author: Hull, J. Arthur H. Healey, J.,

text:
    84 Century Limited Partnership v. Board of Tax Review of the Town of Rocky Hill
    (13209)
    Healey, Shea, Callahan, Glass and Hull, Js.

      (One justice dissenting)

    Argued February 9
    decision released April 26, 1988

      Wesley W. Horton, with whom were Susan M. Cormier and Daniel H. Kennedy, Jr., for the appellant (defendant).

      I. Milton Widem, with whom was Emily N. Roisman, for the appellee (plaintiff).

      George C. Hastings and Lori R. Wilson filed a brief for the Connecticut Conference of Municipalities as amicus curiae.
   Hull, J.

The sole issue on this appeal is whether a municipal assessor has the power, under General Statutes § 12-55, to increase a real property assessment between decennial revaluations on the ground that a sale of the property in question demonstrates that the property has greatly increased in value in relation to other properties in the municipality. We conclude that although an assessor, absent unusual circumstances that do not exist in this case, cannot be required to make such an interim revaluation of real property, he may do so in accordance with § 12-55, under appropriate circumstances.

This action involves a tax appeal by the plaintiff from a decision of the defendant which affirmed the town assessor’s upward reassessment of the plaintiff’s property for the 1984,1985 and 1986 tax years. The plaintiff claimed that the reassessment was excessive and illegal and that, as a result, the plaintiff’s property bore a disproportionate share of the tax burden in the town of Rocky Hill. The plaintiff moved for summary judgment, claiming, inter alia, that as a matter of law the defendant was barred from reassessing the plaintiff’s property under the provisions of General Statutes § 12-62. The court denied that motion. The court, in its memorandum of decision, stated that the plaintiffs reliance on Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981), for its claim that § 12-62 precludes interim revaluations, was misplaced. The court noted that, despite dicta in Uniroyal, Inc., that pursuant to § 12-62 “revaluation . . . need only be available once each decade,” the Uniroyal, Inc. court did not hold that more frequent revaluations are illegal.

The court noted that a judgment of the Superior Court in 1982 found the fair market value of the property in question for the years 1979,1980 and 1981 to be $23,820,950. It further noted that in 1984 the plaintiff purchased the property for $57,539,739, an increase in value of 141 percent. The court relied on the affidavit of the Rocky Hill tax assessor that stated that he had examined that sale “in light of all other recent residential and commercial property sales in Rocky Hill and found the assessment on the subject property to be grossly out of line with other assessments in the municipality .... Therefore, on October 1,1984, he reassessed the plaintiff’s property pursuant to General Statutes §§ 12-55 and 12-62 in order to keep the plaintiff’s assessment consistent with other property assessments in the municipality.” The court then concluded that the language of § 12-55 providing that “[t]he assessors may increase or decrease the valuation of property as named in any of such lists or in the last-preceding grand list,” when read with the language in § 12-64 providing that all property “shall be liable to taxation at a uniform percentage of its present true and actual valuation . . . to be determined by the assessors,” empowered assessors to make interim adjustments in assessments. Finally the court stated that “a question of fact exists as to the method the assessor used in making his revaluation and whether or not it conformed to Sec. 12-64.”

The plaintiff then moved for reargument of its motion for summary judgment, claiming that the case of Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439-41, 525 A.2d 91 (1987), held that assessors are “precluded” from making interim revaluations based on a change in the fair market value of the property “attributable solely to changes in the market conditions.” The court concluded that Ralston Purina Co. “clearly holds that the decennial revaluations of real property mandated by General Statutes § 12-62 [are] the exclusive remedy for the town to deal with changes in market values, and more frequent adjustments are not permitted.” The court then rescinded its earlier decision denying the plaintiffs motion for summary judgment and granted it. The defendant appealed from the judgment granting the plaintiffs motion for summary judgment, claiming that the assessor had the power under § 12-55 to adjust the assessment in the interim years between decennial revaluations on the ground that the sale of the property in question shows that the property has greatly increased in value in relation to other properties in town.

The facts as found in the court’s memorandum of decision, dated June 30,1987, on the plaintiff’s motion for reargument are not in dispute. The plaintiff is the owner of a 941 unit apartment complex known as Century Hills located in Rocky Hill. Pursuant to General Statutes § 12-62, the town of Rocky Hill conducted a general revaluation of local real estate, effective October 1,1979. The plaintiff’s predecessor in title had contested the 1979 revaluation for the years 1979, 1980 and 1981, which resulted in a final judgment that the true and actual valuation of the property for those years was $23,820,950 and that the assessment should be 70 percent of that figure. The plaintiff purchased the property on March 29, 1984, for $57,339,737. After that purchase, the tax assessor revalued and reassessed the plaintiff’s property, finding the true valuation of the property as of October 1,1984, to be $41,987,500 and the assessed value $29,391,250

The assessor stated in his affidavit that he “reassessed the subject property in light of the sale to the plaintiff and in light of the most recent assessment ratio available on or about October 1,1984. The revaluation and reassessment was not based on any new construction, physical improvements or changes in the use of the subject property.”

In Ralston Purina Co., the plaintiffs appealed to the Superior Court, pursuant to General Statutes § 12-118, from the refusal of the defendant board of tax review of the town of Franklin to reduce the October 1,1982 tax assessments on their real and personal property in that town. The plaintiffs had claimed that the fair market value of their property had declined substantially since the last decennial revaluation conducted by the town, as evidenced by the subsequent sale of the property in 1983 at a price significantly below its assessed value. Ralston Purina Co. v. Board of Tax Review, supra, 428. The trial court did not discuss whether either of the plaintiffs was entitled to an interim adjustment of its property assessment, but adopted the implicit conclusion of an earlier judge in the case that the defendant was obligated to make such adjustments. The trial court sustained the appeals and ordered a reduction in the assessed values of the properties. This court found error in the court’s ruling that the board of tax review was required, as a matter of law, to adjust the plaintiffs’ tax assessments in the interim between decennial revaluations of the real property. We noted that an appeal under General Statutes § 12-118 conditions relief upon proof of failure to comply with § 12-64, which in turn provides that all real estate “ ‘shall be liable to taxation at a uniform percentage of its present true and actual valuation . . . to be determined by the assessors.’ ” Id., 434. The defendant in Ralston Purina Co. v. Board of Tax Review, supra, 435, relied principally on the language of General Statutes § 12-62 and this court’s interpretation of that statute in Uniroyal, Inc. v. Board of Tax Review, supra. The defendant board conceded that, under certain circumstances, such as the destruction or expansion of property, a substantial change in its use or zoning classification, or a decision by the taxpayer to go out of business, it would be required to conduct an interim revaluation of property. Ralston Purina Co. v. Board of Tax Review, supra, 436.

The plaintiffs in Ralston Purina Co. argued that although § 12-62 requires revaluation of real estate at least every ten years it does not preclude such revaluation in appropriate circumstances. They emphasized particularly the express language of § 12-64 which provides that all nonexempt real property shall be taxed at its “present true and actual valuation,” defined in General Statutes § 12-63 as the “fair market value thereof and not its value at a forced or auction sale.” The plaintiffs then claimed that an adjustment in their assessments was required pursuant to General Statutes § 12-55 which states in part that “assessors may increase or decrease the valuation of property as named in . . . the last-preceding grand list.” The plaintiffs conceded that § 12-55 appeared to be permissive but that when read in context with §§ 12-62 through 12-64 it mandates the reassessment they sought. Ralston Purina Co. v. Board of Tax Review, supra, 436-37.

This court noted that the issue of whether assessors are required to conduct interim revaluations of property to account for the effect of changes in market conditions was not addressed by the pertinent statutes. The court then stated: “The plaintiffs’ reading of the statutes, standing alone, is therefore as plausible as the defendant’s interpretation. . . . [Hjowever, the plaintiffs’ argument directly contradicts our interpretation of § 12-62 in [Uniroyal, Inc. v. Board of Tax Review, supra].” (Emphasis added.) Id., 437.

