source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    JOSEPH WALSH, JR., ET AL. v. TOWN OF STONINGTON WATER POLLUTION CONTROL AUTHORITY ET AL.
    (SC 15977)
    Callahan, C. J., and Norcolt, Katz, Palmer and Peters, Js.

      Argued June 2
    officially released August 24, 1999

      Timothy S. Fisher, with whom were Patrick Caruso and, on the brief, Charles Ray, for the appellants (defendants).

      Gilbert Shasha, with whom was Conrad Ost Seifert, for the appellees (plaintiffs).

      Mary-Michelle U. Ilirschoff filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

      John E. Hudson filed a brief for the Sierra Club as amicus curiae.
   Opinion

NORCOTT, J.

The defendants, the town of Stonington water pollution control authority and the town of Stonington, appeal from a jury verdict in favor of the plaintiffs, Joseph Walsh, Jr., Claire Walsh, James Stewart and Ruth Stewart, awarding them damages in the framework of a common-law private nuisance cause of action for harm caused by odors emanating from the defendants’ operation of a sewage treatment plant (plant) on land located near the plaintiffs’ residences. In this appeal, the defendants claim that the trial court improperly: (1) instructed the jury that it could find the “unreasonable use” element of the nuisance action based solely on harm to the plaintiffs, instead of the jury being required to balance the harm to the plaintiffs against such factors as the social utility of the defendants’ use of the land in conformity with the mandate of the department of environmental protection (department); (2) refused to direct a verdict for the defendants despite the fact that the plaintiffs’ nuisance claim was barred by collateral estoppel because of prior findings concerning the land by the department; (3) failed to dismiss the action even though the defendants are immune from common-law nuisance actions when they engage in conduct mandated by law and approved by permit; and (4) granted each of the four plaintiffs a set of peremptory challenges despite the fact that, as married couples who jointly own the respective properties, they had a unity of interest such that under General Statutes § 51-241, each couple should have been granted only a single set of peremptory challenges. We affirm the judgment of the trial court on all issues.

The record discloses the following relevant facts. The plaintiffs, who are two married couples living on parcels of land abutting the defendants’ plant brought an action against the defendants alleging, inter alia, that they had created, maintained and permitted a continuing nuisance to exist that harmed the plaintiffs’ respective properties. The manifestation of the alleged nuisance consisted of insects and unreasonable odors that arose from the operation of the plant.

Shortly after the plant began processing septage, “the [water pollution control authority] applied to the [department] for a renewal of its discharge permit. See General Statutes § 22a-430. The [commissioner of environmental protection (commissioner)] appointed a hearing officer, who held a public hearing at which several citizens objected to the permit on the ground that the treatment plant was a source of odors. After the close of the hearing, one or more of the citizens filed a petition for intervention pursuant to General Statutes § 22a-19, asserting that the odors from the treatment plant constituted unreasonable pollution under the [Connecticut Environmental Protection Act (act)]. The petition was granted, and the hearing officer considered the substantive allegations therein.

“In his proposed final decision, the hearing officer found that the evidence in the record did not support the conclusion that the odors constituted unreasonable pollution. The hearing officer also determined that there was no reasonable or prudent alternative to the continued operation of the treatment plant. Accordingly, the hearing officer recommended the renewal of the permit.

“At oral argument as to whether the [commissioner] should accept the hearing officer’s proposed final decision, the [water pollution control authority] requested that the hearing be reopened to allow [it] to submit evidence regarding the allegations in the intervenors’ petition. The [commissioner] denied this request and subsequently issued his final decision on the [water pollution control authority’s] application.

“In his final decision, the [commissioner] did not accept the hearing officer’s proposed finding that the odors did not constitute unreasonable pollution under the act. The [commissioner], instead, determined that the testimony at the public hearing supported a finding of unreasonable pollution. The [commissioner] nevertheless issued the permit, with a condition addressing the odor problems, because there was no feasible and prudent alternative to the continued operation of the plant. Subsequently, after the [water pollution control authority] had agreed to undertake certain measures to address the odors, an administrative consent order was substituted for that condition and the permit was reissued without any condition relevant to the odor problem.” Water Pollution Control Authority v. Keeney, 234 Conn. 488, 490-91, 662 A.2d 124 (1995).

At trial, evidence was presented including, inter alia, the testimony of the four plaintiffs that, at various times, the plant emitted sewage odors, a rotten egg-like odor, diesel odors, a sweet odor and a chlorine odor. The presence of these odors caused symptoms such as coughing, vomiting, headaches, and a burning sensation to the lips and eyes. According to the complaint, the odors became intolerable by the summer of 1990. The case went to trial in September, 1997.

After a trial, the jury returned a verdict for the plaintiffs. In accordance with that verdict, the trial court ordered the defendants to pay damages to the plaintiffs in the amount of $675,000. Following the trial court’s denial of their motions to dismiss and to set aside the verdict, the defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). Additional facts will be provided as necessary.

I

The defendants first contend that the trial court improperly instructed the jury on the “unreasonable use” element of common-law private nuisance. Specifically, the defendants argue that the charge was improper because the trial court failed to instruct the jury expressly that, in determining the reasonableness or unreasonableness of the defendants’ use of the land, the jury was required to balance the harm to the plaintiffs against such factors as the social utility of the defendants’ use of the land in conformity with the mandate of the department. We disagree with the defendants’ argument.

The trial court gave the following instruction to the jury concerning unreasonable use. “To establish a nuisance, the plaintiffs must prove certain things. The first is that the condition was such that in its very nature was likely to inflict harm by producing odors or insects in such a manner as to unreasonably interfere with [the] plaintiffs’ enjoyment of each of their properties.

“The second requirement is that the condition was a continuing one. By that, I mean simply that it must be more than a temporary condition springing from a particular or isolated act or failure to act on the part of the defendants, that it has to have continued in existence for some appreciable length of time, continuing as opposed to temporary, is what this element is about.

“A third requirement which must be met is that the use made of the property by the defendants was unreasonable or unlawful. Now there’s no doubt that the [defendants were] making a lawful use of the property. You need give no thought to that requirement, but you must decide whether the use the town was making of the property was a reasonable use. You must consider the location of the condition and any other circumstances that you find proven which indicate whether the defendants [were] making a reasonable use of the property. Now, that’s not to suggest that the mere use of the property for a sewer treatment plant is reasonable or unreasonable. Clearly, that’s a reasonable use of property and the plaintiffs don’t claim otherwise. So although this is phrased in our law as a separate and third requirement, if you don’t find that the plant is producing odors or insects in such a manner as to unreasonably interfere with the plaintiffs’ enjoyment of their property, then you don’t really need to worry about the third [burden]. If you find that the plant is producing odors — or was or is producing odors or insects, that is the use of the property that you will find that is either reasonable or unreasonable. [The] [p]laintiffs must prove that the use of the property as they have proven the property to be used was — to have been used was unreasonable, and that’s [the] plaintiffs’ third burden.

“The fourth requirement is that you must determine whether the harm which came to the plaintiffs was harm which the condition caused by the defendants had a natural tendency to produce. If the plaintiffs [have] proved to you by a fair preponderance of the evidence the existence of all the circumstances that the condition on the defendants’ property was such that in its very nature it was likely to inflict injury upon the person or upon the property of the plaintiffs, that the condition was a continuing one, that the use that the defendants [were] making of its property was not a reasonable one and that the harm, which came to the plaintiffs was harm which the condition had a natural tendency to produce, then the plaintiffs [have] established the existence of a nuisance.”

