text:
    State of Connecticut v. Michael L. Murray
    (14645)
    Peters, C. J., Borden, Norcott, Santaniello and F.X. Hennessy, Js.

    Argued January 12
    decision released April 13, 1993

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were Domenick J. Galluzzo, deputy chief state’s attorney, and George Ferko, deputy assistant state’s attorney, for the appellant (state).

      Michael L. Murray, pro se, the appellee (defendant).

       The panel in the case was originally composed of Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js. After oral argument, Justice Berdon recused himself from this appeal. Judge Hennessy was then added to the panel, and he participated in the decision after reviewing the briefs and listening to the tape recording of the oral argument.

   Borden, J.

The issue in this appeal is whether Practice Book § 986 (4) is a valid exercise of the judicial rule-making authority, or whether, as the trial court held, § 986 (4) is unconstitutional because it violates the separation of powers between the legislative and judicial branches. The state filed a substitute information pursuant to Practice Book § 991, charging the defendant, Michael L. Murray, with four counts of criminal contempt in violation of Practice Book §§ 985 and 986 (4). On the motion of the defendant, the trial court rendered a judgment dismissing the information because, in its view, the legislature has abrogated the judiciary’s inherent power to adjudicate a charge of contempt of court for conduct occurring outside the presence of the court. The state has appealed. We reverse the judgment of the trial court.

In March, 1990, William B. Lewis, a judge of the Superior Court, issued a temporary restraining order against the defendant, ordering him not to disclose to any person information relating to personnel matters at the Boulder, Colorado facility of International Business Machines Corporation (IBM) that the defendant had obtained while serving as IBM’s area counsel in Boulder. In June, 1990, Judge Lewis issued a temporary injunction against the defendant enjoining him from disclosing certain other material, referred to as “the DeRoma and Akers material.”

Subsequently, the state brought this four count information. The state accused the defendant of “criminal contempt” in each count, and alleged in the first two counts that on March 19, 1990, and April 23, 1990, respectively, the defendant “did engage in conduct directed against the dignity and authority of the court when, in the course of a civil proceeding, he wilfully disobeyed a valid order of a judicial authority,” namely, the March, 1990 temporary restraining order issued by Judge Lewis. In the third and fourth counts, the state alleged that on January 4, 1991, the defendant “did engage in conduct directed against the dignity and authority of the court when, in the course of a civil proceeding, he wilfully disobeyed a valid order of a judicial authority,” namely, the June, 1990 temporary injunction issued by Judge Lewis. In all four counts, the state alleged that the defendant’s “criminal contempt [was] in violation of Connecticut common law as defined in Sections 985 and 986 (4) of the Practice Book.”

The defendant moved to dismiss the information pursuant to Practice Book § 815 (8). He asserted that: (1) since the enactment in 1971 of General Statutes § 51-33a, all criminal contempts of court—whether in or outside the presence of the court—are regulated by statute; (2) because this prosecution was not authorized by statute, it violates the separation of powers required by article second of the Connecticut constitution; and (3) insofar as Practice Book §§ 985 and 986 (4) authorize punishment for activity not in or critically near a court, such provisions are invalid because they go beyond the court’s inherent power and beyond statutory authority, thereby violating the separation of powers.

The trial court granted the motion to dismiss. The court reasoned that, under the doctrine of separation of powers, the classification of crimes is a legislative function, and that the legislature had performed that function with regard to criminal contempt of court by enacting General Statutes §§ 51-33* * and 51-33a. The court also reasoned that neither statute classifies as criminal the conduct proscribed by Practice Book § 986 (4), namely, “disobeying in the course of a civil or criminal proceeding any order of a judicial authority.” The trial court concluded, therefore, that § 986 (4) was unconstitutional as violative of the separation of powers, and the information had to be dismissed pursuant to Practice Book § 815 (8). This appeal followed.

The state claims that the trial court improperly concluded that (1) the legislature has abrogated the court’s inherent power to punish, as criminal contempt of court, conduct occurring outside the court’s presence that violates a judicial order, and (2) Practice Book § 986 (4) violates the separation of powers. We agree.

We begin by noting what this appeal does not involve. Contrary to the assertion of the defendant, it does not involve the question of whether the court orders that the defendant allegedly violated applied outside Connecticut. Nor does it involve the question of whether the trial court could have imposed civil rather than criminal sanctions for contempt of court. The defendant specifically “does not dispute a court’s authority to impose civil sanctions to obtain [compliance with] its lawful orders.” Furthermore, we do not consider, and express no opinion regarding, certain claims that the defendant purports to raise as alternate grounds to sustain the trial court’s judgment.

Practice Book §§ 985 through 994 govern criminal contempt of court. Sections 985 and 986 govern the nature of the conduct involved, the purpose of the sanctions, and the persons who may be punished. Section 985 defines a criminal contempt of court as “conduct that is directed against the dignity and authority of the court,” and provides that the sanction for such conduct “is punitive in order to vindicate the authority of the court.” Section 986 governs who maybe punished, “by fine or imprisonment or both,” for criminal contempt: under subsections (1) through (3), in general terms, persons whose conduct occurs either in the presence of the court or so near thereto as to obstruct justice, and officers of the court who misbehave in the performance of their official court duties; and under subsection (4), “[a]ny person disobeying in the course of a civil or criminal proceeding any order of a judicial authority.” In contrast to subsections (1) and (2), therefore, subsection (4) governs conduct occurring outside the presence of the court.

Practice Book §§991 through 994 govern nonsummary criminal contempt. In general terms, these sections determine how such a proceeding may be prosecuted; Practice Book § 991; see footnote 4; who may hear such a proceeding; Practice Book § 992; the right to a jury trial in such a proceeding; Practice Book § 993; and the limits of the sanctions that may be imposed. Practice Book § 994.

At issue in this case is the power of the trial court to act under § 986 (4) in a nonsummary fashion by punishing, as criminal contempt of court, conduct occurring outside of the court’s presence, by a “person disobeying in the course of a civil or criminal proceeding any order of a judicial authority.” We conclude that the court has such inherent power, and that the legislature has not abrogated it by any legislative enactment.

The inherent power of a Connecticut trial court non-summarily to punish, as criminal contempt of court, conduct occurring outside the court’s presence, such as disobedience to a judicial order, has been recognized in an unbroken line of authority from the earliest days of our judiciary to the present. These authorities have also consistently recognized that this inherent power is separate and distinct from the statutes regulating the exercise of the contempt power for conduct occurring in the court’s presence. See 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) pp. 358-59 (“Though the statute only contemplates contempts in presence of the court, yet at common law contempts not in the presence of the court may be-punished in a summary manner .... When courts punish for contempts, committed in their presence, they must inflict a definite fine, or imprison for a certain time in the manner prescribed by the statute: but where they punish for contempts at common law, or not committed in their presence they may imprison till further order of the court . . . .”); Rogers Mfg. Co. v. Rogers, 38 Conn. 121, 123 (1871) (criminal contempt for violation of injunction) (“The limitation provided for punishment of contempts in the presence of courts . . . has no application to contempts by disobedience to the orders and decrees of courts of chancery.”); Tyler v. Hamersley, 44 Conn. 393, 412 (1877) (criminal contempt for disobedience to writ of mandamus) (“Contempts are offences at common law against the court as an organ of public justice. The right of punishment is inherent in all courts and is essential for their protection and existence.”); Huntington v. McMahon, 48 Conn. 174, 196 (1880) (criminal contempt for taking property by force from judicial officer who held it for condemnation) (“[T]he statute deals only with acts of contempt committed in the presence of the court, and where no process is required to bring the offender into court. It leaves all other cases of contempt to be ascertained and punished according to the course of the common law.”); Welch v. Barber, 52 Conn. 147, 156 (1884) (criminal contempt for falsely causing attorney to secure continuance) (“There are . . . acts which are in defiance of the power and dignity of the court, but which are not actually nor constructively in its presence. . . . These . . . are not within the statute, but are defined and punished by the common law.”); State v. Howell, 80 Conn. 668, 671, 69 A. 1057 (1908) (criminal contempt for publishing newspaper articles about trial) (“The proceeding in contempt is for an offense against the court as an organ of public justice and not for a violation of the criminal law. The power to punish such offenses is inherent in courts of record, to enable them to preserve their own dignity and to duly administer justice in the causes pending before them.”); McTigue v. New London Education Assn., 164 Conn. 348, 353, 321 A.2d 462 (1973) (criminal contempt for violation of injunction) (“In criminal contempt the sanction is punitive in order to vindicate the authority of the court.”).

These authorities, moreover, are consistent with the law of criminal contempt generally. In the context of a proceeding for criminal contempt based upon violations of an injunction, the United States Supreme Court stated: “That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once became possessed of the power. . . . The ability to punish disobedience to judicial orders is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches. If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the judicial power of the United States would be a mere mockery.” (Citation omitted; internal quotation marks omitted.) Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795-96, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987); see also R. Goldfarb, The Contempt Power (1963) p. 9 (“[t]he power of courts to punish con-tempts is one which wends historically back to the early days of England and the crown”).

