author: PETERS, C. J. CALLAHAN, J.,

text:
    STATE OF CONNECTICUT v. SHAWN ROBINSON
    (15313)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued March 27
    officially released June 4, 1996

      Deborah DeHart Cannavino, with whom were William H. Nanvold and, on the brief, Temmy AnnPieszak, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, assistant state’s attorney, for the appellee (state).
   PETERS, C. J.

Federal and state constitutional law prohibit peremptory challenges of jurors if such challenges are racially motivated. The principal issue in this certified appeal is the identification of the point in time during the jury selection process at which a litigant must voice an objection to a peremptory challenge that allegedly was based on race. After a jury trial, the defendant, Shawn Robinson, was convicted of two counts of assault in the second degree in violation of General Statutes (Rev. to 1987) § 53a-60. The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed to the Appellate Court. The Appellate Court remanded the case for further proceedings to determine whether the defendant had raised a timely objection to the state’s peremptory challenge of a venireperson. State v. Robinson, 38 Conn. App. 598, 662 A.2d 1295 (1995). We granted the defendant’s petition for certification to appeal. We reverse the judgment of the Appellate Court and remand the case to that court with direction to remand to the trial court for a new trial.

The defendant has not challenged, either in the Appellate Court or in this court, the sufficiency of the evidence to sustain his convictions for assault in the second degree. The jury reasonably could have found, beyond a reasonable doubt, that, while the defendant was an inmate at the Manson Youth Correctional Facility in Cheshire, he struck and intentionally caused physical injury to two correctional officers who were engaged in the performance of their duties.

The only issue before us is the defendant’s claim that, in selecting the six person jury that convicted him of these assaults, the state improperly used its peremptory challenges in a racially discriminatory manner. The opinion of the Appellate Court describes the relevant facts. “Of the first thirty-eight venirepersons called for jury selection, three were black. One of those three was excused by the court for hardship, and the other two, Lisa Spruill and Melvin Perry, were excused by the state through the use of peremptory challenges.

“Spruill was the second person voir dired and Perry the thirty-eighth person voir dired. The defendant did not object on the basis of Batson v. Kentucky, [476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)], immediately after the state used a peremptory challenge to excuse Spruill, but the defendant did object on that basis as to Spruill and Perry immediately after the state excused Peny, and moved that the entire venire panel be dismissed. When the defendant made his Batson claim, he asked the state to put on the record its reasons for excusing both Perry and Spruill.

“The state asserted that it [had] excused Peny for two reasons. First, the state felt that a comment made by Perry, ‘it takes two to fight,’ indicated that Perry would be lenient about fights and that Perry thought that no one was solely at fault for a fight. Second, the state was concerned with the fact that Perry had a fourth grade education, whereas the other jurors that had been selected had at least high school educations. The state was asked by the court if it wanted to put anything on the record as to Spruill, and the state declined, stating that the defendant had not made a Batson claim as to her immediately following her voir dire. The court did not require the state to put on the record its reasons for excusing Spruill.

“When the defendant requested a ruling on his motion to dismiss the venire panel because of the exclusion of both Peny and Spruill, the court stated that it was premature to rule because not enough had developed for it to be able to find any prejudice. The defendant continued to argue his claim on statistical grounds, raising the fact that the state had struck ‘a hundred percent of the people in the cognizable [racial] group,’ and that the state had, therefore, excused a disproportionate number of black venirepersons.

“The court found that the state’s reasons for the challenge of Perry were not pretexts and inferentially that the defendant had not satisfied his burden of proof that the striking of Perry was racially motivated. The court made no ruling as to Spruill because the defendant had not objected when she was excused. In short, no Batson hearing was held as to Spruill.

“The court never specifically ruled on the defendant’s motion to dismiss the entire venire panel but implicitly denied it because it found the peremptory challenge as to Perry [had not been] racially motivated and that no Batson hearing was needed as to the peremptory challenge of Spruill because the defendant’s claim as to her was untimely. After the trial . . . had concluded, the defendant filed a motion for a new trial based on his Batson claims. The court denied that motion.” State v. Robinson, supra, 38 Conn. App. 605-606.

On the issue of law concerning the proper timing for & Batson challenge, the Appellate Court concluded that, in order to avoid a finding of waiver, a defendant must object to the state’s use of a peremptory challenge on equal protection grounds “at that point in the voir dire proceedings when the possibility of purposeful discrimination became or should have become apparent.” Id., 615. In light of this conclusion, the Appellate Court remanded this case to the trial court for a hearing to determine whether the defendant had objected in a timely manner. Id., 615-16, 621.

For future cases, the Appellate Court exercised its supervisory powers to establish a rule requiring contemporaneous notice. As articulated by the Appellate Court, the proposed contemporaneous notice procedure would require a defendant, whenever the state exercised a peremptory challenge, to alert the trial court and the state that, at some later time, the defendant might raise a Batson claim with reference to the propriety of that peremptory challenge. The defendant would then be required to raise a plenary claim that a peremptory challenge had not been racially neutral, as soon as he or she had become aware, or should have become aware, of the relevant facts as they became manifest during the questioning of other potential jurors. If the defendant either did not notify the court and the state immediately of a possible future Batson challenge or did not pursue the Batson claim further as soon as he or she had grounds reasonably to have done so, the Batson challenge would have been deemed waived. In the absence of a waiver, the trial court would hold a hearing to determine the validity of the Batson claim once it had matured. Id., 617.

The defendant appeals from the Appellate Court’s disposition of his Batson claim. He argues that any requirement that a Batson claim must be raised at the moment a defendant becomes aware or should become aware of a possible equal protection violation impairs his equal protection rights under the fourteenth amendment to the United States constitution. Furthermore, he contends that the contemporaneous notice rule adopted prospectively by the Appellate Court would similarly fail to protect a defendant’s equal protection rights. The state urges us to uphold the rulings of the Appellate Court as constitutionally adequate and protective of judicial resources. We agree with the defendant. Rather than adopt the contemporaneous notice rule, we conclude that a party has timely raised an equal protection objection to the use of a peremptory challenge if that claim is brought to the attention of the trial court before the jury has been sworn.

“In Batson v. Kentucky, [supra, 476 U.S. 79,] the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors on account of their race . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 323, 630 A.2d 593 (1993); State v. Smith, 222 Conn. 1, 10-11, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Gonzalez, 206 Conn. 391, 394, 538 A.2d 210 (1988). Since Batson, the court has “reaffirmed repeatedly [its] commitment to jury selection procedures that are fair and nondiscriminatory.” J.E.B. v. Alabama, 511 U.S. 127, 128, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (extending holding in Batson to gender based peremptory challenges); see Georgia v. McCollum, 505 U.S. 42, 49-50, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (extending holding in Batson so that prosecutor may object to defendant’s use of peremptory challenges); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991) (extending holding in Batson to civil cases); Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (extending holding in Batson to situation in which defendant and challenged juror belong to different racial or ethnic groups).

“Once a criminal defendant asserts a Batson claim, the prosecution must advance a neutral explanation for the venireperson’s removal. . . . The defendant is then afforded the opportunity to demonstrate that the state’s articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine [as a question of fact] if the defendant has established purposeful discrimination.” (Citation omitted; internal quotation marks omitted.) State v. Hinton, supra, 227 Conn. 323.

A defendant may waive his or her equal protection right to be free of improperly motivated peremptory challenges. See State v. Patterson, 230 Conn. 385, 392, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). “As the United States Supreme Court has stated, [n]o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the light. Peretz v. United States, 501 U.S. 923, 936-37, 111 S. Ct. 2661, 115 L. Ed. 2d 808 (1991), quoting Yakus v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 2d 834 (1944).” (Internal quotation marks omitted.) State v. Patterson, supra, 393.

A defendant can be deemed, however, to have waived the equal protection right to be free of racially motivated peremptory challenges by failing to assert that right only if he or she has had access to sufficient information to support the equal protection claim. See generally Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (“waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege”); State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986) (“waiver must be accomplished with sufficient awareness of the relevant circumstances and likely consequences” [internal quotation marks omitted]). Thus, the appropriate point at which a defendant must assert a Batson claim depends on when, in light of our jury selection procedure, the defendant has had access to the necessary information to assert an ostensibly viable claim.

In determining the time at which a defendant has access to the information that he or she needs in order to decide whether to pursue a Batson claim, we must consider the procedure by which a jury is selected from a venire panel. Before individual voir dire commences, the members of the venire panel are sworn or affirmed. The trial court and the trial attorneys then disclose to the venire panel the names of counsel with which each of the attorneys is affiliated, the names of prospective witnesses, and other facts relevant to the general nature of the case. Practice Book § 847. The trial court then asks members of the venire panel if any of them is familiar with the people or the information just disclosed, and usually asks if there is any other reason why any of them would be unable to participate as an unbiased juror. A. Spinella, Connecticut Criminal Procedure (1985) p. 652. The trial court may excuse any prospective juror for cause. Practice Book § 847. Also, the trial court may give preinstructions to the panel in order to inform the panel of generally applicable legal concepts. See State v. Figueroa, 235 Conn. 145, 184, 665 A.2d 63 (1995).

Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f; Practice Book § 848. After the completion of the voir dire of a particular venireperson, a party may challenge the venireperson for cause. The court must excuse that juror if the “judge ... is of the opinion from the examination that [the] juror would be unable to render a fair and impartial verdict . . . .” General Statutes § 54-82f; Practice Book § 848. Unless one of the parties exercises a peremptory challenge to remove the venireperson, a venireperson who has not been excused for cause must be accepted by the parties as a prospective member of the jury panel. A. Spinella, supra, p. 660. The purpose of voir dire is to “facilitate [the] intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 602, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976) (Brennan, J., concurring); see J.E.B. v. Alabama, supra, 511 U.S. 144; State v. Hernandez, 204 Conn. 377, 381, 528 A.2d 794 (1987).

The procedure that attends the selection of a jury creates the possibility that a defendant may not have sufficient information to raise a Batson claim until late in the voir dire process. “We have identified several specific factors that may indicate that the state’s excuse of a venireperson through a peremptory challenge was racially motivated. These include, but are not limited to: (1) The reasons given for the challenge were not related to the trial of the case ... (2) the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race as the challenged juror were not struck ... (5) the prosecutor advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race. . . . State v. Gonzalez, supra, [206 Conn. 399]. . . . State v. Smith, [supra, 222 Conn. 11].” (Internal quotation marks omitted.) State v. Hinton, supra, 227 Conn. 325. These factors require a comparison of the characteristics, the voir dire questions and the voir dire responses of the challenged venireperson with those of the venirepersons who were not challenged, and require knowledge of the state’s use of all of its peremptory challenges.

In light of our jury selection system and the information necessary for the defendant to prevail on a Batson claim, we conclude that such a claim is timely, and has not been waived, if the defendant raises it at any time before the jury is sworn. Our “[c]oncem for protecting to the maximum extent possible the equal protection rights of both the accused and the excluded venirepersons, consistent with the constraints imposed by [our] jury selection process, guides [our] decision.” State v. Parker, 836 S.W.2d 930, 935 (Mo.) (en banc), cert. denied, 506 U.S. 1014, 113 S. Ct. 636, 121 L. Ed. 2d 566 (1992). When a sufficient number of venirepersons has been questioned to constitute a jury panel, a defendant will have had access to all information available to support his or her raising of a Batson claim. Although in many cases a defendant may have had sufficient information at a point earlier in the voir dire, we are persuaded that it is preferable to create a “bright line test [to] ensure consistency by removing any doubt about when a Batson hearing should be conducted.” (Internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 646 n.4, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989), quoting State v. Jones, 293 S.C. 54, 57-58, 358 S.E.2d 701 (1987). Furthermore, to require the claim to be raised at the earliest possible opportunity would create an “arbitrary procedural hurdle” to the vindication of an important constitutional right. See State v. Parker, supra, 936.

The rule that we establish today is consistent with the twin goals served by the requirement of a timely objection. Timely objection enables the parties and the trial court (1) to preserve an adequate record for appeal, and (2) to avoid prejudicial error by permitting reconsideration while it is still possible. State v. Patterson, supra, 230 Conn. 392-93. We address each goal in turn.

The state contends that allowing a defendant to defer raising a Batson claim until just before the jury is sworn will increase the difficulty of preserving an adequate record for appellate review because counsel and the trial court may have forgotten details of each individual voir dire. See, e.g., United States v. Dobynes, 905 F.2d 1192, 1197 (8th Cir.), cert. denied, 498 U.S. 877, 111 S. Ct. 206, 112 L. Ed. 2d 167 (1990). We disagree. We recognize that the parties may need to take detailed notes regarding the circumstances of and their reasons for each peremptory challenge, but we are not persuaded that the burden of such note-taking will be unreasonable. The parties have an opportunity to place on the record, at any time, all information that is reasonably pertinent to potential Batson claims. Indeed, if the hearing is held after voir dire has been completed, more information is available to the parties than at any earlier time in the proceeding.

The state further contends that a rule resolving Bat-son claims after the completion of the voir dire is impractical. The state maintains that a juror who has been peremptorily challenged earlier in the voir dire would most likely have been released from jury duty, under our “one-day, one-jury” system, by the time the jury is ready to be sworn. In light of this system, the trial court would have no way of avoiding prejudicial error by reseating a venireperson who had previously been challenged improperly. Adoption of a rule postponing the adjudication of Batson claims until the completion of voir dire would, therefore, in the view of the state, require the trial court to delay the trial by dismissing the chosen jurors and the venire, and beginning jury selection anew. In the absence of a showing of prejudice or of bad faith, we are not persuaded that the risk of delay is a sufficient reason to require a defendant to raise a potential Batson claim before he or she has access to sufficient information to do so properly.

In summary, we hold that a defendant may object to the state’s peremptory challenge on Batson equal protection grounds at any time prior to the swearing of the jury. In the present case, because the defendant objected to the state’s peremptory challenge of venireperson Spruill before the jury had been sworn, the defendant’s objection was timely. The trial court, therefore, improperly failed to hold a hearing on the defendant’s Batson claim.

Our conclusion that the trial court improperly failed to hold a Batson hearing requires us to decide what the proper remedy shall be. There are two alternatives. We could direct a limited remand, ordering the trial court to conduct a hearing now to determine whether the state’s peremptory challenge was racially motivated. See, e.g., Batson v. Kentucky, supra, 476 U.S. 100; People v. Snow, 44 Cal. 3d 216, 226-27, 746 P.2d 452, 242 Cal. Rptr. 477 (1987); Tursio v. United States, 634 A.2d 1205, 1213 (D.C. 1993); Stanley v. State, 313 Md. 50, 75-76, 542 A.2d 1267 (1988). This is the remedy usually invoked, and it is the remedy provisionally ordered by the Appellate Court. State v. Robinson, supra, 38 Conn. App. 616. Alternatively, we could reverse the judgment of the Appellate Court and direct it to remand the case to the trial court with direction to set aside the judgment against the defendant and to conduct a new trial on the charges against him.

Under the circumstances of the present case, we conclude that a new trial is the more appropriate remedy. Five years have passed since the voir dire. The state, moreover, did not place its reasons for striking the venireperson on the record at the time of the voir dire. We are persuaded, therefore, that there is “no reasonable possibility that the circumstances surrounding [the voir dire] can be reconstructed fairly . . . .” Mejia v. State, 328 Md. 522, 541, 616 A.2d 356 (1992) (remanding for limited hearing but noting that trial court may order new trial if it cannot make necessary findings). It is “unrealistic to believe that the prosecutor could now recall in [great] detail his reasons for the exercise of the peremptory [challenge] in issue, or that the trial judge could assess those reasons, as required, which would demand that [she] recall the circumstances of the case, and the manner in which the prosecutor examined the venire and exercised his other challenges.” (Internal quotation marks omitted.) People v. Snow, supra, 44 Cal. 3d 227 (six years had elapsed); see, e.g., Tursio v. United States, supra, 634 A.2d 1211; People v. Scott, 70 N.Y.2d 420, 426, 516 N.E.2d 1208, 522 N.Y.S.2d 94 (1987) (four years had elapsed; trial judge no longer sat in county; voir dire had not been transcribed). Accordingly, we remand this case for a new trial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion BERDON, NORCOTT and KATZ, Js., concurred.

CALLAHAN, J.,

concurring in part, dissenting in part. Although I agree with the majority’s conclusion that “a party has timely raised an equal protection objection to the use of a peremptory challenge if that claim is brought to the attention of the trial court before the jury has been sworn,” I do not agree that this case, at least initially, should be remanded for a new trial. I believe rather that the appropriate remedy is a remand to the trial court so that the state may attempt to offer a neutral explanation for its challenge of Lisa Spruill. The defendant then may seek to prove by a preponderanee of the evidence that the state’s explanation is pretextual. This course has been followed by appellate tribunals time and time again when, for a variety of reasons, the state has failed to state, on the record, its reasons for dismissing particular jurors. United States v. Joe, 928 F.2d 99, 103 (4th Cir.), cert. denied, 502 U.S. 816, 112 S. Ct. 71, 116 L. Ed. 2d 45 (1991); United States v. Davis, 816 F.2d 433, 434 (8th Cir. 1987), cert. denied, 488 U.S. 832, 109 S. Ct. 88, 102 L. Ed. 2d 64 (1988); United States v. Allen, 814 F.2d 977, 978 (4th Cir. 1987); United States v. Leslie, 813 F.2d 658, 659 (5th Cir. 1987); United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987); Ex parte Jackson, 516 So. 2d 768, 772-73 (Ala. 1986); Nickerson v. State, 539 So. 2d 335, 336 (Ala. Crim. App. 1987); Wright v. State, 186 Ga. App. 104, 105-106, 366 S.E.2d 420 (1988); People v. Lockhart, 201 Ill. App. 3d 700, 715, 558 N.E.2d 1345 (1990); Love v. State, 519 N.E.2d 563, 566 (Ind. 1988); State v. Hood, 242 Kan. 115, 123, 744 P.2d 816 (1987); Stanley v. State, 313 Md. 50, 76-80, 542 A.2d 1267 (1988); People v. Hart, 161 Mich. App. 630, 641, 411 N.W.2d 803 (1987); Harper v. State, 510 So. 2d 530, 532 (Miss. 1987); State v. Gonzales, 111 N.M. 590, 597, 808 P.2d 40 (N.M. App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991); People v. Jenkins, 75 N.Y.2d 550, 559, 554 N.E.2d 47, 555 N.Y.S.2d 10 (1990). Limited remands consistently have been the chosen course even where, as here, a significant period of time has passed since the voir dire at issue. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (more than two years); United States v. Tindle, 808 F.2d 319 (4th Cir. 1986) (more than three years); Ex parte Jackson, supra, 772 (five years); People v. Lockhart, supra, 703 (four years); State v. Gorman, 324 Md. 124, 130-32, 596 A.2d 629 (1991) (six years); People v. Jenkins, supra, 559-60 (ten years). I am aware of no case in the country where the passage of time alone was found to be sufficient reason to remand a case for a new trial without any other circumstance indicating that a limited remand would be futile.