We then stated: “We held in [Uniroyal, Inc.,] that the decennial revaluation of real property mandated by § 12-62 is the exclusive remedy provided by the legislature ‘for variations in the effect of market conditions on different parcels . . . . ’ [Uniroyal, Inc. v. Board of Tax Review, supra, 629]. Indeed, the procedure established in § 12-62 reflects the legislative judgment that the remedy of revaluation ‘need only be available once each decade,’ rather than any time property values fluctuate in response to market conditions. [Id.]; see Kays, Inc. v. Board of Tax Review, [170 Conn. 477, 480, 365 A.2d 1207 (1976)]; Bassett v. Rose, 141 Conn. 129, 134-35, 104 A.2d 212 (1954). The plaintiffs’ reliance upon § 12-64 is therefore misplaced because § 12-64, in contrast to § 12-62, ‘is concerned with the manner of taxation, not the frequency of valuation, and it does not purport to require assessors to be updated on their valuations at all times.’ Kays, Inc. v. Board of Tax Review, supra; [Uniroyal, Inc. v. Board of Tax Review, supra, 629].” Id., 437-38.

This court concluded that the legislature was aware that “even though property values may fluctuate within a ten year period, it is neither realistic nor necessarily desirable to require more frequent property revaluations.” Id., 438. The court found that it was bound by the interpretation of § 12-62 in Uniroyal, Inc., since the plaintiffs did not provide a convincing rationale for the court to depart from that interpretation. Id., 439. “Since the legislature has not amended § 12-62 subsequent to our decision in Uniroyal, Inc., we can discern no reason now to amend that statute judicially so as to alter the apparent intent of its drafters to preclude, as a general rule, interim revaluations of real property.” Id.

The plaintiffs in Ralston Purina Co. attempted to distinguish Uniroyal, Inc., on the ground that the plaintiffs in that case claimed that they were bearing a disproportionately high burden of taxes while in Ralston Purina Co. they claimed only that the fair market value of their property had declined in the interim period between decennial revaluations. In Ralston Purina Co., we declared: “In the context of this case, however, this distinction has no significance. Although the plaintiffs here rely upon different grounds in challenging their tax assessments, they seek the same relief requested by the plaintiffs and denied by this court in [Uniroyal, Inc.,] an interim revaluation of their property. As we concluded in [Uniroyal, Inc. v. Board of Tax Review, supra, 629], the legislature, in § 12-62, has precluded such interim revaluations except in unusual circumstances, which did not exist in that case and likewise do not exist here. The plaintiffs presently before us are therefore no more entitled to an interim adjustment of their tax assessments than were the plaintiffs in [Uniroyal, Inc.]” Id., 440. The court remanded both cases with direction to render judgments for the defendant.

The defendant in this case first argues that the Ralston Purina Co. ruling denying mandatory interim revaluation does not apply to a case where the board is operating permissively under § 12-55. The defendant argues that, except for the generally recognized narrow exceptions where interim reassessment is allowed, the board and the assessors would have a greatly restricted function if they were not able to equalize assessments between decennial revaluations. It claims that just as § 12-55 states that an assessor “shall equalize” the lists “if necessary,” General Statutes § 12-111 states that “[s]uch board [of tax review] may equalize and adjust the valuations and assessment lists of such town[s]. . . . ”

In its second briefed argument, the defendant, citing Kays, Inc. v. Board of Tax Review, supra, claims that its interpretation of the effect of § 12-55 does not leave the taxpayer unprotected because he has a remedy if he shows that he has assumed a disproportionate tax burden, a claim the plaintiffs in Ralston Purina Co. did not make. The defendant claims that the Ralston Purina Co. majority’s statement that the lack of an allegation in that case of a disproportionate burden “has no significance” contradicts Uniroyal, Inc.’s pronouncement that “ ‘[t]he plaintiffs would be entitled to relief under § 12-118 if [they] could prove that [their] property was bearing a disproportionately high tax burden because of the defendant’s failure to comply with § 12-64.’ ” Uniroyal, Inc. v. Board of Tax Review, supra, 626. Thus, it finally argues, the assessor’s remedy under § 12-55 when a taxpayer’s assessment is disproportionately low is the corollary of the taxpayer’s remedy under § 12-118 when his assessment is disproportionately high.

The plaintiff in its brief relies solidly on language previously cited in Ralston Purina Co., which in turn cited Uniroyal, Inc., to the effect that an increase or decrease in the sale price of real property which reflects a change in market conditions may only be adjusted as part of a general revaluation pursuant to § 12-62. The plaintiff quotes the Uniroyal, Inc. court which stated that the average ratio of the assessed values of properties to their actual selling prices was “not applicable to discrepancies in valuation which arise during the ten-year period between valuations.” Uniroyal, Inc. v. Board of Tax Review, supra, 630.

The plaintiff stresses that the limitation on the assessor’s power to make interim revaluations, only in the unusual circumstances referred to in Ralston Purina Co. v. Board of Tax Review, supra, 435-46, is also reflected in two statutory exceptions, General Statutes § 12-53a, permitting a reassessment where new construction is completed on property between revaluations, and General Statutes § 12-64a, authorizing a reduction in the assessed value of property upon the demolition and removal of damaged buildings.

The plaintiff points out that the defendant’s argument is exactly that raised by Justice Shea’s dissent in Ralston Purina Co., when Justice Shea argued that § 12-55 should be read to authorize assessors to “increase or decrease the valuation of property” in fulfillment of their duty to “equalize” the annual tax lists of a town but only “when special circumstances pertaining only to one property result in a substantial change in its value.” Id., 442. The plaintiff’s concluding argument is that § 12-55 is no more than an administrative statute which sets forth the procedure for noticing a change in the valuation of property. It provides, the. plaintiff claims, no independent authority upon which an assessor may rely in making such a change, other than permitting the making of assessments “omitted by mistake” or “required by law.”

We look first to the holding in Uniroyal, Inc. v. Board of Tax Review, supra. The plaintiffs, pursuant to § 12-118, appealed to the Superior Court from the refusal of the board of tax review to reduce the valuation of its land and buildings in Middlebury. The trial court rendered judgment for the defendant on the ground that the plaintiffs were not aggrieved by the action of the board and the plaintiffs appealed to this court. Id., 620.

Although not explicitly articulated in Uniroyal, Inc., it is clear from the above facts that the plaintiffs were seeking mandatory interim revaluation. Their first argument was that the trial court erred in not concluding that their property was bearing a disproportionately high burden of taxes in Middlebury and in failing to equalize the tax burden to that of other property in the town. Id., 622. This court discussed § 12-64, providing that all nonexempt real estate “shall be liable to taxation at a uniform percentage of its present, true and actual valuation to be determined by the assessors . . . . ” Id., 623. It then analyzed the plaintiffs’ extensive expert testimony concerning the average ratio of the assessed values of Middlebury properties to their actual selling prices for certain years in question. Id. The court then discussed at length the use of average ratio analyses to establish the unfairness of assessment practices. Id. It then pointed out that the plaintiffs introduced the average ratio evidence in an effort to demonstrate that although the assessor applied a 65 percent valuation factor to their property, they actually applied a much lower valuation to other Middlebury property. It stated that “[s]uch a practice would violate the requirements of General Statutes § 12-64. The plaintiffs would be ‘entitled to relief under § 12-118 if [they] could prove that [their] property was bearing a disproportionately high tax burden because of the defendant’s failure to comply with § 12-64.’ Kays, Inc. v. Board of Tax Review, 481, quoting Lerner Shops of Connecticut, Inc. v. Waterbury, [151 Conn. 79, 86, 193 A.2d 472 (1963).] As our cases indicate, relief under § 12-118 is conditioned upon proof of failure to comply with § 12-64.” Id., 626.