These authorities belie the defendant’s assertion that “[tjhere is no case, and no authority, anywhere in the United States that supports an argument that a court has inherent power to impose criminal sanctions for behavior that does not actually occur in the courtroom.” Unmistakably, our courts have such power, and Practice Book § 986 (4) reflects the exercise of that power.

We likewise reject the defendant’s contention that enactments by the legislature have eroded inherent judicial authority over criminal contempts occurring outside the presence of the court. Neither General Statutes § 51-33 nor General Statutes § 51-33a; see footnotes 7 and 8; affects that inherent judicial power in any way. The origins of § 51-33 go back at least to 1821. Moore v. State, 186 Conn. 256, 260, 440 A.2d 969 (1982). We have long held that this statute governs only con-tempts of court committed in the court’s presence, and does not affect contemptuous conduct committed outside that presence. Welch v. Barber, supra; Huntington v. McMahon, supra; Rogers Mfg. Co. v. Rogers, supra; see also 2 Z. Swift, supra.

Similarly, the enactment of § 51-33a in 1971 was not intended to displace the inherent power of the court to punish out-of-court contemptuous conduct. The purpose of § 51-33a was to comply with the mandate of the United States Supreme Court in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971), in which the court held that due process requires, under certain extreme circumstances, that a criminal contempt be heard by a judge other than the one who was the target of the contemptuous in-court conduct. Moore v. State, supra. Section 51-33a does not affect the court’s power regarding out-of-court conduct. Like § 51-33, it leaves that power to the course of the common law, and to our Practice Book provisions.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       Practice Book § 986 provides: “[criminal contempt]—who may be PUNISHED
      “The judicial authority may punish by fine or imprisonment or both:
      “(1) Any person who in the court’s presence behaves in a contemptuous or disorderly manner;
      “(2) Any person who violates the dignity and authority of any court, or any judicial authority, in its presence or so near thereto as to obstruct the administration of justice;

        “(3) Any officer of the court who misbehaves in the conduct of his official duties; or
      “(4) Any person disobeying in the course of a civil or criminal proceeding any order of a judicial authority.” (Emphasis added.)

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

       Practice Book § 991 provides: “[nonsummary criminal contempt] --NATURE OF PROCEEDINGS
      “A criminal contempt not adjudicated under Sec. 987 shall be prosecuted by means of an information. The judicial authority may, either upon his own order or upon the request of the prosecuting authority, issue an arrest warrant for the accused. The case shall proceed as any other criminal prosecution under these rules and the General Statutes.”

       The state appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The state appealed pursuant to General Statutes § 54-96, which provides: “Appeals from the rulings and decisions of the superior court, upon all questions arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”
      This case involves a proceeding in the trial court in which the state seeks, pursuant to Practice Book §§ 985 and 986 (4), a nonsummary adjudication of criminal contempt of court for conduct outside the presence of the court. Although such a proceeding requires most of the usual procedural protections inherent in a prosecution for a crime; see Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-800, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987); our precedents make clear that “a proceeding for [criminal] contempt, while it is of a criminal nature, is not a criminal prosecution.” State v. Howell, 80 Conn. 668, 671, 69 A. 1057 (1908); see also Wilson v. Cohen, 222 Conn. 591, 599, 610 A.2d 1177 (1992) (summary criminal contempt not a “criminal action” within meaning of General Statutes § 54-82b, governing right to jury trial in a “criminal action”); State v. Jackson, 147 Conn. 167, 158 A.2d 166 (1960) (summary criminal contempt not a criminal “offense” within meaning of General Statutes [1958 Rev.] § 54-12, governing appeals from city court to Court of Common Pleas). On the other hand, Practice Book § 991, governing nonsummary criminal contempt proceedings; see footnote 4; provides in relevant part: “The case shall proceed as any other criminal prosecution under these rules and the General Statutes.”
      We need not decide in this case whether § 54-96 requires the permission of the trial court for the state to appeal from a judgment of dismissal of an information filed under § 991; or whether, to the contrary, the state has an unlimited right to appeal, equivalent to the right to appeal of an individual who has been nonsummarily adjudicated in contempt for out-of-court conduct. See McClain v. Robinson, 189 Conn. 663, 667, 457 A.2d 1072 (1983). Such an unlimited right of appeal by the state could be supported on the ground that the purpose of an action pursuant to § 991 is not to vindicate the aims of the criminal law but “to vindicate the authority of the court.” Practice Book § 985. This determination is unnecessary in this case, however, because if § 54-96 applies, such permission was granted; and if it does not apply, such permission was unnecessary. Compare McClain v. Robinson, supra, 669 (sole method of review for summary adjudication of contempt is by writ of error).

       Practice Book § 815 provides in relevant part: “[motion to dismiss] -MATTERS TO BE RAISED
      “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information . . .
      “(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid . . . .”

       General Statutes § 51-33 provides: “punishment for contempt of court. Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”

       General Statutes § 51-33a provides: “criminal contempt, (a) Any person who violates the dignity and authority of any court, in its presence or so near thereto as to obstruct the administration of justice, or any officer of any court who misbehaves in the conduct of his official duties shall be guilty of contempt and shall be fined not more than five hundred dollars or imprisoned not more than six months or both.
      “(b) No person charged with violating this section may be tried for the violation before the same judge against whom the alleged contempt was perpetrated.”

       These claims are that: (1) the information was subject to dismissal because the Superior Court had, in a previous civil contempt proceeding, ruled for the defendant on the same allegations made herein; (2) the information does not adequately inform him of the nature and cause of the accusations; (3) the prosecution is barred by an applicable statute of limitations; (4) the judicial order that forms the basis of the first two counts of the information was based upon a statute that was later declared unconstitutional; (5) that judicial order had been obtained by fraud; (6) the prosecution is barred by double jeopardy and collateral estoppel; (7) the temporary orders upon which the prosecution is based are vague and uncertain; (8) the prosecution violates the defendant’s rights to equal protection of the laws, due process of law, free speech, and to be tried in the jurisdiction in which the offenses allegedly occurred; and (9) the prosecution was undertaken with prosecutorial misconduct. Also, we decline the defendant’s request that we reconsider our earlier ruling denying the defendant’s motion to dismiss this appeal.

       We have further classified contempts of court, whether civil or criminal, as “direct” or “indirect.” A direct contempt, exemplified by Practice Book § 986 (1) and (2), involves conduct occurring in or near the presence of the court. An indirect contempt, exemplified by § 986 (4), involves conduct occurring outside the court’s presence, such as a refusal to comply with an injunctive decree. See Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985).

       Practice Book §§ 987 and 988 govern summary criminal contempt. Those provisions are not involved in this case.

       Practice Book § 991 requires that a nonsummary criminal contempt “be prosecuted by means of an information.” Thus, such a proceeding must be brought by the state, because Practice Book § 617 requires that an information “be signed by the prosecuting authority.” Prior to the adoption of our rules of criminal procedure in 1976, such a proceeding could be prosecuted by a private party; see, e.g., McTigue v. New London Educa

        tion Assn., 164 Conn. 348, 321 A.2d 462 (1973); as well as by the state. See, e.g., State v. Howell, 80 Conn. 668, 69 A. 1057 (1908).

       Practice Book § 992 provides: “[nonsummary criminal contempt]— —DISQUALIFICATION OF JUDICIAL AUTHORITY
      “The trial and all related proceedings on which the contempt charges are based shall be heard by a judicial authority other than the trial judge or the judicial authority who had issued the order which was later disobeyed.”

       Practice Book § 993 provides: “[nonsummary criminal contempt]— —RIGHT TO JURY TRIAL
      “No person shall receive a total effective sentence of more than thirty days imprisonment or a fine in excess of ninety-nine dollars unless he has been afforded the right to a jury trial.”

       Practice Book § 994 provides: “[criminal contempt]—judgment and punishment
      “The judgment of contempt shall be prepared within a reasonable time by the clerk and shall be signed by the judicial authority and entered on the record. The sentence shall be pronounced in open court and shall not exceed six months imprisonment or a fine of five hundred dollars or both, for each contemptuous act.”

       This quotation makes untenable the defendant’s argument that Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987), is distinguishable because the prosecution for criminal contempt in that case rested upon a federal statute. Although the prosecution in Young was brought pursuant to 18 U.S.C. § 401 (3), which provides for criminal penalties for contempt of court, the court indicated that the power to punish for criminal contempt was an inherent judicial power, and that “[t]he manner in which the court’s prosecution of contempt is exercised . . . may be regulated by Congress . . . .” Id., 799. Thus, contrary to the defendant’s argument, the exercise of the court’s contempt power in Young, as opposed to the manner of that exercise, was not dependent on the federal statute.
      We also reject the defendant’s attempt to distinguish Young on the basis that it involved only the power of the court to initiate a criminal contempt proceeding, but not to adjudicate such a proceeding. It would be bizarre, indeed, to hold that a court has the inherent power to initiate a criminal contempt proceeding for the purpose of vindicating its authority and dignity, but that its power to continue such a proceeding to completion, and thereby accomplish that end, is dependent on legislative action.