The trial court went on to explain each of the interrogatories to the jury. Concerning interrogatory number five, which addressed the unreasonable use element of the nuisance claim, the trial court stated, “[n]umber five: ‘Was the use of its property by the defendants unreasonable?’ Yes or no as you see the evidence. Remember, we’re not asking you whether its reasonable to operate a sewer treatment plant which doesn’t create any odors. You won’t have gotten to question five unless you have found out that — unless you’ve said yes to the fact that the plaintiffs either [have] proven odors which unreasonably interfered or insects which unreasonably interfered, or both. So if you already found that, the reasonableness you’re determining is the reasonableness of the property in the context of producing odors and/or insects.”

Shortly after the start of deliberations, the jury requested another explanation of interrogatory number five concerning unreasonable use. In response to that request, the trial court first reminded the jury that “you won’t get to number five until you have . . . dealt with one and two, and then if you’re still going, you deal with three and four. It’s in that context that I wrote number five. If I had written number five thinking you were going to deal with that first, it would have been at least twenty lines long. So . . . my charge to you is that the interrogatories are numbered for a reason, and I don’t know and I’m not asking you whether you are already at number five. I’m simply telling you that by the time you get to number five, you will have done the following things if you’re following my instructions . . . .” With that preface, the trial court then again explained the process of answering the first four interrogatories.

Having reached interrogatory number five, the trial court stated: “Then in that context, having answered ‘yes’ to those four, you then turn to the question — ‘Was the use of its property by the defendants unreasonable?’ — and you will determine whether that was unreasonable or not based on the use of the property that you had determined existed by your answers to the other questions. So I hope that’s clear. It really was carefully designed, but it only works if you do number one before you do number two, and you do number three and four before you do number five. And because you haven’t been out very long, I’m guessing that you might have been talking idly and getting a global view before getting in . . . .” The trial court then indicated that if that understanding of the jury’s request was not correct, the jury could leave the courtroom and write another note indicating that the jurors required further explanation of interrogatory number five at that point.

The defendants take issue with four particular statements of the trial court made over the course of the instructions to the jury. The defendants first cite to the statement as to whether “the mere use of the property for a sewer treatment plant is reasonable or unreasonable,” when the court noted that “[cjlearly, that’s a reasonable use of property and the plaintiffs don’t claim otherwise.” The second statement to which the defendants point in support of their claim is that “[i]f you find that the plant is producing odors — or was or is producing odors or insects, that is the use of the property that you will find is either reasonable or unreasonable.” Third, in the initial instruction, the defendants take issue with the court’s statement during the specific explanation of the interrogatory concerning unreasonable use that “[y]ou won’t have gotten to question five unless you have found out that — unless you’ve said yes to the fact that the plaintiffs either [have] proven odors which unreasonably interfered or insects which unreasonably interfered, or both. So if you already found that, the reasonableness you’re determining is the reasonableness of the property in the context of producing odors and/or insects.” Lastly, the defendants take exception to the trial court’s statement during its supplemental instruction, that “having answered ‘yes’ to those four [interrogatories], you then turn to the question — ‘Was the use of its property by the defendants unreasonable?’ — and you will determine whether that was unreasonable or not based on the use of the property that you had determined existed by your answers to the other questions.”

The defendants assert that in light of these statements, the trial court failed to inform the jury of the necessity of balancing the benefits of the activity against the harm complained of by the plaintiffs. Instead, according to the defendants, the instruction suggested to the jury that it should consider only the alleged harm in determining whether the defendants’ use of the land was reasonable. As a consequence, the defendants claim that the need for the plant to control water pollution was not a factor before the jury in determining the reasonableness of the defendants’ use of the land.

Moreover, the defendants contend that a proper instruction as to the unreasonable use element of a nuisance claim must include a balancing between the benefits or social utility of the plant for the health and welfare of town residents against the alleged harm suffered by the plaintiffs. Specifically, the defendants assert that “[w]here a town is undertaking an activity in furtherance of a state goal and pursuant to a state mandate, the charge to the jury should protect the town from liability for actions that are necessary to carry out the state’s directives. Therefore, if the case is remanded . . . the charge [should] instruct the jury to find a nuisance based only on activities not part of the state mandate.”

“In reviewing the defendant’s claim, we adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984). [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Holbrook v. Casazza, 204 Conn. 336, 351-52, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988); Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994); Siladi v. McNamara, 164 Conn. 510, 515, 325 A.2d 277 (1973). We do not critically dissect the charge in order to discover possible inaccurate statements. Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 566, 562 A.2d 1100 (1989). As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury; Kelley v. Bonney, 221 Conn. 549, 584, 606 A. 2d 693 (1992); we will not view the instructions as improper. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial’s outcome. Id., 586 . . . .” (Citation omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 280-81, 640 A.2d 74 (1994).

An analysis of the defendants’ claims requires us to review the contours of the unreasonable use element of a common-law private nuisance cause of action. As we previously have stated, “ ‘the law will not interfere with a use that is reasonable.’ Hurlbut v. McKone, 55 Conn. 31, 42, 10 A. 164 [1887]. ‘It is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor.’ Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 [1933]. A fair test of whether a proposed use constitutes a nuisance is ‘the reasonableness of the use of the property in the particular locality under the circumstances of the case.’ Wetstone v. Cantor, 144 Conn. 77, 80, 127 A.2d 70 [1956].” (Emphasis added.) Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 510, 218 A.2d 383 (1966). The test of unreasonableness is “essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards.” (Internal quotation marks omitted.) O’Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 617-18, 244 A.2d 372 (1968), quoting 4 Restatement, Torts § 826, comment (b) (1939); see Nair v. Thaw, 156 Conn. 445, 452, 242 A.2d 757 (1968). In Maykut v. Plasko, 170 Conn. 310, 314, 365 A.2d 1114 (1976), we again referred to the weighing process described in the Restatement, in determining whether the trial court had applied the proper test to determine the reasonableness of the defendants’ use of their land. We concluded that the trial court had applied the proper test where “[t]he facts outlined in [the] memorandum of decision and set out in the finding include a consideration not only of the interest of the plaintiff, but of the defendants also.” Id., 315.

The charge to the juiy in the present case was consistent with our prior holdings on the element of unreasonable use. When viewed in the context of the charge as a whole, the jury instructions concerning unreasonable use conveyed to the jury that it was to take into consideration and weigh the conflicting interests involved. The trial court stated at the outset of the explanation of the unreasonable use element of the claim that the jury “must consider the location of the condition and any other circumstances that you find proven which indicate whether the defendants [were] making a reasonable use of the property.” (Emphasis added.) This statement indicates that the jury must take into account a multiplicity of factors. Reference to the fact that the use of the property for a plant is a reasonable use makes clear that the use of the defendants’ land to operate a plant is reasonable in and of itself By then noting that the determination of reasonableness is to be made in the context of odors produced by the plant, the trial court underscored that the weighing process for the jury to conduct is of the reasonableness of use in light of the production of unreasonable odors that the jury had determined existed in its answers to the first four interrogatories. We disagree with the defendants, therefore, that the effect of the jury instruction was to remove the interests of the defendants from the jury’s consideration. Rather, we conclude that the trial court’s charge provided a reasonably clear instruction that the jury must consider many factors in determining the reasonableness of use, including the reasonableness of use as a plant that creates certain odors in the course of its operation.

