source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Texaco, Inc. v. John G. Groppo, Commissioner of Revenue Services
    (13899)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued April 4
    decision released May 22, 1990

      John F. Carberry, with whom were William H. Narwold and GordonS. Gilman, for the appellant (plaintiff).

      PaulM. Scimonelli, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellee (defendant).

      Charles H. Lenore, Kenneth E. Werner and Donald M. Griswold filed a brief for the Connecticut Business and Industry Association as amicus curiae.
   Peters, C. J.

The sole issue in this tax appeal is the applicability of the gross earnings tax imposed by General Statutes § 12-587 to sales in Connecticut of petroleum products that were marketed and distributed in states other than Connecticut. The department of revenue services included sales to out-of-state purchasers in its assessment of the gross earnings taxes owed by the plaintiff, Texaco, Inc., for sales made between October 1,1980, and April 30,1982. After the defendant, John G. Groppo, commissioner of revenue services, denied the plaintiffs timely protest of this assessment, the plaintiff filed an appeal in the Superior Court pursuant to General Statutes § 12-597. The trial court sustained the defendant’s construction of § 12-587 and dismissed the plaintiff’s appeal. We transferred to this court the plaintiff’s subsequent appeal to the Appellate Court. Practice Book § 4023. We find error.

The stipulated facts include the following. The plaintiff, a Delaware corporation, is authorized to do business in Connecticut and operates terminals in East Hartford and New Haven. Between October 1, 1980, and April 30, 1982, the plaintiff supplied petroleum products to five distributors whose businesses and customers were located entirely outside the state. Title to the petroleum products passed to these out-of-state purchasers in Connecticut. The purchasers took delivery of the petroleum products in this state by sending their own vehicles or a common carrier to one of the plaintiff’s Connecticut terminals. The purchasers certified, however, and the record revealed, that the petroleum products they bought in. this state were all marketed and distributed in states other than Connecticut.

The trial court upheld the defendant’s determination of the taxability of these transactions under § 12-587, the gross earnings tax. Although the court attached no significance to the passage of title in this state, it concluded that our statute, like the Uniform Division of Income for Tax Purposes Act, 7A U.L.A. (1978), unambiguously determines the taxability of gross earnings by reference to the place where goods are delivered to the purchaser rather than by the place of their ultimate destination.

Prior to its 1982 amendments, § 12-587 provided in relevant part: “Any petroleum company which is engaged primarily in the refining and distribution of petroleum products and distributes such products to wholesale and retail dealers for marketing and distribution in this state shall pay a quarterly tax at the rate

of two per cent of gross earnings in each taxable quarter derived by such company from the sale of petroleum products in this state. . . . For purposes of sections 12-587 to 12-602, inclusive . . . ‘gross earnings’ are those earnings from the sale of petroleum products to which the sales factor is applied under subdivision (3) of section 12-218 . . . .” In construing this text, we proceed from well established principles. First, because a tax appeal is not an administrative appeal under the Uniform Administrative Procedure Act, General Statutes § 4-186, the plaintiff is entitled to a plenary judicial review of its challenge of its tax assessment. Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987). Second, because the applicability of § 12-587 to out-of-state purchases concerns the imposition of a tax rather than a claimed right to an exemption or a deduction, the issue must be resolved by strictly construing the statute against the taxing authority and in favor of the taxpayer. Enthone, Inc. v. Bannon, 211 Conn. 655, 661, 560 A.2d 971 (1989); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, supra; Schlumberger Technology Corporation v. Dubno, supra, 420-23. Third, our construction of § 12-587 must endeavor to ascertain and give effect to the apparent intent of the legislature primarily as expressed in the words of the statute itself, and secondarily in its legislative history and in the legislative policy that it was designed to implement. Felia v. Westport, 214 Conn. 181, 185, 571 A.2d 89 (1990); State v. Grullon, 212 Conn. 195, 199-200, 562 A.2d 481 (1989).

The plaintiff maintains that § 12-587, on its face, excludes sales to out-of-state purchasers. The statute purports to tax a petroleum company only insofar as it “distributes [petroleum] products to wholesale and retail dealers for marketing and distribution in this state.” (Emphasis added.) The parties’ stipulation of facts states that “all of the petroleum products sold to the Out of State Purchasers were in fact transported out of Connecticut and marketed and distributed in states other than Connecticut. ” (Emphasis added.) The trial court’s memorandum of decision did not address the application of this part of § 12-587 to the stipulated facts.

A literal reading of the text of § 12-587 supports the plaintiff’s argument that the legislature did not intend to tax the petroleum sales that are presently at issue. In light of our obligation to attach independent meaning to every phrase contained in a legislative enactment; Costello v. Fairfield, 214 Conn. 189, 193, 571 A.2d 93 (1990); Rawling v. New Haven, 206 Conn. 100, 112, 537 A.2d 439 (1988); Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 405, 294 A.2d 546 (1972); we cannot simply read the clause “in this state” out of § 12-587.

The defendant maintains, however, that the legislature intended the words “in this state” as a modifier of “wholesale and retail dealers” and not of “marketing and distribution.” In support of this contention, the defendant suggests that the legislature added “in this state” in order to establish a jurisdictional nexus with Connecticut; cf. Cally Curtis Co. v. Groppo, 214 Conn. 292, 297-99, 572 A.2d 302 (1990); rather than as a definition of the transactions to which the gross earnings tax applies. Because the defendant views the clause “in this state” as something other than a limitation on “marketing and distribution,” the defendant urges us to construe. § 12-587 to determine the taxability of petroleum product sales according to the place at which the products are delivered rather than the place of their ultimate destination. According to this reasoning, the plaintiffs sales fall within § 12-587 because its petroleum products were delivered to its out-of-state customers in Connecticut.

The defendant’s construction of § 12-587 is, for two reasons, not easily reconcilable with the language of the statute itself. First and foremost, the defendant relies on a transposition of statutory language for which there is no authority. The statute plainly attaches the modifier “in this state” to the words “marketing and distribution” rather than to the words “wholesale and retail dealers.” Second, in ascribing a jurisdictional function to the clause “in this state” when that clause follows the words “marketing and distribution,” the defendant has failed to take account of the presence of the identical clause at the end of the same sentence in § 12-587. That statute measures a petroleum company’s tax liability by the “gross earnings . . . derived by such company from the sale of petroleum products in this state.” (Emphasis added.) We may not treat as superfluous either of these two references to “in this state” in § 12-587. As the plaintiff contends, it seems likely that the legislature intended the use of “in this state” at the end of the sentence to incorporate the requisite jurisdictional nexus, while it intended the earlier usage to describe the range of transactions deemed taxable. A straightforward reading of the first sentence of § 12-587 in its entirety thus appears to refute the defendant’s argument for the taxability of the plaintiff’s sales to out-of-state purchasers.