       The defendant’s reliance on Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968), is unavailing. In Bloom the United States Supreme Court held that the United States constitution requires a jury trial for criminal contempt punishable by more than six months imprisonment. Although Justice Scalia, alone among the current Justices, reads Bloom to hold also that a court has no inherent power to punish as criminal contempt the violation of an injunction; see Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 823, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987) (Scalia, J., concurring); that view was specifically rejected by the majority of the court. See id., 796-97 n.8. In any event, even Justice Scalia’s reading of Bloom would not control this case. That reading depended on Justice Scalia’s interpretation of the limits of the judicial power under the United States constitution. It does not control the separation of powers provision of the Connecticut constitution.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Okee Industries, Inc. v. National Grange Mutual Insurance Company et al.
    (14583)
    Peters, C. J., Borden, Berdon, Nokcott and Katz, Js.
    Argued February 9
    decision released April 13, 1993

      John C. Yavis, Jr., with whom, on the brief, was Mark D. Nielsen, for the appellant (plaintiff).

      James N. Royster, for the appellee (named defendant).
   Peters, C. J.

The issue in this appeal is whether an unpaid subcontractor seeking to recover on a payment bond furnished for a public construction contract has adequately complied with the notice requirements contained in General Statutes § 49-42 (a). Alleging nonpayment for materials supplied to the worksite, the plaintiff, Okee Industries, Inc., doing business as Hardware Specialities, Inc. (subcontractor), brought an action against the defendant Jon Butler Building and Remodeling (general contractor) and the named defendant, National Grange Mutual Insurance Company (surety). After a hearing, the trial court rendered summary judgment in favor of the surety, from which the subcontractor appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c) and now reverse.

The trial court’s memorandum of decision and the record establish the following facts. Pursuant to General Statutes § 49-41, the surety executed a payment bond for a state financed construction project in East Windsor, naming the general contractor as principal and designating the suppliers of labor and materials as the beneficiaries of the bond. According to its complaint, the subcontractor supplied hardware items for the project in accordance with its contract with the general contractor, but remains unpaid to the extent of $37,742.90.

After unsuccessfully demanding payment from the general contractor, the subcontractor sent written notice of its claim to the surety on six separate occasions. Even though only one of these notices was sent by certified or registered mail, the notices were timely and adequately apprised the surety of the substance of the subcontractor’s claim. The surety refused to pay the subcontractor.

In the subcontractor’s action against the surety for breach of the surety’s obligations under the payment bond, the trial court concluded that the subcontractor was not entitled to enforce its right to payment under the bond because it had failed to serve timely notice on the general contractor, as required by § 49-42 (a). Because the statute requires a claimant to give proper notice both to the principal on the bond and to the surety, the court granted the surety’s motion for summary judgment and denied the subcontractor’s motion for partial summary judgment.

The subcontractor, in its appeal from the judgment, does not dispute that § 49-42 (a) makes compliance with the statutory notice requirements a precondition to its recovery on the surety bond. American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 224, 384 A.2d 378 (1978); Pittsburgh Plate Glass Co. v. Dahm, 159 Conn. 563, 565, 271 A.2d 55 (1970). The subcontractor’s obligation to give notice to the general contractor of its claim on a payment bond, even if the subcontractor and the general contractor have a direct contractual relationship, was added by an amendment to the statute in 1987. Public Acts 1987, No. 87-345, § 2. Accordingly, § 49-42 (a) now expressly provides that any “person who has furnished labor or material . . . may enforce his right to payment under the bond by serving a notice of claim within one hundred eighty days after the date on which he . . . furnished the last of the material for which the claim is made, on the surety that issued the bond and a copy of the notice on the contractor named as principal in the bond.” (Emphasis added.) The statute thus permits the surety to assert as a defense to an action on the bond not only a lack of timely notice to the surety itself, but also a lack of “a copy of the notice” to the general contractor.

The issue before us, therefore, is whether the subcontractor, after having repeatedly notified the surety in writing of a claim for payment in the amount of $37,742.90, adequately gave “a copy of the notice” to the general contractor. The statutory requirement would have been met, on its face, if the subcontractor, in one of its timely written notices of claim to the surety, had appended a legend indicating that a copy was being sent to the general contractor, and had then proceeded to forward a copy as indicated. In this case, however, the subcontractor instead sent a letter that, although timely, was the mirror image of what the statute contemplates. On July 9, 1990, the subcontractor wrote a letter to the general contractor, challenging the general contractor’s calculation of the amount remaining unpaid and demanding immediate payment by the general contractor. At the bottom of this letter, the subcontractor appended a notation indicating that a copy was being sent to the surety.

Whether the July 9,1990 letter meets the statutory requirement that the general contractor be served with “a copy of the notice” that a claim is being asserted against the surety depends upon an assessment of how the letter fits into two somewhat conflicting lines of cases. On the one hand, as the surety notes, § 49-42 is a statutory cause of action that had no antecedents at common law. “The statute having created the cause of action and prescribed the procedure, the mode of proceeding is mandatory and must be strictly complied with.” Pittsburgh Plate Glass Co. v. Dahm, supra, 565; New Britain Lumber Co. v. American Surety Co., 113 Conn. 1, 7-8, 154 A. 147 (1931); Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 757, 596 A.2d 1331 (1991). On the other hand, as the subcontractor notes, § 49-42 is a remedial statute enacted to provide security for workers and materials suppliers unable to avail themselves of the protection of a mechanic’s lien. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 477-79, 542 A.2d 692 (1988). Because “[t]he statutory requirement of a bond is designed to protect and benefit those who furnish materials and labor to the contractor on public work, in that they may be sure of payment of their just claims, without defeat or undue delay . . . such statutory provisions are to be liberally construed.” (Citations omitted; internal quotation marks omitted.) American Masons’ Supply Co. v. F. W. Brown Co., supra, 227; International Harvester Co. v. L. G. DeFelice & Son, Inc., 151 Conn. 325, 333, 197 A.2d 638 (1964).

We have not often applied maxims of strict construction and liberal construction to one and the same statute. As modern jurisprudence counsels, the explanation for this apparent paradox is found in an examination of the underlying fact patterns in the relevant cases. We have relied on the rule of strict construction when the issue was whether the claimant’s notice complied with the specific time requirements of the statute. Pittsburgh Plate Glass Co. v. Dahm, supra, 566; New Britain Lumber Co. v. American Surety Co., supra; Wickes Mfg. Co. v. Currier Electric Co., supra, 759. We have, however, relied on the rule of liberal construction when the issue was the eligibility for statutory coverage of a particular class of subcontractors; American Masons’ Supply Co. v. F. W. Brown Co., supra; or a particular type of supplier of materials. International Harvester Co. v. L. G. DeFelice & Son, Inc., supra, 333-36. In other words, if the statute itself imposes specific constraints, we have held these constraints to be mandatory; if the statute leaves room for construction, we have construed its requirements liberally in order to implement the statute’s remedial purpose.

Because § 49-42 was patterned after federal legislation popularly known as the Miller Act; 40 U.S.C. §§ 270a through 270d; we have regularly consulted federal precedents to determine the proper scope of our statute. American Masons’ Supply Co. v. F. W. Brown Co., supra, 223-24; Pittsburgh Plate Glass Co. v. Dahm, supra, 567-68; International Harvester Co. v. L. G. DeFelice & Son, Inc., supra, 332-34. The federal precedents, like our own, counsel liberal construction of statutory requirements other than those relating to specific time constraints. As the Supreme Court of the United States observed in Fleisher Engineering & Construction Co. v. United States ex rel. Hollenbeck, 311 U.S. 15, 18, 61 S. Ct. 81, 85 L. Ed. 12 (1940), “a requirement which is clearly made a condition precedent to the right to sue must be given effect, but in determining whether a provision is of that character the statute must be liberally construed so as to accomplish its purpose.”

Following Fleischer, the lower federal courts, except in cases involving the timeliness of notice, have eschewed the rule of strict construction. As the court observed in United States ex rel. Hopper Bros. Quarries v. Peerless Casualty Co., 255 F.2d 137, 143 (8th Cir.), cert. denied, 358 U.S. 831, 79 S. Ct. 51, 3 L. Ed. 2d 69 (1958): “It may be that Congress thought the procedural requirements it prescribed for laborers and materialmen to enforce the right to sue for their pay which is accorded them by the Miller Act were so plain, simple, and easy to comply with that there would seldom be questions about them. But experience is to the contrary and the courts are continually called on to determine whether one deviation or another from the strict letter of the Act necessitates denial of the protection to laborers and materialmen, which the Act aims to provide. The doctrine to which the courts are unanimously committed is that the protection of the laborers and materialmen is the dominant purpose of the Act and a liberal construction of its procedural provisions must be resorted to when necessary to effectuate that purpose.”