Rather than presuming that an effective Batson hearing cannot be conducted despite the fact that the entire voir dire, including that of the sole venireperson in question, has been transcribed fully, I believe that we should remand the case to the trial court so that the court may judge the credibility of the state’s proferred reason(s) for the use of its peremptory challenge. If, due to the lapse of time, the state is unable to provide a nondiscriminatory reason for excusing Spruill or if it appears to the trial court that the state’s reasons are pretextual, the court could then order anew trial. Mejia v. State, 328 Md. 522, 541, 616 A.2d 356 (1992) (“should it appear that there is no reasonable possibility that the circumstances surrounding the striking of [the venireperson] can be reconstructed fairly, then a new trial may be required and the trial judge may order one”); see State v. Hood, supra, 242 Kan. 123 (remand for Batson arguments “based upon the trial record and counsel’s recollection”). Moreover, on remand, the trial court would have the ability to order a new trial if the court feels that it cannot properly evaluate the reasons proffered by the state due to the lapse of time.

In short, I do not believe that we should assume that the record cannot be reconstructed to permit a Batson hearing that is fair to both the state and the defendant. To do so seems to me to usurp the trial court’s function and to require a costly new trial when such a step may be unnecessary. Despite the lapse of time since the voir dire, the trial court may be fully capable of affording the defendant a proper Batson hearing. I would remand the case to the trial court for that determination.

       General Statutes (Rev. to 1987) § 53a-60 provides in relevant part: “Assault in the second degree: Class D felony, (a) A person is guilty of assault in the second degree when ... (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction, or is a parolee from a correctional institution and with intent to cause physical injury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such employee or member. ...”

       We granted the defendant’s petition for certification to appeal, limited to the following issue: “Whether, under the state or federal constitution, a Batson objection must be made immediately following the voir dire of the challenged venireperson lest it be waived?” State v. Robinson, 235 Conn. 917, 665 A.2d 609 (1995). “Batson” refers to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       “Sixty-eight venirepersons were questioned before a jury was selected.” State v. Robinson, supra, 38 Conn. App. 605 n.3.

       We do not review the propriety of the trial court’s ruling that the state did not exercise its peremptory challenge improperly when it challenged Perry because that ruling is outside the scope of the certified question.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
      Because the defendant has not provided a separate and distinct analysis of his equal protection claim under the state constitution, we address only his federal constitutional claim. See State v. Hinton, 227 Conn. 301, 322 n.23, 630 A.2d 593 (1993); State v. Gonzalez, 206 Conn. 391, 393-94 n.2, 538 A.2d 210 (1988).

       The procedure adopted by the United States Supreme Court in Batson v. Kentucky, supra, 476 U.S. 96-97, requires the defendant to prove a prima facie case of the prosecution’s discriminatory use of a peremptory challenge before the burden shifts to the state to provide a racially neutral explanation. In State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989), exercising our inherent supervisory authority over the administration of justice, we dispensed with this preliminary requirement in order to provide an adequate record for review and to expedite appeals. “After the burden shifts to the state to demonstrate that its challenges were race-neutral, the defendant’s Batson claim is treated similarly under the state and federal constitutions.” State v. Hinton, supra, 227 Conn. 322 n.23.

       The United States Supreme Court has expressly not determined the point in time by which a criminal defendant must raise a Batson claim. See Ford v. Georgia, 498 U.S. 411, 423, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991); Batson v. Kentucky, supra, 476 U.S. 99 and n.24. The court “recognized that local practices would indicate the proper deadlines in the contexts of the various procedures used to try criminal cases, and . . . left it to the trial courts, in their wide Variety of jury selection practices,’ to implement Batson in the first instance.” Ford v. Georgia, supra, 423.

       The record reveals that the procedure herein outlined was followed by the trial court and the parties in this case, except that the state and the defendant were each allowed to exercise eight peremptory challenges. See footnote 10.

       The constitution of Connecticut, article first, § 19, as amended by article four of the amendments, provides in relevant part: “The right to question each juror individually by counsel shall be inviolate.”
      General Statutes § 54-82Í provides in relevant part: “Voir dire examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”
      Practice Book § 848 provides in relevant part: “Voir Dire Examination
      “Each party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judicial authority before whom such examination is held is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror shall be excused by the judicial authority from any further service upon the panel, or in such action, as the judicial authority determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the trial.”
      Apparently, Connecticut is the only state in which individual voir dire of each venireperson is conducted outside the presence of the other venirepersons.

       Each party has a right to peremptory challenges secured by the Connecticut constitution. The constitution of Connecticut, article first, § 19, as amended by article four of the amendments, provides in relevant part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. ...”
      The number of peremptory challenges is set by statute. General Statutes § 54-82g provides: “Peremptory challenges in criminal prosecution. The accused may challenge peremptorily, in any criminal trial before the superior court for any offense punishable by death, twenty-five jurors; for any offense punishable by imprisonment for life, fifteen jurors; for any offense the punishment for which may be imprisonment for more than one year and for less than life, six jurors; and for any other offense, three jurors. In any criminal trial in which the accused is charged with more than one count on the information or where there is more than one information, the number of challenges is determined by the count carrying the highest maximum punishment. The state, on the trial of any criminal prosecution, may challenge peremptorily the same number of jurors as the accused.”
      Practice Book § 849 implements § 54-82g by providing: “The prosecuting authority and the defendant may challenge peremptorily the number of jurors which each is entitled to challenge by law.”

       All states apparently either follow a variant of this jury selection method or have a “struck jury system.” See Swain v. Alabama, 380 U.S. 202, 211, 217, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); A.B.A., Standards Relating to Juror Use and Management (1993) pp. 82-83; V. Starr & M. McCormick, Jury Selection: An Attorney’s Guide to Jury Law and Methods (2d Ed. 1993) § 2.12.

        The following is the basic pattern in the struck jury system. “A panel is brought to 1he courtroom equal to the number of jurors and alternates to be seated plus the total number of peremptory challenges available to the parties and the statistically projected number of those likely to be removed for cause].] The panel is questioned as a whole by the judge and counsel with follow-up questions to individual panel members, and removals for cause are made].] After the examination has been completed, the parties exercise their peremptory challenges ‘by alternately] striking . . . juror[s’] names from a list passed back and forth between counsel].]’ The jury is empanelled after all sides have passed or exercised their peremptory challenges].] If . . . more prospective jurors remain than are needed, the unstruck names are called in the order they appear on the list until the prescribed number of jurors and alternates are seated.” A.B.A., Standards Relating to Juror Use and Management, supra, pp. 82-83.

