached that a mistrial is appropriate . . . .” State v. Van Sant, supra, quoting Arizona v. Washington, supra, 506-507. Atrial judge must therefore engage in a “scrupulous exercise of judicial discretion”; United States v. Jorn, supra, 485; in order to “assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.” Id., 486. The duty of the trial court to exercise such discretion is not diminished by any contribution the litigants may arguably have made to the situation in which the court finds itself. Id., 485-86.

“ ‘A reviewing court looks for a manifest necessity by examining the entire record in the case without limiting itself to the actual findings of the trial court. . . .’ ” State v. Van Sant, supra. “It is the examination of the propriety of the trial court’s action against the backdrop of the record that leads to the determination whether, in the context of a particular case, the mistrial declaration was proper.” Id. Applying this standard of review to the present case, we conclude that the trial court was not warranted in declaring a mistrial.

The record reveals that Williams first brought his representation of Mumford to the attention of the trial court on March 21, 1990, the day the trial was scheduled to commence. At that time, Williams proffered three motions to quash subpoenas. In referring to a subpoena that the state had served on Mumford, Williams clearly stated that he represented her. The state’s attorney remarked on Williams’ statement shortly thereafter, indicating that she opposed his representation of Mumford. Much of the ensuing argument, however, concerned a subpoena that had been served on Williams’ law partner, Sue Wise. After the court denied all three motions, thé state’s attorney requested, and was granted, over Williams’ objection, permission to add several names, including Mumford’s, to the witness list. These events transpired before the jury was sworn.

We recognize “that a criminal trial is, even in the best of circumstances, a complicated affair to manage.” United States v. Jorn, supra, 479. Nevertheless, “the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one.” Illinois v. Somerville, supra, 471. “[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, supra, 486. “Manifest necessity” by definition requires an element of surprise; that is, the reason for the declaration of a mistrial arises or becomes known to the court only after the jury has been sworn and jeopardy has attached. See, e.g., Arizona v. Washington, supra (court declared mistrial due to improper and prejudicial comment of defense counsel during opening statement); Cherry v. Director, State Board of Corrections, 635 F.2d 414 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981) (court excused juror and declared mistrial after learning that juror’s mother had died). Here, the defendant’s trial had proceeded for two days, through the testimony of five witnesses, before the trial court declared a mistrial, yet the cause to which the court attributed the necessity for a mistrial had been disclosed to the court and the prosecutor before the jury was sworn. Nor does this case present circumstances in which we must accord “special respect” to the trial court’s determination, as in cases involving possible juror bias; Arizona v. Washington, supra, 510-14; or the inability of the jury to reach a verdict. See United States v. Perez, supra. In the circumstances of this case, therefore, we are constrained to conclude that further prosecution of the defendant would violate the double jeopardy provision of the fifth amendment.

The judgment is reversed and the case is remanded with direction to grant the motion to dismiss.

In this opinion Shea, Callahan, Berdon and Santaniello, Js., concurred.

Borden, J.,

with whom Covello, J., joins, concurring. I agree with the result reached by the majority opinion, but I disagree with its analysis. I believe that the opinion relies on an analysis that is much more simple than the case requires and that is not supported by the cases upon which it relies.

The entire basis of the lack of manifest necessity, as I read the majority opinion, is that the trial court was made aware of the fact of dual representation by Williams before the jury was sworn. The only authority offered by the opinion for this basis is the following: “ ‘Manifest necessity’ by definition requires an element of surprise; that is, the reason for the declaration of a mistrial arises or becomes known to the court only after the jury has been sworn and jeopardy has attached. See, e.g., Arizona v. Washington, [434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)] (court declared mistrial due to improper and prejudicial comment of defense counsel during opening statement); Cherry v. Director, State Board of Corrections, 635 F.2d 414 (5th Cir.), cert. denied, 454 U.S. 840, 102 S. Ct. 150, 70 L. Ed. 2d 124 (1981) (court excused juror and declared mistrial after learning that juror’s mother had died).” (Emphasis in majority opinion.)