The defendant nonetheless insists that the fact that § 12-587 contains a cross reference to subsection (3) of General Statutes § 12-218 requires us to construe § 12-587 as measuring the taxability of the plaintiff’s sales by the place of delivery to out-of-state purchasers rather than by the place of destination. According to the defendant, the cross reference to § 12-218 implies that § 12-587 must encompass at least some multistate transactions since the function of § 12-218 is to attribute an appropriate portion of a multistate corporation’s income to Connecticut for tax purposes. Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, supra, 594; Schlumberger Technology Corporation v. Dubno, supra, 416. Further, the defendant maintains that § 12-218 adopts a delivery rather than a destination standard when it defines attributable gross receipts to include “receipts from sales of tangible property if the property is delivered or shipped to a purchaser within this state . . . regardless of the f.o.b. point or other conditions of the sale . . . .” Although the trial court found this argument persuasive, we do not agree that the cross reference to § 12-218 contained in the final sentence of § 12-587 trumps the straightforward description of taxable transactions contained in the first sentence of § 12-587.

As a general matter, the defendant’s reliance on the cross reference to § 12-218 raises a possible ambiguity with respect to the intended coverage of § 12-587. It is not clear whether the cross reference had the broad objective of defining all aspects of the transactions that are taxable under § 12-587 or the narrower objective of determining the interstate allocation of those transactions insofar as they trigger § 12-218. Such a latent ambiguity must ordinarily be resolved in favor of the taxpayer, as we have noted above, because the issue remains the imposition of tax liability rather than entitlement to an exemption or a deduction. The plaintiff, accordingly, still prevails.

Even if we were to explore the merits of the defendant’s expansive interpolation of the § 12-218 standard into § 12-587, we would still doubt the taxability of the plaintiff’s sales to out-of-state purchasers. The usage, in § 12-218, of “delivered or shipped to a purchaser within this state” (emphasis added) is hardly an unambiguous direction to tax sales to purchasers who are not within this state. Indeed, the uniform holding of courts in other states interpreting essentially identical language has been that the destination of the goods, and not their delivery point, is dispositive. See Department of Revenue v. Parker Banana Co., 391 So. 2d 762, 763 (Fla. App. 1980); Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 45, 302 S.E.2d 544 (1983); Olympia Brewing Co. v. Commissioner of Revenue, 326 Minn. 642, 648, 326 N.W.2d 642 (1982); Dupps Co. v. Lindley, 62 Ohio St. 2d 305, 307-308, 405 N.E.2d 716 (1980); Pabst Brewing Co. v. Department of Revenue, 130 Wis. 2d 291, 296, 387 N.W.2d 121 (1986); see also W. Pierce, “The Uniform Division of Income for State Tax Purposes,” 35 Taxes (CCH) 747, 780 (1957); contra J. Hellerstein, State and Local Taxation (1983) f 9.17 [1], pp. 584-88.

Finally, the plaintiffs position that § 12-587, at the time of these transactions, did not purport to impose a gross earnings tax on sales to out-of-state purchasers, finds some support in the 1982 amendment of this provision. Public Acts 1982, No. 82-157, §§ 1, 3. In 1982, the legislature enlarged § 12-587 to include both refiners and distributors within its ambit, but added General Statutes § 12-587a to allow a tax credit to offset the gross earnings tax upon certification that petroleum products were for resale or use outside the state of Connecticut. The legislative history does not speak directly to the import of the latter addition. There was, however, discussion of the fiscal impact of the amending package as a whole. 25 H.R. Proc., Pt. 6,1982 Sess., p. 1929, Pt. 12, p. 3989. If the addition of § 12-587a had been intended as anything other than a procedural implementation of a preexisting understanding of the scope of § 12-587, it is likely that the fiscal consequences of a substantive change would have surfaced. We are therefore persuaded that, for present purposes, the 1982 amendments clarified the legislature’s intent about the scope of the gross earnings tax in its 1980 version. Public Acts 1980, No. 80-71, §§ 1, 30. In view of the legislature’s plenary authority to define the scope of tax statutes, the amended § 12-587 “must be accepted as the legislative declaration of the meaning of the original act.” Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); State v. One 1977 Buick Automobile, 196 Conn. 471, 479, 493 A.2d 874 (1985); Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985).

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs appeal.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1981) § 12-587 provides: “tax on GROSS earnings OF petroleum COMPANIES, rate. Any petroleum company which is engaged primarily in the refining and distribution of petroleum products and distributes such products to wholesale and retail dealers for marketing and distribution in this state shall pay a quarterly tax at the rate of two per cent of gross earnings in each taxable quarter derived by such company from the sale of petroleum products in this state. No deduction shall be made from such gross earnings for any commission, rebate or other payment, except a refund resulting from an error or overcharge. Each such company shall, on or before the last day of January, April, July and October of each year, render to the commissioner of revenue services under oath of its treasurer or the person performing the duties of treasurer or of an authorized agent or officer, a return on forms prescribed or furnished by said commissioner, including in respect to such company the amount of gross earnings from the sale of petroleum products within this state for the quarter ending with the last day of the preceding month. The tax imposed under sections 12-587 to 12-602, inclusive, shall be in addition to any other tax imposed by Connecticut with respect to which such company is liable. For purposes of sections 12-587 to 12-602, inclusive, ‘petroleum products’ includes any product which contains or is made from petroleum or a petroleum derivative and ‘gross earnings’ are those earnings from the sale of petroleum products to which the sales factor is applied under subdivision (3) of section 12-218 and those earnings from such sales made by any corporation in which any such petroleum company owns not less than twenty-five per cent of the stock of such corporation.”

       A related dispute between the parties concerned the taxability, under General Statutes § 12-587, of moneys collected by the plaintiff as a tax from its customers. That dispute was resolved in favor of the defendant in Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 522 A.2d 771 (1987).

       As required by General Statutes § 12-600, the plaintiff had previously paid, under protest, the full amount of its assessment for the additional taxes, interest and penalties.

       The trial court correctly construed General Statutes § 12-587 without assigning special weight to its administrative construction by the department of revenue services. The department’s construction of the statute is of relatively recent vintage and therefore “lacks the persuasiveness of a practical construction placed on legislation over many years.” Schieffelin & Co. v. Department of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984); Wilson v. West Haven, 142 Conn. 646, 657, 116 A.2d 420 (1955). Further, “construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987); Dine Out Tonight Club, Inc. v. Department of Revenue Services, 210 Conn. 567, 570 n.3, 556 A.2d 580 (1989).

       General Statutes (Rev. to 1981) § 12-218 (3) (b) provides in pertinent part: “The third fraction shall represent the part of the taxpayer’s gross receipts from sales or other sources during the income year . . . including receipts from sales of tangible property if the property is delivered or shipped to a purchaser within this state . . . .”