       Our decision is in accordance with decisions of the lower federal courts and our sister states. Although other courts use a somewhat different jury selection method than the one used in Connecticut; see footnote 11; most courts consider a Batson claim to be timely if it is raised prior to the swearing of the jury or the dismissal of the venire. See, e.g., McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996); United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir. 1989); Government of Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir. 1986); United States v. Erwin, 793 F.2d 656, 666-67 (5th Cir. 1986); Ross v. State, 581 So. 2d 495, 496 (Ala. 1991); State v. Harris, 157 Ariz. 35, 36, 754 P.2d 1139 (1988) (en banc); Pacee v. State, 306 Ark. 563, 567, 816 S.W.2d 856 (1991); Tursio v. United States, 634 A.2d 1205, 1209-10 (D.C. 1993); State v. Castillo, 486 So. 2d 565 (Fla. 1986); State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658 (1987); People v. Evans, 125 Ill. 2d 50, 61-62, 530 N.E.2d 1360 (1988), cert. denied, 490 U.S. 1113, 109 S. Ct. 3175, 104 L. Ed. 2d 1036 (1989); Simmons v. Commonwealth, 746 S.W.2d 393, 397-98 (Ky. 1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989); Stanley v. State, 113 Md. 50, 69, 542 A.2d 1267 (1988); Thomas v. State, 517 So. 2d 1285, 1287-88 (Miss. 1987); State v. Parker, 836 S.W.2d 930, 935-36 (Mo.) (en banc), cert. denied, 506 U.S. 1014, 113 S. Ct. 636, 121 L. Ed. 2d 566 (1992); State v. Gilmore, 103 N.J. 508, 535, 511 A.2d 1150 (1986); State v. Wilson, 117 N.M. 11, 868 P.2d 656, 661 (1993); People v. Harris, 151 App. Div. 2d 961, 542 N.Y.S.2d 411 (1989); State v. Jones, 293 S.C. 54, 58, 358 S.E.2d 701 (1987); State v. Peck, 719 S.W.2d 553, 555 (Tenn. Crim. App. 1986); Taylor v. State, 825 S.W.2d 212, 214 (Tex. App. 1992) (by statute).
      Apparently, only Indiana and Louisiana courts require a Batson claim to be raised at the time that the peremptory chaUenge is exercised. See Chambers v. State, 551 N.E.2d 1154, 1158 (Ind. App. 1990) (provided as alternate ground for decision without analysis); State v. Aubrey, 609 So. 2d 1183, 1185 (La. App. 1992) (emphasizing fact that jurors struck early in process may no longer be available). California courts have held that when a struck jury system is used, a party must object before the selection of jurors, including alternate jurors, has been completed; see People v. Gore, 18 Cal. App. 4th 692, 703, 22 Cal. Rptr. 2d 435 (1993); and when a sequential system, like the one used in Connecticut, is used, the claim must be raised at the “earliest possible time” before the jury is sworn. See People v. Ortega, 156 Cal. App. 3d 63, 69-70, 202 Cal. Rptr. 657 (1984).

       The fact that a Batson claim may be raised at any time until the end of voir dire does not, of course, require counsel to wait until that time. In the interest of judicial economy, we urge the parties to raise such claims as soon as they are confident that they have a record that is adequate for the Batson claim to be fairly adjudicated.
      We are persuaded that it would serve no useful purpose to impose a contemporaneous notice requirement that would deem a Batson claim to be waived unless a party alerted the court of the possibility of such a claim immediately after a peremptory challenge had been exercised. If such a requirement were adopted, the path of prudence, to avoid the risk of waiver, would be to alert the court of a possible Batson claim after each peremptory challenge. The interests of judicial economy would not be served by such automatic reservations of Batson claims.

       Prospective jurors generally serve only one day unless they are called back to complete voir dire or are selected for a jury. General Statutes § 51-238a provides: “Length of term of service as juror. The length of the term of service for jurors shall be one day except that (1) if a juror is impaneled on a jury trial which lasts more than one day, then the term of service shall be the length of that trial or (2) if a juror is administered the voir dire oath and examination of such juror is not completed during that day, then the term of service shall be through the completion of the examination, if the juror is not selected, or the length of the jury trial, if the juror is selected, or (3) if the court otherwise orders, then the term of service shall be such number of days as the court may order.”
      We note that, on its face, this statute does not preclude a trial court from recalling an improperly challenged juror either for further questioning or for service on the jury “if the court otherwise orders.”

       We note that it always would be difficult for a defendant or the state to reconstruct the reasons for challenging a particular venireperson, and for the trial court to evaluate those reasons, even if, as here, a transcript of the voir dire proceedings is available. A prosecutor, when exercising a peremptory challenge to remove a venireperson, “may legitimately [base that decision] not only on answers given by the prospective juror to questions posed on voir dire, but also on the prosecutor’s observations of the prospective juror. An impression of the conduct and demeanor of a prospective juror during the voir dire may provide a legitimate basis for the exercise of a peremptory challenge. . . . Thus, a prosecutor’s explanation that a venireperson was excluded because he or she seemed, for example, inattentive or hostile to the government, if credible, is sufficient. . . . Because challenges are often based on such subtle, intangible impressions, the reasons for exercising the challenges may be quite difficult to remember . . . .” (Citations omitted; internal quotation marks omitted.) McCrory v. Henderson, supra, 82 F.3d 1247-48. Furthermore, due to the “often subtle reasons for the exercise of peremptory challenges, a court’s determination of whether a prosector has used them in a discriminatory fashion will often turn on the judge’s observations of prospective jurors and the attorneys during voir dire and an assessment of their credibility. . . . It is nearly impossible for the judge to rule on such objections intelligently” long after the relevant events occurred. (Citations omitted.) Id., 1248.

       Each of the three cases cited by the majority in which Batson-type cases were remanded for new trials is distinguishable. In People v. Snow, 44 Cal. 3d 216, 746 P.2d 452, 242 Cal. Rptr. 477 (1987), the California Supreme Court conducted an independent examination of the record, noting that the trial court had expressed “serious suspicions” about the prosecutor’s use of peremptory challenges to exclude six African-American venirepersons; id., 226; and noting the fact that “several [bjlack venirepersons were excused after giving seemingly routine, acceptable responses to the prosecutor’s questions.” Id., 223. The California attorney general had even conceded on appeal that the record revealed no “apparent” reason for excusing three of the six venirepersons in question. Id. Lastly, at trial, the prosecutor attempted to justify his systematic removal of African-American venirepersons by suggesting that such a practice was fair play because the defendant was systematically excluding Caucasians. Id., 224. In Tursio v. United States, 634 A.2d 1205, 1207-1209 (D.C. 1993), the defendant made a motion for a new trial on Batson grounds and the prosecution responded with a written account of its reasons for each of the nine peremptory challenges questioned by the defendant. The trial court accepted the prosecutor’s explanations and concluded that there had been no Batson violation. The District of Columbia Court, of Appeals concluded that the trial court had erred in accepting the prosecutor’s explanations because “[t]he inherent logic and credibility of the prosecutor’s individual explanations as to each stricken venireperson are not sufficient, taken only by themselves, to rebut such a prima facie case of racial discrimination when prospective jurors of several races who appear to be similarly situated — based on their answers to questions during voir dire — are accepted or rejected for jury service by apparent reference to race.” Id., 1212. Finally, in People v. Scott, 70 N.Y.2d 420, 426, 516 N.E.2d 1208, 522 N.Y.S.2d 94 (1987), the New York Court of Appeals determined that an attempt to conduct a meaningful Batson hearing would have been futile because the judge who had tried the case had since left the County Court bench and the voir dire had not been transcribed.

       The transcript of Spruill’s voir dire reveals a potentially nondiscriminatory reason for the state’s exercise of a peremptory challenge. Spruill gave some indication that she might be unwilling to change her mind during deliberations despite any arguments and opinions of other jurors:
      “[The State:] Now, how are you [at] interacting with other groups of people? Think you can do that? If you were selected and had to talk to five other people on the jury?

        “[lisa Spruill:] Yes.
      “Q. Now, suppose five of those people were voting one way regardless of which way it is. And you feel the opposite way. Would you stick to your guns?
      “A. Yes.
      “Q. Would you try to get them to listen to you?
      “A. Yes.
      “Q. Would you listen to them?
      “A. Yes.
      “Q. Would you change your mind based on the mere fact that five people feel differently than you?
      “A. No.
      “Q. Okay. Would you change your mind if they brought up some testimony or evidence that swayed you?
      “A. No.
      “Q. You wouldn’t change your mind at all?
      “A. No, I wouldn’t.
      “Q. You wouldn’t [be] open for discussion?
      “A. Open for discussion but I wouldn’t change my mind.
      “Q. Let’s explore this a little further. Suppose you were voting one way and five people voting the opposite way. Now, you listened] to everything that went on. The state’s witnesses, the defense witnesses, if any. Now you made up your mind. These five people say, ‘What about this?’ They brought up something in a different light and they analyze the fact in a different way. Do you think anything they said would make you reconsider and change?
      “A. Possibly.
      “Q. So you would keep an open mind.
      “A. Yes.”


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STEPHANIE IZZO v. MERIDEN-WALLINGFORD HOSPITAL ET AL.
    (15263)
    Peters, C. J., and Callahan, Borden, Berdon and Palmer, Js.
    Argued February 15
    officially released June 4, 1996

      John M. Letizia, with whom, on the brief, was Andrew A. Cohen, for the appellants (named defendant et al.).

      Ernie R. Walker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough and Michael J. Belzer, assistant attorneys general, for the appellee (defendant second injury fund).
   BORDEN, J.

