author: Palmer, J.

text:
    O and G Industries, Inc. v. Town of New Milford
    (14690)
    Peters, C. J., Borden, Nokcott, Katz and Palmer, Js.

      Argued December 7, 1993—
    decision released March 25, 1994

      Robert L. Trowbridge, with whom was Christopher Cobb, for the appellant (plaintiff).

      George C. Hastings, with whom was Linda L. Morkan, for the appellee (defendant).

      Lloyd L. Langhammer filed a brief for the Connecticut Associated Builders and Contractors, Inc., et al., as amici curiae.

       March 25,1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Palmer, J.

The sole issue presented by this certified appeal is whether, under General Statutes § 49-41, a municipality owes a duty to a subcontractor or material supplier to obtain a payment bond from the general contractor. The plaintiff subcontractor, O and G Industries, Inc., brought an action against the defendant, the town of New Milford, claiming that the defendant’s failure to secure a payment bond from the general contractor hired to perform a municipal paving project rendered the defendant liable for damages resulting from the general contractor’s failure to pay the plaintiff for materials supplied. Both parties moved for summary judgment, and the trial court granted the plaintiff’s motion and rendered judgment for the plaintiff in the amount of $93,334.95. On appeal, the Appellate Court reversed the judgment and remanded the case to the trial court with direction to render judgment for the defendant, holding that the defendant owed no statutory duty to the plaintiff to secure a payment bond from the general contractor. We granted the plaintiff’s petition for certification, and affirm the judgment of the Appellate Court.

The material facts are not in dispute. On May 1,1990, the defendant awarded a contract to Austin Driveway Services, Inc. (general contractor), to perform paving work on certain public roads and parking lots in New Milford. The general contractor hired the plaintiff to supply asphalt and other road construction materials for the project, and the plaintiff did so in a timely manner. Upon substantial performance of the contract by the general contractor, the defendant paid the general contractor in full. Shortly thereafter, however, the general contractor filed for bankruptcy without having paid for the materials supplied by the plaintiff. The general contractor had failed to post a payment bond as required by § 49-41.

The plaintiff contends that the defendant was obligated to ensure that a payment bond had been posted because § 49-41 directs that the general contractor shall furnish a bond “[bjefore any contract . . . is awarded . . . .” We do not agree with the statutory construction urged by the plaintiff. Section 49-41 provides in relevant part that “[bjefore any contract . . . 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 . . . that person shall furnish to the state or the subdivision a bond in the amount of the contract . . . for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract . . . .’’In determining whether the legislature, in enacting § 49-41, intended to impose a duty on a state or municipality to secure a payment bond from the general contractor for the benefit of a subcontractor, “we are guided by the well established principles of statutory construction which require us to ascertain and give effect to the apparent intent of the legislature. . . . When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Citations omitted.) State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); see also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 186-87, 592 A.2d 912 (1991); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537-38, 582 A.2d 1174 (1990). Section 49-41 is clear and unambiguous: the general contractor is solely responsible for furnishing the payment bond. The statutory language relied upon by the plaintiff, namely, that the general contractor shall furnish the payment bond “[b]efore any contract ... is awarded,” merely sets forth the time frame within which the general contractor is required to post the bond, and imposes no obligation upon the state or local agency to ensure that the general contractor does so.

Moreover, our conclusion that the defendant owed no duty to the plaintiff to require the general contractor to post a payment bond is fully supported by the legislative history of § 49-41. The original predecessor of § 49-41, chapter 118 of the Public Acts of 1917, was enacted in response to our decision in National Fireproofing Co. v. Huntington, 81 Conn. 632, 71 A. 911 (1909), wherein we held that sovereign immunity prohibited the filing of a mechanic’s lien against the state or any of its subdivisions. See Nor’easier Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 477-78, 542 A.2d 692 (1988). Chapter 118 remedied the harsh consequences of that decision by requiring the state or municipal contracting officer to secure a surety bond from each contractor for the protection of any subcontractor providing labor or materials to the project.

In 1941, the legislature enacted General Statutes § 694f, which eliminated the requirement that the contracting officer obtain a payment bond from the general contractor, and substituted the provision that the general contractor “shall furnish ... a bond . . . for the protection of persons supplying labor or materials” under the contract. It is apparent that, in enacting § 694f and, subsequently, § 49-41, which is in all material respects identical to § 694f, the legislature intended to relieve the state or municipality from any obligation to a subcontractor to ensure the posting of a bond.

Moreover, because § 49-41 is “patterned after and operate[s] in general conformity with the federal statutes popularly known as the ‘Miller Act’; 40 U.S.C. §§ 270a through 270e”; Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra, 207 Conn. 476 n.7; Baldwin-Lima-Hamilton Corp. v. Aetna Casualty & Surety Co., 163 Conn. 331, 335, 307 A.2d 1109 (1972), cert. denied, 409 U.S. 169, 93 S. Ct. 910, 34 L. Ed. 2d 689 (1973) (intent of legislature in enacting § 49-41 same as that of Congress in enacting Miller Act); we look to federal judicial interpretations of the Miller Act for guidance. Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra, 476-77 n.7. Federal courts interpreting the Miller Act have concluded that the United States owes no duty to a subcontractor to ensure that the general contractor has furnished a payment bond, and, therefore, that the government is not liable in damages to a subcontractor for its failure to do so. See, e.g., Hardaway Co. v. United States Army Corps of Engineers, 980 F.2d 1415, 1416-17 (11th Cir. 1993); Westbay Steel, Inc. v. United States, 970 F.2d 648, 650 (9th Cir. 1992); Arvanis v. Noslo Engineering Consultants, Inc., 739 F.2d 1287, 1290 (7th Cir. 1984).

A number of states have passed legislation similar to the Miller Act, and while the cases construing those statutes have turned on the language and legislative history of the particular statutory provisions at issue, there is substantial state judicial authority in accord with our determination that a state or municipality has no affirmative obligation to a subcontractor to require the posting of a payment bond. The decision of the Michigan Court of Appeals in Barnes & Sweeney Enterprises, Inc. v. Hazel Park, 169 Mich. App. 422, 425 N.W.2d 572 (1988), is particularly persuasive because that case involved the interpretation of a statute nearly identical in both language and history to our own. The statute at issue in that case provided that “[bjefore any contract ... is awarded . . . the [general contractor] shall furnish at his or her own cost to the governmental unit a performance bond and a payment bond . . . .” Id., 425. The Michigan Court of Appeals held that the statute did not impose a duty on the public agency to ensure the posting of those bonds. In so holding, the court noted that a predecessor statute had required the government agency to obtain a payment bond from the general contractor, and that the elimination of that language from the amended statute reflected the intent of the legislature to relieve the public contracting authority of any obligation to a subcontractor to ensure the posting of the bonds. Id., 425-26. We reach the same conclusion on the basis of the similarly unambiguous language and legislative history of § 49-41.