The court then found that the average ratio evidence did not prove any violation of the statutory assessment scheme. Id., 627. The court concluded that the plaintiffs’ property most likely benefited from continued use of the 1971 valuation figures for assessment purposes throughout the 1970s and the failure of the 1971 figures to reflect property value increases in subsequent years, as much as any other property owner. Such variation accruing within ten year periods is a permissible variation under § 12-62. Id., 629. It then made the statement previously cited, that “in Connecticut, the remedy for variations in the effect of market conditions on different parcels is set forth in General Statutes § 12-62. The remedy of revaluation was established by the legislature and it was the judgment of the legislature that the remedy need only be available once each decade.” Id.

It is not necessary to consider the defendant’s claim that there is a conflict between Ralston Purina Co. and Uniroyal, Inc., for in the context of this case this court’s quotation in Ralston Purina Co. (p. 438) from Uniroyal, Inc., (p. 629) that the procedure in § 12-62 “need only be available once each decade” is dicta. The language “need only be available” refers to a mandatory reassessment. That case has no bearing on the question of permissive interim revaluation as a power of the assessors under § 12-55, nor did Uniroyal, Inc., on which Ralston Purina Co. relied, concern the question involved in this case. Further, the right of a taxpayer to seek interim relief under § 12-118 on a claim of a disproportionate burden need not come into play. The resolution of the issue in this case requires only that we go directly to the plain language of § 12-55, shorn of any irrelevant judicial gloss adhering to it.

Section 12-55 contains three operative phrases pertinent to our inquiry: (1) “When the lists of any town have been so received or made by the assessors, they shall equalize the same, if necessary”; (2) “make any assessment omitted by mistake or required by law”; and (3) ” the assessors may increase or decrease the valuation of property as named in any such lists or in the last preceding grand list. ... ” (There follow directions for notice to a taxpayer in the event of an increased assessment.) (Emphasis added.) There is no ambiguity in this broad grant of powers to assessors. It is a clear legislative mandate to grant to local assessors a continuing duty unrelated to decennial revaluations, to achieve administratively a fair and equal assessment for all taxpayers. The power to equalize the lists, if necessary, imports a watchtower role for the assessor to correct inequalities, whether too high or too low. The “if necessary” language clearly comprehends interim changes in assessments for there is no such requirement in § 12-62 which mandates decennial revaluations. The latter have obviously been legislatively deemed necessary.

The plaintiff claims that § 12-55 only authorizes changes “omitted by mistake” or “required by law.” Such a restrictive interpretation ignores the plain language of the statute. The fact that these two additional powers are specifically set out does not in any way limit the broad power to equalize assessments provided for earlier in the statute. The most logical interpretation of the effect of these two additional powers is that in addition to the power to equalize assessments the assessors are also empowered to make these specified changes. Assessing property omitted by mistake is a common sense administrative duty having no relation to the “equalizing” function of the assessors. The same may be said of the added function of making any assessment “required by law.” If it is required by law, the assessors are required to make it whether or not it is included in this section. Finally, the statute specifically gives to assessors the power to increase or decrease the value of assessed property. “ ‘[Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.’ ” State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). “In construing a statute, common sense must be used and we must assume that the legislature intended to accomplish a reasonable and rational result.” Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985).

We conclude that the assessors in Rocky Hill did have the power under § 12-55 to adjust a real estate assessment in the interim years between decennial revaluations on the ground that a sale of the property in question showed that the property had greatly increased in value in relation to other properties in the town. Because the summary judgment proceeding provided no occasion for the resolution of a disputed issue of fact, the necessary proof of such a disparate rise in value of the plaintiffs property has not been made in this case. The trial court declared in its memorandum of decision denying the plaintiffs first motion for summary judgment, that there existed a question of fact as to the method the assessor had used in making his revaluation and whether it conformed to § 12-64. These and other issues of fact can only be resolved at trial.

There is error, the judgment is set aside and the case is remanded with direction to deny the renewed motion for summary judgment and for further proceedings.

In this opinion Shea, Callahan and Glass, Js., concurred.

Arthur H. Healey, J.,

dissenting. I do not agree with the majority that “a municipal assessor has the power, under General Statutes § 12-55, to increase a real property assessment between decennial revaluations on the ground that a sale of property in question demonstrates that the property has greatly increased in value in relation to other properties in the municipality.” I, therefore, dissent.

The majority reads § 12-55 as “a clear legislative mandate to grant to local assessors a continuing duty unrelated to decennial revaluations, to achieve adminsitratively a fair and equal assessment for all taxpayers.” This “power to equalize the lists, if necessary,” the majority opines, “imports a watchtower role for the assessor to correct inequalities, whether too high or too low.” The “if necessary” language, the majority goes on, “clearly comprehends interim changes in assessments for there is no such requirement in [General Statutes] § 12-62 which mandates decennial revaluations.”

I do agree with the majority that “statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). Statutes relating to the same subject matter, such as the property tax assessment statutory scheme, may be looked to for guidance in reaching an understanding of the meaning of a statutory term. Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978). Where we have, as we do here, a statutory scheme for property tax assessments, we should “make every effort to construe a statutory scheme as a consistent whole.” Powers v. Ulichny, 185 Conn. 145, 149, 440 A.2d 885 (1981). Needless to say, prior decisions of this court, especially recent decisions touching on relevant statutory constructions, are entitled to weighty consideration. This is especially significant where this court interprets a statute and the legislature fails to take action to change that interpretation, thus raising a presumption that the legislature has acquiesced in that interpretation. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.10. “It is fundamental. . . that departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would clearly be inconsistent with the purposes and policies of the act in question.” 2A J. Sutherland, supra; see State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980). Courts are warranted in presuming that a reasonable and rational result was intended by the legislature. See Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975).

I, therefore, do not find the “clear legislative mandate” granted municipal assessors that the majority does in § 12-55. That statute is “indeed administrative,” as even the defendants specifically concede in their brief. It is entitled “Lists; notice of increase; public inspection; abstracts.” Cf. General Statutes § 12-62, entitled “Periodic revaluation of real estate.” Section 12-55 sets out the administrative procedure for the assessor to follow for giving notice of a change in the valuation of property. The first sentence of § 12-55 has been literally the same in this statute for at least seventy years. In like fashion, the language of the second sentence, “The assessors may increase or decrease the valuation of property as named in any such lists, or in the last preceding grand list...” has been literally the same for at least seventy years. The only amendment to this statute over this period concerns to whom and how the notice of any increase in valuation is to be given. It strikes me as highly unusual, from a practical standpoint, that if the “clear legislative mandate” the majority finds in § 12-55 exists, no point has been made by counsel for the town that this is the manner in which assessors have treated § 12-55 at least for the last seventy years.

In my view, § 12-55 gives assessors the authority to equalize, “if necessary,” because of any assessment that was either “omitted by mistake” or “required by law.” I cannot agree with the majority’s interstitial judicial legislation of the “if necessary” language of this statute. If anything is clear in the contested portion of § 12-55, it is that the assessor equalizes the list when there are omissions or something “required by law” that makes it “necessary.” I note that the majority is silent about what “required by law” means. I suggest that it is quite plausible that it includes, if it is not confined to, those circumstances reasonably within the reach of General Statutes §§ 12-53a and 12-64a. Section 12-53a permits reassessment between decennial revaluations where new construction is completed on property. Section 12-64a authorizes an adjusted assessment value whenever a building is damaged, demolished and removed as set out in that statute.