The dispositive issue in this appeal is whether an employee’s executed acknowledgment of a preexisting physical defect, in accordance with General Statutes (Rev. to 1983) § 31-325, which was not approved by the workers’ compensation commissioner (commissioner) until after the occurrence of the employee’s compensable injury, is effective to transfer liability from the employer to the second injury fund (fund). Meriden-Wallingford Hospital and its insurer, Connecticut Hospital Association Workers’ Compensation Trust (collectively referred to as the employer), appeal from the decision of the compensation review board (board) in favor of the fund, vacating the ruling of the commissioner. The employer claims that the board improperly concluded that an acknowledgment must be approved by the commissioner prior to the occurrence of a compensable injury in order to effectuate a transfer of liability from the employer to the fund. The fund responds that § 31-325 provides that an acknowledgment is not effective until it is approved by the commissioner, and that it must be effective at the time of the compensable injury in order to transfer liability. We conclude that § 31-325 does not require preinjury approval by the commissioner of the claimant’s executed acknowledgment in order to effectuate a transfer of liability from the employer to the fund. Accordingly, we reverse the decision of the board and reinstate the ruling of the commissioner.

The following facts and procedural history are undisputed. In September, 1983, the claimant sought employment as a nurse at Meriden-WaUingford Hospital. Prior to her application, the claimant had sustained lower back injuries and had undergone spinal surgery. At the hospital’s request, the claimant agreed to execute an acknowledgment of physical defect form in accordance with § 31-325. The acknowledgment, which described the claimant’s preexisting spinal fusion and disc disease, was signed by Leo WUlett, the claimant’s treating physician, on September 20, 1983. Prior to signing the acknowledgment, the claimant met with her attorney to discuss the meaning and effect of the acknowledgment and to make sure that she understood the implications of signing it. Thereafter, the claimant signed the acknowledgment and dehvered it to Jean Sterling, a hospital employee responsible for processing acknowledgments. The acknowledgment, however, was not submitted to the commissioner for approval at that time. The claimant began working at the hospital in November, 1983, but worked for only four hours before she was laid off. Several weeks thereafter she began employment at the veterans hospital, where she executed another acknowledgment, which was immediately approved by the commissioner for the third district.

In February, 1984, the claimant returned to her nursing position at Meriden-Wallingford Hospital. On January 17,1986, she sustained a compensable injury to her lumbar spine. This injuiy was attributable in material degree to the claimant’s preexisting back condition, which was adequately described in each of her previously executed acknowledgments. Her compensation claim was accepted by the employer, and a voluntary agreement was filed with and approved by the commissioner for the eighth district on November 24, 1986. On November 28, 1990, approximately four years later, Meriden-Wallingford Hospital submitted the claimant’s earlier executed acknowledgment to the commissioner for the eighth district for approval, at which time it was approved by one of the staff members.

On November 12,1992, after several formal hearings, the commissioner issued his initial finding and dismissal of the employer’s claim to transfer its worker’s compensation liability to the fund. On December 1, 1992, however, after the employer had filed several motions relating to the commissioner’s finding and dismissal of its transfer claim, the commissioner, sua sponte, reissued his opinion as a revised finding and award in favor of the employer. Thereafter, the employer again moved to correct the findings, which motion was granted on December 12, 1992. Thus, the commissioner’s final ruling consists of his sua sponte ruling of December 1, transferring the employee’s claim, as modified by his order of December 12.

The commissioner found that, although Meriden-Wallingford Hospital had failed to have the claimant’s acknowledgment approved by the commissioner when the claimant signed the acknowledgment in 1983, it was, nevertheless, valid to effectuate a transfer of liability to the fund pursuant to § 31-325 because the acknowledgment had been approved prior to the transfer. The commissioner further found that the acknowledgment, executed and approved dining the claimant’s employment with the veterans hospital, was valid, under the successor employer provision in § 31-325, to effectuate a transfer of liability to the fund.

The fund then petitioned the board to review the finding and award of the commissioner. The board sustained the fund’s appeal, reasoning that, because workers’ compensation liability is part of the employment contract, any alteration of the contract under § 31-325, namely, through an effective acknowledgment, must occur prior to the compensable injury. The board, therefore, concluded that, as of the date of the claimant’s injury, the employment contract did not include the rights and liabilities set forth in § 31-325. The employer appealed from the decision of the board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the board and reinstate the decision of the commissioner with regard to the Meriden-Wallingford Hospital acknowledgment.

The employer claims that the boar d improperly concluded that the Meriden-Wallingford Hospital acknowledgment was not valid to effectuate a transfer of liability from the employer to the fund. Specifically, the employer argues that: (1) approval by the commissioner is not required by § 31-325 because it is a directory provision, which, as a result of statutory changes in 1967, no longer affects the claimant’s substantive rights; and (2) even if we were to interpret the approval provision of § 31-325 as a mandatory requirement that must be satisfied before liability can be transferred from the employer to the fund, such approval need not occur prior to the compensable injury. It need only occur before liability may be transferred. We agree that § 31-325 does not require preinjury approval of the claimant’s executed acknowledgment and, therefore, that in the present case, the approved acknowledgment served to effectuate a transfer of liability from the employer to the fund.

The question of whether a commissioner’s approval of an executed acknowledgment that occurs after the compensable injury may serve to effectuate a transfer of liability from an employer to the fund under § 31-325 presents an issue of statutory interpretation and, therefore, is a question of law regarding which our review is plenary. State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996). “[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992); Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .Ambroise v. William Raveis Real Estate, Inc., [226 Conn. 757, 764, 628 A.2d 1303 (1993)]; see Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993). . . . State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Fleming v. Garnett, 231 Conn. 77, 91, 646 A.2d 1308 (1994).” (Internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 431-32, 650 A.2d 557 (1994).

We begin our analysis, therefore, with the language of General Statutes (Rev. to 1983) § 31-325, which provides in relevant part that “[n]o such acknowledgment shall become effective unless the defect in question is plainly described therein, nor until one of the compensation commissioners finds that the person who signed such acknowledgment fully understood the meaning thereof . . . nor until such commissioner, in writing, approves thereof, files the same in the district where the employer’s business is located, and furnishes each of the parties thereto with a copy thereof. . . .” (Emphasis added.) Thus, the statute contains only three requirements that must be met in order for an acknowledgment to become effective: (1) the physical defect must be plainly described therein; (2) the commissioner must find that the person who signed it fully understood its meaning; and (3) the commissioner must approve it in writing, file it and furnish copies to the parties.

In the present case, it is undisputed that the acknowledgment executed by the claimant while employed by the Meriden-Wallingford Hospital plainly and adequately described the preexisting physical defect at issue. It is also undisputed that the commissioner determined that the claimant fully understood its meaning and, thereafter, approved the acknowledgment. Finally, it is undisputed that such approval occurred subsequent to the compensable injury. At issue then is whether the timing of that approval prohibits a transfer of liability. The employer argues that, in concluding that preinjury approval by the commissioner was necessary, the board improperly read a time limitation into § 31-325 that the statute does not contain. We agree.

Section 31-325 requires commissioner approval before the acknowledgment can become effective. “Effective” is defined as producing a desired effect. Webster’s Third New International Dictionary. The desired effect of § 31-325 is to allow an employer to transfer liability for workers’ compensation to the fund if an employee suffers a compensable injury that is attributable in material degree to a preexisting defect. “The purpose of this type of statutory exception is to encourage conditional employment of those persons who are affected by or susceptible to a particular disease or injury to a degree which would ordinarily prevent them from seeming a job.” Gagnon v. United Aircraft Corp., 159 Conn. 302, 304, 268 A.2d 660 (1970). “The purpose of filing [an acknowledgment] is to encourage employers to hire handicapped employees, or to retain [workers] who have suffered disabling job-related injuries. The [acknowledgment] has the effect of limiting the liability of an employer that hires or retains a handicapped employee and who subsequently suffers another disabling injury. The objective of the [acknowledgment] requirement is not to require registration of a handicapped employee, but to provide notice to an employer of any pre-existing disability of an employee and to document the nature and extent of such disability.” Vaughn v. United Nuclear Corp., 98 N.M. 481, 487, 650 P.2d 3 (App. 1982). The “[acknowledgment does not change the worker’s right to compensation if he is so reinjured; it merely shifts the liability for the payment of benefits from that employer to the [fund].” J. Asselin, Connecticut Workers’ Compensation Practice Manual (1988) p. 50. We conclude that the term “effective” refers to the desired effect of transferring liability from the employer to the fund and, therefore, that an acknowledgment must be approved by a commissioner prior to effectuating such a transfer. There is nothing in the language of § 31-325, however, to suggest that the acknowledgment must be approved by a commissioner prior to the occurrence of the compensable injury.

The legislative history of § 31-325 does not illuminate the issue of whether commissioner approval is required prior to the compensable injury. Our interpretation of § 31-325, however, is consistent with the overall purpose of the statutes establishing the second injury fund. “The legislature’s remedial purpose in enacting [General Statutes] § 31-349 is well established. To prevent discrimination against handicapped workers, while providing the benefits of [workers’] compensation to such workers, virtually every state has enacted some form of second injury fund legislation. . . . Such legislation is also designed to relieve employers from the hardship ofliability for those consequences of compensable injury not attributable to their employment. Jacques v. H. O. Penn Machinery Co., [166 Conn. 352, 355-56, 349 A.2d 847 (1974)]. Plesz v. United Technologies Corporation, 174 Conn. 181, 185, 384 A.2d 363 (1978).” (Internal quotation marks omitted.) Hernandez v. Gerber Group, 222 Conn. 78, 82, 608 A.2d 87 (1992).