The plaintiff relies primarily on Royal School Laborartories, Inc. v. Watertown, 236 F. Sup. 950 (D. Conn. 1965) (Royal School I), rev’d on other grounds, 358 F.2d 813 (2d Cir. 1966) (Royal School II), as authority for the proposition that the defendant owed a duty to the plaintiff, under § 49-41, to secure a payment bond from the general contractor. In Royal School I, a subcontractor brought an action against the town of Watertown for failure to ensure the posting of the payment bond required by § 49-41. The District Court acknowledged that the issue was one of first impression in Connecticut, and conceded that a majority of courts had held that a municipality is not liable to a subcontractor for failure to obtain a statutorily required payment bond. Royal School I, supra, 953. The court held, nonetheless, that the town was liable to the subcontractor for a breach of duty under § 49-41, concluding that Connecticut probably would adopt the minority view. Id., 954-55. On appeal, the Court of Appeals for the Second Circuit reversed the judgment of the District Court, but did so without deciding the issue of the town’s liability to the subcontractor under § 49-41. The Court of Appeals expressly noted, however, that it had “no confidence” that Connecticut would adopt the minority view. Royal School II, supra, 816. We now decline to do so.

As we have discussed, the legislature, in enacting § 49-41, did not intend to impose upon the state or its subdivisions the duty to obtain a payment bond for the protection of subcontractors. Under the statute, it is the obligation of the general contractor to furnish the bond and the responsibility of the subcontractor to assure itself that the bond has been posted. Because the defendant owed no legal duty to the plaintiff to obtain the payment bond required by § 49-41, the Appellate Court properly concluded that the defendant was entitled to summary judgment.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 49-41 provides in relevant part: “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

       O & G Industries, Inc. v. New Milford, 29 Conn. App. 783, 617 A.2d 938 (1992).

       We granted the plaintiff’s petition for certification to appeal limited to the following issue: “Under General Statutes § 49-41, does a municipality owe a duty to a subcontractor or material supplier to obtain a payment bond from the general contractor?” O & G Industries, Inc. v. New Milford, 225 Conn. 905, 621 A.2d 286 (1993).

       We have held that a construction contract is voidable if the general contractor fails to furnish a payment bond as required by General Statutes § 49-41. Norwalk v. Daniele, 143 Conn. 85, 89, 119 A.2d 732 (1955). Neither party, however, has claimed that the contract was invalid in this case.

       Chapter 118 of the Public Acts of 1917 provided: “Any officer or agent contracting in behalf of the state or any sub-division thereof for the construction, alteration, removal or repair of any public building or any bridge constructed under the provisions of chapter 337 of the public acts of 1915, shall require from each contractor, as a condition precedent to the execution of a contract for any such construction, alteration, removal or repair, a bond with sufficient surety, which bond shall be conditioned for the faithful execution of the contract according to its provisions and for the payment for all materials and labor used or employed in the execution of such contract. Any person, firm or corporation having any claim for materials or labor furnished in the execution of any such contract, shall file with the officers or agents contracting for any such construction, alteration, removal or repair, a statement of such claim within sixty days after he ceased to furnish such materials or labor, which claim, if correct, shall be paid by such officer or agent, who shall recover the amount thereof with costs from the surety on such bond.”

       General Statutes (Sup. 1941) § 694f provided in relevant part: “Before any contract exceeding one 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, such person shall furnish to the state or such subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to such 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 such contract for the use of each such person.”

       General Statutes § 49-41 differs from General Statutes (Sup. 1941) § 694f in only two respects: (1) § 49-41 applies to state or municipal contracts exceeding $25,000, whereas § 694f concerned public contracts in excess of $1000; and (2) design professionals are exempt from the requirements of § 49-41, while no category of general contractor was exempt under § 694f. Neither of these distinctions bears upon the issue in this case.

       We also note that prior to 1941, the state or municipal contracting agent was responsible for the administration of any claims filed by a subcontractor on the bond. See Public Acts 1917, c. 118; General Statutes (Sup. 1933) § 1594c. In 1941, however, the legislature “divested the contracting agent or official of the state or municipality of the responsibility for the payment of a subcontractor’s claims”; Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra, 207 Conn. 478-79; and, instead, placed the responsibility with the subcontractor to initiate an action on the bond. General Statutes (Sup. 1941) § 695f. General Statutes § 49-42, a successor to § 695f, retains the provision whereby the subcontractor, rather than the state or municipal contracting authority, bears the responsibility for obtaining payment on the bond. This modification of the procedure in order to make a claim on the bond is further evidence of the legislative intent to relieve the public contracting authority of any obligation to a subcontractor with respect to the payment bond.

       Section 270a (a) of title 40 of the United States Code provides in relevant part: “Before any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person . . .
      “(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.”

       See, e.g., Barnes & Sweeney Enterprises, Inc. v. Hazel Park, 169 Mich. App. 422, 425 N.W.2d 572 (1988) (no government liability); Penstan Supply, Inc. v. Pennsylvania State University, 44 Pa. Commw. 347, 403 A.2d 1054 (1979) (no government liability); Heldenfels Bros., Inc. v. Corpus Christi, 832 S.W.2d 39 (Tex. 1992) (no government liability); but see Medical Clinic Board v. Smelley, 408 So. 2d 1203 (Ala. 1981) (government liable); Cowin & Co. v. Merrill, 202 Wis. 614, 233 N.W. 561 (1930) (government liable).

       The Court of Appeals held that the District Court had improperly denied the town’s petition for interpleader, and remanded the case to the District Court for further proceedings. Royal School II, supra, 358 F.2d 815-17.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Fair Cadillac-Oldsmobile Isuzu Partnership et al. v. John M. Bailey et al.
    (14806)
    Peters, C. J., Borden, Berdon, Katz and Santaniello, Js.
    Argued December 8, 1993—
    decision released March 24, 1994

      Stanley A. Twardy, Jr., with whom were Jonathan B. Tropp and, on the brief, Allan B. Taylor, for the plaintiffs.

      Peter R. Huntsman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the defendant commissioner of motor vehicles.

      Wesley W. Horton, with whom were Susan M. Cormier and, on the brief, Michael S. Taylor, law student intern, for the defendant Connecticut Automotive Trades Association, Inc., et al.

       March 24,1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Berdon, J.

The sole issue in this case is whether General Statutes § 53-301, which prohibits a party engaged in the business of selling motor vehicles from selling them on Sunday, violates the state constitution. Because we conclude that § 53-301 violates substantive due process under article first, § 8, of the state constitution we need not reach the plaintiffs’ other state constitutional claims.

The plaintiffs are nine motor vehicle dealerships located in Danbury. They instituted this suit in order to obtain a declaratory judgment that § 53-301 is unconstitutional, and to enjoin the defendant commissioner of motor vehicles from enforcing the statute. Subsequent to the filing of the suit, the trial court granted the Connecticut Automotive Trades Association, Inc. (CATA), and Tufano Motorcar, Inc., permission to join the suit as defendants. Thereafter, the plaintiffs filed an amended complaint that sought only a declaratory judgment. The parties filed a joint stipulation of facts and petitioned the trial court to reserve three questions concerning the constitutionality of § 53-301 for the advice of this court. The trial court granted the petition for reservation and approved the joint stipulation of facts.

The following stipulated facts are relevant. For most of the year, the plaintiff dealerships are open for business Monday through Thursday from 8:30 a.m. to 9 p.m., and Friday and Saturday from 8:30 a.m. to 6 p.m. Currently, Saturday is the busiest and most profitable day for the plaintiffs. The plaintiffs would open for business on Sunday if they were permitted to do so. Section 53-301 has caused the plaintiffs to suffer economic loss in the form of lost potential profits from Sunday sales of new and used automobiles and trucks.