       The trial court relied on a contrary regulation of the Multistate Tax Commission, an agency that issues regulations interpreting the Uniform Division of Income for Tax Purposes Act. 7A U.L.A. (1978). The trial court noted that General Statutes § 12-218 corresponds to § 16 (a) of the uniform act, but it recognized that this state has neither adopted the uniform act in its entirety nor become a signatory of the Multistate Tax Compact, under which the Multistate Tax Commission issues its regulations.


author: Covello, J.

text:
    Connecticut National Bank v. Great Neck Development Company, Inc., et al.
    (13819)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued February 27
    decision released May 22, 1990

      James M. Nugent, for the appellants (defendants).

      Stephen W. Aronson, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a decision of the trial court granting the plaintiff’s motion for summary-judgment. The issues presented are: (1) whether a trial court may set aside a judgment of dismissal for failure to prosecute with due diligence when the conditions attached to an order setting aside an earlier judgment of dismissal were not satisfied; (2) whether the plaintiff’s motion to set aside a judgment of dismissal was timely filed; and (3) whether there were disputed issues of material fact that precluded the rendering of a summary judgment. We find no error.

On August 11, 1987, the plaintiff, Connecticut National Bank, began this action against the defendants Great Neck Development Company, Inc. (Great Neck), and Joseph Owen, seeking sums due on two promissory notes. On June 17,1988, the trial court dismissed the action for failure to prosecute with due diligence. On August 31,1988, within four months of the dismissal, the plaintiff filed a motion to open the judgment of dismissal. On September 16, 1988, the trial court, Fracasse, J., granted the motion “on [the] condition [that the] pleadings are closed and [the] case is claimed to [the] trial list by 11-1-88.” The pleadings were not closed until April 26, 1989.

On January 10, 1989, the plaintiff filed a further motion to set aside the judgment of dismissal “entered by the court on November 1,1988 pursuant to its order of September 1[6], 1988.” On February 8,1989, despite the defendants’ objection that the earlier conditions remained outstanding, the trial court, O’Neill, J., granted the motion.

On September 14,1989, the trial court, Mulcahy, J., granted the plaintiff’s motion for summary judgment. The defendants appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The defendants first claim that the trial court erred when it ruled, in granting summary judgment in favor of the plaintiff, that one judge of the Superior Court could set aside a judgment of dismissal without requiring satisfaction of the conditions previously imposed by another judge. We do not agree.

“ ‘ “A motion to open and vacate a judgment . . . is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).” Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159 (1981)].’ Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985).” Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). “ ‘[T]he ultimate issue is whether the court could reasonably conclude as it did . . . .’ Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979) Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983).

As a coordinate judge of the Superior Court, Judge O’Neill had the authority, in the sound exercise of judicial discretion, to modify the conditions imposed by Judge Fracasse. “ ‘The law is well settled that the decision by one judge is not binding on another judge when later in the same proceeding, he is confronted with a like question. . . . “If the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.” Levay v. Levay, 137 Conn. 92, 96, [75 A.2d 400 (1950)] ....’” Schwarzschild v. Martin, 191 Conn. 316, 325, 464 A.2d 774 (1983). “The original order [opening the judgment of dismissal] was merely interlocutory, made during the progress of the action and relating to the proceeding. Such orders are constantly modified, amended or annulled. They are not like a final judgment. Such amendment or cancellation may be made at a subsequent term and by another judge than the one who made the original order. There is nothing in the case which shows that the court’s discretion was not reasonably exercised.” Purdy v. Watts, 91 Conn. 214, 218, 99 A. 496 (1916).

The defendants claim, in the alternative, that the plaintiff’s motion to set aside the judgment of dismissal was not filed within the four month period prescribed by Practice Book § 326. Specifically, they argue that the original judgment of dismissal was rendered on June 17,1988. Since the plaintiff filed its motion to set aside the judgment on January 10, 1989, more than four months from June 17,1988, the defendants claim that the plaintiff’s motion was therefore untimely.

The defendants’ argument assumes that since the conditions were not met, the original judgment of June 17, 1988, was reinstated on November 1, 1988. It is recognized that under some circumstances “[a] party to whom a favor has been granted by an order on conditions must, at his peril, take notice of the order and comply with the conditions, according to the fair construction of their meaning, and on such performance the order becomes absolute without any new order to that effect. Noncompliance with such terms or conditions gives a result equivalent to a denial of the favor. ” (Emphasis added.) 60 C.J.S., Motions and Orders § 56 (1969 Ed.); see, e.g., Waring v. Johnson, 161 S.C. 522, 527, 159 S.E. 829 (1931).

There is nothing in the court record here, however, disclosing a reinstatement of the original judgment of dismissal. Neither the order originally setting aside the judgment of dismissal nor any subsequent court order discloses such an occurrence. Even had the original judgment been reinstated, its effective date would have been November 1, 1988, and not the date it was first rendered. “[AJfter a motion for opening a judgment is granted, the case stands as though no judgment was rendered.” State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974). Thus, the rendering of a second judgment of dismissal for failure to meet the earlier conditions would stand as of the date of its reentry. In this instance, the date would have to be sometime after November 1, 1988. The motion to set aside the dismissal, claimed here to be untimely, was filed on January 10, 1989. Since this was within four months of November 1, 1988, we conclude that the motion was in fact timely filed.

Finally, the defendants claim that the trial court erred in rendering summary judgment in favor of the plaintiff. Specifically, the defendants contend that “[njumerous factual issues abound in this case concerning the entry of orders throughout this litigation.” This argument addresses the alleged procedural irregularities already discussed and does not challenge the plaintiffs underlying claim that there was a balance due on two promissory notes. Examination of the affidavit and exhibit accompanying the plaintiffs motion for summary judgment discloses the unchallenged existence of unpaid debts.

Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” “To oppose a motion for summary judgment successfully the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents.” State v. Goggin, 208 Conn. 606, 616-17, 546 A.2d 250 (1988).

The judgment is affirmed.

In this opinion the other justices concurred.

       Practice Book § 251 provides in part: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs.”

       Practice Book § 326 provides in part: “[A]ny civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date of which it was rendered or passed.”

       See also General Statutes § 52-212a.


author: Callahan, J.

text:
    Marion Swenson v. Thomas Sawoska
    (13787)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued February 28
    decision released May 22, 1990

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Thomas J. Sansone, with whom, on the brief, was Trudie Ross Hamilton, for the appellee (defendant).
   Callahan, J.