Of specific relevance to the present case are the federal precedents that have relied on a standard of substantial performance rather than strict compliance when construing statutory notice requirements dealing with the service of notice and with the contents of notice. Fleischer held that the statutory requirement for service of notice should not be enforced in light of undisputed evidence that the notice had actually been given and received. Fleisher Engineering & Construction Co. v. United States ex rel. Hollenbeck, supra, 19; see also Coffee v. United States ex rel. Gordon, 157 F.2d 968, 969-70 (5th Cir. 1946) (delivery effective if by hand rather than by mail). Numerous decisions of federal courts of appeals have similarly held a timely written notice to be sufficient despite technical deficiencies in its contents if notice in fact was actually given and received. See, e.g., United States ex rel. San Joaquin Blocklite v. Lloyd E. Tull, Inc., 770 F.2d 862, 865-66 (9th Cir. 1985) (joint construction curing defects in two separately deficient letters); United States ex rel. Honeywell, Inc. v. A & L Mechanical Contractors, Inc., 677 F.2d 383, 386 (4th Cir. 1982) (contents of notice sufficient if “substantially accurate”); United States ex rel. Kelly-Mohrhusen Co. v. Merle A. Patnode Co., 457 F.2d 116, 117 (7th Cir. 1972) (verbal communication augmenting deficient written notice); United States ex rel. Jinks Lumber Co. v. Federal Ins. Co., 452 F.2d 485, 488 (5th Cir. 1971) (joint construction curing two incomplete letters); Liles Construction Co. v. United States ex rel. Stabler Paint Mfg. Co., 415 F.2d 889, 891 (5th Cir. 1969) (same).

In light of the federal cases adopting a liberal construction of statutory requirements relating to notices that, although timely, are imperfectly worded, we conclude that the subcontractor complied with the notice requirements of § 49-42 (a) in the circumstances of this case. The apparent function of the statutory requirement that the contractor be served with “a copy of the notice” to the surety is to alert the contractor of the surety’s impending involvement in the fiscal management of the project. The adequacy of the notice-giving function of the July 9,1990 letter was confirmed in this case by conversations held on August 2, 1990, within the statutory 180 day notice period, at a meeting between representatives of all three parties. At this meeting, the general contractor manifested its awareness of the fact that a notice of a claim had been given to the surety. The fact that the general contractor had received actual notice at the proper time persuades us that the imperfections of the letter fall within the category of deviations that are insubstantial in the absence of demonstrated prejudice. See Fleisher Engineering & Construction Co. v. United States ex rel. Hallenbeck, supra; United States ex rel. Kelly-Mohrhusen Co. v. Merle A. Patnode Co., supra; School Board of Palm Beach County ex rel. Major Electrical Supplies of Stuart, Inc. v. Vincent J. Fasano, Inc., 417 So. 2d 1063, 1066 (Fla. App. 1982); Keller Supply Co. v. Lydig Construction Co., 57 Wash. App. 594, 599-600, 789 P.2d 788 (1990).

Our decision to permit a subcontractor to sue on a surety bond despite its failure to comply precisely with the notice requirements of § 49-42 (a) is consistent with the emerging law elsewhere. We have used a substantial compliance test to assess the sufficiency of the contents of a statutory notice under other remedial statutes, such as our Workers’ Compensation Act, General Statutes § 31-294; see, e.g., Dubois v. General Dynamics Corporation, 222 Conn. 62, 67, 607 A.2d 431 (1992). Furthermore, the legislature has recently adopted revisions to article 3 of the Uniform Commercial Code designed to limit the ability of a surety, in the absence of a showing of prejudice, to avoid paying its obligations under the bond by relying on insubstantial deviations from the contractual relationships between the underlying parties. Although article 3 governs only those suretyship transactions that arise in the context of parties to a negotiable instrument; see General Statutes § 42a-3-102; its provisions are being seriously considered as the basis for broader proposals for a new Restatement of the Law of Suretyship.

The subcontractor in this case is suing to recover from the surety under the precise circumstances for which § 49-42 was enacted. Unless the subcontractor can pursue its remedy on the surety bond, its contribution to a public works project will remain uncompensated because of the general contractor’s bankruptcy. The surety was paid to provide security against that very risk. In the absence of specific statutory instructions to the contrary, we conclude that the subcontractor’s insubstantial deviation from the notice requirements of § 49-42 does not defeat its right to look to the security that the legislature intended to provide for laborers and materials suppliers at public worksites.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other justices concurred.

       General Statutes § 49-42 provides in relevant part: “enforcement OF RIGHT TO PAYMENT ON BOND. SUIT ON BOND, PROCEDURE AND JUDGMENT, (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 49-41 and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which the claim is made, may enforce his right to payment under the bond by serving a notice of claim within one hundred eighty days after the date on which he performed the last of the labor or furnished the last of the material for which the claim is made, on the surety that issued the bond and a copy of the notice on the contractor named as principal in the bond. The notice of claim shall state with substantial accuracy the amount claimed, the name of the party for whom the labor was performed or to whom the materials were furnished and shall provide a detailed description of the bonded public project for which the labor or materials were provided. . . . The notices required under this section shall be served by registered or certified mail, postage prepaid in envelopes addressed to any office at which the surety, principal or claimant conducts his business, or in any manner in which civil process may be served. If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the superior court for such sums and prosecute the action to final execution and judgment. )>

       The first count of the complaint was an action against both defendants for breach of their respective contractual obligations. The second count of the complaint was an action against the surety for allegedly engaging in unfair claim settlement practices in violation of General Statutes § 38a-816 (6) and in unfair trade practices in violation of General Statutes § 42-110b. In the trial court, the subcontractor conceded that it could not recover on the second count of its complaint if the first count were barred by its failure to comply with the notice requirements of General Statutes § 49-42. Because the trial court found that the subcontractor had failed to comply with these notice requirements, the trial court rendered summary judgment in favor of the surety. For this reason, this appeal addresses only the first count of the complaint.

       General Statutes § 49-41 provides: “public structures, bonds for protection of employees and materialmen, (a) Before any contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, except a design professional, as defined in section 4b-55, that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided no such bond shall be required to be furnished in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars.
      “(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars.”

       The general contractor filed for bankruptcy on December 4, 1991.

       The legal sufficiency of these notices to the surety is not an issue in this appeal.

       Number 87-345, § 2 of the 1987 Public Acts made a number of changes to General Statutes § 49-42. The legislative history of the amendment does not illuminate the reason for adding a requirement that the general contractor must be served, in all cases, with a copy of the notice of a claim to the surety.

       The text of the letter from the subcontractor to the general contractor reads as follows:
      , “HARDWARE SPECIALTIES, INC.
      A Subsidiary of OKEE Industries, Inc.
      P.O. Box 678, West Springfield, MA 01090
      July 9, 1990 Jon Butler Building 50 Westford Avenue Stafford Springs, CT 06706
      Attn: Jon Butler
      Re: State of Connecticut Dormitory South Windsor, CT Dear Mr. Butler,
      We are in receipt of your letter of 7-5-90.
      In this letter you state that you will pay us a total sum of $18,000.00 in monthly installments of $5,000.00.
      We disagree with the amount of $18,000.00. You owe us a total of $37,742.90. We have a signed purchase order and change order for a total of $52,600.00 with a credit of $1,180.00 bringing the total contract to $51,420.00. Payments of $13,677.10 have been made to date.
      This leaves a total amount due of $37,742.[90]. We demand payment of this total in full immediately.
      Sincerely,

        Isl A1 Chapman A1 Chapman Manager
      cc: National Grange Mutual Insurance Company”

       The cases on which the surety relies in urging the applicability of a rule of strict construction in this case are not to the contrary. See United States ex rel. General Electric Co. v. H. I. Lewis Construction Co., 375 F.2d 194, 201 (2d Cir. 1967) (timeliness of notice case); United States ex rel. Old Dominion Iron & Steel Corporation v. Massachusetts Bonding & Ins. Co., 272 F.2d 73, 75-76 (3d Cir. 1959) (finding of insufficient notice because supplier took no action to protect his interests under the Miller Act, 40 U.S.C. § 270b);
        Bowden v. United, States ex rel. Malloy, 239 F.2d 572, 577-78 (9th Cir. 1956), cert. denied, 353 U.S. 957, 77 S. Ct. 864, 1 L. Ed. 2d 909 (1957) (finding of insufficient notice because supplier gave no notice to the general contractor, but instead relied on notice provided by another subcontractor for whom the supplier had provided equipment).