Moreover, the defendants’ arguments regarding the impropriety of the jury instructions necessarily are unpersuasive because they are based on an inaccurate construction of the concept of unreasonable use. We begin by noting that the defendants’ reliance upon the state mandate concerning water pollution control is misplaced. As discussed further in part III of this opinion, the fact that operating a plant is permissible, or even necessary, on the land in question does not necessarily shield the defendants from liability for harm to the land of others that may result from that use. “A municipality which creates a nuisance causing damage to the land of another is not excused from liability on the ground that the act is lawful in itself if, under all the circumstances, it is unreasonable.” Cyr v. Brookfield, 153 Conn. 261, 265, 216 A.2d 198 (1965). As a result, we reject the defendants’ claim that “[w]here a town is undertaking an activity in furtherance of a state goal and pursuant to a state mandate, the charge to the jury should protect the town from liability for actions that are necessary to carry out the state’s directives.”

The defendants also place much emphasis on our prior statement in Cyr that “[a]n intentional invasion of another’s interest in the use and enjoyment of land is unreasonable under the rule stated in § 822 [of the Restatement of Torts], unless the utility of the actor’s conduct outweighs the gravity of the harm.” (Internal quotation marks omitted.) Cyr v. Brookfield, supra, 153 Conn. 265-66, quoting 4 Restatement, supra, § 826. On the basis of this statement, the defendants assert that the element of unreasonable use cannot be met in this case unless the harm to the plaintiffs outweighs the social utility of a plant, that is, the harm outweighs the benefit to the residents of the town as a whole. The comments in the Restatement (Second) of Torts on utility versus gravity of harm do not, however, support the interpretation asserted by the defendants. The Restatement (Second) provides the example that “[e]ven though the noise and smoke from a factory cannot feasibly be eliminated, the utility of the factory is not weighed in the abstract. In a suit for damages, the legal utility of the activity may also be greatly reduced by the fact that the actor is operating the factory and producing the noise and smoke without compensating his neighbors for the harm done to them. The conduct for which the utility is being weighed includes both the general activity and what is done about its consequences.” 4 Restatement (Second), Torts § 826, comment (e) (1979). The defendants’ understanding of the balancing requirement does not involve simply the weighing of factors to determine reasonableness as the law requires. Instead, application of the defendants’ approach would result in an all-or-nothing scenario wherein the plaintiffs could never prove unreasonable use because their harm could never trump the undisputed need for a town plant. In other words, the plaintiffs would be expected to bear all of the harm without compensation for their damages, while receiving no greater benefits from the continued operation of the plant than any other resident of the town. Such an interpretation goes far beyond the necessary weighing process to be undertaken by the jury.

We conclude that the jury instructions were adequate to guide the jury properly in the determination of the issues.

II

The defendants next claim that the trial court improperly refused to direct a verdict for them on the grounds of collateral estoppel. Specifically, the defendants contend that the nuisance claim was barred by collateral estoppel because: (1) the department previously had found that there was no “feasible and prudent alternative” use to which the defendants could put the land; (2) this finding is equivalent to a finding that the use was not “unreasonable”; and (3) one of the plaintiffs intervened in the department hearings in question but did not appeal its decision. We disagree.

The department’s findings concerning the plant were the subject of litigation that previously had come before this court in Water Pollution Control Authority v. Keeney, supra, 234 Conn. 488. The pertinent findings were that “[i]n his final decision, the [commissioner] did not accept the hearing officer’s proposed finding that the odors did not constitute unreasonable pollution under the act. The [commissioner], instead, determined that the testimony at the public hearing supported a finding of unreasonable pollution. The [commissioner] nevertheless issued the permit, with a condition addressing the odor problems, because there was no feasible and prudent alternative to the continued operation of the plant.” Id., 491.

We begin by setting out the fundamental principles of collateral estoppel. “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990). Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment. Scalzo v. Danbury, 224 Conn. 124, 128, 617 A.2d 440 (1992). Also, the issue must have been fully and fairly litigated in the first action. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).” (Internal quotation marks omitted.) Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 116-17, 728 A.2d 1063 (1999), quoting State v. McDowell, 242 Conn. 648, 655, 699 A.2d 987 (1997).

We conclude that the issue of unreasonable use in the context of the private nuisance claim could not have been fully and fairly litigated in the course of the department’s proceedings because, for purposes of collateral estoppel, it is not the same issue as that resolved by the department’s determination that there was no feasible and prudent alternative to the operation of the plant. As we discussed in part I of this opinion, the defendants are incorrect in their assertion that, if the operation of the plant was authorized by the department, the defendants should be protected from liability for such operation. In a similar fashion, the defendants now claim that “the [department’s] finding that there was no feasible and prudent alternative to the . . . plant means that the use of the town’s land for the plant could not be an unreasonable use.”

The determination of whether there is a feasible and prudent alternative to the continued operation of the plant is made pursuant to § 22a-19 (b), which provides that “the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.” (Emphasis added.)

In other words, § 22a-19 (b) explicitly provides that a permit will not be renewed in the face of unreasonable pollution if there is a feasible and prudent alternative. In this case, the commissioner determined that there was no feasible and prudent alternative to continued operation of the plant. The determination that there was no such alternative is not, however, preclusive of a concurrent finding that such operation nevertheless causes unreasonable pollution. Indeed, the commissioner in this instance concomitantly found that “the testimony at the public hearing supported a finding of unreasonable pollution.” Water Pollution Control Authority v. Keeney, supra, 234 Conn. 491. Therefore, the commissioner’s determination that there was no other feasible and prudent alternative does not resolve the question of whether the operation of the plant constituted unreasonable use for purposes of a private nuisance claim.

As a result, we are unpersuaded by the defendants’ assertion that the issue of unreasonable use — as the concept relates to a common-law private nuisance cause of action — was fully and fairly litigated in the context of the department’s decision on the defendants’ application for renewal of a sewage discharge permit. Accordingly, we affirm the trial court’s denial of the defendants’ motion for a directed verdict on the grounds of collateral estoppel.

Ill

The defendants’ third claim is that the trial court improperly failed to dismiss the action because the defendants should be protected from common-law nuisance actions when they engage in conduct mandated by law and approved by a department permit. This argument is without merit.

“As long ago as Mootry v. Danbury, 45 Conn. 550, 556 [1878], we said with regard to municipal liability for a nuisance causing damage to real property: ‘A principle of universal application — that every man shall transact his lawful business in such a manner as to do no unnecessary injury to another — compels them to do what they are required to do in a proper manner. In other words, towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, any more than individuals. And if a nuisance is thus created, whereby another suffers damage, towns like individuals are responsible.’ ” Cyr v. Brookfield, supra, 153 Conn. 265.