The fund’s proffered interpretation of § 31-325, which would require approval of the acknowledgment prior to the occurrence of the injury, would frustrate this purpose because it would cause any burden resulting from a delay in commissioner approval to be borne by the employee who has voluntarily agreed to execute an acknowledgment of a preexisting defect. An employer would have an incentive to treat an employee with a preexisting defect differently from other employees, and prohibit that employee from beginning work until the acknowledgment has been approved, because failure to do so would necessarily result in a preclusion of the employer’s ability to transfer liability to the fund under § 31-325 for any compensable injury that occurred prior to approval. Under the fund’s interpretation of the statute, the employer could not transfer liability to the fund even if the commissioner ultimately determined that the employee had fully understood the meaning of the acknowledgment and the implications of signing it. Such an interpretation would elevate form over substance and undermine the legislature’s objective in establishing the fund.

The fund further argues that preinjury approval is necessary to memorialize and legitimize the preexisting defect, and, thereby, to reduce the possibility of fraud. In the present case, however, because the Meriden-Wallingford Hospital acknowledgment contained an adequate description of the claimant’s preexisting defect, was approved by a physician, and was signed by the claimant prior to the compensable injury, the defect was legitimized prior to the injury. Additionally, we are not persuaded that commissioner approval has the objective that the fund hypothesizes. Commissioner approval is not an assurance of the validity of the underlying defect; the commissioner’s role is primarily to ensure that the employee fully understands the implications of signing the acknowledgment. Moreover, an effective acknowledgment does not deprive the fund of its right to dispute the nature of the preexisting defect described in the acknowledgment and the extent to which it is causally related to the subsequent compensable injury. See General Statutes (Rev. to 1983) § 31-349.

The fund argues that our decision in Gagnon v. United Aircraft Corp., supra, 159 Conn. 302, dictates that an acknowledgment cannot be effective until all the statutoiy requirements have been met and that an acknowledgment can have no effect on the transfer of liability for an injury occurring prior to the date of full compliance with § 31-325. We disagree.

In Gagnon, we concluded that the commissioner did not have jurisdiction to inquire into the validity of a waiver, executed pursuant to General Statutes (Rev. to 1966) § 31-325; see footnote 8; after it had been approved by the commissioner but prior to the initiation of a compensation claim. Id., 306. The fund cites the following language from our decision in Gagnon, in support of its claim that commissioner approval is required before an acknowledgment may be effective: “[T]he plaintiff . . . signed a waiver on September 25, 1967 .... The waiver was approved by the compensation commissioner two days later, whereupon it became effective under the terms of the statute.” (Emphasis added.) Id., 303-304. “Because any attempted waiver of benefits under the compensation act must be carefully scrutinized, our statute requires the commissioner to find that the employee fully understood the meaning of his act before the waiver may be approved and become effective.” Id., 305.

Even if we were to agree that Gagnon supports the proposition that a waiver or, presently, an acknowledgment, may not become effective until it is approved by the commissioner, such a conclusion would be consistent with our decision in the present case, namely, that an acknowledgment may be approved by the commissioner subsequent to the compensable injury and still be valid to effectuate a transfer of liability to the fund. Gagnon, therefore, is inapposite to the issue in the present case.

The decision of the board is reversed and the case is remanded to the board with direction to reinstate the finding and award of the commissioner.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 31-325 provides: “Acknowledgment by employees having physical defects. Whenever any person having a contract of employment, or desiring to enter into a contract of employment, has any physical defect which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for such person to execute in writing for himself or his dependents, or both, an acknowledgment of physical defect. No such acknowledgment shall become effective unless the defect in question is plainly described therein, nor until one of the compensation commissioners finds that the person who signed such acknowledgment fully understood the meaning thereof and, if such person is a minor, that one of the parents or a guardian of such minor has approved the same in writing, nor until such commissioner, in writing, approves thereof, files the same in the district where the employer’s business is located, and furnishes each of the parties thereto with a copy thereof. No such acknowledgment shall be a bar to a claim by the person signing the same, or his dependents, for compensation for any injury arising out of and in the course of his employment, or death resulting therefrom, which injury shall not be found to be attributable in a material degree to the particular condition described therein. The rights and liabilities of the parties to such acknowledgment as to injuries arising out of and in the course of the employment and within the terms of such acknowledgment shall be such as are provided by section 31-349. ‘Physical defect,’ as used in this section, shall not be construed to include an occupational disease, susceptibility thereto or a recurrence thereof. Such acknowledgments shall remain in effect between the employee and the successor employer whenever an employer company which is a party to such an acknowledgment is merged with, or substantially purchased by, another company, provided the employment relationship otherwise remains substantially the same.” (Emphasis added.)
      Section 31-325 was later amended to substitute the term “physical conditions” for “physical defects.” See Public Acts 1991, No. 91-32, § 33. Unless otherwise indicated, statutory references are to those in effect at the date of the injury to determine the rights and obligations of the parties. See Dos Santos v. F. D. Rich Construction, Inc., 233 Conn. 14, 16 n.1, 658 A.2d 83 (1995).

       Pursuant to General Statutes (Rev. to 1983) § 31-349, when an employee with a previous disability incurs a second disability from a second injury resulting in permanent disability caused by both the previous disability and the second injury, and the second disability is materially and substantially greater as a result of the previous disability, the employer is liable to the employee for workers’ compensation benefits for the first 104 weeks. Thereafter, if the employer complies with the requirements of the statute, liability is transferred to the fund. See General Statutes (Rev to 1983) § 31-349; J. Asselin, Connecticut Workers’ Compensation Practice Manual (1988) pp. 67-68. If, however, the employer has obtained a valid acknowledgment, in accordance with § 31-325, the fund may be solely liable for all benefits to which the employee may be entitled. See General Statutes (Rev. to 1983) § 31-349; J. Asselin, supra, pp. 50-51 and 68.

       The claimant, Stephanie Izzo (claimant), was employed by Meriden-Wallingford Hospital at the time of her compensable injury. The employer and the fund were respondents in the underlying action before the commissioner.

       The employer also claims that the board improperly concluded that the acknowledgment executed and approved while the claimant was employed at World War II Veterans Memorial Hospital (veterans hospital) was not valid to effectuate a transfer of liability from Veteran’s Memorial Medical Center, an entity resulting from the merger between Meriden-WaUingford Hospital and the veterans hospital, to the fund under the successor employer liability provision of § 31-325. See footnote 1. We need not reach the successor employer Uability issue, however, because we conclude that the acknowledgment executed by the claimant while she was employed at Meriden-Wallingford Hospital, and approved by the commissioner following the compensable injury, was valid to effectuate a transfer of liability to the fund.

       A voluntary agreement to pay compensation may be entered into by the parties pursuant to General Statutes (Rev. to 1983) § 31-296, which provides in relevant part: “Voluntary agreements. If an employer and an injured employee . . . reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement, of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provision of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parlies and thereafter it shall be as binding upon both parties as an award by the commissioner. . . .”

       The commissioner found that the approval on November 28, 1990, occurred after an informal hearing before the commissioner on October 31, 1990.

       The employer had filed a motion to correct the finding, a motion for articulation and additional ruling, and a petition to review the commissioner’s decision.

       In 19G7, the legislature amended General Statutes (Rev. to 1966) § 31-325, and changed the effect of an employee waiver. See Public Acts 1967, No. 842, §§19 and 20. Prior to the amendment, an employee waiver operated to eliminate completely an employee’s right to workers’ compensation benefits from the employer if an otherwise compensable injury was attributable in material degree to a preexisting condition. Following the amendment, however, an employee waiver no longer affected an employee’s right to compensation; rather, it operated to transfer liability from the employer to the fund. In 1979, in recognition of the fact that an employee form was no longer a waiver of an employee’s rights, the legislature substituted the term “acknowledgment” for “waiver” throughout the statute. See Public Acts 1979, No. 79-376, § 79. The employer asserts that these changes support its contention that commissioner approval is a ministerial, directory provision, not required by § 31-825 in order to transfer liability to the fund because it does not affect an employee’s substantive rights. Conversely, relying on the same legislative history, as well as the language of the statute, the fund contends that commissioner approval is a mandatory requirement because, regardless of the substantive changes, the operative language of the statute has remained essentially unchanged. Because we conclude that in the present case postinjuiy commissioner approval of the claimant’s previously executed acknowledgment is valid under § 31-325, we need not reach the issue of whether the commissioner approval provision is mandatory or directory.

       Because, in the present case, it is undisputed that all three requirements have been met, and the only issue is when they must be met, we assume, without deciding, that the provisions in § 31-325 are mandatory. See footnote 8.

