author: Covello, J.

text:
    Guillermo Aillon v. John R. Manson, Commissioner of Correction, et al. Guillermo Aillon v. State of Connecticut et al.
    (12539) (12564)
    Peters, C. J., Shea, Dannehy, Callahan and Covello, Js.
    Argued October 2
    decision released December 30, 1986

      Jonathan E. Silbert, special public defender, for the appellant (petitioner).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney for the appellees (respondents in each case.)
   Covello, J.

These appeals deal with the alleged ineffective assistance of counsel in failing to pursue a double jeopardy claim arising out of a prosecution for murder. We concur with the trial court’s conclusion that the petitions do not set forth facts which would warrant the relief requested, and, therefore, find no error.

The petitioner, Guillermo Aillon, was charged with three counts of murder alleged to have occurred in August, 1972. In 1973, after the petitioner’s first trial, the jury returned a verdict of guilty on all three counts. Several months after his conviction, the petitioner learned of an ex parte conversation between the trial judge and a juror during jury deliberations, and moved for a new trial. A new trial was ordered and the state appealed. This court found that certain relevant evidence had been improperly excluded from the new trial hearing and remanded the case for further proceedings. Aillon v. State, 168 Conn. 541, 554, 363 A.2d 49 (1975) (Aillon I).

Following a second hearing on the petitioner’s application for a new trial, the trial court denied his request, concluding that the conversation between the judge and the juror was harmless to the petitioner beyond a reasonable doubt. Upon appeal, this court found that the record contained no credible evidence as to the content of the ex parte conversation. This being the case, we found error in the court’s conclusion and ordered a new trial. State v. Aillon, 173 Conn. 334, 339-40, 377 A.2d 1087 (1977) (Aillon II).

The petitioner’s second trial ended in a mistrial when the jury was unable to return a verdict. Thereafter, the petitioner moved for a judgment of acquittal, claiming for the first time that his further prosecution was barred by the double jeopardy clause of the fifth amendment to the United States constitution. The trial court rejected his claim of double jeopardy and denied the motion. The petitioner did not specifically raise in that proceeding the claim of judicial bad faith and overreaching that he now advances, but claimed, for a host of other reasons, that double jeopardy should operate as a bar to further prosecution.

We rejected his claims and held that where a mistrial is declared at the defendant’s request or with his consent, * or as a result of a jury’s inability to return a verdict, any bar to reprosecution is removed. State v. Aillon, 182 Conn. 124, 129, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981) (Aillon III). “In these circumstances, the principle underlying the double jeopardy clause [i.e.,] that the defendant retain primary control over the course of the proceedings; United States v. Scott, 437 U.S. 82, 93-94, 98 S. Ct. 2187, 57 L. Ed. 2d 65 [reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 197 (1978)]; has been followed.” Aillon III, supra, 129-30. Because there was “no allegation of prosecutorial or judicial bad faith,” we concluded that the petitioner’s consent to the mistrial barred the application of any double jeopardy precepts. Id., 131, 137-38.

More than a year after this court rejected the petitioner’s first double jeopardy claim, he renewed his claim and moved to dismiss the indictments against him. This claim was again based on the ex parte conversation between the judge and juror at his first trial. The petitioner then argued for the first time that judicial overreaching had made a second trial necessary and therefore impaired his right “to have his guilt or innocence determined by the tribunal summoned to sit in judgment on him,” State v. Aillon, 189 Conn. 416, 421-22, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983) (Aillon IV). He also moved for a further evidentiary hearing to establish bad faith on the part of the first trial judge as a motive for the ex parte conversation.

The trial court denied the petitioner’s motions, holding that the proper time to have raised his double jeopardy claim based on the events which occurred during the first trial was prior to the commencement of his second trial. The court then concluded that Aillon’s failure to proceed in a timely fashion constituted a waiver of his right to pursue the double jeopardy claim. Upon appeal, without reaching the issue of a possible waiver, we found that the “slight shift in evidentiary basis and substantive legal theory of law does not constitute a new claim.” Id., 426. Since the double jeopardy matter had been fully heard in Aillon III, supra, we concluded that the doctrine of res adjudicata precluded relitigation of the petitioner’s double jeopardy claim. Aillon IV, supra, 423-29.

On November 10, 1983, after our most recent decision in Aillon IV, supra, the petitioner filed an application for a writ of habeas corpus, claiming that he had received ineffective assistance of counsel. The petitioner alleged that his trial counsel had failed to claim “that actions of the Court . . . during his first trial in 1973 constituted judicial misconduct foreclosing ‘the petitioner’s right to have his guilt or innocence determined by the particular tribunal summoned to sit in judgment on him.’ ” The respondent state filed a motion to quash, alleging that the petition failed to state a cause of action upon which relief could be granted. The lower court concluded that “[t]o successfully raise a claim of Double Jeopardy due to judicial misconduct, petitioner must allege that such judicial misconduct was intended to provoke the defendant into moving for a mistrial.” (Emphasis added.) Since the petitioner had made no such allegation, the court granted the motion to quash and dismissed the petition. The petitioner then appealed.

“Our cases demonstrate that ‘[t]o succeed in his claim of ineffective assistance of counsel, the petitioner must show that his attorney’s performance was not “ ‘reasonably competent or within the range of competency displayed by lawyers with ordinary training and skill in criminal law’” . . . and further, that this “ ‘lack of competency contributed to the conviction.’ ” ’ ” (Citations omitted.) Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). Within the context of the present proceeding, the petitioner must have alleged that effective counsel would have raised the double jeopardy claim and that the claim, as stated, was such that subsequent prosecution would have been barred by the doctrine of double jeopardy.

“The double jeopardy clause of the fifth amendment serves to safeguard defendants in criminal proceedings against multiple punishments or repeated prosecutions for the same offense. United States v. Dinitz, [424 U.S. 600, 606, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976)]. This constitutional protection, however, does not guarantee a defendant that the government will be prepared, in all circumstances, to vindicate society’s interest in law enforcement by a single proceeding for a given offense. United States v. Jorn, [400 U.S. 470, 483-84, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971)].” Aillon III, supra, 127-28. Thus, when a mistrial is declared at the defendant’s request or with his consent, the double jeopardy clause does not ordinarily bar subsequent retrial. United States v. Dinitz, supra, 608; United States v. Jorn, supra, 484. “When the defendant requests a mistrial, he is deemed to have deliberately elected ‘to forego his valued right to have his guilt or innocence determined before the first trier of fact.’ United States v. Scott, [supra, 93].” United States v. Rivera, 802 F.2d 593, 597 (2d Cir. 1986).

The one narrow exception which allows a defendant to invoke the double jeopardy bar after his request for, or consent to, a mistrial is “when prosecutorial or judicial overreaching is designed to provoke the defendant into asking for a mistrial, thereby avoiding an acquittal or affording the state another, perhaps more favorable, opportunity to convict, or the prosecutorial or judicial error was otherwise motivated by bad faith or attempted in order to harass or prejudice the defendant. . . . This result is clearly dictated by logic since in the absence of intentional misconduct on the prosecutor’s or judge’s part and prejudice stemming from the misbehavior, a defendant’s decision to ask for a mistrial or consent to one is voluntary and a strategic choice clearly not coerced by the defect in the trial.” (Citations omitted; emphasis added.) Aillon III, supra, 130.

The mere allegation of judicial or prosecutorial overreaching, harassment, bad faith or other misconduct is not enough, however, for “[pjrosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify mistrial . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy . . . (Emphasis added.) Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).

The petitioner argues that Oregon v. Kennedy is limited to cases involving prosecutorial misconduct. It is clear that, although the facts of Kennedy were limited to prosecutorial improprieties, the United States Supreme Court intended the standard to apply to judicial, as well as prosecutorial, misconduct. See United States v. Rivera, supra, 598-99. Prior decisions had dealt with both judicial and prosecutorial conduct in the same context; see United States v. Dinitz, supra; United States v. Jorn, supra; United States v. Tateo, 377 U.S. 463, 467, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); and the Kennedy Court decided to review the applicable standard because the standard previously enunciated seemingly broadened the test “from one of intent to provoke a motion for mistrial to a more generalized standard of ‘bad faith conduct’ or ‘harassment’ on the part of the judge or prosecutor.” (Emphasis omitted/ added.) Oregon v. Kennedy, supra, 674. Although, because the facts of the case were limited to prosecu-torial impropriety, the court only addressed misconduct in that context, nowhere in its decision did the court attempt to differentiate prosecutorial misconduct from judicial misconduct. As Justice Stevens stated in a concurring opinion, “[t]he exception also encompasses comparable judicial misconduct. Because we are confronted with prosecutorial error, this opinion will only address that context.” Id., 683 n.13 (Stevens, J., concurring).

It is evident from the foregoing that even had Aillon’s counsel claimed that the actions of the court during the first trial in 1973 “constituted judicial misconduct foreclosing ‘the petitioner’s right to have his guilt or innocence determined by the particular tribunal summoned to sit in judgment on him,’ ” the double jeopardy clause would still not have barred subsequent reprosecution. The petition did not allege nor did counsel claim that the misconduct was carried out with the intent to provoke a mistrial. Thus, the lower court did not err in dismissing Aillon’s first petition.

