text:
    Carol A. Mallory v. Eugene W. Mallory
    (13184)
    Healey, Shea, Callahan, Glass and Hull, Js.

      Argued February 9
    decision released April 5, 1988

      Elissa T. Wright, with whom, on the brief, was Joseph E. Moukawsher, for the appellant (defendant).

      Barbara J. Masters, for the appellee (plaintiff).
   Shea, J.

In this appeal from a judgment dissolving the marriage of the parties, the defendant husband, Eugene Mallory, claims that the trial court erred: (1) in restricting his visitation rights with his daughter based on its finding, by a preponderance of the evidence, that he had sexually abused her, when it should have required proof by clear and convincing evidence; (2) in concluding that there was sufficient evidence to prove that he had sexually abused his daughter even under the preponderance of the evidence standard; (3) in ordering him to pay attorney’s fees to the plaintiff wife, Carol Mallory, for this appeal; (4) in ordering him to pay attorney’s fees to the plaintiff in connection with a proceeding in which he was found in contempt for failure to pay child support as ordered; and (5) in finding him in contempt of court for failure to pay child support, and in denying his motion for a stay of execution on the child support provision of the judgment during the pendency of the appeal. The defendant conceded at oral argument that this fifth claim was moot, and, therefore, we shall not review it. We find no error on the first, second and fourth claims, but error on the third. Accordingly, we remand the case to the trial court with direction to modify the order concerning the payment of the attorney’s fees on appeal and to deny the plaintiff’s request therefor.

The parties were married on February 24,1979. During the marriage one daughter was born. The plaintiff commenced a dissolution action in which she sought custody of and support for her daughter. After a hearing on the custody and support issues, the trial court, Conway, J., awarded the plaintiff temporary custody of her daughter and granted a right of reasonable visitation to the defendant, who saw his daughter every weekend at his sister’s home, where he was living.

During Easter weekend, Friday, March 28,1986, to Sunday, March 30,1986, the daughter stayed with the defendant at his sister’s home. The plaintiff later testified that on the following Monday she had found blood on her daughter’s underwear, and cuts and lacerations on her daughter’s vagina. She took her daughter that day to the emergency room at William Backus Hospital in Norwich. David Schoon, a pediatrician, examined the daughter. He noted in a report, later introduced into evidence, that there were fresh abrasions in her vagina, and fresh rashes in her rectum. His report raised the possibility of sexual abuse. Eight days later, Robert Meier, a psychologist, interviewed the daughter concerning the cause of her vaginal irritation. The daughter indicated that her father had caused the injuries to her vagina, although she later refused to tell state police trooper Kathleen Ackerman how these injuries had taken place.

After a full hearing concerning the plaintiffs allegation that the defendant had sexually abused his daughter, the trial court, Hon. Eli L. Cramer, state trial referee, rendered final judgment on October 2, 1986, and dissolved the marriage of the parties. It awarded custody of the daughter to the plaintiff, and also ordered that the defendant have visitation with his daughter for one day a week for four hours under the supervision of the Family Relations Division of the Superior Court. The court later ordered the defendant to pay the plaintiff $500 as an allowance for her attorney’s fees for this appeal. On February 17, 1987, the trial court, R. O’Connell, J., found the defendant in contempt because he had failed to meet his child support obligations, and on March 2,1987, ordered him to pay the plaintiff $300 for the attorney’s fees she incurred as a result of the contempt proceeding.

I

The defendant claims that the court erred in restricting his visitation rights with his daughter without making a specific finding that there was clear and convincing evidence that he had sexually abused her. He contends that a finding of parental sexual abuse in child custody actions requires a standard of proof higher than the preponderance of the evidence test ordinarily applicable in civil actions. We note initially that the trial court indicated that it had not applied the standard of proof that would be required in a criminal trial, proof beyond a reasonable doubt, but did not further specify what standard of proof it had applied.

In Cookson v. Cookson, 201 Conn. 229, 233-41, 514 A.2d 323 (1986), we rejected the claim that a clear and convincing standard of proof should be required in proceedings involving the modification of custody orders, and held that the ordinary preponderance of the evidence standard should apply. The defendant contends that a higher standard of proof should apply in custody cases in which there are allegations of sexual abuse because a parent so accused must bear a substantial social stigma when a court in a custody case concludes that he has sexually abused his child. He conceded at oral argument, however, that no jurisdiction has thus far required clear and convincing evidence in custody cases in which there are allegations of sexual abuse.

In custody cases we are concerned with “the best interests of the child”; General Statutes § 46b-56 (b); rather than with the social standing of the parents in the community. We believe that a preponderance of the evidence standard adequately protects a parent from false accusations of sexual abuse, and that the ordinary civil standard of proof better serves the strong societal interest in protecting children from abusive parents. See Cookson v. Cookson, supra.

In Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), the United States Supreme Court held that in proceedings in which a permanent deprivation of parental rights may result, such as a termination of parental rights hearing, due process requires that a state prove statutory termination criteria by “clear and convincing evidence” rather than by a “fair preponderance of the evidence.” The defendant argues that when a court in a custody hearing determines that a parent has sexually abused his child it attaches a permanent stigma to that parent’s reputation. He contends that such a stigma is similar to a permanent deprivation of parental rights.

The trial court’s judgment, however, provides that at the end of a one year period, during which the defendant is required to attend counseling sessions, “the Family Relations Department, in a mediation session, if the office feels it appropriate, shall arrange an appropriate visitation schedule. If the Family Relations Department desires, or the parties cannot agree, the matter is to be returned to this court which retains jurisdiction.” The present restrictions on the defendant’s visitation rights are temporary, not permanent. Moreover, the defendant still has the opportunity to visit his daughter four hours a week, and, thus, it cannot be said that the trial court has completely severed the relationship between him and his child, as was the case in Santosky v. Kramer, supra. We have held that proof by a preponderance of the evidence rather than by clear and convincing evidence applies in temporary custody hearings; In re Juvenile Appeal (83-CD), 189 Conn. 276, 299-300, 455 A.2d 1313 (1983); and in neglect proceedings; In re Juvenile Appeal (84-AB), 192 Conn. 254, 262-65, 471 A.2d 1380 (1984); because they do not involve a permanent termination of parental rights.

We conclude that the trial court was not required to apply a clear and convincing evidence standard of proof in this case. We hold that the normal civil standard of proof, which is a fair preponderance of the evidence, is applicable in child custody hearings in which there are allegations that a parent has sexually abused his child, at least where that parent retains some visitation rights, which may be reasonably restricted to protect “the best interests of the child.” General Statutes § 46b-56 (b).

II

The defendant also claims that, even if a preponderance of the evidence standard of proof was appropriate, the evidence was insufficient to support the conclusion of the trial court that the defendant “father ha[d] acted in a sexually inappropriate manner towards the child.”

During his interview, the court appointed psychologist, Meier, asked the daughter what had caused her vaginal injuries. She replied, “It was daddy.” Meier then asked her if her statement was the truth, and she said, “Yes.” Meier later testified that, after she had made this statement, “[t]he child was visibly shaken and scared.” The defendant argues that the statement of the child was unreliable. About one week after her interview with Meier, the child refused to tell state police trooper Ackerman who had injured her vagina, although during that same day she had said to Meier, “It was me and daddy.” The defendant contends that Meier coerced his daughter into making statements implicating him in sexual abuse.

There was substantial circumstantial evidence, however, to corroborate the daughter’s statements. The pediatrician, Schoon, testified, as an expert witness, that the daughter’s vaginal injuries were “most likely” the result of sexual abuse. The defendant argues that this testimony related only to a possibility and, therefore, was legally insufficient to establish that the child had been sexually abused. We conclude, however, that Schoon’s testimony was expressed in terms of reasonable medical probabilities, and, therefore, was sufficient to establish causation. Struckman v. Burns, 205 Conn. 542, 553-55, 534 A.2d 888 (1987). The defendant called Robert Crootof, a gynecologist, as a witness. Crootof had examined the child when she was admitted into the emergency room at William Backus Hospital in Norwich on March 31, 1986. Crootof testified that there were “possible” explanations for her vaginal injuries other than sexual abuse, such as scratching or a bacterial infection. On direct examination by the defendant, Crootof conceded that he could not establish with reasonable medical probability that any of these sources had caused her injuries, and “disclaim[ed] any great experience in pediatric gynecology.” On the other hand, Schoon testified that he had extensive experience concerning child sexual abuse. We conclude that there was sufficient evidence for the trial court to determine that the child had been sexually abused.