This appeal concerns the appropriate standard of harmless error to be applied in a civil case. The plaintiff, Marion Swenson, brought this negligence action against the defendant, Thomas Sawoska, to recover for personal injuries sustained in a two car collision. After a trial, the jury returned a verdict in favor of the defendant and judgment was rendered thereon. The plaintiff appealed to the Appellate Court. In Swenson v. Sawoska, 18 Conn. App. 597, 559 A.2d 1153 (1989), the Appellate Court affirmed the trial court’s judgment. We granted the plaintiff’s petition for certification to appeal from the Appellate Court; Swenson v. Sawoska, 212 Conn. 810, 564 A.2d 1073 (1989); limited to the following three issues: “(1) Did the Appellate Court err in concluding that the admission of the officer’s narrative of how the accident occurred contained in the police report was harmless error? (2) Was the standard of harmless error used by the Appellate Court, ‘sufficient other evidence to support the verdict,’ erroneous? (3) Does the other evidence properly admitted, including the diagram, render harmless any error in the admission of the officer’s narrative?” We conclude that the standard of harmless error used by the Appellate Court was erroneous. We find, nevertheless, that the admission of the officer’s narrative contained in the police report was harmless error.

In reaching its verdict, the jury could reasonably have found the following facts. At approximately 11 p.m. on December 10, .1982, the plaintiff was attempting to travel northbound up a steep incline on Kinsey Road in New Hartford. Snow had accumulated on the road, making it slippery and creating hazardous driving conditions. As she attempted to ascend the hill, the plaintiff’s car skidded and she backed down the hill to try once again to make the ascent. On her second attempt, her car skidded sideways and she was stranded in the road crosswise, with part of her vehicle in the lane of oncoming traffic. At that point, the defendant drove his Chevrolet Blazer over the hill southbound and struck the plaintiff’s vehicle on the driver’s side. The two cars came to rest more than fifty feet from the bottom of the hill.

The plaintiffs claim on appeal relates to an evidentiary ruling made by the trial court. At trial, the court admitted into evidence a police report that included both a diagram of the accident and a narrative description.* * The plaintiff argues that the narrative portion of the police report was inadmissible hearsay because the officer could not identify which party had made certain statements in the report. If the plaintiff had made the statements to the police officer, they would qualify as admissions and would be admissible. O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 30, 119 A.2d 329 (1955); Cashman v. Terminal Taxi Co., 131 Conn. 31, 33, 37 A.2d 613 (1944). If the defendant had made the statements, however, they would be inadmissible hearsay because they would constitute self-serving declarations from a person without a business duty to report the information to the police. State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988); Hutchinson v. Plante, 175 Conn. 1, 5, 392 A.2d 488 (1978).

At trial the police officer testified that he had to have obtained the information pertaining to the plaintiffs initial unsuccessful attempt to ascend the hill from the plaintiff. That statement therefore constituted an admission by the plaintiff and was admissible as an exception to the hearsay rule. O’Brien v. John Hancock Mutual Life Ins. Co., supra. Because the officer testified that he could not remember the precise source of the remaining statements in the narrative, however, the plaintiff claimed that these statements were inadmissible hearsay. Specifically, the plaintiff objected to the “admission of that portion of the officer’s narrative that recites that ‘[the plaintiff’s] second attempt caused [her] vehicle to slide crosswise in the road and stop when [the defendant’s] vehicle suddenly came over the hill.’ ” Swenson v. Sawoska, supra, 18 Conn. App. 599. The Appellate Court concluded that it could not determine whether that portion of the report was hearsay. Nevertheless, the Appellate Court held that, even if the narrative portion of the police accident report was inadmissible hearsay, “[t]here was sufficient other evidence to support the jury’s verdict, including the location of the damage on the plaintiff’s car. Any error, therefore, would be harmless.” Id. Since we limit ourselves to the certified questions on appeal, we shall assume that the admission of the narrative portion of the police report was erroneous.

The plaintiff argues that the Appellate Court, by concluding that any error was harmless simply by determining that “[t]here was sufficient other evidence to support the jury’s verdict”; id.; used an incorrect harmless error standard. We agree.

We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. Hensley v. Commissioner of Transportation, 211 Conn. 173, 184, 558 A.2d 971 (1989); Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982); DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955). When determining that issue in a civil case, the standard to be used is whether the erroneous ruling “would likely affect the result.” Manning v. Michael, supra; DeCarufel v. Colonial Trust Co., supra. “Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality.” Berndston v. Annino, 177 Conn. 41, 45, 411 A.2d 36 (1979). We conclude that the “sufficient other evidence” standard applied by the Appellate Court is too restrictive in that it does not encompass situations where the erroneously admitted evidence, while not necessary itself to sustain the jury’s verdict, may nonetheless have affected the jury’s perception of the remaining evidence. Such a standard is inappropriate because it would require that we treat as harmless error any evidentiary ruling, regardless of its effect upon the verdict, so long as the evidence not implicated by the ruling was sufficient as a matter of law to sustain the verdict.

Applying the correct standard, therefore, we must determine, assuming that the narrative contained in the police report was inadmissible, whether its admission was harmless error. “The determination of that question lies in the record. Murray v. Gagliardi, 105 Conn. 392, 394, 135 A. 293 (1926).” Saphir v. Neustadt, 177 Conn. 191, 202, 413 A.2d 843 (1979). Our review of the record reveals that the plaintiff has failed to sustain her burden of showing that the narrative was harmful.

At trial, the plaintiff testified that on her first attempt to drive up the hill on Kinsey Road her car skidded because of the slippery road conditions. She then backed down to the bottom of the hill along the right side of the road. Because of the severity of the skid, she decided not to make another attempt to drive up the incline. She said that she was then at the bottom of the hill facing forward, in her own lane, when she noticed the lights of a vehicle'coming down the hill. At some point this vehicle skidded into her lane and hit her car. She then said that after the collision her car came to rest further up the hill. This was so despite the fact that the defendant’s car was proceeding down a precipitous, slippery incline at the time it struck hers. The plaintiff could not explain how her car was pushed up the hill under the circumstances.

On appeal, the plaintiff argues that she was prejudiced by the admission of the narrative because it described “how the accident occurred” and therefore undermined her credibility because of the conflicting accounts of the location of her car at the time of the accident. Specifically, at oral argument, the plaintiff claimed that the narrative in the police report prejudiced her because it implied that the defendant did not have enough time to stop his vehicle to avoid the accident because there was only a short distance between her car and the top of the hill and that the accident was caused by the existing hazardous conditions, not the defendant’s negligence. The plaintiff claims, therefore, that under the proper standard the admission of the narrative was harmful.

The defendant contends, however, that even under the more restrictive standard for harmless error set forth above, the narrative would not have affected the jury’s verdict. He supports his assertion by pointing to the overwhelming evidence properly admitted in the case, including: (1) the diagram portion of the police report; (2) the location of damage on the vehicles; and (3) the relative positions of the vehicles after the collision. He argues that because the challenged narrative is merely cumulative of the other evidence, its admission was harmless error. We agree.