On August 3,1984, the petitioner filed another application for a writ of habeas corpus. Again he alleged that he had received ineffective assistance of counsel because his attorney had failed to raise a valid claim of double jeopardy. With respect to the trial judge’s intent, Aillon claimed that the judge’s “participation in this conversation was intentional.” He further alleged that the judge had concealed the conversation knowing that it was improper, and that a mistrial would be provoked if the conversation were discovered. A motion to quash was again granted for the reason that the petition failed to state a cause of action. The petitioner also appealed this second ruling.

An allegation that judicial misconduct was the product of an intentional act is simply not sufficient to lay the foundation for a claim that further prosecution is barred by the tenets of double jeopardy. To be successful, it must be alleged that the judge had acted with the intent “to provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, supra, 679. Nothing in the record of this case would support such an allegation.

Therefore, we find no error.

In this opinion the other justices concurred.

       At 10 p.m. on the final night of jury deliberations, a member of the jury asked to speak with the judge in regard to a personal matter. “A short time later, the trial judge, accompanied by the sheriff, appeared at the doorway of the jury room, and juror Read started to relate her problem to the judge. The judge, however, requested that she step out and he escorted her to the back of the jury box. The ensuing conversation lasted only a few minutes. Juror Read, who appeared nervous and upset, explained that she wanted to go home to Massachusetts but that some of the jurors wanted to adjourn for the evening although she and others wanted to continue deliberating. She then asked the judge, ‘Can we stay?’ The judge responded, ‘Yes, you can stay.’
      “The other jurors could not hear the conversation, although one juror testified that he thought he heard the trial judge say, ‘You have to stay.’ What juror Read said on her return to the jury room is disputed, but some jurors felt that she said the judge had told them to remain; others felt that the judge merely indicated that they could stay. At any rate, when the foreman asked what the trial judge had said, juror Read responded, in the presence and hearing of the other jurors, ‘We can stay or we can go home but if we go home we come back tomorrow, the next day and the next day.’ The jury thereupon continued deliberating. Six hours later, at 4:25 a.m. on Saturday, September 1, 1973, the jury reached their verdict of guilty on each of the three counts of murder.
      “Although the plaintiff and his counsel were present in the courthouse at all times on the evening in question, the trial judge did not inform them of either the note or the ensuing conversation with juror Read.” Aillon v. State, 168 Conn. 541, 544-45, 363 A.2d 49 (1975).

       The fifth amendment to the United States constitution states, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause of the fifth amendment is applicable to the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
      Although there is no specific prohibition of double jeopardy in the Connecticut constitution, we have in large part adopted the common law rule against it “as necessary to the due process guaranteed by article first, § 9, of our constitution.” Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       We assumed, without deciding, that the first trial was the functional equivalent of a mistrial. State v. Aillon, 182 Conn. 124, 135, 438 A.2d 30 (1980). For the purpose of this decision, we again assume, arguendo, that the petitioner’s first trial was the functional equivalent of a mistrial, predicated upon his motion for a new trial.

       Practice Book § 532 provides in relevant part that “[t]he sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted. . . .”

       Absent the defendant’s consent, there is a longstanding rule that the double jeopardy clause bars retrial after a mistrial unless there was a “manifest necessity” for the mistrial declaration, the classic example of which is a hung jury. See United, States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).

       In this petition, Aillon alleged that he received ineffective assistance of counsel in that his counsel failed to raise, in a timely fashion, a valid double jeopardy claim, to wit:
      “12. A third trial in the cases of State of Connecticut v. Guillermo Aillon violates the double jeopardy and due process clauses of the Fifth and Fourteenth Amendments, respectively, to the United States Constitution, and Article I, Section 8 of the Connecticut Constitution by virtue of the following facts:
      “a. The improper conversation described in subparagraph 7, supra, was undertaken by Judge Cohen under circumstances such that he knew or should have known of its impropriety.
      “b. Judge Cohen’s participation in this conversation was intentional,
      “e. Judge Cohen knew, or should have known, that his conversation with the juror would have provoked a mistrial, had the existence of the conversation been discovered by the defendant and/or his counsel prior to the rendering of a verdict.
      “d. Judge Cohen improperly concealed the existence of the conversation from the defendant and his counsel, under circumstances such that he knew, or should have known, that concealment was improper.
      “e. Judge Cohen knew, or should have known, that the fact of his concealment of the conversation would have provoked a mistrial, had such concealment been discovered by the defendant and/or his counsel prior to the rendering of a verdict.
      “f. Judge Cohen’s misconduct foreclosed the Petitioner’s right to have his guiltor innocence determined by the particular tribunal summoned to judge his case.”
      Petitioner’s Petition for Writ of Habeas Corpus, August 3, 1984.

       The petitioner also argues that even if he failed to state a claim upon which relief could be granted in light of Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), he did state a claim upon which relief could be granted in light of the law as it existed at the time of the alleged misconduct. We find this argument without merit.
      As the Court of Appeals for the District of Columbia succinctly stated, “we may fairly apply Kennedy ... to the instant case. It is settled that where a decision merely affirms prevailing law and applies it to the particular case before the court, the decision is applicable to all pending cases. United States v. Johnson, [457 U.S. 537, 549-50, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982)]. . . . [W]e are not persuaded that because the court put to rest some arguably inconsistent language from earlier opinions, we may not allow Kennedy this limited retroactive effect.” (Emphasis omitted.) Matter of V.G.E., 452 A.2d 1195, 1197 (D.C. Cir. 1982); cf. Robinson v. Neil, 409 U.S. 505, 93 S. Ct. 876, 35 L. Ed. 2d 29, reh. denied, 410 U.S. 959, 93 S. Ct. 1423, 35 L. Ed. 2d 694 (1973); State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Wethersfield Board of Education v. Connecticut State Board of Labor Relations et al.
    (12748)
    Peters, C. J., Healey, Shea, Dannehy and Cioffi, Js.
    Argued November 12
    decision released December 30, 1986

      John C. Ferguson, for the appellant (defendant Wethersfield Federation of Teachers).

      Lisa B. Bingham, with whom, on the brief, was William O. Riiska, for the appellee (plaintiff).

      Patrice A. McCarthy, for the Connecticut Association of Boards of Education, as amicus curiae.

      J. Larry Foy, William S. Zeman and Joel M. Ellis filed a brief for the Connecticut State Board of Labor Relations et al. as amicus curiae.
   Peters, C. J.

The sole issue in this appeal is whether the Teacher Evaluation Act in General Statutes § 10-151b makes proposals concerning the procedures that govern teacher evaluations a mandatory subject of collective bargaining between a local school board and a local teachers’ union. The plaintiff, Wethersfield Board of Education, successfully appealed, in the trial court, a declaratory ruling of the Connecticut State Board of Labor Relations requiring the board to bargain about proposals concerning teacher evaluation procedures tendered by the defendant, Wethersfield Federation of Teachers. The defendant has appealed to this court from the judgment of the trial court. We find no error.

The case has been tried on stipulated facts. The plaintiff, Wethersfield Board of Education (hereinafter school board), as the duly constituted board of education for the town of Wethersfield, is an employer within the meaning of the Teacher Negotiation Act, General Statutes § 10-153a et seq. The defendant, Wethersfield Federation of Teachers (hereinafter federation), represents the certified professional employees of the school board in the teachers’ unit defined in the act. When these proceedings were initiated, the parties were engaged in bargaining for a successor collective bargaining agreement.

The collective bargaining agreement that was in force in 1982 established procedures for the evaluation of teachers. Its provisions entitled each teacher to a written copy of each evaluation, and to the right to discuss his evaluation with his evaluator. They also permitted a teacher to file a grievance concerning an unfavorable evaluation, but only on the grounds of bad faith or discrimination. Finally, in a provision that the school board proposed to eliminate, an advisory committee was designated to suggest improvements in the evaluation form to the superintendent of schools. *

In the process of bargaining for a new contract, the federation proffered ten new proposals for procedures to govern teacher evaluation. The school board agreed to negotiate about the first of these proposals, which provided that a teacher’s rebuttal of an evaluation must accompany the evaluation contained in the teacher’s personnel file. The school board has, however, refused to bargain about the federation’s remaining proposals which would, inter alia, require prior consultation before evaluations, permit unlimited grievances, and preclude classroom observations by anyone other than a certified administrator.

In its declaratory ruling, the State Board of Labor Relations (hereinafter labor board) ruled only on those proposals of the federation that it determined would relate to the procedures to be used in evaluating teachers within the unit. The labor board expressly declined to rule on whether the substantive standards to be used in teacher evaluations are mandatory or permissive subjects of collective bargaining, and requested supplemental briefs concerning the federation’s proposal to permit teachers to appeal adverse evaluations through the grievance process. With these limitations, the labor board ruled that the remaining federation proposals were mandatory subjects of collective bargaining because they related directly to teacher job security. This conclusion was, according to the labor board, bolstered by the language of General Statutes § 10-151b which permits local boards of education and teachers’ representatives to supplement, “by mutual agreement,” state guidelines for the evaluation of teachers.

The trial court decided, contrary to the reasoning of the labor board, that, in enacting a revised § 10-151b in 1974, the legislature had excluded the subject of teacher evaluation guidelines from mandatory bargaining. Relying on a textual change in the wording of the statute, which substituted “mutual agreement” for “negotiation” as the operative method for arriving at local guidelines for teacher evaluation, the court held that the legislature had effectively removed the subject of teacher evaluations from the negotiation process. The court concluded that the present controversy was governed by the specific provisions of § 10-151b, rather than by the more general mandate of § 10-153a on which the labor board had primarily focused its attention. The court further concluded that the federation’s proposals, although limited to procedures, infringed upon the school board’s managerial authority to evaluate the teachers it employs in accordance with existing statutory law. Accordingly, the court reversed the decision of the labor board.