       Compare General Statutes § 42a-3-605 with General Statutes (Rev. to 1991) § 42a-3-606.

       Restatement, Suretyship §§ 33, 35-39 (Council Draft No. 2, 1992); see also Restatement, Security §§ 128-29 (1941) (permitting a compensated surety to assert suretyship defenses only to the extent that it has suffered a loss because of the conduct of the underlying parties).


author: Callahan, J.

text:
    Joseph Putala v. Juanine S. DePaolo et al.
    (14491)
    Callahan, Borden, Berdon, Norcott and Katz, Js.
    Argued January 14
    decision released April 13, 1993

      Mary Rose Flaherty, with whom was Daniel A. Silver, for the appellant (plaintiff).

      Robert A. Izzo and John T. Nugent, for the appellees (defendants).
   Callahan, J.

The issue in this appeal is whether the plaintiff, Joseph Putala, was entitled to be declared the winner, in the 1991 Southington municipal elections, of one of two vacancies on the Southington board of finance. The plaintiff claimed that he was so entitled and that he had been wrongfully deprived of his seat on the board by the defendants, the election officials of the town of Southington. He subsequently filed a complaint pursuant to General Statutes § 9-328 to enforce his claim to office. The trial court concluded that the defendants had correctly interpreted the Southington town charter and had properly awarded one of two vacancies on the board of finance to a candidate who had received fewer votes than the plaintiff. We agree.

On November 5, 1991, a general election for municipal offices was held in the town of Southington. Included were contests for two six year terms and one truncated unexpired term on the Southington board of finance. The Southington board of finance consists of six members who serve six year terms. Two of the six members of the board run for reelection on a staggered basis every two years. 24 Spec. Acts 589, No. 153, § 1 (1945), see footnote 5; Southington town charter § 202 (e), see footnote 9.

In 1991, of the three members of the board whose seats were not contested in the November election, two were Democrats and one was a Republican. A Democrat, Christine A. Shanley, was elected to fill the unexpired term on the board. The board at that point had as members three Democrats and one Republican.

A Republican candidate, Leonard Marcheselle, received the highest number of votes in the election from among the five candidates for the two six year terms on the board. The next highest number of votes was obtained by the plaintiff, who is a Democrat. The third highest number of votes was garnered by Jeanne C. Carey, a Republican.

The defendant election officials, Juanine S. DePaolo, the Southington town clerk, and Susan Elshire, the election moderator, declared Marcheselle, who received the highest number of votes, elected to one of the two six year terms on the board. At that point the board had a complement of three Democrats and two Republicans. The defendants then declared Carey, the Republican, who had received the third highest number of votes in the election, the winner of the second six year term on the board, rather than the plaintiff, who had received the second highest vote total.

The defendants claim that they were required to award the second full term to Carey rather than the plaintiff by § 2 of Special Act No. 411 (1931), as amended by § 1 of Special Act No. 153 (1945). Those special acts, the defendants contend, mandate that the Southington board of finance be bipartisan and that it be composed of three members of each of the two leading political parties. They argue, therefore, that they had no choice but to declare Carey, rather than the plaintiff, the winner of the second full term on the board.

Section 2 of Special Act No. 411 (1931) established a six member board of finance for Southington, the board to be composed of three members of each of the two leading political parties receiving the highest number of votes in an annual election. Section 1 of Special Act No. 153 (1945) amended § 2 of Special Act No. 411 to provide for staggered six year terms for the members of the board, two seats to be contested every two years. Special Act No. 153 did not, however, contemplate a change in the bipartisan nature of the board. Section 1 of Special Act No. 153 provided in pertinent part that, once staggered terms were established: “Biennially thereafter, each of the leading political parties shall nominate not fewer than two candidates to hold office for a term of six years from the date of their election and until their successors have been elected and have qualified, to be voted for at such biennial election. No person at such election shall vote for more than two members of said board. Of the total number of members so voted for, the one receiving the highest number of votes on each of the tickets of the two leading political parties shall be elected to said board.”

The plaintiff and the defendants stipulated that Special Act No. 411 created a six person bipartisan board of finance for the town of Southington. They also agree in their briefs that the effect of Special Act No. 153 was to create staggered six year terms for members of the board but that Special Act No. 153 did not purport to and was not intended to change the bipartisan composition of the board. The plaintiff claims, however, that both special acts were superseded in 1966, when Southington adopted a town charter pursuant to the Home Rule Act, General Statutes §§ 7-187 through 7-201. See Caulfield v. Noble, 178 Conn. 81, 85, 420 A.2d 1160 (1979). He points out that the Southington charter incorporated § 9-167a of the General Statutes, the minority representation statute, as § 204 of the charter. He maintains that as a result, pursuant to § 204 of the charter, a municipal board comprised of six members may have a maximum of four members of the same political party. The plaintiff argues, therefore, that in 1991, the Southington board of finance was no longer required to be bipartisan but could properly have seated four members of a single political party. He argues that, consequently, the charter and the results of the November, 1991 election, wherein he received the second highest number of total votes, dictate that he be declared the winner of the full six year term on the board that he contends was erroneously awarded to the Republican, Carey. We disagree.

The plaintiff’s claim requires that we construe § 204 of the Southington town charter in the context of the charter as a whole “with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation.” Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 451, 541 A.2d 1226 (1988); State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988); Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984). Section 1102 of the Southington town charter provides in relevant part: “As of the effective date of this Charter all General Laws and Special Acts applying to the town, all ordinances and bylaws of the town, and all rules and regulations of commissions, boards, departments and agencies of the town shall continue in force, except insofar as they are inconsistent with the provisions of this Charter, until they are amended or repealed by ordinance of the council or the appropriate body having jurisdiction. All Special Acts or parts of acts relating to the town inconsistent with the provisions of this Charter are repealed.”

The plaintiff does not claim that Special Acts Nos. 411 and 153 have been expressly amended or repealed by the town council or another appropriate body. He argues, rather, that Special Acts Nos. 411 and 153 have been repealed by implication because they are inconsistent with the provisions of General Statutes § 9-167a, the minority representation statute, that has been incorporated into the Southington town charter via § 204 of the charter. The plaintiffs claim that the Special Acts are inconsistent with the charter and have been repealed by implication is unfounded.

Section 204 of the Southington charter incorporated § 9-167a of the General Statutes into the charter in its entirety. Subsection (e) of § 9-167a provides: “Nothing in this section shall be construed to repeal, modify or prohibit enactment of any general or special act or charter which provides for a greater degree of minority representation than is provided by this section.” Consequently, Special Acts Nos. 411 and 153, which provide greater minority representation than General Statutes § 9-167a, are not inconsistent with the Southington charter but in fact have had their lives extended by the charter.

Moreover, several tenets of statutory construction militate against the plaintiffs position. It is well established that repeal of the provisions of a prior legislative enactment by implication is not favored. Metropolitan District v. Barkhamsted, 199 Conn. 294, 305, 507 A.2d 92 (1986); Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521, 468 A.2d 574 (1983); Powers v. Ulichny, 185 Conn. 145, 153, 440 A.2d 885 (1981); Hirschfeld v. Commission on Claims, 172 Conn. 603, 606, 376 A.2d 71 (1977).

Repeal by implication will not be inferred if legislative acts can be reconciled and given concurrent effect. Metropolitan District v. Barkhamsted, supra, 306; Shanley v. Jankura, 144 Conn. 694, 702, 137 A.2d 536 (1957). That Special Acts Nos. 411 and 153 can be reconciled and given concurrent effect with the provisions of the charter is manifest. The Special Acts, relating to the election of the members of the board of finance, not only do not conflict with the provisions of the charter but the charter, by its terms, explicitly contemplates their continued existence and efficacy as long as they provide for greater minority representation than required by § 204 of the charter. At the same time, § 204 is effective to establish, by charter, minimum minority representation on boards and commissions generally, as provided in § 9-167a, to ensure that their political makeup conforms to state law.

Furthermore, Southington election officials have, since the charter became effective in 1966, continued to consider Special Acts Nos. 411 and 153 the operative law concerning the composition of the board of finance. Consequently, they have routinely required the election of a bipartisan board from the time of the enactment of Special Act No. 411 in 1931, until 1991, when the present controversy arose. Indeed, the plaintiff himself received the benefit of that interpretation of the Special Acts and the charter in the municipal election in 1985, when he was declared the winner of a seat on the board of finance despite having received fewer votes than two Republican candidates. “[T]he interpretation of provisions of a city charter by the city council or other town authorities has been given considerable weight by courts construing and applying such provisions. See Burwell v. Board of Selectmen, 178 Conn. 509, 518, 423 A.2d 156 (1979); see also Castaneda v. Holcomb, 114 Cal. App. 3d 939, 945-46, 170 Cal. Rptr. 875 (1981); Van Cleve v. Wallace, 216 Minn. 500, 508, 13 N.W.2d 467 (1944); Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, 261-62, 146 S.W. 1142 (1912); 2 E. McQuillin, Municipal Corporations (3d Ed. 1979) § 9.22, p. 686.” Pepe v. New Britain, 203 Conn. 281, 291, 524 A.2d 629 (1987).