Section 53-301 is one of the last vestiges of Connecticut’s Sunday closing laws, some of which were first codified in 1650. Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 306, 417 A.2d 343 (1979) (Caldor’s). In Caldor’s, we struck down the general Sunday closing law, General Statutes § 53-302a, as violative of substantive due process under our state constitution. The closing law at issue in this case, § 53-301, was originally adopted as § 1 of No. 614 of the 1957 Public Acts. Section 2 of this act contained the predecessor of § 53-302a. The plaintiffs claim that the substantive due process analysis developed in Caldor’s for challenging Sunday closing laws under our state constitution requires us to strike down § 53-301. We agree.

We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590, 590 A.2d 447 (1991); Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). While the courts may declare a statute to be unconstitutional, our power to do this should “be exercised with caution, and in no doubtful case.” State v. Brennan’s Liquors, 25 Conn. 278, 289 (1856). Every presumption is to be given in favor of the constitutionality of the statute. State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Bottom v. Westport, 209 Conn. 652, 657, 553 A.2d 576 (1989).

The plaintiffs rely solely on state constitutional grounds to invalidate § 53-301. It is beyond dispute that we are not bound by federal precedents in interpreting our own state constitutional provisions. “[F]ederal decisional law is not a lid on the protections guaranteed under our state constitution.” Doe v. Maher, 40 Conn. Sup. 394, 419, 515 A.2d 134 (1986). As we stated in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), “federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection . . . .” (Internal quotation marks omitted.)

Nevertheless, we are not precluded from using federal precedents in crafting a framework for state constitutional analysis and in interpreting state constitutional provisions. “Just as it is wrong to assume that state constitutions are mere mirror images of the Federal Constitution, so it is wrong to assume that independent state constitutions share no principles with their federal counterpart. The interstices of open-ended state constitutions remain to be filled, and many of them will best be filled by adopting into state law, on a case-by-case basis, persuasive constitutional doctrines from federal law and from sister states.” E. Peters, “State Constitutional Law: Federalism in the Common Law Tradition,” 84 Mich. L. Rev. 583, 592-93 (1986); see also Daly v. DelPonte, 225 Conn. 499, 512-13, 624 A.2d 876 (1993) (“[i]n the interpretation of our state constitution, we have often consulted the case law under the federal constitution . . .”); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (“[t]he adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution”). Furthermore, it is clear that our adoption, for purposes of state constitutional analysis, of an analytical framework used under the federal constitution does not preclude us from concluding that a statute that would be valid under the federal constitution is nevertheless invalid under our state constitution. See, e.g., State v. Miller, 227 Conn. 363, 377-87, 630 A.2d 1315 (1993).

The due process clause of article first, § 8, like the similar provision in the federal fourteenth amendment, provides for varying levels of judicial review to determine whether a state statute or regulation passes constitutional muster in terms of substantive due process. See Daly v. DelPonte, supra, 225 Conn. 513 (“We have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation will survive an equal protection challenge if it satisfies a rational basis test. ... If, however, state action invidiously discriminates against a suspect class or affects a fundamental right, the action passes constitutional muster under the state constitution only if it survives strict scrutiny.” [citation omitted]); Doe v. Maher, supra, 40 Conn. Sup. 441-43 (recognizing that varying levels of judicial review are used depending on the nature of the right the statute or regulation impinges upon).

We agree with the defendants that § 53-301 neither impairs a fundamental constitutional right nor targets a suspect class, either of which would require that this court apply strict scrutiny to determine whether the statute passes muster under our state constitution. State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 750, 529 A.2d 1276 (1987). Rather, because § 53-301 merely regulates a commercial activity—the sale of motor vehicles on Sunday—it must be reviewed “in accordance with the rules that normally govern constitutional challenges of economic or social welfare legislation, by ascertaining whether the legislature has acted arbitrarily or irrationally.” Connecticut Education Assn., Inc. v. Tirozzi, 210 Conn. 286, 299, 554 A.2d 1065 (1989). Although great constitutional deference is afforded to the legislature, our state due process clause mandates that the legislature must limit the exercise of its police powers to preserving the public peace, health and morals. In re Application of Clark, 65 Conn. 17, 40, 31 A. 522 (1894). “The court’s function in examining the constitutional aspect of police legislation is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way.” Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36,2 L. Ed. 2d 21 (1957). Even under this less exacting test of constitutionality, an economic regulation will survive a substantive due process test only if it is both rational and related to a legitimate state purpose. Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984); Caldor’s, supra, 177 Conn. 315. “If an enactment meets this test, it satisfies the constitutional requirements of due process . . . . Schwartz v. Kelly, 140 Conn. 176, 179, 99 A.2d 89 [1953]; Carroll v. Schwartz, 127 Conn. 126, 129, 14 A.2d 754 [1940].” Pierce v. Albanese, supra, 249.

As the first step in our state constitutional analysis, we must ascertain the legislative purpose behind § 53-301 in order to evaluate whether the statute is rationally related to that purpose. As noted above, § 53-301 is one of the Sunday closing laws and was originally adopted in the same legislation; Public Acts 1957, No. 614; as the general closing law struck down in Caldor’s. In Caldor’s, supra, 177 Conn. 310, we determined that the purpose of these closing laws was to create a common day of rest. “Although in origin such laws were intimately related to the establishment of religious principles, over time their acknowledged purpose and justification have shifted to secular grounds.” Id., 306. In an attempt to avoid the state constitutional principles developed in Caldor’s for analyzing closing law legislation, the defendants claim that we should speculate concerning other conceivable purposes for the statute. We disagree.

As early as the turn of the century, when religious observance was still an acknowledged purpose for the closing laws, this court made clear that such laws were also designed to secure to private citizens the quiet enjoyment of Sunday as a day of rest. Wetherell v. Hollister, 73 Conn. 622, 625, 48 A. 826 (1901). We have reiterated this secular purpose in more modern times. See Caldor’s, supra, 177 Conn. 306; State v. Shuster, 145 Conn. 554, 557-58, 145 A.2d 196 (1958); State v. Hurliman, 143 Conn. 502, 507, 123 A.2d 767 (1956). In view of these judicial pronouncements, we presume that the legislature has “knowledge of this longstanding construction which this court has given to the objective and purpose of legislation in this field.” Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); see also Cappellino v. Cheshire, 226 Conn. 569, 576, 628 A.2d 595 (1993) (“ ‘the legislature is presumed to be aware of the judicial construction placed upon its enactments’ ”). We also presume that the legislature is aware of the effect that its action or inaction will have on an existing statute, and to intend the effect that its action or inaction produces. All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 197, 567 A.2d 1156 (1989).

The legislature has not done anything to indicate that § 53-301 has a separate purpose from the other Sunday closing laws, or that the purpose of these laws is not a common day of rest. We must therefore reaffirm the long-standing construction that this court has given to the purpose of the closing laws—that is, “to further a common day of rest.” Caldor’s, supra, 177 Conn. 325. Because an act with such a purpose “cannot be justified by other unspecified governmental, economic, or social reasons”; id.; we will not speculate as to other conceivable purposes.