The federation in its appeal to this court claims that the trial court erred in each of its conclusions of law. The federation’s written brief attacks the trial court’s rulings that: (1) § 10-151b removes the subject of teacher evaluation guidelines from the scope of mandatory bargaining; (2) teacher evaluation procedures are not subject to mandatory bargaining, despite the fact that they relate, as the labor board held, to conditions of employment; and (3) the federation’s proposals for teacher evaluation procedures infringe upon the school board’s statutory authority to evaluate the teachers it employs. At oral argument, however, the federation agreed that the dispositive question is one of statutory construction. Does § 10-151b make it mandatory or permissive for the parties engaged in collective bargaining to negotiate about teacher evaluations? Like the trial court, we interpret § 10-15 lb to make such bargaining permissive rather than mandatory.

Our interpretation of the meaning and scope of § 10-151b takes place within well defined limits. “The fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern this intent, we look to the words of the statute itself ... to the legislative history and circumstances surrounding the enactment of the statute ... to legislative practice and policy . . . and to judicial construction.” State v. Kozlowski, 199 Conn. 667, 673-74, 509 A.2d 20 (1986), and cases cited therein.

Section 10-151b is part of what is commonly referred to as the Teacher Evaluation Act. As first enacted, in 1973, it provided, in subsection (c), that teacher evaluations “shall be based upon minimum performance criteria established by the state board of education and such additional performance criteria as the local or regional board of education may, by negotiation, establish.” (Emphasis added.) Public Acts 1973, No. 73-456, § 1. A year later the statute was amended to its present form. Public Acts 1974, No. 74-278, § 1. It continues to provide for locally adopted supplements to state prescribed baseline criteria for teacher evaluations, but it defines the process for arriving at such supplemental criteria differently. As reenacted, § 10-151b now states, in subsection (a), that there shall be continuous teacher evaluations “in accordance with guidelines established by the state board of education for the development of evaluation programs and such other guidelines as may be established by mutual agreement between the local or regional board of education and the teachers’ representative chosen pursuant to section 10-153b . . . .” (Emphasis added.)

Despite this change in the text of § 10-151b, the federation, and the labor board as amicus, argue that the revised statute does not remove procedures for teacher evaluation from the ambit of mandatory bargaining for three reasons. First, they maintain that the statute’s use of the permissive “may be established” has no implications for the collective bargaining process. Second, they contend that the phrase “by mutual agreement” does not prescribe permissive bargaining as the manner in which the parties might reach a final agreement about supplemental evaluation guidelines. Third, they assert that this court should defer to the labor board’s construction of the statute because that agency is charged with the administration and enforcement of our labor laws. We will examine each of these arguments separately.

We agree with the federation and the labor board that § 10-151b does not forbid mandatory bargaining about teacher evaluations merely because it states that supplemental evaluation guidelines “maybe established” by local school boards and teachers’ representatives. The statute makes it clear that such guidelines must comply with baselines established by the state board of education. If the legislature had amended the 1973 act to provide, in 1974, that supplemental guidelines “may be established” by negotiation, the federation and the labor board would have had a strong argument that teacher evaluations are a subject of mandatory bargaining.

As actually amended, however, § 10-151b provides that, after 1974, local supplements to state standards for teacher evaluations would be established not by “negotiation” but by “mutual agreement.” This is the crucial change upon which the trial court relied in its judgment. Notably, the labor board’s decision discussed the statute in its 1974 version without commenting on the inferences to be drawn from that version’s departures from the 1973 act.

The federation and the labor board would have us read “mutual agreement” as a virtual synonym for “negotiation.” They maintain that a legislature intending to remove teacher evaluations from the scope of mandatory collective bargaining would not have relied upon so ambiguous a phrase as “mutual agreement,” especially when the legislature simultaneously added an express statutory reference to “the teacher’s representative chosen pursuant to section 10-153b.” Instead, they claim that the phrase was probably inserted to prohibit unilateral establishment of supplemental evaluation procedures by local boards when bargaining has reached a final impasse. We are not persuaded by this proffered analysis of what “mutual agreement” means.

Although the meaning of “mutual agreement” is not free from inherent ambiguity, we have, in this case, numerous indicia of what the legislature intended by the use of these words. We must ascribe substantive significance to the legislature’s act of amending § 10-151b to replace “negotiation” with “mutual agreement.” State v. Baker, 195 Conn. 598, 601-602, 498 A.2d 1041 (1985); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 232, 477 A.2d 988 (1984). In the law of labor relations, the term “negotiations” has a special meaning because, in one or another of its cognate forms, it is frequently associated with statutory instructions about collective bargaining. See, e.g., General Statutes §§ l-18a (b), 5-271, 5-272, 5-278, 7-273j, 7-468 (c), 7-473b, 7-474, 7-477, 10-153a, 10-153b, 10-153d, 10-153g, 31-48b (d); 31-101(8); 31-111b (a); 31-112(c). As this court noted in West Hartford Education Assn., Inc. v. DeCourcy, 162 Conn. 566, 576-77, 295 A.2d 526 (1972), when § 10-153d (b) speaks of a “duty to negotiate with respect to salaries and other conditions of employment” of teachers, that statute defines the scope of mandatory collective bargaining. It is therefore reasonable to conclude that, in deleting “negotiation” and substituting “mutual agreement,” the legislature manifested an intent to remove teacher evaluations from the ambit of mandatory collective bargaining.

Our interpretation is supported by the legislative history of the 1974 amendment. The recorded proceedings in both houses of the general assembly demonstrate that the legislature’s substitution of “mutual agreement” for “negotiation” was a conscious decision to make a substantive change in the process for establishing teacher evaluation criteria. Several speakers commented expressly and affirmatively on the merits of this change. In reply to a question, a sponsor emphasized that the act’s implementation, on a local level, would depend upon the ability of interested parties to “come to a mutual agreement.” Others noted that the amended act had received broad based support from diverse interested parties, including both school boards and unions, and attributed this support to the fact that every affected group would enjoy a veto power. These expressions of legislative intent are utterly inconsistent with a construction of “mutual agreement” that subjects local additions to state promulgated evaluation criteria to mandatory collective bargaining.

The federation and the labor board suggest that the fact of the unions’ support for enactment of the amended § 10-151b cannot be reconciled with any diminution in union bargaining power over evaluation guidelines. Before the 1974 amendment, however, unions lacked the power to prevent school boards from unilaterally promulgating evaluation criteria if negotiations on this subject had reached an impasse after exhaustion of good faith bargaining. Under the amended § 10-151b, in the absence of mutual agreement, the only operative guidelines are those promulgated by the state board of education. The unions’ new ability to prevent unilateral imposition of additional local evaluation criteria may well account for their support of the amended statute.

Legislative action subsequent to enactment of the amended § 10-151b lends further support to our conclusion that, after 1974, teacher evaluations were no longer a subject of mandatory collective bargaining. Although § 10-151b itself has not again been amended in any manner relative to the present dispute, two important changes in our education law, in 1979 and in 1986, shed further light on the legislature’s intentions.

In 1979, the legislature amended the Teacher Negotiation Act by adding a new section to provide for mediation and binding arbitration if school boards and teachers’ unions are unable to resolve irreconcilable differences about a new collective bargaining agreement. General Statutes § 10-1531 The new statute describes, as the predicate for these mandatory processes, a failure of agreement “after negotiation concerning the terms and conditions of employment applicable to the employees in such unit . . . .” General Statutes § 10-153Í (b). This choice of language confirms the 1974 distinction between subjects of negotiation, to which binding arbitration applies, and other topics of discussion which fall outside these special procedures.

Even more significantly, the General Assembly in 1986 enacted a new education enhancement act containing numerous provisions for career incentives and teacher evaluation. Public Acts 1986, Spec. Sess., May, 1986, No. 86-1, §§ 11 through 19. These provisions underscore that bargaining about teacher evaluations is permissive. The new act, in § 13 (a), authorizes the creation of an “evaluation development panel” that “shall develop a local teacher evaluation plan to meet the requirements of this act and the regulations adopted [pursuant thereto] .... [An approved] local teacher evaluation plan . . . shall be deemed to meet all of the requirements of section 10-151b of the general statutes.” The new act stipulates, in § 13 (b), that a local teacher evaluation plan must be approved by a newly created commission on career incentives and teacher evaluation, whose membership, as prescribed in § 11, includes two representatives of public school teachers. The legislature would not have delegated to a new commission the responsibility for approval of a local teacher evaluation plan if the criteria for such a plan were the subject of mandatory collective bargaining between local school boards and teachers’ unions. There would have been no need to provide teacher representation on the new commission if teachers, through their bargaining representative, already had a major voice in the negotiation of local teacher evaluation guidelines.

We recognize that in construing § 10-151b as we have, we are departing from our usual rule of according deference to the construction given a statute by the labor board, the agency principally charged with its enforcement. Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 74, 411 A.2d 28 (1979); Anderson v. Ludgin, 175 Conn. 545, 555, 400 A.2d 712 (1978). In this case, a departure from this rule is warranted for three reasons.

First, the issue of statutory construction in this case does not involve the application of open ended statutory language to a particular fact bound controversy, but rather concerns an issue of law about the scope of a Connecticut statute that this court has not previously interpreted. “ ‘Although the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts ... it is for the courts, and not for administrative agencies, to expound and apply governing principles of law.’ ” Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980), and cases cited therein; see also Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979).