In the present case, the defendants place great emphasis on the fact that they have been granted a permit from the department to operate the plant. We are also mindful that the operation of such plants generally is consistent with the state policy “to conserve, improve and protect its natural resources and environment and to control air, land and water pollution in order to enhance the health, safety and welfare of the people of the state. . . .” General Statutes § 22a-l. That the defendants have been authorized to operate a plant does not, however, mean that they are therefore free from liability when, as the jury found in the present case, the operation of the plant created a private nuisance from which the plaintiffs suffered damages. Such a conclusion would conflict with the well settled conclusions of this court concerning municipal liability for private nuisances, as well as the plain language of § 22a-430-3 (d) (1) (B) of the Regulations of Connecticut State Agencies concerning water treatment permits, which unambiguously provides that “[t]he issuance of a permit does not . . . authorize any injury to persons or property or invasion of other private rights . . . .” Accordingly, we affirm the trial court’s dismissal of the defendants’ motion to dismiss.

IV

The defendants’ final claim is that the trial court improperly granted each of the four plaintiffs individually a set of peremptory challenges, despite the fact that, as married couples who jointly own the respective properties, they had a unity of interest under § 51-241 such that each couple should have been granted only one set of peremptory challenges. We disagree.

Prior to the selection of the jury, the defendants moved for a finding of a unity of interest among the plaintiffs on the grounds that the plaintiffs consisted of two married couples who live adjacent both to one another and to the plant, and their injuries arose from the same facts. The trial court responded that “[m]y interpretation of [§ 51-241], the unity of interest statute, is that it’s solely within this court’s discretion, and this court finds that these are separate injuries to separate plaintiffs and sixteen peremptory challenges will be accorded to the plaintiffs.”

We begin by setting forth the standard of review applicable to a trial court’s determination as to the number of peremptory challenges to be granted pursuant to § 51-241. Section 51-241 provides in relevant part that “[w]here the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. . . .” (Emphasis added.) The decision of whether several plaintiffs or defendants will be considered a single party for the purpose of making challenges is, therefore, within the discretion of the trial court. See Glass v. Peter Mitchell Construction Leasing & Developing Corp., 50 Conn. App. 539, 543, 718 A.2d 79, cert. granted, 247 Conn. 938, 723 A.2d 317 (1998); (appeal withdrawn July 6, 1999); Beach v. Regional School District Number 13, 42 Conn. App. 542, 549, 682 A.2d 118, cert. denied, 239 Conn. 939, 684 A.2d 710 (1996).

The defendants contend, however, that the proper scope of review to be applied under the circumstances of the present case is de novo because the trial court’s determination was not a discretionary decision of whether to limit the number of peremptory challenges granted to parties with a unity of interest pursuant to § 51-241, but an interpretation of the meaning of the term “unity of interest” itself. We are unpersuaded.

In Beach v. Regional School District Number 13, supra, 42 Conn. App. 549, the Appellate Court in interpreting § 51-241, determined that “[t]he legislative history of [Public Acts 1993, No. 93-176] demonstrates that the decision of whether parties share a ‘unity of interest’ lies in the trial court’s discretion.” In that case, the Appellate Court concluded that “the trial court had sufficient evidence to hold that the individual defendants shared no unity of interest with each other. Consequently, the trial court did not abuse its discretion by ruling that each individual defendant should have three peremptory challenges.” Id., 552. We agree with the Appellate Court’s construction that under § 51-241, the trial court has discretion to determine the complete question of whether several plaintiffs or several defendants will be considered a single party, that is, whether there is a unity of interest among them, and if there is, whether that unity of interest will trigger a limit on the number of peremptory challenges to be granted. It would be illogical to conclude that the trial court has discretion to limit the number of peremptory challenges where there is a unity of interest, but it has no discretion in determining the underlying question of whether such unity exists.

In the present case, the trial court understood that the determination concerning the number of peremptory challenges to be awarded was within its discretion, and it made a determination accordingly. Given that the case entailed allegations of unique and personal harm suffered by four distinct persons over a span of a number of years, we conclude that the trial court did not abuse its discretion in granting a set of peremptory challenges to each plaintiff.

The judgment is affirmed.

In this opinion the other justices concurred.

       The complaint originally included the department of environmental protection as a defendant, but the plaintiffs later withdrew their claims against the state.

       The original complaint contained five counts. Only the claim for private nuisance, however, went to the jury.

       The water pollution control authority in the present case subsequently brought an appeal to this court concerning particular findings made in the course of the renewal of its sewage discharge permit. Specifically, the water pollution control authority “appealed to the trial court, claiming that the finding of the [commissioner of environmental protection (commissioner)] that the odor problem constitutes unreasonable pollution was improper in several respects. The trial court granted the [commissioner’s] motion to dismiss the administrative appeal for lack of subject matter jurisdiction, on the ground that the [water pollution control authority] was not aggrieved by the final decision of the [commissioner granting the renewal permit].” Water Pollution Control Authority v. Keeney, 234 Conn. 488, 492, 662 A.2d 124 (1995). The water pollution control authority appealed to this court, and we affirmed the judgment of the trial court. Id., 498. We concluded that the water pollution control authority had not met the test for aggrievement because, although the commissioner had made a finding of unreasonable pollution, he also had granted the renewal application. Id. We include those portions of the factual and procedural history of that case that are relevant to the present, appeal in the text of this opinion following this footnote.

       It is well settled that to prevail on a cause of action for private nuisance, a plaintiff must prove four elements: “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages.” (Emphasis added.) Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). In the present case, the plaintiffs conceded that the town’s use of the land for the plant was lawful and, therefore, the determinative portion of this element was whether the use of the plant was unreasonable.

       Because our review of the charge entails viewing it as a whole; Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984); we also include the portions of the charge that immediately surround the instructions on the element of unreasonable use.

       The interrogatories submitted to the jury provided as follows: “(1) Did the plaintiffs prove the defendants’ Pawcatuck Treatment Plant produced odors which unreasonably interfered with plaintiffs’ enjoyment of the their property on River Road?
      Yes ✓ No_
      “(2) Did the plaintiffs prove that the defendants’ Pawcatuck Treatment Plant produced insects which unreasonably interfered with plaintiffs’ enjoyment of their property?
      Yes_No ✓
      “If the answer to either (1) or (2) is yes, continue on to Interrogatory Number (3). If the answer to both (1) and (2) is no, stop and complete the defendants’ verdict form.
      “(3) Did the production of odors or insects at the defendants’ plant have a natural tendency to inflict harm by interfering in plaintiffs’ use of their property?
      Yes ✓ No_
      “(4) Was the condition created by the defendants a continuous one?
      Yes ✓No_
      “(5) Was the use of its property by the defendants unreasonable?
      Yes ✓ No_
      “(6) Was the existence of the condition the proximate cause of the plaintiffs’ damages?
      Yes ✓ No_
      “If the answers to Numbers (3), (4), (5) and (6) are yes, determine fair, just and adequate compensation for each plaintiff and complete the plaintiffs’ verdict form.

        “If the answer to any of Numbers (3), (4), (5) and (6) is no, complete the defendants’ verdict form.” (Emphasis in original.)

       See footnote 6 of this opinion for the text of the interrogatories.

       Section 822 of the Restatement (Second) of Torts now provides in relevant part: “One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is . . . (a) intentional and unreasonable . . . .”