It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error. State v. Magnano, 204 Conn. 259, 285-86, 528 A.2d 760 (1987); State v. Randolph, 190 Conn. 576, 590, 462 A.2d 1011 (1983); State v. Harris, 182 Conn. 220, 230, 438 A.2d 38 (1980); Pisel v. Stamford Hospital, 180 Conn. 314, 327, 430 A.2d 1 (1980). The diagram, offered by the plaintiff and admitted by the court as an exhibit, depicts the police officer’s impression of the location of the cars before the accident, and their actual location afterward. The diagram shows the plaintiff’s vehicle crosswise in the road when the accident occurred. The narrative likewise states that the plaintiff’s vehicle was “crossways in the road” at the time of the impact. Moreover, the location of the damage on each vehicle corroborated both the narrative and the police officer’s diagram depicting the defendant’s vehicle striking the plaintiff’s car broadside. There is no dispute that the driver’s door of the plaintiff’s car sustained the most damage and the left front end of the defendant’s vehicle was damaged.

The plaintiff’s argument that the narrative was harmful because it implied that the automobiles were near the top of the hill at the time of the crash and thus contradicted her claim that the collision occurred at the bottom of the hill, is equally unavailing. The location of the vehicles at and after the collision was confirmed by substantial evidence, other than the narrative portion of the report. The police officer testified that the vehicles were located more than fifty feet from the bottom of the hill after the accident. Moreover, the officer’s diagram depicted the scene of the collision even closer to the crest of the hill. Although he could not locate the exact point of impact, he based his diagram, in part, on the fact that the debris from the accident was located even further up the hill than the location of the cars after the accident. Thus, the police officer’s diagram and his testimony place the scene of the accident at least fifty feet from the bottom of the hill where the plaintiff says it occurred.

Moreover, at oral argument, the plaintiff asserted that the tire marks shown in the police officer’s diagram indicate where she was parked at the time of the accident. On the basis of the diagram and the police officer’s testimony, those tire marks were more than fifty feet up the hill. Consequently, her argument on appeal directly conflicts with her testimony at trial that the defendant’s vehicle struck hers at the very bottom of the hill. Clearly, the plaintiff’s current position is untenable.

Further, other than the narrative, there was substantial evidence that the hazardous road conditions were the cause of the accident, not the negligence of the defendant. The police officer testified that on the night of the accident there was a heavy snowstorm and that the snow was accumulating on the ground fairly quickly. He estimated that it took him thirty minutes to travel ten miles to the scene of the accident. When he arrived, Kinsey Road was “fully snow covered.” Because of the hazardous conditions, he decided to park his car and to walk up the steeper portion of the incline to the plaintiff’s and the defendant’s cars, a distance of approximately fifty feet. The traction was slippery because the road still had not been plowed. Moreover, when the plaintiff testified as to her futile attempt to climb the hill, she confirmed that it had been snowing and that Kinsey Road had been icy.

In sum, the plaintiffs version of the accident conflicted with the police officer’s testimony, his diagram and the physical evidence. On the basis of this record, all unfavorable to the plaintiff, it is difficult to conceive of how the admission of the narrative could have been anything but harmless error.

We affirm the decision of the Appellate Court.

In this opinion the other justices concurred.

       The plaintiff disputed where her car was located when the accident occurred. She contends that her car was motionless, at the bottom of the hill, when it was struck by the defendant’s vehicle.

       Although the record is not clear as to the precise location of the vehicles in relation to the bottom of the hill, there was ample evidence that, after the accident, the vehicles were at least fifty feet from the bottom. The police officer, who investigated the accident, testified that after he had driven his police cruiser partially up the incline, he decided to park and to walk the remaining fifty feet up the steeper portion of the hill to the disabled vehicles. He testified that it was three-tenths of a mile from the “general area of the accident . . . down to the mouth of [Route] 202.” He also estimated that the vehicles were located fifty to sixty yards from the crest of the hill. The plaintiff testified that “the bottom of the hill is near [Route] 202.”

       At trial, the plaintiff withdrew her objection as to the diagram contained in the police report. She then proceeded to introduce the entire police report into evidence as an exhibit. Thus, the plaintiffs own exhibit contained both the diagram portion and the narrative portion about which the plaintiff is now complaining. Exhibits are admissible in their entirety unless the offeror excises the irrelevant or prejudicial portions. See Mucci v. LeMonte, 157 Conn. 566, 570-71, 254 A.2d 879 (1969); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 3.5.5. If a party objects to the admission of a document into evidence and then later seeks to introduce that same exhibit as her own, she runs the risk of waiving her objection. See C. McCormick, Evidence (3d Ed.) c.6, §§ 55, 57. Although a party “may not secure a reversal on the basis of an error which he induced”; Thompson v. Thompson, 183 Conn. 96, 99, 438 A.2d 839 (1981); we need not address this issue on appeal since it is beyond the scope of the questions certified.

         The narrative portion of the police report stated: “Vehicle #1 attempted to go uphill a second time because the snowy, icy road conditions had caused loss of traction on the initial attempt. Her second attempt caused the vehicle to slide crossways in the road and stop, when vehicle #2 suddenly came over the hill crest. Vehicle #2, unable to stop sliding downhill or control the truck’s direction because of the extremely hazardous road conditions, hit vehicle #1 in the left side causing both vehicles to slide further downhill coming to rest in the middle of the road. The actual point of impact could not be established due to debris being scattered and tracks partially obliterated.”

       The plaintiff testified that she was unsure of the point at which the defendant’s vehicle swerved towards her car. She also gave conflicting accounts of where the defendant’s vehicle hit hers.

       We find Hutchinson v. Plante, 175 Conn. 1, 392 A.2d 488 (1978), inapposite. Unlike the present case, in Hutchinson the police officer’s testimony was inadmissible in its entirety because “the trooper accepted and reported the defendant operator’s version of the event.” Id., 6-7.


text:
    Farm and City Insurance Company v. Alvin L. Stevens
    (13855)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued March 8
    decision released May 22, 1990

      Thomas B. Wilson, for the appellant (defendant).

      John W. Lemega, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a judgment of the trial court vacating an underinsured motorist arbitration award. The sole issue presented is whether the primary tortfeasor was underinsured. We agree with the trial court that he was not, and therefore find no error.

The relevant facts are not in dispute. On February 15, 1987, the defendant, Alvin L. Stevens, was injured while riding as a passenger in an automobile owned and operated by Tony F. Webber. The accident was solely Webber’s fault. The defendant sustained injuries and damages in excess of $50,000.