Neither of these cases, however, nor any other case that I have read in this area, stands for the proposition that there is no manifest necessity unless the reason for the mistrial arises or becomes known to the trial court after jeopardy has attached. Of course, in both Cherry v. Director, State Board of Corrections, supra, and Arizona v. Washington, supra, the mistrial was declared after jeopardy had attached, and in both cases that was when the reason for the mistrial arose and became known to the judge. That is the usual scenario, because ordinarily the two predicates—the reason for mistrial and the declaration of a mistrial—occur more or less at the same time. But I fail to see how that means that where, as here, the information is made known to the trial judge before the jury is sworn, but neither the state, the defendant nor the court fully appreciates its significance at that time, somehow the court is later precluded, ipso facto, from later declaring a mistrial based on that reason if, at the later time, manifest necessity in fact does exist. Yet, despite the purported disclaimer in footnote 9 of the majority opinion, that is precisely what the majority opinion in this case says.

I agree that the fact that the dual representation problem was brought to the attention of the trial court, albeit indirectly, before the jury was sworn may be relevant to whether there was manifest necessity for a later mistrial. It seems to me, however, that using the timing of the disclosure as the sole basis of the decision, particularly here where that disclosure was made in the course of a hearing on a motion to quash a subpeona that had nothing to do with dismissal or double jeopardy, is unprecedented and unwise.

I believe, therefore, that a more detailed analysis is required, one that employs the appropriate standards for determining whether manifest necessity existed in this case. Neither those standards nor how they are to be applied is very clear from the case law. Some of them are as follows.

The state has the burden of establishing manifest necessity, which does not mean an absolute or literal necessity for a mistrial but only a “high degree” of necessity. Arizona v. Washington, supra, 506. We give a great deal of deference to the trial judge’s decision. Id., 514. The ultimate issue is whether the trial judge exercised sound discretion. Id. Implicit in the decision is the requirement that the trial judge considered the available alternatives to a mistrial. Cherry v. Director, State Board of Corrections, supra, 418; see also State v. Van Sant, 198 Conn. 369, 381, 503 A.2d 557 (1986) (trial court realistically considered alternatives to mistrial). A trial judge has acted with sound discretion in rejecting alternatives to a mistrial if reasonable trial judges could differ about the proper disposition, even if the mistrial was not strictly necessary. Id., 381 n.10. If the record indicates that the trial judge acted erratically or precipitously, his determination will not be upheld. Grandberry v. Bonner, 653 F.2d 1010 (5th Cir. 1981). These are just some of the applicable standards; other cases reinforce one or more of these factors, depending on the facts of the case.

Applying these factors, I conclude that this is a very close case. A good argument can be made for affirmance here: the trial court’s action is entitled to great deference; arguably, reasonable trial judges could differ—in fact, not one but two trial judges, Judge Cretella and Judge Damiani both agreed on the necessity for a mistrial; the reason for the mistrial was based on the conduct of the defendant’s counsel in undertaking to represent a state’s witness; and the judge did not act erratically or precipitously—he took a recess, heard argument, and presumably considered the alternatives, which he felt were unsatisfactory because of what he perceived as a conflict of interest.

Nonetheless, I conclude that there was an abuse of discretion in this case. First, it seems to me that the whole discussion of a conflict of interest was beside the point. There was no conflict of interest, in the sense of divided loyalties, by Williams representing both the defendant and Mumford, where, as represented to the court by Williams, Mumford was going to exercise her privilege not to testify. If anything, both Mumford’s interest and the defendant’s interest were the same at that point. There would only have been a conflict of interest if Mumford were to have testified, or there arose some inducement to her to testify that would have benefited her and not the defendant. But the record discloses nothing like that. In any event, clearly such a conflict was waivable by the defendant and by Mumford, pursuant to a proper canvass and hearing.