The courts have recognized that providing a common day of rest for citizens is a legitimate governmental interest. McGowan v. Maryland, 366 U.S. 420, 445, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Caldor’s, supra, 177 Conn. 306. That does not, however, end our constitutional inquiry, because we must determine whether the prohibition of the sale of motor vehicles on Sunday bears a reasonable relationship to that purpose. In Caldor’s, we recognized the difficulty in making this inquiry. “Because any statement of the rational connection test is necessarily general and open-ended, controversy tends, as in this case, to concern not the test itself but rather its application.” Caldor’s, supra, 315. Accordingly, in performing our substantive due process analysis under the state constitution, we borrow from the teachings of procedural due process in examining the “totality of circumstances that bear on the rationality” of the statute. Id., 316.

In this case, as in Caldor’s, there are three aspects of the Sunday closing law at issue that warrant special emphasis in examining the totality of circumstances. First, as the parties concede, § 53-301 is a penal statute. Motor vehicle dealers who violate the statute are subject both to fines and to possible suspension of their dealer’s licenses. As a penal statute, § 53-301 must be strictly construed. Id., 318.

Second, § 53-301 regulates conduct that would be entirely legitimate in the absence of the statute. We noted in Caldor’s, supra, 177 Conn. 317, that “[t]o be constitutionally valid, legislation policing the operation of a legitimate business must serve some phase of the public health, safety, convenience and welfare in a reasonable and impartial way.” (Internal quotation marks omitted.) See also Mott’s Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 487, 172 A.2d 381 (1961) (invalidating, under the due process clause of the state constitution, a provision of the Unfair Sales Practices Act that provided that proof that a retailer had sold or offered to sell goods below cost would be prima facie evidence of an intent to destroy competition); United Interchange, Inc. v. Spellacy, 144 Conn. 647, 654, 136 A.2d 801 (1957) (invalidating, under the due process and equal protection provisions of the state constitution, a statute requiring individuals who solicit advertisements for real estate periodicals to obtain real estate licenses). While “the legislature has a broad discretion” in fashioning economic legislation, the courts must limit this discretion ‘ ‘at that point where the regulatory measures either fail to serve the public good or serve it in a despotic way.” (Internal quotation marks omitted.) Caldor’s, supra, 317; see also Mott’s Super Markets, Inc. v. Frassinelli, supra, 487; United Interchange, Inc. v. Spellacy, supra, 654. “[Regulations imposed on a lawful business cannot exceed what is reasonably necessary to accomplish their purpose,” especially where the regulation imposes penal sanctions for conduct that does not carry “any antisocial implications whatsoever.” Caldor’s, supra, 318; see also Mott’s Super Markets, Inc. v. Frassinelli, supra, 487.

Third, as we recognized in Caldor’s, supra, 177 Conn. 319, difficulties inhere in legislation designed to provide a common day of rest. As a Sunday closing law, § 53-301 “furthers an objective that is difficult to effectuate with clarity and precision.” Id., 316. In Caldor’s, the fact that the legislature had provided numerous exemptions from the general closing law led us to conclude that the statute failed to effectuate, in a rational manner, the objective of providing a common day of rest. Id., 324-25. The difficulty in discerning a rational connection between the statute and its objective is even more pronounced in this case, because the legislature has failed to reenact a general Sunday closing law. As a result, almost all commercial enterprises other than motor vehicle dealerships are permitted to open for business on Sunday. Indeed, it appears that, since Caldor’s, the legislature has completely abandoned the difficult task of providing a common day of rest for the people of Connecticut.

In view of the totality of circumstances set forth above, we conclude that the plaintiffs have proven beyond a reasonable doubt that § 53-301 is arbitrary and therefore violates article first, § 8, of our state constitution. The current statutory scheme fails to provide a common day of rest for Connecticut’s people, and we cannot discern any legitimate reason for providing a common day of rest for one narrow class of employees, or, in regard to consumers, from one specific type of purchase. Furthermore, § 53-301 may actually harm the public by making it inconvenient and difficult for people to comparison shop for motor vehicles at different dealerships. For example, the defendants concede that many couples prefer to shop together for a car, but only have time to do so on Sundays and in the evenings. Because § 53-301 prevents them from shopping on Sundays, they are limited to evenings and probably to the dealerships closest to their homes or places of business. Such anticompetitive effects harm all consumers.

The second reserved question—that is, does § 53-301 violate the plaintiffs’ rights to due process of law guaranteed by article first, § 8, of the Connecticut constitution?—is answered in the affirmative. The case is remanded to the trial court for further proceedings consistent with this opinion.

No costs will be taxed in this court to any party.

In this opinion the other justices concurred.

       General Statutes § 53-301 provides: “No person, firm or corporation engaged in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles shall open any place of business or lot wherein he attempts to or does engage in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles, or buy, sell, exchange, deal or trade in new or used motor vehicles as a business on Sunday. Any person who violates the provisions of this section shall be fined not more than fifty dollars for the first offense and not more than one hundred dollars for each subsequent offense. Any licensed motor vehicle dealer who violates the provisions of this section shall, in addition to the fine provided herein, be subject to suspension of license as provided in section 14-64.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       The plaintiffs also claim that General Statutes § 53-301 is discriminatory and violates the equal protection clauses of article first, §§ 1 and 20, as amended, of the Connecticut Constitution and that § 53-301 is void for vagueness and therefore violates due process under article first, § 8, of the Connecticut constitution.

       In addition to Fair Cadillac-Oldsmobile Isuzu Partnership, the following are plaintiffs: Fair Hyundai Partnership, Fair Motors Partnership, Fair Chevrolet-Geo Partnership, Fair Infiniti Partnership, Fair Imports Partnership, Danbury-Mt. Kiseo Saturn Partnership, Danbury Auto Partnership and Fair Chrysler-Plymouth Partnership.

       Pursuant to Practice Book § 388 et seq., which govern actions for declaratory judgments, the plaintiffs were required to provide public notice of the declaratory judgment they sought. The trial court found that “all persons having an interest in the subject matter of this action are now parties to the action or have had reasonable notice thereof,” and therefore that the plaintiffs had complied with Practice Book § 390 (d). The defendants do not challenge this finding, which is critical to establishing the trial court’s subject matter jurisdiction. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993); see also Salamandra v. Kozlowski, 173 Conn. 136, 138, 376 A.2d 1103 (1977) (failure to provide the requisite notice in a declaratory judgment action deprives the trial court of subject matter jurisdiction).

       In the original complaint, John M. Bailey, chief state’s attorney, and Walter D. Flanagan, state’s attorney for the Danbury judicial district, were also named as defendants. The plaintiffs subsequently withdrew their complaint as to these two defendants.

       The trial court reserved the following three questions: “(1) Does General Statutes § 53-301 violate [the] plaintiffs’ rights to equal protection of the laws guaranteed by article first, §§ 1 and 20, of the Connecticut constitution?
      “(2) Does § 53-301 violate [the] plaintiffs’ rights to due process of law guaranteed by article first, § 8, of the Connecticut constitution?
      “(3) Is § 53-301 unconstitutionally vague in violation of article first, § 8, of the Connecticut constitution?”