The defendant contends that, even if there was sufficient evidence to establish that someone had sexually abused his daughter, there was not sufficient evidence for the trial court to conclude that he had abused her. He points out that the plaintiff admitted that she did not discover blood on her daughter’s underwear until about twenty-seven hours after he had returned his daughter to the plaintiff’s home. The plaintiff testified, however, that she had not unpacked the clothes worn by her daughter while she visited her father until that time. The defendant conceded that he was the only person alone with his daughter that weekend, and that the two had shared the same bed. “We will not reverse the decision of the trial court unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole.” Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981). We conclude that the trial court’s determination that the defendant had sexually abused his daughter was not clearly erroneous in view of the evidence.

Ill

The defendant claims that the trial court erred in ordering him to pay the plaintiff $500 toward her attorney’s fees for this appeal. The defendant presented undisputed evidence that he had no liquid assets, and that he had limited income. The trial court determined that, because the defendant was able to borrow money from his family to enable him to appeal, it had the authority under General Statutes § 46b-62 to order him to pay part of the plaintiffs attorney’s fees for this appeal. The plaintiff contends that this order was not an abuse of discretion because the award was only a modest amount of money. We conclude that the trial court abused its discretion in awarding these attorney’s fees because the fact that the defendant’s family was assisting him to pay his attorney’s fees on appeal did not reasonably support a conclusion that they would help him pay the plaintiff’s attorney’s fees. See Mays v. Mays, 193 Conn. 261, 270, 476 A.2d 1562 (1984). “There is nothing in the record to indicate that he had any resources which could be applied to the payment of her expenses in defending the appeal. Under these circumstances it was an abuse of discretion for the court to order that the defendant pay . . . towards the plaintiff’s counsel fees.” Id.; see also Turgeon v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983); Koizim v. Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980).

IV

The final claim of the defendant is that the trial court, R. O’Connell, J., erred in ordering him to pay the plaintiff $300 for attorney’s fees incurred by her during a contempt hearing brought against him. After final judgment had been rendered dissolving the marriage, the plaintiff brought contempt proceedings against the defendant for failure to pay child support as ordered by the judgment. The court found the defendant in contempt. The defendant has abandoned his claim that the court erred in finding him in contempt, because the issue is now moot.

This court must, nevertheless, briefly examine whether the trial court erred in finding the defendant in contempt before we can determine whether it abused its discretion in ordering him to pay the attorney’s fees incurred by the plaintiff during the contempt proceedings. The defendant argued, before abandoning this claim, that the trial court had erred in finding him in contempt for failing to comply with the child support provisions of the final judgment because he was too poor to meet those obligations. The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. Mays v. Mays, supra, 264; Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). The defendant in the case at bar, however, failed to seek a modification of his child support obligations until after the plaintiff had instituted contempt proceedings against him. In these circumstances, the trial court did not err in finding the defendant in contempt, at least in regard to the child support arrearage accumulated before he sought a modification of the child support orders. Moreover, there was evidence that the defendant had not acted in good faith in fulfilling his child support obligations in light of the fact that he had paid only sixty dollars in child support over a five month period while during that time he had paid $1200 to his attorney. If this claim were before us, we would conclude that the court did not err in finding the defendant in contempt for failure to comply with the child support orders in the final judgment.

The defendant contends that the award of attorney’s fees to the plaintiff for the costs incurred by her during the contempt proceedings was an abuse of discretion in light of his limited economic circumstances, which are discussed in part III of this opinion. Even if the defendant was financially unable at that time to comply with his child support obligations, his failure to seek modification of the child support orders made it necessary for the plaintiff to institute contempt proceedings against him. As we have discussed in the preceding paragraph, the trial court was justified under these circumstances in finding him in contempt.

“When any person is found in contempt of an order of the superior court entered under section 46b-60 to 46b-62, [which include child support orders] . . . the court may award to the petitioner the fees of the officer serving the contempt citation, to be paid by the person found in contempt.” General Statutes § 46b-87. Under § 46b-62, a court may award reasonable attorney’s fees to a person who brings “any prosecution for nonsupport of a minor child or children” under General Statutes § 51-348a. We hold by analogy to these statutory provisions that when a person is properly found in contempt for failure to comply with child support orders, a court may award the petitioner reasonable compensation for attorney’s fees incurred during that contempt proceeding. The trial court in the case at bar ordered a reasonable payment schedule of ten dollars a week to pay off the $300 of attorney’s fees. We conclude that the trial court did not abuse its discretion in this regard.

There is error in part and the case is remanded to the trial court to modify its order concerning the payment of the plaintiff’s attorney’s fees on appeal.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46b-56. (Formerly Sec. 46-42). superior court ORDERS RE CUSTODY AND CARE OF MINOR CHILDREN IN ACTIONS FOR DISSOLUTION OF MARRIAGE, LEGAL SEPARATION AND ANNULMENT. ACCESS TO RECORDS OF MINOR CHILDREN BY NONCUSTODIAL PARENT. . . .
      “(b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.”

       “[General Statutes] Sec. 46b-62. (Formerly Sec. 46-59). orders for PAYMENT OF ATTORNEY’S FEES IN CERTAIN ACTIONS. In any proceeding seeking relief under the provisions of this chapter and sections 17-323a, 17-323b, 45-162, 46b-l, 46b-6, 46b-204, 47-14g, 51-348a and 52-362, the court may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father or mother, or both, to pay the reasonable fees of the attorney or may order the payment of the attorney’s fees in whole or in part from the estate of the child. If the child is receiving or has received state aid or care, the reasonable compensation of the attorney shall be established by, and paid from funds appropriated to, the judicial department.”

       See footnote 2, supra.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Robert E. Barde v. Board of Trustees of Regional Community Colleges
    (13180)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued January 12
    decision released April 12, 1988

      Robert L. Hirtle, Jr., with whom was Mark A. Rosenblum, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman,
      attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (defendant).
   Covello, J.

This is an appeal from the dismissal of the plaintiffs declaratory judgment action for lack of jurisdiction. The plaintiff, Robert E. Barde, sought by way of declaratory relief from the defendant, board of trustees of regional community colleges, tenured status as an accounting professor and an increase in his salary.

The defendant moved to dismiss the action claiming that the doctrine of sovereign immunity deprived the court of subject matter jurisdiction. The court concluded that: (1) the real party in interest was the state; (2) there had been no permission granted to bring this action; (3) allegations of constitutional violations advanced by the plaintiff were insufficient; and (4) the court lacked subject matter jurisdiction by reason of the doctrine of sovereign immunity. The court therefore granted the motion to dismiss and the plaintiff appealed. Since there were two separate prayers for relief, i.e., (1) tenured status as an acting professor, and (2) an increase in salary, a separate analysis with respect to each claim is required. See Doe v. Heintz, 204 Conn. 17, 526 A.2d 1318 (1987).

The dispositive issue on appeal with respect to the plaintiffs tenure claim is whether his claims of the denial of federal and state constitutional guarantees of due process and equal protection of the laws were sufficiently established so as to preclude the operation of the doctrine of sovereign immunity. We conclude that this was not the case and that the trial court correctly held that there was no subject matter jurisdiction. We therefore find no error on that claim. With respect to the plaintiffs claims for an increased salary, and for benefits because of an alleged estoppel, the plaintiff’s claims were correctly dismissed because of his failure to exhaust administrative remedies whose availability has not been contested.

Examination of the record discloses that the plaintiff was the dean of academic affairs at Manchester Community College from 1980 through 1986. On July 15, 1985, the plaintiff sought a transfer to faculty status. He thereafter resigned his $50,321 per year job as dean and accepted a ten month position as a nontenured, full professor at a salary of $39,585.

The complaint alleged that on two prior occasions, college deans had been appointed to full, tenured professorships at “83.33% of their previous year’s salary, plus any wage-reopener under the applicable collective bargaining agreement.” In the plaintiff’s case, such an arrangement would have produced a salary of $45,304. The complaint further alleged that the plaintiff’s resignation as dean had been based upon an expectation of similar salary and tenure treatment, that the defendant knew this and yet failed to treat his transfer in the same fashion as others similarly situated. The plaintiff claimed that the defendant “denied [him] his constitutionally guaranteed rights to due process and equal protection of the law as provided by the Constitution^] of the United States of America and the State of Connecticut.”

In a second count incorporating the earlier allegations, the plaintiff further claimed that having “reasonably relied to his detriment . . . the Board is now estopped to deny to [him] the benefits it has conferred on similarly-situated individuals in the past . . . .”