What was really at issue, then, was not an actual or potential conflict of interest in its ordinary sense, but the fact that Williams, by representing a state’s witness and advising her to exercise her privilege, was interfering with the state’s proof. I agree that the trial court was perfectly correct in not letting that happen, but the easily available remedy was simply to disqualify Williams from representing Mumford, rather than to abort the entire trial. Even then, if Mumford elected to stand on her privilege and not testify, there would have been no conflict of interest, because Williams would not have had to cross-examine her. And if she changed her mind and did testify, at that point it would have been up to the defendant whether to waive any conflict in keeping Williams as his attorney.

Furthermore, neither the state nor the defendant wanted a mistrial, and both suggested alternatives to the trial court—the state, to disqualify Williams from representing Mumford, and the defendant, to hold a “conflict waiver” hearing, which Williams represented would yield a waiver by both the defendant and Mumford. In addition, the state knew before the jury was sworn that Williams represented one of its witnesses, and took no action to forestall the attachment of jeopardy. Since the state has the burden of establishing manifest necessity, it should bear whatever fault there may be for not warning the trial court about the problem of jeopardy before it attached.

Moreover, the problem surfaced before the jury was sworn, but was not acted upon until the third day of trial. Thus, the defendant was required to undergo three days of unnecessary trial expense and anxiety.

Finally, the state has the burden to establish a high degree of necessity for the mistrial. Under all of the circumstances, I do not think that high degree of necessity was established here.

I therefore concur in the result reached by the majority.

       “[General Statutes] Sec. 53a-172. failure to appear in the first degree: class d felony, (a) Any person who, while charged with the commission of a felony and while out on bail or released under other procedure of law, wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, is guilty of failure to appear in the first degree.
      “(b) Failure to appear in the first degree is a class D felony.”

       The remaining motions concerned subpoenas served on Williams’ law partner, Sue Wise, and the defendant’s mother, Ann Buell.

       The following colloquy transpired between the court and defense counsel:
      “Mr. Williams: There are three motions to quash that have been filed, your Honor. One was filed this morning.

        “The Court: Do you have the other one, the third one there? Do you have the third motion?
      “Mr. Williams: Mr. Clerk?
      “Mr. Williams: The first referred to a subpoena served upon Sue Wise. The second is a subpoena served on Ann Buell and the third a subpoena served upon Rose Mumford, whom, I represent.

      “The Court: All right.” (Emphasis added.)

       The following colloquy transpired between the court and the state’s attorney:
      “Ms. Baran: Your Honor, I will cite to the court Connecticut General Statutes Section 52-144, which clearly articulates the form of a subpoena. And as the court is more than well aware, a subpoena is valid for sixty days subsequent to the date cited thereon. And, therefore, I would just state to the court that I think that Attorney Williams’ argument with regard to these subpoenas is frivolous.
      “The Court: Second ground?
      “Ms. Baran: The second ground, your Honor, is that I think Mr. Williams represented, much to my surprise, ‘all of whom I represent’ when he was referring to Rose Mumford, who is an independent witness. ” (Emphasis added.)

       Defense counsel objected to the proposed addition of witnesses on the basis that the state had been ordered to disclose the names and addresses of all witnesses that it intended to call on the first day of jury selection. Defense counsel requested first, that the trial court order the state to provide the addresses of all witnesses that it intended to call, and second, that the court grant a continuance for defense counsel to investigate the additional witnesses. The court ordered the state to provide the witnesses’ addresses but denied the motion for a continuance.

       The jury heard the testimony of Judge William Hadden, Minna Dew, Edward Kendall, Robert Sterling and David Schultz.

       Because our conclusion that there was no manifest necessity is based on events that occurred prior to the swearing in of the jury, we do not reach the issue of whether, before the trial court declared a mistrial, it should have conducted a hearing to determine whether the defendant and Mumford would waive their right to conflict free representation. This court has previously recognized the importance of the trial court’s consideration of the alternatives to a mistrial in determining whether manifest necessity existed. See State v.Van Sant, 198 Conn. 369, 381, 503 A.2d 557 (1986).