This statute, i.e., § 12-55, does not confer upon the assessor the authority that the majority grants that officer. To so hold practically turns the majority opinion in Ralston Purina Co. v. Board of Tax Review, supra, on its head despite the present majority’s exegesis of Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981). The Ralston Purina Co. majority rejected the claims of the dissent in that case that § 12-55 should be read to authorize assessors to “increase or decrease the valuation of property” to carry out their task to “equalize” the lists “when special circumstances pertaining only to one property result[s] in a substantial change in its value.” Ralston Purina Co. v. Board of Tax Review, supra, 442 (Shea, J., dissenting). In rejecting that argument, the Ralston Purina Co. majority referring to Uniroyal, Inc., said that the assessor was precluded under § 12-62, from making interim revaluations absent certain circumstances which it found nonexistent in Ralston Purina Co. v. Board of Tax Review, supra, 439. In that case, the “certain circumstances” were said to be “such as the destruction or expansion of property, a substantial change in its use or zoning classification, or a decision by the taxpayer to go out of business . . . . ” Id., 435-36; see generally General Statutes §§ 12-53a and 12-64a. None of those existed in Ralston Purina Co., none of those exist in this case, and § 12-55 cannot reasonably be interpreted in this case to accomplish here what our construction of § 12-62 in Ralston Purina Co. and Uniroyal, Inc., precluded. The Ralston Purina Co. majority properly noted that we would not reexamine our interpretation of § 12-62 set out in Uniroyal, Inc., because the legislature had not amended § 12-62 after Uniroyal, Inc. Ralston Purina Co. v. Board of Tax Review, supra, 439. I submit that it is also unnecessary to do so in this appeal.

Not only is this decision inconsistent with Ralston Purina Co. on a jurisprudential basis, it raises serious concerns about fairness to the property owners of this state. Since Ralston Purina Co. is still good law, a property owner is not required to be given any interim relief, absent special circumstances, even if his property has a drop in value. This is so even though the majority purports to assign a “watchtower role for the assessor to correct inequalities, whether too high or too low.” (Emphasis added.) Therefore, despite the majority’s claim, to borrow a metaphor from another dissent, “[ajfter you have brushed the foam off the beer”; Horton v. Meskill, 172 Conn. 615, 658, 376 A.2d 359 (1977) (Loiselle, J., dissenting); the majority’s interpretation of § 12-55 does not truly “equalize” property assessments. They may increase an assessment whenever the present assessment is low as compared to similar properties, but may choose not to decrease the assessment of a property owner who has suffered a decrease in the value of his property such as a decrease of approximately 70 percent in value that we refused to recognize in Ralston Purina Co. This unfairness highlights the flaw in the majority’s analysis of the statutory scheme. I conclude that § 12-62, entitled “Periodic revaluation of real estate,” is the operative statute. Under any logical and consistent reading of Ralston Purina Co., not only may the tax assessor not be forced to decrease an assessment on a taxpayer’s property, but that officer cannot increase a taxpayer’s assessment, absent certain limited circumstances, except every ten years under § 12-62.

I would affirm the trial court, and, accordingly, I dissent.

       General Statutes § 12-55 provides in pertinent part: “When the lists of any town have been so received or made by the assessors, they shall equalize the same, if necessary, and make any assessment omitted by mistake or required by law. The assessors may increase or decrease the valuation of property as named in any of such lists or in the last preceding grand list, but, in each case of any increase in valuation of such property above the valuation, if any, stated by the person filing such list or in each case of any increase of valuation above the valuation of such property in the last-preceding grand list, they shall send written notice by mail of such increase, including in such notice the valuation prior to and after such increase with respect to each parcel of real property or any improvement thereon, the valuation of which has been increased, to the last-known address of the person whose list or valuation is so changed.”

       General Statutes § 12-62 provides in pertinent part: “periodic revaluation of real estate, (a) Commencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years after each such revaluation, view all of the real estate of their respective municipalities, and shall revalue the same for assessment and, in the performance of these duties, except in any municipality where there is a single assessor, at least two of the assessors shall act together, and all valuations shall be separately approved by a majority of the assessors.”

       Swiss-American Spawn, Inc., is the plaintiff in the second case combined on appeal with Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987). It operated a spawn production facility near Ralston-Purina's mushroom farm, designed to produce spawn, a protein product used to grow mushrooms.

       General Statutes § 12-118 provides in pertinent part: “appeal from board of tax review. Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated .... The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable

        See Stop & Shop Cos. v. East Haven, 13 Conn. App. 393, 399, 536 A.2d 991, cert. granted, 207 Conn. 810, 541 A.2d 1239 (1988). The court held that a town may value personal property annually while revaluing real property every ten years; language in General Statutes § 12-55 giving assessors the authority to increase or decrease the “value of property” provides for a “permissive valuation of property in the years between the decennial revaluations, without requiring it.”

       It is interesting to note that although General Statutes § 12-55 does have language that says that “[t]he assessors may increase or decrease the valuation of property as named in any of such lists . . . ” it only provides for notice to the person (presumably the taxpayer) of any increase in the valuation. This statute is silent on the matter of notice to be given in the event of any decrease.

       General Statutes § 12-53a, entitled “Assessment and taxation of new real estate construction,” provides in part: “(a) Completed new construction of real estate completed after any assessment date shall be liable for the payment of municipal taxes from the date the certificate of occupancy is issued or the date on which such new construction is first used for the purpose for which same was constructed, whichever is the earlier, prorated for the assessment year in which the new construction is completed. Said prorated tax shall be computed on the basis of the rate of tax applicable with respect to such property, including the applicable rate of tax in any tax district in which such property is subject to tax following completion of such new construction, on the date such property becomes liable for such prorated tax in accordance with this section.
      “(b) The building inspector issuing the certificate shall, within ten days after issuing the same, notify, in writing, the assessor of the town in which the property is situated.
      “(c) Not later than ninety days after receipt by the assessor of such notice from the building inspector or from a determination by the assessor that such new construction is being used for the purpose for which same was constructed, the assessor shall determine the increment by which assessment for the completed construction exceeds the assessment on the taxable grand list for the immediately preceding assessment date. He shall prorate such amount from the date of issuance of the certificate of occupancy or the date on which such new construction was first used for the purpose for which same was constructed, as the case may be, to the assessment date immediately following and shall add said increment as so prorated to the taxable grand list for the immediately preceding assessment date and shall within five days notify the record owner as apppearing on such grand list and the tax collector of the municipality of such additional assessment.”

       General Statutes § 12-64a, entitled “Reduction in assessed value of real estate upon removal of damaged buildings,” provides in part: “Whenever a building is so damaged as to require total reconstruction before it may be used for any purpose related to its use prior to such damage and following which, the owner provides for complete demolition of such building with the material from demolition being removed from the parcel of real property on which the building was situated or used as fill on such parcel for purposes of grading, such parcel shall be assessed for purposes of property tax as of the date such demolition, removal and grading are completed, to the satisfaction of the building inspector in the municipality, and such assessment shall reflect a determination of the assessed value of such parcel, exclusive of the value of the building so damaged, demolished and removed. The adjusted assessment shall be applicable with respect to such parcel from the date demolition, removal and grading are completed, as determined by said building inspector, until the first day of October next succeeding and the amount of property tax payable with respect to such parcel for the assessment year in which demolition, removal and grading are completed shall be adjusted accordingly in such manner as determined by the assessor.”

       Contrary to what the majority states, I believe it is necessary to consider the defendant’s claim that there is a conflict between Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987), and Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981). Here, the majority claims that “in the context of this case this court’s quotation in Ralston Purina Co. (p. 438) from Uniroyal, Inc., (p. 629) that the procedure in § 12-62 ‘need only be available once each decade’ is dicta.”
      Even assuming it is dicta, the majority should discuss it in view of the nexus between Ralston Purina Co. depending as it does on Uniroyal, Inc., on the one hand and, on the other hand, the treatment of Ralston Purina Co. by the majority in this appeal. The quoted statement of the majority in this footnote cannot serve as a sort of judicial circuit-breaker to foreclose any meaningful analysis of the distinction claimed by the defendant.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    In re Christopher V.
    (13295)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued March 8
    decision released May 3, 1988

      Daniel P. Weiner, with whom, on the brief, was Dan M. Schacht, for the appellant (juvenile).

      Joanne Goldberg, state’s advocate, for the appellee (state).
   Covello, J.