       In a similar vein, the town also cites to 2 D. Wright & W. Ankerman, Connecticut Jury Instructions (4th Ed. 1993) § 544, p. 88C, for the proposition that “[i]f there was nothing which the defendant could reasonably have done to guard against the danger, it cannot be held to have created a nuisance.” This proposed instruction, and the case law from which it was generated, applies to claims of public nuisance wherein the condition or conduct complained of interfered with a right common to the general public. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). Without addressing the question of whether there was anything further that the town could have done to reduce or eliminate the production of odors, we simply note that such a requirement is irrelevant in the context of the present case.

       General Statutes § 51-241 provides: “Peremptory challenges in civil actions. On the trial of any civil action to a jury, each party may challenge peremptorily three jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this section, a ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.”


author: PALMER, J.

text:
    STATE OF CONNECTICUT v. JOSE DELVALLE
    (SC 15863)
    Borden, Norcott, Palmer, McDonald and Peters, Js.

      Argued March 24
    officially released August 24, 1999

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, JohnF. Blawie, assistant state’s attorney, and Timothy J. Sugrue, executive assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

After a jury trial, the defendant, Jose Delvalle, was convicted of murder in violation of General Statutes § 53a-54a (a) and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a)

and 53a-48. The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed to this court. On appeal, the defendant claims that the trial court improperly instructed the jury on the presumption of innocence and reasonable doubt in violation of his rights under the sixth and fourteenth amendments to the United States constitution. We reject the defendant’s claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In January, 1996, the defendant and two other men known as “Peanut” and “Cano” were engaged in the sale of illegal drugs near the Greene Homes housing project in Bridgeport. The victim, Alrick Mitchell, recently had begun to sell drugs in the same area, which the defendant and his cohorts considered their territory.

On the afternoon of January 3, 1996, the victim and two Mends, Luzanne Rosado and Juan Vasquez, were standing in front of Rosado’s home, which bordered the Greene Homes housing complex. Three men wearing black hoods and sunglasses, subsequently identified as the defendant, Peanut and Cano, approached the victim. The defendant told the victim to move away from Rosado’s property, and pulled out what appeared to be a TAC 9 assault weapon from under his coat to show the victim. The defendant then asked the victim if he had been selling drugs in the neighborhood. The victim replied that he had not. The victim then tried to retreat into Rosado’s home, but Rosado, who indicated that she did not want any trouble, prevented him from doing so. The defendant then told the victim “you got to give me respect.”

The defendant and his two companions pressured the victim into accompanying them as they left Rosado’s yard. The victim walked a short distance with the three men, but then turned and ran. All three men fired their weapons at the fleeing victim. Two bullets struck the victim in the back of his head and neck, killing him. Eleven spent cartridge casings and one spent bullet were found on the ground in the area where the victim had been shot.

On appeal, the defendant contends, first, that the trial court, during its instructions on the presumption of innocence and reasonable doubt, improperly charged the jury that the principle requiring the state to establish guilt beyond a reasonable doubt is a “rule of law . . . made to protect the innocent and not the guilty.” The defendant claims that this charge impermissibly undermined the presumption of innocence and diluted the state’s burden of proof in violation of the defendant’s constitutional rights to due process and to a jury trial. The defendant’s second claim is that the trial court, in instructing the jury on reasonable doubt, violated his rights to counsel and due process by informing the jury that reasonable doubt is not “a doubt suggested by the ingenuity of counsel . . . .”

In reviewing claims of improper jury instructions, we are guided by well established principles. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466 (1999); accord State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

With respect to the defendant’s first claim of instructional error, we recently considered, and rejected, a claim that it was constitutionally improper for the trial court to have instructed the jury that the requirement of proof beyond a reasonable doubt is a “rule of law . . . made to protect the innocent and not the guilty . . . P State v. Schiappa, supra, 248 Conn. 168. In Schiappa, we addressed a challenge to instructional language virtually identical to that used by the trial court in this case. See id., 170-71. In this case, the trial court instructed the jury: “Now . . . the state does not desire the conviction of an innocent person or any person whose guilt upon the evidence is in the realm of reasonable doubt. The state has as much concern in having an innocent person acquitted as in having a guilty person punished. But for the safety and well-being of all persons of the state, for the protection of life and property, the state, of course, is concerned in securing the conviction of persons who have been proven by the evidence to have been guilty of committing . . . the crime or crimes charged beyond a reasonable doubt.

“It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof of guilt beyond a reasonable doubt. But you must keep in mind that this rule of law is made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render such verdicts. ” (Emphasis added.)

In rejecting the defendant’s claim in Schiappa, we relied on the fact that, as in this case, the “challenged

portion of the instruction was immediately preceded by language underscoring the presumption of innocence and the state’s burden of proof’; id., 172; and that “the allegedly improper language was immediately followed by an instruction that again emphasizes these two critical constitutional principles . . . .’’Id. We also observed in Schiappa that the trial court, both in its preliminary instructions prior to trial and in its final instructions to the jury at the conclusion of the trial, had “repeatedly apprised the jury [in clear and legally correct terms] regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt.” Id. As in Schiappa, the trial court in this case repeatedly and accurately explained those principles in its preliminary and final instructions to the jury. This case, therefore, is indistinguishable from Schiappa.

The defendant has provided no persuasive reason why we should reconsider our determination of this issue in Schiappa. Accordingly, we conclude, as we did in Schiappa, that “the trial court’s charge, when viewed in its entirety, adequately apprised the jury that the defendant was entitled to a presumption of innocence unless and until the state proved [him] guilty beyond a reasonable doubt.” Id., 173. In the absence of any reasonable likelihood of juror confusion regarding the state’s burden and the quantum of proof required for a conviction, the defendant’s constitutional claim must fail. See id., 176-77.

Second, the defendant claims that the trial court improperly instructed the jury that reasonable doubt is not “a doubt suggested by the ingenuity of counsel,” and that that language violated his right to counsel and to a fair trial. We repeatedly “have upheld similar language on the ground that [it] did not, when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise misle[ad] the jury in any way.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); cf. State v. Edwards, 247 Conn. 318, 329-30, 721 A.2d 519 (1998); State v. Hines, 243 Conn. 796, 817-20, 709 A.2d 522 (1998). We reach the same conclusion in this case. We see no reasonable possibility that the challenged language, when viewed in the context of the charge as a whole; see footnote 11 of this opinion; resulted in juror misunderstanding regarding the state’s burden of proving the defendant’s guilt beyond a reasonable doubt. Furthermore, the court informed the jury that reasonable doubt is not a doubt suggested by the ingenuity of counsel or of a juror "not warranted by the evidence.” (Emphasis added.) The phrase “not warranted by the evidence” qualifies the “ingenuity of counsel” language, and renders even more remote any possibility that the jury was misled by the latter phrase. See State v. Hines, supra, 819 n.18 (“[T]he phrase ‘ingenuity of counsel’ is immediately succeeded by the phrase ‘or by a juror and unwarranted by the evidence.’ Such language . . . indicate[s] to the jury that doubt may not be created by an argument of counsel or other jurors that is ingenious, but has no basis in the evidence. It is an accurate statement of the law to say that all findings of fact must be supported by the evidence.”). We, therefore, reject the defendant’s claim that the jury charge was constitutionally infirm.