Finally, a radical departure from the long established policy of having a bipartisan board of finance will not be inferred without a clear indication that such a result was intended. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 481, 542 A.2d 692 (1988); Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979); Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954). There is no discernible indication that the voters of Southington intended the demise of bipartisanship on the board of finance by adopting the charter in 1966. In fact, every indication in the charter is to the contrary. See Southington town charter § 1102 and § 204 (incorporating General Statutes § 9-167a [e]).

In order to support his position the plaintiff places great reliance on subsection (g) of § 202 of the Southington charter. That subsection of § 202 concerns the election of members of the board of water commissioners and explicitly mandates that that board shall consist of six members, only three of whom shall be members of any one political party. On the other hand, the plaintiff notes, § 202 (e) of the charter states only that two members of the board of finance shall be elected biennially for a term of six years. He argues that if the drafters of the charter had intended that the board of finance remain bipartisan after the adoption of the charter, they would have used language similar to that used in § 202 (g) in drafting § 202 (e). We are unpersuaded.

Just as compelling an interpretation of subsections (e) and (g) of § 202 of the charter as that espoused by the plaintiff, is that the board of water commissioners was reconstituted as bipartisan by the charter when previously it had not been bipartisan. The drafters of the charter, on the other hand, may well have believed that such language was unnecessary to establish the bipartisan composition of the board of finance because §§ 204 and 1102 of the Southington charter continued the existence and validity of Special Acts Nos. 411 and 153 that had already provided for a bipartisan board of finance. Further, there is nothing in the charter to which we have been directed or that we could locate to indicate that the number of members of the board of finance or the method of their selection was changed from that provided in Special Act No. 153. The drafters of the charter therefore apparently assumed the continued efficacy of Special Act No. 153 to maintain the membership of the board at six members serving staggered six year terms.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 9-328. contests and complaints in election OF MUNICIPAL OFFICERS AND NOMINATION OF JUSTICES OF THE PEACE. Any elector or candidate claiming to have been aggrieved by any ruling of any election official in connection with an election for any municipal office or a primary for justice of the peace, or any elector or candidate claiming that there has been a mistake in the count of votes cast for any such office at such election or primary, or any candidate in such an election or primary claiming that he is aggrieved by a violation of any provision of sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such election or primary, may bring a complaint to any judge of the superior court for relief therefrom. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the state elections enforcement commission. If such complaint is made prior to such election or primary, such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the secretary of the state and the state elections enforcement commission. If such complaint is made subsequent to such election or primary, it shall be brought within ten days of such election or primary to any judge of the superior court, in which he shall set out the claimed errors of the election official, the claimed errors in the count or the claimed violations of said sections. Such judge shall forthwith order a hearing to be had upon such complaint, upon a day not more than five nor less than three days from the making of such order, and shall cause notice of not less than three nor more than five days to be given to any candidate or candidates whose election or nomination may be affected by the decision upon such hearing, to such election official, the secretary of the state, the state elections enforcement commission and to any other party or parties whom such judge deems proper parties thereto, of the time and place for the hearing upon such complaint. Such judge shall, on the day fixed for such hearing and without unnecessary delay, proceed to hear the parties. If sufficient reason is shown, he may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judge shall thereupon, if he finds any error in the rulings of the election official or any mistake in the count of the votes, certify the result of his finding or decision to the secretary of the state before the tenth day succeeding the conclusion of the hearing. Such judge may order a new election or primary or a change in the existing election schedule. Such certificate of such judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election officials, to the correctness of such count, and, for the purposes of this section only, such claimed violations, and shall operate to correct the returns of the moderators or presiding officers, so as to conform to such finding or decision, except that this section shall not affect the right of appeal to the supreme court and it shall not prevent such judge from reserving such questions of law for the advice of the supreme court as provided in section 9-325. Such judge may, if necessary, issue his writ of mandamus, requiring the adverse party and those under him to deliver to the complainant the appurtenances of such office, and shall cause his finding and decree to be entered on the records of the superior court in the proper judicial district.”
      The defendants claimed that the trial court improperly denied their motion to dismiss the plaintiffs complaint under General Statutes § 9-328 for lack of jurisdiction because of the failure of the plaintiff timely to serve certain parties. We have reviewed this claim and find it unpersuasive. See Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 6, 372 A.2d 123 (1976).

       The election moderator and the town clerk ruled that the unexpired term on the board should be filled prior to filling the two full-term vacancies. That ruling has not been contested.

       That decision is not challenged.

       Special Act No. 411 (1931) provides in relevant part: “AN act creating A BOARD OF FINANCE IN THE TOWN OF SOUTHINGTON. . . .
      “Sec. 2. At the annual town meeting of said town to be held on the first Monday in October, 1931, and annually thereafter, said town shall elect in the manner in which other town officers are elected, six electors of said town as members of said board of finance. No person, at such election, shall vote for more than four members of said board. Of the total number of members so voted for the three receiving the highest number of votes on each of the tickets of the two leading parties shall be elected members of said board of finance. The members of the board so elected shall hold office for one year from the date of their election and until their successors shall be elected and shall have qualified.”

       Special Act No. 153 (1945) provides in relevant part: “an act amending AN ACT CREATING A BOARD OF FINANCE IN THE TOWN OF SOUTHINGTON.
      “Section 1. Section 2 of an act creating a board of finance in the town of Southington, approved May 19,1931, is amended to read as follows: At the biennial town meeting of said town to be held on the first Monday in October, 1946, said town shall elect, in the manner in which other town officers are elected, six electors of said town as members of said board of finance, two for a term of two years from the first Monday in October, 1946, two for a term of four years from said date and two for a term of six years from said date, and biennially thereafter said town shall elect two members of said board for a term of six years. Each of the leading political parties shall nominate not fewer than two candidates for each of said terms of office to be voted for at such election to be held on the first Monday in October, 1946, and no person at such election shall vote for more than two members of said board for each of said terms of office. Of the total number of members so voted for, the one receiving the highest number of votes for each of said terms of office on each of the tickets of the two leading political parties shall be elected to said board. Biennially thereafter, each of the leading political parties shall nominate not fewer than two candidates to hold office for a term of six years from the date of their election and until their successors have been elected and have qualified, to be voted for at such biennial election. No person at such election shall vote for more than two members of said board. Of the total number of members so voted for, the one receiving the highest number of votes on each of the tickets of the two leading political parties shall be elected to said board.”

       Section 204 of the Southington town charter provides: “minority representation.
      “Minority representation on any elective or appointive board, council, commission, committee or similar body of the town shall be determined in accordance with the provisions of section 9-167a of the General Statutes, Revision of 1958, as amended. As provided in said section, the maximum number on any such board, commission, committee or similar body who may be members of the same political party shall be as specified in the following table:
      Total Membership Maximum From One Party 3 4 5 6 7 8 9 More than 9 Two-thirds of total membership”

       “[General Statutes] Sec. 9-167a. minority representation, (a) (1) Except as provided in subdivision (2) of this subsection, the maximum number of members of any board, commission, legislative body, committee or similar body of the state or any political subdivision thereof, whether elective or appointive, who may be members of the same political party, shall be as specified in the following table:
      COLUMN I COLUMN II Total Membership 3 ......... 4 ......... 5 ......... 6 ......... 7 ......... 8 ......... 9 ......... Moré than 9 Maximum from One Party ............2 ............3 ............4 ............4 ............5 ............5 ............6 Two-thirds of total membership