       Although it is true that Vaughn involved different statutory language than that at issue in the present case, the objectives of the statutes are nevertheless comparable. See Vaughn v. United Nuclear Corp., supra, 98 N.M. 486-87.

       General Statutes (Rev. to 1983) § 31-325 provides in part that “[t]he rights and liabilities of the parties to such acknowledgment as to injuries arising out of and in the course of the employment and within the terms of such acknowledgment shall be such as ar e provided by section 31-349. . . .”
      General Statutes (Rev. to 1983) § 31-349 is our second injury fund statute, and provides in part that “[ejmployees shall not be denied any of the benefits provided by any provisions of this chapter by reason of the execution of an acknowledgment of physical defect, but the benefits specified in this chapter which would be payable except for the execution of such acknowledgment shall be paid entirely out of the second injury fund. . . .” See footnote 2.

       We need not, therefore, decide whether the acknowledgment must describe the defect and be executed by the employee prior to the occurrence of the compensable injury in order to be valid to effectuate a transfer of liability to the fund.

       The implications to the employee of signing an acknowledgment are far less significant than they were prior to the 1967 amendment to General Statutes (Rev. to 1966) § 31-325. See footnote 8.


author: PETERS, C. J.

text:
    ELIZABETH C. DOLGNER v. JON M. ALANDER, COMMISSIONER OF HUMAN RESOURCES
    (15237)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued March 19
    officially released June 4, 1996

      Joseph P. Secóla, with whom, on the brief, was Vincent P. McCarthy, for the appellant (plaintiff).

      Nyle K. Davey, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch and Hugh Barber, assistant attorneys general, for the appellee (defendant).
   PETERS, C. J.

The dispositive issue in this appeal is whether the trial court properly concluded that substantial evidence supported the determination by an administrative hearing officer that the plaintiff had violated agency regulations in connection with the operation of her family day care home. After a contested hearing, the defendant, the commissioner of human resources (commissioner), revoked a registration to operate a family day care home owned by the plaintiff, Elizabeth C. Dolgner, for violations of department regulations. The plaintiff appealed from the commissioner’s decision to the Superior Court, which dismissed the appeal. The plaintiff then appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The revocation of the plaintiffs day care registration arose out of the following undisputed events. Pursuant to a registration issued by the department of human resources (department), the plaintiff operated a day care business at her home in Manchester. In September, 1991, a parent of children under the plaintiffs care filed with the Manchester police department a complaint alleging that the plaintiff had physically abused one of the children. Robert Harss, a detective in the youth division of the Manchester police department, and Georgette Katin, a social worker employed by the department of children and youth services (DCYS), investigated the allegations of misconduct. Both Katin and Harss have professional experience and expertise in investigating child abuse, including abuse in day care settings. DCYS notified the commissioner of the existence and nature of its ongoing investigation.

As part of the investigations conducted by the Manchester police department and by DCYS, Katin and Harss jointly interviewed several children who attended the plaintiffs family day care home. Some of the children interviewed by Katin and Harss reported abusive and other inappropriate treatment by the plaintiff. On September 27, 1991, DCYS notified the commissioner that its investigation had confirmed instances of emotional abuse, physical discipline and inappropriate supervision of children at the plaintiffs family day care home. DCYS subsequently transmitted to the commissioner a report of its investigation and findings.

On October 3, 1991, on the basis of the DCYS report, the commissioner notified the plaintiff by certified letter that he proposed to revoke her day care registration under the authority of § 17-31q-15 (i) (2) of the Regulations of Connecticut State Agencies and because of alleged violations of § 17-31q-19 (h) (2) and (3) of those regulations. The plaintiff requested a more definite statement of the factual basis of the proposed revocation. The commissioner responded to the plaintiffs request by sending her another certified letter in which he summarized the DCYS report of its investigation. Subsequently, the plaintiff requested a hearing in order to challenge the proposed revocation.

On June 30, August 4 and September 11, 1992, the commissioner conducted hearings on the proposed revocation of the plaintiffs day care registration. The plaintiff was present and was represented by counsel at all three hearings. Both Katin and Harss testified for the commissioner. Katin testified that she had interviewed children who had attended the plaintiffs family day care home and that she had concluded, from those interviews, that some of the children had been emotionally abused. Harss testified that some of the children whom he and Katin interviewed had reported that someone had slapped a child and that “[ajccess to the [plaintiffs] house was not allowed by some of the children.” Harss further testified that some of the children had reported instances of abusive treatment at the plaintiffs family day care home, although he did not disclose any specific instances of abusive treatment. Over the plaintiffs hearsay objections, the hearing officer admitted into evidence the entire testimony of Katin and Harss. Neither Katin nor Harss testified as to any specific instances of mistreatment or recounted what specifically identified children had told them during then-interviews. None of the children whom Katin and Harss had interviewed testified at the hearings.

In addition to testimonial evidence, at the commissioner’s request the hearing officer admitted into evidence the department’s case summary. The case summary briefly described the complaint that had prompted the police and DCYS investigations of the plaintiffs family day care home and outlined the administrative actions taken by the commissioner in response to his notification of the investigations.

Neither the commissioner nor the plaintiff offered as full exhibits at the hearings the reports prepared by DCYS and the Manchester police department. These documents identified the children whom Katin and Harss had interviewed during their investigations, and contained the substance of statements that children had made during the interviews. The two reports were marked for identification only, and the plaintiff inspected them before she cross-examined Harss and Katin and presented her case.

The hearing officer found that the commissioner had proven with reliable, probative and substantial evidence that there existed a DCYS report confirming emotional abuse, the use of physical discipline and inappropriate supervision of day care children by the plaintiff. The hearing officer further found that the commissioner had proven with reliable, probative and substantial evidence that the plaintiff had “failed to be responsible for humane care, proper attention, supervision, control and discipline when she engaged in abusive, neglectful, corporal, humiliating and frightening treatment and punishment of day care children and when she failed to be responsible for the supervision of children at all times . . . .”

On the basis of her finding of the existence of a DCYS report confirming mistreatment of day care children, the hearing officer concluded that the commissioner was authorized to take immediate action against the plaintiff under § 17-31q-15 (i) (2). Additionally, on the basis of her finding that the plaintiff had engaged in inappropriate conduct, the hearing officer concluded that the plaintiff had failed to comply substantially with § 17-31q-19 (h) (2) and (3). In view of these conclusions, the hearing officer, acting on behalf of the commissioner, rendered the commissioner’s final decision revoking the plaintiffs day care registration. General Statutes (Rev. to 1993) § 17-588 (a).

Pursuant to General Statutes § 4-183, the plaintiff appealed the revocation of her day care registration to the Superior Court. The plaintiff claimed that the commissioner had violated her statutory and constitutional rights because: (1) the hearing officer had improperly based her findings on hearsay evidence; (2) there had been insufficient evidence to support the hearing officer’s findings; and (3) the commissioner had failed to provide the plaintiff with adequate notice of the factual and the legal basis of the charges against her.

The trial court dismissed the plaintiffs appeal. The trial court concluded that the hearing officer had properly admitted the testimony of Katin and Harss as to what the children had told them concerning abuse and other inappropriate treatment at the plaintiffs family day care home. In this connection, the trial court concluded that the hearing officer had properly determined that the testimony was both probative on the issue of the plaintiffs suitability for registration as a day care operator and sufficiently reliable to be admissible at the administrative hearings. The trial court further concluded that the hearing officer had properly revoked the plaintiffs registration because the evidence adduced at the hearings was sufficient to support the hearing officer’s findings that there existed a DCYS report of abuse and that the plaintiff had mistreated children who attended her family day care home. Last, the trial court concluded that the commissioner had sufficiently notified the plaintiff of the factual and the legal basis underlying the proposed revocation of her registration.

On appeal to this court, the plaintiff reasserts her claim that the trial court improperly determined that substantial evidence supported the commissioner’s revocation of her day care registration. Specifically, the plaintiff contends that the use of hearsay evidence to support the commissioner’s decision to revoke her day care registration violated her rights to due process and to confrontation under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and her right to due process under the federal and the state constitutions. The plaintiff further contends that the commissioner failed to establish a prima facie case against her by substantial evidence. Under the circumstances of this case, we axe persuaded that the evidence adduced at the hearings did not constitute substantial evidence to support the commissioner’s decision to revoke the plaintiffs day care registration.

We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the UAPA. Perkins v. Freedom of Information Commission, 228 Conn. 158, 164, 635 A.2d 783 (1993); Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986). “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259, 673 A.2d 101 (1996); Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); Connecticut Natural Gas Corp. v. Public Utilities Control Authority, 183 Conn. 128, 134, 439 A.2d 282 (1981). Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Perkins v. Freedom of Information Com mission, supra, 164; New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988).

The “substantial evidence” rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). “An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991); Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991). The substantial evidence rule “imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. ...” (Citations omitted; internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, supra, 236 Conn. 260; see Connecticut Building Wrecking Co. v. Carothers, supra, 593.