Although we consistently have rejected constitutional challenges to the “ingenuity of counsel” instruction, we also have urged trial courts to avoid its use in light of the fact that the phrase, “taken in isolation, conceivably could misdirect the jury’s attention . . . .” State v. Taylor, supra, 239 Conn. 504; accord State v. Edwards, supra, 247 Conn. 330 (adhering to admonition in Taylor urging trial courts to avoid further use of phrase “ingenuity of counsel”); State v. Hines, supra, 243 Conn. 817 n.15 (same). To avoid any possibility of juror confusion arising from the use of the phrase, we invoke our supervisory authority over the administration of justice to direct our trial courts to refrain from using the “ingenuity of counsel” language in the future.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “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 . . .

       General Statutes § 53a-48 provides in relevant part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”

       The trial court sentenced the defendant to a total effective sentence of forty years imprisonment.

       The defendant appealed 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, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to have the assistance of counsel for his defense.” These sixth amendment guarantees are made applicable to the states through the fourteenth amendment due process clause. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (right to jury trial); Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right to counsel).

       The fourteenth amendment to the United States constitution provides in relevant part: “No state shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       The defendant also contends that the trial court’s jury instructions violated his rights under the analogous provisions of the Connecticut constitution. Because the defendant has provided no independent analysis of his state constitutional claims, we limit our review to the defendant’s claims under the federal constitution. E.g., State v. Beltran, 246 Conn. 268, 277 n.7, 717 A.2d 168 (1998).

       Because the defendant failed to object to either of these two instructions at trial, he seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in which we stated that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. The record is adequate for our review of the defendant’s claims and, consequently, we address the merits of those claims. As we conclude hereafter, however, the defendant cannot prevail because his claims are not of constitutional magnitude as required by the second prong of Golding.

       The defendant asserts that this case differs from Schiappa because the challenged portion of the court’s instruction was particularly harmful to his case due to the fact that his defense was based largely on the presumption of innocence and the reasonable doubt standard. In support of this contention, the defendant points to his counsel’s contention, during closing argument, that the state had not met its burden of proof beyond a reasonable doubt. We are not persuaded by the defendant’s attempt to distinguish Schiappa. Because the reasonable doubt standard is applicable to ail criminal prosecutions, every defendant is equally entitled to rely on it. The extent to which counsel emphasizes that principle in closing argument is irrelevant to the ultimate determination of whether the jury charge, taken as a whole, satisfies constitutional requirements.

       Although, in Schiappa, we rejected the defendant’s constitutional claim, we also acknowledged that “[bjecause the guilty as well as the innocent are entitled to the protections afforded by the presumption of innocence and the reasonable doubt standard, the challenged portion of the charge, when viewed in isolation, gives rise to a danger of juror misunderstanding.” State v. Schiappa, supra, 248 Conn. 175. We, therefore, exercised our supervisory authority over the administration of justice to direct our trial courts to refrain from using such language in future cases. Of course, the trial of this case was concluded prior to the issuance of our opinion in Schiappa.

      The state, in defending the trial court’s charge, maintains that the language disapproved by this court in Schiappa serves the legitimate purpose of deterring jury nullification. This end may be served, however, by the use of other, more appropriate language; indeed, the trial court employed such language in the present case: “If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render such verdicts.” Because we agree with the state that it has a legitimate interest in deterring jury nullification, we expressly approve of, and strongly encourage, the use of this language. Of course, the trial court’s charge also must include forceful language underscoring the importance of the presumption of innocence and the state’s burden of establishing the defendant’s guilt beyond a reasonable doubt.

       The trial court instructed the jury in relevant part as follows: “Now, in this case, as in all criminal prosecutions, the defendant is presumed to be innocent unless and until proven guilty beyond a reasonable doubt. This presumption of innocence was with this defendant when he . . . was first presented for trial on this case. It continues with him throughout the trial, unless and until such time as all [the] evidence produced here in the orderly conduct, of the case considered in light of these instructions of the law and deliberated upon by you in the jury room satisfies you beyond a reasonable doubt that he is guilty.
      “The burden to prove the defendant guilty of the crime of which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the particular crime charged.
      “Now, whether the burden of proof resting upon the state is sustained depends not on the number of witnesses or on the quantity of the testimony, but on the nature and quality of the testimony. Please bear in mind that one witness’ testimony is sufficient to convict if it establishes all of the elements of the particular crime beyond a reasonable doubt. I will now explain to you the concept of reasonable doubt.
      “It has no technical or unusual meaning. The meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It is not a guess, a surmise or conjecture, nor is it a doubt suggested by the ingenuity of counsel or of a juror not warranted by the evidence. It is such a doubt as in serious affairs that concern you, you would pay heed, that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.” (Emphasis added.)

       In addition to his claim under Golding-, see footnote 8 of this opinion; the defendant also seeks to prevail on his claim under the plain error doctrine. See Practice Book § 60-5. We reject the defendant’s plain error claim in light of our conclusion that the trial court’s instructions did not affect the fairness and integrity of the proceedings or result in manifest injustice to the defendant. See, e.g., State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995) (plain error not implicated unless “the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings” [internal quotation marks omitted]).

       “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [O]ur supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers.” (Internal quotation marks omitted.) State v. Schiappa, supra, 248 Conn. 175-76 n.47.


author: PALMER, J. BERDON, J.,

text:
    LEONARD M. CRONE ET AL. v. CHARLES GILL ET AL.
    (SC 16007)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.
    Argued April 27
    officially released August 24, 1999

      Leonard, M. Crone, the named plaintiff in error.

      Carolyn K. Querijero, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the named defendant in error.

      Eileen M. Geel, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the defendant in error Eve Lenczewski.
   Opinion

PALMER, J.

This case is before us on a writ of error brought by the named plaintiff in error, Leonard M. Crone (plaintiff), an attorney, who seeks reversal of an order of the trial court disqualifying him from any further representation of his client, the plaintiff in error, Alvin Lopes, in Lopes’ pending criminal case. We conclude that the plaintiff lacks standing to challenge the disqualification order and, accordingly, we dismiss the writ of error.

The relevant facts and procedural history are undisputed. In 1993, the plaintiff instituted a civil action on behalf of Dana Crim in Superior Court in the judicial district of Waterbury (Waterbury Superior Court). The plaintiff represented Crim through the completion of the trial of that matter in November, 1995.

Subsequently, in an unrelated criminal case, Lopes was charged with the May 11,1997 assault and stabbing of Crim. The plaintiff thereafter filed an appearance on behalf of Lopes in that criminal case, which was pending in Waterbury Superior Court.

On June 12,1998, assistant state’s attorney Eva Lenczewski moved to disqualify the plaintiff from representing Lopes in light of the plaintiffs prior representation of Crim. The named defendant in error, Judge Charles Gill (trial court), held a hearing at which he canvassed both Crim and Lopes. Lopes expressed his desire to have the plaintiff continue as his attorney despite the plaintiffs prior representation of Crim. Crim, however, expressed discomfort at having his former attorney represent Lopes, and refused to waive the plaintiffs duty of confidentiality. In recognition of a serious potential for a conflict of interest, the trial court, on June 16, 1998, issued an order disqualifying the plaintiff from representing Lopes in the pending criminal matter.