       Practice Book § 4147 provides in relevant part: “A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. . . .
      “All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .”
      Practice Book § 4148 provides: “Before any question shall be reserved by any court, counsel shall file in that court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the supreme or the appellate court would be in the interest of simplicity, directness and economy in judicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the supreme or the appellate court.”

       During the summer months, the plaintiff dealerships stay open until 9 p.m. on Friday.

       The parties stipulated that automobile dealerships in New York may open on Sunday, and that there are customers who purchase cars on Sunday from New York dealers who would otherwise purchase cars from Connecticut dealers, including the plaintiffs.

       Notwithstanding our determination that the purpose of General Statutes § 53-301 is to provide a common day of rest, we review in this footnote and in footnotes 12 and 13, the alternative purposes proposed by the defendants.
      The first “purpose” advanced is that “motor vehicle dealers are comprehensively regulated under title 14 [of the General Statutes] by the Motor Vehicle Commissioner (who does no work on Sunday).” The defendants concede that motor vehicle dealerships are permitted to be open on Saturday, Monday and during the evenings, even though the department of motor vehicles (DMV) is closed at these times. Therefore, the fact that the DMV is closed on Sunday does not furnish a rational purpose for the closing law. This is especially true in light of the parties’ stipulation that Saturday is the busiest day of the week for motor vehicle dealers, and is also a day when the DMV is open only in the morning. Furthermore, this “purpose” is more like an observation, and the defendants do not explain how the closing law advances the purpose of comprehensively regulating dealers.
      The second purpose is that “motor vehicles are unlike most other consumer products because of their cost.” The defendants claim that allowing dealerships to open seven days a week could lead to higher overhead without significantly higher sales and therefore to lower dealer profits, higher consumer prices, or both, and that the legislature may have wanted to avoid this. The defendants have stipulated, however, that if dealers could open on Sunday, it would be their second busiest and most profitable day after Saturday. If the legislature were truly seeking to hold down dealer overhead through the-mechanism of a closing law, it would force dealers to close on a weekday when sales are slower, rather than on Sunday.
      Third, the defendants claim that allowing dealers to open on Sunday as well as Saturday “would create an intolerable burden on DMV employees, as they attempted to process all of the new and transferred registrations in a timely manner on Tuesdays . . . .” The defendants have not placed any facts on the record concerning the burden on DMV employees and how Sunday vehicle sales would affect them. Furthermore, the defendants have stipulated that: (1) the DMV has an automated registration system that permits motor vehicles to be registered when the DMV is closed; and (2) in the “vast majority of instances,” dealers do not deliver vehicles to customers on the day they are sold. These two facts, which are on the record, wholly undermine the defendants’ unsupported claim that allowing dealers to open on Sunday would create an “intolerable burden” for the DMV.
      Finally, the defendants claim that prohibiting dealers from opening on Sundays makes it easier for DMV personnel to make unannounced site inspections, because they have only six days to cover instead of seven. This claim makes no sense, however, unless DMV personnel must inspect every dealership every day. To the contrary, having seven days available on which to make inspections instead of six would provide DMV personnel with greater flexibility in scheduling inspections and allow a greater number of inspections to be accomplished each week.

       The defendant commissioner of motor vehicles claims that “[General Statutes] § 53-301 may have been designed to further a day of rest specifically for the operators and employees in the highly regulated, highly competitive business of motor vehicle sales.” This objective is accomplished, however, by General Statutes § 53-303e (a), which provides that no employer may “compel any employee engaged in any commercial occupation . . . to work more than six days in any calendar week . . . .” The defendants do not offer any persuasive reason why the legislature would conclude that a common day of rest is needed for employees of motor vehicle dealerships, beyond the mere fact that a majority of full-time dealership employees would prefer not to work on Sunday. Presumably, there are many people in the state of Connecticut who would prefer not to work on Sunday. The defendants have failed, however, to offer a rational reason why the legislature would single out this one group of employees for special protection.

       The defendants Connecticut Automotive Trades Association, Inc., and Tufano Motorcar, Inc., claim that the legislature “might rationally find that there should be a day of rest for such a major transaction” because “some transactions associated with purchasing a motor vehicle, such as arranging insurance and financing, generally cannot be accomplished on Sundays.” This claim makes no sense, however, in light of the defendants’ concession that even though insurance and many financing companies are closed on Saturdays and in the evening, motor vehicle dealerships may and do open for business at these times. Furthermore, the defendants concede that other major consumer goods—such as boats, homes and jewelry—are bought and sold on Sundays. In many cases, the purchase of these goods, too, involves financing and insurance arrangements.


author: Per Curiam.

text:
    Barbara Thoma v. Planning and Zoning Commission of the Town of Canterbury
    (14830)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.
    Argued March 29—
    decision released April 26, 1994

      Angela Hawkins Fichter, for the appellants (plaintiffs).

      Richard S. Cody, for the appellee (named defendant).

      Edward, E. Moukawsher, for the appellees (defendant Beverly H. Dean et al.).
   Per Curiam.

The dispositive issue in this land use appeal is whether a town regulation can lawfully limit the discretion that General Statutes § 8-26 confers on a town planning and zoning commission. The defendants Theodore G. Dean and Beverly H. Dean (defendants) sought approval for a proposed subdivision in the town of Canterbury. The named defendant, the planning and zoning commission of the town of Canterbury (commission), granted their application despite its having been disapproved by the town inland wetlands commission. The plaintiffs, Barbara Thoma and Theodore W. Dean, appealed to the trial court, which sustained their appeal on the ground that § 4.12.3 of the Canterbury zoning regulations deprived the commission of the authority to grant a proposed subdivision application that had been disapproved by the inland wetlands agency.

The Appellate Court granted the defendants’ request for certification to appeal and reversed the judgment of the trial court. Thoma v. Planning & Zoning Commission, 31 Conn. App. 643, 626 A.2d 809 (1993). The Appellate Court held that the regulation was a delegation of authority to the inland wetlands agency that was impermissible in light of the conflicting provision of § 8-26, which requires the commission to give only “ ‘due consideration’ to a report prepared by the inland wetlands agency . . . .” Id., 648; see Arway v. Bloom, 29 Conn. App. 469, 479-80, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 801-802, 633 A.2d 281 (1993). We granted the plaintiffs’ petition to appeal this question of regulatory authority.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. Cf. Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 640 A.2d 100 (1994); Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994); Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 78, 556 A.2d 1024 (1989).

The judgment of the Appellate Court is affirmed.

       General Statutes § 8-26 provides in relevant part: “approval of subdivision AND RESUBDIVISION PLANS. WAIVER OF CERTAIN REGULATION REQUIREMENTS. APPLICATIONS INVOLVING INLAND WETLANDS AND WATERCOURSES. All plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it. The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. ... If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency.”

       We granted the plaintiffs’ petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that: (a) Canterbury Zoning Regulation § 4.12.3 requires, as a condition precedent to subdivision approval, inland wetlands approval; and (b) the zoning regulation conflicts with General Statutes § 8-26?” Thoma v. Planning & Zoning Commission, 227 Conn. 910, 632 A.2d 700 (1993).


author: Palmer, J. Berdon, J., with whom Katz, J.,

text:
    State of Connecticut v. Richard Patterson
    (14299)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued June 10, 1993—
    decision released May 3, 1994
    ' William Holden, public defender, with whom, on the brief, were Barry A. Butler, assistant public defender, and Michael A. Heran, certified legal intern, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert Lacobelle, assistant state’s attorney, for the appellee (state).
   Palmer, J.