        “(2) The provisions of this section shall not apply (A) to any such board, commission, committee or body whose members are elected wholly or partially on the basis of a geographical division of the state or political subdivision, (B) to a legislative body of a municipality (i) having a town meeting as its legislative body or (ii) for which the charter or a special act, on January 1, 1987, provided otherwise or (C) to the city council of an unconsolidated city within a town and the town council of such town if the town has a town council and a representative town meeting, the town charter provides for some form of minority representation in the election of members of the representative town meeting, and the city has a city council and a body having the attributes of a town meeting or (D) to the board of directors and other officers of any district, as defined in section 7-324, having annual receipts from all sources not in excess of two hundred fifty thousand dollars.
      “(b) Prior to any election for or appointment to any such body, the municipal clerk, in cases of elections, and the appointing authority, in cases of appointments, shall determine the maximum number of members of any political party who may be elected or appointed to such body at such election or appointment. Such maximum number shall be determined for each political party in the following manner: From the number of members of one political party who are members of such body at the time of the election or appointment, subtract the number of members of such political party whose terms expire prior to the commencement of the terms for which such election or appointment is being held or made and subtract the balance thus arrived at from the appropriate number specified in column II of subsection (a) of this section.
      “(c) In the case of any election to any such body the winner or winners shall be determined as under existing law with the following exception: The municipal clerk shall prepare a list of the candidates ranked from top to bottom according to the number of votes each receives; when the number of members of any one political party who would be elected without regard to this section exceeds the maximum number as determined under subsection (b) of this section, only the candidates of such political party with the highest number of votes up to the limit of such maximum shall be elected, and the names of the remaining candidates of such political party shall be stricken from the list. The next highest ranking candidates shall be elected up to the number of places to be filled at such election.
      “(d) If an unexpired portion of a term is to be filled at the same time as a full term, the unexpired term shall be deemed to be filled before the full term for purposes of applying this section. At such time as the minority representation provisions of this section become applicable to any board, commission, committee or body, any vacancy thereafter occurring which is to be filled by appointment shall be filled by the appointment of a member of the same political party as that of the vacating member.
      “(e) Nothing in this section shall be construed to repeal, modify or prohibit enactment of any general or special act or charter which provides for a greater degree of minority representation than is provided by this section.
      “(f) Nothing in this section shall deprive any person who is a member of any such body on July 1,1960, of the right to remain as a member until the expiration of his term.
      “(g) For the purposes of this section, a person shall be deemed to be a member of the political party on whose enrolment list his name appears on the date of his appointment to, or of his nomination as a candidate for election to, any office specified in subsection (a) of this section, provided any person who has applied for erasure or transfer of his name from an enrolment list shall be considered a member of the party from whose list he has so applied for erasure or transfer for a period of six months from the date of the filing of such application and provided further any person whose candidacy for election to an office is solely as the candidate of a party other than the party with which he is enrolled shall be deemed to be a member of the party of which he is such candidate.”

       Section 202 of the Southington town charter provides in pertinent part: “elective officers.
      “At each meeting of the town electors there shall be elected . . . (g) Three (3) members of the board of water commissioners which shall consist of six (6) members. Terms shall be for four (4) years for each term expiring in the year of the election. The membership of the board of water commissioners shall be limited to three (3) members from any one (1) political party. (11-3-70; 11-2-71; 7-23-84; 11-8-88)”

       Section 202 of the Southington town charter provides in pertinent part: “ELECTIVE OFFICERS.
      “At each meeting of the town electors there shall be elected . . . (e)Two (2) members of the board of finance for a term of six (6) years.”

       That indeed appears to be the case. Special Act No. 468 (1901), which established the board of water commissioners to be effective upon the acquisition by the town of Southington of The Southington Water Company, did not require that the board, which as originally constituted had only three members, be bipartisan.


author: Norcott, J.

text:
    Michael Bergeron et al. v. Violet D. Mackler
    (14495)
    Callahan, Boeden, Berdon, Norcott and Katz, Js.
    Argued January 14
    decision released April 20, 1993

      Houston Putnam Lowry, for the plaintiffs in error.
   Norcott, J.

This is a writ of error from an order of the Superior Court granting the request of the defendant in error (defendant), Violet Mackler, to disqualify counsel for the plaintiffs in error (plaintiffs), Michael Bergeron, James Downey and Michail Campbell. The plaintiffs claim that the trial court improperly disqualified the law firm of Tarlow, Levy & Droney, P.C. (firm), from representing them as nonparty witnesses in a marital dissolution action relying on the firm’s previous representation of the defendant in a residential house closing. The plaintiffs claim that the trial court improperly relied upon the “appearance of impropriety” standard when it disqualified the firm from representing them without addressing the relationship between the prior and the present representation. We agree and reverse the judgment of the trial court.

The record discloses the following facts. The plaintiffs are three supoenaed witnesses in the underlying dissolution action known as Mackler v. Mackler, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. FA-90-0373964-S. Philip Mackler (Mackler), the defendant’s husband, is an officer and the sole director and shareholder of Bell Food Services, Inc. (Bell Food), and is the president, a director and the majority shareholder of Bell Amusement, Inc. (Bell Amusement). At the time in question, the plaintiffs were business associates of Mackler through either Bell Food or Bell Amusement.

The firm has represented Mackler, Bell Food and Bell Amusement in various matters, and both corporations have normally employed no other counsel. In 1988, the firm represented Mackler and the defendant in connection with the purchase of a house in Glastonbury. The firm has at no other time represented the defendant.

The defendant commenced a dissolution action against Mackler. Although the Glastonbury house was one of the marital assets subject to division in the dissolution action, it was not the focus of additional dispute. During the dissolution action, the defendant noticed the deposition of the plaintiffs, and the plaintiffs filed a motion for a protective order through their counsel, Attorney Houston P. Lowry, who was then a member of the firm. The defendant filed a motion for a hearing regarding the protective order and, as part of that motion, requested that the firm be disqualified from representing the plaintiffs because the firm had represented the defendant and her husband when they had purchased the Glastonbury house.

At a hearing before the trial court, Lowry explained that the only connection the firm had with the defendant was with regard to the house closing. He also stated that the firm had never represented Mackler in connection with the dissolution action, but that it had represented Mackler and the plaintiffs in previous litigation and as general counsel for Bell Foods and Bell Amusement. Counsel for Mackler argued that Lowry’s representation of the plaintiffs as officers of Bell Food and Bell Amusement regarding their motion for a protective order had no relation to the firm’s past representation of the defendant and therefore did not warrant disqualification.

The trial court ruled that the firm must be disqualified from the case because of the appearance of impropriety arising from the firm’s represention of the plaintiffs. In reaching this conclusion, the trial court relied heavily on the defendant’s perception that there was some conflict because of Mackler’s prior association both with the firm and with the plaintiffs. The trial court also relied on the rationale of Cleland v. Cleland, 35 Conn. Sup. 215, 404 A.2d 905 (1979), to support its conclusion that if Cleland would require disqualification of the firm from representing Mackler, it would also apply to disqualify the firm from representing business associates of Mackler. When counsel for the plaintiffs asked for a clarification of the trial court’s order, the court indicated that it believed that the disqualification order should apply to any firm that had represented Mackler in the past, regardless of whether it had also represented the defendant.

The plaintiffs claim in their writ of error that the trial court improperly disqualified the firm from representing them solely on the basis of an appearance of impropriety. The plaintiffs argue that the court failed to apply the applicable test under the Rules of Professional Conduct and to consider whether there was a substantial relationship between the firm’s past representation of the defendant and its present representation of the plaintiffs. The plaintiffs contend that, unlike the previously applicable Code of Professional Responsibility, the “appearance of impropriety” standard does not appear in the Rules of Professional Conduct and therefore cannot be the sole basis for disqualifying counsel. We agree.

The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys. State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982), cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). Since October, 1986, the conduct of attorneys has been regulated also by the Rules of Professional Conduct, which were approved by the judges of the Superior Court and which superseded the Code of Professional Responsibility. Williams v. Warden, 217 Conn. 419, 432 n.5, 586 A.2d 582 (1991). The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney. State v. Jones, supra.

Disqualification of counsel is a remedy that serves to “ ‘enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information.’ ” Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975). In disqualification matters, however, we must be “solicitous of a client’s right freely to choose his counsel”; Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978); mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and “may lose the benefit of its longtime counsel’s specialized knowledge of its operations.” Id. The competing interests at stake in the motion to disqualify, therefore, are: (1) the defendant’s interest in protecting confidential information; (2) the plaintiffs’ interest in freely selecting counsel of their choice; and (3) the public’s interest in the scrupulous administration of justice. Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983), overruled in part, Burger & Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987).

Rule 1.9 of the Rules of Professional Conduct governs disqualification of counsel for a conflict of interest relating to a former client. The rule states that: “A lawyer who has formerly represented a client in a matter shall not thereafter: (a) Represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”

Rule 1.9 (a) expresses the same standard that we had applied under the Code of Professional Responsibility when a claim of disqualification based on prior representation arose. Thus, an attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation. State v. Jones, supra, 449. This test “has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is ‘patently clear’ or when the issues are ‘identical’ or ‘essentially the same.’ Government of India v. Cook Industries, Inc., [supra, 739-40].” Id.; see also State v. Bunkley, 202 Conn. 629, 652, 522 A.2d 795 (1987). Once a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed. Goldenberg v. Corporate Air, Inc., supra, 512; State v. Jones, supra, 450.

Unlike Canon 9 under the Code of Professional Responsibility, however, the Rules of Professional Conduct do not expressly state that a lawyer should avoid the appearance of impropriety. Even when Canon 9 was applicable, we rejected the notion that an “appearance of impropriety” was alone a sufficient ground for disqualifying an attorney. In State v. Jones, supra, 452-53, we stated that “the appearance of impropriety alone is ‘simply too slender a reed on which to rest a disqualification order except in the rarest of cases.’ Board of Education of the City of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979).” See also State v. Bunkley, supra, 653-54. Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney’s representation risks violating the Rules of Professional Conduct.