In reviewing the validity of constitutional claims in the context of a jurisdictional dispute, we note that “[a] motion to dismiss pursuant to Practice Book § 142 may perform the role of either a motion to erase or a plea in abatement under our former practice.” Pellegrino v. O’Neill, 193 Conn. 670, 672 n.4, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). The motion to dismiss like a “motion to erase admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” Perrys, Inc. v. Waterbury Redevelopment Agency, 157 Conn. 122, 124, 249 A.2d 256 (1968). Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint. Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 791, 437 A.2d 141 (1981).

The supporting affidavits filed by the defendant disclosed the following additional undisputed facts. On July 15, 1985, the plaintiff, then dean of academic affairs, wrote William E. Vincent, the president of Manchester Community College, advising him that he was amenable “to a change to faculty status.” On July 24, 1985, Vincent responded to the plaintiffs letter, agreeing to support his “reassignment to full-time teaching” with the understanding, however, that “the terms and conditions of your appointment to the faculty will have to be worked out with Mr. McKirdy [the Executive Director] and gain subsequent Board approval.” On January 15, 1986, the plaintiff again wrote Vincent stating that his desires were “(1) Academic Rank of Professor; (2) A salary conversion to 10/12; (3) Tenure.” On January 22,1986, Vincent responded by memo that included the statement “I informed you orally that your appointment recommendation would contain the following essential elements. (1) Rank of full Professor; (2) A salary set at the seven-year target salary standard in effect as of July 1, 1986 for professors; [and] (3) appointment without tenure in the new job function.” (Emphasis added.) There is nothing in the record to indicate that the plaintiff ever challenged this proposal by way of a reply.

On May 8, 1986, Vincent again wrote the plaintiff setting forth his recommendations to the defendant concerning the plaintiffs reassignment to a faculty position. The letter’s essential terms were identical to those conveyed to the plaintiff in the memo of January 22, 1986.

On May 12, 1986, the plaintiff wrote Vincent stating for the first time that “[t]here are two areas which I do not find satisfactory; namely, the matters of tenure and compensation.” The letter concluded, “I am hopeful that these two matters can be resolved to my satisfaction prior to presentation to the Board . . . .”

On May 15, 1986, executive director Andrew C. McKirdy wrote to the plaintiff acknowledging receipt of the May 12 letter in the president’s absence. He confirmed that his (McKirdy’s) recommendation to the defendant would be identical to that recommended by Vincent. The letter further stated, “I understand that you are aware of other managers who have been appointed to the faculty with tenure. In these circumstances, the Board simply recognized the fact that the individuals had achieved tenure previously under the preexisting Board policies. Your case, of course, differs. ” (Emphasis added.) The plaintiff has not challenged by counteraffidavit, brief or argument the accuracy of this statement.

On June 16,1986, the defendant approved the reclassification of the plaintiff’s position from that of dean of academic affairs to that of professor of accounting. The specific terms of the reclassification were in accordance with Vincent’s earlier recommendation.

Although the named defendant here is the board of trustees of regional community colleges, these colleges are state public institutions and the real party in interest is the state. “[S]ince the state can act only through its officers and agents a suit against a state officer [or board] is in effect one against the sovereign state.” Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977).

“[W]e have long recognized the . . . common-law principle [the doctrine of sovereign immunity] that the state cannot be sued without its consent . . . .” Id. The state did not consent to the institution of this action. However, “[i]n a constitutional democracy sover eign immunity must relax its bar when suits against the government complain of unconstitutional acts.” Sentner v. Board of Trustees, 184 Conn. 339, 343, 439 A.2d 1033 (1981). The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests. See, e.g., Upson v. State, 190 Conn. 622, 625, 461 A.2d 991 (1983); Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976).

The plaintiff first claims that his due process rights have been compromised. “The fourteenth amendment to the United States constitution prohibits any state from depriving any person of ‘life, liberty, or property, without due process of law.’ Article one, section eight of our state constitution contains the same prohibition and is given the same effect as the fourteenth amendment to the federal constitution.” Lee v. Board of Education, 181 Conn. 69, 71-72, 434 A.2d 333 (1980).

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests—property interests—may take many forms.” (Emphasis added.) Board of Regents v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The plaintiff does not challenge the manner in which his job as dean terminated. The essence of his argument is that he expected the tenure and salary status of his future employment contract as a faculty member to be the same as those furnished to others in similar circumstances. This unilateral expectation of benefits is simply not enough to create a constitutionally protected property interest within the meaning of the fourteenth amendment. Id., 577. The claim of a due process violation is therefore simply inappropriate.

The plaintiff further claims that he has been denied the equal protection of the law. The fourteenth amendment to the United States constitution provides that “[n]o state shall . . . deny any person within its jurisdiction the equal protection of the law.” Article first, § 20, of the Connecticut constitution contains similar language. “This court has many times noted that equal protection clauses of the state and federal constitutions have a like meaning and impose similar constitutional limitations.” Horton v. Meskill, supra, 639.

“ ‘The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that “all persons similarly circumstanced shall be treated alike.” F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [40 S. Ct. 560, 64 L. Ed. 989 (1920)].’ ” Horton v. Meskill, supra, 645-46.

The linchpin of the plaintiff’s equal protection argument lies in his contention that other administrators moved to the faculty in a tenured status and that although similarly situated, he was not similarly treated. The May 15, 1986 letter from McKirdy, however, refutes these allegations by pointing out that the administrators to which the plaintiff referred had already achieved tenure prior to their transfers to the faculty which was not the plaintiff’s situation. The plaintiff has never disputed the validity of these assertions that he was not in fact in the same circumstances as the college deans referred to in his complaint. This being the case, it is evident that the factual basis for the equal protection claim simply did not exist. We therefore conclude that the constitutional claims have not been established and thus the doctrine of sovereign immunity operates as a bar to subject matter jurisdiction.

With respect to the monetary claim for a salary increase, the plaintiff admittedly failed to present his claim to the commissioner of claims. General Statutes §§ 4-141, 4-142; see Hirschfeld v. Commission on Claims, 172 Conn. 603, 604, 376 A.2d 71 (1977). “ ‘Since we are not aware of any legal barrier to the presentation of the plaintiffs claim to the commissioner or to his favorable action upon it, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate.’ Sullivan v. State, [189 Conn. 550, 559, 457 A.2d 304 (1983)]. The failure of the plaintiffs to pursue this administrative remedy precludes an adjudication of the constitutional claim they have raised. Id. No determination of whether a constitutional necessity exists that would supersede the state’s sovereign immunity can be made when the alternative procedure available through the claims commissioner, which might have provided the relief sought, has been ignored. Id.; see Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 186, 286 A.2d 299 (1971).” Doe v. Heintz, supra, 37. “[B]ecause exhaustion of such an alternative means of relief is a prerequisite to our jurisdiction to consider [the] constitutional claim;” id., 34; we conclude that the trial court lacked jurisdiction and, therefore, properly granted the motion to dismiss.

Finally, in view of the absence of subject matter jurisdiction, we need not consider the plaintiff’s claim of promissory estoppel.

There is no error.

In this opinion the other justices concurred.

       Practice Book § 143 provides in relevant part that “[the] motion [to dismiss] shall always be filed yñth a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. ” (Emphasis added.)

       This was the procedure used to arrive at the $39,585 salary paid to the plaintiff.


author: Callahan, J. Shea, J., with whom Covello, J.,

text:
    The Andrew Ansaldi Company v. Planning and Zoning Commission of the Town of Manchester et al.
    (13202)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued January 13
    decision released April 12, 1988

      Rolland Castleman, with whom was Robbin Murdock-Meggers, for the appellant (plaintiff).

      Joel M. Fain, with whom were Joseph P. Capossela and, on the brief, John W. Cooney, corporation counsel, for the appellees (defendants).
   Callahan, J.

The plaintiff, the Andrew Ansaldi Company, has filed the instant appeal from a judgment of the trial court, Noren, J., dismissing its appeal from a decision of the Manchester planning and zoning commission (commission). In ruling upon the motion to dismiss of the intervening defendants, Werner Kunzli and Arthur J. Cottier, the trial court concluded that it lacked subject matter jurisdiction over the appeal because the plaintiff failed to serve a true and attested copy of the appeal upon the chairman or clerk of the commission as required by General Statutes (Rev. to 1985) § 8-28 (a), as amended by Public Acts 1985, No. 85-284. We agree.

The relevant facts are not in dispute. In June, 1986, the commission approved the resubmitted application of Frechette, Martin, Rothman and Golas for the approval of a subdivision to be known as Keeney Heights. The Keeney Heights subdivision is located, at least in part, within an area of Manchester known as the Folly Brook Watershed or the Folly Brook Drainage area. At the time the commission approved the Keeney Heights subdivision, the plaintiff was a lower riparian owner and claimed to have suffered property damage caused by the development of real estate located upstream within the Folly Brook Watershed area. The plaintiff appealed the approval of the Keeney Heights subdivision to the Superior Court claiming that the commission had acted illegally, arbitrarily, and contrary to its own regulations and General Statutes § 8-25 by approving the subdivision without proper provisions for drainage and flood control. In addition, the plaintiff alleged that the commission had abused its discretion by refusing to hold a public hearing regarding the Keeney Heights subdivision despite the plaintiffs request.