The defendant, Richard Patterson, was convicted, after a trial to a three judge court, of murder in violation of General Statutes § 53a-54a (a). The defendant appealed from the judgment of conviction claiming that: (1) the state failed to prove the element of intent beyond a reasonable doubt; and (2) the evidence presented by the defendant established, as a matter of law, the affirmative defenses of insanity and, in the alternative, extreme emotional disturbance. After hearing oral argument, we remanded the case to the three judge court for an articulation of the facts underlying its determination that the defendant had committed the crime of murder. State v. Patterson, 227 Conn. 448, 629 A.2d 1133 (1993). The articulation rendered by the court pursuant to our remand sets forth its factual findings and explains its reasons for rejecting the defendant’s affirmative defenses. Because the factual findings of the three judge court are supported by the evidence, we affirm the judgment of conviction.

The court stated that it had found the following facts. On October 21, 1988, at approximately 9 p.m., Desmond Clark entered a variety store on Stratford Avenue in Bridgeport. Clark saw an acquaintance, Nesbourne Wright, in the store, and asked him for a ride home. Wright agreed, and the two men left the store and proceeded toward Wright’s car. On their way to the car, they were approached by the defendant, a distant cousin of Clark’s, who also requested a ride from Wright. Wright agreed to give the defendant a ride as well. As Wright and his two passengers walked to Wright’s car, the defendant stated that three men had sexually assaulted his girlfriend. Wright responded that he did not know what the defendant was talking about. When they arrived at the car, the defendant sat in the front passenger seat and Clark sat in the rear, behind the driver, Wright.

Wright drove directly to the defendant’s house and double-parked on the street in front. The defendant, however, requested that Wright “take Clark home first.” When Wright indicated that he was “not coming back this way,” both Clark and the defendant exited the car. Immediately thereafter, Clark heard several gunshots from the direction of the car and, frightened, ran to the house of a relative that was located next door to the defendant’s residence. As Clark fled, he observed the defendant running in the direction of his own house with a gun in his hand.

The Bridgeport police were called to the scene, where they found Wright slumped over in the driver’s seat of the car, bleeding profusely from a wound to the head. Wright died shortly thereafter. An autopsy revealed that the cause of death was a bullet fired at close range to Wright’s right temple. That bullet was extracted from Wright’s head during the autopsy. A second bullet was removed from the dashboard of Wright’s car by the police.

On October 24,1988, police officers executed a search warrant at the defendant’s apartment and found two handguns, including a .38 caliber revolver wrapped in an old pair of pants, hidden beneath the turntable of a stereo set in the defendant’s bedroom. A forensic firearms examiner determined that both the bullet recovered from Wright’s head and the bullet recovered from his car had been fired from the .38 caliber revolver discovered in the defendant’s bedroom.

The defendant presented the testimony of several expert witnesses and family members in support of his affirmative defenses of insanity and extreme emotional disturbance. The court rejected those defenses, however, and unanimously found the defendant guilty of the crime of murder. The defendant has appealed from the judgment of the court sentencing him to a term of imprisonment of forty-five years to be suspended after the expiration of thirty-five years.

I

The defendant first claims that the state failed to prove beyond a reasonable doubt that he shot the victim with the intent to kill him. We disagree.

Upon appellate review of a claim of evidentiary insufficiency, “[w]e first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court. ... We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court . . . could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 73-74, 621 A.2d 728 (1993); State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991). “That the [trier of fact] might have drawn other possible inferences from [the evidence] is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt.” (Internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 304, 636 A.2d 351 (1994); State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539 (1985).

In order to establish that the defendant had the requisite intent to commit murder, the state bears the burden of proving, beyond a reasonable doubt, that the defendant caused the death of another with the conscious objective to do so. General Statutes §§ 53a-3 (11) and 53a-54a. That the defendant acted with the specific intent to kill may be proven solely by circumstantial evidence, as long as that evidence establishes beyond a reasonable doubt that the defendant had the conscious objective to take the life of another. State v. Rasmussen, supra, 225 Conn. 74; State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). The defendant’s intent to kill, therefore, may be inferred from evidence of the defendant’s use of a deadly weapon, the manner in which the weapon was used, and the nature and number of wounds inflicted. State v. Medina, supra, 228 Conn. 303-304; State v. Rasmussen, supra, 74. “Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. Medina, supra, 303; State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973).

The evidence introduced at trial supported the facts found by the trial court and its determination that the defendant had intentionally killed the victim. The state presented testimony from which the court concluded that the defendant had fatally shot the victim in the head from close range with a .38 caliber revolver. There was also testimony that the defendant had asked the victim to take Clark home first, evidence from which the court could reasonably have inferred that the defendant had sought to exclude Clark as a possible witness to the shooting. In addition, the evidence supported the court’s findings that the defendant had: (1) intentionally concealed a revolver on his person prior to using it to shoot the victim; (2) fled from the scene immediately after fatally wounding the victim; (3) hidden the murder weapon subsequent to the shooting to avoid its detection by the authorities; and (4) left his residence and the city of Bridgeport for several days after the fatal encounter. Furthermore, the court expressly found that the defendant’s concealment of the murder weapon and his flight after the shooting reflected a consciousness of guilt. We conclude, therefore, that the evidence was sufficient to permit the three judge court to have found beyond a reasonable doubt that the defendant had intended to kill the victim.

II

The defendant also claims that the evidence he introduced at trial established, as a matter of law, his affirmative defenses of insanity and, in the alternative, extreme emotional disturbance. We conclude that because the court’s rejection of the defendant’s affirmative defenses is reasonably supported by the evidence, his claim must fail.

In support of his affirmative defenses, the defendant presented the testimony of three psychiatrists and a clinical psychologist, as well as several family members who described the defendant’s bizarre behavior and his mental and physical deterioration in the two years prior to the fatal shooting. Joseph More, a psychiatrist at the Whiting Forensic Institute (Whiting), testified that the defendant suffered from chronic paranoid schizophrenia and that his beliefs were, at times, illogical, irrational and delusional. More further testified that the defendant had suffered from this illness for at least one year prior to the shooting, and that his mental condition was not the result of drug abuse. Ann Hoefer, a psychiatrist who had been retained by the state, agreed that the defendant suffered from chronic paranoid schizophrenia, that he had suffered from the illness for a considerable period of time prior to the shooting, and that he had experienced hallucinations and delusions that resulted in the development of a belief system that bore little or no relationship to reality. Hoefer stated that on the day of the shooting, the defendant had experienced a hallucination in which two men had restrained the defendant’s girlfriend while the victim had sexually assaulted her, and that this hallucination had compelled the defendant to kill the victim.

A third psychiatrist, Jeremy August, corroborated the diagnoses of More and Hoefer that the defendant had suffered from paranoid schizophrenia and that his bizarre and unusual behavior had been the result of delusional thinking and auditory hallucinations caused by his mental illness. August also testified that the defendant had told him that he had killed the victim because it had been God’s will that he do so.