At the time of the accident, Webber had a $25,000 automobile liability policy. The policy also provided $25,000 uninsured/underinsured motorist coverage. Webber’s carrier paid the defendant $25,000, the full amount of the liability coverage.

At the time of the accident, the defendant was also insured as a member of the household, under an automobile liability policy issued by the plaintiff to the defendant’s wife, Annette Stevens. This policy also provided $25,000 of uninsured/underinsured motorist coverage. The defendant filed a claim under the underinsured motorist provisions of his wife’s policy.

Unable to agree as to whether this was an underinsured motorist situation, the parties proceeded to arbitration in accordance with the policy’s provisions. The arbitrator concluded that inasmuch as there was $25,000 of underinsured motorist coverage on the Webber vehicle and $25,000 of underinsured motorist coverage on the Annette Stevens vehicle, and inasmuch as the liability portion of Webber’s policy was only $25,000, Webber was underinsured by $25,000. The arbitrator therefore awarded the defendant the full $25,000 underinsured motorist coverage contained in the Annette Stevens policy.

The plaintiff thereafter filed an application in Superior Court to vacate the arbitration award. The defendant sought to confirm the award. The trial court concluded that the Webber vehicle was not underinsured and therefore there was no basis for the defendant’s claim under the Annette Stevens policy. The trial court vacated the award. The defendant appealed to the Appellate Court. We thereafter transferred the appeal to ourselves pursuant to Practice Book § 4023.

General Statutes § 38-175c (b) (2) defines an underinsured motor vehicle as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.” In the present case, therefore, all liability policies applicable to the Webber vehicle are to be measured against the uninsured motorist portion of the policy against which the claim is being made, i.e., the Annette Stevens policy.

The liability limits contained in the Webber policy were $25,000. The uninsured motorist limits contained in the Annette Stevens policy were $25,000. Since the liability limits were not less than the uninsured motorist limits, the Webber vehicle was not underinsured.

Despite the statute’s clear mandate to compare the applicable limits of the liability policy to the uninsured motorist policy “against which claim is made,” the defendant argues that the $25,000 of uninsured motorist coverage contained in the policy insuring the Webber vehicle is to be aggregated or “stacked”* * ***7with the $25,000 of uninsured motorist coverage on the Annette Stevens vehicle for a total of $50,000 thereby creating a shortfall of $25,000 in liability coverage and thereby making the Webber vehicle underinsured.

The defendant claims that his position is supported by our holding in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982). While the cases have many similarities, there is an important distinction. In Gode, the claimant, Christopher Gode, was injured while riding as a passenger in an automobile operated by Timothy Dolan. Dolan’s carrier paid the claimant $20,000 under the liability provisions of Dolan’s policy.

As here, at the time of the accident, Christopher Gode was also insured as a member of the household, under an automobile liability policy issued by the plaintiff, Nationwide Insurance Company, to his father, John H. Gode, Jr. The Nationwide policy provided uninsured motorist coverage in the amount of $20,000. There were two cars insured under the policy. We held that in determining whether the Dolan vehicle was underinsured, Christopher Gode could “stack” or aggregate the $20,000 of uninsured motorist coverage on each of the two vehicles insured under the Gode policy for a total of $40,000 of uninsured motorist coverage. Since there was $40,000 of uninsured coverage on the Gode policy as opposed to only $20,000 of liability coverage under the Dolan policy, we concluded that the Dolan vehicle was “underinsured,” and permitted Christopher Gode to recover $20,000 damages under the uninsured motorist coverage contained in “the policy against which claim is made.” We did not, as the claimant here seeks, “stack” or aggregate the uninsured motorist coverage on the Gode vehicles with the uninsured motorist coverage on the tortfeasor’s vehicle in determining that the liability coverage was less than the uninsured motorist coverage.

If, hypothetically, the policy insuring the Webber vehicle had $150,000 liability coverage and $150,000 uninsured/underinsured motorist coverage, and if the Annette Stevens policy had only $25,000 of uninsured/underinsured motorist coverage, the defendant’s argument would still have us conclude that the Webber vehicle was underinsured. By adding the $150,000 of uninsured motorist coverage on the Webber vehicle to the $25,000 of uninsured/underinsured motorist coverage on the Annette Stevens vehicle, the uninsured motorist coverage would exceed the liability coverage by $25,000. This is clearly an untenable result and not within the contemplation of § 38-175c (b) (2).

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-418 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects ... if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 38-175c (b) (1) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.”

       “ ‘Stacking’ refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate. See Blakeslee v. Farm Bureau Mutual Ins. Co., 388 Mich. 464, 473, 201 N.W.2d 786 (1972); see also Van Hoozer v. Farmers Ins. Exchange, 219 Kan. 595, 608, 549 P.2d 1354 (1976); Detroit Automobile Inter-Insurance Exchange v. McMillan, 97 Mich. App. 687, 693, 296 N.W.2d 147 (1980); 7 Am. Jur. 2d, Automobile Insurance § 326; 8C Appleman, Insurance Law and Practice § 5103; Widiss, A Guide to Uninsured Motorist Coverage § 2.34a (1981 Sup.); 19 Couch, Insurance (2d Ed.) § 82.1:11 (Pocket Sup.). One court has noted that ‘[slacking is derived from the presumption that when the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy extra protection for himself and his family, regardless of whether his injury occurs in any one of his insured vehicles or elsewhere.’ Travelers Ins. Co. v. Pac, 337 So. 2d 397, 398 (Fla. App. 1976); see Hartford, Accident & Indemnity Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977); Grimes v. Concord General Mutual Ins. Co., 120 N.H. 718, 721-22, 422 A.2d 1312 (1980). ‘Intra-policy stacking is the aggregation of the limits of liability for uninsured-motorist coverage of each car covered in one policy, whereas inter-policy stacking involves the aggregation of coverage under more than one policy.’ Taft v. Cerwonka, 433 A.2d 215, 217 n.3 (R.1.1981); see Lumbermens Mutual Casualty Co. v. Martin, 399 So. 2d 536, 538 n.4 (Fla. App. 1981).” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388-89 n.2, 446 A.2d 1059 (1982).


text:
    Statewide Grievance Committee v. Daniel V. Presnick
    (13694)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued March 7
    decision released May 22, 1990

      Daniel V. Presnick, pro se, the appellant (defendant).

      Christine M. Whitehead, for the appellee (plaintiff).
   Covello, J.

This is an appeal by the defendant, Daniel V. Presnick, an attorney at law, from a judgment of the Superior Court that suspended him from the practice of law for one year. The principal issues are: (1) whether grievance panels, reviewing committees and the statewide grievance committee function as an unconstitutionally created court in violation of article fifth, § 1 of the Connecticut constitution; (2) whether the defendant was denied due process in violation of the fourteenth amendment to the United States constitution and article first, § 10 of the Connecticut constitution; and (3) whether clear and convincing evidence is the appropriate standard of proof in attorney disciplinary proceedings.