In initiating the appeal, the plaintiffs citation commanded the sheriff to summon the planning and zoning commission to appear before the Superior Court within and for the judicial district of Hartford-New Britain at Hartford on July 22, 1986, “by leaving with or at the usual place of abode of the Chairman or Clerk of that Commission, a true and attested copy of the complaint and of this citation . . . .” No service was ever attempted or made upon the chairman or clerk of the commission despite the specific direction in the citation. In addition, the citation failed to mention, in any capacity, the clerk of the municipality as required by § 8-28 (a). Nevertheless, the sheriff personally served Edward Tomkiel, the town clerk of Manchester, with true and attested copies of the citation and complaint.

Prior to the appeal being heard, Kunzli and Gottier, who were under contract to purchase the Keeney Heights subdivision, filed a motion to intervene as party defendants that was granted by the trial court. Thereafter, the intervening defendants moved to dismiss the plaintiffs appeal on the grounds that: (1) the appeal was not served upon the chairman or clerk of the commission as required by statute; (2) the citation failed to direct service upon the town clerk of Manchester as required by statute; and (3) the plaintiff failed to provide a proper bond with surety.

The principal issue raised by this appeal is the plaintiffs noncompliance with § 8-28 (a) because of the failure to have served the chairman or clerk of the planning and zoning commission, and because of the failure to have named the clerk of the municipality in the citation. We find our recent decision in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), as affirmed by Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II), dispositive. In Simko I and Simko II, this court held that the chairman or clerk of the zoning board, or commission, and the clerk of the municipality are necessary parties to the initiation of a zoning appeal and both must be properly cited and served as required by § 8-8 (b) as amended by Public Acts 1985, No. 85-284. Simko I, supra, 418—19; Simko II, supra, 377, 382. Further, we held that the failure to comply strictly with the provisions of § 8-8 (b) as amended renders the appeal subject to dismissal. Simko I, supra, 421; Simko II, supra, 383.

General Statutes (Rev. to 1985) § 8-28 (a) was also amended by Public Acts 1985, No. 85-284, and, as amended, contains language identical to the language of § 8-8 (b) that was interpreted in Simko I and Simko II.

Consequently, we conclude that the plaintiffs appeal was jurisdictionally defective under § 8-28 (a), as amended, because of the plaintiffs failure to serve the chairman or clerk of the commission and its failure to cite the clerk of the municipality. The trial court did not err when it granted the motion to dismiss filed by the intervening defendants.

There is no error.

In this opinion, Peters, C. J., and Hull, J., concurred.

Shea, J., with whom Covello, J.,

joins, concurring. In Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II), a majority of this court held that the change from “or” to “and” effectuated by the 1985 amendment to General Statutes § 8-8 (b), making service upon the town clerk as well as the chairman or clerk of a zoning board of appeals mandatory, was intended, despite the paucity of any textual foundation or supporting legislative history, to make the clerk of the municipality a necessary party to an appeal from a zoning board of appeals, and that he must be named in the citation, even though service has been made upon him as the statute specifies. Simko I, supra, 418-19; Simko II, supra, 382. In the present case the majority has extended the holding of Simko I and Simko II to declare that the chairman or clerk of a zoning commission, upon either of whom service of notice of an appeal from the commission, in addition to service upon the town clerk, is mandated by General Statutes § 8-28 (a), is also a necessary party to a zoning appeal. By now declaring expressly that “the chairman or clerk of the zoning board or commission and the clerk of the municipality are necessary parties to the initiation of a zoning appeal and both must be properly cited and served,” the majority opinion answers a question left unresolved by Simko I and Simko II. See Simko II, supra, 386 (Shea and Covello, Js., dissenting).

The majority holding in this case that either the chairman or, alternatively, the clerk of a zoning board is a necessary party who must be cited to appear and respond to the appeal, rather than simply an agent for service upon the zoning board that has been so cited, raises more questions than it answers. What interest would the chairman or clerk have in the appeal as an individual to support his presence as a party in the litigation? In the event of an adverse determination of the appeal in the trial court, can such a “necessary party” seek in his own right appellate review by a higher court or would his appeal be subject to dismissal for lack of a justiciably cognizable interest?

In responding in Simko II, supra, 382, 383, to similar concerns about the lack of any personal interest of a town clerk in a zoning appeal, despite the holding that he is not an agent for service on the zoning board but a “statutorily mandated, necessary party to the proper institution of an appeal,” the majority concluded that the legislative purpose of the 1985 amendment was “to ensure that the municipality will receive adequate notice and have sufficient opportunity to be bound and protect the interests of the public where necessary.” Such a purpose, of course, is more compatible with the role of the town clerk as an agent for service on the municipality than as a party to the appeal who must be cited to appear. The present majority opinion, however, does not attempt to rationalize its present holding that the chairman or clerk of a zoning board, neither of whom ordinarily has any individual interest in the controversy, is also a “necessary party” rather than merely an agent for service on the board. The theory advanced by the Simko II majority for making the town clerk a party, to provide notice of the appeal to the municipality so that it need not rely on the zoning board to protect its interests, is hardly applicable to explain why the chairman or clerk of the board must be regarded as a “necessary party.” If the purpose is simply to provide notice of the appeal to the zoning board, that objective is adequately fulfilled simply by treating the chairman or clerk as an agent for service upon the board. Accordingly, I do not join in this latest chapter authored by the majority in the Simko saga.

Despite my continuing disagreement with the majority’s construction of the 1985 amendments to §§ 8-8 (b) and 8-28 (a) as making “necessary parties” of the town officials upon whom service of notice of the appeal is dictated, in this case, unlike Simko I and Simko II, service was never made upon either the chairman or the clerk of the zoning commission, as § 8-28 (a) plainly requires in addition to service upon the town clerk. For many years this court has held that the failure to follow strictly the procedure specified for exercising a statutory right of appeal deprives the court of subject matter jurisdiction. Basilicato v. Department of Public Utility Control, 197 Conn. 320, 322, 497 A.2d 48 (1985). This principle has often been applied in instances where the plaintiff has failed, as in this case, to comply with the provisions for service of an appeal and has been deemed to necessitate its dismissal for lack of subject matter jurisdiction. Id.; Village Creek Homeowners Assn. v. Public Utilities Commission, 148 Conn. 336, 339, 170 A.2d 732 (1961).

Despite the array of precedent in this state supporting the dismissal of the appeal in this case for failure to satisfy the service requirements of § 8-28 (a), it must be conceded that this well established doctrine is wholly at variance with the general conception of subject matter jurisdiction as relating only to the class of cases that a court is authorized to decide. “Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 414 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Outside the domain of administrative appeals, this court has maintained the distinction betweeen jurisdiction of the subject matter and of the person. Jurisdiction over the person, which is implicated by defective service upon a party, can be waived and is ordinarily deemed to have been waived by failure to raise a reasonable objection. Jurisdiction-over the subject matter, however, cannot be waived or conferred by consent, since it is properly defined as involving only the govern-mentally established authority of the tribunal.

In the case before us the defect of service, which forms the basis for the dismissal for lack of subject matter jurisdiction, in any other proceeding but an administrative appeal would have been regarded as affecting only jurisdiction over the person of the defendant zoning commission. The commission in an ordinary civil action would be deemed to have waived this defect by filing an appearance and failing to object at any time to the plaintiffs noncompliance with the statutory service requirements. The motion to dismiss of the intervening defendants, which is the basis for the judgment of dismissal, would be subject to the infirmity of lack of standing by those defendants to raise the issue of defective service upon another party, especially where it has been waived by that party. No good reason, except adherence to our precedents, has been suggested for this incongruity between ordinary civil actions and administrative appeals in the treatment of deviations from statutorily prescribed procedures for initiating the proceedings. Courts of many other jurisdictions have considered such factors as waiver, substantial compliance and lack of prejudice in deciding whether dismissal of an administrative appeal is appropriate for failure to follow statutorily prescribed service requirements and have not automatically treated every deviation therefrom as implicating subject matter jurisdiction. Application of Bennion, 97 Idaho 764, 554 P.2d 942 (1976); McLaughlin v. Zoning Board of Appeals, 351 Mass. 678, 223 N.E.2d 521 (1967); Raia v. Board of Appeals, 4 Mass. App. 318, 347 N.E.2d 694 (1976); Kelley v. Hopkinton Village Precinct, 108 N.H. 206, 231 A.2d 269 (1967); Tonko v. Vissers, 21 N. J. 226, 121 A.2d 502 (1956); Board of Adjustment v. Shore, 207 Okla. 381, 249 P.2d 1011 (1952); Graack v. Board of Supervisors, 17 Pa. Commw. 112, 330 A.2d 578 (1975); Appeal of Raoul Maurice, 117 Vt. 264, 90 A.2d 440 (1952).