       In Arizona v. Washington, 434 U.S. 497, 503-504, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978), the United States Supreme Court set forth the reasons behind the constitutional protection of a criminal defendant’s right to have his trial completed by a particular tribunal: “[A second prosecution] increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.” The court stated further that “[t]he danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed,” and that, therefore, “as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Id., 505.

       This does not mean, however, that something that was known prior to the jury being sworn could never assume a significance it did not originally appear to have had and thus constitute a legitimate ground for a mistrial. As this court has stated: “Manifest necessity is not amenable to a precise formulation or mechanical application because the ‘high degree’ of necessity mandated by that phrase can be found in a variety of circumstances.” State v. Van Sant, 198 Conn. 369, 379, 503 A.2d 557 (1986).


author: Callahan, J.

text:
    New England Dairies, Inc. v. Commissioner of Agriculture
    (14245)
    Shea, Callahan, Glass, Borden and Berdon, Js.
    Argued December 4, 1991
    decision released March 17, 1992

      Sylvia M. Ho, with whom was Richard C. Robinson, for the appellant-appellee (plaintiff).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee-appellant (defendant commissioner of agriculture).

      Frank J. Silvestri, Jr., with whom were Andrew A. Wittenstein, pro hac vice, and, on the brief, Stuart I. Friedman, pro hac vice, for the appellee-appellant (defendant Farmland Dairies).
   Callahan, J.

The dispositive issue in this appeal is whether a hearing held by the department of agriculture constituted a “contested case” pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. The intervening defendant, Farmland Dairies (Farmland), a New Jersey based dairy manufacturer and supplier of milk and other dairy products, applied to the Connecticut department of agriculture for a license to sell and distribute milk in this state. The defendant, the commissioner of agriculture (commissioner), granted a license to Farmland. Thereafter, the plaintiff, New England Dairies, Inc., a Connecticut based milk dealer, appealed the commissioner’s decision to the Superior Court pursuant to General Statutes § 4-183 (a). On December 31, 1990, the Superior Court dismissed the appeal. The plaintiff then appealed to the Appellate Court, and the defendants each cross appealed.* We transferred the case to this court pursuant to Practice Book § 4023. We affirm the judgment of the Superior Court.

The briefs of the parties reveal the following undisputed facts. In January, 1989, Farmland applied to the department of agriculture for a license to sell and distribute milk in Connecticut. In the course of reviewing Farmland’s application, the department of agriculture inspected Farmland’s New Jersey dairy plant in August, 1989, and again in June, 1990. The inspectors determined that, at those times, Farmland’s facilities did not conform to the requirements of the Connecticut department of agriculture. On December 8, 1989, the plaintiff sent a letter to the commissioner describing conduct by Farmland that the plaintiff believed should be considered by the commissioner prior to the issuance of a Connecticut milk dealer’s license to Farmland. Specifically, the plaintiff maintained that it possessed information indicating that Farmland was in violation of General Statutes § 22-231 (7), and should not be granted a license. The commissioner informed the plaintiff that it would hold a hearing on Farmland’s application, and that the plaintiff’s concerns would be among the issues addressed at the hearing. Prior to the commencement of the hearing, the plaintiff requested that it be granted party status at the proceedings. The hearing officer designated by the commissioner denied that request, but granted the plaintiff intervenor status.

On November 1,1990, the hearing commenced before the hearing officer. Shortly after the opening of the hearing, the department of agriculture announced that its inspectors had reinspected Farmland’s facilities, and that Farmland had passed the inspection. On November 5, 1990, prior to the introduction by the plaintiff of any evidence of the alleged misconduct by Farmland, the commissioner issued a license to Farmland to sell and distribute milk and dairy products in Connecticut. Since the hearing no longer had a purpose, it was adjourned by the hearing officer.