The defendant further claims that the trial court erred: (4) in failing to find that the defendant had a cor-rapt motive or an evil intent; (5) in failing to advise the defendant as to whether the filing of a complaint by a client constitutes a waiver of the attorney-client privilege, thus freeing the attorney to disclose potentially exculpatory information; (6) in finding that the defendant failed to advise a client of the taxing of costs based upon evidence contained in a single letter; (7) in concluding that noncontemporaneously maintained records cannot form the basis for computing billable hours; (8) in finding that the fee charged to the client was unreasonable; (9) in concluding that the defendant intended to withhold the client’s money; (10) in failing to consider the defendant’s “passive lien” on the client’s funds; (11) in its findings as to the work performed for one of his former clients; and (12) in abusing its discretion in ordering his suspension. We find no error.

The record discloses that on January 5, 1989, the plaintiff filed a presentment of attorney misconduct alleging that the defendant had been guilty of misconduct in his dealings with four clients who had entrusted their legal matters to him. On February 17,1989, the trial court conducted an evidentiary hearing concerning the four allegations. On March 7, 1989, the trial court found that the defendant had violated the Code of Professional Responsibility and the Rules of Professional Conduct in the course of his representation of each of the four clients identified in the complaint and rendered judgment suspending the defendant from the practice of law for three months as to each violation for a total suspension of one year. The trial court further ordered that the defendant be readmitted to practice at the conclusion of his suspension only after passing a comprehensive examination concerning his knowledge of the ethical obligations that lawyers owe to their clients. On March 22, 1989, the defendant appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The defendant first claims that the trial court erred in not dismissing this action because grievance panels, reviewing committees and the statewide grievance committee function as an unconstitutionally created lower court in violation of article fifth, § 1 of the Connecticut constitution. Specifically, he argues that General Statutes § 51-90 et seq. and Practice Book § 27B et seq. authorize grievance panels and reviewing committees to make findings of probable cause that attorney misconduct has occurred. Further, he argues that these same enactments authorize the statewide grievance committee to dismiss complaints, to issue reprimands, and to determine who shall be presented to the court for discipline. He contends that all of these matters are exclusively judicial functions.

We note at the outset that constitutional issues do not exist in a vacuum. It is “well established that a liti-. gant may challenge the validity of a statute or ordinance under the Connecticut constitution only as it has been applied to him. He may not claim that the provision is invalid because it impermissibly impinges upon the constitutional rights of others.” Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986). In the present case, the plaintiff was not reprimanded by the statewide grievance committee nor did that body dismiss the complaints made against him. We need not therefore consider the constitutionality of these aspects of the grievance procedure. “ ‘The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.’ Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949).” Moore v. McNamara, 201 Conn. 16, 21, 513 A.2d 660 (1986). The question then remains whether the grievance panel’s and reviewing committee’s authority to find probable cause and the statewide grievance committee’s power to initiate a presentment charging an attorney with misconduct somehow usurp a constitutionally mandated judicial function that may only be exercised by the judiciary. We conclude that this is not the case.

Judges of the Superior Court possess the “inherent authority to regulate attorney conduct and to discipline members of the bar.” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983). “It is their unique position as officers and commissioners of the court . . . which casts attorneys in a special relationship with the judiciary and subjects them to its discipline.” Id., 524.

In exercising their inherent supervisory authority, the judges have authorized grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause. See Practice Book § 27B et seq. Further, the judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct. See Practice Book § 27M. In carrying out these responsibilities, these bodies “act as an arm of the court.” Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 239, 558 A.2d 986 (1989).

The assignment to an adjunct of some function historically performed by judges does not necessarily constitute an impermissible delegation of judicial power. “[T]he functions of the adjunct must be limited in such a way that ‘the essential attributes’ of judicial power are retained in the . . . court.” Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 81, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982). In the procedural scheme here in issue, the grievance panels and reviewing committees carry out what are essentially investigative, fact-bound functions that only determine the probability that an act of attorney misconduct has occurred. “[T]here is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges.” Crowell v. Benson, 285 U.S. 22, 51, 52 S. Ct. 285, 76 L. Ed. 598 (1932); Northern Pipeline Co. v. Marathon Pipe Line Co., supra, 78. For its part, the statewide grievance committee’s only function in the case at hand was to initiate the presentment. The presentment that thereafter followed was a de novo, evidentiary proceeding carried out in court. The ultimate decision as to whether an act of misconduct had occurred reposed solely with the judge, as did the power to administer an appropriate sanction. This being the case, we conclude that the delegation of the determination of probable cause to the grievance panel and reviewing committee here in issue, and the delegation of the presentment function to the statewide grievance committee did not strip from the court the “essential attributes” of the judicial function involved, i.e., the regulation of attorney conduct. In these circumstances, we find no impermissible delegation of judicial power.

The defendant next argues that the grievance procedure that led to his presentment violated his constitutional right to procedural due process in violation of the fourteenth amendment to the United States constitution and article first, § 10 of the Connecticut constitution. Specifically, he claims that: (1) he was not given an opportunity to cross-examine witnesses at the grievance panel proceedings; (2) determinations of probable cause that he was guilty of misconduct were made by grievance panels without hearing the testimony of the parties; and (3) the public nature of the reviewing committee or statewide grievance committee hearings that follow a determination of probable cause create a stigma that is not corrected by a subsequent “name-clearing” hearing.

“Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). “In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.” Grievance Commmittee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941).

Practice Book § 27F sets forth the procedure whereby grievance panels may determine whether probable cause exists that attorney misconduct has occurred. Although provision is made for the conduct of proceedings at which testimony is given, such a proceeding is not required in all events. Section 27F (e) provides: “The complainant and the respondent shall be entitled to be present at any proceedings on the complaint at which testimony is given, and to have counsel present, provided, however, that they shall not be entitled to examine or cross-examine witnesses unless requested by the grievance panel.” Once a grievance panel determines that probable cause exists, however, the statewide grievance committee or a reviewing committee must conduct a public hearing. See Practice Book § 27J (c). At such a hearing, “the respondent shall have the right to be heard in his own defense and by witnesses and counsel. The complainant and the respondent shall not be entitled to examine or cross-examine witnesses unless requested by the reviewing committee.” Practice Book § 27J (d). In the context of the present case, the proceedings of the grievance panel, reviewing committee and statewide grievance committee served only as a predicate to a decision to file a presentment against the defendant in the Superior Court. The presentment that followed permitted the defendant a hearing in Superior Court according to the customary rules of evidence, and at which time he had the right to be present, to be represented by counsel if he chose, to cross-examine witnesses and to present evidence in his own behalf. We conclude that the process, when viewed in its totality, was adequate to meet the procedural safeguards required by the federal and state constitutions.