The sole issue on this appeal is whether the trial court erred in ordering a successive commitment to the department of children and youth services of a child found delinquent for a second time pursuant to the authority contained in General Statutes §§ 46b-140 and 46b-141. We conclude that such a disposition is not authorized and remand the matter with direction to modify the disposition accordingly.

Examination of the record discloses that on April 2, 1986, the respondent was adjudicated delinquent and found to be a serious juvenile offender and committed to the custody of the department of children and youth services for an indeterminate time up to a maximum of four years. The record further discloses that on June 19,1987, probation officer Joseph H. Paquin filed a verified petition alleging that the respondent was again delinquent, having committed the underlying offense of escape from custody in violation of General Statutes § 53a-171 on November 28, 1986. This second petition claiming further delinquency was filed because of the respondent’s escape on November 28 from Long Lane School where he had been committed on April 2 as the result of the earlier adjudication.

On July 8, 1987, the respondent admitted commission of the underlying offense and the court entered a second finding of delinquency. On August 5, 1987, the court, McGrath, J., committed the respondent to the department of children and youth services for a further period of two years and ordered that the new commitment take effect upon the expiration of his present commitment. The effective date of the new commitment would be April 2,1990. From this disposition the respondent has appealed.

Under Connecticut law a child may be found “delinquent” if he or she has (1) violated any federal or state law or municipal or local ordinance, or (2) violated any order of the Superior Court. General Statutes § 46b-120. Upon a finding of delinquency, the court may: (1) place the child in the care of an institution or agency; (2) order the child to remain at home; (3) order the child to remain in the custody of a relative or other fit person subject to the supervision of a probation officer; or (4) withhold or suspend execution of any judgment. General Statutes § 46b-140 (a), see footnote 1, supra; In re Robert H., 199 Conn. 693, 713-14, 509 A.2d 475 (1986). The court may also order the child “to do work ... in public buildings and on public property or make restitution of the fruits of his offense or . . .in an amount he can afford to pay or [otherwise] provide in a suitable manner for the loss or damage,” particularly in the event of wilful destruction of property. General Statutes § 46b-140 (a), see footnote 1, supra. If the court finds that the probation services or other available services are not adequate for the child, the court is authorized to commit the child to the department of children and youth services. General Statutes § 46b-140 (b), see footnote 1, supra; see also In re Robert H., supra.

Commitments to the department of children and youth services are to be for an indeterminate time up to a maximum of two years, or in the event of a serious juvenile offense, up to a maximum of four years. General Statutes § 46b-141 (a), see footnote 2, supra. During such two year period (or four year period in the event of a serious juvenile offense), the commissioner of the department of children and youth services may petition the court for an extension of the commitment for an additional period not to exceed two years. General Statutes § 46b-141 (b), see footnote 2, supra. Commitments may be reopened and terminated at any time by the court. General Statutes § 46b-141 (c). Extensions of existing commitments at the request of the commissioner are thus authorized. Successive commitments to be served in the future as a result of sequential petitions for findings of delinquency are not.

The objective of juvenile court proceedings is to “determinfe] the needs of the child and of society rather than adjudicate] criminal conduct. The objectives are to provide measures of guidance and rehabilitation . . . not to fix criminal responsibility, guilt and punishment.” Kent v. United States, 383 U.S. 541, 554, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); but see In re Luis R., 204 Conn. 630, 634-35, 528 A.2d 1146 (1987). Thus the child found delinquent is not perceived as a criminal guilty of one or more offenses, but rather as a child in need of guidance and rehabilitative services. Commitments to the department of children and youth services are authorized only after other services have been found inadequate for the child. General Statutes § 46b-140 (b), see footnote 1, supra. The commitments are indeterminate and may be extended beyond their original term only upon later application by the commissioner of the department of children and youth services. General Statutes § 46b-141 (b), see footnote 2, supra. Thus, absent a request to transfer a matter to the regular criminal docket, extension of the existing commitment is the statutorily authorized response to further allegations of misconduct arising during a period of commitment. See General Statutes §§ 46b-126 and 46b-127; cf. Dart v. Mecum, 19 Conn. Sup. 428, 116 A.2d 668 (1955) (juvenile court not authorized to suspend execution of a commitment).

The postadjudicatory treatment of children in the juvenile justice system is totally unlike that which occurs in the adult penal system, which views the disposition following a judgment of guilty as being a punishment in the form of fines, imprisonment, or both. General Statutes § 53a-28; but see In re Luis R., supra. In the adult system, consecutive sentences are specifically authorized to address the issue of the guilt of multiple crimes. General Statutes § 53a-37. There is no similar provision for juvenile dispositions. We conclude, therefore, that the order entered was not authorized.

There is error and the matter is remanded to the trial court with direction to vacate the judgment of an additional commitment to the department of children and youth services for a period of two years commencing April 2, 1990.

In this opinion the other justices concurred.

       General Statutes § 46b-140 provides in relevant part: “(a) The court, if it finds that the child is delinquent and needs the care, discipline or protection of the state, may adjudge him delinquent and place him in the care of any institution or agency which is permitted by law to care for children, order the child to remain in his own home or in the custody of a relative or any other fit person subject to the supervision of the probation officer or withhold or suspend execution of any judgment. The court may also order such child to do work of which he is capable in public buildings and on public property or make restitution of the fruits of his offense or make restitution in an amount he can afford to pay or provide in a suitable manner for the loss or damage caused thereby, particularly in cases in which the adjudication of delinquency was upon an allegation that the conduct of such child resulted in the wilful destruction of property; provided competent acceptance of such disposition has been given by the child and his parent or guardian.
      “(b) If the court further finds that its probation services or other services available to the court are not adequate for such child, the court shall commit such child to the department of children and youth services in accordance with the provisions of section 46b-141. Prior to making such commitment, the court shall consult with the department to determine the placement which will be in the best interest of such child.”

       General Statutes § 46b-141 provides in relevant part: “(a) Except as otherwise limited by subsection (e) of section 46b-140, commitment of children adjudged delinquent by the superior court to the department of children and youth services shall be for an indeterminate time up to a maximum of two years, or, when so adjudged on a serious juvenile offense, up to a maximum of four years at the discretion of the court, unless extended as hereinafter provided.
      “(b) The commissioner of children and youth services may petition the court for an extension of the commitment beyond such two-year period on the grounds that such extension is for the best interest of the child and the court shall give notice to the parent or guardian and to the child at least fourteen days prior to the hearing upon such petition. The court may, after hearing and upon finding that such extension is in the best interest of the child, continue the commitment for an additional period of not more than two years.”

       “[General Statutes] Sec. 53a-171. escape from custody: classification. (a) A person is guilty of escape from custody if he escapes from custody.
      “(b) If a person has been arrested for, charged with or convicted of a felony, escape from such custody is a class C felony, otherwise, escape from custody is a class A misdemeanor.”

       General Statutes § 46b-120 provides in relevant part: “[A] child may be found ‘delinquent’ (1) who has violated any federal or state law or municipal or local ordinance, other than an ordinance regulating behavior of a child in a family with service needs as defined in this section or (2) who has violated any order of the superior court. . . . ”

       General Statutes § 46b-141 (c) provides in relevant part: “All other commitments of delinquent, mentally deficient or mentally ill children by the court pursuant to the provisions of section 46b-140, shall be for an indeterminate time. Commitments may be reopened and terminated at any time by said court, provided the commissioner of children and youth services shall be given notice of such proposed reopening and a reasonable opportunity to present his views thereon. The parents or guardian of such child may apply not more than twice in any calendar year for such reopening and termination of commitment.”

       “[General Statutes] Sec. 53a-28. authorized SENTENCES, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73 or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
      “(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”

       General Statutes § 53a-37 provides in relevant part: “When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed.”


author: Santaniello, J.

text:
    State of Connecticut v. William Toby Wright, Sr.
    (13064)
    Healey, Shea, Callahan, Covello and Santaniello, Js.