Assuming, without deciding, that the evidence presented at the administrative hearings was admissible, even in light of the highly deferential standard of review accorded to administrative agency fact-finding, we are persuaded that the record in this case lacks substantial evidence to support the hearing officer’s determination that the plaintiff had violated department regulations. As to the hearing officer’s determination that the plaintiff had abused and inadequately supervised day care children in violation of § 17-31q-19 (h) (2) and (3), the only evidence to support her finding that the plaintiff had engaged in inappropriate conduct consisted of conclusory and general statements. The evidence presented at the hearings failed to disclose the factual particulars regarding inappropriate conduct that had occurred at the plaintiffs family day care home, the dates on which inappropriate conduct occurred, the frequency of inappropriate conduct or any other details concerning the plaintiffs alleged violations of § 17-31q-19 (h) (2) and (3). Moreover, although the department’s case summary disclosed the age of one of the children who had reported abusive treatment, no other evidence disclosed the ages of the children who had reported inappropriate conduct.

Although the reports prepared by DCYS and the Manchester police department contained the specific factual foundation of the plaintiffs alleged misconduct, neither report was introduced into evidence at the administrative hearings. In the absence of such basic factual predicates, the hearing officer was not provided with an opportunity to assess and to weigh independently and adequately the accuracy and the reliability of the evidence presented. Moreover, although Katin and Harss testified that each had concluded, on the basis of the interviews they had conducted with the children, that inappropriate conduct had occurred at the plaintiffs family day care home, the hearing officer had no opportunity to gauge the accuracy or the weight of these conclusions because the evidence failed to disclose any specific factual predicates upon which the witnesses’ conclusions had been based. Accordingly, we conclude that the record does not contain substantial evidence from which the hearing officer reasonably could have determined that the plaintiff had violated § 17-31q-19 (h) (2) and (3).

Although the commissioner also revoked the plaintiffs day care registration under the authority of § 17-31q-15 (i) (2), we further conclude that, as a matter of law, the revocation could not have been premised on that regulation. At the time of the revocation of the plaintiffs day care registration, § 17-31q-15 (i) (2) provided in relevant part: “A finding that there is a DCYS record . . . may provide a sufficient basis for the Commissioner to take immediate action against the party so found. The Commissioner may deny a day care application; summarily suspend and/or propose to revoke a registration . . . .” (Emphasis added.) Under the express language of § 17-31q-15 (i) (2), although the existence of a DCYS report is sufficient to initiate revocation proceedings, the existence of such a report is not sufficient, by itself, to revoke a registration.

Our search of the entire record persuades us that the evidence adduced at the administrative hearings, lacking any specificity as to the misconduct with which the plaintiff had been charged, is insufficient to support the hearing officer’s determination that the plaintiff had violated § 17-31q-19 (h) (2) and (3). Accordingly, the trial court improperly concluded that substantial evidence supported the commissioner’s revocation of the plaintiffs day care registration.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the appeal.

In this opinion the other justices concurred.

       Effective July 1,1993, the department of human resources was succeeded by the department of social services. General Statutes § 17b-l (b). Effective July 1, 1994, responsibility for registering family day care homes was transferred to the department of health and addiction services. See General Statutes § 19a-87b.

       General Statutes (Rev. to 1993) § 19a-77 provides in relevant part: “ ‘Child day care services’ defined. Additional license, (a) As used in sections 19a-77 to 19a-80, inclusive, and 19a-81 to 19a-87, inclusive, ‘child day care services’ shall include . . .
      “(3) A ‘family day care home’ which consists of a private family home caring for not more than six children, including the provider’s own children not in school full time, where the children are cared for not less than three nor more than twelve hours during a twenty-four-hour period and where care is given on a regularly recurring basis. During the regular school year, a maximum of three additional children who are in school full time, including the provider’s own children, shall be permitted, except that if the provider has more than three children who are in school full time, all of the provider’s children shall be permitted. . . .”

       Effective July 1,1993, DCYS was succeeded by the department of children and families. See General Statutes § 17a-l (c).

       At the time of the revocation of the plaintiffs day care registration, § 17-31q-15 of the Regulations of Connecticut State Agencies provided in relevant part: “Qualifications of the applicant, provider and substitute ....
      “(i) Protective services check ....
      “(2) A finding that there is a DCYS record or an on-going DCYS investigation . . . may provide a sufficient basis for the Commissioner to taire immediate action against the party so found. The Commissioner may deny a day care application; summarily suspend and/or propose to revoke a registration . . . depending on 1he particular circumstances of a given case. . . .” The department promulgated the regulation under its statutory authority pursuant to General Statutes § 17-585 et seq., now designated as General Statutes § 19a-87b et seq.
      Section 17-31q-15 (i) (2) was repealed effective September 1, 1993. A substantially similar provision is now located at § 19a-87b-6 (g) (1) (B) (2) of the Regulations of Connecticut State Agencies.

       At the time of the revocation of the plaintiffs day care registration, § 17-31q-19 of the Regulations of Connecticut State Agencies provided in relevant part: “Responsibilities of the provider and substitute ....
      “(h) Providing humane care, immediate attention, and proper supervision, control and discipline
      “The provider shall be responsible for humane care, proper attention, supervision, control and discipline of the day care children which is appropriate to each child’s age and level of development, including the following .. .
      “(2) Child abuse and neglect
      “The provider shall not engage in, nor allow, abusive, neglectful, corporal, humiliating or frightening treatment or punishment, and shall not employ or use restraints not appropriate to the circumstances. These prohibitions shall apply, but not be limited to, the activities of toileting, feeding and sleeping. The provider shall not engage nor allow anyone else to engage in sexual activity with the day care children.
      “(3) Supervision
      “The provider shall be responsible for supervision of the children at all times while the children are in the facility, indoors or outdoors. Removal of a child from the group for disciplinary or health reasons shall be to a location where supervision under visual observation shall be maintained.” The department promulgated the regulation under its statutory authority pursuant to General Statutes § 17-585 et seq., now designated as General Statutes § 19a-87b et seq.

        Section 17-31q-19 was repealed effective September 1,1993. Current regulations pertaining to the responsibilities of day care providers are located at § 19a-87b-10 of the Regulations of Connecticut State Agencies.

       The following is the substance of Harss’ testimony regarding inappropriate conduct by the plaintiff at her family day care home: “What comes to mind as far as physical abuse was — it was restraining this small child on the floor . . . slapping another child on the buttocks and slapping a child across the face .... [Apparently, there was a lot of arguing between [the plaintiff] and her daughter in the presence of these children, and . . . according to the children, [the plaintiff] would yell a lot at them .... [A]nd there were children that were playing in the backyard, and I think one of the children said that they were unsupervised when they were in the backyard.”

       The commissioner also presented as witnesses four department employees and two DCYS employees. None of these witnesses testified as to any specific acts of misconduct occurring at the plaintiffs family day care home.
      The plaintiff presented as witnesses herself, her daughter, her husband, a child who had attended her family day care home and four parents of children who had attended her family day care home. Each of these witnesses either denied that abusive or otherwise inappropriate treatment of children had occurred at the plaintiffs family day care home, or denied any knowledge of misconduct occurring at the plaintiffs day care home.

       This portion of the case summary provided in relevant part: “The referral alleged that a parent of day care children in [the plaintiffs] care had been told by her four and one-half year' old son that . . . the child had witnessed his two and one-half year old sister being slapped across the face by [the plaintiff].”

       The hearing officer also concluded that the plaintiff had failed to comply substantially with § 17-31q-15 (i) (2), and the trial court agreed with that conclusion. Section 17-31q-15 (i) (2), however, is not a regulation that a registrant, such as the plaintiff, may comply with or may violate. Rather, § 17-31q-15 (i) (2) merely sets forth the basis upon which the commissioner may take action against a registrant. See footnote 4.

       General Statutes (Rev. to 1993) § 17-588 provides in relevant part: “Discretion in the issuance of registrations. Suspension. Revocation. Notification of criminal conviction. False statements. Reporting of violations, (a) The commissioner of human resources shall have the discretion to refuse to register under section 17-585, a person to own, conduct, operate or maintain a family day care home, as defined in section 19a-77, or to suspend or revoke the registration, if the person who owns, conducts, maintains or operates the home or a person employed therein in a position connected with the provision of care to a child receiving child day care services . . . fails to substantially comply with the regulations adopted pursuant to section 17-585 .. . .”

       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. . . .”

       Because we conclude that the trial court improperly concluded that substantial evidence supported the hearing officer’s determination that the plaintiff had violated department regulations, we do not reach the plaintiffs claim that the trial court improperly concluded that the hearing officer had properly admitted the testimony of Katin and Harss regarding the conclusions that they had reached on the basis of hearsay statements made by the children whom they had interviewed.

       General Statutes § 4-183 (j) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for furlher proceedings. For purposes of this section, a remand is a final judgment.”