I believe this court took the wrong course many years ago when we began to treat virtually every deviation from the statutory norm as a defect that deprives a court of subject matter jurisdiction and thus to be unwaivable by the parties or subject to such considerations as lack of prejudice that are applied in other proceedings. We have been traveling down this path for too long, however, to turn back at this late time without some legislative direction. Hopefully, in the aftermath of Simko I and Simko II, the legislature has become aware of how we have been construing the statutes it has enacted specifying the procedures to be followed in exercising the right to appeal from decisions of administrative agencies. Since these procedures are commonly set forth in imperative language, it has not been wholly unreasonable to give them mandatory import and thus to regard any nonconformity as fatal to the appeal even though, at least, with respect to service requirements, such a result was far from inevitable.

Centuries ago the common law courts of England similarly insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw. Some of these enactments are our statutory provisions for amendment of any defect in the writ, complaint, pleadings “or other parts of the record or proceedings”; General Statutes §§ 52-128 and 52-130; our prohibition against abatement of a writ or reversal of a judgment “for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court”; General Statutes § 52-123; our accidental failure of suit statute, permitting a new action to be commenced after the original action has been defeated “for any matter of form”; General Statutes § 52-590; and our statutes prohibiting the defeat of any action for nonjoinder or misjoinder of parties and allowing additional parties to be summoned in when necessary for a complete determination of a controversy. General Statutes §§ 52-108 and 52-107. For reasons that are not entirely clear, these provisions usually have not been deemed applicable to save administrative appeals not complying with statutory procedural specifications.

The legislature, undoubtedly by now aware of the consequences of our draconian application of the mandatory form used in the statutes delineating the procedural requirements for administrative appeals, has chosen thus far not to enact any remedial legislation in this area. Consequently, much as I deplore the jurisprudential path we have taken, I am constrained to continue upon it until such time as we may be directed otherwise by legislative authority.

Accordingly, I concur in the result reached by the majority that the trial court did not err in dismissing the plaintiffs appeal for lack of subject matter jurisdiction because of the failure to comply with the service requirements of § 8-28 (a).

       General Statutes § 8-28 (a) provides in pertinent part: “appeal from PLANNING COMMISSION TO SUPERIOR COURT. REVIEW BY APPELLATE COURT, (a) . . . Notice of such appeal shall be given by leaving a-true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said commission, and by serving a true and attested copy upon the clerk of the municipality.”

       While Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988), did not specifically address the issue of an appellant’s failure to make service upon the chairman or clerk of the board (or commission) as required by General Statutes § 8-8 (b), we find the legal analyses and reasoning fully applicable here. Section 8-8 (b) places the chairman or clerk of the zoning board on the same footing as the clerk of the municipality. Thus the failure properly to cite and serve either is a jurisdictional defect that renders the appeal subject to dismissal under either General Statutes § 8-8 (b) or § 8-28 (a).

       In light of our holding, we need not address the third issue raised by the defendants regarding the alleged defective nature of the bond with surety posted by the plaintiff in this appeal.


author: Callahan, J.

text:
    Mark W. Goldberg et al. v. Insurance Department of the State of Connecticut et al.
    (13153)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued January 5
    decision released April 12, 1988

      Carl J. Schuman, assistant attorney general, with whom were Jonathan L. Ensign, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellants (defendants).

      Gerald L. Garlick, with whom were Marc A. Ruben-stein, certified legal intern, and, on the brief, H. David Leventhal, for the appellees (plaintiffs).
   Callahan, J.

The defendants, the insurance department of the state of Connecticut (department) and Peter W. Gillies, the insurance commissioner (commissioner), having been granted certification by this court, filed the instant appeal from a decision of the Appellate Court. See Goldberg v. Insurance Department, 9 Conn. App. 622, 520 A.2d 1038 (1987). The Appellate Court, by a divided vote, upheld the judgment of the trial court, Bieluch, J., that sustained the administrative appeal of the plaintiffs, Mark W. Goldberg and Options Services, Inc., from a decision of the commissioner suspending for a period of three months all insurance licenses previously issued to the plaintiffs and levying a $4100 fine against Goldberg for violations of the state insurance laws. The trial court and the Appellate Court found that the insurance department was without authority to take any administrative action on its charges against the plaintiffs because the department had failed to comply with the mandates of General Statutes § 4-167 (a) (2). Section 4-167 (a) (2) requires the department to “adopt as a regulation rules of practice setting forth the nature and requirements of all formal and informal procedures available provided such rules shall be in conformance with the provisions of this chapter.”

The underlying facts are not in dispute. In response to a formal complaint, the department began an investigation of a medical benefits insurance plan that was allegedly being operated by the plaintiffs in contravention of the insurance laws. Subsequently, it brought an injunction action to enjoin the plaintiffs from operating the plan. This action was later withdrawn because the Provident Mutual Life Insurance Company had agreed to take over the plan and pay all outstanding claims. In July, 1982, however, the department served notices upon the plaintiffs regarding its intent to hold hearings to determine whether administrative sanctions should be levied. The plaintiffs moved to enjoin the department from conducting the hearings on the ground that, inter alia, § 38-4-8 of the Regulations of Connecticut State Agencies, which was adopted by the department, was legally insufficient and not in compliance with § 4-167 (a) (2). The trial court, Spada, J., denied the injunctive relief sought.

Pursuant to a second amended notice, the administrative hearings were held before a hearing officer over the course of three days: October 19,1982, October 21, 1982, and November 12, 1982. The hearing officer’s “Memorandum of Findings and Recommendations” contained extensive findings of fact and conclusions of law, and recommended the revocation of all insurance licenses issued to the plaintiffs and the imposition of $3100 in fines against Goldberg. Thereafter, the commissioner adopted the factual findings and conclusions of law of the hearing officer but entered a final order suspending the plaintiffs’ insurance licenses for only three months and imposing a fine of $4100 on Goldberg.

The plaintiffs took a timely appeal to the Superior Court from the final order of the commissioner. In their appeal they argued that the defendants acted illegally, arbitrarily, in abuse of their discretion, and in violation of the Uniform Administrative Procedure Act (UAPA) and the United States and Connecticut constitutions in that: “(a) the Insurance Department failed to adopt as a regulation written rules of procedure governing its hearing; (b) the Insurance Department failed to adopt substantive regulations with regard to the standards for the suspension of Plaintiffs’ licenses and the imposition of fines; (c) there was insufficient evidence on which [the commissioner] could suspend Goldberg’s licenses or impose a fine on Goldberg; [and] (d) there was insufficient evidence on which [the commissioner] could suspend [Option] Services’ license.” The trial court sustained the plaintiffs’ appeal on the first ground only and held that the department had failed to adopt sufficient procedural regulations as required by § 4-167 (a) (2), thus rendering the department’s actions void.

Thereafter, the defendants appealed to the Appellate Court which upheld the judgment of the trial court. Goldberg v. Insurance Department, supra, 628. The defendants then petitioned this court for certification which was granted limited to the following issues: “(1) Whether the Insurance Department’s adoption by reference of the sections of the Uniform Administrative Procedure Act (UAPA) governing the conduct of hearings satisfies the UAPA requirement that an agency adopt ‘rules of practice setting forth the nature and requirements of all formal and informal procedures available?’ (2) Whether an administrative proceeding held in accordance with the UAPA can be invalidated because an agency did not sufficiently comply with a statutory requirement to adopt regulatory rules of practice without a showing of prejudice?”

In 1971, the legislature passed the UAPA, which became effective on January 1,1972. See Public Acts 1971, No. 854. The act was subsequently codified in General Statutes §§ 4-166 through 4-189. “ ‘[T]he UAPA was intended to be a uniform guide to all agency action, as the term “agency” is defined in § 4-166 (1). . . . [T]he act was designed for two purposes. First, it provides for uniform standards by which all non-exempted agency action is to be judged; second, it provides a vehicle for judicial review as an alternative for preexisting statutes or in situations in which no appellate review was previously provided.’ McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 440-41, 363 A.2d 103 (1975).” Hartford v. Powers, 183 Conn. 76, 80, 438 A.2d 824 (1981); see also Salmon Brook Convalescent Home v. Commissioner on Hospital & Health Care, 177 Conn. 356, 417 A.2d 358 (1979).