Second, neither the administrative record nor the administrative decision indicates that the labor board had before it the legislative history of § 10-151b or the subsequent legislative enactments on which we have relied in our construction of the statute. The labor board focused, in large part, on the general balancing test that would normally determine whether a particular issue is a matter of managerial prerogative and educational policy, under § 10-153a and West Hartford Board of Education Assn., Inc. v. DeCourcy, supra. We have focused, instead, on the operative terms of a statute that removed this issue from the general ambit of § 10-153a.

Third, the construction that we adopt bears the imprimatur of the State Department of Education, another state agency with relevant expertise concerning the statute at hand. A State Department of Education guidebook published in 1978, before the enactment of binding arbitration, recommended “that teacher evaluation not be included as an issue in the collective bargaining of teacher contracts.” A. Carrano, Teacher Evaluation: A Guidebook for Connecticut School Districts (1978) p. 16.

In these circumstances, we do not consider ourselves bound, in this case, to follow the labor board’s construction of § 10-151b. We conclude, as did the trial court, that teacher evaluations are not a mandatory subject of collective bargaining because the legislature, in enacting a revised § 10-151b in 1974, determined that state evaluation guidelines would govern teacher evaluations unless local school boards and teachers’ representatives decided, “by mutual agreement,” to implement supplemental local guidelines. The effect of the enactment of the revised § 10-151b was to permit a local school board—or a teachers’ representative—to refuse to negotiate about the subject of teacher evaluations. The trial court was correct in sustaining the school board’s appeal from the contrary ruling of the labor board on this ground.

There is no error.

In this opinion the other justices concurred.

       The Connecticut State Board of Labor Relations was a named defendant in the trial court. In this court, the board elected to file an amicus brief supporting the appeal of the defendant union rather than itself taking an appeal. We attach no significance to this distinction, and have considered fully the arguments in each of the amicus briefs.

       The stipulated facts do not indicate the expiration date of the existing collective bargaining agreement, or, for that matter, what has happened to the negotiation of a successor agreement. In the petition seeking declaratory relief from the labor board, the parties indicated that statutory dates for mediation and for binding arbitration would have occurred late in 1982. The school board filed its petition with the labor board on November 4,1982, and the labor board announced its decision and order on May 31,1983. The school board’s appeal to the Superior Court, dated June 14, 1983, was delayed by the labor board’s failure to certify the administrative record until August 3,1984. Although this record puts into question the continuing nature of the bargaining process that we are today adjudicating, we will assume that this controversy is not moot because it raises an important question of statutory construction which is “ ‘capable of repetition, yet evading review.’ ” Shays v. Local Grievance Committee, 197 Conn. 566, 572, 499 A.2d 1158 (1985). The issue of collective bargaining over teacher evaluations not only affects an ongoing part of the state’s program for education but is likely to arise again in future labor negotiations between the parties to this lawsuit. In these circumstances, we have jurisdiction to address the merits of this appeal.

       The operative collective bargaining agreement in 1982 contained the following provisions on the subject of teacher evaluations:
      “9.2.1 Each teacher shall receive a written copy of each evaluation.
      “9.2.2 Any teacher shall have the right to discuss his evaluation with his evaluator.
      “9.2.3 A teacher may appeal an adverse evaluation through the grievance procedure, but only on the grounds of bad faith or discrimination.
      “9.2.4 A committee composed of members of the E.A.W. shall be convened to propose change, modifications and/or revisions of the evaluation form to the Superintendent of Schools.”
      Both parties are willing to negotiate over §§ 9.2.1 through 9.2.3. Neither party proposes the inclusion of § 9.2.4 in the successor collective bargaining agreement.

       The federation has proposed that a separate article 10 entitled “Evaluation of Teachers” replace the present §§ 9.2.1 through 9.2.4. The proposed terms of article 10 would provide:
      “10.2.1 Each teacher shall be given a written copy of any evaluation and shall be permitted to discuss it with the superintendent or his designee. Teacher’s written rebuttal to an evaluation must accompany the evaluation in teacher’s personnel file.
      “10.2.2 The parties agree that the evaluation of each teacher’s performance, including observations, shall be conducted openly and with full knowledge of the teacher. Tenured teachers shall be observed no more than once per year.
      “10.2.3 The evaluator will prepare for classroom observations by conferring or communicating with the teacher before the classroom observation concerning the purposes of the classroom activity or lesson to be observed and/or the particular emphasis of the observation. At the request of either the teacher or the evaluator, a pre-conference will be held.
      “10.2.4 A teacher shall have the opportunity to review and discuss the evaluation reports with [his] supervisors and to review the contents of the personnel file maintained by building principals, supervisors, or the superintendent.
      “10.2.5 A teacher may appeal an adverse evaluation through the grievance procedure.
      “10.2.6 A teacher shall be provided with a copy of the evaluation report at least three (3) school days prior to a post-evaluation conference with [his] principal and/or supervisor. The written evaluation will be forthcoming within five (5) days after observation. •
      “10.2.7 Only certified administrators shall be permitted to observe or evaluate teachers.
      “10.2.8 Under the extended plan of evaluation any classroom observation^) and evaluations must be directly related to the performance objectives agreed upon by both teacher and evaluator.
      “10.2.9 All previous secret evaluations shall be removed from all teachers’ personnel files.
      “10.2.10 Any classroom visitation by any administrator shall be considered an observation subject to all provisions contained above.”
      Both parties are willing to negotiate over § 10.2.1. The school board refuses to negotiate the provisions of §§ 10.2.2 through 10.2.10. These latter provisions, according to the school board, are not mandatory subjects of collective bargaining.

       We note that the labor board’s decision made a distinction between bargaining about evaluation guidelines themselves and bargaining about procedures for teacher evaluations. The labor board expressly declined to rule on whether the substantive standards for teacher evaluations are a mandatory subject of collective bargaining. In this court, neither the federation nor the labor board, in its amicus brief, has pursued this distinction.

       Commenting on this bill, Representative Phyllis T. Kipp said: “This bill directs Superintendents of Schools to make evaluations of teachers based on guidelines which have been established by the State Board of Education for development of evaluation programs and upon any additional guidelines as may be established by mutual agreement. This is a change from last year in the Fair Dismissal Law . . . whereby we did add negotiation. It is now by mutual agreement. I think this is a very good change.” 17 H.R. Proc., Pt. 10, 1974 Sess., p. 4739.
      In the upper house, Senator Ruth O. Truex noted: “The circle will remember that a year ago we passed the bill mandating teacher evaluation in the state of Connecticut. It was a bill which had some controversial sections largely to one which said, which required that guidelines criteria established by the State Board of Education could be increased and acted upon by negotiation with the Board of Education and local teacher’s organizations. This caused some concern in the minds of many people that we were opening up teacher evaluation to the negotiation process. . . . Amendments to the old bill have been introduced which . . . [make] [t]his bill, I think . . . a very good move. . . . [I]t eliminates the section of by negotiation which I’m sure will please practically everyone here.” 17 S. Proc., Pt. 6, Spec. Sess., June, 1974, p. 2260.

       When Representative Bernard L. Avcollie asked: “What happens if there is no agreement on guidelines to be used for evaluation?” Representative Phyllis T. Kipp replied: “Quite briefly, Mr. Avcollie, after you’re sitting with all these groups, one of the reasons we came to the phrase ‘mutual agreement’ was that it was decided in Committee by all these particular people that they could, indeed, come to a mutual agreement.” 17 H.R. Proc., Pt. 10, 1974 Sess., p. 4741.

       Representative Howard M. Klebanoff expressed skepticism about whether the revised act would succeed in its mission, commenting: “This is a change from a bill we passed last time, and one of the reasons we have total unification of all the groups supporting this is because every group has a veto power, and when you’re saying there will be something established by mutual agreement . . . yes, it’s a nice thing for all the groups to support, because any group that’s not happy can just refuse to agree, and you’re deadlocked.” 17 H.R. Proc., Pt. 10, 1974 Sess., p. 4744.
      Representative William A. Bevacqua, commenting favorably on the legislation, emphasized that “for the first time in the deliberations . . . concerning the problem of teacher evaluation, there is, currently, an expression of unanimity in terms of the various groups that have to come together .... [T]he various and sundry groups that are concerned ... do have veto power in terms of determining what the specific criteria will be . . . .” 17 H.R. Proc., Pt. 10, 1974 Sess., p. 4746.

       The legislature in 1978 amended General Statutes § 10-151b (a) by substituting “local or regional board of education” for “school district” following “The superintendent of each,” and “local” for “town” following “agreement between the” and “evaluations to the.” Several amendments to § 10-151b (b), in 1977, 1978 and 1982, apparently made minor verbal changes in the description and the timing of teacher evaluation programs. Public Acts 1977, No. 77-27, § 3; Public Acts 1978, No. 78-218, § 101; Public Acts 1982, No. 82-74, § 1. Neither the parties nor the amici in this case have suggested that any of these amendments shed any light on the present controversy.

       Public Acts, Spec. Sess., May, 1986, No. 86-1, § 13 (a), provides: “(a) Each evaluation development panel formed pursuant to section 12 of this act shall develop a local teacher evaluation plan to meet the requirements of this act and of the regulations adopted under the provisions of subsection (e) of section 11 of this act. In developing such a plan, such a panel may use the assistance of the consultants retained pursuant to the provisions of subsection (b) of section 11 of this act. A local teacher evaluation plan developed pursuant to this section and approved pursuant to subsection (c) of this section shall be deemed to meet all of the requirements of section 10-151b of the general statutes.”