Charles Opsahl, a clinical psychologist, testified that he had conducted certain psychological tests on the defendant and that, on the basis of those tests, he had concluded that the defendant was psychotic. Opsahl also opined that the defendant’s illness made it difficult for him to distinguish between fantasy and reality, and that his disturbed thought patterns were the result of his psychosis.

Finally, several of the defendant’s family members, including his mother and sister, testified that his mental health had deteriorated markedly and progressively over the two year period prior to the shooting. Each of these witnesses testified concerning the defendant’s strange and apparently irrational behavior, and recited specific incidents of such conduct. Other relatives testified that during the two years prior to the shooting, the defendant had heard inner voices speaking to him, had walked naked through the streets of Jamaica during a visit there, had searched through his neighbor’s garbage, had talked and chanted to himself, often reciting passages from the bible, had made bizarre and fantastic claims about his past, had maintained an unkempt appearance and failed to attend to matters of personal hygiene, had refused to leave his home for long periods of time, and had claimed to be the Messiah.

The evidence offered by the state in derogation of the defendant’s affirmative defenses consisted of the cross-examination of the defendant’s witnesses and testimony from two rebuttal witnesses, a Bridgeport police detective and a psychiatric nurse, along with certain documentary evidence. On cross-examination, family members of the defendant conceded that he was not a violent person, that he had been able to change certain behavior patterns when requested to do so, that he had received a promotion at his place of employment, and that he had exhibited no unusual conduct on the day of the shooting.

On cross-examination, More testified that he recalled no aggressive or violent behavior by the defendant during his six month hospitalization at Whiting. More also acknowledged that, during the defendant’s hospitalization, he had been at all times properly oriented as to time and place, that he had admitted the wrongfulness of his conduct, that he had been able to follow instructions and to conform his conduct to the rules and regulations of the institution, that he had participated in special activities at the hospital, serving as his unit’s representative on the editorial committee of the patient newspaper and assisting in the planning of a charity fundraiser, and that he had interacted appropriately with other patients. More acknowledged that a person suffering from schizophrenia is not necessarily unable to distinguish between right and wrong, and he conceded that he could only conjecture as to the defendant’s mental condition at the time of the shooting. He also noted that the defendant had been diagnosed as a cannabis abuser, and that such abuse may trigger or aggravate a psychotic episode. Finally, More testified that the defendant had regularly advised fellow patients on how to manipulate and deceive the staff at Whiting.

On cross-examination, Hoefer agreed that persons suffering from schizophrenia can frequently understand the difference between right and wrong and that they are often able to conform their conduct accordingly. She also acknowledged that the defendant had a longstanding cannabis habit, that he smoked five to ten marijuana cigarettes daily, that he had smoked marijuana on the day of the shooting, and that the use of that drug can aggravate a psychotic episode. Hoefer further testified that she had not had sufficient time to review the entire medical record of the defendant’s hospitalization at Whiting. The third psychiatrist, August, concurred that not all persons suffering from chronic paranoid schizophrenia are unable to distinguish between right and wrong, and that such persons are sometimes able to conduct themselves appropriately. August noted that he had found no documentation of any unusual behavior by the defendant while the defendant had been incarcerated at the Bridgeport correctional center from October 24, 1988, until his confinement at Whiting in March, 1989. August also acknowledged that he had been unaware both that the defendant had concealed the .38 caliber revolver prior to shooting the victim and that the police had found two weapons at the defendant’s residence. He testified that those facts could suggest that the shooting was premeditated and that the defendant had been able to appreciate the wrongfulness of his conduct. Finally, August indicated that the defendant’s mother had told him that the defendant had suffered memory lapses after he smoked marijuana.

The state’s rebuttal case consisted of testimony from Detective James Uliano of the Bridgeport police department and Sueanne O’Brien, a psychiatric nurse at the Bridgeport correctional center, as well as certain records relating to the defendant’s incarceration at the Bridgeport correctional center. Uliano testified that he had been informed by the defendant’s mother that the defendant became “crazy” when he smoked marijuana. O’Brien identified several documents from the Bridgeport correctional center, including a psychiatric evaluation of the defendant that noted that he had twice denied any psychiatric complaints or problems, and a report indicating that the defendant had claimed to be a Rastafarian.

The three judge court acknowledged that the defendant’s behavior prior to October 21,1988, “could be considered unusual, strange, and even antisocial.” The court concluded, however, that most of the conduct attributed to the defendant by his family members appeared to be a manifestation of his religious beliefs. The court also found that the defendant had not revealed that he had heard inner voices until after the shooting, that he had not exhibited any bizarre or unusual behavior on the day of the shooting, that he was capable of conforming his conduct to the requests of family members, and that his advice to other patients at Whiting on how to “fool” the staff revealed a calculating and manipulative personality.

The court, moreover, expressly discounted the testimony of the defendant’s experts, noting that their diagnoses were based on the generally self-serving interview statements of the defendant and his family members. In the court’s view, those experts had failed adequately to account for the defendant’s apparently premeditated attack on the victim, his efforts thereafter to avoid detection and apprehension, and his equally calculated attempts to manipulate the diagnostic staff at Whiting. The court also noted that the defendant’s experts had agreed that persons suffering from paranoid schizophrenia are not necessarily unable to distinguish between right and wrong, and that the expert testimony had failed to demonstrate that the defendant, at the time of the fatal shooting, had been unable to do so. On the basis of these findings, the court rejected the defendant’s affirmative defenses, concluding that the defendant had failed to establish by a preponderance of the evidence that, at the time of the shooting, he had lacked substantial capacity, due to a mental disease or defect, either to appreciate the wrongfulness of his conduct or to conform his conduct as required by law, or that, in the alternative, he had acted under the influence of an extreme emotional disturbance.

“[W]e have repeatedly stated that our review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury, is limited. . . . This court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses on the issue of sanity is determined by the trier of fact. ... In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them.” (Citations omitted; internal quotation marks omitted.) State v. Steiger, 218 Conn. 349, 378-79, 590 A.2d 408 (1991); see also State v. Medina, supra, 228 Conn. 309; State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981).

The three judge court heard and evaluated conflicting evidence concerning the defendant’s sanity at the time of the shooting. Although the defendant’s witnesses testified that the defendant had suffered from a mental illness that had caused him to behave in a strange and eccentric manner in the months leading up to the shooting, concessions elicited from those same witnesses upon vigorous cross-examination by the assistant state’s attorney, together with the evidence introduced by the state, raised substantial questions regarding the observations and conclusions of the defendant’s witnesses. Furthermore, “[bjecause the trier of fact can disbelieve any or all of the evidence on insanity and can construe that evidence in a manner different from the parties’ assertions”; State v. Steiger, supra, 218 Conn. 381; the fact that expert witnesses testified on behalf of the defendant and the fact that the state called none do not establish that the court could not reasonably have found that the defendant failed to prove insanity by a preponderance of the evidence. State v. Medina, supra, 228 Conn. 309-10; State v. Perez, supra, 182 Conn. 608-10. We will not, moreover, substitute our judgment for that of the fact finder with respect to the weight to be given the testimony of the expert and lay witnesses on the issue of the defendant’s sanity. Because the evidence reasonably supported the determination of the court that the defendant had not established his affirmative defense of insanity by a preponderance of the evidence, he was not entitled to a judgment of acquittal as a matter of law.