The defendant further claims, however, that the plaintiff’s release to the media of the findings of probable cause against him damaged his franchise as an attorney, “ ‘a franchise which is regarded as a property right. O’Brien’s Petition, [79 Conn. 46, 55, 63 A. 777 (1906)].’ ” In re Application of Pagano, 207 Conn. 336, 341, 541 A.2d 104 (1988). The gravamen of the defendant’s argument is that the damage done to an attorney’s reputation by the public dissemination of a determination of probable cause is so great that no subsequent hearing can correct the damage. He claims, therefore, a deprivation of a property interest without procedural due process.

“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). “[T]he remedy mandated by the Due Process Clause of the Fourteenth Amendment is ‘an opportunity to refute the charge.’ [Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)]. ‘The purpose of such notice and hearing is to provide the person an opportunity to clear his name,’ id., [573 n.12].” Codd v. Velger, 429 U.S. 624, 627, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977). The subsequent “name-clearing” hearing is required only where the defendant affirmatively asserts that the report that has caused the stigma was substantially false. Id. The plaintiff has not furnished any authority to the effect that the reputation of an attorney is an exception to these principles nor does our research disclose that this is the case. The public hearing that must follow a finding of probable cause; see Practice Book § 27 J; or the presentment proceedings themselves provide a constitutionally adequate public forum at which the attorney may clear his name.

The defendant next claims that the trial court erred in applying the clear and convincing standard of proof rather than the beyond a reasonable doubt standard. The defendant argues that while proof by clear and convincing evidence is the proper standard to apply when issuing a reprimand, the proper standard to apply when seeking a fixed suspension should be proof beyond a reasonable doubt. We know of no authority that supports the proposition that such a floating standard of proof is either desirable or required.

Early grievance proceedings established that allegations of attorney misconduct were to be proven by a fair preponderance of the evidence. See In re: Milton Harrison and Charles A. Harrison, 4 Conn. Sup. 233, 234 (1936); Grievance Committee v. Ralph Woolfson, 2 Conn. Sup. 122, 127 (1935). We subsequently concluded that allegations of judicial misconduct were to be found by clear and convincing proof. Council on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 190, 191, 476 A.2d 1041 (1984). We discern no good reason why this same standard should not apply to disciplinary proceedings involving lawyers regardless of the nature of the sanction ultimately imposed. This is the standard suggested in the American Bar Association Standards Relating to Judicial Discipline. See ABA Standards Relating to Judicial Standard 8.40; see also ABA-BNA Lawyers’ Manual on Professional Conduct (1984) § 101:2101. This also is the view shared by a number of other jurisdictions. See Matter of Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976); Ettinger v. Board of Medical Quality Assurance, 135 Cal. App. 3d 853, 185 Cal. Rptr. 601 (1982); In re Loss, 119 Ill. 2d 186, 518 N.E.2d 981 (1987); In re Bossov, 60 Ill. 2d 439, 328 N.E.2d 309, cert. denied, 423 U.S. 928, 96 S. Ct. 275, 46 L. Ed. 2d 256 (1975); Louisiana State Bar Assn. v. Edwins, 329 So. 2d 437 (La. 1976); Bar Assn. of Baltimore City v. Posner, 275 Md. 250, 339 A.2d 657, cert. denied, 423 U.S. 1016, 96 S. Ct. 451, 46 L. Ed. 2d 388 (1975); Matter of Wang, 441 N.W.2d 488 (Minn. 1989); In re Gillard, 271 N.W.2d 785 (Minn. 1978); In re Gross, 67 N. J. 419, 341 A.2d 336 (1975); In re Palmer, 296 N.C. 638, 252 S.E.2d 784 (1979); In re Robert Neil Gygi, 273 Or. 443, 541 P.2d 1392 (1975); In re Friday, 263 S.C. 156, 208 S.E.2d 535 (1974).

We have carefully examined the defendant’s remaining claims. We conclude that the factual findings placed in issue by these claims are supported by clear and convincing evidence and that the trial court correctly applied the applicable law to the facts so found.

In sum, “[i]n proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights. . . . The ultimate question is whether he is a fit person to be longer allowed the privileges of being an attorney. . . . His relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review. ” (Emphasis added.) Grievance Committee of the Bar of New Haven County v. Sinn, supra, 422.

The judgment is affirmed.

In this opinion the other justices concurred.

       As to the first count, the trial court found that the defendant had violated DR 9-102 (B) of the Code of Professional Responsibility and Rule 1.15 (b) of the Rules of Professional Conduct by failing promptly to notify his client, Laura Vitello, that he had received funds on her behalf, by failing to turn those funds over to her new attorney after the defendant ceased representing her, and by failing to render a prompt accounting regarding her property. As to the second count, the trial court found that the defendant had violated Rule 1.5 of the Rules of Professional Conduct by charging his client, Frances Armstrong, an unreasonable fee. As to the third count, the trial court found that the defendant had violated DR 9-102 (B) (3) and (4) of the Code oí Professional Responsibility and Rule 1.5 (b) of the Rules of Professional Conduct by double charging costs to his client, Margretta Fatcherie, by failing to keep complete records of funds received on her behalf, by failing to render appropriate accounts to her regarding such funds, and by failing to make prompt payment of such funds to her. On the fourth count, the trial court found that the defendant had violated Rules 1.5 (b) and 1.15 (b) of the Rules of Professional Conduct by charging his client, Kathy Jean Carney, an excessive fee for performing a routine and uncomplicated procedure in a family matter. The Code of Professional Responsibility applies to attorney conduct before October 1, 1986, at which time it was replaced by the Rules of Professional Conduct.

       Article fifth, § i, of the Connecticut constitution provides: “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”

       To the extent that the defendant’s reference to article fifth of the Connecticut constitution implies that General Statutes § 51-90 et seq. amounts to an unconstitutional delegation by the legislature of judicial functions, we note that the judges of the Superior Court contemporaneously adopted rules setting forth an identical grievance process. See Practice Book § 27B et seq.

       In his due process argument, the defendant also challenges the plaintiff’s practice of conducting its hearings in a judicial district other than the judicial district in which the attorney to be disciplined practices. The defendant argues that requiring him to defend himself in a “place so far removed” from his office imposed an unconstitutional burden upon him, making it difficult for him to attend the hearings or to produce favorable witnesses. The only authority upon which the defendant relies in support of this claim is the Declaration of Independence. One of the enumerated grievances against King George III recited that: “he has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records for the sole purpose of fatiguing them into complianee with his measures . . . .” Given the geographical proximity of the various judicial districts in this state, the defendant’s claim is without merit.