       Public Acts, Spec. Sess., May, 1986, No. 86-1, § 13 (b), provides: “(b) Each such plan shall be submitted to the local or regional board of education for approval and shall be submitted by the school district to the commission not later than April 1, 1988.”

       Public Acts, Spec. Sess., May, 1986, No. 86-1, § 11 (a), provides: “(a) During the period commencing on the effective date of this act and ending on June 30, 1988, there shall be a commission on career incentives and teacher evaluation which shall be composed of: Three persons appointed by the governor, one of whom shall be a representative of the higher education community with knowledge of teacher education, one of whom shall be representative of public school teachers with knowledge of personnel evaluation, and one of whom shall be a representative-at-large; three persons appointed by the president pro tempore of the senate, one of whom shall be a representative of boards of education, one of whom shall be a representative of public school teachers, and one of whom shall be a representative-at-large; one person appointed by the majority leader of the senate, who shall be a member of the business community; three persons appointed by the speaker of the house of representatives, one of whom shall be a representative of school administrators with knowledge of personnel evaluation, one of whom shall be a member of the business community, and one of whom shall be a representative of the legal community with knowledge of public sector collective bargaining; one person appointed by the majority leader of the house of representatives, who shall be a member of the business community with knowledge of personnel evaluation; one person appointed by the minority leader of the senate, who shall be a representative of boards of education with knowledge of personnel evaluation; one person appointed by the minority leader of the house of representatives, who shall be a representative of school administrators; the senate chairman and ranking member of the joint standing committee of the general assembly having cognizance of the matters [relating] to education; and the house of representatives chairman and ranking member of the joint standing committee of the general assembly having cognizance of matters relating to education; and the commissioners of education and higher education as ex-officio, nonvoting members. The members of the commission shall be appointed not later than July 1,1986. The membership of the commission shall select one of its members to serve as chairman. Notwithstanding the provisions of section 4-la of the general statutes, the terms of the members of the commission shall expire on June 30, 1988. The commission may employ a secretary, a clerk, and within its budget, such other employees as it deems necessary.”

       Since we conclude that the action of the plaintiff board was justified by General Statutes § 10-151b as we have construed it, we need not review the trial court’s alternate ruling that, even under the balancing test of General Statutes § 10-153a, collective bargaining was not mandatory because the federation’s proposals in this case infringed upon the school board’s managerial authority to evaluate teachers in accordance with statutory law.


author: Dannehy, J.

text:
    Helicopter Associates, Inc., et al. v. City of Stamford
    (12650)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued October 3
    decision released December 30, 1986

      Frank H. D’Andrea, Jr., with whom was Brian D. Rosenfeld, for the appellants (plaintiffs).

      James R. Fogarty, with whom, on the brief, was Andrew P. Nemiroff, for the appellee (defendant).
   Dannehy, J.

This appeal raises questions of whether state statutes governing aeronautics preempt a certain municipal zoning regulation and whether a use of property prior to the enactment of the regulation constituted a valid, nonconforming use. The trial court found that the state had not preempted the field and that a valid nonconforming use did not exist on the effective date of the regulation. We find error in part and remand the case for further proceedings.

The facts before the trial court were as follows. The plaintiff, Helicopter Associates, Inc. (HAI), is a Connecticut corporation which was created to provide helicopter transportation service to Connecticut area businesses and residents. The plaintiff, Mercedes Plaza Enterprises (MPE), is the owner of a tract of land in the city of Stamford. In the fall of 1979, HAI and MPE reached an oral agreement whereby HAI could use the MPE site for the landing and taking off of helicopters. During the following year, HAI purchased several helicopters, hired two full-time pilots, and began to solicit business from the regional corporate community. Meanwhile, MPE made various improvements at the site including shortening a cyclone fence, paving the site, painting helicopter landing lines thereon, and installing a directional windsock. In July of 1980, HAI applied for a license from the state department of transportation (DOT), bureau of aeronautics, to operate a commercial heliport at the MPE site. Such a license is required by statute if an area is expected to be used for more than thirty-six landings and takeoffs per year. See General Statutes § 13b-46.

The events leading up to this action began in the fall of 1980. On September 9,1980, the zoning board of the defendant, city of Stamford, amended its zoning regulations to delete from the land use schedule as a permitted use the category of “aeroplane field, hangar or ramp.” The parties agree that this category included helicopter facilities. The Stamford zoning regulations contain a provision which states that any use of land legally existing at the time of an amendment to the regulations is deemed to be a nonconforming use, and that such use may be continued but may not be extended or expanded. Stamford Zoning Regulations, art. IV, § 10 (A). As of September 9, 1980, the effective date of the amendment to the regulations, HAI had performed ten takeoffs and landings of helicopters from the MPE site, but had not yet received the state license which would have allowed it to make more than thirty-six flights per year. During the several months following the enactment of the amendment, HAI continued to conduct flights from the site without receiving any complaints that this use violated local regulations or ordinances.

On May 26,1981, after holding a hearing, reviewing HAI’s application and inspecting the MPE site, the commissioner of the DOT issued HAI a commercial heliport license, effective June 1,1981. The license stipulated that the plaintiffs must comply with “[a]ll federal, state and municipal statutes, ordinances and regulations . . . .’’Apparently in response to the granting of the license, the Stamford board of representatives called a special meeting on May 30,1981. At the meeting, the board adopted an ordinance which prohibits any private or commercial landing facility in Stamford unless a permit is granted by the Stamford zoning board.

The plaintiffs then commenced this action against the city of Stamford seeking, inter alia, a declaratory judgment that the ordinance passed on May 30,1981, was invalid on constitutional and other grounds and an injunction prohibiting enforcement of the ordinance against the plaintiffs. The defendant, by way of counterclaim, alleged that the plaintiffs’ use of the MPE site violated the amendment to the zoning regulations, effective September 9, 1980, which deleted the category of “aeroplane field, hangar or ramp” from the land use schedule. In addition, the defendant alleged that the plaintiffs’ proposed use would constitute an unlawful extension or expansion of any nonconforming use of the property as a heliport. The plaintiffs then filed a special defense asserting that the state of Connecticut had preempted the field of land use with respect to the design, establishment, construction, extension, operation, improvement, repair and maintenance of airports, restricted landing areas or other navigational facilities thereby prohibiting regulation of the heliport by the defendant. This special defense was subsequently denied by the defendant.

The evidence before the trial court consisted mainly of documents, a stipulation of facts and the testimony of two individuals. From the pleadings and evidence presented, the trial court concluded that the disposi-tive issues of the case were actually those raised in the counterclaim and the special defense. As to these issues, the court found that the state had not preempted the control and use of heliports to the exclusion of local regulation and that the plaintiffs did not have a nonconforming use of the MPE site as a commercial heliport on September 9, 1980, the effective date of the amendment. The court also concluded that because the plaintiffs had flown only five commercial flights and seventeen total flights for the year, allowing the site to be used for an unlimited number of flights would constitute an expansion or change in character of any existing use, in violation of article IV, § 10 (A), of the Stamford zoning regulations. Judgment was thereafter rendered for the defendant and the plaintiffs were enjoined from using the MPE site for helicopter takeoffs and landings. In response to the plaintiffs’ motion for further articulation and rectification, the court again declined to rule on the constitutionality of the ordinance passed on May 30, 1981.

The plaintiffs have appealed from the decision of the trial court claiming six grounds of error. The first three grounds involve the issues of preemption and nonconforming use, while the latter three pertain to the trial court’s refusal to grant the declaratory and injunctive relief sought by the plaintiffs and its granting of injunc-tive relief in favor of the defendants. We find error in the trial court’s finding that the plaintiffs did not possess a nonconforming use under the Stamford zoning regulations and remand this case for further proceedings to determine the validity of the ordinance passed on May 30, 1981.

I

Preemption

We must first consider the issue of preemption, for if the state has indeed preempted the field of aeronautics, the challenged amendment to the Stamford zoning regulations would be invalid and any discussion of its application to the plaintiffs would be moot. All parties agree that the law of preemption is clearly set forth in Shelton v. Commissioner, 193 Conn. 506, 479 A.2d 208 (1984). In that case, we stated that “ ‘[a] local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter . . . or . . . whenever the local ordinance irreconcilably conflicts with the statute. . . . Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state’s objectives. . . .’ ” (Citations omitted.) Id., 517, quoting Dwyer v. Farrell, 193 Conn. 7, 12-14, 475 A.2d 257 (1984).

The trial court in the present case held that no preemption had occurred even though it acknowledged that the legislature has granted to the commissioner of the department of transportation broad powers over aeronautics. See General Statutes §§ 13b-39 through 13b-50; see generally General Statutes, title 15, c. 266. The court explained that the plaintiffs had not referred to any statutes which indicated a legislative intent to usurp local control of land use. The plaintiffs vigorously contest this finding, arguing that they had indeed cited numerous statutes evidencing such an intent. We have carefully reviewed those statutes referred to by the plaintiffs and agree with the trial court that they do not reveal a legislative intent to vest exclusive control over the establishment of private aeronautical facilities in the state.