      Argued December 10, 1987
    decision released May 3, 1988

      Denise Dishongh and Louis S. Avitabile, special public defenders, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom were James G. Clark, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, and Peter Markle, assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, William Toby Wright, Sr., was charged in a two part indictment by a grand jury, on July 29,1981, with manslaughter in the first degree, in violation of General Statutes § 53a-55 (a) (l), and with being a persistent dangerous felony offender, in violation of General Statutes § 53a-40 (a). After a jury trial the defendant was found guilty on both charges and was sentenced to a term of imprisonment of twenty-five years to life. The defendant appealed from the final judgment of conviction, and on January 14,1986, this court set aside the judgment and remanded the case for a new trial.

On July 17,1986, prior to the start of the defendant’s second trial, the defendant reserved the right to challenge the grand jury array. The trial began on July 30, 1986, and ended on July 31, 1986, when the defendant entered Alford pleas to both parts of the indictment. A plea canvass ensued. On August 29,1986, the court imposed a single sentence of not less than fifteen nor more than thirty years incarceration. The defendant thereafter filed this appeal.

The defendant makes the following claims of error: (1) that he was indicted by a racially discriminatory grand jury; (2) that the sentence imposed was not in accordance with the plea agreement; and (3) that the trial court’s judgment was constitutionally invalid due to the court’s failure to advise him of the mandatory minimum sentences for the crimes charged.

I

The defendant first claims that the composition of the grand jury was racially discriminatory and that that discrimination violated the equal protection clauses of the Connecticut and United States constitutions. On July 21,1981, the defendant, a black man, was indicted by an all white grand jury. The defendant contends that there were no blacks on the grand jury that indicted him, nor were there any on the grand juries that served during the previous year of 1980-81. The state maintains that a showing of intentional and systematic exclusion of blacks on the grand jury is required to establish a violation of equal protection and that the defendant failed to prove such intentional exclusion. We agree.

Selection of a grand jury in a discriminatory fashion may be challenged under the equal protection clause of the fourteenth amendment. Dobbs v. Kemp, 809 F.2d 750, 751 (11th Cir.), cert. denied, 481 U.S. 1059, 107 S. Ct. 2203, 95 L. Ed. 2d 858 (1987); Gibson v. Zant, 705 F.2d 1543, 1546 (11th Cir. 1983). Equal protection of the laws is denied to a criminal defendant indicted by a grand jury composed in a discriminatory manner that results from purposeful exclusion of members of a racial group. Vasquez v. Hillery, 474 U.S. 254, 262, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); Rose v. Mitchell, 443 U.S. 545, 556, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979); Castaneda v. Partida, 430 U.S. 482, 493, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); Alexander v. Louisiana, 405 U.S. 625, 628-29, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972). “A criminal defendant ‘is entitled to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice.’ ” Rose v. Mitchell, supra, 551. The constitution does not, however, require that members of a grand jury be selected in any particular fashion. State v. Avcollie, 188 Conn. 626, 634, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Villafane, 164 Conn. 637, 644, 325 A.2d 251 (1973). In order for there to be compliance with the constitutional mandate prohibiting intentional discrimination on the basis of race or class, a cognizable group must not be systematically excluded. Id., 644-45. The constitution does not, however, require that the grand jury be comprised of a “statistical mirror” of the community. Id., 646.

An equal protection claim in the context of a grand jury challenge demands proof of a discriminatory purpose. State v. Castonguay, 194 Conn. 416, 421, 418 A.2d 56 (1984). Purposeful discrimination is present where “significant unexplained disparities exist alongside an opportunity to discriminate.” State v. Villafane, supra, 647.

When a defendant challenges a grand jury array on the ground that he has been denied equal protection under the law, the defendant must show that the procedure resulted in substantial underrepresentation. Castaneda v. Partida, supra, 494. “The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied .... Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. . . . This method of proof, sometimes called the ‘rule of exclusion,’ has been held to be available as a method of proving discrimination in jury selection against a delineated class. . . . Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” (Citations omitted.) Id.; see State v. Castonguay, supra, 421. Establishing a prima facie case of discriminatory purpose by virtue of showing substantial underrepresentation of a cognizable group shifts the burden to the state to refute the existence of an equal protection violation by showing the use of racially neutral selection criteria. Castaneda v. Partida, supra, 495; Alexander v. Louisiana, supra, 631-32. Where a conviction enters against a defendant indicted by a racially discriminatory grand jury, the conviction must be reversed and the indictment quashed. Vasquez v. Hillery supra, 260-64; Rose v. Mitchell, supra, 554.

The defendant contends that the case before this court is not one of underrepresentation of blacks on a grand jury, but is instead an instance of no representation, which is itself sufficient to make out a prima facie showing of racial discrimination. The defendant further contends that the state’s failure to deny the allegation that there were no blacks on a black defendant’s grand jury before July 29,1981, constitutes an admission by the state that it is unable to name any blacks who sat on a grand jury during this period.

The United States Supreme Court has clearly enunciated the showing that must be made in order to establish a prima facie case of a violation of equal protection in the context of a grand jury challenge, which this court has recognized. Castaneda v. Partida, supra, 494-95; State v. Castonguay, supra, 421. Unlike the defendant now before this court, those seeking to have their convictions reversed on the basis of an equal protection violation in the composition of a grand jury have offered evidence in support of their claim. See, e.g., Reece v. Georgia, 350 U. S. 85, 87-88, 76 S. Ct. 167, 100 L. Ed. 77 (1955) (petitioner presented uncontroverted evidence showing no blacks on grand jury for eighteen years); Patton v. Mississippi, 332 U.S. 463, 464-68, 68 S. Ct. 184, 92 L. Ed. 76 (1947) (petitioner introduced evidence that showed without contradiction that no blacks had served on grand jury for thirty years); Hill v. Texas, 316 U.S. 400, 402-404, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942) (testimony showing absence of blacks on grand jury for significant time period sufficient to make out prima facie case); compare Rose v. Mitchell, supra, 570-74 (testimony failed to cover significant time period; no evidence of total number of grand jury foremen appointed and without such evidence it was difficult to assess whether number of black people, even if zero, was so significant as to make out discrimination case under rule of exclusion; normally state’s concession that petitioner has made out prima facie case might be given effect but inadequacy of petitioner’s proof is plain); Dobbs v. Kemp, supra, 752 (meager evidentiary showing insufficient to establish prima facie case).

The defendant in this case failed to introduce any evidence in support of his contention that he was indicted by a racially discriminatory grand jury. The defendant’s assertion that there were no blacks on a black defendant’s grand jury for a significant time period is insufficient in itself to establish an equal protection violation. There is no error.

II

The defendant next contends that the trial court erred in denying his motion to withdraw his plea on the ground that the judgment and sentence were not in accordance with the plea agreement. On July 31, 1986, the defendant entered Alford pleas to the charges of manslaughter in the first degree and being a persistent dangerous felony offender. The plea agreement discussed during the proceedings entailed a sentence of incarceration of not less than fifteen nor more than thirty years. On August 29,1986, the court imposed a sentence of ten to twenty years on the charge of manslaughter in the first degree and a consecutive sentence of five to ten years on the persistent dangerous felony offender charge, for a total effective sentence of not less than fifteen nor more than thirty years of imprisonment. An off-the-record discussion ensued, after which the court “corrected” the sentences and imposed a single sentence of not less than fifteen nor more than thirty years. Defense counsel thereafter moved to withdraw the defendant’s pleas. The motion was denied by the court.

The defendant contends that he pleaded guilty under the Alford doctrine with the expectation of receiving two consecutive sentences and that as the single sentence finally imposed was not in accordance with the plea agreement, he should be allowed to withdraw his plea, or have this court remand the case for sentencing in accordance with the expected plea.