Seeking a reversal of the trial court’s order, the plaintiff brought this writ of error, naming both Judge Gill and Lenczewski as defendants in error. Both defendants filed motions to dismiss the writ of error for lack of subject matter jurisdiction. The dispositive question, as formulated by this court and briefed by the parties, is: “Does [the plaintiff] lack standing to contest the order disqualifying him, or does an attorney have a right to represent a particular client that gives him standing to file a writ of error seeking review of an order disqualifying him from such representation?” We conclude that the plaintiff lacks standing to contest the disqualification order.

The plaintiff contends that he has standing to challenge the trial court’s disqualification order because he has suffered both a loss of income and harm to his reputation. The plaintiff contends that, because the trial court’s disqualification order impaired his protected right to engage in the practice of law, he is entitled to appellate review of that order. The defendants concede that an attorney has a generalized “interest” in practicing law, and that such an interest vests an attorney with certain due process protections. The defendants contend, however, that an attorney’s interest in practicing law does not include the right to represent a particular client or to hold a particular position. The defendants caution that, in order to ensure that an attorney’s personal interest in challenging a disqualification order does not trump the client’s best interests, the right to appeal from a disqualification order must vest in the client alone. We agree with the defendants that an attorney has no cognizable right to represent a particular client and, therefore, lacks standing to challenge a disqualification order.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . .” (Internal quotation marks omitted.) Stamford Hospital v. Vega, 236 Conn. 646, 657, 674 A.2d 821 (1996). “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995). The fundamental test for establishing classical aggrievement is well settled: “[F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision . . . .” (Internal quotation marks omitted.) Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 158-59, 699 A.2d 142 (1997); accord Connecticut State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300, 524 A.2d 636 (1987). Second, the “party claiming aggrievement also must demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law.” United Cable Television Services Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 343, 663 A.2d 1011 (1995).

The plaintiff maintains that he has satisfied the first prong of the aggrievement test because he has a specific personal and legal interest in his continued representation of Lopes. Specifically, the plaintiff contends that he has a financial interest in lost fee income and an interest in his reputation that allegedly has been damaged by the trial court’s disqualification order. The plaintiff has offered no specific proof, however, as to how, or to what extent, his reputational or pecuniary interests have been affected by the disqualification order. “Allegations and proof of mere generalizations and fears are not enough to establish aggrievement.” (Internal quotation marks omitted.) Water Pollution Control Authority v. Keeney, 234 Conn. 488, 496, 662 A.2d 124 (1995). Moreover, even if the plaintiffs allegations of harm had been more specific, we have doubts about whether the injury that he allegedly has suffered as a result of his disqualification would be sufficient to satisfy the first prong of the aggrievement test. We need not decide whether these alleged injuries satisfy the first prong of the aggrievement test, however, because we conclude that they do not meet the second prong.

The plaintiff asserts that he has satisfied the second prong of the aggrievement test because his alleged reputational and financial interests are protected under his general right to engage in the practice of law. We disagree. The plaintiff cites no authority, and we have found none, for extending the general right to practice law to include the right to represent a particular client in a particular case or to hold a particular job. In fact, the relevant precedent is to the contrary. See, e.g., Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895-96, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961) (denial of opportunity to work at one place “most assuredly” does not implicate “right to follow a chosen trade or profession”); Edelstein v. Wilentz, 812 F.2d 128, 131-32 (7th Cir. 1987) (statute precluding attorneys from participating in one aspect of practice of law does not limit any right attorneys may have to earn livelihood and practice their profession); cf. Johnson v. Statewide Grievance Committee, 248 Conn. 87, 106-107, 726 A.2d 1154 (1999) (suggesting that investigation and administrative review of attorney’s alleged professional misconduct, although potentially harmful, did not constitute denial of attorney’s right to practice law); Pet v. Dept. of Health Services, 207 Conn. 346, 372-73, 542 A.2d 672 (1988) (same for investigation and review of alleged professional misconduct by physician).

The defendants argue that we should follow the reasoning of the United States Supreme Court in Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985), in which that court concluded that the right to contest a disqualification order should rest solely with the client, and not with the disqualified attorney. See id., 435. In Richardson-Merrell Inc., the plaintiff challenged an order of the United States District Court for the District of Columbia disqualifying her attorneys for misconduct. The Circuit Court of Appeals for the District of Columbia reversed the District Court’s disqualification order; Koller ex rel. Koller v. Richardson-Merrell Inc., 737 F.2d 1038, 1064 (D.C. Cir. 1984); relying in part on the attorneys’ “interest ... in correcting what they [claimed was] an erroneous finding of misconduct.” Id., 1053. In thereafter reversing the Court of Appeals, the United States Supreme Court concluded that an order disqualifying an attorney is not subject to immediate appeal under the “collateral order” exception to the federal final judgment rule. Richardson-Merrell Inc. v. Koller, supra, 472 U.S. 440. In reaching its conclusion, the United States Supreme Court specifically rejected the Court of Appeals’ emphasis on the disqualified attorneys’ “personal desire for vindication as an independent ground for interlocutory appeal.” Id., 434-35. The court then went on to say that: “An attorney who is disqualified for misconduct may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client’s interest.” (Emphasis added.) Id., 435.

The Circuit Court of Appeals for the District of Columbia has since expounded on the reasoning of Richardson-Merrell Inc. in another appeal that, like this one, was brought directly by a disqualified attorney. See generally Law Offices of Seymour M. Chase, P.C. v. Federal Communications Commission, 843 F.2d 517 (D.C. Cir. 1988) (Chase). In Chase, an attorney petitioned for review of the Federal Communication Commission’s order disqualifying him from appearing as counsel in a broadcast licensing proceeding. Id., 518. The Court of Appeals dismissed his petition, concluding that an attorney has no independent right to appeal a disqualification order. Id., 522. In so concluding, the court stated that “the question of the appealability of the disqualification order by the attorney himself does not turn on the timing of the appeal. No judicial remedy is available . . . whether the attorney seeks immediate (interlocutory) appeal or awaits the conclusion, by final judgment, of the underlying proceeding from which the attorney was disqualified.” Id., 521.

We find this reasoning to be persuasive. As we previously have noted, the competing interests at stake in a determination regarding the disqualification of an attorney are: “(1) the [former client’s] interest in protecting confidential information; (2) the [current Ghent’s] interest in freely selecting counsel of [his or her] choice; and (3) the public’s interest in the scrupulous administration of justice.” Bergeron v. Mackler, 225 Conn. 391, 398, 623 A.2d 489 (1993). These interests do not embrace any purported right of an attorney to represent the current client.

To conclude otherwise would permit an attorney to obtain interlocutory judicial review of a disqualification order even in circumstances in which the delay caused by the appeal would be inimical to the interests of the client, the opposing party and the public. Generally, piecemeal review of trial court decisions that do not terminate the litigation should be avoided in the interests of the efficient operation of our judicial system; see Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 47, 730 A.2d 51 (1999); and the policy against such review “is at its strongest in the field of criminal law . . . .” United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S. Ct. 3081, 73 L. Ed. 2d 754 (1982). “Promptness in bringing a criminal case to trial has become increasingly important as crime has increased, court dockets have swelled, and detention facilities have become overcrowded.