The provisions in our statutes relating to aeronautics begin by granting to the commissioner jurisdiction over and responsibility for “aeronautics” in the state. General Statutes § 13b-39. The term “aeronautics” is defined in General Statutes § 15-34 to include “the design, establishment, construction, extension, operation, improvement, repair or maintenance of airports, restricted landing areas or other air navigational facilities.” Significantly, the word “location” is missing from this definition. Cf. Garden State Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978). Under General Statutes § 13b-42 (a) the commissioner is vested with the “entire charge, control, operation and management” of air facilities owned or leased by the state. Subsequent provisions set forth the procedure whereby the commissioner may acquire a municipal air facility or land within the state for use as a state air facility. See General Statutes §§ 13b-42 (c) and(d), 13b-44. Another statute explains the procedure to be followed when a municipality, acting alone or jointly with another municipality, wishes to establish an air facility. See General Statutes § 13b-43. Arguably, these comprehensive provisions may govern the entire field of the creation of state and municipal air facilities. See East Haven v. New Haven, 159 Conn. 453, 271 A.2d 110 (1970).

The plaintiffs, however, seek to establish a private heliport and under the few statutory provisions addressing privately owned air facilities; see General Statutes §§ 13b-46 through 13b-49; the commissioner performs essentially a licensing function. The commissioner is authorized under § 13b-46 to issue certificates of approval and licenses (the latter being required if more than thirty-six flights are anticipated) to any person or municipality wishing to construct an air facility. Subsequent provisions list the criteria the commissioner must consider in determining whether to issue a certificate or license and provide for a public hearing prior to the commissioner’s determination. See General Statutes §§ 13b-47, 13b-48. Nowhere in these provisions is there any indication that the legislature intended to preempt the field of aeronautics with respect to private as opposed to state or municipally owned air facilities. On the contrary, language in § 13b-46 (a) indicates that the commissioner’s role in licensing private air facilities is merely “to insure that the property and its use shall conform to minimum standards of safety and shall serve the public interest.”

In Shelton v. Commissioner, supra, 518, we held that the Solid Waste Management Services Act; General Statutes §§ 22a-257 through 22a-281; preempted local zoning regulations governing solid waste disposal. That act, however, clearly stated the legislative policy that “solid waste disposal and resources recovery facilities and projects are to be implemented either by the state of Connecticut or under state auspices. . . .’’General Statutes § 22a-259 (2); Shelton v. Commissioner, supra. Moreover, the act was based on express legislative findings that “local governments responsible for waste disposal services are becoming hard pressed to provide adequate services at reasonable costs . . . [and] that the development of systems and facilities and the use of the technology necessary to initiate large-scale processing of solid wastes have become a logical and necessary function to be assumed by state government. . . .” General Statutes § 22a-258; Shelton v. Commissioner, supra.

The Connecticut aeronautics statutes contain no such preemptive language. The legislature has instead given municipalities broad powers to enact zoning regulations; see General Statutes § 8-2; and has specifically provided that municipalities “shall have the power to . . . [establish, lay out, construct, reconstruct, alter, maintain, repair, control and operate . . . airports and their accessories . . . General Statutes § 7-148 (c) (6) (A) (i). Were we to adopt the plaintiffs’ construction of the aeronautics statutes, whereby the state could in effect force a town to allow the establishment of a private air facility, the powers granted to municipalities under titles 7 and 8 would be rendered illusory.

Our conclusion that the Connecticut aeronautics statutes do not preempt the entire field of aeronautics to the exclusion of local regulations is consistent with the actions and statements of senior officials of the DOT. The license granted to HAI specifically provides that “[a]ll federal, state and municipal statutes, ordinances and regulations [are] to be complied with.” Correspondence from a high ranking DOT official states that “[t]he Department of Transportation cannot and does not ignore established zoning or local ordinances.” Other DOT officials echoed this policy.

The plaintiffs also contend that the trial court erred because it failed to consider the second portion of the Shelton preemption test, whether there is an irreconcilable conflict between the state statutes and the local enactment. Although the trial judge’s memorandum of decision does not indicate whether this aspect of the test was considered, a close analysis of the plaintiffs’ claim reveals that it was not necessary to reach it. The plaintiffs argue that an irreconcilable conflict exists because on the one hand, the language and legislative history of titles 13b and 15 of the General Statutes show a clear intent that the field of transportation, including transportation by air, is to be addressed solely by way of a comprehensive statewide program. Under this program, they contend, the commissioner is the only one authorized to issue licenses, and has in fact issued to the plaintiffs a license notwithstanding the defendant’s zoning regulations. On the other hand, they point out that the legislature has also recognized the need for local power over land use; see General Statutes § 8-2; Stamford Charter § 550; and pursuant to this power, Stamford has amended its regulations to prohibit the use of the plaintiffs’ property as a heliport. We have already rejected, as did the trial court, the plaintiffs’ initial premise that all aspects of air transportation are to be regulated exclusively by the state. We fail to perceive, therefore, the conflict which the plaintiffs claim necessitates review under the second portion of the Shelton test.

II

Nonconforming Use

Having determined that the amendment to the Stamford zoning regulations has not been preempted by state aeronautics statutes, we next consider the amendment’s application to the plaintiffs. The amendment, which became effective on September 9,1980, deleted from the land use schedule the category of “aeroplane field, hangar or ramp.” It is undisputed that helicopter facilities are included in this category. The Stamford zoning regulations also contain a provision that “any ... use of land . . . legally existing at the time ... of any amendment [to these Regulations] . . . shall be designated a non-conforming use. Such use may be continued but may not be extended or expanded. . . . ” Stamford Zoning Regulations, art. IV, § 10 (A); see also General Statutes § 8-2. The question which emerges from this provision and which arose by virtue of the defendant’s counterclaim is whether the plaintiffs possessed a nonconforming use as of September 9,1980, so that they could continue to use the MPE site as a commercial heliport.

The trial court answered this question in the negative, explaining that the plaintiffs’ use of the site was merely “casual.” Although it acknowledged that the area had been paved, landing lines painted, a windsock installed, and that five commercial flights had taken place, the court nonetheless could not find “by any common sense standard” that the site was being used as a commercial heliport at the time the amendment was passed. The plaintiffs contend that this conclusion is clearly erroneous in that the court failed to apply the proper legal test for determining whether a nonconforming use existed. See Duksa v. Middletown, 192 Conn. 191, 205-206, 472 A.2d 1 (1984); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Once this test is applied to the facts of the case, they argue, it is clear the trial court’s conclusion was not logically correct. We agree with the plaintiffs’ position.

For a use to be considered nonconforming under § 10 (A) of the Stamford zoning regulations and under Connecticut case law, that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted. Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 482-83, 408 A.2d 243 (1979); Bianco v. Darien, 157 Conn. 548, 558-59, 254 A.2d 898 (1969); Prospect Gardens Convalescent Home, Inc. v. Norwalk, 32 Conn. Sup. 214, 221-22, 347 A.2d 637 (1975). The legality of the plaintiffs’ use of the MPE site as a heliport prior to September 9, 1980, requires little discussion. Until the amendment was passed, heliports were allowed under Stamford zoning regulations in the zone where the MPE site is located. The plaintiffs’ use of the site for ten flights was also legal under state law, because a license is only required if over thirty-six flights are to be made per year. See General Statutes § 13b-46.

The second requirement for a nonconforming use is that the use be in existence at the time of the relevant zoning change. See Stamford Zoning Regulations, art. IV, § 10 (A); Melody v. Zoning Board of Appeals, 158 Conn. 516, 520, 264 A.2d 572 (1969). In several prior decisions we have articulated the test for identifying an existing use. “For there to be an existing use, premises must be so utilized as to be known in the neighborhood as employed for a given purpose. Such utilization combines two factors: (1) the adaptability of the land for the purpose; (2) the employment of it within that purpose. In addition, the use must be actual and not merely contemplated.” Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588 (1958); see also Melody v. Zoning Board of Appeals, supra; DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 161, 32 A.2d 635 (1943). Moreover, we have unequivocally stated that neither the extent, quantity nor quality of the use is prescribed by the “known in the neighborhood” test. Melody v. Zoning Board of Appeals, supra, 520-21. “The court is not generally required to speculate as to the number of acts or business transactions necessary to constitute an existing use.” Id., 521; Fairlawns Cemetery Assn., Inc. v. Zoning Commission, 138 Conn. 434, 444, 86 A.2d 74 (1952); see also 101A C.J.S., Zoning & Land Planning § 184, pp. 548-50.

Although the trial court in its memorandum of decision cited Wallingford v. Roberts, supra, it neither discussed nor applied the “known in the neighborhood” test which that case stands for. Instead, in concluding that a nonconforming use was not present, the court stated that it could not find by “any common sense standard,” that the site was being used as a commercial heliport, and that the plaintiffs’ use was merely casual. The court’s failure to find a nonconforming use is clearly erroneous when the facts of the case are examined under the test set forth in Wallingford v. Roberts. The first factor of that test concerns the adaptability of the land for the given purpose. Id. The trial judge found that the site had been paved, that landing lines had been painted, and that a windsock was erected. These facts, coupled with the fact that five commercial flights had occurred prior to the passage of the amendment, lead to the inescapable conclusion that the site indeed had been adapted for use as a commercial heliport.