An examination of the plea canvass reveals that the court understood that the sentence, with both charges, would be fifteen to thirty years, that the offer of fifteen to thirty years was fair, that the court had informed the defendant that, as a result of his plea to the persistent dangerous felony offender charge, the offense could be upgraded to an A felony with a maximum sentence of twenty-five years to life and that the court had asked if the plea bargain of fifteen to thirty years was the reason the defendant was pleading guilty, to which the defendant replied affirmatively. At no time during the canvass did the defendant refer to an expectation of receiving two consecutive sentences or the effect that such a sentence would have on his parole eligibility.

At the sentencing hearing, the defendant contended for the first time that it was his “position” that the court had the power to sentence him to ten to twenty years on the manslaughter offense, and to five to ten years on the persistent dangerous felony offender charge, with the sentences to run consecutively. The defendant further claimed that it was his belief that there were two charges combined into one upon which separate sentences should be imposed. The court responded that the “agreement is no less than fifteen nor more than thirty, and that is the sentence of the Court, period.”

The record fails to substantiate the defendant’s claim that the sentence imposed was not in accordance with the agreement. On the contrary, the record is replete with references to an effective sentence of fifteen to thirty years. As the defendant had received a single sentence at the conclusion of his first trial, he was presumably aware of the existence of such a sentence structure at the time of entering his plea. This court finds that the sentence imposed complied with the plea agreement. There is no error.

Ill

The defendant’s final claim of error is that the trial court’s judgment is constitutionally invalid because of the court’s failure to advise the defendant of the mandatory minimum sentences for the crimes charged as required by Practice Book § 711. The defendant failed to raise this omission before the trial court but contends that the claim is reviewable under the doctrine of “exceptional circumstances” as enunciated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or in the alternative, under the plain error doctrine. The state concedes that the court failed to inform the defendant of the mandatory minimum sentences but contends that this omission does not involve a fundamental constitutional right or the fairness of the proceeding and is therefore not reviewable.

“In the absence of exceptional circumstances involving either a recently discovered constitutional right or a showing that the defendant has been deprived of a fundamental constitutional right and a fair trial, claims which are raised for the first time on appeal will not be considered by this court.” State v. Gates, 198 Conn. 397, 401, 503 A.2d 163 (1986); State v. Badgett, 200 Conn. 412, 417, 512 A.2d 160, cert. denied, 479 U. S. 940, 107 S. Ct. 473, 93 L. Ed. 2d 373 (1986); State v. Evans, supra, 69-70. Those claims which implicate the knowing and voluntary nature of a plea are reviewable under the exceptional circumstances doctrine of State v. Evans, supra. State v. Gilnite, 202 Conn. 369, 380-81 n.13, 521 A.2d 547 (1987); State v. Badgett, supra, 417-18; State v. Godek, 182 Conn. 353, 355-56, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). This court will undertake limited review to determine if the claim, as set forth by the defendant, affects the knowing and voluntary nature of the plea.

A guilty plea is itself a conviction; Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); and a defendant, when entering such a plea, waives several constitutional rights. Boykin v. Alabama, supra, 243; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Paulsen, v. Manson, supra; State v. Gilnite, supra, 381. First is the privilege against self-incrimination, second is the right to a jury trial, and third is the right to confront one’s accusers. Boykin v. Alabama, supra; McCarthy v. United States, supra; State v. Gilnite supra, 381 n.14. To ensure that a defendant is accorded due process, the plea must be voluntarily and intelligently entered. Boykin v. Alabama, supra, 243 n.5; McCarthy v. United States, supra; Paulsen v. Manson, supra; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Badgett, supra, 418; State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d 390 (1985). A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Paulsen v. Manson, supra, 491.

An examination of the plea canvass reveals the following: The state’s attorney delineated the factual basis which would be produced to establish the defendant’s guilt of manslaughter in the first degree and indicated that the facts introduced at the second trial would be the same as those introduced at the first trial. The court inquired whether the defendant was under the influence of alcohol or drugs, whether the defendant had had sufficient time to consult with his lawyer and discuss the evidence the state claimed to have, whether the defendant had been forced or threatened to plead guilty, and whether the defendant believed, in light of the evidence of the state and the advice of counsel, that if he were to go to trial he would probably be found guilty and would receive, or probably receive, a harsher sentence than the one he would receive under the plea bargain. The court recited the jury charge for manslaughter in the first degree so as to ensure that the defendant understood the charge. The court informed the defendant that he was giving up the right to a trial by court or jury with the assistance of counsel, the right not to be compelled to incriminate himself, the right to plead not guilty and to continue to plead not guilty and require the state to prove his guilt beyond a reasonable doubt, the right to confront witnesses against him, to cross-examine those witnesses, to present witnesses on his behalf and to. testify himself, and the right to present any defenses. The court informed the defendant that if it accepted the Alford plea there would not be a trial but that he would be sentenced by the court. The court then went through a similar canvass on the charge of being a persistent dangerous felony offender.

This review indicates that the plea was knowingly and voluntarily entered. This court finds that the trial court’s failure to advise the defendant of the mandatory minimum sentences did not, in itself, implicate constitutional rights, where the record reveals that the plea was intelligently and voluntarily made.

The defendant contends, in the alternative, that his claim is reviewable under the plain error doctrine. Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987); State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985). “ ‘Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” State v. Miller, supra, 469, quoting State v. Hinckley, supra, 87-88. Having concluded that the trial court’s omission in failing to advise the defendant of the mandatory minimum sentences did not implicate constitutional rights and that the defendant knowingly and voluntarily entered his guilty plea, this court finds that the trial court’s action did not result in any manifest injustice. The claim, therefore, does not warrant review under the plain error doctrine.

There is no error.

In this opinion the other justices concurred.

       At the time of defendant’s indictment on July 29, 1981, article first, § 8, of the Connecticut constitution provided in relevant part: “[N]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

        The corresponding statutory section, General Statutes (Rev. to 1981) § 54-45 (b), provides: “No person shall be put to plea or held to trial for any crime the punishment of which may be death or imprisonment for life unless an indictment has been found against him for such crime by a grand jury legally impaneled and sworn, and no bill shall be presented by any grand jury unless at least twelve of the jurors agree to it.”

       General Statutes (Rev. to 1981) § 53a-55 (a) (1) provides: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”

       General Statutes (Rev. to 1981) § 53a-40 (a) provides: “A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution-for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       State v. Wright, 198 Conn. 273, 502 A.2d 911 (1986).

       The defendant raised this issue at his first trial but did not pursue it. On July 25, 1986, the court held a hearing on the defendant’s motion, at which time the defendant claimed that the court lacked subject matter jurisdiction because the grand jury that indicted the defendant was racially discriminatory. The court denied the motion.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Both the plea and sentencing took place before the same judge.

       The fourteenth amendment to the United States constitution, § 1, provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

        Article first, § 20, of the Connecticut constitution provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

       Defense counsel now claims that there were no blacks on any black defendant’s grand jury in the history of the Superior Court at Waterbury until after the defendant’s grand jury on July 29,1981. The state does not take issue with this position. The record reveals that this was not the claim raised before the trial court.

       The state noted that it had not entered into any plea bargain with the defendant but was instead seeking the maximum sentence.

       Although the defendant claims that he expected to receive two consecutive sentences, separate sentences cannot be imposed where a defendant is subject to being punished as a persistent dangerous felony offender. General Statutes § 53a-40 (f) provides in relevant part that “the court, in lieu of imposing the sentence of imprisonment. . .for the crime of which such person presently stands convicted” may impose an enhanced sentence.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sen-fences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”


author: Hull, J.

text:
    Town of Berlin v. Commissioner of Revenue Services
    (13290)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued March 10
    decision released May 3, 1988
   Hull, J.