In attempted compliance with § 4-167 (a) (2) the department published a series of eight regulations that went into effect on October 11,1972. See Regs., Conn. State Agencies §§ 38-4-1 through 38-4-8. The only one challenged by the plaintiffs is § 38-4-8 which then provided: “All hearings conducted in the insurance department are conducted in accordance with the requirements of and procedures suggested in Public Act 854 of the 1971 Session of General Assembly, Sections 12 through 17 inclusive, as the same may be amended from time to time. Conferences, interviews, and formal hearings conducted or held as a part of the administrative process of the insurance department are conducted on an informal basis, in accordance with standards designed to meet the purposes to be accomplished by the proceeding:”

The plaintiffs’ primary challenge is addressed to the sufficiency of the content of § 38-4-8, and not to the process by which the regulation was promulgated. Essentially the plaintiffs have claimed that the department has failed to comply with the mandate of § 4-167 (a) (2) because it failed to adopt at least one procedural regulation governing its proceedings that was different from those set forth in the UAPA. They argue that the mere incorporation by reference of the rules of procedure of the UAPA does not comply with the mandate of the statute. The plaintiffs further argue that the actions taken by the defendants were void because they had no authority whatsoever to conduct the disciplinary hearings or to impose sanctions without first having complied with § 4-167 (a) (2). We disagree and find the second issue certified for review dispositive of the appeal.

In order for a reviewing court to reverse or modify an agency’s decision, General Statutes § 4-183 (g) (l) requires the court to find that substantial rights of the appellant have been prejudiced. Here the plaintiffs assert that they were prejudiced by the department’s alleged violation of § 4-167 (a) (2). A review of the record before this court, however, reveals a total absence of any prejudice to the plaintiffs that resulted from the department’s failure to adopt regulations in addition to § 38-4-8.

Notwithstanding the plaintiffs’ arguments to the contrary, ordinarily the validity of an administrative regulation can be challenged only by one directly harmed by its application. Such a challenge requires a showing of some type of personal harm or injury or proof that an individual’s rights have been prejudiced or violated by the regulation. See State Department of Health & Rehabilitative Services v. Alice P., 367 So. 2d 1045, 1052 (Fla. App. 1979); People v. Vasquez, 76 Misc. 2d 5, 10, 348 N.Y.S.2d 1007 (1973); 73 C.J.S. 607, Public Administrative Law and Procedure § 93 (b). Thus, where, as here, a party challenges the failure of an administrative agency either to adopt or publish sufficient procedural rules, that party bears not only the burden of overcoming the presumption of validity that attaches to the agency regulations that exist; Marine Fisheries Commission v. Organized Fishermen of Florida, 503 So. 2d 935, 938 (Fla. App.), review denied, 511 So. 2d 999 (Fla. 1987); NYT Cable TV v. Homestead at Mansfield, Inc., 214 N.J. Super. 148, 164, 518 A.2d 748 (1986), cert. granted, 107 N.J. 154, 526 A.2d 213 (1987); Federated American Ins. Co. v. Marquardt, 108 Wash. 2d 651, 654, 741 P.2d 18 (1987); but must also demonstrate some prejudice as a result of the agency’s alleged failure. United States v. Fitch Oil Co., 676 F.2d 673, 678 (Temp. Emer. Ct. App. 1982); Pasco, Inc. v. Federal Energy Administration, 525 F.2d 1391, 1405 (Temp. Emer. Ct. App. 1975); Jergeson v. Board of Trustees of School District No. 7, 476 P.2d 481, 482, 484 (Wyo. 1970); see also 2 B. Mezines, J. Stein & J. Gruff, Administrative Law § 8.02 [3], p. 8-27.

Prior to the start of the hearings in October, 1982, the department sent a “Second Amended Notice of Hearing,” which specifically notified the plaintiffs that the public hearings would be conducted “[i]n accordance with the provisions of Sections 4-177a and 4-182 of the Connecticut General Statutes” and, generally, “in accordance with the provisions of the Uniform Administrative Procedure Act (Chapter 54, C.G.S.).” The notice detailed the statutory basis upon which the defendants’ legal authority and jurisdiction to conduct the hearing rested, and the specific statutory violations that were involved. In addition, the notice set forth, with a high degree of specificity, the relevant facts and conduct of the plaintiffs that formed the basis of the charges against them that the defendants intended to pursue during the hearings. The notice concluded by inviting all interested persons to attend the public hearing and to participate therein in accordance with the applicable provisions of the UAPA. In light of the foregoing, we conclude that the plaintiffs cannot, in good faith, raise the argument that they did not have advance notice of the applicable procedural rules under which the hearings were to be conducted.

In addition, the plaintiffs have pointed to no specific rule of procedure that the defendants applied or followed during the course of the hearings that was unpublished or of which they had no notice. Nor have the plaintiffs argued that they were deprived of a full and fair opportunity to be heard. The hearing was conducted over a three day period at which time the plaintiffs were given full opportunity to cross-examine the defendants’ witnesses, to present witnesses of their own and to submit relevant documentary evidence.

The plaintiffs argue, however, that they demonstrated prejudice because they showed that the defendants “had modified the statutory requirements of the UAPA with regard to the request for a more definite statement [of its allegations] and that Defendants had their own informal procedure, notwithstanding the Connecticut General Statutes, with regard to lawfully-issued subpoenas.” Specifically, the plaintiffs argue that the defendants relied on unpublished regulations to: (a) deny the plaintiffs’ request for a more detailed statement of the facts supporting the defendants’ allegations pursuant to General Statutes § 4-177 (b) (4); and (b) refuse to honor a subpoena issued in accordance with General Statutes § 51-85. As a result, the plaintiffs claim they were hindered in the preparation of their defense. We are unpersuaded.

It must first be noted that the plaintiffs have not specified in what fashion they were hindered or prevented from adequately preparing their defense. General Statutes § 4-177 (b) (4) requires a more detailed statement to be furnished upon request only where the agency is unable to state the facts on which it relies in detail in the initial notice of the hearing. As previously indicated, the second amended notice provided by the defendants was very specific and fully complied with § 4-177 (b) (1) through (4). It is therefore clear that the denial of the plaintiffs’ request for a more specific statement did not result from the application of some unpublished procedural rule of the department; a more specific statement was simply not necessary or required. Further, the commissioner’s alleged refusal to attend the hearing personally in response to a subpoena issued by the plaintiffs’ attorney pursuant to § 51-85 was based by the commissioner upon a claimed statutory exemption under General Statutes § 4-13a. It clearly was not based upon a policy or procedural rule of the commissioner or department that should have been adopted and published as a regulation under § 4-167 (a) (2).

The only other argument raised by the plaintiffs in connection with their claim of prejudice is that the department failed to adopt and publish substantive guidelines regarding the decision to suspend or revoke an insurance license. The plaintiffs refer to the testimony of Jean Shea, the assistant chief of the licenses and claims division, which indicates that the decision to suspend or to revoke an insurance license is within the discretion of the commissioner. It must first be noted that, at oral argument before this court, the plaintiffs’ counsel conceded that this argument involves a substantive claim that had not been briefed or presented to this court. Under the circumstances we need not reach it. Moreover, we also find the argument to be without merit because the legislature has specifically defined the various acts or conduct prohibited and has mandated the range of permissible penalties that the commissioner may impose for various violations of the insurance laws of this state. See, e.g., General Statutes § 38-62 et seq. While the ultimate decision whether to revoke or suspend an insurance license is left to the discretion of the commissioner, such discretion must be exercised within statutory guidelines. Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 695, 458 A.2d 387 (1983); Page v. Welfare Commissioner, 170 Conn. 258, 262, 365 A.2d 1118 (1976). Should the commissioner exceed the statutory limits, impose an unwarranted penalty, or abuse his discretion, the injured party has a right to judicial review. The decision to suspend or revoke must be made on an individual, case-by-case basis, only after an investigation and a hearing, and only after the licensee has been given a full and fair opportunity to be heard.

Therefore, we hold that the plaintiffs have failed to allege or to demonstrate that the content of § 38-4-8, as adopted and applied in this case, in any way prejudiced their rights in the proceedings before the department. The plaintiffs have failed to demonstrate that the defendants applied to their prejudice any rules of procedure that were not published as a regulation as required by § 4-167 (a) (2), nor have they even intimated a specific area of the proceedings in which a regulation should have been adopted in order to accord with the minimum requirements of due process.