For a use to be “known in the neighborhood,” not only must the premises have been adapted for a given purpose, but the premises must also have been employed within that purpose. Id. The facts of the present case indicate that ten flights had been made as of September 9, 1980, five of which were commercial. The trial court concluded that such a use was “casual” and insufficient to establish a nonconforming use. The test in Wallingford v. Roberts, however, only requires that the premises be employed for the given purpose, the purpose here being the establishment of a commercial heliport. This use clearly occurred here. The test does not require a specific quantity of uses to have been made. Melody v. Zoning Board of Appeals, supra; Fairlawns Cemetery Assn., Inc. v. Zoning Commission, supra. In fact, Melody and Fairlawns Cemetery Assn., Inc., make clear that the number of times the premises have been used for the given purpose should not be a factor in the court’s determination of whether such use is known in the neighborhood. Melody v. Zoning Board of Appeals, supra; Fairlawns Cemetery Assn., Inc., v. Zoning Commission, supra.

Apart from an analysis under the two prongs of the Wallingford v. Roberts test, other facts presented to the trial court convince us that the plaintiffs’ use of the MPE site as a commercial heliport was known in the Stamford area. As noted above, the area physically had been changed to accommodate helicopter flights, and flights had been made. During one of these flights, DOT commissioner Arthur Powers was flown in to the MPE site and met there by the Stamford mayor. The town of Stamford was notified by a letter to its mayor, dated July 10,1980, that the state had received HAI’s application for a commercial heliport license. Stamford’s building official and zoning enforcement officer, James J. Soltire, testified that he was aware helicopter flights were taking place at the MPE site prior to the zoning change and that he considered the plaintiffs’ operations to be a nonconforming use. The Stamford zoning board was also aware of the use of the MPE site for helicopter flights prior to September 9, 1980, because Soltire testified that he notified the board of the use by letter. The only reasonable conclusion to be drawn from these facts is that the plaintiffs were operating a commercial heliport, albeit an as yet unlicensed one, as of September 9, 1980, and that this use was known in the Stamford area.

Our conclusion that the plaintiffs had a nonconforming use to operate a commercial heliport on September 9, 1980, does not end our inquiry. The nonconforming use which the plaintiffs possessed on that date allowed them to conduct no more than thirty-six flights per year at the MPE site. The reason for this limit inheres in the definition of a nonconforming use itself. As stated above, a use is nonconforming if it legally exists at the time of the zoning change. See Stamford Zoning Regulations, art. IV, § 10 (A); Petruzzi v. Zoning Board of Appeals, supra, 482. On September 9,1980, the plaintiffs could not legally perform over thirty-six flights because they had not yet obtained the requisite state license. See General Statutes § 13b-46. Their nonconforming use thus was limited to no more than thirty-six flights per year.

The plaintiffs, however, seek to utilize the MPE site for an unlimited number of flights. Consequently, we must now determine whether such a use would violate the provision of the Stamford zoning regulations which provides that a nonconforming use “may be continued but may not be extended or expanded. . . .’’Stamford Zoning Regulations, art. IV, § 10 (A). The trial judge held that even if the plaintiffs had some type of nonconforming use, to allow unlimited flights would constitute a change in the character of the existing use in violation of the nonexpansion clause of § 10 (A). The legality of an extension of a nonconforming use is essentially a question of fact. Guilford v. Landon, 146 Conn. 178, 183, 148 A.2d 551 (1959). We cannot say that the trial court’s conclusion regarding this aspect of the case was clearly erroneous.

We have previously held that a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use. Guilford v. Landon, supra; Salerni v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528 (1954); DeFelice v. Zoning Board of Appeals, supra, 162. A change in the character of a use, however, does constitute an unlawful extension of the prior use. Salerni v. Scheuy, supra. In Salerni v. Scheuy, supra, we affirmed a finding that the granting of a permit to sell all types of liquors at a restaurant which held only a beer permit would be a change in the character of the nonconforming use. We explained that “[t]he difference between the sale of beer only in a restaurant and the sale of all liquors therein is so great that our law requires a different permit from the liquor control commission for each of the two kinds of business.” Id. The fact that the legislature requires a different permit to run the same physical facility depending on the type of alcohol sold, made for “a different sort of enterprise” in that case. Id. More recently in Macaluso v. Zoning Board of Appeals, 167 Conn. 596, 600, 356 A.2d 885 (1975), we held that differing statutory treatment was evidence that the sale of liquor in a package store “is an enterprise of substantially greater magnitude” than the sale of liquor in a drug store. Consequently, in that case, the substitution of a package store permit for a drug store liquor permit constituted an expansion of a nonconforming use. Id.

We follow the lead of these prior decisions in the present case. By requiring á license for over thirty-six flights the legislature has in effect created two types of heliports. The first type, in which a site may be used for no more than thirty-six flights, does not require a license from the state; while the second type, use of a site for more than thirty-six flights, requires a state license. The legislature could reasonably have concluded that occasional helicopter flights would not have a deleterious effect upon the surrounding properties considering such factors as noise, distractions and traffic, and thus would not require close supervision and licensing by the state. On the other hand, the legislature has recognized that at some point, additional flights will have a substantial impact on the surrounding community, necessitating state supervision. The legislature has chosen thirty-six flights, or an average of three per month, as the point where the character of a heliport changes and where state licensing is required. The use of the MPE site for an unlimited number of flights, therefore, would not merely increase the amount of business done under existing zoning law. The use would be, by legislative decree, a change in the character of the heliport. S ee Macaluso v. Zoning Board of Appeals, supra; Salerni v. Scheuy, supra. The trial court, therefore, did not err in concluding that the proposed use of the MPE site would constitute an unlawful expansion of the plaintiffs’ nonconforming use in violation of the Stamford zoning regulations.

Although we conclude that the plaintiffs may not use the MPE site for an unlimited number of flights, we have determined that at the time of the zoning change, they did possess a nonconforming use for no more than thirty-six flights per year. The trial court’s judgment, however, erroneously enjoins any use of the property for helicopter flights even if the number does not exceed thirty-six per year.

In view of the foregoing, further proceedings are necessary at this point to evaluate the legality of the plaintiffs’ nonconforming use under the ordinance passed on May 30, 1981. The plaintiffs alleged in the trial court that this ordinance is invalid in that it violates the Stamford charter, state and federal law, and “is unconstitutional.” They urge us to address these issues as the entire record of the trial court proceedings is before us. We ordinarily do not rule on the facial validity of a legislative act. State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). Moreover, because these issues were not adjudicated in the trial court, the record before us is incomplete. A determination of the validity of the ordinance, therefore, is better left to the trial court.

There is error in part, the judgment is set aside and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other justices concurred.

       The plaintiffs’ complaint is in three counts. The third count alleges a due process violation based on the method by which the city of Stamford enacted the ordinance. At trial, the plaintiffs proceeded only on the first two counts and reserved the third count for trial at a later date.

       The plaintiffs argue that in their trial brief they cited the following statutes to indicate a legislative intent that the state is to have exclusive power to govern the use of land for aeronautical purposes within its borders: General Statutes §§ 13b-39, 13b-43, 13b-44, 13b-46, 15-34 (1), 15-38, 15-41.

       Public Acts 1985, No. 85-262, inserted the term “heliports” after “airports.” Neither party has argued that prior to the act, the commissioner lacked authority over heliports.

       “[General Statutes] Sec. 13b-46. certificate of approval, licenses. (a) The commissioner is authorized to approve airports, restricted landing areas, and other air navigation facilities in accordance with regulations adopted by him. Any municipality or person acquiring property for the purpose of constructing or establishing an airport or restricted landing area shall, prior to such acquisition, apply to the commissioner for a certificate of approval of the site selected and the general purpose or purposes for which the property is to be acquired, to insure that the property and its use shall conform to minimum standards of safety and shall serve the public interest. Any proposed airport, restricted landing area or other air navigation facility at which more than thirty-six landings and takeoffs are expected to be made by aircraft in any year shall be approved by the commissioner before it shall be licensed to be used or operated for such year. The commissioner shall make no charge for approval certificates of proposed property acquisition for airport or restricted landing area purposes . . . .” Public Acts 1985, No. 85-262, added the word “heliports” after the word “airports” and the word “heliport” after the word “airport” in the three places where the latter word appears.

       “[General Statutes] Sec. 13b-47. criteria for approval. In determining whether he shall issue a certificate of approval or license for the use or operation of any proposed airport or restricted landing area, the commissioner shall take into consideration (1) its proposed location, size and layout, (2) its relationship to the comprehensive long-range master transportation plan and to any other comprehensive plan for statewide and nationwide development, (3) the availability of areas suitable for safe future expansion, (4) the freedom of adjoining areas from obstructions based on a proper glide ratio, (5) the nature of the terrain and of the uses to which the proposed airport or restricted landing area will be put, and (6) the possibilities for future development.” In Public Acts 1985, No. 85-427, the legislature deleted the phrase “airport or restricted landing area” and added in its place the phrase “commercial use air navigation facility.” The act also created a section “(b)” which listed the criteria to be considered for the establishment of a “private use air navigation facility.”
      “[General Statutes] Sec. 13b-48. hearing on application for certificate of approval or license. Upon receipt of any application for a certificate of approval of an airport or restricted landing area, or an original license to use or operate an airport, restricted landing area or other air navigation facility, the commissioner shall send notice thereof by registered or certified mail to the chief executive officer or first selectman of the municipality or municipalities in which the proposed airport, restricted landing area or other air navigation facility is proposed to be located. If the applicant, or such municipality within fifteen days after receipt of such notice, requests a public hearing, the commissioner shall set a time and place therefor in the municipality in which the proposed airport, restricted landing area or other air navigation facility is proposed to be situated, at which hearing interested parties shall have an opportunity to be heard. The com-. missioner may in his discretion hold a public hearing in any case where no such request is made. Notice of any such hearing shall be published by the commissioner in a newspaper of general circulation in such municipality at least twice, the first publication to be at least fifteen days prior to the date of the hearing. Upon the conclusion of such hearing the commissioner shall consider all the relevant evidence and shall issue an order granting or denying such application, written notice of which shall be sent by registered or certified mail to the applicant and to the chief executive officer or the first selectman of the municipality or municipalities in which the proposed airport, restricted landing area or other air navigation facility is to be located. Orders issued pursuant to this section shall comply with the requirements of section 15-66 and shall be subject to appeal as provided in section 15-67.” Public Acts 1985, No. 85-262, inserted the word “heliport” after “airport.”
      The final section pertaining to private air facilities is General Statutes § 13b-49 which allows the commissioner to revoke a license or certificate of approval if the air facility is being used improperly.