On November 7, 1990, the plaintiff appealed to the Superior Court pursuant to § 4-183 (a) claiming that the hearing was improperly terminated. Farmland successfully moved to be joined as a party defendant in the appeal. Subsequently, both defendants moved to dismiss the plaintiff’s appeal, claiming that the Superior Court was without jurisdiction to hear the appeal because: (1) the hearing before the department of agriculture was not a “contested case” pursuant to § 4-183 (a) and General Statutes § 4-166 (2) and (3); and (2) the plaintiff was not aggrieved pursuant to § 4-183 (a). Farmland raised a third ground for dismissal in its motion, claiming that the plaintiffs appeal should be dismissed because the plaintiff had failed to exhaust its administrative remedies as required by § 4-183 and General Statutes § 22-248. The Superior Court concluded that the plaintiff had been aggrieved, and that it had exhausted its administrative remedies, but the court dismissed the plaintiffs appeal concluding that it had no jurisdiction to hear the appeal because the plaintiff had not appealed from a “contested case.”

The plaintiff argues that the Superior Court improperly dismissed its appeal because the hearing before the department of agriculture was a contested case from which it had a right of appeal. We agree with the trial court that the plaintiff had not appealed from a contested case.

The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances. General Statutes § 4-183 (a). Generally, the UAPA requires that an appeal be taken from a “final decision.” Section 4-166 (3) defines a final decision as: “(A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration.” The plaintiff’s sole contention in its appeal to this court is that the commissioner’s decision to grant a milk dealer’s license to Farmland was a final decision because it constituted a “determination in a contested case” as contemplated by § 4-166 (3) (A). “A ‘contested case’ is defined as ‘a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .’ ” (Emphasis in original.) Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 469, 378 A.2d 547 (1977); General Statutes § 4-166 (2). Furthermore, we have determined that even in a case where a hearing is “in fact held,” in order to constitute a contested case, a party to that hearing must have enjoyed a statutory right to have his “legal rights, duties or privileges” determined by that agency holding the hearing. Herman v. Division of Special Revenue, 193 Conn. 379, 383 n.5, 477 A.2d 119 (1984); Rybinski v. State Employees’Retirement Commission, supra, 469-73; Taylor v. Robinson, 171 Conn. 691, 697, 372 A.2d 102 (1976). In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency’s determination.

The plaintiff asserts that the hearing in this case was mandated because the commissioner is statutorily required to conduct a hearing on an application for a milk dealer’s license when he is presented with a “reasonable basis” to believe that grounds for refusing that license “may exist.” The plaintiff further asserts that the allegations in its letter to the commissioner presented a reasonable basis upon which to deny Farmland’s application for a license. General Statutes § 22-234 provides in relevant part: “Before refusing to grant or renew, or before suspending, revoking or refusing to transfer, a license, the commissioner of agriculture shall afford the applicant or licensee an opportunity to be heard before him or his designated agent.” General Statutes § 22-231 sets forth specific bases upon which the commissioner may “refuse to grant or renew a license, or may suspend, revoke or refuse to transfer a license already granted . . . .” By its plain language, § 22-234 entitles an applicant for a license to a hearing only prior to an action by the commissioner that would detrimentally affect the applicant. Nothing in § 22-234, or any provision of the UAPA, however, entitles any party to a hearing concerning an application for a milk dealer’s license prior to the granting of such application.

The plaintiff claims that the legislature, in adopting §§ 22-231 and 22-234, intended to obligate the commissioner to conduct a hearing on an application for a milk dealer’s license if reasonable grounds upon which the license could be refused were presented. The plaintiff asserts that any other interpretation of those statutes would lead to the bizarre circumstance in which the commissioner could decide not to hold a hearing, despite evidence tending to indicate that an applicant should not be issued a license. Such a result, it contends, would harm both consumers of dairy products and dairy competitors.