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings necessary to decide the merits of the following issues which were raised by the plaintiffs in their appeal to the Superior Court and which have yet to be ruled upon: (1) Whether there was sufficient evidence on which Defendant could suspend Goldberg’s licenses or impose a fine on Goldberg; and (2) Whether there was sufficient evideneé on which Defendant could suspend Options Services, Inc.’s license.

In this opinion the other justices concurred.

       General Statutes § 4-167 (a) (2) provides: “organization description TO BE ADOPTED. RULES OF PRACTICE. PUBLIC INSPECTION, (a) In addition to other regulation-making requirements imposed by law, each agency shall ... (2) adopt as a regulation rules of practice setting forth the nature and requirements of all formal and informal procedures available provided such rules shall be in conformance with the provisions of this chapter.”

       The Regulations of Connecticut State Agencies § 38-4-8 then provided: “All hearings conducted in the insurance department are conducted in accordance with the requirements of and procedures suggested in Public Act 854 of the 1971 Session of the General Assembly, Sections 12 through 17 inclusive [the UAPA], as the same may be amended from time to time. Conferences, interviews, and formal hearings conducted or held as a part of the administrative processes of the insurance department are conducted on an informal basis, in accordance with standards designed to meet the purposes to be accomplished by the proceeding.”

       The hearing was initially scheduled to begin on July 22,1982, and was thereafter rescheduled to August 12, 1982. The hearing was again postponed pending a decision in the injunction action filed by the plaintiffs and was rescheduled to October 19,1982. Each time the hearing was to be held the defendants gave proper notice of the hearing prior to its scheduled commencement.

       At oral argument before this court the plaintiffs acknowledged that they are challenging only the “content of the regulation” and not the process by which it was adopted. The plaintiffs proceeded under the assumption that the 1972 insurance department regulations were properly adopted with the approval of the legislative regulation review committee.

       General Statutes § 4-183 (g) provides: “appeal to superior court. . . .
      “(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       The plaintiffs argue that they did not have to demonstrate prejudice because the defendants’ actions were void ab initio for failing to comply with the mandates of the UAPA. The plaintiffs also alternatively argue that the administrative agency should bear the burden of demonstrating the absence of prejudice to the plaintiffs.

       The initial and first amended notices also specifically notified the plaintiffs that the hearings would be conducted in accordance with General Statutes §§ 4-177a and 4-182.

       “[General Statutes] Sec. 51-85. authority and powers of commissioners of the superior COURT. Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the superior court and, in such capacity, may, within the state, sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds. Each such attorney may also issue subpoenas to compel the attendance of witnesses and subpoenas duces tecum in administrative proceedings. If, in any administrative proceeding, any person disobeys such subpoena or, having appeared in obedience thereto, refuses to answer any proper and pertinent question or refuses to produce any books, papers or documents pursuant thereto, application may be made to the superior court or any judge thereof for an order compelling obedience.”

       General Statutes § 4-177 (a) and (b) (1) through (4) provide: “contested cases, notice, record, (a) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.
      “(b) The notice shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; (4) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.”

       “[General Statutes] Sec. 4-13a. appearance of assistant on subpoena of state officer. Whenever any elective state officer or his deputy or any state commissioner or his deputy is subpoenaed to appear before any court in any matter involving the state, he may delegate any assistant having knowledge of the facts in issue to appear for him, unless such summons is issued by a judge of the court before which such matter is pending, requiring the personal appearance of said commissioner.”


text:
    Wayne M. Ely, Administrator (Estate of Christopher Ely), et al. v. C. Connor Murphy et al.
    (13228)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued January 7
    decision released April 12, 1988

      Richard A. Bieder, with whom was Carey B. Reilly, for the appellants (plaintiffs).

      J. Kevin Golger, with whom, on the brief, was Paul V. McNamara, for the appellee (named defendant).
   Covello, J.

The plaintiff, in his capacity as administrator of the estate of his deceased son, Christopher Ely, and in his individual capacity, instituted this action in four counts seeking damages in connection with his son’s wrongful death. These tort claims arose out of an incident in which C. Connor and Virginia Murphy were the social hosts at a high school graduation party given at their home and, following the party, an eighteen year old guest, Thomas P. Foley, struck the decedent, also a guest, with an automobile, fatally injuring him.

The jury might reasonably have found that the named defendant, C. Connor Murphy (defendant), acted as host for a high school graduation open house to which the entire class of over four hundred young people was invited. His son was a member of the graduating class. The defendant purchased twelve half kegs of beer for the event.

The party began at 8 p.m. on the evening of June 12, 1983, and lasted until approximately 3:30 a.m. the following morning. Cars were parked all along the roadway leading to the defendant’s home. The defendant stationed a youth at the entrance to the party to collect three dollars from each arriving guest. Those attending ranged in age from fifteen to nineteen. The legal drinking age at the time was nineteen. Three kegs were simultaneously tapped and kept open during the party.

There were no police or security personnel present. There were no bartenders. No one monitored the beer consumption nor was there anyone present at the end of the evening to check the condition of departing guests. There was no specific time when the party was to end.

At approximately 11 p.m., the police arrived at the party in response to neighbors’ complaints of erratic driving and teenage drinking. The defendant assured the police that he was taking the operators’ licenses and keys of those who were driving and that in order to leave the party they had to see him.

The defendant saw and spoke with Thomas Foley on at least two occasions that evening. The young man, age eighteen, was a guest at the party and was very drunk. Around 1 a.m., the defendant asked Foley where his keys were and Foley responded that they were in the car. The defendant never obtained the keys.

At about 3:30 a.m., witnesses observed Foley drunk and staggering into his mother’s station wagon. Moments later the vehicle struck Christopher Ely, another guest, fatally injuring him. The accident happened at the side of the road within one hundred yards of the defendant’s driveway.

The first three counts of the complaint were directed against the hosts, the Murphys. The first count purported to set forth a cause of action under General Statutes § 30-102, the dram shop act. The second count alleged common law negligence. The third count sought recovery based upon the Murphys’ reckless and wanton misconduct. The fourth count was directed against Thomas P. Foley and his parents and alleged both statutory and common law negligence.

The defendant Murphys filed a motion to strike those portions of the second count of the complaint that alleged the negligent service of alcohol to those attending the party, including the defendant Thomas Foley. The court, Lavery, J., granted the motion to strike, concluding that in Connecticut no common law cause of action exists for negligently furnishing alcoholic beverages. The case was subsequently withdrawn as to the Foleys and the matter was thereafter tried to a jury on (1) the dram shop claim, (2) the remaining allegations of negligence in the second count, and (3) the third count of reckless and wanton misconduct. At the close of the defendants’ case the court, Fuller, J., granted the defendants’ motion for a directed verdict as to the negligence count, concluding that the remaining allegations of negligence were inextricably intertwined with the claims concerning the service of alcohol. The dram shop claim was then withdrawn, as was the claim against Virginia Murphy, so that the case was submitted to the jury for their consideration only on the allegations concerning reckless and wanton misconduct by C. Connor Murphy. The jury returned a verdict for the defendant.

The plaintiff claims error in the court’s (1) granting the motion to strike portions of the second count, (2) granting the motion for a directed verdict as to the second count, (3) denying his motion to set aside the verdict, and (4) refusing to charge on negligence per se in connection with the claim of reckless and wanton misconduct. We find error in part and order a new trial.

The stricken portions of the second count purported to state a common law cause of action in tort based on negligence in serving alcohol to minors who were known to be or should have been known to be intoxicated. While such acts may constitute the breach of a duty owed to others, the cause of action in a variety of factual settings has uniformly failed for the reason that the subsequent injury has been held to have been proximately caused by the intervening act of the immoderate consumer whose voluntary and imprudent consumption of the beverage brings about intoxication and the subsequent injury. Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980); Slicer v. Quigley, 180 Conn. 252, 255-56, 429 A.2d 855 (1980); Nelson v. Steffens, 170 Conn. 356, 358-59, 365 A.2d 1174 (1976); Moore v. Bunk, 154 Conn. 644, 647, 228 A.2d 510 (1967); Nolan v. Morelli, 154 Conn. 432, 436, 226 A.2d 383 (1967). “ ‘At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or properly either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.’ Nolan v. Morelli, supra, 436-37; see also 45 Am. Jur. 2d, Intoxicating Liquors §§ 553-55; 48 C.J.S., Intoxicating Liquors § 430; 75 A.L.R.2d 833.” Slicer v. Quigley, supra.

The proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors. With respect to minors, various legislative enactments have placed them at a disability in the context of alcohol consumption. General Statutes § 30-86 provides that with limited exceptions the social host who delivers liquor to a minor shall be criminally liable. Further, General Statutes § 30-89 provides that a minor who purchases liquor or even possesses it in a public place is also criminally liable. These and similar statutes reflect a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol. The legislature has seen fit to amend upward the minimum drinking age three times within the short span of just six years.

This growing public awareness, as reflected by the legislature’s frequent, recent amendments to the applicable statutes, causes us to conclude that common law precepts in this area also warrant reexamination. “Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. . . . The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. ... If, however, stare decisis is to continue to serve the cause of stability and certainly in the law—a condition indispensable to any well-ordered system of jurisprudence—a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” (Citations omitted.) Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955); Ozyck v. D’Atri, 206 Conn. 473, 482-83, 538 A.2d 697 (1988) (Healey, J., concurring). We have deemed it appropriate, in other contexts, to depart from common law precedents where we have found compelling reasons and logic for doing so. See, e.g., Moore v. McNamara, 201 Conn. 16, 513 A.2d 660 (1986) (paternal duty of support of minor children); O’Connor v. O’Connor, 201 Conn. 632, 519 A.2d 13 (1986) (where strict application of common law rule of lex loci delicti undermines important state policy, we refuse to apply it).

In view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury. To the extent that our earlier rulings in Slicer v. Quigley, supra; Nelson v. Steffens, supra, and Moore v. Bunk, supra, indicate otherwise, we herewith overrule them. Other jurisdictions that have considered the problem of negligent service of alcohol to minors have similarly recognized that “[ejxperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.” Herald Publishing Co. v. Bill, supra, 62; see, e.g., Macleary v. Hines, 817 F.2d 1081 (3d Cir. 1987) (social host who creates unreasonable risk of intoxication of minor guests may be liable for injuries resulting therefrom); Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985) (social host who serves alcohol to noticeably intoxicated minor in violation of statute, knowing minor would soon drive, may be liable to third person injured by intoxicated minor driver); Langemann v. Davis, 398 Mass. 166, 168 n.2, 495 N.E.2d 847 (1986) (service of alcohol to minor in violation of statute “could be evidence of negligence supporting a civil action against the provider”); Traxler v. Koposky, 148 Mich. App. 514, 384 N.W.2d 819 (1986) (social host liable in tort for harm caused by furnishing alcohol to a minor motorist); Batten v. Bobo, 218 N.J. Super. 589, 528 A.2d 572 (1986) (intoxicated minor guest can maintain cause of action against social host who provided cause of intoxication); Montgomery v. Orr, 130 Misc. 2d 807, 498 N.Y.S.2d 968 (1986) (adult social host liable under common law negligence for injuries caused by violation of statute prohibiting furnishing alcohol to minors who, because of their immaturity, are unable to make informed judgments as to alcohol); Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) (social host negligent per se in serving alcohol to point of intoxication to minor and could be liable for injuries resulting therefrom); Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986) (liability of social hosts for furnishing alcohol restricted to cases involving drunk drivers and minors); Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986) (social hosts liable for personal injury caused by minor driver to whom they had negligently furnished intoxicating beverages); but see Kirkland v. Johnson, 499 So. 2d 899 (Fla. App. 1986) (no cause of action against social host for injuries to third parties caused by intoxicated minor to whom host had served alcoholic beverages); Childress v. Sams, 736 S.W.2d 48 (Mo. 1987) (social hosts not liable for injuries caused by guests’ intoxication; hosts who charged small fee for party did not forfeit social host status); Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (1986) (social host not liable at common law for the service of alcohol to intoxicated adult guest who subsequently caused automobile collision).

We have, in other contexts, acknowledged that minors should not be held to have assumed the same degree of responsibility as we assign to adults. See, e.g., Blancato v. Feldspar Corporation, 203 Conn. 34, 522 A.2d 1235 (1987) (minor exempted from exclusive operation of workers’ compensation law because of youth and immaturity in context of illegal and hazardous employment).

This is not to say, however, that the social host or other purveyor of alcohol is absolutely liable to the minor served or innocent third parties thereafter injured. Rather, the matter of proximate cause of the injury and ensuing damage becomes one of fact to be determined in each instance by the court or jury as the parties elect. Wu v. Fairfield, 204 Conn. 435, 438-39, 528 A.2d 364 (1987); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383-84, 441 A.2d 620 (1982); see Merhi v. Becker, 164 Conn. 516, 521-22, 325 A.2d 270 (1973). We conclude, therefore, that it was error to strike those portions of the second count’s allegations concerning negligent service of alcohol and to have directed a verdiet for the defendants as to the negligence allegations that remained.

Finally, the plaintiffs claim error in the court’s failure to charge on negligence per se in connection with the claim of reckless and wanton misconduct. In view of the procedural posture in which this case will find itself on remand, we do not perceive this as an issue that will arise at a later trial and we therefore decline to address it further. State v. Keiser, 196 Conn. 122, 131, 491 A.2d 382 (1985).

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The claim against his wife, Virginia Murphy, was not pursued.

       See General Statutes (Rev. to 1983) § 30-1 (20).

       General Statutes § 30-102 provides in relevant part: “dram shop act; LIQUOR SELLER LIABLE FOR DAMAGE BY INTOXICATED PERSON, (a) If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section. . .

       Paragraphs 8 (a), (b) and (d) of count II of the amended complaint alleged: “Said injuries and resulting death to the plaintiffs decedent, Christopher John Ely, were as a result of the negligence and carelessness of the defendants, C. Connor Murphy and Virginia Murphy, in that they:
      “(a) provided alcoholic beverages to minors, including Thomas Foley;
      “(b) distributed unlimited quantities of alcoholic beverages to children without monitoring their intake . . .
      “(d) continued to serve alcoholic beverages to Thomas Foley when they knew, or should have known, he was intoxicated.”

       General Statutes § 30-86 provides in relevant part: “sales to minors, INTOXICATED PERSONS AND DRUNKARDS. EXCEPTIONS. Any person who delivers or gives any such liquors to such minor, except on the order of a practicing physician, shall be fined not more than one thousand five hundred dollars or imprisoned not more than eighteen months, or both. The provisions of this section shall not apply . . . (3) to a delivery made to a minor by a parent, guardian or spouse of the minor, provided such parent, guardian or spouse has attained the age of twenty-one and provided such minor possesses such alcoholic liquor while accompanied by such parent, guardian or spouse.”

       General Statutes § 30-89 provides in relevant part: “(b) Any minor who possesses any alcoholic liquor on any street or highway or in any public place or place open to the public, including any club which is open to the public shall be fined not less than two hundred nor more than five hundred dollars.”

       See, e.g., General Statutes §§ 30-86a, 30-87, 30-88a.

       Public Acts 1985, No. 85-264, Public Acts 1983, No. 83-508, and Public Acts 1982, No. 82-68, provide in relevant part:
      “[Public Acts 1985, No. 85-264] AN ACT RAISING THE DRINKING AGE TO TWENTY-ONE. '
      “Section 1. Subdivision (20) of section 30-1 of the general statutes is repealed and the following is substituted in lieu thereof:
      “(20) ‘Minor’ means any person under [twenty] TWENTY-ONE years of age OTHER THAN A PERSON WHO HAS ATTAINED THE AGE OF TWENTY ON OR BEFORE SEPTEMBER 1, 1985.”
      “[Public Acts 1983, No. 83-508] AN ACT . . . RAISING THE DRINKING AGE TO TWENTY. . . .
      “Sec. 2. Subdivision (2) of section 30-1 of the general statutes is repealed and the following is substituted in lieu thereof:
      “(20) ‘Minor’ means any person under [nineteen] TWENTY years of age.”
      “[Public Acts 1982, No. 82-68] AN ACT RAISING THE DRINKING AGE TO NINETEEN.
      “Sec.-l. Subdivision (20) of section 30-1 of the general statutes, as amended is repealed and the following is substituted in lieu thereof:
      “(20) ‘Minor’ means any person under [eighteen] NINETEEN years of

       The plaintiff alleged that the defendant was negligent and careless in that he: “(a) failed to provide adequate adult and/or police protection for said graduation party;
      “(b) failed to properly supervise said individuals when [he] knew alcoholic beverages were being sold;
      “(c) failed to remain sober in order to properly supervise Thomas Foley and others on the premises;
      “(d) failed to notify the parents of Thomas Foley of his intoxicated state;
      “(e) failed to warn Thomas Foley and others of the dangers of driving while intoxicated;
      “(f) failed to take Thomas Foley’s car keys in order to prevent him from driving in an intoxicated state;
      “(g) allowed Thomas Foley to drive when [he] knew, or should have known of the dangers of driving;
      “(h) failed to provide proper police or other security protection.”