The defendant has similarly failed to demonstrate that the evidence required the court to accept his alternative affirmative defense of extreme emotional disturbance. In order to prevail on that defense, the defendant bore the burden of proving, by a preponderance of the evidence, that he had committed the offense under the influence of an extreme emotional disturbance, and, that there was a reasonable explanation or excuse for his extreme emotional disturbance. In interpreting the meaning of the phrase “extreme emotional disturbance,” we have stated that the trier of fact must be persuaded that: “(1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Forrest, 216 Conn. 139, 147-48, 578 A.2d 1066 (1990); State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979). These guidelines are “neither conclusive nor exclusive, however, for ‘[i]n the final analysis . . . the ultimate determination of the presence or absence of extreme emotional disturbance [is] one of fact for the trier, aided by expert testimony of both sides, but left to its own factual determinations.’ ” State v. Forrest, supra, 148, quoting State v. Zdanis, supra, 182 Conn. 395.

There was evidence from which the three judge court could reasonably have determined that the defendant had planned his attack on the victim and that he had calmly and deliberately executed that plan. Moreover, the trial testimony indicated that the defendant had not exhibited any behavior on the day of the shooting to suggest that he had killed the victim in a fit of rage or passion, or under the influence of a similarly extreme emotion. Furthermore, the evidence permitted the court to find that the defendant had not killed the victim in the delusional belief that the victim had sexually assaulted the defendant’s girlfriend, or that, even if the defendant had acted under such a delusion, he was not also acting under the influence of an extreme emotional disturbance. We conclude, therefore, that the evidence provided a sufficient basis for the three judge court to reject the defendant’s affirmative defense of extreme emotional disturbance.

The judgment is affirmed.

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

Berdon, J., with whom Katz, J.,

joins, concurring. I concur in the result.

The facts of this case vividly display the injustice that results from this court’s recent decision that the state constitution can countenance the artificial compartmentalization of the issues of intent to commit a crime and the insanity of the defendant. State v. Joyner, 225 Conn. 450, 457, 625 A.2d 791 (1993) (upholding under the state constitution the placement of the burden to disprove sanity on the defendant by a preponderance of the evidence). As I pointed out in my dissent in Joyner, “[n]ot only does the insanity defense undermine the intent necessary to commit the crime, but sanity and intent are so interrelated that sanity necessarily becomes an element of the crime.” Id., 486 (Berdon, J., dissenting). I also quoted Justice Brennan’s compelling reasoning in his dissent in Rivera v. Delaware, 429 U.S. 877, 880, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976): “Like the state rule invalidated in Mullaney [v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975)], which implied malice unless the accused negated it, the plea of insanity, whether or not the State chooses to characterize it as an affirmative defense, relates to the accused’s state of mind, an essential element of the crime, and bears upon the appropriate form of punishment. Nor is it sufficient after Mullaney to say, as the Court did in Leland [v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952)], that a State may characterize the insanity defense as it chooses. [The United States Supreme Court] said in Mullaney that the requirement of [In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970),] that the State prove all elements of the crime was one of substance, not limited to a State’s definition of the elements of the crime . . . .’’(Internal quotation marks omitted.) State v. Joyner, supra, 484 (Berdon, J., dissenting). Accordingly, it is clear to me that like intent; State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992); the mental capacity of the person to commit the crime must be proven by the state beyond a reasonable doubt.

Of course, under a requirement that the state has the burden of proving the requisite mental capacity under General Statutes § 53a-13, the state could not prevail in the present case. As the majority points out, three psychiatrists testified at the defendant’s trial—Joseph More from the state’s Whiting Forensic Institute; Ann Hoefer, who had been retained by the state but whose opinion did not support the state; and Jeremy August. All three testified that the defendant suffered from chronic paranoid schizophrenia and that his beliefs were illogical, irrational and delusional. Although More did not address whether the defendant’s insanity had compelled him to murder the victim, he did testify regarding his evaluation and treatment, including medication, of the defendant during the five month period that it took to restore his competency to stand trial. Both Hoefer and August testified that, in their clinical opinion, the defendant’s hallucinations and delusional thinking caused him to kill the victim. For example, as the majority points out, it was Hoefer’s clinical opinion that “on the day of the shooting, the defendant had experienced a hallucination in which two men had restrained the defendant’s girlfriend . . . while [the victim] sexually assaulted her, and that this hallucination had compelled the defendant to kill the victim.” The state did not present the testimony of a single psychiatrist or psychologist to challenge those three witnesses, but relied on lay witnesses, skillful cross-examination and the fact that the defendant had the burden of proof on the issue.

As I pointed out in my dissent in State v. Medina, 228 Conn. 281, 334 n.15, 636 A.2d 351 (1994), “[m]ental health issues in regard to the criminal law have not fared well” in the recent past. See State v. Stanley, 223 Conn. 674, 689, 613 A.2d 788 (1992) (refusal to review under state constitution whether state is required to prove beyond a reasonable doubt that the defendant’s confession was voluntary); State v. Raguseo, 225 Conn. 114, 126-28, 622 A.2d 519 (1993) (defense of extreme emotional disturbance is determined from the viewpoint of a “reasonable” person in the defendant’s situation); State v. Joyner, supra, 225 Conn. 472; State v. Medina, supra, 296 (refusal to reach issue under state constitution of whether to admit incriminating statements made while the defendant was mentally ill). Today’s decision demonstrates for all practical purposes the irrelevance of the defendant’s mental capacity to commit the crime, because the defendant has been held responsible and punished on the basis of evidence that clearly raises reasonable doubt as to his sanity at the time of the commission of the crime.

Because I must accept the majority opinion in Joyner as our current law, and since the defendant does not in the present case seek to revisit that four to one decision, I am compelled to concur in the result. Nevertheless, it is absolutely clear to me that, under the facts of this case, Mr. Patterson should not have been found guilty and sentenced to a term of forty-five years in prison. Rather, he should have been hospitalized in order to receive treatment for his mental illness. Justice Zephaniah Swift wrote more than one hundred fifty years ago that “it is the reason of man that makes him accountable for his actions, and where there is no reason there is no crime . . . .” 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 361.

       General Statutes § 53a-54a provides in relevant part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.”

       The defendant appeals directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony . . . for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       General Statutes § 53a-13 provides in relevant part: “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription.”

       Practice Book § 4061 provides in relevant part: “If the court deems it necessary to the proper disposition of the cause, it may remand the case for further articulation of the basis of the trial court’s factual findings or decision.”

       Clark testified that he had not known that the defendant had been in possession of a handgun until he observed the defendant running from the car after the shooting.

       Kurt Nolte, the pathologist who had performed the autopsy on Wright, estimated that the bullet had been fired from a distance of between one inch and four feet from Wright’s head.

       General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”

       The defendant was hospitalized at Whiting from March 2, 1989, until August 1, 1989.

       “[T]he determination of the reasonableness of the explanation or excuse for the emotional disturbance must be measured from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be.” State v. Steiger, supra, 218 Conn. 385; see also State v. Ortiz, 217 Conn. 648, 656-58, 588 A.2d 127 (1991).