In the present case, the trial court failed to consider the relationship between the firm’s representation of the defendant in a house closing and its representation of the plaintiffs seeking a protective order as witnesses in the defendant’s dissolution action. In fact, the trial court stated several times that there did not seem to be anything legally improper about the proceedings, but that disqualification of the plaintiffs’ counsel would be the “safer” route considering the defendant’s perception that her husband might be controlling the litigation. The court went so far as to suggest that any firm associated with the defendant’s husband be disqualified even if that firm had never represented the defendant. The standards for attorney disqualification are directed at protecting client confidences. They may not be used to restrict an individual’s ability to select counsel of choice on the basis of nothing more than a litigant’s subjective perception that another litigant is influencing the proceedings.

We conclude that the trial court improperly disqualified the plaintiffs’ counsel on the basis of an appearance of impropriety without exploring whether the firm’s representation of the plaintiffs was substantially related to matters in which the firm had represented the defendant.

The writ is granted and the order of disqualification is reversed.

In this opinion the other justices concurred.

       A writ of error may be brought to this court pursuant to Practice Book § 4143 and General Statutes § 52-272 et seq. Practice Book § 4143 provides in relevant part: “Writs of error in matters of law only may be brought from a final judgment of the superior court to the supreme court. . . .
      “(b) No writ of error may be brought in any civil or criminal proceeding for the correction of any error where . . . the error might have been reviewed by process of appeal . . . .”
      The claim sought to be reviewed by the plaintiffs in error could not have been reviewed by this court by way of appeal because they were not parties in the underlying marital dissolution action. Only an aggrieved party may appeal from a final judgment of the trial court. See Practice Book § 4000. Consequently, a writ of error is the proper vehicle for review of the plaintiffs’ claim.
      As noted above, a writ of error, like an ordinary appeal, requires a final judgment. Practice Book § 4143; State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983). Although ordinarily an order disqualifying counsel is not immediately appealable; see Burger & Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987); we conclude that, under the present circumstances, the trial court’s order disqualifying counsel is a final judgment for purposes of appeal.
      In State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), we stated that an order, otherwise interlocutory in nature, is a final judgment for purposes of appeal if “the order or action so concludes the rights of the parties that further proceedings cannot affect them.” This inquiry “is not whether [the individual] has a right which has been injured, but whether that right can be affected by later trial level proceedings, or by an appeal from a final judgment on the merits.” Burger & Burger, Inc. v. Murren, supra, 667.
      Unlike Murren, in which the party aggrieved by the order disqualifying counsel could have appealed that order after a final judgment had been entered, the plaintiffs in error in the present- case have no such remedy. Because they were not parties to the marital dissolution proceedings, they could not have had the claim reviewed by way of appeal. Consequently that “right [cannot] be affected by later trial level proceedings, or by an appeal from a final judgment on the merits.” Id.

       The plaintiffs also claim that: (1) there was no substantial relationship between the firm’s former representation of the defendant and its current representation of the plaintiffs; and (2) the firm did not have confidential information from the defendant that the defendant’s husband did not also have because the firm had represented them both with respect to the real estate closing. Because we conclude that the trial court improperly disqualified the firm on an appearance of impropriety, we need not reach these claims.

       We also take this occasion to note that, before 1986, Practice Book § 8090, the predecessor to § 4143, provided that a “writ of error may be used only to review errors apparent on the face of the record.” Despite our earlier improvident suggestion in Commissioner of Correction v. Rodriquez, 222 Conn. 469, 471 n.2, 610 A.2d 631 (1992), that requirement was dropped when § 3090 was completely rewritten as § 4143.

       The plaintiffs’ writ states that Campbell is president of Bell Food, Downey is secretary and treasurer of Bell Food, and Bergeron is a minority shareholder, a director and the vice president of Bell Amusement.

       In response to the argument of Mackler’s counsel that the prior and present representations were sufficiently attenuated to deny disqualification of counsel, the trial court commented: “But in the family court arena, Mr. Roisman, when one person feels that there’s a conflict, when one doesn’t exist, don’t we have that problem of appearance of impropriety. And even if there is no legal conflict, that some [judges] using their better judgment have from time to time side stepped cases?"
      The court further explained: “[T]he problem we have here is that if Mrs. Mackler feels that things are being done to manuever so that full disclosure isn’t being made, and feels there may be a conflict, she perceives this conflict whether it’s real or not .... What we have here I assume, is a perception that she probably feels that Mr. Mackler being the chairman of the board or whatever his position is in the corporation, or corporations, controls the employees. And when the employees are taking the positions they’re taking with the assistance of the corporate counsel, that that conflict starts getting closer and closer to the—to this case. . . . [WJhen the motion for protective order comes in I have to assume and I’m obviously making some leaps here that may not be justified, but I have to assume . . . that [Mrs. Mackler] must be very sensitive about this and feel that somehow Mr. Mackler’s controlling which he may not be. But that perception is there .... It seems to me that certainly the safer way to go is to have somebody else represent these individuals .... Somebody who’s independent of Mr. Mackler, otherwise we have this alter ego problem that—I think probably [u]nfairly cast some doubt or some shadow on Mr. Mackler’s activities when there may be none. They say he may be totally removed from this, yet somehow she I presume is thinking that he’s pulling the strings. So if they had independent counsel, there’s less chance that Mr. Mackler is going to have influence with independent counsel.”

       In Cleland v. Cleland, 35 Conn. Sup. 215, 404 A.2d 905 (1979), the trial court disqualified, in a divorce proceeding, the husband’s law firm from representing the husband on the basis of a conflict of interest arising out of the firm’s prior representation of the wife in matters involving her finances. The wife contended that the firm’s prior representation of her bore a substantial relation to the divorce proceeding in which financial matters were being disputed. The trial court agreed and concluded that once a substantial relationship between the past and current representations was found, the wife did not need to demonstrate that confidential information was actually obtained that could potentially be divulged in the subsequent representation.
      Here, the trial court concluded, without anaylzing the nature of the firm’s past representation of the defendant, that disqualification would have been warranted had the firm attempted to represent Mackler. The court extended this rationale to the plaintiffs, again without analyzing whether any substantial relationship existed between the firm’s representation of the defendant in a house closing two years earlier and its current representation of the plaintiffs as witnesses in a divorce action between the defendant and her husband.

       The following discourse took place in the trial court when clarification of the order was sought:
      “Mr. Lowry: Your Honor, just so I can understand your order and can explain it to the clients involved, you’re saying in your last statement that whatever counsel has been selected can never have represented Mr. Philip Mackler any time? . . .
      “The Court: I would—again, avoid the appearance of impropriety, within reason and then you don’t have that problem. . . . I’m sure you can find a lawyer—there’s a chance you’ll find a lawyer in the greater Hartford area who did not represent Mr. Mackler, or Bell Industries ... in the past.
      “Mr. Roisman: Or most importantly Mrs. Mackler.
      “The Court: Or Mrs. Mackler.
      “Mr. Roisman: That’s what gives rise to this question in the first place, is whether there was some contact with Mrs. Mackler. . . .
      “The Court: Again, if [another firm] for instance, represented Mr. Mackler, didn’t represent Mrs. Mackler they wouldn’t have a conflict, but the concept of what I’m talking about is going a little bit beyond that.
      “Mr. Lowry: I understand that Your Honor, just so I can properly advise my clients, and I can tell you for the record that [another firm] has represented Philip Mackler before, but never Violet Mackler, in connection with various business transactions. So just so I can understand the spirit of your order, [what] you’re saying is that even if that’s the case, and there’s no actual conflict to avoid this appearance that Philip Mackler’s pulling the strings behind things, you’re saying that they also should not appear for the witnesses?
      “The Court: That’s what I am suggesting.”
      The court further added: “All I’m suggesting is Mr. Lowry properly ask me the spirit of the order, the spirit of the order is look around real hard, find a law firm that has not represented Mr. Mackler, if at all possible so that the claim can’t be made. I think the claim is not [a] legally proper claim, it’s not a legally solid claim, but it’s there, why run into it.”

       The defendant did not file a brief, and therefore this writ of error is being heard on the record and the plaintiffs’ brief alone.
      Since the institution of this action, the parties to the dissolution action have entered into a property agreement and the dissolution has gone to an uncontested judgment. We therefore raised at oral argument whether this writ of error was moot. We conclude that the plaintiffs’ outstanding order for costs against the defendant is sufficient to keep the plaintiffs’ writ of error from being moot.

       Under the Code of Professional Responsibility, claims regarding a conflict of interest due to former representation of a client were made under Canon 4, “A Lawyer Should Preserve the Confidences and Secrets of a Client,” and Canon 9, “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” See Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 511, 457 A.2d 296 (1983); State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982), cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).