“[Furthermore,] [a]s the Sixth Amendment’s guarantee of a speedy trial indicates, the accused may have a strong interest in speedy resolution of the charges against him. In addition, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. ... As time passes, the prosecution’s ability to meet its burden of proof may greatly diminish: evidence and witnesses may disappear, and testimony becomes more easily impeachable as the events recounted become more remote. Delay increases the cost of pretrial detention and extends the period during which defendants released on bail may commit other crimes. . . . Delay between arrest and punishment prolongs public anxiety over community safety if a person accused of a serious crime is free on bail. It may also adversely affect the prospects for rehabilitation. . . . Finally, when a crime is committed against a community, the community has a strong collective psychological and moral interest in swiftly bringing the person responsible to justice. Prompt acquittal of a person wrongly accused, which forces prosecutorial investigation to continue, is as important as prompt conviction and sentence of a person rightly accused. Crime inflicts a wound on the community, and that wound may not begin to heal until criminal proceedings have come to an end.” (Citations omitted; internal quotation marks omitted.) Flanagan v. United States, 465 U.S. 259, 264-65, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984). Moreover, allowing an attorney to bring an interlocutory appeal from a disqualification order could open the appellate door to others who, like the plaintiff, have a personal stake in remaining in a case, such as a purported expert witness who is deemed unqualified by the trial court.

We acknowledge that our decision today effectively eliminates the plaintiffs opportunity to obtain judicial review of the trial court’s disqualification order. Although Lopes retains the right to challenge the disqualification order upon appeal from an adverse final judgment, the plaintiff himself has no direct, personal remedy. In view of the nature of the interest asserted by the plaintiff, however, and in light of the countervailing practical and jurisprudential considerations, we conclude that the plaintiff has failed to demonstrate that his “asserted interest has been specially and injuriously affected in a way that is cognizable by law.” United Cable Television Services Corp. v. Dept. of Public Utility Control, supra, 235 Conn. 343. Accordingly, the plaintiff lacks standing to challenge the trial court’s disqualification order.

The writ of error is dismissed.

In this opinion CALLAHAN, C. J., and BORDEN, NORCOTT, KATZ and MCDONALD, Js., concurred.

BERDON, J.,

concurring. A substantial quantum of stigma is often associated with a trial court’s decision that it will not permit a particular attorney to represent a particular client. I am troubled by the thought of counsel suffering this stigma without any recourse to judicial review. Nevertheless, I agree with my colleagues in the majority that — absent extraordinary circumstances — an attorney does not possess a right to assert an immediate appeal from his or her own disqualification in order to vindicate his or her pecuniary and reputational interests. I write separately for two interrelated reasons.

First, the majority opinion contains dicta that is of concern to me. The majority emphasizes that a criminal defendant “retains the right to challenge the disqualification [of his counsel] upon appeal from an adverse final judgment” — that is, after the completion of trial. In my view, a criminal defendant will never have an incentive to exercise this right. If the defendant is acquitted, then of course he has no reason to assert an appeal. If he is convicted, he still has little reason to assert an appeal from the order disqualifying his attorney, because he would have to demonstrate “that he lost the case because he was improperly forced to change counsel. This would appear to be an almost insurmountable burden.” (Internal quotation marks omitted.) State v. Vumback, 247 Conn. 929, 930, 719 A.2d 1172 (1998) (Berdon, J., dissenting).

Correlatively, I want to reiterate my belief that a criminal defendant may assert an immediate appeal from the disqualification of his attorney in order to vindicate his right to counsel of his choice. Earlier this term, I explained that “[t]he right to counsel in a criminal prosecution is not only embodied in our state constitution; Conn. Const., art. I, § 8; it has also been richly embellished in the history of this state. Not only was Connecticut the first state to adopt the public defender system; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)]. . . . Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)]. State v. Stoddard, 206 Conn. 157, 165, 537 A.2d 446 (1988).

“It is imperative that a criminal defendant should have his or her choice of counsel unless there are compelling reasons to thwart this choice. In a criminal trial, the enormous coercive power of the state and the outrage of the community are both pitted against a lone individual. Defense counsel is often the only person who stands on the side of the accused. An almost sacred relationship exists between a criminal defendant and his lawyer, and it is for this reason that the state should not lightly wrench the two apart.” (Internal quotation marks omitted.) State v. Vumback, supra, 247 Conn. 932-33 (Berdon, J., dissenting). I continue to adhere to these views.

       Because we conclude that the plaintiff does not have standing to challenge the trial court’s order, we lack subject matter jurisdiction over his claim. Consequently, we do not reach the merits of the plaintiffs contention that the trial court improperly disqualified him from his continued representation of Lopes.

       Lopes joined the plaintiffs writ of error.

       Hereinafter, we refer to both defendants in error collectively as the defendants.

       On November 3, 1998, this court granted the defendants’ motions to dismiss the writ of error as to Lopes.

       We also ordered the parties to brief a second issue, namely: “When an attorney seeks review of an order disqualifying him from representing a particular client, is the order a final judgment?" Because we conclude that the plaintiff lacks standing to challenge the trial court’s disqualification order, we need not address the final judgment issue.

       The plaintiff claims that his reputation has been injured because his disqualification by the trial court, was tantamount to a finding of professional misconduct. The trial court, however, cast no aspersions on the plaintiffs conduct or on his professional integrity. Rather, the trial court explained that, in its view, the plaintiffs disqualification was necessary to avoid any future problems stemming from his cross-examination of his former client, Crim. In such circumstances, it is difficult to see how the plaintiffs reputational interest has been harmed. Furthermore, although the plaintiff claims a general pecuniary interest in his continuing representation of Lopes, he has not specified how that interest has been impaired as a result of this case.

       The federal final judgment rule is codified at 28 U.S.C. § 1291. For an order to come within the purview of the “collateral order” exception to the final judgment rule, it must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” (Internal quotation marks omitted.) Richardson-Merrell Inc. v. Koller, supra, 472 U.S. 431. See generally Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).

        Chase was decided by a divided three judge panel. In addition to the opinion announcing the judgment, which was authored by then Circuit Judge, now United States Supreme Court Justice, Ruth Bader Ginsburg, there also was one concurring opinion and one dissenting opinion.

       The plaintiff cites the concurring opinion in Chase to support his claim of standing to bring the writ of error. Law Offices of Seymour M. Chase, P. C. v. Federal Communications Commission, supra, 843 F.2d 522 (Williams, J., concurring). Our review of the concurring opinion, however, reveals no support for the plaintiffs claim. Although Judge Williams wrote that “counsel’s reputational interest surely satisfies the constitutional minimum”; id., 523 (Williams, J., concurring); he went onto conclude that counsel’s interest did not fall within the zone of interests protected by the statute in question and, therefore, that the plaintiff lacked standing to appeal the commission’s order. Id., 523-24 (Williams, J., concurring).

       This policy restricting interlocutory appeals is embodied in this state’s final judgment rule. See General Statutes § 52-263.

       Lopes’ criminal trial currently awaits our resolution of this appeal. Presumably, Lopes has consented to the delay, but that does not mean that the delay necessarily is in his best interests. Indeed, as we have indicated, it is of questionable propriety for a client to be placed in the position of having to weigh his interest in a speedy trial against his attorney’s desire to vindicate, on appeal, his purported reputational or pecuniary interests.