“ ‘To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. . . .’ ’’(Citations omitted.) Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 60, 594 A.2d 981 (1991). We conclude that the language of § 22-234 plainly does not require that the commissioner conduct a hearing prior to the granting of a milk dealer’s license. Because a license was granted to Farmland, the commissioner was not required to conduct any hearing at all on Farmland’s application. The hearing conducted by the commissioner, therefore, did not constitute a contested case. Consequently, the Superior Court was correct when it determined that it had no jurisdiction to hear the plaintiff’s appeal. See Herman v. Division of Special Revenue, supra; Rybinski v. State Employees’Retirement Commission, supra; Taylor v. Robinson, supra.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 4-183 provides in relevant part: “appeal to superior COURT, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal. . . .”

       Because we conclude that the plaintiff’s appeal was properly dismissed, we do not address the defendants’ cross appeals.

       General Statutes § 22-231 provides in relevant part: “grounds for refusal, suspension or revocation of license. The commissioner of agriculture may refuse to grant or renew a license, or may suspend, revoke or refuse to transfer a license already granted, after he has determined that the applicant or dealer ... (7) has continued in a course of dealing of such nature as to show an intent to deceive, defraud or impose upon producers or consumers . . . .”

       General Statutes § 4-166 provides in relevant part: “definitions. As used in this chapter . . .
      “(2) ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168;
      “(3) ‘Final decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration

       General Statutes § 22-248 provides: “petition for reconsideration OF ORDER OR REGULATION; APPEAL. Any person aggrieved by an order or regulation may, within forty-five days after the effective date thereof, file a written petition with the commissioner of agriculture stating that any such order or regulation or any provision thereof is not in accordance with law, praying for reconsideration and for revision, modification or revocation thereof. Such petition shall specify the objections to such order or regulation, and shall state facts and reasons in support of such objections, none of which objections, unless so specified and supported, shall be considered by the commissioner or included in any appeal petition subsequently filed or considered by the court upon appeal from such order or regulation. Any such person, within ten days after notice of decision by the commissioner denying such reconsideration or the relief sought, or within twenty days after the filing of such petition, if the commissioner fails to grant such reconsideration or the relief sought, may appeal from such order or regulation to the superior court for the judicial district of Hartford-New Britain*. No such appeal shall be permitted to act as a supersedeas except on special order of the court or, if such court is not in session, on special order of any judge thereof, issued upon application and after reasonable notice thereof to the commissioner; provided such special order shall require the appellant to file a bond with sufficient sureties in such sum as is determined by the court to be necessary for the protection of producers and others during the pendency of the appeal, or to comply with other adequate protective conditions therein provided.”

       General Statutes § 22-231 provides: “grounds for refusal, suspension OR revocation OF license. The commissioner of agriculture may-refuse to grant or renew a license, or may suspend, revoke or refuse to transfer a license already granted, after he has determined that the applicant or dealer: (1) Has failed to comply, or has been a responsible member or officer of a partnership or corporation which failed to comply, with any provision of this part or any order, ruling, regulation or direction issued hereunder; (2) has insufficient financial responsibility, personnel or equipment properly to conduct the milk business; (3) is a person, partnership, corporation or other business entity, in which any individual holding a material position, interest or power of control has previously been responsible in whole or in part for any act on account of which a license was or may be denied, suspended or revoked under the provisions of this part; (4) has failed to file a bond required by the commissioner under the provisions of this part; (5) is not in compliance with all laws and regulations of the state pertaining to health and sanitation in the production, processing, handling or sale of milk; (6) has rejected, without reasonable cause, any milk purchased from a producer, or has refused to accept, without either reasonable cause or reasonable advance notice, milk delivered by or on behalf of a producer in ordinary continuance of a previous course of dealing, except when the contract has been lawfully terminated; provided, in the absence of an express or implied fixing of a period in the contract, ‘reasonable advance notice’ shall be construed to mean not less than one week nor more than two weeks; (7) has continued in a course of dealing of such nature as to show an intent to deceive, defraud or impose upon producers or consumers; (8) has violated any stipulation or written agreement entered into with the commissioner in the course of any proceeding under this part; (9) has made a false material statement in his application.”