       For example, in a letter to Stamford’s mayor dated July 10, 1980, the chief executive officer, bureau of aeronautics, stated ”[t]he Department of Transportation is soliciting comments from the City of Stamford relating to . . . [the application from HAI], including information as to whether this proposal meets with local zoning regulations and ordinances.” Pursuant to this letter, a public hearing was held in Stamford on December 10, 1980, regarding HAI’s application. Although a number of individuals present spoke out against the proposed facility, the legality of the plaintiffs’ use under the September 9, 1980 amendment does not appear to have been raised or discussed.

       In support of its conclusion that the plaintiffs did not have a nonconforming use, the trial court stated in its memorandum of decision that the plaintiffs failed to satisfy the requirements of § 15-41-29 of the Regulations of Connecticut State Agencies. This section sets forth minimum requirements for commercial airports including the necessity of facilities for fuel, drinking water and sanitary toilets. The plaintiffs’ failure to comply with all of these regulations two months after the submission of their application is not fatal to their claim of a nonconforming use. These regulations apparently come into play when the commissioner grants a license to an applicant, but need not be satisfied prior to the issuance of a license. In issuing the license to HAI, for example, correspondence from the state bureau of aeronautics states that certain of the requirements set forth in the regulations were waived because of the nature of HAI's license, but others still had to be met.


text:
    Mary Ellen Rule v. Donald A. Rule
    Decided July 9, 1986

      Alfred J. Garofolo, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 6 Conn. App. 541, is denied.


text:
    John David Lonardelli v. Administrators, Department of Income Maintenance
    Decided July 9, 1986

      John David Lonardelli, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    “C” Fish Company Limited et al. v. James F. Shugrue, Commissioner of Transportation, et al.
    Decided July 9, 1986

      Herbert Watstein, in support of the petition.

      Denise Martino Phelan, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 7 Conn. App. 561, is denied.


text:
    State of Connecticut v. James R. DelVecchio
    Decided July 9, 1986

      Sue L. Wise, in support of the petition.

      Steven M. Sellers, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 217, is denied.


text:
    American Factors, Inc. v. Foreign Intrigue, Inc., et al.
    Decided July 9, 1986

      Burton M. Weinstein, in support of the petition.
   The defendants’ petition for certification for appeal from the Appellate Court, 6 Conn. App. 656, is denied.


text:
    Michael F. Brown v. K.N.D. Corporation et al.
    Decided July 9, 1986

      Sydney T. Schulman, in support of the petition.
   The defendant Wilbur Smith’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 418, is granted.


text:
    State of Connecticut v. Thomas Timmons
    Decided July 9, 1986

      Eugene J. Riccio, public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 457, is granted.


text:
    Susan H. Ferrucci et al. v. Ronald Davidson
    Decided July 16, 1986

      Ronald Davidson, pro se, in support of the petition.

      Wilbur J. Land, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Curtis Upshaw, Jr.
    Decided July 16, 1986

      Todd D. Fernow, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 257, is denied.


text:
    State of Connecticut v. Reginald Ridley
    Decided July 16, 1986

      Helen Apostolidis, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 503, is denied.


text:
    Henry E. Keppel, Jr., et al. v. BaRoss Builders, Inc.
    Decided July 16, 1986

      Steven J. Errante, in support of the petition.

      David J. Peska, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 435, is denied.


text:
    Robert Lee Johnson v. Warden, Connecticut Correctional Institution, Somers
    Decided July 16, 1986

      Robert Lee Johnson, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Robert L. Smith
    Decided July 23, 1986

      Susan M. Hankins, assistant public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 715, is denied.


text:
    Boleslaw Kiriaka v. Melvin Alterwitz et al.
    Decided July 23, 1986

      Joseph P. Kenney, in support of the petition.

      Kevin A. Coles, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 575, is denied.


text:
    John F. Carr, Jr. v. Elliott Woolwich et al.
    Decided July 23, 1986

      Theresa D‘Alton, in support of the petition.

      Wesley W. Horton, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 7 Conn. App. 684, is denied.


text:
    State of Connecticut v. John S. Giannotti
    Decided July 31, 1986

      Bruce L. Levin, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 701, is denied.


text:
    Nathaniel Ratner et al. v. Edward Willametz
    Decided July 31, 1986

      Edward Willametz, pro se, in support of the petition.

      Thomas Weaver, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Robert Jenkins
    Decided July 31, 1986

      Donald D. Dakers, public defender, in support of the petition.

      Judith Rossi, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 653, is denied.


text:
    Jean Wodilla v. Frederick Pesce
    Decided July 31, 1986

      Ronald E. Cassidento, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    Yale Rubin v. Shirley A. Rubin
    Decided July 31, 1986

      Francis M. Bosze, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 735, is granted.


text:
    Larry M. Lynch v. Benjamin A. Muzio, Commissioner of Motor Vehicles
    Decided July 31, 1986

      Richard E. Greenspan, in support of the petition.

      Peter E. Wiese, assistant attorney general, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 7 Conn. App. 748, is granted.


text:
    State of Connecticut v. James R. Mebane
    Decided September 24, 1986

      William R. Schipul, assistant public defender, in support of the petition.

      C. Robert Satti, Jr., assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 63, is granted.


text:
    State of Connecticut v. Mark Sergi
    Decided September 24, 1986

      Barbara Goren, special public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 445, is denied.


text:
    State of Connecticut v. Thomas D. Hansen
    Decided September 24, 1986

      Averum J. Sprecher, in support of the petition.

      Carl' Schuman, assistant state’s attorney, in opposition.
   The defendant’s petitions for certification for appeal from the Appellate Court, 8 Conn. App. 26, are denied.


text:
    James SantaMaria et al. v. Robert Manship et al.
    Decided September 24, 1986

      Richard P. Weinstein, in support of the petition.

      Robert J. Papp, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 7 Conn. App. 537, is denied.


text:
    Marilyn Krattenstein v. John M. Thomas et al.
    Decided September 24, 1986

      Patricia Kilkenny, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 604, is denied.


text:
    State of Connecticut v. Richard Salz, Sr.
    Decided September 24, 1986

      James M. S. Ullman, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 125, is denied.


text:
    Roy E. Casey v. Commissioner of Correction
    Decided September 24, 1986

      Roy E. Casey, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Andreas Van Der Werff
    Decided September 24, 1986

      Gerald M. Klein, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 330, is denied.


text:
    State of Connecticut v. Benjamin F. Ralston, Jr.
    Decided September 24, 1986

      Neil A. Lieberthal and Richard Emanuel, in support of the petition.

      C. Robert Satti, Jr., assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 7 Conn. App. 660, is granted.


text:
    State of Connecticut v. Gladys Hobson
    Decided September 24, 1986

      John R. Williams, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 13, is denied.


text:
    State of Connecticut v. Edward Palmer
    Decided September 24, 1986

      John R. Williams, in support of the petition.

      James G. Clark, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 496, is denied.


text:
    Anthony G. Zanavich v. Board of Education of the City of Waterbury
    Decided September 24, 1986

      Thomas E. Porzio, in support of the petition.

      William J. Dolan, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 508, is denied.


text:
    State of Connecticut v. Michael Chiarizio
    Decided September 24, 1986

      William J. Tracy, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 673, is denied.


text:
    Laurie L. Ames v. Sears, Roebuck and Company
    Decided September 24, 1986

      Philip S. Walker and Steven M. Greenspan, in support of the petition.

      Frank N. Eppinger, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 642, is denied.


text:
    State of Connecticut v. Nelson L. Millett
    Decided October 10, 1986

      Edward J. Gallagher, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 467, is denied.


text:
    State of Connecticut v. Paul J. Williams
    Decided October 10, 1986

      Paul J. Williams, pro se, and Richard E. Grushin, in support of the petition.

      Elizabeth B. Leete, special assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 578, is dismissed.


text:
    State of Connecticut v. Darryl Mitchell
    Decided October 10, 1986

      Philip L. Steele, in support of the petition.

      Harry Weller, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 598, is denied.


text:
    State of Connecticut v. John Leavitt
    Decided October 10, 1986

      Randy Lynn Cohen, in support of the petition.

      Christopher Maloney, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 8 Conn. App. 517, is denied.


text:
    State of Connecticut v. Paul Egan
    Decided October 10, 1986

      John A. Keyes, in support of the petition.

      James G. Clark, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 9 Conn. App. 59, is denied.