The narrow issue in this case is whether the plaintiff, when it furnished policemen for off-duty assignments, provided a taxable service under General Statutes § 12-407 (2) (i) (E) and § 12-426-27 (b) (5) of the Regulations of Connecticut State Agencies. As a result of an audit of the plaintiff for the period from January 1, 1980, through December 31, 1982, the defendant assessed the plaintiff $5594.67 plus interest of $3291.39 and a penalty of $559.48. The plaintiff appealed from the defendant’s assessment to the Superior Court, which found the rendering of such services was subject to the sales tax, and dismissed the appeal. We find no error.

The trial court found the following facts. The Berlin police department maintained a card system of all police officers, to provide names of officers for off-duty assignments. When a request was made for such services, names were taken in rotation from these cards. When a police officer was on off-duty assignment, he was in uniform. When the assignment was completed, the department prepared and mailed an invoice to the recipient of the services, which was paid directly to the police officer involved. The department followed up on any unpaid invoices.

The court concluded that the relationship between the contracting party and the off-duty officer was that of employer-employee. In support of this conclusion the court made additional factual findings as follows: (1) the contractor designated the working conditions for the officer and paid the officer directly by check; (2) the paychecks were payable to the officer and usually mailed to the person involved in care of the police department; (3) the contracting party made all the necessary deductions for income tax and social security; (4) the plaintiff was paid nothing by the contracting parties nor did it receive any other consideration from them; (5) the assignment procedure for this work was provided for in the collective bargaining agreement between the plaintiff and the police union; (6) the plaintiff, in prior periods, had collected a sales tax on the services; and (7) no such tax was collected during the period in question.

The court further concluded that: (1) the police services came within the purview of General Statutes § 12-407 and § 12-426-27 (b) (5) of the Regulations of Connecticut State Agencies; (2) the plaintiff town was providing the services; (3) specific terms in article VI of the collective bargaining agreement between the plaintiff and the police union governed the procedures and hourly rates for such work; (4) local citizens desiring the services of off-duty officers had to go through the police department to make the necessary arrangements; and (5) the invoice sent to the user of services described the services as “rendered by the Berlin Police Dept.”

On appeal, the plaintiff claims that the court erred in: (1) determining that the plaintiff rendered a service subject to the sales tax; (2) determining that the plaintiff rendered services “for consideration”; and (3) ruling that the services rendered were covered by General Statutes § 12-407 (2) (i) (E). “ ‘[Tjhe burden of proving any claimed exceptions to a tax is on the taxpayers. Modugno v. Tax Commissioner, 174 Conn. 419, 421 [389 A.2d 745 (1978)], as is the burden of proving that an assessment is erroneous. H. B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 586 [447 A.2d 12 (1982)]. Magic II, Inc. v. Dubno, 206 Conn. 253, 256, 537 A.2d 998 (1988).

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D [now § 4061], This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

We need not tarry on the plaintiff’s first claim. The plaintiff argues that it was not rendering a service but merely complying with the collective bargaining agreement with the police union. The defendant counters that the plaintiff performed functions in the assignment of off-duty work beyond that required in the union agreement. We consider these arguments to be Immaterial. Whether the plaintiff’s part in the off-duty arrangements was wholly or partly mandated by the collective bargaining contract, the plaintiff’s actions in that regard are determinative of its sales tax liability. The trial court’s conclusion that the plaintiff was rendering services to the users of its police officers finds ample support in the facts articulated in its memorandum of decision. The court relied not only on the provisions of the collective bargaining agreement concerning provision of the services, such as hours, rates of pay, assignments and supervision and control of invoicing and payment, but noted that those desiring the services of off-duty police officers had to seek those services from the police department and not from the police officers directly. Further, the invoices for the services expressly stated that the services provided were rendered by the Berlin police department. We conclude that the trial court’s resolution of this issue was not clearly erroneous.

Concerning the plaintiffs second claim of error, the trial court had considered the question of consideration “in view of the fact that the town received no direct monetary benefit since the entire payment went to the off-duty officer.” The court cited General Statutes § 12-407 (10) which provides that “ ‘[business’ includes any activity engaged in by any person or caused to be engaged in by him with the object of gain, benefit or advantage, either direct or indirect”; and subsection (11) of that statute which provides, in pertinent part, that a “ ‘[sjeller’ includes every person . . .rendering any services described in any of the subdivisions of subsection (2) of this section . . . . ” Finally, the court found adequate consideration, concluding that there was “a benefit to the town, either direct or indirect, in making available extra duty police work for added compensation to its union employees.” The court discounted the plaintiffs claim that, since 1978, it no longer considered its officers employees for purposes of such assignments. The court found that whatever the relationship between the plaintiff and its police officers, it was rendering services to the user subject to the sales tax when it furnished off-duty police officers to users requesting such services. We concur with the trial court that the plaintiff benefited either directly or indirectly from the off-duty arrangement. The provision for such off-duty work in the union contract is obviously an important incentive to the plaintiffs police officers, both to enter police work and to approve the collective bargaining agreement. The plaintiff benefited to the extent that such a contract provision contributed to labor peace with its police officers. It is reasonable to conclude further that the plaintiff also benefited from the added police presence in the town. The court did not err in finding that the plaintiff received adequate consideration for rendering police services.

The plaintiffs third claim of error is that the court erred in finding that the services rendered were covered by General Statutes § 12-407 (2) (i) (E). The plaintiff contends that the services rendered were not “exclusive of such services rendered by an employee for his employer” under the provisions of that statute. This argument avails the plaintiff nothing, for it flies directly in the face of the trial court’s finding that for sales tax purposes the employer-employee relationship in this case was that between the user of off-duty police services and the police officer involved. The plaintiff further argues that the court did not find that the off-duty work involved was included within the statutory categories of “private investigation, protection, patrol work, watchman, or armored car service.” The plaintiff filed no motion to the trial court to articulate further its memorandum of decision. “ ‘Where the factual basis of the court’s decision is unclear, “proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. ‘It remains the appellant’s responsibility to secure an adequate appellate record, and under normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.’ ” Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). . . . ’” Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 295-96, 533 A.2d 208 (1987).

The “rendering of police services by an off-duty policeman” is, as noted, specifically made subject to the sales tax by § 12-426-27 (a) and (b) (5) of the Regulations of Connecticut State Agencies. The plaintiff claims, for the first time in its brief on appeal, that this regulation is invalid as going beyond the legislature’s intent. It claimed at oral argument that we should consider this claim of error under the “plain error” proviso of Practice Book § 4185. This claimed error falls far short of the “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 12-407 provides in pertinent part: “(2) ‘sale’ and ‘selling’ mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . (D) private investigation, protection, patrol work, watchman and armored car services . . . . ”
      The parties, in their briefs, and the trial court, in its memorandum of decision, designate the applicable statute § 12-407 (2) (i) (E). Public Acts 1986, No. 86-397, § 7, relettered this subdivision § 12-407 (2) (i) (D) but did not change its substance. For the sake of consistency, we refer to the statute as § 12-407 (2) (i) (E).

       Section 12-426-27 of the Regulations of Connecticut State Agencies provides in pertinent part: “enumerated services
      “(a) The rendering of the following enumerated services for a consideration, defined in subsection (b) of this regulation, in this state on or after July 1, 1975, shall be a sale and subject to the sales tax. . . .
      “(b) Enumerated services. . . .
      “(5) Private investigation, protection, patrol, watchman and armored car services.
      “Such services mean and include providing personnel or canines to patrol or guard property; engaging in detective or investigative duties; safeguarding or maintaining a surveillance of an individual; maintaining and monitoring mechanical protective devices, such as burglar and fire alarm systems; providing armored cars for the transportation of valuables; wrapping coins; setting up a payroll; and the rendering of police services by an off-duty policeman.”
      This regulation became effective April 7, 1980, amending its predecessor. The differences between the regulation as it existed before April 7, 1980, and as it appears here are not material to our disposition of this case.

       The court’s conclusion that adequate consideration existed makes it clear that the earlier conclusion of the court, cited above, that the town did not “receive any other consideration” from the contracting parties, was either an inadvertent misstatement or was meant to refer to consideration of a monetary nature.